Where a state policy is against execution of a condemned convict
who has become insane after conviction and sentence, it is not a
denial of due process under the Fourteenth Amendment to vest
discretionary authority in the Governor (aided by physicians) to
determine whether a condemned convict has become insane after
sentence and, if so, whether he should be committed to an insane
asylum -- even though the Governor's decision is not subject to
judicial review and the statute makes no provision for an adversary
hearing at which the convict may appear in person or by counsel or
through friends and cross-examine witnesses and offer evidence. Pp.
339 U. S. 9-14.
205 Ga. 122, 52 S.E.2d 433, affirmed.
In a habeas corpus proceeding, a Georgia trial court sustained
the constitutional validity of Ga.Code § 27-2602, which leaves
determination of sanity after conviction of a capital offense to
the Governor, supported by the report of physicians. The Supreme
Court of Georgia affirmed. 205 Ga. 122, 52 S.E.2d 433. On appeal to
this Court,
affirmed, p.
339 U. S. 14.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was convicted of murder in a Georgia state court. His
sentence was death by electrocution. Subsequently he asked the
Governor to postpone execution
Page 339 U. S. 10
on the ground that, after conviction and sentence, he had become
insane. Acting under authority granted by § 27-2602 of the Georgia
Code, [
Footnote 1] the Governor
appointed three physicians who examined petitioner and declared him
sane. Petitioner then filed this habeas corpus proceeding again
alleging his insanity. He contended that the due process clause of
the Fourteenth Amendment required that his claim of insanity after
sentence be originally determined by a judicial or administrative
tribunal after notice and hearings in which he could be represented
by counsel, cross-examine witnesses, and offer evidence. He further
contended that, if the tribunal was administrative, its findings
must be subject to judicial review. The trial court sustained the
constitutional validity of § 27-2602, holding that determination of
petitioner's sanity by the Governor supported by the report of
physicians had met the standards of due process. The State Supreme
Court affirmed, 205 Ga. 122, 52 S.E.2d 433, 436. The constitutional
questions being substantial,
see Phyle v. Duffy,
334 U. S. 431,
334 U. S. 439,
the case is here on appeal under 28 U.S.C. § 1257(2).
In affirming, the State Supreme Court held that a person legally
convicted and sentenced to death had no statutory or constitutional
right to a judicially conducted
Page 339 U. S. 11
or supervised "inquisition or trial" on the question of insanity
subsequent to sentence. [
Footnote
2] It viewed the Georgia statutory procedure for determination
of this question as motivated solely by a sense of "public
propriety and decency" -- an "act of grace" which could be
"bestowed or withheld by the State at will," and therefore not
subject to due process requirements of notice and hearing. The
court cited as authority, among others, our holding in
Nobles
v. Georgia, 168 U. S. 398.
Compare Burns v. United States, 287 U.
S. 216,
287 U. S.
223.
In accordance with established policy, we shall not go beyond
the constitutional issues necessarily raised by this record. At the
outset, we lay aside the contention that execution of an insane
person is a type of "cruel and unusual punishment" forbidden by the
Fourteenth Amendment.
See Francis v. Resweber,
329 U. S. 459. For
the controlling Georgia statutes neither approve the practice of
executing insane persons nor is this petitioner about to be
executed on such a premise. It is suggested that the reasoning of
the Georgia Supreme Court in this case requires us to pass upon the
state statute as though it had established a state practice
designed to execute persons while insane. But we shall not measure
the statute by some possible future application. Our holding is
limited to the question of whether the method applied by Georgia
here to determine the sanity of an already convicted defendant
offends due process.
Postponement of execution because of insanity bears a close
affinity not to trial for a crime, but rather to reprieves of
sentences in general. The power to reprieve has usually sprung from
the same source as the power to
Page 339 U. S. 12
pardon. Power of executive clemency in this country undoubtedly
derived from the practice as it had existed in England. Such power
has traditionally rested in governors or the President, although
some of that power is often delegated to agencies such as pardon or
parole boards. Seldom, if ever, has this power of executive
clemency been subjected to review by the courts.
See Ex parte
United States, 242 U. S. 27,
242 U. S. 42,
and cases collected in Note, 38 L.R.A. 577, 587.
We are unable to say that it offends due process for a state to
deem its Governor an "apt and special tribunal" [
Footnote 3] to pass upon a question so
closely related to powers that, from the beginning, have been
entrusted to governors. And here, the governor had the aid of
physicians specially trained in appraising the elusive and often
deceptive symptoms of insanity. It is true that governors and
physicians might make errors of judgment. But the search for truth
in this field is always beset by difficulties that may beget error.
Even judicial determination of sanity might be wrong.
Recently, we have pointed out the necessary and inherent
differences between trial procedures and post-conviction procedures
such as sentencing.
