Petitioner in No. 203 was convicted of first-degree murder in
California, and was sentenced to death. The penalty was left to the
jury's absolute discretion, and punishment was determined in a
separate proceeding following the trial on the issue of guilt.
Petitioner in No. 204 was convicted of first-degree murder, and was
sentenced to death in Ohio, where the jury, which also had absolute
penalty discretion, determined guilt and penalty after a single
trial and in a single verdict. Certiorari was granted to consider
whether petitioners' rights were infringed by permitting the death
penalty without standards to govern its imposition, and in No. 204,
to consider the constitutionality of a single guilt and punishment
proceeding.
Held:
1. In light of history, experience, and the limitations of human
knowledge in establishing definitive standards, it is impossible to
say that leaving to the untrammeled discretion of the jury the
power to pronounce life or death in capital cases violates any
provision of the Constitution. Pp.
402 U. S.
196-208.
2. The Constitution does not prohibit the States from
considering that the compassionate purposes of jury sentencing in
capital cases are better served by having the issues of guilt and
punishment resolved in a single trial than by focusing the jury's
attention solely on punishment after guilt has been determined. Pp.
402 U. S.
208-222.
(a) Petitioner in No. 204 has failed to show that his unitary
trial violated the Constitution by forcing "the making of difficult
judgments" in his decision whether to remain silent on the issue of
guilt at the cost of surrendering his chance to plead his case on
the punishment issue.
Simmons v. United States,
390 U. S. 377,
distinguished. Pp.
402 U. S.
210-213.
(b) The policies of the privilege against self-incrimination are
not offended when a defendant in a capital case yields to the
pressure to testify on the issue of punishment at the risk of
damaging his case on guilt. Pp.
402 U. S.
213-217.
Page 402 U. S. 184
(c) Ohio does provide for the common law ritual of allocution,
but the State need not provide petitioner an opportunity to speak
to the jury free from any adverse consequence on the issue of
guilt. Pp.
402 U. S.
217-220.
No. 203,
70 Cal. 2d
770, 452 P.2d 650; and No. 204, 18 Ohio St.2d 182, 248 N.E.2d
614, affirmed.
HARLAN, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J.,
filed a separate opinion,
post, p.
402 U. S. 225.
DOUGLAS, J., filed an opinion dissenting in No. 204, in which
BRENNAN and MARSHALL, JJ., joined,
post, p.
402 U. S. 226.
BRENNAN, J., filed a dissenting opinion, ill which DOUGLAS and
MARSHALL, JJ., joined,
post, p.
402 U. S.
248.
Page 402 U. S. 185
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioners McGautha and Crampton were convicted of murder in
the first degree in the courts of California and Ohio respectively
and sentenced to death pursuant to the statutes of those States. In
each case, the decision whether the defendant should live or die
was left to the absolute discretion of the jury. In McGautha's
case, the jury, in accordance with California law, determined
punishment in a separate proceeding following the trial on the
issue of guilt. In Crampton's case, in accordance with Ohio law,
the jury determined guilt and punishment after a single trial and
in a single verdict. We granted certiorari in the McGautha case
limited to the question whether petitioner's constitutional rights
were infringed by permitting the jury to impose the death penalty
without any governing standards.
398 U. S. 936
(1970). We granted certiorari in the
Crampton case limited
to that same question and to the further question whether the
jury's imposition of the death sentence in the same proceeding and
verdict as determined the issue of guilt was constitutionally
permissible.
Ibid. [
Footnote 1] For the reasons
Page 402 U. S. 186
that follow, we find no constitutional infirmity in the
conviction of either petitioner, and we affirm in both cases.
I
It will put the constitutional issues in clearer focus to begin
by setting out the course which each trial took.
A. McGautha's Guilt Trial
McGautha and his codefendant Wilkinson were charged with
committing two armed robberies and a murder on February 14, 1967.
[
Footnote 2] In accordance with
California procedure in capital cases, the trial was in two stages,
a guilt stage and a punishment stage. [
Footnote 3] At the guilt trial, the
Page 402 U. S. 187
evidence tended to show that the defendants, armed with pistols,
entered the market of Mrs. Pon Lock early in the afternoon of the
murder. While Wilkinson kept a customer under guard, McGautha
trained his gun on Mrs. Lock and took almost $300. Roughly three
hours later, McGautha and Wilkinson held up another store, this one
owned by Mrs. Benjamin Smetana and operated by her with her
husband's assistance. While one defendant forcibly restrained a
customer, the other struck Mrs. Smetana on the head. A shot was
fired, fatally wounding Mr. Smetana. Wilkinson's former girlfriend
testified that, shortly after the robbery, McGautha told her he had
shot a man and showed her an empty cartridge in the cylinder of his
gun. Other evidence at the guilt stage was inconclusive on the
issue as to who fired the fatal shot. The jury found both
defendants guilty of two counts of armed robbery and one count of
first-degree murder as charged.
B. McGautha's Penalty Trial
At the penalty trial, which took place on the following day but
before the same jury, the State waived its opening, presented
evidence of McGautha's prior felony convictions and sentences,
see n 2,
supra, and then rested. Wilkinson testified in his own
behalf, relating his unhappy childhood in Mississippi as the son of
a white
Page 402 U. S. 188
father and a Negro mother, his honorable discharge from the Army
on the score of his low intelligence, his regular attendance at
church, and his good record for holding Jobs and supporting his
mother and siblings up to the time he was shot in the back in an
unprovoked assault by a street gang. Thereafter, he testified, he
had difficulty obtaining or holding employment. About a year later,
he fell in with McGautha and his companions, and when they found
themselves short of funds, one of the group suggested that they
"knock over somebody." This was the first time, Wilkinson said,
that he had ever had any thoughts of committing a robbery. He
admitted participating in the two robberies, but said he had not
known that the stores were to be held up until McGautha drew his
gun. He testified that it had been McGautha who struck Mrs. Smetana
and shot Mr. Smetana.
Wilkinson called several witnesses in his behalf. An undercover
narcotics agent testified that he had seen the murder weapon in
McGautha's possession and had seen McGautha demonstrating his quick
draw. A minister with whom Wilkinson had boarded testified to
Wilkinson's church attendance and good reputation. He also stated
that, before trial Wilkinson had expressed his horror at what had
happened and requested the minister's prayers on his behalf. A
former fellow employee testified that Wilkinson had a good
reputation and was honest and peaceable.
McGautha also testified in his own behalf at the penalty
hearing. He admitted that the murder weapon was his, but testified
that he and Wilkinson had traded guns, and that it was Wilkinson
who had struck Mrs. Smetana and killed her husband. McGautha
testified that he came from a broken home, and that he had been
wounded during World War II. He related his employment record,
medical condition, and remorse. He admitted his criminal record,
see n 2,
supra, but testified that he had
Page 402 U. S. 189
been a mere accomplice in two of those robberies, and that his
prior conviction for murder had resulted from a slaying in
self-defense. McGautha also admitted to a 1964 guilty plea to a
charge of carrying a concealed weapon. He called no witnesses in
his behalf.
The jury was instructed in the following language:
"in this part of the trial, the law does not forbid you from
being influenced by pity for the defendants, and you may be
governed by mere sentiment and sympathy for the defendants in
arriving at a proper penalty in this case; however, the law does
forbid you from being governed by mere conjecture, prejudice,
public opinion or public feeling."
"The defendants in this case have been found guilty of the
offense of murder in the first degree, and it is now your duty to
determine which of the penalties provided by law should be imposed
on each defendant for that offense. Now, in arriving at this
determination, you should consider all of the evidence received
here in court presented by the People and defendants throughout the
trial before this jury. You may also consider all of the evidence
of the circumstances surrounding the crime, of each defendant's
background and history, and of the facts in aggravation or
mitigation of the penalty which have been received here in court.
However, it is not essential to your decision that you find
mitigating circumstances, on the one hand, or evidence in
aggravation of the offense, on the other hand."
"
* * * *"
". . . Notwithstanding facts, if any, proved in mitigation or
aggravation, in determining which punishment shall be inflicted,
you are entirely free to act according to your own judgment,
conscience,
Page 402 U. S. 190
and absolute discretion. That verdict must express the
individual opinion of each juror."
"Now, beyond prescribing the two alternative penalties, the law
itself provides no standard for the guidance of the jury in the
selection of the penalty, but, rather, commits the whole matter of
determining which of the two penalties shall be fixed to the
judgment, conscience, and absolute discretion of the jury. In the
determination of that matter, if the jury does agree, it must be
unanimous as to which of the two penalties is imposed."
App. 221-223. [
Footnote
4]
Page 402 U. S. 191
Deliberations began in the early afternoon of August 24, 1967.
In response to jury requests, the testimony of Mrs. Smetana and of
three other witnesses was reread. Late in the afternoon of August
25, the jury returned verdicts fixing Wilkinson's punishment at
life imprisonment and McGautha's punishment at death.
The trial judge ordered a probation report on McGautha. Having
received it, he overruled McGautha's motions for a new trial or for
a modification of the penalty verdict, and pronounced the death
sentence. [
Footnote 5]
McGautha's conviction was unanimously affirmed by the California
Supreme Court.
70 Cal. 2d
770, 452 P.2d 650 (1969). His contention that standardless jury
sentencing is unconstitutional was rejected on the authority of an
earlier case,
In re Anderson, 69 Cal. 2d
613, 447 P.2d 117 (1968), in which that court had divided
narrowly on the issue.
C. Crampton's Trial
Petitioner Crampton was indicted for the murder of his wife,
Wilma Jean, purposely and with premeditated malice. He pleaded not
guilty and not guilty by reason of insanity. [
Footnote 6] In accordance with the Ohio practice
which
Page 402 U. S. 192
he challenges, his guilt and punishment were determined in a
single unitary proceeding.
At trial, the State's case was as follows. The Cramptons had
been married about four months at the time of the murder. Two
months before the slaying, Crampton was allowed to leave the state
mental hospital, where he was undergoing observation and treatment
for alcoholism and drug addiction, to attend the funeral of his
wife's father. On this occasion, he stole a knife from the house of
his late father-in-law and ran away. He called the house several
times and talked to his wife, greatly upsetting her. When she
pleaded with him to return to the hospital and stated that she
would have to call the police, he threatened to kill her if she
did. Wilma and her brother nevertheless did notify the authorities,
who picked Crampton up later the same evening. There was testimony
of other threats Crampton had made on his wife's life, and it was
revealed that, about 10 days before the murder, Mrs. Crampton's
fear of her husband had caused her to request and receive police
protection.
The State's main witness to the facts surrounding the murder was
one William Collins, a convicted felon who had first met Crampton
when they, along with Crampton's brother Jack, were in the State
Prison in Michigan. On January 14, 1967, three days before the
murder, Collins and Crampton met at Jack Crampton's house in
Pontiac, Michigan. During those three days, Collins and Crampton
roamed the upper Midwest, committing a series of petty thefts and
obtaining amphetamines, to which both were addicted, by theft and
forged prescriptions.
About nine o'clock on the evening of January 16, Crampton called
his wife from St. Joseph, Michigan; after the call, he told Collins
that he had to get back to Toledo, where his wife was, as fast as
possible. They arrived in the early morning hours of January 17.
After
Page 402 U. S. 193
Crampton had stopped by his wife's home and sent Collins to the
door with a purported message for her, the two went to the home of
Crampton's mother-in law, which Crampton knew to be empty, to
obtain some guns. They broke in and stole a rifle, ammunition, and
some handguns, including the .45 automatic which was later
identified as the murder weapon. Crampton kept this gun with him.
He indicated to Collins that he believed his wife was having an
affair. He fired the .45 in the air, with a remark to the effect
that "a slug of that type would do quite a bit of damage," and said
that, if he found his wife with the man he suspected, he would kill
them both.
That evening, Crampton called his wife's home and learned that
she was present. He quickly drove out to the house, and told
Collins,
"Leave me off right here in front of the house, and you take the
car and go back to the parking lot, and if I'm not there by six
o'clock in the morning, you're on your own."
About 11:20 that evening, Crampton was arrested for driving a
stolen car. The murder weapon was found between the seats of the
car.
Mrs. Crampton's body was found the next morning. She had been
shot in the face at close range while she was using the toilet. A
.45-caliber shell casing was near the body. A jacket which Crampton
had stolen a few days earlier was found in the living room. The
coroner, who examined the body at 11:30 p.m. on January 18,
testified that, in his opinion, death had occurred 24 hours
earlier, plus or minus four hours.
The defense called Crampton's mother as a witness. She testified
about Crampton's background, including a serious concussion
received at age nine, his good grades in junior high school, his
stepfather's jealousy of him, his leaving home at age 14 to live
with various relatives, his enlistment in the Navy at age 17, his
marriage to a girl named Sandra, the birth of a son, a divorce,
then a
Page 402 U. S. 194
remarriage to Sandra and another divorce shortly after, and
finally his marriage to Wilma. Mrs. Crampton also testified to
Crampton's drug addiction, to his brushes with the law as a youth
and as an adult, and to his undesirable discharge from the
Navy.
Crampton's attorney also introduced into evidence a series of
hospital reports which contained further information on Crampton's
background, including his criminal record, which was substantial,
his court-martial conviction and undesirable discharge from the
Navy, and the absence of any significant employment record. They
also contained his claim that the shooting was accidental; that he
had been gathering up guns around the house and had just removed
the clip from an automatic when his wife asked to see it; that as
he handed it to her it went off accidentally and killed her. All
the reports concluded that Crampton was sane in both the legal and
the medical senses. He was diagnosed as having a sociopathic
personality disorder, along with alcohol and drug addiction.
Crampton himself did not testify.
The jury was instructed that:
"If you find the defendant guilty of murder in the first degree,
the punishment is death, unless you recommend mercy, in which event
the punishment is imprisonment in the penitentiary during
life."
App. 70. The jury was given no other instructions specifically
addressed to the decision whether to recommend mercy, but was told
in connection with its verdict generally:
"You must not be influenced by any consideration of sympathy or
prejudice. It is your duty to carefully weigh the evidence, to
decide all disputed questions of fact, to apply the instructions of
the court to your findings and to render your verdict accordingly.
In fulfilling your duty, your efforts must be to arrive at a just
verdict. "
Page 402 U. S. 195
"Consider all the evidence and make your finding with
intelligence and impartiality, and without bias, sympathy, or
prejudice, so that the State of Ohio and the defendant will feel
that their case was fairly and impartially tried."
App. 71-72. The jury deliberated for over four hours, and
returned a verdict of guilty, with no recommendation for mercy.
Sentence was imposed about two weeks later. As Ohio law
requires, Ohio Rev.Code Ann. § 2947.05 (1954), Crampton was
informed of the verdict and asked whether he had anything to say as
to why judgment should not be pronounced against him. He
replied:
"Please the Court, I don't believe I received a fair and
impartial trial because the jury was prejudiced by my past record
and the fact I had been a drug addict, and I just believe I didn't
receive a fair and impartial trial. That's all I have to say."
This statement was found insufficient to justify not pronouncing
sentence upon him, and the court-imposed the death sentence.
[
Footnote 7] Crampton's appeals
through the Ohio courts were unavailing. 18 Ohio St.2d 182, 248
N.E.2d 614 (1969).
II
Before proceeding to a consideration of the issues before us, it
is important to recognize and underscore the nature of our
responsibilities in judging them. Our function is not to impose on
the States,
ex cathedra, what might seem to us a better
system for dealing with capital cases. Rather, it is to decide
whether the Federal Constitution proscribes the present procedures
of these two
Page 402 U. S. 196
States in such cases. In assessing the validity of the
conclusions reached in this opinion, that basic factor should be
kept constantly in mind.
III
We consider first McGautha's and Crampton's common claim: that
the absence of standards to guide the jury's discretion on the
punishment issue is constitutionally intolerable. To fit their
arguments within a constitutional frame of reference, petitioners
contend that to leave the jury completely at large to impose or
withhold the death penalty as it sees fit is fundamentally lawless,
and therefore violates the basic command of the Fourteenth
Amendment that no State shall deprive a person of his life without
due process of law. Despite the undeniable surface appeal of the
proposition, we conclude that the courts below correctly rejected
it. [
Footnote 8]
Page 402 U. S. 197
A
In order to see petitioners' claim in perspective, it is useful
to call to mind the salient features of the history of capital
punishment for homicides under the common law in England, and
subsequent statutory developments in this country. This history
reveals continual efforts, uniformly unsuccessful, to identify
before the fact those homicides for which the slayer should die.
Thus, the laws of Alfred, echoing Exodus 21:12-13, provided:
"Let the man who slayeth another willfully perish by death. Let
him who slayeth another of necessity or unwillingly, or
unwillfully, as God may have sent him into his hands, and for whom
he has not lain in wait be worthy of his life and of lawful bot if
he seek an asylum."
Quoted in 3 J. Stephen, History of the Criminal Law of England
24 (1883). In the 13th century, Bracton set it down that a man was
responsible for all homicides except those which happened by pure
accident or inevitable necessity, although he did not explain the
consequences of such responsibility.
Id. at 35. The
Statute of Gloucester, 6 Edw. 1, c. 9 (1278), provided that, in
cases of self-defense or misadventure, the jury should neither
convict nor acquit, but should find the fact specially, so that the
King could decide whether to pardon the accused. It appears that,
in time, such pardons -- which may not have prevented forfeiture of
goods -- came to issue as of course. 3 Stephen,
supra, at
36-42.
During all this time, there was no clear distinction in
terminology or consequences among the various kinds of criminal
homicide. All were
prima facie capital, but all were
subject to the benefit of clergy, which, after 1350, came to be
available to almost any man who could read. Although originally
those entitled to benefit of clergy were simply delivered to the
bishop for ecclesiastical proceedings, with the possibility of
degradation from orders,
Page 402 U. S. 198
incarceration, and corporal punishment for those found guilty,
during the 15th and 16th centuries, the maximum penalty for
clergyable offenses became branding on the thumb, imprisonment for
not more than one year, and forfeiture of goods. 1 Stephen,
supra, at 459-464. By the statutes of 23 Hen. 8, c. 1, §§
3, 4 (1531), and 1 Edw. 6, c. 12, § 10 (1547), benefit of clergy
was taken away in all cases of "murder of malice prepensed." 1
Stephen,
supra, at 461 465; 3
id. at 44. During
the next century and a half, however, "malice prepense" or "malice
aforethought" came to be divorced from actual ill will and inferred
without more from the act of killing. Correspondingly,
manslaughter, which was initially restricted to cases of "chance
medley," came to include homicides where the existence of adequate
provocation rebutted the inference of malice. 3
id. at
46-73.
The growth of the law continued in this country, where there was
rebellion against the common law rule imposing a mandatory death
sentence on all convicted murderers. Thus, in 1794, Pennsylvania
attempted to reduce the rigors of the law by abolishing capital
punishment except for "murder of the first degree," defined to
include all "willful, deliberate and premeditated" killings, for
which the death penalty remained mandatory. Pa.Laws 1794, c. 1777.
This reform was soon copied by Virginia, and thereafter by many
other States.
This new legislative criterion for isolating crimes
appropriately punishable by death soon proved as unsuccessful as
the concept of "malice aforethought." Within a year, the
distinction between the degrees of murder was practically
obliterated in Pennsylvania.
See Keedy, History of the
Pennsylvania Statute Creating Degrees of Murder, 97 U.Pa.L.Rev.
759, 773-777 (1949). Other States had similar experiences. Wechsler
& Michael, A Rationale of the Law of Homicide: I, 37 Col.L.Rev.
701,
Page 402 U. S. 199
707-709 (1937). The result was characterized in this way by
Chief Judge Cardozo, as he then was:
"What we have is merely a privilege offered to the jury to find
the lesser degree when the suddenness of the intent, the vehemence
of the passion, seems to call irresistibly for the exercise of
mercy. I have no objection to giving them this dispensing power,
but it should be given to them directly, and not in a mystifying
cloud of words."
What Medicine Can Do For Law, in Law and Literature 70, 100
(1931). [
Footnote 9]
At the same time, jurors on occasion took the law into their own
hands in cases which were "willful, deliberate, and premeditated"
in any view of that phrase, but which nevertheless were clearly
inappropriate for the death penalty. In such cases, they simply
refused to convict of the capital offense.
See Report of
the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932,
�� 27-29 (1953);
Andres v. United States, 333 U.
S. 740,
333 U. S. 753
(1948) (Frankfurter, J., concurring);
cf. H. Kalven &
H. Zeisel, The American Jury 306-312 (1966).
In order to meet the problem of jury nullification, legislatures
did not try, as before, to refine further the definition of capital
homicides. Instead they adopted the method of forthrightly granting
juries the discretion which they had been exercising in fact.
See Knowlton, Problems of Jury Discretion in Capital
Cases, 101 U.Pa.L.Rev. 1099, 1102 and n. 18 (1953); Note, The
Two-Trial System in Capital Cases, 39 N.Y.U.L.Rev. 50,
Page 402 U. S. 200
52 (1964). Tennessee was the first State to give juries
sentencing discretion in capital cases, [
Footnote 10] Tenn.Laws 18371838, c. 29, but other
States followed suit, as did the Federal Government in 1897.
[
Footnote 11] Act of Jan.
15, 1897, c. 29, § 1, 29 Stat. 487. Shortly thereafter, in
Winston v. United States, 172 U.
S. 303 (1899), this Court dealt with the federal statute
for the first time. [
Footnote
12] The Court reversed a murder conviction in which the trial
judge instructed the jury that it should not return a
recommendation of mercy unless it found the existence of mitigating
circumstances. The Court found this instruction to interfere with
the scheme of the Act to commit the whole question of capital
punishment "to the judgment and the consciences of the jury."
Id. at
172 U. S.
313.
"How far considerations of age, sex, ignorance, illness or
intoxication, of human passion or weakness, of sympathy or
clemency, or the irrevocableness
Page 402 U. S. 201
of an executed sentence of death, or an apprehension that
explanatory facts may exist which have not been brought to light,
or any other consideration whatever, should be allowed weight in
deciding the question whether the accused should or should not be
capitally punished, is committed by the act of Congress to the
sound discretion of the jury, and of the jury alone."
Ibid.
This Court subsequently had occasion to pass on the correctness
of instructions to the jury with respect to recommendations of
mercy in
Andres v. United States, 333 U.
S. 740 (1948). The Court approved, as consistent with
the governing statute, an instruction that:
"This power [to recommend mercy] is conferred solely upon you,
and, in this connection, the Court cannot extend or prescribe to
you any definite rule defining the exercise of this power, but
commits the entire matter of its exercise to your judgment."
Id. at
333 U. S. 743
n. 4. The case was reversed, however, on the ground that other
instructions on the power to recommend mercy might have been
interpreted by the jury as requiring them to return an unqualified
verdict of guilty unless they unanimously agreed that mercy should
be extended. The Court determined that the proper construction was
to require a unanimous decision to withhold mercy as well, on the
ground, among others, that the latter construction was "more
consonant with the general humanitarian purpose of the statute."
Id. at
333 U. S. 749.
The only other significant discussion of standardless jury
sentencing in capital cases in our decisions is found in
Witherspoon v. Illinois, 391 U. S. 510
(1968). In reaching its conclusion that persons with conscientious
scruples against the death penalty could not be automatically
excluded from sentencing juries in capital cases, the Court relied
heavily
Page 402 U. S. 202
on the fact that such juries "do little more -- and must do
nothing less -- than express the conscience of the community on the
ultimate question of life or death."
Id. at
391 U. S. 519
(footnote omitted). The Court noted that
"one of the most important functions any jury can perform in
making such a selection is to maintain a link between contemporary
community values and the penal system -- a link without which the
determination of punishment could hardly reflect 'the evolving
standards of decency that mark the progress of a maturing
society.'"
Id. at
391 U. S. 519
n. 15. The inner quotation is from the opinion of Mr. Chief Justice
Warren for four members of the Court in
Trop v. Dulles,
356 U. S. 86,
356 U. S. 101
(1958).
In recent years, academic and professional sources have
suggested that jury sentencing discretion should be controlled by
standards of some sort. The American Law Institute first published
such a recommendation in 1959. [
Footnote 13] Several States have enacted new criminal
codes
Page 402 U. S. 203
in the intervening 12 years, some adopting features of the Model
Penal Code. [
Footnote 14]
Other States have modified their laws with respect to murder and
the death penalty in other ways. [
Footnote 15] None of these States have followed the Model
Penal Code and adopted statutory criteria for imposition of the
death penalty. In recent years, challenges to standardless jury
sentencing have been presented to many state and federal appellate
courts. No court has held the challenge good.
See n.
8 supra. As
petitioners recognize, it requires a strong showing to upset this
settled practice of the Nation on constitutional grounds.
See
Walz v. Tax Commission, 397 U. S. 664,
397 U. S. 678
(1970);
Jackman v. Rosenbaum Co., 260 U. S.
22,
260 U. S. 31
(1922);
cf. Palko v. Connecticut, 302 U.
S. 319,
302 U. S. 325
(1937).
B
Petitioners seek to avoid the impact of this history by the
observation that jury sentencing discretion in capital cases was
introduced as a mechanism for dispensing mercy -- a means for
dealing with the rare case in which the death penalty was thought
to be unjustified. Now, they assert, the death penalty is imposed
on far fewer than half the defendants found guilty of capital
crimes. The state and federal legislatures which provide for jury
discretion in capital sentencing have, it is said, implicitly
Page 402 U. S. 204
determined that some -- indeed, the greater portion -- of those
guilty of capital crimes should be permitted to live. But having
made that determination, petitioners argue, they have stopped short
-- the legislatures have not only failed to provide a rational
basis for distinguishing the one group from the other,
cf.
Skinner v. Oklahoma, 316 U. S. 535
(1942), but they have failed even to suggest any basis at all.
Whatever the merits of providing such a mechanism to take account
of the unforeseeable case calling for mercy, as was the original
purpose, petitioners contend the mechanism is constitutionally
intolerable as a means of selecting the extraordinary cases calling
for the death penalty, which is its present-day function.
In our view, such force as this argument has derives largely
from its generality. Those who have come to grips with the hard
task of actually attempting to draft means of channeling capital
sentencing discretion have confirmed the lesson taught by the
history recounted above. To identify before the fact those
characteristics of criminal homicides and their perpetrators which
call for the death penalty, and to express these characteristics in
language which can be fairly understood and applied by the
sentencing authority, appear to be tasks which are beyond present
human ability.
Thus, the British Home Office, which, before the recent
abolition of capital punishment in that country, had the
responsibility for selecting the cases from England and Wales which
should receive the benefit of the Royal Prerogative of Mercy,
observed:
"The difficulty of defining by any statutory provision the types
of murder which ought or ought not to be punished by death may be
illustrated by reference to the many diverse considerations to
which the Home Secretary has regard in deciding whether to
recommend clemency. No simple formula can take account of the
innumerable degrees of culpability,
Page 402 U. S. 205
and no formula which fails to do so can claim to be just or
satisfy public opinion."
1-2 Royal Commission on Capital Punishment, Minutes of Evidence
13 (1949). The Royal Commission accepted this view, and although it
recommended a change in British practice to provide for
discretionary power in the jury to find "extenuating
circumstances," that term was to be left undefined; "[t]he decision
of the jury would be within their unfettered discretion and in no
sense governed by the principles of law." Report of the Royal
Commission on Capital Punishment, 1949-1953, Cmd. 8932, � 553(b).
The Commission went on to say, in substantial confirmation of the
views of the Home Office:
"No formula is possible that would provide a reasonable
criterion for the infinite variety of circumstances that may affect
the gravity of the crime of murder. Discretionary judgment on the
facts of each case is the only way in which they can be equitably
distinguished. This conclusion is borne out by American experience:
there the experiment of degrees of murder, introduced long ago, has
had to be supplemented by giving to the courts a discretion that in
effect supersedes it."
Id. at � 595
The draftsmen of the Model Penal Code expressly agreed with the
conclusion of the Royal Commission that
"the factors which determine whether the sentence of death is
the appropriate penalty in particular cases are too complex to be
compressed within the limits of a simple formula. . . ."
