*1 Mass. 242 O’Neal. Commonwealth testimony judgment re- should máde to turn on a possession garding when or relation to relevant issues: its passed surrogate, to the defendant or his control cautionary steps prevent have what could been taken to loss. up our on cases
We sum the effect of decision future part present. It case like the the Commonwealth’s prove “receipt” defined). (as here The Common- mailing proposition proper wealth is assisted “prima receipt, of a letter is facie evidence” of its mailing proof jury may from but means that alone receipt. required to is en- are not find The defendant nonreceipt. relevant evidence of titled introduce Exceptions sustained. Robert E. O’Neal. Commonwealth vs. 22, December 1975.
Suffolk. 1975. June C.J., Kaplan, Present: Tauro, Braucher, Hennessey, Reardon, Quirico, Wilkins, & JJ. Law, punish- Rape. Homicide. Constitutional Cruel unusual ment, of law. process Due G. L. c. mandatory penalty provided by
The § violates attempted rape of rape course murder committed Massachusetts Declaration Rights. [243] Superior Court found returned Indictments 1972. June Dimond, before were tried cases J. Jr., defendant. Homans, for the P. William Attorney, for Lloyd Macdonald, Assistant District D. Commonwealth. Young, Barshak, Robert Raymond Edward H. J. & Katz, P. Haydock, Jr., Moncreiff, Manuel Robert Mass. 242 o. *2 Segal, Terry Association, P. for the Boston Bar amicus curiae, submitted a brief. for the Massachusetts Defenders
Malvine Nathanson curiae, Committee, amicus submitted brief.
Laurence H. Tribe & Reinstein for the Civil John curiae, Massachusetts, Liberties Union of amicus submit- ted a brief. Clyde Bergstresser, Shubow,
Lawrence D. D. S. Morris Jeremy Shubow, & for the A. Stahlin Massachusetts Penalty another, Council for the Abolition the Death & curiae, amici submitted a brief.
Joseph Healy, Busch, Trimble, P. Preston F. Patrick Harry Sondheim, Guminski, B. Arnold T. & Daniel L. Bershin, California, all of for the National District Attor neys Association, curiae, amicus submitted a brief. Raymond Virginia, Charlestown,
Paul Stone West curiae, amicus submitted a brief. Pursuant to our order in Common- By the Court. parties O’Neal, v.
wealth 367 Mass. presented arguments and amici have as to whether the compelling State has a interest in retention death penalty. nowWe address the whether the issue manda- tory death for murder committed in the course of rape attempted rape, or G. L. c. § constitu- concurring opinions tional. For the reasons stated in mandatory follow, we hold that the rape attempted for murder committed in the course of or rape Rights violates the Massachusetts Declaration of and Accordingly, judgment is unconstitutional. on the imposes indictment, murder in so far as the death sen- tence, reversed, and the case is remanded to the Su- perior Court where the defendant is to be resentenced imprisonment LeBlanc, for life. See v. Commonwealth (1973); Cassesso, 364 Mass. Commonwealth judgments appealed The other from are affirmed. ordered.
So Hennessey, Chief and Wilkins Tauro Justice Justices Kaplan concur in the and order the court. only. Braucher concurs in the result Reardon Justices dissent. Quirico again (concurring). us This case is before Tauro, C.J. briefing argument by parties further after mandatory question whether the death sen- amici rape tence for murder committed in the course of attempted rape majority A is constitutional. of the court hold that it is not. opinion. are set out in our earlier Common facts *3 (1975) (O’Neal O’Neal, 440, v. Mass. 441-442
wealth 367 Briefly, I.). murder the defendant was convicted of rape of and was sentenced to committed course challenged appeal, his he both his conviction death. In judgment convic his affirmed the of sentence. We my I, here to the tion in and I limit discussion O’Neal validity imposed. of the sentence determining mandatory the
1. whether my context, I divide is constitutional interlocking mutually supportive analysis into two concepts relying process parts: derived from one on due 1, and 12 of the Massachusetts Declaration arts. 10 punishments” Rights, other on the “cruel or unusual Declaration of of art. 26 of the Massachusetts clause Rights.1 analysis possible dual here where these This merge” concepts because the “due two are “so close as to essentially primary argument process reiterates what Clause purpose Punishments of the Cruel and Unusual 1Although my base on the of the Com decision here Constitution monwealth, construing I have relied to some extent cases issues raised analysis United States Constitution. I believe that strong resemblance to in this case under our State Constitution bears Pugliese v. Com analysis under the Federal Constitution. See monwealth, However, 471, I need not reach (1957). 475 result I reach under questions light the Federal constitutional 10, 1, and 26. arts. 12 Commonwealth o. O’Neal. — i.e.,
... not be more severe punishment may than to serve interests necessary legitimate State.” 238, 359-360, v. Furman U.S. fn.141 Georgia, (1972) J., (Marshall, concurring).
A. Due Process.
In order to be sustained a due against chal process a statute lenge, fundamental affecting rights must shown to serve a compelling governmental interest. v. Co. Inc. 366 Mass. Henry’s Drywall 539, 541-542 Selectmen v. Framingham Civil (1974). Serv. Commn. Mass. Cf. Roe (1974). Wade, 410 U.S. “The words key (1973). in [necessary promote compelling governmental emphasize a matter of degree: heavy terest] State, burden is on the justification that the statute will be scrutinized in closely of its asserted light pur Blumstein, 405 U.S. 342-343 Dunn poses.” Justices, Opinion Mass. be shown (1973). Additionally, must scheme is the statutory least onerous means reaching the compelling goal. Wade, Roe v. if “Thus, supra. there is an alternative means which the State can fulfil *4 by its less purpose, adverse effects on having fundamental constitutional the State is use the less rights, to required restrictive, more means.” precisely adapted Common O’Neal, 440, v. wealth 367 Mass. 448 (1975), citing Court, v. 13, Fiorentino Probate 365 Mass. 19-20 (1974). There is little doubt is that life a fundamental right or “explicitly implicitly guaranteed Constitution.” San Antonio Sch. Dist. v. Independent 411 Rodriguez, 1, U.S. 33-34 (1973). stated Commonwealth v. O’Neal, 449, . to is . live ... right supra the natural man’” right Camus, every from (quoting Guillotine, Reflections on the in Resistance, Rebellion Death, 131, and 221 as it does [1969]), encompassing “the to have right Dulles, v. rights.” 356 U.S. Trop 102 Comment, Cases, Death (1958). 56 Penalty
246
242
v.
Cal. L. Rev.
Life is “the
1354 (1968).
greatest
Beccaria,
Punishments,
all
On
45
Crimes
goods,”
and I
ed.
believe that
(Trans,
1963),
capital punishment,
life,
which involves the extinction of
most funda-
mental
all
strict
under
“triggers
rights,
scrutiny
State
means
interest
least restrictive
test.2
compelling
Thus, in order for the State to allow the
of life
taking
it must
mandate
demonstrate that such action
legislative
is the
a
least restrictive means toward furtherance
end”
Com-
governmental
compelling
(footnote added).
O’Neal,
monwealth v.
at 449-450.
supra
B. Cruel or Unusual Punishment.3
The
noted
State interest
above
compelling
analysis
26.
relevant under art.
The words “cruel
equally
Burger
placing
of Mr. Chief
2 I do not share the concern
open the
the death
would
justify
the burden on the State
any
might
punishment
attacks on
floodgates
constitutional
imposed.
Georgia,
(1972).
v.
408 U.S.
Furman
different
punishment
entirely
choice
selection
death as
retains a sub
person
severely
kind
A
less
sentenced
any
from
other.
Martinez,
see,
416 U.S.
rights,
e.g.,
of basic
Procunier v.
stantial set
1968);
(D.C.
Cir.
Rodgers,
v.
F.2d 995
(1974); Barnett
Rosendale,
dies at
1974);
Cir.
one who
(9th
Commonwealth and, do have art, such, unusual” are words of not they have in par same would significance they everyday be lance. Their in sense must a constitutional meaning **4 determined this court.* Of an element of necessity, every punishment contains The convicted who is of defendant cruelty. deprived will freedom feel that exactions bind property society’s him However, cruelly. tolerates a of society degree when such is serve to its cruelty cruelty necessary legiti- mate needs.5 It of is where the level cruelty crime, of the and as a disproportionate magnitude who has challenged capital under unsuccessfully punishment statute process analysis proposed the due in I still seek to avail O’Neal could himself benefits art. 26. I consider advantageous clarify the relationship between these lines analysis two so as to provide and, guidance prospective appeals, for similarity view of the analyses, these I deem it most expedient to do so while case is this before us. It should also be a majority noted that are court opinion we should address that this issue. con determine its here to question 4 I examine meaning might subtleties of stitutionality regard any “without Dulles, 86, 100, latent Trop word ‘unusual.’” v. 356 U.S. fn. 32 (1958). any do believe that the word “unusual” has qualitative meaning different from the word “cruel” in the context of Cases, Penalty case. The Death L. 56 Cal. Rev. Constitution, (1968). particularly This true under our State where are disjunctively. words used we expressly While have never de cided whether the words were to be meant read the disjunctive, Commonwealth, and, see Storti Mass. (1901), while we conjunctive disjunctive have used the phrase form the inter occasion, Moore, changeably Morrow, 515 (1971); Commonwealth v. Mass. 601, 610-611 I believe purposes “any this case argument nice upon words unnecessary. of the article” is Storti v. Common wealth, supra at 553. 5It is one noteworthy “Cruelty commentator has stated: definable properly pain necessity’” as ‘the infliction of or loss without Gottlieb, (emphasis added). Penalty Is Death Unconstitutional? Bedau, Penalty (rev. 1967), Death in America ed. New quoting Dictionary (unabridged from Webster’s Inti. 2d ed. Accord, Gottlieb, Punishment, 1954). Capital 15 Crime De 1, 11 linquency *6 242 369 Mass. 248 o. O’Neal. Commonwealth needs a does not serve the society, consequence and, thus, be too cruel court will find the to punishment See art. 26.6 McDonald “cruel” within meaning Commonwealth, 322, 328 v. 173 Mass. Common- (1899); Moore, 509, 359 wealth v. Mass. 515 Common- (1971); Morrow, 601, v. 363 Mass. 610-611 wealth (1973). States, 368, also Weems v. 349, United 217 U.S. 381 660, Robinson v. 370 U.S. 666-667 (1910);7 California, (1962). circumstances, is ordinary Legislature given
broad discretion to what determine appropriate is for a offense. v. Common- punishment given Harding wealth, 374-375 (1933). Morrow, See Robinson supra. supra, California, involved,
at 665. restraints on or fines are Where liberty burden is on the sentenced defendant to establish heavy that the the offense for punishment disproportionate he If he was convicted. fails demonstrate such will not characterized disproportion, punishment as cruel in a constitutional sense. 6 crucifixion, burning such punishments Certain as torture amendments among were the exactions which constitutional
the stake and unusual were meant to abolish. punishment cruel regarding themselves, unconstitutionally apart cruel and of from They are re to the nature of the offense. See In considerations relation Kemmler, U.S. 446 Furman v. 408 U.S. (1890); Georgia, J., concurring). death (1972) (Brennan, these, among specific has been as evidenced itself not considered Rights, crimes in Declaration of capital mention the Massachusetts Furman, supra (Brennan, J., concurring). at 283 art. 12. See that, history logic given the argued with some Although it could be employed barbarous means sometimes capital punishment and the elsewhere, unusual clause concerned the cruel and England se, per punishment not execution and manner of the reflect punishment unusual clause cases under the cruel and recent Goldberg Court Supreme that view. Former departure from interpretation “turning point as the Weems case viewed “clearly recognized that . because it of the . . clause” application also extent or punishment but inflicting the mode of amend eighth under the subject scrutiny severity Court, 15 Penalty Supreme and The Goldberg, The Death ment.” L. Rev. Ariz. Mass.