Williams v. New York, 337 U.
S. 241. In that case, we emphasized that certain trial
procedure safeguards are not applicable to the process of
sentencing. This principle applies even more forcefully to an
effort to transplant every trial safeguard to a determination of
sanity after conviction. As was pointed out in the
Nobles
case,
supra, to require judicial review every time a
convicted defendant suggested insanity would make the possibility
of carrying out a sentence depend upon "fecundity in making
suggestion after suggestion of insanity."
Nobles
Page 339 U. S. 13
v. Georgia, supra, at
168 U. S.
405-406.
See also Phyle v. Duffy, supra. To
protect itself, society must have power to try, convict, and
execute sentences. Our legal system demands that this governmental
duty be performed with scrupulous fairness to an accused. We cannot
say that it offends due process to leave the question of a
convicted person's sanity to the solemn responsibility of a state's
highest executive with authority to invoke the aid of the most
skillful class of experts on the crucial questions involved.
This leaves the contention that the Georgia statutes do not make
provisions for an adversary hearing in which a convicted defendant
can be present by friends, attorneys, or in person, with the
privilege of cross-examining witnesses and offering evidence.
Whether this Governor declined to hear any statements on
petitioner's behalf this record does not show. We would suppose
that most if not all governors, like most if not all judges, would
welcome any information which might be suggested in cases where
human lives depend upon their decision.
Both the
Nobles and the
Phyle cases stand for
the universal common law principle that, upon a suggestion of
insanity after sentence, the tribunal charged with responsibility
must be vested with broad discretion in deciding whether evidence
shall be heard. This discretion has usually been held nonreviewable
by appellate courts. [
Footnote
4] The heart of the common law doctrine has been that a
suggestion of insanity after sentence is an appeal to the
conscience and sound wisdom of the particular tribunal which is
asked to postpone sentence. We cannot say that the trust thus
reposed in judges should be denied governors, traditionally charged
with saying the last word that spells life or death. There is no
indication
Page 339 U. S. 14
that either the Governor or the physicians who acted on
petitioner's application violated the humanitarian policy of
Georgia against execution of the insane. We hold that the Georgia
statute, as applied, is not a denial of due process of law.
Affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
"Disposition of insane convicts. . . . Upon satisfactory
evidence being offered to the Governor that the person convicted of
a capital offense has become insane subsequent to his conviction,
the Governor may, within his discretion, have said person examined
by such expert physicians as the Governor may choose, and said
physicians shall report to the Governor the result of their
investigation, and the Governor may, if he shall determine that the
person convicted has become insane, have the power of committing
him to the Milledgeville State Hospital until his sanity shall have
been restored, as determined by laws now in force. . . ."
Ga.Code Ann. § 27-2602, section 1074, p.C., Acts 1903, p.
77.
[
Footnote 2]
"No person who has been convicted of a capital offense shall be
entitled to any inquisition or trial to determine his sanity."
Ga.Code Ann. § 27-2601 (1073, P. C.); Acts 1903, p. 77.
[
Footnote 3]
Nobles v. Georgia, 168 U. S. 398,
168 U. S.
409.
[
Footnote 4]
See cases collected in Notes, Ann.Cas.1916E 424
et
seq.; 49 A.L.R. 801
et seq.; 38 L.R.A. 577
et
seq.
MR. JUSTICE FRANKFURTER, dissenting.
In the history of murder, the onset of insanity while awaiting
execution of a death sentence is not a rare phenomenon. The legal
problems which such supervening insanity raises happily do not
involve explorations of the pathological processes which give rise
to the conflict between so-called legal and medical insanity.
See M'Naghten's Case, 10 Cl. & F. 200 (1843); Glueck,
Mental Disorder and the Criminal Law
passim (1925);
Minutes of Evidence before the 1949 Royal Commission on Capital
Punishment. The case now before the Court presents a familiar
constitutional issue placed in the setting of a claim of
supervening insanity.
The question is this: may a State, without offending the Due
Process Clause of the Fourteenth Amendment, put to death one on
whose behalf it is claimed that he became insane while awaiting
execution, if all opportunity to have his case put is denied and
the claim of supervening insanity is rejected on the basis of an
ex parte inquiry by the Governor of the State? This issue
was before the Court very recently, but, in the circumstances, the
matter was not ripe for decision.
Phyle v. Duffy,
334 U. S. 431. On
the record before us, the issue must be met. Unlike the situation
in
Phyle v. Duffy, it cannot be urged that the Georgia
judgment under
Page 339 U. S. 15
review leaves open the opportunity for a hearing which was given
when
Phyle v. Duffy went back to the California courts.
