McGautha v California Concurrent Opinion

2 pages

Document text

The following text has been generated automatically during the document scanning process. It may contain errors, omissions, or incorrect formatting. Please refer to the PDF document if this text is not usable.

Download

By downloading, publishing, or reusing the Materials outside of the Website, you hereby confirm and attest that you have read and agree to the LDF Archival Collection Terms of Use linked below. We draw your attention to the following:

For those Materials owned by LDF, your use of the Material outside the Site is solely for one or more of the following (the “Permitted Purposes”):

Non-commercial research and private study;
Teaching, scholarship and instruction (including distance learning);
Non-commercial print and non-commercial online use;
Criticism, comment or news reporting; or
For people with visual disabilities (See Section 121 of the Copyright Act).
For those Materials not owned by LDF you understand that:
- It is your responsibility to determine whether the way you plan to use the materials falls within the copyright exception of Fair Use.
- For any use outside of Fair Use, it is your responsibility to seek and obtain all required permissions from any existing rights holders.

LDF hereby grants you the right to use LDF owned Materials for the Permitted Purposes without seeking further permission from LDF.

If you publish or redistribute any Materials (including excerpts and quotes), you must include a credit line and/or proper citation to the source of the Material. However, you may not use the name of LDF in any manner which creates any false association between you and LDF or that incorrectly implies any sponsorship or endorsement of you by LDF.

NOTICE: Uses that do not comply with these Terms or that do not fall under Fair Use (or another exception) may make you liable for copyright infringement.

Read the full LDF Archival Collection Terms of Use Here.

I agree to the terms and conditions for use of this content.

If you would like to use this content in other ways, contact us at

Opinion from Justice Hugo Black

Collection
- Brief Collection
Taxonomy
Identifier
- 66155a59-bc9a-ee11-be36-6045bdeb8873

Cite this item

Brief Collection, LDF Court Filings. McGautha v California Concurrent Opinion, 1971. 66155a59-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/104a45ea-b513-4e4f-a76d-5eefffc34c68/mcgautha-v-california-concurrent-opinion. Accessed April 19, 2025.

Copied!

    SUPREME COURT OF THE UNITED STATES
Nos. 20.3 <fc 204.— October T erm, 1970

Dennis Councle McGautha, 
Petitioner,

203 v.
State of California.

On Writ of Certiorari to the 
Supreme Court of Cali
fornia.

James Edward Crampton, 
Petitioner,

204 v.
State of Ohio.

On Writ of Certiorari to the 
Supreme Court of Ohio.

[May 3, 1971]

M r. Justice Black, concurring.
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 37. The Constitu
tion grants this Court no power to reverse convictions 
because of our personal beliefs that state criminal pro
cedures are “unfair,” “arbitrary,” “capricious,” “ unrea
sonable,” or “ shocking to our conscience.” See, c. g., 
Rochin v. California, 342 U. S. 165, 174 (1952) (B lack. 
J.. concurring); United States v. Wade, 3S8 U. S. 218. 
243 (1967) (B lack, J., dissenting and concurring). Our 
responsibility is rather to determine whether petitioners 
have been denied rights expressly or impliedly guaran
teed by the Federal Constitution as written. I agree 
with the Court’s conclusions that the procedures em
ployed 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 guar-



203 <fc 204— CONCUR

McGAUTHA v .  CALIFORNIA

anteed 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 inter
pretation 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 Elections, 383 U. S. 063. 670 (1966) ( B lack. J., 
dissenting).

Copyright notice

This collection and the tools to navigate it (the “Collection”) are available to the public for general educational and research purposes, as well as to preserve and contextualize the history of the content and materials it contains (the “Materials”). Like other archival collections, such as those found in libraries, LDF owns the physical source Materials that have been digitized for the Collection; however, LDF does not own the underlying copyright or other rights in all items and there are limits on how you can use the Materials. By accessing and using the Material, you acknowledge your agreement to the Terms. If you do not agree, please do not use the Materials.

Additional info

To the extent that LDF includes information about the Materials’ origins or ownership or provides summaries or transcripts of original source Materials, LDF does not warrant or guarantee the accuracy of such information, transcripts or summaries, and shall not be responsible for any inaccuracies.

McGautha v California Concurrent Opinion

Collection

Taxonomy

Identifier

Cite this item

Copyright notice

Additional info

You may also be interested in