Maxwell v. Bishop – Oral Reargument – May 04, 1970

Media for Maxwell v. Bishop

Audio Transcription for Oral Argument – March 04, 1969 in Maxwell v. Bishop

Audio Transcription for Oral Reargument – May 04, 1970 in Maxwell v. Bishop

Warren E. Burger:

— per argument in Maxwell against Bishop.

Mr. Amsterdam you may proceed whenever you’re ready.

Anthony G. Amsterdam:

Mr. Chief Justice and may it please the Court.

The Court is thoroughly familiar with this case, which has been the subject of one prior oral argument here and a briefing — voluminous briefing by the parties and various amici curiae.

As I see the matter, there are at this time four questions before the Court.

The first two are the questions on which this Court granted certiorari in December of 1968.

Number one, whether the Arkansas practice of giving its juries unlimited, unguided, and unreviewable power to sentence persons convicted of rape to live or die, violates the rule of law fundamental to the due process clause of the Fourteenth Amendment.

Two, whether the Arkansas practice of trying simultaneously, in a capital case the issues of guilt and of punishment also violates Fourteenth Amendment.

Those are the questions which in the jargon of this case are non-respectively as a standards issue and the single verdict issue.

The third question is one which arises from this Court’s decision in Boulden versus Holman.

In that case as in this one, a state prisoner condemned to death, brought a federal habeas corpus proceeding.

In the course of which, he presented no client prior to the appearance of the case in this Court, challenging the selection of the jury that condemned him to die.

Notwithstanding that issue had not been presented in the lower courts and is not included in the application for certiorari here, this Court held that it could notice that the record in his case disclosed a violation of the rule of Witherspoon versus Illinois, in the process by which jurors had been death qualified in the selection of this jury.

And the Court therefore, vacated and remanded the case to the District Court for further consideration of that Witherspoon client.

That I will refer to in this case as to Witherspoon issue.

The fourth question presented to the Court is not a substantive one.

It is simply which in how many of the first three questions this Court will address.

I would like, if I may to begin with that with a question, unless I waste the Court’s time.

What’s your last question there once again?

Anthony G. Amsterdam:

Mr. Justice Harlan?

The fourth question?

Anthony G. Amsterdam:

The fourth question is not a substantive question, Mr. Justice Harlan.

It is which of the first three the Court ought to reach.

And rather than launch in to discussion of the first three, I’d like to talk a little about that fourth.

Now, I recognize in talking about the fourth that this is uniquely a matter for the judgment and for the discretion of this Court.

But I do want to state some facts that I think it is important that the Court know in exercising that discretion.

To my knowledge there are somewhat more than 67 death cases pending on petitions for writs of certiorari in this Court.

In the past weeks, I have caused examination to be made of all of the ones that we could identify, and we have examined 67.

There are 45 cases, out of that 67 coming from 18 states, which present either the standards issue or the split verdict issue.

To be specific, the standards issue is presented in 43 cases.

Anthony G. Amsterdam:

The split verdict issue is presented in 18.

Again, to the best of my current information, there are presently on the death rows in this country, approximately 510 condemned men.

The decision of this Court in the Maxwell case on the standards issue, would potentially affect all but five of those 510 condemned men, that is better than 500.

The decision of this Court —

Potter Stewart:

Mr. Amsterdam, may I ask why the five, were they convicted in the state that does have juries instructed with standards or what?

Anthony G. Amsterdam:

No, Mr. Justice Stewart, although there are in the statute books of several states mandatory capital crimes.

There’s only one active mandatory capital crime in the sense that people are being tried for, there’s no anybody on death row for it.

The five people to whom I refer are five California convicts who are presently on death row, because of conviction of a crime, which carries a mandatory death penalty (Voice Overlap).

Potter Stewart:

Where the jury doesn’t have any discretion?

Anthony G. Amsterdam:

Death penalty with standards are mandatory death penalty.

Potter Stewart:

I see, I see, thank you.

Anthony G. Amsterdam:

The split verdict issue would potentially effect to the best of my calculation and this is a very rough one, 380 to 390 of the 510 men are on death row.

And this Mr. Justice Stewart is of course because several of the states, including those with the major death row populations, such as California have split verdict, so that the number is very significantly reduced.

William J. Brennan, Jr.:

How many states have split verdicts now?

Anthony G. Amsterdam:

To the best of my knowledge, Mr. Justice Brennan five: Connecticut, New York, California, Pennsylvania, and Texas has it, and here’s what causes the difficulty in my figuring out how many men are involved.

Texas has it, but only put it in recently, so that some people on death row in Texas were convicted under a single verdict procedure.

Texas now has —

William J. Brennan, Jr.:

How long has New York had it?

Anthony G. Amsterdam:

Pardon me?

William J. Brennan, Jr.:

How long has New York had it?

Anthony G. Amsterdam:

New York put it, I believe as a result of the interim report of the committee whose final report led to abolition and that would have been back around 1965.

However, there are very few people on death row in New York, as a result of the almost total abolition now of the death penalty in that state.

The Texas statute is the one we noticed briefly perhaps in Spencer?

Anthony G. Amsterdam:

It was — I think that the split verdict for capital trials wasn’t involved in Spencer there.

Texas, since Spencer has revised both the procedure for recidivist trials and the procedure for sentencing in capital cases.

The one other area that I think I want to bring to the Court’s attention, in connection with the question of what issues it’s had reached comes from experience of about five years in dealing with these cases.

Prior to the time when this Court granted review in Maxwell versus Bishop, the job of getting stays of execution for condemned men was an incredibly difficult, perilous job.

On occasions, courts would stay executions.

Occasionally, we would have to come to the justices of this Court to get stays of execution a day, two days before the execution dates were set, as we did in this Maxwell case.

Since the grant of review in Maxwell versus Bishop, it has been far easier to get courts to be willing to stay an execution, until this Court finally disposed of the issues in this case.

Anthony G. Amsterdam:

And the question of getting stays of execution is a vital one, literally of course.

But also a troublesome one, because many of the men on death row are still not represented, and those of us who are trying to represent them very often don’t learn, until the last minute that an execution date has been set.

Since Maxwell v. Bishop was brought before this Court, the governors of several states, Arkansas, Massachusetts, Washington, have agreed to hold up all executions in the state, pending decisions of these issues by this Court.

However, if this Court should dispose of the Maxwell versus Bishop case on a ground, which does not resolve the standards and the single verdict issues, and if it does not simultaneously grant review on those issues in one of the other pending cases.

The problem of getting stays of execution will not be even what it was before the grant of review in Maxwell versus Bishop, it will be far worst.

The reason for that is this, that in recent years, and for the most part, since the grant of review in Maxwell versus Bishop, the highest courts of 17 states, including the states with the eight largest death row populations in this country have rejected the standards client.

There are on the death rows of those states about 380 condemned men.

And the claim has also have been rejected by the federal Courts of Appeals of the Eighth, Ninth, and Tenth Circuits with a result that federal stays of execution in habeas corpus would also not likely be available.

The standards issue, pardon me, split verdict issue has at the same time been rejected by the highest courts of 11 states, having about 220 men on their death rows.

This may be tangential, how many states have still got capital punishment?

Anthony G. Amsterdam:

Pardon me?

How many states still have capital punishment?

Anthony G. Amsterdam:

All but 13, Mr. Justice Harlan and of course, that simply a pragmatic answer, that is I’m not treating states, which have it for treason, but don’t use it to answer.

What this means in effect is that if ever there were an issue of grave national importance, it is the issue presented in the questions, on which this Court granted review in this case, in December of 1968.

It may well be that the constitutional contentions raised by Maxwell and by these other condemned men are not going to be sustained, but I would only ask that this Court pass upon those issues in this case or in another before the executions, which will surely follow.

William J. Brennan, Jr.:

However, do you think you can indicate to grant them, if only the split verdict issue were determined and not the standards issue, what then would be the situation?

Anthony G. Amsterdam:

If the split verdict issue and not the standards issue were decided Mr. Justice Brennan, I would estimate that there would be 130 men on death row in principally three states.

The other two states that have split verdict don’t have very many men on death row.

But there would be approximately 130 men on death row in three states, who would still go to their death with the issue of standards unresolved.

William J. Brennan, Jr.:

This would be in California?

Anthony G. Amsterdam:

California, which has 85 — 90 men on death row, Pennsylvania which has 20 men on death row.

And whatever number in Texas were tried under the new split verdict procedure.

Warren E. Burger:

Mr. Amsterdam, would it be fair to say that your burden here is not to persuade us that the bifurcated trial or split verdict, and the standards to guide the jury are a wise and a sound thing, but that the Constitution requires that they be provided, the narrow issue, isn’t it?

Anthony G. Amsterdam:

Mr. Chief Justice, I am asserting only that the Constitution compels the procedure of providing standards of some sort to guide a jury in its discretion.

And that it requires some form of trial, not necessarily the single verdict trial in fact been used in California or Pennsylvania, that’s a matter of the state to decide what procedure it wants to use.

But that the Constitution requires some form of trial, which does not whipsaw a capital defendant between his privileges against self-incrimination, and his right to provide the jury with adequate information to make an informed sentencing choice.

I want to make that very plain because I think in the last oral argument, I failed to do so, and I’m not at all clear we’ve done so in the briefs.

I do not regard this case, as a case which poses any newfangled notions of due process or any notions of an expanding, collapsing concept to due process into which I am asking the judges of this Court to pour their own penological judgments, that is not this case, and that is not this kind of due process.

The kind of due process that’s involved in this case is the most fundamental, basic, traditional, classical concept of due process, simply, due process as the law of the land, in the meaning of Magna Carta, a requirement of legality, a requirement of lawfulness.

And Mr. Chief Justice, it is our assertion not that the procedures that we are urging are better procedures or more humane procedures, or even more beneficial procedures to the defendant.

Anthony G. Amsterdam:

Several points have been made on several occasions, that some of the procedures we’re arguing for might be worst for defendants.

Defendants who have worst backgrounds and worst histories, would be worst sought, if there were standards which what the juries takes those things into a cam.

I’m not standing here to ask for something here better for defendants or worst for defendants, or more humane, or a better of way of doing it.

What the Constitution requires is law.

It requires a regularized system for the adjudication of issues by courts, and that is what a procedure we are challenging in this case last.

Now, if I may focus in on that procedure and talk then first about the standards question.

I think there is something of a misconception in the approach to the jury sentencing in capital cases, which suggest that what the jury is doing in a death case is to exercise some sort of clemency or mercy, or as Mr. Harris called it in the last argument here, compassion.

I think that in an examination, both of the practice in Arkansas and elsewhere.

And if the statute in Arkansas and elsewhere makes very clear that the claimed of determination that is being when juries choose between the penalties of life and death.

It’s a very different business than the release of some few people from what is otherwise a mandatory or even a normal punishment for the offense for which they have been convicted.

What the statute in Arkansas does is not to make death “the penalty” for a rape.

It is not to make death the penalty for any in all varieties of rape or even for some special varieties of rape.

It is to make it unavailable penalty with an equally available penalty of life imprisonment.

When did the — when did Arkansas take the death — put the death penalty in the hands of the jury?

Anthony G. Amsterdam:

In 1915 Mr. Justice Harlan, that’s 1915, 1-9-1-5.

Potter Stewart:

And before that Mr. Amsterdam?

Anthony G. Amsterdam:

Before that it was mandatory.

Potter Stewart:

Mandatory death sentence?

Anthony G. Amsterdam:

That’s correct, Your Honor.

Potter Stewart:

And that typically is historically the fact in most these states, is it not that they — states move from a mandatory death sentence, upon conviction of first-degree murder or in this case a rape move from a mandatory death sentence, upon conviction to giving the jury discretion to avert that death sentence in their verdict.

Isn’t that historically the way that this develop in most states?

Anthony G. Amsterdam:

Yes Mr. Justice Stewart, if there were any states that didn’t follow that course, I don’t know of them.

The ordinary practice in every state that I know of was exactly that, that after the mandatory death penalty became for some reason intolerable and impossible to maintain, legislatures instead of attempting to define subclasses of cases, in which it might be permissible to sentence a man to death, simply said let the jury have it, the jury can decide.

And it is — I’m talking nothing under the rug, its a general practice.

It is the universal practice for the states to simply turn it over to the jury.

And for the most part, this is a twentieth century phenomena, this doesn’t go back much further than that.

Potter Stewart:

And in some states, it takes affirmative action of the jury to avert the death penalty.

In some states, it takes an affirmative action of the jury nowadays to impose a death penalty.

And some states it’s verbalized in terms as in my State of Ohio, it’s verbalize in terms of jury recommendation of mercy, but the jury is instructed by the judge, what the effect of that so-called recommendation of mercy will be, it will be to convert death sentence in those sentence of life imprisonment, and so on.

But basically, the historical pattern is as I described it, is it not of a development of –?

Anthony G. Amsterdam:

That’s right.

The difference is the matters of detail.

The matters of detail, I may be critical for constitutional purpose, such as the detail as to whether or not the judge may review the jury’s determination.

But for a general overall description of the kind of institution, we’re talking about.

We are talking about one that in virtually all states is the same and involves exactly the process that Your Honors described.

Byron R. White:

Is that also true, Mr. Amsterdam in the non-death cases, the jury sentencing in other cases, likewise of relatively recent development?

Anthony G. Amsterdam:

No, Your Honor, there is jury sentencing in non-capital cases, in a number of states.

I’m not a student of this, but my impression is that they are largely southern states.

Arkansas is one such state.

Byron R. White:

But is that practiced older than jury sentencing in death cases?

Anthony G. Amsterdam:

Oh!

My belief is that it is, but I would not be sure of that.

There is a parallel development Mr. Justice White.

It is true in penology generally that the law has moved from — mandated legislatively fix sentences for specified crimes to a range of sentences available for the crime.

Now, I’m quite sure that it was in the process of that, the juries were given discretion in the states, in which they now have it.

