Court of the United States Supreme

Memorandum

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. ' . '

\,• .

• 6/6/72--LAH

Re: Capital Cases

Judges

Attached is the draft you showed me yesterday written by

Justice Blackmun. Although it makes no attempt to analyse

the tough questions, it is clearly the best piece of writing

that Justice Blaekmun has produced in the last two years. I

find myself in close accord and sympathy for his views he ex­

presses as well as it can be expressed the tension between

the sure knowledge that capital puhishment does not offend

the Constitition (for all the reasons we state in our opin­

ion) and the nonjudicial instint that tells us that over­

ruling the death penalty might be one of the great human­

itarian acts of this Century. He should be commended for

his performance here.·

On the question whether he should circulate at this

time, I have one reservation. It is abundantly clear that

this opinion is a dissent from a decision wiping away the

death penalty. I do not know why he has taken this approach.

Conceivably he has done so for the same re~sons that you

initially didp because, without solid assurance, it appeared

that the majority might lean the other way. Org it may be

that he knows the outcome from conference with Justice

White. Whatever the reason, I doubt the propriety of

circulating a clear dissent before Justices Stewart and

White gop formally, on record. I would urge him to with­

hold this draf~. Because of the multitude of references

to the "the Courtu and "the majority" it would be difficult

for him to sanitize this draft and circulate it as an ex­

pression purely of his personal views.

·,

Note finally Justice Blackmun•s discussion on pages 8

and 9 in which he discusses recent federal legislation.

The reference to the provision of the Crime Control Bill

must be the reference to which Justice Rehnquist has referred

us. I think we should crib his citations and add them to

your opinion. We should also direct our readers to Justice

Blackmun's information regarding the votes on those pieces ~~

of federal legislation--they are staggering.

UH

j1 J I

J

June 6, 1972

Dear Harry:

Your memorandum in the capital cases is superb- sensitive, well written and unanswerable.

i With your permission, I would like to "crib" some of your

facts on federal legislation.

I have one thought which I would like to discuss with you. You might call me at your convenience.

Sincerely,

Mr. Justice Blackmun

be: Larry

My thanks for your memorandum with which I am in complete accord.

L. F. P., Jr.

''•·''

! 1

;;;.

I t l

r .. · I

June 6, 1972

Dear Harry:

Your memorandum in the capital eases is superb- sensitive, well written and unanswerable.

With your permission, I would like to "crib" some of your facts on federal legislation.

I have one thought which I wwld like to discuss with you. You might call me at your convenience.

Sincerely,

Mr. Justice Blaekmun

be: Larry

My thanks for your memorandum with which I am in complete accord.

L. F. P., Jr.

,.

CHAMBERS OF

.iiu.prttttt Q}ltttd 11f t4t ~ttitt~ .imtta ~aafrhtgton. I9. (!}. 2ll&'f'!..;l

JUSTICE HARRY A . BLACKMUN

June 8, 1972

MEMORANDUM TO THE CONFERENCE

Re: Capital Cases

I circulate the enclosed as an expression of my present views. It is put together on the assumption that the tentative vote at Conference will be the final one.

Sincerely,

To : The Chief Just i ce Mr . Jus t ice Douglas Mr. J ushce Brennan Mr . Justice Stewart Mr. Justice White Mr . Justice Marshall Mr . Justice Powell V Mr . Justice Rehnquist

2nd DRAFT Fr om: Blackmun, J.

SUPREME COURT OF THE UNITED:tSaiAirlfS :_-v-(a'f-J/f-4./--~-?~~ _ Nos. 60- 5003, 69- 5030, AND 60-5~circulated: _____ _

·william Henry Furman, Petitioner.

60- 5003 v. State of Georgia.

Lucious Jackson. Jr., Petitioner,

69- 5030 v. f;tate of Georgia.

On Writs of Certiorari to the Supreme Court of Georgin.

Elmer Branch, Petitioner. ) On Wr-it of Cert-iorari to the 69- 5031 v. Court of Criminal Appeals

State of Texas. of Texas.

