United States v. Jackson

PETITIONER:United States
RESPONDENT:Jackson
LOCATION:United States District Court of Maryland

DOCKET NO.: 85
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 390 US 570 (1968)
ARGUED: Dec 07, 1967
DECIDED: Apr 08, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – December 07, 1967 in United States v. Jackson

Earl Warren:

Number 85, United States, Appellant, versus Charles Jackson et al.

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice and Your Honors.

This is a direct appeal taken by the United States from the District Court in Connecticut, dismissing a kidnapping indictment returned against the three appellees here.

An indictment which alleged among other things that the victim had not been liberated unharmed.

The ground of the Court’s dismissal is that the penalty provisions of the Kidnapping Act operate in a way that creates an inducement to waive the Sixth Amendment right to a jury trial.

The District Court analogized this case to Griffin against California, stating that the scheme made the assertion of the constitutional right foster.

Now, the penalty provisions of the Kidnapping Act appear at page 2 of the Government’s brief.

And you will note that they provide for a punishment, one by that, if the kidnapped person has not been liberated unharmed and if the jury shall so recommend.

Or two, by imprisonment for any term of years or for life if the death penalty is not enclosed, after corresponding from that, that a jury recommendation is a precondition to imposition of the death penalty.

The district judge was of the further view that a jury recommendation of the death penalty would be binding upon him.

Now, in that, we do not agree with his conclusion for our reasons which I shall develop later.

But first I propose to go on, if I may, and to indicate the reasoning to which this conclusion led him.

His next step was to conclude that the hazard, the hazard that the jury might make such a binding determination would tend or might tend to induce the defendant to avoid the jury trial, either by seeking to waive that right or by pleading guilty to the indictment.

Now, Judge Timbers, the district judge, of course recognized that a waiver of jury trial depends upon the consent of the Government and the approval of the Court, and also, that the Court may refuse to accept a guilty plea.

He also recognized that a number of federal judges in cases arising under this Act and also in cases arising under the somewhat similar provisions feeling with aggravated bank robbery have in fact convened a jury to consider the circumstances of the offense and to make a recommendation as to punishment in circumstances where the Court has allowed a waiver of jury trial or accepted the plea of guilty, in other words, they have convened the jury solely on the issue of punishment.

And parenthetically, I might note that we made a check of records of the Bureau of Prisons and the relevant case files of the Department of Justice as to the number of death sentences which were finally imposed in cases arising under the kidnapping statute and under the similar provisions of the Bank Robbery Act, both statutes which have been on — both statutes are on the books for approximately 30 odd years.

And there were 10 such cases that we found.

In five of these 10 cases, the judge had accepted a guilty plea and then had convened a jury on the issue of punishment alone.

Byron R. White:

Is this what had happened just in any criminal case or is this under the statute?

Ralph S. Spritzer:

Well, I think there would be no —

Byron R. White:

I mean under all of the statutes that provides for jury provision in the sense.

Ralph S. Spritzer:

Well that’s a very limited number insofar as the federal scheme is concerned, Your Honor.

William J. Brennan, Jr.:

It’s in the district though, isn’t it?

Ralph S. Spritzer:

Pardon me sir.

William J. Brennan, Jr.:

Isn’t this true of some statutes in the district?

Ralph S. Spritzer:

There is a somewhat similar statute in the district on rape, yes, on rape (Voice Overlap).

William J. Brennan, Jr.:

Is that also true do you think —

Ralph S. Spritzer:

Pardon sir.

William J. Brennan, Jr.:

Is that true in the district that even if a jury on a rape conviction was not to make a recommendation and therefore death ordinarily will follow but the judge nevertheless may impose life.

Ralph S. Spritzer:

No, I’m adverting to the case where there is no jury trial.

William J. Brennan, Jr.:

None at all?

Ralph S. Spritzer:

On the issue of guilt, whether the judge in that circumstance, and that’s from being the jury (Voice Overlap).

William J. Brennan, Jr.:

Yes, I’m anticipating you.

The other question hereto is, the District of Columbia rape —

Ralph S. Spritzer:

No, no.

William J. Brennan, Jr.:

Isn’t there also a question here of what happens in the circumstance where the jury does in fact make no recommendations?

Is there a question whether —

Ralph S. Spritzer:

No, I think where its common ground that there is no recommendation, the maximum penalty is imprisonment.

William J. Brennan, Jr.:

Right and suppose it does make a recommendation of death because that’s what I’m going to —

Ralph S. Spritzer:

Then we have a question as to which there is a difference of views between the parties as to whether the judge is bound to follow that recommendation.

William J. Brennan, Jr.:

Yes, and the Government’s position that he is not?

Ralph S. Spritzer:

That he is not.

William J. Brennan, Jr.:

And why?

Ralph S. Spritzer:

Well, because the statute itself doesn’t make it binding to begin with that and that’s how we interpret the statute.

And I am going to develop several reasons why we think where the statute itself is not compelled either reading why the reading which we urge should be adopted.

