Mr. Amsterdam: I have no doubt that a statute of that sort would present a different question for the Court because what we have is a general statute which proscribed death as the penalty for murder or in the subsequent cases, right.

Now, we have had historical experience with that.

We know what our --

Justice Thurgood Marshall: Is it true that New York, there is such a statute, that is restricted the killing of a prison guard?

Mr. Amsterdam: Oh! Yes.

As a matter of fact there are several different statutes Mr. Justice Marshall, in different States.

California has a mandatory death penalty statute for killing by life termers.

It need not be a guard but it is any non-inmate.

There are five States though that have a statute such the Chief Justice suggests which limit the penalty to killings of guards in the course of their duty and that sort of thing.

Chief Justice Warren E. Burger: Do you think we would then could accept your general argument and still find such a statute, one that did not offend the constitution?

Mr. Amsterdam: Your Honor, I think a line might be drawn.

I do not urge that it be drawn and I see no occasion in these cases because no such statute is presented.

The problem with those statutes is that we had insufficient experience with them.

The essence of our submission here, I think it is perfectly coined that we have had a very considerable experience with general statutes punishing the crime of murder or the crime of rape with death.

And what we find when those statutes are applied, actually applied by juries in particular cases is that almost never is the penalty of death in fact inflicted.

I think that is not an exaggeration.

Now, one does not know what juries would do with different kinds of statutes, but one darn well knows what the testimony of public opinion, of enlightened public opinion in this country is with regard to general statutes punishing murder with death.

The -- what juries do -- we are in a little disagreement with I think the respondents on the significance of that.

To start with it as we have pointed out, juries really only do return about a hundred death verdicts a year.

Now, to understand how small that is, you have to compare it with the number of crimes punishable by death.

It is a very difficult thing to do.

We have attempted to do it in one of the appendage to our brief in which you point out is that juries do not apply the death penalties perhaps to more to more than one out of 12 or 13 at the very most cases in which they could and maybe a half or a third of those people are actually executed.

Now, notice that the non-acceptance, indeed the repudiation which this imply.

We have a country in which 43 jurisdictions have the death penalty on the books in which hundreds and hundreds and hundreds and hundreds of people are prosecuted for crimes and convicted of crimes in which death penalty is available.

Under the best of circumstances for capital punishment where the -- what is involved in an execution is a secret or indefinite kind of the jury does not proceed or fully understand where the people get the death penalty, are disproportionately the pariahs, the poor and racial minorities, it's a point I want to come back to in one second, and where in addition the juries are death qualify, the juries are returning a hundred death verdicts here.

Justice William H. Rehnquist: Mr. Amsterdam, you have said that one out of 12 or 13 death verdicts is returned as what -- as what might be returned, in each of the 12 or 13 were those cases which the prosecution had asked for death or was it just the death could have been returned under the statute if the prosecution had asked for it?

Mr. Amsterdam: It is impossible to know in what percentage of the case if the prosecution asked for it.

It is however perfectly clear in a number of jurisdictions that the prosecution has no control over the matter.

In a number of jurisdictions it is entirely up to the jury.

The prosecutor cannot waive it and the prosecutor cannot ask for it, simply a matter if the jury’s discretion.

I think no figures are available on the question of whether the prosecutor asked for it although I would say that even the prosecutors’ decision not to ask for it is a reflection of the sentiment of the total community so that I would not discount those cases even if I knew how many there were.

The point --

Justice Potter Stewart: Also your statistics, you cannot tell even from those fragmentary statistics whether, as you put it, juries are imposing the death penalty in only one out every 12 defendants or does it mean that only one out of every 12 juries imposing the death sentence?

You do not know which is the constant and which is the varying factor (Voice Overlap)

Mr. Amsterdam: No.

No, that is certainly clear Your Honor.

Justice Harry A. Blackmun: Mr. Amsterdam is the -- are your most recent remarks also directed to judge imposed penalties?

Mr. Amsterdam: The figures that are available do not discriminate so that the one out of 12 or 13 figures is a total figure that does not discriminate between a judgment and jury sentencing where prosecutors have or have not asked.