34 Cal. 2d
144, 208 P.2d 668. We cannot avoid now deciding whether one
awaiting electrocution who makes a substantial claim that he has
become insane can be denied opportunity to address the mind of the
Governor, or those who advise him, in order to establish the fact
of such insanity. In
Phyle's case, the Court recognized
"the gravity of the questions here raised under the due process
clause." 334 U.S. at
334 U. S. 439.
Apparently, between June, 1948, and today, the gravity seems to
have been dispelled. These grave questions are now almost summarily
answered. It cannot be due to the weightiness of the argument
presented at the bar of this Court, for none was made here by
Georgia, and its slight brief hardly discusses the problems.
The immediate question before us depends on the view one takes
of the legal right of a State to execute a person become insane
after sentence. If the Due Process Clause of the Fourteenth
Amendment does not bar the State from infliction of the death
sentence while such insanity persists, of course, it need make no
inquiry into the existence of supervening insanity. If it chooses
to make any inquiry, it may do so entirely on its own terms. If the
Due Process Clause does limit the State's power to execute such an
insane person, this Court must assert the supremacy of the Due
Process Clause and prohibit its violation by a State.
The Court, in an easy, quick way, puts this crucial problem to
one side as not before us. But, in determining what procedural
safeguards a State must provide, it makes all the difference in the
world whether the United States Constitution places a substantive
restriction on the State's power to take the life of an insane man.
If not to execute is merely a benevolent withholding of the
Page 339 U. S. 16
right to kill, the State may exercise its benevolence as it sees
fit. But if Georgia is precluded by the Due Process Clause from
executing a man who has temporarily or permanently become insane,
it is not a matter of grace to assert that right on behalf of the
life about to be taken. If taking life under such circumstances is
forbidden by the Constitution, then it is not within the benevolent
discretion of Georgia to determine how it will ascertain sanity.
Georgia must afford the rudimentary safeguards for establishing the
fact. If Georgia denies them, she transgresses the substance of the
limits that the Constitution places upon her.
Does the Due Process Clause then bar a State from executing a
man under sentence of death while insane? It is now the settled
doctrine of this Court that the Due Process Clause embodies a
system of rights based on moral principles so deeply embedded in
the traditions and feelings of our people as to be deemed
fundamental to a civilized society as conceived by our whole
history. Due Process is that which comports with the deepest
notions of what is fair and right and just. The more fundamental
the beliefs are, the less likely they are to be explicitly stated.
But respect for them is of the very essence of the Due Process
Clause. In enforcing them, this Court does not translate personal
views into constitutional limitations. In applying such a large,
untechnical concept as "due process," the Court enforces those
permanent and pervasive feelings of our society as to which there
is compelling evidence of the kind relevant to judgments on social
institutions.
That it offends our historic heritage to kill a man who has
become insane while awaiting sentence cannot be gainsaid. This
limitation on the power of the State to take life has been part of
our law for centuries, recognized during periods of English history
when feelings were more barbarous and men recoiled less from
brutal
Page 339 U. S. 17
action than we like to think is true of our time. Due process is
itself "a historical product,"
Jackman v. Rosenbaum Co.,
260 U. S. 22,
260 U. S. 31,
and it requires no expansion of its purposes to find in the
Fourteenth Amendment a restriction upon State action that carries
such impressive credentials of history as does that forbidding the
State to kill an insane man though under sentence of death:
"It was further provided by the said Act of 33 H. 8. that, if a
man attainted of treason became mad, that notwithstanding he should
be executed, which cruell and inhumane law lived not long, but was
repealed, for in that point also it was against the common law,
because, by intendment of law, the execution of the offender is for
example,
ut poena and paucos, metus ad omnes perveniat, as
before is said; but so it is not when a mad man is executed, but
should be a miserable spectacle, both against law and of extreame
inhumanity and cruelty, and can be no example to others."
Coke, Third Institutes 6 (1644).
"And it seems agreed at this Day, That if one who has committed
a capital Offence, become
Non Compos before Conviction, he
shall not be arraigned, and if after Conviction, that he shall not
be executed."
1 Hawkins, Pleas of the Crown 2 (1716).
". . . for nothing is more certain in Law than that a Person who
falls mad after a Crime suppos'd to be committed, shall not be
try'd for it, and if he fall mad after Judgment, he shall not be
executed, tho I do not think the reason given for the Law in that
Point will maintain it, which is that the End of Punishment is the
striking a Terror into others, but the execution of a Madman had
not that effect; which is not true, for the Terror to the
Page 339 U. S. 18
living is equal whether the Person be mad or in his Senses. . .
. But the true reason of the Law I think to be this: a Person of
non sana Memoria, and a Lunatick during his Lunacy, is by
an Act of God (for so it is call'd, tho the means may be humane, be
it violent, as hard Imprisonment, terror of Death, or natural, as
Sickness) disabled to make his just Defence, there may be
Circumstances lying in his private Knowledge, which would prove his
Innocency, of which he can have no advantage, because not known to
the Persons who shall take upon them his Defence. . . ."
