United States v. Jackson

v. UNITED STATES JACKSON et al. Argued April No. 85. December 1967. Decided Ralph argued 8. Spritzer cause the United States. him on With were Solicitor briefs General Griswold, Attorney Vinson, Assistant General Richard A. Posner, Rosenberg Beatrice Tamor Golding. Marshall argued

Steven B. Duke appellees. cause for With him appellee on the brief for Jackson was Stephen I. Traub. Grudberg Ira B. was on brief appellee the. Walsh. opinion delivered the

Mr. Justice Stewart Court. Federal Act, § S. C. 1201 (a), U.

provides: knowingly

“Whoever transports in interstate . . . commerce, any person who has unlawfully been . . . kidnaped . . . and held for ransom ... other- by death (1) punished shall wise . . . unharmed, liberated not been has person kidnaped recommend, shall so of the verdict and years or for term by imprisonment (2) imposed.” is not if the death for life, by death punishable an offense creates thus This statute so recommend.” shall of the “if verdict the death imposing for procedure no forth sets statute right to who waives a upon defendant guilty. pleads one who upon trial or in Connecti- grand jury On October one that charging in count an indictment returned cut had case, appellees this defendants, named three Jersey person to from Connecticut New transported who ransom, and held for kidnaped been who had Court The District liberated.1 harmed when had been holding the indictment,2 of the count dismissed it makes because Act unconstitutional Kidnaping Federal asserting right price risk of death” “the free exercise” thereby “impairs . . . jury trial, and appealed The Government right.3 constitutional one: Count JACKSON, also September 2, 1966, CHARLES or about “On ‘Butch’; and GLENN WAL- ‘Batman,’ known as' as also known ALBERT MOTTE; DE LA and JOHN ALEXANDER TER transport knowingly herein, WALSH, JR., did the defendants in the District of Connecticut from Milford interstate commerce person Joseph Grant, III, who Jersey, Alpine, one John New away unlawfully seized, kidnapped, carried been had theretofore herein, for and reward and ransom defendants and held escape arrest, and aiding purpose the said defendants liberated, Joseph Grant, III, harmed when was John the said (a).” Code, States Section United violation of Title motor vehicle charging transportation of a stolen two, Count 2312, has of 18 U. S. C. York in violation to New § from Connecticut challenged now us. and is not before not been Supp. 716, 718. 262 F. Court,4 probable to this

directly jurisdic- we noted We tion.5 reverse. agree pen- with

We the District Court alty Federal provision imposes constitu- impermissible burden the exercise but think that is from right, provision tional we severable in- the remainder the statute. There no reason to entirety the law in simply validate because its punishment clause violates the The Dis- Constitution. in dismissing trict Court therefore erred count of the indictment.

I. fact obvious One at least is from the face of the statute In an itself: interstate case victim where the been has not liberated the unharmed, defendant’s asser- right tion of the to him jury life, trial cost his jury only the federal statute authorizes the —and jury return a of verdict death. The Government —to dispute proposition. does not this What is disputes thereby the conclusion that subjects statute the de- jury fendant who seeks a trial an increased of to hazard punishment. As the Government construes the who statute, jury defendant elects be aby to tried put be cannot to death even if jury so recommends— the trial judge agrees unless capital punishment imposed. should be Moreover, argument goes, defendant cannot by attempting risk of death avoid plead guilty to or waive jury For trial. even if the trial judge accepts plea a guilty approves a jury waiver, the judge free, remains the Government’s view to special convene a statute, jury for the purpose limited deciding to whether recommend the death penalty. that, The Government thus contends whether or not 4 18 S. C. 3731. U. § 5387 U. S. 929. question to a

defendant chooses submit penalty may imposed only the death if and guilt, his if in its On judge imposition. both concur con- understanding statute, the Government penalty provision Kidnaping cludes that the death who operate penalize Act does not the defendant jury. chooses is guilt to contest his before It unneces- sary to decide here whether this conclusion follow would statutory from the scheme the Government envisions,6 for it in fact is not the scheme that enacted.