William J. Brennan, Jr.:

Well I take it as — if you’re right in the way you read it, there’s not a constitutional question here at all.

Ralph S. Spritzer:

I think that, if we are right in the way we read it, that the claim that there is a substantial disparity of risk whether you demand the jury trial or whether you seek to waive it, drops out.

Now, before I —

Earl Warren:

But does a statute itself provide what the judge may on a panel jury for the penalty?

Ralph S. Spritzer:

No, it does not —

Earl Warren:

Where does that strain from — the power strained above the rule?

Ralph S. Spritzer:

The — one Court that specifically analyzed that question started with the proposition that Congress certainly could not have intended that the man who acknowledges his guilt by pleading guilty should be in a better position than the man who contests his guilt.

And the Court concluded that consistently with a rational statutory scheme, if it granted the request for a waiver of jury trial, it would have the power inherently to convene a jury on the issue of punishment.

Now, the state courts have done that in a number of states in under similar statutes which make provision for a jury recommendation as to the penalty.

There is no expressed provision in this statute for the convening of a jury on the issue of punishment as I’ve indicated, the Courts of Appeals which have considered whether they have power to do that, if concluded that they do.

The two cases that allude to this and discuss it to some extent are cases called Seadlund and Dalhover both of which of are cited in the Government’s brief.

But there is, Your Honor is quite right, there is no explicit statutory provision for convening a jury on the issue of punishment.

William J. Brennan, Jr.:

Now, going beyond that Mr. Spritzer, any of those cases where there’s been a plea and then a jury has been convened on the issue of punishment, had there been death sentences recommended which recommendations have been rejected by sentencing judges?

Ralph S. Spritzer:

Where a jury was convened on the issue of punishment?

William J. Brennan, Jr.:

Yes.

Ralph S. Spritzer:

There is a case in Kentucky, the Robinson case which we have also cited, which expresses the opinion contrary to that adopted by Judge Timbers that a Court would not be bound by such a recommendation.

However, that case arose on a collateral attack proceeding upon the theory that as Judge Timbers had said this whole statute was unconstitutional.

So it was not a case in which the judge who was expressing the opinion that he would not be bound was actually passing upon a jury recommendation.

William J. Brennan, Jr.:

Well, I suppose your footnote to that Court, supposed convening of juries after guilty pleas.

And at least five cases, isn’t that right?

Ralph S. Spritzer:

Those are in at least five cases where a Court accepted a guilty plea.

It’s subsequently convened a jury —

William J. Brennan, Jr.:

Now, in any of those — in any of those cases, do we know whether the jury recommended death and that —

Ralph S. Spritzer:

It did in five cases and the judge acted on the recommendation.

William J. Brennan, Jr.:

No instance of a rejection on the jury recommendation?

Ralph S. Spritzer:

No, there were 10 cases in all of —

William J. Brennan, Jr.:

Well have you have any experience either statistically or considered by any federal court of a jury recommendation of death in any case where the judge rejected the jury recommendation.

Ralph S. Spritzer:

No, I think the judge has accepted it.

There are only 10 cases in all, all of which death sentences were imposed.

As I’ve indicated earlier, in five of those cases, a jury was especially convened on the punishment issues.

Now, I do not know of any case in which the jury recommended death and in which the judge did not follow the recommendation.

William J. Brennan, Jr.:

Do we have any experience of that of any kind in the federal system?

Ralph S. Spritzer:

In the federal system?

William J. Brennan, Jr.:

Yes.

Have we ever had –?

Ralph S. Spritzer:

No, these are the only two statutes under which we’ve had experienced with under a provision —

William J. Brennan, Jr.:

Well, it has been experienced under the district rape statute, isn’t it?

Ralph S. Spritzer:

Yes, though in that case, I don’t think there’d been any death sentences executed for something like 20 years.

William J. Brennan, Jr.:

I know but do we know of any experience of — when there was a recommendation of the death sentence that the judge rejected it?

Ralph S. Spritzer:

I do — there are only three cases as I understand it in the District of Columbia statute where death was imposed.

And in all of three cases that would correspond the jury’s recommendation.

I don’t know that there was any other — at least I’m not familiar with any other instance.

Earl Warren:

Were any of those appellants actually excluded whether an advisory jury?

Ralph S. Spritzer:

Yes.

Earl Warren:

In the federal system?

Ralph S. Spritzer:

Yes.

Earl Warren:

There were?

Ralph S. Spritzer:

Yes.

Earl Warren:

Now, may I ask Mr. Spritzer, if you look at the arguments of the judge on that one case that you’ve told me —

Ralph S. Spritzer:

Yes sir.

Earl Warren:

— what you’re talking about, is that the argument of the government or do you put it on another ground?

Ralph S. Spritzer:

We — no, we make the same argument that the judge accepted in the Robinson case.

Earl Warren:

I see.

Ralph S. Spritzer:

That under this statute, a fair reading would permit the Court to hold and we think it’s the desirable as well as the permissible interpretation that the judge is not bound by the jury recommendation.