Commonwealth u. O’Neal.
does the
Capital
punishment,
involving
taking
life,
different
from other
qualitatively
punishments.
*7
238,
See
Furman
408 U.S.
287
Georgia,
(1972) (Bren-
nan, J.,
“The
of death differs
concurring).
from
all other forms of
criminal
but
punishment,
degree
in kind.” Furman v.
at 306
Georgia, supra
(Stewart, J.,
of
concurring).
assessing
cruelty
capital punish-
“[I]n
ment
... we are not concerned
with the ‘mere ex-
of life’ ...
tinguishment
re Kemmler
136 U.S.
(In
(1890)
436,
..
. but with the total
of
447)
impact
capital punish-
ment, from the
pronouncement
of death
judgment
itself,
the execution
through
both on the individual and
on the
society
sanctions its use.”8
v. An-
People
derson,
628, 646,
6 Cal. 3d
den.
cert.
sub nom. Cali-
Anderson,
1339 Prof. L. (1968), quoting Scott, G. V. Rota in History Capital Punishment 219 (1950). “Although our information conclusive, is. not there appears no method available that an guarantees immediate and painless death.” Furman v. Georgia, supra 287 (Bren- nan, J., concurring).
The convicted felon suffers extreme in antici- anguish pation the extinction of his existence.9 “The tremen- 8 Capital punishment anachronism too discordant “[a]n suffered, mocking grim all reproach our clamorous professions Gardozo, sanctity Benjamin of life.” quoted Dictionary Quotable 1970). Definitions 65 ed. (Brussel case, instant has defendant been incarcerated under of death since February sentence 1973.
Commonwealth o. O’Neal. a fore approaching dous mental strain inexorably Note, condemned man.” death is unique ordained A under Sentence of Death: Cruel and Mental Suffering Punishment, L. Rev. Unusual 57 Iowa (1972). Studies describe confinement under sentence of death as torture, wherein inmates exquisite psychological many suffer obvious deterioration and severe distor personality Gottlieb, tions, Is the denial of including reality. Bedau, The Death Death Unconstitutional? Penalty Chessman, in America ed. Penalty (rev. 1967); Trial Ordeal 185-194 See also Bluestone and McGahee, Reaction to Extreme Stress: Death Impending Execution 119 Am. Soles Psychiatry (1962); J. *8 Balkcom, 9, bee v. 339 U.S. J., (1950) (Frankfurter, dissenting). of punishment to the constitutionality
In order
uphold
extinguishes
and absolutely
inflicts such
which
suffering
a substantial
must advance
justifica-
all
the State
rights,
not
death is
that
the penalty
tion to demonstrate
thus,
not,
is
cruel
or unnecessary
disproportionate
Anderson, 6 Cal.
v.
See People
sense.
constitutional
Anderson,
v.
nom.
628,
den. sub
cert.
3d
California
Alabama, 375
v.
also Rudolph
(1901), scope of our examina . . are not sufficient to limit the assumptions . Georgia, supra Furman at 285 today.” punishment tion of this Furthermore, by concurring). we are constrained J., (Brennan, Eighth art. like the Amendment to decision because Weems Constitution, interpreted progressively, must be United States States, light of “the v. United 217 U.S. maturing progress mark the of a evolving decency standards of Dulles, Trop 356 U.S. society.”
Commonwealth pursuant analysis, Thus, to either chain of upon imposition us incumbent to determine whether rape-murder mandatory penalty death for serves a compelling State interest and whether its use is the least permissible restrictive means toward furtherance of a goal. by
2. I turn now to examine interests advanced Commonwealth in order to determine whether mandatory penalty rape-murder is constitu- tional. recognize at the outset Commonwealth has a protecting society rape-murderers
vital interest in from deterring rape-murder. My inquiry must look beyond interests, vital determine however, these chosen, whether the means use of the death as rape-murderers, compelled for convicted the least restrictive means available to further these ends. proper In order balance, to achieve the I must determine effectively whether these interests can be served means impair rights, do not fundamental constitutional right life, here the to the extent that the death does. identify
It is not difficult the discrete interests thought penal policy. to be served our The Common- wealth (1) saving identifies three areas of vital interest: *9 (2) protecting lives, violence, citizens from crimes of and (3) ensuring justice diminishing vigi- and recourse to jargon lantism. Translated into the more familiar penology respectively, corrections, and are, these interests (1) (2) isolation/incapacitation, deterrence, (3) and retri- bution/moral Packer, reinforcement.11 See The Limits of the Criminal (1968). Sanction I examine these keeping seriatim, proper in mind interests that a balance is, course, 11There one objective punishment additional has been urged justify capital the Commonwealth to use of punishment. “The of the individual offender is usually reformation an regarded important punishment. function of But it can have application no the death Report where exacted.” 242
Commonwealth requires inquiry “not whether death serves that supposed purposes punishment, but whether these effectively imprison- [life] death serves them more than Georgia, (1972) 408 U.S. ment.” Furman (Brennan, concurring). J.,
A. Deterrence. “ question simply be considered is not whether [T]he capital punishment deterrent, is a but whether is a imprisonment.” better deterrent life Furman v. than Georgia, supra (Marshall, concurring). at 346-347 J., Penalty: Bedau, Death A Recon Deterrence and the Criminology sideration, L., and Crim. Police J. Zimring, (1971); & Deterrence Science Morris Despite Corrections, 381 The Annals experts field, research noted most exhaustive convincing simply no evidence the death there is superior punishments. is deterrent to lesser convincing point opposite fact, the most studies direction. Legislature
By Res. of c. the Massachusetts investigate study special established a commission capital as a deterrent to the effectiveness of legislators, composed was crime. The commission attorneys prominent in educators, others the criminal report justice October, issued in In its interim field. opinion “It is the stated: 1968, the commission majority penalty is not a deterrent to . . . that the death presented sub- crime. No evidence to this Commission capital punishment proposition is a stantiated the imprisonment.” to murder than more effective deterrent say Report, p. “[t]he 5. The went on commission clearly very least at the evidence establishes that 1949-1953, Punishment, 1953). Royal Commn. Capital (HMSO *10 rehabilitation, with utterly inconsistent convicted criminals Killing utterly any and frustrates obviously negates penalty death goal. has in ultimate Commonwealth interest o. penalty death is no more of a deterrent than life im- prisonment.” Id. 12. findings special
These are consistent with those investigate study commission to the abolition penalty capital (Res. death cases established in 1957 141). “[cap- 1957, c. That commission concluded that against protection ital a better murder imprisonment.” than a of life sentence 1959 House Doc. p. No. 44. legislative
The conclusions of these are in commissions by virtually contempo- accord with the all results reached rary criminologists who have studied deterrence and the penalty Examples in the United States. their preponderance conclusions are as follows: “The capital punishment evidence indicates that does not act Types as a Chambliss, deterrent to murder.” of Devi- Legal ance and Sanctions, the Effectiveness of 1967 Wis. L. Rev. “It 704. now seems established ac- cepted capital punish- that the existenceor nonexistence of ment . . . makes no difference to the homicide rate or to attempted-homicide Zimring, rate.” Morris and Corrections, Deterrence and 381 The Annals (1969). findings converge “[Statistical and case studies disprove any the claim the death has special Schuessler, deterrent value.” The Deterrent In- Penalty, fluence of the Death The Annals (1952). presence “The conclusion is inevitable that the — — practice of the death law does not Capital influence homicide Sellin, death rates.” Punish- ment 138
These conclusions are based on numerous studies
utilizing
techniques.
various
Several studies have com-
pared the homicide rates in States that have abolished
capital punishment
carefully
matched similar
contiguous
and/or
States that have retained it.12 These
12Homicide
are
fairly
predictor
capital
rates
accurate
murder
proportion
capital
rates as the
homicide to the crude homicide rate
*11
Commonwealth u. O’Neal. uniformly studies conclude rates “are con- that homicide by penalty.” Sellin, ditioned other than the death factors Penalty, Appendix Inst., The Death to Am. Law Model (Tent. 1959) Penal Code Draft No. at 24. See Schues- Penalty, supra Death sler, The Deterrent Influence of the (4th Thomas, Life Take 14-15 This We rev. at 57-58. 1970).
Additionally, studies have been conducted where the capital homicide rates States that have abolished compared aboli- have before and after been increase tion. These indicate that there no studies also Reckless, The Use rate homicide after abolition. Penalty, Delinquency 43, Death Crime Penalty, supra (1969). Sellin, The at 34-38. The Death comparing experience same result is obtained Bowers, before and after abolition. other countries Similarly, (1974). the in- Executions America 123-126 experienced “judicial in homicide crease rates after which had moratorium” on executions in 1967 States capital punishment greater was no than those retained it, and, fact, the over-all abolished States that had from 1969-1970 was lower increase in homicide rates from 1964-1967. Id. at 139-147. than that Finally, comparisons selected rates in of the homicide prior immediately periods to and after jurisdictions no publicized of death indicate or sentences executions significant suggesting the execution or differences, effectively Reckless, The deter did others. sentence Penalty, supra Savitz, A Use of the Death at 54-55. Capital Study Crimi Punishment, of Crim. L.* J. nology these two and Police Science 338 While reliability validity particular are of limited studies they present sampling, some indica because of restricted year jurisdiction from year from fairly remains constant Inst., Sellin, Am. Law Penalty, Appendix The Death jurisdiction. 9, 1959) 23-24. (Tent. Penal Code Draft No. Model e. O’Neal. availability tian use that neither the nor the actual acts anas effective deterrent.13 previously The studies cited make no distinctions mandatory discretionary capital *12 between and use of punishment. fact, however, most in were conducted involving discretionary situations use of the death penalty, mandatory and thus their relevance to the death penalty questioned. However, at issue here could be study Bowers, recent conducted Professor William J. sociologist, noted concludes that there is “no indication mandatory that the death . . . [is] a more effec- discretionary capital tive deterrent homicide than punishment.” supra Bowers, America, Executions in 160.
Professor Bowers examined the homicide rates in States changed mandatory discretionary capital from to punishment. Additionally, compared he these rates with contiguous maintaining States that were in consistent fully mandatory discretionary capital sentencing. either significant statistically changes He found no in homicide changes rates practice. Among as a result of these those States studied Connecticut, were Massachusetts changed both mandatory discretionary of which from to use of the death in 1951. Professor Bowers found experienced stability “Massachusetts remarkable change, actually homicide rates after the and Connecticut had Clearly, a decline in homicide rate .... the statu- tory changes in Connecticut and did not Massachusetts increasing result rates, homicide nor even an increase contiguous relative to their states.” Id. at 149-150. question There is some as to whether executions carried out access, private, publicity with limited public and no can ever an Perhaps effective deterrent. deterrence could be effectively more by making achieved executions public, but no one has ad seriously Camus, position many vocated this decades. See Reflections on Guillotine, Resistance, Rebellion and Death (1969). Today reject public debasing we as brutalizing executions Georgia, J., Furman (1972) (Brennan, U.S. us all. concurring).
Commonwealth v. data, Based on considerable before and after both World “ II,War Bowers concluded: must unequivocally [W]e the claim that has reject mandatory sentencing any use of deterrent over the capital advantage discretionary Id. at 157.14 punishment.”