At outset, reject argument we the Government’s gives the Federal judge the trial discretion to set aside jury recommendation death. aware, far 34-year So as we are once in the entire history of the Act has a jury’s recommendation of death by a judge.7 been trial discarded Government would interpretation sound, Even the Government's were the valid ity of its conclusion would still be far from clear. As the District observed, power Court “even if the trial court has the to submit power jury, discretionary, issue to a Supp. 716, exercise uncertain.” 262 F. 717-718. The Government judge accept assumes that a who would recom appended guilt judge mendation to a verdict of is a who would discretionary power penalty jury exercise his to convene a plead guilty defendant were or submit to a bench trial. But the judge jury’s mere that a to the defer recommendation .fact hardly implies extraordinary step that he would take the of con penalty jury vening accepting plea guilty approving a after a or jury statutory position a waiver of trial. Even if the Government’s correct, were the fact would remain that the defendant convicted on by guilty plea judge completely escapes a or a the threat of judge unless the trial makes an affirmative decision penalty hearing impanel special jury to commence a and to purpose, by jury for that whereas the defendant convicted auto matically jury incurs a risk that the same will recommend the death judge accept and that will its recommendation. judge One district has that he indicated would not feel bound by jury case, recommendation of death in a Robin see States, Supp. 146, son 151-153, question v. United 264 F. but the judges assume either trial have have us apparently capital pun- recommendations of always agreed jury with assumption at the statute —an unrealistic ishment under duty they statutory have abdicated their best8 —or that independent judgment penalty. on the issue of to exercise far explanation simpler is a stat- fact, In one. “if that, jury states the verdict unequivocally ute pun- defendant “shall be recommend,” shall so “shall,” . .” The not ished ... death . . is word acceding exception jury recom- “may.” petition directly him case for not before since the involved a was juries post-conviction Although recommended relief. capital punishment kidnaping cases, in a number of counsel argument he was aware Government stated at oral in this Court that in which such a recommendation had been set aside. of no case Jury Zeisel, H. Kalven & H. The American 436-444 See precedes both The Government notes that the word “shall” (1) by punishments: punished alternative The offender “shall be kidnaped person unharmed, if the has not been liberated death recommend, (2) by im if or the verdict shall so judicial thereby prisonment But the notion that is . . . .” discretion dispelled qualification authorized is attached to the second “by imprisonment is not alternative: ... if imposed.” Although judge true than the is rather formally responsible imposing in a federal criminal sentence pointless case, qualifying those words would state a truism unless they jury’s to refer to the recommendation: The were meant (1) by punished offender “shall be death ... the verdict (2) by imprisonment” jury’s recommend, or ver shall so accept reading To the Government’s dict does so recommend. phrase complete redundancy, the statute make its final pruned of anomalous indeed in a statute that has twice verbiage. following Reviser’s Note S. C. 1201. excess See U. § Nothing language history of the Federal contrary, points such result. On examination original penalty provision in form demonstrates that death, mendations of trial judges simply carried out the mandate of the statute.

The Government urges nonetheless we overlook that Congress’ choice of the imperative. might Whatever have been past, assumed the we are now asked to construe the statute so as to jury’s' power eliminate the to fix the death approval the presiding judge. reading,” it is “[T]his said, long conform “to the tradition that makes trial judge the in the federal courts the arbiter of the sentence.” And so it difficulty would. The that intentionally discarded that passed tradition when it the Federal Kid- naping forcefully Over the Act. objection articulated that jury sentencing would represent an unwarranted departure from settled federal practice,10 Congress re- jected version of would have Congress could not meaning have intended the the Government now seeks to attribute to For it. the statute as it stood in 1934 provided “shall, upon the offender conviction, punished be (1) by death if the verdict of the recommend, pro- shall so vided that the imposed by sentence death shall not be the court prior if, imposition, kidnaped person has been liberated unharmed, (2) if the death apply shall not nor be imposed person punished by convicted imprisonment shall be penitentiary years such term of as the court in its dis- cretion shall determine . . . .” form, 48 Stat. statutory language simply support will not interpretation punished offender “shall imprisonment” death or if penalty. recommends the death For the statute in this unmistakably form that, makes clear penalty applies— e., i. has recommended death —then the shall unless, be death judge before imposed sentence, has victim has been liberated absolutely unharmed. There is no reason purely to think that formal through transformations which the passed statute has since 1934 were intended to alter this basic penalty structure. Cong. See 75 Rec. 13295-13297 discretion11 and instead to the court’s

left single judge from a alternative that shifted chose an of death.12 inflicting penalty 12 of the the onus jury suggestion jury’s that the Government’s accept To merely advisory would treated as sentencing role be duty judge to the the ultimate return in other hands. deliberately placed clearly ex- clause in was question The thrust of the Judiciary Committee that drafted by the House pressed permit jury “to purpose was, quite simply, it: Its 13 kidnaper.” for The designate penalty a death Congress chose the word “recommend” to de- fact that designating punishment do in jury scribe what the congressional the basic of mak- objective cannot obscure judge rather than the arbiter of the ing jury contrary The contention death sentence. Government’s cannot stand. argument is the Government’s

