The Federal Kidnapping Act authorizes a sentence of death when
recommended by the jury, "provided that the death sentence shall
not be imposed by the court if, prior to its imposition, the
kidnapped person has been liberated unharmed."
Held:
1. The fact that the injuries inflicted on the kidnapped person
were not permanent, or were healed before imposition of sentence,
did not bar the death penalty. P.
324 U. S.
285.
2. In the case of a defendant who twice violently struck his
victim on the head with an iron bar, inflicting injuries from which
she was still suffering when liberated, and upon whom the death
sentence was imposed, the proviso was not invalid for uncertainty
in the meaning of the words "unharmed" and "liberated unharmed." P.
324 U. S.
286.
144 F.2d 392 affirmed.
Certiorari, 323 U.S. 808, to review the affirmance of a
conviction and sentence of death for violation of the Federal
Kidnapping Act.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner was indicted and convicted in a District Court
for violating the Federal Kidnapping Act, 47 Stat. 326, 48 Stat.
781, by transporting in interstate commerce a person whom he had
kidnapped and held for a reward. The jury recommended, and the
court, imposed the death penalty. The Circuit Court of Appeals
affirmed, 144 F.2d
Page 324 U. S. 283
392. We granted certiorari limited to the sole question of the
court's statutory authority to impose the death sentence.
The Act authorizes the death sentence when recommended by a jury
"provided that the sentence of death shall not be imposed by the
court if, prior to its imposition, the kidnapped person has been
liberated unharmed." The indictment charged, and there was evidence
before the jury, to the effect that the kidnapping victim yielded
to capture only after the petitioner had twice violently struck her
on the head with an iron bar; that, while held in custody, her lips
were abrased and made swollen by repeated applications of tape on
her mouth, and that wounds resulting from these assaults were not
healed when she was liberated after six days' captivity. No
evidence was introduced, nor did the indictment charge, that the
injuries inflicted were permanent, or that the victim still
suffered from them when the petitioner was sentenced, nine years
after commission of the offense. [
Footnote 1] The trial court charged the jury that, in
determining whether the victim had been "liberated unharmed," they
were limited to a consideration of her condition at the time she
was liberated, and that they were not authorized to recommend the
death penalty if, at the time of her liberation, she had recovered
from her injuries. Petitioner took no exception to the charge, and
asked no other. Its correctness is before us only to the extent
that we are asked to say that the injuries inflicted must be
permanent or they must be in existence at the time of sentence in
order to authorize the infliction of the death sentence.
The scant legislative history of the Act is of little assistance
to us in interpreting this proviso. Two possible reasons
Page 324 U. S. 284
suggest themselves, however, as to the motivation of Congress in
making the severity of a kidnapper's punishment depend upon whether
his victim has been injured. The first reason is the old belief
that the severity of the injury should measure the rigor of the
punishment. If this be the reasoning implicit in the statute, it
would appear that Congress intended that, for a kidnapper to obtain
the benefit of the proviso, he must both liberate and refrain from
injuring his victim. Congress may equally have intended this
provision as a deterrent on the theory that kidnappers would be
less likely to inflict violence upon their victims if they knew
that such abstention would save them from the death penalty. This
assumption finds some slight support in the legislative history,
[
Footnote 2] is not contested
by the government, has been accepted in one case, [
Footnote 3] and is the chief prop for the
interpretation which the petitioner urges. He argues, upon this
assumption, that the wider the scope of the exemption from the
death penalty, the greater the inducement for the kidnapper to
release the victim. To magnify the inducement, we are asked to
interpret the proviso as granting immunity from the death sentence
to any kidnapper who does not permanently injure his victim. We
cannot expand
Page 324 U. S. 285
the meaning of the statute on such a hypothesis, and we turn to
its language.