[June -, 19721

M emorandum of l\1R. J usTICE BLACKMl_TN.

I join the respective opinions of THE CHIEF JusTicg and of MR. JusTICE PowELL, and add only the follow­ing, somewhat personal, comments.

1. Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible­with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "rever­ence for life." Were I a legislator, I \vould vote against

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') FUIL\L\~ v. GEOHGIA

the death penalty for the policy reasons argued by coun­sel for the respective petitioners and expressed and adopted in the several opinions filed by my Brothers DoFGLAS, BnE~NAN. and MARSHALL.

2. Having lived for many years in a State that does not have the death penalty,' that eft'ectivcly abol­ished it in 1911,~ and that carried out its last execution on February 13, 1906," capital punishment has novel' been a part of life for me. In my State it just did not exist. So far as I can determinr, the State, purely from a statistical deterrence point of view, was neither the \\'orse nor the better for its abolition, for, as the majority opinions observe, the statistics pl'ove little, if anything. But the State and its citizens accepted the fact that the death penalty was not to be in the arsenal of pos­sible punishments for a.uy crime.

3. I, perhaps alone among the present members of the Court, am on judicial record as to this. As a mem­ber of the United States Court of Appeals I first strug­gled silently with the issue of capital punishment in Feguer v. United States, 302 F. 2d 214 (CAS 1962), cert. denied, 371 U. S. 872 (1962). That defendant may have been one of the last to be executed under fed­eral auspices. I struggled again with the issue, and once more refrained from comment, in my writing for an en ba.nc court in Pope v. United StaLes, 372 F. 2d 710 (CAS 1967). vacated (upon acknowledgme11t by the Solicitor Genel'al of error revealed by the subsequently decided United States Y. Jackson, 390 U. S. 570 (1908)) and remanded , 392 U. S. 651 (1968). Finally, in Max­well Y. Bishop, 398 F. 2d 138 (CAS 1968), vacated and remanded sua sponte by the Court on grou nels not raised

1 Minn . Slat. § 60!).10. ~ l\linn . Se:ss. Laws 1911, r. 387. n Sec W. Trcnrrrr, Murder in Minneso ta, 163-H\7 (19G2).

69-500:3, ETC.-:\JKl\10

FUiti\L\N v. GEOIW1A

below, 398 U. S. 262 ( 1970), I revealed, so 1i tarily and not for the panel. my distress and concern. 398 F. 2d, at 153-154.< And in Jackson v. Bishop, 404 F. 2d 571 (CAS 1968), I had no hesitancy in writing a panel opin­ion that held the use of the strap by trusties upon fellow Arkansas prisoners to be a violation of the Eighth Amendment. That, however, was in-prison punishment imposed by inmate-foremen.

4. The Court acknowledges, as it must, that until today capital punishment was accepted and assumed as not unconstitutional per se under the Eighth Amend­ment or the Fourteenth Amendment. This is either the flat or the implicit holding of a unanimous Court in Wilkerson v. Utah, 99 U. S. 130, 134-135, in 1878; of a unanimous Court in In re Kemrnler, 136 U. S. 436, 447, in 1800; of the Court in Weems v. United States, 217 U. S. 349, in 1910; of all those members of the Court, a majority, who addressed the issue in Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463-464, 471-472, in 1947; of Mr. Chief Justice Warren, speak­ing for himself and three others (Justices Black, DouG­LAS, and Whittaker) in Trop v. Dulles, 356 U. S. 86,

·I " It i~ ob,·iou,; , w0 think, t.hnt the Pn·ort~ on behalf of :\T:uwPll \I'Otllcl not thu~ be continuing, fl.])(! hi~ ra~c rPappParinl!' in thiH court were it not for the fact that it i~ tlw dmth pPnalt~·, nther th:u1 life unpri,:onmPnt , which he recPin>d on his rnp0 ronYirtion. This fad. mnk0.; the dPri~ionnl procp,:~ in a C'a~r. of thi~ kind p:trticularly <'X<'l'lteiating for the author of this opinion 11 who icl 1101 p<'l'.-<onall~·

