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 1 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 Appendi:: 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 IH. 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. FRANKFURTER, J., dissenting-Appendix. 339 U.S. 458. See also N. C. Gen. Stat. Ann. §§ 122-84, 122-85 (Supp. 1949). (13) South Carolina. See State v. Bethune, 88 S. C. 401, 71 S. E. 29. See also S. C. Code Ann. § 6239 (1942). (14) Tennessee. See Jordan v. State, 124 Tenn. 81, 90-91, 135 S. W. 327, 329-30; Bonds v. State, 8 Tenn. 142. See also Tenn. Code Ann. §§ 4476, 4502 (Williams 1934). (15) Washington. See State v. Nordstrom, 21 Wash. 403, 58 P. 248; Grossi v. Long, 136 Wash. 133, 238 P. 983; State ex rel. Alfani v. Superior Court, 139 Wash. 125, 245 P. 929; State v. Davis, 6 Wash. 2d 696, 717, 108 P. 2d 641, 650-51. 5 C. States suspending execution of death penalty under statutory provisions for hearing before judge or jury upon initiation by designated prison or police official: " I. Official's refusal to initiate subject to judicial review: (16) Ark. Stat. Ann. §§ 41-109, 43-2622 (1947). See Howell v. Kincannon, 181 Ark. 58, 24 S. W. 2d 953; Howell v. Todhunter, 181 Ark. 250, 25 S. W. 2d 21; Shank v. Todhunter, 189 Ark. 881, 75 S. W. 2d 382. 5 See note 4 supra. Most of the States in Parts C and D require the official responsible for initiating the further inquiry to act if there is "good reason," or a like ground, for believing that the convicted man is insane... In some of these States the relevant statute provides that the official "may" act where "good reason" exists, thereby raising the familiar problem as to when "may," considering its function, means "must" in legislative English. Compare Howell v. Todhunter, 181 Ark. 250, 25 S. W. 2d 21. FRANKFURTER, J., dissenting-Appendix. (17) Cal. Pen. Code §§ 1367, 3701-03 (1949). See Phyle v. Duffy, 34 Cal. 2d 144, 208 P. 2d 668. II. Whether official's refusal to initiate inquiry is subject to review undefined by legislation or adjudication: (18) Idaho Code Ann. §§ 19-2709 to 192712, 19-3301 (1948). (19) Ky. Rev. Stat. § 431.240 (1948). See Ky. Codes, Crim. Prac. §§ 295-96 (1948); Barrett v. Commonwealth, 202 Ky. 153, 259 S. W. 25; Stucker v. Commonwealth, 261 Ky. 618, 88 S. W. 2d 280; Murrell v. Commonwealth, 291 Ky. 65, 163 S. W. 2d 1. (20) Mo. Rev. Stat. Ann. §§ 4192-94 (1939). (21) Mont. Rev. Codes Ann. §§ 94-8009 to 94-8012 (1947). (22) Nev. Comp. Laws Ann. §§ 11192.01 to 11192.06 (Supp. 1945). (23) N. M. Stat. Ann. §§ 42-1404 to 421407 (1941). (24) Ohio Gen. Code Ann. §§ 13456-8, (25) Okla. Stat. Ann. tit. 22, §§ 1005-08 |