Equally untenable Kidnaping procedure unique authorizes system convening special jury, —that consent, for the sole purpose deciding defendant’s 11 originally Kidnaping provided drafted, As Act had punishment “by imprisonment years death or ... term of Cong. as the court its discretion shall determine. . . .” 75 Rec. (1932). 13288 Congressmen empowering judges A number of feared that impose capital punishment might unduly jurors make reluctant some Cong. to convict. See Rec. To the extent responsible require jury that this concern was for the decision to prerequisite imposition recommendation death as a to the capital punishment, it is course immaterial whether or not the jury’s binding judge. But, recommendation on the trial as the many Congressmen jury concedes, Government who favored largely of the death did so determination because such a judge inflicting capital pun from scheme would take the onus of g., Cong. See, ishment. e. Rec. 13297. Rep. (1934) Cong., (emphasis 73d 2d Sess., H. R. No. added).

whether he put should be to death. We are ini- told tially the Federal Kidnaping Act authorizes this procedure by implication. The reasoning Government’s runs as follows: Act permits the infliction of capital punishment whenever a jury so recommends. The Act many does state in so words that recommending capital punishment im- must be a paneled guilt to determine as Therefore the Act well. authorizes infliction of the on the recom- mendation of a specially to determine convened punishment. The Government support finds for this analysis in a Seventh Circuit decision construing the Fed- eral Kidnaping Act to mean that the penalty imposed whenever “an affirmative recommendation by made a jury,” including a jury solely [is] convened purpose after the court accepted has a guilty plea. Seadlund States, v. United 97 F. 2d 748. Robinson Accord, States, United v. Supp. F. 153. But the statute not say does “a jury.” says It “the jury.” At least when the defendant demands trial jury on the issue of guilt, Government concedes that “the verdict of the jury” means what those words naturally suggest: general verdict of conviction or acquittal returned jury that passes upon guilt or innocence. when Thus, a jury such has been statutory convened, reference is jury to that not to a alone, jury impaneled after convic- tion for the of purpose limited determining punishment.14 Yet the argues Government that, when the guilt issue of has been tried to a or judge has been eliminated alto- gether by a plea of guilty, “the jury” verdict at once a completely assumes meaning. new In such a case, said, jury” “the verdict of the means the recommen- jury’s guilt If the verdict of penalty includes no death recom mendation, judge impose can beyond imprisonment. no He cannot jury another capital punishment. convene to recommend See United States Dressler, v. F. 2d deciding purpose for the sole a convened jury

dation should live or die. the accused whether statute this give us would have Government slightest indi- meaning without strangely bifurcated any such scheme. Congress contemplated cation that hints history so much as legislative in the a word Not by a a conviction plea guilty on conviction by a might be followed sitting court If a penalty jury. before sentencing proceeding separate recognized been impanel had power Congress enacted system when the federal elsewhere total Congress’ Kidnaping Act, perhaps the Federal incor- as a tacit subject could be viewed on silence into the new law. sentencing practice poration of Congress legislated background against which But sentencing for the precedent sort was barren impliedly authorized. Congress we are procedure told Congress’ nonetheless maintains that The Government for the infliction of the death provide failure to guilty or waive trial was no plead those who can oversight the courts and should more than expressly has authorized twice, At least correct. capital punishment infliction of defendants assumption without a but even on the jury,15 convicted 15 forbidding wrecking Congress provided trains, of In a statute any “[wjhoever crime, of has resulted is convicted which subject person, be . to the death in the death of shall .'. in the direct, or, penalty in its discretion so ... shall plea guilty, the court its discretion shall so order.” case of if of added). (emphasis And (1948), 794 18 U. S. C. 62 Stat. §1992 Congress pro prohibiting aircraft, destruction of statute in a sub violators whose conduct causes death “shall be vided that penalty if ject ... shall its discre ... to plea guilty, plea direct, or, in the case or a tion so by jury, guilty has waived a trial where the not. defendant shall so order.” court in its discretion (1956), 70 540 18 Stat. added). (emphasis U. C. S. § aircraft-wrecking statute, language U. S. C. The § congressional particular interest here because it reflects a Congress the failure of to so wholly do here was inadvertent, hardly it would province be the of the courts remedy. Any attempt fashion to do so would be fraught gravest with the difficulties: If a special jury were convened to how sentence, recommend would the penalty hearing proceed? What would each side be required to show? What of proof gov- standard ern? To what extent would conventional rules of evi- abrogated? dence privileges What would the accused enjoy? Congress, legislatures unlike the state that have jury proceedings authorized determine the capital cases,16 has addressed itself to none of these questions.17 precise problem suggests

awareness of the Congress the Government overlooked in the area: In a letter addressed to the Chairman of the House Foreign Committee on Interstate and Com- merce, Rogers, Deputy Attorney suggested William P. then General, Department on behalf of the Justice the bill then under con- by sideration should be phrase amended the addition of the “or plea guilty in the case of a of not where the defendant has waived by jury.” trial The letter stated: present phraseology

