Warren E. Burger: We will hear arguments next in 5706, Proffitt against Florida. Mr. Curtis, when you are ready.
Clinton A. Curtis: Thank you Mr. Chief Justice. May it please the Court. Court has already heard arguments relating to the discretionary elements and features of the pre and post sentence procedures which are basically the same as those that exist in Florida. I therefore, limit my remarks to the procedure under the Florida’s post Furman statutes as they relate to the actual structuring of the sentencing procedure itself. Florida’s Death Penalty Act became Law on the 8th of December of 1972 and since that date, some 70, have been sentence to die, 19 of the sentences have thus far been reviewed. 12 sentences including the petitioners have been affirmed and seven vacated. Now, I understand there might be one or two more that have been added to the number since this information was obtained approximately 30 days ago but that is as close as I could get. The statutes of Florida provide for a life sentence upon conviction of a capital felony. Excuse me.
Speaker: Seven were vacated, was that in connection with the convictions or --.
Clinton A. Curtis: Vacated on death sentence.
Speaker: Just on the sentence?
Clinton A. Curtis: Yes, sir. The statutes of Florida, provide that a life sentence will be imposed upon a conviction for a capital felony and consisting of not less than 25 years without the hope of parole, and this capital felony is defined as premeditated murder or murder during the commission of eight enumerated felonies and there is another capital felony which is rape of a child 11 years or under. But, the imposition of the life sentence is mandatory unless the death penalty is determined and imposed pursuant to the New Death Penalty Act. This Act provides for a bifurcated procedure. Upon conviction for a capital felony, a sentencing hearing this conducted before the same Trial Jury, in order to obtain advice and advisory recommendation of life or a death sentence. No reasons need to be given in the verdict returned by the Jury. It simply is a statement that we the majority have determined to recommend either life or death, and that is basically the form of the verdicts giving to the Judge. The Trial Judge may not withstanding the Juries recommendation and/or either a sentence of life or death, if he imposes death, he is required to file written findings in support of his sentence. The statute requires review of all death sentences by the Supreme Court of Florida, eight aggravating and seven mitigating circumstances is set forth from the statute for the consideration of the sentencer. The Jury for advisory purposes, the Trial Judge for sentencing purposes. On the 26th of July of 1973, the Supreme Court of Florida held this particular act constitutional, acknowledging that there was discretion in the sentencing procedure but this discretion possible and necessary was reasonable and controlled and thereby, complied with the test of Furman versus Georgia. The petitioner was charged in July of 1973 and was convicted in March of 1974, a premeditated murder of Joel Medgebow by stabbing. The Jury recommended and the Trial Judge imposed a death sentence. The petitioners claimed that statute was unconstitutional and was rejected on the authority of the early decision on State versus Dixon. We submit that death sentences imposed under the statute are arbitrary, because they may be and have been based on non-statutory enumerated factors, and at the uncontrolled discretion of the sentencer is permitted and required to interpret or valuate and apply the statutory circumstances. Now, in the petitioners case, the Trial Judge found and set forth in his written findings four aggravating circumstances. One of these circumstances was that the defendant had the propensity to commit the crime for which he was charged and that he was a danger and menace to society. This is not one of the statutory enumerated aggravating circumstances. By affirming this death sentence, the Florida Supreme Court approved the concept, Chief Justice.
Warren E. Burger: Is that known?
Clinton A. Curtis: By the affirmance itself, and in an earlier case in Sawyer versus State, the defendant was convicted of murder and robbery and the Supreme Court of Florida affirmed the sentencers, the Trial Judge sentence of death. Citing among other things that the defendant had certain -- excuse me, sir
Warren E. Burger: Be specific that you said the Jury made this --
Clinton A. Curtis: If I said Jury, I intended Judge
Warren E. Burger: When you did say it but I got an impression. It is not the Jury you are talking about now? This is—.
Clinton A. Curtis: That is correct. You see, all the Jury does under this system is to return a verdict of recommendation. Then the Trial Judge in the event and only in the event, he determines to impose a death sentence, he prepares a series of written findings in support of death sentence. I must point out, I think it is only fair to do so that in State versus Dixon, there was a statement to the effect that Supreme Court would urge the lower Courts to file written findings in the event that they determined to impose life sentences also. But, I found as a matter of practice, this is not done. But in any event, returning to the point your Honor in this respect.
Speaker: Mr. Curtis, while you were interrupted there, there were four aggravating circumstances here. One of which was a non-statutory, is it not? Were the other three found by the Trial Judge be statutory?
Clinton A. Curtis: There were three statutory aggravating circumstances, and one non-statutory. The non-statutory is one that I have related to you.
Speaker: But why was not the fourth, simply superfluous and I do not quite understand the course of argument there?
Clinton A. Curtis: Well, the course of the argument is this. If the Trial Judge felt that the three aggravating circumstances were sufficient to support his position that the death sentence should have been imposed. Why was it necessary for him to come forward and come with a non-statutory aggravating circumstance and this will become more relevant as we get into the discussion of sufficiency which is this weighing process that Florida requires, and it is some what different than any of the other statute that had been thus far presented.
Warren E. Burger: (inaudible) for the extra one articulated?
Clinton A. Curtis: In the written findings of the Trial Judge --
Warren E. Burger: Your position is that now, the reviewing Court then and now had no way of knowing whether that might have been the dominant one or the decisive one, is that your point?
Clinton A. Curtis: I think that is a fair assessment of it Your Honor, yes. Now, as I said Sawyer versus State stands for the same proposition, where there were additional non aggravating, non statutory aggravating circumstances cited and with approval when the Trial Judge cited as a matter fact, the Supreme Court of Florida took these facts and placed them in a notion or in the form of aggravating circumstances, and those facts were pending robbery charges against the defendant. The defendants demeanor and conduct during the course of a Trial as well as defendants alleged incurable drug habit. Now, the Supreme Court has also approved and relied on a non statutory mitigating circumstances in the form of a defendants or record, emotional strain of the defendant as well as sentences that have been administered to accomplices or co-defendants which are less than death. Now, we advance to the Court, the notion that since the sentencer may relay on statutory factors, of course his discretion can not be controlled by the statute. Now, to the point of weighing, the statute permits the sentences are through evaluation of the enumerated circumstances. Now, according to the statute, the sentencer determines whether sufficient aggravating, or mitigating circumstances exist, and whether the mitigating outweigh the aggravating circumstances. Nowhere in the statute, do we have a definition of the term sufficient. The weight or relative significance of a circumstance or a combination there is likewise rather not in the statute. Well, I told that this, this circumstance has more weight or is entitled to more weight than any other. In other words, the presence or absence of any said circumstance or combination, does not compel a particular result, this is somewhat different than the Federal Statute where you have aggravating circumstances and if that is found to exist, such and such result will occur and then if a mitigating circumstances to exist, such and such result will recur. There is no such definition in our statute.