Report � 498, quoted in Model Penal Code, § 201.6, Comment 3, p.
71 (Tent.Draft No. 9, 1959). The draftsmen did think, however,
"that it is within the realm of possibility to point to the main
circumstances of aggravation and of mitigation that should be
weighed
and weighed against each other when they are
Page 402 U. S. 206
presented in a concrete case."
Ibid. The circumstances the draftsmen selected, set out
in the
402
U.S. 183app|>Appendix to this opinion, were not intended to
be exclusive. The Code provides simply that the sentencing
authority should "take into account the aggravating and mitigating
circumstances enumerated . . . and any other facts that it deems
relevant," and that the court should so instruct when the issue was
submitted to the jury.
Id. at § 210.6(2) (Proposed
Official Draft, 1962). [
Footnote
16] The Final Report of the National Commission on Reform of
Federal Criminal Laws (171) recommended entire abolition of the
death penalty in federal cases. In a provisional chapter, prepared
for the contingency that Congress might decide to retain the death
penalty, the Report contains a set of criteria virtually identical
with the aggravating and mitigating circumstances listed by the
Model Penal Code. With respect to the use to be made of the
criteria, the Report provides that:
"[i]n deciding whether a sentence of death should be imposed,
the court and the jury, if any,
may consider the
mitigating and aggravating circumstances set forth in the
subsections below."
Id. at provisional § 3604(1) (emphasis added).
Page 402 U. S. 207
It is apparent that such criteria do not purport to provide more
than the most minimal control over the sentencing authority's
exercise of discretion. They do not purport to give an exhaustive
list of the relevant considerations or the way in which they may be
affected by the presence or absence of other circumstances. They do
not even undertake to exclude constitutionally impermissible
considerations. [
Footnote
17] And, of course, they provide no protection against the jury
determined to decide on whimsy or caprice. In short, they do no
more than suggest some subjects for the jury to consider during its
deliberations, and they bear witness to the intractable nature of
the problem of "standards" which the history of capital punishment
has from the beginning reflected. Thus, they indeed caution against
this Court's undertaking to establish such standards itself, or to
pronounce at large that standards in this realm are
constitutionally required.
In light of history, experience, and the present limitations of
human knowledge, we find it quite impossible to say that committing
to the untrammeled discretion of the jury the power to pronounce
life or death in capital cases is offensive to anything in the
Constitution. [
Footnote 18]
The
Page 402 U. S. 208
States are entitled to assume that jurors confronted with the
truly awesome responsibility of decreeing death for a fellow human
will act with due regard for the consequences of their decision and
will consider a variety of factors, many of which will have been
suggested by the evidence or by the arguments of defense counsel.
For a court to attempt to catalog the appropriate factors in this
elusive area could inhibit, rather than expand, the scope of
consideration, for no list of circumstances would ever be really
complete. The infinite variety of cases and facets to each case
would make general standards either meaningless "boiler-plate" or a
statement of the obvious that no jury would need.
IV
As we noted at the outset of this opinion, McGautha's trial was
in two stages, with the jury considering the issue of guilt before
the presentation of evidence and argument on the issue of
punishment. Such a procedure is required by the laws of California
and of five other States. [
Footnote 19] Petitioner Crampton, whose guilt and
punishment were determined at a single trial, contends
Page 402 U. S. 209
that a procedure like California's is compelled by the
Constitution as well.
This Court has twice had occasion to rule on separate penalty
proceedings in the context of a capital case. In
United States
v. Jackson, 390 U. S. 570
(1968), we held unconstitutional the penalty provisions of the
Federal Kidnaping Act, which we construed to mean that a defendant
demanding a jury trial risked the death penalty, while one pleading
guilty or agreeing to a bench trial faced a maximum punishment of
life imprisonment. The Government had contended that, in order to
mitigate this discrimination, we should adopt an alternative
construction, authorizing the trial judge accepting a guilty plea
or jury waiver to convene a special penalty jury empowered to
recommend the death sentence.
Id. at
390 U. S. 572.
Our rejection of this contention was not based solely on the fact
that it appeared to run counter to the language and legislative
history of the Act.
"[E]ven on the assumption that the failure of Congress to
[provide for the convening of a penalty jury] was wholly
inadvertent, it would hardly be the province of the courts to
fashion a remedy. Any attempt to do so would be fraught with the
gravest difficulties. . . ."
Id. at
390 U. S.
578-579. We therefore declined
"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."
Id. at
390 U. S. 580.
Jackson, however, did not consider the possibility that
such a procedure might be constitutionally required in capital
cases.
Substantially this result had been sought by the petitioners in
Spencer v. Texas, 385 U. S. 554
(1967). Like Crampton, Spencer had been tried in a unitary
proceeding before a jury which fixed punishment at death. Also like
Crampton, Spencer contended that the Due Process
Page 402 U. S. 210
Clause of the Fourteenth Amendment required a bifurcated trial
so that evidence relevant solely to the issue of punishment would
not prejudice his case on guilt. We rejected this contention, in
the following language:
"To say that the two-stage jury trial in the English-Connecticut
style is probably the fairest, as some commentators and courts have
suggested, and with which we might well agree were the matter
before us in a legislative or rulemaking context, is a far cry from
a constitutional determination that this method of handling the
problem is compelled by the Fourteenth Amendment. Two-part jury
trials are rare in our jurisprudence; they have never been
compelled by this Court as a matter of constitutional law, or even
as a matter of federal procedure. With recidivism the major problem
that it is, substantial changes in trial procedure in countless
local courts around the country would be required were this Court
to sustain the contentions made by these petitioners. This we are
unwilling to do. To take such a step would be quite beyond the pale
of this Court's proper function in our federal system."
Id. at
385 U. S.
567-568 (footnotes omitted).
Spencer considered
the bifurcation issue in connection with the State's introduction
of evidence of prior crimes; we now consider the issue in
connection with a defendant's choice whether to testify in his own
behalf. But even though this case cannot be said to be controlled
by
Spencer, our opinion there provides a significant guide
to decision here.
A
Crampton's argument for bifurcation runs as follows. Under
Malloy v. Hogan, 378 U. S. 1 (1964),
and
Griffin v. California, 380 U.
S. 609 (1965), he enjoyed a constitutional right not to
be compelled to be a witness
Page 402 U. S. 211
against himself. Yet, under the Ohio single-trial procedure, he
could remain silent on the issue of guilt only at the cost of
surrendering any chance to plead his case on the issue of
punishment. He contends that, under the Due Process Clause of the
Fourteenth Amendment, as elaborated in,
e.g., Townsend v.
Burke, 334 U. S. 736
(1948);
Specht v. Patterson, 386 U.
S. 605 (1967); and
Mempa v. Rhay, 389 U.
S. 128 (1967), he had a right to be heard on the issue
of punishment and a right not to have his sentence fixed without
the benefit of all the relevant evidence. Therefore, he argues, the
Ohio procedure possesses the flaw we condemned in
Simmons v.
United States, 390 U. S. 377,
390 U. S. 394
(1968); it creates an intolerable tension between constitutional
rights. Since this tension can be largely avoided by a bifurcated
trial, petitioner contends that there is no legitimate state
interest in putting him to the election, and that the
single-verdict trial should be held invalid in capital cases.
Simmons, however, dealt with a very different situation
from the one which confronted petitioner Crampton, and not
everything said in that opinion can be carried over to this case
without circumspection. In
Simmons, we held it
unconstitutional for the Federal Government to use at trial the
defendant's testimony given on an unsuccessful motion to suppress
evidence allegedly seized in violation of the Fourth Amendment. We
concluded that to permit such use created an unacceptable risk of
deterring the prosecution of marginal Fourth Amendment claims, thus
weakening the efficacy of the exclusionary rule as a sanction for
unlawful police behavior. This was surely an analytically
sufficient basis for decision. However, we went on to observe that
the penalty thus imposed on the good faith assertion of Fourth
Amendment rights was "of a kind to which this Court has always been
peculiarly
Page 402 U. S. 212
sensitive," 390 U.S. at
390 U. S. 393, for it involved the incrimination of the
defendant out of his own mouth.
We found it not a little difficult to support this invocation of
the Fifth Amendment privilege. We recognized that, "[a]s an
abstract matter," the testimony might be voluntary, and that
testimony to secure a benefit from the Government is not
ipso
facto "compelled" within the meaning of the Self-Incrimination
Clause. The distinguishing feature in Simmons' case, we said, was
that "the
benefit' to be gained is that afforded by another
provision of the Bill of Rights." Id. at 390 U. S.
393-394. Thus, the only real basis for holding that
Fifth Amendment policies were involved was the colorable Fourth
Amendment claim with which we had begun.
The insubstantiality of the purely Fifth Amendment interests
involved in
Simmons was illustrated last Term by the
trilogy of cases involving guilty pleas:
Brady v. United
States, 397 U. S. 742
(1970);
McMann v. Richardson, 397 U.
S. 759 (1970);
Parker v. North Carolina,
397 U. S. 790
(1970). While, in
Simmons, we relieved the defendant of
his "waiver" of Fifth Amendment rights made in order to obtain a
benefit to which he was ultimately found not constitutionally
entitled, in the trilogy, we held the defendants bound by "waivers"
of rights under the Fifth, Sixth, and Fourteenth Amendments made in
order to avoid burdens which, it was ultimately determined, could
not constitutionally have been imposed. In terms solely of Fifth
Amendment policies, it is apparent that Simmons had a far weaker
claim to be relieved of his ill-advised "waiver" than did the
defendants in the guilty plea trilogy. While we have no occasion to
question the soundness of the result in
Simmons, and do
not do so, to the extent that its rationale was based on a
"tension" between constitutional rights and the policies behind
them, the validity of that reasoning must now be regarded as open
to question, and it certainly cannot be
Page 402 U. S. 213
given the broad thrust which is attributed to it by Crampton in
the present case.
The criminal process, like the rest of the legal system, is
replete with situations requiring "the making of difficult
judgments" as to which course to follow.
McMann v.
Richardson, 397 U.S. at
397 U. S. 769.
Although a defendant may have a right, even of constitutional
dimensions, to follow whichever course he chooses, the Constitution
does not, by that token, always forbid requiring him to choose. The
threshold question is whether compelling the election impairs to an
appreciable extent any of the policies behind the rights involved.
Analysis of this case in such terms leads to the conclusion that
petitioner has failed to make out his claim of a constitutional
violation in requiring him to undergo a unitary trial.
B
We turn first to the privilege against compelled
self-incrimination. The contention is that, where guilt and
punishment are to be determined by a jury at a single trial, the
desire to address the jury on punishment unduly encourages waiver
of the defendant's privilege to remain silent on the issue of
guilt, or, to put the matter another way, that the single-verdict
procedure unlawfully compels the defendant to become a witness
against himself on the issue of guilt by the threat of sentencing
him to death without having heard from him. It is not contended,
nor could it be successfully, that the mere force of evidence is
compulsion of the sort forbidden by the privilege.
See Williams
v. Florida, 399 U. S. 78,
399 U. S. 83-85
(1970). It does no violence to the privilege that a person's choice
to testify in his own behalf may open the door to otherwise
inadmissible evidence which is damaging to his case.
See
Spencer v. Texas, 385 U.S. at
385 U. S. 561
and n. 7;
cf. Michelson v. United States, 335 U.
S. 469 (1948). The narrow question left open is whether
it is consistent
Page 402 U. S. 214
with the privilege for the State to provide no means whereby a
defendant wishing to present evidence or testimony on the issue of
punishment may limit the force of his evidence (and the State's
rebuttal) to that issue. We see nothing in the history, policies,
or precedents relating to the privilege which requires such means
to be available.
So far as the history of the privilege is concerned, it suffices
to say that it sheds no light whatever on the subject, unless,
indeed, that which is adverse, resulting from the contrast between
the dilemma of which petitioner complains and the historical
excesses which gave rise to the privilege.
See generally 8
J. Wigmore, Evidence § 2250 (McNaughton rev. ed.1961); L. Levy,
Origins of the Fifth Amendment (1968). Inasmuch as, at the time of
framing of the Fifth Amendment and for many years thereafter, the
accused in criminal cases was not allowed to testify in his own
behalf, nothing approaching Crampton's dilemma could arise.
The policies of the privilege likewise are remote support for
the proposition that defendants should be permitted to limit the
effects of their evidence to the issue of punishment. The policies
behind the privilege are varied, and not all are implicated in any
given application of the privilege.
See Murphy v. Waterfront
Commission, 378 U. S. 52,
378 U. S. 55
(1964);
see generally 8 J. Wigmore,
supra, at §
2251, and sources cited therein, n. 2. It can safely be said,
however, that, to the extent these policies provide any guide to
decision,
see McKay, Book Review, 35 N.Y.U.L.Rev. 1097,
1100-1101 (1960), the only one affected to any appreciable degree
is that of "cruelty."
It is undeniably hard to require a defendant on trial for his
life and desirous of testifying on the issue of punishment to make
nice calculations of the effect of his testimony on the jury's
determination of guilt. The issue of cruelty thus arising, however,
is less closely akin
Page 402 U. S. 215
to "the cruel trilemma of self-accusation, perjury or contempt,"
Murphy v. Waterfront Commission, 378 U.S. at
378 U. S. 55,
than to the fundamental requirements of fairness and decency
embodied in the Due Process Clauses. Whichever label is preferred,
appraising such considerations is inevitably a matter of judgment
as to which individuals may differ; however, a guide to decision is
furnished by the clear validity of analogous choices with which
criminal defendants and their attorneys are quite routinely
faced.
It has long been held that a defendant who takes the stand in
his own behalf cannot then claim the privilege against
cross-examination on matters reasonably related to the subject
matter of his direct examination.
See, e.g., Brown v.
Walker, 161 U. S. 591,
161 U. S.
597-598 (1896);
Fitzpatrick v. United States,
178 U. S. 304,
178 U. S.
314-316 (1900);
Brown v. United States,
356 U. S. 148
(1958). It is not thought overly harsh in such situations to
require that the determination whether to waive the privilege take
into account the matters which may be brought out on
cross-examination. It is also generally recognized that a defendant
who takes the stand in his own behalf may be impeached by proof of
prior convictions or the like.
See Spencer v. Texas, 385
U.S. at
385 U. S. 561;
cf. Michelson v. United States, 335 U.
S. 469 (1948);
but cf. Luck v. United States,
121 U.S.App.D.C. 151, 348 F.2d 763 (1965);
United States v.
Palumbo, 401 F.2d 270 (CA2 1968). Again, it is not thought
inconsistent with the enlightened administration of criminal
justice to require the defendant to weigh such pros and cons in
deciding whether to testify.
Further, a defendant whose motion for acquittal at the close of
the Government's case is denied must decide whether to stand on his
motion or put on a defense, with the risk that in so doing he will
bolster the Government case enough for it to support a verdict of
guilty.
Page 402 U. S. 216
E.g., United States v. Calderon, 348 U.
S. 160,
348 U. S. 164
and n. 1 (1954); 2 C. Wright, Federal Practice and Procedure § 463
(1969);
cf. American Bar Association, Project on Standards
for Criminal Justice, Trial by Jury 107-108 (Approved Draft, 1968).
But see Comment, The Motion for Acquittal: A Neglected
Safeguard, 70 Yale L.J. 1151 (1961);
cf. Cephus v. United
States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). Finally,
only last Term, in
Williams v. Florida, 399 U. S.
78 (1970), we had occasion to consider a Florida "notice
of alibi" rule which put the petitioner in that case to the choice
of either abandoning his alibi defense or giving the State both an
opportunity to prepare a rebuttal and leads from which to start. We
rejected the contention that the rule unconstitutionally compelled
the defendant to incriminate himself. The pressures which might
lead the defendant to furnish this arguably "testimonial" and
"incriminating" information arose simply from
"the force of historical fact beyond both his and the State's
control and the strength of the State's case built on these facts.
Response to that kind of pressure by offering evidence or testimony
is not compelled self-incrimination transgressing the Fifth and
Fourteenth Amendments."
Id. at 85.
We are thus constrained to reject the suggestion that a desire
to speak to one's sentencer unlawfully compels a defendant in a
single-verdict capital case to incriminate himself, unless there is
something which serves to distinguish sentencing -- or at least
capital sentencing -- from the situations given above. Such a
distinguishing factor can only be the peculiar poignancy of the
position of a man whose life is at stake, coupled with the
imponderables of the decision which the jury is called upon to
make. We do not think that the fact that a defendant's sentence,
rather than his guilt, is at issue creates a constitutionally
sufficient difference from the sorts of situations
Page 402 U. S. 217
we have described. While we recognize the truth of Mr. Justice
Frankfurter's insight in
Green v. United States,
365 U. S. 301,
365 U. S. 304
(1961) (plurality pinion), as to the peculiar immediacy of a
personal plea by the defendant for leniency in sentencing, it is
also true that the testimony of an accused denying the case against
him has considerably more force than counsel's argument that the
prosecution's case has not been proved. The relevant differences
between sentencing and determination of guilt or innocence are not
so great as to call for a difference in constitutional result. Nor
does the fact that capital, as opposed to any other, sentencing is
in issue seem to us to distinguish this case.
See Williams v.
New York, 337 U. S. 241,
337 U. S.
251-252 (1949). Even in noncapital sentencing the
sciences of penology, sociology, and psychology have not advanced
to the point that sentencing is wholly a matter of scientific
calculation from objectively verifiable facts.
We conclude that the policies of the privilege against compelled
self-incrimination are not offended when a defendant in a capital
case yields to the pressure to testify on the issue of punishment
at the risk of damaging his case on guilt. We therefore turn to the
converse situation, in which a defendant remains silent on the
issue of guilt, and thereby loses any opportunity to address the
jury personally on punishment.
C
It is important to identify with particularity the interests
which are involved. Petitioner speaks broadly of a right of
allocution. This right, of immemorial origin, arose in a context
very different from that which confronted petitioner Crampton.
[
Footnote 20]
See
generally Barrett,
Page 402 U. S. 218
Allocution (pts. 1-2), 9 Mo.L.Rev. 115, 232 (1944). It has been
preserved in its original form in Ohio and in many other States.
[
Footnote 21] What
petitioner seeks, to be sure for purposes not wholly unrelated to
those served by the right of allocution in former times,
see
Green v. United States, 365 U.S. at
365 U. S. 304
(opinion of Frankfurter, J.), is nevertheless a very different
procedure occurring in a radically different framework of criminal
justice.
Leaving aside the term "allocution," it also appears that
petitioner is not claiming the right simply to be heard on the
issue of punishment. This Court has not directly determined whether
or to what extent the concept of due process of law requires that a
criminal defendant wishing to present evidence or argument
presumably relevant to the issues involved in sentencing should be
permitted to do so. [
Footnote
22] Assuming, without deciding,
Page 402 U. S. 219
that the Constitution does require such an opportunity, there
was no denial of such a right in Crampton's case. The Ohio
Constitution guarantees defendants the right to have their counsel
argue in summation for mercy, as well as for acquittal.
Shelton
v. State, 102 Ohio St. 376, 131 N.E. 704 (1921). The extent to
which evidence going solely to the issue of punishment is
admissible under Ohio law is unclear,
see Ashrook v.
State, 49 Ohio App. 298, 197 N.E. 214 (1935), but, in any
event, it seems apparent that Ohio judges, as one would expect,
take a lenient view of the admissibility of evidence offered by a
defendant on trial for his life. As the present case illustrates,
an accused can put before the jury a great deal of background
evidence with, at best, a tenuous connection to the issue of guilt.
The record in Crampton's case does not reveal that any evidence
offered on the part of the defendant was excluded on the ground
that it was relevant solely to the issue of punishment.
On the other hand, petitioner is not seeking vindication for his
interest in making a personal plea for mercy. [
Footnote 23]
Page 402 U. S. 220
Even in a bifurcated trial, the defendant could be restricted to
the giving of evidence, with argument to be made by counsel only.
Petitioner's contention therefore comes down to the fact that the
Ohio single verdict trial may deter the defendant from bringing to
the jury's attention evidence peculiarly within his own knowledge,
and it may mean that the death verdict will be returned by a jury
which never heard the sound of his voice. We do not think that the
possibility of the former is sufficiently great to sustain
petitioner's claim that the single verdict trial may deprive the
jury of a rational basis for fixing sentence. Assuming that in this
case there was relevant information solely within petitioner's
knowledge, we do not think the Constitution forbids a requirement
that such evidence be available to the jury on all issues to which
it is relevant or not at all. As to the largely symbolic value
represented by the latter interest, Ohio has provided for retention
of the ritual of allocution, albeit only in its common law form,
precisely to avoid the possibility that a person might be tried,
convicted, and sentenced to death in complete silence. We have held
that failure to ensure such personal participation in the criminal
process is not necessarily a constitutional flaw in the conviction.
Hill v. United States, 368 U. S. 424
(1962). We do not think that Ohio was required to provide an
opportunity for petitioner to speak to the jury free from any
adverse consequences on the issue of guilt. We therefore reject
this branch of petitioner's argument as well.
V
Before we conclude this opinion, it is appropriate for us to
make a broader observation than the issues raised by
Page 402 U. S. 221
these cases strictly call for. It may well be, as the American
Law Institute and the National Commission on Reform of Federal
Criminal Laws have concluded, that bifurcated trials and criteria
for jury sentencing discretion are superior means of dealing with
capital cases if the death penalty is to be retained at all. But
the Federal Constitution, which marks the limits of our authority
in these cases, does not guarantee trial procedures that are the
best of all worlds, or that accord with the most enlightened ideas
of students of the infant science of criminology, or even those
that measure up to the individual predilections of members of this
Court.
See Spencer v. Texas, 385 U.
S. 554 (1967). The Constitution requires no more than
that trials be fairly conducted and that guaranteed rights of
defendants be scrupulously respected. From a constitutional
standpoint, we cannot conclude that it is impermissible for a State
to consider that the compassionate purposes of jury sentencing in
capital cases are better served by having the issues of guilt and
punishment determined in a single trial than by focusing the jury's
attention solely on punishment after the issue of guilt has been
determined.
Certainly the facts of these gruesome murders bespeak no
miscarriage of justice. The ability of juries, unassisted by
standards, to distinguish between those defendants for whom the
death penalty is appropriate punishment and those for whom
imprisonment is sufficient is indeed illustrated by the
discriminating verdict of the jury in McGautha's case, finding
Wilkinson the less culpable of the two defendants and sparing his
life.
The procedures which petitioners challenge are those by which
most capital trials in this country are conducted, and by which all
were conducted until a few years ago. We have determined that these
procedures are consistent with the rights to which petitioners were
constitutionally entitled, and that their trials were entirely
fair. Having
Page 402 U. S. 222
reached these conclusions, we have performed our task of
measuring the States' process by federal constitutional standards,
and accordingly the judgment in each of these cases is
Affirmed.
|
402
U.S. 183app|
APPENDIX TO OPINION OF THE COURT
Model Penal Code § 210.6 (Proposed Official Draft, 1962, and
changes of July 30, 1962):
(1)
Death Sentence Excluded. When a defendant is found
guilty of murder, the Court shall impose sentence for a felony of
the first degree if it is satisfied that:
(a) none of the aggravating circumstances enumerated in
Subsection (3) of this Section was established by the evidence at
the trial or will be established if further proceedings are
initiated under Subsection (2) of this Section; or
(b) substantial mitigating circumstances, established by the
evidence at the trial, call for leniency; or
(c) the defendant, with the consent of the prosecuting attorney
and the approval of the Court, pleaded guilty to murder as a felony
of the first degree; or
(d) the defendant was under 18 years of age at the time of the
commission of the crime; or
(e) the defendant's physical or mental condition calls for
leniency; or
(f) although the evidence suffices to sustain the verdict, it
does not foreclose all doubt respecting the defendant's guilt.
(2)
Determination by Court or by Court and Jury. Unless
the Court imposes sentence under Subsection (1) of this Section, it
shall conduct a separate proceeding to determine whether the
defendant should be sentenced for a felony of the first degree or
sentenced to death. The proceeding shall be conducted before the
Court alone
Page 402 U. S. 223
if the defendant was convicted by a Court sitting without a jury
or upon his plea of guilty or if the prosecuting attorney and the
defendant waive a jury with respect to sentence. In other cases, it
shall be conducted before the Court sitting with the jury which
determined the defendant's guilt or, if the Court for good cause
shown discharges that jury, with a new jury empaneled for the
purpose.
In the proceeding, evidence may be presented as to any matter
that the Court deems relevant to sentence, including but not
limited to the nature and circumstances of the crime, the
defendant's character, background, history, mental and physical
condition and any of the aggravating or mitigating circumstances
enumerated in Subsections (3) and (4) of this Section. Any such
evidence, not legally privileged, which the court deems to have
probative force may be received, regardless of its admissibility
under the exclusionary rules of evidence, provided that the
defendant's counsel is accorded a fair opportunity to rebut such
evidence. The prosecuting attorney and the defendant or his counsel
shall be permitted to present argument for or against sentence of
death.
The determination whether sentence of death shall be imposed
shall be in the discretion of the Court, except that, when the
proceeding is conducted before the Court sitting with a jury, the
Court shall not impose sentence of death unless it submits to the
jury the issue whether the defendant should be sentenced to death
or to imprisonment and the jury returns a verdict that the sentence
should be death. If the jury is unable to reach a unanimous
verdict, the Court shall dismiss the jury and impose sentence for a
felony of the first degree.
The Court, in exercising its discretion as to sentence, and the
jury, in determining upon its verdict, shall take into account the
aggravating and mitigating circumstances enumerated in Subsections
(3) and (4) and any
Page 402 U. S. 224
other facts that it deems relevant, but it shall not impose or
recommend sentence of death unless it finds one of the aggravating
circumstances enumerated in Subsection (3) and further finds that
there are no mitigating circumstances sufficiently substantial to
call for leniency. When the issue is submitted to the jury, the
Court shall so instruct and also shall inform the jury of the
nature of the sentence of imprisonment that may be imposed,
including its implication with respect to possible release upon
parole, if the jury verdict is against sentence of death.
[Alternative version of Subsection (2), providing for
determination of sentence by the Court in all cases, omitted.]
(3)
Aggravating Circumstances.
(a) The murder was committed by a convict under sentence of
imprisonment.
(b) The defendant was previously convicted of another murder or
of a felony involving the use or threat of violence to the
person.
(c) At the time the murder was committed, the defendant also
committed another murder.
(d) The defendant knowingly created a great risk of death to
many persons.
(e) The murder was committed while the defendant was engaged or
was an accomplice in the commission of, or an attempt to commit, or
flight after committing or attempting to commit robbery, rape or
deviate sexual intercourse by force or threat of force, arson,
burglary or kidnapping.
(f) The murder was committed for the purpose of avoiding or
preventing a lawful arrest or effecting an escape from lawful
custody.
(g) The murder was committed for pecuniary gain.
(h) The murder was especially heinous, atrocious or cruel,
manifesting exceptional depravity.
Page 402 U. S. 225
(4)
Mitigating Circumstances.
(a) The defendant has no significant history of prior criminal
activity.
(b) The murder was committed while the defendant was under the
influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's homicidal
conduct or consented to the homicidal act.
(d) The murder was committed under circumstances which the
defendant believed to provide a moral justification or extenuation
for his conduct.
(e) The defendant was an accomplice in a murder committed by
another person and his participation in the homicidal act was
relatively minor.
(f) The defendant acted under duress or under the domination of
another person.
(g) At the time of the murder, the capacity of the defendant to
appreciate the criminality [wrongfulness] of his conduct or to
conform his conduct to the requirements of law was impaired as a
result of mental disease or defect or intoxication.
(h) The youth of the defendant at the time of the crime.
* Together with No. 204,
Crampton v. Ohio, on
certiorari to the Supreme Court of Ohio.
[
Footnote 1]
The same two questions were included in our grant of certiorari
in
Maxwell v. Bishop, 393 U.S. 997 (1968), two Terms ago.
After twice hearing argument in that case,
see 395 U.S.
918 (1969), we remanded the case to the District Court for
consideration of possible violations of the rule of
Witherspoon
v. Illinois, 391 U. S. 510
(1968).