<·om·ineed of thr right ne"" of capital puni~hmrnt and \Yho fJliC'~t ions it as :m rffrrti\·C' ddNrrnf .. But thC' ach·isnbilit~· of rapital punish-11\C'nt. i~ a JlOliry mattC'r ordinarily lo b0 rC'"ohwl b~· the lrgi~lnlure or 1hrough execuli1·r c!C'menr~· and not b~r thL' judiciar~· . '~'e JJotr, for wh:tt that notice ma~· be wort.h, 1hat the dmth Jlenalt~· for rnpc remains rwailable under federal statu!~. l.S U. S. C. ~ 20:n: 10' U. S. C. § 920 (a)."

The designated footnote observed that my fellow judges did not join in my comment.

I <

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4 FUR;\L\N v. GEORGH

99, in 1958; ~ in the denial of certiorari in Rudolph v. Alabama, 375 U. S. 889, in 1963 (where, however, Justices DouGLAS, BRENNAN, and Goldberg would have heard argument with respect to the imposition of the ultimate penalty on a convicted rapist who had "neither taken nor endangered human life"); and of Mr. Justice Black in McGautha Y. California, 402 U. S. 183, 226, decided only last Term on May 3, 1971.6

Suddenly, however, the course of decision is nO\Y the opposite way, with the Court evidently persuaded that somehow the passage of time has taken us to a place of greater maturity and outlook. The argument, plaus­ible and high-sounding as it may be, is not persuasive, for it is only one year since M cGautha, only eight and one-half years since Rudolph, 14 years since Trap, and 25 years since Francis, and we have been presented with nothing that demonstrates a significant movement of any kind in these brief periods. The Court has just de­cided that it is time to strike clown the death penalty. There would have been just as much reason to do this v>'hen any of the cited cases were decided. But the

""At the out:;ct, Jet. u:; put to one side the drath JWilalt.\· ns an index of the constitutional limit on punishment. vVhatr\·cr the nr~uments may be against capital puni~hment , both 011 moral grounds nne! in terms of accomplishing t.he purposes of puni~hmcnt-and they arc forceful-the dC'at h J)('nalty has been employed throughout our liiHtory, and, in a cb~r when it is still widely acreptrcl , it cannot be said to violate the con:;t.itutional concept. of cruelty .... "

n "The Eighth Amendment forbids 'erud and unu~ual JHU ;ish­mcnts.' In my view, the~c word~:> cannot be read to outlaw capital puni:;hmen.t because thnt penalty was in common usc and :mt horizccl by law here and in the countries from which our nn ce,tor;-; came at the time the Amendment waR adopt·cd. It is i11concC'ivnblc to me tlwt the framer:; int.cndrd to end capita.! punishment b~, thr Amend­ment. Although some ])('Oj)lc luwe urgrd that thiH Court should amend the Constitution by interpretation to keep it ahrca::;t of modern idcns, I h:wc never believed that lifetimr judgr::; in our s~·stem have any such lcgi:;btive power."

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FUR:\IAN v. GEORGIA 5

Court refrained from that action on each of those occasions.

The Court has recognized, and I certainly subscribe to the proposition, that the Cruel and Unusual Pun-· ishment Clause "may acquire meaning as public opinion becomes enlightened by a humane justice." Weems v. United States, 217 U. S. 349, 378 (1910). And Mr. Chief Justice Warren, for a plurality of the Court, re­ferred to "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958). Mr. Jefferson expressed it welP

