Earl Warren: Mr. Goodrich, you may proceed.
William W. Goodrich: Mr. Chief Justice, may it please the Court. I like to start by taking up -- taking up a statement made by my opponent that Red 32 is just like salt. It is not. The record shows that one third, the weight of 100 milligrams that is which is roughly one third of the weight of an ordinary five grain aspirin tablet. Now, Red 32 is a laxative dose to mean. And the Secretary in denying the motion to reopen based part of his refusal on the fact that Red 32 had been involved in a -- an acute episode of poisoning from a single food. A 196 children and adults have been poisoned from one single food popcorn containing between 3000 and 9800 parts per million of Red 32 which established that if the corn was not restricted and used, certainly it had the potential of causing serious consequences if left unregulated in the dark. It can be known --
Earl Warren: When was it used in the popcorn?
William W. Goodrich: Sir?
Earl Warren: When was it used in the popcorn?
William W. Goodrich: It's used in the popcorn after this case was first decided by the Secretary and before the motion to reopen was acted upon.
Earl Warren: That's not being used on popcorn now? I gathered it was (Voice Overlap).
William W. Goodrich: There's no -- the -- there's no legal restriction against this being used on popcorn except the judgment on the Fifth Circuit. Now, the Secretary's order would have taken it out of all foods, drugs and cosmetics. Now, it's now in oranges and in any other food in which it's economically needed as a -- as a necessity. Now, the toxicologist who testified in this case drew a distinction between Red 32 and salt. He recognized that salt maybe of use and that some consequences could flow from 3 or 4 ounces of salt taken at one term. But he also drew a comparison with carbolic acid. He testified that on a chronic basis, that is a long term use of a small amount of Red 32 or carbolic acid everyday in the diet, Red 32 was substantially more toxic than carbolic acid. Now, my opponent's implied to the Court that the amounts tested in the new scientific work between 1951 and 1953 were massively higher than what had already been tested back in the early 1940s. That is not true. The exhibit is set forth in full beginning on page 239 of the record and it shows the various levels fed to the entire series of animals. What actually happened, the toxicologist started off with 2% in the diet, killed all of the rats within a week. He then went down to 1%, killed them all within two weeks. He went down to a half percent, killed them all in 21 days and went on down to where he was at one tenth of a percent of the diet, which is the lowest level fed for the animals to survive any period of time to allow for an evaluation of toxic potential. Now, the record also shows that the rats which had 1000 parts per million or a tenth of 1% of the diet had a heart damage where there was no heart damage to the animals fed in somewhat higher level. And the pathologist himself remarked on the fact that this showed the significance of long term exposure to a toxic substance of this kind. We are concerned here not so much with whether a man is going to drop dead tomorrow from eating three or four oranges or 2500 oranges. We don't expect man to eat 2500 oranges per day, but we do expect that he'd be not exposed to the insidious effects of a small amount of a known poison in his diet over his lifetime. That the very least that should be required is a positive showing that no possibility of harm can come to him.
Felix Frankfurter: Mr. Goodrich --
William W. Goodrich: Yes?
Felix Frankfurter: -- suppose we were to accept the tender which can effect the -- what the respondents made that the -- the certification of the Secretary was based on evidence or based on a record from which harm could be -- be used only by the taking by taking massive amounts of this coloring matter into the human system? Suppose we were think and this time, treating it as broadly -- very broadly. But that's essentially what I got out of their argument. I do not mean that's all I've got.
William W. Goodrich: Yes, I'm not sure --
Felix Frankfurter: (Voice Overlap) writing about citrus fruits in -- in Florida but assume that was the -- because that was the correct issue that I have to decide for myself, what do you say to that?
William W. Goodrich: I would not know how to define massive doses. I would say that the decision here must be -- must be based either on 406-B harmless or the Court must go to the next section, 406 (a) and tell the department --
Felix Frankfurter: Supposed I based it on 406 (b)?
William W. Goodrich: 406 (b)?
Felix Frankfurter: And therefore, I have to decide whether harmless means the matter of what non-existent circumstances in the real world would bring about harm. That's what harmless means. If it doesn't satisfy impossible -- practically impossible situations to reach but when they are reached, there might be harm.
William W. Goodrich: I -- that's sir --
Felix Frankfurter: Is that what you're -- is that what you're tendering?
William W. Goodrich: No. My answer is that if there's any possibility of harm from this color in its unrestricted use in food, it must come out of food. And that has been positively shown here.
Felix Frankfurter: Any possibility that -- that your imagination can conceive of?
William W. Goodrich: No. A possibility that's a real one to a trained toxicologist, I assume neither you nor I would undertake to establish or decide this scientific question. That's the reason it was put within the realm of the part.
Felix Frankfurter: But not -- but not harm abstract?
William W. Goodrich: No, not harm --
Felix Frankfurter: Harm in reference to the application of this coloring matter to oranges and some other things.
William W. Goodrich: In our reply brief, we quoted from the toxicologist saying that this color was being used in foods, drugs and cosmetics without restriction and that the data we had submitted showed positively that it was not harmless for use in all those products.
Felix Frankfurter: In all those --
William W. Goodrich: Now, that was the basis of the decision.
Felix Frankfurter: And those materials would be brought to the Secretary when the action was taken?
William W. Goodrich: They were, Your Honor.
Felix Frankfurter: And on that record that they went before the Court of Appeals to have that order in effect declared ultra vires.
