William Ralph v. Warden, Maryland Penitentiary
438 F.2d 786
4th Cir.
1971
Check Treatment

*1 Bryan, of non-constitutional filed in which as a result Albert V. ects attempt Judge, joined. analysis, Circuit disinclined to we are any additional constitutional to define

rights in a 1983 case of tenants of con- absence real crucible of more troversy. judgment district court enjoins appellant

affirmed as it insofar respect proceeding from further May 1970 notice of termination McQueen tenancy and with spect proceedings for eviction of McQueens began appellant August Municipal the Boston Court on 31, 1970. RALPH, Appellant, William WARDEN, MARYLAND PENITEN- TIARY, Appellee.

No. 13757. Appeals, United States Court of Fourth Circuit. May Argued 8, 1970. Decided Dec. Rehearing En Banc Denied March Haynsworth, Judge, concurred Chief rehearing and filed denial of en banc opinion.

Boreman, Judge, dissented Circuit rehearing en banc denial

787 Md., Borgerding, Gen. and Edward F. Atty. Gen., brief) appellee. Asst. for Anthony Amsterdam, Stanford, Cal., G.

(Jack III, Greenberg, Nabrit, James M. Himmelstein, Michael Meltsner and Jack City, brief) New York NAACP Legal Inc., Fund, Defense and Education Rights and The National Office Indigent, amici curiae. Judge, HAYNSWORTH, Before Chief SOBELOFF, BUTZNER, Circuit Judges. BUTZNER, Judge: Circuit Ralph, William convicted by three-judge sitting 1961 court with- jury, out a He sentenced death. appeals the district court’s dismissal of corpus petition his challenged he habeas in which constitutionality adequacy finding trial court’s that his confession voluntary. We hold that the prohibition Amendment’s Ralph’s and unusual forbids execution for since his victim’s endangered, was neither taken nor assignment Ralph’s find we no merit in concerning of error his confession.

I. 1964, Ralph ap claimed on peal that the death violated Washington, Genn, Edward L. D. C. Eighth made Amendment. He had not (court-assigned) appellant. court, contention the district O'Ferrall, III, Atty. Alfred J. Asst. argument we dismissed his for lack of Md., (Francis Atty. Burch,

Gen. of B. precedential support.1 sufficient Subse- Ralph Pepersack, 128, v. 141 aff’d, F.Supp. (D.Md.1963), sack, 218 932 (4th 1964). Ralph’s (4th Cir. conviction was 335 F.2d 128 nied, Cir. de cert. affirmed, Ralph 480, State, v. 226 Md. 925, 907, 380 U.S. 85 13 L.Ed. S.Ct. (1961), denied, A.2d (1965); 174 163 cert. 369 Ralph Brough, 2d 811 v. 248 813, 689, 613 (D.Md.1965) Ralph L.Ed.2d F.Supp. ; 7 334 v. Warden, F.Supp. aff’d, Circuit Court Mont (D.Md.), 528 gomery County petitions 11,549 1967) (mem. dec.), has denied four No. post-conviction 2593, relief: denied, 1188, Misc.Pet. cert. 390 U.S. aff’d, Ralph Warden, v. Md. 19 L.Ed.2d 1301 (1962) ; 3171; A.2d 366 Misc.Pet. Misc. Nowhere on the record before does it us 3354, aff’d, Ralph Warden, appear Pet. v. con- ; Md. 224 A.2d 851 and Misc. tention has been the state submitted to appeal Ralph denied, State, however, Pet. leave to courts. has Warden, urged v. Md. A.2d dismissal for lack of exhaustion (1968), denied, contrary, cert. state remedies. On the in its Ralph’s corpus petition S.Ct. 22 L.Ed.2d Four answer habeas previous corpus petitions court, habeas in the district it asserted Pepersack, been denied: 203 F. claim was settled Robinson v. Supp. (D.Md.1962) Peper- ; Md. 238 A.2d 875 vestigation quently, squarely when faced confessed to un- crime. contention