There is no statistical for the correspondingly support law enforcement officials are safer in proposition that retain capital opposed jurisdictions those in which it has been Claims that more abolished. are killed in abolition States are police simply sup- whole, available data. “On the abolition ported by states . . . seem have fewer but the differences killings, Sellin, Police are small.” The Death Penalty Safety, Sellin, Punishment Capital “[T]he . data available . . after a the state half survey police *13 forces of the States not lend United do empirical support to the claim that existence of the death in penalty a statutes of state a greater provides protection 14The not been shown to mandatory fact that has as a is not when consider- greater surprising act deterrent to homicide mandatory to the death sentences lead to low given ation fact that during a study In a conducted in Massachusetts conviction rates. degree, period mandatory punishment for murder in the first capital indicted murder were con- statistics reveal that 8 % of those for actually % were degree victed of murder in first and less than 7 Ehrmann, Penalty Death Administration executed. The the Bowers, in See Executions Justice, (1952). 284 The Annals 74-79 in by to convict America, juries This refusal at 161-162. supra been mandatory is a death sentence has capital cases where there See, many e.g, California, McGautha occasions. documented Capital Punishment Prevent (1971); Shipley, 199 Does U.S. Knowlton, Problems of (1909); L. Rev. 321 Convictions? Am. Cases, (1953). L. Rev. 1099 101 U. Pa. Capital Jury Discretion re- Zeisel, (1966). The Jury also Kalven & The American 310-312 and deterrence mandatory punishment lationship capital between Americans, following quote: best “Antebellum exemplified ex- was mandatory capital punishment . experience . . whose tensive, were They satisfied dangerous it a failure. tended account effect; deterrent did indeed have a mandatory capital punishment Mackey, men.” palpably guilty jurors convicting it deterred from Note, Historical An Inutility Mandatory Capital The Punishment: (footnote omitted). Rev. (1974) 54 B.U.L.
Commonwealth police where that has been than exists states Penalty Campion, Death abolished.” Does the Protect Penalty in America Bedau, Death The Police? State 1967). (rev. ed. 301, overwhelming majority
While studies in serious capital has no this area have concluded that study special effect, one and several deterrent recent subjective reports contrary have indicated a result. single study gives any scientific indication penalty may
that the death effect is have deterrent Capital Ehrlich, The Deterrent Effect A Punishment: Death, of Life Am. Rev. 397 Question (June, 1975). Economic regression analysis Ehrlich utilizes capital punishment demonstrate that has deterred several past. However, homicides serious flaws been have approach revealed both in Ehrlich’s and in his results.15 persuaded study We are not much, adds if anything, analysis. to our
The other studies cited proposition capital punishment that the threat of acts as a subjective deterrent are collections of the statements apprehended police many felons and to the effect that perpetrators phony weapons of crime carried or unloaded they penalty. because were afraid of the death Los An- geles Department Study (1971), Police cited 52 Con- gressional Digest (See Bedau, The Death *14 Penalty America, [rev. ed. 1967], an earlier reports study.) particularly version this of These are unreliable the because statements were made under apparently subjects coercive circumstances where the 15The Ehrlich has study severely many grounds. been attacked on see, technical, of While much the criticism is Passell extremely e.g., Taylor, and The Deterrent of Capital Effect Punishment: Another 74-7509, March, U. (Col. Paper 1975), View Discussion No. it es sentially arbitrary attacks the methodology, assumptions the use variables, regarding the mathematical relationships among form of sensitivity the of the model minor variation and the to statistical failure to take into the interdependence consideration of relevant variables. Mass. o.
Commonwealth they might expected have said whatever believed be to police expectation is hear. This corrobo- wanted to Duffy Clinton Warden former San Quentin rated acknowledged allegedly statements made to who police, everything . . . resolved added, “[W]hen but they give you legally, bit ... that a little more believe they they jail regular are in do when story than curry trying Abolish The to bit of favor.” To little Penalty, Hearings 1760 before on Senate Bill Death Procedures, Com- Laws Criminal Subcommittee Judiciary, 20, 21, Senate, U. S. March mittee on Duffy 1970). July (G. 1968, 23 P. O. inter- Warden many inmates confined at San Quentin viewed say person have, date, “I not had one stated: to prior they thought to ever death had Thus, Ibid. I conclude that act.” commission their support proposition for the that the these two sources in fact acts as a deterrent to homicide death actually provide support at all. little material of the available studies and other review
My punish- capital no indication that reveals firm cited superior than acts as a deterrent homicide other ment equivo- punishments.16 At best the evidence available I am thus unable to find that the cal. compelling cannot in deterrence which
has a interest adequately less means of served other restrictive punishment. /Incapacitation.
B. Isolation society isolating murderers from convicted While prevent of similar crimes their commission order to objective punishment, seems legitimate future of the Massachusetts noteworthy regard report It is stated, certainty punish is the swiftness and Commission “It Special Doc. No. deters.” 1959 House severity not its ment and is the ultimate sanc mandatory where a sentence p. Cases 44. protracted ap more longer litigate and tend involve take tion *15 Georgia, See Furman 408 U. S. 357-358 pellate procedures. goal effectively be less clear served means that this can. [to than “The sufficient answer restrictive death. necessary stop those claim the infliction death is committing from crimes] convicted murder further capital ... if of a crime is that a criminal convicted poses danger society, effective administration of the delay deny pardon parole State’s and his laws can or prison, techniques release from and of isolation can danger eliminate minimize he con- while remains Georgia, fined.” Furman v. 408 U. S.
(1972) (Brennan, concurring). J.,
Additionally, it should be stressed that “murderers general among been have shown the least recidi- Packer, vistic of offenders.” The Limits of the Criminal regard Sanction 52 This is true with both to parole, Farrow, incidents while on Giardini and The Paroling Capital (1952); Offenders, 284 The Annals 85 Delinquency Stanton, Parole, Murderers on 15 Crime and (1969); Capital Bedau, Offenders, Parole Recidi- Imprisonment, vism, and Life Bedau, The Death Penalty (rev. 1967); America Miller, ed. Some Penalty Notes on Death Row Death in Massa- chusetts and to incidents while of violence prison. Penalty, Appendix Sellin, The Death to Am. (Tent. 1959) Inst., Law Model Penal Code Draft No. prison 70-71. “Once released from . . . [convicted very any have a murderers] low rate for of reconviction offenses, supra, criminal Packer, let alone for murder.” at 52-53. Eighteenth early
It is true that in the Nineteenth prison system, Centuries, before creation of an effective necessary pro- was considered society. Bedau, tection of Courts, the Constitu- Capital tion, Punishment Utah L. Rev. (1972) way, availability (Marshall, J., concurring). increase, decrease, capital punishment than tends to rather the de- terrent effect of criminal sanctions.
260
Commonwealth v. O’Neal. “ However, 232. is there in- substantial [nationally, formation available to can be now show that murderers incarcerated and and is no that there paroled safety, discernible difference this between those who regard are found of one than kind of rather another guilty Bedau, criminal homicide.” Death Sentences in New 1907-1960, L. Rev. Jersey, Rutgers (1964). While be somewhat less true of convicted rape- murderers, are more to act result of who as a likely desires,17 are uncontrolled or uncontrollable measures and of such available ensure the safe care custody See, is where a real indicated. danger society persons care for statute for and treatment example, providing L. c. G. 123A. “sexually dangerous persons,” I am not convinced that Accordingly, is means the best of protecting necessary I believe from the convicted and society rape-murderer, Commonwealth’s in isolation/incapacita- that interest less tion, vital, while can be served by adequately onerous means.18 Retribution/Moral
C. Reinforcement. that it has a compelling The Commonwealth contends parole The recidivism rate for on rapists convicted released Com greater almost three times than that for convicted murderers. Callahan, Describing Tables pare Statistical Characteristics Norfolk, During Recidivism Rates Men Released 1966 from M.C.I. Concord, Forestry Walpole, M.C.I. M.C.I. and the Massachusetts Miller, Death the Death Camps (1971), with Some Row and *17 or reinforcement the most reprobation requires be serious crimes I believe most punished seriously, “ to the [gjrading punishments according severity crime does not that the limit of be require upper severity Bedau, the death The Death penalty.” Penalty ed. This true in America 268 is be- (rev. 1967). part cause no assessment of the of neces- degree punishment to effect retribution is The demand for sary possible.19 does define of not the nature the punishment punish- ment for necessary retributive and it cannot be purposes, shown that any is more particular penalty supportable of these light Furthermore, than other.20 purposes I any believe that “it is with the of an incompatible dignity pendix Inst., to 9, Am. Law Model Penal Code No. (Tent. Draft 63-65. 1959) particularly The words of Thomas appro- are Jefferson priate here: “I shall ask for abolition of the death until have infallibility judgment human demonstrated to me.” Hart, 1760, Quoted Senator Hearings on Senate Bill Committee on S. 14 Judiciary, U. Senate O. (G. 1970). P. 19The that the public capital punishment notion wants is based reality. more with the choice overwhelmingly Suffolk abstract emotion than hard squarely When faced death, and responsibility putting someone to jurors avoid the death sentence. Statistics obtained from that, 1963, County juries indicate since recommended that the be imposed thirty-nine involving death some at least cases fifty-five defendants. As proximity one’s to actual sentence increases, and responsibility capital death therefor the belief that punishment torical appropriate appears is to diminish in fervor. The rhe question put: many has often been “How advocating the willing sentence pull death would to switch?” 20If death is for murder in a re appropriate punishment the most sense, ap to would seem to be most burning tributive then death propriate punishment to death stabbing for arson resulting However, stabbing. people when the few murder committed
262
Mass. 242
v.
of life
enlightened society
attempt
justify
taking
v.
for
Ander-
[merely]
purposes
vengeance.”
People
son,
6 Cal. 3d
cert. den. sub nom.
(1972),
Anderson,
obvious. exe legal illegal executions and between positive correlation This “brutalizing capital of effect” be a of may by-product well cutions “The Bowers, in America 194 punishment. Executions life. It tends cheapen to human tends capital existence vio physical believe that and adults to encourage both children death, individual lence, putting an form of which is the ultimate conflict.” personal and resolving social proper method Doc. No. at 45. House Mass.
Commonwealth compelled I am to the conclusion that the Common- establishing wealth has not sustained its burden penalty necessary the death is a least restrictive accomplishment means for valid whatever interests it ensuring maintaining justice have the social compact. marginal capital Whatever benefit use of punishment might serving have the interests of retribu- tion or moral reinforcement is not sufficient to withstand scrutiny required the strict constitutional here. foregoing analysis,
On the basis conclude, I as I must, the Commonwealth has not offered an adequate justification mandatory for retention of the rape-murder.22 death The Commonwealth heavy demonstrating has not met that, its burden of pursuing legitimate objectives, its has chosen means unnecessarily impinge which do not on fundamental right Accordingly, constitutional to life. I believe that mandatory for murder committed rape attempted rape the course of or violates both the process” “due clauses of the Constitution, Massachusetts punishments arts. 10 and and the cruel unusual judgment 26,23 clause of art. I concur in the court. who, A similar conclusion was reached Sir Ernest Gowers chairman Royal British study capital punish Commission to ment, spent years almost five study intensive research and on the I, issue. He serving stated: “Before the Royal Commission like other people, given great most had no If thought problem. *19 my had been asked for I opinion, probably should have said I in was favour of the death and penalty, disposed regard to abo
litionists as people bigger whose hearts were than their heads. Four years study of close of the subject gradually dispelled feeling. the end I right became convinced that the abolitionists were in their — — though agree arguments conclusions could not with all their and far approach leading that so from the their sentimental into camp and supporters, the rational one into the was Gowers, way other about.” Sir Ernest A Life a Life? foreword 1956). (London 23In arriving at conclusion I not intend the would to foreclose enacting authorizing Commonwealth from any statute the death t>. O’Neal.
Commonwealth concurring dissenting opinion, 3. This and the and opinions follow, Reardon Braucher and which Justices role of reflect three different and distinct views as to the adjudication this court issues. constitutional perspective proper a exercise of Each has different on the responsibilities dealing pro- our constitutional when legislative government. branch of the nouncements of the important complex In view of issues before us concurring dissenting and the manner in which opinions necessary articulated, were I find it to comment briefly on them. today’s A. Braucher concurs the result of Justice interpreta-
decision, based on his but reaches that result statute, c. 2. I believe § tion of reaching issues Braucher seeks to avoid the constitutional history distorting language at the cost of clear the statute. inappropriate, improper, if not for this
I believe it is
statutory
in order
to
to doubtful
construction
court
resort
questions properly
important
to evade
constitutional
Springfield
us.
v. Board
before
See School Comm.
self-
339-350
Educ.
