The Federal Kidnaping Act provides that interstate kidnapers
"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."
The District Court dismissed the count of an indictment charging
appellees with violating the Act because it makes "the risk of
death" the price for asserting the right to trial by jury, and thus
"impairs . . . free exercise" of that constitutional right. The
Government appealed directly to this Court.
Held: The death penalty clause imposes an impermissible
burden upon the exercise of a constitutional right, but that
provision is severable from the remainder of the Act and the
unconstitutionality of that clause does not require the defeat of
the Act as a whole. Pp.
390 U. S.
572-591.
262 F.
Supp. 716, reversed and remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The Federal Kidnaping Act, 18 U.S.C. § 1201(a), provides:
"Whoever knowingly transports in interstate . . . commerce, any
person who has been unlawfully . . . kidnaped . . . and held for
ransom . . . or otherwise
Page 390 U. S. 571
. . . 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. [
Footnote 1] The District Court dismissed this
count of the indictment, [
Footnote
2] 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. [
Footnote
3] The Government appealed
Page 390 U. S. 572
directly to this Court, [
Footnote 4] and we noted probable jurisdiction. [
Footnote 5] 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 District Court therefore erred in dismissing the kidnaping
count of the indictment.
I
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 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
Page 390 U. S. 573
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, [
Footnote 6] for it is not, in fact, the scheme that
Congress enacted.
At the outset, we reject the Government's argument that the
Federal Kidnaping Act gives the trial judge discretion to set aside
a jury recommendation of death. So far as we are aware, not once in
the entire 34-year history of the Act has a jury's recommendation
of death been discarded by a trial judge. [
Footnote 7] The Government would
Page 390 U. S. 574
apparently have us assume either that trial judges have always
agreed with jury recommendations of capital punishment under the
statute -- an unrealistic assumption, at best, [
Footnote 8] -- or that they have abdicated their
statutory duty to exercise independent judgment on the issue of
penalty. In fact, the explanation is a far simpler one. The statute
unequivocally states that, "if the verdict of the jury shall so
recommend," the defendant "shall be punished . . . by death. . . ."
The word is "shall," not "may." [
Footnote 9] In acceding without exception to jury
recommendations
Page 390 U. S. 575
of death, trial judges have simply carried out the mandate of
the statute.
The Government nonetheless urges that we overlook Congress'
choice of the imperative. Whatever might have been assumed in the
past, we are now asked to construe the statute so as to eliminate
the jury's power to fix the death penalty without the approval of
the presiding judge. "[T]his reading," it is said, would conform
"to the long tradition that makes the trial judge in the federal
courts the arbiter of the sentence." And so it would. The
difficulty is that Congress intentionally discarded that tradition
when it passed the Federal Kidnaping Act. Over the forcefully
articulated objection that jury sentencing would represent an
unwarranted departure from settled federal practice, [
Footnote 10] Congress rejected a
version of the Kidnaping Act that would have
Page 390 U. S. 576
left punishment to the court's discretion [
Footnote 11] and, instead, chose an alternative
that shifted from a single judge to a jury of 12 the onus of
inflicting the penalty of death. [
Footnote 12] To accept the Government's suggestion that
the jury's sentencing role be treated as merely advisory would
return to the judge the ultimate duty that Congress deliberately
placed in other hands.
The thrust of the clause in question was clearly expressed by
the House Judiciary Committee that drafted it: Its purpose was,
quite simply, "to permit the jury to
designate a death
penalty for the kidnaper." [
Footnote 13] The fact that Congress chose the word
"recommend" to describe what the jury would do in designating
punishment cannot obscure the basic congressional objective of
making the jury, rather than the judge the arbiter of the death
sentence. The Government's contrary contention cannot stand.
Equally untenable is the Government's argument that the
Kidnaping Act authorizes a procedure unique in the federal system
-- that of convening a special jury, without the defendant's
consent, for the sole purpose of deciding
Page 390 U. S. 577
whether he should be put to death. We are told initially that
the Federal Kidnaping Act authorizes this procedure by implication.
The Government's reasoning runs as follows: the Kidnaping Act
permits the infliction of capital punishment whenever a jury so
recommends. The Act does not state in so many words that the jury
recommending capital punishment must be a jury impaneled to
determine guilt as well. Therefore, the Act authorizes infliction
of the death penalty on the recommendation of a jury specially
convened to determine punishment. The Government finds support for
this analysis in a Seventh Circuit decision construing the Federal
Kidnaping Act to mean that the death penalty may be imposed
whenever "an affirmative recommendation [is] made by a jury,"
including a jury convened solely for that purpose after the court
has accepted a guilty plea.
Seadlund v. United States, 97
F.2d 742, 748.
Accord, Robinson v. United
States, 264 F.
Supp. 146,
153.
But the statute does not say "a jury." It says "
the jury."