We accept the word "unharmed" appearing in the proviso as
meaning uninjured. Neither the word "permanent" nor any other word
susceptible of that meaning was used by Congress. The quality of
the injury to which Congress referred is not defined. It may be
possible that some types of injury would be of such trifling nature
as to be excluded from the category of injuries which Congress had
in mind. We need indulge in no speculation in regard to such a
category. The injuries inflicted upon his victim were of such
degree that they cannot be read out of the Act's scope without
contracting it to the point where almost all injuries would be
excluded. We find no justification whatever for grafting the word
permanent onto the language which Congress adopted.
Nor can we construe the proviso as precluding the death sentence
where the kidnapped person's injuries have been healed at the time
sentence is imposed. It is not to be assumed that Congress intended
a matter of such grave consequence to defendants and the public to
turn on the fortuitous circumstance of the length of time that a
case is pending in the courts. Far too many contingencies are
involved -- for example, the time it takes to apprehend a criminal,
the condition of the trial docket, and the uncertainties of
appeals. We would long hesitate before interpreting the Act so as
to make the severity of sentence turn upon the date sentence is
ultimately imposed, even if the language of the Act more readily
lent itself to such a construction than this one does. At the very
least, the proviso's language must mean that the kidnapped person
shall not be suffering from injuries when liberated; the kidnapped
person here was still suffering from her injuries when
liberated.
Nevertheless it is argued that the death penalty proviso should
be held invalid on the ground that there is uncertainty
Page 324 U. S. 286
as to the precise meaning and scope of the word "unharmed" and
the phrase "liberated unharmed." In most English words and phrases
there lurk uncertainties. The language Congress used in this Act
presents no exception to this general truth. One thing about this
Act is not uncertain, and that is the clear purpose of Congress to
authorize juries to recommend and judges to inflict the death
penalty, under certain circumstances, for kidnappers who harmed
their victims. And we cannot doubt that a kidnaper who violently
struck the head of his victim with an iron bar, as evidence showed
that this petitioner did, comes within the group Congress had in
mind. This purpose to authorize a death penalty is clear even
though Congress did not unmistakably mark some boundary between a
pinprick and a permanently mutilated body. It is for Congress, and
not for us, to decide whether it is wise public policy to inflict
the death penalty at all. We do not know what provision of law,
constitutional or statutory, gives us power wholly to nullify the
clearly expressed purpose of Congress to authorize the death
penalty because of a doubt as to the precise congressional purpose
in regard to hypothetical cases that may never arise.
The trial court committed no error of which this petitioner can
complain.
Affirmed.
[
Footnote 1]
Petitioner pleaded guilty to the offense in 1936. In August,
1943, a district court held his plea of guilty invalid on the
ground that he had been denied counsel. This appeal is from a trial
which took place in October, 1943.
See Robinson v.
Johnston, 118 F.2d 998; 316 U.S. 649; 130 F.2d 202;
50 F. Supp.
774.
[
Footnote 2]
When the original kidnapping bill was passed by the Senate, it
did not provide for a death penalty. The House Committee on the
Judiciary reported it to the floor with an amendment which
authorized a death penalty unless the jury recommended mercy. 75
Cong.Rec. Part 12, 13294. Considerable opposition to the death
sentence developed in the ensuing debate,
Ib., pp.
13282-13304. Some of the opposition rested on the argument that the
death penalty would cause kidnappers to kill their victims rather
than release them because of fear that a liberated victim could
send a kidnapper to the electric chair.
Ib., pp. 13285,
13304. The bill as passed did not authorize the death penalty, 47
Stat. 326. Two years later, an amendment was passed containing the
present proviso. 48 Stat. 781. Its legislative history throws no
additional light on its purpose.
[
Footnote 3]
United States v. Parker, 19 F.
Supp. 450; 103 F.2d 857.
MR. JUSTICE RUTLEDGE, dissenting.
The penalty of death should not be imposed upon conditions
defined so uncertainly that their identity cannot be ascertained or
is left open to grave doubt. If words ever need to be clear, they
do when they perform this function. I do not know what Congress
meant when it commanded that "the sentence of death shall not be
imposed by the court if, prior to its imposition, the kidnaped
person has been liberated unharmed." 48 Stat. 781.