William W. Goodrich: Yes, sir. And the Court of Appeals agreed that the Secretary handled the broad question properly but gave us -- I believe you, yourself put it, some relevance to the economic factor. And as the dissenting Chief Justice, Chief Judge of the Court of Appeals pointed out, the economic factors were allowed to overweigh the words of the statute and the facts on which the Secretary acted. Now finally, my opponents do not argue that this color can be used in an unrestricted way in foods. They are suggesting they are tendered to you as that -- the Secretary be ordered to restrict it to two or three foods and to fix tolerances. Our entry is that the only statutory basis for that is 406 (a), which we believe is not applicable. We feel that if new law, if tolerances ought to be established, if we ought to undertake this grave responsibility of fixing safe levels of unknown poison in food, we should have a policy mandate from Congress to do so. We have handled insecticide differently from colors because Congress told us to do so. And fixed upon the department, the great responsibility of regulating highly toxic, insecticidal substances at levels which was -- from which no harm would come. Every time Congress has opened the food supply to the danger from poisons, however, they have done so cautiously and certainly the word “harmless” does not indicate an intent to venture into any such realm.
Speaker: What about this -- let me ask you --
William W. Goodrich: Yes.
Speaker: How this new color be (Inaudible)
William W. Goodrich: One of the statements made by one of the gentlemen was it was 10 times more safe, the other one, it was 50 times more safe. Since we don't know how a toxic Red 32 is, no such comparison can be drawn. I have not studied the scientific presentation. I understand that it was presented to the department. That our toxicologist said on the basis of the scientific study made, he could not classify that color as a harmless substance in a pharmacological sense and that was the end of it. That if Congress wishes to undertake this, then, Congress can say so. It has not been undermined of the peculiar situation in which the orange growers find themselves. Thank you.
William J. Brennan, Jr.: May I ask you one other question.
William W. Goodrich: Yes, sir.
William J. Brennan, Jr.: With reference to the use of this Red 32, does any claim or does the evidence indicate it has any value except as for coloring?
William W. Goodrich: No. It has never been suggested for anything other than our appeal, artificial coloring. Thank you.


Warren E. Burger: We will hear arguments next in 69-5030, Jackson against Georgia. Mr. Greenberg you may proceed whenever you are ready.
Jack Greenberg: Mr. Chief Justice and may it please the Court. This case is hereon certiorari to the Supreme Court of Georgia and it raises in another context the questions of the preceding case and that is whether the imposition in carrying out of the death penalty in the case that one convicted of the crime of rape constitutes cruel and unusual punishment in violation of the Eight and Fourteenth Amendment to the United States Constitution. A petitioner, Lucious Jackson was sentenced to death for the crime of rape by the Superior Court of Chatham county Georgia in 1968. His conviction was upheld by the State Supreme Court against Eight and Fourteenth Amendment policies. Petitioner was 21 year old, black escaped convict who has been sentenced for three years apparent to automobile’s theft. He is out of captivity for a period of three days and while out of captivity he allegedly committed several crimes as well as the rape for which he was convicted. The State evidence was that he broke into the home of a white housewife, the wife of a physician, threatened her with a pair of scissors, doles $5.00 and some change, engaged in a physical struggle with her, raped her, escaped when the maid arrived and hid in the neighbors garage for several hours till he was found. The prosecutrix in addition to having been raped, suffered from abrasions and lacerations but no additional injuries appeared. The petitioner was indigent and represented by court-appointed counsel, apart from pretrial motions asking for appointment of a psychiatrist, a change of venue and a continuance to allow time to prepare the case. The Defense presented no evidence. The trial including a separate proceeding held in the morning the determined the petitioner is competent to stand trial, last but one day. Procuring only the base evidence and the petitioner is a Negro and on this record they sentenced him to death. The jury acted under Georgia Law, Section 26-1302 which appears in page 1A of our brief which is that -- was at that time, it has been changed slightly. The crime of rape shall be punished by death unless the jury recommends mercy in which event punishment shall be imprisonment for life. Provided however the jury in all cases may fix the punishment by imprisonment and labor in the penitentiary for not less than one year or more than twenty years. In the two cases just argued Akins and Furman, the petitioners urged that the death penalty in cases of homicide constitutes cruel and unusual punishment. Hereto in this case, we urge that the death penalty in the case of rape constitutes cruel and unusual punishment. And for a moment, I would like to focus on the word unusual. Infliction of capital punishment for rape is indeed the most unusual of punishments for any crime in the United States or indeed in the world. At this point, I am going to speak for a moment too about racial statistics, there have been some questions about racial statistics and statistics that may or may not be judicially noticeable. All the statistics that I will relate come from National Prisoner Statistics, their publication of the United States Department of Justice. The figures are so overwhelming that at a minimum if they are not conclusive, they have kept the burden upon the respondents who explained them. This is not strange in a racial case, in cases involving juries, schools, employment, voting, figures speak at the Fifth Circuits, have another context and Judges listen and sometimes the figures are not persuasive, sometimes they are conclusive. At a minimum if they are sufficiently persuasive they have kept the burden of explanation upon the other side. Our opponent just said in their brief and have said in argument with regard to other aspects of statistics in these cases that there many questions of the statistics leave unanswered, for example in a rape case, has a death penalty been inflicted because the defendant is a particularly viscous person. Was the crime committed by a group of people? Was a weapon used? Was an injury inflicted? Does the victim have a particular reputation for chastity? Was there a child involved and so forth? We have attempted to answer these questions in another litigation in the State of Georgia. Williams against Georgia in which petitions for writ of certiorari is now pending before this Court, The law of the State of Georgia as declared by the Supreme Court of Georgia in the Williams case is, that the explanations are inadmissible, Williams against Georgia might say is purported to 173 Southeast Second, 72. The explanations of the statistics which we have attempted to put into evidence by testimony and analysis of a representative sample of the rape cases in State of Georgia over a 20 year period, is that it is inadmissible and we would say that the figures that I am about to discuss are probably undoubtedly conclusive on their face but if there are any explanations to be made they should come from the State of Georgia, not from the respondents who have made an effort as to these figures. The crime of rape is punished capitally in the Southern state only, is or was an exception in the State of Nevada which was punished by death where bodily harm was done, that statute has been invalidated and so it is Southern phenomenon only.