"
* * * *"
"The King is therefore no otherwise benefited by the destruction
of his Subjects than that the Example deters others from committing
the like Crimes, and there being so many to be made Examples of
besides those on whom the misfortunes of Madness fall, it is
inconsistent with humanity to make Examples of them; it is
inconsistent with Religion, as being against Christian Charity to
send a great Offender quick, as it is stil'd, into another World,
when he is not of a capacity to fit himself for it. But whatever
the reason of the Law is, it is plain that the Law is so. . .
."
Remarks on the Tryal of Charles Bateman by Sir John Hawles,
Solicitor-General in the reign of King William III, 3 State-Tryals
651, 652-53 (1719).
"If a man in his sound memory commits a capital offense, and
before his arraignment he becomes absolutely mad, he ought not by
law to be arraigned during such his phrenzy, but be remitted to
prison until that incapacity be removed; the reason is, because he
cannot advisedly plead to the indictment. . . . And if such person,
after his plea and
Page 339 U. S. 19
before his trial, become of
non sane memory, he shall
not be tried; or, if after his trial he become of
non sane
memory, he shall not receive judgment; or, if after judgment
he become of
non sane memory, his execution shall be
spared; for, were he of sound memory, he might allege somewhat in
stay of judgment or execution."
1 Hale, The History of Pleas of the Crown 34-35 (1736).
[
Footnote 2/1]
"Another cause of regular reprieve is if the offender become
non compos . . . , if after judgment, he shall not be
ordered for execution: for '
furiosus solo furore punitur,'
and the law knows not but he might have offered some reason, if in
his senses, to have stayed these respective proceedings."
4 Bl. Comm'n 388-89 (1769).
However quaint some of these ancient authorities of our law may
sound to our ears, the Twentieth Century has not so far progressed
as to outmode their reasoning. We should not be less humane than
were Englishmen in the centuries that preceded this Republic.
[
Footnote 2/2] And the practical
considerations are not less relevant today than they were when
urged by Sir John Hawles and Hale and Hawkins and Blackstone in
writings which nurtured so many founders of the Republic. If a man
has gone insane, is he still himself? Is he still the man who was
convicted? In any event, "were he of sound memory, he might allege
somewhat" to save himself from doom. It is not an idle fancy that
one under sentence of death ought not, by becoming
non
compos, be denied the means to "allege somewhat" that might
free him. Such an
Page 339 U. S. 20
opportunity may save life, as the last minute applications to
this Court from time to time, and not always without success, amply
attest. [
Footnote 2/3]
The short of it is that American law is not more brutal than
what is revealed as the unbroken command of English law for
centuries preceding the separation of the Colonies. The Court puts
out of sight, as it were, what is basic to a disposition of this
case, namely, that not a State in the Union supports the notion
that an insane man under sentence of death would legally be
executed. If respect is to be given to claims so deeply rooted in
our common heritage as this limitation upon State power, the
Fourteenth Amendment stands on guard to enforce it.
Unless this restriction on State power is fully recognized and
its implications are duly respected, the crucial questions
presented by this case are avoided. We are here not dealing with
the Crown's prerogative of mercy continued through the pardoning
power in this country as an exercise of grace.
See Ex parte
Grossman, 267 U. S. 87. Nor
are we dealing with the range of discretion vested in judges by
penal laws carrying flexible instead of fixed penalties.
See
Williams v. New York, 337 U. S. 241. We
are dealing with a restriction upon the States against taking life
if a certain fact is established, to-wit, insanity,
Page 339 U. S. 21
like unto other restrictions upon the State in taking liberty or
property. In view of the Due Process Clause, it is not for the
State to say: "I choose not to take life if a man under sentence
becomes insane." The Due Process Clause says to a State: "Thou
shalt not."
And so we come to the implications of this constitutional
restriction upon a State in order to determine whether it can deny
all opportunity to lay before some agency of government facts and
circumstances which, if true, must stay the executioner's hand.
The manner in which the States have dealt with this problem
furnishes a fair reflex, for purposes of the Due Process Clause, of
the underlying feelings of our society about the treatment of
persons who become insane while under sentence of death.
Six States no longer have the death penalty. (
See
339 U.S.
9app|>Appendix, Part A.) As to the remaining 42:
"I. In 30 States, execution of the death penalty is suspended
upon a determination of insanity supervening after sentence."
" (a) Of these, 9 States provide (5 by statute and 4 under
common law) that the inquiry shall be entirely judicial. (Part
B.)"
" (b) Of these, 14 States provide for the ultimate determination
of sanity or insanity by a judge or jury after a hearing, upon
initiation of the hearing by a designated prison or police
official."