Page 324 U. S. 287
The words have the sound of certainty which simple everyday
language gives forth. The certainty is only illusion. What does
"liberated unharmed" mean? The statute does not tell us. Nor does
the legislative history. [
Footnote
2/1] Neither does the Court's opinion. It rather demonstrates
the statute's ambiguity. It does not say what Congress meant. It
says only that Congress meant one of two things, and either would
cover this case. [
Footnote 2/2] A
third possible construction, put forward by petitioner, is
rejected. The statute, it is held, does not mean that the death
penalty can be imposed only when the injuries inflicted are
permanent or, presumably, only when they remain at the time of
sentence, though not permanent. The Court does not say what
"liberated" means. Nor does it define "unharmed," except that it
excludes the injury inflicted in this case.
What act is pointed to by "liberated"? Does it refer only to
release by the kidnapper, or does it include a case of rescue
overcoming his will and purpose? Does it cover his abandonment of
the victim in flight, leaving him perhaps gagged and bound in some
lonely spot or cell, not free but no longer in the kidnapper's
power? Or must he, before the pressures become too great, change
his mind, exercise discretion, and set the victim free before he is
forced to do so?
Similarly, what is "unharmed"? A scratch, a cut, abrasions left
by removal of tape or rope, bruises, nervous
Page 324 U. S. 288
shock, disturbance of digestion, all of a kind which heals or
passes before "liberation" occurs? Few kidnappings take place
without harm of some kind to the victim. They may be executed by
force or by mere threats. One produces traumatic injury, from minor
abrasion to death, the other nervous or mental shock of momentary
or lifetime duration. How much injury, and what kind, did Congress
have in mind?
Is the death penalty to be imposed for the identical cut or
abrasion, whether minor or serious, inflicted during the act of
taking the victim, merely because, in one case, the kidnapper
releases or abandons him quickly, perhaps because forced to do so,
but forbidden in another because he holds the victim until the
injury heals? Is reward thus to be given for prolonging the
agony?
Is the jury to range throughout the category of human ills not
only to find that injury has been inflicted, but to evaluate
whether those ills are "injuries" within the meaning of the
statute? Or is this a question of law to be determined by the judge
upon some vague criterion of "trifling nature" such as the opinion
appears to suggest? Whether Congress meant all injuries, slight,
substantial, serious or permanent, or only some of these, the
statute does not say, and the legislative history gives no guide.
The judge, or the jury, or both together, not only must apply, they
must determine and write the law in this respect, until, at any
rate, this Court, equally without legislative guidance, tells them
what Congress had in mind.
There are still other uncertainties. Was it the intent (1) that
the kidnapper must both liberate and refrain from injuring his
victim, or (2) merely that he must not inflict harm, however the
liberation may occur? We are not told what was Congress' purpose,
whether to measure the rigor of the punishment by the severity of
the injury or to induce kidnappers not to use violence at all,
deterring
Page 324 U. S. 289
them by the threat of death for its use in whatever degree.
[
Footnote 2/3] Neither the
legislative history nor the opinion gives light on this question.
If Congress wished to induce gentle kidnappings, injuries inflicted
in the course of the act of kidnapping are covered, provided they
remain at the time of "liberation." They would not be included, if
healed before it, however grave when inflicted or however distant
liberation from infliction. What if the kidnapper, knowing that
time is crucial, keeps his victim until the injuries are healed?