All we know is that out of that number of capital cases that is the number of death sentences that are in fact imposed by the sentencing.

One important factor is that the figures we have, the figures I am talking about a hundred year, run through 1968, when Witherspoon was decided.

So what we are talking about is the number of sentences imposed principally by juries because although there are some judge sentences in there, most of these are plainly jury sentences, by juries from whom all persons against capital punishment had been excluded.

Now this is the group that Mr. George wants us to take as the indicators of public symptom.

You are already crooning out all of those people who oppose the capital punishment

Justice Harry A. Blackmun: But Mr. Amsterdam in that connection, how many States have penalties of this kind imposable by a jury as been contested by those imposable by a judge, do you know?

Mr. Amsterdam: I am -- how many jurisdictions --

Justice Harry A. Blackmun: In how many jurisdictions the -- does the judge impose sentences in custom and how many if a jury impose a sentence, do you know?

Mr. Amsterdam: To my knowledge there are 2 jurisdictions, Maryland and Illinois where the imposition of the death penalty requires the concurrence of the judge with the jury, that is the jury’s verdict is either advisory or the judge must concur in the jury’s verdict before it can be imposed.

In all other jurisdictions, it is the jury which makes the sentencing decision unless the jury is waived.

Justice Harry A. Blackmun: Now this is not true in my home state?

Mr. Amsterdam: Oh! I am -- I am then quite misinformed.

I had understood that it was.

If -- this is rather thoroughly canvassed in the briefs in Maxwell versus Bishop and I think the statutory section is set out there.

If the Court should want to refer to them for reference, I had understood that it was true in all States that the jury made the determination except those two but there may be local differences of -- that I am not aware of.

The --

Unknown Speaker: (Inaudible)

Mr. Amsterdam: On sentences, yes.

Justice Potter Stewart: Except on those of states where or except where a jury is waived and which is then I suppose in some States at least the judge could impose a death penalty?

Mr. Amsterdam: Oh! It is since United States v. Jackson and it is common that if the jury is waived the judge may impose the death penalty, yes, that certainly is true.

The jury is sort of primary sentencing instrument in practice because it's generally -- jury does not interact with.

Justice William O. Douglas: Is there anything in the Georgia record that indicates what kind of cases Georgia executes?

Mr. Amsterdam: There are, again, judicially noticeable figures on this.

There is nothing in the record.

There is no evidence that was presented, but the figures that perfectly frames the national prison statistics, judge executes black people.

Unknown Speaker: In Georgia?

Mr. Amsterdam: I want to make some reference to the -- as to the State of the record generally because there is an awful lot of talk here about facts, about what the Los Angeles Police Department says about deterrence, about who gets the death penalty, unpublished figures in the Georgia Bureau of Prisons, unpublished figures in the California Department of Corrections, I make very point that, we have been asking for an evidentiary hearing from all of these factual, a lot of Courts for a long time.

Nobody has ever given one to it.

The California Supreme Court Judge (Inaudible) Evans rests upon a record in which the California Supreme Court decided that case on authority, other case in which we had asked for such a hearing and had not been given to him.

We are very far from satisfied with the nature of the factual evidence presented here, but we think from the factual evidence that is judicially noticeable which does not include corrections, departments, or courts in an unpublished forum, that enough appears so that the Court can call the death penalty cruel and unusual punishment.

Now, if however the Court has any concern with any of this factual questions, for instance, from deterrence to who gets the death penalty, any of these things, an evidentiary hearing would be the proper way to resolve that matter and in the Akins case, at least the case can be taken in such a way to get that hearing.

Now, the -- I would turn to this subject of rarity and discrimination because the significance of both rarity and who -- and the question, who gets the death penalty is twofold.

First of all, when a nation decides with a growing crime scare, burgeoning population, sentences a few people to death, were in fact sentenced to death and execute the people you fear of and does this against the background where the ideological debate where the content of this debate about capital punishment makes unmistakably clear why this is happening historically because capital punishment is regarded as indecent, as inconsistent with civilized standards today then that manifests a repudiation.

