Felix Frankfurter

“ 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.
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.
State legislation and judicial decisions concerning execution of death penalty where insanity supervenes after sentence. ”

“ The immediate question before us depends on the view one takes of the legal right of a State to execute a person become insane after sentence. If the Due Process Clause of the Fourteenth Amendment does not bar the State from infliction of the death sentence while such insanity persists, of course it need make no inquiry into the existence of supervening insanity. ”

“ 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 shoud be delayed. ”

“ In applying such a large, untechnical concept as 'due process,' the Court enforces those permanent and pervasive feelings of our society as to which there is compelling evidence of the kind relevant to judgments on social institutions. ”

“ The killing of an insane man under sentence, it needs to be repeated, is in our law not a matter of discretion. Not to kill such an insane man 'has its roots in our English common law heritage' no less deep than not to convict him without a hearing. ”

“ But precisely because the inquiry need not be open and may be made in camera, it must be fair in relation to the issue for determination. In the present state of the tentative and dubious knowledge 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. ”

“ If a man has gone insane, is he still himself? Is he still the man who was convicted? In any event 'were he of sound memory, he might allege somewhat' to save himself from doom. It is not an idle fancy that one under sentence of death ought not, by becoming non compos, be denied the means to 'allege somewhat' that might free him. Such an opportunity may save life, as the last minute applications to this Court from time to time and not always without success amply attest. ”

“ If taking life under such circumstances is forbidden by the Constitution, then it is not within the benevolent discretion of Georgia to determine how it will ascertain sanity. Georgia must afford the rudimentary safeguards for establishing the fact. If Georgia denies them she transgresses the substance of the limits that the Constitution places upon her. ”

“ 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. ”

“ That it offends our historic heritage to kill a man who has become insane while awaiting sentence cannot be gainsaid. This limitation on the power of the State to take life has been part of our law for centuries, recognized during periods of English history when feelings were more barbarous and men recoiled less from brutal action than we like to think is true of our time. Due process is itself 'a historical product,' Jackman v. ”

“ If the deeply rooted principle in our society against killing an insane man is to be respected, at least the minimum provision for assuring a fair application of that principle is inherent in the principle itself. And the minimum assurance that the life-and-death guess will be a truly informed guess requires respect for the basic ingredient of due process, namely, an opportunity to be allowed to substantiate a claim before it is rejected. ”

“ He should not be denied the opportunity to inform the mind of the tribunal-be it a Governor, a board or a judge-that has to decide between life and death, not as a matter of grace but on the basis of law. For if he be insane his life cannot be forfeit except in violation of the law of the land. ”

“ In the history of murder, the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon. The legal problems which such supervening insanity raises happily do not involve explorations of the pathological processes which give rise to the conflict between socalled legal and medical insanity. ”

“ 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 thse 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. ”

“ Of these, 4 give strong indications that execution of the death penalty is suspended upon insanity supervening after sentence, [4] 3 offer insufficient material even for inference, and 2 offer no relevant material. (Part F.)
We start with the fact that not a single State gives any indication of having uprooted the heritage of the common law which deemed it too barbarous to execute a man while insane. This brings us to the mode of establishing the crucial basis for the lawful killing by a State, namely, that it kill not an insane person. ”

“ However quaint some of these ancient authorities of our law may sound to our ears, the Twentieth Century has not so far progressed as to outmode their reasoning. We should not be less humane than were Englishmen in the centuries that preceded this Republic. ”

“ Nor are we dealing with the range of discretion vested in judges by penal laws carrying flexible instead of fixed penalties. See Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079. We are dealing with a restriction upon the States against taking life if a certain fact is established, to-wit, insanity, like unto other restrictions upon the State in taking liberty or property. ”