“Under the it is doubtful whether the court could invoke the death in a situation where the defendant plea has guilty, right entered a jury, waived his to a trial Congressional asked to be tried court.” U. S. Code News, Cong., Sess., (1956). Administrative 84th 2d 3149-3150- Congress suggested language inserted the in the aircraft statute as July 14, on later, enacted Less than a month recon- sidered the amendment, Act and added a technical (1956), provision Stat. 1043 but no impo- included to authorize the penalty upon plead sition of the death guilty defendants who right waive the trial. (Supp. See Cal. Penal 1966); Code 190.1 Conn. Gen. Stat. § (Supp. 1965); Ann., Rev. Pa. (1963); Stat. Tit. §53-10 §4701 N. Y. Penal §§125.30, Law 125.35 complex problems presented by separate penalty proceed ings frequently g., Frady have See, States, been noted. e. v. United App. 121 78, 109-110, U. S. D. C. 84, 348 F. 2d (Burger, J., 115-116 concurring part dissenting part); in and in Note, The California Penalty Trial, 52 (1964); Note, Calif. L. 386 Rev. The Two-Trial gap minor in statute —to fill a thing to is one

It that were design details general from extrapolate thing to another quite It inadvertently omitted. novel completely complex whole cloth create from for unwilling defendants to thrust procedure and charge from a rescuing a statute purpose sole recognize judges trial sit- unconstitutionality. We chosen have on occasion kidnaping cases ting in federal ad hoc basis fashion on an attempting to course, the latter a jury.18 before penalty proceedings ground rules particular of rules know kinds do not what We widely varied, such rules have how adopted, have judges thing applied. But one fairly they have been or how lives forced to defend their is clear: Individuals at least occasion do so must proceedings in tailor-made ordinarily in that defendants find guidance in evidentiary spelled rules out body procedural approval notes with of trial.19 The Government advance (1964). System Capital Cases, Y. L. See also 39 N. U. Rev. Code, the Model Penal 63 Col. L. Rev. Kuh, A Prosecutor Considers surprising (1963). is not that courts confronted with 608, It requires “compre problems their solution have concluded action.” State v. judicial legislative piecemeal and not hensive Mount, (concurring opinion). 195, 224, 152 A. 2d 30 N. J. People Friend, 749, 763, 2d P. 2d 47 Cal. also v. See Curry, 904, 914-915. United States v. But 358 F. 2d n. 7. see us defendants informs that at least three The Government arising pleaded guilty under the Federal in cases who special to death on the recommendation of Act have been sentenced punishment. penalty juries to determine convened jury proceedings legislatively with established Even in States attorneys always pre penalty issue, been defense on the advantage trial pared of those features to take Clemency Note, designed clients. See Executive to benefit their Capital Cases, 136, 167 If the relative 39 N. Y. U. L. Rev. repre proceedings impaired novelty has thus effective proceedings the contours of such jurisdictions where sentation by statute, it seems clear that the difficulties for have been fixed amorphous be even more formidable under the defense the sought place to which has “the decisional trend ... Yet legislation.” capital construction on most humane provision capital punishment it asks us to extend and uncharted direc- in a new Kidnaping Act the Federal mandate legislative of a compulsion without tion, That guidance. legislative the benefit we decline to do.

II. therefore, the de- Kidnaping Act, the Federal Under guilt to contest his right who abandons fendant executed; cannot be assured that he jury before a acquittal enough jury to seek ingenuous defendant guilty him finds that, stands forewarned problem Our his he will die. spare life, not wish to does estab- permits the the Constitution is to decide whether only to applicable a death of such penalty, lishment contest their right to who assert those defendants The inevitable effect jury. guilt before of the discourage assertion course, to is, of provision and to plead guilty20 right not Fifth Amendment demand right Amendment of the Sixth deter exercise purpose no other provision If had trial. rights of constitutional chill the assertion than to effect then it them, exercise who choose to by penalizing those the Gov- But, as unconstitutional. patently would be to cases where limiting notes, ernment another does have imposition recommends of man- more drastic alternative avoids the objective: .It legitimize system asks us to case-by-case the Government Circuit, while not fore- today. the Second It is no wonder compel unwilling two-stage altogether, “loath to closing trials was Curry, States v. 358 F. 2d to them. United to submit” defendants 904, 914. process convicting forbids a defendant that due It is established Claudy, g., guilty plea. See, e. Herman v. the basis of coerced on U. S. 116.