7 "Some men look at constitutions wit-h sanctimoniou::; reverence, aud deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of tho preceding ago a wi~dom more than human, and suppose what they did to be beyond amend­ment .. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was vrry like the r1reseut , but without the experience of tho pre~ent; and forty yean; of experi­ence in government is worth a century of book-reading; and this they would say t.hemsrh·es, were they to rise from the dead .... I know ... that laws and institutions mu~t go hand in hand with the progre~s of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths dis­closed, and manners and opinions change with the change of cir­cumstances, institutions must advance also,. and keep pace with tho times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to rrmain ever under the rrgimen of their barbarous ancestors. . . . Let us foJ\ow no such examples, nor weakly believe that. 011e genrratiou is not as capable as another of taking care of itself, and of ordering its own afrair;:;. Let us, a~ our sister Stat<:>s have done, avail oursrlves of our ren~on and experience, to correct the crude e~~ay::; of our first and unexperirncecl, although wise, virtuou~ , and well-meaning coun­cil:;. And lnstly, let us proYide in our Con::;hlution. for its reYision :tt sta.tcd prriods." Letter to Samuel Kcrchc\·al , July 12, H\15, 15 Th0 Writing::; of Thomas Jeffer::;on 40--+2 (:-Iemorial Edition 190-t).

69-5003, ETC.-l\lEl\10

G FUHMAN t •. GEORGIA

My problem, howC'ver, as l haYc indicated, is the suddenness of the Court's perception of progress in the human attitude since decisions of just a short while ago.

5. To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death. It is comforting to relax in the thought&-perhaps the rationalizations­that this is the compassionate decision for a maturing society; that this is the moral and the "right" thi11g to do; that thereby we convince ourselves that \H' an' moving clown the road toward human decency; that we value life even though that life has taken another or others and has grievously scarred another or others and their families; and that " ·c arc less barbaric than we were in 1878 or in 1800 or in 1010 or in 1047 or in 1958 or in 1063 or a year ago in 1071 when Wilkerson, K emmler, Tr eems, Francis, Trap, Rudolph, and 1lf c­Gautlw, were respectively decided.

This, for me, is good argument, and it make's some sense. But it is good argument and it makes sense only in a legislative and executive \Yay and not as a .i udicial expedient. As I have said above, \Yere I a legislator, I would do all I could to sponsor and to vote for legislation abolishing the death penalt,y. And \\WC

I the chief C'xecutive of a sovereign State, I \YOuld be sorely tempted to exercise executive clemency as Gov­ernor Rockefeller of Arkansas did reccn tly just before he departed from office. There-on the Legislative Branch of the State or Federal Government, and SC'c­onclarily, on the Executive Branch- is ''"here the au­thority and responsibility for this kind of action lies. The authority should not be taken over by the judi­Ciary in the modern guise of an Eighth AnwndmC'nt issue.

FUH.\fA:\' v. CLOIWIA i

I do not sit on these cases, however, as a legislator, responsive, at least in part, to the will of constituents. Our task here, as must so frequently be emphasi7.cd and re-emphasized, is to pass upon the constitutionality of legislation that ha.s been enacted and that is challenged. This is the sole task for j uclges. We should not allo\v our pcrsollal preferences as to the "·isdom of legislati-.;e and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, they arc almost irresistible.

6. The Court, in my vic\Y, is somewhat propelled toward its result by the interim decision of the Cali­fornia Supreme Court, with one justice dissenting, that the d<'ath p0na.lty is violative of that State's constitu­tion. People Y. Andason, 6 Cal. 3d 628. 403 P. 2d 880 (February 18, 1972). So far as I am aware, that was the first time tlw death penalty in its entirety has been nullified by judicial decision. Cf. Ralph v. Warden, 438 F. 2d 786. 793 (CA4 1970), cert. pending. Califor­nia's moral problem is a profound one, for more prisoners arc on death row there than in any other state. Cali­fornia. of course, has the right to construe its constitu­tioll as it will. Its construction, however, is hardly a precedent for federal adjudication.