"~ (1) Of these, 2 States provide for judicial review of the
official's decision not to initiate a hearing. (Part C-I.)"
"~ (2) Of these, 12 States have no legislation or adjudication
defining whether the official's decision is subject to review.
(Part C-II.) "
Page 339 U. S. 22
" (c) Of these, 7 States provide for the ultimate determination
of sanity by the Governor or by a body of physicians and
laymen."
"~ (1) Of these, 1 State appears to afford an opportunity to be
heard. (Part D-I.)"
"~ (2) Of these, 3 States appear to provide for an
ex
parte inquiry. (Part D-II.)"
"~ (3) Of these, 3 States have no provision indicating the
nature of the inquiry. (Part D-III.)"
"II. In 3 States, suspension of execution of the death penalty
because of insanity is at the discretion of the Governor. (Part
E.)"
"III. As to 9 States, the available legislation and decisions
afford no clear basis for classification. Of these, 4 give strong
indications that execution of the death penalty is suspended upon
insanity supervening after sentence, [
Footnote 2/4] 3 offer insufficient material even for
inference, and 2 offer no relevant material. (Part F.)"
We start with the fact that not a single State gives any
indication of having uprooted the heritage of the common law which
deemed it too barbarous to execute a man while insane. This brings
us to the mode of establishing the crucial basis for the lawful
killing by a State -- namely, that it kill not an insane person.
Nine States make the necessary inquiry entirely judicial. Fourteen
more States put the responsibility for initiating judicial inquiry,
with various alternatives of judge and jury, upon an appropriate
official. In ten States, the determination of sanity is vested in
the Governor, either with or without
Page 339 U. S. 23
the aid of advisors or in a separate administrative board. But,
even as to these, in only six States, including Georgia, is it
clear that such an inquiry may be entirely behind closed doors,
without any opportunity for submission of facts on behalf of the
person whose sanity is to be determined as a prerequisite to
killing him.
This impressive body of State legislation signifies more than
the historic continuity of our repulsion against killing an insane
man even though he be under sentence of death. The vindication of
this concern turns on the ascertainment of what is called a fact,
but which, in the present state of the mental sciences, is, at
best, a hazardous guess, however conscientious. If the deeply
rooted principle in our society against killing an insane man is to
be respected, at least the minimum provision for assuring a fair
application of that principle is inherent in the principle itself.
And the minimum assurance that the "life and death" guess will be a
truly informed guess requires respect for the basic ingredient of
due process, namely, an opportunity to be allowed to substantiate a
claim before it is rejected.
This is a requirement that this Court has enforced again and
again when mere interests of property were involved.
See, e.g.,
Pennoyer v. Neff, 95 U. S. 714;
Priest v. Board of Trustees of Las Vegas, 232 U.
S. 604. It cannot be that the Court is more concerned
about property losses that are not irremediable than about
irretrievable human claims. If, as was held only the other day, due
process saves a man from being sent to jail for sixty days on a
charge of contempt because he was tried in secret,
In re
Oliver, 333 U. S. 257, due
process ought also to vindicate the self-respect of society by not
sending a man to his death on the basis of a proceeding as to his
sanity in which all opportunity on his behalf has been denied
to
Page 339 U. S. 24
show that he is, in fact, in that condition of insanity which
bars the State from killing him. He should not be denied the
opportunity to inform the mind of the tribunal -- be it a Governor,
a board, or a judge -- that has to decide between life and death
not as a matter of grace, but on the basis of law. For if he be
insane, his life cannot be forfeit except in violation of the law
of the land.
If a man "is at the very least entitled to have his friends,
relatives and counsel present, no matter with what offense he may
be charged" before being convicted,
In re Oliver, supra,
at
333 U. S. 272,
he should no less be allowed to have someone speak for him when the
issue is not merely a prerogative of mercy or the exercise of
discretion which modern penological thought, translated into
legislation, vests in judges in imposing sentence. The killing of
an insane man under sentence, it needs to be repeated, is in our
law not a matter of discretion. Not to kill such an insane man "has
its roots in our English common law heritage" no less deep than not
to convict him without a hearing.
See In re Oliver, supra,
at
333 U. S. 266.
The rule against killing an insane person embedded so deeply in our
law as to be protected by substantive aspects of due process
requires, as part of procedural due process, that the victim be
given an opportunity through counsel or the next of kin to invoke
the substantive principle of due process.
Since it does not go to the question of guilt, but to its
consequences, the determination of the issue of insanity after
sentence does not require the safeguards of a judicial proceeding.
See Ng Fung Ho v. White, 259 U. S. 276,
259 U. S.
284-285. Nor need the proceeding be open; it may be
in camera. But, precisely because the inquiry need not be
open and may be made
in camera, it must be fair in
relation to the issue for determination. In the present state of
the tentative and dubious knowledge
Page 339 U. S. 25
as to mental diseases and the great strife of schools in regard
to them, it surely operates unfairly to make such determinations
not only behind closed doors, but without any opportunity for the
submission of relevant considerations on the part of the man whose
life hangs in the balance.