datory punishment every sense, case. penalty procedure selective established ameliorating Federal be viewed as severity extreme more provide.21 might wished The suggests that, Government because Act thus operates mitigate severity punishment,” “to it is it “may irrelevant the incidental effect of in- that ducing defendants not to measure.” contest full We might cannot agree. Congress’ Whatever be said they by cannot objectives, pursued be means that need- lessly rights. chill the exercise of basic constitutional Robel, Cf. United States v. Shelton v. 258; U. S. Tucker, 364 U. S. The is question 488-489. not chilling whether effect is rather “incidental” than question whether intentional; is that is effect unneces- sary therefore excessive. In this and case answer to that is question Congress The clear. can course miti- gate severity of capital punishment. goal limiting penalty to cases in which a jury rec- legitimate is an entirely ommends goal it one. But that can be penalizing achieved without those defendants who plead guilty and demand jury trial. In some States, example, choice between life imprisonment and capital punishment every case— is left to a jury regardless of how -guilt the defendant’s has been deter- availability mined.23 Given the of this and other alter- natives, it clear that death penalty selective provision of the Kidnaping Federal justi- be canno.t Curry, See United States v. 2d 904, F. 913-914 and n. 8. States, v. United Andres See also (Frank 333 U. S. 753-t754 furter, concurring). J., States, See McDowell v. United Supp. 426, 274 F. 431. See Laboy Jersey, v. New Supp. also F. 23See, g., e. Wash. §§9.48.030, 10.01.060, Rev. Code 10.49.010 (Supp. 1966). Cf. Cal. Penal Code 190.1 § power purpose. Whatever fled its ostensible violation of impose impose Congress cannot Kidnaping Act, Federal needlessly the asser- penalizes in a manner that California, See v. right. tion of constitutional Griffin 380 U. S. 609.24 that Government, does the urge, no answer to as

It is reject coerced upon be relied judges trial For involuntary trial. guilty waivers pleas of and necessarily is not that it the federal statute the evil in simply it but guilty pleas waivers coerces be encourages procedure A need not needlessly them. impose held to inherently order coercive aof constitu- the assertion burden impermissible the Federal right. Thus the fact tional discourage insisting upon from defendants Act tends to im- demanding hardly trial their innocence to a guilty plea who enters every that defendant plies involuntarily.25 power The charge does so under the involuntary jury waivers guilty and reject pleas coerced to con- totally eliminate, might but cannot alleviate, infirmity in capital punishment provision stitutional Kidnaping Act. of the Federal Spillers State, - Nev. -, by Zenoff, opinion Justice v. an recently Supreme 18, 22-23, Court of Nevada has -, 436 P. 2d imposing punish a state scheme held unconstitutional injury rape resulting great bodily “if the ment forcible (1) penalty.” death Nev. Rev. Stat. 200.360 their verdict affix the § too, Jersey, So, Laboy Supp. 266 F. New See v. California, 609, the held that comment v. S. Court U. Griffin impermissible penalty testify imposes to on a defendant’s failure obviously right Yet it to remain silent at trial. on the exercise every pre- who ever testified at does not follow that defendant prosecution could have commented trial in a State where the Griffin upon release so to automatic his failure to do is entitled compelled. testimony regarded theory that must be as his alternatively proposes Government Court, supervisory powers, in the exercise of its should simply judges sitting kidnaping instruct federal cases attempts to all to waive trial reject and all efforts voluntary however plead guilty, and well-informed attempted pleas might such waivers and In that be. every we assure way, charged could defendant in a aggravated with court would face a possible no penalty, defendant tried under forgo federal statute would be induced to a consti- right. tutional But of course the inevitable consequence of this “solution” would be to force all defendants to submit however clear trial, guilt their and however strong acknowledge their desire to spare it in order to spectacle themselves and their families the expense protracted proceedings. courtroom It is true that a right defendant has no constitutional to insist that he be judge Singer tried rather than a jury, v. United States, 380 S. 24, U. and it is also true “that a criminal defendant has right absolute guilty have his plea [no] accepted by Lynch Overholser, court.” v. 369 U. S. 705, 719. But the that jury fact guilty waivers and pleas may occasionally rejected hardly be implies that all de- required fendants to submit to a full-dress trial as a matter Quite of course. apart from the cruel impact of requirement upon those defendants greatly who prefer not to contest their guilt, it is clear —as even the recognizes Government —that automatic rejection guilty of all pleas “would rob the process criminal of much of flexibility.” As one 26 federal court has observed: power “The of a court to accept plea of guilty is traditional and fundamental. Its existence is necessary for the . . practical . . . . administration Willis, Supp. United States v. F. 630. of the criminal Consequently, require law. it should an unambiguous expression part on the of the Con- gress authority to withhold in specified this cases.” If any approach in inaugurated should be of a criminal statute, administration we conclude impetus must come from not from Congress, The provision Court. Federal Act cannot judicial be saved reconstruction.

