9 FRANKFURTER, J., dissenting. out the aid of advisors or in a separate administrative board. But even as to these, in only six States, including Georgia, is it clear that such an inquiry may be entirely behind closed doors without any opportunity for submission of facts on behalf of the person whose sanity is to be determined as a prerequisite to killing him. This impressive body of State legislation signifies more than the historic continuity of our repulsion against killing an insane man even though he be under sentence of death. The vindication of this concern turns on the ascertainment of what is called a fact, but which in the present state of the mental sciences is at best a hazardous guess however conscientious. If the deeply rooted principle in our society against killing an insane man is to be respected, at least the minimum provision for assuring a fair application of that principle is inherent in the principle itself. And the minimum assurance that the life-and-death guess will be a truly informed guess requires respect for the basic ingredient of due process, namely, an opportunity to be allowed to substantiate a claim before it is rejected. This is a requirement that this Court has enforced again and again when mere interests of property were involved. See e. g., Pennoyer v. Neff, 95 U. S. 714; Priest v. Trustees of Las Vegas, 232 U. S. 604. It cannot be that the Court is more concerned about property losses that are not irremediable than about irretrievable human. claims. If, as was held only the other day, due process saves a man from being sent to jail for sixty days on a charge of contempt because he was tried in secret, In re Oliver, 333 U. S. 257, due process ought also to vindicate the self-respect of society by not sending a man to his death on the basis of a proceeding as to his sanity in which all opportunity on his behalf has been denied to FRANKFURTER, J., dissenting. 339 U.S. show that he is in fact in that condition of insanity which bars the State from killing him. He should not be denied the opportunity to inform the mind of the tribunal-be it a Governor, a board or a judge that has to decide between life and death, not as a matter of grace but on the basis of law. For if he be insane his life cannot be forfeit except in violation of the law of the land. If a man "is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged" before being convicted, In re Oliver, supra at 272, he should no less be allowed to have someone speak for him when the issue is not merely a prerogative of mercy or the exercise of discretion which modern penological thought, translated into legislation, vests in judges in imposing sentence. The killing of an insane man under sentence, it needs to be repeated, is in our law not a matter of discretion. Not to kill such an insane man "has its roots in our English common law heritage" no less deep than not to convict him without a hearing. See In re Oliver, supra at 266. The rule against killing an insane person embedded so deeply in our law as to be protected by substantive aspects of due process requires as part of procedural due process that the victim be given an opportunity through counsel or the next of kin to invoke the substantive principle of due process. Since it does not go to the question of guilt but to its consequences, the determination of the issue of insanity after sentence does not require the safeguards of a judicial proceeding. See Ng Fung Ho v. White, 259 U. S. 276, 284-85. Nor need the proceeding be open; it may be in camera. But precisely because the inquiry need not be open and may be made in camera, it must be fair in relation to the issue for determination. In the present state of the tentative and dubious knowl 9 FRANKFURTER, J., dissenting. edge as to mental diseases and the great strife of schools in regard to them, it surely operates unfairly to make such determinations not only behind closed doors but without any opportunity for the submission of relevant considerations on the part of the man whose life hangs in the balance. To say that an inquiry so conducted is unfair because of the treacherous uncertainties in the present state of psychiatric knowledge is not to impugn the good faith of Governors or boards in excluding what is sought to be put before them on behalf of a putative insane person. The fact that a conclusion is reached in good conscience is no proof of its reliability. The validity of a conclusion depends largely on the mode by which it was reached. A Governor might not want to have it on his conscience to have sent a man to death after hearing conflicting views, equally persuasive, regarding the man's sanity. Claims obviously frivolous need of course not be heard, even as this Court does not listen to claims that raise no substantial question. It is not suggested that petitioner's claim of insanity was baseless. It is a groundless fear to assume that it would obstruct the rigorous administration of criminal justice to allow the case to be put for a claim of insanity, however informal and expeditious the procedure for dealing with the claim. The time needed for such a fair procedure could not unreasonably delay the execution of the sentence unless in all fairness and with due respect for a basic principle in our law the execution should be delayed. The risk of an undue delay is hardly comparable to the grim risk of the barbarous execution of an insane man because of a hurried, one-sided, untested determination of the question of insanity, the answers to which are as yet so wrapped in confusion and conflict and so dependent on elucidation by more than one-sided partisanship. FRANKFURTER, J., dissenting-Appendix. 339 U.S. To deny all opportunity to make the claim that was here made on behalf of the petitioner is in my view a denial of due process of law. APPENDIX TO OPINION OF FRANKFURTER, J. State legislation and judicial decisions concerning execution of death penalty where insanity supervenes after sentence.1 A. States in which problem does not arise because they have no death penalty: 2 (1) Me. Rev. Stat. c. 117, § 1 (1944). 1945). (4) N. D. Rev. Code § 12-2713 (1943).3 It is appropriate to give warning that the meaning attributed to some of the statutes cited in this Appendix does not have the benefit of guiding State adjudication and that, even when such adjudication is available to throw light on statutory meaning or on the State's common law, classification has been based on judicial pronouncements which are not always explicit holdings. The ascertainment of the law of a State when there is not a clear ruling by the highest court of that State is treacherous business. It should also be added that while this Appendix is based on the latest legal materials in the Library of this Court that is no guarantee that there may not be still later relevant local materials. 2 The statutes cited give the penalty for first degree murder. See also Grünhut, Penal Reform 7 (1948). 3 The penalty for first degree murder is life imprisonment unless a person is under sentence of life imprisonment at the time of conviction. 9 FRANKFURTER, J., dissenting-Appendix. B. States suspending execution of death penalty under statutory or common law provisions for hearing before judge or judge and jury upon initiation by judge:' I. Statutory procedure: (7) Ala. Code Ann. tit. 15, § 427 (1940). (8) Colo. Stat. Ann. c. 48, §§ 6, 7 (1935). See Bulger v. People, 61 Colo. 187, 156 P. 800. (9) Ill. Rev. Stat. c. 38, §§ 593–94 (1949). See People v. Geary, 298 Ill. 236, 131 N. E. 652; People v. Preston, 345 Ill. 11, 177 N. E. 761. (10) La. Code Crim. Law & Proc. Ann. art. 267 (1943). See State v. Allen, 204 La. 513, 15 So. 2d 870, 18 Tulane L. Rev. 497; State v. Gunter, 208 La. 694, 23 So. 2d 305; State v. Hebert, 187 La. 318, 174 So. 369; La. Laws 1918, No. 261, p. 483. (11) N. J. Stat. Ann. § 2:193–12 (1939) in connection with In re Lang, 77 N. J. L. 207, 71 A. 47; In re Herron, 77 N. J. L. 315, 72 A. 133; 79 N. J. L. 67, 73 A. 599. II. Common law procedure: (12) North Carolina. See State v. Vann, 84 N. C. 722, 724; State v. Godwin, 216 N. C. 49, 3 S. E. 2d 347; State v. Sullivan, 229 N. C. 251, 49 S. E. 2d In all States providing for suspension of death penalty upon supervening insanity, the procedural problem raises two questions: (1) who shall decide whether there has been a sufficient prima facie showing of insanity to warrant initiation of a further proceeding; (2) who shall be the fact finder in such proceeding. |