7. I trust the Court fully appreciates \Yhat it is doing \Yhen it decides thf's<' cases the way it docs today. Kot only arc the capital punishment laws of 41 States and the District of Columbia stricken clmYn, but also all those provisions of the federal statutory structure that specify or permit the death penalty apparently are voided. No longer is capital punishment possible, I suspect, for, among other crimes, treason , 18 U. S. C. ~ 2381; or as­sassination of the President, the Vice President, or those who stand elected to those positions, 18 U. S. C. § 1751; or assassination of a Member or member-elect of Con-

.·

69-5008, ETC.-:.TEMO

FURl\L·\X 1'. GEOHGL\

gress, 18 U. S. C. ~ 351; or espionage, 18 U. S. C. § 794; or rape within the special maritime jurisdiction, 18 U. S. C. § 2031; or aircraft or motor vehicle destruction where death occurs, 18 U. S. C. § 34; or explosives of­fenses where death results, 18 U. S. C. § 844 (d) and (f) ; or train wrecking, 18 U. S. C. § 1992; or aircraft piracy, 49 U. S. C. § 1472 (i). Also in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice. 10 U. S. C. §§ 885, 890, 894, 899, 901, 904, 906, 913, 918, and 920. All these seem now to be discarded without a passing reference to the reasons, or the circumstances, that prompted their en­actment, some very recent, and their retention in the face of efforts to repeal them.

8. It is of passing interest to note a few voting facts with respect to recent federal death penalty legislation:

A. The aircraft piracy statute, 49 U. S. C. § 1472 (i), was enacted September 5, 1961. The Senate vote on August 10 was 92- 0. It was announced that Senators Chavez, Fulbright, Neuberger, and Symington were ab­sent but that, if present, all four would vote yea. It was also announced that Senator Butler was ill and that Senators Beall, Carlson, and Morton were absent or de­tained, but that those four, if present, would vote in the affirmative. These announcements, therefore, indicate that the true vote was 100-0. 107 Cong. Roc. 15440. The House passed the bill without recorded vote. 107 Cong. Rec. 16849.

B. The presidential assassination statute, 18 U. S. C. § 1751, was approved August 28, 1965, without recorded votes. 111 Cong. Rec. 14103, 18026, and 20239.

C. The Omnibus Crime Control Act of 1970 was ap­proved January 2, 1971. Title IV thereof added the congressional assassination statute that is now 18 U. S. C. § 351. The recorded House vote on October 7, 1970, was 341-26, with 63 not voting and 62 of those paired. 116

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FUIL\TAX v. GEOHGIA 9

Cong. Rec. 35363-35364. The Senate vote on October 8 was 59-0, with 41 not voting, but with 21 of these an­nounced as favoring the bill. 116 Cong. Rec. 35743. Final votes after couference were not recorded. 116 Cong. Rec. 42150, 42199.

It is impossible for me to believe that the many lawyer­members of the House and Senate-including, I might add, outstanding leaders and prominent candidates for higher office-".rere callously unaware and insensitive of constitutional overtones in legislation of this type. The answer, if course, is that in 1961, in 1965, and in 1970 these elected representatives of the people-far more conscious of the temper of the times, of the maturing of society, and of the contemporary demands for man's dignity, than are we who sit cloistered on this Court­took it as settled that the death penalty then, as it always had been, was not in itself unconstitutional. Some of those Members of Congress, I suspect, will be surprised at this Court's giant stride today.

9. It is not without interest, also, to note that, although the several opinions for the majority acknowledge the heinous and atrocious character of the offenses com­mitted by the petitioners, none of those opinions makes reference to the misery the petitioner's crimes occasioned to the victims, to the families of the victims, and to the communities where the offenses took place. The argu­ments for the respective petitioners, particularly the oral arguments, were similarly and curiously devoid of refer­ence to the victims. There is risk, of course, in a com­ment such as this, for it opens one to the charge of emphasizing the retributive. But see Williams v. New York, 337 U. S. 241, 248 (1949). Nevertheless, these cases are here because offenses to innocent victims were perpetrated. This fact and the terror that occasioned it, and the fear that stalks the streets of our cities today, perhaps deserve not to be entirely overlooked. Let us

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10 FUTil\1AN v. GEOHGIA

hope that, with the Court's decision, the terror imposed "·ill be forgotten by those upon whom it was visited, and that our society will reap the hoped-for benefits of magnanimity.

Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of his­tory, of law, or of constitutional pronouncement. I fear the Court has overstepped. Its reasoning sounds plaus­ible, but it is not persuasive. It seeks and achieves an end.