It's quite different from what is manifested by the maintenance of the statutes on the books.

That is the second aspect of it.

The very fact that capital punishment comes to be as rarely and is infrequently and is discriminatorily imposed as it is, takes the pressure of the legislature quite simply to do anything about it.

For one reason why the Eighth Amendment must be measured not only by legislative disapproval, but by popular disapproval in terms of what juries and judges and prosecutors do in fact is that there are in fact more than one way to skin a cat.

And that a penalty can be repudiated by public opinion, every bit as thoroughly by the legislatures making it optional and then nobody has ever applying it as by the legislature's repeal of it and this goes back to the Chief Justice’s question, how has it been done internationally?

In some places it has been done by legislative repeal.

In other places what has happened is exactly what happened in this country, it simply falls into disputes and when it falls into disputes, when there are only a very, very few people and those predominantly poor black, personally ugly and socially unacceptable, there simply is no pressure in the legislature to take it off.

Justice Thurgood Marshall: Let us ask them to the last case, how many are there in death row in California?

Mr. Amsterdam: How many in death row?

A hundred and five on death row in California to my -- to my knowledge at the moment.

Justice Thurgood Marshall: At the time the last time the legislature was used to abolish the death penalty (Inaudible)?

Mr. Amsterdam: Oh! About, I would say 85 to 90.

Justice Thurgood Marshall: Well, how can you say that it is because they are so few?

If you take the State of California and there is one that you try to get numerous mileage on the frame?

Mr. Amsterdam: Well, there are number of -- I think of essential points here, few is of course a relative matter.

What you are talking about is an accumulation on death row over a period of time for 12 or 13 years.

You are talking about 80 people in a prison system that houses thousands and thousands and thousands of people.

You are talking about and I think this is relevant, you are taking about 80 people of whom at that time 25 or 30, actually probably up around 30 were members of minority groups.

This by the way is not a factor in California’s figures.

One of the reasons why I have great concern about California’s putting them forward as though they were judicially noticeable, but the only racial figures California give are for 1970.

It is very strange that thinking -- very clearly the 1970 was strange here in California because the last published national figures show that out of 59 people on death row in California, 25 were black.

Now, the California figures show that out of a hundred now, 25 are black.

There is something, you know, strange going on there which you --

Justice Potter Stewart: How does that compare to the prison population of California?

Is that out of line with the basic prison population in California?

So far as racial composition of --

Mr. Amsterdam: It is very difficult to know.

There are no published figures to tell us that.

What California does compared to the received from Court 1970 and one year is no basis for making any kind of a judgment.

It is true though that California counts Chicanos as white for these purposes, something which for one who lives in California, I point rather strange in terms of the question, who there is that brought on the penalty?

The point essentially is that when it is this group of people who in fact suffer, realistically the pressure on the legislature is not the same.

However, little we are willing to bear the death penalty in its general application, we are still less willing to bear it as applied to us.

Now, the Court has been --

Chief Justice Warren E. Burger: Mr. Amsterdam you were speaking of pressures on the legislature

What are the figures now, the total number, something over 600 in death row?

Mr. Amsterdam: The latest available figure to me Your Honor is 697.

Chief Justice Warren E. Burger: Now 700 people on death row would be quite an enormous pressure on public opinion, would it not?

Mr. Amsterdam: No, I do not think so.

I think as a matter of fact, public opinion has been low in a very significant way by the failure of executions in recent years.

I think the public has -- as in large measure stopped thinking about the problem.

I think that it is --

Chief Justice Warren E. Burger: Well, I was addressing myself at least suggesting the possibility that if you did not prevail here that pressure would be reactivated, would it not?

Mr. Amsterdam: I do not know whether it would or would not if you actually started killing people.

I am quite confident it would not until you start killing people.

Public is quite graphic in a way it thinks about things.

Put one execution out there, take one life, people get very excited, but tell them that tomorrow or the next day a life maybe taken when one has not been taken since June 2 of 1967 and they don't think about it.