To say that an inquiry so conducted is unfair because of the
treacherous uncertainties in the present state of psychiatric
knowledge is not to impugn the good faith of Governors or boards in
excluding what is sought to be put before them on behalf of a
putative insane person. The fact that a conclusion is reached in
good conscience is no proof of its reliability. The validity of a
conclusion depends largely on the mode by which it was reached. A
Governor might not want to have it on his conscience to have sent a
man to death after hearing conflicting views, equally persuasive,
regarding the man's sanity. Claims obviously frivolous need, of
course, not be heard, even as this Court does not listen to claims
that raise no substantial question. It is not suggested that
petitioner's claim of insanity was baseless.
It is a groundless fear to assume that it would obstruct the
rigorous administration of criminal justice to allow the case to be
put for a claim of insanity, however informal and expeditious the
procedure for dealing with the claim. The time needed for such a
fair procedure could not unreasonably delay the execution of the
sentence unless in all fairness and with due respect for a basic
principle in our law the execution should be delayed. The risk of
an undue delay is hardly comparable to the grim risk of the
barbarous execution of an insane man because of a hurried,
one-sided, untested determination of the question of insanity, the
answers to which are as yet so wrapped in confusion and conflict
and so dependent on elucidation by more than one-sided
partisanship.
Page 339 U. S. 26
To deny all opportunity to make the claim that was here made on
behalf of the petitioner is, in my view, a denial of due process of
law.
[
Footnote 2/1]
The first publication of Hale's
Pleas of the Crown was,
of course, based upon the manuscript left by him at his death in
1676.
See 6 Holdsworth, A History of English Law 574,
589-90 (1924).
[
Footnote 2/2]
See Report of the Committee on Insanity and Crime, Cmd.
No. 2005, pp. 17, 19 (1923).
[
Footnote 2/3]
Insane persons do not have the capacity to plead or be tried.
See Youtsey v. United States, 97 F. 937;
Forthoffer v.
Swope, 103 F.2d 707. After sentence of death, the test of
insanity is whether the prisoner has not
"from the defects of his faculties, sufficient intelligence to
understand the nature of the proceedings against him, what he was
tried for, the purpose of his punishment, the impending fate which
awaits him, a sufficient understanding to know any fact which might
exist which would make his punishment unjust or unlawful, and the
intelligence requisite to convey such information to his attorneys
or the court."
In re Smith, 25 N.M. 48, 59, 176 P. 819, 823.
See
also People v. Geary, 298 Ill. 236, 131 N.E. 652;
In re
Grammer, 104 Neb. 744, 178 N.W. 624.
[
Footnote 2/4]
In these 4 States, 3 have statutory provisions dealing with
insanity after conviction but before sentence, and 1 has a
provision dealing with insanity after conviction.
Compare State
v. Allen, 204 La. 513, 15 So. 2d 870.
|
339 U.S.
9app|
APPENDIX TO OPINION OF FRANKFURTER, J.
State legislation and judicial decisions concerning
execution of
death penalty where insanity supervenes after
sentence. [Footnote
3/1]
A. States in which problem does not arise because they
have no death penalty: [
Footnote
3/2]
(1) Me.Rev.Stat. c. 117, § 1 (1944).
(2) Mich.Comp.Laws, § 750.316 (1948).
(3) Minn.Stat. § 619.07 (Henderson 1945).
(4) N.D.Rev.Code, § 12-2713 (1943). [
Footnote 3/3]
(5) R.I.Gen.Laws, c. 606, § 2 (1938). [
Footnote 3/3]
(6) Wis.Stat. § 340.02 (1947).
Page 339 U. S. 27
B. States suspending execution of death penalty under
statutory or common law provisions for hearing before judge or
judge and jury upon initiation by judge: [
Footnote 3/4]
I. Statutory Procedure:
(7) Ala.Code Ann. tit. 15, § 427 (1940).
(8) Colo.Stat.Ann. c. 48, §§ 6, 7 (1935).
See Bulger v.
People, 61 Colo. 187, 156 P. 800.
(9) Ill.Rev.Stat. c. 38, §§ 593-594 (1949).
See People v.
Geary, 298 Ill. 236, 131 N.E. 652;
People v. Preston,
345 Ill. 11, 177 N.E. 761.
(10) La.Code Crim.Law & Proc.Ann.Art. 267 (1943).
See
State v. Allen, 204 La. 513, 15 So. 2d 870; 18 Tul.L.Rev. 497;
State v. Gunter, 208 La. 694, 23 So. 2d 305;
State v.
