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ment, but 235 in support of the bill, in support of the abolition. I ask that these be made a part of the subcommittee's files. However, there are three I ask to have printed at this point in the record: A letter of May 7, 1968, from the Honorable John A. Burns, Governor of Hawaii; a letter of May 14, 1968, from Prof. Steven Duke of the Yale Law School; and a letter of July 9, 1968, from the Right Reverend Bartholomew Fox of New York City.

Senator HART. And as we come to the close of these hearings, I would ask that the record remain open for another 20 days in order that there shall be received statements, responsible statements, from persons for and against the bill.

It happens that no witness has asked to be heard in opposition to the bill. No one has moved out from under the lights to say he wants to keep capital punishment, but this subcommittee would want to be certain that fairness applies. It is for this reason that I ask that the record be held open. This is the attitude of the chairman of the committee, Senator McClellan, who very much wants it to be fair. For this reason, we order the record to be held open for statements for and against, but most particularly those who oppose the abolition of the death penalty, to be made a part of the record, if there are any. Thank you very much.

We are adjourned.

(Whereupon, at 11:15, the subcommittee was adjourned to reconvene subject to the call of the Chair.)

(The following documents were subsequently supplied :)

Honolulu, May 7, 1968.

Senate Office Building,
Washington, D.C.

DEAR SENATOR HART: It is my desire to submit the following written testimony in support of S. 1760 to abolish the Federal death penalty.

While my opposition to the death penalty is based on the philosophic concept that execution by law is entirely in contradiction to the declared purpose of all our correctional systems and the contradiction to the principles of an enlightened and humane society, what I wish to present to your Subcommittee is the experience of the area I know best, the State of Hawaii.

Prior to 1955, the (then) Territory of Hawaii provided that death by hanging be the penalty for murder, first degree; arson; train wrecking and for spying. There had, in fact, been no execution in Hawaii since January 7, 1944, and juries had shown reluctance to return verdicts calling for the death penalty, and two appointed Territorial Governors had delayed and commuted death penalties during that period.

The Democratic majority of the Legislature in 1955 (the first Democratic majority in both Houses in Hawaii's history to that point) seriously considered the existing law and amended it to remove the death penalty from all offenses except murder, first degree. As it happened, the amendment neglected to provide any method of execution so that it was not possible to conduct an execution.

In 1955, I was Chairman of the Democratic Party of Hawaii and I am somewhat conversant with what went on, for I was able to present my views to key personnel in both Houses of the Legislature.

In 1957, when U.S. Representative Spark M. Matsunaga was serving as Chairman of the Judiciary Committee of the Territorial House of Representatives, Mr. Matsunaga introduced a bill to abolish capital punishment entirely from Hawaii's laws. At that time, I was Hawaii's Delegate to Congress and provided such as

sistance as I was able from that distance. The bill passed both Houses, and capital punishment was eliminated from Hawaii's statutes once and for all.

There has been no effort at any moment to have the death penalty restored. Once or twice, after the publicizing of a brutal crime, there has been some temporary and emotional expression for the return of capital punishment, but such expression has found no reflection of strength among our people.

There has been no increase in crime other than that in proportion to the growth of our population and, in fact, the population of our penal institutions is lower than it has been for a number of years.

Our experience has strengthened my own belief, formed during my service of 111⁄2 years as a police officer in Honolulu, that the death penalty serves no useful purpose and that it is an anachronism by the standards professed by our society. While I do not know the experience of mainland jurisdictions, I have never in my capacity as homicide officer, or before or since, known of an individual of means or of family being executed. The poor, the culturally deprived and the unacculturated were executed. In creating and continuing the disharmony of race relations, the injustice of the death penalty has been an unanswerable, ultimate factor.

Therefore, I unequivocally support the abolition of the Federal death penalty. Warmest personal regards. May the Almighty be with you and yours always. Sincerely,

New Haven, Conn., May 14, 1968.

U.S. Senate,

Washington, D.C.

DEAR SENATOR HART: I would like to add my name to those who support your bill to abolish the federal death penalty. I oppose the death penalty because (1) the POSSIBILITY of a death penalty and the consequent reluctance of courts to permit its imposition, has produced, and will continue to produce, a number of decisions in the area of criminal procedure which would not, absent the death penalty, have been made; in other words, the mere possibility of the death penalty greatly distorts the decisional processes in criminal procedure generally; (2) the death penalty undermines that which it is designed to protect: respect for human life, and consequently has little or no deterrent impact; (3) the penalty is discriminatorily imposed upon persons with little money or political power; (4) the penalty is immoral.

None of the aforementioned reasons is the last bit novel or original. However, I can suggest a very practical consideration which may provide an additional prop for your bill, namely, that as presently enacted, the federal statutes authorizing the death penalty are unconstitutional. In United States v. Jackson, the Supreme Court on April 8, 1968, held that the death penalty provision of the Lindberg Act was invalid because the procedures for imposing it heavily favored a guilty plea or jury waiver. The Court's reasoning clearly invalidates the Federal murder statute and all or virtually all other federal provisions authorizing the death penalty. As I read Jackson (I was counsel for Jackson in that case), the only procedure which will permit the jury to participate in the death penalty decision yet which will pass Constitutional muster is a procedure whereby all persons charged with capital offenses have their penalties determined by a jury (probably, a jury other than that which determined guilt). There is no such procedure authorized in any federal statute (or any state statute either, for that matter).