Speaker: A pre Furman did the Jury sentence?
Clinton A. Curtis: Yes.
Speaker: What was the instruction to the Jury then about sentencing, do you remember?
Clinton A. Curtis: Yes
Speaker: What was it?
Clinton A. Curtis: It was basically, the statute provided that in the event of conviction; death would follow unless the Jury recommended mercy and the Judge had absolutely had nothing to do with.
Speaker: And what did they say to the Jury about mercy, anything?
Clinton A. Curtis: That was last day --
Speaker: Within your discretion or what?
Clinton A. Curtis: Yes.
Speaker: Did they expressly say that?
Clinton A. Curtis: I am not, I can not answer quite that way because vagueness has been sometime. But I would have to say that it was left to their determination.
Warren E. Burger: (Inaudible) assuming that the Judge in Furman that discretion?
Clinton A. Curtis: Yes, oh yes. But, as to whether or not there was expanded instruction on it, yes, I really do not recall it your Honor. Now, the Supreme Court has stated that its responsibility in this overall process and mind you, the statute is not define what the Supreme Court’s responsibility is but the Supreme Court is defined that it is to review a death sentence case in the light of facts presented in evidence, as well as other decisions, and determine whether or not the sentence of death is too great. And, no opinion that has been rendered by the Supreme Court of Florida, thus far affirming a death sentence explains why, a less harsh penalty would not be sufficient, nor does any opinion compare a death sentence case with the many life sentences imposed for basically the same or substantially the same type of conduct. Such a comparative review is impossible. It is frankly impossible since the many life sentences are reviewed if at all not by the Supreme Court of Florida but by the District Courts of Appeal.
Speaker: Does that death sentence go directly to the Supreme Court of Florida?
Clinton A. Curtis: Yes.
Warren E. Burger: And as of right?
Clinton A. Curtis: As of statutory direction, it goes all death sentences whether, I assume, the defendant wishes or not. It will be automatically reviewed by the Supreme Court of Florida. But in the situations where life sentences were imposed for Capital Felonies, if they were reviewed and I say, if at all they go to the District Courts of Appeal.
Speaker: (Inaudible) was there any possibility of afterwards going to the Supreme Court?
Clinton A. Curtis: Only in the event of a constitutional question or you have --.
Speaker: A certiorari jurisdiction here or roughly so.
Clinton A. Curtis: That is basically correct.
Speaker: The Florida Statute prescribed any special standards for review by the Supreme Court of Law
Clinton A. Curtis: No, it is not.
Speaker: Comparable to those in Georgia?
Clinton A. Curtis: None whatsoever. There is an absence of expression on the statute on that point.
Speaker: (Inaudible) review? I understand, I am not --
Clinton A. Curtis: Well, a customary review, as I said the Supreme Court of Florida has defined its review as something more than just customary, I would say it. It has taken upon itself not only to review the sufficiency of the evidence or what have you but also, to determine in the -- to take upon itself to a way whether or not, this death sentence is, as they say, too great; and whether a less harsh punishment would be adequate under the circumstances.
Speaker: Do the questions on the merits go with the review on the sentence?
Clinton A. Curtis: It is a total review.
Speaker: Do you know whether and to what extent, the convictions have been upset in cases --
Clinton A. Curtis: I do not believe that any of seven and as I say it, this is my recollection. I do not believe any of the seven that were reversed, were reverse because of insufficiency of evidence. It was directed totally at vacation of the death penalty and I am sure, Attorney General, Shevin will correct me if I am adhering that regard. As I say a review of the 19 opinions rendered by the Supreme Court reflected, there is no meaningful basis for distinguishing the death sentence cases from the life sentence cases. That is the seven that have then vacated and I realize we could engage in a discussion that this case means this and that case means that, and this circumstance should be interpreted this way. But I suggest to the Court that -- we can demonstrate and our brief does discuss just this. Each aggravating circumstance and each mitigating circumstances, we feel is relevant to a consideration of the statute that lends itself to the vagueness charge. But to give you an idea, of what the Supreme Court of Florida thinks of its procedure and how it assesses this particular statute, I invite the Court’s to page 86 of our brief and I would only quote only three sentences from that quoted material, and this is from the Alvord case: “The law does not require the capital punishment be imposed in every conviction in which they particular state, the facts occur. Certain factual situations may warrant the infliction of the capital punishment but nevertheless, would not prevent either the Trial Jury, the Trial Judge or this Court from exercising reasoned judgment and reducing the sentence to life imprisonment. Such an exercise of mercy on behalf of the defendant in one case does not prevent the imposition of death by capital punishment in the other case. Without legislative formulation of the circumstances or combination, there are which warrants executing or not executing a defendant the decision to execute is nothing more than the function of the sentencer.” We respectfully submit that the Florida Death Penalty Act permits the arbitrary imposition of the death penalty and is therefore violated the Eight and Fourteenth Amendments of the Constitution. Thank you.
Speaker: May I just ask one question. Would you say that statute will be less vulnerable if it did not have any appellate review?
Clinton A. Curtis: Less vulnerable if it did not have any --
Speaker: As I understand you, you are pointing out that the Supreme Court is without a reasoned basis granted mercy in seven out of nineteen cases when some of the other 12 are really comparable--
Clinton A. Curtis: (Voice overlap). Excuse me for interrupting.
Speaker: I was just wondering if your argument was death disparity could be removed by removing a appellant review entirely?
Clinton A. Curtis: No, I do not think the removal of review is what we are directing ourselves to, it is not having meaningful standards to guide that review, so that everyone knows where they are. In other words, if they are going before the Supreme Court of Florida on this issue, you are going to be talking about this, this, and this and it is going to be fit within a frame work. So that, if a particular decision is affirmed or reversed, it is affirmed or reversed because of a clear reason and that is the problem we have with the review that is we have here. There is no standards really that truly guide the sentencer and there is an absence standards to guide the Supreme Court of Florida in its review. So, I am not urging that we can make this statute good by eliminating review, quite the contrary. I would like to reserve the balance of my time for rebuttal, if I may.
Warren E. Burger: Very well. Mr. Attorney General.