Mass.
reaching
“Judicial
legislative
attacks on
restraint
constitutional
statutory
judicial rules of
construction
amendments and
Legis
predicated
respect
are both
on our desire
enacting legislation.
special prerogative
I feel
lature’s
purposes underlying
these
will be
that the
both
doctrines
ruling
reaching
constitu
avoids
ill served
giving
question by
and unreasonable
a strained
tional
negates
intent.”
its clear
of the statute which
construction
Attorney
Mass.
Gen. 362
Natl. Bank
First
C.J.)
(1972) (Tauro,
enacted,
burden
However,
if such a statute should
penalty.
use of
establish that such
would be on the
of a com-
means for furtherance
least restrictive
is the
pertinent
solely
is restricted
My opinion
State interest.
pelling
cases.
rape-murder
the death
which mandates
statute
*20
Commonwealth v. O’Neal. The use of strained invades the statutory interpretations and disturbs balance legislative province proper between function. It transforms legislative judicial what said into Legislature something Legislature so, never intended.24 such strained doing interpreta- do tions more to violate the of art. 30 of spirit the Massa- chusetts Declaration than does a consti- Rights facing tutional issue which “The canon properly presented. must, avoidance constitutional doubts like the ‘plain rule, where its meaning’ would give way application result, a futile an produce or unreasonable result plainly ‘variance with as policy legislation a States, v. United whole.’” Shapiro 1, 335 U.S. (1948), Sullivan, United States Accord, and cases cited. States, Scales v. United U.S. (1948); U.S. 203, 211 States, Welsh United 398 U.S. (1961); See, (Harlan, (1970) J., gener- concurring). note, Court ally, Supreme Statutes to Interpretation Avoid Decisions, Constitutional L. 53 Col. Rev. 633 mind,
With this in I turn to Braucher’s con- Commonwealth Har- curring opinion. Relying rington, he believes that his con- struction statute avoids the constitutional issues and would be “not but only fairly possible He plainly right.” assails O’Neal H an my opinion to create attempt a constitutional issue resolve it clear “the by ignoring direction statutory murder cases be treated like rape other cases in which no recommendation is made” jury all due (281) (emphasis With added). respect, my 24“When government tries to find judge out what would have intended it did not say, puts things he into its mouth which he said, thinks it ought very to have and that to Substituting close beware, however, right. he what himself thinks Let him he will usurp government, though office even in a he way small must Hand, do so order to execute its real commands at all.” “How a Judge Far Is Free in Rendering Spirit Decision?” of Liber ty 83 (I. Dillard ed. 1959). *21 o. O’Neal.
Commonwealth statutory “clear direction” is available view that no such history 2. § either words or the of c. from the wrong. plainly think Braucher Justice language by 265, 2, The c.of as amended St. § provides c. is clear. It that no recommendation of clemency be made if “shall ... the murder was com- rape or mitted connection with the commission of an attempt rape.” provision This added commit was an a statute which would have made the amendment to discretionary death in all cases. See 1951 House provision approved, Doc. No. 2148. At the time this was provisions, other would have retained three mandatory capital sentencing three other circum- Mandatory capital sentencing stances, defeated. were appeared in other murder offense. See 1951 Senate no Legislature Thus, the manifested at 608-612. Journal rape-murder differently be clear intention that treated types from all other of murder. history
The of the 1951 amendment since its enactment great non-rape-murder majority indicates in a juries the cases have recommended that Legis- imposed.26 Jury clemency precisely be what the rape-murder cases; avoid accord- lature intended to beyond ingly, put power jury in such it was the the something penalty. the death There is cases eliminate reasoning seriously logic amiss in the Justice statutory is a “clear Braucher’s conclusion that there rape like direction murder cases treated other jury The in which no recommendation is made.” cases pre have would proposed in Senate The four amendments murder was where clemency (1) jury vented recommendations murder, victim (2) previously convicted person committed escape in an officer, the murder was committed police (3) was a death, previous sentence a life sentence or attempt or one under attempted rape or in the course of (4) was committed the murder rape. Experi Cannon, Post Degree Conviction First Murder: 4 (1974). ence Massachusetts o. important rape- significant difference is that Legislature cases, the death murder mandates question penalty; cases, in other murder left jury. ignores distinction, Braucher this obvious supported by language history which is both merely reaching amendment, to avoid a most doing important so, difficult but constitutional issue. *22 concurring analysis opinion is the entire of his rendered suspect. agree interpretation I cannot with his statute, can of nor I subscribe to such an avoidance our duty. constitutional strongly disagree IB. with Reardon’s novel Justice
suggestion
applica
that we refrain from construction and
tion of our State Constitution while we await decision of
the Federal constitutional issues in North Carolina v.
granted,
Fowler,
N.C.
cert.
“symmetry delay. the law” cannot warrant Corps. Bullard, Commissioner & Taxn. v. 313 Mass. (1943). It serves to cloud the issue. objective '“symmetry” reality, Reardon’s is, suggestion uniformity of State Federal constitu resulting tional direction with a subservience to Federal precedent. “symmetry” sweep Such would aside the Rights deprive Declaration the Commonwealth’s protection against arbitrary citizens of the Declaration’s government. and intrusive analysis may our State Constitution under
The fact parallel analysis under the Federal Constitution or that analysis may under call for the State Constitution
comparative provisions is of similar Federal construction responsibility evading no basis for our declare dispositive law of the case. constitutional Although Supreme Court must ulti- the United States scope meaning mately of the Federal determine the uniformity construction, Constitution and establish obliga- power State such as have the and the courts ours necessary, tion, state our own construction when given application to a case. Constitution in its the Federal power, Federal That which has sanction in the Constitu- comply tion,27 are to is essential if the State courts overriding obligation they to decide cases as are their contravening supreme presented law. Federal without Wheat.) (1 Lessee, Martin v. Hunters U.S. 340- constantly Cases raise issues of constitutional impression by previ- first which have not been addressed Supreme ous of the United States Court. State decisions perhaps hope courts decision in the cannot withhold vain *23 Supreme judgment that Court will the a future28 decide precise They point at issue and “take them off the hook.” among Supreme must fill con- the interstices Court’s holdings their stitutional with own constructions accept Supreme the risk a future will find Court those discordant its own.29 constructions with Constitution, are the State “In the scheme [the courts] others, Hart rights.” Bator and primary guarantors constitutional Wechsler’s, ed. System (2d Federal & The Federal Courts and the 1973). history The A a case will be decided. judge predict cannot when proposition. Fowler amply of the case should document 21, 1975, case, been scheduled has argued April once before on but [1975]), Supreme (422 Court U.S. reargument by argu of when the is no indication yet date been and there has not set place. ment will take have indi At times we A is relevant here. further consideration under reluctantly rulings cases were reached cated that our did Supreme Court. We decisions United States compulsion of urging In we defer of this case, consideration — Reardon would the safe he follow course would Justice Supreme avoid the risk of a discordant Court result. deny process, he would defendant his undoubted right speedy (and effectuation) a determination rights implicitly deny essential constitutional and would responsibility our to decide cases before us. I believe the speedy, orderly exercise of our duties and the interest disposition precedence of cases take must over avoid- ance of such risk. process C. Reardon’s concern with the due Justice
argument requires has been dealt with elsewhere and only a brief comment here. depth problem Reardon indicates the of his Justice
applying
process concepts
capital punishment
due
following
statement:
“If ‘life’ is a
in-
fundamental
why
‘liberty’
Constitution,
terest under the
is not
also a
fundamental interest?” In another context he asks the
question
right
privacy.
same
rhetorical
to the
How-
questions
ever,
Reardon has answered his own
logically
rationally,
with his statement: “It
argued
nothing
of course that
is so fundamental as the
right
plane
life,
that it is an interest on another
al-
together.”
being
But not
content with his own answer he
problem by saying,
then reverts to his
effect,
old
application
process
distinguish
of due
he cannot
taking
sending
jail
between
life
to man
or in-
vading
privacy I Thus,
concludes,
his
he
there is no
right
guaranteed fundamental
to life
the Constitution.
*24
Juvenile,
recently
so
Commonwealth
Av.
368 Mass.
583
Other
(1975).
jurisdictions have followed
path.
the same
It makes
sense,
more
when we have the opportunity,
to expound our views
Supreme Court decisions are rendered on the issue than to
before
criticise that Court’s decisions after the fact when we have remained
mute. Only
approach gives
the former
any hope of providing the
Supreme Court with fresh innovative thinking. On occasion the
Supreme
explicitly
Court has
adopted
not
die holding of a State
court but also the court’s reasoning in reaching its decision. See Reit-
Mulkey,
man (1967).
sonal
may
popular
which
be at odds with the
will.
a decision
very
mind
I assume that
Reardon has
much in
experience
People
Anderson,
California
after
Cal.
(1972). A con-
of constitutional
raising
judges
issues not
enshrine
in cases
constitutional
personal
Constitution,
views in
but
our
to construe
occasionally complex
document with its
and uncer-
apply
language
before us. Con-
it
the facts
tain
necessary
by
Constitution,
because a
its
struction
explicit
problems.
nature,
for all
cannot contain
solutions
constitution,
“A
Mr.
Marshall wrote:
As
Chief Justice
all
subdivisions of which
contain an accurate detail of
great
by
powers
admit,
of all
means
its
will
may
partake
they
execution,
be
would
which
carried into
scarcely
prolixity
legal code,
a
could
Mary-
embraced
the human mind.” M’Culloch v.
(4 Wheat.)
land,
But
detail
U.S.
by case-by-case
application
supplied
construction and
judge’spersonal
must
have its foundation
views.
not
principles
to the
under-
These
must be subordinated
views
lying
“[T]he
to be construed.30
ultimate
the document
emancipate
‘to
merely
capacity
it is not
a desirable
judges,
“For
desires;
. . . Does
private
duty.
their
purposes’ from their
their
No,
gown?
he
putting on a
his character
change
. . . [a man]
his
experience,
his whole
brings
He
change
his character.
does
intellectual,
outlook,
social,
environment
and moral
his
training, his
judge
bench. But a
supreme
he
on the
him when
takes
seat
The intellectual habits
grip
of his function.
his salt is
worth
part
of him
his mind are as much
self-discipline
govern
bar, often
represented at the
the interest he
have
influence of
Frankfurter,
Addresses of
Papers and
Of Law and Men:
more so.”
Frankfurter,
1939-1956,
1965).
ed.
(Elman
Felix
*25
Commonwealth o. O’Neal. constitutionality is touchstone of the Constitution it- . self . ..” Graves v. York New ex rel. 306 U.S. O’Keefe, (1939) concurring). (Frankfurter, 466, 491 Construc- J., principle tion takes the outline of established words judge of the document and fills it with substance. The judgment light prior determine, exerciseshis reasoning expressed experience cases, the therein, his training, required by principle. his what substance is judges public opinion polls However, cannot look to meaning election results for constitutional as has been suggested. duty interpret is our It the Constitution to personal judgment. the best of our abilities and Our requires impartial Constitution free, that we be “as independent humanity the lot will admit.” Massa- Rights, chusetts Declaration of art. 29. If we succumb to contemporary public opinion requisite we lose that independence impartiality demanded of us and fail totally purpose. in our Attorney The words of General Rufus in his Choate address before the Constitutional particularly apposite Convention of 1853 are here: “If a passed by legislature, law is unanimous clamored for general public, voice and a cause is . before . . judge] [a it, community in which the whole is on one side and an individual nameless or odious on other, against and he believes Constitution, it to be he must — judge.” it, so declare or there is no 2 Brown, The Works of Rufus Choate a Memoir of his Life 287
Oppressed, unpopular disfavored or minorities would any judicial independence. victims of loss of rely independence minorities on the of the courts to rights against secure their constitutional incursions of majority, operating through political branches of government. Dependent or subservient courts render protections nugatory the fundamental constitutional complete are of our “The inde- the heart liberties.31 31Had the Supreme United States Court considered Justices time, public reaction at the how likely they would have been hand *26 v. O’Neal.