But whether it came earlier later than the development in capital cases, I’m not sure, because there’s so many other devices in non-capital cases that came in too.

Giving the judge a range of sentences, the maximum, minimum, the indeterminate sentence, all of those things.

I’m not sure historically when that came in.

Warren E. Burger:

Mr. Amsterdam, it’s only about 10 years ago that Congress, as the legislative body for the District of Columbia abolished mandatory capital punishment and created a mechanism, somewhat like the one you’ve described, the more flexible one, is that not true?

Anthony G. Amsterdam:

That’s right.

The District of Columbia was one of the last three jurisdictions in this country to have a mandatory death penalty.

Again, I’m talking about a mandatory death penalty for murder.

There’s still some mandatory death penalties on the books but they simply are not used, and the reason they’re on the books is that it’s not being used.

There’d been no pressure to take them off.

Warren E. Burger:

For purposes of this argument, it doesn’t make any difference or does it in your view, what the crime is, but only what the punishment is?

Isn’t that true?

Anthony G. Amsterdam:

Let me put it this way Mr. Chief Justice, I have no hesitation in contending that anytime that a legislature gives a jury completely arbitrary power to single out from among the total number of people convicted of any crime.

Some who will live, and some who will die without standards for that determination, without guidelines, and it does violate the Constitution.

But, I could see a distinction being drawn between crimes.

I do — I would not drag, but I would urge that in this case, the case of rape, you have a somewhat easier case than you do a first-degree murder.

Anthony G. Amsterdam:

And the reason for that is that the amount of discretion that may be tolerable.

I keep saying discretion; it isn’t discretion in any legal sense.

The amount of raw naked power to take a life or save a life that can be given may depend on the range of cases, within which the jury can exercise it.

Now, what is rape?

Is a very broad range of offenses, it ranges from anything from a fellow and a girl, who had been going together, getting into a situation, and he going too far over resistance to a brutal beating of a child with permanent physical injury or torture rape or something like that.

It’s just a tremendous range of factual situations encompassed within the notion of rape.

So that the idea that the offensive rape sets any limitation or gives guidance to the jury, is just totally (Inaudible).

There are within the total gambit of cases in which convictions of rape come down, an infinite variety of factual circumstances.

Now, the theory seems to be that the jury somehow, that 12 men brought off the street, who have never sentenced anybody else, and will never sentence anybody else again, who have no way of making the judgment that they pass in this case consistent with the judgment that’s been passed or will be passed on any other human being convicted of this crime, that they somehow will look at all the facts of this case come out with circumstances that warrant the death penalty and impose it.

Warren E. Burger:

Is that any different from the function of the jury, the traditional function of a jury, which passes on the damages in an automobile accident case or breach of contract that they never before and never again will deal with that kind of a problem?

Anthony G. Amsterdam:

Yes it is vastly, vastly different.

Warren E. Burger:

Well, I’m talking about their function.

Anthony G. Amsterdam:

I am talking also, Mr. Chief —

Warren E. Burger:

Obviously, the difference doesn’t lie.

In terms of the function, is it any different?

Anthony G. Amsterdam:

Yes, the function is vastly different and explicitly stated by California and Arkansas to be different.

When a jury passes on a question of negligence, they go in and they hear the evidence on both sides.

And the judge said to them, “Ladies and gentlemen in the jury, if you find that the defendant failed to exercise toward the plaintiff, that amount of care that a reasonable man would have exercised, you must find for the plaintiff.”

Now, of course reasonable man is a standard, which is not as specific as Section 3355 of the Revenue Code, but it does direct the jury’s attention to an issue.

It is a very different question from saying to the jury if you find that the plaintiff should win this case, you should find for the plaintiff.

At least, telling them that the defendant must exercise care, which a reasonable man would exercise, let’s them go back and talk about something, one juror can say to another juror, “Well, what is the amount of care that in this particular automobile case, a reasonable man would have exercised?”

It is more than the amount of care that has to be exercise with regard to a trespasser and less than the amount of care that has to be exercised with regard to — for example somebody to whom you owe a special duty of care.

The whole up is based on making those kinds of distinctions, and the fact that not anyone of them will bring you out, computer-like to a conclusion, doesn’t mean that there aren’t standards involved there.

When the jury goes out to talk about the death penalty in a rape case in Arkansas, they can’t ask whether or not it’s reasonable to impose a death penalty or anything else, when juror may vote for the death penalty, because the defendant was black and the victim was white.

And I think this is a very important matter also in describing the function Mr. Chief Justice.

It would shock me and it would demonstrate, I think that our entire court system is not functioning at all.

If you did a study of cases in which plaintiffs had sued defendants and juries had come up with a verdict, in negligence cases.

And you found that there was no correlation, whatever, ascertainable between the facts of the case and the juries verdicts.

I think that you would find and inevitably find that the higher the rate the speed of the car with which the defendant hit the plaintiff or the murkier than night on which it was occurring, or the worst of breaks the more you’re going to find plaintiffs recovering the defendants.

Such a study was done in Arkansas.

Anthony G. Amsterdam:

Three factors emerged that characterized the cases, in which persons get the death penalty: race, the commission of contemporaneous offense, a prior record of imprisonment.

A prior record of imprisonment may have nothing to do with the jury’s determination rationally of it, because a jury ordinarily doesn’t know about a prior record.

So that I think that both in legal theory and in fact, this is a very different business from the juries going out and in a negligence case in saying, “Well, did that defendant have a duty of care?

What was that duty of care?

Did he act the way a reasonable man would act?”

In Arkansas, none of those questions need to be asked, and in performance the juries do very different things.

In the one case the jury acts consistently with a pattern, a system defined by law and ordained by law, and in death sentencing juries act simply, except for the factor of race, irrationally.

Now, the question —

You said that the history of this transition from the mandatory death sentence to jury fixing the death sentence is the product, the way I understood it is quiet to the mandatory death sentences without regard to the question of whether it was in the element the of compassion entering into it.

Is that born out by the history of this change over?

Anthony G. Amsterdam:

Mr. Justice Harlan this is one of those questions of history that turn on what your personal point of view is.

I would put it this way from my personal point of view that it became simply intolerable for society to uniformly sentence to death, the total number of people convicted of any offense.

Well, that’s would I — that’s what I gathered.

There is no documentation that you can bring the bare bones.

Anthony G. Amsterdam:

No there isn’t, there is not.

It simply — we know as a phenomenon that at some point of time, legislatures in large numbers began to take the mandatory death penalty off the book and replace it with the discretionary form.

Hugo L. Black:

And as I understand it, to date, your argument would be the same, if Arkansas had never changed to allowing the jury to exercise its discretion with reference to the — what you call the demand for standards.

Anthony G. Amsterdam:

No, Mr. Justice Black our argument would be vastly different.

What Arkansas had prior to allowing jury’s discretion was a mandatory death sentence for all persons convicted of a crime.

Now, mandatory death sentences would raise serious constitutional questions, but they are not the constitutional questions of this case.

Hugo L. Black:

What would they raise?

Anthony G. Amsterdam:

I think they would raise a very serious question — I’m sorry.

Hugo L. Black:

Cruel and unusual punishment.

Anthony G. Amsterdam:

I think cruel and unusual punishment.

Hugo L. Black:

That’s the only constitutional question raised, isn’t it?

Anthony G. Amsterdam:

There may be procedural questions, but in terms of the major question, I think cruel and unusual is the only question that it might raise.

Potter Stewart:

That was a question that’s already been more or less decided in the Witherspoon case.

You’d have that issue in jury selection, but you wouldn’t have either of your basic arguments if Arkansas law was the way it used to be before the turn of the century.

Anthony G. Amsterdam:

No, you would not.

You wouldn’t have two issues to try, so you wouldn’t have a single verdict issue, you’d only have a single issue and of course there’s no discretion.

Potter Stewart:

(Voice Overlap) precisely, then you wouldn’t have any statute for the jury to follow.

Anthony G. Amsterdam:

I quite agree.

William J. Brennan, Jr.:

Mr. Amsterdam, how many jurisdictions provide for judicial review of the imposition of the death penalty?

Anthony G. Amsterdam:

That’s very, very difficult to say.

I cannot say that courts have exercised judicial review of a death sentence in more than 11 or 12 jurisdictions.

Now, there are —

William J. Brennan, Jr.:

But doesn’t the new District of Columbia statute have something like this or not?

I’m not —

Anthony G. Amsterdam:

Arkansas has its statute, it’s been pointed out, it’s 4323-10, I believe.

In Arkansas, which says and this is common in United States, this is where I have to give an uncertain answer.

William J. Brennan, Jr.:

Well, what I meant was, any explicit provision that even though the jury imposes a death sentence, the judge can cancel it and impose life?

Anthony G. Amsterdam:

No, there you have to distinguish between trial judges and appellate judges (Voice Overlap).

William J. Brennan, Jr.:

I’m speaking of trial judges.

Anthony G. Amsterdam:

Trial judges?

I would guess eight to ten states.

William J. Brennan, Jr.:

That many?

Anthony G. Amsterdam:

Yes.

William J. Brennan, Jr.:

Is that a fairly recent innovation?

Anthony G. Amsterdam:

A relatively recent innovation and it takes three different forms, which one has to watch out for, but I don’t think they make much difference.

One is that the judges charge, this is the Maryland situation, a judge is charged with actually passing the sentence when the jury has made a recommendatory body, but as a matter of practice, the judge almost fall as a jury.

The only known version, a very recent thing is that judge and jury must concur, that it puts the initial on a signboard.

They both independently and infuriately have to come out with a judgment.

Then the third is a form that’s a little older, but still I think largely a recent innovation, that says if the judge may set aside a jury verdict, even though he finds no error in it, but if he simply disagrees with the penalty imposed.

Now, it’s the latter form that is very difficult to determine by head count.

How many states have, because there are number of states, which for example Arkansas has a statute that seems to give a judge the power to reduce jury sentences?

Now, it’s couched in language that I do not think it applies to capital cases.

There has never been a case, in which the Arkansas Supreme Court had said that it implies to capital cases.

And in the last argument here, counsel for the state say he knew of no cases in which a judge ever done that.

And I made inquiry of Arkansas counsel, and we know of no case, in which the judges ever done it.

So, I would deny that in Arkansas, there is such a thing.

Anthony G. Amsterdam:

But one couldn’t, by looking at the statute books of the states come out with.

The general practice Mr. Justice Brennan, I am confident is that there is no judicial review.

In some states, we know there is.

In California, we know there is.

Not by statute but because the California Supreme Court said so.

But in most jurisdictions, I would think there was not.

Warren E. Burger:

Do these questions, in exchanges Mr. Amsterdam suggest that legislative bodies have considerable advantage over this Court, for example in terms of flushing out all the facts, getting all the information, finding out precisely what is done, and what the experiments, and innovations have led to?

As for example it was done 10 years ago when the Congress conducted extensive hearings and amended, abandoned this mandatory capital punishment.

Anthony G. Amsterdam:

It certainly does Mr. Chief Justice and indeed my whole position is that they ought to do that.

I’m not suggesting for one moment that this Court ought to set standards or that this Court ought to review any legislative judgment.

No legislative judgment has been made, except the legislative judgment that no judgment can be made.

And I am asking this Court to determine whether it is consistent with the rule of law, which is fundamental to due process for the legislatures to say, we are going to kill people and we are not going to undertake an investigation to determine which classes of people should live, and which classes of people should die.

We’re not going to set down rules, we’re simple going to let a jury determine like rolling the dice, which person is going to live and which person is going to die.

I concede the benefits of legislative judgment view and a ruling by this Court, that lawlessness in the process of killing people is unconstitutional will precisely put back to the legislature the kind of question that it is uniquely fitted to deal with.

Warren E. Burger:

Well, if we start with your conclusion, which you seem to pose as a premise, we start with your conclusion that there must be standards, Mr. Amsterdam, then while you’re not quite home free or lonely down the road, isn’t there a very, very large question of judgment, whether any standards at all are feasible?

Isn’t that a large question, however it’s answered?

Anthony G. Amsterdam:

It is indeed Mr. Chief Justice —

Warren E. Burger:

Did you enlarge your question?

Anthony G. Amsterdam:

(Voice Overlap) question, but the courts review of that question is a different matter than reviewing a legislature’s judgment as to standards, because neither facts?

Warren E. Burger:

Because it’s in this Court to make that judgment, when we have —

Anthony G. Amsterdam:

No, I’m not sure that the legislature has made that judgment.

I’m not sure that the legislature —

Warren E. Burger:

But you’re asking us to make the judgment, that standards are imperatively required under the Constitution.

Anthony G. Amsterdam:

I am asking this Court to say that standards are imperatively required under the Constitution, but I’m not asking you to review a judgment of a legislature that standards are not practicable, which is I thought the question Your Honor asked.

Warren E. Burger:

Well, I’m doing — both are involved, but if you say to us, as you are, if understand you that we must mandate that the Constitution requires some standards, but leaving it to someone else to decide what those standards would be.

Isn’t that quite a large blank check, constitutional blank check?

Anthony G. Amsterdam:

No, no, I think in terms of what least left, Your Honor later, yes I think that the legislatures do have a fairly large blank check.

I have no doubt about that.

The primary power of a legislature to fix sentences or offenses is a very broad check constitutionally, there’s no doubt about that.

This Court has a very limited review over what legislatures do in determining sentences, as is it a very limited review over the penological judgment, same I can define in crimes.

Anthony G. Amsterdam:

The only power that this Court has to enforce the Constitution and the only that I’m asserting the Constitution requires is a rule of law.

And I do not think that this Court is being asked thereby to review any legislative judgments, and standards are not practicable.

In the absence of somebody asserting to a legislature that they’re desirable or necessary, we don’t even really know that any legislature has made the judgment that they’re impractical.