At least when the defendant demands trial by jury on the issue of
guilt, the Government concedes that "the verdict of the jury" means
what those words naturally suggest: the general verdict of
conviction or acquittal returned by the jury that passes upon guilt
or innocence. Thus, when such a jury has been convened, the
statutory reference is to that jury alone, not to a jury impaneled
after conviction for the limited purpose of determining punishment.
[
Footnote 14] Yet the
Government argues that, when the issue of guilt has been tried to a
judge or has been eliminated altogether by a plea of guilty, "the
verdict of the jury" at once assumes a completely new meaning. In
such a case, it is said, "the verdict of the jury" means the
recommendation
Page 390 U. S. 578
of a jury convened for the sole purpose of deciding whether the
accused should live or die.
The Government would have us give the statute this strangely
bifurcated meaning without the slightest indication that Congress
contemplated any such scheme. Not a word in the legislative history
so much as hints that a conviction on a plea of guilty or a
conviction by a court sitting without a jury might be followed by a
separate sentencing proceeding before a penalty jury. If the power
to impanel such a jury had been recognized elsewhere in the federal
system when Congress enacted the Federal Kidnaping Act, perhaps
Congress' total silence on the subject could be viewed as a tacit
incorporation of this sentencing practice into the new law. But the
background against which Congress legislated was barren of any
precedent for the sort of sentencing procedure we are told Congress
impliedly authorized.
The Government nonetheless maintains that Congress' failure to
provide for the infliction of the death penalty upon those who
plead guilty or waive jury trial was no more than an oversight that
the courts can and should correct. At least twice, Congress has
expressly authorized the infliction of capital punishment upon
defendants convicted without a jury, [
Footnote 15] but even on the assumption
Page 390 U. S. 579
that the failure of Congress to do so here was wholly
inadvertent, it would hardly be the province of the courts to
fashion a remedy. Any attempt to do so would be fraught with the
gravest difficulties: if a special jury were convened to recommend
a sentence, how would the penalty hearing proceed? What would each
side be required to show? What standard of proof would govern? To
what extent would conventional rules of evidence be abrogated? What
privileges would the accused enjoy? Congress, unlike the state
legislatures that have authorized jury proceedings to determine the
penalty in capital cases, [
Footnote 16] has addressed itself to none of these
questions. [
Footnote 17]
Page 390 U. S. 580
It is one thing to fill a minor gap in a statute to extrapolate
from its general design details that were inadvertently omitted. It
is quite another thing to create from whole cloth a complex and
completely novel procedure and to thrust it upon unwilling
defendants for the sole purpose of rescuing a statute from a charge
of unconstitutionality. We recognize that trial judges sitting in
federal kidnaping cases have on occasion chosen the latter course,
attempting to fashion on an
ad hoc basis the ground rules
for penalty proceedings before a jury. [
Footnote 18] We do not know what kinds of rules
particular federal judges have adopted, how widely such rules have
varied, or how fairly they have been applied. But one thing at
least is clear: individuals forced to defend their lives in
proceedings tailor-made for the occasion must do so without the
guidance that defendants ordinarily find in a body of procedural
and evidentiary rules spelled out in advance of trial. [
Footnote 19] The Government notes
with approval
Page 390 U. S. 581
"the decisional trend which has sought . . . to place the most
humane construction on capital legislation." Yet it asks us to
extend the capital punishment provision of the Federal Kidnaping
Act in a new and uncharted direction without the compulsion of a
legislative mandate and without the benefit of legislative
guidance. That we decline to do.
II
Under the Federal Kidnaping Act, therefore, the defendant who
abandons the right to contest his guilt before a jury is assured
that he cannot be executed; the defendant ingenuous enough to seek
a jury acquittal stands forewarned that, if the jury finds him
guilty and does not wish to spare his life, he will die. Our
problem is to decide whether the Constitution permits the
establishment of such a death penalty, applicable only to those
defendants who assert the right to contest their guilt before a
jury. The inevitable effect of any such provision is, of course, to
discourage assertion of the Fifth Amendment right not to plead
guilty [
Footnote 20] and to
deter exercise of the Sixth Amendment right to demand a jury trial.
If the provision had no other purpose or effect than to chill the
assertion of constitutional rights by penalizing those who choose
to exercise them, then it would be patently unconstitutional. But,
as the Government notes, limiting the death penalty to cases where
the jury recommends its imposition does have another objective: it
avoids the more drastic alternative of mandatory
Page 390 U. S. 582
capital punishment in every case. In this sense, the selective
death penalty procedure established by the Federal Kidnaping Act
may be viewed as ameliorating the severity of the more extreme
punishment that Congress might have wished to provide. [
Footnote 21]
The Government suggests that, because the Act thus operates "to
mitigate the severity of punishment," it is irrelevant that it "may
have the incidental effect of inducing defendants not to contest in
full measure." [
Footnote 22]
We cannot agree. Whatever might be said of Congress' objectives,
they cannot be pursued by means that needlessly chill the exercise
of basic constitutional rights.
Cf. United States v.
