Correspondence from Clerk to Counsel

    SUPBEME COUBT OF THE UNITED STATES

Nos. 203 & 204.—October T erm, 1970

Dennis Councle McGautha, 
Petitioner,

On Writ of Certiorari to the 
Supreme Court of Cali­
fornia.203 v.

State of California.

James Edward Crampton, 
Petitioner, On Writ of Certiorari to the 

Supreme Court of Ohio.204 v.
State of Ohio.

[May 3, 1971]

M r. Justice Brennan , with whom M r. Justice 
D ouglas and M r. Justice M arshall join, dissenting.

These cases test the viability of principles whose roots 
draw strength from the very core of the Due Process 
Clause. The question which 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 varia­
tion from reflecting merely random or arbitrary choice. 
The Court does not, however, come to grips with that 
fundamental question. Instead, the Court misappre­
hends petitioners’ argument and deals with the cases as 
if petitioners contend that due process requires capital 
sentencing to be carried out under predetermined stand­
ards 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



203 <fc 204— DISSENT

that the legislatures of Ohio and California are incom­
petent 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 irrecon­
cilable 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 multi­
plicity of imaginative procedures designed by the state 
and federal legislatures to assure evenhanded treatment 
and ultimate legislative control regarding matters which 
the legislatures have deemed either too complex or other­
wise 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 
conflict, I would have no hesitation in concluding that 
the rule of law must prevail.

Except where it incorporates specific substantive con­
stitutional guarantees against state infringement, the 
Due Process Clause of the Fourteenth Amendment does 
not limit the power of the States to choose among com­
peting social and economic theories in the ordering of life 
within their respective jurisdictions. But it does require

2 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

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, not of men.” Marbury v. 
Madison, 1 Cranch 137, 1G3 (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, 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 individ­
uals may mask itself as nothing more than such a per­
missible 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 deci­
sion may be required to rest upon the presence or absence 
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

-MoGAUTHA v .  CALIFORNIA 3



203 & 204—DISSENT

or exhaustive—intended to illuminate the question pre­
sented without setting a fixed balance. The process may 
draw upon the genius of the common law, and direct 
itself towards the refinement of understanding through 
case-by-case development. In sucli 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 deci­
sionmakers to explain their actions, and evenhanded treat­
ment enhanced by requiring disputed factual issues to be 
resolved and providing for some form of subsequent re­
view. Creative legislatures may devise yet other proce­
dures. 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 pro­
cedure designed to give rationality to the capital sen­
tencing process. For the plain fact is that the legisla­
tures 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 
impermissible or inadequate. We are not presented with 
a legislative attempt to draw wisdom from experience 
through a process looking towards growth in understand­
ing 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 rele­
vant 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, un­

4 McGAUTHA v. CALIFORNIA



203 & 204— DISSENT

bridled, unreviewable exercise of naked power. Almost 
a century ago, we found an almost identical California 
procedure constitutionally inadequate to license a laun­
dry. Yick Wo v. Hopkins, 118 U. S. 356, 366-367, 369- 
370 ( 1SS6). Today we hold it adequate to license a life. 
I would reverse petitioners’ sentences of death.

I
“Our system of ordered liberty is based, like the com­

mon law, on enlightened and uniformly applied legal 
principle, not on ad hoc notions of what is right or wrong 
in a particular case.” Harlan, Thoughts at a Dedica­
tion, in The Evolution of a Judicial Philosophy 289, 291- 
292 (D. Shapiro ed. 1969).1 The dangers inherent in any 
grant of governmental power without procedural safe­
guards upon its exercise were known to English law long 
long before the Constitution was established. See, e. q., 
8 How. St. Tr. 55-58 n. *. The principle that our Gov­
ernment 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 
Constitution.2 And this principle has been central to

McGAUTHA v. CALIFORNIA 5

1 Mv Brother Haiu.a x  continue.-;: “ The stability and flexibility 
that onr constitutional system at once possesses is largely due to 
our having carried over into constitutional adjudication the common- 
law approach to legal d e v e lo p m e n t Id.. at 292.

2 The prohibition against bills of attainder. Article 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, 3,si U. S. 437, 442-446 (1965); id., at 462 (dissent); 
Cummings v. Missouri, 4 Wall. 277, 322-325 (1S67). The prohibi­
tion 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 325-326; Colder 
v. Bxdl, 3 Dali. 386, 390 (1798) (Chase, ,T.), or by increasing the 
punishment imposed upon admittedly criminal acts that have al­



203 & 204—DISSENT

the decisions of this Court giving content to the Due 
Process Clause.8 As we said in Hurtado v. California, 
110 U. S. 516, 535-536 (1884):

“ [I ]t  is not to be supposed that . . . the amend­
ment prescribing due process of law is too vague and 3

G McGAlJTHA v. CALIFORNIA

ready been committed. In re Medley, 134 U. S. 160, 166-173 
(1800); Colder 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 un- 
supervised delegation of legislative authority, but by the Nation as 
a whole acting through Congress. See, e. g., FCC  v. RCA Com­
munications. Inc.., 346 U. S. 86. 90 (1953); Lie,liter v. United States, 
334 IT. S. 742. 766, 769-773, 778 (1948); Schechter Poultry Corp. v. 
United States, 295 U. S. 495, 529-530, 537-539 (1935); Panama 
R ef’g Co. v. Ryan, 293 U. S. 388, 414-430 (1935); id., at 434, 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, 35S U. S. 1, 16-17 (1958), 
McFarland v. American Sugar Co., 241 U. S. 79, 86-87 (1916) 
(Holmes, ,T.), 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, 641-642 (1969); Schneider v. Rusk, 
377 U. S. 163, 168-169 (1964); Bolling v. Sharpe, 347 U. S. 497 
(1954).

3 Thus, although recognizing that the explicit constitutional pro­
hibition against ex post facto laws applies only to legislative action, 
we held in Bouic v. City of Columbia, 37S U, S. 347, 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 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, 1S7 U. S. 71, 83- 
84 (1902); Sweezy v. New Hampshire, 354 U. S. 234, 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, 120-122 (1928); Eubank v. Richmond,



203 & 204— DISSENT

indefinite to operate as a practical restraint. . . . 
Law is something more than mere will asserted 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 con­
fiscation . . . and other similar special, partial and 
arbitrary exertions of power under the forms of legis­
lation. 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.4

220 U. S. 137, 143-144 (1912); of. Browning v. Hooper, 269 U. S. 
396,405-406 (1926). See the discussion infra, at [24-26], Finally,, 
in Hurtado v. California, 110 U. S. 516, 535-536 (1S84), quoted in 
the text immediately above, we noted as an example of a clear vio­
lation of due process the passage by a legislature of a bill of attainder. 
Cf. n. 2, supra, and cases cited.

