This version is updated as of May 1993 with respect to the issues it deals with. I wish to specifically thank Cynthia Neuman, Ph.D., Sacramento, for bringing new literature to my attention with respect to Part 7, dealing with Childhood Deprivation.

Decisions in this area have been informed by "contemporary values concerning the infliction of a challenged sanction." McCleskey, citing Gregg v. Georgia (1976) 428 U.S. 153, 173.

A survey of the "contemporary values concerning the infliction" of the death penalty suggests that there are three objective manifestations of current evolving standards of decency which restrict when the death penalty may be inflicted: (i) a re-examination of the 8th Amendment in the context of the amount of force which a state may use to defend its citizens from harm; (ii) a historical retreat from infliction of the death penalty in all felonies to those limited circumstances when a victim is killed, and there is the requisite culpability; (iii) a historical retreat from public executions.

It is suggested here that the three emerging principles have now coalesced such that the imposition of the death penalty cannot be justified, if at all, unless a victim dies, and the defendant has the requisite culpability, and the State cannot, beyond a reasonable doubt, effective control defendant's behavior by mere incarceration.

Sovereignty resides in the People. U.S. Constitution, Preamble ["We, the People"]. California Constitution, Preamble ["We, the People"]; Cal. Govt. C. § 100(a). The federal powers are expressly recognized as being delegated powers. U.S.Const., 10th Amendment. 1 Rotunda, Treatise on Constitutional Law §§ 3.1, 3.2. By its terms, the 10th Amendment implies that powers are delegated by the People to the State, and the concept is written into the California Constitution's Preamble.

It has always been recognized that a Person could only grant that estate which he possessed. Blackstone, Commentaries on the Laws of England, Vol. 2, page 290; Cheshire, The Modern Law of Real Property, p. 660 (Citing common law principles).

At the time the constitution was drafted, an individual could use only reasonable force for self-defense, and deadly force only when met with deadly force and its use is reasonable. If the attacker retreats or abandons the fray, then the victim can no longer use deadly force. Foster, Crown Law 273-277 (1762); Brown v. United States (1921) 256 U.S. 335; Perkins, Criminal Law and Procedure (1972) 660-667; Tennessee v. Garner (1986) 471 U.S. 1.

Because an individual at common law could only use reasonable force, and deadly force if reasonable [Foster], that is all the power the individual collectively could delegate to the States, hence the State may only use reasonable force, and deadly force if reasonable. Garner.

The rules of self-defense apply to states in International Law. United Nations Charter, Chapter VI [commencing with Article 33]. It is considered a rule of jus cogens, vis peremptory norm of international law, from which no state may derogate. Verdross, Jus Dispositivum and Jus Cogens in International Law (1961) 60 AJIL 55, 60, #3; Id, Forbidden Treaties in International Law (1937) 31 AJIL 571-577. The concept is preserved in the United States Constitution, Art. I, § 1 (No State Shall, ... engage in War, unless actually invaded ... imminent Danger ...). It has been tacitly recognized by stare decisis. Tennessee v. Garner (1986) 471 U.S. 1 [Striking down State's fleeing felon statute].

Once an individual is incarcerated, that is all the force required to protect society from further harm and the death penalty therefore would be cruel and unusual punishment, unless the State shows, in a given case, beyond a reasonable doubt that society cannot protect itself by mere incarceration.

In People v. Murteshaw (1981) 29 C.3d 733, the court reversed the death penalty on the basis of erroneous admission of expert opinion evidence because (1) expert predictions that persons will commit future acts of violence are unreliable, and frequently erroneous; (2) forecasts of future violence have little relevance to any of the factors which the jury must consider in determining whether to impose the death penalty; (3) such forecasts, despite their unreliability and doubtful relevance, would confuse and mislead the jury. In Barefoot v. Estelle (1983) 463 U.S. 880 it was held that it was proper for the jury to consider whether or not defendant would commit criminal acts in the future and thus pose a threat to society, and the court went on to say in Solem v. Helm (1983) 463 U.S. 277, that "we will not assume that there is no rehabilitative opportunity." Accord, Hitchcock v. Dugger (1987) 481 U.S. 393 [reversing death penalty for refusal to consider mitigating circumstances].