I think it would cost, I think it would be constitutionally intolerable to us, the resumption of execution, to activate any kind of public sentiment.

But even if you had that public sentiment activated, the point essentially remains that it is not, you are not capable of generating the kind of legislative or public disapprobation of a penalty which is asking a forum so as to be applied and which is in fact applied to very, very relatively and to essentially ugly minority group members as you are to a generally applicable penalty.

Now, I would like to serve -- save some time for rebuttal in this matter, but the point made by several of the respondents said that the death penalty somehow -- the fact that the institution in the society would fall apart if this Court laid it hands on it, is not new.

If I may read just for a moment from --

Justice Potter Stewart: Is not what, I did not hear you.

You said that that point is not what?

Mr. Amsterdam: Is not new.

Justice Potter Stewart: New?

Mr. Amsterdam: Is not new.

Justice Potter Stewart: I see, thank you.

Mr. Amsterdam: If I may read for a moment from Lord Ellenborough speaking in the House of Lords in 1813 on a Bill for abolishing the death penalty for the crime of privately stealing the amount of five shillings from a shop, Lord Ellenborough after saying, how but by the enactment of this capital punishment law, the cottages of the industrious poor to be protected, what other security has a poor peasant when he and his wife come home that his clothing would be safe other than the death penalty.

Those are on to say, your Lordships have told what is extremely true that the number of people actually put to death for stealing five shillings from a shop is very small.

And this circumstance is urged as the reason for the repeal of the law.

But before your Lordships are induced to consent to such repeal, I beg to call to your consideration the number of innocent persons who might have been plundered of their property or destroyed by midnight murderers if the law now sought to be repealed had not been in existence, a law upon which all the retailed trade of this commercial country depends in which I for one do not consent to be put in jeopardy.

Nevertheless, the Bill making it a capital offense to steal five shillings from a shop was in fact repealed, England did not fall there.

I think that all of the available evidence which is judicially noticeable makes it perfectly point that a judicial ruling by this Court applying the Eighth Amendment in the way in which we believe it was meant to be applied and in judging this repudiated penalty, a cruel and unusual punishment to take from the State nothing to which they are entitled.

If I may save the rest of my time for rebuttal Your Honor?

Chief Justice Warren E. Burger: Very well Mr. Amsterdam

Justice Potter Stewart: Before you sit down Mr. Amsterdam, I just want to be sure that I understand your ultimate argument.

Is it this that even if assuming that retribution as a -- is a permissible ingredient of punishment, even assuming that rational people could conclude that the death sentence is the maximum deterrent with the minimum unnecessary cruelty, death in electric chair.

Even assuming we are dealing with somebody who is not capable of being rehabilitated, an incorrigible person.

Even assuming that rational people can conclude that this punishment under these circumstances is the most efficient and the most inexpensive and the most -- and that it assures the most complete isolation of a convicted man from ever getting back in the society.

Even assuming all of those things which are the basic arguments made by your brothers and sisters on the other side, you say it is still violative of the Eighth Amendment, am I right in my understanding of that?

Mr. Amsterdam: That is correct, Your Honor.

The Eighth Amendment we see is a limitation somewhat like before.

It is a limitation on means that says that the legislature may not use cruel penalties, cruel and unusual penalties, even though they may serve legitimate cause, so just because men engage in unlawful searches and seizures even though there may be a purpose for them.

Now, we are -- I ought to point out we are limited to that on this record because of this ineluctable fact that we cannot get an evidentiary hearing on all of the issues Your Honor raises.

I think on evidence which could be presented, we could show that none of the judgments Your Honors supposes could rationally be made.

Justice Potter Stewart: Well, maybe so.

(Voice Overlap)

Mr. Amsterdam: But on this record it is our submission that accepting each and every one of those propositions, the death is a cruel and unusual punishment

Justice Potter Stewart: That is what I understood to be your argument.

Chief Justice Warren E. Burger: Mrs. Beasley.