Potter Stewart: How was that statute invalidated? By the Court or by the --
Jack Greenberg: By the court.
Potter Stewart: On what basis?
Jack Greenberg: I believe it was invalidated on the campaign against the U.S. Executive Branch. It is visited upon black people in the south overwhelmingly, there have been 455 executions for rape. Since statistics have been kept and of the 445 men put to death, 405 had been black. At the moment, there are 73 men on death row awaiting execution for the crime of rape. Of the 73, 62 are black, one is the Mexican, one is an Indian and the race of three is not known to us. That means that historically since figures were kept and at the present time the execution rate for the crime of rape run approximately at the rate of 90% black defendants put to death were being held on death row to be put to death. In the State of Georgia, 61 men had been put to death for the crime of rape since statistics were kept. Of those 61, 58 have been black and the Georgia statistics run somewhat higher at about a rate of 95%. Now, in the case of Williams against the State of Georgia and in two other cases pending in the State of Georgia, there have been efforts to examine these statistics in considerably more detail. All this matters are pending in Court in the State of Georgia and Williams case is pending here as a matter of fact. In the case of Mitchell against Smith published pending in the Court of Caswell County. The statistics were developed at a very considerable length and it was demonstrated that in cases where a black man raped a white woman, 38% of the defendants were sentenced to death. In a case where any other racial combination was involved, one half of 1% of the defendants were sentenced to death. Now, these are the States where it is well-known, I need not elaborate on this where there has been for many years until outlawed by this Court, in other Courts racial segregation in schools and various aspects of public life are required or permitted, these were also the States and I think it is much more appropriate to the point which had Anti-miscegenation laws until they were outlawed by the Loving case, and there is a long footnote in Loving case which detailed which of the States had those laws. Also with considerable overlap of State which have capital punishment for rape. Now, in the rest of the world and I think that an inadmissible consideration is taken to account. Capital punishment for rape is authorized only in South Africa, Malawi and Taiwan. That is throughout the entire world, certainly across the entire western world which shares our culture, that the entire English speaking world which hears our jurisprudence, throughout the entire United States, throughout the southern part of the United States with the exception of black men, there is slight exception for some small ants and the white ants who suffered death penalty. Capital punishment for rape is a penalty so rare that I think the word “unusual” is perhaps an understatement of the frequency which it appears difficult to think of a punishment which is more unusual than capital punishment for rape. It is unusual in -- look at in other points of view, in Ralph against Warden, the case that tried by the United States Court of Appeals for the Fourth Circuit which invalidated capital punishment for rape in certain circumstances. Judge Butzner sets forth the fact that between 1960 and 1968 there were 190,790 reported cases of rape, by 1971 and 1972, of course the figures are higher. Yet at that time, there were only 70 men on death row for the crime. And the disproportion is to say stagnant as though the punishment is cruel and unusual in any sense of those words. Now, the State of Georgia particularly, the outcome which I have described here, I may not be strange, in fact maybe in entirely it is speculated. There is a legislative history to the Georgia statute which casts considerable life on its reasons for its enactment and the way it is operated. Before the Civil War in the State of Georgia there were two sets of statutory penalties for the crime of rape. If a slave or a free person of color raped a white woman, he was to get the death penalty. Any other rape was punishable by a term of one to 20 years. After the Civil War, the statutory scheme which was on the books in the State of Georgia was repealed and the offense would essentially statutory scheme that we have at this point was reenacted to take its place and we have all these statutes set forth verbatim in the appendix at the end of our brief. And the discretionary death penalty for the crime of rape was enacted into Georgia law and what has happened in the administration of the Statute, this discretionary statute has been essentially what was required under the particular language of the Georgia legislation that existed prior to the Civil War. Looking at capital punishment in general, as for as the crime of rape and the crime of homicide, we find that while it is authorized for a one purpose or another in most of the States, it is in fact almost never applied except in random, unstandardized way against the poorest, the least educated and disproportionately against racial minority. The figures can be put together in various ways, it might be said that, it has been said by some counsel this morning that most of the States authorized capital punishment for one crime or another. Another way of looking at it is that if one takes the past decade, 1962 and takes the State where there have been no executions and going to the past decade, one does not -- one is not confined to the period of time, I mean, judicial stage have been dominating the scripture. If one takes the past decade, one finds that in 24 States in which there has not been an execution or executions might be permitted. One finds nine States in which capital punishment has been completely abolished making 33 States or 60% of the -- 66% of the State of the States of Union which means they have exercised or permit capital punishment for any crime and overwhelming number of jurisdictions in the free world including invalid in England, the judicial chair upon the jurisprudence.
Potter Stewart: Mr. Greenberg, there are now as I understand, 41 States which impose capital punishment under one circumstance or another plus the Federal government, that makes 42 to mention here. Out of those 42, how many -- in how many of those 42 jurisdictions are there now, men awaiting under sentence of death, there are 700, almost 700 people, men and women who are under sentence of death, do you know, in those 42?
Jack Greenberg: I think we have a table here, how many men under sentence of death or --?
Potter Stewart: No, not how many, I know they are about 700 men and women although.
Jack Greenberg: Yes, right, yes.
Potter Stewart: Of those -- in how many States --?
Jack Greenberg: In how many states are there people under sentence of death? I think we have statistics on that here. I just do not have the statement in front of me. There is just so many statistics in all these States.
Potter Stewart: Well, I know but there is (Voice Overlap)
Jack Greenberg: Someone they have not (Voice Overlap)
Potter Stewart: (Voice Overlap) What you are talking about right now is to it.
Jack Greenberg: Yes. Well --
Speaker: Give me, I can get it later.