III. remaining question The is whether the statute as whole must fall simply because its death clause constitutionally deficient. The District Court evi dently must, assumed that for court dismissed disagree. in indictment. We As we said Rfg. Champlin Commission, Co. 234: v. U. S. part “The of a of an does unconstitutionality re- necessarily validity defeat . . . the its maining provisions. Unless it is evident legislature would not provisions have enacted those which are within of that power, independently not, part may which is the invalid dropped what fully operative is left is as a law.” appellees correctly Champlin note that where was a case expressly authorizing had included a clause the severance provision, invalid a fact which in this Court relied recognizing presumption that, eliminating parts, legis “a invalid would have been satisfied with lature what remained explicit might But whatever relevance such U. S. clause creating presumption severability, Electric Bond see Comm’n, 419, 434, Co. v. 303 U. S. the ultimate determination severability rarely presence will turn on the of such absence Thus, example, Champlin, stating clause. the Court after statutory quoted above, the basic test cited cases which invalid provisions despite any provision had been severed the absence of severability. Co., Pollock v. Farmers’ Loan & Trust 158 U. S. authorizing the clause is clear that test, this it

Under from the remainder is severable unconstitutionally that statute and as of the law the defeat require of that clause does not Supp. States, 274 F. McDowell v. United a whole. See 436 P. State, - Nev. -, -, v. Spillers 426, Cf. 18, 23-24. 2d independent functionally in is a question

The .clause in Act. Its elimination Federal part and reach of the statute way no the substantive alters operation. its basic Under unchanged completely leaves quite inconceivable circumstances, that capital punishment decided to authorize Congress which chosen to dis- kidnaping cases would have aggravated in if informed it could card the entire statute now before us.28 clause include history happens confirms what case it suggest: orig- The law as alone would common sense capital punishment in 1932 contained no inally enacted had favored the majority A House provision.29 362, Co., Reagan Farmers’ Loan & Trust 154 U. S. 601, 635; v. Clark, 143 U. S. 695-696. 395-396; Field v. Reagan Trust Farmers’ Loan & in v. this Court observed As legis presumed Co., “it is not to be S.U. imposing penalties, but legislating mere for the sake lature was purpose simply penalties in aid the main . . . were great body They may fail, still statute statute. legislature contemplated operative force, the force in its enactment.” Kidnaping Act, 326, provided: original Federal Stat. knowingly transport transported, or cause to be shall “That whoever commerce, transporting, foreign interstate or or abet aid unlawfully seized, confined, inveigled, any person have been who shall abducted, away by any kidnaped, or carried decoyed, means what shall, upon conviction, for ransom or reward and held soever penitentiary by imprisonment in the punished for such term of discretion, court, in shall years determine . . . .” as yielded but had opposition the Senate Congressman had expediency.30 Only as a matter of one the view that the law would be worth expressed not enacting capital punishment.31 The majority obviously penalty the was felt otherwise.32 When death substantially in un- was left 1934, added the statute 30 Judiciary opposed capital punish The Senate Committee had reported kidnaping author and the law in a version that ment had years penalty beyond “imprisonment term of no ... ized Rep. 765, court, discretion, S. No. as the in its shall determine.” (1932). In Sess., (1932); Cong. 11878 Cong., 2 75 Rec. 72d 1st opposed ensuing debates, House the death members some 13289-13290, penalty Cong. 13285, 13294 principle. on 75 Rec. capital (1932). argued that the threat Others testimony encourage kidnapers their to kill their victims lest would 13285, Most Id., at 13304. execution. lead to conviction and 13283-13284, id., penalty form, at favored the death some see persuade 13295, 13286-13287, that efforts to the Senate but feared delay accept capital punishment provision further to would occasion Id., 13288, 13299, might 13303. ultimate defeat. at and cause accepted Sen compromised majority their views therefore Lindbergh Id., Bomar, The 13304. of the bill. at See ate version (1934). Contemp. 435, 440 Law, 1 Law Prob. 31 that without Congressman Dyer of Missouri had stated anything, because penalty legislation not be worth “the death provide the kidnaping of them every law and few State now has a Cong. (1932). penalty.” 13287 75 Rec. death 32 Missouri, had introduced Congressman who Cochran clause, 5657) penalty stressed (H. with a death original bill R. kidnaping prompt objective enactment was the his along “willing go strike out end, to law; he was to that id., 13284, Cong. (1932); also at penalty.” see Rec. put matter Congressman New York 13299, LaGuardia of headline, leave looking for succinctly: is a what “[I]f looking will for a real bill that in; but are we the death [Applause.]” kidnaping, bill. take the Senate be a deterrent thereafter, passed Senate Shortly House Id., at 13299. Id., Act. at 13304. version problem changed every respect.33 other The basic prompted enactment of the law in 1932—the that had difficulty and local relying state authorities By punishment had the Senate’s attitude toward (S. 2841) markedly. year passed changed bill Senate authorizing punishment “by imprisonment for than 10 less killing years, with death” for or connection robbery. (1934). Judiciary Cong. bank Rec. 5738 The House form, provision present Committee amended the Senate its see limiting (e), C. to those eases U. S. §2113 Rep. where “the verdict of the shall so direct.” H. No. R. Cong., Sess., 2d 73d Judiciary forgotten The House Committee had not language attempt to include similar in the Act of Rep. 1493, Cong., Sess., (1932), see R. No. 72d 1st 1 had been H. [kidnaping] “in draft a defeated rush to and enact bill suitable the adjournment.” Finley, Lindbergh Law, to both houses before 908, (1940). Taking 914, 28 L. J. n. 24 Geo. its cue from the bank robbery legislation, opportunity House the Committee found an ideal (S. 2252) position its bill to reassert 1932 in a Senate that had begun as technical 1932 Act. amendment the See Cong. (1934). 2252, 78 Rec. 5737 In S. the Senate retained the “imprisonment penitentiary in the for basic years court, discretion, determine,” in term of as the its shall see supra, 29, Judiciary n. but the House Committee alterna- added the penalty recommend, tive “death if the verdict of the shall so provided imposed by the sentence death shall not be the prior if, imposition, kidnaped person court to its the has been Rep. 1457, Cong., liberated unharmed . . .” H. R. 2d Sess., . No. 73d (1934); Cong. 1 78 Rec. 8127-8128 disagreement Senate, id., 8263-8264, initial in

