Com. v. O'Neal

Decision Date22 December 1975
Citation339 N.E.2d 676,369 Mass. 242
PartiesCOMMONWEALTH v. Robert E. O'NEAL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

William P. Homans, Jr., Boston, for defendant.

D. Lloyd Macdonald, Asst. Dist. Atty., for the Com.

Raymond H. Young, Edward J. Barshak, Robert Haydock, Jr., Manuel Katz, Robert P. Moncreiff, and Terry P. Segal, Boston, for the Boston Bar Ass'n, amicus curiae, submitted a brief.

Malvine Nathanson, Boston, for the Massachusetts Defenders Committee, amicus curiae, submitted a brief.

Laurence H. Tribe and John Reinstein, Cambridge, for the Civil Liberties Union of Mass., amicus curiae, submitted a brief.

Lawrence D. Shubow, Clyde D. Bergstresser, Morris S. Shubow, and Jeremy A. Stahlin, Boston, for the Mass., Council for the Abolition of the Death Penalty & another, amici curiae, submitted a brief.

Joseph P. Busch, Dist. Atty., Los Angeles, Cal. (Preston Trimble, Norman, Okl., Dist. Atty., Patrick F. Healy, Chicago, Ill., Harry B. Sondheim, Arnold T. Guminski, Los Angeles, Cal., and Daniel L. Bershin, San Diego, Cal., with him) for the National District Attorneys Association, as amicus curiae, submitted a brief.

Paul T. Smith, Boston, Mass., John Ackerman, Houston, Tex., and Melvin B. Lewis, Chicago, Ill., for National Association

of Criminal Defense Lawyers, as amicus curiae, submitted a brief. Paul Raymond Stone of Charleston, West Virginia, amicus Curiae, Submitted a brief.



Pursuant to our order in Commonwealth v. O'Neal, --- Mass. ---, --- - --- a, 327 N.E.2d 662 (1975), the parties and amici have presented arguments as to whether the State has a compelling interest in retention of the death penalty. We now address the issue whether the mandatory death penalty for murder committed in the course of rape or attempted rape, G.L. c. 265, § 2, is constitutional. For the reasons stated in the concurring opinions which follow, we hold that the mandatory death penalty for murder committed in the course of rape or attempted rape violates the Massachusetts Declaration of Rights and is unconstitutional. Accordingly, the judgment on the murder indictment, in so far as it imposes the death sentence, is reversed, and the case is remanded to the Superior Court where the defendant is to be resentenced to imprisonment for life. See Commonwealth v. LeBlanc, 364 Mass. 1, 14--15, 299 N.E.2d 719 (1973); COMMONWEALTH V. CASSESSO, --- MASS. --- , 330 N.E.2D 209 (1975)B. The other judgments appealed from are affirmed.

So ordered.

TAURO, C.J., and HENNESSEY, WILKINS and KAPLAN, JJ., concur in the order of the court.

BRAUCHER, J., concurs in the result only.

REARDON and QUIRICO, JJ., dissent.

TAURO, Chief Justice (concurring).

This case is before us again after further briefing and argument by the parties and amici on the question whether the mandatory death sentence for murder committed in the course of rape or attempted rape is constitutional. A majority of the court hold that it is not.

The facts are set out in our earlier opinion. Commonwealth v. O'Neal, --- Mass. ---, --- - --- a, 327 N.E.2d 662 (1975) (O'Neal I). Briefly, the defendant was convicted of murder committed in the course of rape and was sentenced to death. In his appeal, he challenged both his conviction and his sentence. We affirmed the judgment of conviction in O'Neal I, and I limit my discussion here to the validity of the sentence imposed.

1. In determining whether the mandatory death penalty is constitutional in this context, I divide my analysis into two mutually supportive and interlocking parts: one relying on due process concepts derived from arts. 1, 10 and 12 of the Massachusetts Declaration of Rights, the other on the 'cruel or unusual punishments' clause of art. 26 of the Massachusetts Declaration of Rights. 1 This dual analysis is possible here where these two concepts are 'so close as to merge' because the 'due process argument reiterates what is essentially the primary purpose of the Cruel and Unusual Punishments Clause . . .--i.e., punishment may not be more severe than is necessary to serve the legitimate interests of the State.' Furman v. Georgia, 408 U.S. 238, 359--360, 92 S.Ct. 2726, 2788, 33 L.Ed.2d 346 fn. 141 (1972) (Marshall, J., concurring).