And perhaps, I should go immediately to the reasoning on which we suggest that you’re not bound.

Getting back to the statute itself, the appellees rely upon the fact that it uses the language “shall be punished”.

We think that that’s a very limited force because you will note that the language shall be punished, precedes both alternatives: One, by death if the jury so recommends or; two, by imprisonment if the death penalty is not imposed.

And so it seems to us that the language standing alone seems only to compel the conclusion that he shall be punished by one of the two alternatives.

And of course, this statute, in the first numbered clause is as if the verdict of the jury shall so recommend and the normal connotation of recommend is that it is a recommendation and not a mandate.

William J. Brennan, Jr.:

And I supposed, it’s not imposed the last words of this section suggest imposition by the judge.

Ralph S. Spritzer:

Yes, its’ the judge who imposes a sentence.

That’s certainly true.

Now, there are three additional considerations.

I assume that the statue is equivocal here and both sides, I think are agreed that the legislative history does not in likeness.

There had been a variety of proposals made as to provisions for sentencing under this statute.

Some have favored a mandatory death sentence.

Some had favored a provision not on like that in the federal murder statute that the penalty shall be death unless the jury qualifies its verdict by recommending otherwise.

Some have been opposed to the death penalty altogether.

This provision of the penalty might only be imposed if recommended by the jury was the ultimate compromise.

And there is no indication that we’ve been able to find on either side of this case that judge from the briefs, that any of the congressmen focused on the question, what if the judge doesn’t agree with the jury.

Now, we rely upon three considerations, I say, in support of our reading.

The first of these is that in the federal system, it’s certainly has been a tradition, I think a well unbroken tradition that the judge is the final arbiter of the sentence.

As Justice Brennan indicated a moment ago in the federal system, it’s the judge who imposes the sentence.

Under the federal rules it is the judge who passes on any motion to reduce sentence and who has considerable discretion subject only to the situation where Congress has explicitly provided some mandatory minimum.

Ralph S. Spritzer:

And I think the Congress was presumably aware of this tradition.

Secondly, we refer to what this Court has called the principle or Rule of Lenity.

Namely that where a criminal statute is equivocal, the Court will adopt the less harsh of two alternatives, and certainly, a rule which permits the judge to mitigate the penalty is the less harsh rule.

Third, we say that if the concept that the jury’s recommendation is mandatory as Judge Timbers has concluded creates serious constitutional doubts, then it would seem to us further that the precept of the statute should be read where possible to avoid those doubts comes into play.

Now, under our view of the statute, as I think I indicated earlier, there is no significant disparity of risk or as we view it a serious basis any longer for a constitutional claim.

If the defendant goes to trial before a jury on the issue of guilt, then under our view, the concurrence of both judge and jury is required before a capital penalty can be imposed.

If on the other hand, he seeks to waive jury trial or plead guilty, the judge may reject that proposed waiver or plea, or if he accepts it, he may convene a jury on the issue of punishment as both federal and state judges have in the past done in these or comparable circumstances.

So again, the capital penalty may be imposed if, but only if, jury and judge concur in that conclusion.

Now, it may be argued that a judge, who would perhaps be inclined to follow a jury’s recommendation of a death penalty, if one were made by a jury which heard the issue of guilt, might not be inclined to convene a jury if there were no jury trial on the issue of guilt.

It seems to us that the answer to that is that the judge who would be inclined to concur in a death verdict, if one were recommended to him, would certainly regarded as his duty to have the matter go to a jury and to obtain a recommendation of which of course, he could readily accomplish either by insisting that the jury provide the question of guilt or by convening a jury on the issue of punishment.

Now, let me also suggest that if Judge Timbers were thought to be correct in holding if he did, first, that the jury’s recommendation is more than a recommendation that it’s binding.

And second, that this creates a serious disparity of risk.

It still would not follow that the statute must be struck down either in whole or in part.

Or if one does make the assumption that Congress intended the jury to be the sole determinant of the question of punishment without any role for the judge whatever, then it would seem to follow in our view that the trial judge in order to implement Congress’ purpose should either refuse a plea or refuse to accept a proposed waiver of jury trial.

Or in every instance where he does accept it, convene a jury on the issue of punishment.

That incidentally is accomplished by statute or by decision in some states —

William J. Brennan, Jr.:

Am I right Mr. Spritzer on waiver of jury trial?

Didn’t we have a case (Inaudible) which indicates that over the opposition of the Government, it may not be accepted of guilty plea anyway?

Ralph S. Spritzer:

That’s right.

The rules of course provide that you can only waive on consent of the Government and approval by the Court that was challenged on grounds of constitutionality.

The challenge was rejected, that was Singer against United States.

In other words, it seems to us that if you read the statute rigorously as the appellees do and give the judge no power to mitigate, it doesn’t then follow from that of the statutes unconstitutional but rather seem to follow that the jury should be given an opportunity to make a recommendation.

William J. Brennan, Jr.:

Well, it’s in the hands of the prosecution if I guess it would be.

