438 F.2d 786 (4th Cir. 1970), 13757, Ralph v. Warden, Maryland Penitentiary

Docket Nº:13757.
Citation:438 F.2d 786
Party Name:William RALPH, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
Case Date:December 11, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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438 F.2d 786 (4th Cir. 1970)

William RALPH, Appellant,

v.

WARDEN, MARYLAND PENITENTIARY, Appellee.

No. 13757.

United States Court of Appeals, Fourth Circuit.

December 11, 1970

Argued May 8, 1970.

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Edward L. Genn, Washington, D.C. (court-assigned) for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen. of Md., (Francis B. Burch, Atty. Gen. of Md., and Edward F. Borgerding, Asst. Atty. Gen., on brief) for appellee.

Anthony G. Amsterdam, Stanford, Cal., (Jack Greenberg, James M. Nabrit, III, Michael Meltsner and Jack Himmelstein, New York City, on brief) for the NAACP Legal Defense and Education Fund, Inc., and The National Office for the Rights of the Indigent, amici curiae.

Before HAYNSWORTH, Chief Judge, SOBELOFF, and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

William Ralph, convicted of rape in 1961 by a three-judge court sitting without a jury, was sentenced to death. He appeals the district court's dismissal of his habeas corpus petition in which he challenged the constitutionality of his death sentence and the adequacy of the trial court's finding that his confession was voluntary. We hold that the Eighth Amendment's prohibition against cruel and unusual punishment forbids Ralph's execution for rape since his victim's life was neither taken nor endangered, but we find no merit in Ralph's assignment of error concerning his confession.

I.

In 1964, Ralph claimed on appeal that the death penalty violated the Eighth Amendment. He had not made that contention in the district court, and we dismissed his argument for lack of sufficient precedential support. 1 Subsequently,

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when faced squarely with the contention that the death penalty is unconstitutionally disproportionate to the crime of rape, we noted in Snider v. Peyton, 356 F.2d 626, 627 (4th Cir. 1966):

'There is extreme variation in the degree of culpability of rapists. If one were sentenced to death upon conviction of rape of an adult under circumstances lacking great aggravation, the Supreme Court might well find it an appropriate case to consider the constitutional questions tendered to us. Even an inferior court such as ours might find the question not foreclosed to it if the actual and potential harm to the victim was relatively slight.'

The hypothetical case we envisioned in Snider is before us now. Armed with a tire iron, Ralph broke into the victim's home late at night. Threatening her and her young son, who was asleep in another room, with death if she did not submit, he forcibly committed rape and sodomy. The prosecuting witness was neither of tender years nor aged, but she was frail and unquestionably her fear was genuine. The physician who thoroughly examined her shortly after the crime testified that he found 'no outward evidence of injury or violence' nor any signs of unusual psychological trauma. Five days later Ralph was arrested in the District of Columbia for other offenses, and during the course of this investigation he confessed to the Maryland crime.

On these facts, it is appropriate to consider the constitutional implications of capital punishment for a rape that has neither taken nor endangered life. Cf. Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from a denial of certiorari). A critic of Mr. Justice Goldberg's dissent correctly noted: 'There is a sense in which life is always endangered by sexual attack, just as there is a sense in which it is always endangered by robbery, or by burglary of a dwelling, or by any physical assault.' 2 We use the term, however, in another sense-- that there are rational gradations of culpability that can be made on the basis of injury to the victim. For example, Nevada distinguishes for purposes of punishment rape which results in substantial bodily harm. Nev.Rev.Stat. § 200.363 (1968).

The State's principal argument-- other than lack of precedent favoring Ralph-- is that abolition of capital punishment presents a political question which only the legislative branch of the government can resolve. We cannot accept this contention. The fact that a Maryland statute 3 authorizes capital punishment for rape does not conclusively establish the punishment's constitutionality, for the Eighth Amendment is a limitation on both legislative and judicial

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action. 4 Maryland's legislature enacted penalties for rape that range from eighteen months' imprisonment to death. At issue, therefore, is the constitutionality of the trial court's selection of the death penalty from the alternatives allowed by the statute in a case where the convicted rapist has neither taken nor endangered life.

Admittedly the scope of the Eighth Amendment's prohibition of cruel and unusual punishment is difficult to define. 5 Supreme Court pronouncements on the constitutionality of the death penalty in general are scarce and inconclusive. The Court has never held directly that the death penalty is or is not cruel and unusual punishment. Only in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), did the Court hear argument on that issue, and then it reversed the case on procedural grounds. Cf. Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970). By implication the Court has approved the death penalty by stating that shooting and electrocution are not cruel and unusual forms of execution. Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1878); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Dicta in a few cases suggest that capital punishment is constitutionally permissible. See, e.g., Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 91 L.Ed. 422 (1947). Other courts have consistently held capital punishment does not violate the Eighth Amendment. See generally, Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1774 n. 6 and 7 (1970). One state court, however, has held that the death penalty for rape was so excessive under the circumstances that it violated the state's constitutional prohibition against cruel or unusual punishment. Calhoun v. State, 85 Tex.Cr.R. 496, 214 S.W. 335, 338 (1919).

The constitutionality of Ralph's punishment cannot rest on the subjective opinions of the judges who imposed the sentence or of the judges who must review the case. 6 On the contrary, his punishment must be tested objectively. Despite the lack of controlling precedent, we believe the Supreme Court has fashioned a workable objective standard for determining whether punishment is cruel and unusual. As early as 1892, Mr. Justice Field suggested that the prohibition of the Eighth Amendment is directed not only against torture or barbarism, 'but against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.' 7 Within twenty years

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the Court adopted Mr. Justice Field's view. In Weems v. United States, 217 U.S. 399, 30 S.Ct. 544 (1910), the Court held a section of the Philippine penal code imposed cruel and unusual punishment, because 'it is a precept of justice that punishment for crime should be graduated and proportional to offense.' 217 U.S. at 367, 30 S.Ct. at 549. The statute provided that falsification of a public record carried a minimum sentence of twelve years hard labor in ankle chains with subsequent civil disabilities. Not only was the punishment disproportionate relative to Philippine laws, it had no counterpart in any American jurisdiction. This contrast was more than evidence of differing legislative judgment; it condemned the punishment as cruel and unusual. Weighing the punishment by this method, the Court gave full effect to current concepts of proportionality, because the cruel and unusual punishment clause is 'progressive' and 'is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.' 217 U.S. at 378, 30 S.Ct. at 553. 8

Nearly fifty years after Weems, the Court held that denationalization for wartime desertion was cruel and unusual punishment. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590 (1958). In reaching this decision, the Court reiterated that 'the words of the (Eighth) Amendment are not precise, and that their scope is not static.' 356 U.S. at 100, 78 S.Ct. at 598. And it added, 'The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' 356 U.S. at 101, 78 S.Ct. at 598. The Court noted that precise distinctions between the words 'cruel' and 'unusual' generally have not been drawn, but it continued, 'If the word 'unusual' is to have any meaning apart from the word 'cruel' * * * the meaning should be the ordinary one, signifying something different from that which is generally done.' 356 U.S. at 100 n. 32, 78 S.Ct. at 598. Viewing denationalization in this light, the Court observed that only two countries in the world impose this penalty for desertion.

Trop also contains the most recent pertinent dictum on the death penalty. There the Court said, 356 U.S. at 99, 78 S.Ct. at 597:

'Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of the punishment-- and they are forceful-- the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.'

Accepting the Trop formulation, however, does not decide the case. Rather it points up the critical issue: Do we still live in a day when the death penalty is widely accepted for rape when the victim's life has not been taken or endangered...

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