398 U. S. 398 U.S.
262 (1970). In taking that course we at the same time granted
certiorari in the
McGautha and
Crampton cases to
consider the two questions thus pretermitted in
Maxwell.
See id. at
398 U. S. 267
n. 4.
[
Footnote 2]
The information also alleged that McGautha had four prior felony
convictions: felonious theft, robbery, murder without malice, and
robbery by assault. The most recent of these convictions occurred
in 1952. In a proceeding in chambers, McGautha admitted the
convictions, and the jury did not learn of them at the guilt stage
of the trial.
[
Footnote 3]
Cal.Penal Code § 190.1 (1970) provides:
"The guilt or innocence of every person charged with an offense
for which the penalty is in the alternative death or imprisonment
for life shall first be determined, without a finding as to
penalty. If such person has been found guilty of an offense
punishable by life imprisonment or death, and has been found sane
on any plea of not guilty by reason of insanity, there shall
thereupon be further proceedings on the issue of penalty, and the
trier of fact shall fix the penalty. Evidence may be presented at
the further proceedings on the issue of penalty, of the
circumstances surrounding the crime, of the defendant's background
and history, and of any facts in aggravation or mitigation of the
penalty. The determination of the penalty of life imprisonment or
death shall be in the discretion of the court or jury trying the
issue of fact on the evidence presented, and the penalty fixed
shall be expressly stated in the decision or verdict. The death
penalty shall not be imposed, however, upon any person who was
under the age of 18 years at the time of the commission of the
crime. The burden of proof as to the age of said person shall be
upon the defendant."
"If the defendant was convicted by the court sitting without a
jury, the trier of fact shall be the court. If the defendant was
convicted by a plea of guilty, the trier of fact shall be a jury
unless a jury is waived. If the defendant was convicted by a jury,
the trier of fact shall be the same jury unless, for good cause
shown, the court discharges that jury in which case a new jury
shall be drawn to determine the issue of penalty."
"In any case in which defendant has been found guilty by a jury,
and the same or another jury, trying the issue of penalty, is
unable to reach a unanimous verdict on the issue of penalty, the
court shall dismiss the jury and either impose the punishment for
life in lieu of ordering a new trial on the issue of penalty, or
order a new jury impaneled to try the issue of penalty, but the
issue of guilt shall not be retried by such jury."
[
Footnote 4]
The penalty jury interrupted its deliberations to ask whether a
sentence of life imprisonment meant that there was no possibility
of parole. The trial judge responded as follows:
"A sentence of life imprisonment means that the prisoner may be
paroled at some time during his lifetime, or that he may spend the
remainder of his natural life in prison. An agency known as the
Adult Authority is empowered by statute to determine if and when a
prisoner is to be paroled, and, under the statute, no prisoner can
be paroled unless the Adult Authority is of the opinion that the
prisoner, when released, will assume a proper place in society, and
that his release is not contrary to the welfare of society. A
prisoner released on parole may remain on parole for the balance of
his life, and, if he violates the terms of the parole, he may be
returned to prison to serve the life sentence."
"So that you will have no misunderstandings relating to a
sentence of life imprisonment, you have been informed as to the
general scheme of our parole system. You are now instructed,
however, that the matter of parole is not to be considered by you
in determining the punishment for either defendant, and you may not
speculate as to if, or when, parole would or would not be granted.
It is not your function to decide now whether these men will be
suitable for parole at some future date. So far as you are
concerned, you are to decide only whether these men shall suffer
the death penalty or whether they shall be permitted to remain
alive. If, upon consideration of the evidence, you believe that
life imprisonment is the proper sentence, you must assume that
those officials charged with the operation of our parole system
will perform their duty in a correct and responsible manner, and
that they will not parole a defendant unless he can be safely
released into society. It would be a violation of your duty as
jurors if you were to fix the penalty at death because of a doubt
that the Adult Authority will properly carry out its
responsibilities."
App. 224-225.
[
Footnote 5]
Under California law, the trial judge has power to reduce the
penalty to life if he concludes that the jury's verdict is not
supported by the weight of the evidence. Cal.Penal Code § 1181(7).
See In re Anderson, 69 Cal. 2d
613, 623, 447 P.2d 117, 124 (1968). The California Supreme
Court, to which appeal is automatic in capital cases, Cal.Penal
Code § 1239(b), has no such power.
People v.
Lookadoo, 66 Cal. 2d
307, 327, 425 P.2d 208, 221 (1967).
[
Footnote 6]
Pursuant to Ohio law, Ohio Rev.Code Ann. § 2945.40 (1954),
Crampton was committed to a state mental hospital for a month of
observation. After a hearing on the psychiatric report, the trial
court determined that Crampton was competent to stand trial.
[
Footnote 7]
Under Ohio law, a jury's death verdict may not be reduced as
excessive by either the trial or the appellate court.
Turner v.
State, 21 Ohio Law Abs. 276, 279-280 (Ct.App. 1936);
State
v. Klumpp, 15 Ohio Op.2d 461, 468, 175 N.E.2d 767, 775-776
(Ct.App.),
appeal dismissed, 171 Ohio St. 62, 167 N.E.2d
778 (1960).
[
Footnote 8]
The lower courts thus placed themselves in accord with all other
American jurisdictions which have considered the issue.
See,
e.g., In re Ernst, 294 F.2d 556 (CA3 1961);
Florida ex
rel. Thomas v. Culver, 253 F.2d 507 (CA5 1958);
Maxwell v.
Bishop, 398 F.2d 138 (CA8 1968),
vacated on other
grounds, 398 U. S. 262
(1970);
Sims v. Eyman, 405 F.2d 439 (CA9 1969);
Segura
v. Patterson, 402 F.2d 249 (CA10 1968);
McCants v.
State, 282 Ala. 397,
211 So. 2d
877 (1968);
Bagley v. State, 247 Ark. 113,
444 S.W.2d 567
(1969);
State v. Walters, 145 Conn. 60, 138 A.2d 786,
appeal dismissed, 358 U. S. 46
(1958);
Wilson v. State, 225 So. 2d
321 (Fla.1969);
Miller v. State, 224 Ga. 627,
163 S.E.2d 730
(1968);
State v. Latham, 190 Kan. 411,
375 P.2d 788
(1962);
Duisen v. State, 441 S.W.2d
688 (Mo.1969);
State v. Johnson, 34 N.J. 212,
168 A.2d
1,
appeal dismissed, 368 U. S. 145
(1961);
People v. Fitzpatrick, 61 Misc.2d 1043, 308
N.Y.S.2d 18 (1970);
State v. Roseboro, 276 N.C. 185,
171 S.E.2d
886 (1970);
Hunter v. State, 222 Tenn. 672,
440
S.W.2d 1 (1969);
State v. Kelbach, 23 Utah 2d 231,
461 P.2d 297
(1969);
Johnson v. Commonwealth, 208 Va. 481, 158 S.E.2d
725 (1968);
State v. Smith, 74 Wash.
2d 744,
446 P.2d
571 (1968).
[
Footnote 9]
In context, the emphasis is on the confusing distinction between
degrees of murder, not the desirability of juries' sentencing
discretion. It may also be noted that the former New York
definitions of first- and second-degree murder were somewhat
unusual.
See Wechsler &: Michael, 37 Col.L.Rev. at 704
n. 13, 709 n. 26.
[
Footnote 10]
The practice of jury sentencing arose in this country during the
colonial period for cases not involving capital punishment. It has
been suggested that this was a "reaction to harsh penalties imposed
by judges appointed and controlled by the Crown" and a result of
"the early distrust of governmental power." President's Commission
on Law Enforcement and Administration of Justice, Task Force
Report: The Courts 26 (1967).
[
Footnote 11]
California and Ohio, the two States involved in these cases,
abolished mandatory death penalties in favor of jury discretion in
1874 and 1898. Act of Mar. 28, 1874, c. 508, Cal.Amendatory Acts
1873-1874, p. 457; Ohio Laws 1898, p. 223. Except for four States
that entirely abolished capital punishment in the middle of the
last century, every American jurisdiction has at some time
authorized jury sentencing in capital cases. None of these statutes
has provided standards for the choice between death and life
imprisonment.
See Brief for the United States as
Amicus Curiae 128-137.
[
Footnote 12]
See also Calton v. Utah, 130 U. S.
83 (1889), in which the Court reversed a conviction
under the statutes of Utah Territory in which the jury had not been
informed of its right under the territorial code to recommend a
sentence of imprisonment for life at hard labor instead of
death.
[
Footnote 13]
Model Penal Code § 201.6 (Tent.Draft No. 9, 1959). The criteria
were revised and approved by the Institute in 1962, and now appear
in § 210.6 of the Proposed Official Draft of the Model Penal Code.
As revised, they appear in the
402
U.S. 183app|>Appendix to this opinion. More recently, the
National Commission on Reform of Federal Criminal Laws published a
Study Draft of a New Federal Criminal Code (1970). Section 3605
contained standards virtually identical to those of the Model Penal
Code. The statement of the Chairman of the Commission, submitting
the Study Draft for public comment, described it as "something more
than a staff report and less than a commitment by the Commission or
any of its members to every aspect of the Draft." Study Draft xx.
The primary differences between the procedural provisions for
capital sentencing in the Model Penal Code and those in the Study
Draft are that the Code provides that the court and jury "shall"
take the criteria into account, while the Study Draft provided that
they "may" do so; and the Model Penal Code forbids imposition of
the death penalty where no aggravating circumstances are found,
while the Study Draft showed this only as an alternative provision.
The latter feature is affected by the fact that only a very few
murders were to be made capital.
See id. at 307. In its
Final Report (1971), the Commission recommended abolition of the
death penalty for federal crimes. An alternate version, said to
represent a "substantial body of opinion in the Commission,"
id. comment to provisional § 3601, provided for retention
of capital punishment for murder and treason with procedural
provisions which did not significantly differ from those in the
Study Draft.
[
Footnote 14]
See, e.g., N.Y.Penal Law § 65.00 (1967) (criteria for
judges in deciding on probation).
[
Footnote 15]
E.g., N.M.Stat.Ann. §§ 40A-29-2.1, 40A-29-2.2 (Supp.
1969), reducing the class of capital crimes.
[
Footnote 16]
The Model Penal Code provides that the jury should not fix
punishment at death unless it found at least one of the aggravating
circumstances and no sufficiently substantial mitigating
circumstances. Model Penal Code § 210.6(2) (Proposed Official
Draft, 1962). As the reporter's comment recognized, there is no
fundamental distinction between this procedure and a redefinition
of the class of potentially capital murders. Model Penal Code §
201.6, Comment 3, pp. 71-72 (Tent.Draft No. 9, 1959). As we
understand these petitioners' contentions, they seek standards for
guiding the sentencing authority's discretion, not a greater
strictness in the definition of the class of cases in which the
discretion exists. If we are mistaken in this, and petitioners
contend that Ohio's and California's definitions of first-degree
murder are too broad, we consider their position constitutionally
untenable.
[
Footnote 17]
The issue whether a defendant is entitled to an instruction that
certain factors such as race are not to be taken into consideration
is not before us, as the juries were told not to base their
decisions on "prejudice," and no more specific instructions were
requested.
Cf. Griffin v. California, 380 U.
S. 609,
380 U. S.
614-615 and n. 6 (1965).
[
Footnote 18]
Giaccio v. Pennsylvania, 382 U.
S. 399 (1966), does not point to a contrary result. In
Giaccio, the Court held invalid on its face a Pennsylvania
statute which authorized criminal juries to assess costs against
defendants whose conduct, although not amounting to the crime with
which they were charged, was nevertheless found to be
"reprehensible." The Court concluded that the statute was no more
sound than one which simply made it a crime to engage in
"reprehensible conduct," and, consequently that it was
unconstitutionally vague. The Court there stated:
"In so holding, we intend to cast no doubt whatever on the
constitutionality of the settled practice of many States to leave
to juries finding defendants guilty of a crime the power to fix
punishment within legally prescribed limits."
Id. at
382 U. S. 405
n. 8.
[
Footnote 19]
Cal.Penal Code § 190.1 (1970); Conn.Gen.Stat.Rev. § 53a-46
(Supp. 1969); Act of Mar. 27, 1970, No. 1333, Ga.Laws 1970, p. 949;
N.Y.Penal Law §§ 125.30 (Supp. 1970-1971), 125.35 (1967);
Pa.Stat.Ann., Tit. 18, § 4701 (1963); Tex.Code Crim.Proc., Art.
37.07(2)(b) (Supp. 1970-1971).
See also Model Penal Code §
210.6(2) (Proposed Official Draft, 1962); National Commission on
Reform of Federal Criminal Laws, Final Report, provisional § 3602
(1971); Report of the Royal Commission on Capital Punishment,
1949-1953, Cmd. 8932, �� 551-595.
[
Footnote 20]
For instance, the accused was not permitted to have the
assistance of counsel, was not permitted to testify in his own
behalf, was not entitled to put on evidence in his behalf, and had
almost no possibility of review of his conviction.
See,
e.g., G. Williams, The Proof of Guilt 4-12 (3d ed.1963); 1 J.
Stephen, A History of the Criminal Law of England 308-311, 350
(1883).
[
Footnote 21]
Ohio Rev.Code Ann. § 2947.05 (1954) provides:
"Before sentence is pronounced, the defendant must be informed
by the court of the verdict of the jury, or the finding of the
court, and asked whether he has anything to say as to why judgment
should not be pronounced against him."
[
Footnote 22]
In
Williams v. New York, 337 U.
S. 241 (1949), a trial judge had disregarded a jury
recommendation of mercy and imposed the death sentence, in part
because of a presentence report based on hearsay. The Court held
that the Due Process Clause did not require a State to choose
between prohibiting the use of such reports and holding an
adversary hearing at which the defendant could cross-examine the
sources of the information contained therein. In
Specht v.
Patterson, 386 U. S. 605,
386 U. S. 606
(1967), the Court characterized
Williams broadly as
holding that the Fourteenth Amendment
"did not require a judge to have hearings and to give a
convicted person an opportunity to participate in those hearings
when he came to determine the sentence to be imposed."
The Court stated that it adhered to Williams, but declined to
extend it to a separate determination whether a convicted person
should be committed to an institution for treatment under the
Colorado Sex Offenders Act.
Id. at
386 U. S. 608.
See also Mempa v. Rhay, 389 U. S. 128
(1967).
In
Green v. United States, 365 U.
S. 301,
365 U. S. 304
(1961), Mr. Justice Frankfurter, in an opinion for four members of
the Court, spoke eloquently of the desirability of permitting a
defendant's personal plea for mercy, but in
Hill v. United
States, 368 U. S. 424
(1962), the Court held that the failure of a sentencing judge to
ask a defendant represented by counsel whether he personally had
anything to say, though a violation of Fed.Rule Crim.Proc. 32(a),
was not an error of constitutional dimensions. The Court reserved
the issue whether silencing a defendant who wished to speak would
rise to that level.
Id. at
368 U. S. 429.
We have not since had occasion to deal with this or related
problems at length.
[
Footnote 23]
It may be noted in passing that petitioner at no point requested
an opportunity to address the jury personally on the issue of
punishment.
Compare the Georgia practice of permitting the
defendant to make an unsworn statement on which he is not subject
to cross-examination, and the deprecating view of this opportunity
taken by those familiar with it, all discussed in
Ferguson v.
Georgia, 365 U. S. 570
(1961).
Separate opinion of MR. JUSTICE BLACK.
I concur in the Court's judgments and in substantially all of
its opinion. However, in my view, this Court's task is not to
determine whether the petitioners' trials were "fairly conducted."
Ante at
402 U. S. 221.
The Constitution grants this Court no power to reverse convictions
because of our personal beliefs that state criminal procedures are
"unfair," "arbitrary," "capricious," "unreasonable," or "shocking
to our conscience."
See, e.g., Rochin v. California,
342 U. S. 165,
342 U. S. 174
(1952) (BLACK, J., concurring);
United States v. Wade,
388 U. S. 218,
388 U. S. 243
(1967) (BLACK, J., concurring and dissenting). Our
Page 402 U. S. 226
responsibility is, rather, to determine whether petitioners have
been denied rights expressly or impliedly guaranteed by the Federal
Constitution as written. I agree with the Court's conclusions that
the procedures employed by California and Ohio to determine whether
capital punishment shall be imposed do not offend the Due Process
Clause of the Fourteenth Amendment. Likewise, I do not believe that
petitioners have been deprived of any other right explicitly or
impliedly guaranteed by the other provisions of the Bill of Rights.
The Eighth Amendment forbids "cruel and unusual punishments." In my
view, these words cannot be read to outlaw capital punishment,
because that penalty was in common use and authorized by law here
and in the countries from which our ancestors came at the time the
Amendment was adopted. It is inconceivable to me that the framers
intended to end capital punishment by the Amendment. Although some
people have urged that this Court should amend the Constitution by
interpretation to keep it abreast of modern ideas, I have never
believed that lifetime judges in our system have any such
legislative power.
See Harper v. Virginia Board of
Election, 383 U. S. 663,
383 U. S. 670
(1966) (BLACK, J., dissenting).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL concur, dissenting in No. 204.
In my view, the unitary trial which Ohio provides in
first-degree murder cases does not satisfy the requirements of
procedural Due Process under the Fourteenth Amendment.
Ohio makes first-degree murder punishable by death "unless the
jury trying the accused recommends mercy, in which case the
punishment shall be imprisonment for life." Ohio Rev.Code Ann. §
2901.01. Petitioner
Page 402 U. S. 227
was indicted and tried for murder in the first degree for the
killing of his wife. His pleas were "not guilty" and "not guilty by
reason of insanity."
The court, after a psychiatric examination, concluded that
petitioner was sane, and set the case for trial before a jury. The
issues of guilt, punishment, and insanity were simultaneously tried
and submitted to the jury.
Petitioner did not testify at the trial. But a psychiatrist
testified on his behalf, offering medical records of his case from
two state hospitals. His mother testified concerning his childhood,
education, and background.
On the issue of punishment, the jury was charged:
"You must not be influenced by any consideration
of sympathy
or prejudice. It is your duty to carefully weigh the evidence,
to decide all disputed questions of fact, to apply the instructions
of the court to your findings and to render your verdict
accordingly. In fulfilling your duty, your efforts must be to
arrive at a just verdict."
"Consider all the evidence and make your finding with
intelligence and impartiality, and
without bias, sympathy, or
prejudice, so that the State of Ohio and the defendant will
feel that their case was fairly and impartially tried. . . ."
(Emphasis added.)
He was found guilty of murder in the first degree without a
recommendation of mercy, and the court sentenced him to death. The
Supreme Court of Ohio sustained the single-verdict procedure and
the absolute discretion of the jury in the matter of punishment. 18
Ohio St.2d 182, 248 N.E.2d 614.
On the issue of guilt, the State was required to produce
evidence to establish it. On the issue of insanity the burden was
on petitioner to prove it by a preponderance of the evidence, State
v. Austin, 71 Ohio St. 317, 73
Page 402 U. S. 228
N.E. 218. On the issue of mercy,
viz., life
imprisonment rather than death, petitioner under Ohio law was
banned from offering any specific evidence directed only toward a
claim of mercy.
Ashbrook v. State, 49 Ohio App. 298, 197
N.E. 214.
If a defendant wishes to testify in support of the defense of
insanity or in mitigation of what he is charged with doing, he can
do so only if he surrenders his right to be free from
self-incrimination. Once he takes the stand, he can be
cross-examined not only as respects the crime charged, but also on
other misdeeds. In Ohio, impeachment covers a wide range of
subjects: prior convictions for felonies and statutory
misdemeanors, [
Footnote 2/1]
pending indictments, [
Footnote 2/2]
prior convictions in military service, and dishonorable discharges.
[
Footnote 2/3] Once he testifies,
he can be recalled for cross-examination in the State's case in
rebuttal. [
Footnote 2/4]
While the defendant in Ohio has the right of allocution, that
right, even in first-degree murder cases, occurs only after the
jury's verdict has been rendered. Unless there is prejudicial error
vitiating the conviction or insufficient evidence [
Footnote 2/5] to convict, the jury's verdict stands
and the judge must enter the verdict. Allocution, though mandatory,
[
Footnote 2/6] is thus a ritual
only. [
Footnote 2/7]
Page 402 U. S. 229
If the right to be heard were to be meaningful, it would have to
accrue before sentencing; yet, except for allocution, any attempt
on the part of the accused during the trial to say why the judgment
of death should not be pronounced against him entails a surrender
of his right against self-incrimination. It therefore seems plain
that the single-verdict procedure is a burden on the exercise
Page 402 U. S. 230
of the right to be free of compulsion as respects
self-incrimination. For he can testify on the issue of insanity or
on other matters in extenuation of the crime charged only at the
price of surrendering the protection of the Self-Incrimination
Clause of the Fifth Amendment made applicable to the States by the
Fourteenth.
On the question of insanity and punishment, the accused should
be under no restraints when it comes to putting before the court
and the jury all the relevant facts. Yet he cannot have that
freedom where these issues are tied to the question of guilt. For,
on that issue, he often dare not speak, lest he in substance be
tried not for this particular offense, but for all the sins he ever
committed.
Petitioner also had to surrender much of his right to a fair
hearing on the issue of punishment to assert his defense of
insanity. To support his insanity plea, he had to submit his
hospital records, both of which contained information about his
convictions and imprisonment for prior crimes and about his use of
drugs as well.
Of course, a defendant's character witnesses can be examined
respecting the defendant's other crimes.
Michelson v. United
States, 335 U. S. 469. But
that is an effort to weigh the credibility of the proffered
testimony as to character.
"Thus, while the law gives defendant the option to show as a
fact that his reputation reflects a life and habit incompatible
with commission of the offense charged, it subjects his proof to
tests of credibility designed to prevent him from profiting by a
mere parade of partisans."
Id. at
335 U. S. 479.
It is a far cry, however, to let hospital records tendered on an
issue of insanity color a jury's judgment on the wholly different
issue of guilt.
The greatest comfort the majority has is this Court's recent
decision in
Spencer v. Texas, 385 U.
S. 554, holding that a two-stage trial is not required
when a State
Page 402 U. S. 231
under a habitual offender statute seeks to introduce on the
issue of guilt in a unitary trial evidence of a defendant's prior
convictions. Yet
Spencer was a five-to-four decision,
which meant it barely passed muster as a constitutional procedure.
The dissent of Mr. Chief Justice Warren, in which three other
Justices joined, will have, I think, endurance beyond the majority
view.
That dissent,
id. at
385 U. S. 569
et seq., points out the prejudice to an accused if, prior
to a finding of guilt, earlier convictions are admissible in
evidence. There is mounting evidence shown in court decisions
(
id. at
385 U. S. 585)
and in modern state procedures that that practice does not comport
with fairness implicit in due process. Mr. Chief Justice Warren
said:
"In England, the prejudice which results from proof of prior
crimes before a finding of guilt has been recognized for more than
a century, and the rule has been that a finding as to prior crimes
is made in a separate hearing after the finding of guilt."
Id. at
385 U. S.
586.
We should not square with due process the practice which
receives impetus in Ohio where reports on a man's insanity contain
references to his criminal record which most assuredly prejudice
his trial on the issue of guilt. [
Footnote 2/8]
Page 402 U. S. 232
We have already traveled part of the distance required for
reversal in the present case. In
Jackson v. Denno,
378 U. S. 368, we
held that whether, on controverted facts, a confession was
voluntary must be tried by a State in a separate proceeding. We
pointed out the vice in allowing the jury that determines guilt
also to determine whether the confession was voluntary. We
said:
"It is difficult, if not impossible, to prove that a confession
which a jury has found to be involuntary has nevertheless
influenced the verdict or that its finding of voluntariness, if
this is the course it took, was affected by the other evidence
showing the confession was true. But the New York procedure poses
substantial threats to a defendant's constitutional rights to have
an involuntary confession entirely disregarded and to have the
coercion issue fairly and reliably determined."
Id. at
378 U. S.
389.
Yet the risk of prejudice in
Jackson v. Denno seems
minor compared with the risk of prejudice in a unitary trial where
the issues of guilt, insanity, and punishment are combined,
submitted to one jury with evidence of prior convictions coming in
under cover of hospital records pertinent to insanity, and
certainly likely to be prejudicial on the issue of guilt. I see no
way to make this unitary trial fair in the sense of procedural due
process unless the issue of insanity is segregated and tried to a
separate jury.
As noted, evidence as to whether the jury should show mercy to
him is excluded from consideration, and the jury is admonished not
to show any "sympathy" to the accused.
Under Ohio law, the determination of whether to grant or
withhold mercy is exclusively for the jury, and cannot
Page 402 U. S. 233
be reviewed by either the trial court [
Footnote 2/9] or an appellate court. [
Footnote 2/10] The first time that specific
mention of mercy to the jury is permissible is during closing
argument, where the defendant is permitted "to argue to the jury
the desirability, advisability or wisdom of recommending mercy."
[
Footnote 2/11] While there was
not a specific instruction on mercy in the instant case (beyond the
instruction to make findings without bias, sympathy, or prejudice),
the Ohio courts have approved instructions
"to consider and determine whether or not, in view of all the
circumstance and facts leading up to and attending the alleged
homicide as disclosed by the evidence, you should or should not
make such recommendation [of mercy]."
Howell v. State, 102 Ohio St. 411, 413, 131 N.E. 706
707. This instruction means that, while the jury may not consider
general sociological or environmental data, it may consider any
such factors which have specifically been admitted into evidence in
the case for other purposes.
State v. Caldwell, 135 Ohio
St. 424, 21 N.E.2d 343. [
Footnote
2/12]
Page 402 U. S. 234
Ashbrook v. State, supra, holds that evidence "directed
specifically toward a claim for mercy" cannot be introduced. Yet
Howell, Caldwell, and
Ashbrook show that, once
evidence is admitted for other purposes the jury is free to
consider it for any purpose. In
Caldwell, the objection of
the court was to going outside the record for evidence in
considering sociological and environmental matters.
This background evidence often comes in through character
witnesses. In one case, a defendant presented 12 witnesses who
testified to his reputation as a peaceful and law-abiding citizen
of good character. [
Footnote
2/13] And even in the instant case, petitioner's mother
testified concerning his childhood, education, and background.
Page 402 U. S. 235
But the right of allocution is, at best, partial and incomplete
when the accused himself is barred from testifying on the question
of sentencing, and when the only evidence admissible comes from
other people or is introduced for different and more limited
purposes.
The line between the legislative function and the judicial
function is clear. The State can make criminal such conduct as it
pleases, save as it is limited by the Constitution itself, as, for
example, by the ban on
ex post facto laws in Art. I, § 10,
or by the Fourteenth Amendment, as where religious exercises or
freedom of speech or of the press is involved. It can punish such
conduct by such penalties as it chooses, save as its sanctions run
afoul of the ban in Art. I, § 10, against bills of attainder or the
prohibition against cruel and unusual punishments contained in the
Eighth Amendment. The Court is not concerned with the wisdom of
state policies, only with the constitutional barriers to state
action. Procedural due process [
Footnote 2/14] is one of those barriers, as revealed
over and over again in our decisions. Some of its requirements are
explicit in the Bill of Rights -- a speedy trial,
Klopfer v.
North Carolina, 386 U. S. 213; a
trial by jury,
Duncan v. Louisiana, 391 U.
S. 145; the right to counsel,
Gideon v.
Wainwright, 372 U. S. 335; the
right to confrontation,
Pointer v. Texas, 380 U.
S. 400 -- all as made applicable to the States by reason
of the Fourteenth Amendment
Other requirements of procedural due process are only implied,
not expressed; their inclusion or exclusion turns on the basic
question of fairness. In that category are notice and the right to
be heard.
Schroeder v. City
of
Page 402 U. S. 236
New York, 371 U. S. 208;
Sniadach v. Family Finance Corp., 395 U.
S. 337. It is a phase of that right to be heard that
looms large here.