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 , 481-4S6 (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. 618, 641-642 (1969), and cases cited. Finally, 
we have of course held that due process forbids a State from punish­
ing the assertion of federally guaranteed rights whether procedural 
or otherwise. North Carolina v. Pearce, 395 U. S. 711, 723-725-

McGAUTHA v. CALIFORNIA 7



203 & 20-1— DISSENT

While we have, on rare occasions, held that clue process 
requires specific procedural devices not explicitly com­
manded by the Bill of Rights,* 3 * 5 * we have generally either 
indicated one acceptable procedure and left the States 
free to devise others," or else merely ruled upon the 
validity or invalidity of a particular procedure without 
attempting to limit or even guide state choice of pro­
cedural mechanisms beyond stating the obvious proposi­
tion that inadequate mechanisms may not be employed.7 
Several principles, however, have until today been 
consistently employed to guide determinations of the 
adequacy of any given state procedure. “ When the Gov­
ernment exacts . . . much, the importance of fair, even- 
handed, and uniform decisionmaking is obviously intensi­
fied.” Gillette v. United States, 40- U. S. -----, -----
(1971). Procedures adequate to determine a welfare 
claim may not suffice to try a felony charge. Compare 
Goldberg Kelly, 397 U. S. 254, 270-271 (1970), with 
Gideon v. Wainwright, 372 U. S. 335 (1963). Second, 
even where the only rights to be adjudicated are those

(1900): Spevack v. Klein, 385 II. S. 511 (1907): of. Ex parte Hull, 
312 U. S. 540 (1941). But wo have long rejected the view, typified 
by, e. g„ Adkins v. Children’s Hospital, 201 U. S. 525 (1923). over­
ruled 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. Shrupa, 372 II. S. 720. 730-731 (1903).

3 E. g„ North Carolina, v. Pearce, 395 II. S. 711, 725-720 (1909);
Boykin v. Alabama, 395 I'. S. 238. 242-244 (1909); see also Goldberg 
v. Kelly, 397 II. S. 254. 209-271 (1970).

« E. f/., United States v. Wade, 388 IT. S. 218, 236-239 (1907);
Miranda v. Arizona, 384 IT. S. 430, 407-473 (1900); Jackson v. 
Denno, 378 U. S. 368, 377-391 (1904).

7 Fj. g., Johnson v. Avery, 393 LI. S. 483 , 488-490 (1909); In re 
Murchison, 349 II. S. 133 (1955): Seattle Trust Co. v. Roberge, 
278 U.S. 110 (1928).

8 MeGAUTHA v. CALIFORNIA



203 & 204— DISSENT

created and protected by state law, due process requires 
that state procedures be adequate to allow all those con­
cerned a fair hearing of their state-law claims. Boddie v.
Connecticut, 40- U. S. ----- (1971); Covey v. Town of
Somers, 351 U. S. 141 (1956); Mullane v. Central Han­
over Trust Co., 339 U. S. 306 (1950). Third, where fed­
erally protected rights are involved, due process com­
mands 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 oppor­
tunity for review of those federal claims where such 
review is otherwise available. Goldberg v. Kelly, 397 
U. S., at 271; Boykin v. Alabama, 395 U. S. 238, 242-244 
(1969); Jackson v. Denno, 378 U. S. 368, 387 (1964); cf. 
North Carolina v. Pearce, 395 U. S. 711, 725-726 (1969); 
In re Murchison, 349 U. S. 133, 136 (1955). Finally, and 
closely related to the previous point, due process requires 
that procedures for the exercise of state power be struc­
tured 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 I'. S. 145, 152-153 (1965) ( Black, J.) ; 
FCC v. RCA Communications, Inc., 346 U. S. 86. 90 
(1953); Niemotko v. Maryland, 340 U. S. 268 (1951); 
United States v. Rock Royal Co-op, 307 U. S. 533, 574, 
575 (1939); Currin v. Wallace, 30(5 U. S. 1, 15 (1939); 
Lovell v. Griffin, 303 U. S. 444 (1938); Browning v. 
Hooper, 269 U. S. 396. 405-406 (1926); McKinley v. 
United States, 249 U. S. 397, 399 (1919); Eubank v. 
Richmond, 226 IT. S. 137, 143-144 (1912); Yick Wo v. 
Hopkins, 11S U. S. 356, 366-367, 369-370 (1886). 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.

McGAUTHA v. CALIFORNIA 0



203 & 204—DISSENT

10 McGAUTHA v. CALIFORNIA

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 crim­
inal statute must give fair notice of the conduct that it 
forbids, e. g., Lanzetta v. New Jersey, 306 U. S. 451 
(1939); Connolly v. General Construction Co., 269 U. S. 
385, 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., 
Baggett v. Bullitt, 377 U. S. 360 (1964); Dombroivski v. 
Pfister, 380 U. S. 479, 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, 36 
(1963); Smith v. California, 361 U. S. 147, 150-152 
(1959).8 But unless it be assumed that our decisions in 
such matters have shown an almost unparellelled incon­
sistency, these factors may not be taken as more than a 
partial explanation of the doctrine.

To begin with, we have never treated claims of uncon­
stitutional 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);

8 For analysis in substantially these terms, see, e. g., Collings, 
Unconstitutional Uncertainty— An Appraisal, 40 Cornell L. Q. 195 
(1955); Freund. The Supremo Court and Civil Liberties, 4 Vand. 
L. Rev. 533 (1951); Comment, 53 Mich. L. Rev. 264 (1954).