constitutionally disproportionate facts, appropriate to con- On these it is noted in Snider crime we implications of sider the constitutional (4th Cir. Peyton, 356 F.2d for a 1966): endangered life. Cf. neither taken nor *3 889, Alabama, Rudolph de- 84 in the v. variation “There is extreme (Gold- 155, gree rapists. culpability If one 11 L.Ed.2d 119 S.Ct. berg, J., dissenting upon cer- from a denial of convic- were sentenced tiorari). rape under cir- A critic of Mr. Justice Gold- of an adult tion of berg’s aggravation, correctly lacking great “There dissent noted: cumstances always might en- is a sense in which life is Supreme well find Court dangered by attack, just as there appropriate to consider sexual an case always questions us. is a sense in' which it is endan- tendered to constitutional gered by robbery, by burglary of a ours or court such as an inferior Even dwelling, by any physical might question not foreclosed or assault.”2 find the term, however, potential We use the in another and harm to it if the actual slight.” grada- relatively sense —that there rational was culpability tions that can be made hypothetical envisioned The case we injury For basis of to the victim. us Armed with Snider is before now. distinguishes pur- example, Nevada Ralph iron, a broke into the victim’s tire poses punishment rape results which night. Threatening her home late at bodily in substantial harm. Nev.Rev. young son, asleep in and who was her (1968). Stat. 200.363 § room, if did not she another argument submit, forcibly rape principal The committed State’s favoring sodomy. prosecuting precedent was —other than The witness lack years aged, Ralph pun capital she nor that abolition of neither of tender —is presents political question unquestionably her fear frail and ishment a was legislative genuine. physician thor- was branch of oughly shortly government her after can cannot ac examined resolve. We cept found “no out- crime testified that he this The fact contention. injury Maryland nor ward evidence of or authorizes violence” statute3 any signs psychological punishment trau- of unusual conclusive does not days ly punishment’s arrested Five later establish the constitu ma. Eighth tionality, for other of- the District of Columbia for the judi- fenses, during course of in- limitation on both rejected requirement wliich a claim that the exhaustion has satisfied 1966). (Supp. II, for assault with intent to commit 2254 § 28 U.S.C. Eighth Cunningham, 491, Amendment. F.2d 493 violated 335 Evans v. consistently courts have position taken Packer, Making Fit the Punishment if within cruel and unusual statutory (1964). Crime, 1071, Harv.L.Rev. 1077 prescribed limits for the crime 27, (Repl.Vol. the trial and that court alone art. 461 has. Md.Ann.Code right 1967) provides: to determine within See, g., State, person “Every limits. v. those e. Jones crime of convicted of a 530, (1967) ; being accessory A.2d Reid 247 Md. 233 791 or as before thereto 89, State, 92-93, 478, shall, v. 200 Md. A.2d 88 the fact the discretion of the denied, 848, death, court, cert. 344 U.S. suffer or be sentenced (1952) ; penitentiary L.Ed. 97 659 Merchant confinement in the for the State, undergo period life, Md. A.2d of his natural (1958) ; State, penitentiary Walker v. 186 Md. confinement 440, 444-445, (1946) ; eighteen 47 A.2d 47 Dutton nor less than months more than 373, 385, twenty-one years; penetration 123 Md. A. shall proceeding proof Since in the state be evidence of without ineffective, courts would have been emission.” legislature (1958); Maryland’s en- cial State La. ex Francis action.4 rel. range, Resweber, penalties rápe S.Ct. acted eighteen imprisonment death. courts months’ L.Ed. Other issue, therefore, consistently capital punish the constitutional- held At ity Amend of the trial court’s selection not violate the does Goldberg generally, al- from the alternatives Der ment. See & Penalty showitz, Declaring where the the statute in lowed Death rapist nor Unconstitutional, has neither taken convicted 83 Harv.L.Rev. endangered court, life. n. One state however, has held that the death Admittedly scope so under the cir excessive prohibition of cruel Amendment’s cumstances that it violated the state’s to def is difficult unusual prohibition constitutional *4 6Supreme pronouncements ine.5 Court punishment. v. or unusual Calhoun constitutionality pen on of the the 335, 496, 214 S.W. 85 Tex.Cr.R. general and inconclu are scarce (1919). 