Argument of Dorothy T. Beasley

Mr. Beasley: Mr. Chief Justice and may it please the Court.

The question in this case is and particularly in the case now before the Court that is Furman versus Georgia involves the Fourteenth Amendment first.

I think that petitioner has in all of these arguments and all of these cases given way to the proposition that the Fourteenth Amendment hasn't anything to do with these cases and the argument is made simply that in this cruel and unusual punishment to deprive a man of his life, due process of law is not really looked that at all.

However, as it affects the State that is exactly is the most important point.

The Fourteenth Amendment provides that life, liberty that no State may deprive any person of life, liberty or property without due process of law.

Now, that was written in 1968 long after the fifth -- the Eighth and the Fifth Amendment were written.

So that when the restrictions was made on the State by way of the Fourteenth Amendment, the death penalty was already recognized and the restriction on the State was only that they not deprive a man of his life or liberty or property without due process of law.

And I would submit that if the Court in these instances rules that the death penalty a cruel and unusual punishment and may not be enforced by the State then it would take a constitutional amendment because the Fourteenth Amendment as well as the Fifth could be rewritten so that we would have a proposition that no State may deprive any person of life nor may any State deprive any person of liberty or property without due process of law.

Justice Thurgood Marshall: Could the State flaw in the law (Inaudible)?

Mr. Beasley: I think not Your Honor because the terms of due process of law and this taking of life or property does not include corporal punishment of that type.

The State may not deprive him of life, liberty or property without due process of law, but what we had at the beginning where a country -- was the understanding that it may not impose torture and that of course would be torturous as would a horse with an essence that Justice Stewart mentioned.

So if things were taken out of the realm of punishment at the very beginning, with the constitution being enacted and the Bill of Rights so --

Unknown Speaker: What is the standard would you use to determine whether any part of the Bill of Rights, is that what you mean it would be?

Mr. Beasley: I think whether it is the claims that has been used by this Court in so many cases in applying the Due Process Clause.

Is it a matter of fundamental standard, is it a concept of our ordered liberty, that is where full -- that is where a punishment period comes in, I think and whether it is cruel and unusual punishment comes in to the concept of ordered liberty, a fundamental fairness and I think that so long as the State utilizes fundamental fairness in dealing with it, you know, Fifth Amendment posing penalties that those penalties may be used, particularly since the States were specifically permitted by the Fourteenth Amendment to utilize the taking of life so long as it was done with due process of law and I think that is one of the basic frailties in most of the arguments that are made by petitioner because he talks about rarity and discrimination.

Well, obviously then it is not with due process of law, is it all the jury and that is the limitation of the State.

It is not to say as to the penalty.

Justice Thurgood Marshall: Mrs. Beasley, did the (Inaudible) that the State would not impose unnecessary change, the plaintiffs of this Court?

Mr. Beasley: Yes sir.

I am --

Justice Thurgood Marshall: They recognized a little more than just due process, it is not?

Mr. Beasley: But that was --

Justice Thurgood Marshall: Even just thought in that case recognized that the Eighth Amendment was a part, well, applicable to the case?

Mr. Beasley: Yes, insofar --

Justice Thurgood Marshall: And you are now saying it is not?

Mr. Beasley: No sir, I am not saying that at all.

What I am saying is that it comes into the restrictions on the State by way of the Due Process Clause, not that in and of itself and apart for many consideration of due process is applicable to the State.

That is very clear because without the Fourteenth Amendment the Eighth Amendment would not be applicable to the States at all because that is not how it was written.

So that in the concept of due process is where the considerations of how we deal with punishment come in and I would submit that a State may impose a punishment so long as it is not out side of what we regard in our concept of ordered liberty and fundamental fairness and I think that is exactly where the standards come in.

The standards are not so close aligned that you can measure them by polls taken today or by the number of people executed within the last ten years.

That is -- assume a -- close to the line as far as that concept of ordered liberty are concerned.

