Potter Stewart

“ It is one thing to fill a minor gap in a statute-to extrapolate from its general design details that were inadvertently omitted. It is quite another thing to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality. We recognize that trial judges sitting in federal kidnaping cases have on occasion chosen the latter course, attempting to fashion on an ad hoc basis the ground rules for penalty proceedings before a jury. ”

“ The Government assumes that a judge who would accept the death penalty recommendation appended to a jury verdict of guilt is a judge who would exercise his discretionary power to convene a penalty jury if the defendant were to plead guilty or submit to a bench trial. But the mere fact that a judge would defer to the jury's recommendation hardly implies that he would take the extraordinary step of convening a penalty jury after accepting a plea of guilty or approving a waiver of jury trial. ”

“ It is wrong as a matter of fact, for the length of imprisonment imposed under the Act can obviously be made to reflect the kidnaper's treatment of his victim. And it is wrong as a matter of logic, for nothing could more completely obliterate the distinction between 'the penalties applicable to those who do and those who do not harm or kill their victims' than the total invalidation of all the penalties provided by the Federal Kidnaping Act-the precise result sought by the appellees. ”

“ And in a statute prohibiting the destruction of aircraft, Congress provided that violators whose conduct causes death 'shall be subject * * * to the death penalty * * * if the jury shall in its discretion so direct, or, in the case of a plea of guilty, or a plea of not guilty where the defendant has waived a trial by jury, if the court in its discretion shall so order.' 70 Stat. ”

“ 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. ”

“ Under such circumstances, it is quite inconceivable that the Congress which decided to authorize capital punishment in aggravated kidnaping cases would have chosen to discard the entire statute if informed that it could not include the death penalty clause now before us. [28]
In this case it happens that history confirms what common sense alone would suggest: The law as originally enacted in 1932 contained no capital punishment provision. [29] A majority of the House had favored the death penalty but had yielded to opposition in the Senate as a matter of expediency. ”

“ If the relative novelty of penalty proceedings has thus impaired effective representation in jurisdictions where the contours of such proceedings have been fixed by statute, it seems clear that the difficulties for the defense would be even more formidable under the amorphous case-by-case system that the Government asks us to legitimize today. ”

“ Note, The California Penalty Trial, 52 Calif.L.Rev. 386 (1964) ; Note, The Two-Trial System in Capital Cases, 39 N.Y.U.L.Rev. 50 (1964) . See also Kuh, A Prosecutor Considers the Model Penal Code, 63 Col.L.Rev. 608, 615 (1963) . It is not surprising that courts confronted with such problems have concluded that their solution requires 'comprehensive legislative and not piecemeal judicial action.' State v. ”