Jack Greenberg: It hadn't spoken of the question of unusualness -- just awarded to about the issue of cruelty, we will submit that if the word means anything at all in plain English and analysis of a constitution of legislative provision while it does not end with the men with -- but must start with the reading of the plain language. The intentional taking of a life of a prisoner who is held in captivity and has been held there for years, years by any plain understanding of that word “cruel” and I think that the framers of the Bill of Rights recognized that, they may not have thought it was unusual but Mr. Livermore in the debate on the Bill of Rights, in our brief, it is set forth on 7 (d), some of this very little legislative history, spoke about the Cruel and Unusual Clause then it is said that no cruel and unusual punishment is to be inflicted. It is sometimes necessary to hang a man, villains often deserve whipping and perhaps having their ears cut off but are we in the future to be preventive from inflicting the punishments because they are cruel, I mean if they were recognized to be cruel, whipping and cutting off the ears, would not recognize to be unusual. Now, it is unusual for any cause and even more unusual for the crime of rape. As to -- sometimes, the meaning of the term is confined to mode of punishments that is gassing or electrocution or hanging cruel? After that, there are materials set forth in our brief but if the case is reduced to the issue of whether or not the particular mode of execution is cruel, the minimum ought to be made an evidentiary hearing which had been at point some of these cases have discussed that somewhat at length in the last footnote, in 328. In some cases and indeed historically we have looked at the question of proportionality or disproportionality, is it excessive to take a man’s life for any crime or for the crime of rape. And that raises the questions submitted the common view of the death penalty of rape that throughout this country or through out the world. That is the fitness or the unfitness of the punishment. And in this sense through the and unusualness we believe merge and we get back to the question particularly in the rape cases of -- is it disproportionate to take a life for this crime when -- so few countries in the world, no other countries in the world and so few States with this punishment for this crime and then confine it essential to the black people and the note here saying that on death rows there are now thirty men on death row in 34 States. There is one man in Arkansas and 105 in California.
Speaker: Total of 34?
Jack Greenberg: 34 states.
Speaker: We do not know if that includes federal government, I think there are two and is that -- thank you. Other the one in Arkansas, some to be there, is that -- since the Governor Rockefeller's through --
Jack Greenberg: I would think that must be --
Warren E. Burger: His amnesty can be, the 20th --
Jack Greenberg: I think there it's 24, yes.
Warren E. Burger: Those commendations would have been more accurate?
Jack Greenberg: Yes, I believe so, yes. And these cases while they involve this with capital punishment, also involve role of the Bill of Rights in our constitutional scheme. There are faithful cases for racial minorities and not only for the reason for -- disproportion in which capital punishment is inflicted upon black men and Mexican-Americans or particular unit just confined to this case applied with rape. More than the life of a miserable hand from individuals who are involved. No matter how these cases come out, if they are lost, there will be only a few unfortunates put to death out of our national population of more than 200 million souls. The question is what end. Taking a life in the name of the law has no practical effect than the regular administration of justice. It is symbolic act perhaps the kind of a ritual sacrifice which held many things but to racial minority, the black people have held something that how much the law values their own individual lives. It would not be strange if the oppressiveness, the unevenness, the cruelty, the unusualness with which the supreme penalty is inflicted works in effect on how are those minorities use the legal system. The Bill of Rights of which the Cruel and Unusual Punishments clause to the part has long assured that our legal system is just poor and beneficial to all our citizens. The purpose of the Bill of Rights, one of which is welding this nation into a people of equal respect for the reasons for the rule of law can be served only we submit by outlawing the barbarity of gassing, hanging and electrocution in the name of the law. It is suggested that the judgment below should be reversed. I would like to reserve the balance of my time for rebuttal.
Warren E. Burger: Thank you Mr. Greenberg. Mrs. Bea1sley?
Dorothy T. Beasley: Mr. Chief Justice and may it please the Court. This Court has said in Stein versus New York in 1947 that it would not apply the Fourteenth Amendment to standardize the administration of justice has stagnate local variations and practice. And in 1959 in Williams versus Oklahoma, it was said neither the Due Process Clause or the Fourteenth Amendment nor anything else in the Federal Constitution requires the State to physically impose any particular penalty for any crime it may define or to impose the same or “proportionate sentences” for separate and independent crime. That was in 1959. If the death penalty for the crime of rape is cruel and unusual then I would submit that it is an imposition upon the legislative enactment which has been enacted and has been the law in Georgia since -- before in 1851. Rape has consistently taken the death penalty in Georgia and just in 1960, the legislature again considered the penalty for rape. I think it is significant to note that when it did consider the penalty in 1960, it was not whether it should or should not do away with the death penalty for a rape but rather should it leave it to the discretion of the jury to make it in or current sentencing of one year to life or should it be rather one to twenty years or a life and the latter was what went out. But there was no question either in 1960 as to whether the maximum penalty should be the death penalty or not. That is the will of the people of Georgia and there has been nothing shown in this case which would indicate that that will should be overborne by a construction of the United States constitution. The main argument that is made is that the legislative history of the rape statute in Georgia shows that it must be based on racial considerations and I would submit that what Mr. Justice Blackmun said in Stevens when he was the Circuit Judge quoting “Brown versus Allen,” a 1953 case is applicable here. The quotation was former errors cannot invalidate through retrial and I think that is very legitimate here because most of the statistics that are taken by the petitioners brief allegedly show that the only factor which goes to indicate the death penalty for rape in Georgia cases must be rape. I think that those factors or those statistics are used from a period of time in 1930’s, in 1920’s and 1940’s, 1950’s when perhaps there was racial discrimination. We do not know. But the cases are now looked at as to what their circumstances are. Or how heinous they are in comparison to other rape or the proportion of persons, white