Was it Congress' purpose to induce longer detention the more
serious the injury inflicted during the original act? What if it is
inflicted afterward, but during the course of the detention? Once
injury has taken place, the inducement held out by the statute
necessarily is either to hold the victim until cure is effected or
to do away with him so that evidence, both of the injury and of the
kidnapping, is destroyed. [
Footnote
2/4] The more serious
Page 324 U. S. 290
the injury the stronger these inducements. It is only upon such
considerations, affecting the victim's safety, that Congress'
qualification of the power to impose the sentence of death can be
accounted for. [
Footnote 2/5]
Finally, was Congress attempting to offer the maximum inducement
to liberation? If this was the purpose, petitioner's construction,
rejected by the Court, has more force than the other possible ones
among which it declines to choose. For, in that event, the
kidnapper would have inducement, once injury is inflicted, though
serious, to
Page 324 U. S. 291
surrender the victim in the hope that care after surrender might
bring about cure before imposition of sentence. If the single and
vague word "unharmed" is construed to mean absence of permanent
injury or grave injury, though not permanent, he would have the
hope, the inducement that surrender might give escape from the
maximum sentence. Contrary to the Court's view that this
interpretation is impossible, it goes directly to the unanswered
questions how much and what kinds of injury Congress had in mind,
and to adopt it would accord with the rule that criminal statutes
should be strictly construed. Moreover, it would apply in this
case, since there is no evidence of permanent injury, or even that
the injuries inflicted were critical at the time of the victim's
release. She testified at the trial.
It is true this construction would make imposition of that
penalty depend upon fortuitous circumstances -- the length of time
between release and sentence, as well as the chances of the victim
to recover and their successful working out in that period. But any
other construction either makes it depend upon circumstances
equally fortuitous or has the inevitable effect, in many cases, of
holding out inducement to the kidnapper to inflict the ultimate
harm rather than to refrain from inflicting harm at all.
Petitioner's construction, more than any other, takes into account
the victim's safe surrender. Once the victim is hurt, the
kidnapper's problem of what to do with him becomes inescapable, and
the provision for the extreme penalty can work only to defeat or
defer liberation. Was this what Congress intended, knowing that few
kidnappings can occur in which some substantial harm will not be
done?
I doubt that Congress intended these consequences. I do not know
from its words what it did intend. The opinion does not enlighten
me, except that this case is one of possibly many, vaguely
indicated, which may have been in mind. Congress has broad power to
prescribe
Page 324 U. S. 292
penalties for crime, including death. It may give wide
discretion to courts in selecting from a broad range of defined
penalties to fit the individual case. Within limits, this
discretion may include the death penalty.
It is one thing, however, for Congress to confer the discretion
confined by specified and ascertainable limits. It is another thing
for Congress itself to turn the exercise of the conferred
discretion upon conditions which cannot be ascertained from its
mandate or can be located only with the greatest uncertainty.
Two things are clear. Congress did not intend the death penalty
to apply to all convictions under the statute. Nor was its
imposition intended to rest absolutely or exclusively either upon
the jury's recommendation or in the court's discretion. The purpose
obviously was to forbid it in some cases. But these can be
determined only by choice among conflicting inferences which set
one purpose Congress may have had in mind at war with others
equally attributable to it.
This case involves the law's extreme penalty. That penalty
should not rest on doubtful command or vague and uncertain
conditions. The words used here for its imposition are too general
and unprecise, the purposes Congress had in using them too obscure
and contradictory, the consequences of applying them are too
capricious, whether for the victim or for the kidnapper, to permit
their giving foundation for exercise of the power of life and death
over the citizen, though he be convicted criminal. Other penalties
might be rectified with time, if wrong. This one cannot be.
Moreover, the Court's refusal to resolve the statute's admitted
ambiguity leaves hanging over the heads of future victims the
danger which flows from "a death penalty provision which would
encourage" the same irreparable fate for them. When that fate
falls, it will not be "hypothetical," and there will be nothing
either we or Congress can do to revoke it.
Page 324 U. S. 293
I think the statute turns the power to impose the death penalty
upon facts so vaguely defined that only judicial legislation can
remedy the defect. This is not the kind of thing courts should be
left to work out case by case through the "gradual process of
inclusion and exclusion." This business, rather, belongs to
Congress, not to the courts. As the Court's opinion states, though
I think in contradiction of its judgment, "It is for Congress, and
not for us, to decide whether it is wise public policy to inflict
the death penalty at all." Congress' mandate in such matters must
be clear; otherwise we, not Congress, decide. In this one, it is
beyond understanding.