Crampton had the constitutional right as a matter of procedural
due process to be heard on the issue of punishment. We emphasized
in
Townsend v. Burke, 334 U. S. 736,
334 U. S. 741,
how the right to be heard through counsel might be crucial to avoid
sentencing on a foundation "extensively and materially false." But
the right to be heard is broader than that; it includes the right
to speak for one's self. As was said in
Green v. United
States, 365 U. S. 301,
365 U. S. 304
(opinion of Frankfurter, J.):
"We are not unmindful of the relevant major changes that have
evolved in criminal procedure since the seventeenth century -- the
sharp decrease in the number of crimes which were punishable by
death, the right of the defendant to testify on his own behalf, and
the right to counsel. But we see
Page 402 U. S. 237
no reason why a procedural rule should be limited to the
circumstances under which it arose if reasons for the right it
protects remain. None of these modern innovations lessens the need
for the defendant, personally, to have the opportunity to present
to the court his plea in mitigation. The most persuasive counsel
may not be able to speak for a defendant as the defendant might,
with halting eloquence, speak for himself."
The right to be heard, explicit in Rule 32(a) of the Federal
Rules of Criminal Procedure, may at times be denied, absent a
showing of "aggravating circumstances" or of a claim that the
defendant would have anything to say.
See Hill v. United
States, 368 U. S. 424. But
where the opportunity to be heard on the sentence is denied both
counsel and the defendant, the denial reaches constitutional
proportions.
See United States v. Johnson, 315 F.2d 714,
717.
Whether the voice speaking for the defendant be counsel's voice
or the defendant's, the right to be heard is often vital at the
sentencing stage before the law decides the punishment of the
person found guilty.
Mempa v. Rhay, 389 U.
S. 128,
389 U. S. 135.
The hearing, whether on guilt or punishment, is governed by the
requirements of due process. We said in
Specht v.
Patterson, 386 U. S. 605,
386 U. S.
610:
"Due process, in other words, requires that he be present with
counsel, have an opportunity to be heard, be confronted with
witnesses against him, have the right to cross-examine, and to
offer evidence of his own."
If one insists, as in
Hill, that there be "aggravating
circumstances" to raise this right to be heard to a constitutional
level, all must agree that no one can ever show more "aggravating"
circumstances than the fact
Page 402 U. S. 238
that he stands on the verge of receiving the death sentence.
At least then, the right of allocution becomes a constitutional
right -- the right to speak to the issues touching on sentencing
before one's fate is sealed. Yet where the trial is a unitary one,
the right of allocution even in a capital case is theoretical, not
real, as the Ohio procedure demonstrates. Petitioner also had the
protection of the Self-Incrimination Clause of the Fifth Amendment.
To obtain the benefit of the former he would have to surrender the
latter. MR. JUSTICE HARLAN, speaking for the Court, said in
Simmons v. United States, 390 U.
S. 377,
390 U. S. 394:
"[W]e find it intolerable that one constitutional right should have
to be surrendered in order to assert another."
We made that statement in the context of a case where an accused
testified on a motion to suppress evidence in order to protect his
Fourth Amendment rights but later discovered that the testimony
would be used by the prosecution as "a strong piece of evidence
against him."
Id. at
390 U. S. 391.
We held that the protection of his Fourth Amendment rights did not
warrant surrender or dilution of his Fifth Amendment rights.
In
United States v. Jackson, 390 U.
S. 570, we held unenforceable a federal statute which
made the death penalty applicable only to those who contested their
guilt before a jury. In that case, the "undeniable tension" was
between Fifth Amendment rights and Sixth Amendment rights. MR.
JUSTICE STEWART speaking for the Court said:
"The inevitable effect of any such provision is, of course, to
discourage assertion of the Fifth Amendment right not to plead
guilty and to deter exercise of the Sixth Amendment right to demand
a jury trial. If the provision had no other purpose or effect than
to chill the assertion of constitutional rights by penalizing
those
Page 402 U. S. 239
who choose to exercise them, then it would be patently
unconstitutional."
Id. at
390 U. S.
581.
That "undeniable tension" between two constitutional rights,
which led to that result in
Jackson and to a reversal in
Simmons, should lead to a reversal here. For the unitary
trial or single verdict trial, in practical effect, allows the
right to be heard on the issue of punishment only by surrendering
the protection of the Self-Incrimination Clause of the Fifth
Amendment.
The Court of Appeals for the Second Circuit indicated in
United States v. Branker, 418 F.2d 378, 380, that
Simmons prevented an accused's testimony at a hearing on
his application to proceed
in forma pauperis and for
appointment of counsel to be used by the prosecution as part of its
direct case against him:
"The defendant should enjoy his constitutional rights to counsel
and to appeal and the means of supporting his assertion of these
rights by his own testimony without running the risk that thereby
he may be incriminating himself with respect to the charges pending
against him."
The same result was reached by the Court of Appeals for the
District of Columbia Circuit in
Melson v. Sard, 131
U.S.App.D.C. 102, 402 F.2d 653, which held that a parolee who
testifies on a hearing in revocation of his parole may give
testimony that may not be used in a subsequent criminal trial in
violation of the Self-Incrimination Clause of the Fifth
Amendment:
"If a parolee is not given the full and free ability to testify
in his own behalf and present his case against revocation, his
right to a hearing before the Board would be meaningless.
Furthermore, his Fifth Amendment rights must not be conditioned 'by
the exaction of a price.'"
Id. at 104, 402 F.2d at 655.
Page 402 U. S. 240
The words "by the exaction of a price" are from
Garrity v.
New Jersey,
385 U. S. 493,
385 U. S. 500,
where we held that the threat of discharge of a policeman cannot be
used to secure incriminatory evidence against him. We said:
"There are rights of constitutional stature whose exercise a
State may not condition by the exaction of a price. Engaging in
interstate commerce is one. . . . Resort to the federal courts in
diversity of citizenship cases is another. . . . Assertion of a
First Amendment right is still another. . . . The imposition of a
burden on the exercise of a Twenty-fourth Amendment right is also
banned. . . . We now hold the protection of the individual under
the Fourteenth Amendment against coerced statements prohibits use
in subsequent criminal proceedings of statements obtained under
threat of removal from office, and that it extends to all, whether
they are policemen or other members of our body politic."
Ibid.
Melson v. Sard involved protection of a statutory right
to a hearing.
Garrity involved only employment rights. In
the same category is
Thomas v. United States, 368 F.2d
941, where the Court of Appeals for the Fifth Circuit held a
convicted man may not receive a harsher penalty than he would have
received if he had waived his Fifth Amendment right. And the Court
of Appeals for the District of Columbia Circuit expressed the same
view in
Scott v. United States, 135 U.S.App.D.C. 377, 419
F.2d 264.
If exaction of a constitutional right may not be made for
assertion of a statutory right (such as the right to a hearing on
parole revocation or the right to appeal), it follows
a
fortiori that the constitutional right to be free from the
compulsion of self-incrimination may not be
Page 402 U. S. 241
exacted as a condition to the constitutional right to be heard
on the issue of punishment.
The truth is, as MR. JUSTICE BRENNAN points out in his dissent
in these cases, that the wooden position of the Court, reflected in
today's decision, cannot be reconciled with the evolving gloss of
civilized standards which this Court, long before the time of those
who now sit here, has been reading into the protective procedural
due process safeguards of the Bill of Rights. It is as though a dam
had suddenly been placed across the stream of the law on procedural
due process, a stream which has grown larger with the passing
years.
The Court has history on its side -- but history alone. Though
nations have been killing men for centuries, felony crimes
increase. The vestiges of law enshrined today have roots in
barbaric procedures. Barbaric procedures such as ordeal by battle
that became imbedded in the law were difficult to dislodge.
[
Footnote 2/15] Though torture
was used to exact confessions, felonies mounted. Once it was
thought that "sanity" was determined by ascertaining whether a
person knew the difference between "right" and "wrong." Once it was
a capital offense to steal from the person something "above the
value of a shilling." [
Footnote
2/16]
Insight and understanding have increased with the years, though
the springs of crime remain in large part unknown. But our own
Federal Bureau of Investigation teaches that brains, not muscle,
solve crimes. Coerced confessions are not only offensive to
civilized standards, but not responsive to the modern needs of
criminal investigation. Psychiatry has shown that blind faith in
rightness and wrongness is no reliable measure of human
Page 402 U. S. 242
responsibility. The convergence of new technology for criminal
investigation and of new insight into mental disorders has made
many ancient legal procedures seem utterly unfair.
Who today would say it was not "cruel and unusual punishment"
within the meaning of the Eighth Amendment to impose the death
sentence on a man who stole a loaf of bread, or in modern parlance,
a sheet of food stamps? Who today would say that trial by battle
satisfies the requirements of procedural due process?
We need not read procedural due process as designed to satisfy
man's deep-seated sadistic instincts. We need not in deference to
those sadistic instincts say we are bound by history from defining
procedural due process so as to deny men fair trials. Yet that is
what the Court does today. The whole evolution of procedural due
process has been in the direction of insisting on fair procedures.
As the Court said in
Hebert v. Louisiana, 272 U.
S. 312,
272 U. S.
316-317:
"[S]tate action, whether through one agency or another, shall be
consistent with the fundamental principles of liberty and justice
which lie at the base of all our civil and political institutions
and not infrequently are designated as 'law of the land.' Those
principles are applicable alike in all the States and do not depend
upon or vary with local legislation."
One basic application of that test was made in
Moore v.
Dempsey, 261 U. S. 86,
261 U. S.
91:
"[I]f the case is that the whole proceeding is a mask -- that
counsel, jury and judge were swept to the fatal end by an
irresistible wave of public passion, and that the State Courts
failed to correct the wrong, neither perfection in the machinery
for correction nor the possibility that the trial court and
Page 402 U. S. 243
counsel saw no other way of avoiding an immediate outbreak of
the mob can prevent this Court from securing to the petitioners
their constitutional rights."
To allow a defendant in a state trial to be convicted by
confessions "extorted by officers of the State by brutality and
violence" was said by Mr. Chief Justice Hughes to be "revolting to
the sense of justice" and "a clear denial of due process."
Brown v. Mississippi, 297 U. S. 278,
297 U. S.
286.
In 1884 the Court in
Hurtado v. California,
110 U. S. 516,
110 U. S. 529,
said that due process was not frozen in content as of one point of
time:
"[T]o hold that such a characteristic is essential to due
process of law, would be to deny every quality of the law but its
age, and to render it incapable of progress or improvement. It
would be to stamp upon our jurisprudence the unchangeableness
attributed to the laws of the Medes and Persians."
The Court went on to point out that though due process has its
roots in Magna Carta, the latter contained words that changed with
meaning as the centuries passed.
Ibid. The Court noted
that "[t]his flexibility and capacity for growth and adaptation is
the peculiar boast and excellence of the common law."
Id.
at
110 U. S. 530.
And it went on to say that the generalities of our Constitution
should be treated in the same way:
"The Constitution of the United States was ordained, it is true,
by descendants of Englishmen, who inherited the traditions of
English law and history; but it was made for an undefined and
expanding future, and for a people gathered and to be gathered from
many nations and of many tongues. . . . There is nothing in Magna
Charta, rightly construed as a broad charter of public right and
law, which ought to exclude the best ideas of all systems and of
every
Page 402 U. S. 244
age; and as it was the characteristic principle of the common
law to draw its inspiration from every fountain of justice, we are
not to assume that the sources of its supply have been exhausted.
On the contrary, we should expect that the new and various
experiences of our own situation and system will mould and shape it
into new and not less useful forms."
Id. at
110 U. S.
530-531.
The Court pointed out that, in England, Magna Carta served
merely as a restraint on the executive and as a guide to the House
of Commons, the keeper of the Constitution. In this Nation,
however, the Constitution serves a different function.
"It necessarily happened, therefore, that, as these broad and
general maxims of liberty and justice held in our system a
different place and performed a different function from their
position and office in English constitutional history and law, they
would receive and justify a corresponding and more comprehensive
interpretation. Applied in England only as guards against executive
usurpation and tyranny, here they have become bulwarks also against
arbitrary legislation; but, in that application, as it would be
incongruous to measure and restrict them by the ancient customary
English law, they must be held to guarantee not particular forms of
procedure, but the very substance of individual rights to life,
liberty, and property."
Id. at
110 U. S.
532.
In more recent times the issue was forcefully stated by MR.
JUSTICE BLACK in
Chambers v. Florida, 309 U.
S. 227,
309 U. S.
236-237:
"Tyrannical governments had immemorially utilized dictatorial
criminal procedure and punishment to make scapegoats of the weak,
or of helpless political, religious, or racial minorities and those
who differed,
Page 402 U. S. 245
who would not conform and who resisted tyranny. . . . [A]
liberty loving people won the principle that criminal punishments
could not be inflicted save for that which proper legislative
action had already by 'the law of the land' forbidden when done.
But even more was needed. From the popular hatred and abhorrence of
illegal confinement, torture and extortion of confessions of
violations of the 'law of the land' evolved the fundamental idea
that no man's life, liberty or property be forfeited as criminal
punishment for violation of that law until there had been a charge
fairly made and fairly tried in a public tribunal free of
prejudice, passion, excitement, and tyrannical power. Thus, as
assurance against ancient evils, our country, in order to preserve
'the blessings of liberty,' wrote into its basic law the
requirement, among others, that the forfeiture of the lives,
liberties or property of people accused of crime can only follow if
procedural safeguards of due process have been obeyed."
That is all that is involved in this case. It is a mystery how,
in this day and age, a unitary trial that requires an accused to
give up one constitutional guarantee to save another constitutional
guarantee can be brought within the rubric of procedural due
process. It can be done only by a
tour de force by a
majority that stops the growth and evolution of procedural due
process at a wholly arbitrary line or harkens to the passions of
men. What a great regression it is when the end result is to
approve a procedure that makes the killing of people charged with
crime turn on the whim or caprice of one man or of 12!
By standards of a fair trial, the resolution of the question of
punishment requires rules and procedures different from those
pertaining to guilt. Mr. Justice
Page 402 U. S. 246
Butler, speaking for the Court in
Pennsylvania v. Ashe,
302 U. S. 51,
302 U. S. 55,
said:
"For the determination of sentences, justice generally requires
consideration of more than the particular acts by which the crime
was committed, and that there be taken into account the
circumstances of the offense, together with the character and
propensities of the offender. His past may be taken to indicate his
present purposes and tendencies and significantly to suggest the
period of restraint and the kind of discipline that ought to be
imposed upon him."
Justice [
Footnote 2/17] -- in
the sense of procedural due process -- is denied where a State
makes inadmissible evidence designed to educate the jury on the
character and propensities of the accused. Ohio does just that.
We noted in
Williams v. New York, 337 U.
S. 241,
337 U. S.
249-252, that the States have leeway in making available
to judges probation reports "to guide them in the intelligent
imposition of sentences" without submitting those reports to open
court testimony with cross-examination. We said, "The due process
clause should not be treated as a device for freezing the
evidential procedure of sentencing in the mold of trial procedure."
Id. at
337 U. S. 251.
But so far as I can ascertain we never have intimated that a State
can, consistently with procedural due process, close the door to
evidence relevant to the "intelligent imposition of sentences"
either by
Page 402 U. S. 247
judges or by juries.
Cf. Specht v. Patterson, supra, at
386 U. S.
608-609.
It is indeed too late to say that, absent a constitutional
amendment, procedural due process has no applicability to the
determination of the sentence which is imposed. In
Townsend v.
Burke, supra, at
334 U. S. 741,
we held a state sentence imposed "on the basis of assumptions"
concerning the defendant's criminal record "which were materially
untrue" was "inconsistent with due process of law" whether the
result was caused by "carelessness or design."
A fortiori
it would seem to follow that a procedure which is designed to bar
an opportunity to present evidence showing why "mercy" should be
extended to an accused in a death case lacks that fairness which is
implicit in due process.
The unitary trial is certainly not "mercy" oriented. That is,
however, not its defect. It has a constitutional infirmity because
it is not neutral on the awesome issue of capital punishment. The
rules are stacked in favor of death. It is one thing if the
legislature decides that the death penalty attaches to defined
crimes. It is quite another to leave to judge or jury the
discretion to sentence an accused to death or to show mercy under
procedures that make the trial death-oriented. Then the law becomes
a mere pretense, lacking the procedural integrity that would likely
result in a fair resolution of the issues. In Ohio, the deficiency
in the procedure is compounded by the unreviewability of the
failure to grant mercy. [
Footnote
2/18]
We stated in
Witherspoon v. Illinois, 391 U.
S. 510,
391 U. S. 521,
that "a State may not entrust the determination of whether a man
should live or die to a tribunal organized to return a verdict of
death." In that case, veniremen had been excluded from a jury for
cause "simply because
Page 402 U. S. 248
they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction."
Id. at
391 U. S. 522.
We concluded that no defendant "can constitutionally be put to
death at the hands of a tribunal so selected."
Id. at
391 U. S.
522-523.
The tribunal selected by Ohio to choose between death and life
imprisonment in first-degree murder cases is not palpably
"organized to return a verdict of death" in the
Witherspoon sense. But the rules governing and restricting
its administration of the unitary trial system, place the weights
on the side of man's sadistic drive. The exclusion of evidence
relevant to the issue of "mercy" is conspicuous proof of that
lopsided procedure; and the hazards to an accused resulting from
mingling the issues of guilt, insanity, and punishment in one
unitary proceeding are multiplied. Whether this procedure would
satisfy due process when dealing with lesser offenses may be
debated. But, with all deference, I see no grounds for debate where
the stake is life itself.
I would reverse this judgment of conviction.
[
Footnote 2/1]
State v. Murdock, 172 Ohio St. 221, 174 N.E.2d 543.
And see
State v. Pollard, 21 Ohio St.2d 171, 256 N.E.2d 620.
[
Footnote 2/2]
State v. Hector, 19 Ohio St.2d 167, 249 N.E.2d 912.
[
Footnote 2/3]
State v. Williams, 85 Ohio App. 236, 88 N.E.2d 420.
Merely taking the stand puts credibility in issue.
Hamilton v.
State, 39 Ohio App. 153, 177 N.E. 221.
[
Footnote 2/4]
Johns v. State, 42 Ohio App. 412, 182 N.E. 356.
[
Footnote 2/5]
State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868;
Hoppe v. State, 29 Ohio App. 467, 163 N.E. 715.
[
Footnote 2/6]
Silsby v. State, 119 Ohio St. 314, 164 N.E. 232.
[
Footnote 2/7]
"At common law the defendant in a felony case had a right,
called 'allocution,' to be asked formally whether he had 'anything
to offer why judgment should not be awarded against him.' . . .
[S]ince the common law judge generally had no discretion as to the
quantum of punishment in felony cases, the point of his question to
the defendant was not to elicit mitigating evidence or a plea for
leniency, but to give the defendant a formal opportunity to present
one of the strictly defined legal reasons which required the
avoidance or delay of sentencing: he was not the person convicted,
he had benefit of clergy or a pardon, he was insane, or if a woman,
she was pregnant."
Note, Procedural Due Process at Judicial Sentencing for Felony,
81 Harv.L.Rev. 821, 832-833.
"The common law right of the defendant to be asked if he wishes
to make a statement on his own behalf at the time of sentencing
would appear still to be recognized in more than half of the
American jurisdictions, although it finds expression in many forms
and comes from many sources. In at least one state, the right rises
to a constitutional level.
See R.I.Const. art. I, § 10;
Robalewski v. Superior Court, 197
A.2d 751 (R.I.1964). In many more states, the right is
guaranteed by statute. For a representative sample,
see
Cal.Penal Code §§ 1200, 1201 (1956); Iowa Code Ann. § 789.6 (1950);
Kan.Gen.Stat.Ann. § 62-1510 (1964); Mo.Rev.Stat. §§ 546.570,
546.580 (1953); N.Y.Code Crim.Proc. § 480 (1958); Okla.Stat.Ann.
tit. 22, § 970 (1958); Tex.Code Crim.Proc. art. 42.07 (1966);
Wash.Rev.Code Ann. § 10.64.040 (1961).
See also 48 Iowa
L.Rev. 172, 173-74 n. 11 (1962). In a few more jurisdictions, the
right is secured by rules of court.
See, e.g., N.J.Crim.
Prac.Rules, Superior and County Courts, Rule 3:7-10(d) (1967);
Fed.Rule Crim.Proc. 32(a)(1).
See also 39 F.R.D. 192-193
(1966);
Hill v. United States, 368 U. S.
424 (1962);
Green v. United States,
365 U. S.
301 (1961). In other jurisdictions, case law is the only
source of the defendant's right.
See Barrett, Allocution,
9 Mo.L.Rev. 115, 126-40 (1944)."
American Bar Association, Project on Standards for Criminal
Justice, Sentencing Alternatives and Procedures 254-255 (Approved
Draft, 1968).
[
Footnote 2/8]
As Mr. Chief Justice Warren said:
"Whether or not a State has recidivist statutes on its books, it
is well established that evidence of prior convictions may not be
used by the State to show that the accused has a criminal
disposition and that the probability that he committed the crime
currently charged is increased. While this Court has never held
that the use of prior convictions to show nothing more than a
disposition to commit crime would violate the Due Process Clause of
the Fourteenth Amendment, our decisions exercising supervisory
power over criminal trials in federal courts, as well as decisions
by courts of appeals and of state courts, suggest that evidence of
prior crimes introduced for no purpose other than to show criminal
disposition would violate the Due Process Clause."
Spencer v. Texas, 385 U.S. at
385 U. S.
572-574.
[
Footnote 2/9]
Turner v. State, 21 Ohio Law Abs. 276;
State v.
Klumpp, 15 Ohio Op.2d 461, 175 N.E.2d 767.
[
Footnote 2/10]
State v. Ames, 50 Ohio Law Abs. 311, 80 N.E.2d 168. The
result is the same if the sentencing decision is based on a guilty
plea or a jury waiver.
State v. Lucear, 93 Ohio App. 281,
109 N.E.2d 39;
State v. Ferguson, 175 Ohio St. 390, 195
N.E.2d 794.
[
Footnote 2/11]
Shelton v. State, 102 Ohio St. 376, 131 N.E. 704
(syllabus).
[
Footnote 2/12]
In
Caldwell, the jury was initially instructed:
"[W]hether you recommend or withhold mercy is a matter solely
within your discretion, calling for the exercise of your very best
and most profound judgment, not motivated by considerations of
sympathy or as a means of escaping a hard or disagreeable duty, but
must be considered by you in the light of all the circumstances of
the case with respect to the evidence submitted to you and the
other circumstances surrounding this defendant."
Following some deliberation the jury returned for special
instructions and the following occurred:
"Court: 'You should determine whether or not in your discretion
mercy should be granted from a consideration of the evidence, the
character of the crime and the attending circumstances.'"
"Foreman: 'What are extenuating circumstances? Are they
something which we can determine in our own judgment alone?'"
"Court: 'No, if there are any, you must determine them from the
evidence.'"
"Foreman: 'Well, then, may we consider sociological matters and
environment in determining this question of granting mercy?'"
"Court: 'No -- they have nothing whatever to do with this
case.'"
At this point defense counsel requested the following
instruction:
"In determining whether or not in your discretion you shall
grant mercy to the defendant, you may consider environmental
factors and sociological conditions, and in determining whether or
not these factors exist you shall consider all the evidence
permitted to go to you in this case, and all reasonable inferences
to be derived therefrom. You may also consider, in making up your
mind on the question of mercy, the appearance, demeanor and actions
of the defendant as you have seen him here in open court."
The Ohio Supreme Court held it was not error to refuse to give
this instruction because it was
"substantially identical with those contained in the answers of
the court to the jury, and its subject matter was covered in the
general charge. There was no occasion for repetition."
135 Ohio St. at 425-428, 21 N.E.2d at 344-345.
[
Footnote 2/13]
State v. Lucear, supra, 402
U.S. 183fn2/10|>n. 10.
[
Footnote 2/14]
There have been recurring demands that the Due Process Clause be
abolished.
See Clark, Some Recent Proposals for
Constitutional Amendment, 12 Wis.L.Rev. 313, 324-326 (1937). Others
have suggested that due process -- apart from the specifics in the
Bill of Rights -- should mean only such notice, procedures,
hearing, or trials as are prescribed by Congress or the States.
See Burns, The Death of
E Pluribus Unum, 19
DePaul L.Rev. 651, 682 (1970).
The critics of the existing regime have been numerous. Mr.
Justice Frankfurter once said:
"[T]he ultimate justification for nullifying or saying that what
Congress did, what the President did, what the legislature of
Massachusetts or New York or any other state did was beyond its
power is that provision of the Constitution which protects liberty
against infringement without due process of law. There are times, I
can assure you -- more times than once or twice -- when I sit in
this chair and wonder whether that isn't too great a power to give
to any nine men, no matter how wise, how well disciplined, how
disinterested. It covers the whole gamut of political, social, and
economic activities."
Of Law and Life and Other Things That Matter 129 (1965).
Yet none of us, I dare say, would conclude that (apart from
constitutional specifies) any notice, any procedure, any form of
hearings, any type of trial prescribed by any legislature would
pass muster under procedural due process. Our present disagreement
relates to what is essential for a fair trial if the conventional,
historic standards of procedural due process are to apply.
[
Footnote 2/15]
See 4 W. Blackstone, Commentaries *347-349. Ordeal by
battle was finally abolished in 1819 in England. 59 Geo. 3, c.
46.
[
Footnote 2/16]
1 J. Stephen, History of the Criminal Law of England 467
(1883).
[
Footnote 2/17]
It is commonly overlooked that justice is one of the goals of
our people as expressed in the Preamble of the Constitution:
"We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of
America."
[
Footnote 2/18]
Hoppe v. State, 29 Ohio App. 467, 163 N.E. 715.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting.
These cases test the viability of principles whose roots draw
strength from the very core of the Due Process Clause. The question
that petitioners present for our decision is whether the rule of
law, basic to our society and binding upon the States by virtue of
the Due Process Clause of the Fourteenth Amendment, is
fundamentally inconsistent with capital sentencing procedures that
are purposely constructed to allow the maximum possible variation
from one case to the next, and provide no mechanism to prevent that
consciously maximized variation from reflecting merely random or
arbitrary choice. The Court does not, however, come to grips with
that fundamental question. Instead, the Court misapprehends
Page 402 U. S. 249
petitioners' argument and deals with the cases as if petitioners
contend that due process requires capital sentencing to be carried
out under predetermined standards so precise as to be capable of
purely mechanical application, entirely eliminating any vestiges of
flexibility or discretion in their use. This misapprehended
question is then treated in the context of the Court's assumption
that the legislatures of Ohio and California are incompetent to
express with clarity the bases upon which they have determined that
some persons guilty of some crimes should be killed, while others
should live an assumption that, significantly, finds no support in
the arguments made by those States in these cases. With the issue
so polarized, the Court is led to conclude that the rule of law and
the power of the States to kill are in irreconcilable conflict.
This conflict the Court resolves in favor of the States' power to
kill.
In my view, the Court errs at all points from its premises to
its conclusions. Unlike the Court, I do not believe that the
legislatures of the 50 States are so devoid of wisdom and the power
of rational thought that they are unable to face the problem of
capital punishment directly, and to determine for themselves the
criteria under which convicted capital felons should be chosen to
live or die. We are thus not, in my view, faced by the dilemma
perceived by the Court, for cases in this Court have for almost a
century and a half approved a multiplicity of imaginative
procedures designed by the state and federal legislatures to assure
evenhanded treatment and ultimate legislative control regarding
matters that the legislatures have deemed either too complex or
otherwise inapposite for regulation under predetermined rules
capable of automatic application in every case. Finally, even if I
shared the Court's view that the rule of law and the power of the
States to kill are in irreconcilable
Page 402 U. S. 250
conflict, I would have no hesitation in concluding that the rule
of law must prevail.
Except where it incorporates specific substantive constitutional
guarantees against state infringement, the Due Process Clause of
the Fourteenth Amendment does not limit the power of the States to
choose among competing social and economic theories in the ordering
of life within their respective jurisdictions. But it does require
that, if state power is to be exerted, these choices must be made
by a responsible organ of state government. For if they are not,
the very best that may be hoped for is that state power will be
exercised, not upon the basis of any social choice made by the
people of the State, but instead merely on the basis of social
choices made at the whim of the particular state official wielding
the power. If there is no effective supervision of this process to
insure consistency of decision, it can amount to nothing more than
government by whim. But ours has been "termed a government of laws,
and not of men."