Robert L. Shevin: Thank you. Mr. Chief Justice, may it please the Court. I would like to comment on about five different areas in the time that I have. One is to look at the death penalty itself, secondly, the Eight Amendment question I know you have heard a lot on it today but I do want to comment on that question per se. I want to comment on Mr. Amsterdam’s attack on the system because I think that is pivotal and I do not care what he calls it. What he is really doing is attacking the whole system. He is really talking about Due Process regardless whether he calls it Eight Amendment or not. Because he says he is concern about the fairness of the system and that is due process, it is nothing else. I would like to talk about our statute; I would like to talk about our case. Counsel quoted just before he sat down from the Alford case, the Alford or the Alvord case, both of them are in this Court. The Alvord case involve in upholding of the death sentence by the Florida Supreme Court. That case involved a mass murder, a man who wiped out an entire family, he raped and then killed a grandmother, a mother and a daughter. So, I do not think that case speaks to the issue of any discrimination or arbitrariness in the application of the death sentence. Mr. Justice Stewart, you inquired on each of the statutes as to whether they provided full appellate review. The Florida statute does provide full appellate review. The Florida statute, under Florida Law, the Supreme Court can reverse for insufficient evidence, the Supreme Court has the inherent power to reduce a charge from first degree murder to second degree murder to even man slaughter. So, the Supreme Court of Florida has that authority, the Supreme Court of Florida also reviews the sentence. Now, this may be the only case that it is before you in which the sentence is specifically reviewed by the Supreme Court and has been demonstrated in some 19 cases. They have upheld the death penalty in 13 cases and changed it from death to life in six cases, hardly an arbitrary selectivity. When one third of those has resulted in a bringing down of the penalty from death to life. Also, the Supreme Court is required to read the entire record whether or not there is error alleged and all of this we contend is in response to Furman. It was in response to Furman that we created a bifurcated system, that we created standards for the Jury on the basis of aggravating and mitigating circumstances and that we created appellate review of the sentence. Mr. Amsterdam says, death is different. We recognized death as different that is why we provided all these safeguards in death penalty cases, because it is different. And, I suggest to you that he does not want us to treat it different, he wants a different result, not a matter of treatment, a matter of result. I would also point out that our bifurcated hearing goes to aggravation and mitigation and it does involve not just the facts of the murders itself but the unique qualities of the defendant. All of the factors concerning each particular defendant and in each of this cases and I intend to review them, there is a reason why the Supreme Court changed it from death to life, either it had to do family squabble or it affected the age of the defendant or it involved a case in which the defendant had no prior criminal record. With regard to the question of how many cases we had in Florida, Mr. Justice White asked that question several times today. In Florida, we have had in the past three years under the new death penalty law, some 239 cases that have been tried that that could result either in death or life, 239 capital cases. Of those 239.
Speaker: 239 convictions?
Clinton A. Curtis: 239 conviction. Yes, sir. Of those 239, 64 are on death row, 64 accounts for about 29%. Again, hardly arbitrary selectivity, by the same token, Mr. Justice Burger, it is hardly a rubber stamp, it is not a rubber stamp when we have at least, we have 29% of the cases resulting in death. It is not a rubber stamp when the Supreme Court reverses in one third of the cases and reduces it to life but by the same token it is not arbitrary selectivity.
Speaker: General Shevin.
Robert L. Shevin: Yes.
Speaker: You said that, there were 239 convictions. You do not mean convictions with sentence of death, do you?
Robert L. Shevin: No, convictions of 239 cases that went to a Jury where the death penalty could have been returned.
Speaker: (Inaudible)
Robert L. Shevin: Yes, 239 convictions, they made -- some of those convictions might have been --
Speaker: (Inaudible)
Robert L. Shevin: That is correct. Alright, Counsel mentioned the written findings, and I do want to make it clear that the Supreme Court of Florida in the maturing case law on this death penalty statute has required Judges below to enter detailed written findings even when they conclude life imprisonment rather than death. The concept being to allow the Supreme Court to be able to look at those cases as well.
Speaker: (Inaudible)
Robert L. Shevin: No, sir. I do not believe at this point that you could point anything that would indicate whether it is going up or down. I think as far as the number of cases that are going to trial, we have more murders in Florida and as a result we have more cases going to trial and we probably have more men on death row now. And, in response to your question of Mr. Justice Stevens asked, we probably have a few more men, it is not much difference than we did pre Furman.
Speaker: (Inaudible)
Robert L. Shevin: I have not asked in our brief for you to overrule Furman. I do think there is an inherent conflict between McGautha and Furman. I do not think you can reconcile those two cases because in McGautha, you say basically that Juries are going to make the right decision. In Furman you say basically that they may not.
Speaker: (Inaudible)
Robert L. Shevin: Your Honor, the reason why we do not say that is because we came back and adopted the statute with standards and appellate review. We did not adopt the mandatory death penalty statute. We think, we have met Furman and therefore, since we feel we have met Furman.
Speaker: (Inaudible)
Robert L. Shevin: No, we are satisfied with the system that we have adopted post Furman.
Warren E. Burger: But if your case can not clear Furman hurdles. Do you then asked the chairman the overruled? .
Robert L. Shevin: If it can clear Furman hurdles, we would ask it to be overruled but we really do believe that we provided a system that meets the arbitrariness that has been outlawed in Furman. Counsel talked about propensity, and he said this was an issue that came to the attention of the Judge and the Jury and had nothing to do with the aggravating circumstances enumerated in the statute, and the Chief Justice at that point said, well, how did they determine propensity or whether he would be a danger to society, very simply he said, he will kill again. We have a testimony in the record of the psychiatrist of the doctor, and he was asking him, this was subsequent to the trial, the Psychiatrist at the hearing testify this was after they waved confidentiality. He felt that he would do damage to people in the future that he already had done damage to the people that he had killed and as a matter of fact on page 423 of the testimony, “Further more, he was having similar feelings beginning to build up in the cell in which he was confined, and he felt this degree of hostility being directed towards a specific inmate. He told the doctor and this was part of the testimony that the Judge and Jury heard on whether or not he should get death or life. He told the doctor he was going to kill again. That he had this urge to kill again, that he might even kill an inmate in the jail cell.” Now, where, why should not the Judge be able to consider that? Why should not the propensity to kill? Now, when that came to the Florida Supreme Court. They recognized that was not one of the enumerated aggravating circumstances but the Florida Supreme Court through maturing case law on this subject has in effect in several of this cases expanded the aggravation and expanded mitigating circumstances. As a matter of fact, in the Gardner case, they say that a PSI saying that someone is going to be a menace to a society can be considered. In the Hallman case, they said fact that the defendant was non-rehabilitable, can be considered, in our case in the Proffitt case, the propensity to commit another crime was added aggravating circumstances. In the Sawyer case, Sawyer said he was going to kill the judge, he said, when I get back out of the prison, I am going to kill the Judge, I am going to kill the Prosecutor. So, this judicial threat was considered as an additional aggravating circumstance.
Speaker: Mr. Attorney General,just so I understand, the non-statutory additional aggravating circumstances is not a substitute for statutory circumstance, just additional fact that may be considered.
Robert L. Shevin: Your Honor, the statute says that they can consider all relevant material, the Supreme Court has said anything that it is relative of probative value and has not been admitted in violation of a Constitution of the United States or Florida can be considered as long as it deals with either aggravation or mitigation.
Speaker: But it remains true that one of the ten statutory, or whateve the number is, aggravating circumstances must be filed
Robert L. Shevin: Oh yes, I think so. In this case there were four, only one of them was non-statutory.
Speaker: I understand.