Every day we incarcerate People who pose a threat to society. LPS Act, Welfare & Institutions Code § 5000, et seq.; Probate Code, § 1400, et seq.; Conservatorship and Wardship, Welfare & Institutions Code § 200, et seq.; Generally, Note, Probate Code Conservatorships: A Legislative Grant of New Procedural Protections (1977) 8 Pacific L.J. 73. Thus, the relevant inquiry is not whether the defendant poses a future threat to society, an entirely speculative and subjective opinion of what may happen, but whether or not society can effectively control the behavior by incarceration, with a possibility of rehabilitation. That is to say, the emerging standards of decency is such that the State may not exact the death penalty unless it demonstrates beyond a reasonable doubt that it cannot protect society by mere incarceration.

At common law, all felonies, regardless of whether death resulted, and in theft cases, regardless of the amount taken, warranted the death penalty, except mayhem for which mutilation was substituted. Perkins, Criminal Law and Procedure (Foundation press, 4th Ed., 1972), p. 4-5. Whipping was substituted for death as the penalty for petit larceny, but that was a change from the common law resulting from an early statute. Id. Statute of Westminster, 1, c. 15 (1275). In the words of Blackstone, "the true criterion of felony is forfeiture." 4 Bl.Comm. *97. Modernly, few felonies are recognized as capital crimes. Perkins, at p. 5; generally, 4 Encyclopædia Britannica 847 (1971). Moreover, and notwithstanding Apodaca v. Oregon (1972) 406 U.S.404, there is not a single jurisdiction left which allows the infliction of the death penalty with less than a unanimous jury verdict.

The United States Supreme Court has recognized further restrictions upon the utilization of the death penalty. Thus in non-fatal felonies, the court held that the imposition of the death penalty was unconstitutional. Coker v. Georgia (1977) 433 U.S. 584; Eberhardt v. Georgia (1977) 433 U.S. 917. Similarly, in Enmund v. Florida (1982) 458 U.S. 752, the court held that in felony-murder cases, the death Penalty was unconstitutional where the accomplice did not commit murder, nor intend that death result. Then in Tison v. Arizona (1987) 481 U.S. 137, the Court distinguished Enmund on the basis that in Enmund "the degree of participation was so tangential that it could not be said to justify a sentence of death", and held that "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result."

Congress at one point abolished the death penalty altogether. Pub.L. 98-473, Title II, §§ 212(a), 235(a)(1), Oct. 12, 1984, 98 Stat. 1987-2020, 2031, effective November 1, 1987, adopting Chapter 227 - Sentences, 18 U.S.C. §§ 3551, et seq. 10 States of the United States have abolished it. 4 Encyclopædia Britannica 847 (1971). Of 20 Latin American Countries, 10 have abolished it. Id. All but 4 Mexican States have abolished it. Id.

The American Law Institutes Section on the Model Penal Code could not come to any consensus. The reporter urged a rejection of capital punishment. The Committee found that it had no influence in the matter, and thus refused to either endorse or reject capital punishment. While it set forth a model death penalty statute, its caveat was that it should not be construed as an endorsement of the death penalty. American Law Institute, Model Penal Code, Part II, volume 1, pp. 110-114.

Thus, the emerging standards of decency has been a gradual withdrawal of the death penalty from all felonies, to those felonies in which the victim dies as a proximate result of culpable personal conduct on the part of the defendant.

At the restoration, Cromwell's body was exhumed, and his head displayed on a spike at the gates as a warning to all. 6 Encyclopædia Britannica 802. At common law, and the early days of this Country, executions were a public affair designed as a deterrent. 3 Encyclopædia Britannica 404 (1971) [except heads of state]; 4 Id 847; 6 Id 825; 11 Id 64; 18 Id 556.

The last public execution occurred in Kentucky in 1936. 11 Encyclopædia Britannica 64. Under modern statutes, the public is excluded, witnesses limited to those found by law necessary to be present to assure the State that the law had been obeyed. Infliction of the death penalty has steadily been withdrawn from public view. Former 18 U.S.C. § 3566 [Chap. 227]; California Penal Code § 3605. Thus, much of the deterrent effect is now gone, if there ever was any deterrent effect.

The justification for the change has traditionally been that allowing the public to witness such events only appeals to the barbaric instincts, it is degrading, and brings society down to the level of the condemned individual. Because the infliction of the death penalty is no longer a public event, it has lost any deterrent value it may have been, and in any event is a recognition that the death penalty serves no justifiable governmental interest other than an appeal to the prurient interests of society to witness a degrading an uncivilized event. The current administration of the death penalty is therefore a tacit recognition that it is cruel and unusual.

Based upon a multidisciplinary approach of experts from Psychology and Cultural Anthropology, mores and behavior are learned from the environment.

Anthropology can demonstrate that in some societies, cannibalism was an accepted mores, at least as to enemies. Both they, and sociologist can probably trace the history of cannibalism to rather recent modern times, and show that entire cultures were civilized and trained to reject it.

Experimental psychologist can demonstrate in laboratory experiments that primates which undergo species deprivation during the critical period undergo behavioral problems at maturity to the extent of not being able to mate absent rehabilitation. This literature has been applied to human childhood development. Medical literature seems to indicate a decline in infant mortality for premature babies kept in incubators where an adult messages the infant after birth periodically, suggesting that the species deprivation phenomenon may be applicable to humans. There is other literature which suggests that adult children of alcoholics also suffer maladaptive behavior problems, which can be corrected if recognized. And finally, new literature from the field of psychology has demonstrated that certain classes of mentally disordered offenders can benefit from treatment. California has accepted the premise that bonding is a significant factor in child development and has set up special prison facilities for women with newborn and infants so that they can continue to nurture their young in the hopes of develop human bonding. Calif. Penal Code § 3410, et. seq.

Where society breaches its duty by failing to remove a person as a child from an unfit home, vis W&I § 300 petition, then society ought not to be allowed later to take that person's life as an adult for a wrong under circumstances where Society stood by and allowed that person to be programmed for wrongful acts, but should be required to rehabilitate that Person. Otherwise, the punishment would amount to cruel and unusual punishment. E.g., Thompson v. Oklahoma, 108 U.S. 2687 (1988); Ake v. Oklahoma (1985) 470 U.S. 68; Lockett v. Ohio (1978) 438 U.S. 586; Eddings v. Oklahoma (1982) 455 U.S. 104; Robinson v. California (1962) 370 U.S. 483; Brown v. Board of Education (Brown II) (1955) 349 U.S. 294, 29 ,fn. 11. [Psychological damage to children forced to undergo racial segregation.

Capital punishment is no longer a universally recognized means of controlling human behavior. It has been withdrawn as a public spectacle, and its use restricted to a narrow class of cases in which a victim dies as a proximate result of the defendant's own culpable conduct. Most jurisdictions that do allow capital punishment require a unanimous verdict. Just as Tison teaches that some homicides are justifiable, anthropologists have shown us in the recent modern time cultures which recognize as socially acceptable cannibalism. Those youths who are left unguided, or misguided by parents, or abused by those society failed, or could not, control may well have grown up with mal-adaptive behavior through no fault of their own.

The sum total of the foregoing, implicit in Garner, is that the State may not use its sovereignty with any more force than is reasonably under the circumstances, and the death penalty only if it has demonstrated beyond a reasonable doubt that it cannot protect society by mere incarceration.

Dated: December 3, 1999

RELEVANT HOMICIDE STATISTICS

CORRELATION BETWEEN HOMICIDES AND EXECUTIONS, IF ANY