RANDALL BOOK CORP. v. MARYLAND
No. 82-1718
Ct. Sp. App. Md.
464 U.S. 919
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Petitioner was charged with violating
On the State‘s appeal, the Maryland Court of Special Appeals reversed. 53 Md. App. 30, 452 A. 2d 187 (1982). The court, relying on Smiley v. State, 294 Md. 461, 450 A. 2d 909 (1982), concluded that the statute is constitutional and remanded to the trial court for further proceedings. In Smiley, the Maryland Court of Appeals construed the statute to prohibit only “obscene material,” which this Court has held is unprotected by the First Amendment. See Miller v. California, 413 U. S. 15, 23 (1973).
In my view, the statute is unconstitutional on its face, notwithstanding the state court‘s limiting construction. I continue to believe that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (BRENNAN, J., dissenting). See also New York v. Ferber, 458 U. S. 747, 775-777 (1982) (BRENNAN, J., concurring in judgment).
Since a criminal trial of petitioner under this statute will in my view violate the Constitution of the United States, it is clear that “identifiable . . . constitutional polic[y]” will be “undermined by the continuation of the litigation in the state courts.” See Flynt v. Ohio, 451 U. S. 619, 623 (1981) (Stewart, J., dissenting); id., at 623-624 (STEVENS, J., dissenting). Accordingly, the decision below is final within the meaning of
I would therefore grant certiorari, vacate the judgment of the Court of Special Appeals, and reinstate the dismissal of the indictment.
JONES v. ILLINOIS
No. 82-6913
Sup. Ct. Ill.
464 U.S. 920
JUSTICE BRENNAN, dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would vacate the death sentence in this case.
JUSTICE MARSHALL, dissenting.
Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Illinois insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 231 (1976) (MARSHALL, J., dissenting). However, even if I believed that the death penalty could be imposed constitutionally under certain circumstances, I would grant certiorari and vacate the death sentence imposed here.
Given the wording of the Illinois death penalty statute and the trial court‘s instructions in this case, I am not convinced that petitioner‘s sentencing jury balanced mitigating factors and aggravating circumstances in the manner required by this Court in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982). Under the Illinois statute, once a sentencing jury finds a statutorily defined aggravating factor to exist, the jury proceeds to consider aggravating and mitigating factors. “If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.”