Hebert, 187 La. 318, 174 So. 369; La.Laws 1918, No. 261, p.
483.
(11) N.J.Stat.Ann. § 2:193-12 (1939) in connection with
In
re Lang, 77 N.J.L. 207, 71 A. 47;
In re Herron, 77
N.J.L. 315, 72 A. 133; 79 N.J.L. 67, 73 A. 599.
II. Common law procedure:
(12) North Carolina.
See State v. Vann, 84 N.C. 722,
724;
State v. Godwin, 216 N.C. 49, 3 S.E.2d 347;
State
v. Sullivan, 229 N.C. 251, 49 S.E.2d
Page 339 U. S. 28
458.
See also N.C.Gen.Stat.Ann. §§ 122-84, 122-85
(Supp. 1949).
(13) South Carolina.
See State v. Bethune, 88 S.C. 401,
71 S.E. 29.
See also S.C.Code Ann. § 6239 (1942).
(14) Tennessee.
See Jordan v. State, 124 Tenn. 81,
90-91, 135 S.W. 327, 329-330;
Bonds v. State, 8 Tenn. 143.
See also Tenn.Code Ann. §§ 4476, 4502 (Williams 1934).
(15) Washington.
See State v. Nordstrom, 21 Wash. 403,
58 P. 248;
Grossi v. Long, 136 Wash. 133, 238 P. 983;
State ex rel. Alfani v. Superior Court, 139 Wash. 125, 245
P. 929;
State v. Davis, 6 Wash. 2d 696, 717, 108 P.2d 641,
652-651.
C. States suspending execution of death penalty under
statutory provisions for hearing before judge or jury upon
initiation by designated prison or police official: [
Footnote 3/5]
I. Official's refusal to initiate subject to judicial
review:
(16) Ark.Stat.Ann. §§ 41-109, 43-2622 (1947).
See Howell v.
Kincannon, 181 Ark. 58, 24 S.W.2d 953;
Howell v.
Todhunter, 181 Ark. 250, 25 S.W.2d 21;
Shank v.
Todhunter, 189 Ark. 881, 75 S.W.2d 382.
Page 339 U. S. 29
(17) Cal.Pen.Code, §§ 1367, 3701-3703 (1949).
See Phyle v.
Duffy, 34 Cal. 2d
144, 208 P.2d 668.
II. Whether official's refusal to initiate inquiry is subject to
review undefined by legislation or adjudication:
(18) Idaho Code Ann. §§ 19-2709 to 19-2712, 19-3301 (1948).
(19) Ky.Rev.Stat. § 431.240 (1948).
See Ky.Codes,
Crim.Prac. §§ 295-296 (1948);
Barrett v. Commonwealth, 202
Ky. 153, 259 S.W. 25;
Stucker v. Commonwealth, 261 Ky.
618, 88 S.W.2d 280;
Murrell v. Commonwealth, 291 Ky. 65,
163 S.W.2d 1.
(20) Mo.Rev.Stat.Ann. §§ 4192-4194 (1939).
(21) Mont.Rev.Codes Ann. §§ 94-8009 to 94-8012 (1947).
(22) Nev.Comp.Laws Ann. §§ 11192.01 to 11192.06 (Supp.
1945).
(23) N.M.Stat.Ann. §§ 42-1404 to 42-1407 (1941).
(24) Ohio Gen.Code Ann. §§ 13456-8, 13456-9 (1939).
(25) Okl.Stat.Ann. tit. 22, §§ 1005-1008 (1937).
See Bingham
v. State, 82 Okl.Crim. 305,
169
P.2d 311.
(26) Pa.Stat.Ann. tit. 50, § 48 (Supp. 1948).
See
Commonwealth v. Barnes, 280 Pa. 351, 124 A. 636 (whether
statute applies after conviction and sentence or whether common law
principles govern is not clear).
But cf. Ex parte
McGinnis, Pa.Sup., 14 W.N.C. 221 (Pa.Sup.Ct.).
Page 339 U. S. 30
(27) Tex.Stat., Code Crim.Proc. arts. 921-927 (1948), Vernon's
Ann.C.C.P. arts. 921-927.
See Dotson v. State, 149
Tex.Crim.R. 434, 195 S.W.2d 372. A hearing may also be initiated on
the affidavits of two private physicians.
Cf. Ex parte
Millikin, 108 Tex.Crim. 121, 299 S.W. 433;
Millikin v.
Jeffrey, 117 Tex. 134, 299 S.W. 393 (similar earlier
statute).
(28) Utah Code Ann. §§ 105-37-9 to 105-37-12 (1943).
See
State ex rel. Johnson v. Alexander, 87 Utah 376, 49 P.2d 408;
State v. Green, 88 Utah 491, 55 P.2d 1324.