or black who commit rape and what in factual circumstances of the cases are. And I think that they cannot make the presumption which they indicate here that the jury are looking at rape cases in determining that a man should suffer the death penalty in the last analysis because only of his race. And that is the presumption which the petitioner asked this Court to make, I think there is valid basis for that whatsoever. Moreover, they do not apply it to the circumstances in this case. Their argument is based on generality that well, there are so many Negro men who have been executed for rape in Georgia and there are so many Negro men now on death row in Georgia for rape that it must be because they are black. I think that they have put -- offered no support whatsoever to forward that contention. Moreover, I point out that among those who are now on death row or really not even on death row, they are kept on a different floor. We do not have a death row for prisoners until they have a date set. There are two white men that are now under death penalty for the crime of rape in Georgia and I would question the particulars whether the penalty should be imposed upon them because after all their rape could not possibly have been involved. So, is it not cruel and unusual punishment to them too? It could not be if the consideration is only one of rape. Moreover, if it is a racial consideration, the contention is again a lack of equal protection perhaps, the discrimination that has the reading. But that is not shown, it is not proved, they do not meet the quality of proof that requires to make a prima facie case of discrimination. Secondly, it would be instead an indictment against the jury system. It would be a presumption that the jurors are using a prejudice against rape to indicate what would be an appropriate penalty. That again does not fit to the death penalty per se but rather attacks the jury system and I think there is no basis whatsoever dealing in this case or in this brief by the petitioner to show that that would be so. I would like to point out also that he makes no claim of discrimination in this case. There certainly would be many opportunities to show it. We have the voir dire in which any indications of prejudice could have been shown. It was the motion for a new trial and that would have been an absolutely perfect place to show that a penalty was excessive under the circumstances of the case. The usual practice, to file a motion for a new trial to indicate that the penalty or the verdict was unjust or that it lacked equity so that the Court would have an opportunity to look at the penalty and see where in circumstances of the case which was before it. It was a very lively before it not on an appellate record. The Court itself could measure whether the penalty was excessive in that particular case.
Speaker: Could that be done in Georgia?
Dorothy T. Beasley: Yes sir and it is a usual practice.
Speaker: In other words the jury comes in with a binding of the conviction and then imposing a sentence for 19 years in penitentiary, counsel of the defendant can say that it is way too much under the circumstances that the defendants consider -- (Voice Overlap)
Dorothy T. Beasley: Yes. Under that we call as --
Speaker: Does the Court have the power to change the verdict, does he?
Dorothy T. Beasley: That would be under what we call the general grounds for a motion for a new trial which should be that either the verdict was not supported by the evidence or the verdict was contrary to the evidence --
Speaker: I am talking about the sentence, I thought you were --
Dorothy T. Beasley: Yes, but, well the verdict of course should be, both the finding of guilt and the sentence and that it was unjust or without equity.
Speaker: Does the trial judge have power to change it or only to grant a new trial?
Dorothy T. Beasley: He would have to grant a new trial in that circumstance and also a question would go upon in appeal in a such a situation, the same.
Speaker: But the jury’s -- the sentenced imposed by the jury is final so far as that the sentence. The trial judge does not have power, does he? If the tort has to be changed the sentence, is that a fact?
Dorothy T. Beasley: That is right. In this -- that is correct. That is the province of the jury and of course, the statute was written at the penalty for rape would be death unless it was recommended by the jury that it would be like or that it would be one to twenty.
Speaker: Or I thought alternatively could be for one to twenty years in penitentiary.
Dorothy T. Beasley: Or life, it would be the second alternative.
Speaker: As I understand Georgia, is this and you tell me if I am wrong, if the jury finds some defendant is guilty of rape, it can impose, a sentence of imprisonment anywhere from one to twenty years in the penitentiary or it can impose a death sentence or it can impose a sentence of life.
Dorothy T. Beasley: That is right.
Speaker: Is that right?
Dorothy T. Beasley: That is right but it starts off --
Speaker: Nothing between 20 years and life?
Dorothy T. Beasley: No, that was the question that arose in the legislature in 1960.
Speaker: That is what I thought in 1960.
Dorothy T. Beasley: Right. Moreover, that not only was the question raised in 1960 but we had a complete criminal code revision in 1968, so that the question of penalties and the appropriateness of penalties will be then taken up by a special criminal code commission which was reported to the legislature and of course penalty for each of the crime was considered by that commission, so that there was a reflection certainly of the will of the people in that instance. I think that you would have to also presume if you agree with the presumption that race is included that the juries have some kind of conspiracy. Again, Negro races for it to be consistent for that reason only but I think petitioner show no dissimilarity between those cases which was the only factor being raised, show that it was that factor which made him to go to the penalty and again I would say that that would not go to the invalidation of the penalty but as per se but rather to the invalidation of the county in a particular case and that there is no evidence whatsoever in this case which was 1958, when Witherspoon was applied and certainly they would offend enough to show any jury discrimination in the State. Petitioner says and by the way one of the white men on the death penalty in Georgia proposed, made a proposition that the penalty of death was discriminatorily imposed upon him because he was a white man and only three out of 66 white men had been executed for rape. So that -- it just goes the other way too, it just depends upon you want to look at it and pre-sentence, the question was upheld.
Speaker: I understood Mr. Greenberg’s argument on this branch of the case to be directed primarily to the submission that this is a highly unusual punishment. Highly unusual with that -- in that after all was the grant of certiorari was in these cases. We do not have here before us any protection plan.
Dorothy T. Beasley: That is right.
Speaker: But whether or not this is a cruel and unusual punishment in his argument in this branch of the cases was directed as I understood it to submit into the Court and what an unusual punishment so rarely imposed, it would impose on an identifiable fraction of the defendant.