After the at and conference, id., 8322; Rep. 1595, Cong., at H. R. 2d No. 73d Sess. (1934), accepted the Senate the House addition to S. 2252 without Cong. 8767, 8775, debate, 8778, (1934), Rec. 8855-8857 and the statute, resulting (1934), employed substantially 48 Stat. 781 the language appearing (a). same as that now in 18 U. S. C. § Kidnaping Act, As amended the Federal thus Stat. provided: knowingly transport transported,

“Whoever shall or cause be transporting, foreign commerce, or abet in aid or or interstate any person unlawfully seized, inveigled, who shall been confined, investigate prosecute kidnaping34 and interstate —had intervening years. during the two It not vanished Congress made interstate therefore clear that would have pro- kidnaping a federal crime even if It would beginning. had out from the vision been ruled compelling a more case imagine be difficult severability. appellees insist suggest contrary, an effort to merely amendment “did not increase the 1934

(cid:127)that whole penalties kidnaping; changed thrust lim deliberately They Act.” note that away by any what- decoyed, kidnaped, abducted, means or carried otherwise, except, in the or and held for ransom reward soever conviction, minor, by parent thereof, shall, be case of (1) recom- punished of the shall so death if the verdict imposed mend, provided that of death shall the sentence imposition, kidnaped person if, prior has court to its apply (2) shall not unharmed, or been liberated imprison- imposed person punished by shall be nor be the convicted years penitentiary in the for such term of as court ment shall determine ...” discretion public seriously concerned In late the American became mounting professional and the incidence about inability cope apparent authorities to with the state local Kidnap aspects McGuire, problem. Fisher & interstate See Lindbergh Q. ping Law, N. Y. 17.L. Rev. So-Called city geographical position, (1935). of 652-653 Because of its experienced kidnapings in which handi St. Louis numerous “had police cap officers.” of state lines had hindered or defeated her (1934). Lindbergh Contemp. Law, 1 Law & Prob. 435 Bomar, The Largely response experience, in Senator Patterson and Con Missouri, gressman Cochran, introduced identical bills both of (S. 5657) Cong. 275, 1525, Senate, H. 75 Rec. R. the House and forbidding transportation foreign com (1931), in interstate or any “kidnaped reward, person . . held for ransom or merce of . and any purpose.” Several months after the or . . . other unlawful baby 1932,Congress Lindbergh in March enacted Kidnaping Act, 29, supra, slightly see n. modified first Federal Patterson and Cochran. version the bills introduced capital punishment ited kidnapers to those whose victims are not liberated unharmed. Such a penalty- differential provision, appellees argue, discourage is needed to kidnapers injuring from they those whom abduct.35 The appellees contend that, capital punishment clause, distinguish the Federal Act would not penalties applicable “the to those who do and who those harm kill Stressing do not their victims.” the obvi congressional ous concern for safety, they the victim’s Congress conclude that “it is doubtful would intend for the statute to stand absent such feature.” This argument wrong is as a matter history, Congress enacted the statute “absent feature.”36 It is Lindbergh Bomar, Law, Contemp. See 1 Law & Prob. 435, might legitimately ability 440 and n. 36. One doubt the supposed objective. the death clause to achieve this regard, advantage it has been observed that to the “[t]he kidnapper killing his immediate, victim is obvious and for the witness, perhaps case, put best its whole will be [Government’s] way. imprisonment out of the Thus sentence of life instead of may kidnapper killing death