Warren E. Burger:

But do you have any (Voice Overlap) doubt whatever that if followed your recourse, and the legislatures of the several states undertook to carry that out, that the first time a death penalty was invoked to someone would be up here saying those standards are not adequate.

Anthony G. Amsterdam:

Mr. Chief Justice, I agree with that and I will admit that I will probably be among the people, who will be up here asserting that.[Laughter]

But I don’t think that that is the question as before the Court.

This Court back in the early 1930s had the question of whether or not a city, which wanted to control parading on its streets.

It could simply say, “You got to get a permit from the Chief of Police.

It’s illegal to parade without a permit, get a permit, and you can parade.”

Now of course, it was a fact that if this Court said, “Well, standards are required for the issuance of a permit that 25 years or 30 years of litigation, which we have had would ensue with regard to what the kind of standards should be.”

Now, I don’t know how much litigation is going ensue from a decision requiring standards.

But I do know that the only question before the Court at this point is a question was before the Court back in 1930 in the permit case, whether any kinds of standards are required.

A legislature may do a very good job, and this Court may be able to decide within a year or two years that the standards which have been defined are adequate.

It may do a very bad job, and certainly the standards will be challengeable.

It is a very function of the rule of law that have things that can be tested legally, that’s what we don’t now have and that’s what we’re contending.

Could I put a hypothetical to you preliminary to lunch now, it’s prompted by the colloquy between you and the Chief Justice.

Supposing a legislature said that the jury is to fix the death penalty based only upon the record and only upon the evidence that’s introduced, it’s relevant to guilt; would you regard that as a standard?

Anthony G. Amsterdam:

I would regard that as a standard and far better than what Arkansas has, but I would not regard it as an adequate standard.

Well, that opens up the question that Chief Justice says, I would assume that your answer will be there — was a standard, but it’s not good enough, and that plunges the Court, doesn’t it, into the Chief Justice’s suggested?

Anthony G. Amsterdam:

No I don’t —

Warren E. Burger:

I think I’ll let you ponder on that while turning in your lunch hour, Mr. Amsterdam.

[Lunch Recess]

Anthony G. Amsterdam:

Yes, Mr. Chief Justice.

Warren E. Burger:

Mr. Amsterdam, you had the chance to ponder on Justice Harlan’s question, if you want to address yourself to it.

Anthony G. Amsterdam:

I have indeed, and I do.

Thank you, Mr. Chief Justice.

Mr. Justice Harlan, I believe that the Court will not be setting its foot on a primrose path, if it demands that the states set some standards for the penalty determination.

I believe that statutes are draftable, which will provide adequate constitutional standards.

I say that in view of two major considerations.

First, I think we already had some models.

Anthony G. Amsterdam:

I think that the ALI Model Penal Code, model for a capital punishment statute, although I might not agree with all of its details is a workable model.

Secondly, again I’d like to advert, if I may to the history of the Court’s experience in dealing with ordinances, it regulates parades in that certain time.

I think it might have been arguable, and it might have looked very plausible before this Court’s decision in 1938 in Lovell and Griffin, to say that you could not draft an ordinance, that would take account of all of the imponderables that had to do with the question of whether or not you would let a parade go down the street.

You have to worry about traffic, you have to worry about crowd control, you have to worry about the availability of police, you have to worry about emergency vehicles, you have to worry about a thousand contingencies.

Nevertheless, it was not three years after this Court’s decision in Lovell versus Griffin, requiring standards, that this Court sustained a statute as a having standards in Cox in New Hampshire in 1941.

And the fact that there’s been 30 years of experience in which this Court has had to knock down various ordinances for lack of standards it’s not because it was impossible to draft standards, but simply because there was a willful refusal to comply with what this Court demand.

And I say willful advisably, because the considerations that kept open-handed discretion in the hands of police chiefs to regulate parades is very much the same thing that is being given to juries in capital punishment.

There is simply feeling that if you really brought up to the surface and articulated the considerations that the legislature was attending to effect juries, like race, they wouldn’t stand the light of debt.

Now, I think that it is possible to draft a statute, which will withstand the constitutional scrutiny of this Court.

And I think that insistence by this Court that the legislature address itself, tearing its undoubtedly greater wisdom, and it’s undoubtedly more appropriate penological judgment to that question will advance, the cause of the drafting of adequate statutes.

I think that if this Court hadn’t decided in Lovell and Griffin that it was necessary, the legislatures never would have caught.

Now, that they’ve tired, they’ve succeeded.

I think that if this Court insist that the rule of law requires the drafting of standards in this area, that it will be possible to do, and I think that the Model Penal Code, although I have some questions about details of it, and although it’s applicable to murder and not to rape is a fair example of what legislatures can do if they try.

Now, there is — though I think a second answer to that question.

If I were to conclude that it was impossible to draft a statute which would impose the rule of law on a decision, whether or not men should live or die.

So, that it was impossible to reconcile the basic requirement of lawfulness in proceedings with the death penalty, I have no doubt which of the two institutions, the constitution say should prevail.

If the cause of a system of capital punishment is lawlessness in its administration, the Constitution forbids that kind of lawlessness.

And that causes me to revert to what I think is essentially wrong with Arkansas’ procedure for determining who lives and who dies in a capital case.

That is a decision, as I have said which is not the dispensation of mercy.

On this record it appears that less than a quarter of the total number of persons convicted of a crime of rape are sentenced to death, and that appears to be a very high figure.

The general statistics that are available, and we put them in the appendix to our brief and they have a great deal of trouble analytically, but nevertheless one can draw some implications from it, the general statistics that are available appear to show that not more than 10% of people convicted of capital rape were in fact sentenced to die, and that for murder, it may be up in a neighborhood of 20%.

Now, the process by which jurors take, out of all the persons convicted of a like harm, one-tenth or one-fifth of those persons and subject them to the most extreme penalty known to our law has got to be under the Constitution I submit, a rational, regular, and lawful process.

I do not think that this Court for one moment would sustain a state enactment of a statute that said that out of every five persons convicted of murder, and out of every ten persons convicted of rape, they shall meet in the state penitentiary and draw straws to see who will die.

Hugo L. Black:

But you don’t think if this is like Cox, do you?

Anthony G. Amsterdam:

I think this is worst Mr. Justice Black.

Hugo L. Black:

You do.

Anthony G. Amsterdam:

Yes it is, because there it is every bit as arbitrary in that, the factors which determine whether or not a person lives or dies.

Although there are subject to the appraisal of a particular jury rather than a straw or the dice are not subject to that jury’s consideration in light of any rules that are applied in this case and the next.

There is no assurance that what makes this jury sentence this man to death pick him from nine or ten other people exactly like it, responds to any rule applied at any other ends case, where there it will be applied in any other man’s case.

And what’s worst —

Hugo L. Black:

Are you saying exactly like even if you are not on the jury, you didn’t hear the evidence, those jurors are suppose to have some knowledge to the facts of life and evidently they — well their opinion, may be right or wrong, they will depend that this was an extraordinary bad case of rape?

Anthony G. Amsterdam:

Mr. Justice Black, I don’t think one can fairly draw that inference, and I’ll tell you two reasons why I think one —

Hugo L. Black:

Why do you think they draw that interference?

Anthony G. Amsterdam:

Because we have examined that factors that bring about death verdicts in the State of Arkansas, and we have not found in any of the characteristics that you or I or twelve jurors could agree, made those cases, bad cases, in fact, bring about the death verdict.

What we found is, if there are three factors that show up in death cases as this thing, which from my cases, race, prior imprisonment which the jury doesn’t know about, unless the defendant forgoes this privilege and takes the stand; and commission of a contemporaneous offense, which didn’t happen in Maxwell’s case.

So, that I think that if you examined the performance of juries, you must conclude that they are not in fact, reserving the death penalty for the most serious kinds of offenses or a particularly bad kind of offense.

They are applying it in fact, in light of those factors randomly, exactly the way a roll of the dice would.

But what they are doing is worst than that, because the dice at least don’t discriminate racially in Arkansas juries do.

At least with the dice, a black man would have an even chance of getting the death penalty with a white male.

And in fact in Arkansas, 50% of the black chart of interracial rate get the death penalty and 14% of persons charged with intra-racial case get the death —

Hugo L. Black:

Have you looked up the statistics in every state of the union on that affecting race on the verdict by juries?

Anthony G. Amsterdam:

They’re not of record Mr. Justice Black.

We have put in our brief however, every statistic that has ever been produced, which the Court can’t properly, judicially notice, and everyone points to the same conclusion.

We have other —

Hugo L. Black:

In reference to all the states?

Anthony G. Amsterdam:

Pardon me, Mr. Justice?

Hugo L. Black:

I’m talking about was reference to all the states, are you saying —

Anthony G. Amsterdam:

I’m talking —

Hugo L. Black:

You referred to Arkansas only, are you saying that doesn’t — that never enters into the matter in other state?

Anthony G. Amsterdam:

Oh!

I think it does Mr. Justice Black.

I think it enters into the matters in all of the states.

And that’s exactly why we argue for a constitutional ruling, it’s applicable to all the states.

What would you say if the death penalty is put in solely in the hands and the sole discretion of the judge, would you say it’s standing from necessary thereto?

Anthony G. Amsterdam:

Mr. Justice Harlan, I would say that the Constitution forbids arbitrary discretion in the hands of the judge, as it does with the jury.

But, again I can see a distinction between the two cases, and I believe that a holding with regard to juries would not necessarily apply with regard to judges.

Again, I do not think that Giaccio versus Pennsylvania, which says that a jury can’t have an utterly freehand in setting cost.

It means that the judge doesn’t have a freehand in setting cost in cases.

I think that the fact that you have 12 men brought in for a particular occasion, who are not professional sentencers, who do not have even the consistency of their own performance from case to case to guide them creates a different background for the exercise of that discretion, and therefore, it may be constitutionally impermissible to give it a jury, but not to a judge.

My own view that it’s equally bad to give it to a judge, but I don’t think that issue is presented in this case.

Byron R. White:

How about the non-capital issue, Mr. Amsterdam, whether the judge or the jury imposes the penalty where there is no standard to guide even one of them?

Anthony G. Amsterdam:

The rule for which we’re contending in this case is limited to capital cases.

Again, I —

Byron R. White:

Well, I know that’s what you said.

But I wonder how you would really actually distinguish a death case from a non-capital case?

Anthony G. Amsterdam:

On several grounds, the most significant one, I think is simply that, where more is at stake for the defendant, the requirements of due process for a regularized decision-making procedure are more exact then.

Byron R. White:

Well of course, the level (Inaudible) or anything just to ask a question whether somebody have a parade on the street.

Anthony G. Amsterdam:

No, I quite agree, but there we have a First Amendment concern, as well.

I think —

Byron R. White:

I know you got possibly like the prison arrangement penalty from a year to life sentence and no standards, whatsoever to guide the jury, as the jury sentencing the same or it does (Inaudible)?

Anthony G. Amsterdam:

Mr. Justice White, I — my own personal position again would be that standards are required of juries and of judges in non-capital sentencing under the Constitution.

But I think that since Skinner and Oklahoma, it has been cleared that this Court has drawn a distinction.

In Skinner, the Court said that you couldn’t sterilize thieves, unless you sterilize embezzlers.

Now, nobody has ever argued that you can’t punish theft by 15 years of imprisonment, and punish embezzlement by 10.

Those kinds of penological judgments are simply of a different order of magnitude in the choice of life or death, and the Court has required different degrees of regularity in the procedures, and even handedness in the procedures from posing the penalties.

A second consideration and I think is vitally important is this one.

When you are talking about non-capital sentences, you have a consideration that just doesn’t enter into the equation, when you talk about capital sentences, that the rehabilitative aspects.

Now, I am not ascertain, I’ll make this very clear that the Constitution requires that states take rehabilitation into account, in their sentencing.

But I am asserting that inevitably states do take rehabilitation into account, for a simple fact that if you send a fellow away to prison, he’s going to come out, and everybody wants to come out, better of it than worse from the point of view of society.

Now, we simply do not have the calibers of this stage of a science to reduce the rehabilitation factor to categorical judgments, which permit themselves to be articulated in standards.

When you make the decision, however, to sentence a man to die, instead of to live, you’re making a decision, to take him out of the rehabilitative regime entirely.

And that kind of standard it seem to me, can’t barrel the benefits of what we don’t know about rehabilitation.

So I think that again, non-capital sentencing has a factor, it has a wild card, it has a joke that justifies —

Byron R. White:

So, you would say that a non-capital case statement simply came out and said are merely and punishment is serving rehabilitative goals only that we just do that without any sense at all?

Anthony G. Amsterdam:

No I don’t — again, Mr. Justice White, I —

Byron R. White:

The way they said they can’t be articulated.

Anthony G. Amsterdam:

I think that it’s of a rational line to draw, that the Court could say that where rehabilitation is an issue, that a great deal of torments will be allowed because of the imprecision of the art of sentencing and the right of rehabilitation.

My own view is not that, but I think it’s a logical —

Byron R. White:

Do you submit to tell a jury or a judge, that rehabilitation is our goal, now make up your mind, the sentence will be sort of like saying — make up your mind, what do you care?

Anthony G. Amsterdam:

It would be midway between due care and what we have in capital sentencing, because at least the focus would be on something rehabilitation, and that’s exactly what is wrong with the Arkansas procedure.

Anthony G. Amsterdam:

It is unclear, whether a jury which goes back, unclear to anyone of those called jurors, whether he is to take for example the possible reformation of the defendant into a capital deciding whether he shall live or die.

It is perfectly consistent for one jury to ask himself the question, “Well, is this man rehabilitative?

We’re going to sentence him to death only, if he’s not.”

Another juror might go back and simply ask the question, “Is he black, and was he’s victim white?”

Another one might go back and ask the question, “Is this a particularly heinous case of rape in one sense or another?”

The legislature hasn’t even focus in on what the genuine purpose of capital punishment, so that the jurors can talk meaningfully about it.