They compel him to go to a jury trial, that’s the role of it, isn’t it?

Ralph S. Spritzer:

Yes, of course, there still remains the question of a plea of guilty which is discretionary with the judge but in which the prosecution does not play a role.

Now, in making this point, I am not retreating from our suggestion that the statute should not be read as making the jury recommendation binding.

We think that the plausible and the preferable interpretation to regard their verdict as a recommendation.

Then merely seeking to point out that the appellees’ effort to read these penalty provisions rigorously in order to condemn the statute don’t necessarily lead to the conclusion that the statute has to be condemned because the premise that Congress intended the jury to be the sole determinant, the premise of their argument seems to point to the conclusion that the judge should have a jury to make the determination as he can quite consistently do under the federal criminal rules.

Abe Fortas:

Is there any room for an argument that if the defendant waive a jury trial, he also waives with respect to penalty and gives the judge the right to impose of death sentence?

Ralph S. Spritzer:

I would not — we do not urge that argument (Voice Overlap) I would have difficulty with that argument because it seems to me that the congressional scheme contemplates that the death penalty may be imposed only if a jury immediately reaches that conclusion.

Ralph S. Spritzer:

I don’t want to convey either that this is the case in which there’s the slightest likelihood that the United States attorney would be seeking the death penalty.

It’s quite clear to me that he would not be and that he would not be making any plea for it.

It’s quite unlikely in the circumstances of this case that any jury would impose such penalty because as the Badillo particularly shows the harm which was known to the dictum in this kidnapping case is very minor.

What we’re dealing here — we’re dealing with here is not what is apt in fact to occur in this particular case but rather of course with a holding by a district judge that the entire statutory scheme breaks down and the statutes unconstitutional because of the penalty provisions which are written into the Act.

Now, there’s just one final respect in which I think the district judge’s decision is unquestionably involved.

If everything I have said thus far should be rejected, and if you should conclude that the provision authorizing the imposition of the death penalty on recommendation of the jury is unconstitutional on any view of the matter, it still would not follow that the entire statute should be held unconstitutional in the indictment there under dismissed.

It would follow I think only that the clause authorizing the imposition of the death penalty would go.

I think that it’s hard to imagine a clearer case for severability than this one.

Congress, as Your Honors, well know passed the Lindbergh Law in 1932 because if in the contrary, we’re greatly concerned by the shocking incidents which had occurred and there had been a general recognition that there were strong if not imperative reasons for making interstate kidnappings a federal offense.

The state lines, it was believed that it proved a serious obstacle to effective investigation and prosecution of kidnappings.

Now, as originally enacted in 1932, the maximum penalty under this statute was life imprisonment.

Then two years later, in 1934 there were some minor amendments to the statute.

Its basic thrust remained entirely unchanged and that’s graphically shown to the Court I think by merely examining the provisions as they stood in 1932.

And in 1934, we’ve set them out in our reply brief.

Now, one of these changes was the change which authorized on jury recommendation, the imposition of the capital penalty in the aggravated kidnapping case that in which the victim was liberated harmed.

As I say, the thrust of the Act remained quite unchanged.

And it seems to us almost inconceivable that one could seriously argue that this 1934 Congress had it in face with the choice of not adding the provision authorizing the death penalty in aggravated cases or of abandoning the entire Act would have chosen the latter course.

And as I say, this is a classic case for severability, the Act stands as a complete and an operative whole with or without this authorization of the death penalty in the aggravated case.

Consequently, the infirmity, if there’d be any, which we dispute in the capital penalty clause, obviously does not require the frustration of Congress’ very plain and very resolute purpose to make interstate kidnapping a federal crime.

Thank you.

Earl Warren:

Mr. Duke

Steven B. Duke:

Mr. Chief Justice and may it please the Court.

I would first like to make it clear in connection with the question asked by Mr. Justice Brennan that our position quite adequately and quite positively is that even if all the positions of statutory construction urged upon the Court by the Government are accepted, the statute can still plainly invalid and I will attempt to develop that at some length.

Preliminarily on some of the statutory interpretation points, we first would like to urge the language of the statute which says that the death penalty shall be imposed — shall be imposed — the words are the defendant shall be punished by death if the kidnapped person has not been liberated unharmed and if the verdict of the jury shall so recommend.

Now, we think the words if the verdict of the jury refers in their plainness sense when viewed in context to a body of man to decide guilt or innocence.

The word verdict itself was defined by Webster as the decision of a jury on the matter submitted on trial.

And the statute itself refers to the jury, not a jury, the jury, do you think Congress pretty clearly had in mind the 12 people that decide guilt or innocence.

That is where the statute puts the sole authority to impose the death penalty.

Thus, it’s our point that the statute forbids any death penalty imposed by anybody other than the 12 men who decide guilt or innocence.

In other words, no one can receive the death penalty without claiming jury trial.

Steven B. Duke:

He does claim a jury trial or he doesn’t perceive a jury trial, he cannot perceive the death penalty.

Now surely, the contrary argument can be made.