Moreover, I think that the standards that ought to be viewed are the ones that because the courts have used throughout the country in recognizing what cruel and unusual punishment means and the cases that come out of the State Courts now, the Lower Federal Court and of this Court indicate that it means barbarous or uncivilized or torturous and that type of thing and certainly the penalty of death per se does not come within that prohibition or that understanding.

Mr. Justice Marshall, you asked about whether the meaning of unusual has changed, I would submit that it has not.

The meaning of unusual has not changed from the time that the Eighth Amendment was written, but the application of it perhaps has and I think, as I have said before that the death penalty itself be outside of a consideration of that measure because it specifically reserves the state in the Fourteenth Amendment.

However, if we are going to measure whether in our contemporary deciding, the death penalty is to be regarded as cruel an unusual punishment, I think petitioners are using the wrong guideline.

I think there are three basic ones that are compelling with respect to what is the current sentence of this specific regard to punishment and he talked about the world community, but we do not know why these countries did waive the death penalty.

We do not know for example whether it was the legislature or the petitioner, but even more we do not whether it was because they have regarded it as cruel and unusual punishment or for some other authority nor what the crime is what?

Nor what the punishment where the crime has been displaced with.

For example if it -- it is quite that life imprisonment, if the death penalty so much more severe that in and of itself, is grossly disproportionate as a matter of degree.

Let me go back to the -- I have mentioned that there were three areas, I thought, should control insofar as measuring standards of decency, jury--

Justice William O. Douglas: What if the standards of decency comes up?

Mr. Beasley: I think it comes primarily from the Trop versus Dulles, that being the last pronouncement in this area.

Justice William O. Douglas: But ever since there were no opinions of the Court, (Inaudible)?

Mr. Beasley: No, there was not.

That is correct but I think a standard of course would have to come into play, I do not think it is that far removed from fundamental standards which to me is the basic standard that is to be used in this cases.

Justice William O. Douglas: Did you say that a statute that allows the death sentence to be imposed except on those people who make more than $50,000.00 a year, would that be (Voice Overlap) --

Mr. Beasley: I think that would be the discriminatory.

That is not looking at the crime.

That is looking at the circumstances of the criminal.

Justice William O. Douglas: Do you think that cruel and unusual carries with it a connotation of non-discrimination?

Mr. Beasley: Oh! Yes, indeed.

It should be applied a non-discriminatory manner.

Justice William O. Douglas: Are there any statistics on what kind of people Georgia executes?

Mr. Beasley: Mr. Justice Douglas we submitted in our brief, a chart that I obviously made up from the statistics the we were able to gather from the Department of Corrections, showing those people now under death penalty in Georgia.

Justice William O. Douglas: And is that under --

Mr. Beasley: And I do not think that you could say that there is anyone class for that class has been discriminated against.

Moreover, even if it were shown to be discrimination and we submit that it was not shown to discrimination that that would not invalidate the death penalty per se but it would be a violation of the Equal Protection Clause not the Eighth Amendment.

In other words, you may have discrimination in the sentencing and largely that only black people get the maximum for larceny.

Well, obviously that would be discriminatory, but that would not mean that you could not sentence anybody to 20 years imprisonment for larceny.

It would simply mean that in no occasion where there was discriminations those sentences were invalid.

Justice William O. Douglas: It's case by case --

Mr. Beasley: Yes indeed and I think their proof falls far short of making out the kind of a prima facie case that this Court has considered in cases like (Inaudible) with regard to discrimination by virtue of rape.

And -- but even if -- I say, even if they could make it out, it would not invalidate the death penalty because the same thing would apply to any other punishment when it does not make the death penalty anymore cruel and unusual than life imprisonment or 20 years in jail or even 1 day in jail is to provide that in a discriminatory manner and of course that then goes back to the Due Process Clause.

Obviously it has to be like that, it has to be in proceedings which of course in fact --

Justice William O. Douglas: Has your court ever considered the question of discriminatory aspects of the death sentence as applied in Georgia?

Mr. Beasley: I think not because I do not think it has had the opportunity to do so.

Mr. Amsterdam suggested that it has not had the opportunity, he has not had the opportunity to present statistics to our Courts, but that certainly is not true in the instant case.