Robel, 389 U. S. 258;
Shelton v. Tucker, 364 U. S. 479,
364 U. S.
488-489. The question is not whether the chilling effect
is "incidental", rather than intentional; the question is whether
that effect is unnecessary, and therefore excessive. In this case,
the answer to that question is clear. The Congress can, of course,
mitigate the severity of capital punishment. The goal of limiting
the death penalty to cases in which a jury recommends it is an
entirely legitimate one. But that goal can be achieved without
penalizing those defendants who plead not guilty and demand jury
trial. In some States, for example, the choice between life
imprisonment and capital punishment is left to a jury in
every case -- regardless of how the defendant's guilt has
been determined. [
Footnote
23] Given the availability of this and other alternatives, it
is clear that the selective death penalty provision of the Federal
Kidnaping Act cannot be justified
Page 390 U. S. 583
by its ostensible purpose. Whatever the power of Congress to
impose a death penalty for violation of the Federal Kidnaping Act,
Congress cannot impose such a penalty in a manner that needlessly
penalizes the assertion of a constitutional right.
See Griffin
v. California, 380 U. S. 609.
[
Footnote 24]
It is no answer to urge, as does the Government, that federal
trial judges may be relied upon to reject coerced pleas of guilty
and involuntary waivers of jury trial. For the evil in the federal
statute is not that it necessarily
coerces guilty pleas
and jury waivers, but simply that it needlessly
encourages
them. A procedure need not be inherently coercive in order that it
be held to impose an impermissible burden upon the assertion of a
constitutional right. Thus, the fact that the Federal Kidnaping Act
tends to discourage defendants from insisting upon their innocence
and demanding trial by jury hardly implies that every defendant who
enters a guilty plea to a charge under the Act does so
involuntarily. [
Footnote 25]
The power to reject coerced guilty pleas and involuntary jury
waivers might alleviate, but it cannot totally eliminate, the
constitutional infirmity in the capital punishment provision of the
Federal Kidnaping Act.
Page 390 U. S. 584
The Government alternatively proposes that this Court, in the
exercise of its supervisory powers, should simply instruct federal
judges sitting in kidnaping cases to reject all attempts to waive
jury trial and all efforts to plead guilty, however voluntary and
well informed such attempted waivers and pleas might be. In that
way, we could assure that every defendant charged in a federal
court with aggravated kidnaping would face a possible death
penalty, and that no defendant tried under the federal statute
would be induced to forgo a constitutional right. But, of course,
the inevitable consequence of this "solution" would be to force all
defendants to submit to trial, however clear their guilt and
however strong their desire to acknowledge it in order to spare
themselves and their families the spectacle and expense of
protracted courtroom proceedings. It is true that a defendant has
no constitutional right to insist that he be tried by a judge,
rather than a jury,
Singer v. United States, 380 U. S.
24, and it is also true "that a criminal defendant has
[no] absolute right to have his guilty plea accepted by the court."
Lynch v. Overholser, 369 U. S. 705,
369 U. S. 719.
But the fact that jury waivers and guilty pleas may occasionally be
rejected hardly implies that all defendants may be required to
submit to a full-dress jury trial as a matter of course. Quite
apart from the cruel impact of such a requirement upon those
defendants who would greatly prefer not to contest their guilt, it
is clear -- as even the Government recognizes -- that the automatic
rejection of all guilty pleas "would rob the criminal process of
much of its flexibility." As one federal court has observed:
[
Footnote 26]
"The power of a court to accept a plea of guilty is traditional
and fundamental. Its existence is necessary for the . . . practical
. . . administration
Page 390 U. S. 585
of the criminal law. Consequently, it should require an
unambiguous expression on the part of the Congress to withhold this
authority in specified cases."
If any such approach should be inaugurated in the administration
of a federal criminal statute, we conclude that the impetus must
come from Congress, not from this Court. The capital punishment
provision of the Federal Kidnaping Act cannot be saved by judicial
reconstruction.
III
The remaining question is whether the statute as a whole must
fall simply because its death penalty clause is constitutionally
deficient. The District Court evidently assumed that it must, for
that court dismissed the kidnaping indictment. We disagree. As we
said in
Champlin Rfg. Co. v. Commission, 286 U.
S. 210,
286 U. S.
234:
"The unconstitutionality of a part of an Act does not
necessarily defeat . . . the validity of its remaining provisions.
Unless it is evident that the legislature would not have enacted
those provisions which are within its power independently of that
which is not, the invalid part may be dropped if what is left is
fully operative as a law. [
Footnote 27] "
Page 390 U. S. 586
Under this test, it is clear that the clause authorizing capital
punishment is severable from the remainder of the kidnaping statute
and that the unconstitutionality of that clause does not require
the defeat of the law as a whole.
See McDowell v. United
States, 274 F.
Supp. 426, 429.
Cf. Spillers v. State, ___ Nev. ___,
___,
436 P.2d 18,
23-24.