(29) Wyo.Comp.Stat.Ann. §§ 10-1701, 10-1702 (1945).
III. Official's refusal to initiate given explicit finality
without review:
None.
D. States suspending execution of death penalty under
statutory provisions for inquiry by Governor or by a body of
physicians and laymen on initiation by designated prison or police
official:
I. Proceeding appears to afford opportunity to be heard:
(30) Iowa Code, §§ 792.5 to 792.7 (1946).
II. Proceeding appears to be
ex parte:
(31) Conn.Gen.Stat. § 8817 (1949).
(32) Kan.Gen.Stat.Ann. § 62-2406 (1935).
(33) Neb.Rev.Stat. § 29-2509 (1943).
See In re Grammer,
104 Neb. 744, 178 N.W. 624.
Page 339 U. S. 31
III. Whether proceeding is
ex parte or affords
opportunity to be heard is uncertain:
(34) Ariz.Code Ann. §§ 44-2307, 44-2309 (1939).
(35) Fla.Stat. § 922.07 (1941).
(36) Miss.Code Ann. § 2558 (1942).
E. States in which suspension of execution of death penalty
because of insanity is at discretion of Governor:
(37) Ga.Code Ann. §§ 27-2601, 27-2602 (1936),
Solesbee v.
Balkcom, 205 Ga. 122, 52 S.E.2d 433.
(38) Indiana.
Diamond v. State, 195 Ind. 285, 144 N.E.
466 (only remedy is reprieve by Governor).
(39) Mass.Gen.Laws, c. 279, § 48 (1932),
Juggins v.
Executive Council, 257 Mass. 386, 154 N.E. 72 (only remedy
seems to be reprieve by Governor with advice and consent of
Executive Council).
F. States as to which legislation or judicial decisions afford
no clear basis for classification:
(40) Delaware.
Compare Del.Rev.Code § 3083 (1935)
(insanity after conviction but before sentence in capital cases);
id., § 3084 (insanity while serving imprisonment
sentence).
(41) Maryland.
Compare Md.Ann.Code Gen.Laws art. 27, §
798; art. 59, § 47 (1939) (insanity while serving imprisonment
sentence).
(42) New Hampshire.
Page 339 U. S. 32
(43) N.Y.Crim.Code, § 495-a.
Compare 2
Rep.Atty.Gen.N.Y. 294, 297 (1914),
with People v.
Skwirsky, 213 N.Y. 151, 153-154, 107 N.E. 47-48.
(44) Oregon.
Compare Or.Comp.Laws Ann. §§ 26-930,
26-931 (1940) (insanity at trial).
(45) South Dakota.
Compare S.D.Code § 34.2001 (1939) (a
person cannot "be tried, adjudged to punishment, or punished for a
public offense while he is insane");
id., §§ 34.2002 to
34.2004 (insanity after conviction but before sentence).
(46) Vermont.
(47) Virginia.
Compare Va.Code Ann. §§ 19-208, 37-93
(1950) (insanity after conviction but before sentence);
id., § 19-209 (insanity while serving imprisonment
sentence).
(48) West Virginia.
Compare W.Va.Code Ann. § 6198
(1949) (insanity after conviction or while serving sentence).
[
Footnote 3/1]
It is appropriate to give warning that the meaning attributed to
some of the statutes cited in this Appendix does not have the
benefit of guiding State adjudication and that, even when such
adjudication is available to throw light on statutory meaning or on
the State's common law, classification has been based on judicial
pronouncements which are not always explicit holdings. The
ascertainment of the law of a State when there is not a clear
ruling by the highest court of that State is treacherous business.
It should also be added that, while this Appendix is based on the
latest legal materials in the Library of this Court, that is no
guarantee that there may not be still later relevant local
materials.
[
Footnote 3/2]
The statutes cited give the penalty for first degree murder.
See also Gruenhut, Penal Reform 7 (1948).
[
Footnote 3/3]
The penalty for first degree murder is life imprisonment unless
a person is under sentence of life imprisonment at the time of
conviction.
[
Footnote 3/4]
In all States providing for suspension of death penalty upon
supervening insanity, the procedural problem raises two questions:
(1) who shall decide whether there has ben a sufficient
prima
facie showing of insanity to warrant initiation of a further
proceeding; (2) who shall be the factfinder in such proceeding.
[
Footnote 3/5]
See 339 U.S.
9fn3/4|>note 4
supra. Most of the States in Parts C
and D require the official responsible for initiating the further
inquiry to act if there is "good reason," or a like ground, for
believing that the convicted man is insane. In some of these
States, the relevant statute provides that the official "may" act
where "good reason" exists, thereby raising the familiar problem as
to when "may," considering its function, means "must" in
legislative English.
Compare Howell v. Todhunter, 181 Ark.
250, 25 S.W.2d 21.