338 directly The Court has never held sive. penalty is or not cruel that the death constitutionality Boy Only punishment. and unusual punishment subjec cannot on rest the 238, Alabama, 89 S.Ct. kin 395 U.S. v. opinions judges imposed of the who tive 1709, (1969), did the 23 L.Ed.2d 274 judges or must the sentence of the who issue, argument and hear on that Court contrary, review the case.6 On the procedural the then it reversed objective punishment must be tested grounds. Bishop, 398 U.S. Cf. Maxwell v. ly. controlling Despite prece the lack 262, 1578, 221 26 90 S.Ct. L.Ed.2d dent, Supreme we the Court believe By (1970). implication has Court the objective fashioned a workable stating approved pun determining standard for whether shooting are not that and electrocution early ishment is cruel and unusual. As of execution. cruel and unusual forms 1892, suggested that Justice Field Mr. Utah, 130, L.Ed. 25 Wilkerson 99 U.S. v. prohibition Eighth of the Amendment (1878); Kemmler, In re 136 U.S. 345 against only or torture not is directed 436, 930, 519 10 S.Ct. 34 L.Ed. against punishments barbarism, all “but suggest in a cases that Dicta few length sever which their excessive constitutionally permis punishment of greatly disproportioned ity are g., Dulles, See, Trop 356 U.S. sible. e. v. 7 years twenty 86, 99, 590, charged.” 2 L.Ed.2d 630 78 Within S.Ct. fenses 660, remanded, 262, California, 90 U.S. 370 U.S. 82 Robinson v. and 398 cated (1962); 1417, 1578, L.Ed.2d Unit- 26 221 8 758 L.Ed.2d S.Ct. S.Ct. 449, McKinney, v. ed 427 F.2d 455 323, 339, Vermont, 12 144 U.S. 7. O’Neil v. (6th ' Cir. (1892) 699, 450 L.Ed. S.Ct. 36 provides 8 : 5. U.S.Const. Am. dissenting). (Field, J., been had O’Neil required, not be “Excessive bail shall separate offenses of 307 convicted imposed, fines nor cruel nor excessive liquor. intoxicating selling fines and His punishments and unusual inflicted.” judg- $6,638.72, aggregated and the costs opin- majority dissenting Both provided not were if this sum ment States, Weems 217 ions in v. United U.S years imprisoned paid, for 54 he should (1910), L.Ed. 54 793 Harlan, days. Mr. Justice 204 analyses develop- of the contain historical joined by Brewer in a Justice Mr. Eighth and the dissent, separate also wrote concept punishment. unusual punishment unusual cruel and Note, The Effectiveness of the See offenses. character view of Appraisal An Amendment: Cruel dispute majority the dis- did Punishment, N.Y.U.L.Rev. Unusual instead, They held, point. this senters on pun- unusual issue of cruel Dulles, presented fed- Trop not a a state and ishment U.S. However, question. ; Bishop, set- is now Maxwell eral S.Ct. pro- Amendment’s va- tled that erally drawn, Field’s it con- adopted have the Court Mr. Justice tinued, “If the word ‘unusual’ is to view. Weems any meaning apart ‘cruel’ the Court from the word S.Ct. 544 U.S. * * * meaning penal the ordi- Philippine should be held a section of the something nary one, signifying punish different imposed unusual cruel and code generally justice ment, precept from that done.” “it is a because at at View- punishment be U.S. crime should n. ing light, graduated denationalization this proportional offense.” only countries The Court observed that two at 549. at S.Ct. impose for de- in the world provided aof falsification sertion. public sen record a minimum carried years in ankle hard labor tence of twelve Trop most also contains recent subsequent disabilities. civil chains penalty. pertinent dictum on dispropor Not was the said, 99, 78 There the Court at laws, Philippine it had tionate relative S.Ct. 597: juris any counterpart American arguments may be “Whatever more than This contrast was diction. capital punishment, both judg differing evidence of grounds moral and in terms of accom- ment; condemned plishing purposes punish- Weighing punish cruel and unusual. they ment —and forceful —the *5 gave by method, full the Court this employed concepts proportion to current of effect day throughout history, and, in a our pun ality, and unusual because the cruel widely accepted, can- when it is still it “progressive” “is ishment clause is not be said to violate the constitution- may obsolete, ac but