The clause in question is a functionally independent part of the
Federal Kidnaping Act. Its elimination in no way alters the
substantive reach of the statute, and leaves completely unchanged
its basic operation. Under such circumstances, it is quite
inconceivable that the Congress which decided to authorize capital
punishment in aggravated kidnaping cases would have chosen to
discard the entire statute if informed that it could not include
the death penalty clause now before us. [
Footnote 28]
In this case, it happens that history confirms what common sense
alone would suggest: the law, as originally enacted in 1932,
contained no capital punishment provision. [
Footnote 29] A majority of the House had favored
the
Page 390 U. S. 587
death penalty, but had yielded to opposition in the Senate as a
matter of expediency. [
Footnote
30] Only one Congressman had expressed the view that the law
would not be worth enacting without capital punishment. [
Footnote 31] The majority obviously
felt otherwise. [
Footnote
32] When the death penalty was added in 1934, the statute was
left substantially unchanged
Page 390 U. S. 588
in every other respect. [
Footnote 33] The basic problem that had prompted
enactment of the law in 1932 -- the difficulty of relying upon
state and local authorities to
Page 390 U. S. 589
investigate and prosecute interstate kidnaping [
Footnote 34] -- had not vanished during the
intervening two years. It is therefore clear that Congress would
have made interstate kidnaping a federal crime even if the death
penalty provision had been ruled out from the beginning. It would
be difficult to imagine a more compelling case for
severability.
In an effort to suggest the contrary, the appellees insist that
the 1934 amendment "did not merely increase the penalties for
kidnaping; it changed the whole thrust of the Act." They note that
Congress deliberately limited
Page 390 U. S. 590
capital punishment to those kidnapers whose victims are not
liberated unharmed. Such a differential penalty provision, the
appellees argue, is needed to discourage kidnapers from injuring
those whom they abduct. [
Footnote 35] The appellees contend that, without its
capital punishment clause, the Federal Kidnaping Act would not
distinguish "the penalties applicable to those who do and those who
do not harm or kill their victims." Stressing the obvious
congressional concern for the victim's safety, they conclude that
"it is doubtful that Congress would intend for the statute to stand
absent such a feature." This argument is wrong as a matter of
history, for Congress enacted the statute "absent such a feature."
[
Footnote 36] It is
Page 390 U. S. 591
wrong as a matter of fact, for the length of imprisonment
imposed under the Act can obviously be made to reflect the
kidnaper's treatment of his victim. And it is wrong as a matter of
logic, for nothing could more completely obliterate the distinction
between "the penalties applicable to those who do and those who do
not harm or kill their victims" than the total invalidation of all
the penalties provided by the Federal Kidnaping Act -- the precise
result sought by the appellees.
Thus, the infirmity of the death penalty clause does not require
the total frustration of Congress' basic purpose -- that of making
interstate kidnaping a federal crime. By holding the death penalty
clause of the Federal Kidnaping Act unenforceable, we leave the
statute an operative whole, free of any constitutional objection.
The appellees may be prosecuted for violating the Act, but they
cannot be put to death under its authority.
The judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 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 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)."
[
Footnote 2]
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.
[
Footnote 3]
262 F.
Supp. 716, 718.
[
Footnote 4]
18 U.S.C. § 3731.
[
Footnote 5]
387 U.S. 929.
[
Footnote 6]
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 a waiver of jury trial.
Even if the Government's statutory position were correct, the fact
would remain that the defendant convicted on a guilty plea or by a
judge completely escapes the threat of capital punishment unless
the trial judge makes an affirmative decision to commence a penalty
hearing and to impanel a special jury for that purpose, whereas the
defendant convicted by a jury automatically incurs a risk that the
same jury will recommend the death penalty and that the judge will
accept its recommendation.
[
Footnote 7]
One district judge has indicated that he would not feel bound by
a jury recommendation of death in a kidnaping case,
see
Robinson v. United States, 264 F.
Supp. 146, 151-153, but the question was not directly before
him, since the case involved a petition for post-conviction relief.
Although federal juries have recommended capital punishment in a
number of kidnaping cases, counsel for the Government stated at
oral argument in this Court that he was aware of no case in which
such a recommendation had been set aside.
[
Footnote 8]
See H. Kalven & H. Zeisel, The American Jury
436-444 (1966).
[
Footnote 9]
The Government notes that the word "shall" precedes
both alternative punishments: the offender "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. . . ." But the notion that judicial discretion is
thereby authorized is dispelled by the qualification attached to
the second alternative: "by imprisonment . . .
if the death
penalty is not imposed." Although it is true that the judge,
rather than the jury, is formally responsible for imposing sentence
in a federal criminal case, those qualifying words would state a
pointless truism unless they were meant to refer to the jury's
recommendation: the offender "shall be punished (1) by death . . .
if the verdict of the jury shall so recommend, or (2) by
imprisonment" if the jury's verdict does
not so recommend.
To accept the Government's reading of the statute would make its
final phrase a complete redundancy, anomalous indeed in a statute
that Congress has twice pruned of excess verbiage.
