FRANKFURTER, J., dissenting. 339 U.S. living is equal, whether the Person be mad or in his Senses... But the true reason of the Law I think to be this, a Person of non sana Memoria, and a Lunatick during his Lunacy, is by an Act of God (for so it is call'd, tho the means may be humane, be it violent, as hard Imprisonment, terror of Death, or natural, as Sickness) disabled to make his just Defence, there may be Circumstances lying in his private Knowledg, which would prove his Innocency, of which he can have no advantage, because not known to the Persons who shall take upon them his Defence .. "The King is therefore no otherwise benefited by the destruction of his Subjects, than that the Example deters others from committing the like Crimes; and there being so many to be made Examples of, besides those on whom the misfortunes of Madness fall, it is inconsistent with humanity to make Examples of them; it is inconsistent with Religion, as being against Christian Charity to send a great Offender quick, as it is stil'd, into another World, when he is not of a capacity to fit himself for it. But whatever the reason of the Law is, it is plain the Law is so . . . .” Remarks on the Tryal of Charles Bateman by Sir John Hawles, Solicitor-General in the reign of King William III, 3 State-Tryals 651, 652-53 (1719). "If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment. . . And if such person after his plea, and 9 FRANKFURTER, J., dissenting. before his trial, become of non sane memory, he shall not be tried; or, if after his trial he become of non sane memory, he shall not receive judgment; or, if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution." 1 Hale, The History of the Pleas of the Crown 34-35 (1736).1 "Another cause of regular reprieve is, if the offender become non compos .. if after judgment, he shall not be ordered for execution: for 'furiosus solo furore punitur,' and the law knows not but he might have offered some reason, if in his senses, to have stayed these respective proceedings." 4 Bl. Comm. 388-89 (1769). However quaint some of these ancient authorities of our law may sound to our ears, the Twentieth Century has not so far progressed as to outmode their reasoning. We should not be less humane than were Englishmen in the centuries that preceded this Republic. And the practical considerations are not less relevant today than they were when urged by Sir John Hawles and Hale and Hawkins and Blackstone in writings which nurtured so many founders of the Republic. If a man has gone insane, is he still himself? Is he still the man who was convicted? In any event "were he of sound memory, he might allege somewhat" to save himself from doom. It is not an idle fancy that one under sentence of death ought not, by becoming non compos, be denied the means. to "allege somewhat" that might free him. Such an 1 The first publication of Hale's Pleas of the Crown was of course based upon the manuscript left by him at his death in 1676. See 6 Holdsworth, A History of English Law 574, 589–90 (1924). 2 See Report of the Committee on Insanity and Crime, Cmd. No. 2005, pp. 17, 19 (1923). 339 U.S. FRANKFURTER, J., dissenting. opportunity may save life, as the last minute applications to this Court from time to time and not always without success amply attest.3 The short of it is that American law is not more brutal than what is revealed as the unbroken command of English law for centuries preceding the separation of the Colonies. The Court puts out of sight, as it were, what is basic to a disposition of this case, namely, that not a State in the Union supports the notion that an insane man under sentence of death would legally be executed. If respect is to be given to claims so deeply rooted in our common heritage as this limitation upon State power, the Fourteenth Amendment stands on guard to enforce it. Unless this restriction on State power is fully recognized and its implications are duly respected, the crucial questions presented by this case are avoided. We are here not dealing with the Crown's prerogative of mercy continued through the pardoning power in this country as an exercise of grace. See Ex parte Grossman, 267 U. S. 87. Nor are we dealing with the range of discretion vested in judges by penal laws carrying flexible instead of fixed penalties. See Williams v. New York, 337 U. S. 241. We are dealing with a restriction upon the States against taking life if a certain fact is established, to-wit, insanity, 3 Insane persons do not have the capacity to plead or be tried. See Youtsey v. United States, 97 F. 937; Forthoffer v. Swope, 103 F. 2d 707. After sentence of death, the test of insanity is whether the prisoner has not "from the defects of his faculties, sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful, and the intelligence requisite to convey such information to his attorneys or the court." In re Smith, 25 N. M. 48, 59, 176 P. 819, 823. See also People v. Geary, 298 Ill. 236, 131 N. E. 652; In re Grammer, 104 Neb. 744, 178 N. W. 624. 9 FRANKFURTER, J., dissenting. like unto other restrictions upon the State in taking liberty or property. In view of the Due Process Clause it is not for the State to say: "I choose not to take life if a man under sentence becomes insane." The Due Process Clause says to a State: "Thou shalt not." And so we come to the implications of this constitutional restriction upon a State in order to determine whether it can deny all opportunity to lay before some agency of government facts and circumstances which, if true, must stay the executioner's hand. The manner in which the States have dealt with this problem furnishes a fair reflex, for purposes of the Due Process Clause, of the underlying feelings of our society about the treatment of persons who become insane while under sentence of death. Six States no longer have the death penalty. (See Appendix, Part A.) As to the remaining 42: I. In 30 States, execution of the death penalty is suspended upon a determination of insanity supervening after sentence. (a) Of these, 9 States provide (5 by statute and (b) Of these, 14 States provide for the ultimate FRANKFURTER, J., dissenting. 339 U.S. (c) Of these, 7 States provide for the ultimate determination of sanity by the Governor or by a body of physicians and laymen. (1) Of these, 1 State appears to afford an opportunity to be heard. (Part D-I.) (2) Of these, 3 States appear to provide for an ex parte inquiry. (Part D-II.) (3) Of these, 3 States have no provision indicating the nature of the inquiry. (Part D-III.) II. In 3 States, suspension of execution of the death penalty because of insanity is at the discretion of the Governor. (Part E.) III. As to 9 States, the available legislation and decisions afford no clear basis for classification. Of these, 4 give strong indications that execution of the death penalty is suspended upon insanity supervening after sentence, 3 offer insufficient material even for inference, and 2 offer no relevant material. (Part F.) 4 We start with the fact that not a single State gives any indication of having uprooted the heritage of the common law which deemed it too barbarous to execute a man while insane. This brings us to the mode of establishing the crucial basis for the lawful killing by a State, namely, that it kill not an insane person. Nine States make the necessary inquiry entirely judicial. Fourteen more States put the responsibility for initiating judicial inquiry, with various alternatives of judge and jury, upon an appropriate official. In ten States the determination of sanity is vested in the Governor either with or with In these 4 States, 3 have statutory provisions dealing with insanity after conviction but before sentence, and 1 has a provision dealing with insanity after conviction. Compare State v. Allen, 204 La. 513, 15 So. 2d 870. |