Commonwealth justice peculiarly pendence of is essential in of the Courts kind can . . . Limitations of this a limited Constitution. practice way through preserved no other than justice; duty it must be to medium of the Courts of whose contrary the manifest tenor declare all Acts this, all the reservations of void. Without Constitution rights nothing.” privileges particular or would amount to Papers No. The Federalist public passions
Passing (understandable and emotions they may these) as do be at times such have little to meaning Constitution, as it is written. with the purpose, although they Referendums, do serve some not They express only pretend to construe the Constitution. ephemeral highly sentiments, sentiments which are may public attitudes variable over time and reflect problems day. shaped events of the collateral sentiment becomes relevant to constitutional Public only adjudication if it results a constitutional amend- public This which occurs when the ment. is result sufficiently high is and sustained so that it sentiment passing dissipated with and further reflec- not time amended, is thus When the Constitution tion. properly popular exercised; will has been the fundamental principles have been altered accordance document’s compact. Only procedures set forth in the with the passions through an can mass affect con- amendment meaning amendment, and, an absent stitutional bulwark for the as an unbreachable Constitution stands passions political against and the those mass individual majority. power people amended of California
Thus, the fact that the highest court of that State after the their Constitution does not the death unconstitutional declared and decide a we should not reach to me that indicate presented properly in accordance with constitutional issue Topeka, Educ. v. Board their landmark decision Brown down (1954)? 347 U.S. our views considered statute Constitution. merely possibility It indicates the an amendment popular response our be the Constitution our eventuates, amendment, If decision. so be it. The judicial anticipation response, of such a proper procedure. constitutional strange conclusion, add a few words: It imply Reardon to that some members of this court good other courts who seek faith to exercise their
judgment by on difficult constitutional issues do so im- properly substituting personal views for the constitutional document. One wonders then basis what the of his opinion respond is and how he would to identical ad charges. might hominem One well infer that he draws public emphasizes. his views from the views he isBut proper judicial independence this the exercise of man- by dated the Constitution?32 question
The answer this amply to rhetorical has been stated briefly summarized, above. can be simply. It and great responsibility judge of a is to exercise his best judgment applying interpretation his of the law to the judge facts. No should ever be concerned with whether popular his decision unpopular. will be or He does his job always complete political awareness that con- day, public contemporary siderations of the (no emotions motivation), personal philosophies matter what their and completely foreign are and irrelevant to the exerciseof his judicial power. very duty judicial This is the essence of — given no less should be more no should be re- quired. 32 but, “I wish POPULARITY: that it is popularity follows; which which, is run which not that or popularity It sooner after. ends,
later, noble noble never fails the of justice pursuit to do to wrong, means. not do that which I will me is conscience my tells occasion; thousands, upon gain daily praise the huzzas of or the doing will not avoid papers all the I press: which come from the what I think is though artillery on me whole right; it should draw the libels; invent, all that credulity falsehood and malice can or the swallow,” Lord Mansfield in Rex populace can quoted by deluded Wilkes, 2527, 4 Reports Burrows Mass.
Commonwealth o. O’Neal. concur with the (concurring). opinion Hennessey, J. his Chief in result and reasoning, Justice, for conclusion mandatory rape- murder both due arts. process guaranty violates 12 of Massachusetts and the cruel Constitution 26.1 of art. proscription punishments I of course with the two disagree dissenting Justices who that our decision this case should await urge decision of United States Court similar Supreme issues, face cases. We have a these pending duty Common- least with reference to the Constitution of the wealth, without to cases regard Supreme pending 1 I add that I believe all of also of this court should Justices consideration, have as an de given ground further additional our herein, Supreme whether United cision States Court has stated re U.S. 238 which Georgia, in Furman reasoning quires a conclusion that the death as established in G. L. proscribed, rape-murder, by c. even the Con as to §§ A majority stitution of the United States. the Su Justices preme opinions Court established their in the Furman case the practices unconstitutionality sentencing juries judges vest *28 with untrammeled discretion to determine whether the should argued the law of this It can be that imprisonment. life be death or is must sub degree Commonwealth that murder the second case, a permissible every mitted to the as verdict in murder in jury rape-murder, regardless of v. cluding circumstances. Commonwealth French, 356, Chase, 357 Mass. v. (A-40) (1970). 405 Commonwealth (1966). cert. U.S. 744 den. 385 906 Com 350 Mass. Desmarteau, Gray v. 16 8-11 Commonwealth (1860). monwealth Gardner, 438, 443, Gray v. See (1858). 445-446 Commonwealth Corcione, v. (1974); v. 364 Mass. 615-616 Rollins, also Green Common (1968). 155, 166, (as rape- wealth, But see 12 Allen 435, 441 (1948). Mass. McGarty, murder) Commonwealth that, degree murder argued since second it can be further From this unconstitutional jury have by penalty, the death punishable not im between life to choose rape-murder in a untrammeled discretion dissenting It penalty. appears prisonment and the Justices is not principle would hold that the Furinan Quirico Reardon Braucher, well, here; posi took that apparently applicable Justice I, Tauro, also stated Chief in O’Neal in O’Neal I. tion Justice Wilkins, joined applicable. not principle Justice Federal con does not reach states that he infra, expressly Kaplan, grounds. stitutional
Commonwealth o. O’Neal. argued case, Court. In this and others which have been yet urged by before us and decided, we have been persons under sentence of death to decide issue. They prompt are entitled to our consideration. There may long delay Supreme be further before the Court disposes may cases, of relevant and it not then decide the issues. why
A proceed further reason this court should deci- sively regard pace time, at this without to the of the Supreme United Court, States is that Massachusetts unique penalty controversy. context the death (the Between Furman case was decided in 1972) person no was executed in this Commonwealth. During period that same I take notice that the death twenty-five persons sentences of were commuted or reduced During span executive action.2 this time seven different Governors served. There is the best of reasons to believe that the Constitution of the Common- wealth, permit document, a viable capital does not now rape-murder may cases. There be some kind of murders which be shown to meet the test of compelling State interest which we have said is constitu- tionally required; perhaps crimes which in their char- peculiar acteristics are public and serious threat safety (e.g., order and murders related to terrorism and kidnapping) Beyond are pre- of that order. that, if the people sent will of the Commonwealth is capital punishment permitted should be in some or all cases of degree, procedures murder in the first for amend- ment of relatively State Constitution which are speedy, require but still time for reflection, reasonable accomplish are available to that end.
2 Of the twenty-one other individuals sentenced to death between 1947 and the Furman decision, eighteen have had their sentences re decision, duced because of the Furman two received new trials and were found guilty, not and one suicide awaiting committed execution. Cannon, See Degree First Murder: The Experience Post Conviction in Massachusetts 15 (1974). Mass. 242
Commonwealth Wilkins, in the I that the (concurring result). agree J. defendant be for life. should resentenced to imprisonment I reach this on sole conclusion the that ground execution 26 of of the defendant for this crime would violate art. the Declaration of of the Constitution of Rights Commonwealth.
The the im- Commonwealth has not established that of death for this crime serves any position penalty be as well a sentence which cannot achieved by purpose Therefore, life. of for the sentence of imprisonment “cruel unusual punishment” death constitutes Because 26 of the Declaration of violation art. Rights. conclusion, I need not address resting of this arguments State or any other Constitution any portion in the of the based on Constitution arguments provisions United States. earlier, I said “I believe
In matter on this writing least, Common- art. at the very requires, unless that serves a wealth not life action person’s take which be achieved.” substantial cannot otherwise purpose O’Neal, 440, 451 Mass. (Wilkins, in an order of the court then joined J., concurring).1 briefs to be filed on “the effect allowed further should the seri particularly 1We Massachusetts conscious of imposition, imposition, of the or at least the threat ousness past In the we in years, of death. have attracted attention, favorable, not all of it because of the existence of ordinate punishment. finality execution of capital irreversible regret, defendant can be both source of universal as criminal show, and the plainly to the Salem witch trials subsequent events feelings for fairness in administration concerning reason intensified consequences two murders in South Braintree justice, certain addition, in 1920 also show. the existence of the plainly murder crime but to conviction of of death be a deterrent first Sullivan’s studied views degree. Judge Robert Goodbye acquittal of Lizzie Andrew Borden reason the 1893 Joseph Mr. N. Borden, the foreword p. See also Lizzie 1960) (2d B. Ehrmann ed. Case Herbert to The Untried Mr. Welch witches, Lizzie discusses of the Salem which Mr. Welch the cases relation to the Vanzetti in Sacco Bartolomeo Borden Nicola penalty.
Commonwealth c. O’Neal. question of the extent of interest the Commonwealth’s imposition rape-murder cases.” Id. at 451. reaching question
Without whether the death penalty may imposed constitutionally any be circum- stance, I conclude that the Commonwealth has not rape-murder, established a sentence of death for a as opposed imprisonment, public life a serves substantial purpose. brutality taking If a human life can be Commonwealth, sustained at all where no one has been executed since believe that the Common- wealth must show a need for that death. opinion From the discussion in the Chief Justice’s penalty, opposed
seems clear that if the death as to life imprisonment, could be sustained in these circumstances principal ground support.2 deterrence would be the There are crimes as to which deterrent effect of the may purpose threat of death serve a be cannot imprisonment. achieved the threat of life One ex- ample is murder in the course of the commission of a kidnapping holding crime, hostage, serious such as or a during ample which the criminal has time to reflect on consequences taking example of his of a life. Another already murder a convicted murderer who is subject imprisonment to life where the threat of the imposition penalty may of the death be the available examples. deterrent. There are no doubt other Commonwealth has not shown that murder in the course rape attempted rape or is such a crime. One cannot infer with confidence from the nature of the crimes that penalty, against imprison- threat the death as life ment, deters commission of murder in the course of rape attempted rape, and at this time there are no legislative findings report aor aof commission on which important place 2 Retribution does have an in justification of the amount of for the carry commission of crime but cannot death, the burden alone sustaining imposition sentence of life opposed imprisonment, these circumstances. Mass. 242 *31 may rely support the Commonwealth in of the death penalty.3 application principles
The is not of constitutional thought penalties appropriate immutable, in and criminal longer accepted society. in are no our See Weems (1910); Trop States, v. 217 U. S. United my Dulles, view, our 356 U.S. today may us that the State State Constitution tells though tolling engage murderer, of a even in the senseless person a is a who has committed sense- he definition tolling such a criminal would less himself. Execution of meaning of within the “cruel” and “unusual” be both Rights. Declaration art. 26 of the those words (concurring result). agree I in the J. Kaplan, present the result in case Wiltons that should Justice pitched Rights, be 26 of art. the Declaration of and join opinion. note, in the substance of his I add a how- proposition ever, Wilkins's about a which opinion put question assertion, more as a than an but emerges perhaps definitely implication as an more opinion proposition is from Chief The Justice. crimes?) perhaps (or homicidal crimes If there are this: be could prospect of death to which imprison- stronger than life deterrent to serve as a shown may be stronger?), crimes then those (how ment much punishment. “if” constitutionally amenable to that 3Indeed, have capital punishment may not years, the threat of in this Commonwealth. Since any significant deterrent effect had prior in this Commonwealth last execution for murder numerous Georgia, decision in Furman U. S. 238 first and sentenced degree convicted of murder persons were death, recommenda- contrary jury of a required as was in the absence we However, has executed. If none of these murderers been tion. his to note that conduct person sufficiently reflective assume that degree, first we of murder may result the commission person will conclude that one assume as well reasonably because no one capital punishment will he not suffer way another since 1947. in Massachusetts has been executed t>. O’Neal. highly speculative supposing one. that the clause is a But ques- satisfied, I. note that the constitutional condition Among hardly matters, be other tion would concluded. any legisla- have to consider whether a court would then authorizing capital punishment, even nominal- rule tive ly “mandatory” caprice rule, can be administered without edged against racial with discrimination minorities poor, judged whether, standards, evolved brutalizing as is not so brutal and itself proscript. emphasize I mean to that “deterrence” is one of the several factors that bear on the constitutional *32 issue. (concurring result). theOn con J. Braucher, opinions my
stitutional issues discussed in brothers, the of myself agreement I find dissenting opinion with the of opinion recognizes, Reardon. The latter however, that a ques substantial Federal and State constitutional presented. tion is I therefore think we should first ascertain fairly whether a construction of the statute is by possible question may which the be avoided. See Attorney First Natl. v. Bank 570, Gen. 362 Mass. 594- (1972) (concurring opinion 597 J.); School Quirico, Springfield Comm. v. 315, Board Educ. 366 Mass. (1974) (concurring opinion 334 J.). my Quirico, opinion only fairly such a possible construction is not but plainly right. by I therefore concur in the result reached though court, given not in the reasons for that result. recently history capital
We punishment reviewed the Harrington, Massachusetts. See v. Commonwealth (1975). 17-22 Before 1951 the death only punishment sentence degree was the for first murder. substantially present In 1951 our statute form, took its permitting jury, part guilty as aof verdict of degree, murder in the first to recommend that the sen- imposed. tence of death be not G. L. c. § 2, as appearing punishment in St. c. 203. The was then imprisonment parole. be for life without “No such Mass.