See
Reviser's Note following 18 U.S.C. § 1201.
Nothing in the language or history of the Federal Kidnaping Act
points to any such result. On the contrary, an examination of the
death penalty provision in its original form demonstrates that
Congress could not have intended the meaning the Government now
seeks to attribute to it. For the statute as it stood in 1934
provided that the offender
"shall, upon conviction, be punished (1) by death if the verdict
of the jury shall so recommend, provided that the sentence of death
shall not be imposed by the court if, prior to its imposition, the
kidnaped person has been liberated unharmed, or (2) if the death
penalty shall not apply nor be imposed the convicted person shall
be punished by imprisonment in the penitentiary for such term of
years as the court in its discretion shall determine. . . ."
48 Stat. 781. In this form, the statutory language simply will
not support the interpretation that the offender "shall be punished
by death or by imprisonment" if the jury recommends the death
penalty. For the statute in this form makes unmistakably clear
that, if the death penalty applies --
i.e., if the jury
has recommended death -- then the punishment shall be death unless,
before the judge has imposed sentence, the victim has been
liberated unharmed. There is absolutely no reason to think that the
purely formal transformations through which the statute has passed
since 1934 were intended to alter this basic penalty structure.
[
Footnote 10]
See 75 Cong.Rec. 13288, 13295-13297 (1932).
[
Footnote 11]
As originally drafted, the Kidnaping Act had provided for
punishment "by death or imprisonment . . . for such term of years
as the court in its discretion shall determine. . . ." 75 Cong.Rec.
13288 (1932).
[
Footnote 12]
A number of Congressmen feared that empowering judges to impose
capital punishment might make some jurors unduly reluctant to
convict.
See 75 Cong.Rec. 13289, 13294 (1932). To the
extent that this concern was responsible for the decision to
require a jury recommendation of death as a prerequisite to the
imposition of capital punishment, it is, of course, immaterial
whether or not the jury's recommendation is binding on the trial
judge. But, as the Government concedes, many of the Congressmen who
favored jury determination of the death penalty did so largely
because such a scheme would take from the judge the onus of
inflicting capital punishment.
See, e.g., 75 Cong.Rec.
13297.
[
Footnote 13]
H.R.Rep. No. 1457, 73d Cong., 2d Sess., 2 (1934) (emphasis
added).
[
Footnote 14]
If the jury's verdict of guilt includes no death penalty
recommendation, the judge can impose no penalty beyond
imprisonment. He cannot convene another jury to recommend capital
punishment.
See United States v. Dressler, 112 F.2d 972,
980.
[
Footnote 15]
In a statute forbidding the wrecking of trains, Congress
provided that
"[w]hoever is convicted of any such crime, which has resulted in
the death of any person, shall be subject . . . to the death
penalty . . . if the jury shall in its discretion so direct,
or, in the case of a plea of guilty, if the court in its
discretion shall so order."
62 Stat. 794 (1948), 18 U.S.C. § 1992 (emphasis added). And in a
statute prohibiting the destruction of aircraft, Congress provided
that violators whose conduct causes death
"shall be subject . . . to the death penalty . . . if the jury
shall in its discretion so direct,
or, in the case of a plea of
guilty, or a plea of not guilty where the defendant has waived a
trial by jury, if the court in its discretion shall so
order."
70 Stat. 540 (1956), 18 U.S.C. § 34 (emphasis added).
The language of the aircraft-wrecking statute, 18 U.S.C. § 34,
is of particular interest here, because it reflects a congressional
awareness of the precise problem the Government suggests Congress
overlooked in the kidnaping area: in a letter addressed to the
Chairman of the House Committee on Interstate and Foreign Commerce,
William P. Rogers, then Deputy Attorney General, suggested on
behalf of the Justice Department that the bill then under
consideration should be amended by the addition of the phrase "or
in the case of a plea of not guilty where the defendant has waived
trial by jury." The letter stated:
"Under the present phraseology, it is doubtful whether the court
could invoke the death penalty in a situation where the defendant
has entered a plea of not guilty, waived his right to a trial by
jury, and asked to be tried by the court."
2 U.S.Code Congressional and Administrative News, 84th Cong., 2d
Sess., 3149-3150 (1956). Congress inserted the suggested language
in the aircraft statute as enacted on July 14, 1956. Less than a
month later, Congress reconsidered the Kidnaping Act and added a
technical amendment, 70 Stat. 1043 (1956), but included no
provision to authorize the imposition of the death penalty upon
defendants who plead guilty or waive the right to jury trial.
[
Footnote 16]
See Cal.Penal Code § 190.1 (Supp. 1966);
Conn.Gen.Stat.Rev. § 53-10 (Supp. 1965); Pa.Stat.Ann., Tit. 18, §
4701 (1963); N.Y.Penal Law §§ 125.30, 125.35 (1967).
[
Footnote 17]
The complex problems presented by separate penalty proceedings
have frequently been noted.