Robert L. Shevin: As a matter of fact, I want to point out the fairness of this procedure because the Supreme Court of Florida has also found some non enumerated mitigation circumstances. Again, relevancy is the key. In this Slater case, they reduce it from death to life because a co conspirator had gotten life and they felt it was unfair to give one of them death when the other one got life. So, that was the basis of reducing it by the Florida Supreme Court. In the Taylor case, there was question as to whether he actually pulled the trigger. They were not sure he pulled the trigger and as a result they reduced it because they were not sure he was the trigger man. In the Gardner case, they said intoxication is an unenumerated mitigating circumstance. In the Swan case, it was a non deliberate killing. It was a felony murder and they beat this woman but they said there was no evidence that they intended to kill her. They put her in a closet and because of a preexisting medical condition she died in the closet and the Supreme Court of Florida said that it was basically a non deliberate felony killing and as a result it could be mitigated. In the Proffitt case, what we are dealing with here is a danger to society. He will kill again by his own statement. He has a propensity to kill. He has an uncontrollable appetite to kill which has not been -- which is not synonymous with diminished mental capacity. There has been testimony in the record by two Psychiatrists that he understood the criminality of his act. There was not one mitigating circumstances and there were four aggravating circumstances. Now, Mr. Chief Justice Powell, you asked in the last case what kind of review can be held by the Supreme Court and is there any basis, any standard for that review. In the Dixon case which is our leading Florida case, the Supreme Court of Florida said review by this Court guarantees that the reasons presented in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live in the basis of race or a woman live and the man die on the basis of sex. If the defendant is sentenced to die, this Court can review that case in light of all the other decisions and determine whether or not the punishment is too great. They go on in the case to say that we consider at reasonable to require the Trial Judge to emulate detail written finding even when he imposes light. Even though the statute said it was only required when he imposed death. So, I think that the Supreme Court of Florida has matured this law, has rounded out the circle and has set forth under what circumstances the death penalty can be applied and under what circumstances, it cannot be applied and all of this we contend has been done subsequent to Furman in order to meet Furman.
William H. Rehnquist: How about your opponent's contention that there is the finding in the life cases that they really never get to the Supreme Court of Florida because they entered the District Court of Appeal.
Robert L. Shevin: Well, the, as I point out a moment ago Sir, Mr. Justice Rehnquist, the Supreme Court of Florida has said, we want the Judges to enter written findings, even in the life cases and they have been traditionally argued. Every time someone comes to the Supreme Court of Florida, if they think, there is a life case similar to theirs that ought to get them life rather than death. They rely on it very heavily and those are reported cases in the Southern reporter and they are available to the Supreme Court of Florida. Even though they are not reviewed by the Supreme Court of Florida, we contend they are available and are considered by the Supreme Court of Florida.
William H. Rehnquist: An attorney with a capital sense, arguing in the Supreme Court of Florida And could rely on the District Court of Appeal decisions which have never gone to the Supreme Court of Florida is representing Trial Judges findings as to what justify the capital --
Robert L. Shevin: Absolutely, and as a matter of fact, let me relate to the cases they referred to, because I think this is very significant. On page 85 of their brief they say, “there appears no rational explanation as to why petitioner must suffer death while the convicted murderers Swan and Halliwell and Taylor were spared”. Now, in this case, it was spared after the discretionary review of the Supreme Court, so it is a little different than the question you asked but, let me talk about those three cases. In the Swan case there was a beating, the woman was beaten, again, he did not beat her to try to kill her, he put her in a closet and she died. The Supreme Court said, it was a non-deliberate homicide and that is why they reduced it to life in the Swan case. In the Halliwell case, it was a love triangle, a family squabble no prior record, the defendant in the case was a Vietnamese or a Vietnam war veteran, excuse me, he was a Green Beret, the Supreme Court said he has been desensitized, he was a Green Beret, he had severe emotional disturbance and it is true, after he killed this person, after he killed this man, he cut the body up in to a little pieces and dispose off it and the Supreme Court had to consider was that heinous, was that atrocious? And they concluded that he cut the body up after the killings. So therefore, it was not particularly heinous, atrocious and cruel and that is, I think, a logical position that the Court could have taken in light of the fact that the killing had already occurred. So, there were circumstances concerning the defendant in the Halliwell case. In the Tedder case, again, it was a domestic squabble, there was a killing in this case of a mother-in-law, the Supreme Court of Florida said, it was not particularly heinous, there were no prior circumstances. In the Thompson case, which they rely upon, the defendant was a 17 year old boy, again, with no prior criminal record. Now, the one case they point out, where if I was sitting, I might have reached the different conclusion was the Powers case, the Powers case was a young man in their appendix, I think it is very convenient that they said, his age was not available from the record, his age was available, and his age happened to be 18 and obviously that was the basis on which the Lower Court, this was the case where the Lower Court, the Jury recommended the death, the Judge, imposed life, and in this case it was rather a heinous crime. He broke or he came in to a store, he showed no remorse afterward, he sat the man down on a chair, and he shot three bullets in his head. Now, if I were sitting on that case, perhaps I would have reached a different conclusion and perhaps I would have imposed death. But, what is interesting about the Powers case it does involve a young man who the Court felt below had been culturally deprived, it did involve a young man who was less than 18 years old, who had less than a fifth grade education and under those circumstances, the Judge felt that life was sufficient and the other interesting point, is that at the time, the Power’s case was decided the Supreme Court of Florida had not yet decided Dixon. So, the Lower Court judge did not have the benefit of the Dixon case or any of the maturing case law at the time he imposed life on Powers. The Gentry case is another case, involving a domestic quarrel, no criminal record, fifth grade education. Those are the cases he refers to and we contend that there has no showing of discrimination that in each of those cases, there was not arbitrary selectivity, that in each of those cases it involves cases in which there was ample reasons for mitigation. He does not tell you about a case which is pending in your Court. The Alford case, a case involving the rape and murder of a 13 year old girl in Palm Beach, who was both vaginally and anally assaulted and then shot eight times, twice in the head. He does not tell you about another case pending in your Court involving an 11 year old boy, who happened to be riding his bicycle on the wrong street at the wrong time and was mutilated, torn limb from limb. And, these are the kind of cases, these are the kinds of heinous cases that we have pending has a result of the crimes that are committed in the State of Florida. Mr. Justice Blackmun, you asked at the very beginning of this proceeding, you asked, would not the kind of elaborate statutes that Mr. Amsterdam was complaining about the so called winnowing devices, would not they have been predicted or expected under Furman, and he said, well, we might have predicted mandatory death. Well, let me mention, let me talk about that for just a moment. When I first read Furman and everybody is going through the same throws. What did Furman mean? What did it say? What is required? I was concerned that may be we were required to pass a mandatory death penalty; I did not like that, because I do not think that mandatory death penalties in and of themselves are the fairest kinds of justice. And then, when we reread Furman, we particularly read what the Chief Justice said, when he said that “legislative bodies may now seek to bring their laws in to compliance with the Courts ruling by providing standards for Juries and Judges to follow in determining the sentence by more narrowly defining the crimes for which there to be imposed or determining or providing standards for Juries and Judges. Well, that is