Commonwealth jury shall made recommendation be recorded was court if murder committed connection attempt rape the commission of or an to commit punishment degree rape.” rape for murder Thus the first any be first was to the same other degree murder case in which no such recommendation Georgia, v. made. the decision Furman was Until punishment was death. (1972), that U.S. 238 penalty in decision eliminated death The Furman jury made, if cases where no recommendation was jury permitted were to recommend that sentence imposed. Massachusetts, 408 Stewart v. provide Literally, does not the statute (1972). U.S. any cases, held, we in such but “as for other statutory construction,” “the re- matter of imprisonment maining permissible penalty is relevant 124, 125 Cassesso, Mass. Commonwealth life.” Gilday, 367 Mass. (1975), and cases cited. possibility might hold, we first remained that as to degree decision, Furman murder committed after the provision jury sever- for a recommendation was *33 invalid, able and death sentence was manda- that the tory. judge Harrington case in the took trial only proper punishment view, but was we held that the imprisonment Harrington, life. v. for recognized judge’s supra at 21-22. We the trial support States was “had decisions other view clearly by Su- decisions of this court or the foreclosed preme we States.” Id. at 23. But Court United way knowing Legislature have had “no how the would which reacted 1951 if it had foreseen the situation twenty years more later.” Id. at 21-22. We arose than operates adopted the “construction which therefore liberty.” quoting 22, favor of life or Id. Common- Martin, v. wealth open question expressly we a left
Now
have before us
By implication
majority
Harrington
a bare
case.
Commonwealth take the view that
for
provision
jury
Justices
severable,
recommendation is
what remains is a
for
death
mandatory
provision
penalty applicable
in cases of first
murder.
In all
degree
other
rape
made,
cases where no
recommendation is
jury
the statu-
death,
for the
“as
tory provision
matter
construction,”
life,
means
statutory
but
imprisonment
murder cases means
rape
death. An isolated frag-
ment of what was once an
is
intelligible
thus
policy
This
preserved.
result is
to the clear
contrary
statutory
direction that
murder cases be
rape
treated like other
cases in which no
recommendation
is
jury
made. The
attribute
majority
an
Legislature
intention
Justices
which is then held
Worse,
unconstitutional.
the majority
cast serious doubts
opinions
constitutionality
death
any
enacted hereafter.
order to
review
prevent
Court of the
Supreme
States,
United
the case is made to turn on the Massachu-
setts Constitution rather than on the
similar
substantially
provisions
the United States Constitution.
Reliance
placed on a California decision which was promptly
annulled by the
of California.
people
Compare People
Anderson,
So far as I discover, can no Legislature anywhere has ever established a system in which murder rape pun- ished aby death mandatory sentence and no other crime subject any death sentence. our Certainly Legisla- ture did not vote for such a in 1951. system Recent Governor, vetoed proposals, enact mandatory have not embodied such a system. *34 Senate Doc. No. 1976. 1974 House Doc. No. vetoed, 1974 House Doc. No. 5540. 1975 House Doc. 603, vetoed, 1975 House Doc. No. 5909. The logic No. is since the Furman case to our of our decisions opposed Indeed, of such a system. establishment system man, now established a straw that it can be as so adopt destroyed. prefer the “construction I would to liberty.” operates in favor of life or legislative history confirms of the amendment my sponsors sought to view. The bill eliminate capital punishment practical provision as a matter They jury felt abolition for a recommendation. that change, and a bill of law was too drastic a matter proposing poor a chance of abolition would have total Penalty Massachusetts, passage. Note, The Death (1974). After the bill 8 Suffolk U.L. Rev. precluding jury passed provision House, a recom- rape murder cases was added the Senate mendation provi- sponsor a added vote 19. The to of 15 who for it and then voted sion was one voted passed by against a of 20 to 16. the bill when it vote Legisla- If the 608-612, 647-648. Senate Journal arisen, has now it ture had foreseen the situation that extremely unlikely have enacted result that it would likely is far more this court now It reaches. pre-1951 mandatory left in force the would have degree contrary murder, for all to our deci- first Harrington sion in the case. legislative give great weight sum, we should appropriate,
judgment we are but on what sentence Legislature judgment never not bound to defer to a policy intelligible legislative is tortured made. When an beyond recognition by developments, it constitutional explicit legisla- may part new be the of wisdom to await taking tion, situation, rather than to account of the new policy. preserve former Cf. Common- remnant of the (1974); Horton, 365 Mass. 171-172 Com- wealth Juvenile, A monwealth today thought. be a man
One final To sentence years several executed, all, if an indefinite time at and unusual a cruel from now well be to inflict punishment. result, desires but No one present practical matter seems as a situation it *35 369 Mass.
Commonwealth o. O’Neal. almost result of a death sentence. inevitable For the already bring myself stated, I reasons have I cannot Legislature an attribute to the of 1951 intention which produce would now that result the case before us. dissenting (with joins). whom J., Quirico, J., Reardon, April separate dissent. When on the four O’Neal, opinions 367 Mass. in Commonwealth pointed that con- out I), released I (1975) (O’Neal were imposition stitutional issues relative to the of the death penalty fully argued had been be should met court. Those issueswere not addressed. Instead the first opinions, inviting of the that of the Chief further issue,” briefs on a “narrow result in three Associ- concurred, ate did not meet the constitutional Justices already fully argued, issues which had been save that agreed four that there be should no revision of Justices lodged verdict on basis was discretion jury penalty to determine whether the death should imposed. I, 443-445, O’Neal 453. In reference to Eighth argument Amendment counsel on the death penalty punishment,” as “cruel and unusual the first of opinions deciding those stated that “in the case on this basis [viz., whether the death is violative of the Eighth simply we would Amendment], enter the morass many in which others have us,” floundered before opinion, view of the “[i]n rationale of this further controversy applicability debate and on the of the con- prohibition stitutional of cruel and unusual purpose will serve no useful at this time. We elect in- adopt approach stead to an free from the abundant com- mentary surrounding Eighth and exhaustive material Having Amendment route.” Id. at 447. thus avoided question the real court, before the we issued an order parties reappear argue point that the before us and to the imposition rape- whether the of the death compelling murder subserves a State interest and “satisfies majority court, the least restrictive means test.” A o. O’Neal. having posed a new issue which themselves thus argued briefs, parties then neither raised nor in their had *36 days period thirty parties limited of the allowed the The case was ad- file briefs thereon. which to within present reargument the that basis and for on vanced opinion, II, is result. the O’Neal Significance v. Fowler. 1. The North Carolina of Fowler, 90
In the Carolina N.C. interim North raising granted, (1974), identi U.S. 963 cert. argued questions, been has cal Federal constitutional Supreme is set of the United States and before the Court reargument present in the term. U.S. (1975) my well, . It is belief that this do in court would changed circumstances, of view the await that decision to launching My before on case. another excursion this strengthened light develop view is the the curious opinion that, clouded, ment while somewhat the first juncture up very picks questions this which were endeavoring and, refused deal consideration before to engages large them, in a discussion indeed of the punishment. capital is so extensive on This literature recognition notwithstanding I that in O’Neal there is that issues, and Federal the constitutional State constitutional thought 5), provisions, (fn. results dictate identical opinion repeated (fn. II 1 to the O’Neal opinion Justice). majority Chief A of the are of court spite foregoing we come down now of the should presumably liberty opinion since are at with this we weighty questions before us under art. 26 of the assessthe Passing for the moment Massachusetts Constitution. opinion II O’Neal Chief core facts that the Justice’s precedent, I am believe it on Federal led to rests symmetry law have of the does contribute tangent Supreme go while Court court off on one presently may quite go an States off of the United question Federal short, constitu with the other. tionality pending presently United States before the Supreme case, should defer to we Court Fowler Mass. 242 v. O’Neal. question, ultimately phase we on that that court considering only question court, must. If that constitutionality, capital rejects punishment, Federal upholds will be decisive of if the O’Neal case. But capital punishment preclude decision will not Massa any considering question chusetts or other State from under own its Constitution. This not “subservience to precedent.” simple Federal Rather it is the exercise of common sense.
Nothing which have said above intended to be an my expression personal highly views on the controver- subject capital punishment, present sial or on the subject. statutes of this Indeed, Commonwealth on that *37 personal judge’s philosophies subject a on this cannot prevail prohibitions, over constitutional mandates or nor they permitted judg- should be to affect constitutional quite I ments. am familiar with the literature now opinion. sample adverted to in the main It a of much evaluating But in more. the “evidence” contained therein authority we be must careful not to exceed the or abuse power entrusted to us aas court. “That there opinion be an earnest conflict serious does not suffice bring legislative judgment range to matters within the judicial cognizance.” Leis, Commonwealth v. (1969) (Kirk, concurring). Mass. J., We should permit strong a desire cure the to evils of the world properly to lead us into areas reserved, under our con- system government, stitutional for other branches. appraise words, In other our task here is to the constitu- propriety unhampered any tional of our statutes attempt inject personal may warp to views which judges, individuals, constitutional frame. Whether we many legisla- not, like it and how times do we review dearly we tion that would like to if could, revise we we proper are bound to remain within our confines and hew application gives an of the several Constitutions which reading by any them a fair uninhibited sense of strain. duty That is at once our and our function. Mass. 242
Commonwealth v. O’Neal. 2. Due Process Law. foregoing prefatory to the discussion which The aspects process of due and whether the death follows punishment” “cruel and unusual constitutes guidelines up in the Chief sense. set constitutional designed to in essence were opinion I O’Neal Justice’s imposition penalty for discover whether the challenge against rape-murder under could be sustained process the due clause of the Fourteenth Amendment Three concurred. the United States Constitution. Justices joined However, of them in the call at least two question Common- further briefs because rape- imposing capital punishment in wealth’s interest important under the was deemed murder cases punishment clauses of the State and cruel and unusual previously stated, I felt then Constitutions. As Federal fully argued question been feel now that this had necessary. might inquiry I add further was and that no having perused set of briefs and heard the second argument on I invited the narrow issue on O’Neal say consequence arguments, anything of has I cannot presented originally. The which was not to us surfaced caught very I small fish indeed. O’Neal net right specifically I, to state reserved O’Neal *38 my issues, and I address views on the constitutional presented myself the Chief thesis there first to the penalty under the death should reviewed Justice, imposing process the statute the due clause and that convinces must fall unless the Commonwealth compelling interest and that it serves a State court I, 450. O’Neal least restrictive means test. satisfies the analysis is both framework of am convinced that this constitutionally unsound. unwise and process clarify played by let the role the due First, us Amendment a constitutional clause of the Fourteenth right impose the death to attack on the Commonwealth’s Eighth The Amendment in this case. question but appropriate of this avenue for consideration standing by applicable itself is not to the States. Rather process because the due clause has been held to against incorporate proscription cruel and unusual punishments Eighth contained Amendment that we binding refer to the as latter amendment on the States. (1962). 660, Robinson v. 370 U.S. Fur- California, Georgia, (1972) (Douglas, 238, v.man 408 U.S. J., concurring). Resweber, Cf. ex rel. Louisiana Francis v. 329 U.S. It becomes evident that the process due clause contains at least one substantive limita- severity punishments tion on which the State impose they and that is that not be cruel and unusual. question opinion of the Chief independent second, I raises is whether there is O’Neal punishments stemming substantive limitation from the process imposi- so, due clause. If it would follow that penalty might tion of the death be held not violative of process yet impermissible due cruel as and unusual still be failing satisfy requirement as some other of due process.
Putting question arbitrary side the one inflictions (see punishments Kemmler, In re 136 U.S. 448- [1890]), only all indications are that the substantive punishments limitation on contained in the Federal Con- Eighth proscription against stitution is the Amendment punishments. example, cruel and unusual For in Weems (1910), States, 217 U.S. v. United Supreme explained adoption Eighth Court necessary Amendment restriction on otherwise legislative power punishments. “unlimited” cruel to inflict Similarly, referring legislation to Federal in Bell States, 349 U.S. the Court noted: United punishment appropriate “The for the diverse federal Congress, subject offensesis a matter discretion of particularly limitations, constitutional more *39 Eighth recently, Amendment.” Most Furman Georgia, supra at Mr. Brennan wrote that Justice prohibition against punishments the cruel and unusual Rights “precisely Bill because the included the of
was legislature would otherwise have had the unfettered punishments power prescribe to crimes.” substantively process does That the due clause not limit except legislatively imposed punishments severity the they are and unusual is evident from In re far as cruel so case, a supra Kemmler 448-449. the Kemmler, imposed the electrocution State sentence of challenged under the Fourteenth New York was Eighth stood, the Amend- As the law then Amendment. proscription against punishments cruel unusual ment challenge application States, the no to the so was had process on due based instead clause. The Court argument. conceding process rejected the While due any arbitrary deprivation liberty, life, would forbid emphasized process property, the Court the due designed power to interfere with the clause “was protect property lives, State to liberties and of its peace, promote health, morals, citizens, to their good Id. at education and order.” 449. to construction, it little sense me
As a matter of makes Eighth bypass Amendment consideration of to process proscriptions in of the substantive due favor today’s opinion by analysis the Chief relied designed Eighth in this The Amendment was case. power Legislatures specifically to circumscribe interpreting Surely impose punishments. criminal already provisions we of Constitution should broad especially specific general, here where favor the over ponder vague contours” are “the we left Hosp. process Children’s D.C. clause. Adkins v. due (Holmes, dissenting). (1923) 525, 261 U.S. J., approach, let pinpoint the defect of the O’Neal To arising Fourth Amendment under the us consider a case police, having United States Constitution. to the proceed probable warrant, and cause, an obtain arrest dwelling All an arrest. Fourth enter a to effectuate requirements have been satisfied. Amendment *40 O’Neal.
Commonwealth v. Forde, 798, 367 Mass. 804-806 appears right (1975). privacy However, the it protected by fundamental considered a interest the due Wade, 113, 410 U.S. 152-153 Roe v. process clause. must further that we I result of O’Neal (1973). Is the dwelling determine whether the arrest in a warrant is least the restrictive means toward furtherance compelling governmental example, may of a end? For particular emergency requiring be well that there is no quick by police. safely action the The arrest dwelling made some later time outside the where privacy invasion is minimized. by characterizing
Furthermore, life as a fundamental today’s opinion by interest, Chief against general language tests the death process requires the due clause but also court scrutiny” undertake “strict justifi- of the Commonwealth’s penalty. traversing cation for the death Without enormity extinguish of the decision to the life of a human being, no by matter crime, what the I am disturbed implications requirement. might point first out opinion that no cases are cited in the in which the United Supreme any States Court or other court has found life meaning be a fundamental interest within of the due process protection equal purpose clauses for the exercising scrutiny governmental strict over decisions affecting the interest in life. This characterization is critical, for consequence made, once it been has proper “the abandonment of the otherwise restraint on — judicial Developments Equal review.” in the Law (1969). Protection, 82 Harv. Rev. L. In- very dogmatic deed, the and mechanical nature of the analysis dubbing occasioned the mere of an interest mounting fundamental come has under criticism recent years. See Blumstein, Dunn v. U.S. 363-364 (1972) (Burger, dissenting); Independ- C.J., San Antonio Rodriguez, ent Sch. Dist. v. (1973) 411 U.S. 98-110 (Marshall, dissenting); Goodpaster, J., The Constitution
Commonwealth Rights, L. Rev. and Fundamental Ariz. right personal basic, doubt there is a Without United and Massachusetts Con-
life secured States *41 right require recognition stitutions; but of this does not constitutionality capital punishment the for the that rape-murder by wooden and crime be tested the conclusory largely “compelling state interest” standards and “least restrictive means.” difficulty step analysis the two is
A further following question: If is “life” discoverable the why Constitution, is interest under the not fundamental Certainly liberty “liberty” also a fundamental interest? explicitly guaranteed to the same the Constitution explicitly guaranteed. life is See Son Antonio extent that Rodriguez, supra, Independent at 33-34. I Sch. Dist. v. “ agree Due Process with Mr. Powell that [t]he deprivation admits of no between the Clause distinction deprivation ‘liberty.’” the Furman v. of ‘life’ and opinion). (1972) (dissenting Georgia, 408 U.S. 447 point telling Perhaps lies in of this the illustration most opinion in Chief cases cited the the two Justice’s proposition a fundamental life is for the O’Neal Mass, Hop- v. at 449. In both Yick Wo 367 interest. Zerbst, (1886), v. 370 kins, U.S. Johnson employed phrase (1938), U.S. rights of life and the fundamental Court referred to nothing argued liberty. of course that so It right life, that it is an interest on fundamental as the to plane my altogether. But in view another interest prison serving life in is also the remainder of one’s significant enormously just and could as well be deemed triggering purpose strict “fundamental” scrutiny. less restrictive Yet are we then invoke the imprisonment, and, of life if alternative test for a sentence twenty-year sentence, so on down so, what about a government if is never able to Also, line? what convincing proof any is a neces- adduce — compelling sary does then to a State interest means Commonwealth o. O’Neal. Furman
lack the at all? See Georgia, power punish at 396 supra (Burger, C.J., dissenting). nature of the problematic analysis proposed I demonstrates
O’Neal me inherent dangers to invite one more avenue court’s willingness yet apparent under the State’s criminal laws of attack against due The constitutional banner of substantive process. reminiscent of the era of Lochner most theory proposed York, when statutes were U.S. 45 v. New because to be violative of due merely thought process unwise, is, were considered offensive to they Hand, The Bill of Rights judge’s “personal preferences.” York, at 74-76 supra Lochner New Adkins Children’s Hosp. (Holmes, J., dissenting); *42 525, D.C. 261 U.S. 568-570 dis- (1923) (Holmes, J., Inc., Williamson Lee Okla. Optical 348 senting); of 483, U.S. v. 372 U.S. (1955); Ferguson Skrupa, Williams, 726, v. 397 U.S. (1963); Dandridge McGautha v. 402 U.S. California, (1970); 254-255 n.4 As in the (1971) (Brennan, J., dissenting). Lochner line cases, of intervention here under the judicial involves the Court in difficult factual due clause process determinations, in this case the court to make requiring an about the of the death empirical judgment efficacy as to life sentences the compared serving various of the criminal law. Yet this is a goals subject matter most for the careful appropriate study open of the debate As Mr. Frank- legislative body. Justice context, furter wrote in effect, another “In are we asked to enter the domain of and more penology, particularly it, of of tantalizing aspect proper apportionment be re- punishment. Whatever views entertained of whether one believes in garding severity punishment, its or its . . . these are efficacy futility, peculiarly ques- States, Gore United tions of v. legislative policy.” U.S. 393 (1958).
Furthermore, the substantive due here process analysis well inter- actually goes beyond theory judicial of
Commonwealth v. O’Neal. employed cases, vention line of for not Lochner purport did the Court to shift the even those decisions Legis- proof validity burden of on the of statutes to the supra, Ely, York, 56-58; v. lature. Lochner New Wages Crying Wolf: A Comment on Roe (1973). Apparently Wade, 82 Yale L.J. striking concept judicial down State restraint evaporate challenge legislation is now to when the can process, fitted into due and I fear the mold substantive tantalizing we have seen the last of this device. We not Holmes, Mr. would do well to heed words of recognize approach who was first to that the Lochner fraught danger: yet adequately was “I have expressed anxiety I feel ever more than at the increasing given scope Fourteenth Amendment cutting to be the down what believe constitutional rights stand, I As the decisions now see the States. hardly any sky invalidating to the of those limit but rights happen majority they if to strike a this Court any undesirable. I cannot believe that reason give carte intended to us blanche Amendment was prohibi- beliefs its embody our economic moral (1930) 586, 595 Missouri, U.S. tions.” Baldwin opinion). (dissenting judicial
My proper restraint concern for a measure Eighth applies to our consideration course *43 challenge shall to this well, as and I return Amendment particular it is of in context. But I believe theme that providing process clause, in of the due moment the area questioning needed, for the reason, if one is further analysis in the this case undertaken Chief Justice consequences. avoiding its for point only other on while
It remains to.add language different Constitution is somewhat in State our Rights) its the (see 12 of Declaration arts. 10 and process Federal provisions those the due from Pugliese Commonwealth, 335 Mass. v. Constitution, in language to mean (1957), we construed 471, 474-475 293 Commonwealth thing practically process of the due the same Fourteenth Amendment. There clause were between the Federal and essence no differences the State process Constitutions. reiterate that the substantive due approach of II to the relies O’Neal State Constitution entirely precedents dealing almost Federal with My process Fourteenth Amendment. references due to apply equally to both Constitutions.
3. Cruel and Unusual Punishments.
I now turn to what to me seems the real issue in namely, proscription case, of cruel and unusual punishments Eighth Amendment United punishments Constitution, States and of cruel or unusual Rights 26 art. of the Declaration of the Constitution of the Commonwealth. argues
The defendant that both Constitutions strike down as cruel and unusual or cruel or Initially difficulty unusual. I see no use of Gaynor’s Case, “and” and 86, “or.” While in 217 Mass. (1914), we referred the word “or” as a disjunctive particle conjunctive particle, rather than a we noted the same case that “or” is often construed as “and.” specifically
While this court has never before focused meaning phrase on the 26, “or” in art. it has used interchangeably “cruel and unusual” with “cruel or Compare Commonwealth, unusual.” Sturtevant v. 158 (1893), 598, Commonwealth, Mass. 600 McDonald (1899), Harding 322, 173 Mass. v. Common- wealth, (1933), 283 Mass. with Common- Hitchings, Gray (1855), wealth v. Common- Murphy, (1895), wealth v. Novak,
Commonwealth v.
272 Mass.
although
initially
In addition,
Chief
Holmes
judgment
question
reserved
on the
in Storti
Common-
wealth,
Commonwealth the word ‘unusual’ must be construed with the word broadly prohibit be so as to ‘cruel’ cannot taken previously every improvement humane known Massachusetts.” Id. at 553. the absence historical suggesting proscribe evidence every that the framers meant punishment, regardless nature, of its new form of every might be form of which character- regard ordinariness, I ized as “cruel” to its without reading believe Chief Holmes’s of the two together only adjectives is the sensible construction of phrase. People Anderson, Cal. reference to v. 3d
With in which the California cert. den. U.S. 958 Supreme held the- death unconstitutional Court prohibiting provision “cruel or un- under a California punishment, emphasized that court the fact usual” cruelty independent disjunctive for established tests persuaded by unusualness. I am not this California precedent, light particularly deci- of the fact that the independence of the did not in fact turn on the sion be found standards, since the court unusual. cruel and both nothing
Furthermore, our law there case rigorous imposes suggests limitation that art. more Eighth punishments Indeed, if Amendment. than imposes possible anything, less restriction on art. punishments. early applying cases read art. 26 as inhibiting Legis- and not to action the courts Hitchings, supra. v. Sturtevant lature. Commonwealth supra. recognized Commonwealth, While later we v. provision, Legislature is not unlimited this supra, Commonwealth, been v. has McDonald penalties great even could deference where accorded e.g., fairly excessive, Draconian or characterized as Harding supra, Commonwealth, Moore, analysis art. purposes
Thus conclude imposes a Rights Declaration Massachusetts *45 Mass. 242 Commonwealth O’Neal. expressed in the
standard no more restrictive than that prohibition punishment the of “cruel unusual” and Eighth Amendment. question penalty whether the death constitutes meaning punishment the
“cruel and Unusual”
within
Eighth
exhaustively
recently
the
was
and
Amendment
Georgia,
discussed in Furman v.
In the three cases case, involved in the Furman the determination whether the should be less severe the was left the statute to judge jury. discretion of the ofor the Douglas, writing support decision, Mr. Justice exclusively discretionary aspect focused almost on the question, concluding State statutes “these discretionary opera- statutes are unconstitutional their They pregnant tion. are with discrimination and ingredient compatible discrimination is an equal protection implicit idea of laws that punishments.” ban on ‘cruel and unusual’ Id. at 256-257. Mr. Stewart his rested conclusion that the death
penalty in cases before the Court was “cruel and Mass. part discretionary aspect of
unusual” least in sentencing people “For, all procedure. many rapes murders in convicted among petitioners reprehensible these, are just as upon capriciously random handful whom selected *46 imposed.” 309- of has in been Id. at sentence fact death 310. Mr, pointed Finally, that the “facial White out Justice imposition
constitutionality requiring of of statutes first-degree murder, for more for penalty death categories narrowly rape murder, for would defined of or Eighth present quite Amend- different issues under the posed 310, us,” ment than are the cases before id. judgment in of the Court because “the concurred and great infrequency for is exacted with even meaningful crimes . . . there is no most atrocious and distinguishing is the few cases in which for basis imposed many in Id. at from the cases which it not.” 313. majority expressly of five three Thus, Justices discretionary imposition of
limited the decision by judge jury, or and refused to consider death sentence mandatory whether a death sentence would vitiate Eighth Amendment. pointed Furthermore, out in Mr. Blackmun as Justice concurring opinions dissent,
his “The several acknowl edge, today capital punishment they must, that until per accepted se not unconstitutional was and assumed as Eighth Amend Amendment or the Fourteenth under the holding implicit a or the ment. This either flat 130, 134- Utah, U.S. v. Court in Wilkerson unanimous Kemmler, In re 1879; Court in 135, a unanimous in v. 1890; the Court Weems 436, 447, in 136 U.S. mem 1910; all States, 349, in those U.S. United majority, issue addressed the Court, who bers of the 459, Resweber, 329 U.S. v. ex rel. Francis in Louisiana Warren, 1947; Mr. Chief 463-464, 471-472, in (Justices Black, speaking others for himself three Mass. 242 Whittaker) Trop Dulles, Douglas, v. 356 U.S. Rudolph 1958; 99, in the denial of certiorari (where, Alabama, 375 U.S. however, Douglas, Goldberg Brennan, would have Justices argument respect imposition of heard to the rapist ultimate convicted who had ‘neither endangered life’); taken nor human and of Mr. Justice 183, 226, Black in 402 U.S. McGautha California, May 3, decided last Term on 1971.” Id. at 407- 408. provides
General Laws c. the death § penalty mandatory any person guilty found degree murder in the first committed in connection with rape attempted rape. the commission of Thus all guilty those found of this combination crimes will be subjected penalty. to the same *47 infrequency imposition
The sheer of the death penalty, by opinions referred to in several of the case, Furman However, will not be decreased. complaint infrequency essence of the was that it raised presumption imposition a of arbitrariness in the of the penalty. Legislature Where, here, the has made a judgment guilty particular that all found of a class of punished objection by crime must be death, such cannot be raised. Georgia question
Thus Furman v. does not decide the case, before us in this and I turn now to consider Eighth prohibits imposition whether the Amendment mandatory of a death sentence for murder committed in rape. the course of a purely grounds, strong argu-
On historical there are finding penalty ments for that the death is not “cruel and punishment Eighth meaning unusual” within the of the by Trop Amendment. As was noted in four Justices Dulles, (1958), 356 U.S. “[T]he employed throughout day history, has been and, our in a accepted, widely when it is be still cannot said to concept cruelty.” violate the constitutional Evidence
Commonwealth Eighth such as the Four- internal the Constitution guaranties against deprivation of life teenth Amendment process suggests the framers never without due that contemplated penalty per the death se was cruel punishment. seems without and unusual It doubt Eighth (and of the Massa- the framers of the Amendment well) principal had as their inten- chusetts Constitution as regime Stuart tion the elimination of the tortures of the dealing England. In literature in all the elaborate subject, received extensive treatment this which has People Georgia, supra, Anderson, Furman v. supra, drafting on the of our funda- there is no evidence any open intention to mental documents which discloses capital punishment. way I do the abolition of repetition the basic sources not venture into a treat them and Anderson cases statement. quite Furman capital punishment Argument completely. eyes punishment was cruel and unusual supported. constitutional fathers cannot separate opinion Mr. Black noted As 183, 226 402 U.S. v. California, McGautha Eighth cruel and unusual “The Amendment forbids my punishments.’ view, these cannot be read words punishment capital was in because that outlaw law here and common use and authorized the time the ancestors came at countries from which our adopted. me that is inconceivable to was It Amendment capital intended end the framers *48 urged Although people have that this some Amendment. interpretation by to the Constitution Court should amend ideas, never believed keep I have it abreast of modern legisla- system any judges such have that lifetime our power.” tive beyond purely historical considera- if we move
Even recognize “cruel and such as tions, and that clauses evolving meaning the “from their unusual” draw maturing progress a decency of that mark the of standards supra 101, it far from clear Trop Dulles, is society,” c. decency are, or what those standards of that the manda- tory imposition the in a case such as this uprooted them. such a from violates When standard origins, indication, its historical there is little where language either from the or in the itself circumstances of enactment, its what the content of those words should be temptation great simply now, the for a to use a court vague a standard as vehicle for its own moral values.
We must be ever reluctant to overturn a decision popular government impose the branch to particular punishment strong the absence evidence Legislature overstepped that has the constitutional Burger dissenting said, limit. As Mr. Chief novelty being upon case, Furman “There is no called interpret provision a constitutional is less than self-defining, guarantees, but, of all our fundamental punishments’ ban on ‘cruel and unusual one judicially manageable most difficult to translate into . . terms. . [I]t is essential our as role a court that we upon enigmatic guarantee not seize character of the personal predilections as an invitation to enact our into Georgia, supra, law.” Furman v. at 375-376. meaning
It may seems clear that one be phrase attributed to “cruel and unusual” is that no illegal punishments imposed, i.e., none that is not authorized statute. There is some evidence meaning except “illegal” “unusual” had no in this punishments context, and that it was the unauthorized during reign Titus Oates II which were in James question framers’ is, course, minds. There no along Legislature clearly case this line since the has punishment. authorized this
“Cruel and unusual” be taken to mean that punishment grossly disproportionate not be to the offense. States, Thus in Weems United U.S. interpreted Eighth Amendment as Court
requiring
precept
justice
as “a
graduated
proportioned
offense,”
crime should be
*49
v.
punishment
years
plus
fine,
and held that a
of a
twelve
wearing
deprivation
involving
jail,
chains,
of
of
and
rights during
by perpetual
time,
that
followed
civil
political rights,
subjection
disqualification
from
making
surveillance,
for
crime
all
a
false entries
public
adoption
records,
was unconstitutional. While
precept
necessarily mean
on
this
does not
we
the other
wholeheartedly
eye-for-an-eye,
as
indorse a hard
or
hand
morality,
life-for-a-life,
here,
it is at least true that
penalty
grossly disproportionate
not
to the crime
death
is
rape.
a
of murder committed in the course of
punishment must
be
has
been
not
It
also
said
a
demeaning
excessively
unnecessarily painful,
painful,
dignity. Presumably
it is these considerations
human
rejection
torture,
lie
which
behind our intuitive
burning
drawing
quartering,
stake,
at
Thus in
rel. Francis
“cruel and unusual.”
Louisiana ex
Resweber,
the Court denied
4. Conclusion. my sum, process conclusion that the due analysis contained in O’Neal I and O’Neal II is unsound genesis great and could be the and unwarranted difficulty. my constitutional It is further that, conclusion notwithstanding against, mostly the treatises for and against, capital punishment cited in the Chief Justice’s opinion, penalty the death is not cruel and unusual punishment in my the constitutional sense. is further It compelled by conclusion that this court is art. 30 of the Rights Declaration of away of Massachusetts to remain questions from the legislative determination of which are judicial. and not I conclude that the death prohibited not Eighth in this case Amendment or Rights. the Declaration of I would also conclude that provision G. L. c. § which mandates for murder committed connection with 2,348,005. 1The number total of ballots cast was Of these 1,159,348 voted, “Yes,” 730,649 voted, “No,” 458,008 were Statistics, 43, 1968, blank. Election Pub. Doc. No. at 406. Commonwealth v. Tarver. or an to commit
the commission rape attempt rape unconstitutional, under and that sentences imposed the dubious are valid. reiterate that provision of today’s constitutional consequences opinion could be without Chief avoided prejudice outcome of North were we to await Fowler, 419 U.S. cert. granted, Carolina N.C. *51 U.S. set reargument vs. Frank Tarver. 1975. December Suffolk. March 1975. C.J.,
Present: Hennessey, Kaplan, & Tauro, Braucher, JJ. Quirico, seizure, Law, pro- Due Search and Rape. Constitutional Homicide. Evidence, Cause. Probable of law. Search and Seizure. cess Witness, Ex- Photograph. Leading question; Opinion: expert; Practice, Criminal, of evidence pert. Disclosure Identification. jury. grand before promptly arrested for one crime a defendant had been Where snipped samples hair were police arrival at the station after his head, investiga- pubic area in connection with his chest from which he had been unrelated to that for of a second crime tion arrested, police of his arrest had and where at the time crime, taking him with the second probable charge cause a arrest. search incident to lawful samples hair was valid [305-310] expert in the admission was no error At criminal trial there samples microscopic comparison
testimony, based body, although victim’s hair taken from the defendant’s hair with body but on the testimony identify such could the hair found as the source only persons could exclude large classes hair. [310-311] years old eight had been trial at a criminal Although a witness de- he had identified the although the offense at the time of Notes extent statistics for Penalty in Massachusetts To the that the recidivism rape may determining appropriate be more relevant possible murderers is rape-murderers, rate for this class of activity if re likely subsequent involved in criminal more become general. than murderers in leased rape- the convicted “incapacitate” imprisonment to Utilization of him keeping function of additional desirable murderer serves the be discovered subsequently should event error available unknown are not reversed. Such instances guilt of his adjudication Borchard, (1970); Convicting the Innocent criminal law. See our Sellin, Penalty, Ap- Frank, Death also Guilty (1957). Not Mass. 242 interest the social maintaining ensuring justice and that utilization of proportional compact, punishment It to achieve further contends that necessary goal. under this scheme the death is the appropriate However, while agree rape-murder. the interests advanced are valid and that moral