203 & 204—DISSENT

Cox v. New Hampshire, 312 U. S. 569 (1941). In Musser 
v. Utah, 333 U. S. 95 (1948), we even remanded a crim­
inal 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.
Vuitcli, ----  U. S. ----- (1971); Dennis v. United States,
341 U. S. 494, 502 (1951); Kay v. United States, 303 
U. S. 1 (1938). If the vagueness doctrine were funda­
mentally premised upon a concept of fair notice, such 
treatment would simply make no sense: a citizen can­
not 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 pp. 
112-18] infra, the inconsistency between theory and 
practice disappears. Of course such a choice, once made, 
is not irrevocable: statutes may be amended and statu­
tory construction overruled. Nevertheless, an explicit 
state choice among possible statutory constructions sub­
stantially reduces the likelihood that subsequent convic­
tions under the statute will be based on impermissible 
factors.9 It also renders more effective the available

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, Nicrnotko v. Maryland, 
340 U. S. 268, 272 (1951), cf. H. Black, A Constitutional'Faith 
31-32 (1969), the reasons underlying different application to dif­
ferent individuals may in themselves be constitutionally imper­
missible. Cf. Schacht v. United States, 398 U. S. 58 (1970) (appli­
cability of statute determined by political views); Yick Wo v. 
Hopkins, 118 I . S. 356 (1886) (application of statute on racial basis).

McGAUTHA v. CALIFORNIA 11



203 & 204—DISSENT

mechanisms for judicial review, by increasing the likeli­
hood that impermissible factors, if relied upon, will be 
discernible from the record. Thus in Thompson v. Louis­
ville, 302 U. S. 199 (1960), we were faced with the appli­
cation 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 1'. S. 564 (1970) (impossible 
to determine whether verdict rested upon permissible 
or impermissible grounds).

Second, in dealing with statutes that are unconstitu­
tionally 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 af­
fords fair warning to the defendants.” Dombrowski v.. 
Pfister, 380 IT. S. 479. 491 n. 7 (1965) (citations omit­
ted ) ; in see. e. </., Poulos v. Xew Hampshire, 345 U. S. 395 
(1953). That is, an unconstitutionally overbroad stat­
ute may not be enforced at all until an acceptable con­
struction has been obtained, e. g., Thornhill v. Alabamar 
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 construc­
tion of an overbroad statute has obviously not received 
from that construction any warning that would have en- *

12 McGAUTHA v. CALIFORNIA

Younger v. Harris, 40- U. S. ----  (1971), and its companions
cast no shadow upon the sentence quoted.



203 & 204— DISSENT

abled 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 over- 
breadth is furthered by forbidding the State, on the one 
hand, to punish that conduct so long as an acceptable 
limiting construction lias not been obtained, but permit­
ting 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 construc­
tion 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 poli­
cies: 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 en­
courage. It a vague or overbroad statute is applied be­
fore 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 punishible— conduct which, if 
engaged in by another person, would not be subject to 
criminal liability. Shuttlesworth v. Birmingham, 382 
l  . S. 87, 91-92 (1965). Allowing a vague or overbroad 
statute to be enforced if. and only if, an acceptable con­
struction 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.”  11

McGAUTHA v. CALIFORNIA 13

11 A closely related proposition may be derived from a separate line 
of cases. In Louisiana Power A Light Co. v. City of Thibodaux, 
300 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



20.3 & 204— DISSENT

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 requir­
ing criminal defendants to pay the costs of prosecution 
in all cases 12 by committing the matter to the discretion

possessed the power to take local gas and electric companies by 
eminent domain. The same day, in Allegheny County v. Frank 
Mashuda Co., 360 11. 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, Alle­
gheny 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 tribunals] might not be impartial between their 
own citizens and foreigners.” Pease v. Peck, 18 How. 595, 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 propo­
sition that the possibility of bias which 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 ques­
tions of fundamental state policy serves to enforce the requirement of 
evenhanded treatment that due process commands.

12 See Brief for Respondent in Giaccio, at 8-10; Commonwealth v. 
Tilghman, 4 S. & R. 127 (Pa. Sup. Ct. 1818); Act of March 20, 1797, 
3 Smith’s Law's 281.

14 McGAUTHA v. CALIFORNIA



203 & 204— DISSENT

of the jury in cases where the defendant was found not 
guilty.'" 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 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 suffi­
cient 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 
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 ivith legal standards that courts must 
enforce. . . .

. . The State contends that . . . state court 
interpretations have provided standards and guides 13

13 Some standards were provided to guide the jury’s decision. See 
382 U. S., at 403-404. See App. 30-32 in Giaccio for the charge 
given in that case.

McGAUTHA v. CALIFORNIA 15.



203 & 204—DISSENT

that cure the . . . constitutional deficiencies. We do 
not agree. . . .  In this case the trial judge in­
structed 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 had been guilty of some misconduct less than 
the offense which is charged but nevertheless miscon­
duct 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 402-404 (emphasis supplied) (citations 
omitted).”

Several features of Giaccio are especially pertinent in 
the present context. First, there were no First Amend­
ment 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 dis­
charged a firearm at another, in violation of Pa. Stat. 
Ann., Tit. 19, § 1222 (1963), and Giaccio’s defense was 
that “ the firearm he had discharged was a starter pistol 
which only fired blanks.” 382 U. S., at 400. Second, we 
were not presented with a defendant who had been con­
victed for conduct he could not have known was unlawful. 
Whether or not Giaccio’s actions fell within § 1222, his

16 McGAUTHA v. CALIFORNIA

”  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 403 n. 8. Insofar as 
jury sentencing in general is concerned, Giaccio is by no means 
necessarily inconsistent with the practice. See infra, pp. [63-64].



203 & 204—DISSENT

conduct was unquestionably punishable under other state 
laws. E. g., Pa. Stat. Ann., Tit. 19, §4406 (1963). Fi­
nally, 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 40o (con­
curring 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.15

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

lr'I  find little short of bewildering the Court’s treatment o f 
Giaccio. The Court appears to read that case as standing for the 
proposition that duo process forbids a jury to impose punishment 
upon defendants for conduct which, “ although not amounting to the 
crime upon which they were charged, was nevertheless found to be 
‘reprehensible.’ ”  Ante, at 24 n. 18. Of course the procedures under 
review permit precisely the same action, without providing even the 
minimal safeguards found insufficient in Giaccio. See Part III, 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 “ rele­
vant differences between sentencing and determination of guilt or 
innocence are not so great as to call for a difference in constitutional 
result.”  Ante, at [33]. 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.”