exactly what Florida did, Florida eliminated rape from its capital crime category accepted that it involves the rape of a young child less than 11. So, it narrowed the crimes and Florida for the first time, provided standards. It provided aggravating circumstances and providing mitigating circumstances, and provided by bifurcated hearing, and provided a review, all of these things precisely what the legislature did in response to Furman. But, I think this is more important, when I went to the Legislative Committees and in their brief they quote my statements saying that “mandatory is probably the safest way to go”. And, when I went to the Legislative Committee that is the position I took after having read Furman once or twice, and when I went to the Legislative Committees, the expression of the legislative body was this: “we would rather pass a good law, a fair law, that might be suspect than to pass mandatory death penalty even if it is allowed by Furman” because it is harsh, and that is the kind of legislation that the Florida legislature passed. They did not pass mandatory death. They have attempted to remove the arbitrariness from the system, they have attempted to remove the discretion so that we have reasoned judgment which is the conclusion of the Supreme Court of Florida and they have attempted to have review, which is so very, very important. They agreed, Mr. Justice Blackmun, and with you Mr. Chief Justice, that to provide mandatory death was a step backward. Now, every State had to do their own thing, and had to make their own decision but, that was a decision of the Florida legislature and we have responded to Furman. The petitioner in his brief even though he did not mention it today, in his brief he says, that the death penalty is still being applied dis proportionally to blacks and to poor people. Now, may be that was true prior to Furman, maybe that was true. But, it is not true under Florida’s New Death Penalty Law. In 1973, '74, and '75, those three years since we have had our new law, more blacks have been arrested for killing, for murder than whites. About one third more, and yet on death row today, today, not when the brief was filed, but, today we have 64 people on death row and out of those 64, 34 of them are white and 30 of them are black. So, we actually have more people who happen to be white on death row than black people. Yet, the proportionate numbers of those kinds of crimes being committed happen to be about a third higher going the other way. We think this demonstrates that we have even handed justice in Florida and incidentally, one third, one third of all those on death row in Florida retain their own Counsel, not Court appointed Counsel. So, we do not have just poor people on death row. We do not have just black people on death row. We have even handed justice. Let me comment on the deterrent aspects, if capital punishment does not deter, then punishment does not deter. The whole pain, pleasure philosophy of society is based on the theory that punishment does deter, and the ultimate punishment deters the most. It obviously deters that individual who cannot kill again. It deters the robbers and the rapist who will sustain a greater punishment for murder than for rape or robbery, and therefore may not eliminate, the only eye witnesses to the crime in order to avoid apprehension and we think, it deters homicides generally. Mr. Justice Powell, you commented earlier about the increase in homicides, which you were amazed that had gone over 50%. The figures are really quite higher than that. If you go back and look at the murder rate in this country, in 1930, 1940, 1950, all the way up to 1965, you will find that there were approximately 7,000 to 9,000 murders committed each and every year. That figure has jumped from between 7,000 and 9,000 up to 22,000. This is the decision, the legislature made. This is the decision that they had the right to make and we contend that this is basically a legislative decision that contemporary standards of decency are determined by what the legislature and what the people want. Since, I only have a few moments left, I want to direct my attention, if I may to the question of the system. What they are saying is, that because of this discretion, the system is wrong. Now, obviously, they do not want a system in which only capital offenses can be charged, in which only first degree murder charges can be brought back, in which no clemency can be exercised. But that is exactly what they are saying to us today. Mr. Justice White, in an Argersinger versus Hamlin, you told the State of Florida that it did not make any difference, whether a man was facing a misdemeanor charge or a felony charge, the inside of a jail looked the same. And, I contend that the inside of the jail looks the same, to someone under life imprisonment or five years or 99 years as it does to someone facing the ultimate punishment. If the Eight Amendment argument, if—.
Speaker: (Inaudible)
Robert L. Shevin: The Court said that, yes sir. I was talking about during the discourse of the argument. If the Eight Amendment argument, if the Eight Amendment argument that he says applies only in capital cases. Logically, legally you cannot apply that only in capital cases. True death is different but the Eight Amendment does not apply, just the capital cases, the Eight Amendment applies and has traditionally been applied to less than capital cases, and the Due Process provision talks about life, liberty or property, and if you are going to deprive somebody of life, and you are going to say we cannot do that because there is prosecutorial discretion, Jury discretion, executive clemency. I submit to you that same argument applies to a lifer, and even though Mr. Amsterdam stands before this Court and says, I am only trying to apply it in death cases, there is no way he can foreclose someone who is under a life sentence, coming back to this Court and saying, give me that same protection, equal justice under law. That is what the front of the building says, and that is exactly what a lifer is going to say. That is exactly what a man under five years, 20 years or 99 years is going to say. He is going to say, that if you say the whole system is wrong, then it is wrong as to him as well, and for those reasons, we urge you to affirm this conviction to state in effect that the whole system is not wrong, to state, the capital punishment is not cruel and unusual per se, and that it cannot be applied as an Eight Amendment violation just in capital cases, so as to attack in effect, the entire criminal justice system.
Warren E. Burger: Thank you Mr. Attorney General. Do you have anything, further Mr. Curtis?
Clinton A. Curtis: Mr. Chief Justice Burger, just one or two comments --
Warren E. Burger: I have a question before you start, the growing rate of homicides in Florida at the present time, how many thousands a year or hundred?
Clinton A. Curtis: Off hand, I do not. There has been a number of statistics submitted in the one or more or several of these briefs and that is one of the matters, I would like to address my self to.
Warren E. Burger: There is hardly a large city in America including Washington that does not have more homicides every year than all the European Countries this side of the Iron Curtain. I do not know whether that would be emerged in these briefs?
Clinton A. Curtis: Mr. Chief Justice, if you say it, I will accept that as so. I have never thought about of comparing the two -- I would like to point out that while we have this alleged rate of increase and the number of murders and none of this here, any place in this room is suggesting that we approve of it and every one is uphold by it, but to say that because of the absence of this form of punishment that somehow we are going to effectively treat that particular problem, disallows for the fact that every other form of serious crimes has accelerated -- far greater proportionate and assume, we assume that appropriate punishment is being meted out in terms of what the legislature thinks ought to be done with it. But I do not wish to get in exchange about statistics and what they mean or what the effect will be, but I would like to comment on two things, one Attorney General referred the equal justice under the law. Well, I think that is what this whole argument is about and that is why we are here for. It seems inconceivable to me, that in Swan versus State, where you have what is describe by the Trial Judge, as an outrageous wicked, wild, atrocious, cruel and heinous crime, committed during the course of a robbery, that was the beating death of an elderly house keeper and the Supreme Court in light of those two aggravating circumstances, takes the position that and I quote, “there were insufficient aggravating circumstances to justify the imposition of a death penalty.” Now, if we are going to have standards, which Attorney General Shevin is suggesting that these are supposed to be, we are going to have standards. What is good for Mr. Swan, is good for Mr. Proffitt and if we are going to be measured, if we are going to be measured by the Jury, the Sentencer, or the Supreme Court of Florida. We are being measured by the same rules and that is what we are talking about when we see justice under the law. I thank you very much.