not fastened to the cruelty.” concept al of meaning public quire becomes formulation, Accepting Trop how enlightened by justice.” 217 a humane ever, Rather does not decide the case. 378, at at 553.8 30 S.Ct. U.S. points up Do still the critical issue: we day penalty is Nearly fifty Weems, in a when the death years live after widely accepted the vic for Court held that denationalization or endan tim’s life has not been taken and unusual desertion wartime gered? capital punishment isOr 86, Dulles, punishment. Trop 356 U.S. v. that, disproportionate in this crime so reaching (1958). In 590 78 S.Ct. fact, widely rejected? it has been decision, “the that the Court reiterated considering questions, court must these a [Eighth] Amendment words merely view the scope precise, is not and that their perspective “the historic from the 100, at 78 S.Ct. 598. static.” 9 birth,” gave also but mischief that added, must “The Amendment And it vantage point discloses from a that evolving meaning its draw decency “evolving standards decency mark the standards society.” maturing progress mark the maturing society.” progress U. 356 of a 10 101, at 598. The Court S. at 78 S.Ct. society’s objective precise An indication distinctions between noted that gen- decency” “evolving can “unusual” standards “cruel” and the words Gladden, ; (Ind.1968) 203 v. Cannon 815 and unusual hibition of cruel ; 629, v. by applied P.2d 233 State Or. 281 the Fourteenth to the states is 348, Kimbrough, California, 46 S.E.2d 273 212 S.C. 370 Amendment. Robinson v. State, (1948) ; 1417, Tex. 660, v. 85 and Calhoun L.Ed.2d 758 8 U.S. (1919). (1962). 214 S.W. Cr.R. States, 217 U.S. 9. Weems v. United examples 8. of sentences set aside as Other (1910). disproportionate are United States 86, 101, Trop Dulles, McKinney, 1970) ; 240 N.E.2d S.Ct. Dembowski v. designed July when, in ac- a bill drawn from the trend rising noted, cope “The crime rate tion. As Mr. Justice Stone Columbia, Congress expressed policy judgment in elimi- District of social * * * legislation rape.13 On merit would seem to nated death as freely recognition hand, special judicial mari- the other within the judi- expression jurisdiction accorded to the like time and territorial by precedent punishable precedent.” to be States, cial still United gathered legislation Significantly, imprisonment.14 from the course of death or only capital punishment however, year last is unmistakable. one out authorizing pun- Generally, forty government laws has the execut- federal justified efficient, anyone Moreover, eco- ishment are ed crime.15 by society protecting means of of Fed- nomical National Commission on Reform removing permanently a criminal who eral Criminal Laws has recommended again might de- peal rape.16 offend and as otherwise Many people persons. This, too, to other terrents is the recommendation just to be retribution also consider death Model Penal Code.17 Therefore, when for serious crimes.12 Congressional recently re- action legislators penalty for abolish the death rape in the pealing penalty for crime, may fairly assume we certain a worldwide follows District of Columbia they and that deem it excessive one Presently the' trend. by may achieved aims of pun- four nations which measures. severe less country death,18 in this ishable only by imprison- punish states recent instance of the aboli- The most remaining In none of the 16 ment.19 occurred tion of Rape is also § 18 U.S.C. Stone, Law in the United The Common military law, punishable death under See 50 Harv.L.Rev. it is not Moragne U.S.C. Marine also United States *6 applicable capital In- crime under law Lines, 375, 390, 90 S.Ct. 39S U.S. (Supp. V, country, § 18 U.S.C. (1970). dian 26 L.Ed. 339 1970). Court, Supreme hand, 12. the other On Dep’t Justice, Bureau 15. of United States York, in 248, v. New 337 U.S. Williams Statistics, Prisons, National Prisoner of 1079, 1084, 93 L.Ed. 1337 Capital IfS, No. Punishment (1948), 1930— stated: (1969). at 29 longer dominant is no “Retribution objective of the criminal law. Reforma- Fed- on Reform of 16. National Commission and rehabilitation of offenders tion Laws, Study a Draft of eral Criminal jur- goals important criminal become isprudence.” of Code, 1641 and Federal §§ New Criminal (1970). Pro- 13. Reform and Criminal D.C.Court Code, ALI, 17. Penal 213.1 §§ Model 91-358, Act of Pub.L. No. cedure (Proposed Draft, Official 6.06 473, 600, amending 20, 84 Stat. D.C. § (1970). legis- Ann. § Code 22-2801 Malawi, China, The others history lative indicates the back- Nations, Union of Dep’t Africa. United South ground for the amendment is United Affairs, and Social of Economic Jackson, States v. Capital Punishment, L.Ed.2d held Colorado, Alaska, Arizona, California, penalty provision federal the death Idaho, Delaware, Hawaii, Connecticut, kidnapping law be- was unconstitutional Maine, Kansas, Illinois, Indiana, Iowa, cause it tended to coerce a defendant to Michigan, Massachusetts, Minnesota, plead guilty Mon- either or be without a tried Nebraska, Hampshire, jury. tana, New New The District of Columbia death York, rape Jersey, Mexieb, penalty North New for defect. New suffered the same Pennsylvania, Dakota, Ohio, Oregon, amending Instead of retain proce- the statute to Island, Dakota, Utah, penalty proper Ver- under South death Rhode mont, Virginia, Congress Washington, dures, Wis- West for abolished it Wyoming. consin, retaining while it for other crimes. See H.R.Rep.No. 91-907, Cong., 91st 2d Sess. mandatory, put re- it is one has been to death in the United states but sentencing rape It for alternate.20 States since 1964.21 tained as therefore, appears, overwhelm- that the Although legislature world, ing majority of the of the nations establishing pen- sponsibility of criminal legislatures of than two-thirds of more subject only lim- alties, to constitutional union, Congress, as the states of the rejection acceptance itations, popular Dis- evidenced its amendment reflected of Code, consider trict Columbia now incidence of actual executions. When pun- penalty an excessive to be rape is exacted the death for rape. ishment for the crime infrequency that the statistics with the disclose, pressure for is little there theory minority jurisdictions In diminish- amendment. Public awareness accept rape the death for because imposing frequency es as codes, part it remains a of their criminal decreases, and action infrequency of execu- extreme likely prompted the con- to be