Dorothy T. Beasley: I think his argument with regards to it being unusual is that, it is unusual because most of the nations of the world or most of the States in the country do not impose it for race but I think that it has to take into consideration what do they impose? If they imposed life imprisonment, that in itself is a very severe penalty and it is a distinction between life imprisonment and death so great that the death penalty prosecutes a grossly disproportionate penalty for the crime of rape, is rape -- you have to look at the nature of the crime and I think that is one of the great fallacies in the argument that had been presented by the petitions in this case. They look only at the criminal, they do not look at the totality, at society too and I think that Mr. Justice Cardozo in Florida versus Massachusetts pointed this out, very clearly he said but justice so to the accused is due to the accuser also. The concept of fairness was not restrained. It is narrowed to a (Inaudible). We ought to keep the balance and I think that that exactly is the answer to the question of whether it is excessive in these cases. That --
Thurgood Marshall: Under the State provides that death, I mean, provides execution?
Dorothy T. Beasley: I do not know Mr. Justice Marshall.
Thurgood Marshall: (Inaudible).
Dorothy T. Beasley: That is true.
Thurgood Marshall: It is true there are others too.
Dorothy T. Beasley: I am sure there are others but I do not know how many there are and those that have -- there has been other States that had the death penalty for rape, that have changed it so that they did not regret through anything, a great deal of lesson I believe. And I do not think that petitioners lay out a case and that is grossly disproportionate with the county particularly to the crime, particularly when we take into consideration and I think you must take into consideration the severity of the crime. Nobody has made a point that armed robbery should not be a capital crime but there the thing is overweight. It is done but whereas a rape is lot -- it leaves a lasting impression on a woman and it certainly is a very severe and very (Inaudible) crime. It is one that does not arrive, if someone lost property but it is invasion of something very, very personal and it is a completely over forbearing of another person’s will and an invasion of someone’s body and I think that when you look at the nature of the crime itself, I think that you could not say that it is grossly disproportionate to provide that kind of a penalty where that thing is a crime.
Thurgood Marshall: What if you shoot a man and make a vegetable out of him, you cannot kill it?
Dorothy T. Beasley: Not at all, I think --
Thurgood Marshall: It is completely emphasized that they did it, he is out of his mind and anything out of the standing?
Dorothy T. Beasley: If he is just shot, that is threat.
Thurgood Marshall: You just cannot have hang him.
Dorothy T. Beasley: That is right but that that fact does not make any less severe to the crime of rape and that the is the question if the only one that we are measuring now as to whether the penalty in this case was --
Thurgood Marshall: I think our problem is to get to the Equal Protection clause.
Dorothy T. Beasley: If there was a lots of Equal Protection then of course that would have to be shown and if there was lack of Equal Protection that goes to that argument and does not anything to do with the abstract penalty itself.
Speaker: What percentage of defendants who are convicted of rape are given the death penalty in Georgia?
Dorothy T. Beasley: Mr. Justice, well I do not know what the percentage would be.
Speaker: Let us assume it was 1 in a hundred, let us just assume, let us just assume that it was 1 in a hundred rapist, convicted rapist who got the death penalty. I am not saying those are the figures but let us assume that.
Dorothy T. Beasley: If that were true then I think we would have to look at the circumstances of the crime. Rape is --
Speaker: Well, let us assume, let us think a further assumption that in all the circumstances of all hundred cases were identical?
Dorothy T. Beasley: That still leaves it up to the jury under our system.
Speaker: Well, I know it does but would say then that the infliction of the death penalty was unusual?
Dorothy T. Beasley: I think not. It would depend on what the other punishments were. I think it were if the other punishments that were given were a term of 20 years then perhaps the death penalty would be unusual for that one case. But if --
Speaker: Let us make that assumption that everyone else were given 20 years, I am not talking Equal Protection, I am just talking about whether imposition of death penalty is unusual.
Dorothy T. Beasley: It may very well be, if there was only one out of a hundred and that was consistent through our history.
Speaker: Why would that be, why would you deem that unusual?
Dorothy T. Beasley: Because it was so rare that it never came up except once.
Speaker: But what is the -- would it not --
Dorothy T. Beasley: But again I would say that that would not make it constitutionally unusual, cruel and unusual because again it would be within the legislative boundaries that were set for that punishment.
Speaker: So you would say no matter how rare, no matter how rare the imposition of the death penalty is, the State has the power to impose it.
Dorothy T. Beasley: Yes, so long as Due Process is accorded.
Speaker: Well, those are substantive process and the sentence could be too apparent.
Dorothy T. Beasley: Yes sir. Then I think it would not be constitutionally cruel and unusual punishment.
Speaker: Do you give any simple content of cruel and unusual punishment?
Dorothy T. Beasley: Yes, I think it has a different meaning. It indicates pain rather than how often a particular punishment is imposed that the context in which cruel and unusual one, indicating lingering death for example or torture.
Speaker: But what about management?
Dorothy T. Beasley: Since that is not used at all, it would be unusual.
Speaker: If it were used in one set of a hundred, the State would have the stand. It would have the power to do it?
Dorothy T. Beasley: I am not sure whether it would or not. The Fourteenth Amendment says that the State may not because a question of life, liberty or property without due process of law which means to me that it may deprive him with due process of law -- of life, or a living or a property and banishment would not be included. As it would not be an acceptable form of punishment in the context of our system of justice.
Speaker: So you are --
Dorothy T. Beasley: That type, it would be a type of punishment that is outside of our reach.
Speaker: So your answer to the rarity of the imposition of capital punishment, to rape is first but even if it is very rare, the State has the power to retain it?
Dorothy T. Beasley: Yes indeed.
Speaker: And is there -- do you have another level to your argument secondly what?
Dorothy T. Beasley: I am not sure there is a second.
Speaker: Well, that is what I wonder, there is not, is it not?
Dorothy T. Beasley: If the State has the power to retain it then it may be obtained.
Speaker: Well, I take it, do you say that it is rare also except Georgia.