Warren E. Burger: Thank you Gentleman. The case is submitted.


Earl Warren: Number 74, Federal Trade Commission, Petitioner, versus Henry Broch and Company. Solicitor General.
Archibald Cox: Mr. Chief Justice. The Broch case is here on certiorari to review a question very closely related to the question which I've just been arguing to the Court. The writ was issued to review a decree of the Court of Appeals for the Seventh Circuit in which that Court on its own motion modified an order of the Federal Trade Commission in a case arising under Section 2 (c) of Clayton Act, some of the members of the Court may recall that this is the second time that the case has been here. It was here on the merits, that is to say, on the question of whether the Broch Company had violated Section 2 (c) and was decided in an opinion Mr. Justice Douglas reported in 363 United States. There were four Justices who dissented but the merit, as I take it, it has now been settled and the case is here on the question concerning the scope of relief which is certainly parallel and we think virtually identical to the question presented in the Ochoa case that was just argued. Here, there are two questions. The first is whether a Court of Appeals may cut down the scope of a Federal Trade Commission order on the ground that it is broader than the proven violation warrant where the respondent had the opportunity to object to the scope of the order before the Commission, but raised no question about its scope at that time. And we submit that under those circumstances, the Court of Appeals had no -- I don't -- no authority, I was about to say, I was hoping the jurisdictional sense as the Court of Appeals erred in cutting down the scope of the order. Assuming that the Court decides that question against the Government, then the second question is raised, which is whether the Commission upon finding that a seller's broker has unlawfully passed on part of his commission to a large scale buyer as way of producing price or the buyer's cost in violation of Section 2 (c). Then has the Federal Trade Commission discretion to forbid the buyer from engaging in the same unlawful practice in relation to other buyers and sellers or must the Federal Trade Commission order be confined as a matter of law to unlawfully passing on the brokerage in future sales between the same seller and same buyer, leaving in freeze, so far as the order is concerned, to repeat the unlawful practice in sales for other sellers to other buyers. The facts of the case, they recall, although I think I need to do it only briefly. Upon the usual proceedings, the hearing examiner found that the respondent Broch was a broker engaged in selling food products for Canada Foods with the understanding that his commission would be 5%. Now, Canada Foods had fixed the price of a $1.30 a gallon for apple juice. A large scale prospective buyer, Smucker, had through another broker offered at $1.25. It then replied the price was $1.30 and the word got out that the only way the price could be reduced was by -- reduced by the broker. Broch then arranged two sales from the Canada Foods to Smucker at $1.25. Broch agreed to reduce his commission from 5% to 3% so that Broch absorb two and a half cents a gallon and Canada Foods absorb the other two and a half cents a gallon in order to make the sale to Smucker. The initial decision as it's called in the Federal Trade Commission the trial examiner's report, as I fear, I may call it at familiarity with the Labor Board, found these facts and recommended an order against the respondent. The proposed order is significant. It appears on page 202 of what we call the old record because it's the record that was used when the case was here on the merits and it's somewhat the fatter of the two brown volumes. The order directed -- the order proposed that respondent be directed forthwith to cease-and-desist from paying, granting or allowing, directly or indirectly to the J.M. Smucker Company or to any other buyer and the critical words in this case are the words “to any other buyer” or to anyone acting for in behalf of -- or in behalf of or subject to the direct or indirect role of such buyer, what is forbidden to pay, grant or allow any allowance or discount in lieu of brokerage, or any part of percentage, by selling any food products to such buyer at prices reflecting a reduction from the prices at which sales for such food are currently being affected by respondents for Canada Foods Limited or for any other seller principal, and the words “or any other seller principal” are in controversy as the case maybe, where the reduction in price is accompanied by a reduction in the regular rate of brokerages is another. And then paragraph (2) again, orders Broch to cease-and-desist from in any other manner paying, granting or allowing directly or indirectly to the J.M. Smucker Company or to any other buyer, anything of value as a commission brokerage or other compensation in connection with any sale of food or food products to such buyer for its own account. In other words, they ordered, proposed that the respondent be directed to cease from unlawfully passing on its brokerage commission as a way of giving the buyer a lower price not only in making sales on behalf of Canada Foods to Smucker but in making sales on behalf of any other seller to any other buyer of food products. When the hearing officer made his initial decision, the respondent filed a notion of appeal to the full commission. And Commission has rules relating to the way in which appeal should be taken and specifically to the way in which points shall be raised on an appeal. The pertinent rule appears at page 45 of the new record. Down at the -- below the heading which is about the third of the way down the page. You'll notice that first it speaks of who may appeal and then content of appealed brief. The appeal should be in the form of a brief and shall contain in the order indicated below the following. A list of the questions involved and to be argued, an argument presenting clearly the facts of law, in fact it relied on in support of a position taken on each question. Respondent filed a brief in that form. The brief made no objection whatsoever with the respect to the scope of the order. In other words also, there was a case where the examiner not only dealt with the substantive question of whether there was a violation but also recommended a specific order so the respondent had full warning of what was proposed. His brief was confined to arguments that he hadn't violated Section 2 (c) and there's nothing whatsoever, which even suggest any objection to the scope of this order, assuming that a violation of Section 2 (c) was found to occur. The Federal Trade Commission's decision approved in general the theory that the examiner had adopted. And specifically, the Commission entered the order which was in the examiner's proposed -- in the examiner's initial decision. The case was then taken to the Court of Appeals in the Seventh Circuit and again, the argument went to the substantive questions of law and there was no suggestion that if the substantive questions were ruled against the respondent that the order was still too broad. The Seventh Circuit sustained the respondent's position on the merits. Your Honors will recall that it held at Section 2 (c) was not applicable to a seller's broker and also that the respondent, Broch, did not make any allowance in lieu of brokerage. That decision was reversed, as I said earlier, in an opinion in 363 U.S. written by Justice Douglas and four members of the Court dissenting.
John M. Harlan II: Could I ask you this point, there's no provision, general provision (Inaudible)?