Maryland argument. tion belies only prisoners. sequences fewa befall rape twenty-four persons for executed evolving ascertaining purposes For standards, and since between 1930 of the death retention Mary- put no one to death has been codes of some in the steady significant infrequency of than its land for that crime. states is less present mora- fall into disuse and differ does not execution torium on executions. significantly practice in other penalty. Infrequent states that still retain indicates Throughout per- the United suggests excessive, that it also it is rape since sons have been executed year arbitrarily. meted out year average twenty a 1930. From an offense, 15,560 re- Ralph committed the 1940’s, dropped ten in the executions Unit- ports recorded were year than six and less in the 1950’s were there ed From 1960-1968 States.22 No year early part of the 1960’s. in this coun- has been executed 21. No one authorizes Nevada try any end At the crime since 1967. results sub- where the offense prisoners under remained bodily Nev. victim. harm to the stantial Dep’t death. § See also 200.363 Rev.Stat. Prisons, Justice, National Bureau (aggravated intent 200.400 assault Capital 1¡5, Pun- Prisoner Statistics No. *7 rape). states’ statutes to commit Other mO-1968, 7, 26 ishment authorizing penalty for reasons, many granted Stays have been Ala.Code, (Recomp. tit. 14 § are: they, procedural substantive, and both 1958) ; 41-3403 § Ark.Stat.Ann. Vol. conclusively course, establish do (Supp.1969); § Fla.Stat.Ann. 794.01 punish- capital society repudiates that (1969) ; (1965) ; Ann. 26-2001 § Ga.Code The reluctance all crimes. (1969) ; Ky.Rev.Stat.Ann. 435.090 La. § however, sentences, carry out death (statute Rev.Stat.Ann. 14:42 § symptomatic worldwide of a national and only, provides for death punishment. away capital See trend Attorney by Gen- been construed Witherspoon Illinois, permit jury return a verdict eral (1967); 1770, 20 L.Ed.2d 776 ; punishment”) “guilty without ; 1967) (Sellin Capital ed. Punishment (Repl.Vol. Ann., art. § Md.Code Nations, Dep’t Economic and United (Recomp. 1967) ; § Ann. Miss.Code Capital Affairs, Punishment Social 1956); § Vernon’s Ann.Mo.Stat. Vol. fundamentally, though, More (1953) ; 14-21 § 559.260 N.C.Gen.Stat. capital punishment demon- doubts about ; Okla.Stat.Ann., (Repl.Vol. 1969) tit. over the effectiveness concern strate (Supp.1970) ; § Ann. § 1115 S.C.Code system. penal our entire (1962) ; 39-3702 § Tenn.Code Ann. 16-72 reported Ann., are de- offenses (1955) ; 22. Statistics on Tex.Pen.Code Vernon’s Reports, FBI, (1961) ; Uniform Crime rived from Ann. 18.1- art. 1189 Va.Code through States, in the United Crime (Repl.Vol. case, necessary for the decision of this 190,790 rapes reported. In contrast argument hold, despite rape, we do not frequency the commission curiae, penalty is ex- is an un- the amicus death rapes. year tremely in which constitutional for all rare. convicted, persons were to death for sentenced II. rapists 1960-1968, period convicted admitting Before evidence of During the received death sentences. confession, the trial court heard exten- prisoners period were of time 28 same testimony sive on the issue of voluntari- actually the crime. executed for ness, including testimony by the defend- compared high of the crime incidence conflicting ant. The court resolved incidence low and, evidence mixed suggests of a rational the lack fact, law and found the confession to selecting prisoners ground freely given. voluntarily have been penalty is inflicted.23 whom the death ruling upheld ap- has been on direct here, when, particularly true This is peal proceedings.25 and in collateral imposed rap- on a the harshest marked with act is not ist whose argues Ralph now that admis great aggravation accom- that often sion of his confession Fifth violated the panies this crime.24 and Fourteenth Amendments because the therefore, conclude, voluntary beyond We court did not find it factors coalesce to establish standard, two reasonable This doubt. disproportionate to claims, is so required death sentence by United States Inman, victim’s 1965), the crime of when the (4th 352 F.2d 954 Cir. endangered taken nor States, is neither and Mullins v. United F.2d First, (4th Amendment. 1967), violates Cir. hold fed jurisdictions death is now consid most eral courts in this find circuit must rape. voluntary an This beyond ered excessive confession a reason by allowing has been demonstrated presenta able doubt before its jury. By trend to abolish tion to the their terms own infrequency distinguishable. of its this crime and cases these are As we jurisdictions that still au infliction Boles, reiterated in Morris v. 386 F.2d rapist Second, does thorize it. these cases endanger “prescribe not take or the life his vic do not a rule of constitutional tim, application prosecutions the selection of the in state Instead, range author courts within this Circuit.” they supervisory power is anomalous when com ized rest on our over large pared rapists Accord, number of district courts. Pea opin prison. U.S.App.D.C. Lest our sentenced greater given than ion be a breadth Figures Capital 7/5, on death sentences Punishment at 10 1930— Rape (1969) ; Howard, are from the United States Administration executions *8 Dep’t Justice, City Prisoner Sta- the of 'National in the Baltimore Cases of Maryland (1967). re- tistics. But there State of many con- variables for us to main too Dershowitz, Declaring Goldberg 23. See & prove Ralph statistics clude that the Penalty Unconstitutional, the Death penalty because he is the death received Harv.L.Rev. Bishop, F.2d Maxwell black. Cf. arbitrarily re- contends that he (8th remand- vacated and Cir. he is ceived the death because grounds, other ed on sup- black and his victim was white. S.Ct. 1578 port, he to statistics calls attention high A.2d 226 Md. of race to illustrate a correlation Pepersack, (1961) ; Ralph rape in death sentences cases. See Unit- (D.Md.1963), Justice, F.Supp. aff’d, Dep’t ed of Bureau of Prisons, National Prisoner Statistics No. F.2d 128 invalidity psychologically, physician in as her testified There no constitutional finding contradiction, procedures one of the most led to the without the important may thought guilt. alone vio- His sentence criteria which be of justify rape Eighth the Fourteenth to in the death other lates the Therefore, simply re- the case is cases absent. Amendments. with direc- the district court