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 163
(1803). Government by whim is the very antithesis of due
process.
It is not a mere historical accident that "[t]he history of
liberty has largely been the history of observance of procedural
safeguards."
McNabb v. United States, 318 U.
S. 332,
318 U. S. 347
(1943) (Frankfurter, J.). The range of permissible state choice
among competing social and economic theories is so broad that
almost any arbitrary or otherwise impermissible discrimination
among individuals may mask itself as nothing more than such a
permissible exercise of choice unless procedures are devised which
adequately insure that the relevant choice is actually made. Such
procedures may take a variety of forms. The decisionmaker may be
provided with a set of guidelines to apply in rendering judgment.
His decision may be required to rest upon the presence or
absence
Page 402 U. S. 251
of specific factors. If the legislature concludes that the range
of variation to be dealt with precludes adequate treatment under
inflexible, predetermined standards it may adopt more imaginative
procedures. The specificity of standards may be relaxed, directing
the decisionmaker's attention to the basic policy determinations
underlying the statute without binding his action with regard to
matters of important but unforeseen detail. He may be instructed to
consider a list of factors -- either illustrative or exhaustive
intended to illuminate the question presented without setting a
fixed balance. The process may draw upon the genius of the common
law, and direct itself toward the refinement of understanding
through case-by-case development. In such cases, decision may be
left almost entirely in the hands of the body to which it is
delegated, with ultimate legislative supervision on questions of
basic policy afforded by requiring the decisionmakers to explain
their actions, and evenhanded treatment enhanced by requiring
disputed factual issues to be resolved and providing for some form
of subsequent review. Creative legislatures may devise yet other
procedures. Depending upon the nature and importance of the issues
to be decided, the kind of tribunal rendering judgment, the number
and frequency of decisions to be made, and the number of separate
tribunals involved in the process, these techniques may be applied
singly or in combination.
It is of critical importance in the present cases to emphasize
that we are not called upon to determine the adequacy or inadequacy
of any particular legislative procedure designed to give
rationality to the capital sentencing process. For the plain fact
is that the legislatures of California and Ohio, whence come these
cases, have sought no solution at all. We are not presented with a
State's attempt to provide standards, attacked as
Page 402 U. S. 252
impermissible or inadequate. We are not presented with a
legislative attempt to draw wisdom from experience through a
process looking toward growth in understanding through the
accumulation of a variety of experiences. We are not presented with
the slightest attempt to bring the power of reason to bear on the
considerations relevant to capital sentencing. We are faced with
nothing more than stark legislative abdication. Not once in the
history of this Court, until today, have we sustained against a due
process challenge such an unguided, unbridled, unreviewable
exercise of naked power. Almost a century ago, we found an almost
identical California procedure constitutionally inadequate to
license a laundry.
Yick Wo v. Hopkins, 118 U.
S. 356,
118 U. S.
366-367,
118 U. S.
369-370 (1886). Today we hold it adequate to license a
life. I would reverse petitioners' sentences of death.
I
"Our scheme of ordered liberty is based, like the common law, on
enlightened and uniformly applied legal principle, not on
ad
hoc notions of what is right or wrong in a particular
case."
J. Harlan, Thoughts at a Dedication: Keeping the Judicial
Function in Balance, in The Evolution of a Judicial Philosophy 289,
291-292 (D. Shapiro ed., 1969). [
Footnote 3/1] The dangers inherent in any grant of
governmental power without procedural safeguards upon its exercise
were known to English law long long before the Constitution was
established.
See, e.g., 8 How.St.Tr. 55-58, n. The
principle that our Government shall be of laws, and not of men, is
so strongly woven into our constitutional fabric that it has found
recognition in not just one, but several, provisions of the
Page 402 U. S. 253
Constitution. [
Footnote 3/2] And
this principle has been central to the decisions of this Court
giving content to the Due Process Clause. [
Footnote 3/3] As we said in
Hurtado y.
California, 110 U. S. 516,
110 U. S.
535-536 (1884):
"[I]t is not to be supposed that . . . the amendment prescribing
due process of law is too vague and
Page 402 U. S. 254
indefinite to operate as a practical restraint. . . . Law is
something more than mere will exerted as an act of power. It must
be not a special rule for a particular person or a particular case,
but . . . 'the general law . . .' so 'that every citizen shall hold
his life, liberty, property and immunities under the protection of
the general rules which govern society,' and thus excluding, as not
due process of law, acts of attainder, bills of pains and
penalties, acts of confiscation . . . and other similar special,
partial and arbitrary exertions of power under the forms of
legislation. Arbitrary power, enforcing its edicts to the injury of
the persons and property of its subjects, is not law, whether
manifested as the decree of a personal monarch or of an impersonal
multitude."
The principal function of the Due Process Clause is to insure
that state power is exercised only pursuant to procedures adequate
to vindicate individual rights. [
Footnote 3/4]
Page 402 U. S. 255
While we have, on rare occasions, held that due process requires
specific procedural devices not explicitly commanded by the Bill of
Rights, [
Footnote 3/5] we have
general either indicated one acceptable procedure and left the
States free to devise others [
Footnote
3/6] or else merely ruled upon the validity or invalidity of a
particular procedure without attempting to limit or even guide
state choice of procedural mechanisms beyond stating the obvious
proposition that inadequate mechanisms may not be employed.
[
Footnote 3/7] Several principles,
however, have until today been consistently employed to guide
determinations of the adequacy of any given state procedure. "When
the Government exacts . . . much, the importance of fair, even
Page 402 U. S. 256
handed, and uniform decisionmaking is obviously intensified."
Gillette v. United States, 401 U.
S. 437,
401 U. S. 455
(1971). Procedures adequate to determine a welfare claim may not
suffice to try a felony charge.
Compare Goldberg v. Kelly,
397 U. S. 254,
397 U. S.
270-271 (1970),
with Gideon v. Wainwright,
372 U. S. 335
(1963). Second, even where the only rights to be adjudicated are
those created and protected by state law, due process requires that
state procedures be adequate to allow all those concerned a fair
hearing of their state law claims.
Boddie v. Connecticut,
401 U. S. 371
(1971);
Covey v. Town of Somers, 351 U.
S. 141 (1956);
Mullane v. Central Hanover Trust
Co., 339 U. S. 306
(1950). Third, where federally protected rights are involved, due
process commands not only that state procedure be adequate to
assure a fair hearing of federal claims,
In re Gault,
387 U. S. 1 (1967),
but also that it provide adequate opportunity for review of those
federal claims where such review is otherwise available.
Goldberg v. Kelly, 397 U.S. at
397 U. S. 271;
Boykin v. Alabama, 395 U. S. 238,
395 U. S.
242-244 (1969);
Jackson v. Denno, 378 U.
S. 368,
378 U. S. 387
(1964);
cf. North Carolina v. Pearce, 395 U.
S. 711,
395 U. S.
725-726 (1969);
In re Murchison, 349 U.
S. 133,
349 U. S. 136
(1955). Finally, and closely related to the previous point, due
process requires that procedures for the exercise of state power be
structured in such a way that, ultimately at least, fundamental
choices among competing state policies are resolved by a
responsible organ of state government.
Louisiana v. United
States, 380 U. S. 145,
380 U. S.
152-153 (1965) (BLACK, J.);
FCC v. RCA
Communications, Inc., 346 U. S. 86,
346 U. S. 90
(1953);
Niemotko v. Maryland, 340 U.
S. 268 (1951);
United States v. Rock Royal
Co-op, 307 U. S. 533,
307 U. S. 574,
575 (1939);
Currin v. Wallace, 306 U. S.
1,
306 U. S. 15
(1939);
Lovell v. Griffin, 303 U.
S. 444 (1938);
Browning v. Hooper, 269 U.
S. 396,
269 U. S.
405-406 (1926);
McKinley v. United States,
249 U. S. 397,
249 U. S. 399
(1919);
Eubank v.
Page 402 U. S. 257
Richmond, 226 U. S. 137,
226 U. S.
143-144 (1912);
Yick Wo v. Hopkins, 118 U.S. at
118 U. S.
366-367,
118 U. S.
369-370. The damage that today's holding, if followed,
would do to our constitutional fabric can only be understood from a
closer examination of our cases than is contained in the Court's
opinion. I therefore turn to those cases.
A
Analysis may usefully begin with this Court's cases applying
what has come to be known as the "void for vagueness" doctrine. It
is sometimes suggested that in holding a statute void for
vagueness, this Court is merely applying one of two separate
doctrines: first, that a criminal statute must give fair notice of
the conduct that it forbids,
e.g., Lanzetta v. New Jersey,
306 U. S. 451
(1939);
Connally v. General Construction Co., 269 U.
S. 385,
269 U. S. 391
(1926); and second, that a statute may not constitutionally be
enforced if it indiscriminately sweeps within its ambit conduct
that may not be the subject of criminal sanctions as well as
conduct that may.
E.g., Bagett v. Bullitt, 377 U.
S. 360 (1964);
Dombrowski v. Pfister,
380 U. S. 479,
380 U. S.
492-496 (1965). To this is often added the observation
that both doctrines apply with particular vigor to state regulation
of conduct at or near the boundaries of the First Amendment.
See United States v. National Dairy Corp., 372 U. S.
29,
372 U. S. 36
(1963);
Smith v. California, 361 U.
S. 147,
361 U. S.
150-152 (1959). [
Footnote
3/8] But unless it be assumed that our decisions in such
matters have shown an almost unparalleled inconsistency, these
factors may not be taken as more than a partial explanation of the
doctrine.
Page 402 U. S. 258
To begin with, we have never treated claims of unconstitutional
statutory vagueness in terms of the statute as written or as
construed prior to the time of the conduct in question. Instead, we
have invariably dealt with the statute as glossed by the courts
below at the time of decision here.
E.g., Giaccio v.
Pennsylvania, 382 U. S. 399
(1966);
Winters v. New York, 333 U.
S. 507 (1948);
Cox v. New Hampshire,
312 U. S. 569
(1941). In
Musser v. Utah, 333 U. S.
95 (1948), we even remanded a criminal case to the Utah
Supreme Court for a construction of the statute so that its
possible vagueness could be analyzed. In dealing with vagueness
attacks on federal statutes, we have not hesitated to construe the
statute to avoid vagueness problems and, having so construed it,
apply it to the case at hand.
See United States v. Vuitch,
ante, p.
402 U. S. 62
(1971);
Dennis v. United States, 341 U.
S. 494,
341 U. S. 502
(1951);
Kay v. United States, 303 U. S.
1 (1938). If the vagueness doctrine were fundamentally
premised upon a concept of fair notice, such treatment would simply
make no sense: a citizen cannot be expected to foresee subsequent
construction of a statute by this or any other court.
See
Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533,
540-542 (1951). But if, as I believe, the doctrine of vagueness is
premised upon the fundamental notion that due process requires
governments to make explicit their choices among competing social
policies,
see infra at
402 U. S.
259-265, the inconsistency between theory and practice
disappears. Of course, such a choice, once made, is not
irrevocable: statutes may be amended and statutory construction
overruled. Nevertheless, an explicit state choice among possible
statutory constructions substantially reduces the likelihood that
subsequent convictions under the statute will be based on
impermissible
Page 402 U. S. 259
factors. [
Footnote 3/9] It also
renders more effective the available mechanisms for judicial
review, by increasing the likelihood that impermissible factors, if
relied upon, will be discernible from the record. Thus, in
Thompson v. Louisville, 362 U. S. 199
(1960), we were faced with the application of a specific vagrancy
statute to conduct -- dancing in a public bar -- that there is no
reason to believe could not have been constitutionally prohibited
had the State chosen to do so. We were, however, able to examine
the record and conclude that there was in fact, no evidence that
could support a conviction under the statute.
Cf. Bachellar v.
Maryland, 397 U. S. 564
(1970) (impossible to determine whether verdict rested upon
permissible or impermissible grounds).
Second, in dealing with statutes that are unconstitutionally
overbroad, we have consistently indicated that
"once an acceptable limiting construction is obtained, [such a
statute] may be applied to conduct occurring prior to the
construction, provided such application affords fair warning to the
defendants."
Dombrowski v. Pfister, 380 U.S. at
380 U. S. 491
n. 7 (citations omitted); [
Footnote
3/10]
see, e.g., Poulos v. New Hampshire, 345 U.
S. 395 (1953). That is, an unconstitutionally overbroad
statute may not be enforced at all until an acceptable construction
has been obtained,
e.g., 310 U. S.
Alabama,
Page 402 U. S. 260
310 U. S. 88
(1940); but once such a construction has been made, the statute as
construed may be applied to conduct occurring prior to the limiting
construction. If notice and overbreadth were the only components of
the vagueness doctrine, this treatment would, once again, be
inexplicable. So far as notice is concerned, one who has engaged in
certain conduct prior to the limiting construction of an overbroad
statute has obviously not received from that construction any
warning that would have enabled him to keep his conduct within the
bounds of law. Similarly, if adequate notice has in fact, been
given by an overbroad statute that certain conduct was criminally
punishable, it is hard to see how the doctrine of overbreadth is
furthered by forbidding the State, on the one hand, to punish that
conduct so long as an acceptable limiting construction has not been
obtained, but permitting it to punish the same, prior conduct once
the statute has been acceptably construed. Once again, however, our
actions are not at all inexplicable if examined in the terms
articulated here. Once an acceptable limiting construction has in
fact, been obtained, there is by that very fact an assurance that a
responsible organ of state power has made an explicit choice among
possible alternative policies: for it should not be forgotten that
the States possess constitutional power to make criminal much
conduct that they may not wish to forbid, or may even desire to
encourage. If a vague or overbroad statute is applied before it has
been acceptably construed, there remains the danger that an
individual whose conduct is admittedly clearly within the scope of
the statute on its face will be punished for actions which in fact,
the State does not desire to make generally punishable -- conduct
which, if engaged in by another person, would not be subject to
criminal liability.
Shuttlesworth v. Birmingham,
382 U. S. 87,
382 U. S. 91-92
(1965). Allowing a vague or overbroad statute to be enforced if,
and only if, an acceptable construction
Page 402 U. S. 261
has been obtained forces the State to make explicit its social
choices and prevents discrimination through the application of one
policy to one person and another policy to others. [
Footnote 3/11]
Page 402 U. S. 262
Particularly relevant to the present case is our decision in
Giaccio v. Pennsylvania, 382 U. S. 399
(1966). That case involved a statute whereby Pennsylvania attempted
to mitigate the harshness of its common law rule requiring criminal
defendants to pay the costs of prosecution in all cases [
Footnote 3/12] by committing the matter
to the discretion of the jury in cases where the defendant was
found not guilty. [
Footnote 3/13]
Two members of this Court, concurring in the result, would have
held that due process forbade the imposition of costs upon an
acquitted defendant. 382 U.S. at
382 U. S. 405.
We refused, however, to base our decision on that ground. In an
opinion by my Brother BLACK, we said:
"We agree with the trial court . . . that the 1860 Act is
invalid under the Due Process Clause because of vagueness and the
absence of any standards sufficient to enable defendants to
protect themselves against arbitrary and discriminatory impositions
of costs."
"
* * * *"
". . . It is established that a law fails to meet the
requirements of the Due Process Clause if it is so vague and
standardless that it leaves the public uncertain as to the conduct
it prohibits or
leaves judges and jurors free to decide,
without any legally fixed standards, what is prohibited and what is
not in each particular case. This 1860 Pennsylvania Act
contains no standards at all. . . . Certainly one of the basic
purposes of the Due Process Clause has always been to protect a
person against having the
Page 402 U. S. 263
Government impose burdens upon him except in accordance with the
valid laws of the land. Implicit in this constitutional safeguard
is the premise that
the law must be one that carries an
understandable meaning with legal standards that courts must
enforce. . . ."
". . . The State contends that . . . state court interpretations
have provided standards and guides that cure the . . .
constitutional deficiencies. We do not agree. . . . In this case,
the trial judge instructed the jury that it might place the costs
of prosecution on the appellant, though found not guilty of the
crime charged, if the jury found that"
"he has been guilty of some misconduct less than the offense
which is charged but nevertheless misconduct of some kind as a
result of which he should be required to pay some penalty short of
conviction [and] . . . his misconduct has given rise to the
prosecution."
"It may possibly be that the trial court's charge comes nearer
to
giving a guide to the jury than those that preceded it,
but it still falls short of the kind of legal standard due process
requires. . . ."
382 U.S. at
382 U. S.
402-404 (emphasis added) (citations omitted). [
Footnote 3/14]
Several features of
Giaccio are especially pertinent in
the present context. First, there were no First Amendment
implications in either the conduct charged or that in which Giaccio
claimed to have engaged: the State's evidence was to the effect
that Giaccio had wantonly discharged a firearm at another, in
violation of Pa.Stat.
Page 402 U. S. 264
Ann., Tit. 18, § 4716 (1963), and Giaccio's defense was that
"the firearm he had discharged was a starter pistol which only
fired blanks." 382 U.S. at
382 U. S. 400. Second, we were not presented with a
defendant who had been convicted for conduct he could not have
known was unlawful. Whether or not Giaccio's actions fell within §
4716, his conduct was unquestionably punishable under other state
laws,
e.g., Pa.Stat.Ann., Tit. 18, § 4406 (1963). Finally,
it is worthy of note that, in
Giaccio, two members of this
Court explicitly sought to base the result upon the ground that, as
a matter of substantive due process, the States were forbidden to
impose the costs of prosecution upon an acquitted defendant. 382
U.S. at
382 U. S. 405
(concurring opinions of STEWART and Fortas, JJ.). Yet we refused to
place decision on any such ground. We held instead, consistently
with our prior decisions, that the procedure for determining
Giaccio's punishment lacked the safeguards against arbitrary action
that are required by due process of law. [
Footnote 3/15]
Page 402 U. S. 265
Our decisions applying the Due Process Clause through the
doctrine of unconstitutional vagueness, then, lead to the following
conclusions. First, the protection against arbitrary and
discriminatory action embodied in the Due Process Clause requires
that state power be exerted only through mechanisms that assure
that fundamental choices among competing state policies be
explicitly made by some responsible organ of the State. [
Footnote 3/16] Second, the cases suggest
that due process requires as well that state procedures for
decision of questions that may have adverse consequences for an
individual neither leave room for the deprivation
sub
silentio of the individual's federally protected rights nor
unduly frustrate the federal judicial review provided for the
vindication of those rights. This second point is explicitly made
in a not unrelated line of cases, to which I now turn.
Page 402 U. S. 266
B
Whether through its own force or only through the application of
other, specific constitutional guarantees, the Due Process Clause
of the Fourteenth Amendment protects individuals from a narrow
class of impermissible exertions of power by the States. As applied
to the procedures whereby admittedly permissible state power is
exerted, however, the Due Process Clause has consistently been
given a wider scope. "[O]ur system of law has always endeavored to
prevent even the probability of unfairness."
In re
Murchison, 349 U. S. 133,
349 U. S. 136
(1955). Thus, we have never suggested that every judge who has been
the target of contemptuous, personal attacks by litigants or their
attorneys is incapable of rendering a fair decision on the merits
of a contempt charge against such persons; but we have consistently
held that, excepting only cases of urgent necessity, due process
requires that contempt charges in such cases be heard by a
different judge.
Mayberry v. Pennsylvania, 400 U.
S. 455 (1971);
In re Murchison, supra. And in
Tumey v. Ohio, 273 U. S. 510
(1927), we did not suggest that every judgment rendered by an
official who had a financial stake in the outcome was
ipso
facto the product of bias. Proceeding from a directly contrary
assumption, [
Footnote 3/17] we
nevertheless held that due process was violated by any
"procedure which would offer a possible temptation to the
average man . . . not to hold the balance nice, clear and true
between the State and the accused."
Id. at
273 U. S. 532.
In
Jackson v. Denno, 378 U. S. 368
(1964), one of the two grounds on which we struck down a New York
procedure that required a jury to determine the
Page 402 U. S. 267
voluntariness of a confession at the same time that it
determined his guilt of the crime charged was that the procedure
created an impermissible -- and virtually unreviewable risk that
the jury would not be able to disregard a confession that it felt
was both involuntary and true.
Id. at
378 U. S.
388-391. Similarly, in a long line of cases beginning
with
Lovell v. Griffin, 303 U. S. 444
(1938), we have repeatedly held that due process is violated by
state procedures for the administration of permit systems
regulating the public exercise of First Amendment rights if the
procedure allows a permit to be denied for impermissible reasons,
whether or not an individual can actually demonstrate that he was
denied a permit for activity which the State could not lawfully
prohibit. And only recently, in
Louisiana v. United
States, 380 U. S. 145
(1965), we were faced with a state procedure for determining voting
qualifications that, in the State's own words, vested "discretion
in the registrars of voters to determine the qualifications of
applicants for registration," but imposed "no definite and
objective standards upon registrars of voters for the
administration of the interpretation test."
Id. at
380 U. S. 152.
After quoting, with apparent approval, an 1898 state criticism of a
similar procedure on the ground that the "arbitrary power, lodged
with the registration officer, practically places his decision
beyond the pale of judicial review,"
ibid., we noted and
accepted the District Court's finding that "Louisiana . . .
provides no effective method whereby arbitrary and capricious
action by registrars of voters may be prevented or redressed."
Ibid. We continued:
"The applicant facing a registrar in Louisiana thus has been
compelled to leave his voting fate to that official's uncontrolled
power to determine whether the applicant's understanding of the
Federal or State Constitution is satisfactory. . . . The
cherished
Page 402 U. S. 268
right of people in a country like ours to vote cannot be
obliterated by the use of laws like this, which leave the voting
fate of a citizen to the passing whim or impulse of an individual
registrar. Many of our cases have pointed out the invalidity of
laws so completely devoid of standards and restraints."
380 U.S. at
380 U. S.
152-153. On that basis we held the Louisiana procedure
for determining the qualifications of prospective voters to be a
denial of due process.
Ibid. [
Footnote 3/18]
Diverse as they are, these cases rest upon common ground. They
all stand ineluctably for the proposition that due process requires
more of the States than that they not exert state power in
impermissible ways. Specifically, the rule of these cases is that
state procedures are inadequate under the Due Process Clause unless
they are designed to control arbitrary action and also to make
meaningful the otherwise available mechanism for judicial review.
We have elsewhere made this last point explicit. In
Specht v.
Patterson, 386 U. S. 605
(1967), we held that due process in commitment proceedings,
"whether denominated civil or criminal,"
id. at
386 U. S. 608,
requires "findings adequate to make meaningful any appeal that is
allowed."
Id. at
386 U. S. 610;
see Garner v. Louisiana, 368 U. S. 157,
368 U. S. 173
(1961). And in
Jackson v. Denno, supra, the alternative
ground on which we struck down a New York procedure for determining
the voluntariness of a confession by submitting that question to
the jury at the same time as the question of guilt was that the
"admixture of reliability and voluntariness in the
considerations of the jury would itself entitle a defendant to
further proceedings in any case in which the essential
Page 402 U. S. 269
facts are disputed, for we cannot determine how the jury
resolved these issues
and will not assume that they were
reliably and properly resolved against the accused."
378 U.S. at
378 U. S. 387
(emphasis added). In other words, due process forbids the States to
adopt procedures that would defeat the institution of federal
judicial review. [
Footnote
3/19]
The depth to which these principles are embedded in the concept
of due process is evidenced by the fact that we have, on occasion,
applied them not merely to rule that a particular state procedure
is or is not permissible under the Due Process Clause, but that a
particular, specific procedure is required by due process. We have
repeatedly held, for example, that a guilty plea and its inevitably
attendant waivers of federally guaranteed rights are valid only if
they represent a "voluntary and intelligent choice" on the part of
the defendant.
North Carolina v. Alford, 400 U. S.
25,
400 U. S. 31
(1970). The validity of a guilty plea may be tested on federal
habeas corpus, where facts outside the record may be pleaded and
proved.
Waley v. Johnston, 316 U.
S. 101 (1942). While recognizing the existence of such a
remedy, we held in
Boykin v. Alabama, 395 U.
S. 238 (1969), that due process requires a record
"adequate for any review that may be later sought,"
id. at
395 U. S. 244,
and does not permit protection of the federally guaranteed rights
to be relegated to "collateral proceedings that seek to probe murky
memories."
Ibid. Accordingly, we held that due process
requires a State, in accepting a plea of guilty, to make a
contemporaneous record adequate "to show that [the defendant] had
intelligently and knowingly pleaded guilty."
Id. at
395 U. S. 241.
And only last Term, in
Goldberg
Page 402 U. S. 270
v. Kelly, 397 U. S. 254
(1970), we held that, because a decision on the withdrawal of
welfare benefits must "rest solely on the legal rules and evidence
adduced at the hearing,"
id. at
397 U. S. 271,
due process requires that the decisionmaker "demonstrate compliance
with this elementary requirement" by "stat[ing] the reasons for his
determination and indicat[ing] the evidence he relied on."
Ibid.
C
In my view, the cases discussed above establish beyond
peradventure the following propositions.
First, due
process of law requires the States to protect individuals against
the arbitrary exercise of state power by assuring that the
fundamental policy choices underlying any exercise of state power
are explicitly articulated by some responsible organ of state
government.
Second, due process of law is denied by state
procedural mechanisms that allow for the exercise of arbitrary
power without providing any means whereby arbitrary action may be
reviewed or corrected.
Third, where federally protected
rights are involved due process of law is denied by state
procedures which render inefficacious the federal judicial
machinery that has been established for the vindication of those
rights. If there is any way in which these propositions must be
qualified, it is only that in some circumstances the impossibility
of certain procedures may be sufficient to permit state power to be
exercised notwithstanding their absence.
Cf. Carroll v.
President and Commissioners, 393 U. S. 175,
393 U. S. 182,
393 U. S.
184-185 (1968). But the judgment that a procedural
safeguard otherwise required by the Due Process Clause is
impossible of application in particular circumstances is not one to
be lightly made . This is all the more so when, as in the present
cases, the argument of impossibility is not made by the parties
before us, but only by this Court. Before we
Page 402 U. S. 271
conclude that capital sentencing is inevitably a matter of such
complexity that it cannot be carried out in consonance with the
fundamental requirements of due process, we should, at the very
least, examine the mechanisms developed in not incomparable
situations and previously approved by this Court. Therefore, before
examining the specific capital sentencing procedures at issue in
these cases in light of the Due Process Clause, I am compelled to
discuss both the mechanisms available for the control of arbitrary
action and the nature of the capital sentencing process.
II
A legislature that has determined that the State should kill
some but not all of the persons whom it has convicted of certain
crimes must inevitably determine how the State is to distinguish
those who are to be killed from those who are not. Depending
ultimately on the legislature's notion of wise penological policy,
that distinction may be hard or easy to make. [
Footnote 3/20] But capital sentencing is not the
only difficult question with which legislatures have ever been
faced. At least since
Wayman v.
Southard, 10 Wheat. 1 (1825), we have recognized
that the Constitution does not prohibit Congress from dealing with
such questions by delegating to others the responsibility for their
determination. It is not my purpose to trace in detail either the
sources and scope of the delegation doctrine or the extent to which
it is applicable to the States through the Due Process Clause.
Page 402 U. S. 272
It is sufficient to state that, in my view, whatever the sources
of the doctrine, [
Footnote 3/21]
its application to the States as a matter of due process [
Footnote 3/22] is merely a reflection of
the fundamental principles of due process already discussed: in my
Brother HARLAN's words, the delegation doctrine
"insures that the fundamental policy decisions in our society
will be made not by an appointed official but by the body
immediately responsible to the people [and] prevents judicial
review from becoming merely an exercise at large by providing the
courts with some measure against which to judge the official action
that has been challenged."
Arizona
v.