There was no effort made to bring any statistics or make any argument as a matter of fact.

In Furman the argument was not even made in the lower court.

It simply was stated, but no argument was made and there was a very, very short argument to point out in our brief, in the brief to the Supreme Court of Georgia, citing merely the whole statistics of how many white people and how many black people had been executed since 1930 up to 1968.

But that does not prove that the death penalty is cruel and unusual punishment.

Moreover, those statistics which talks about the period of time since the 1930 to 1968 in Georgia case or the old, since it's the only state failed to take account of the exact changes in criminal justice that had taken place under decisions of this Court as well as the decisions of State Court so that we are safeguarding not only criminal generally, but people who are subject to the death penalty with greater due process so that when do arrive at a consideration that they are ready to be executed we are sure that they are -- it was arrived at in manner of comporting with due process.

And I think that is one of the great fallacy in utilizing the statistics with regard to the number of executions that they had then.

How many of them have not been executed because of jury discrimination where group of jurors or illegals confessions or illegal search and seizure or something else and that has nothing to do with the penalty that was imposed by the jury.

But again let me just return to -- for a moment to what I regard as measurements of what the standard should be.

The standards of fundamental fairness and standards of an ordered society.

As I have said I think that should be the jury is the one, the juries across the country are still imposing the death penalty and certainly they are representatives of the community as stated in Williams versus New York by Mr. Justice Murphy in his dissent, in our Criminal Court the jury is the representative of the community, its voice is that of the society against which the crime was committed.

Its verdict is a community expression.

Witherspoon also refers to the jury representative of the community and so does Trop versus Dulles and I think that it cannot be overlooked that the jury are still imposing death penalty and did in the 650 or how many other cases resulted in persons now under the death penalty offenses.

They express the community feelings and standards and that was recognized in Trop.

They speak for the community if we are going to look at what the standards are here.

In this two cases where Georgia has standings for the Court, as a matter of fact the internment in the instant case right now before the Court, there was only one person of the total panel of 48 which means one out of 49 because one has to be added who will -- said that they were so against the death penalty that they could never encourage it in any case and that it would affect their determination of guilt.

One out of 49, so that cannot show that there is an overwhelm -- these people are selected at random and moreover, their feet are put to the fire.

There was some questions in one of the earlier arguments about, well, juries are perhaps just imposing the penalty now because they know it is not going to be imposed.

I would submit that if it is supposed to be, the overwhelming repudiation of the death penalty that petitioners talk about, then why would jurors take the unpopular stand in imposing a penalty which the world has repudiated.

And secondly, how can we presume that a juror sitting in the place of judgment is going to take a chance on a penalty not being imposed when he knows that his expressing as well as the community.

I would submit that no one with a conscience would do so and in certain point his arguing presumption of that sort.

Secondly, we speak also of the second measurements then of what -- who measures the standards and I would say, the judiciary.

And it is particularly appropriate to look there because the jury -- the judiciary is measuring the death penalty in terms of whether it is cruel and unusual punishment not whether it is why or not whether as restriction or not whether it can be without it but is it cruel and unusual punishment and reading all those recent cases from around the country I find almost none, I find none, there are probably are some but none where the Court had declared that it is cruel and unusual punishment and talking of the State High Court and the Lower Federal Court where -- so that we have the judiciary taking this very question of whether it is cruel and unusual punishment and giving it consideration and saying in our opinion and applying the constitution, we consider that it is not.

So certainly they too express the standard of decency.

We have talked in others situations of this conscience of the Court that is for example the test that used in the (Inaudible) raised in the Fifth Circuit.

Does it check the conscience of a Court?

That is what we are talking about with regard to standards.

It is not something so close to the line that can be measured as 51% today and 49% tomorrow and that certainly is not the way in which our constitution used to be utilized or to be construed.

Again, it is the question we think for the legislature to determine certainly in Witherspoon, the Court noted that the power of a State to execute a sentence -- sentenced to death by a jury does not be -- has no bearing in what the Court does with respect to whether the State can select who the person so long as it is done with due process.

