390 U.S. 570 (1968), 85, United States v. Jackson

Docket Nº:No. 85
Citation:390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138
Party Name:United States v. Jackson
Case Date:April 08, 1968
Court:United States Supreme Court

Page 570

390 U.S. 570 (1968)

88 S.Ct. 1209, 20 L.Ed.2d 138

United States

v.

Jackson

No. 85

United States Supreme Court

April 8, 1968

Argued December 7, 1967

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

Syllabus

The Federal Kidnaping Act provides that interstate kidnapers

shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.

The District Court dismissed the count of an indictment charging appellees with violating the Act because it makes "the risk of death" the price for asserting the right to trial by jury, and thus "impairs . . . free exercise" of that constitutional right. The Government appealed directly to this Court.

Held: The death penalty clause imposes an impermissible burden upon the exercise of a constitutional right, but that provision is severable from the remainder of the Act and the unconstitutionality of that clause does not require the defeat of the Act as a whole. Pp. 572-591.

262 F.Supp. 716, reversed and remanded.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

The Federal Kidnaping Act, 18 U.S.C. § 1201(a), provides:

Whoever knowingly transports in interstate . . . commerce, any person who has been unlawfully . . . kidnaped . . . and held for ransom . . . or otherwise

Page 571

. . . shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.

This statute thus creates an offense punishable by death "if the verdict of the jury shall so recommend." The statute sets forth no procedure for imposing the death penalty upon a defendant who waives the right to jury trial or upon one who pleads guilty.

On October 10, 1966, a federal grand jury in Connecticut returned an indictment charging in count one that three named defendants, the appellees in this case, had transported from Connecticut [88 S.Ct. 1211] to New Jersey a person who had been kidnaped and held for ransom, and who had been harmed when liberated.1 The District Court dismissed this count of the indictment,2 holding the Federal Kidnaping Act unconstitutional because it makes "the risk of death" the price for asserting the right to jury trial, and thereby "impairs . . . free exercise" of that constitutional right.3 The Government appealed

Page 572

directly to this Court,4 and we noted probable jurisdiction.5 We reverse.

We agree with the District Court that the death penalty provision of the Federal Kidnaping Act imposes an impermissible burden upon the exercise of a constitutional right, but we think that provision is severable from the remainder of the statute. There is no reason to invalidate the law in its entirety simply because its capital punishment clause violates the Constitution. The District Court therefore erred in dismissing the kidnaping count of the indictment.

I

One fact at least is obvious from the face of the statute itself: in an interstate kidnaping case where the victim has not been liberated unharmed, the defendant's assertion of the right to jury trial may cost him his life, for the federal statute authorizes the jury -- and only the jury -- to return a verdict of death. The Government does not dispute this proposition. What it disputes is the conclusion that the statute thereby subjects the defendant who seeks a jury trial to an increased hazard of capital punishment. As the Government construes the statute, a defendant who elects to be tried by a jury cannot be put to death even if the jury so recommends -- unless the trial judge agrees that capital punishment should be imposed. Moreover, the argument goes, a defendant cannot avoid the risk of death by attempting to plead guilty or waive jury trial. For even if the trial judge accepts a guilty plea or approves a jury waiver, the judge remains free, in the Government's view of the statute, to convene a special jury for the limited purpose of deciding whether to recommend the death penalty. The Government thus contends that, whether or not the

Page 573

defendant chooses to submit to a jury the question of his guilt, the death penalty may be imposed if and only if both judge and jury concur in its imposition. On this understanding of the statute, the Government concludes that the death penalty provision of the Kidnaping Act does not operate to penalize the defendant who chooses to contest his guilt before a jury. It is unnecessary to decide here whether this conclusion would follow from the statutory scheme the Government envisions,6 for it is not, in fact, the scheme that Congress enacted.

[88 S.Ct. 1212] At the outset, we reject the Government's argument that the Federal Kidnaping Act gives the trial judge discretion to set aside a jury recommendation of death. So far as we are aware, not once in the entire 34-year history of the Act has a jury's recommendation of death been discarded by a trial judge.7 The Government would

Page 574

apparently have us assume either that trial judges have always agreed with jury recommendations of capital punishment under the statute -- an unrealistic assumption, at best,8 -- or that they have abdicated their statutory duty to exercise independent judgment on the issue of penalty. In fact, the explanation is a far simpler one. The statute unequivocally states that, "if the verdict of the jury shall so recommend," the defendant "shall be punished . . . by death. . . ." The word is "shall," not "may."9 In acceding [88 S.Ct. 1213] without exception to jury recommendations

Page 575

of death, trial judges have simply carried out the mandate of the statute.

The Government nonetheless urges that we overlook Congress' choice of the imperative. Whatever might have been assumed in the past, we are now asked to construe the statute so as to eliminate the jury's power to fix the death penalty without the approval of the presiding judge. "[T]his reading," it is said, would conform "to the long tradition that makes the trial judge in the federal courts the arbiter of the sentence." And so it would. The difficulty is that Congress intentionally discarded that tradition when it passed the Federal Kidnaping Act. Over the forcefully articulated objection that jury sentencing would represent an unwarranted departure from settled federal practice,10 Congress rejected a version of the Kidnaping Act that would have

Page 576

left punishment to the court's discretion11 and, instead, chose an alternative that shifted from a single judge to a jury of 12 the onus of inflicting the penalty of death.12 To accept the Government's suggestion that the jury's sentencing role be treated as merely advisory would return to the judge the ultimate duty that Congress deliberately placed in other hands.

The thrust of the clause in question was clearly expressed by the House Judiciary Committee that drafted it: Its purpose was, quite simply, "to permit the jury to designate a death penalty for the kidnaper."13 The fact that Congress chose the word "recommend" to describe what the jury would do in designating punishment cannot obscure the basic congressional objective of making the jury, rather than the judge the arbiter of the death sentence. The Government's contrary contention cannot stand.

Equally untenable is the Government's argument that the Kidnaping Act authorizes a procedure unique in the federal system -- that of convening a special jury, without the defendant's consent, for the sole purpose of deciding

Page 577

whether he should be put to death. We are told initially that the Federal Kidnaping Act authorizes this procedure by implication. The Government's reasoning runs as follows: [88 S.Ct. 1214] the Kidnaping Act permits the infliction of capital punishment whenever a jury so recommends. The Act does not state in so many words that the jury recommending capital punishment must be a jury impaneled to determine guilt as well. Therefore, the Act authorizes infliction of the death penalty on the recommendation of a jury specially convened to determine punishment. The Government finds support for this analysis in a Seventh Circuit decision construing the Federal Kidnaping Act to mean that the death penalty may be imposed whenever "an affirmative recommendation [is] made by a jury," including a jury convened solely for that purpose after the court has accepted a guilty plea. Seadlund v. United States, 97 F.2d 742, 748. Accord, Robinson v. United States, 264 F.Supp. 146, 153. But the statute does not say "a jury." It says "the jury." At least when the defendant demands trial by jury on the issue of guilt, the Government concedes that "the verdict of the jury" means what those words naturally suggest: the general verdict of conviction or acquittal returned by the jury that passes upon guilt or innocence. Thus, when such a jury has been convened, the statutory reference is to that jury alone, not to a jury impaneled after conviction for the limited purpose of determining punishment.14 Yet the Government argues that, when the issue of guilt has been tried to a judge or has been eliminated altogether by a plea of guilty, "the verdict of the jury" at once assumes a completely new meaning. In such a case, it is said, "the verdict of the jury" means the recommendation

Page 578

of a jury convened for the sole purpose of deciding whether the accused should live or die.

The Government would have us give the statute this strangely bifurcated meaning without the slightest indication that Congress contemplated any such scheme. Not a word in the legislative history so much as hints that a conviction on a plea of guilty or a conviction by a court sitting without a jury might be...

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1118 practice notes
  • 337 F.Supp. 626 (D.Minn. 1971), 4-70-Civ. 399, Carter v. Gallagher
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • August 6, 1971
    ...a law. Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1910); United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). It is evident to this Court that applying such a standard to the instant case compels the conclus......
  • 432 F.Supp. 707 (W.D.La. 1977), Civ. A. 761010, Jackson v. Walker
    • United States
    • Federal Cases United States District Courts 5th Circuit Western District of Louisiana
    • September 30, 1977
    ...for the original one, thus subjecting him to a significantly increased potential period of incarceration.6 Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d "Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's tw......
  • 438 F.2d 786 (4th Cir. 1970), 13757, Ralph v. Warden, Maryland Penitentiary
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • December 11, 1970
    ...D.C.Code Ann. § 22-2801 (1970). The legislative history indicates that the background for the amendment is United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1969), which held the death penalty provision in the federal kidnapping law was unconstitutional because it tende......
  • 648 F.3d 1235 (11th Cir. 2011), 11-11021, Florida ex rel. Atty. Gen. v. United States Dept. of Health and Human Services
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • August 12, 2011
    ...ultimate determination of severability will rarely turn on the presence or absence of such a clause." United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968). Rather, " Congress' silence is just that— silence— and does not raise a presum......
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1081 cases
  • 337 F.Supp. 626 (D.Minn. 1971), 4-70-Civ. 399, Carter v. Gallagher
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Minnesota
    • August 6, 1971
    ...a law. Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1910); United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). It is evident to this Court that applying such a standard to the instant case compels the conclus......
  • 432 F.Supp. 707 (W.D.La. 1977), Civ. A. 761010, Jackson v. Walker
    • United States
    • Federal Cases United States District Courts 5th Circuit Western District of Louisiana
    • September 30, 1977
    ...for the original one, thus subjecting him to a significantly increased potential period of incarceration.6 Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d "Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's tw......
  • 438 F.2d 786 (4th Cir. 1970), 13757, Ralph v. Warden, Maryland Penitentiary
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • December 11, 1970
    ...D.C.Code Ann. § 22-2801 (1970). The legislative history indicates that the background for the amendment is United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1969), which held the death penalty provision in the federal kidnapping law was unconstitutional because it tende......
  • 648 F.3d 1235 (11th Cir. 2011), 11-11021, Florida ex rel. Atty. Gen. v. United States Dept. of Health and Human Services
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • August 12, 2011
    ...ultimate determination of severability will rarely turn on the presence or absence of such a clause." United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968). Rather, " Congress' silence is just that— silence— and does not raise a presum......
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1 firm's commentaries
  • Florida Real Property & Business Litigation Report, Volume 13, Issue 28
    • United States
    • JD Supra United States
    • July 14, 2020
    ...J. the Court stated that the “law as originally enacted in 1932 contained no capital punishment provision.” United States v. Jackson, 390 U. S. 570, 586 (1968). And when Congress amended the Act in 1934 to add the death penalty, “the stat-ute was left substantially unchanged in every other ......
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  • Punishing protestations of innocence: denying responsibility and its consequences.
    • United States
    • American Criminal Law Review Vol. 37 Nbr. 4, September 2000
    • September 22, 2000
    ...to trial from additional time in prison to the forfeiture of the defendant's life. This is what occurred in Jackson v. United States, 390 U.S. 570 (1968), and the case has never been formally overruled. Prosecutors can do this in individual cases without affronting the Constitution. See Bor......
  • Judges as framers of plea bargaining.
    • United States
    • Stanford Law & Policy Review Vol. 26 Nbr. 1, January - January 2015
    • January 1, 2015
    ...right, or promise leniency to a defendant for refraining from the exercise of that right" (citing United States v. Jackson, 390 U.S. 570 (1968))); People v. Ellis, 658 N.W.2d 142, 143 (Mich. 2003) ("[T]hat the practice that appears to have been utilized by the trial court in this ......
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    • University of Pennsylvania Law Review Vol. 154 Nbr. 3, January 2006
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    ...Drugs Import and Export Act was unconstitutional because it violated the Fifth Amendment). (168) See, e.g., United States v. Jackson, 390 U.S. 570, 582 (1968) ("Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic c......
  • Administrative severability clauses.
    • United States
    • Yale Law Journal Vol. 124 Nbr. 7, May - May 2015
    • May 1, 2015
    ...468 U.S. 641, 653 (1984); INS v. Chadha, 462 U.S. 919, 931-32 (1983); Buckley v. Valeo, 424 U.S. 1, 108 (1976); United States v. Jackson, 390 U.S. 570, 585 (1968); Champlin Ref. Co. v. Corp. Comm'n of Oklahoma, 286 U.S. 210, 234 (1932). (19.) Alaska Airlines, 480 U.S. at 680. (20.) Chadha, ......
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2 provisions
  • Minimum Internal Control Standards
    • United States
    • Federal Register June 01, 2012
    • June 1, 2012
    ...of such a clause.'' Community for Creative Non-violence v. Turner, 893 F. 2d 1387 (D.C. Cir. 1990), citing United States v. Jackson, 390 U.S. 570, 585 n. 27 The Commission declines to include a severability clause in this regulation because it believes that the regulations are not so intert......
  • Minimum Internal Control Standards
    • United States
    • Federal Register September 21, 2012
    • September 21, 2012
    ...of such a clause.'' Community for Creative Non-violence v. Turner, 893 F. 2d 1387 (D.C. Cir. 1990), citing United States v. Jackson, 390 U.S. 570, 585 n. 27 (1968). Again, the Commission declines to include a severability clause in this regulation because it believes that the regulations ar......