I would vacate the judgment and remand the cause for the
petitioner to be resentenced.
MR. JUSTICE MURPHY joins in this opinion.
[
Footnote 2/1]
The Government's brief candidly states:
"The interpretation of the proviso here involved must be
determined from the face of the statute itself, since neither the
legislative history nor prior state legislation offers
guidance."
No hearings were held on the 1934 amendments, providing for the
death penalty. They were accepted upon conference reports by both
houses without debate. H.Rep. No. 1595, 73d Cong., 2d Sess.; 78
Cong.Rec. 8775, 8856-8857. Neither H.Rep. No. 1595 nor H.Rep. No.
1457, 73d Cong., 2d Sess., gives light on the meaning of the
limitation.
[
Footnote 2/2]
Cf. 324
U.S. 282fn2/3|>note 3.
[
Footnote 2/3]
At one point, the opinion declines to express a choice between
these possible alternatives. At another, it states "the clear
purpose of Congress" was to authorize "the death penalty under
certain circumstances for kidnappers who harmed their victims." Is
this to be taken as deciding that "liberated unharmed" means
"liberated not having been harmed at all"? If so, the Court's view
differs from the Government's, which is that the words mean
"unharmed at the time of liberation."
Cf. 324
U.S. 282fn2/5|>note 5. Moreover, the opinion, if so
effective, invites for the victim the very danger Congress sought
to avoid by placing the limitation upon the power to impose the
sentence.
[
Footnote 2/4]
These considerations for the safety of the victim, recently
dramatized by the Lindbergh case, were influential in bringing
about the omission from the original Kidnapping Act of 1932, 47
Stat. 326, of any provision for the death penalty. Representative
Cellar stated them thus:
"I you insist upon the death penalty, I wager that you will
inflict a penalty on the victim who is kidnaped. The victim may be
murdered or slain because the prisoner [
sic] has nothing
to gain by the victim's being kept alive, because he forfeits his
own life, in any event. . . . The person kidnaped is the witness
who, even when rescued, can always point the accusing finger at the
guilty. Doing away with the victim would save the life of the
guilty."
75 Cong.Rec. 13285.
See 75 Cong.Rec. 13282-13304 for
other statements opposing the extreme penalty.
From the viewpoint of possible effectiveness in securing the
victim's safety, the qualification imposed by the 1934 Act would
seem to be directed more toward the kinds of danger Congress had in
mind during the 1932 debate than toward preventing all use of force
in the kidnapping act itself.
Cf. 324
U.S. 282fn2/5|>note 5 and
United States v.
Parker, 19 F. Supp.
450,
aff'd, 103 F.2d 857,
cert. denied, 307
U.S. 642.
[
Footnote 2/5]
The Government has urged adoption of the construction which
takes account of these considerations. The brief states:
"The words 'liberated unharmed' . . . are subject to two
interpretations. They may be construed to mean liberated without
having been harmed at any time in the course of detention or . . .
liberated in an unharmed condition at the time of liberation. The
first construction attributes to Congress the intention to cause
kidnapers not to harm the victim, but without tending to secure
liberation of a victim who has been harmed. The second construction
offers the kidnaper an inducement, in addition to the inducement
not to harm, to care for and to cure an injured victim so that he
may be unharmed when liberated. The second construction encourages
kidnapers not to murder an injured victim, an inducement not
present under the first construction.
In view of the temptation
to kidnapers to murder their victims in order to dispose of
witnesses to their crime, and in view of the interest disclosed in
Congress to avoid a death penalty provision which would encourage
this result, the Government submits that the second
construction more properly reflects the intention of Congress, and
should be adopted."
(Emphasis added.)