The Government makes it.

They make the argument in the interest of humane construction but if the Government’s argument is an intention — an effort to extend and broaden the scope of the death penalty.

The plain words of the statute authorize the death penalty only in a very limited number of cases namely those of which there’s a trial by jury.

The Government ask this Court to do is to decide that notwithstanding that there is no clear expression in the statute, a death penalty should be permissible even when a man pleads guilty whether or not, he gets the jury trial.

Now, we think there is a sound principle that competes against the contention that vagueness should be construed in favor of constitutionality.

That principle is the one applied in Kent against Dulles namely that when constitutionally protected rights are involved, these rights are not curved by vague language.

If the Congress is going to curve constitutionally protected rights, they must do so clearly and explicitly.

In Kent against Dulles, the constitutionally protected rights were the right to travel.

Here, the right cannot be over emphasized.

The right involved here is the right to live.

And surely, the right to life, this is entitled to application of Kent against Dulles as the right to travel.

In short, the humane construction of this statute is to take it no further than these words require to limit the death penalty only to cases in which there has been trial by jury.

Given that interpretation, there’s no issue as I understand that above the invalidity of the statute.

That is the way where the statute means is plainly invalid.

Now, on the issue of the mandatoriness of the death penalty when —

Is there any indication that the (Inaudible)?

Steven B. Duke:

Whether there could be a penalty determination?

(Inaudible)

Steven B. Duke:

Oh!

I said there could only be a death penalty imposed if there is a jury trial.

I based that on the language of the statute.

Now, as so far as the legislative history is concerned, there is no record anywhere in the legislative history to a penalty jury.

That is a jury which decides penalty other than in the context and at the same time, of deciding guilt or innocence.

Hugo L. Black:

Is it your position that the defendant cannot waive a jury trial?

Steven B. Duke:

That he cannot waive the jury trial?

No, we think he can waive the jury trial.

We don’t think he can validly do it.

Hugo L. Black:

(Voice Overlap) How could you dispute it?

Hugo L. Black:

So you mean it would be unconstitutional waive.

Steven B. Duke:

He cannot enter a valid waiver of the jury trial, that’s correct Mr. Justice Black.

Hugo L. Black:

That’s in reference to this particular section?

Steven B. Duke:

Yes.

Hugo L. Black:

It’s not — you don’t make that position and take that position generally.

Steven B. Duke:

Oh!

Not at all.

And the reason he couldn’t validly waive the jury trial under this statute, is that he would do so under strong coercion.

He does it because he is attempting to avoid the death penalty and that’s what would invalidate the waiver.

Now, I wouldn’t belabor the question of whether the jury verdict of death is or is not mandatory.

I think the plain language of the statute makes it mandatory.

It says that the defendant shall be punished if the jury, by death, if the jury so recommends.

I don’t see how it could be any plainer.

I don’t agree with the Government that the legislative history sheds no light on the matter.

I refer to appellees brief on page 19 in which it was the congressional record, 75 Congressional Record 13297 in which the provision was explained as taking the onus of inflicting death from the jury.

Now, the onus of inflicting death will not be taken from the jury if in fact it was the judge’s decision in the final analysis.

The house report on this amendment to the Act says that the amendment permits the jury to designated death penalty for the kidnapper.

Well, that sounds as if the jury is the body that makes the decision.

I would also refer the Court to Winston against the United States decided by this Court in 1899 in which the Court said in connection with the murder statute, that the decision of life or death is put by Congress solely and exclusively in the lap of the jury.

Indeed, that decision indicated that it would be improper for the trial judge even to instruct on the criteria which the jury should employ in deciding the penalty question.

Hugo L. Black:

I want to be sure on the terms of that.

Do I understand in your position that if the defendant desires to listen to the request to the Court is designed that he’d be not tried, penalty be fixed by the Court that he is barred from using it?

Steven B. Duke:

That the penalty be fixed by the Court including the death penalty.

Hugo L. Black:

He insists but I do not want to be tried by the jury.

I want to be assigned by the judge all the way through this penalty, can he in fact do that?

Steven B. Duke:

I don’t believe under this statute, he could enter such a valid waiver because he could not avoid the coercion.

That is until the statute is — until a threat of the death penalty in connection with the jury trial is somehow removed as long as it hangs over the defendant who’s attempting to waive the jury, he cannot enter a voluntary waiver.

Byron R. White:

Well, I can take it, you would say the same thing about a plea of guilty, do you think I will go to the judge and I’m the defendant, I say to the judge, I want to plead guilty.

And the reason I want to plead guilty is I don’t want to face that jury.

You would think just like the waiver, the jury trial, the plea of guilty is tainted.

Steven B. Duke:

Yes, it is, Mr. Justice.

Byron R. White:

Why is the remedy then on every case, just like we do in a lot of other cases where there had been an invalid plea of guilty say the you haven’t been properly instructed or something.

We did reverse the conviction and say that the plea of guilty was invalid.