McGAUTHA v. CALIFORNIA 17



203 & 204— DISSENT

through mechanisms which assure that fundamental 
choices among competing state policies be explicitly made 
by some responsible organ of the State.1" Second, the 
cases suggest that due process requires as well that state 
procedures for decision of questions that may have ad­
verse consequences for an individual neither leave room 
for the deprivation sub silentio of the individual’s fed­
erally 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.

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

1,1 This same point may be made another way. We have con­
sistently 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 de­
termining whether governmental action is in fact “ arbitrary,”  see, 
e. g., Grisicold v. Connecticut, 381 U. S. 479, 499 (1965) (Harlan, 
J., concurring); Id., at 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. 399, 402 (1966) (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, 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, 723-725 (1969): id., at 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.

IS McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

procedures whereby admittedly permissible state power 
is exerted, however, the Due Process Clause has consist­
ently been given a wider scope. “ [0]ur system of law 
has always endeavored to prevent even the probability 
of unfairness.” In re Murchison, 349 U. S. 133, 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, except­
ing only cases of urgent necessity, due process requires 
that contempt charges in such cases be heard by a dif­
ferent 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,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 
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 
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 unre- 
viewable—risk that the jury would not be able to dis­
regard a confession that it felt was both involuntary and 
true. Id., at 388-391. Similarly, in a long line of cases 
beginning with Lovell v. Griffin, 303 U. S. 444 (1938),

McGAUTHA v. CALIFORNIA IT

17 “ There are doubtless mayors who would not allow such a con­
sideration as $12 costs in each case to affect their judgment in 
it . . . .” 273 IT. S , at 532.



203 & 204—DISSENT

we liavc 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 imper­
missible reasons, whether or not an individual can ac­
tually 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 which, in the State’s 
own words, vested “discretion in the registrars of voters 
to determine the qualifications of applicants for registra­
tion,” but imposed “no definite and objective standards 
upon registrars of voters for the administration of the 
interpretation test.” Id., at 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 
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 152-153.

20 McCAUTHA v. CALIFORNIA



203 & 204—DISSENT

On that basis we held the Louisiana procedure for deter­
mining the qualifications of prospective voters to be a 
denial of due process. Ibid.is

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. Spe­
cifically, 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 judi­
cial review. We have elsewhere made this last point 
explicit. In Specht v. Patterson, 386 U. S. 606 (1967), 
we held that due process in commitment proceedings, 
“whether denominated civil or criminal,” id., at 608, 
requires “ findings adequate to make meaningful any ap­
peal that is allowed.” Id., at 610; see Garner v. Louisi­
ana, 368 U. S. 157. 173 (1061). 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 con­
siderations of the jury would itself entitle a defendant 
to further proceedings in any case in which the essential 
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 387 (emphasis added). In other words, due 
process forbids the States from adopting procedures that 
would defeat the institution of federal judicial review.10 18

18 We held, as an alternative ground, that the Louisiana procedure 
as applied had violated the Fifteenth Amendment. 3S0 U. 8., at 
152-153.

1!> See also 378 V. 8.. at 392: “ If this ease were here upon direct 
review of Jackson's conviction, we could not proceed with review

McGAUTHA v. CALIFORNIA 21



203 & 204— DISSENT

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. A orth 
Carolina v. Alford, 400 U. S. 25, 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, 310 U. S. 101 (1942). While 
recognizing the existence of such a remedy, \\e 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 244, and does not permit 
protection of the federally guaranteed rights to be rele­
gated 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 241. And only last Term, in Goldberg 
v. Kelly, 397 V. 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 271. due process requires that the decision­
maker “demonstrate compliance with this elementary 
requirement” by “stat[ing| the reasons for his determi­
nation and indicat [ing] the evidence he relied on.” Ibid.

22 McGAUTHA v. CALIFORNIA

on the assumption that Oicse 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 . . .



203 A 204— DISSENT

AIcGAUTHA v. CALIFORNIA 23

c
In my view, tlie 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 exer­
cise of state power are explicitly articulated by some re­
sponsible 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 prop­
ositions must be qualified, it is only that in some circum­
stances the impossibility of certain procedures may be 
sufficient to permit state power to be exercised notwith­
standing their absence. Cf. Carroll v. President and 
Commissioners, 393 U. S. 175, 182, 184-185 (1968). But 
the judgment that a procedural safeguard otherwise re­
quired by the Due Process Clause is impossible of appli­
cation 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 
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 mecha­
nisms developed in not incomparable situations and pre­
viously approved by this Court. Therefore, before exam­
ining the specific capital sentencing procedures at issue 
in these cases in light of the Due Process Clause, I am



203 & 204—DISSENT

compelled to discuss both the mechanisms available for 
the control of arbitrary action and the nature of the 
capital sentencing process.

24 McGAUTHA v. CALIFORNIA

II

A legislature which 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 dis­
tinction may be hard or easy to make."" But capital 
sentencing is not the only difficult question with which 
legislatures have ever been faced. At least since Way- 
man 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 pur­
pose 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. 
Tt is sufficient to state that in my view, whatever the 
sources of the doctrine,21 its application to the States

“ 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 
lie sentenced to death if and only if they had committed more than 
one such such crime. Application of such a criterion to the facts of 
any particular ease would then be relatively simple.

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, 1S7 U. S. 71, S.3-S4 (1902): Sweezy v. New Hampshire, 354 
IT. S. 234. 255 (1957)—and in the Due Process Clause of the Fifth 
Amendment. See, e. g., Wayman v. Southard, 10 Wheat. 1, 13-14 
(1S25) (argument of counsel) (due process and separation of pow­
ers); Field v. Clark', 143 U. S. 649, 692 (1S92) (separation of powers);



203 & 204—DISSENT

as a matter of due process* 22 is merely a reflection of 
the fundamental principles of due process already dis­
cussed: 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 peo­
ple [and] prevents judicial review from becoming 
merely an exercise at large by providing the courts 
with some measure against which to judge the offi­
cial action that has been challenged.” Arizona v. 
California, 373 U. S. 546. 626 (1963) (dissent).23

My intention here is merely to provide an admittedly 
brief sketch of the several mechanisms which Congress 
has employed to assure that even with regard to the 
most complex and intractable problems, delegation by

Carter v. Carter Coal Co.. 29S U. S. 238, 310-312 (1936) (due prof­
ess). The two doctrines are not unrelated: in the words of Mr. 
Justice Brandeis, “ The doctrine of tho separation of powers was 
adopted by the Convention of 1787, not to promote efficiency but 
to preclude the exercise of arbitrary power.” Myers v. I nited States. 
272 U. S. 52, 293 (1926) (dissent).