manded to nothing There in the court’s a reason- the for writ tions withhold suggestive mitigation rapist’s of of the impose a permit state the able time to suggesting or that he released conduct than death. sentence other imprisonment. con- from The state can is, long fine him as however, qualitative There lives. ORDER difference between readily life death be so which cannot petition Upon for consideration disregarded as even differences be- vast banc, rehearing the concurrence en years. myself, of tween terms For there- court, majority of a the fore, myself entirely find I will free adjudged pe- It is and ordered that the Eighth to find another case no bar the rehearing is denied. tition en banc imposition the BRYAN, rape the if and ALBERT Y. death the victim BOREMAN grievous psychologi- Judges, physical the denial suffered or dissent Circuit rehearing clearly ap- en cal it petition the banc. harm whether or not peared endangered. that her had been Judge. HAYNSWORTH, Chief BOREMAN, Judge, Circuit with whom PETITION FOR REHEARING Judge, BRYAN, joins, Circuit dissent- ing majority’s grant refusal to joined panel I decision and rehearing en bane: rehearing denying the be- vote testimony explicit the three-judge cause of the panel has A court physician suffered victim’s that she imposition pen- the held that the lasting psychological physical or' harm. rape upon Ralph for violates William signifi- This crucial fact seems me of Eighth and Fourteenth Amendments separating cance in this case from those district has remanded the case other alty cases which court with directions withhold writ Eighth may justified under corpus for time to a reasonable habeas Amendment. Maryland impose permit the State of panel other than death. The may may The harm done the victim Amend- guilt determined that upon at- not bear the moral of her prohibition against and un- ment’s lasting physical in- tacker. If there is Ralph’s execu- jury, may usual forbids probably will, it but well lasting tion for since his victim’s life was psychological. if harm is endangered. degree taken nor The deci- nature, neither But duration of long recognized sion does hold the harm authorizing determining ap- important criteria in per is unconstitutional crime propriateness punishment. The dif- se, that the determines attempted but ference murder between dispropor- imposed in this was so murder is a fortuitous accident without committed culpa- tionate to upon crime to the assailant’s moral relevance bility, victim violates every jurisdiction Indeed, panel murder, Amendment. tains states possibil- decision avoids all survival of ity penalty. issue, therefore, is the constitu- “At *9 tionality of court’s selection course, the trial any rape, suf- of The victim of penalty from alterna- the great indignity, the if the but fers harm and * * by the allowed statute lasting, tives physically or harm not either is jurisdic- supreme action the in majority has A of this court ordered rehearing it; and, Maryland’s petition en tions that still authorize sec- ondly, that the selection banc denied. range punishments au- and dis- In 1964 this court considered by thorized the statute is anomalous presented posed questions then of several large considering when numbers of corpus appeal on from a denial of habeas rapists prison to in are sentenced by Court District relief eases where the life of the victim has not Maryland. Ralph for the District endangered. or been taken page Pepersack, 128. At F.2d It is well settled that Ralph’s im- noted contention that the we ordinarily in a criminal is position a con- of the death peculiarly province a matter within rapist conduct” and victed is “uncivilized judge trial and that a sentence punish- cruel and inhuman constitutes prescribed by within limits law will nor where he neither taken appeal reviewed on it is where so endangered life of his grossly inordinately disproportionate Alabama, Rudolph pointed to obviously to the offense that the sentence 11 L.Ed.2d 119 by public dictated not a sense of Court denied certiorari. in which the duty, by passion, will, prejudice, but ill Ordinarily, the mere denial of certiorari unworthy vidictiveness or other motive.2 to is not be considered decisive by application questions raised but panel The conclusion of the Rudolph majority of the Court clear- two factors above mentioned coalesce ly refused to consider establish that the death dis- sentence is so presented. here Such refusal was re- proportionate crime Goldberg’s (in flected Justice dissent the victim’s life is neither taken nor en- Douglas joined he was Justices dangered Eighth violates arguing Brennan), the dissenters Amendment princi- runs contra these grant that the Court should certiorari ples. express purpose considering place, In the first this court seeks now Eighth question. Amendment Justice modify a sentence meted out under a Goldberg called to the trend attention constitutionally valid in 1961 be- away capital punishment, just jurisdictions cause trends in other indi- case, does the in the instant that, cate death is considered referred to statistics then available rape. an excessive Punish- Rudolph clearly Thus, ap- 1963. according ment is inflicted at the law peared Supreme had Court judgment; time and if stand- opportunity very question to consider the mitigation today ards of dictate a presented here declined to so do crime, for a 1961 clem- executive we, therefore, stated that we found had ency legislative specifically pro- action Supreme support Court decision viding apply pun- that new laws shall Amendment contention appropri- ishment under the old disposed and that we were to act fa- applying ate modes and methods for to- vorably upon it.1 day’s standards. These functions should panel usurped decision in not be the instant case the courts. This is say premised upon principal not to two that the factors: First, trend a limitation both what couched in terms as a judicial by legislatures demonstrated to abolish action but this court should not excuse its for the interference in these crime of functions by saying coupled constitutionality infrequency at with the of the ex- issue Pepersack, 1. F.2d Weems v. United (1910) ; 21 54 L.Ed. 793 Am.Jur.2d Criminal Law §§ *10 apparent the trial court’s selection of death