You’re saying that he has that — well, I’m not saying, I’m suggesting that the plea of guilty is invalid and it doesn’t invalidate the statute at all (Voice Overlap) plea of guilty.

Steven B. Duke:

Well, I’m glad you ask the question.

That is an alternative argument made in the Government’s reply brief namely that if there is an infirmity in the statute, the remedy is really to invalidate the guilty pleas and the jury waivers like what —

Byron R. White:

What is the infirmity of the statute?

Steven B. Duke:

No, if the statute imposes an undue burden on right to jury trial —

Byron R. White:

The only infirmity is and the only infirmity is that apparently, is that it enforces people to go to the trial.

And your argument must be you have a constitutional right to plead guilty.

Steven B. Duke:

No.

Mr. Justice White, the reason why it is no answer to suggest that a valid guilty plea or a valid jury waiver cannot be entered is that the defendant is not in the position to raise that question.

He is threatened with the death penalty.

He sees enough penalty to avoid the death penalty by pleading guilty.

He pleads guilty.

Is he go and turn around and say the next day, Your Honor, that was invalid?

Byron R. White:

But the Congress here have said and added another paragraph and said that there shall — no pleas of guilty shall be accepted in kidnapping cases.

Steven B. Duke:

Had that been the case, no pleas of guilty and no waiver of jury trials?

Byron R. White:

But you know that we’ve already know that you may not waive a jury trial over the objections of the Government.

Steven B. Duke:

Yes.

Byron R. White:

So the answer on the latter part of that is, yes, the Government could provide for the waivers of jury trial.

And I would think it could provide also for no pleas of guilty.

Steven B. Duke:

If the statute clearly forbad a waiver of jury trial in the kidnapping case and the guilty plea, all I would say is we’ll have a much different case than we have here.

But I would simply point out that even that is very bothersome because the District of Columbia Court of Appeals in 1913 attempted to solve the similar difficulty under the DC rape statute.

And the Court said in Green against the United States, if this rape statute permitted a guilty plea it would be plainly beyond unconstitutional, therefore we hold it no guilty plea is permitted.

What happened?

People continued to plea guilty.

People can — their guilty pleas continued to be accepted.

So that’s the way that kind of a remedy worked out in the District of Columbia.

Hugo L. Black:

Your position and I think I’m saying now that the reason we’re trying to solve this amendment, guilty defendants and his lawyer, various statutes of law reached the conclusion that they do not want to but the states could do it, that they want the judge to decide.

Hugo L. Black:

Is it your position under this Act in a charge of kidnapping they could not do that?

Steven B. Duke:

That is my position, Your Honor.

Hugo L. Black:

There are some states provide a plea of guilty, but still have the jury hear the evidence to pass on that penalty —

Steven B. Duke:

Well —

Hugo L. Black:

–does that have any effect to you?

Steven B. Duke:

I’ll turn to that, Mr. Justice Black.

That is the alternative construction that the Government offers in order to save the statute.

Namely, the one of that several attorneys, namely give the judge the power to impanel a penalty jury in all cases; guilty plea cases, jury waive cases, in other words, to eliminate any absolute waive whereby the defendant might avoid the jury trial on the penalty issue.

Now, our contention is and the decision — the judge below decided that even that, that that is a reasonable construction of the statute it doesn’t say it because the judge has complete discretion in deciding whether or not to impanel a jury.

He doesn’t have that discretion when there’s a trial by jury, trial of guilt or innocence at least under our reading of the statute or under such case where there is he must submit it to the jury.

But even if we’re wrong on that, that is even if he has — the judge, has complete discretion in all cases to submit it to the jury or not to submit to the jury, then we get down to the point that I began with, and that Mr. Justice Brennan raised, namely, is there any constitutional question left?

And I submit there still is.

The statute is still unconstitutional.

And if I can state it very simply, the reason is, the two very different procedures are set up to determine the death penalty, to determine whether the man lives or dies, and whether one procedure or the other procedure applies to the defendant turns on whether or not he waives or claims a jury trial on guilt or innocence.

And I submit that that’s an unconstitutional burden on what should be a free choice.

William J. Brennan, Jr.:

Well, Mr. Duke, I suppose the Government is correct or in any event, suppose it is the fact, that notwithstanding a jury recommendation of death, the judge has discretion to reject the recommendation.

Would you still make this argument?

Steven B. Duke:

Yes, that’s precisely —

William J. Brennan, Jr.:

You’ll still raise the constitutional question there?

Steven B. Duke:

Absolutely, Mr. Justice Brennan.

If I can explain — let’s assume that again, the judge in both cases, guilty plea or any kind of case, can refuse to submit the issue of death penalty to the jury.

Then once having submitted to the jury and getting the affirmative recommendation, he can reject it.

In any case, still if anything is clear in the statute —

William J. Brennan, Jr.:

You mean as long as he has discretion to accept the recommendation, the constitutional question doesn’t get here, isn’t it?

Steven B. Duke:

As long as he has the authority, the discretion to accept —

William J. Brennan, Jr.:

To follow the recommendation.