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 IT. S. 242 (1916); Browning v. Hooper, 269 U. S. 396 
(1926); Cline v. Frink Dairy Co., 274 IT. S. 445. 457. 465 (1927); 
Miller v. Schoene, 276 1’ . S. 272 (1928) ; Seattle Trust Co. v. Roberge„ 
278 U. S. 116 (1928); Louisiana v. United States, 380 U. S. 145 
(1965); Giaecio v. Pennsylvania, 382 IT. S. 399 (1966). See Jaffe, 
Law Making by Private Groups, 51 Harv. L. Rev. 201 (1937).

23 The passage quoted is explicitly an exegesis on the separation o f 
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 §§2.00-2.00-6 (Supp. 1970).

McGAUTHA v. CALIFORNIA 25



203 & 204—DISSENT

Congress of the power to make law has been subject to 
controls which limit the possibility of arbitrary action 
and which assure that Congress retains the responsibility 
for ultimate decision of fundamental questions of na­
tional policy. With these mechanisms in mind, I intend 
briefly to discuss the considerations relevant to the prob­
lem 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. Ken­
neth Culp Davis has been instrumental in pointing out 
the “ unreality” 24 of judicial language appearing to direct 
attention solely to the presence or absence of statutory 
“ standards” 25 or an “ intelligible principle “G by which 
delegated authority may be guided. See generally 1 Ad­
ministrative Law Treatise §§ 2.00—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 adminis­
trative working out of basic policy through the use 
of specialized tribunals which use the common-law 
method of concentrating upon one particular, nar­
row, and concrete problem at a time. The protec­
tion of advance legislative guidance is of little or

26 McGAUTHA v. CALIFORNIA

24 1 K  Davis, Administrative Law Treatise §2.03, at 82 (1958).
25 E ' g,y Yakus v. United States, 321 II. 8. 414, 423-424 (1944).
20 The phrase is Mr. Chief Justice Taft’s, from Hampton A Co. v. 

United States, 276 IT. S. 394, 409 (1928).



203 & 204—DISSENT

no consequence as compared with the protection that 
can and should be provided through adequate pro­
cedural safeguards, appropriate legislative supervi­
sion 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 super­
vision by the legislative authority . . . and from 
judicial review—all this is likely to be superior to 
protection afforded by definiteness of standards.” 1 
Administrative Law Treatise, §§ 2.05, at 98-99, 2.09, 
at 111 (1958)A7

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 statu­

-7 Professor Davis lias just recently suggested that, insofar as it 
presupposes a search for legislative standards, the doctrine prohibit­
ing undue delegation of legislative power be explicitly abandoned. 
“The time has come for the courts to acknowledge that the non­
delegation 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 stand­
ards.” 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., §2.00-6, 
at 58.

McGAUTHA v. CALIFORNIA 27



203 & 204—DISSENT

tory standards than on the creation of other means ade­
quate to assure that policy is set in accordance with 
congressional desires and that individuals are treated 
according to uniform principles rather than administra­
tive whim. Viewed in this light, our cases may be con­
sidered as illustrating at least three legislative techniques.

First. In a number of instances, Congress lias in fact 
undertaken to regulate even rather complex questions by 
the prescription of relatively specific standards. It is cer­
tainly an open question whether determining what con­
duct 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 regu­
larly passed criminal codes embodying, in the main, stat­
utes directed at specifically and narrowly defined con­
duct.-3 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 regulations of organi­
zations, including political parties, infiltrated by. domi­
nated 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 
an organization could be subject to such regulation. See 
50 U. S. C. §§ 782 (3). (4), (4A ), (5 ); Communist Forty 
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 ap­
proved 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 Sec-

28 Of course, where Congress has intended only to provide crim­
inal sanctions intended to further a regulatory scheme it has often 
simply made criminal the willful violation of administrative regula­
tions rather than enact statutes outlawing specific conduct. E. g., 26- 
V. S. C. § 7203.

28 McGAUTHA v. CALIFORNIA



203 & 204— DISSENT

retary of Agriculture only the power to issue orders in 
terms themselves specified in the Act, commanding mini­
mum prices to be determined in accordance with pre­
scribed standards, to be applicable in areas where prices 
had fallen below the limit set by Congress. See id., at 
o75-577.

Second. In other circumstances, Congress has granted 
to others the power to prescribed 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,20 or 
to leave to others the task of devising specific rules to 
carry out congressional policy in a variety of factual situ­
ations.2'1 Where, as is often the case, even major policy 
decisions may turn on specialized knowledge and exper­
tise 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 regu­
lated.21 But entirely aside from whatever procedural 
protections may be afforded interested parties prior to 
the promulgation of administrative rules,* 31 32 the very 
nature of the rulemaking process provides significant 
guarantees both of evenhanded treatment and of ulti­
mate legislative supervision of fundamental policy ques­

-nE. g.. Battfield v. Strnnahan. 102 U. S. 470 (1904) (congres­
sional directive lo prohibit importation of tea that is impure or unfit 
for consumption: standards of purity and fitness to be prescribed 
by administrator).

so E. g.. United Staten v. Grimaud, 220 U. S. 506 (1911) (delega­
tion of power to make regulations for use of national forests to “ im­
prove and protect” the forests).

31 E. g„ Red Lion H’ranting Co. v. FCC. 395 TT. S. 367 (1969) 
(“ fairness doctrine” ) : NRC  v. United Staten, 319 U. S. 190 (1943) 
(regulation of network-station contracts).

:l-> Most substantive exercises of federal rulemaking power are now 
governed by the Administrative Procedure Act, 5 l T. S. C. § 551 
ct seq. (Supp. X, 1969).

McGAUTHA v. CALIFORNIA 20



203 tV 204— DISSENT

tions. Significantly, we have upheld delegations of rule­
making power without standards to guide its exercise only 
in two narrowly limited classes of cases.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.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 exercsied in ac­
cordance with its will.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

33 Ever since Way wan v. Southard, 10 Wheat. 1 (1S25), 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) (Supp. V, 1969), excepting procedural rules from 
the requirements otherwise imposed on rulemaking procedures by 
the Administrative Procedure Act. Second, we have regularly upheld 
federal statutes which seek to further state policies by adopting or 
enforcing state law. E. g., United States v. Howard, 352 U. S. 212 
(1957).