Page 402 U. S. 273
California, 373 U. S. 546,
373 U. S. 626
(1963) (dissenting in part). [
Footnote 3/23] My intention here is merely to provide
an admittedly brief sketch of the several mechanisms that Congress
has employed to assure that even with regard to the most complex
and intractable problems, delegation by Congress of the power to
make law has been subject to controls that limit the possibility of
arbitrary action and that assure that Congress retains the
responsibility for ultimate decision of fundamental questions of
national policy. With these mechanisms in mind, I intend briefly to
discus the considerations relevant to the problem of capital
sentencing with an eye to the question whether it may responsibly
be said that all of these mechanisms are impossible of application
by the States to the capital sentencing process.
A
At the outset, candor compels recognition that our cases
regarding the delegation by Congress of lawmaking power do not
always say what they seem to mean. Kenneth Culp Davis has been
instrumental in pointing out the "unreality" [
Footnote 3/24] of judicial language appearing to
direct attention solely to the presence or absence of statutory
"standards" [
Footnote 3/25] or an
"intelligible principle" [
Footnote
3/26] by which delegated authority may be guided.
See
generally 1
Page 402 U. S. 274
K. Davis, Administrative Law Treatise §§ 2.01 to 2.05 (1958). In
his words,
"The difficulty and complexity of some types of policy
determination requires that the legislative body should be allowed
to provide for the administrative working out of basic policy
through the use of specialized tribunals which use the common law
method of concentrating upon one particular, narrow, and concrete
problem at a time. The protection of advance legislative guidance
is of little or no consequence as compared with the protection that
can and should be provided through adequate procedural safeguards,
appropriate legislative supervision or reexamination, and the
accustomed scope of judicial review."
"
* * * *"
"The protection that comes from a hearing with a determination
on the record, from specific findings and reasons, from opportunity
for outside critics to compare one case with another, from critical
supervision by the legislative authority . . . and from judicial
review -- all this is likely to be superior to protection afforded
by definiteness of standards."
Id. §§ 2.05, at 98-99, 2.09, at 111 (1958). [
Footnote 3/27]
Page 402 U. S. 275
The point made by Professor Davis has, I think, often been
recognized by Congress. It is not surprising, then, to see that, in
many instances, Congress has focused its attention much less upon
the definition of precise statutory standards than on the creation
of other means adequate to assure that policy is set in accordance
with congressional desires and that individuals are treated
according to uniform principles, rather than administrative whim.
Viewed in this light, our cases may be considered as illustrating
at least three legislative techniques.
First. In a number of instances, Congress has in fact,
undertaken to regulate even rather complex questions by the
prescription of relatively specific standards. It is certainly an
open question whether determining what conduct should be subject to
criminal sanctions is any more difficult than determining what
those sanctions should be; yet Congress and the state legislatures
as well have regularly passed criminal codes embodying, in the
main, statutes directed at specifically and narrowly defined
conduct. [
Footnote 3/28]
Similarly, the Congress resolved what was certainly one of the most
delicate and complex questions before it in recent years -- the
extent, if any, to which the national interest warranted federal
regulation of organizations, including political parties,
infiltrated by, dominated by, or subject to foreign control -- not
by leaving the matter to anyone else, but by defining with careful
particularity the characteristics that were required before
Page 402 U. S. 276
an organization could be subject to such regulation.
See 50 U.S.C. §§ 782(3), (4), (4A), (5) (1964 ed., Supp.
V);
Communist Party v. SACB, 367 U. S.
1 (1961). Congressional response to the complex and
intractable problems of the depression era occasionally took a
similar form. Thus, the Act approved in
United States v. Rock
Royal Co-op., 307 U. S. 533
(1939), stated a congressional policy to restore parity prices in
milk, defined the term, and delegated to the Secretary of
Agriculture only the power to issue orders in terms themselves
specified in the Act, commanding minimum prices to be determined in
accordance with prescribed standards, to be applicable in areas
where prices had fallen below the limit set by Congress.
See
id. at
307 U. S.
575-577.
Second. In other circumstances, Congress has granted to
others the power to prescribe fixed rules to govern future activity
and adjudications. Such delegations of power permit the legislature
to declare the end sought and leave technical matters in the hands
of experts, [
Footnote 3/29] or to
leave to others the task of devising specific rules to carry out
congressional policy in a variety of factual situations. [
Footnote 3/30] Where, as is often the
case, even major policy decisions may turn on specialized knowledge
and expertise beyond legislative ken, delegation of rulemaking
power may be made under broad standards to a body chosen for
familiarity with the subject matter to be regulated. [
Footnote 3/31] But entirely aside from
whatever procedural
Page 402 U. S. 277
protections may be afforded interested parties prior to the
promulgation of administrative rules, [
Footnote 3/32] the very nature of the rulemaking
process provides significant guarantees both of evenhanded
treatment and of ultimate legislative supervision of fundamental
policy questions. Significantly, we have upheld delegations of
rulemaking power without standards to guide its exercise only in
two narrowly limited classes of cases. [
Footnote 3/33] We have otherwise searched the statute,
the legislative history, and the context in which the regulation
was enacted in order to discern and articulate a legislative
policy. [
Footnote 3/34] The point
is not whether an intelligible legislative policy was or was not
correctly inferred from the statute. The point is that such a
policy, once expressly articulated, not only serves to guide
subsequent administrative and judicial action, but also provides a
basis upon which the legislature may determine whether power is
being exercised in accordance
Page 402 U. S. 278
with its will. [
Footnote 3/35]
Where no intelligible resolution of fundamental policy questions
can be discerned from a statute or judicial decisions, the
rulemaking process itself serves to make explicit the agency's
resolution of these questions, thus allowing for meaningful
legislative supervision, [
Footnote
3/36] as well as providing bases both for judicial review of
agency action supposedly premised on the rule [
Footnote 3/37] and for refinement of an old rule
in light of experience gained in its administration.
Third. Perhaps the most common legislative technique
for dealing with complex questions that will arise in a myriad of
factual contexts has been the delegation to another group of
lawmaking power which may be exercised either through rulemaking or
the adjudication of individual cases, with choice between the two
left to the agency's judgment. Such schemes, while allowing broad
flexibility for the working out of policy on a case-by-case basis,
nevertheless have invariably provided substantial protections to
insure against arbitrary action and to guarantee that underlying
questions of policy are considered and resolved. As with the
delegation simply of rulemaking power, we have often found
substantial guidance in the language and history of the governing
statute.
New York Central Securities Corp. v. United
States, 287 U. S. 12
(1932);
Radio Commission v. Nelson Bros. Co., 289 U.
S. 266 (1933);
Sunshine Anthracite Coal Co. v.
Adkins, 310 U. S. 381
(1940). Agency action under such delegations must typically be
premised upon an explanation of both the findings and reasons for a
given
Page 402 U. S. 279
decision,
e.g., 5 U.S.C. § 557(c)(3) (1964 ed., Supp.
V), a requirement we have held to be far more than an empty
formality.
SEC v. Chenery Corp., 318 U. S.
80 (1943);
Phelps Dodge Corp. v. NLRB,
313 U. S. 177,
313 U. S.
196-197 (1941). The regular course of adjudication by a
continuing body required to explain the reasoning upon which its
decisions are based results in the accumulation of a body of
precedent from which, over time, general principles may be deduced.
See, e.g., the history of the Federal Communications
Commission's "fairness doctrine," traced in
Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367,
395 U. S.
375-379 (1969). We have often noted the importance of
administrative or judicial review in providing a check on the
exercise of arbitrary power,
Mulford v. Smith,
307 U. S. 38,
307 U. S. 49
(1939);
American Power & Light Co. v. SEC,
329 U. S. 90,
329 U. S. 105
(1946), and we have made clear that judicial review is designed to
reinforce internal protections against arbitrary or unconsidered
action while leaving questions of policy to the agency or the
Congress. Thus, we have withheld approval from agency action
unsupported by an indication of the reasons for that action,
Phelps Dodge Corp. v. NLRB, supra; where the reasons
articulated were improper,
Sicurella v. United States,
348 U. S. 385
(1955), even though the record might well support identical action
taken for different reasons,
SEC v. Chenery Corp., supra;
where administrative expertise relevant to the solution of a
problem had never been brought to bear upon it,
FCC v. RCA
Communications, Inc., 346 U. S. 86,
346 U. S. 91-92
(1953); where an apparent conflict in administrative rationales had
never been explained by the agency,
Barrett Line, Inc. v.
United States, 326 U. S. 179
(1945); and where a change in agency policy had taken place after
the particular adjudication concerned,
NLRB v. Gissel Packing
Co., 395 U. S. 575,
395 U. S.
615-616 (1969).
Page 402 U. S. 280
Combination of rulemaking and adjudicatory powers has proved a
particularly useful tool in situations where prescription of
detailed standards in the first instance has been difficult or
impossible for the Congress, yet the variety of factual situations
has rendered particularly important protection against random or
arbitrary decisions. Thus, in
Lichter v. United States,
334 U. S. 742
(1948), [
Footnote 3/38] this
Court dealt with the provisions of the original Renegotiation Act,
passed in April, 1942, which directed various administrative
officials to proceed with compulsory "renegotiation" of contracts
that had resulted in "excessive profits." The Act as originally
passed attempted no definition of such profits; within four months,
however, administrative practice had solidified about a list of six
factors to be considered in determining whether profits were
excessive; slightly more than two months later, these factors were
adopted by Congress in an amendment to the Act. In upholding the
original Act against a claim of excessive delegation, we stressed
both the rapid development of generally applicable standards,
id. at
334 U. S. 766,
334 U. S. 769,
334 U. S. 771,
334 U. S.
773-774,
334 U. S. 778,
334 U. S. 783,
and the availability of judicial review to check arbitrary or
inconsistent administrative action.
Id. at
334 U. S. 770,
334 U. S. 771,
334 U. S.
786-787.
B
The next question is whether there is anything inherent in the
nature of capital sentencing that makes impossible the application
of any or all of the means that have been elsewhere devised to
check arbitrary action. I think it is fair to say that the Court
has provided no explanation for its conclusion that capital
sentencing is inherently incapable of rational treatment. Instead,
it relies primarily on the Report of the [British] Royal
Commission
Page 402 U. S. 281
on Capital Punishment, which reaches conclusions substantially
identical with the following urged in 1785 by Archdeacon William
Paley to justify England's "Bloody Code" of more than 250 capital
crimes:
"[T]he selection of proper objects for capital punishment
principally depends upon circumstances which, however easy to
perceive in each particular case after the crime is committed, it
is impossible to enumerate or define beforehand; or to ascertain,
however, with that exactness, which is requisite in legal
descriptions. Hence, although it be necessary to fix, by precise
rules of law, the boundary on one side . . . yet the mitigation of
punishment . . . may, without danger, be intrusted to the executive
magistrate, whose discretion will operate upon those numerous,
unforeseen, mutable and indefinite circumstances, both of the crime
and the criminal, which constitute or qualify the malignity of each
offence. . . . For if judgment of death were reserved for one or
two species of crimes only . . . crimes might occur of the most
dangerous example, and accompanied with circumstances of heinous
aggravation, which did not fall within any description of offences
that the laws had made capital, and which, consequently, could not
receive the punishment their own malignity and the public safety
required. . . ."
"The law of England is constructed upon a different and a better
policy. By the number of statutes creating capital offences, it
sweeps into the net every crime which, under any possible
circumstances, may merit the punishment of death; but when the
execution of this sentence comes to be deliberated upon, a small
proportion of each class are singled out, the general character, or
the peculiar aggravations of whose crimes, render them fit examples
of public justice. . . . The wisdom and humanity of this design
Page 402 U. S. 282
furnish a just excuse for the multiplicity of capital offences,
which the laws of England are accused of creating beyond those of
other countries."
W. Paley, Principles of Moral and Political Philosophy 399-401
(6th Amer. ed. 1810). Significantly, the Court neglects to mention
that the recommendations of the Royal Commission on Capital
Punishment found little more favor in England than Archdeacon
Paley's. For the
"British have been unwilling to empower either courts or juries
to decide on life or death, insisting that death should be the
sentence of the law and not of the tribunal."
Symposium on Capital Punishment, 7 N.Y.L.F. 249, 253 (1961) (H.
Wechsler). Beyond the Royal Commission's Report, the Court supports
its conclusions only by referring to the standards proposed in the
Model Penal Code [
Footnote 3/39]
and judging them less than perfect. The Court neglects to explain
why the impossibility of perfect standards justifies making no
attempt whatsoever to control lawless action. In this context, the
words of Mr. Justice Frankfurter are instructive:
"It is not for this Court to formulate with particularity the
[standards] which would satisfy the Fourteenth Amendment. No doubt,
finding a want of such standards presupposes some conception of
what is necessary to meet the constitutional requirement we draw
from the Fourteenth Amendment. But many a decision of this Court
rests on some inarticulate major premise, and is none the worse for
it. A standard may be found inadequate without the necessity of
explicit delineation of the standards that would be adequate, just
as doggerel may be felt not to be poetry without the need of
writing an essay
Page 402 U. S. 283
on what poetry is."
Niemotko v. Maryland, 340 U.S. at
340 U. S. 285
(concurring in result).
But, although I find the Court's discussion inadequate, there
remains the question whether capital sentencing is inherently
incapable of being carried out under procedures that provide the
safeguards necessary to protect against arbitrary determinations. I
think not. I reach this conclusion for the following reasons.
First. It is important at the outset to recognize that
two separate questions are involved. The first question is what
ends any given State seeks to achieve by imposing the death
penalty. The second question is whether those ends will or will not
be served in any given case. The first question requires
determination of the penological policy adopted by the State in
choosing to kill some of its convicted criminals. [
Footnote 3/40] The second question requires that
the relevant facts in any particular case be determined, and that
the State's penological policy be applied to those facts.
Second. It is likewise important to bear in mind that
the complexity of capital sentencing in any particular jurisdiction
is inevitably a function of the penological policy to be applied.
It is not, inherently, a difficult question. Thus, if a State
should determine to kill those first-degree murderers who have been
previously convicted of murder, and only those persons, the
sentencing determination would ordinarily be a rather simple one.
[
Footnote 3/41] On the other
hand, if a State should determine to exclude only those
first-degree murderers who cannot be rehabilitated,
Page 402 U. S. 284
it is probably safe to assume that the question of proper
sentencing under such a policy would be a complex one indeed. It
should be borne in mind that either of these policies -- or a host
of others -- may have been applied in the cases before us.
[
Footnote 3/42]
Third. This is neither the time nor the place for an
essay on the purposes of criminal punishment. Yet some discussion
must be ventured. Without indicating any judgment as to their
propriety -- and without intending to suggest that no others may
exist -- it is apposite to note that the interests most often
discussed in connection with a State's capital sentencing policy
are four. [
Footnote 3/43] A State
may seek to inflict retribution on a wrongdoer, inflicting
punishment strictly in proportion to the offense committed. It may
seek, by the infliction of punishment, to deter others from
committing similar crimes. It may consider at least some wrongdoers
likely to commit other crimes, and therefore seek to prevent these
hypothetical future acts by removing such persons from society. It
may seek to rehabilitate most offenders, reserving capital
punishment only for those cases where it judges the likelihood of
rehabilitation to be less than a certain amount. I may assume that
many if not all States choosing to kill some convicted criminals
intend thereby to further more than one of the ends listed above;
and I need not doubt that some States may consider other policies
as well relevant to the decision. But I can see no reason
whatsoever that a State may be excused from declaring what policies
it seeks to further by the infliction of capital punishment merely
because it may be difficult to determine how those policies should
be applied in any particular case. If anything, it would seem that
the difficulty of decision in particular cases would support,
rather
Page 402 U. S. 285
than weaken the point that uniform decisionmaking requires that
state policy be explicitly articulated. Yet the Court seems somehow
to assume that jurors will be most likely to fulfill their function
and correctly apply a uniform state policy if they are never told
what that policy is. If this assumption finds support anywhere this
side of the Looking-Glass World, I am unaware of it.
Fourth. This is not to say, of course, that there may
be no room whatsoever for the exercise of discretion in the capital
sentencing process. But discretion, to be worthy of the name, is
not unchanneled judgment; it is judgment guided by reason and kept
within bounds. Otherwise, in Lord Camden's words, it is
"the law of tyrants: It is always unknown: It is different in
different men: It is casual, and depends upon constitution, temper,
passion. -- In the best, it is oftentimes caprice: In the worst, it
is every vice, folly, and passion to which human nature is
liable."
Hindson and Kersey, cited in 8 How.St.Tr. 57 n. It may
well be that any given State's notions of proper penological policy
are such that the precise amount of weight to be given to any one
factor in any particular case where death is a possible penalty is
incapable of determination beforehand. But that is no excuse for
refusing to tell the decisionmaker whether he should consider a
particular factor at all. Particularly where decisions are made not
by a continuing body of persons, but by groups selected to make a
single decision and dispersed immediately after the event, the
likelihood of any consistency whatsoever is vanishingly small.
"Perfection may not be demanded of law, but the capacity to
counteract inevitable . . . frailties is the mark of a civilized
legal mechanism."
Rosenberg v. United States, 346 U.
S. 273,
346 U. S. 310
(1953) (Frankfurter, J., dissenting). The point is that, even if a
State's notion of wise capital sentencing policy is such that the
policy cannot be implemented through a formula capable of
mechanical application
Page 402 U. S. 286
-- something which, incidentally, cannot be known unless and
until the State makes explicit precisely what that policy is --
there is no reason that it should not give some guidance to those
called upon to render decision.
Fifth. As I have already indicated, typical legislative
response to problems deemed of sufficient urgency that some
solution must be implemented immediately, yet, at the same time, of
sufficient difficulty as to be incapable of explicit statutory
solution, has been to provide a means whereby the law may be
usefully developed on a case-by-case basis: systems are devised
whereby each case may be decided upon its facts, with consistency
and the development of more general principles left to the wisdom
that comes from experience. I am speaking, of course, of the
administrative process, where the basis and reasons for any given
decision are explained and subject to review. I see no reason that
capital sentencing is
ipso facto unsuited to such
treatment. To begin with, if a legislature should deem its present
knowledge insufficient to create proper standards, it is hard
indeed to see why its solution should not be one that could
ultimately lead to the development of such standards.
Cf.
Lichter v. United States, 334 U. S. 742
(1948). I see no reason that juries which have determined that a
given person should be killed by the State should be unable to
explain why they reached that decision, and the facts upon which it
was based. Persons dubious about the ability of juries to explain
their findings should consult
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 95-114
(1810) (findings of trial jury).
Cf. Fed.Rule Civ.Proc.
49. Even if it be assumed that juries are incapable of making such
explanations, we have already held that such inability does not
excuse the State from providing a sentencing process that provides
reasons for the decisions reached if those reasons are otherwise
required.
North Carolina v. Pearce, 395 U.
S. 711,
395 U. S. 726
(1969).
Page 402 U. S. 287
In sum, I see no reason whatsoever to believe that the nature of
capital sentencing is such that it cannot be surrounded with the
protections ordinarily available to check arbitrary and lawless
action. That it has not been is, of course, no reason to believe
that it cannot be:
"As to impossibility, all I can say is that nothing is more true
of [the legal] profession than that the most eminent among them,
for 100 years, have testified with complete confidence that
something is impossible which, once it is introduced, is found to
be very easy of administration. The history of legal procedure is
the history of rejection of reasonable and civilised standards in
the administration of law by most eminent judges and leading
practitioners. . . . Every effort to effect improving changes is
resisted on the assumption that man's ultimate wisdom is to be
found in the legal system as at the date at which you try to make a
change."
F. Frankfurter, The Problem of Capital Punishment, in Of Law and
Men 77, 86 (1956).
III
I have explained above the reasons for my belief that the Due
Process Clause of the Fourteenth Amendment compels the States to
make explicit the fundamental policy choices upon which any
exertion of state power is based, and to exercise such power only
under procedures that both limit the possibility of merely
arbitrary action and provide a record adequate to render meaningful
the institution of federal judicial review. I have also explained
why, in my view, there is nothing inherent in the nature of capital
sentencing that makes application of such procedures impossible.
There remains, then, only the question whether the two state
procedures under review today provide the necessary safeguards.
Page 402 U. S. 288
A
In Ohio, if a capital defendant elects trial by jury the
questions whether he is guilty of the crime charged and, if so,
whether he should be killed are simultaneously submitted to the
jury. Jury trial may, however, be waived as of right in capital
cases,
State v. Smith, 123 Ohio St. 237, 174 N.E. 768
(1931), [
Footnote 3/44] or a
defendant may, with the permission of the court, enter a plea of
guilty.
State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362
(1925). In the absence of jury trial, the sentencing decision is
made by a three-judge court. Ohio Rev.Code Ann. § 2945.06
(1954).
A defendant who exercises his right to jury trial may introduce
only evidence relevant to the question of guilt. No evidence may
"be introduced directed specifically toward a claim for mercy,"
Ashbrook v. State, 49 Ohio App. 298, 302, 197 N.E. 214,
216 (1935), for that "is a matter vested fully and exclusively in
the discretion of the jury,"
State v. Ellis, 98 Ohio St.
21, 120 N.E. 218 (court's syllabus) (1918), and therefore, under
Ohio law, is "not an issue in the case."
Ashbrook v. State,
supra. A defendant who can present no evidence on the question
of guilt may not, therefore, present any evidence whatsoever to the
sentencing jury.
A defendant who waives jury trial, however, is in a somewhat
different situation. Presumably, of course, the same rules of
evidence apply at a bench trial or at a trial upon a plea of
guilty. [
Footnote 3/45] Where the
sentencing
Page 402 U. S. 289
determination is made by the court, however, two additional
factors apply. First, the defendant has an absolute right to
address the court before sentence is imposed, Ohio Rev.Code Ann. §
2947.05 (1954), denial of which is a ground for resentencing.
Silsby v. State, 119 Ohio St. 314, 164 N.E. 232 (1928).
Since the jury's decision that a defendant should be killed is
unreviewable by any court,
State v. Klumpp, 15 Ohio Op.2d
461, 468, 175 N.E.2d 767, 775-776,
appeal dismissed, 171
Ohio St. 62, 167 N.E.2d 778 (1960) (trial court);
State v.
Reed, 85 Ohio App. 36, 84 N.E.2d 620 (1948), exercise of this
right can have no effect on the sentencing determination in jury
cases. But the trial court may modify its own sentence during the
same term of court,
see Lee v. State, 32 Ohio St. 113
(1877), and may therefore be swayed by the defendant's personal
plea. Moreover, Ohio Rev.Code Ann. § 2947.06 (Supp. 1970) expressly
permits a trial court to "hear testimony of mitigation of a
sentence at the term of conviction or plea." If this statute is
applicable to capital cases, [
Footnote 3/46] defendants pleading guilty or waiving
jury trial may introduce additional information on the question of
sentence. Again, however, the unreviewability of a jury sentence
means that it can have no effect in cases tried to a jury. Finally,
a death sentence imposed by a three-judge court may not be reviewed
or modified on appeal.
State v. Ferguson, 175 Ohio St.
390, 195 N.E.2d 794 (1964);
State v. Stewart, 176 Ohio St.
156, 198 N.E.2d 439 (1964).
The standard instruction given capital juries on the question of
punishment appears in
State v. Caldwell, 135 Ohio St. 424,
425, 21 N.E.2d 343, 344 (1939):
"[Y]ou will determine whether or not you will extend or withhold
mercy. . . . In that connection
Page 402 U. S. 290
whether you recommend or withhold mercy is a matter solely
within your discretion, calling for the exercise of your very best
and most profound judgment, not motivated by considerations of
sympathy or as a means of escaping a hard or disagreeable duty, but
must be considered by you in the light of all the circumstances of
the case with respect to the evidence submitted to you and the
other circumstances surrounding this defendant."
The jury may be instructed that "sociological matters and
environment" have "nothing whatever to do with [the] case,"
id. at 428, 21 N.E.2d at 344, but it appears that this
instruction is not generally given. Likewise, the trial court may,
but is not compelled to, inform the jury about matters such as
parole from a sentence to life imprisonment.
State v.
Meyer, 163 Ohio St. 279, 126 N.E.2d 585 (1955);
State v.
Henley, 15 Ohio St.2d 86, 238 N.E.2d 773 (1968). In petitioner
Crampton's case, the jury was instructed generally that it should
not be "influenced by any consideration of sympathy or prejudice."
On the question of punishment, it was told only that
"[i]f you find the defendant guilty of murder in the first
degree, the punishment is death, unless you recommend mercy, in
which event the punishment is imprisonment in the penitentiary
during life."
The jury was also handed a verdict form with a "line which you
must fill in. We -- blank -- recommend mercy and you will put in
that line, we do, or, we do not, according to your finding." Except
for a supplementary instruction informing the jury that its
recommendation had to be unanimous, no further instructions on the
question of punishment were given the jury.
There is, in my view, no way that this Ohio capital sentencing
procedure can be thought to pass muster under the Due Process
Clause.
Page 402 U. S. 291
First. Nothing whatsoever in the process either sets
forth the basic policy considerations that Ohio believes relevant
to capital sentencing, or leads towards elucidation of these
considerations in the light of accumulated experience. The standard
jury instruction contains at best an obscure hint. [
Footnote 3/47] The instructions given in
the present case contain none whatsoever. So far as they are
concerned, the jury could have decided to impose the death penalty
as a matter of simple vengeance for what it considered an atrocious
crime; because it felt that imposition of the death penalty would
deter other potential murderers; or because it felt that
petitioner, if not himself killed, might kill or commit some other
wrong in the future. The jury may have been influenced by any, all,
or none of these considerations. If it is beyond the present
ability of the Ohio Legislature to "identify before the fact those
characteristics of criminal homicides and their perpetrators which"
--
in the judgment of the State of Ohio --
"call for the death penalty, and to express these
characteristics in language which can be fairly understood and
applied by the sentencing authority,"
ante at
402 U. S. 204,
the Ohio procedure is hardly designed to improve that ability. It
contains no element of the proudest tradition of the common law --
the ability to grow with time by slowly deriving principles of
general applicability from careful consideration of the myriad
facts of a multitude of particular cases. Neither we nor the State
of Ohio can know the reasoning by which this jury determined to
impose the death penalty, or the facts upon which that reasoning
was based. All we know is that the jury did not appear to find the
question a particularly difficult one. For the jury determined that
James Edward Crampton had murdered his wife, that he had done so
while legally sane, and that he should be killed -- in less than
five hours.
Page 402 U. S. 292
Second. The policies applied by the State of Ohio to
determine that James Edward Crampton should die were neither
articulated to nor explained by the jury that made that decision.
Nor have they been elsewhere set forth. The standard jury
instructions, quoted
supra at
402 U. S.
289-290, do tell the jury to reach its determination
"in the light of all the circumstances of the case with respect
to the evidence submitted to you and the other circumstances
surrounding this defendant."
A perceptive jury might conclude that this instruction indicates
that Ohio considers the relative severity of the crime a factor of
substantial importance in the determination of sentence. How the
jury is to determine the severity of the crime before it in
relation to others is, however, something of a mystery, since Ohio
law simultaneously demands that the sentencing determination be
based strictly upon the evidence adduced in the case at hand,
Howell v. State, 102 Ohio St. 411, 131 N.E. 706 (1921),
and forbids the defendant to introduce evidence of other crimes or
other judgments to aid the jury in determining whether the murder
he has committed is more or less severe than other murders.
Ashbrook v. State, supra. Similarly, by directing the
jury's attention to "the other circumstances surrounding this
defendant," it might be thought that Ohio was suggesting
consideration of environmental factors that might make the
defendant's actions, if no more justifiable, less a reflection of
personal blameworthiness. Yet any such reading of the instruction
is condemned by
State v. Caldwell, supra, which approved a
jury charge that environmental factors have "nothing whatever to
do" with the sentencing decision. It also might be thought that
directing juries to consider "other circumstances surrounding this
defendant" is an indication, albeit a rather backhanded one, that
Ohio desires capital sentencing juries to take into account the
likelihood that a particular defendant
Page 402 U. S. 293
may be rehabilitated. Certainly this indication is reinforced in
cases where the jury is instructed with regard to the possibility
of parole from a life sentence. But instructions on parole are
optional with the trial court,
State v. Henley, supra; State v.