Steven B. Duke:

Yes, yes, if he can neither accept nor reject.

If in fact a jury verdict is wholly meaningless, then there’s no problem.

But the point is that in the –where the jury is deciding guilt or innocence, and the question of death penalty is to be put to that jury, that question is put to the jury in a very different context, then it would be put if there were not a trial of guilt.

In the first place, the defendant is in the quandary.

Steven B. Duke:

If he really wants a jury trial on the issue of guilt, he doesn’t want to mockery with the jury trial on the issue of guilt.

He has to contest the Government’s evidence of guilt.

He has to underplay the issue of mitigating circumstances.

He can’t at the same time effectively say to the jury, “I didn’t do it but if you think I did it, here’s the reason I did it.

I’m not really such a bad guy.”

But where the issue of guilt or innocence is not in the case, the only question the jury is deciding is, does this man live or die, that the procedural posture is much different.

Then one objecting —

Abe Fortas:

(Voice Overlap) that if the statute has two shots at it, one, without a jury and then he can present his case for the question of guilty or not guilty.

And I’m assuming that if there’s problem before the judge handling the way of the jury and then refer to the jury, separately in panel the question of penalty, he can bring the changes on the question of mitigation or as if he went to have a trial before a jury in the first instance and after you produce everything right then to take his chances about that facts of mitigation on the question of guilt.

I know the words and I should think that the conclusion from the consideration that you just have mentioned, they’re just opposite.

Steven B. Duke:

Well, if I understand your question Mr. Justice Fortas, your point if I understand it is it would be better off trying guilt waiving the jury before the judge, getting his guilt determined and then getting the jury determination of sentence.

It would be better off in terms of the death penalty than having both determine at the same time, possibly so but does he have any right to do that if this Court’s decision in Singer applies in this context, he has no right to make that choice.

He has no right to tell the judge, “I’ll have a non-jury trial on issue of guilt or innocence.

I object to any jury being in the case on that question.

I want a fresh jury after the determination of guilt or innocence.”

Abe Fortas:

We are assuming that the Government — we are assuming the Government’s argument here.

That is to say that the judge couldn’t impanel a jury where the judge wanted to have a consideration given to the question of the death sentence.

Steven B. Duke:

Well, yes, the judge could impanel a jury but there’s no contention made that the defendant has a right again to insist on a penalty jury alone quite separate from his decision as to whether or not he wants a jury trial.

In any event, when he pleads guilty, that’s the easiest case of the non-jury trial as awfully complicated because in my view, Singer doesn’t clearly apply here because Singer left open the situation where the Government has an ignoble purpose in insisting on the right to — its own right to a jury trial.

And indeed, it’s hard to think of a more ignoble purpose than what might exist in the prosecutor’s mind.

I insist on a jury trial because I’m going to insist that the death penalty issue be put before a jury if that is the purpose of the prosecutor and certainly, that’s a possible purpose.

Indeed one might say that Singer doesn’t apply here and the defendant does in terms of Singer have a right to waive a jury.

But if I can simply compare the guilty plea situation, the man, the defendant pleads guilty.

Now, the judge —

William J. Brennan, Jr.:

Did that one — I notice the word ignoble.

Suppose that’s what the prosecutor does — do because he thinks this is the kind of the case where indeed the death penalty authorized by law is appropriate.

What makes it ignoble because he insists on a jury trial if that’s the only way he can get death penalty?

Steven B. Duke:

Well, it would seem to me ignoble I suppose one can argue about, if his purpose in demanding it was to induce the defendant out of fear of his own life to plead guilty.

William J. Brennan, Jr.:

Oh!

I see.

Steven B. Duke:

But if I can simply direct your attention to the guilty plea situation, there the defendant pleads guilty.

The question is put to the judge; do I impanel a jury assuming again that he has the power to do so?

Do I impanel a jury or do I not?

First of all, the pressure is against that question.

First of all, it’s a virtually non-existing procedure.

There was nothing so far as we’ve been able to uncover in 1934 regarding a penalty jury in federal criminal cases.

And it’s — even today, it’s a very seldom used procedure.

What criteria does the judge used to determine qualifications of the jurors?

What kind of procedure does he use to determine penalty?

All these uncertainties weigh against his affirmative calling in of the jury.

Secondly, he offsets the expectations of the defendant.

The defendant presumably expects the judge will accept the guilty plea and not invoke a penalty jury.

He will upset those expectations and produce possibly a motion for withdrawal if he does call in a penalty jury.

Another factor against the probability that a penalty jury will be impaneled is that the judge makes his decision without any benefit, of any gruesome facts, or any tearful witnesses, he does it on the cold record.

In short, it would be a very strong and determined and unusual judge who would impanel a death penalty jury after a guilty plea if it was in his discretion to do otherwise.

Earl Warren:

You say it would take a very strong judge to do that?

Steven B. Duke:

A very — a judge very determined to pave the way to the defendant’s being killed.

Earl Warren:

Well, isn’t that also often — well, I see your point, yes.