See, e.g., Frady v. United
States, 121 U.S.App.D.C. 78, 109-110, 348 F.2d 84, 115-116
(Burger, J., concurring in part and dissenting in part); Note, The
California Penalty Trial, 52 Calif.L.Rev. 386 (1964); Note, The
Two-Trial System in Capital Cases, 39 N.Y.U.L.Rev. 50 (1964).
See also Kuh, A Prosecutor Considers the Model Penal Code,
63 Col.L.Rev. 608, 615 (1963). It is not surprising that courts
confronted with such problems have concluded that their solution
requires "comprehensive legislative, and not piecemeal judicial,
action."
State v. Mount, 30 N.J.195, 224,
152 A.2d
343, 358 (concurring opinion).
See also People v.
Friend, 47 Cal. 2d
749, 763, 306 P.2d 463, 471, n. 7.
But see United States v.
Curry, 358 F.2d 904, 914-915.
[
Footnote 18]
The Government informs us that at least three of the defendants
who pleaded guilty in cases arising under the Federal Kidnaping Act
have been sentenced to death on the recommendation of special
penalty juries convened to determine punishment.
[
Footnote 19]
Even in States with legislatively established jury proceedings
on the penalty issue, defense attorneys have not always been
prepared to take advantage of those features of the penalty trial
designed to benefit their clients.
See Note, Executive
Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 167 (1964). If the
relative novelty of penalty proceedings has thus impaired effective
representation in jurisdictions where the contours of such
proceedings have been fixed by statute, it seems clear that the
difficulties for the defense would be even more formidable under
the amorphous case-by-case system that the Government asks us to
legitimize today. It is no wonder that the Second Circuit, while
not foreclosing two-stage trials altogether, was "loath to compel
unwilling defendants to submit" to them.
United States v.
Curry, 358 F.2d 904, 914.
[
Footnote 20]
It is established that due process forbids convicting a
defendant on the basis of a coerced guilty plea.
See, e.g.,
Herman. v. Claudy, 350 U. S. 116.
[
Footnote 21]
See United States v. Curry, 358 F.2d 904, 913-914 and
n. 8.
See also Andres v. United States, 333 U.
S. 740,
333 U. S.
753-754 (Frankfurter, J., concurring).
[
Footnote 22]
See McDowell v. United States, 274 F.
Supp. 426, 431.
See also Laboy v. New
Jersey, 266 F.
Supp. 581, 585.
[
Footnote 23]
See, e.g., Wash.Rev.Code §§ 9.48.030, 10.01.060,
10.49.010 (1956).
Cf. Cal.Penal Code § 190.1 (Supp.
1966).
[
Footnote 24]
In an opinion by Justice Zenoff,
Spillers v. State, ___
Nev. ___, ___,
436 P.2d 18,
22-23, the Supreme Court of Nevada has recently held
unconstitutional a state penalty scheme imposing capital punishment
for forcible rape resulting in great bodily injury "if the jury by
their verdict affix the death penalty." Nev.Rev.Stat. § 200.360(1)
(1963).
[
Footnote 25]
See Laboy v. New Jersey, 266 F.
Supp. 581, 584. So, too, in
Griffin v. California,
380 U. S. 609, the
Court held that comment on a defendant's failure to testify imposes
an impermissible penalty on the exercise of the right to remain
silent at trial. Yet it obviously does not follow that every
defendant who ever testified at a pre-
Griffin trial in a
State where the prosecution could have commented upon his failure
to do so is entitled to automatic release upon the theory that his
testimony must be regarded as compelled.
[
Footnote 26]
United States v. Willis, 75 F.
Supp. 628, 630.
[
Footnote 27]
The appellees correctly note that
Champlin was a case
where Congress had included a clause expressly authorizing the
severance of any invalid provision, a fact upon which this Court
relied in recognizing "a presumption that, eliminating invalid
parts, the legislature would have been satisfied with what
remained. . . ."
286 U. S. 210,
286 U. S. 235.
But whatever relevance such an explicit clause might have in
creating a presumption of severability,
see Electric Bond Co.
v. Comm'n, 303 U. S. 419,
303 U. S. 434,
the ultimate determination of severability will rarely turn on the
presence or absence of such a clause. Thus, for example, the Court
in
Champlin, after stating the basic test quoted above,
cited cases in which invalid statutory provisions had been severed
despite the absence of any provision for severability.
Pollock
v. Farmers' Loan & Trust Co., 158 U.
S. 601,
158 U. S. 635;
Reagan v. Farmers' Loan & Trust Co., 154 U.
S. 362,
154 U. S.
395-396;
Field v. Clark, 143 U.
S. 649,
143 U. S.
695-696.
[
Footnote 28]
As this Court observed in
Reagan v. Farmers' Loan &
Trust Co., 154 U. S. 362,
154 U. S.
396,
"it is not to be presumed that the legislature was legislating
for the mere sake of imposing penalties, but the penalties . . .
were simply in aid of the main purpose of the statute. They may
fail, and still the great body of the statute have operative force,
and the force contemplated by the legislature in its
enactment."