And jurors from case to case can act meaningfully in light of, some general purpose for capital punishment.

Now, the black-white business has one additional very important factor, a very important implication in this case that emerges from this Court’s decision in Pearce versus North Carolina.

Pearce is a decision in which this Court has required standards for sentencing, where a particular kind of danger was perceived, and that was the danger that a judge viewing of the defendant’s access on appeal with this favor would be vindictive and penalizing for that.

It would to me be an anomaly of a highest degree if this Court were willing to exact the more demanding requirement of Pearce, not simply that there’ll be standards for the decision, but the reasons for the application of those standards be articulated.

Where the risk is — and although I think there is a risk, I think it’s not a terribly great one, that a judge would be vindictive, and not to require standards, where the danger is that a person will be sentenced to death on account of his race, where in Arkansas specifically and in this country generally, everybody who has examined this question has concluded, that in fact jurors are racially discriminating in the imposition of the death penalty.

But danger of that, of a flagrant and otherwise unprevalent violation of the Equal Protection Clause of the Constitution, should require this Court to assure that the procedure comes up to visibility, in a way in which that racial factor will not have the effect that we know it now has in capital sentence.

Byron R. White:

Mr. Amsterdam, would it help avoid that where juries or the jury sentences at all?

Do you think if you — if you draft to the set of standards and of permitted jury, the juries to sentence, do you think those standards would really get you far along the line on –?

Anthony G. Amsterdam:

Yes, Mr. Justice White for two reasons.

First of all, I am not only talking about the kind of discrimination that occurs from perverse and willful disregard of a legal requirement.

In Arkansas, a juror might believe that it is legal and permissible and the charge he’s given to take account of the fact that the defendant is black and the victim is white, and that at least would be flushed out.

Jurors would not openly be able to say to each other, “Let us sentence this man to death, because he was black and his victim as white.”

Byron R. White:

Will you solve that in the end together this — that face of the case, the only standard you’d need was an instruction that you must not let race be taken into account in this case?

Anthony G. Amsterdam:

I think that any instruction would help.

I think that an instruction to that effect would help, but then we get into the second —

Byron R. White:

Well, is that all that would be necessary to eliminate the racial part of this?

Anthony G. Amsterdam:

No, I think it would not.

And the reason for that is this, I think the juries may well discriminate on account of race and find the defendant is guilty of crimes, as well as you convict him, but there all sorts of judicial methods of control that are available there, that are not available in the absence of standards.

The only way in which a judge can determine, whether there’s a rational basis in the record, whether the jury could have decided to impose a death penalty on this case, on any other ground than race, is if there’s some standards.

There is no doubt that if all the other factors, which allowed the imposition of the death penalty, under appropriate standards existed in the case, the jury might still discriminate on account of race, as they may now in finding guilt, if the evidence is insufficient to make out all of the elements of the crime.

Byron R. White:

By the split verdict, are you going to get to that?

Anthony G. Amsterdam:

I am afraid my time is —

Warren E. Burger:

Mr. Amsterdam, I was just coming to that, you’re practically out of time.

We’ll enlarge your time 10 minutes and we’d enlarge with your friend’s time at same degree.

Warren E. Burger:

And perhaps you’d better address yourself to that point now.

Anthony G. Amsterdam:

Mr. Chief Justice I thank you and I shall.

I simply would want to imply whether there’s also any purpose in my addressing myself to the Witherspoon point.

I think Witherspoon is open and shut on this record, and I would prefer to — unless the Court has questions in connection with Witherspoon, simply pretermit discussion of that.

Seven jurors were excluded they are pretty (Voice Overlap) Witherspoon.

Warren E. Burger:

If you don’t get any questions, you can assume that it can be submitted on the brief.

Anthony G. Amsterdam:

Fine.

Now, again with regard with the split verdict issue, I want to make very clear that we are not relying on some general notion of fairness, which is to be spelled out in due process clause of the Constitution.

We are relying in this case on what I think is a palpable inconsistency between the federally protected privilege against self-incrimination of the defendant, and is equally protected set of federal constitutional rights in assuring a rational sentencing decision.

Those latter rights include: right to a hearing on a question which is as considerable as the question of life or death, and the opportunity to present defensive evidence addressed to that question.

Now in a single verdict trial, a defendant who, like William Maxwell, exercises his constitutional privilege against self-incrimination allows the jury to decide whether he shall live or die, without presenting a slightest bit of evidence relevant to the choice of life or death, except the evidence that comes in on the guilt issue.

Now again, I am not asserting and it is not the basis of our constitutional submission that a state is constitutionally precluded from permitting the decision as to life or death to be made on the facts of the offence if the state does that, but the State of Arkansas does not do that.

It is very clear that the State of Arkansas permits the decision as to life or death to be made on a broad basis, including background information, and any other material that may in the unfetter discretion of the jury affects it’s choice.

Now this means that a defendant is paid a very high price for giving up the privilege against self-incrimination.

If he chooses either to plead guilty and limit the trial to the issue of punishment or to take the stand, raise all of the question of background, talk to the jurors, show them that he is a human being, show them that he has a voice, explain what led him to what he did, and asked for mercy, in light of those considerations.

He stands a far better chance that the decision will be made on a full and rational basis, than if he is simply exercises his privilege and does not testify.

Have you considered this question of a bifurcated trials, as you all been longing in this point of it might be easily be called a right of allocution whether in the technical sense of that term or whether in the sense of as it’s developed in some states at least, a right to put in evidence and litigations not relevant to the issue of guilt?

I didn’t see anything in your brief that touch that.

Anthony G. Amsterdam:

I’m sorry Mr. Justice Harlan we do see the right of allocution as sort of a comprehensive summary of what we think the Constitution entitles the defendant to any capital case.

Again, we quarrel with the observations of this Court in Hill that in certain kinds of cases, allocution may not arise in constitutional dimensions.

What we say is that in a capital case, where allocution has been historically recognized as far more significant, where more is at stake for the defendant, where the practice not only precludes, as the Arkansas practice touch, is talking to the jury, but is presenting any evidence or his counsel even meaningfully arguing that issue, in light of a full record, that the Constitution does require more allocution than the Arkansas procedure allows to a fellow who claims his privilege.

Well, Arkansas has that an allocution, generalized allocution statute.

How does it operate in these capital cases, where the jury, not the judge fixes the penalty?

Anthony G. Amsterdam:

It does not, if the —

Do they have any at all?

Anthony G. Amsterdam:

There is no right of allocution in a capital case.

The issue is submitted to jury on both guilt and punishment after trial of guilt face.

The defendant has no opportunity to make a statement, either of technical allocution in order to present any evidence that goes to sentencing as such after verdict.

Now, he might present evidence relevant to sentencing before a verdict, with all that implies for giving up the privilege against self-incrimination and prejudicing himself on the guilt issue.

Warren E. Burger:

And I was just coming to that on another form of Justice Harlan’s question, namely: would it solve your purposes, would it meet your problems, if the defendant could either under oath or not under oath be permitted to address himself, by his own testimony, by his own statements to the question of litigation, and then apply the familiar rule that cross-examination would be limited to the scope of the direct testimony?

Warren E. Burger:

In the single trial, now this gets out I think out, perhaps what just Justice Harlan was probing out, in terms of a right to speak to the jury.

Anthony G. Amsterdam:

It would help, but I don’t think it would satisfy the constitutional requirement, because there would still be.

I don’t know what that such a rule would do for impeachment for example, because I assume that his credibility would be an issue, with regard to even those factors that he spoke, simply going to mitigation.

Warren E. Burger:

Do you think it should not be an issue?0

Anthony G. Amsterdam:

I think that it should be an issue, most assuredly and therefore, if he were permitted to make such a statement, after the jury had determined guilt.

I would have no problem, but the difficulty is in Arkansas, impeachment involves the admission against the defendant of literally every bad act in his life.

And I think that again, the tension that’s created, that would persuade the defendant not to take the stand, to give up his right to speak in mitigation, because of the tremendously prejudicial impact to that on the guilt phase would be constitutionally intolerable.

However, that again is not this case, although I would have my constitutional doubts about that, the Court doesn’t even have to reach that question again as in the question of standards.

What we have here is an Arkansas procedure, which permits arbitrariness and irrationality by giving no standards to the jury in sentencing.

And then virtually requires that the decision be arbitrary, if the defendant doesn’t take the stand, because there’s simply no basis for the juries determining the facts relevant to the critical sentencing decision.

Now, any of those factors are changed, we have a different constitutional case.

What we have in Arkansas is the irrational trial process at its worst.

If I may reserve —

Let me ask you one question, before you leave this phase of argument.

Does Arkansas permit the state itself as distinguished as a defendant to introduce in this case and achieve the evidence as relevant to sentencing but would not be admissible on the issue of guilt.

Anthony G. Amsterdam:

No, Mr. Justice Harlan.

It does not prevent that?

Anthony G. Amsterdam:

No, and that is what creates the constitutional dilemma, if the state could do that, whether or not the defendant testify, then you would not have the tension between constitutional rights.

But the defendant subject himself to that only if he makes character an issue or if he testifies.

Warren E. Burger:

Thank you.

Mr. Attorney General.

Don Langston:

May it please the Court.

As the Eight Circuit Court of Appeals in this case said when it was before them that guilt or innocence is not an issue in this case.

Our State’s Supreme Court has held in this case that the evidence made an overwhelming fashion, all of the requirements for conviction, for the offensive rape, as it was defined in 1962.

Of course, our rape statute has been changed, since that time in 1967, it was changed for three degrees of rape, and the penalty was changed for first degree rape, which this would have fit into, if it has occurred after 1967.

The new penalty for rape, first-degree rape is 30 years to life or death, in the discretion of the jury, which this offense would fall into.

The facts of this particular case do not appear to be an issue that as the Eight Circuit characterized it, that the circumstances of this crime, as usual are sorted.

A few of the background facts is that on November 3, 1961, in the early morning of — in that early morning, a 35-year-old white woman was brutally beaten and raped by the petitioner in this case.

And her 90-year-old helpless father was also beaten.

She was then dragged to the vacant lot down the street and attacked.

Don Langston:

We feel that guilt or innocence is not an issue in this case as are other issues, which Mr. Amsterdam has mentioned in his brief and his oral argument here.

In Arkansas, there are five offenses, which are punishable by death.

One is kidnapping, also rape, murder in the first degree, a treason, and burning of prisons by convicts.

As originally enacted in Arkansas, these statutes provided automatically for the death penalty.

In 1915, the Arkansas legislature, as Mr. Amsterdam has mentioned, enacted Arkansas Statute 43-2153, which gave the jury the discretion of imposing a sentence of life imprisonment, instead of death.

Now, petitioner and some of briefs that were filed on his behalf about others contend that the death penalty should be voided and abolished as cruel and unusual punishment.

While the State of Arkansas recognizes that there may be some movement in that direction, that issue is not before this Court.

Does it have to be a unanimous verdict of the jury or is it something less unanimous?

Don Langston:

Unanimous.

Between a life or death.

Don Langston:

Unanimous, Your Honor.

Unanimous.

Don Langston:

All verdicts of criminal cases have to be unanimous.

In civil cases, nine can bring in a verdict.

Or what it’s worth to this Court, in 1967, a bill was introduced in the Arkansas legislature to abolish capital punishment, public hearings were held, and the issues were debated, and the bill got no word, it wasn’t fitted overwhelmingly.

Also, senses kick —

Was he sure of both?

What was the rule?

Don Langston:

I don’t remember, Your Honor.

Also, since this case was argued last year, there had been some eight death verdicts returned in Arkansas, at least six of them were white people, two of them were black people.

If you can get those statistics, would you mind getting them?

Don Langston:

The vote on the bill, Your Honor?

Yes.

Don Langston:

All right.

Also, in this case in the briefs, also in the argument here today about Mr. Amsterdam, they want to inject the issue of discrimination and race in this case.

Petitioners and some of the briefs filed in his behalf vote a lot of their argument on this point.

We can only state that discrimination and imposition of this death penalty was advanced by petitioner in his petition for certiorari, and was rejected by this Court.

It was rejected by the District Court.

It was also rejected by the Eighth Circuit Court of Appeals.

What this case actually concerns, itself with is the validity of procedural means used in imposing the death penalty on a criminal defendant, whether he be white or black.

Don Langston:

We contend that this case in effect really involves issue of whether the jury system is a workable procedure in capital cases.

Wherein a charge is asked in this case, on that question?

Don Langston:

No, Your Honor.

And not race?

Don Langston:

Excuse me?

What does that judges do down there?

As someone says, you should not consider the race of the person, of the witness, of the person’s race.

Is any history of what the judge charges the jury, have requested in that field?

Don Langston:

I know of no case where that has ever been requested your Honor.

I’ve read it in some of these briefs, where in some of these statistical studies that from the transcripts and the case that you could not tell the race of the victim or the race of the defendant.

Well, they know it, don’t they — I would suppose.

Don Langston:

I mean you can’t tell it from the transcript, whenever they were given the statistics for the district court trial.

Yes sir, the jury can tell.

Warren E. Burger:

You’re point, I take it as merely that the measurement of this is therefore becomes a very difficult — because you don’t label the record, one way or the other.

Don Langston:

That’s correct Your Honor.

The decision of the District Court on standards held that the Untied States Constitution did not make it necessary that trial courts in Arkansas charge or instruct juries regarding standards or guidelines to guide them in assessing life or death.

The court reasoned that Arkansas procedure, rested the decision, in the discretion of the jury to be exercised in the light of judgment, common sense, and experience of the jurors, and the jurors are presumed to be persons of good judgment and common sense.

We advance that argument here today also on the single verdict procedure, the District Court held that while some states may have split verdicts.

No court has held or it does not think that is constitutionally required that any court have a split verdict.

The decision of the Court of Appeals went along the same line.

It rejected the petitioner’s contentions in these cases, and we recommend that opinion to this Court in deciding this case.