I see your point.

Steven B. Duke:

Now, where the defendant demands a jury trial of his guilt, all the judge does again assuming that he has a discretion which we deny he does —

Hugo L. Black:

Discretion to do what?

Steven B. Duke:

The discretion to submit the death penalty of the jury or not to submit it.

We contend —

Hugo L. Black:

Well, do you think the judge has the power to do that or the defendant has the right to do that?

Steven B. Duke:

Once the defendant —

Hugo L. Black:

Does the judge have discretion to waive a jury trial in a criminal case?

Steven B. Duke:

No, Mr. Justice Black, I mean — I’m saying that assuming that the defendant claims and gets trial by jury on the issue of guilt, then at the end of the case, the question is to the judge, “Do I submit the death penalty of the jury or not?”

Now, I say that the judge must submit it, at least if requested by the prosecution.

But the point is that even if it’s wholly discretionary, all he has to do to submit it is to insert that in this charge.

There’s no big issue, no spotlight.

Steven B. Duke:

He’s not upsetting anybody’s expectation so it seems to me the chances are far greater when the guilt or innocence is determined by jury trial that in fact the death penalty issue will be submitted to a jury.

And I repeat a jury that is decided and is contaminated in the sense by the issue of guilt or innocence.

If it seems to me utterly preposterous to suppose except in a most unusual circumstance that the defendant’s chances of avoiding a death penalty are not much better by waiving a jury trial and/or by pleading guilty than the reverse.

Now, even if I’m wrong and this is my final argument on this point, even if I’m completely wrong on everything I’ve said, I could be right or at least an attorney, a defendant, could agree with my evaluation of the probabilities.

After all, we’re dealing here with a — and to some extent with a totally uncharted sea.

This provision —

Earl Warren:

When do you have to say it’s the right of the Government to say we’re not going to trust the life of any man to the decision of one man, and if he is to be executed, we’re going to require that he’d be tried by a jury of his peers?

Steven B. Duke:

Well that’s — Mr. Chief Justice, that’s perfectly proper.

And indeed —

Earl Warren:

Isn’t that about what is done here?

Steven B. Duke:

This is part of it.

Earl Warren:

This part of the Act came after the original act and isn’t that a limitation that the Government put on it when they put that amendment into the Act?

Steven B. Duke:

Well, I think many of the framers of the — or the people that put together this amendment had in mind the notion that they were going to keep the death penalty issue in the laps of 12 men.

And I don’t deny that.

I don’t object to it but I — on my point is that the way in which they did it, and there are other ways to do it — the way in which they did it, they link to the death — to the determination of the defendant, “shall I waive the jury or not?”

They link to that a very grizzly outlook so far as the death penalty is concerned.

They create two procedures.

One much less like they produce the death penalty than the other.

And they make the choice of those procedures turn on whether he decides he wants guilt or innocence determined by a jury.

In other words, they made a mistake.

They should have done it another way and there are other ways to do it as I pointed out in my brief.

Byron R. White:

Now, there are some statements that have — let’s say that in capital cases where the death penalty may be imposed, only the jury may hear it and there shall be no pleas of guilty accepted and no waivers of jury trial.

Now that — that is too unusual —

Steven B. Duke:

If in fact, that is the way the law works —

William J. Brennan, Jr.:

That’s exactly the way it works in New Jersey.

The only plea of guilty in a capital case is one in which the judge accepts the plea with a lesser offense which carries a maximum of life or 30 years and there may be no waiver and there’s maybe no trial by the judge to capital cases.

Steven B. Duke:

Well, I’m familiar with the New Jersey statute, Mr. Justice Brennan, but the distinction there is made between a guilty plea and something called a non volt.

You can’t enter a non volt if the judge accepts —

William J. Brennan, Jr.:

You may not enter a non volt to a capital offense.

You can get a lesser plea which carries — which then carry with it 30 and in certain instances life.

Steven B. Duke:

My final point —

Abe Fortas:

The point of my Brother from what you’ve said is not unconstitutionality of the statute but the unconstitutionality of the imposition of the death penalty under the statute.

Now, if that were the holding, that would eliminate a possible prejudice to the request for a jury, would it not?

Suppose in effect by decision of this Court or otherwise, a possibility of imposing the death penalty under this statute where eliminated because of its chilling effect on jury trial, then there’d be no more discrimination under the statute.

The statute itself would be constitutional but it would not be possible to impose a death penalty under it.

Steven B. Duke:

That — the statute would be unconstitutional — would be perfectly valid as far as the point raised here if the possibility of the death penalty were removed —

Abe Fortas:

But why is that perfectly permissible result here.

I know it didn’t get your client out of it — out of the jury’s file but why is it illogical for instance here.

Steven B. Duke:

I’m happy that you gave me the time to answer the question.

The point is that the severability issue doesn’t arise properly until you determine, until you locate the offensive provision.

And in this case, you simply can’t locate the offending provision because if you look at the statute, you can take the words after by death, take them out of the statute —