found there. It was that he the selecting penalty when, in in the had had the under victim’s home sur- obviously breaking in at 2 o’clock the court could veillance before morning anticipate appears in the and his not the trends in 1970. The visit actually legislates, carefully premedi- planned in and decision this case have been limiting Maryland penalties tated. It he the was obvious that was bent prepared on and death sentence to resort to and the the was might necessary. precise such violence circumstances be thereunder life either taken victim was not selected at random. She was where victim’s small, Ralph endangered.3 and term “endan- was frail woman or gered” But the outcry extremely imprecise; threatened if she made an he in itself is young may encompassed asleep kill her her would and son what circumstances indeed, me, ag- by and, in very the next To room. this is an the term broad are gravated only may case, “endangered” have en- because term well in in- threats death to the and her compassed the circumstances put Maryland in is son which her fear statute mortal case. The stant great also for the reason that scope provides before crime in its broad fixing perpetrated sentencing was the defendant court latitude performed eight- perverted degrading rape, minimal as acts upon person of the victim and then severe as death. See een months and as subjected degradations her (Repl.Vol, to further Art. Ann.Code Md. Many perversions. a victim under un- 461. Is this might prefer such present circumstances well form or in its constitutional death. its unconsti- on face but constitutional tutionally applied if the here The offense was committed imposed Maryland’s Montgom- than other those in cases March County ery life is endan- a victim’s taken which near the District of Columbia gered? nights line. Two or three later black answering Ralph’s description male very foremost, Second, facts home far entered another distant form in the recited rather abbreviated at- from the scene of this crime he where contrary to the deci- court’s tempted to commit but was beaten as rendered: sion by daughter off he woman’s iron, Ralph a tire broke “Armed with good escape. made It was two night. home late into the victim’s nights Ralph or three after that when son, young Threatening and her her was arrested a street near a wooded room, asleep in another was police area which the had been dis- submit, forcibly he if did not she patched reports after of a woman’s sodomy.” rape and committed woman, Robinson, screams. This Mrs. also described her male, as a attacker black and circum- other facts there are But description fitting prison- may properly be taken which stances er, police but when she was called to entered consideration. into Washington night station and saw she in the and as home dead victim’s positively identify through was not able to him garage and base- entered since she had in the been attacked dark. pulled to make out fuse box ment he grabbed walking She had been operating while that he would certain along forced her street more and thus make identification dark there, attacker into the woods and before up picked metal tire tool He difficult. being raped, she to submit to was forced vic- him the he carried with perversion. Despite acts of failure later and which was bedroom tim’s murder and thus another evolves to include senseless rather It seems presented as to whether the victim’s where situation appropriate. very the crime of taken, act *11 identify him, stitutionality Ralph’s punishment the victim con- can- subjective opinions fessed that he at- was Mrs. Robinson’s not rest judges imposed tacker. who sentence or of judges case; the that, must review the case, In the instant the victim reacted contrary, on the upon threats her life the life objectively. must tested be If the ob- young of her child and submitted jective applied test to be in the instant sodomy. and endangered If the life victim’s was upon case is turn whether the victim’s do what these circumstances “endangered,” life was majority If constitute? court objectively may be never im- is determined to strike down the death posed explication absent further and elu- rape in accordance with danger cidation as to what constitutes “trend” and intends limit the circum- my impression judges life. It is that the stances under which death sentence panel in the instant case im- may imposed, clearly be more should posed subjective opinion upon their own “endangered.” Surely define the court facts of instant case and have seeking impose is not a “harm-to-vie- weigh trauma, decided to harm and tim” situation similar to that under vari- danger upon to the victim the cold rec- statutes, kidnaping ous such as under panel ord. The concludes Title 18 U.S.C. 1201. Is the court’s de- prosecuting “The witness was neither saying cision to construed be that the years aged, of tender nor but she was victim the instant case had to hit be unquestionably frail and her fear was over the head with the tire iron for her genuine. physician endangered? who thor- life to be The crime of oughly shortly examined her after the ais crime of force the con- crime testified that ‘no out- sent he found of the victim and while force an injury ward evidence of or violence’ element of the crime there is the al- clear any signs psychological nor ternative, of unusual intimidation, may be trauma.” great bodily threats of immediate harm accompanied by apparent power this, panel apparently From concludes To execution. be bashed with a tire iron the victim’s life was not endan- certainly great bodily constitutes harm gered. may There have been no visible inescapable intimidation is the physical injury evidence since the vic- when, sult face a threat of admittedly tim offered no resistance be- death, a man armed with a tire iron cause of the intimidation and the threat apparent power has the immediate and of death. Does the fact that the victim executing Furthermore, the threat. brutally was not beaten and there dangers there are other to the life and physical evidence of part violence on the Ralph’s health of the inherent in the attacker save from the death lightly attack which should not be disre- penalty? so, permissible If then the garded. possibility about the What may in a depend case