[
Footnote 29]
The original Federal Kidnaping Act, 47 Stat. 326, provided:
"That whoever shall knowingly transport or cause to be
transported, or aid or abet in transporting, in interstate or
foreign commerce, any person who shall have been unlawfully seized,
confined, inveigled, decoyed, kidnaped, abducted, or carried away
by any means whatsoever and held for ransom or reward shall, upon
conviction, be punished by imprisonment in the penitentiary for
such term of years as the court, in its discretion, shall
determine. . . ."
[
Footnote 30]
The Senate Judiciary Committee had opposed capital punishment,
and had reported the kidnaping law in a version that authorized no
penalty beyond "imprisonment . . . for such term of years as the
court, in its discretion, shall determine." S.Rep. No. 765, 72d
Cong., 1st Sess., 2 (1932); 75 Cong.Rec. 11878 (1932). In the
ensuing debates, some members of the House opposed the death
penalty on principle. 75 Cong.Rec. 13285, 13289-13290, 13294
(1932). Others argued that the threat of capital punishment would
encourage kidnapers to kill their victims lest their testimony lead
to conviction and execution.
Id. at 13285, 13304. Most
favored the death penalty in some form,
see id. at
13283-13284, 13286-13287, 13295, but feared that efforts to
persuade the Senate to accept a capital punishment provision would
occasion further delay and might cause ultimate defeat.
Id. at 13288, 13299, 13303. The majority therefore
compromised their views and accepted the Senate version of the
bill.
Id. at 13304.
See Bomar, The Lindbergh Law,
1 Law,& Contemp. Prob. 435, 440 (1934).
[
Footnote 31]
Congressman Dyer of Missouri had stated that, without the death
penalty, "the legislation would not be worth anything, because
every State now has a kidnaping law and few of them provide the
death penalty." 75 Cong.Rec. 13287 (1932).
[
Footnote 32]
Congressman Cochran of Missouri, who had introduced the original
bill (H.R. 5657) with a death penalty clause, stressed that his
objective was the prompt enactment of a federal kidnaping law; to
that end, he was "willing to go along and strike out the death
penalty." 75 Cong.Rec. 13296 (1932);
see also id. at
13284, 13299, 13304. Congressman LaGuardia of New York put the
matter succinctly:
"[I]f what Congress is looking for is a headline, leave the
death penalty in; but if we are looking for a real bill that will
be a deterrent to kidnaping, take the Senate bill. [Applause.]"
Id. at 13299. Shortly thereafter, the House passed the
Senate version of the Act.
Id. at 13304.
[
Footnote 33]
By 1934, the Senate's attitude toward capital punishment had
changed markedly. In that year, the Senate passed a bill (S. 2841)
authorizing punishment "by imprisonment for not less than 10 years,
or by death" for killing or kidnaping in connection with a bank
robbery. 78 Cong.Rec. 5738 (1934). The House Judiciary Committee
amended the Senate provision to its present form,
see 18
U.S.C. § 2113(e), limiting the death penalty to those cases where
"the verdict of the jury shall so direct." H.R.Rep. No. 1461, 73d
Cong., 2d Sess., 1 (1934).
The House Judiciary Committee had not forgotten that its attempt
to include similar language in the Kidnaping Act of 1932,
see H.R.Rep. No. 1493, 72d Cong., 1st Sess., 1 (1932), had
been defeated "in the rush to draft and enact a [kidnaping] bill
suitable to both houses before adjournment." Finley, The Lindbergh
Law, 28 Geo.L.J. 908, 914, n. 24 (1940). Taking its cue from the
bank robbery legislation, the House Committee found an ideal
opportunity to reassert its 1932 position in a Senate bill (S.
2252) that had begun as a technical amendment to the 1932 Kidnaping
Act.
See 78 Cong.Rec. 5737 (1934). In S. 2252, the Senate
retained the basic punishment of "imprisonment in the penitentiary
for such term of years as the court, in its discretion, shall
determine,"
see n
29,
supra, but the House Judiciary Committee added the
alternative penalty of
"death if the verdict of the jury shall so recommend, provided
that the sentence of death shall not be imposed by the court if,
prior to its imposition, the kidnaped person has been liberated
unharmed. . . ."
H.R.Rep. No. 1457, 73d Cong., 2d Sess., 1 (1934); 78 Cong.Rec.
8127-8128 (1934).
After initial disagreement in the Senate,
id. at
8263-8264, and a conference,
id. at 8322; H.R.Rep. No.