May I ask you of the definition, statutory definition of rape?

Is in your record somewhere, in Arkansas?

Don Langston:

Yes sir, its defined in the jury instructions and —

But where is it in this record, do you know?

Don Langston:

It would be in the jury instruction.

We have filed the transcript of the original case with this Court.

I suppose it still has it.

And the Court defines rape.

Is that in the same — is that definition of rape in the same statute that fixes the punishment for rape?

Don Langston:

I believe that they are separate Your Honor.

You don’t know.

Don Langston:

No, I don’t recall, because we’ve changed our rape statute.

Well, could you mind letting us know?

Don Langston:

Alright, Your Honor.

Since this case argued before this Court, some federal and state courts have decided that these two issues against the petitioner.

And we recommend those cases to the Court.

They are cited on pages 31 and 32 of petitioner’s supplemental brief to enlarge the issues.

Byron R. White:

Can you weigh the jury trial on that application (Inaudible)?

Don Langston:

No, Your Honor, it cannot.

If you plead guilty, the jury has to be impaneled and the state puts on a prima facie case.

Byron R. White:

Of guilt?

Don Langston:

Of guilt, yes, Your Honor.

Byron R. White:

And what do you do about that, if there’s a plea of guilty, then there is a jury convened, do you have to put on a prima facie case of guilty?

But does it go any farther in that case and does it move for a trial, in terms of the factors that goes with the penalty?

Don Langston:

Ordinarily, the trial would be very short and just enough — ordinarily, it would be probably the fact that in a murder case that a murder has occurred, and that the defendant has confessed to it.

Byron R. White:

What’s that — how do you view Arkansas’ theory of punishment in this type of a case?

Does the jury question and decide the penalty base on acts of a crime only?

I suppose — or at least the facts that come out in connection with this deciding guilt or innocence.

Don Langston:

I think those factors are quite an effort for the jury to make an intelligent position on punishment.

Byron R. White:

Well, yes but what is the — do you think that the jury should confine itself to that?

Don Langston:

That’s our position, yes, Your Honor.

Byron R. White:

Well, what if — what if in a non-capital case, where — does the judge ever sentence in Arkansas for certain — for felonies?

Don Langston:

In felonies, only in cases where the jury cannot agree, then he can set the punishment.

What they had —

Byron R. White:

And when he does so, do you have the presentence reports?

Don Langston:

No, your Honor, we do not.

Byron R. White:

You just go on the record displayed on presenting guilt or on a deciding guilt or innocence?

Don Langston:

That’s correct.

What happens is the jury goes out and decides guilt and then it reports back to the judge that it has decided on guilt or innocence, but cannot reach a verdict on punishment.

Don Langston:

Then the judge takes the case — he takes the verdict of guilt, then he sets the punishment — punishment within statutory limits.

Byron R. White:

And all he knows is what’s in the transcript.

Don Langston:

What’s he’s heard is what the jury has heard.

Byron R. White:

So there are no presentence reports or — in Arkansas?

Don Langston:

There is a statute in Arkansas that whenever a person is sentenced to the penitentiary that there will be — the judge will send along with the prisoner his remarks, the prosecuting attorney will send his remarks along with it.

It sort of a presentence report, but —

Byron R. White:

Well, I know but it isn’t used for the purpose of deciding the length of time, where which the person is committed to a prison.

Don Langston:

That is correct.

Thurgood Marshall:

Mr. Langston, is there any allocution out in Arkansas at all?

Don Langston:

There might — could be some, under the statute that we have cited if when the defendant would file a motion for a new trial, which is the overruling of this motion is what you appeal from in Arkansas is from a motion, from the denial of your motion for new trial.

He may — if the judge in his discretion wants to, he may hear some evidence in allocution, but I don’t think it’s very common in Arkansas.

Thurgood Marshall:

Did you not required?

Don Langston:

That’s correct.

Thurgood Marshall:

And Arkansas does not normally give any instruction on this regarding race?

Don Langston:

No, Your Honor, it do not.

Thurgood Marshall:

And so, they don’t give any instructions on the proper person to be sentenced to the proper number of years or anything at all in that sense?

Don Langston:

That’s correct.

Thurgood Marshall:

And that’s left after the “untrammeled discretion” of the jury?

Don Langston:

Ordinarily, they —

Thurgood Marshall:

And is it true that under the law of Arkansas, a juror can use any whim he wants?

Don Langston:

It’s an unfettered discretion.

Ordinarily the judge instructs them on —

Thurgood Marshall:

Well, how could you find — you agreed that you can normally find abuse of discretion from a judge, can’t you?

Was there in anyway to find abuse of discretion from the jury?

Don Langston:

I doubt it, Your Honor.

Thurgood Marshall:

I kind of hope this isn’t.

Don Langston:

I didn’t get your last word?

Thurgood Marshall:

I kind of hope this isn’t.

Don Langston:

Well, we think that discretion of the jury is a good thing.

I presume that there were facts in this case, from which the jury can discern itself about it, was there none?

Don Langston:

Yes, Your Honor.

But what were those facts that cause the jury, it must have been something that do with the jury sentencing to death.

How did this crime occur?

Don Langston:

Your Honor, in the early morning hours on November 3, 1961, the defendant, the white woman, 35-year-old white woman, living with her invalid 90-year-old father, heard someone trying to break in to their house.

She went to the door and told the man to leave, and said she would call the police.

He had a stocking he was trying to pull down over his head.

So, he wouldn’t — he kept advancing toward her, so she got on the telephone, and got the operator, who when the man attacked the woman, she started screaming, so the operator connected the telephone with the police, and the police heard the screams over the telephone and they were struggling there.

Her invalid father came in to assist her.

The defendant put his hand over her mouth, she bit his finger, and bit his hand.

Bit whose finger?

Don Langston:

Bit the defendant’s finger and his hand.

His father could not help her, so he went to the window and started yelling for help.

Of course, the police were trying to locate where the telephone call is coming from.

So the defendant then dragged the victim from her house, down the street to up of embankment, up to a vacant lot.

There were cuts and bruises on her feet, she was in her pajamas.

And there were cuts all over and they struggling up there in the lot, and he threatened to kill her, if she told, and that’s basically the facts.

Warren E. Burger:

What about the attack on the father?

You referred that before, that he was beaten.

Don Langston:

He beat the father too, and so the father said, “I just can’t help you anymore,” and so went to the window and tried to yell for help.

And he dragged the victim out from the house.

Well, how did he beat the father in what way?

Don Langston:

Just his fist.

How old was her father?

Don Langston:

90.

90 years old.

And he was an invalid.

Byron R. White:

Was he killed?

Don Langston:

No, sir.

Byron R. White:

Tell me, what — seems your statute, as I understand, puts all criminal offenses in the hands of the jury in sentencing, is that right?

Don Langston:

Yes, Your Honor.

Byron R. White:

Does that mean that there’s no allocution anymore in Arkansas at all?

Don Langston:

That’s correct.

Byron R. White:

What about the situation, where you say a non-capital case, if I understood correctly, the jury can’t agree on the penalty, perhaps that’s true also in the capital cases.

What happens then?

Does the judge fix the sentence?

Don Langston:

That’s correct.

Byron R. White:

So that in this case, if the jury said they couldn’t agree on life or death, the judge would have fixed the sentence?

Don Langston:

No, Your Honor, he can’t do that in capital cases, you cannot do that.

Byron R. White:

In non-capital case you can’t.

Don Langston:

That’s correct.

Byron R. White:

Now, what happens in those situations?

Is it under your statute, does the defendant have a right of allocution?

Don Langston:

I don’t believe so, Your Honor.

I don’t know of any — I do not know of any case that would hold that.

Byron R. White:

Your allocution statute is in relative, is it as far as having any applications for this case?

Don Langston:

I believe your correct.

Byron R. White:

It’s still on the books.

Warren E. Burger:

Well, it applies only to cases where the sentence is fix by the judge, is that what you’re telling us?

Don Langston:

Your Honor, I don’t believe that they have any allocution in our state courts.

Warren E. Burger:

Even when the judge sentences?

Don Langston:

That’s correct.

Byron R. White:

But you’ve got a statute, haven’t you?

Don Langston:

I wasn’t aware of it, Mr. Amsterdam we do, but I wasn’t aware of the allocation statute.

Byron R. White:

Haven’t you looked up and I thought you have?

As you just told me, maybe that’s wrong.

Have you read the statute to which you refer us now?

Don Langston:

I do not — I didn’t — I don’t know of the statute that says.

Warren E. Burger:

Aren’t you familiar enough for the day-to-day practice, so that you can say you — that you know the right is not accorded to a defendant, when the judge is sentencing?

Don Langston:

I know that — I’ve tried some criminal cases and it’s never done.

Hugo L. Black:

You mean he’s never asked the defendant to say anything, in connection with his (Voice Overlap).

Don Langston:

Well, whatever he sentence — whenever he sentences, Your Honor.

Hugo L. Black:

I’m not talking about a formal allocution, do you mean that he never, the judge who tries a man, before he sentence him, never asked him or gives him a chance to say anything about it at all?

Don Langston:

Your Honor, he brings in a judgment, if the judge is trying it himself, trial before the court, he brings in the judgment.

Of course, and he waits the statutory, the limit of time before he sentences him, then he does asked him he has anything to say in his behalf or nearly nothing he’s saying.

Byron R. White:

Oh!

That’s the allocution.

Hugo L. Black:

That’s allocution.

He does ask?

Don Langston:

Yes, yes sir.

Byron R. White:

Is he required to do that by your statute?

Don Langston:

I don’t think so, Your Honor.

Warren E. Burger:

But it is regularly done?

Don Langston:

Yes, sir.

Warren E. Burger:

And what is — is there a time lag that the judgments wait before he sentences?

Don Langston:

48 hours.

Warren E. Burger:

48 hours.

Don Langston:

Of course, this can —

Byron R. White:

I don’t get this Mr. Langston.

You say it’s regularly done, but it’s never done in the jury,where the jury fixes.

Don Langston:

By statute in Arkansas, you have to wait 48 hours before you can sentence a person —

William J. Brennan, Jr.:

No, no, but were the jury fixes the sentence?

Don Langston:

The jury fixes the sentence, I mean the jury fixes the punishment, the judgment is in and on that verdict and then —

William J. Brennan, Jr.:

There’s no allocution then, well is it?

Don Langston:

No, Your Honor.

Warren E. Burger:

I think that answer came in response to my question, Mr. Justice Brennan, relating to non-jury penalty.

William J. Brennan, Jr.:

Where juries had been waived, is that it?

You’re just talking about bench trials now, are you?

Don Langston:

Yes, sir.

William J. Brennan, Jr.:

Not jury trials?

Don Langston:

No, they always asked them.

Don Langston:

The judge always asked, whenever he sentences in any trial, he ask if he has anything to say before sentence is passed.

And does he have a mo — does he have a right to make a motion, a new trial?

Don Langston:

Yes, Your Honor.

On what ground?

Don Langston:

There are several, newly discovered evidence, any errors occurred during trial.

They have a right to make a motion for new trial and now they get before the jury?

Don Langston:

And put on evidence.

And argued that it was wrong thing and erroneous to convict him or sentence at all?

Don Langston:

Yes, Your Honor.

Thurgood Marshall:

Mr. Langston I’m confused.

The jury finds a man guilty of crime of robbery and fixes the sentence of 20 years.

And the judge calls him in and said, “Do you have anything to say?”

Well, what can the judge do, regardless of what the man says?

Don Langston:

Of course, he could set the verdict decide if he desires.

Thurgood Marshall:

Well, what is the reason for saying, “What do you have to say before I give you the sentence, which I’m going to give you?”

Don Langston:

Your Honor, I just know that that’s done.

I don’t know that it has any effect at all or (Voice Overlap).

Thurgood Marshall:

What effect?

I’m asking you what effect could it have.

Don Langston:

I suppose that anything he said that would be relevant to his sentence could be said.

Thurgood Marshall:

Well, the judge couldn’t change the sentence, does he?

Don Langston:

The 43-2310 says, that if the judge, in cases of conviction, doesn’t think that the punishment sentence is correct, he has the power to reduce the extent or duration of the sentence.

Thurgood Marshall:

Well, then the jury doesn’t then finally fix the sentence?

Don Langston:

In effect, in Arkansas the jury it does.

Potter Stewart:

I’d understood that was a dead letter in that statute.

Don Langston:

As far as I know what’s never been interpreted —

Potter Stewart:

That was my understanding from the last argument.

Don Langston:

Yes, sir.

Byron R. White:

You mean it’s in the statute, but judges never exercised that already (Inaudible)?

Don Langston:

Your Honor, it’s never been interpreted by our Supreme Court —

Byron R. White:

It’s never been interpreted, but it hasn’t ever been used to your knowledge, by trial judge to change the sentence imposed by a jury?

Don Langston:

I haven’t found any cases on it, but I have been told by some judges that it has been done.

Byron R. White:

That it has been done?

Don Langston:

Yes, sir.

Byron R. White:

And so the judge has the right to reset the punishment?

That he doesn’t agree with the jury?

Don Langston:

That’s correct.

Your Honor.

Thurgood Marshall:

The judge could that on a motion for a new trial, couldn’t he?

Don Langston:

I believe he could, Your Honor.

Warren E. Burger:

But he can’t do it a capital case?

In a capital case, he can’t do it, that I understood you to say?

Don Langston:

I am advised that it has been done but the case didn’t go to the Supreme Court, maybe there was something in the trial that the judge was — I don’t know what it could have occurred during the trial, but the judge thought on motion of the defendant that he should reduce it from death down to life, and that it has been done.

Thurgood Marshall:

Did he do it in this case?

Don Langston:

No, Your Honor.

Thurgood Marshall:

Did he give him any chance to speak in this case, after the jury came in?

Don Langston:

I don’t recall whether he did or not.