Archibald Cox: There is no provision in the statute comparable to 10 (e). I shall argue that the same rule exists as a matter of administrative law and the decisions of this Court. There's no statutory provision that is comparable with the respect to raising questions below. When the case got back to the Seventh Circuit, the respondent filed a motion to set aside or modify the order of the Federal Trade Commission. And he raised what I think we can conveniently describe as three kinds of questions. First is the Court to find that the allowance in that particular case had been justified by various economist and competitive considerations that argued that that was a question that hadn't been decided by this Court. The Seventh Circuit apparently denied that argument. His second request before the Seventh Circuit was that it modify the order of the Federal Trade Commission in relation to the kind of practice that it prohibited. The argument stated very shortly was that the order forbad the respondent to do certain kinds of things which this Court had not adjudicated in the case of the merits and then it was to - I think in vertical direction, it covered too many kinds of conduct. It was phrased in the words of 2 (c). The Seventh Circuit was apparently persuaded by that argument because it didn't modify the order in that respect. The third type of objection raised by the respondent in the Seventh Circuit was that the order didn't simply forbid him not to engage in these unlawful practices in effectuating sales between Canada Foods and Smucker but told him not to engage in the unlawful practices at all. And he objected to that on the ground that such an order was too broad because the only sale – sales, there were two of them, proved in the record where sales from Canada Foods to Smucker. The Court of Appeals denied the respondent's motion in all respects. Then on the Court's own motion, it entered an order striking out the words “on behalf of any other seller” or “in sales to any other buyer” so as to confine the order to one to stop passing on brokerage unlawfully when you're selling goods from Canada Foods to Smucker.
Speaker: (Inaudible)
Archibald Cox: Well, it gave no explanation, Your Honor. And I could only speculate. This was the same Court, if my memory is correct, that had decided the Brandman Iron case. I think its reasoning, and I do want to make it clear, I'm just speculating. I think its reasoning must have been this that it recognized that under 10 (e) now, I'm now speaking of the labor case, the respondent had no right to raise such questions. And I infer that it assumed that the same rule was applicable under the Tucker Freight Lines case, other decisions even so there was no such provision in the statute.
Felix Frankfurter: It's very (Voice Overlap)
Archibald Cox: Then mistakenly, I think the Court felt that although there was no -- although the respondent had no standard, nevertheless the Court on the theory in Justice Stone's concurring opinion in Cheney had an -- a Court responsibility, a judicial responsibility for the order and that on its own motion, it had power to change it. Now, of course, in doing that, it overlooked several decisions by this Court. One in a case involving the United Mine Workers written by Justice Brennan, another in a case coming from the Federal Power Commission where it was squarely held in each instance in the Federal Power Commission case after some discussion that the same statutory provision forbids the Court to look at objections that were not raised below on its own motion because indeed the language, if you look at the statute, was that -- was that the Court shall not consider. It wasn't that the respondent shall not raise. Now, I'm told -- I want to infer that I've made one mistake. I was under the impression with the Brandman Iron case was a Seventh Circuit case. I am now told that I am in error that it was a Sixth Circuit case and at my attempt to explain what the Seventh Circuit did on the basis of the Brandman, the Court said they're innovated in -- in that opinion, maybe a nice theory but it doesn't correspond to the facts.
John M. Harlan II: (Inaudible)
Hugo L. Black: May I ask if this case preceded or followed the First Circuit's opinion which we just considered?
Archibald Cox: It -- the order in this case --
Hugo L. Black: (Voice Overlap) Court of Appeals.
Archibald Cox: -- entered November 3, 1960, it followed by months and a half Judge Aldrich's opinion in the First Circuit.
Hugo L. Black: In which they had acted on their own motion.
Archibald Cox: In which they had acted on their own motion. I do not know whether that case has been called to the Seventh Circuit's attention by Mr. Rowe. There maybe some connection there obviously. Now, that the case is here, our argument is two-fold. First, we submit that the court below erred as a matter of law in cutting down the scope of the Federal Trade Commission order in a case where the respondent had the opportunity to raise a question concerning the scope of the order before the commission and failed to do it in violation of the Commission rule. Second, we say that if the Court considers the merits of the order, that the Commission's order was proper and then it was not required to limited its order to cease-and-desist to sales made on behalf of Canada Foods to Smucker, but could forbid the continuation of the unlawful practice in sales between any buyer and so on. I would emphasize first that petitioner again did not raise the contention before the Federal Trade Commission. You'll recall that the hearing examiner did recommend this precise order that the rules concerning appeals to the Commission require you to set forth what your exceptions are in the form of questions presented in the brief and that this was not done. Now, the respondent offers two arguments. First, he says, “Well, the Government says in its brief that the Federal Trade Commission that does consider the scope of orders even so no exception is made by the respondent.” And of course that is true up to a point. Now the Commission has a responsibility for the order that it enters and as I understand it therefore, it does consider in general but it takes the scope where the order should be and if there's nothing that appears wrong with it, as proposed by the examiner, then it goes out. But I submit that that is an altogether different kind of consideration from the consideration that it administered in agency or a Court will give to -- an order or a question where the problem is raised. It's not unlike the situation with respect to a Judge's charge. He considers what he instructs the jury but of course the rules required the party who objects to the charge to point out to the parts that are wrong and so that the Judge may really concentrate his attention on it and consider whether a change should be made, what the precise facts are in some detail and so it is with an administrative agency unless the point is raised, the type of consideration is bound to be different from what it is where the point has been thoroughly briefed and argued. The respondent's other proposition as I understand it is -- well, we challenge the order at every turn. That of course is true but a challenge to the order of the merits raising questions of statutory interpretation or questions of the fact on the record is quite different from a challenge to the scope of the order which is to be entered once the unlawful practice is established. Respondent suggests that after the case went back from this Court, it asks for administrative consideration of the scope of the order. But it seems to me that the record hardly sustains that. What the respondent did was to request the Court of Appeals to summarily set aside or modify the Commission's order or to remand the proceeding for appropriate further action by the Commission itself. This was not in any sense a request to the Commission and indeed, it wasn't any primary request anyway. It was a sort of a falling back. If you won't give me what I want, we'll then send it back to the Commission. It didn't ask the Commission to do anything.
Potter Stewart: Well, could it -- our remand went to the -- what was the judgment of this Court?
Archibald Cox: For further proceedings in accordance to this (Inaudible).
Potter Stewart: Well, the case went back, I --
Archibald Cox: The case went back to the (Voice Overlap)
Potter Stewart: Yes, Commission.
Archibald Cox: That's correct.
Potter Stewart: And so --
Archibald Cox: But the Commission responds and argues, I see no reason to challenge it, would have the power to modify its order under those conditions.
Potter Stewart: Only if the case where remanded by the Court of Appeals to the Commission, wouldn't that be true?
Archibald Cox: I --
Potter Stewart: I don't know.
Archibald Cox: -- I guess -- well, I thought -- it suggested in Mr. Rowe's brief that I thought no reason to quarrel with him --
Potter Stewart: Well --
Archibald Cox: -- that the Commission could have done it even while the case was pending before the Court of Appeals for the Seventh Circuit. We said that --
Felix Frankfurter: I think that – don't you think that was a very dubious proposition.
Potter Stewart: So should I.