34 Fahey v. Mallonee, 332 U. S. 245, 250, 253 (1947), found broad 
statutory standards drawing content from “ accumulated experience” 
which “ established well-defined practices.”  In American Trucking 
Ass?w. v. United States, 344 II. S. 298 (1953), we sustained an exer­
cise 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 310-313.

35 Compare Perkins v. Lukens Steel Co., 310 U. S. 113 (1940), with 
66 St at. 3081,41 U. S. C. § 43a; compare United States v. Wunderlich, 
342 U. S. 98 (1951), with 68 Stat. 81, 41 U. S. C. §§ 321-322.

30 McGAUTHA v. CALIFORNIA



203 & 204— DISSENT

supervision/6 as well as providing bases both for judicial 
review of agency action supposedly premised on the 
rule* 37 and for refinement of an old rule in light of 
experience gained in its administration.

1 hird. Perhaps the most common legislative tech­
nique 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 exer­
cised 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 sub­
stantial 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 un­
der such delegations must typically be premised upon an 
explanation of both the findings and reasons for a given 
decision, e. g., 5 U. S. C. § 557 (c)(3 ) (Supp. V, 1969), 
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, 196-197 
(1941). The regular course of adjudication by a con­

McGAUTHA v. CALIFORNIA 31

3(1 See, e. g., congressional revision of the Federal Trade Commis­
sion’s rule regarding cigarette advertising, 29 Fed. Reg. 8825 (1964),, 
in Tub. L. No. 89-92, 79 Stat. 282 (1965).

37 Accardi v. Shaughnessy, 347 U. S. 260 (1954).



203 & 204—DISSENT

tinuing 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 doc­
trine,” traced in Red Lion Broadcasting Co. v. FCC, 395 
U. S. 367, 375-379 (1969). We have often noted the 
importance of administrative or judicial review in pro­
viding a check on the exercise of arbitrary power, Mulford 
v. Smith, 307 U. S. 38. 49 (1939); American Bower <6 
Light Co. v. SEC, 329 U. S. 90, 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 dif­
ferent reasons, SEC v. Chenery Corp., supra; where ad­
ministrative expertise relevant to the solution of a prob­
lem had never been brought to bear upon it. FCC v. RCA 
Communications, Inc., 346 U. S. 86, 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. Gissell Packing Co., 
395 U. S. 575, 615-616 (1969).

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 im­
portant protection against random or arbitrary decisions.

32 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

Thus in Lie-liter v. United States, 334 U. S. 742 (1948),3S 
this Court dealt with the provisions of the original Rene­
gotiation Act, passed in April of 1942, which directed 
various administrative officials to proceed with com­
pulsory “renegotiation" of contracts that had resulted in 
“excessive profits.” The Act as originally passed at­
tempted 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 766, 769, 771, 773-774, 77S, 783, and the availabil­

i t y  of judicial review to check arbitrary or inconsistent 
administrative action. Id., at 770, 771, 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 in­
capable of rational treatment. Instead, it relies pri­
marily on the Report of the [British] Royal Commission 
on Capital Punishment, which reaches conclusions sub­
stantially 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,

■'18 Lirhter has been termed by Professor Davis “ in some respects 
flie greatest delegation upheld by the Supreme Court.”  1 K. Davis, 
Administrative Law Treatise §2.03, at 86 (1958).

McGAUTHA v. CALIFORNIA 33



203 iV 204—DISSENT

McGAUTHA v. CALIFORNIA

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, how­
ever, 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 by 
circumstances of heinous aggravation, which did not 
fall within any description of offenses 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 differ­
ent 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 execu­
tion 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 jus­
tice. . . . The wisdom and humanity of this design 
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 Am. ed. 1S10).



208 & 204—DISSENT

Significantly, the Court neglects to mention that the rec­
ommendations of the Royal Commission on Capital Pun­
ishment found little more favor in England than Arch­
deacon 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 sup­
ports its conclusions only by referring to the standards 
proposed in the Model Penal Code 30 and judging them 
less than perfect. The Court neglects to explain why the 
impossibility of perfect standards justifies making no at­
tempt whatsoever to control lawless action. In this con­
text the words of Mr. Justice Frankfurter are instructive:

It is not for this Court to formulate with particu­
larity the [standards] which would satisfy the Four­
teenth 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 inarticu­
late major premise and is none the worse for it. A 
standard may be found inadequate without the ne­
cessity 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 
on what poetry is.” Niemotko v. Maryland, 340 
U. S. 268, 285 (1951) (concurring opinion).

But although T find the Court’s discussion inadequate, 
there remains the question whether capital sentencing is 
inherently incapable of being carried out under proce-

“  And, as the Court notes, substantially adopted in one proposal 
ot the National Commission on Reform of the Federal Criminal Laws.

McGAUTHA v. CALIFORNIA 85



203 & 204— I)ISSi:XT

dures 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 impos­
ing 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 penologi­
cal policy adopted by the State in choosing to kill some 
of its convicted criminals.'0 The second question requires 
that the relevant facts in any particular case be deter­
mined. 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 con­
victed of murder, and only those persons, the sentencing 
determination would ordinarily be a rather simple one." 
On the other hand, if a State should determine to exclude 
only those first-degree murderers who cannot be rehabili­
tated, 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 ap­
plied in the cases before us.* 41 42

4111 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 reha­
bilitate burglars but pursue only deterrence in sentencing parking 
violators.

41 Of course, on occasion difficult problems of identity or the valid­
ity of prior convictions might arise.

4- See Part ITT, infra.

36 McGAUTHA v. CALIFORNIA



203 & 204—PIHSLXT

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.43 A State 
may seek to inflict retribution on a wrongdoer, inflicting 
punishment strictly in proportion to the offense com­
mitted. 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 likeli­
hood 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 deter­
mine how those policies should be applied in any par­
ticular case. If anything, it would seem that the diffi­
culty of decision in particular cases would support rather 
than weaken the point that uniform decisionmaking re­
quires 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

43 The literature is surveyed in H. Packer. The Limits of the Crim­
inal Sanction (1908), reviewed, 79 Yale L. .T. 1388 (1970).