William J. Brennan, Jr.:

Mr. Langston, what you said is so, we got a very different case here, and I thought we have.

You see if I get this correctly, are you telling us that under your statutes, the trial judge if they’re satisfied with the sentence imposed by the jury, whether the case is a capital or a non capital case, can change the jury sentence?

Don Langston:

That’s what the statute it appears to say, Your Honor, 43-2310.

Warren E. Burger:

Would you read that to us, so we can get it before us.

Do you mind Mr. Justice Brennan?

William J. Brennan, Jr.:

I wish he would.

Don Langston:

The court shall have power in all cases of conviction to reduce the extent or duration of the punishment assessed by the jury.

If in the opinion of the court, the conviction is proper, and the punishment assessed is greater than under the circumstances of the case, ought to be inflicted, so that the punishment be not, in any case, reduced below the limit prescribed by law in such cases.

Byron R. White:

Well, that seems that a face value would seem to judge the right but didn’t agree with the juries’ death sentence, then he can set it aside.

Don Langston:

That’s what I argued the last time we were up here, but there’s been no interpretation by our Supreme Court of this statute.

And it would appear on its face, to allow him to reduce the verdict —

Byron R. White:

Well, that is a great deal of evidence.[Laughter]

Don Langston:

I don’t know of any one, Your Honor.

Don Langston:

I don’t know of any Supreme, Arkansas Supreme Court cases on it.

And the only way you could do it was probably to survey the — make a survey of the Circuit Judges in Arkansas, and see if they have ever done it, the current ones.

Byron R. White:

Well, that’s what the statute seem to say on its face?

Don Langston:

Yes, Your Honor.

Byron R. White:

And then, do you know whether a judge — even if he didn’t reset the sentence, if he disagreed with it he can order a new trial, because he thought the sentence was improper?

Don Langston:

I think he could, Your Honor.

Byron R. White:

If you think he could, how about the practice?

Do you know if it’s ever done, that the judge says I’m dissatisfied with the sentence and I would modify it?

Don Langston:

I would think if he were only dissatisfied with the sentence, he would just modify it and not have a complete trial.

Byron R. White:

But there’s no — there’s no provision in Arkansas for a judge giving a new trial only on the penalty.

If he disagrees with the penalty, he’d either got to set it or order a compete new trial?

Don Langston:

I would believe so, Your Honor.

Byron R. White:

Well, I’m waiting.

Is that right?

You just told us under that statute, if death was imposed under that statute, the judge fix it at light, instead.

Is that you contend?

Don Langston:

That’s my interpretation of the statute.

Byron R. White:

He doesn’t have to order a new trial?

Don Langston:

No, Your Honor.

Byron R. White:

He doesn’t have to because if he didn’t want to take the responsibility himself I suppose he would — his only alternative would be to order a new trial completely because he couldn’t order death penalt

Don Langston:

That’s correct.

Thurgood Marshall:

When was the statute enacted?

Don Langston:

I suppose, it’s been in the revised statutes, Chapter 45, so it’s — it is as old as the — I imagine it was back whenever the Arkansas came into the union.

Thurgood Marshall:

And you — you don’t have any idea and you’re attorney general — Deputy Attorney General, and you’ve never heard of it, of every being used?

Don Langston:

That’s correct.

Thurgood Marshall:

And you know it’s never interpreted?

Don Langston:

It’s never been interpreted by the Supreme Court.

I have been advised that a case — that the Circuit Judge has reduced them, one from death to life.

Thurgood Marshall:

Once.

In the whole history of the state?

Don Langston:

That’s all I know of, Your Honor.

Byron R. White:

Is there any procedure under your statutes, where it really doubt about those things?

This Court could ask for a certificate in the Arkansas court, what that statute mean?

Don Langston:

I don’t —

Byron R. White:

Is there such a procedure in some states, others are barred and we reserved it a couple of times, have you got anything like that in your state?

Don Langston:

Not that I know of, our Supreme Court has held in its decision, if it does not give advisory opinions, only when there’s a case or controversy.

Hugo L. Black:

Can a judge set a judgment aside?

I presume he can, I think — I thought he could never stay in the union.

Don Langston:

Yes sir, Your Honor.

Hugo L. Black:

The only ground that it’s run through it, are the weight of the evidence.

Can he set aside a conviction on the ground that’s been run through the weight of the evidence, and se aside this sentence?

Don Langston:

I think he can, your Honor.

Hugo L. Black:

You think?

You don’t know it?

Don Langston:

I know he can, yes sir.

The Supreme Court of Arkansas as the petitioner’s cited in his brief says that the Supreme Court of Arkansas can set aside a death verdict whenever there’s not enough evidence to support it.

But just ordinarily, they can’t do like — the statute here says, they have said that they themselves do not have the power, unless the evidence is not enough to support the change —

Hugo L. Black:

Well, that’s conferred on the weight of the evidence.

Don Langston:

That’s correct.

Thurgood Marshall:

But you talked about not enough evidence to support a death penalty.

Do you mean not enough evidence to support rape one?

Don Langston:

Those cases —

Thurgood Marshall:

You mean it’s enough to support the judgment, not the sentence?

Don Langston:

Yes, sir.

Well, a sentence without a judgment wouldn’t be worthless, would it?

Don Langston:

That’s correct.

Warren E. Burger:

Well, isn’t under the Arkansas statute, isn’t this sentence part of the judgment, when the jury has made a combined verdict of guilty and fix the penalty?

You don’t have two documents for the judgment, do you?

Don Langston:

No, Your Honor.

Warren E. Burger:

Just one judgment which is —

Don Langston:

The court enters judgment upon the verdict of the jury, which is entered.

Mr. Justice White asked Mr. Amsterdam, concerning other felonies or other criminals conduct in Arkansas standards.

We believe that in this particular case, that to accept their argument, that standards must be applied in capital punishment or life imprisonment cases that are set for the jury that the court would have no alternative, but to order standards in, say cases of larceny or burglary, and Arkansas burglary is 2 to 21 years, larceny is 1 to 21 years.

We can see if the Court accepts it here that they could perhaps — they would perhaps — the next step would be to put in those types of cases.

And we would — in Arkansas, of course, we would almost have to try every one of our cases over again.

Byron R. White:

Because if jury sentence it in all felony cases?

Don Langston:

Yes, sir.

Byron R. White:

Unless, the jury is waived?

Don Langston:

That’s correct, Your Honor.

Byron R. White:

And, in non-capital cases, you can waive the jury?

Don Langston:

That’s correct.

Byron R. White:

And tried by the judge, then judge sentence it?

Don Langston:

Yes, sir.

Byron R. White:

But in those cases, as I understand you, the judge sentences only on the record that’s made in determining guilty or innocent.

Don Langston:

That’s correct.

Only single verdict procedure, the way I gathered from the petitioner’s argument, he is saying that either one he would have a separate penalty trial with the same jury or two, he would have a separate jury for penalty, or three, that he would have the judge set the penalty after a hearing on allocution.

We submit that this Court has never held that any states should have to have a double jury, have a double hearing on this particular aspect or case.

William J. Brennan, Jr.:

Tell Mr. Langston, of course, this petitioner did not take the stand, did he?

Don Langston:

That’s correct.

William J. Brennan, Jr.:

When — in your experience, when an accused does take a stand, what’s the scope of the cross-examination permitted the prosecutor?

Don Langston:

He is treated as any other witness would be, Your Honor.

William J. Brennan, Jr.:

What’s that mean?

Don Langston:

He can be asked about the prior acts of misconduct, felony convictions, and things of that nature.

William J. Brennan, Jr.:

Not alone prior convictions, but also prior acts of misconduct, whether or not they resulted in prosecutions or crime?

Don Langston:

That’s correct, Your Honor.

Potter Stewart:

Is there any cautionary instruction?

Don Langston:

Yes.

Potter Stewart:

Even it would —

Don Langston:

The judge gives a cautionary instruction that is only to go to test his credibility as a witness.

Potter Stewart:

But it’s just not limited then to prior convictions of crime, but any acts of misconduct all his life?

Don Langston:

That’s my understanding of the law, Your Honor.

Potter Stewart:

Well, I mean may a prosecutor exist without knowledge of any actual acts misconduct, employ a form of examination to enlist it?

Did you ever get into trouble before, that you ever get the trouble in school, all that sort of thing?

Don Langston:

If the defendant answers in the negative, that ends the matter though, Your Honor.

He can’t come back and introduce independent evidence that he did, do these acts.

He must take his answer.

Byron R. White:

He’s made his witness for that purpose?

Don Langston:

That’s correct, he must take his answer, he cannot come back and introduce, he can ask him if he’s been convicted of a felony, excuse me, has been guilty of acts of misconduct, if he denies, and said he did not, and he can’t bring in a witness and say, “Yes, he did do it.”

Byron R. White:

But, the prosecutor says, “Do you ever engage in a demonstration against the Vietnam War?”

Don Langston:

These — the cases in Arkansas sort of go more to acts of misconduct, toward moral turpitude than anything else.

Like indecent conduct or things of that nature.

I believe —

Is there anything like that been asked in this case?

Not the Vietnam War?

Don Langston:

The defendant did not take the stand, Your Honor in this case.

Did the state trying to bring anything like that in at all?

Don Langston:

No, Your Honor.

I believe I turn the rest the case over to Mr. Harris.

Warren E. Burger:

Mr. Harris.

Albert W. Harris, Jr.:

Mr. Chief Justice, and may it please the Court.

The interest of California in this case is a fairly narrow one, in terms of the questions that were — or the issues that was set forth by Mr. Amsterdam at the start of his argument.

We are not concerned about the single verdict procedure, because we have in common with a number of other states, a bifurcated trial, and we have separate verdicts for both guilt and a verdict for the penalty in capital cases only.

Otherwise, almost all sentencing in California is by the judge and usually where the presentence report and all a number of other things.

Hugo L. Black:

How many states, besides California have different theory based on the evidence, with reference to guilt and the reference to sentence presented?

Albert W. Harris, Jr.:

Mr. Justice Black, first of all we don’t have a different jury.

It’s normally the same jury.

Hugo L. Black:

On a different trial?

Albert W. Harris, Jr.:

But it’s a different trial.

It’s a different face of the trial.

Hugo L. Black:

Well, how many states, besides California do that?

Albert W. Harris, Jr.:

I don’t know categorically, Your Honor.

I think Mr. Amsterdam said about eight this morning, and I would accept that as an accurate statement.

Has there been any change in California law since the Henderson opinion?

Albert W. Harris, Jr.:

Well, there are always changes in California law, Your Honor but —

I mean that decision hasn’t been qualified or modified or–?

Albert W. Harris, Jr.:

No, I don’t believe that it has, at least nothing connects at the moment.

Byron R. White:

I take it Mr. Harris, if the defendant takes that stand at the guilt side or he cannot, a cross-examination be asked about as an Arkansas acts of misconduct of prior convictions, and that sort of thing?

Albert W. Harris, Jr.:

No, he can only be asked the same questions as any other witness could be asked.

He could be asked about a prior felony, and so far as that would impeach his credibility.

He could be asked about questions that might reflect on bias and so forth, but he couldn’t be asked generally about prior misconduct.

Byron R. White:

But he could be asked about prior convictions?

Albert W. Harris, Jr.:

Well, to impeach his credibility, any witness can about it, with a prior felony conviction in California.

Byron R. White:

So, he’s up against the same difficulty, about taking the stand then as sort of —

Albert W. Harris, Jr.:

No, I don’t think he’s up to the — anywhere near the same difficulty.

He doesn’t have to take the stand in the guilt phase, of course, no comment can be made on if he doesn’t.

He can take the stand in a penalty phase, after guilt has already been determine, and give whatever explanation he has.

By the same token, the people can show in that proceeding, anything in his history a background that in their judgment reflects adversely on it.

Byron R. White:

No, but I mean, he does — he is — has something with dilemma at the guilt trial, whether or not to take the stand if he is previously been convicted of the crime, does he?

Albert W. Harris, Jr.:

Well, that’s true and that’s true and that’s true of any witness who might be called by anyone.

He’s subject to cross examination, and his credibility has to be assessed, just like any other witness’ credibility.

But we don’t have any special rules as to criminal defendants, except that I think there’s more of a tendency to limit cross-examinations, so you don’t get beyond the scope of what he has waived by taking the stand.

Byron R. White:

And that the guilt — that the penalty phase, the state can introduce prior conduct, whether the defendant takes the stand or not.

Albert W. Harris, Jr.:

That’s correct your Honor, the state can prove prior crimes, if they do, they have to prove them beyond a reasonable doubt, the juries so instructed and things of that nature.

Now, we are also not concern with the Witherspoon question, as that has been presented here, leaving that to the parties.

Our interest in this case, and the reason we’re appearing here is solely on the question of whether the Constitution somehow requires the juries be given some limiting and restricting standards in deciding on the question of whether life imprisonment or a death sentence should be imposed in capital cases.

Hugo L. Black:

You mean some standards in addition, the standards they have set out to finding the crime.

Albert W. Harris, Jr.:

That’s correct, Your Honor, those standards of course, are very clear and specific as to whether or not there is a murder on the first degree.

I presume a rape in Arkansas or whatever the crime might be.

These would be standards, and really limitations and restrictions going solely to the question of penalty, having nothing to do with guilt, that having been determined already by definition.

It’s done formally in California, in Arkansas it isn’t and I don’t want to enter in that dispute.

Albert W. Harris, Jr.:

I would like to clarify one point, because of the national implications that were made clear by Mr. Amsterdam, and that’s another reason why we’re here.

In California, there is a process, by which the judge can pass in his discretion, and it’s the same kind of absolute discretion without reference to any formal standards that the jury is suppose to exercise.

One there has been a death penalty, and he can if he sees fit in light of all the evidence, all of the factors that are involved, reduce it to a life sentence, and there it is forevermore a life sentence.

Potter Stewart:

That is the trial judge?

Albert W. Harris, Jr.:

That is the trial judge.

Potter Stewart:

In his discretion without giving any reasons of any kind.

Albert W. Harris, Jr.:

He doesn’t have to give any reasons and probably it’s better if he didn’t, but he has the same scope of discretion that the jury has, that’s my point, there is judicial review at the trial level.

Thurgood Marshall:

General has — when in the appellate don’t they have right too?

It’s easy for me, we saw one recently.

Albert W. Harris, Jr.:

No, Your Honor, the appellate court can of course, find for example the evidence isn’t sufficient for murder in the first degree, and so it make it murder second.

Thurgood Marshall:

That’s right.

Albert W. Harris, Jr.:

But they have said, although it was – Justice Peters of the court takes a counter review that they will not, as a matter of discretion and judgment reduce a death sentence to a life sentence.

Potter Stewart:

But what they often do, in my observation, perhaps I’m dreaming, is to affirm the conviction that set aside the death sentence imposed in the penalty phase of the trial, because of error occurring in that phase of the trial.

Albert W. Harris, Jr.:

That very commonly occurred, your Honor.

Potter Stewart:

I thought so.

Warren E. Burger:

Then, you get a new jury?

Albert W. Harris, Jr.:

Pardon me, Your Honor?

Warren E. Burger:

Then when it goes back, you have a different jury?

Albert W. Harris, Jr.:

That’s correct, you have a different jury or you can waive a jury if he’s so inclined, provided the people way of his wealth.

Warren E. Burger:

I suppose, for this absolute unreviewable discretion of the trial judge to reduce from death to a life sentence, this mean of course, that if there are some judges who have conscientious objections, and scruples about the death penalty, they would set aside death penalties more readily and no one could review that, is that correct?

No one can question the judge about his decisions.

Albert W. Harris, Jr.:

No one can question the judge, in terms of an appeal from his judgment, that’s correct Your Honor.

Now, there may be some questions —

Warren E. Burger:

I suppose I could some of Mr. Amsterdam’s arguments that bartered on unequal protection to now with equal protection might reach your situation too, for such similar case here today, so I won’t burden you with it.

Albert W. Harris, Jr.:

No, it’s a — I think there’s another facet of the situation in California, as well, that distinguishes it from a single verdict situation and meet some of the objections that have been raised here, and that is the objection generally that — what the jury does on penalties is an uninformed judgment, maybe it’s arbitrary, maybe it’s even discriminatory.

In California with the entire procedure is such that evidence can be introduced by both sides and commonly is, but it’s not unusual at all.

A psychiatric evidence can be introduced, sociological evidence, anything that in the opinion of the district attorney or the defense attorney might carry some weight with jury on the matter of penalty.

All of this evidence comes in and the only restrictions that I’m familiar with are those upon the prosecution, which cannot show certain things.

For example, you can’t prove a crime, unless you can prove it beyond a reasonable doubt, and if you fail on that burden of proof, this would be as to prior crimes.

Potter Stewart:

Well, it’s certainly just the — you could — couldn’t you just do some documentary evidence of a conviction?

Albert W. Harris, Jr.:

Yes, you could do that.

What I had in mind, crimes that are not necessarily been reduced to a conviction, those could be proven too.

Or the defendant can prove his good record or whatever he thinks may be in his behalf, he can call witnesses, he call clergymen, psychiatrist, as I say, and a like (Voice Overlap).

Potter Stewart:

Is there a summing up to the jury by counsel for each side after the evidence on this penalty thing?

Albert W. Harris, Jr.:

There is a very protracted, a very commonly, very protracted summing up, yes.

Full argument on both sides, and that at that point, the case is submitted to the jury.

Potter Stewart:

Under what kind of instructions?

Albert W. Harris, Jr.:

Well, the instruction is based basically upon the statute and in light of Mr. Amsterdam’s remarks this morning about the lack of legislative determination of some of these problems.

I took a look at our statute, which is Section 190.1 of the Penal Code, rather long section, but it explains in a good deal of detail and nature of the penalty hearing, what kind of evidence can be introduced, and what the jury is suppose to do.

Now, they’re not left in the dark by any means.

It’s provided specifically that evidence may be produced at the penalty trial of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts and aggravation or mitigation of the penalty.

The determination and this is what they say to the jury and to the judge, this is what our legislature is so, the determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury, trying the issue of fact on the evidence presented.

And the penalty fixed shall be expressly stated in the decision or verdict.

Now, I think it’s clear that this does not anticipate any kind of an arbitrary judgment by the jury or the judge.

And he is to make the — he or the juries to make the decision on the evidence presented.

Potter Stewart:

I asked too, what sort of instruction is there are given to the jury?

Does that judge normally just quote the statutory language that you read to us in reaching the decision, ladies and gentlemen of the jury, you should consider the circumstances of the crime, the defendant’s background and history, any other facts or circumstances that may – whatever you read to us, does he say that?

Albert W. Harris, Jr.:

That’s essentially — you may consider all of the evidence of those things that you’ve just mentioned, Your Honor.

Potter Stewart:

I’m just trying to remember what you read to us, but I —

Albert W. Harris, Jr.:

It’s phrased in terms of you may do this and you may do that, but basically it’s the statutory language.

They’re also told this, and this seems to be the heart of the petitioner’s compliant.

However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other.

And this of course, is the more or less the — represents the historical process that was discussed this morning.

They’re also told this, and I think this excludes arbitrariness, and I think it excludes any of the things that we heard this morning.

Notwithstanding facts if any proved in mitigation or aggravation.

In determining which punishment shall be inflicted, you are entirely free to act according to you own judgment, conscience, and absolute discretion.

That verdict must express the individual opinion of each juror.

But you knew in California has some kind of standing also, maybe not enough if I understand?

Albert W. Harris, Jr.:

I think that’s true Mr. Justice Harlan, and I think perhaps we’ve too readily accept that the working proposition with the purposes of argument that there are no standards.

Well its absolute discretion of those imposing words?

Albert W. Harris, Jr.:

That is — those are two words, “absolute discretion.”

Is that a standard?

Albert W. Harris, Jr.:

Well, it’s a standard, as standards have developed in this kind of — this (Voice Overlap).

Potter Stewart:

(Voice Overlap) determination of what the legislature in California wants a jury to consider in this penalty phase of the trial, is it not?

To consider those – that statutory language, but ultimately in the end saying, it’s entirely up to your discretion.

At least, that’s a clear expression of the legislature that was their intent.

It wasn’t done — we don’t have a situation that’s been created by inadvertence, do you?

Albert W. Harris, Jr.:

Certainly not, I can’t imagine anymore specific statement of the legislative intent, and its clear recognition of the problem.

Now, it may not be the best solution, it may be better, it may be more logical, and it may be you’ve added symmetry to the law to say, you have to have mandatory death standards.

It may be that the – or standards for mandatory death sentences, it may be the Constitution requires that this Court move back 70 or 100 years, I suppose, and say well you have a death sentence that has to be a mandatory sentence with no discretion.

I find that hard to believe.

The decision of this Court over 70 years ago in Winston against the United States, today I think as well as any other — anything I’ve ever read sums up the kind of considerations that I think any of us would agree, should be considered by a jury.

And I’m not talking about impermissible considerations, but you’ll recall in Winston, the Court, this Court rejected a standard and held that a standard should not be implied, that death should be returned in the absence of mitigating circumstances.

Now, that’s a standard of sorts, perhaps not a very specific one, but it is a standard.

This Court held that that did not express the intent of Congress, as manifest in the legislation.

But in discussing this, the Court pointed to some of the things that they thought should be considered, and would seem to me they should be considered today.

They said, how far considerations of age, sex, ignorance, illness, or intoxication of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death or an apprehension that explanatory facts may exists, which have not been brought to light or any other consideration or whatever, should be allowed to wait in deciding the question whether the accused should or should not be capitally punished as committed by the act of Congress to the sound discretion of the jury and of the jury alone.

Warren E. Burger:

That’s a shaping of standards in a way, isn’t it?

Albert W. Harris, Jr.:

It’s certainly a discussion of the factors, a statement listing of the factors Mr. Chief Justice.

Thurgood Marshall:

Mr. Harris, your brief refers throughout to your standard in this procedure from this connection, doesn’t it?

Albert W. Harris, Jr.:

Yes it does, Your Honor, we’ve —

Thurgood Marshall:

Standard in this procedure and you read somewhere in the language of this Court, from the Witherspoon case, as I read your brief.

That a juror that must choose between life imprisonment and capital punishment can do little more and must do nothing less to express the conscience of the community on the question of life and death.

That’s what you quoted.

Albert W. Harris, Jr.:

Yes, we quoted that.

Thurgood Marshall:

In connect with your standards, this is —

Albert W. Harris, Jr.:

That’s right, and we think in doing that, and the legislature in setting up the structure before doing that is not required to limit or restrict the discretion of the jury in anyway.

That essentially what standard means in this context, I think.

Certainly, it doesn’t mean that anyone can be taken off the street and because the jury doesn’t like him executed.

The ball of question arises only after a conviction of a capital offense and as to that the standards are very strict.

Albert W. Harris, Jr.:

Historically, it’s clear that the motivation here was to permit juries to draw distinctions in terms of humane and emotional considerations, and I think the thought in the minds of legislatures, that we can’t list everything that might be material.

We cannot anticipate everything and we don’t want to limit the discretion of the jurors.

Byron R. White:

Mr. Harris, do you allow judicial sentencing in pleas of guilty?

Albert W. Harris, Jr.:

That’s the standard, pardon me.

In death, in capital cases?

Byron R. White:

Yes.

Albert W. Harris, Jr.:

Well, it’s up to the defendant —

Byron R. White:

What if he waives the jury?

Albert W. Harris, Jr.:

He has the right to a jury, if he waives it we permit sentencing by the judge.

Byron R. White:

What standards are provided for him?

Albert W. Harris, Jr.:

None, except those that I have alluded to and supplied to the jury.

Byron R. White:

But you do, I take it that if the judges sentencing, does he have a presentence report or not?

Albert W. Harris, Jr.:

Well, in a capital case, I don’t think a capital case would be handled exactly that way.

I think you would a more formal proceeding, that simply presentence report.

It would certainly be appropriate.

Potter Stewart:

But the judge would — if he waives the jury trial of the sentence, part of it, why the judge would just try that on the same evidence, and the jury would hear it.

Albert W. Harris, Jr.:

I believe that’s true, yes sir, it would be — that’s not uncommon to have a trial before the judge on this issue of penalty, with the same evidence, with the same considerations in mind.

But may there also be a waiver just on the guilt — plea of guilty to the crime, but then a jury trial on penalty?

Albert W. Harris, Jr.:

Exactly, and that happens not infrequently.

And this — it seems to be underlying, this whole argument of the petitioner here, the notion that unless there is uniform treatment handed out in convicted criminals, that there has been some violation of some provision of the Constitution.

Now, if there’s one thing that’s clear over the last half century, it is — and this Court expressed very clearly and noted with approval, the practice of fitting the punishment not to the crime, but to the offender.

And it’s not uncommon to have a whole variety of penalties handed out to a number of people, who have committed precisely the same crime, because you look to their background, you look to their role in the crime, you look to the nature of what each of those persons did.

And the Court has found nothing of constitutional dimensions in any way to bar this kind of procedure.

Now, we think that the leaving to the jury, the opportunity to extend mercy to a man who is convicted of a crime, potentially involved in a capital punishment, is simply an application of fitting the punishment to the offender and not to the crime.

Now, there’s nothing — not only is there nothing wrong with that, we think that’s a — and I think there’s general agreement among people who know about these things that this what science has taught us, this is what everything we’ve learned has taught us.

And the capital sentencing is very typical of other sentencing in that respect in fitting the punishment to the offender.

Byron R. White:

The guilty verdict, not in terms of the penalty, isn’t that right?

Albert W. Harris, Jr.:

Well, that’s true Your Honor, but these are standards, and as I understand it, we’re mitigating circumstances are listed as in the Model Penal Code, that is it, if you don’t come under one of those, there’s no way you can go to the jury and say this poor man should have his life spared, because he was good to his mother or something like and we can do that in California.

The only limitation on the defense in California is the ingenuity and the resourcefulness of the defense.

If he think of something that might appeal to one person on the jury, which is really all you need because you need unanimous jury.

Albert W. Harris, Jr.:

He’s free to urge it, and we see nothing wrong with that, and we don’t see anything that necessarily or even logically would result in arbitrariness.

We think it’s fair, and has worked pretty well over the years.

Byron R. White:

But if there’s a — if the jury can’t agree on that, does it automatically get life — what happened?

Albert W. Harris, Jr.:

Well, there are alternative provisions, if the jury disagrees, the judge can either impanel a jury or he can take the case and give him a life sentence.

Byron R. White:

The judge can?

Albert W. Harris, Jr.:

That judge can.

Byron R. White:

But he cannot do more than that?

Albert W. Harris, Jr.:

No, he can’t do anymore than that.

Now, I think if look a little — and I think we have to look at what is it that the states should do, and what should the federal government do, if what we do now is wrong, in terms of standards.

And I’m not talking about the single verdict, but in terms of standards, if what we’re doing now is wrong, what is it that we should do?

Now, this is something that was covered in Witherspoon very carefully.

At least in noting what was not forbidden in Witherspoon, and giving the states guidelines as to what to do with these cases when they came back.

Now in listening to the argument today and in the reading the briefs, I haven’t seen anything that’s specifically points to the what the states could do to meet the standards that the petitioners submit have to be established.

They say if you look at the Model Penal Code, you’ll find one you’ve limited defendants, there are things they can’t urge.

And I don’t think the people want that situation.

Even under the Model Penal Code you get down to formulations like this, it’s easy to talk about standards, but what is the final formulation to a jury under the Model Penal Code.

Well, if found an aggravating circumstance, which could be — for example he killed more than one person or he committed a felony in certain kinds and in connecting with the killing.

