United States v. Jackson

• Decision Date: 08 April 1968
• Docket Number: No. 85,85
• Parties: UNITED STATES, Appellant, v. Charles JACKSON et al
• Court: U.S. Supreme Court

390 U.S. 570

88 S.Ct. 1209

20 L.Ed.2d 138

UNITED STATES, Appellant,

v Charles JACKSON et al.

No. 85.

Argued Dec. 7, 1967.

Decided April 8, 1968.

Ralph Spritzer, Washington, D.C., for appellant.

Steven B. Duke, New Haven, Conn., for appellees.

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 other- wise * * * 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 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 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 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.

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 apparently have us assume either that trial judges have always agreed with jury recommendations of capital punishment under the statute—an unrealistic assumption at best⁸—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 without exception to jury recom- mendations 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 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 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: 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, 7 Cir., 97 F.2d 742, 748. Accord, Robinson v. United States, D.C., 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 innnocence. 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 recommen- dation 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 folllowed by a separate sentencing proceeding before a penalty jury. If the power to impanel such a jury had been recognized elsewhere in the federal system when Congress enacted the Federal Kidnaping Act, perhaps Congress' total silence on the subject could be viewed as a tacit incorporation of this sentencing practice into the new law. But the background against which Congress legislated was barren of any precedent for the sort of sentencing procedure we are told Congress impliedly authorized.

The Government nonetheless maintains that Congress' failure to provide for the infliction of the death penalty upon those who plead guilty or waive jury trial was no more than an oversight that the courts can and should correct. At least twice, Congress has expressly authorized the infliction of capital punishment upon defendants convicted without a jury,¹⁵ but when on the assumption that the failure of Congress to do so here was wholly inadvertent, it would hardly be the province of the courts to fashion a remedy. Any attmept to do so would be fraught with the gravest difficulties: If a special jury were convened to recommend a sentence, how...