MeGAUTHA v. CALIFORNIA 37



203 & 204— DISSLXT

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 v. Kersey (1765), cited in 8 How. St. 
Tr. 58 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. Particu­
larly where decisions are made not by a continuing body 
of persons, but by groups selected to make a single deci­
sion and dispersed immediately after the event, the likeli­
hood of any consistency whatsoever is vanishingly small. 
“Perfection may not be demanded of law, but the capac­
ity to counteract inevitable . . . frailties is the mark of 
civilized legal system.” Rosenberg v. United States, 346 
U. S. 273, 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 imple­
mented through a formula capable of mechanical appli­
cation— 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

3S McGAUTHA v. CALIFORNIA



203 & 204— DISSENT

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- 
bv-case basis: systems are devised whereby each case may 
be decided upon its facts, with consistency and the devel­
opment 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 un­
suited 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 devel­
opment of such standards. Cf. Lichter v. United States, 
334 U. S. 742 (194S). T 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, 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 re­
quired. North Carolina v. Pearce, 395 U. S 711 726 
(1969).

In sum, T see no reason whatsoever to believe that the 
nature of capital sentencing is such that it cannot be sur­
rounded 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 fo impossibility, all I can say is that nothing is
more true of [the legal] profession than that the

McGAUTHA v. CALIFORNIA 3&



203 & 204—DISSFXT

most eminent among them, for 100 years, have testi­
fied with complete confidence that something is im­
possible 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 practi­
tioners. . . . Every effort to effect improving 
changes is resisted on the assumption that man's 
ultimate wisdom is to be found in the legal system 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).

TH

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 
which both limit the possibility of merely arbitrary ac­
tion 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 re­
view today provide the necessary safeguards.

A
Tn 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 sub­
mitted to the jury. Jury trial may, however, be waived 
as of right in capital cases. State v. Smith, 123 Ohio St.

40 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

237, 174 X. E. 7(58 (1931)," or a defendant may, with the 
permission of the court, enter a plea of guilty. State v. 
Ferranto, 112 Ohio St. 6(57. 148 X. E. 362 (1925). In 
the absence of jury trial the sentencing decision is made 
by a three-judge court. Ohio Rev. Code § 2945.06 (1954).

A defendant who exercises his right to jury trial may 
introduce only evidence relevant to the question of guilt. 
Xo evidence may “be introduced directed specifically 
toward a claim for mercy,” Ashbrook v. State, 49 Ohio 
App. 298, 302, 197 X. 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 (1918). 
and therefore, under Ohio law, “ 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 g u i l t y . Wh e r e  the sentencing 
determination is made by the court, however, two addi­
tional factors apply. First, the defendant has an abso­
lute right to address the court before sentence is imposed, 
Ohio Rev. Code § 2947.05 (1954), denial of which is 
grounds for resentencing. Silsby v. State, 119 Ohio St. 
314, 164 X. E. 232 (1928). Since the jury’s decision that 
a defendant should be killed is unreviewable by any court. 
State v. Klumpp, 15 Ohio Ops. 2d 461, 468, 175 X. E. 2d 44

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.

4n Apparently there is no such thing in Ohio as a plea of guilty 
to first-degree murder. Ohio Rev. Code §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.”

AIcGAUTHA v. CALIFORNIA 41



203 & 204—DISSENT

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 X. 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 § 2947.00 
(Supp. 1970) expressly permits a trial court to “hear tes­
timony of mitigation of a sentence at the term of convic­
tion or plea.” If this statute is applicable to capital 
cases,40 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 X. E. 2d 794 
(1964); State v. Stewart, 176 Ohio St. 156, 198 X. 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 X. E. 2d 343, 344 (1939).

“ [Y]ou will determine whether or not you will ex­
tend or withhold mercy. . . . In that connection 
whether you recommend or withhold mercy is a 
matter solely within your discretion, calling for the 
exercise of your very best and most profound judg­
ment, not motivated by considerations of sympathy 
or as a means of escaping a hard and disagreeable 
duty, but must be considered by you in the light 
of all the circumstances of the case with respect to 46

46 The statute is not limited by its terms to any particular class o f 
cases, and the question appears never to have been discussed in the 
reported opinions.

42 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

the evidence submitted to you and the other circum­
stances 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 X. E. 2d 585 (1955); State v. Henley, 15 Ohio St. 2d 
86. 238 X. 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, accord­
ing to your finding.” Except for a supplementary in­
struction 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.

First. Xothing whatsoever in the process either sets 
forth the basic policy considerations that Ohio believes 
relevant to capital sentencing, or leads towards elucida­
tion of these considerations in the light of accumulated 
experience. The standard jury instruction contains at 
best an obscure hint.47 The instructions given in the

McGAUTHA v. CALIFORNIA 43

47 See infra, at [44 ]-[46 ],



203 & 204—DISSENT

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 po­
tential 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 langauge which can be fairly 
understood and applied by the sentencing authority,” 
ante, at [20], the Ohio procedure is hardly designed to 
improve that ability. Tt 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, nor 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 Orampton had murdered his wife, that 
he had done so while legally sane, and that he should be 
killed, in less than five hours.

Second. The policies applied by the State of Ohio to 
determine that James Edward Orampton 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 [42-43], 
do tell the jury to reach its determination “ in light of all 
the circumstances of the case with respect to the evidence

44 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

submitted to you and the other circumstances surround­
ing this defendant.” A perceptive jury might conclude 
that this instruction indicates that Ohio considers the 
relative severity of the crime a factor of substantial im­
portance in the determination of sentence. How the jury 
is to determine the severity of the crime before them in 
relation to others is, however, something of a mystery, 
since Ohio law simultaneously demands that the sentenc­
ing determination be based strictly upon the evidence 
adduced in the case at hand. Howell v. Stale, 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. 
State x. Ashbrook, supra. Similarly, by directing the 
jury’s attention to “ the other circumstances surrounding 
this defendant” it might be thought that Ohio was sug­
gesting 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. Cald­
well, supra, which approved a jury charge that environ­
mental factors have “ nothing whatever to do” with the 
sentencing decision. Tt also might be thought that di­
recting juries to consider “other circumstances surround­
ing this defendant” is an indication, albeit a rather back- 
handed one, that Ohio desires capital sentencing juries 
to take into account the likelihood that a particular de­
fendant 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 x. Meyer, supra, and 
unless it be assumed that every jury not so instructed is 
nevertheless aware of the possibility of parole (and like­
wise that, despite instructions to base its verdict on

McGAUTHA v. CALIFORNIA 45



203 it 204—DISSENT

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 appli­
cable capital statutes is used to support punishment. In 
State v. Ferguson, 175 Ohio St. 390, 195 X. 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 imprison­
ment 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 
underly 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 
policy, the capital sentencing process in Ohio contains 
elements which render difficult if not impossible any con­
sistency 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 sen­
tence 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 inevi­

46 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

table 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,48 there is a sub­
stantial difference between the evidence that may be 
considered by a jury and that which may be consid­
ered 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.* 40 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.50 Yet such in­
formation may not be presented to a jury, whether the 
jury desires it or not. The point, again, is that con­
sistent decisionmaking is impossible when one decision­
maker may consider information forbidden to another. 
And where, as here, no basis whatsover is presented to 
justify the difference, it is inexcusable.51

McGAUTHA v. CALIFORNIA 47

4S See supra, pp. [41 ]-[42 ],
40 See Ohio Rev. Code §2947.05 (1964); pp. [41]—[42J, supra.
5,1 See Ohio Rev. Code § 2947.06 (Supp. 1970); p. [42], supra.
o1 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 which considered recidivism relevant to its sentencing de­
termination could obtain information with respect to that point only 
it the defendant should testify, or it evidence of other crimes should 
be relevant (for reasons such as motive, identity, and so forth) to 
the question of guilt.



203 & 204— DISSENT

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. T 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 and called upon to decide one 
case and one case only/’1 Whatever value there may be 
in the notion that arbitrary decisionmaking may be con­
trolled 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 
presently under review. For capital sentencing juries in 
Ohio are not continuing bodies, and no jury may be told 
what another jury lias done in similar tor different) cases. 
Likewise, the procedure under review cannot gain uni­
formity 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. 67.3, 678 (1895), it does 
command that punishment be “dealt out to all alike who 
are similarly situated.” Ibid.; Lee per v. Terns, 139 U. S. * 53

48 McGAUTHA v. CALIFORNIA

’■-Ohio does exclude jurors with conscientious scruples against 
capital punishment. State v. Carter. 21 Ohio St. 2d 212, 256 X. E. 2d 
714 (1970).

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 tin 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.



203 <!t 204— DISSENT

462, 468 (1891); Missouri v. Lewis, 101 U. S. 22, 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 ''') federally guaranteed rights. 
Yet the procedure before us renders the possibility of 
such review entirely chimerical. There is no way of de­
termining 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 sen- 
tencers. 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 
is simply no way that this or any other court can deter­
mine 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 pres­
ently 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,

"4 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 im­
permissible. 4 et 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.

MeGAUTHA v. CALIFORNIA 40



203 & 204—DISSENT

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 vio­
lations of federally guaranteed rights through the institu­
tion of federal judicial review. I can see no possible basis 
for holding such a capital sentencing procedure permissi­
ble under the Due Process Clause, and I would therefore 
reverse petitioner Crampton’s sentence of death.

B
The procedures whereby the State of California deter­

mines which convicted criminals to kill differ in a number 
of respects from those used by Ohio. Following convic­
tion of a possibly capital crime,* 56 * the question of penalty 
is determined in a separate proceeding.58 Except where

r,s Cal. Pen. 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 da}'. Amici N. A. A. C. P. Legal Defense and Educa­
tional Fund, Inc., and National Office for the Rights of the Indigent, 
represent without contradiction elsewhere that this is the only manda­
tory capital statute presently in active use in the United States. See 
Brief amicus curiae, at 15 n. 19.

56 Cal. Penal Code §190.1 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, 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 con-

50 McGAUTHA v. CALIFORNIA



203 & 204— DISSENT

the defendant has, with the prosecution’s consent,* 57 
waived trial by jury, the sentencing determination is 
made by a jury whether conviction was on 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, 25 
Cal. Rptr. 83 (1962). Notwithstanding the statutory 
language,58 it appears possible for a defendant whose guilt 
is determined 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 sen­
tencing 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. Pen. Code 
§ 1181 (7) (1970), construed in People v. Hill, 66 Cal. 2d 
536, 426 P. 2d 908, 58 Cal. Rptr. 340 (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, 23 Cal. 
Rptr. 363 (1962) (judge); In re Anderson, 69 Cal. 2d 613, 
447 P. 2d 117, 73 Cal. Rptr. 21 (1968).50

victed 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 the defendant has been found guilt}' 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 of 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.”

57 See Cal. Const. Art. I, § 7: People v. King, 1 Cal. 3d 791, 463 
P. 2d 753, S3 Cal. Rptr. 401 (1970).

58 See n. 56, supra.
Ihe proceedings leading to that determination are, as indicated 

in the text immediately following, reviewable.

McGAUTHA v. CALIFORNIA 51



203 & 204— DISSENT

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, 37 Cal. Rptr. 622, 
629 (1964), and a few issues are excluded. Exclu­
sion, however, appears to be not on the basis that the 
issues are irrelevant, but rather that they are either un­
duly inflammatory or impractical to litigate. Thus, evi­
dence or argument is prohibited concerning the likelihood 
of parole from a life sentence, People v. Morse, 60 Cal. 2d 
631, 388 P. 2d 33, 36 Cal. Rptr. 201 (1964); r’" concerning 
the deterrent effects of capital punishment, People v. 
Purvis, 60 Cal. 2d 323, 341, 384 P. 2d 424, 435-436, 33 Cal. 
Rptr. 104, 116 (1963); People v. Love, 56 Cal. 2d 720, 
366 P. 2d 33, 16 Cal. Rptr. 777 (1961); People v. Kidd, 56 
Cal. 2d 759, 366 P. 2d 49, 16 Cal. Rptr. 793 (1961),* 01 
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. 18 Cal. Rptr. 40 
(1961), especially if trial is to the court, People v. Welch, 
58 Cal. 2d 271. 274. 373 P. 2d 427, 429, 23 Cal. Rptr. 363.

52 McGAUTHA v. CALIFORNIA

00 Morse noted that “ f\v]hen we opened the door a slight eraek 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 1’ . 2d, at 38, 
36 Cal. Rptr., at 206.

01 Kidd held that a defendant could not submit evidence that 
capital punishment was an ineffective deterrent because ