Petitioner was convicted of murder, sentenced to death, and
imprisoned pending execution. In compliance with a California
statute forbidding the execution of an insane person and
prescribing a procedure for obtaining a judicial determination of a
prisoner's sanity (to be initiated by the warden if "there is good
reason to believe" that he has become insane), petitioner was
adjudged insane and taken to a state hospital. Thereafter, without
notice or hearing, the medical superintendent of the hospital
certified that petitioner's reason had been restored, and he was
returned to prison and a new date was set for his execution. He
instituted a habeas corpus proceeding in the State Supreme Court,
but that court denied relief.
since the judgment denying habeas corpus may rest
on the adequate nonfederal ground that petitioner had pursued the
wrong state remedy, it is not appropriate for this Court at this
time to pass on the federal constitutional questions presented. Pp.
334 U. S.
(a) It appears that there is a state remedy by mandamus
available to petitioner under which he can invoke judicial action
Page 334 U. S. 432
compel the warden to again initiate judicial proceedings to
determine petitioner's sanity, and that, in such mandamus
proceeding, the court will hear and consider evidence to determine
whether there is "reason to believe" that petitioner is insane. Pp.
334 U.S. 440
(b) Nobles v. Georgia, 168 U.
, distinguished. Pp. 334 U. S.
(c) A declaration by the Attorney General of California that
petitioner has not availed himself of the appropriate state remedy
is entitled to great weight in the absence of controlling state
statutes and court decisions. P. 334 U. S.
(d) Although mandamus might not be available under California
law if there were another remedy, so far as here appears, and in
the light of the decision of the State Supreme Court, mandamus to
compel action by the warden is the only remedy available to the
petitioner. P. 334 U. S.
(e) This Court cannot say at this time that the remedy by
mandamus available to petitioner under California law will be less
than a substantial equivalent of one whereby he could apply
directly to a court for a full hearing. Pp. 334 U. S.
30 Cal. 2d
, 186 P.2d 134, certiorari dismissed.
In a habeas corpus proceeding instituted by petitioner in the
Supreme Court of California, that court denied relief. 30 Cal. 2d
, 186 P.2d 134. This Court granted certiorari. 333 U.S. 841.
p. 334 U. S.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner is under sentence of death for murder in the
first degree imposed by a California superior court and affirmed by
the State Supreme Court. People v. Phyle, 28 Cal. 2d
, 171 P.2d 428. The validity of that sentence is
Page 334 U. S. 433
not here challenged. [Footnote
] But § 1367 of the California Penal Code provides that "A
person cannot be tried, adjudged to punishment, or punished for a
public offense while he is insane." Thus, if petitioner is insane,
California law prohibits his execution under the death sentence
which he received. The legal questions here presented relate to the
procedures adopted by California to determine whether petitioner is
sane or insane as a matter of fact.
It is petitioner's contention that, though having been
pronounced insane in a judicial proceeding after his conviction,
and though he in fact is still insane, he is about to be execute
because a state doctor, acting under authority of state statutes,
has declared him restored to sanity. The doctor reached his
determination without notice or hearings, and without any
opportunity on petitioner's part to obtain an original court
hearing and adjudication of his sanity, or even to obtain a court
review of the doctor's conclusion that he is sane. This procedure
it is argued constitutes a denial to petitioner of
Page 334 U. S. 434
that due process of law guaranteed him by the Fourteenth
This contention was urged upon the California Supreme Court in
habeas corpus proceedings there instituted. That court entertained
and considered the petition, but, with two judges dissenting,
denied relief, sustaining the validity of the power of the state's
executive agents to follow the prescribed statutory procedures.
In re Phyle, 30 Cal. 2d
, 843, 186 P.2d 134. We granted certiorari because of the
serious nature of the due process contentions presented in the
petition. 333 U.S. 841. Here, the California attorney general,
while supporting the State Supreme Court's denial of habeas corpus,
asserts that California affords petitioner an adequate judicial
remedy by way of mandamus, a procedure which has not yet been
sought by petitioner.
The California procedure may perhaps be better understood by
explaining the application of the controlling California statutes
to petitioner's case. While he was in prison awaiting execution of
the death sentence, a question arose concerning the petitioner's
sanity at that time. Section 3701 of the State Penal Code [Footnote 2
] prescribes that, if "there
is good reason to believe" that a defendant under sentence of death
"has become insane, the warden must call such fact to the attention
of the district attorney." It is the district attorney's "duty"
Page 334 U. S. 435
to institute proceedings in an appropriate trial court to
determine the sanity of the defendant, and the court "must at once"
summon a jury of twelve to "hear such inquiry." In petitioner's
case, this prescribed course was followed, a judicial hearing was
held as provided by § 3702, [Footnote 3
] and petitioner was adjudged insane. In
accordance with § 3703, [Footnote
] the court then ordered that petitioner "be taken to a state
hospital for the insane and be there kept in safe confinement until
his reason is restored." It will be noted that the petitioner
obtained a judicial hearing as to sanity only because the warden
instituted proceedings after determining that there was "good
reason to believe" that the petitioner was insane. Thus, the
opportunity for a person under sentence of death to have a hearing
before judge and jury on the question of his sanity depends in the
first instance solely on the warden.
After adjudication of insanity, the petitioner was taken to a
state hospital for the insane in compliance with the trial court's
order of commitment. In accordance with § 3704, [Footnote 5
] the warden then suspended the
Page 334 U. S. 436
and delivered certified copies of the court's order to the
governor and to the medical superintendent of the state hospital to
which petitioner was sent. As § 3704 provides, the superintendent
was directed that, when petitioner "recovers his reason," the
superintendent "must certify that fact" to the governor, who is
then required to issue to the warden his warrant appointing a day
for the execution of the judgment. The warden then returns the
defendant to the State prison pending the execution of the
judgment. This course was followed with reference to the
petitioner. Eighteen days after his admission to the state
hospital, the medical superintendent certified to the governor that
the petitioner was then sane. He was returned to the custody of the
prison warden, and the governor set a new date for his
The medical superintendent's determination of petitioner's
sanity was based on his own ex parte
notice or hearings having been afforded petitioner or any person on
his behalf. It is thus clear that the California statutory scheme
here challenged provides neither an administrative nor a judicial
hearing as a prerequisite to a determination that a condemned
defendant judicially adjudicated to be insane has been restored to
sanity; one man, in an ex parte
investigation, decides the
question upon which hangs the defendant's life, in the absence of a
later request by the prison warden for
Page 334 U. S. 437
a judicial hearing on the ground that there is then "reason to
believe" the defendant has become insane.
The holding of the State Supreme Court in habeas corpus
"There is no authority . . . for the proposition that defendant
has a right to habeas corpus or other judicial proceeding to
determine the question of his sanity after his release from the
state hospital. In fact, section 3700 of the Penal Code [Footnote 6
] expressly prohibits such a
proceeding. Once the superintendent certifies that defendant is
sane, he is remanded to the custody of the warden for execution,
and 'No judge, court, or officer other than the Governor' can then
suspend the execution of the judgment, 'except the warden of the
State prison to whom he is delivered. . . .' In re Phyle,
30 Cal. 2d at 842, 843, 186 P.2d at 137."
For the statements in its opinion that the due process clause of
the Fourteenth Amendment conferred no right on a condemned
defendant to any kind of judicial adjudication or review on the
question of sanity, the State Supreme Court primarily relied on
Nobles v. Georgia, 168 U. S. 398
do not think that either the actual holding or what was said in the
opinion in that case would necessarily require a rejection of the
contentions made here against the California procedures.
The Georgia law under scrutiny in the Nobles
provided that the sanity of a person previously condemned to death
should be determined by a tribunal formed in the following
"The Sheriff of the
Page 334 U. S. 438
county, with concurrence and assistance of the Ordinary
[emphasis added], shall summon a jury of twelve men to
inquire into such insanity. . . ."
Code 1882, § 4666. If this tribunal found insanity, the sheriff
was required to suspend execution of sentence and report his action
to the presiding judge. Restoration of sanity so as to justify
execution was to be determined by the presiding judge "by
inquisition or otherwise." Thus, "the only question" in the
case, as the Court there said, was "whether . . . ,
in order to constitute due process of law," the question of
insanity of a condemned defendant must
"be tried by a jury in a judicial proceeding surrounded by all
the safeguards and requirements of a common law jury trial, and
even although by the state law full and adequate administrative and
-judicial process is created for the purpose of
investigating the suggestion."
168 U.S. at 168 U. S. 405
This agency for a hearing to inquire into the prisoner's sanity,
composed as it was of sheriff, county judge, and jury, was referred
to as an "apt and special tribunal." There is provision in the
California statutes for a hearing before a judge and jury when, but
only when, the warden is of opinion that there "is reason to
believe" a defendant is insane.
case does stand for the proposition that a
condemned defendant has no "absolute right" to a hearing on the
question of his sanity on his mere "suggestion." Such an absolute
right, this Court thought, would make the punishment of a defendant
"depend solely upon his fecundity in making suggestion after
suggestion of insanity, to be followed by trial upon trial." 168
U.S. at 168 U. S. 406
For this reason, the Court in the Nobles
opinion cited and
quoted from legal commentators and from judicial opinions which
emphasized, as the opinion in the Nobles
emphasized, the importance of leaving to the "discretion of a
judge" the most appropriate procedure for determining
Page 334 U. S. 439
the sanity of a defendant already sentenced to death. It was in
this connection that the Court made the statement in the
case upon which the California Supreme Court
particularly relied -- that "the manner in which such question
should be determined was purely a matter of legislative
Reading this statement in its context and in relation to the
Georgia procedure, we do not understand that the Court in the
case passed upon the question here urged: whether a
state which bars the execution of insane persons can submit to a
single individual this question, crucial to life, to be decided by
that individual ex parte,
with or without notice and
hearings as the individual may choose, and without any judicial
supervision, control, or review whatever. The Nobles
we do understand to be an authority for the principle that a
condemned defendant cannot automatically block execution by
suggestions of insanity, and that a state tribunal, particularly a
judge, must be left free to exercise a reasonable discretion in
determining whether the facts warrant a full inquiry and hearing
upon the sanity of a person sentenced to death. [Footnote 7
What has been said previously indicates the gravity of the
questions here raised under the due process clause as heretofore
construed by this Court, both the contention that execution of an
insane man is offensive to the fundamental principles of liberty
and justice which lie at the base of all our civil and political
institutions, Adamson v. California, 332 U. S.
, 332 U. S. 54
Carter v. Illinois, 329 U. S. 173
329 U. S. 175
329 U. S. 179
and the different contention that life shall not be taken by a
state as the result of the unreviewable ex parte
determination of a crucial fact made by a single executive officer.
See Ng Fung Ho v.
Page 334 U. S. 440
276. [Footnote 8
] It is not
appropriate for us to pass on such constitutional questions in this
habeas corpus case if, as the California attorney general contends,
there is a state remedy by mandamus available to petitioner under
which he can invoke judicial action to compel the warden to
initiate judicial proceedings, and in which mandamus proceedings
the court will hear and consider evidence to determine whether
there is "reason to believe" that the petitioner is insane. New
York ex rel. Whitman v. Wilson, Warden, 318 U.
; Woods v. Nierstheimer, 328 U.
; Carter v. Illinois, 329 U.
. See also Simon v. Craft, 182 U.
, 182 U. S.
The State Supreme Court, in denying habeas corpus, said that the
state statutes made
"no provision for a judicial determination of the question of
the sanity of a defendant delivered to the warden of a state prison
for execution except as set forth in section 3701."
That is the section which requires a judicial inquiry with a
court and jury only when and if the warden certifies that "there is
good reason to believe" that a person sentenced to death has
"become insane." But it does not necessarily follow from the fact
that petitioner cannot obtain a full-fledged judicial hearing as to
sanity on his own motion made directly to a state court that he is
without some other adequate state remedy. And the state attorney
general asserts here that the petitioner does have an "ample
remedy, if the facts support him, by application to the California
courts for a writ of mandamus" to compel the warden to institute
proceedings under § 3701.
Page 334 U. S. 441
Thus, we have an unequivocal declaration by the state attorney
general that petitioner has not attempted to take advantage of an
available state remedy. The attorney general is the highest
nonjudicial legal officer of California, and is particularly
charged with the duty of supervising administration of the criminal
laws. [Footnote 9
statement on this question is entitled to great weight in the
absence of controlling state statutes and court decisions.
] Nor is there
anything in the State Supreme Court's opinion in this case that
need be considered in conflict with the attorney general's opinion.
While that court held that there was no statutory provision for
petitioner to obtain a sanity hearing except through action by the
warden as prescribed in § 3701, it did not hold or even consider
whether there was judicial power under state law to compel the
warden to do his duty under § 3701. It did declare, clearly and
emphatically, that the statute imposed a mandatory obligation on
the warden to initiate judicial proceedings if there was good
reason to believe a condemned defendant insane, an obligation that
continued to rest upon the warden even after certification of
restoration to sanity by the medical superintendent. The Supreme
Court also declared that this duty would continue up to the very
time of execution. Failure of the warden to perform this
obligation, so the court said, would be a "violation of Penal Code
section 1367," which section prohibits execution of an insane man.
In view of this mandatory obligation upon the warden to initiate
proceedings if "there is good reason to believe" a defendant
sentenced to death is insane, it would be somewhat anomalous, to
say the least, if California courts were wholly without power to
correct an executive agent's abuse of authority in a
Page 334 U. S. 442
matter of such great significance as the execution of insane
The jurisdiction of California courts to issue mandamus has its
source in art. VI, §§ 4, 4b, 5 of the state constitution. The writ
can issue to any inferior tribunal or person to compel an act which
the law specifically enjoins. Code of Civil Procedure of
California, § 1085. It has been held that the writ may issue
against the Secretary of State, Hutchinson v. Brown,
Cal. 189, 54 P. 738, or even against the Governor. Elliott v.
149 Cal. 516, 520, 86 P. 1087, 1089.
Petitioner contends, however, that mandamus would not be
available under California law if there is another adequate remedy,
see Kahn v. Smith, 23 Cal. 2d 12
142 P.2d 13, that here, habeas corpus is available, and hence
mandamus is not. This contention is fully answered by the State
Supreme Court's opinion in this case, holding that neither habeas
corpus nor any other remedy is available to test sanity of a
condemned defendant except that remedy under § 3701 which only the
warden can institute. Hence, so far as it here appears, mandamus to
compel action by the warden is the only available remedy.
Petitioner contends that this remedy is inadequate because,
under California law, no relief could be hoped for in a mandamus
proceeding without a showing that the warden's nonaction was
arbitrary and capricious. We cannot know, of course, just what
precise standards the State Supreme Court may hold must be met by
petitioner in order to obtain the judicial inquiry provided in §
3701. We are persuaded by the attorney general's statements and
brief, and by the state constitution, state statutes, and state
decisions to which he referred, that mandamus is probably
available, and that, in a mandamus proceeding, some issues of fact
concerning petitioner's sanity can be drawn by the parties,
resolved by the courts,
Page 334 U. S. 443
and provide support for relief. Different language has been used
in different opinions concerning the conditions upon which the writ
will issue in California. Although it has been said that generally
the writ will issue only to correct an abuse of discretion,
Bank of Italy v. Johnson,
200 Cal. 1, 31-33, 251 P. 784,
795, 796, and cases cited, it has also been pointed out that, in
some circumstances, writs can issue to compel action in a
particular way. Wood v. Strother,
76 Cal. 545, 549, 18 P.
766, 769; Landsborough v. Kelly, 1 Cal. 2d 739
744, 37 P.2d 93, 95.
In considering what the issues may be in a mandamus proceeding,
it must be borne in mind that the warden is under a mandatory duty
to initiate judicial proceedings not when a defendant is insane,
but when "there is good reason to believe" he is insane. We cannot
say at this time that California's remedy by mandamus will be less
than a substantial equivalent [Footnote 11
] of one which authorized him to apply
directly to a court for a full hearing. For this Court held in
Nobles v. Georgia, supra,
that, in the absence of
sufficient reasons for holding a full hearing into the sanity of a
defendant sentenced to death, a state judge may deny such a hearing
consistently with due process. As previously pointed out, the
decision in the Nobles
case emphasized that due process of
law had never necessarily envisioned a full court hearing every
time the insanity of a condemned defendant was suggested.
Applications for inquiries into sanity made by a defendant
sentenced to death, unsupported by facts and buttressed by no good
reasons for believing that the defendant has lost his sanity,
cannot, with any appropriate regard for society and for the
judicial process, call for the delays in execution incident to full
judicial inquiry. And a court can just as satisfactorily
Page 334 U. S. 444
determine by mandamus as by direct application whether there are
good reasons to have a full-fledged judicial inquiry into a
In this situation, we find no federal constitutional question
presented which is ripe for decision here. So here, as in Woods
v. Nierstheimer, supra,
being unable to say that the judgment
denying habeas corpus may not rest on an adequate nonfederal
ground, the writ of certiorari is
The opinion of the State Supreme Court affirming petitioner's
sentence shows: upon arraignment in the Superior Court, counsel was
appointed for petitioner at his request. His pleas were "Not
guilty" and "Not guilty by reason of insanity." Later petitioner
informed his counsel that he wished to withdraw these pleas and
enter a plea of guilty. The trial judge then examined petitioner at
length, satisfied himself that the change of plea was voluntarily
entered by petitioner with full knowledge of his legal rights, and
then accepted it. Evidence was then taken by the court to determine
the degree of the murder and to fix the punishment. Two physicians
appointed by the court testified that, in their judgment,
petitioner was sane. Other witnesses testified to the facts of the
crime. The murder was committed by petitioner while he was in the
act of perpetrating a robbery. During the entire proceedings, so
the State Supreme Court found from the record, the appointed
counsel participated and represented petitioner "with fidelity and
proficiency." People v. Phyle, 28 Cal. 2d
, 171 P.2d 428, 429.
"3701. Insanity of defendant, how determined. If, after his
delivery to the warden for execution, there is good reason to
believe that a defendant under judgment of death has become insane,
the warden must call such fact to the attention of the district
attorney of the county in which the prison is situated, whose duty
it is to immediately file in the superior court of such county a
petition, stating the conviction and judgment and the fact that the
defendant is believed to be insane, and asking that the question of
his sanity be inquired into. Thereupon the court must at once cause
to be summoned and impaneled, from the regular jury list of the
county, a jury of 12 persons to hear such inquiry."
"3702. Duty of district attorney upon hearing. The district
attorney must attend the hearing, and may produce witnesses before
the jury, for which purpose he may issue process in the same manner
as for witnesses to attend before the grand jury, and disobedience
thereto may be punished in like manner as disobedience to process
issued by the court."
"3703. Convict found insane. The verdict of the jury must be
entered upon the minutes, and thereupon the court must make and
cause to be entered an order reciting the fact of such inquiry and
the result thereof, and when it is found that the defendant is
insane, the order must direct that he be taken to a State hospital
for the insane, and there kept in safe confinement until his reason
"3704. Convict found sane: Duties of warden. If it is found that
the defendant is sane, the warden must proceed to execute the
judgment as specified in the warrant; if it is found that the
defendant is insane, the warden must suspend the execution and
transmit a certified copy of the order mentioned in the last
section to the Governor, and deliver the defendant, together with a
certified copy of such order, to the medical superintendent of the
hospital named in such order. When the defendant recovers his
reason, the superintendent of such hospital must certify that fact
to the Governor, who must thereupon issue to the warden his warrant
appointing a day for the execution of the judgment, and the warden
shall thereupon return the defendant to the State prison pending
the execution of the judgment."