If you find an aggravating circumstance, you may return a death a sentence, you don’t have to, you may, but then you have to determine whether the mitigating circumstances are not sufficiently substantial to call for leniency.

Now, what’s the jury’s told, that’s the instruction.

And that would be my guess that a jury would go back and talk about these mitigating circumstances, and come back with a judge, and say well you told us what we could consider.

But how do we weigh each of these items, and how we determine when a particular circumstance is sufficiently substantial to call for leniency.

And I think the judge would have to say, “Well, you use your discretion, that’s what then your sound discretion.”

So, where are you except that you have limited the defendant, and you set up a kind of an artificial and a structure that meets what the petitioners think all statutes should consist of and you ignored the experience of all the states that have the death sentence, and the United States Government, and for what end.

I think as the end would be a jury, still left with having to come to that fundamental decision.

Is this man going to die or is he going to live, and bare in mind that it’s a man who has committed a capital offense and has been found guilty.

It’s not someone off the street.

And one thing that has been emphasized in California, and there are number of cases that repeat this theme, and it runs through all of the death penalty cases.

We have many, many cases that deal only with penalty procedures, many appellate decisions.

And we’ve had countless retrials, solely on penalty, but a theme that runs through all of those decisions is this, you’ve got to convince the juror that it’s his individual responsibility for that verdict.

When he goes out of that courtroom or he comes back with a verdict, it’s his decision that this man should die.

Albert W. Harris, Jr.:

He cannot leave the decision in someone else’s hand.

You can’t tell him the governor may grant clemency, because he’s not supposed to think about such things.

If he mentions anything about parole, he’s not supposed to worry about the parole board making a mistake.

It has to be his individual decision, and anything that has impeached that individual decision has been held bad in California.

Now, I think this is the — the best way to administer this system if the death penalty is to continue and its validity asset is not an issue in this case.

If it’s going to continue, and if you’re going to conclude that not every member, not every person who commits murder one, should be executed.

Then, I think that the — what we do is the fairest and the most rational, if I may use that word, way of concluding who should be executed that I have heard about.

And I think it’s far preferable to the Model Penal Code, and I certainly think the legislature would reject notions of mandatory death sentences, in light of our whole experience.

Emphasizing this individual responsibility, I think gives the defendant the fair shake, and emphasizing to the jury that they have to consider the evidence, that they have to consider things that are produced in court, excludes, I think the possibility of any of the arbitrariness that’s been mentioned here, earlier.

I have no doubt that a jury in California can’t point to any decision, but I have no doubt that if a defendant thought that racial prejudice, status, class, position, or anything of that sort might possibly influence any single juror that he could ask the judge to please instruct them to get such things out of their minds.

I don’t think those — it’s very unlikely that that would enter the minds of the jurors, but if there were any possibility, that could certainly be excluded.

They wouldn’t have anymore of a standard, but should be telling you, you can’t rely on these things.

That could be done, whether it could be done in Arkansas, I don’t know, probably —

Hugo L. Black:

Mr. Harris, may I ask a question?

Albert W. Harris, Jr.:

Yes, sir.

Hugo L. Black:

We have vast reports about how many they are in death row in California.

Do you know how many they are?

Albert W. Harris, Jr.:

Well, I think Mr. Amsterdam gave the figure of 85 to 90, which about thelast I heard.

I could get the precise figure for you, Your Honor.

But it’s in that dimension.

Hugo L. Black:

Well, does that — that seems to be a great many more than any in the other states.

Albert W. Harris, Jr.:

Yes sir, it does.

Hugo L. Black:

Does that indicate that the more executions in California than in other states, percentage of according to the population?

How do you know?

Albert W. Harris, Jr.:

I don’t know about the statistics over time Your Honor.

I think that the accumulation at the moment is due to the stays over the last eight years.

Hugo L. Black:

No doubt about that.

Warren E. Burger:

But the stays have been applicable in great many other states too, have they not?

Albert W. Harris, Jr.:

Yes, they have.

I think the last figure for jury verdicts of death that I saw was around 20.

Hugo L. Black:

Do you know whether been any effect on the amount of death sentences by dividing it up that you do between the original trial and the sentencing trial?

Albert W. Harris, Jr.:

In terms of numbers, I don’t Mr. Justice Black.

I have no information on that as far as the number.

Hugo L. Black:

I wonder if you could supply us of that.

Albert W. Harris, Jr.:

Certainly.

Hugo L. Black:

Maybe you could.

Albert W. Harris, Jr.:

I can certainly try to and if I can get it out, I’d be glad to supply the Court.

Excuse Mr. Harris, I didn’t understand.

You say 20 was the number of jury imposed?

Albert W. Harris, Jr.:

I think that’s the last figure I saw.

We —

Who imposed the rest of them, of the 80 to 90?

Albert W. Harris, Jr.:

Oh!

These go back, my gosh!

They go back ten years.

I mean for one year, there were some 20 (Voice Overlap).

Oh!

In a single year?

Albert W. Harris, Jr.:

In a single year.

Oh!

I see, yes.

Albert W. Harris, Jr.:

And the 80 or the 90 or whatever it is goes — I know of some that go back at least ten years.

So, I think that’s a typical of the situation arising from stays.

And I think the submission of the petitioner here that this Court should, as far as the standards issue goes, as I understood Mr. Amsterdam this morning, in effect or it says it directly, set aside 505 approximately death sentences imposed throughout the United States.

For some defect, that it is also submitted cannot be corrected at least in terms of anything that we’ve been able to discuss here today and anything that you could tell to the states and to the Congress of the United States, in terms of this is what you should do, instead of what you’ve done.

I think this would be a very unfortunate situation.

And what the inability to articulate standards, I think doesn’t show a lack of resourcefulness, but it shows us of the equalities that are involved here and the problems that are involved here are just such that we cannot reduce the problem to specific factors and way each any arbitrary manner.

Hugo L. Black:

Oh!

What — what, as you experienced, I’m trying to pass it to the question.

Albert W. Harris, Jr.:

Yes, sir.

Hugo L. Black:

Talk about standard, standard of course, the basic standard for any crime is the death admission of the crime.

Do you have a definition in your state for offensive rape?

Now, I could assume that the no purpose for standard, except to try divide up the types of crime, with reference to that atrocity, that ruthlessness, defendant’s past experience, but can you think of any way as an Attorney General that you could that with just that simply saying that you’ve got to divide the crime of rape up into a number of different crimes of different degrees according to the circumstances?

Albert W. Harris, Jr.:

I think you have to — well, you would have to redefine the crime and say in effect will only allow the death penalty in a smaller class of cases.

As Your Honor said, in certain kinds of rape or by the same token in murder, and there’s been no suggestion here that State of California has gone too far in defining first-degree murder or brought in cases that constitutionally can’t be brought in.

And as I understand the argument, there would be no objection whatever, as far as this argument goes, if the State of California said humane considerations don’t concern us, we’ll impose a death penalty straight out, as to every man convicted of murder in the first degree.

And I can’t believe that the Constitution of the United States requires that the people of California take that view, which 100 years ago might have been acceptable, but it’s not acceptable today, simply for these artificial reasons.

Hugo L. Black:

How can you define standard without having some kind of a step-by-step as to enormity of the crime that you think it’s been committed?

And how can you get that in any language that could be administered in a decent way of the Court.

Albert W. Harris, Jr.:

I don’t think you can Mr. Justice Black, and meet the needs of the society and anticipate giving the defendant every opportunity to show that his life should be spared.

And I don’t see how you can put qualities, as I mentioned a year ago of mercy and compassion in a scale of standards.

And assign some arbitrary weight or even if you please define what mercy or compassion mean.

And I don’t think that judges are anymore capable of extending mercy than the citizens on a jury.

Does your Adult Authority play any part of death sentencing position?

Albert W. Harris, Jr.:

No, it plays no role whatever in the death sentencing, Mr. Justice Harlan.

Is there any debate going on in California now as to the abolition of the death sentence?

Albert W. Harris, Jr.:

Oh!

I’m sure there is, there’s debate about everything.

Nothing or anything.[Laughter]

Albert W. Harris, Jr.:

No, I’m not, I think a bill has been introduced, one always is, I don’t think it is really a major public issue at the moment.

Thank you.

Warren E. Burger:

Thank you General Harris.

Mr. Amsterdam, you have just a few minutes left.

Anthony G. Amsterdam:

I would like to speak to questions of Arkansas law that came up and not reopen the constitutional questions.

First, with regard to Mr. Justice Brennan’s question, we have dealt at pages 66 through 69 of our brief with the kind of evidence that comes in from impeachment and that sort of thing.

It is indeed very broad, for example the right case we mentioned here, in which the rape defendant was asked whether several persons had not told him to quit hanging around their places of business, because he made indecent proposals to women?

That’s the kind of thing. And there is one limitation though, I don’t want to say there are no limitations.

Apparently, if in a negative act, the bad act, an evil act is not reduced to conviction and it’s too remote, it may not be shown, but what that means we don’t know.

A 20-year old liquor, misdemeanor liquor violations have come in to impeach.

So really even that, it’s just no limitations and the answer is, that in effect, it is the whole defendant’s life on rebuttal for impeachment if he takes the stand.

Anthony G. Amsterdam:

Now, with regard to –Mr. Justice Harlan asked at one point, whether the jury had to be unanimous in Arkansas, the answer that Mr. Langston gave, as I understand it was that they did, but I want to make clear that it has to be unanimous either way, not the kind of situation you have in California, where one juror can prevent a death penalty.

If the jury hangs, the jury is discharged and they try the case again.

And that also, I want to make clear, it tends to point the way the construction of this statute that Mr. Langston has twice mentioned, this 43-2310, which he said gives trial courts the power to set aside verdict on the ground that they don’t — they find outrageous which some such thing a jury death verdict.

To start with, I don’t think the statute allows that, it predates the 1915 statute, which crease discretion in capital cases, and would seem to apply in non-capital cases only.

There is in other statute that the Court might want to look at, which is 43-2306, which provides that when a jury find the verdict of guilt and failed to agree on the punishment or do not declare such punishment, and the judge renders judgment.

Now, Mr. Langston admits that doesn’t apply in capital cases, plays in the same terms as the power to reduce the verdict.

And the reason it does is for the same reason that 43-2310 does it.

It was inactive before the 1915 statute.

It was no designed to deal with capital cases.

Now, I’m not asserting here as a matter of Arkansas law, I can tell you that that’s statute doesn’t give judges the power to set aside verdicts.

It doesn’t look that way.

And I have asked questions of Arkansas lawyers, as well as to whether they know of any case in which a judge has done so, and the answer has been no.

When Mr. Langston was asked the question last time up in oral argument, he may say he didn’t think they ever done so.

Now, I’m not denying that they may have done so, I have never heard of it.

I know in California they have that power and I know it for two reasons.

One, that California Supreme Court has said so in an opinion, and two, Judge Phillips, for example in Oakland has done so.

And I can name the judge, and I can name the time, and I know the case.

In Arkansas that has never happen.

And that is one of the several things that differentiates Arkansas from California.

Most of the things we have heard from Mr. Harris seem to me to demonstrate of anything, the entire lawlessness of the procedure in Arkansas.

California —

Excuse me.

Anthony G. Amsterdam:

Yes, sir.

Finish what you’re going to say, because I want you to ask you a question.

Anthony G. Amsterdam:

I was simply going to reserve for a California case Mr. Justice Harlan, whether the California procedure was good or bad.

But as Mr. Harris has told us, it is far better than Arkansas.

And everything he says about what California has done suggest the deficiencies in the Arkansas procedure.

I take it, but there’s no appellate review of sentencing in Arkansas.

Anthony G. Amsterdam:

In Arkansas, no.

The Arkansas Supreme Court, that’s the one thing about Arkansas law I can assert clearly.

Anthony G. Amsterdam:

If the verdict, if the conviction is not supported by sufficient evidence, then of course, the court will set aside the verdict.

And if that means for example that if the evidence only makes out second degree that a death penalty based on first degree goes, but only because the first degree conviction is upset.

As long as the evidence is sufficient to sustain a verdict of guilt for capital offense, the Arkansas Supreme Court has told us very clearly that there is no appellate power to set aside a jury imposed death penalty.

Warren E. Burger:

Mr. Amsterdam, the figures of course, the statistics cited in this case, I’m sure you would agree aren’t very firm or clear, or hard in any direction, but just on the surface, these figures of the number of people in California now in death row do not argue persuasively that the bifurcated trial has been of any great assistance in avoiding death penalties, would you say?

Anthony G. Amsterdam:

Not at all, California is the most populous state in the nation.

The major reason for the most people there is there are most crimes there.

Secondly, Governor Brown didn’t execute anybody for years.

The reason for the pile up on death row has virtually nothing to do with the stay or anything else.

It has to do with the fact that there was a Governor in that state for many years who had very few executions go on.

Warren E. Burger:

Well, you’ve made the point I was trying to make, but none of these figures are really very reliable to demonstrate anything or very reliable in terms of drawing inference from them.

On the surface, some people would draw some very firm inferences from the California situation.

Anthony G. Amsterdam:

I think they require more analysis.

Warren E. Burger:

But they’re subject to an explanation.

And then that may be true as to all these figures that we have been given in the brief amicus and elsewhere.

Anthony G. Amsterdam:

Except the race figure.

Mr. Justice Burger, the race figure is reliable, because it controls, studies has been done.

None of the other factors are reliable, but the fact that black people are consistently sentenced to death for rape, that’s reliable.

Warren E. Burger:

Have these — any of these studies been subjected to an adversary type process with cross-examination as to the basis and —

Anthony G. Amsterdam:

Yes, the 20 years study done in the State of Arkansas and presented in the record in this case.

Warren E. Burger:

Thank you Mr. Amsterdam for submission.

Thank you gentlemen for yours.

The case is submitted.