pregnancy infecting and of the victim entirely upon whether the victim submit- with a loathsome disease? Is it my opinion ted or resisted. it was for produce when the attack does not judges the trial who were there to ob- possible dire results that serve and view the witnesses the trial cruel, becomes inhuman and unusual necessary subjective to make this find- punishment ? ing. appropriate It was for them to con- clude victim’s was endan- tried in gered she, having forcibly and that judges before Bench of three without raped was, indeed, consent, without se- jury and the was chosen riously harmed. statutory alternatives as the appropriate punishment, justifiable appropriateness un- particular penalty der particular In its circumstances. of a for a panel may entirely proper, is, here admonishes that the con- crime disproportionate to the actual If of the crime involved ? circumstances here is to limited to

the decision *12 Ralph, sen- in that his case of William disproportionate to the crime tence was committed, appears then judg- subjective one as to appellate ment of the court versus subjective judgment I of the trial court. justification find here for

can judgment court’s substitution its judges. trial that of the panel’s silent on the decision is “endangered” meaning the term disappointed that the invitation I am as to render more definitive decision and under what circumstances endangered by a declined life is majority of the members this court. CORPORATION, STEEL

BETHLEHEM Plaintiff-Appellee, Captain YATES, Defendant- Elmer S. Appellant. No.

Summary Calendar.* Appeals, United States Court Fifth Circuit. 8, 1971.

Feb. Davis, Jr., O. Hen- James William E.

son, Fla., Jr., Tampa, Edward R. Down- ing, Miami, Fla., defendant-appellant. Fla., O’Sullivan, Tampa, Brendan P. White, Fowler, plaintiff-appellee; * al., Cir.; pany York et Rule Enter of New See Isbell Casualty prises, I. Inc. Part v. Citizens Com-