A. Due Process.

In order to be sustained against a due process challenge, a statute affecting fundamental rights must be shown to serve a compelling governmental interest. Commonwealth v. Henry's Drywall Co. Inc., --- Mass. ---, --- - --- b, 320 N.E.2d 911 (1974); Selectmen of Framingham v. Civil Serv. Commn., --- Mass. ---, --- c 321 N.E.2d 649 (1974). Cf. Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). 'The key words (necessary to promote a compelling governmental interest) emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes.' Dunn v. Blumstein, 405 U.S. 330, 342--343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972). See Opinion of the Justices, 363 Mass. 909, 916--917, 298 N.E.2d 829 (1973). Additionally, it must be shown that the statutory scheme is the least onerous means of reaching the compelling goal. Roe v. Wade, supra. 'Thus, if there is an alternative means by which the State can fulfil its purpose, having less adverse effects on fundamental constitutional rights, the State is required to use the less restrictive, more precisely adapted means.' Commonwealth v. O'Neal, --- Mass. ---, --- - ---, d 327 N.E.2d 662 (1975), citing Fiorentino v. Probate Court, --- Mass. ---, ---, e 310 N.E.2d 112 (1974).

There is little doubt that life is a fundamental right 'explicitly or implicitly guaranteed by the Constitution.' San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 33--34, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973). I stated in Commonwealth v. O'Neal, supra, --- Mass. at --, f 327 N.E.2d at 668, that the ". . . right to live . . . is the natural right of every man" (quoting from Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death, 131, 221 (1969)), encompassing as it does 'the right to have rights.' Trop v. Dulles, 356 U.S. 86, 102, 78 S.Ct. 590, 2 L.Ed.2d 596 (1958). See comment, The Death Penalty Cases, 56 Cal.L.Rev. 1268, 1354 (1968). Life is 'the greatest of all goods,' Beccaria, On Crimes and Punishments, 45 (Trans. ed. 1963), and I believe that capital punishment, which involves the extinction of life, the most fundamental of all rights, 'triggers strict scrutiny under the compelling State interest and least restrictive means test. 2 Thus, in order for the State to allow the taking of life by legislative mandate it must demonstrate that such action is the least restrictive means toward furtherance of a compelling governmental end' (footnote added). Commonwealth v. O'Neal, supra, --- Mass. at ---, g 327 N.E.2d at 668.

B. Cruel or Unusual Punishment. 3

The compelling State interest analysis noted above is equally relevant under art. 26. The words 'cruel or unusual' are words of art, and, as such, they do not have the same significance they would have in everyday parlance. Their meaning in a constitutional sense must be determined by this court. 4

Of necessity, every punishment contains an element of cruelty. The convicted defendant who is deprived of freedom or property will feel that society's exactions bind him cruelly. However, society tolerates a degree of cruelty when such cruelty is necessary to serve its legitimate needs. 5 It is only where the level of cruelty is disproportionate to the magnitude of the crime, and as a consequence does not serve the needs of society, that a court will find the punishment to be too cruel and, thus, 'cruel' within the meaning of art. 26. 6 See McDonald v. Commonwealth, 173 Mass. 322, 328, 53 N.E. 874 (1899); Commonwealth v. Moore, 359 Mass. 509, 515, 269 N.E.2d 636 (1971); Commonwealth v. Morrow, 363 Mass. 601, 610--611, 296 N.E.2d 468 (1973). See also Weems v. United States, 217 U.S. 349, 368, 381, 30 S.Ct. 544, 54 L.Ed. 793 (1910); 7 Robinson v. California, 370 U.S. 660, 666--667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

In ordinary circumstances, the Legislature is given broad discretion to determine what the appropriate punishment is for a given offense. Harding v. Commonwealth, 283 Mass. 369, 374--375, 186 N.E. 556 (1933). Commonwealth v. Morrow, supra. See Robinson v. California, supra, 370 U.S. at 665, 82 S.Ct. 1417. Where restraints on liberty or fines are involved, a heavy burden is on the sentenced defendant to establish that the punishment is disproportionate to the offense for which he was convicted. If he fails to demonstrate such disproportion, the punishment will not be characterized as cruel in a constitutional sense.

Capital punishment, involving as it does the taking of life, is qualitatively different from other punishments. See Furman v. Georgia, 408 U.S. 238, 287, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). 'The penalty of death differs from all other forms of criminal punishment, not in degree but in kind.' Furman v. Georgia, supra, at 306, 92 S.Ct. at 2760 (Stewart, J., concurring). '(I)n assessing the cruelty of capital punishment . . . we are not concerned only with the 'mere extinguishment of life' . . . (In re Kemmler (1890) 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519) . . . but with the total impact of capital punishment, from the pronouncement of the judgment of death through the execution itself, both on the individual and on the society which sanctions its use.' 8 People v. Anderson, 6 Cal.3d 628, 646, 100 Cal.Rptr. 152, 164, 493 P.2d 880, 892 (1972), cert. den. sub nom. California v. Anderson, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972).

While the actual physical and psychological pain of execution itself is, of course, immeasurable,...

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