And also we would like to point out that there is in many of the cases before this Court, Allied Stores of Ohio versus Bowers to light this constitution which were in 1866 and cases since then a presumption of regularity and a presumption of constitutionality of legislative enactment and that has been overlooked I think that petitioners’ argument and position.

He has the burden to show that the legislative enactment is unconstitutional and I think that he has done so, not with respect to the death penalty per se in the abstract which is what he contend should be declared unconstitutional.

Thank you.

Chief Justice Warren E. Burger: Thank you Mrs. Beasley.

Mr. Amsterdam, you have three minutes left.

Rebuttal of Anthony G. Amsterdam

Mr. Amsterdam: Thank you Mr. Chief Justice.

May it please the Court.

We -- on one point I essentially do not disagree with Mrs. Beasley.

I think juries are in many ways the conscience of the community although I think other organs of government, prosecutors and judges are as well and our whole case rests on what juries and prosecutors and the other agencies of government have done.

What they have done is to refuse to impose the death penalty.

The question then arises, well, why do we not leave them that way.

If they are refusing then why should Court step in.

Why should not it just die of its own way?

The answer to that is the case like Furman versus Georgia.

Where what you have is a regular garden variety, burglary, murder.

Unintended killing, somebody shot through the door, a case submitted on the theory that it was an unintended killing, there are thousands of these.

The jury comes back with death, the defendant is black, the victim is white, it is all the aggravation in the case.

The State which distinguishes between torture and the mere extinguishment of human life cannot see that this case is different from the aggravated cases.

But the jury is allowed in every case to return a death penalty.

There are Georgia figures in this record.

I do not think they are judicially noticeable but they are in this record, 33 people on death row, 27 of them of black, six whites.

The reasons why a juries cannot be permitted go on doing what they have done and slowly, inexorably do away with the death penalty themselves, is that an individual in particular cases there is going to be a regression and depending largely on the color of the defendant and in the ugliness of his person --

Justice William H. Rehnquist: Mr. Amsterdam --

Mr. Amsterdam: And it is that kind of selectiveness which we think that the death penalty forbids.

Now, I believe the lower court cases somewhat differently than Mrs. Beasley does, I would say that the real development in the Eighth Amendment area throughout this century has been very pointedly development in the prison cases which has the Court just recognized in Haines and Kerner.

What has happened there is that the Eighth Amendment has been taken and given a whole new meaning to respond to a new problem and new conditions.

What we have in the capital punish plenary is the exactly the same thing.

And our point, I repeat again with regard to race is not or poverty is not discrimination, we have not proved it

On these records, it could not be.

What I am saying is to exactly what is happening in capital punishments, the rare arbitrary, usually discriminatory but unprovably discriminatory infliction of a punishment, escapes all other kinds of constitutional control, due process, equal protection and escapes the public pressure that keep legislatures acting decently unless there is something in the constitution that degrades.

Justice William H. Rehnquist: Mr. Amsterdam, you have mentioned a couple of times and I think Mrs. Beasley also mentioned a comparison between the type of statistics that you have used in your brief and the type of statistics that the State has used and you would state in your brief and you would say that, here is -- yours are judicially noticeable whereas you feel the States are not.

I could not find in your brief so perhaps I am in position unfamiliar with it anything other than just the statement to that effect, do you cover in your brief why the jurors are judicially noticeable?

Mr. Amsterdam: No, no.

We do not but I think the basis of it can be fairly simply stated.

The Court -- the concept to judicial notice is essentially that when a writing is put to there in the public domain which people may rebut, which people may study and answer that if a crime is judicially noticeable because its availability for professional criticisms makes it reliable.

Now, when a State takes figures out of the State Department of Correction records, that has never been printed anywhere which was (Inaudible) is un-ascertainable, whose significance is not subject to criticisms, that is not judicially noticeable.

But when you have --

Chief Justice Warren E. Burger: I think your time is up Mr. Amsterdam