CRS-33 closes the possibility that a prisoner will commit further crimes whereas life imprisonment does not. Concerning public opinion, Mr. Justice Stewart in Gregg concluded, primarily on the basis that 35 legislatures have recently enacted statutes that provide for the death penalty for at least some crimes, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. Even the Congress of the United States, in the Antihijacking Act of 1974, enacted a statute which provides for the death penalty. Additionally, the jury is also a significant and reliable objective index of contemporary values because it is so directly involved, and actions of juries in many States since Furman are fully consistent with legislative judgments as to the continued utility and necessity of capital punishment in appropriate cases. In view of the severe impact which assassination of the President has upon our society, and the extreme need for an operative deterrent in this area, it would seem that continuation of the death penalty for this offense would be defensible. Murl Larkin บ. R WASHINGTON, D.C. 20540 THE LIBRARY OF CONGRESS Congressional Research Service THE BODY OF AN ASSASSINATED PRESIDENT OF THE UNITED STATES: Following the infliction of mortal gunshot wounds in Dallas, Texas on November 22, 1963, President Kennedy was taken to Parkland Memorial Hospital where he received treatment from a team of physicians. Efforts to save him being of no avail, he was pronounced dead at 1 p.m. Soon thereafter the decision was made that the President's body should accompany Mrs. Kennedy and Vice President Johnson to Love Field for immediate flight back to Washington, D.C. The removal of the body is described in the Report of the President's Commission on the Assassination of President John F. Kennedy (U.S. Government Printing Office, Washington: 1964): While the team of doctors at Parkland Hospital tried desperately to save the life of President Kennedy, Mrs. Kennedy alternated between watching them and waiting outside. After the President was pronounced dead, O'Donnell tried to pursuade Mrs. Kennedy to leave the area, but she refused. She said that she intended to stay with her husband. A casket was obtained and the President's body was prepared for removal. Before the body could be taken from the hospital, two Dallas officials informed members of the President's staff that the body could not be removed from the city until an autopsy was performed. Despite the protests of these officials, the casket was wheeled out of the hospital, placed in an ambulance, and transported to the airport shortly after 2 p.m. At approximately 2:15 p.m. the casket was loaded, with some difficulty because of the narrow airplane door, onto the rear of the Presidential plane where seats had been CRS-2 removed to make room. Concerned that the local In his testimony before the Warren Commission, Kenneth P. O'Donnell, special assistant to the President, described the difficulties encountered with local Dallas officials in obtaining permission to depart with the body: Mr. O'Donnell. We were then all prepared to go. We the casket was brought out about halfway, and Mr. Specter. [Assistant Counsel for the Com- Mr. O'Donnell. I don't recollect who he was. - - I don't But he took this position. We asked We waited about 10 or 15 minutes, and Dr. Burkley and So I was getting more concerned about Mrs. Kennedy's Then a gentleman did arrive who has later been CRS-3 that upon his arrival that he had the power to permit - Mr. Specter. Who was it, Mr. O'Donnell, if you My recollection is it was indicated to us that the Hearings Before the President's Commission on the Assassi- It is the purpose of this discussion to examine state and common law to determine which laws had application to the situation described above by the Report and Mr. O'Donnell - both as to requirements which may not have been satisfied and as to the question of ownership and control of the corpse itself. The United States Code makes no specific provision for the handling or control of the body of a deceased President, whether his death resulted from assassination or natural causes. It may safely be assumed that the laws of the fifty states are also silent on this question. However, the common law as well as statutory measures provide guidance for proper determination of ownership and disposition of deceased persons generally. CRS-4 Such provisions may be presumed to have application in the case of a chief executive as well as ordinary citizens. After examining common law principles of ownership of dead bodies, Texas cases and statutes in force in 1963 will be addressed to determine which laws may have been transgressed in the course of the hasty shipment of the body to Washington. It should be borne in mind that only state statutes are available for examination in this report that is, local ordinances, health department regulations, and hospital procedures are not discussed. - COMMON LAW The early common law of England recognized no property rights in the body of a deceased person. jurisdiction over the affairs of the decedent. "Although this doctrine has found some support in early American cases, the established rule is that notwithstanding there can be no property right in a dead body in the commercial sense, there is a quasi-property right in dead bodies vesting in the nearest relatives of the deceased and arising out of their duty to bury their dead. This right, which corresponds in extent to the duty out of which it arises, includes the right to possession, and custody of the body for burial, the right to have it remain in its final resting place so the memory of the deceased may receive the respect of the living, or to remove the body to a proper place, and the right to maintain an action to recover damages for any outrage, indignity, or injury to the body of the deceased. "1 22 Am. Jur. Dead Bodies§4 (1965). The primary and paramount right to possession of a body and control over its burial lies with the surviving spouse if there is one such spouse to have such right |