Meyer, supra, and unless it be assumed that every jury not so
instructed is nevertheless aware of the possibility of parole (and
likewise that, despite instructions to base its verdict on the
evidence in the case, it will nevertheless rely upon its own
knowledge of the possibility of parole), failure to instruct all
juries with regard to parole must mean either that a state policy
with regard to rehabilitation is not in fact, implied by such
instructions, or else that such a state policy is consciously
applied only in some capital cases. Finally, one Ohio case may be
explicable only on a basis suggested nowhere else in Ohio law: that
the capital sentencing decision rests upon factors that vary
depending upon which of two simultaneously applicable capital
statutes is used to support punishment. In
State v.
Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964), the
defendant had been convicted on guilty pleas entered to charges of
premeditated murder and felony murder, both growing out of the
murder, during the course of a robbery, of a single individual. The
three-judge court that heard evidence to fix the penalty on both
charges at the same time sentenced him to life imprisonment on the
premeditated murder charge, and to death on the charge of felony
murder. The Ohio Supreme Court affirmed the sentence of death. In
light of these cases, I think it fair to say that Ohio law has
nowhere purported to set forth the considerations of state policy
intended to underlie a sentence of death.
Third. Even if it be assumed that Ohio sentencing
judges and juries act upon shared, although unarticulated and
unarticulable, notions of proper capital sentencing
Page 402 U. S. 294
policy, the capital sentencing process in Ohio contains elements
that render difficult, if not impossible, any consistency in
result. Presumably, all judges, and certainly some juries
(
i.e., those who are specifically so instructed) will be
cognizant of the possibility of parole from a sentence to life
imprisonment. Other juries will not. If this is an irrelevant
factor, it is hard to understand why some juries may be given this
information. If it is a relevant factor, it is equally hard to
understand why other juries are not. And if it is a relevant
factor, the inevitable consequence of presenting the information,
for no explicable reason, to some but not all capital sentencing
juries is that consistency in decisionmaking is impossible.
Similarly, as I have already noted, [
Footnote 3/48] there is a substantial difference
between the evidence that may be considered by a jury and that
which may be considered by a sentencing panel of judges. For
although the defendant may, in a jury trial, testify on the
question of guilt if he is willing to forgo his privilege against
self-incrimination, he may not even then present evidence relevant
solely to the question of penalty. A defendant who is to be
sentenced by a panel of judges, on the other hand, has an absolute
right before the sentencing decision becomes final to address the
sentencers on any subject he may choose. [
Footnote 3/49] And such a defendant appears as well to
have at least a chance to present evidence from other sources
relevant solely to the sentencing determination before that
determination becomes final. [
Footnote 3/50] Yet such information may not be
presented to a jury, whether the jury desires it or not. The point,
again, is that consistent decisionmaking is impossible when one
decisionmaker may consider information forbidden to another.
Page 402 U. S. 295
And where, as here, no basis whatsoever is presented to justify
the difference, it is inexcusable. [
Footnote 3/51]
Fourth. There is, moreover, no reason to believe that
Ohio capital sentencing judges and juries do in fact, share common
notions of the considerations relevant to capital sentencing. I
have already pointed out that no state policy has ever been
articulated. And whatever may be the case with judges, capital
sentencing juries are drawn essentially at random [
Footnote 3/52] and called upon to decide one case
and one case only. [
Footnote
3/53] Whatever value there may be in the notion that arbitrary
decisionmaking may be controlled by committing difficult questions
to a continuing body which can at least maintain consistency of
principle until it changes its views on the questions to be
decided, is entirely absent from the capital jury sentencing
process
Page 402 U. S. 296
presently under review. For capital sentencing juries in Ohio
are not continuing bodies, and no jury may be told what another
jury has done in similar (or different) cases. Likewise, the
procedure under review cannot gain uniformity from judicial review,
for, under Ohio law, no such review is permitted.
Fifth. Although the Due Process Clause does not forbid
a State from imposing "a different punishment for the same offence
. . . under particular circumstances,"
Moore v. Missouri,
159 U. S. 673,
159 U. S. 678
(1895), it does command that punishment be "dealt out to all alike
who are similarly situated."
Ibid.; Leeper v. Texas,
139 U. S. 462,
139 U. S. 468
(1891);
Missouri v. Lewis, 101 U. S.
22,
101 U. S. 31
(1880). Even granting the State the fullest conceivable room for
judgment as to what are and are not "particular circumstances"
justifying different treatment, this means, at the least, that the
State must itself apply the same fundamental policies to all in
making that judgment. The institution of federal judicial review is
designed to vindicate this (and other [
Footnote 3/54]) federally guaranteed rights. Yet the
procedure before us renders the possibility of such review entirely
chimerical. There is no way of determining what policies were
applied by the State in reaching judgment. There is no way of
inferring what policies were applied by an examination of the
facts, for we have no idea what facts were relied on by the
sentencers. Nor may this void be filled in any way by presumptions
based on the result of their actions, for they were neither given
direction in the exercise of judgment, nor asked to explain the
conclusion they reached. There
Page 402 U. S. 297
is simply no way that this or any other court can determine
whether petitioner Crampton was condemned to die for reasons that
Ohio would be willing to apply in any other case -- or for reasons
that Ohio would, if they were explicitly set forth, just as
explicitly reject.
In sum, the Ohio capital sentencing procedure presently before
us raises fundamental questions of state policy which have never
been explicitly decided by any responsible organ of the State.
Nothing in the procedure looks towards the gradual development of a
uniform state policy through accumulation of a body of precedent.
No protection whatsoever appears against the possibility of merely
arbitrary or willful decisionmaking; moreover, some features of the
process appear to make inconsistent action not merely possible, but
inevitable. And finally, the record provided by the Ohio capital
sentencing process makes virtually impossible the redress of any
violations of federally guaranteed rights through the institution
of federal judicial review. I can see no possible basis for holding
such a capital sentencing procedure permissible under the Due
Process Clause, and I would therefore reverse petitioner Crampton's
sentence of death.
B
The procedures whereby the State of California determines which
convicted criminals to kill differ in a number of respects from
those used by Ohio. Following conviction of a possibly capital
crime, [
Footnote 3/55] the
question of penalty
Page 402 U. S. 298
is determined in a separate proceeding. [
Footnote 3/56] Except where the defendant has, with the
prosecution's consent, [
Footnote
3/57] waived trial by jury, the sentencing determination is
made by a jury whether conviction was on a plea of guilty or not
guilty. A defendant who waives jury trial on the issue of guilt may
not have his sentence determined by a jury.
People v.
Golston, 58 Cal. 2d
535, 375 P.2d 51 (1962). Notwithstanding the statutory
language, [
Footnote 3/58] it
appears possible for a defendant whose guilt is determined
Page 402 U. S. 299
by a jury to have his sentence determined by a judge.
See
People v. Sosa, 251 Cal. App. 2d
9, 58 Cal. Rptr. 912 (1967). If a jury is waived, identical
sentencing power will be exercised by a single judge.
People v.
Langdon, 52 Cal. 2d
425, 341 P.2d 303 (1959);
People v.
Jones, 52 Cal. 2d
636, 343 P.2d 577 (1959). A jury determination to impose a
death sentence may be set aside by the judge presiding at the
trial, Cal.Penal Code § 1181(7) (1970), construed in
People v.
Hill, 66 Cal. 2d
536, 426 P.2d 908 (1967). It may not be otherwise reviewed,
whether fixed by a judge or jury.
People v.
Welch, 58 Cal. 2d
271, 373 P.2d 427 (1962) (judge);
In re
Anderson, 69 Cal. 2d
613, 447 P.2d 117 (1968). [
Footnote 3/59]
The range of evidence that may be introduced at the penalty
trial is broad. Ordinary rules of competence, hearsay, etc., apply,
e.g., People v. Hines, 61 Cal. 2d
164, 174-175, 390 P.2d 398, 405 (1964), and a few issues are
excluded. Exclusion, however, appears to be not on the basis that
the issues are irrelevant, but rather that they are either unduly
inflammatory or impractical to litigate. Thus, evidence or argument
is prohibited concerning the likelihood of parole from a life
sentence,
People v. Morse, 60 Cal. 2d
631, 388 P.2d 33 (1964); [
Footnote 3/60] concerning the deterrent effects of
capital punishment,
People v. Purvis, 60 Cal. 2d
323, 341, 384 P.2d 424, 435436 (1963);
People v.
Love, 56 Cal. 2d
720, 366 P.2d 33 (1961);
People v.
Kidd, 56 Cal. 2d
759, 366 P.2d
Page 402 U. S. 300
49 (1961), [
Footnote 3/61]
although some reference to the matter may (as in the present case,
see App. 199) be made by the prosecution and be treated
under the harmless error doctrine,
People v.
Garner, 57 Cal. 2d
135, 367 P.2d 680 (1961), especially if trial is to the court,
People v. Welch, 58 Cal. 2d
271, 274, 373 P.2d 427, 429 (1962); concerning whether capital
punishment should ever be imposed,
People v.
Moya, 53 Cal. 2d
819, 350 P.2d 112 (1960); [
Footnote 3/62] or concerning physical suffering of the
victim unintended by the defendant,
People v.
Love, 53 Cal. 2d
843, 350 P.2d 705 (1960). [
Footnote 3/63] Except for these limitations, however,
virtually any matter may be explored.
People v.
Terry, 61 Cal. 2d
137, 142-153, 390 P.2d 381, 385-392 (1964).
Following the arguments of counsel, [
Footnote 3/64] the jury is instructed on its function
in determining the penalty to be imposed. A standard instruction on
the subject exists, [
Footnote
3/65]
Page 402 U. S. 301
but is not mandatory; it is, essentially, the instruction given
in the present case:
"The defendants in this case have been found guilty of the
offense of murder in the first degree, and it is now your duty to
determine which of the penalties provided by law should be imposed
on each defendant for that offense. Now, in arriving at this
determination you should consider all of the evidence received here
in court presented by the People and defendants throughout the
trial before this jury. You may also consider all of the evidence
of the circumstances surrounding the crime, of each defendant's
background and history, and of the facts in aggravation or
mitigation of the penalty which have been received here in court.
However, it is not essential to your decision that you find
mitigating circumstances on the one hand or evidence in aggravation
of the offense on the other hand."
"
* * * *"
"It is the law of this state that every person guilty of murder
in the first degree shall suffer death or confinement in the state
prison for life, at the discretion of the jury. If you should fix
the penalty as confinement for life, you will so indicate in your
verdict. If you should fix the penalty as death, you will so
indicate in your verdict. Notwithstanding facts, if any, proved in
mitigation or aggravation, in determining which punishment shall be
inflicted, you are entirely free to act according to your own
judgment, conscience, and absolute discretion. That verdict must
express the individual opinion of each Juror."
"Now, beyond prescribing the two alternative penalties, the law
itself provides no standard for the
Page 402 U. S. 302
guidance of the jury in the selection of the penalty, but,
rather, commits the whole matter of determining which of the two
penalties shall be fixed to the judgment, conscience, and absolute
discretion of the jury. In the determination of that matter, if the
jury does agree, it must be unanimous as to which of the two
penalties is imposed. [
Footnote
3/66]"
Substantially more elaborate versions of this instruction may,
if the trial court desires, be given.
People v.
Harrison, 59 Cal. 2d
622, 381 P.2d 665 (1963). In addition, the trial court is
supposed to instruct the jury that a defendant serving a life
sentence may be paroled, but that it should not presume that the
California Adult Authority will release a prisoner until it is safe
to do so, and that it should not take the possibility of parole
into account.
People v. McGautha, 70 Cal. 2d
770, 452 P.2d 650 (1969). Finally, under California law, it is
error to charge that the jury's verdict should express the
conscience of the community; the jury should be told, instead, that
the verdict must "express the individual conscience of each juror."
People v. Harrison, supra, at 633, 381 P.2d at 671.
[
Footnote 3/67]
Page 402 U. S. 303
A substantial number of subsidiary instructions may, but need
not, be given to the jury; the governing principle is that the
instructions must make clear to the jury that its decision whether
or not a convicted defendant is to be killed is to take place in a
"legal vacuum."
People v. Terry, 61 Cal. 2d at 154, 390
P.2d at 392;
see People v. Friend, 47 Cal. 2d
749, 306 P.2d 463 (1957). A trial judge may, should he desire,
"aid the jury by stating the kinds of factors that may be
considered, thereby setting the tone for the jury's deliberation,"
People v. Polk, 63 Cal. 2d
443, 451, 406 P.2d 641, 646 (1965), so long as this is done in
a manner that indicates to the jury that it is free not to consider
any of the factors listed by the judge, and to consider anything
else it may desire,
People v. Friend, supra. It is not,
however, error to refuse such an instruction.
People v. Polk,
supra. Similarly, although a trial judge may instruct the jury
that it may be moved by sympathy for the defendant,
People v.
Anderson, 64 Cal. 2d
633, 414 P.2d 366 (1966), he may refuse to give such an
instruction at defense request,
People v.
Hillery, 65 Cal. 2d
795, 423 P.2d 208 (1967), although it is error to instruct the
jury that it may not be so moved.
People v. Polk, supra; People
v. Bandhauer, 1 Cal. 3d 609,
463 P.2d 408 (1970). It is error to instruct the jury that it may
not consider doubts about the defendant's guilt as mitigating
circumstances,
People v. Terry, supra, but it is not error
to refuse to charge that such doubt
may be a mitigating
factor,
People v. Washington, 71 Cal. 2d
1061, 458 P.2d 479 (1969), although the trial judge may give
such a charge if he desires,
People v. Polk, supra; People v.
Terry, supra.
Finally, a jury determination to impose the death sentence may
not be reviewed by any court. It may, however, be set aside by the
judge presiding at the trial. The
Page 402 U. S. 304
basis upon which the California Supreme Court has made this
distinction, of some importance in the present case, is not
entirely clear. The trial judge's power to reduce a sentence of
death to one of life imprisonment is based on Cal.Penal Code §
1181(7) (1970), which provides, in pertinent part, that,
"in any case wherein authority is vested by statute in the trial
court or jury to recommend or determine as a part of its verdict or
finding the punishment to be imposed, the court may modify such
verdict or finding by imposing the lesser punishment without
granting or ordering a new trial, and this power shall extend to
any court to which the case may be appealed."
The California Supreme Court has construed this statute to
empower the trial court to set aside a jury verdict of death,
People v. Moore, 53 Cal. 2d
451, 454, 348 P.2d 584, 586 (1960), but not to give any such
power to an appellate court,
People v.
Green, 47 Cal. 2d
209, 235, 302 P.2d 307, 324-325 (1956);
In re
Anderson, 69 Cal. 2d
613, 447 P.2d 117 (1968). This is said to be because "the trier
of fact is vested with exclusive discretion to determine
punishment."
People v. Green, supra, at 235, 302 P.2d at
325. What this means is that the trial court does not review the
jury's determination that a convicted defendant should be killed;
based upon its "own independent view of the evidence,"
People
v. Love, 56 Cal. 2d at 728, 366 P.2d 33, 36, quoting
People v. Moore, supra, at 454, 348 P.2d at 586 (1960),
the trial court is to determine itself whether the defendant should
be killed, apparently on exactly the same basis and in exactly the
same way as it would if the issue had never been submitted to a
jury. [
Footnote 3/68]
See
People v. Moore, supra; People v. Hill, 66 Cal. 2d
536, 426 P.2d 908 (1967);
People v. Love, supra; In re
Anderson, supra.
Page 402 U. S. 305
In short, no defendant sentenced to die may obtain judicial
review of that decision, but one sentenced to die by a jury gets a
second bite at the apple: he is "entitled to two decisions on the
evidence."
People v. Ketchel, 59 Cal. 2d
503, 546, 381 P.2d 394, 417 (1963).
I find this procedure likewise defective under the Due Process
Clause. Although it differs in some not insignificant respects from
the procedure used in Ohio, it nevertheless is entirely bare of the
fundamental safeguards required by due process.
First. Both procedures contain at their heart the same
basic vice. Like Ohio, California fails to provide any means
whereby the fundamental questions of state policy with regard to
capital sentencing may be authoritatively resolved. They have not
been resolved by the state legislature, which has committed the
matter entirely to whatever judge or jury may exercise sentencing
authority in any particular case. But they cannot be
authoritatively resolved by the sentencing authority, not only
because the California Supreme Court has expressly ruled that that
is not part of the sentencing function,
People v. Kidd, 56
Cal. 2d at 770, 366 P. at 56, but also because any such resolution
is binding for one case and one case only. There are simply no
means to assure that "truly fundamental issues [will ultimately] be
resolved by the Legislature,"
Wilke & Holzheiser, Inc. v.
Department of Alcoholic Beverage Control, 65 Cal. 2d
349, 369, 420 P.2d 735, 748 (1966). Nothing whatsoever anywhere
in the process gives any assurance that one defendant will be
sentenced upon notions of California penological policy even
vaguely resembling those applied to the next.
Second. If the question before us were what procedure
would produce the fewest number of death sentences, the power of a
trial judge to set aside a jury's verdict might be of substantial
importance. But that, of course, is not
Page 402 U. S. 306
the question. Except insofar as it incorporates the Eighth
Amendment's prohibition against cruel and unusual punishments --
not an issue in these cases -- the Due Process Clause gives us no
warrant to interfere with a State's decision to make certain crimes
punishable by death. The Due Process Clause commands us, however,
to make certain that no State takes one man's life for reasons that
it would not apply to another. And even if it be assumed that trial
judges obey the California Supreme Court's direction to exercise
their own, independent judgment on the propriety of a jury-imposed
death penalty, [
Footnote 3/69]
the existence of the trial court's power to et aside such verdicts
adds little to the likelihood of evenhanded treatment. For this
power is to be exercised in precisely the same way as the jury's --
without guideline or check, without review, without any explanation
of reasons or findings of fact, without any opportunity for
ultimate legislative acceptance or rejection of the policies
applied. It is true that trial judges are in a sense "professional
sentencers"; presumably any given judge, to the extent that he
actually does exercise independent judgment on the question,
[
Footnote 3/70] will do his best
to avoid conscious inconsistency. But there remains a multiplicity
of sentencing judges, all of whom have been expressly told by the
Supreme Court of California not to seek guidance for their decision
from the statute, from that court's opinions, or indeed from any
source outside their own, individual opinions.
See supra
at
402 U. S.
304-305.
Page 402 U. S. 307
In such circumstances, the possibility of consistent
decisionmaking is nonexistent.
"A multiplicity of tribunals and a diversity of procedures are
quite as apt to produce incompatible or conflicting adjudications
as are different rules of substantive law."
Garner v. Teamsters Local 776, 346 U.
S. 485,
346 U. S.
490-491 (1953).
Third. Like its Ohio counterpart, the California
procedure before us inevitably operates to frustrate the
institution of federal judicial review. We do not and cannot know
what facts the jury relied upon in determining that petitioner
McGautha should be killed, or the reasons upon which it based that
decision. We do not know -- and cannot know -- the basis upon which
the State of California determined that he was not "fit to live,"
People v. Morse, 60 Cal. 2d at 647, 388 P.2d at 43. We do
know that the prosecutor, in her closing argument, strongly urged
to the jury that Dennis Councile McGautha should be killed because
he had the unregenerate bad taste to insist that he had once
pleaded guilty to a crime he did not commit. [
Footnote 3/71]
Cf. North Carolina v.
Alford, 400 U.S. at
400 U. S. 32-39.
We also know
Page 402 U. S. 308
that nothing in the instructions given the jury contained the
slightest hint that this could not be the sole basis for its
decision.
See supra at
402 U. S.
301-302. And, finally, we also know that whatever
factors the State of California relied upon to sentence petitioner
McGautha to death -- factors permissible or impermissible, applied
by the State to every convicted capital criminal or to him alone --
there is no way whatsoever that petitioner can demonstrate that
those factors were relied upon and obtain review of their
propriety. In short, the procedure before us in this case
simultaneously invites sentencers to flout the Constitution of the
United States and promises them that, should they do so, their
action is immune from federal judicial review. [
Footnote 3/72] Astoundingly, the Court, in
upholding the procedure, explicitly commends this very feature.
See ante at
402 U. S.
207-208. [
Footnote
3/73] I do not think that such a procedure
Page 402 U. S. 309
is consistent with the Due Process Clause, and I would
accordingly reverse petitioner McGautha's sentence of death.
C
I have indicated above the reasons why, in my judgment, the
procedures adopted by Ohio and California to sentence convicted
defendants to die are inconsistent with the most basic and
fundamental principles of due process. But even if I thought these
procedures adequate to try a welfare claim -- which they are not,
Goldberg v. Kelly, 397 U. S. 254
(1970) -- I would have little hesitation in finding them inadequate
where life itself is at stake. For we have long recognized that the
degree of procedural regularity required by the Due Process Clause
increases with the importance of the interests at stake.
See
Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S.
895-896 (1961);
id. at
367 U. S.
900-901 (dissent). Where First Amendment interests have
been involved, we have held the States to stringent procedural
requirements indeed.
See, e.g., Stanley v. Georgia,
394 U. S. 557
(1969);
Freedman v. Maryland, 380 U. S.
51 (1965);
A Quantity of Books v. Kansas,
378 U. S. 205
(1964);
Marcus v. Search Warrant, 367 U.
S. 717 (1961);
Speiser v. Randall, 357 U.
S. 513 (1958). Of course the First Amendment is "an
interest of transcending value,"
id. at
357 U. S. 525,
but so is life itself. Yet the Court's opinion turns the law on its
head to conclude, apparently, that, because a decision to take
someone's life is of such tremendous import, those who make such
decisions need not be "inhibit[ed] " by the safeguards otherwise
required by due process of law.
Ante at
402 U. S. 208.
My belief is to the contrary, and I would hold that no State which
determines to take a human life is thereby exempted from the
constitutional command that it do so only by "due process of
law."
Page 402 U. S. 310
IV
Finally, a few words should be said about matters peripherally
suggested by these cases. First, these cases do not in the
slightest way draw into question the power of the States to
determine whether or not to impose the death penalty itself, any
more than
Giaccio v. Pennsylvania, 382 U.
S. 399 (1966), involved the power of the State of
Pennsylvania to impose criminal punishment on persons who should
fire a pistol loaded with blanks at another. Second, these cases do
not call upon us to determine whether petitioners' trials were
"fairly conducted" in the way referred to by my Brother BLACK.
Ante at
402 U. S. 225.
What they do call upon us to determine is whether the Due Process
Clause requires the States, in his words, "to make certain that men
would be governed by law, not the arbitrary fiat of the man or men
in power,"
In re Winship, 397 U.
S. 358,
397 U. S. 384
(1970) (dissent), and whether if a State, acting through its jury,
applies one standard to determine that one convicted criminal
should die, "the Due Process Clause commands that every trial in
that jurisdiction must adhere to that standard."
Id. at
397 U. S. 386.
Third, we are not called upon to determine whether "the death
penalty is appropriate punishment" for the petitioners before us.
Ante at
402 U. S. 221.
That determination is for the States. [
Footnote 3/74] The Court, however, apparently believes
that the procedures before us are to be upheld because the results
in the present cases comport with its own, unarticulated notions of
capital sentencing policy.
See ibid. This fundamental
misapprehension of the judicial function pervades the Court's
opinion, which after a single brief mention of the Due Process
Clause entirely eschews discussion
Page 402 U. S. 311
of the Constitution, and instead speaks only of the
considerations upon which it believes the States should rest their
capital sentencing policy.
Ante at
402 U. S.
196-208.
Finally, I should add that, for several reasons, the present
cases do not draw into question the power of the States that should
so desire to commit their criminal sentencing powers to a jury. For
one thing, I see no reason to believe that juries are not capable
of explaining, in simple but possibly perceptive terms, what facts
they have found and what reasons they have considered sufficient to
take a human life. Second, I have already indicated why I believe
that life itself is an interest of such transcendent importance
that a decision to take a life may require procedural regularity
far beyond a decision simply to set a sentence at one or another
term of years. Third, where jury sentencing involves such a
decision, determination of the ultimate question -- how many years
a defendant will actually serve -- is generally placed very
substantially in the hands of a parole board -- a single,
continuing board of professionals whose general supervision and
accumulated wisdom can go far toward insuring consistency in
sentencing. And finally, in most cases where juries are asked to
fix a convicted defendant's sentence at one or another term of
years, they must inevitably be aware that, no matter what they do,
the defendant will eventually return to society. With this in mind,
a jury should, at the very least, recognize that rehabilitation
must be a factor of substantial weight in its deliberations. Of
course, none of these cases is before us, and I do not mean to
imply that any and every question other than the question of life
or death may be submitted by a State to a jury to be determined in
its unguided, unreviewed, and unreviewable discretion. But I cannot
help concluding that the Court's opinion, at its
Page 402 U. S. 312
core, rests upon nothing more solid than its inability to
imagine any regime of capital sentencing other than that which
presently exists. I cannot assent to such a basis for decision. "If
we would guide by the light of reason, we must let our minds be
bold."
New State Ice Co. v. Liebmann, 285 U.
S. 262,
285 U. S. 311
(1932) (Brandeis, J., dissenting).
[
Footnote 3/1]
My Brother HARLAN continues:
"The stability and flexibility that our constitutional system at
once possesses is largely due to our having carried over into
constitutional adjudication the common law approach to legal
development."
Id. at 292.
[
Footnote 3/2]
The prohibition against bills of attainder, Art. I, § 9, cl. 3
(federal), § 10, cl. 1 (state), protects individuals or groups
against being singled out for legislative instead of judicial
trial.
See United States v. Brown, 381 U.
S. 437,
381 U. S.
442-446 (1965);
id. at
381 U. S. 462
(dissent);
Cummings v.
Missouri, 4 Wall. 277,
71 U. S.
322-325 (1867). The prohibition against
ex post
facto laws, joined in the Constitution to the ban on bills of
attainder, prevents legislatures from achieving similar ends by
indirection, either by making criminal acts that were innocent when
performed,
Cummings v. Missouri, supra, at
71 U. S.
325-326;
Calder v. Bull,
3 Dall. 386,
3 U. S. 390
(1798) (Chase, J.), or by increasing the punishment imposed upon
admittedly criminal acts that have already been committed.
In
re Medley, 134 U. S.
160, 134 U. S.
166-173 (1890);
Calder v. Bull, supra. The
constitutional limitation of federal legislative power to the
Congress has been applied to require that fundamental policy
choices be made, not by private individuals -- or even public
officers -- acting pursuant to an unguided and unsupervised
delegation of legislative authority, but by the Nation as a whole
acting through Congress.
See, e.g., FCC v. RCA Communications,
Inc., 346 U. S. 86,
346 U. S. 90
(1953);
Lichter v. United States, 334 U.
S. 742,
334 U. S. 766,
334 U. S.
769-773,
334 U. S. 778
(1948);
Schechter Poultry Corp. v. United States,
295 U. S. 495,
295 U. S.
529-530,
295 U. S.
537-539 (1935);
Panama Refining Co. v. Ryan,
293 U. S. 388,
293 U. S.
414-430 (1935);
id. at
293 U. S. 434,
293 U. S. 435
(Cardozo, J., dissenting). Finally, the requirement of evenhanded
treatment imposed upon the States and their agents by the Equal
Protection Clause,
see Cooper v. Aaron, 358 U. S.
1,
358 U. S. 16-17
(1958);
McFarland v. American Sugar Co., 241 U. S.
79,
241 U. S. 86-87
(1916) (Holmes, J.), has been applied to the Federal Government as
well through the Fifth Amendment's Due Process Clause.
E.g.,
Shapiro v. Thompson, 394 U. S. 618,
394 U. S.
641-642 (1969);
Schneider v. Rusk, 377 U.
S. 163,
377 U. S.
168-169 (1964);
Bolling v. Sharpe, 347 U.
S. 497 (1954).
[
Footnote 3/3]
Thus, although recognizing that the explicit constitutional
prohibition against
ex post facto laws applies only to
legislative action, we held in
Bouie v. City of Columbia,
378 U. S. 347,
378 U. S.
353-354 (1964), that due process was violated by like
action on the part of a state court. Significantly, the dissenting
Justices in Bouie took issue only with the Court's conclusion that
the interpretation of the statute in question by the State Supreme
Court was not foreshadowed by prior state law.
