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MARVIN MANDEL, Governor 3797
clear requirement for pretrial notification that the
death penalty will be sought and the potential
uncertainties surrounding the degree of specificity
required of the jury in giving its recommendation.
While, perhaps, no single one of these problems (or the
other matters discussed herein) are of sufficient concern
to cause the bill to be vetoed, the cumulative effect is
such that we can safely predict an extended period of
uncertainty and litigation prior to the resolution of
these questions by the Court of Appeals. This will not
only affect the ability of the State to seek and obtain
the death penalty in individual cases but may well
effectively diminish or postpone the imposition and
carrying out of the death sentence to a point where the
sharp comments of Mr. Justice White in his concurring
opinion in Furman v. Georgia, 408 D.S. 238, 311-12
(1972), could come back to haunt us:
"...[T]he death penalty could so seldom be imposed
that it would cease to be a credible deterrent or
measurably to contribute to any other end of
punishment in the criminal justice system.....But
when imposition of the penalty reaches a certain
degree of infrequency, it would be very doubtful
that any existing general need for retribution would
be measurably satisfied. Nor could it be said with
confidence that society's need for specific
deterrence justifies death for so few when for so
many in like circumstances life imprisonment or
shorter prison terms are judged sufficient, or that
community values are measurably reinforced by
authorizing a penalty so rarely invoked."
For the aforegoing reasons we suggest that you might
want to give serious consideration to vetoing Senate Bill
106, albeit with the expectation that a statute patterned
after it, which is both facially constitutional and more
precise than the one now before you, can be considered
and enacted at next year's session. Alternatively,
should you determine to sign Senate Bill 106 into law
notwithstanding the problems discussed herein, we would
strongly urge that the General Assembly give prompt and
serious consideration to the enactment of amendatory
legislation at its next session.
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Very truly yours,
Francis B. Burch
Attorney General
George A. Nilson
Deputy Attorney General
Clarence W. Sharp
Assistant Attorney General
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