1595, 73d Cong., 2d Sess. (1934), the Senate accepted the House
addition to S. 2252 without debate, 78 Cong.Rec. 8767, 8775, 8778,
8855-8857 (1934), and the resulting statute, 48 Stat. 781 (1934),
employed substantially the same language as that now appearing in
18 U.S.C. § 1201(a). As amended in 1934, the Federal Kidnaping Act,
48 Stat. 781, thus provided:
"Whoever shall knowingly transport or cause to be transported,
or aid or abet in transporting, in interstate or foreign commerce,
any person who shall have been unlawfully seized, confined,
inveigled, decoyed, kidnaped, abducted, or carried away by any
means whatsoever and held for ransom or reward or otherwise,
except, in the case of a minor, by a parent thereof, shall, upon
conviction, be punished (1) by death if the verdict of the jury
shall so recommend, provided that the sentence of death shall not
be imposed by the court if, prior to its imposition, the kidnaped
person has been liberated unharmed, or (2) if the death penalty
shall not apply nor be imposed the convicted person shall be
punished by imprisonment in the penitentiary for such term of years
as the court in its discretion shall determine. . . ."
[
Footnote 34]
In late 1931, the American public became seriously concerned
about the mounting incidence of professional kidnaping and the
apparent inability of state and local authorities to cope with the
interstate aspects of the problem.
See Fisher &
McGuire, Kidnapping and the So-Called Lindbergh Law, 12
N.Y.U.L.Q.Rev. 646, 652-653 (1935). Because of its geographical
position, the city of St. Louis "had experienced numerous
kidnapings in which the handicap of state lines had hindered or
defeated her police officers." Bomar, The Lindbergh Law, 1 Law
& Contemp.Prob. 435 (1934). Largely in response to this
experience, Senator Patterson and Congressman Cochran, both of
Missouri, introduced identical bills (S. 1525, H.R. 5657) in the
House and Senate, 75 Cong.Rec. 275, 491 (1931), forbidding the
transportation in interstate or foreign commerce of any person
"kidnaped . . . and held for ransom or reward, or . . . for any
other unlawful purpose." Several months after the kidnaping of the
Lindbergh baby in March, 1932, Congress enacted the first Federal
Kidnaping Act,
see n 29,
supra, a slightly modified version of the
bills introduced by Patterson and Cochran.
[
Footnote 35]
See Bomar, The Lindbergh Law, 1 Law & Contemp.Prob.
435, 440 and n. 36. One might legitimately doubt the ability of the
death penalty clause to achieve this supposed objective. In that
regard, it has been observed that
"[t]he advantage to the kidnapper in killing his victim is
obvious and immediate, for the [Government's] best witness, perhaps
its whole case, will be put out of the way. Thus, a sentence of
life imprisonment instead of death may not suffice to induce a
kidnapper to refrain from killing his victim, even if the kidnapper
is aware of the mitigation provision -- itself a supposition not
always true."
Note, A Rationale of the Law of Kidnapping, 53 Col.L.Rev. 540,
550 (1953).
Moreover, as this Court has interpreted the statute, the death
penalty may be imposed so long as "the kidnapped person . . . was
still suffering from . . . injuries when liberated."
Robinson
v. United States, 324 U. S. 282,
324 U. S. 285.
As a result,
"[o]nce [an] 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."
Id. at
324 U. S. 289
(Rutledge, J., dissenting).
[
Footnote 36]
Congress was certainly aware when it passed the original
Kidnaping Act of 1932 that "[t]he victim may be murdered or slain"
if the kidnaper "has nothing to gain by [keeping] the victim . . .
alive." 75 Cong.Rec. 13285 (1932). Such considerations might have
been influential in the omission of any death penalty provision in
1932,
see Robinson v. United States, 324 U.
S. 282,
324 U. S. 289,
n. 4 (Rutledge, J., dissenting), but not a single member of
Congress even hinted that the anti-kidnaping law should be defeated
altogether in the interest of the victim's safety. Given the law's
fundamental objective of preventing interstate kidnaping in the
first instance, any such suggestion would have been
unthinkable.
MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK joins,
dissenting.
The Court strikes down a provision of the Federal Kidnaping Act
which authorizes only the jury to impose the death penalty. No
question is raised about the death penalty itself, or about the
propriety of jury participation in its imposition, but confining
the power to impose the death penalty to the jury alone is held
to
Page 390 U. S. 592
burden impermissibly the right to a jury trial because it may
either coerce or encourage persons to plead guilty or to waive a
jury and be tried by the judge. In my view, however, if the vice of
the provision is that it may interfere with the free choice of the
defendant to have his guilt or innocence determined by a jury, the
Court needlessly invalidates a major portion of an Act of Congress.
The Court itself says that not every plea of guilty or waiver of
jury trial would be influenced by the power of the jury to impose
the death penalty. If this is so, I would not hold the provision
unconstitutional, but would reverse the judgment, making it clear
that pleas of guilty and waivers of jury trial should be carefully
examined before they are accepted, in order to make sure that they
have been neither coerced nor encouraged by the death penalty power
in the jury.
Because this statute may be properly interpreted so as to avoid
constitutional questions, I would not take the first step toward
invalidation of statutes on their face because they arguably burden
the right to jury trial.