In short, your bill is merely an effort to clear the Criminal Code of dead verbiage, and has no substantive implications whatever.

A copy of the Jackson opinion is enclosed.


STEVEN DUKE, Professor of Law.


No. 85.-OCTOBER TERM, 1967.

United States, Appellant,] On Appeal From the United States District Court for Charles Jackson et al. the District of Connecticut.


[April 8, 1968.)

MR. JUSTICE STEWART delivered the opinion of the Court.

The Federal Kidnaping Act, 18 U. S. C. § 1201 (a), provides:

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"Whoever knowingly transports in interstate commerce, any person who has been unlawfully.. kidnaped . . . and held for ransom or otherwise... shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed." This statute thus creates an offense punishable by death "if the verdict of the jury shall so recommend." The statute sets forth no procedure for imposing the death penalty upon a defendant who waives the right to jury trial or upon one who pleads guilty.

On October 10, 1966, a federal grand jury in Connecticut returned an indictment charging in count one that three named defendants, the appellees in this case, had transported from Connecticut to New Jersey a person who had been kidnaped and held for ransom, and who had been harmed when liberated.' The District Court

1 Count one:

"On or about September 2, 1966, CHARLES JACKSON, also known as 'Batman,' also known as 'Butch'; and GLENN WALTER ALEXANDER DE LA MOTTE; and JOHN ALBERT WALSH, JR., the defendants herein, did knowingly transport in

dismissed this count of the indictment, holding the Federal Kidnaping Act unconstitutional because it makes "the risk of death" the price for asserting the right to jury trial, and thereby "impairs . . . free exercise" of that constitutional right.' The Government appealed directly to this Court, and we noted probable jurisdiction." We reverse.

We agree with the District Court that the death penalty provision of the Federal Kidnaping Act imposes an impermissible burden upon the exercise of a constitutional right, but we think that provision is severable from the remainder of the statute. There is no reason to invalidate the law in its entirety simply because its capital punishment clause violates the Constitution. The Distric Court therefore erred in dismissing the kidnaping count of the indictment.


One fact at least is obvious from the face of the statute itself: In an interstate kidnaping case where the victim. has not been liberated unharmed, the defendant's assertion of the right to jury trial may cost him his life, for the federal statute authorizes the jury-and only the jury to return a verdict of death. The Government

interstate commerce from Milford in the District of Connecticut to Alpine, New Jersey, one John Joseph Grant, III, a person who had theretofore been unlawfully seized, kidnapped, carried away and held by the defendants herein, for ransom and reward and for the purpose of aiding the said defendants to escape arrest, and the said John Joseph Grant, III, was harmed when liberated, in violation of Title 18, United States Code, Section 1201 (a)."

Count two, charging transportation of a stolen motor vehicle from Connecticut to New York in violation of 18 U. S. C. § 2312, has not been challenged and is not now before us.

262 F. Supp. 716, 718.

18 U. S. C. § 3731.

387 U. S. 929.

does not dispute this proposition. What it disputes is the conclusion that the statute thereby subjects the defendant who seeks a jury trial to an increased hazard of capital punishment. As the Government construes the statute, a defendant who elects to be tried by a jury cannot be put to death even if the jury so recommends – unless the trial judge agrees that capital punishment should be imposed. Moreover, the argument goes, a defendant cannot avoid the risk of death by attempting to plead guilty or waive jury trial. For even if the trial judge accepts a guilty plea or approves a jury waiver, the judge remains free, in the Government's view of the statute, to convene a special jury for the limited purpose of deciding whether to recommend the death penalty. The Government thus contends that, whether or not the defendant chooses to submit to a jury the question of his guilt, the death penalty may be imposed if and only if both judge and jury concur in its imposition. On this understanding of the statute, the Government concludes that the death penalty provision of the Kidnaping Act does not operate to penalize the defendant who chooses to contest his guilt before a jury. It is unnecessary to decide here whether this conclusion would follow from the statutory scheme the Government envisions, for it is not in fact the scheme that Congress enacted.

Even if the Government's interpretation were sound, the validity of its conclusion would still be far from clear. As the District Court observed, "even if the trial court has the power to submit the issue of punishment to a jury, that power is discretionary, its exercise uncertain." 262 F. Supp. 716, 717-718. The Government assumes that a judge who would accept the death penalty recommendation appended to a jury verdict of guilt is a judge who would exercise his discretionary power to convene a penalty jury if the defendant were to plead guilty or submit to a bench trial. But the mere fact that a judge would defer to the jury's recommendation hardly implies that he would take the extraordinary step of convening a penalty jury after accepting a plea of guilty or approving

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