See id. at
378 U. S.
366-367. Similarly, although we have held the States not
bound, as is the Federal Government, by the doctrine of separation
of powers,
Dreyer v. Illinois, 187 U. S.
71,
187 U. S. 83-84
(1902);
Sweezy v. New Hampshire, 354 U.
S. 234,
354 U. S. 255
(1957), we have nevertheless held that state delegation of
legislative authority without guideline or check violates due
process.
Seattle Trust Co. v. Roberge, 278 U.
S. 116,
278 U. S.
120-122 (1928);
Eubank v. Richmond,
226 U. S. 137,
226 U. S.
143-144 (1912);
cf. Browning v. Hooper,
269 U. S. 396,
269 U. S.
405-406 (1926).
See the discussion
infra at
402 U.S.
271-273. Finally, in
Hurtado v. California,
110 U. S. 516,
110 U. S.
535-536 (1884), quoted in the text immediately above, we
noted as an example of a clear violation of due process the passage
by a legislature of a bill of attainder.
Cf. 402
U.S. 183fn3/2|>n. 2,
supra, and cases cited.
[
Footnote 3/4]
We have, of course, applied specific substantive protections of
the Bill of Rights to limit state power under the Due Process
Clause.
E.g., Near v. Minnesota, 283 U.
S. 697 (1931) (First Amendment);
Robinson v.
California, 370 U. S. 660
(1962) (Eighth Amendment);
Griswold v. Connecticut,
381 U. S. 479,
381 U. S.
481-486 (1965) (First, Third, Fourth, Fifth, and Ninth
Amendments). Conversely, we have held at least some aspects of the
Fourteenth Amendment's Equal Protection Clause applicable to limit
federal power under the Due Process Clause of the Fifth Amendment.
See Shapiro v. Thompson, 394 U.S. at
394 U. S.
641-642, and cases cited. Finally, we have, of course,
held that due process forbids a State from punishing the assertion
of federally guaranteed rights whether procedural or otherwise.
North Carolina v. Pearce, 395 U.
S. 711,
395 U. S.
723-725 (1969);
Spevack v. Klein, 385 U.
S. 511 (1967);
cf. Ex parte Hull, 312 U.
S. 546 (1941). But we have long rejected the view,
typified by,
e.g., Adkins v. Children's Hospital,
261 U. S. 525
(1923), overruled in
West Coast Hotel Co. v. Parrish,
300 U. S. 379
(1937), that the Due Process Clause vests judges with a roving
commission to impose their own notions of wise social policy upon
the States.
Ferguson v. Skrupa, 372 U.
S. 726,
372 U. S.
730-731 (1963).
[
Footnote 3/5]
E.g., North Carolina v. Pearce, supra, at
395 U. S.
725-726 (1969);
Boykin v. Alabama, 395 U.
S. 238,
395 U. S.
242-244 (1969);
see also Goldberg v. Kelly,
397 U. S. 254,
397 U. S.
269-271 (1970).
[
Footnote 3/6]
E.g., United States v. Wade, 388 U.
S. 218,
388 U. S.
236-239 (1967);
Miranda v. Arizona,
384 U. S. 436,
384 U. S.
467-473 (1966);
Jackson v. Denno, 378 U.
S. 368,
378 U. S.
377-391 (1964).
[
Footnote 3/7]
E.g., Johnson v. Avery, 393 U.
S. 483,
393 U. S.
488-490 (1969);
In re Murchison, 349 U.
S. 133 (1955);
Seattle Trust Co. v. Robere,
supra.
[
Footnote 3/8]
For analysis in substantially these terms,
see, e.g.,
Collings, Unconstitutional Uncertainty -- An Appraisal, 40 Cornell
L.Q.195 (1955); Freund, The Supreme Court and Civil Liberties, 4
Vand.L.Rev. 533 (1951); Comment, 53 Mich.L.Rev. 264 (1954).
[
Footnote 3/9]
A vague statute may be applied one way to one person and a
different way to another. Aside from the fact that this, in itself,
would constitute a denial of equal protection,
Niemotko v.
Maryland, 340 U. S. 268,
340 U. S. 272
(1951),
cf. H. Black, A Constitutional Faith 31-32 (1969),
the reasons underlying different applications to different
individuals may in themselves be constitutionally impermissible.
Cf. Schacht v. United States, 398 U. S.
58 (1970) (applicability of statute determined by
political views);
Yick Wo v. Hopkins, 118 U.
S. 356 (1886) (application of statute on racial
basis).
[
Footnote 3/10]
Younger v. Harris, 401 U. S. 37
(1971), and its companions cast no shadow upon the sentence
quoted.
[
Footnote 3/11]
A closely related proposition may be derived from a separate
line of cases. In
Louisiana Power & Light Co. v. City of
Thibodaux, 360 U. S. 25
(1959), we upheld abstention by a federal district court in a
diversity action from decision whether, under a state statute never
construed by the Louisiana courts, cities in the State possessed
the power to take local gas and electric companies by eminent
domain. The same day, in
Allegheny County v. Frank Mashuda
Co., 360 U. S. 185
(1959), we upheld the action of another district court in refusing
to abstain from decision whether, under state law allowing takings
for public but not for private use, Allegheny County possessed the
power to take a particular property for a particular use. Are the
decisions irreconcilable? As we have often remarked, the basis of
diversity jurisdiction is "the supposition that, possibly, the
state tribunal[s] might not be impartial between their own citizens
and foreigners."
Pease v. Peck,
18 How. 595,
59 U. S. 599
(1856). The question of state law presented in
Thibodaux
was a broad one having substantial ramifications beyond the lawsuit
at hand. Any prejudice against the out-of-state company involved in
that case could have been given effect in state courts only at the
cost of a possibly incorrect decision that would have significant
adverse effect upon state citizens as well as the particular
outsider involved in the suit. In
Mashuda, on the other
hand, decision one way or another would have little or no effect
beyond the case in question: any possible state bias against
out-of-Staters could be given full effect without hampering any
significant state policy. Taken together, then,
Thibodaux
and
Mashuda may stand for the proposition that the
possibility of bias that stands at the foundation of federal
diversity jurisdiction may nevertheless be discounted if that bias
could be given effect only through a decision that will have
inevitable repercussions on a matter of fundamental state policy.
Put another way,
Thibodaux and
Mashuda may serve
to illustrate in another context the principle that necessarily
underlies many of this Court's "vagueness" decisions: the due
process requirement that States make explicit their choice among
competing views on questions of fundamental state policy serves to
enforce the requirement of evenhanded treatment that due process
commands.
[
Footnote 3/12]
See Brief for Appellee in
Giaccio, No. 47,
O.T. 1965, pp. 8-10;
Commonwealth v. Tilghman, 4 S. &
R. 127 (Pa.Sup.Ct. 1818); Act of March 20, 1797, 3 Smith's Laws 281
(Pa.).
[
Footnote 3/13]
Some standards were provided to guide the jury's decision.
See 382 U.S. at
382 U. S.
403-404.
See App. 30-32 in
Giaccio for
the charge given in that case.
[
Footnote 3/14]
We did in
Giaccio say that "we intend to cast no doubt
whatever on the constitutionality of the settled practice of many
States" prescribing jury sentencing. 382 U.S. at
382 U. S. 405
n. 8. Insofar as jury sentencing in General is concerned,
Giaccio is by no means necessarily inconsistent with the
practice.
See infra at
402 U. S.
311.
[
Footnote 3/15]
I find little short of bewildering the Court's treatment of
Giaccio. The Court appears to read that case as standing
for the proposition that due process forbids a jury to impose
punishment upon defendants for conduct which, "although not
amounting to the crime with which they were charged, was
nevertheless found to be
reprehensible.'" Ante at
402 U. S. 207
n. 18. Of course, the procedures under review permit precisely the
same action, without providing even the minimal safeguards found
insufficient in Giaccio. See 402 U.
S. infra. If there is a difference between
Giaccio and the present cases, it is that the procedures
now under review apply, not to acquitted defendants, but only to
those who have already been found guilty of some crime. But the
Court elsewhere in its opinion has concluded that the
"relevant differences between sentencing and determination of
guilt or innocence are not so great as to call for a difference in
constitutional result."
Ante at
402 U. S. 217.
I think it is fair to say that nowhere in its treatment of
Giaccio does the Court even attempt to explain why the
unspecified "relevant differences" that it finds
do call
for "a difference in constitutional result."
[
Footnote 3/16]
This same point may be made another way. We have consistently
held that the Due Process Clause protects individuals against
arbitrary governmental action. Despite sharp conflict among the
members of this Court over the standards to be applied in
determining whether governmental action is in fact, "arbitrary,"
see, e.g., Griswold v. Connecticut, 381 U.
S. 479,
381 U. S. 499
(1965) (HARLAN, J., concurring in judgment);
id. at
381 U. S. 507
(BLACK, J., dissenting), all members of this Court have agreed that
the phrase has some content.
E.g., Giaccio v.
Pennsylvania, 382 U.S. at
382 U. S. 402
(BLACK, J.) (due process requires defendants to be protected
"against arbitrary and discriminatory" punishment). Our vagueness
cases suggest that state action is arbitrary and therefore
violative of due process not only if it is (a) based upon
distinctions which the State is specifically forbidden to make,
e.g., Loving v. Virginia, 388 U. S.
1,
388 U. S. 12
(1967); or (b) designed to, or has the effect of, punishing an
individual for the assertion of federally protected rights,
e.g., North Carolina v. Pearce, 395 U.
S. 711,
395 U. S.
723-725 (1969);
id. at
395 U. S. 739
(BLACK, J.), but also if it is (c) based upon a permissible state
policy choice which could be, but has never been, explicitly made
by any responsible organ of the State.
[
Footnote 3/17]
"There are doubtless mayors who would not allow such a
consideration as $12 costs in each case to affect their judgment in
it. . . ." 273 U.S. at
273 U. S.
532.
[
Footnote 3/18]
We held, a an alternative ground, that the Louisiana procedure a
applied had violated the Fifteenth Amendment. 380 U.S. at
380 U. S.
152-153.
[
Footnote 3/19]
See also 378 U.S. at
378 U. S.
392:
"If this case were here upon direct review of Jackson's
conviction, we could not proceed with review on the assumption that
these disputes had been resolved in favor of the State for as we
have held we are . . . unable to tell how the jury resolved these
matters. . . ."
[
Footnote 3/20]
It is essential to bear in mind that the complexity of capital
sentencing determinations is a function of the penological policy
applied. A State might conclude, for example, that murderers should
be sentenced to death if and only if they had committed more than
one such crime. Application of such a criterion to the facts of any
particular case would then be relatively simple.
[
Footnote 3/21]
As applied to the Federal Government, the doctrine appears to
have roots both in the constitutional requirement of separation of
powers -- not, of course, applicable itself to the States,
Dreyer v. Illinois, 187 U.S. at
187 U. S. 83-84;
Sweezy v. New Hampshire, 354 U.S. at
354 U. S. 255
-- and in the Due Process Clause of the Fifth Amendment. See, e.g.,
Wayman v.
Southard, 10 Wheat. 1, 13-14 [argument of counsel
-- omitted] (1825) (argument of counsel) (due process and
separation of powers);
Field v. Clark, 143 U.
S. 649,
143 U. S. 692
(1892) (separation of powers);
Carter v. Carter Coal Co.,
298 U. S. 238,
298 U. S.
310-312 (1936) (due process). The two doctrines are not
unrelated: in the words of Mr. Justice Brandeis,
"The doctrine of the separation of powers was adopted by the
Convention of 1787 not to promote efficiency but to preclude the
exercise of arbitrary power."
Myers v. United States, 272 U. S.
52,
272 U. S. 293
(1926) (dissent).
[
Footnote 3/22]
At least since
Yick Wo v. Hopkins, 118 U.
S. 356 (1886), we have indicated that due process places
limits on the manner and extent to which a state legislature may
delegate to others powers which the legislature might admittedly
exercise itself.
E.g., Eubank v. Richmond, 226 U.
S. 137 (1912);
Embree v. Kansas City Road
District, 240 U. S. 242
(1916);
Browning v. Hooper, 269 U.
S. 396 (1926);
Cline v. Frink Dairy Co.,
274 U. S. 445,
274 U. S. 457,
274 U. S. 465
(1927);
Miller v. Schoene, 276 U.
S. 272 (1928);
Seattle Trust Co. v. Roberge,
278 U. S. 116
(1928);
Louisiana v. United States, 380 U.
S. 145 (1965);
Giaccio v. Pennsylvania,
382 U. S. 399
(1966).
See Jaffe, Law Making by Private Groups, 51
Harv.L.Rev. 201 (1937).
[
Footnote 3/23]
The passage quoted is explicitly an exegesis on the separation
of powers. The point here is that, as discussed above, precisely
the same functions are performed by the Due Process Clause. For a
recent and original analysis to precisely the same effect,
see K. Davis, Administrative Law Treatise §§ 2.00 to 2.06
(Supp. 1970).
[
Footnote 3/24]
K. Davis, Administrative Law Treatise § 2.03, at 82 (1958).
[
Footnote 3/25]
E.g., Yakus v. United States, 321 U.
S. 414,
321 U. S.
423-424 (1944).
[
Footnote 3/26]
The phrase is Mr. Chief Justice Taft's, from
Hampton &
Co. v. United States, 276 U. S. 394,
276 U. S. 409
(1928).
[
Footnote 3/27]
Professor Davis has just recently suggested that, insofar as it
presupposes a search for legislative standards, the doctrine
prohibiting undue delegation of legislative power be explicitly
abandoned.
"The time has come for the courts to acknowledge that the
nondelegation doctrine is unsatisfactory, and to invent better ways
to protect against arbitrary administrative power."
"The non-delegation doctrine can and should be altered to turn
it into an effective and useful judicial tool. Its purpose should
no longer be either to prevent delegation of legislative power or
to require meaningful statutory standards; its purpose should be
the much deeper one of protecting against unnecessary and
uncontrolled discretionary power. The focus . . . should be on the
totality of protections against arbitrariness, including both
safeguards and standards."
Administrative Law Treatise, § 2.00, at 40 (Supp. 1970).
Adoption of this approach, he suggests, would cause the delegation
doctrine to "merge with the concept of due process."
Id. §
2.00, at 58.
[
Footnote 3/28]
Of course, where Congress has intended only to provide criminal
sanctions intended to further a regulatory scheme it has often
simply made criminal the willful violation of administrative
regulations rather than enacting statutes outlawing specific
conduct.
E.g., 26 U.S.C. § 7203.
[
Footnote 3/29]
E.g., Buttfield v. Stranahan, 192 U.
S. 470 (1904) (congressional directive to prohibit
importation of tea that is impure or unfit for consumption;
standards of purity and fitness to be prescribed by
administrator).
[
Footnote 3/30]
E.g., United States v. Grimaud, 220 U.
S. 506 (1911) (delegation of power to make regulations
for use of national forests to "improve and protect" the
forests).
[
Footnote 3/31]
E.g., Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367 (1969) ("fairness doctrine");
NBC v. United
States, 319 U. S. 190
(1943) (regulation of network-station contracts).
[
Footnote 3/32]
Most substantive exercises of federal rulemaking power are now
governed by the Administrative Procedure Act, 5 U.S.C. § 551
et
seq. (1964 ed., Supp. V).
[
Footnote 3/33]
Ever since
Wayman v.
Southard, 10 Wheat. 1 (1825), we have regularly
upheld congressional delegation to courts and agencies of the power
to make their own rules of procedure.
Cf. 5 U.S.C. §
553(b)(3)(A) (1964 ed., Supp. V), excepting procedural rules from
the requirements otherwise imposed on rulemaking procedures by the
Administrative Procedure Act. Second, we have regularly upheld
federal statutes that seek to further state policies by adopting or
enforcing state law.
E.g., United States v. Howard,
352 U. S. 212
(1957).
[
Footnote 3/34]
Fahey v. Mallonee, 332 U. S. 245,
332 U. S. 250,
253 (1947), found broad statutory standards drawing content from
"accumulated experience" that "established well defined practices."
In
American Trucking Assns. v. United States, 344 U.
S. 298 (1953), we sustained an exercise of rulemaking
power on the basis that the rules, which dealt with matters not
explicitly mentioned in the statute, were reasonably necessary to
prevent frustration of specific provisions of the Act.
Id.
at
344 U. S.
310-313.
[
Footnote 3/35]
Compare Perkins v. Lukens Steel Co., 310 U.
S. 113 (1940),
with 66 Stat. 308, 41 U.S.C. §
43a;
compare United States v. Wunderlich, 342 U. S.
98 (1951),
with 68 Stat. 81, 41 U.S.C. §§ 321,
322.
[
Footnote 3/36]
See, e.g., congressional revision of the Federal Trade
Commission's rule regarding cigarette advertising, 29 Fed.Reg. 8325
(1964), in 79 Stat. 282 (1965).
[
Footnote 3/37]
Accardi v. Shaughnessy, 347 U.
S. 260 (1954).
[
Footnote 3/38]
Lichter has been termed by Professor Davis, "in some
respects, the greatest delegation upheld by the Supreme Court." 1
K. Davis, Administrative Law Treatise § 2.03, at 86 (1958).
[
Footnote 3/39]
And, as the Court notes, substantially adopted in one proposal
of the National Commission on Reform of the Federal Criminal
Laws.
[
Footnote 3/40]
I do not mean to imply, of course, that any State has or is
compelled to have a single, uniform penological policy applicable
to all crimes. Presumably a State may, for example, seek to
rehabilitate burglars but pursue only deterrence in sentencing
parking violators.
[
Footnote 3/41]
Of course, on occasion difficult problems of identity or the
validity of prior convictions might arise.
[
Footnote 3/42]
See 402 U. S.
infra.
[
Footnote 3/43]
The literature is surveyed in H. Packer, The Limits of the
Criminal Sanction (1968), reviewed, 79 Yale L.J. 1388 (1970).
[
Footnote 3/44]
Such waiver is apparently not a matter of right when the trial
court, either from representation by defense counsel or from other
information that has come to its attention, has reason to believe
that the defendant is presently insane.
See State v. Smith,
supra.
[
Footnote 3/45]
Apparently there is no such thing in Ohio as a plea of guilty to
first-degree murder. Ohio Rev.Code Ann. § 2945.06 (1954) provides
that, if a defendant
"pleads guilty of murder in the first degree, a court composed
of three judges shall examine the witnesses, determine the degree
of crime, and pronounce sentence accordingly."
[
Footnote 3/46]
The statute is not limited, by its terms, to any particular
class of cases, and the question appears never to have been
discussed in the reported opinions.
[
Footnote 3/47]
See infra at
402 U. S.
292-293.
[
Footnote 3/48]
See supra at
402 U. S.
288-289.
[
Footnote 3/49]
See Ohio Rev.Code § 2947.05 (1954);
supra at
402 U. S.
288-289.
[
Footnote 3/50]
See Ohio Rev.Code § 2947.06 (Supp. 1970);
supra at
402 U. S.
289.
[
Footnote 3/51]
In addition, the evidence before the sentencing authority -- and
therefore the possible bases for its decision -- will vary
substantially with a number of factors, such as the presence or
absence of an insanity defense, the willingness
vel non of
a defendant to waive the privilege against self-incrimination, and
so forth. In this context, the irrational nature of a unitary trial
is particularly conspicuous. A jury that considered recidivism
relevant to its sentencing determination could obtain information
with respect to that point only if the defendant should testify, or
if evidence of other crimes should be relevant (for reasons such as
motive, identity, and so forth) to the question of guilt.
[
Footnote 3/52]
Ohio does exclude jurors with conscientious scruples against
capital punishment,
State v. Carter, 21 Ohio St.2d 212,
256 N.E.2d 714 (1970).
[
Footnote 3/53]
Of course, codefendants may be tried by the same jury, and some
jurors may at some time have sat on another capital case. Nothing
suggests, however, that the latter class of jurors is anything but
an insubstantial one. In light of the fact that first-degree murder
convictions in the period 1959-1968 never exceeded 58 per year,
evidence that a significant number of jurors were involved in more
than one capital sentencing determination would seem to raise
substantial questions about the randomness of the jury selection
procedures.
[
Footnote 3/54]
No matter how broad the scope of state power to determine when
the death penalty should be inflicted, it cannot be seriously
questioned that its infliction for some reasons is constitutionally
impermissible. Yet nothing in the Ohio procedure before us prevents
a jury from relying upon impermissible reasons, or allows anyone to
determine whether this is what the jury has done.
[
Footnote 3/55]
Cal.Penal Code § 4500 (1970) defines the mandatory capital crime
of assault with malice aforethought with means likely to cause
great bodily injury by a prisoner under sentence of life
imprisonment, where the person assaulted is not a fellow inmate,
and dies within a year and a day.
Amici N.A.A.C. P. Legal
Defense and Educational Fund, Inc., and National Office for the
Rights of the Indigent, represent without contradiction elsewhere
that this is the only mandatory capital statute presently in active
use in the United States.
See Brief
amici curiae
15 n.19.
[
Footnote 3/56]
Cal.Penal Code § 190.1 (1970) provides, in pertinent part:
"If [a] person has been found guilty of an offense punishable by
life imprisonment or death, and has been found sane on any plea of
not guilty by reason of insanity, there shall thereupon be further
proceedings on the issue of penalty, and the trier of fact shall
fix the penalty. Evidence may be presented at the further
proceedings on the issue of penalty, of the circumstances
surrounding the crime, of the defendant's background and history,
and of any facts in aggravation or mitigation of the penalty. The
determination of the penalty of life imprisonment or death shall be
in the discretion of the court or jury trying the issue of fact on
the evidence presented, and the penalty fixed shall be expressly
stated in the decision or verdict. . . ."
"If the defendant was convicted by the court sitting without a
jury, the trier of fact shall be the court. If the defendant was
convicted by a plea of guilty, the trier of fact shall be a jury
unless a jury is waived. If the defendant was convicted by a jury,
the trier of fact shall be the same jury unless, for good cause
shown, the court discharges that jury in which case a new jury
shall be drawn to determine the issue of penalty."
"In any case in which defendant has been found guilty by a jury,
and the same or another jury, trying the issue of penalty, is
unable to reach a unanimous verdict on the issue of penalty, the
court shall dismiss the jury and either impose the punishment for
life in lieu of ordering a new trial on the issue of penalty, or
order a new jury impaneled to try the issue of penalty, but the
issue of guilt shall not be retried by such jury."
[
Footnote 3/57]
See Cal.Const., Art. I, § 7;
People v.
King, 1 Cal. 3d 791,
463 P.2d 753 (1970).
[
Footnote 3/58]
See 402
U.S. 183fn3/56|>n. 56,
supra.
[
Footnote 3/59]
The proceedings leading to that determination are, as indicated
in the text immediately following, reviewable.
[
Footnote 3/60]
Morse noted that
"[w]hen we opened the door a slight crack to allow an
instruction, and to admit an evidentiary showing, as to the
realistic consequence of a sentence of life imprisonment, we had in
mind a limited and legitimate objective. But various maneuvers have
pushed the door so widely ajar that too many confusing elements
have entered the courtroom."
60 Cal. 2d at 639, 388 P.2d at 38.
[
Footnote 3/61]
Kidd held that a defendant could not submit evidence
that capital punishment was an ineffective deterrent because
"[i]nnumerable witnesses could be produced to testify on both sides
of the question" and because, quoting
Love, "[j]uries in
capital cases cannot become legislatures
ad hoc." 56 Cal.
2d at 770, 366 P.2d at 56.
Love held argument of counsel
impermissible because evidence on the question was impermissible.
56 Cal. 2d at 731, 366 P.2d at 39.
[
Footnote 3/62]
The basis for this ruling is that the issue has been foreclosed
by the statute allowing capital punishment to be imposed.
[
Footnote 3/63]
This rule is based, apparently, upon the notion that such
evidence would be unduly inflammatory.
See People v.
Floyd, 1 Cal. 3d 694,
464 P.2d 64 (1970).
[
Footnote 3/64]
People v. Bandhauer, 66 Cal. 2d
524, 426 P.2d 900 (1967), struck down prospectively the earlier
practice of allowing the prosecution to open and close the
arguments as inconsistent with the legislature's "strict
neutrality" concerning the choice of life or death.
Id. at
531, 426 P.2d at 905.
[
Footnote 3/65]
California Jury Instructions, Criminal, � 8.80 (3d rev. ed.,
1970).
[
Footnote 3/66]
The elided paragraph, not included in the standard instruction
referred to, instructed the jury that it could not consider
evidence of other crimes against a defendant unless the other
crimes were proved beyond a reasonable doubt. The jury below was
also instructed that
"the law does not forbid you from being influenced by pity for
the defendants and you may be governed by mere sentiment and
sympathy for the defendants."
App. 221-222.
[
Footnote 3/67]
The jury was so instructed in the present case;
see
supra at
402 U. S.
301-302. In light of this, it is mystifying to find the
Court relying,
ante at
402 U. S.
201-202, on the following quotation from
Witherspoon
v. Illinois, 391 U. S. 510,
391 U. S. 519
(1968), to sustain the California procedure:
"[capital sentencing juries] do little more --
and must do
nothing less -- than express the conscience of the community
on the ultimate question of life or death."
(Emphasis added; footnote omitted.)
[
Footnote 3/68]
That is, the court is to exercise the same unlimited power given
to the jury.
[
Footnote 3/69]
Apparently the trial judge did not do so in this case: denying
petitioner McGautha's motion for reduction of penalty, he said:
"[C]ertainly this court, I do not think, except in most unusual
circumstances, is justified in placing the Court's judgment over
and above that of the 12 people who have carefully deliberated upon
this case and decided that the proper penalty in this case should
not be life imprisonment."
App. 243.
[
Footnote 3/70]
See 402
U.S. 183fn3/69|>n. 69,
supra.
[
Footnote 3/71]
"[McGautha] has three robberies. He has over ten years in
prison, and he has another killing, and you will have all those
documents in front of you in the jury room about his prior record,
and the thing about his prior record is the way in which he
minimizes his involvement. Can you imagine that the first prior I
think we had on him was a robbery, and he has the nerve to sit up
there on the witness stand and tell people who he is asking not to
kill him -- he has the nerve to tell those people, 'I pleaded
guilty to robbery, but I didn't really do that robbery,' and then
he tells them about the second robbery. The friends whom he was
giving a ride were involved in that second robbery. He didn't
commit that robbery, but he pleaded guilty to it. He got sentenced
to 10 years and he served six years."
"What kind of person do we have here who, having spent all that
time in prison, still is unwilling to acknowledge his participation
in crime?"
App. 204-205.
[
Footnote 3/72]
A peculiarity of California law raises another, more subtle,
point. Juries, as noted, are not required to base their decision on
any particular findings of fact. But if a given jury should
determine to impose the death sentence
only if it found
particular facts that it thought relevant, it still would not be
required to find those facts by even a preponderance of the
evidence.
People v. Hines, 61 Cal. 2d
164, 173, 390 P.2d 398, 404 (1964). I do not suggest that due
process requires such facts to be found beyond a reasonable doubt,
or that we could reverse on due process grounds a conviction or
sentence that we believed contrary to the weight of the evidence.
But there is in my mind a serious question whether a State may
constitutionally allow
its chosen trier of fact to base a
determination to kill any person on facts that the
trier of
fact himself does not believe are supported by the weight of
the evidence.
Cf. In re Winship, 397 U.
S. 358,
397 U. S. 370,
397 U. S.
371-373 (1970) (HARLAN, J., concurring) (standard of
proof required by due process depends upon the "consequences of an
erroneous factual determination").
[
Footnote 3/73]
The Court, to be sure, refers only to jury consideration of
arguments suggested by "defense counsel." I do not, however,
understand the Court to imply that the arguments of counsel for the
State are given any less consideration.
[
Footnote 3/74]
Except, of course, insofar as state power may be restricted by
the Eighth Amendment, a question not involved in these cases.