not suffice to induce a from refrain victim, kidnapper mitigation pro his even if the is aware supposition always Note, vision—itself a true.” A Rationale Kidnapping, (1953). the Law of 53 Col. L. Rev. Moreover, interpreted statute, as this Court has penalty may imposed long kidnapped person so as “the . . . was suffering injuries from still . . . when liberated.” Robinson v. States, result, United injury U. S. 285. As a “[o]nce [an] place, necessarily has taken the inducement held out the statute away is either to hold the victim until cure is effected or to do evidence, injury him kidnapping, with so that both of the Id., destroyed.” J., (Rutledge, dissenting). at 289 36Congress certainly passed original was aware when it Kid- naping ofAct 1932 that victim be murdered or slain” “[t]he kidnaper nothing gain by [keeping] “has the victim . . . Cong. might alive.” Rec. Such considerations penalty provision have been influential in omission of States, see Robinson v. United 282, 289, 324 U. S. n. 4 J., (Rutledge, dissenting), single but not a member of length imprisonment of matter for the wrong fact, of as made to reflect obviously can be the imposed under Act wrong it is of And his victim. kidnaper’s treatment completely nothing could more logic, for as matter appli penalties “the distinction between obliterate the harm or who do not who do those cable to those of all the the total invalidation kill victims” than their Act—the Kidnaping by the Federal penalties provided sought by appellees. precise result clause does penalty infirmity of death Thus the Congress’ pur- basic the total frustration not require making interstate pose—that clause of the Fed- By holding the death crime. the statute we leave Kidnaping unenforceable, eral objection. constitutional any free of operative whole, violating prosecuted Act, The appellees authority. death under its they put cannot be but the case is remanded The is reversed and judgment this opinion. consistent with proceedings further

It is so ordered. part no in the considera- Mr. Justice Marshall took tion or case. decision Mr. Black

Mr. with Justice Justice whom White, dissenting. joins, down the Federal provision Court strikes only impose Act which authorizes about question No raised penalty. propriety jury par- or about the penalty itself

death power to imposition, confining in its but ticipation alone is held to impose the anti-kidnaping alto- law should be defeated even hinted that safety. the law’s funda- gether in interest of victim’s Given preventing kidnaping in the first objective of interstate mental suggestion been unthinkable. would have instance, impermissibly right burden to a trial because may it either or encourage persons coerce to plead guilty or a jury to waive by judge. my be tried view, however, provision may vice of the is that interfere with the choice free of the defendant to have guilt his aby jury, innocence determined the Court needlessly major portion invalidates ofAct Con- gress. says The Court itself every plea that- not guilty or waiver of trial would be influenced power of the impose penalty. If I so, provision hold the unconstitutional but would judgment,, making reverse the it clear that pleas guilty and of jury waivers trial should be care- fully they examined before accepted, order to make are they sure have been neither encouraged coerced nor penalty power jury. Because this be properly statute interpreted so as to avoid constitutional I questions, would not take step the first toward invalidation of statutes on their they arguably right face because burden to jury trial.

Case Details

Case Name: United States v. Jackson

Court Name: Supreme Court of the United States

Date Published: Apr 8, 1968

Citation: 390 U.S. 570

Docket Number: 85

Court Abbreviation: SCOTUS