"3700. Governor may suspend. No judge, court, or officer, other
than the governor can suspend the execution of a judgment of death
except the warden of the State prison to whom he is delivered for
execution, as provided in the six succeeding sections, unless an
appeal is taken."
cases collected in 49 A.L.R. 804 et
See also Yick Wo v. Hopkins, 118 U.
, 118 U. S.
-370; Regal Drug Corporation v. Wardell,
260 U. S. 386
260 U. S.
-392; Duncan v. Kahanamoku, 327 U.
, 327 U. S. 322
Dent v. West Virginia, 129 U. S. 114
129 U. S.
-124; Brown v. New Jersey, 175 U.
, 175 U. S. 176
St. Joseph Stock Yards Co. v. United States, 298 U. S.
, 298 U. S. 49
298 U. S. 76
concurring opinion, Brandeis, J. Cf. United States v. Ju
Toy, 198 U. S. 253
198 U. S. 263
Simon v. Craft, 182 U. S. 427
182 U. S.
California Government Code, §§ 12510-12512, 12519,
See Union Ins. Co. v.
21 How. 35, 66; Fox v. Standard Oil
Co., 294 U. S. 87
294 U. S. 96
Driscoll v. Edison Light & Power Co., 307 U.
, 307 U. S.
See Edison Co. v. Labor Board, 305 U.
, 305 U. S. 234
Opp Cotton Mills, Inc. v. Administrator, 312 U.
, 312 U. S.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE DOUGLAS, MR. JUSTICE
MURPHY, and MR. JUSTICE RUTLEDGE join, concurring.
Where life is at stake, one cannot be too careful. I's had
better be dotted, and t's crossed. And so I deem it proper to state
my understanding of the opinion of the Court, on the basis of which
I concur in it.
We granted certiorari to review a decision of the Supreme Court
of California which dismissed habeas corpus proceedings brought in
that court. We did so on the assumption that the case raised
questions under the Fourteenth Amendment -- more particularly,
whether an unreviewable determination by the superintendent of a
State hospital, that one convicted of murder and found to have
become insane after conviction had been restored to sanity and
therefore was subject to execution, was consistent with the due
process which the Fourteenth Amendment secures. The Court now finds
that all that the California Supreme Court did was to hold that, as
a matter of California procedure, the petitioner's claim could not
be passed on by the direct remedy of habeas corpus, but that there
is available a special local remedy, labeled mandamus, whereby the
petitioner can judicially test his present sanity. In short, the
Court dismisses the writ of certiorari because the decision of the
court below rests on
Page 334 U. S. 445
a purely State ground in that there is a State remedy available,
which has not been pursued, by means of which he can secure the
rights he claims under the United States Constitution.
Of course, I recognize the weight to be attached to the Attorney
General's views regarding the law of California. But the
controlling voice on California law is that of the Supreme Court of
California. Whatever may be the elegancies of procedure by which
the matter is to be determined, our decision declining to consider
the grave constitutional issues which we thought we had before us
is contingent upon a determination by the Supreme Court of
California that the law of that State is what our decision
presupposes it to be -- namely, that California, by a remedy which
California chooses to call mandamus, enables the present petitioner
to secure a judicial determination of his present sanity. This
means, of course, not the very restricted scope of relief which is
normally associated with the traditional remedy of mandamus. It
presupposes that California affords petitioner the means of
challenging in a substantial way the ex parte
the Superintendent of the State Hospital for the Insane, and
enables him to secure judicial determination of the claims he has
made in his petition for habeas corpus which, so the Court now
holds, is not the proper way to proceed.
Upon this view, I concur in the decision and opinion of the