Archibald Cox: Well I was surprised I confer this. But as I say, I saw -- I saw no reason to argue and indeed without any disrespect, may I suggest that it's irrelevant anyway because the point is that of course it was not presented to the Commission. I don't say he didn't do everything he could at that stage. But he hadn't done what he's required to at the time he was required to do it.
Potter Stewart: What's the – the usual practice is -- you already told us this but if so I missed it, was the -- was this point ever raised in this Court --
Archibald Cox: No.
Potter Stewart: -- before any other case?
Archibald Cox: No, and it wasn't raised in the Seventh Circuit.
Potter Stewart: Or wasn't raised in the hearing.
Archibald Cox: It was the first time --
Potter Stewart: On a petition for rehearing here, it wasn't -- it wasn't raised then, was it or --?
Archibald Cox: It wasn't raise here in a petition to rehear it, no.
William J. Brennan, Jr.: Well I am sorry. When was it first raised?
Archibald Cox: It was first raised on the -- in the motion filed by the respondent in the court below when the case went back on remand from this Court.
Charles E. Whittaker: That -- with this Court's opinion in the Broch case is not the source of the cities felt need to revise its order. Isn't that what -- or maybe it is that gave rise to the need?
Archibald Cox: I don't -- I don't recall. I don't think I noticed anything in this Court's opinion. It would suggest that the -- this order should leave the respondent free to commit this -- this unlawful practices.
Charles E. Whittaker: No, but the majority's opinion as I recall finally limited the decision ad hoc really to the facts of this particular case, isn't it?
Archibald Cox: It was certainly a narrow opinion and it put aside some preference. Now, with respect that Mr. Justice Whittaker, I think that -- well, perhaps you thought of it before, it's quite true that in arguing the scopes of the order in terms of the kinds of practices forbidden that Mr. Rowe pointed out in the Seventh Circuit as he does here to the fact that the Court has not ruled in this case upon all the questions that might arise concerning the interpretation of Section 2 (c). But it should be remembered that the court below did not adopt that theory. It didn't modify this order in terms of the kinds of ways of passing on brokerage that would be forbidden. It simply cut it down with respect to on whose behalf you could engage in the unlawful practice. So it would seem to me that in terms of the scope of the order with respect to parties, if I may use what isn't a really accurate word with respect to person's effect, there was nothing in this Court's opinion to justify raising a point. And the other point was not sustained by the Seventh Circuit and of course, there was no cross-petition, so it isn't properly here because if there were merit to it, which we denied, it would require a modification of the decree at that kind of a point may not be presented to the Court unless it is raised by the respondent on a cross-petition.
Felix Frankfurter: The truth of the matter is that the question of the scope of the review, the order as such -- I mean the scope of the order wasn't an issue at all, and particularly --
Archibald Cox: No.
Felix Frankfurter: -- in original case.
Archibald Cox: No, it won't.
Felix Frankfurter: Naturally enough, the Federal Trade Commission didn't raise it and they will contend the sweeping decision they had below. Isn't that the truth of the law?
Archibald Cox: It was -- I think it was natural that it was raised here and I don't hold that against it.
Felix Frankfurter: No, no, no --
Archibald Cox: It's the failure to raise it for the Commission.
Felix Frankfurter: I'm not -- I'm not thinking any --
Archibald Cox: (Voice Overlap) Yes.
Felix Frankfurter: I'm not giving debit and credit. I'm just saying, explaining that this question is quite out of the case when it was new.
Archibald Cox: That is correct. I think so too.
William J. Brennan, Jr.: May I get this clear Mr. Solicitor, your position here is the same. It should have been raised before the Commission even before the order of the Commission order to review.
Archibald Cox: It should have been made as soon as the hearing examiner made what they call an initial decision or a proposed decision, setting forth the report, the order that he recommended because at that time, the respondent had fair notice of what kind of an order was proposed. If he had any objections, he should have set them forth then that they could have been examined and any additional relevant facts could have been put in the record and that I think indisputably, he failed to do.
Felix Frankfurter: Do you think -- do you think he was foreclosed at that point that in as much as this was a broad to his attack, the applicability of the statute. He couldn't, if he -- well, if he attacks that before the Commission and then came before the Court, he certainly weren't open for him to raise that before the Board -- the Court?
Archibald Cox: I would think not since he failed to raise it below. I think he could have raised it perhaps but we don't need to pass on this. I think perhaps he could have raised it on a petition for reconsideration, rehearing before the Commission after it had passed on the main question.
Felix Frankfurter: But I should think you just, do you think he could have raised it after he had succeeded in his main play that the whole thing was beyond the power of the Commission?
Archibald Cox: Raised in here --
Felix Frankfurter: Even (Voice Overlap)
Archibald Cox: No, I would think we hadn't presented it to Court.
Felix Frankfurter: No, no, no. If he -- he challenges the statutory applicability to this situation. He succeeds with the Court of Appeals and that everything what was he concerned with, then he comes here and losses, do you think thereafter, he couldn't have -- that will know that the substantive law question is raised, I now --
Archibald Cox: I think not for this reason. I think a good way to test the point is to inquire whether when he first went to the Seventh Circuit, he could then have said to the Seventh Circuit, point one, there was no violation of Section 2 (c); point two, even if there was, the order was too broad. And I would say that he could not -- that that indeed is the very state that the rule of administrative law is directed to and that while we can get it more complicated by bringing different courts in, that they all come back to that fundamental (Voice Overlap)
Felix Frankfurter: That's all or nothing for him and he went before the Court of Appeals. His position was all or nothing, (Voice Overlap).
Archibald Cox: It had to be.
Felix Frankfurter: That's your position.
Archibald Cox: It had to be. Now, I would -- I would like to recognize one possible distinction in going through these cases, it does seem to me that sometimes this situates -- sometimes this situation develops. There may be two disputes with respect to the substantive meaning of the statute. For example, let's assume that instead of one kind of practice here, there has been different ways on passing on broker, that he might have said, point one, the statute doesn't apply at all to a seller's broker which case you wouldn't have to go on by the second question. He might say, point two, leave it if he applies to me and practice A is on unlawful, it doesn't forbid practice B. Now, I will take if he had raised that substantive question, his failure to raise the parallel question with respect to the scope of the order would be immaterial because he's -- he's attracted attention to the question. But here, of course, the underlying question is whether unlawfully passing on brokers, underlying question for the Commission, would have been whether unlawfully passing on brokerage to Smucker, the sales from Canada Foods, properly gave rise to an inference that unless restrained respondent would give way to pressures from big buyer -- other big buyers in similar situations or was there's something so peculiar about the relations between Canada Foods, respondent to Smucker that the fact that he'd committed the unlawful practice in that instance, gave no reason as supposed, that he would commit the unlawful practice on behalf of that another seller. Now, that type of question, there was nothing in his presentation before the Commission that would have directed its mind to that type of question. So I do think that some of the general statements we've been made permitted that distinction.
Earl Warren: We'll recess now.