Dorothy T. Beasley: I that is correct. Oh! Yes sir. Indeed, I do not think that it is rare because they do have a number of persons like do not at the moment have the exact reform but is in our brief.
Speaker: Is it unidentifiable? Is not that kind of information available in Georgia, out of so many convictions for rape, how many of them in the death penalty?
Dorothy T. Beasley: No. No we do not -- I do not have the information but we do have in our brief the number of those convictions.
Speaker: I thought your opponent purported you would give us the number of death penalties imposed in rape cases.
Dorothy T. Beasley: I think that was in southeastern basis or on the national basis but I have not seen the figure on Georgia itself, State by State.
Speaker: Well, he purported you would give us the figure on Georgia as well?
Dorothy T. Beasley: I do not recall him doing so, if he did, I would like to know what it is. But I do not expect that there has been a recent figure and of course that would only be a recent figure that would show how unusual it would be in terms of this case.
Speaker: But even if it were one in a hundred, only one in a hundred, you would say that they would have the power to impose it.
Dorothy T. Beasley: Yes indeed.
Speaker: I kind of understood you to say that there was -- you did have a second string to your constitutional argument unless if I have misunderstood you and I did not respond to the question just now, my Brother White, I thought you have told him that unusual did not as a constitutional matter within the phrase used in the Eight Amendment did not mean simply grant. And you said that yes it would be if it were only one in a thousand that would be the extraordinary rarity. That did not mean that was unusual within the meaning of the Eight Amendment. And I gather that you meant that that word in the Eighth Amendment meant something other than just rare, that it meant something like some sort of an exotic course off beat sort of method of punishment and used and --
Dorothy T. Beasley: I think it does.
Speaker: Banishment, I thought you would get a second string, you used both.
Dorothy T. Beasley: I think it would be --
Speaker: And did I misunderstand you?
Dorothy T. Beasley: No, I think indeed that is exactly what It means because we thought in both the Fifth and the Fourteenth Amendment of taking life, and taking property and taking liberty, which of course imprisonment. But we do not talk about anything else. So it implies the limitation of illustrating from the defense of our system of criminal justice and other things like torture or banishment would be outside of it. In most instances but by the same token the things that are within the deprivations of life or liberty or property would not be unusual unless of course it was never used for that particular crime. For example, if you use the death penalty for larceny and only one state used it that might be unusual because it was not a common law, well it was. But that is not a good example. But I think you see what I mean the usefulness of the three types of penalty was taken for granted and was certainly even more than that would put right into the constitution.
Speaker: Three types, you mean deprivation of life –
Dorothy T. Beasley: Life.
Speaker: Deprivation of property, deprivation of liberty?
Dorothy T. Beasley: Liberty. Right. And here we are talking about deprivation of life and then it becomes only a matter of degree. The petitioners here say that its excessive for rape although they do go that further and say not only is it excessive but the only reason that they are imposing it in itself is because of rape. But I do not think that is the statistics. Certainly, the statistics don't show that. There maybe of some indication that more Negroes have imposed upon them the death penalty but you again would have to look at the facts of the crime involved to see whether it was excessive and he has made no indication here, has made no claim and no allegations that it was excessive in this case but only if excessive in that sentence.
Speaker: Well, the excessive in this case and in all cases?
Dorothy T. Beasley: It is an abstract principle, that is right. But it does not go as so far as to say well if it is not excessive in all cases then it is excessive in this one. And I think it would reach and I tihnk it would show that it was.
Thurgood Marshall: What would you be -- your answer to the petition in Georgia shows that the only people under the history of Georgia ever given the death penalty in rape or in Mexicans where Mexicans (Inaudible) would your argument be the same?
Dorothy T. Beasley: If that were true I would say that we would again have to look at the circumstances of the crime that if he could show, make out what this Court in terms of prima facie case of discriminations in sentencing, then of course it would be on an individual case basis, the penalty would be invalid and if as a result, no jury convicted or sentenced to white man or no jury sentenced to black man again for the crime of rape.
Thurgood Marshall: Oh! My answer is this that no jury has ever sentenced any white man with rape, and every Negroes convicted rape has been sentenced to death, you would have any problem with that.
Dorothy T. Beasley: That probably would be a prima facie case.
Thurgood Marshall: That is not this case, does it not?
Dorothy T. Beasley: That is not this case and moreover it has nothing to do with whether the death penalty is cruel and unusual punishment. I think in all of this, I mentioned that just a moment before that we have to look also at the crime and not only at the criminal and it was said in the recent case of State versus (Inaudible) in New Jersey in 1971, I think it was pertinent. The first right of the individuals to be protected from attack, that is where we have government as the preambles of the federal constitutional plainly said, in the words of Chicago versus Sturges a 1911 United States Supreme Court case primarily governments exists for the maintenance of social order. Hence it is that the obligation of the government to protect life, liberty and property against the conduct of the indifferent, the careless and the evil minded maybe regarded as long at the very foundation of the social compact. The Bill of Rights was not intended to be neither a primary mission. This is not to belittle the inestimable rights that is consecrated but rather to say that those rights may not be related to speech. The very reason of government itself. Government in these cases has determined that rape and murder under the circumstances of these cases. There, the death penalty as the maximum and we maintain that they should be retained as penalty, thank you.
Warren E. Burger: Thank you, Beasley. Mr. Greenberg?
Jack Greenberg: Mr. Chief Justice and may it please the Court. Counsel for respondent has conceded that of the 61 persons put to death for the crime of rape, all 61 had been black then there would be what you call a prima facie case that there was some sort of specific racial incidents to the penalty. Well, the facts are it is 58 out of 61 and I submit that is different but it is just de minimus.
Warren E. Burger: Mr. Greenberg, did she not add to that? I should follow her to say that would make a prima facie case out of the Fourteenth Amendment, perhaps.
Jack Greenberg: Yes, I was about to come to that that would make a prima facie case under the Fourteenth Amendment. That is correct. Now we are –
Warren E. Burger: But not up here.
Jack Greenberg: We are here under the Cruel and Unusual Punishment Clause of the constitution, not the Equal Protection Clause in which all the questions that might arise on Equal Protection case as to explanation we would submit do not arise when the only issue is, is it unusual, not why is it unusual, how is it unusual, what are the possible explanations and so forth. Here, it is not unusual.
Warren E. Burger: Well, do you suggest Mr. Greenberg on its terminology, I am little puzzled by, could any of the argument, do you consider that punishment is unusual simply because it is infrequent, is it? The term in the constitution is synonymous with the frequency or infrequency?
Jack Greenberg: Well I won't say that is exclusively the meaning, the terms have been used in a variety of ways but one meaning certainly is frequency or rarity on this case. I would say yes that if a death penalty for rape is something that is, you know, almost never used, then it is extremely unusual and we would submit would be under doubt that it is cruel.
Warren E. Burger: But historically it has been used.
Jack Greenberg: Yes. But nowadays almost not at all, either -- I mean, it is confined to a part of the country, to a part of the population of that part of the country in a world in which it is totally non-existent with very rare of a sentence that is the meaning of unusual.
Warren E. Burger: Do you have the figures on Georgia Mr. Greenberg.
Jack Greenberg: Yes. I have some figures.
Warren E. Burger: As to how many people have been convicted of rape?
Jack Greenberg: The only Georgia figures we have been able to find are in, I might say, are set forth in our brief in the Akins case on page 9f, they are not comprehensive.
Warren E. Burger: Well, it is – of course 61 people, and everyone convicted of rape in Georgia, that would not be very unusual about it about –
Jack Greenberg: That is right.
Warren E. Burger: That is about 61 cases.
Jack Greenberg: Right.
Warren E. Burger: So what is the current –-
Jack Greenberg: Well, we have figured only, we have been able to find figures only from July 1964 to December 31,1968. during that period of time there were 299 commitments for the crime of rape, now that does not include for example probation, sentences and the variety of other things but 299 commitments of which 8 men was sentenced to death but the large of those eight men obviously now only obviously were not taken. It should be – none of them actually were taking the figure with circumstances stage of that period of time. That and the citations to all available, that are on page 9f of the brief in paragraph 3. Now, as to all the possible explanations, why it turns out to be 58 out of 61, respondent says that the circumstances of the crime are to be considered. The Georgia Courts will not contemplate that evidence, they will not consider that evidence. There has been an effort to introduce that kind of evidence into the Courts of the State of Georgia.
Speaker: In what kind Mr. Greenberg?
Jack Greenberg: Well, we conducted a very extensive study of capital punishment of it as 20 years in most of the southern States including the State of Georgia and every possible factor that could occur to human imagination that might affect a juror in coming to over crucial penalty was putting to the study of every single record in all of these states. They were all examined. The viciousness of the crime whether a group of –
Speaker: I understand that.
Jack Greenberg: Or something. This was subject to the statistical analysis and an effort was made to introduce it in number of Georgia cases including Williams which is now pending here and one of the issues in the Williams case now pending here is the fact that Georgia Courts would permit a specific evidence.
Potter Stewart: But may I Miss. Beasley on the other hand had told us and as I understood it that in any given case, not only the trial Courts but the reviewing court will consider a claim that the punishment imposed in that case was inequitable as the words you use. I do not know that is the jurisprudence in Georgia and if it was found that it was, it will examine a new trial.
Jack Greenberg: Well, it would not – but the evidence we are talking about in this case is whether or not the penalty is unconstitutional because it violates the cruel and unusual clause, it is very extensive and I think if with the persuasive evidence which if I might say pending in Courts in the State of Georgia would show that 38% of Black man convicted of raping white woman are sentence to death. One half of 1% of all other racial combination.
Potter Stewart: My Question is only processed by what I am sure you would concede that the crime of rape covers a very wide spectrum. It can go from extremely as sort of a crime. To the other extreme involving would say as adult woman or a former boyfriend, something like that and at the heinous extreme it does generally involve a stranger.
Jack Greenberg: On the matter of evidence that goes to the penalty, in Georgia’s single verdict procedure, that sort of evidence as we understand the Georgia law is not admissible. What maybe considered out a motion for new trial is the evidence in the case generally alleged.
Potter Stewart: Circumstances of that particular case.
Jack Greenberg: Circumstances of that particular case but other evidence might possibly go defensively such as let us say the mental stage of the defendant in the case. That is not admissible under Georgia law of this case.
Thurgood Marshall: If you decide to get it in this case?
Jack Greenberg: No, there was no evidence put on in this case. There was an effort to get a --
Thurgood Marshall: It was not presented.
Jack Greenberg: Well, I would say, yes we were in this sense.
Thurgood Marshall: Do you distinguish?
Jack Greenberg: Mr. Justice Marshall what occurred in this case, there was an application to the Court to reform to the psychiatrist to examine this defendant and testify after the question of his sanity. The appointment of Psychiatrist was denied. The Court appointed a psychiatrist solely under question of this competence for the trial.
Thurgood Marshall: Last thing I was talking about was Psychiatrist. I was talking about these figures.
Jack Greenberg: We did not tended these figures in this case. The Georgia Courts upheld it there and it is admissible in Georgia in other two or cases that are now pending.
William H. Rehnquist: But you do not have no ruling under in this case.
Jack Greenberg: We have no ruling in this case. There is no doubt however that this very exhaustive, time consuming and expensive examination of Georgia practice. If our contentions were upheld in any case, it would be applicable to all similar case. But there was nothing pending in the States.
Warren E. Burger: Thank you Mr. Greenberg, thank you Mrs. Beasley. The case is submitted.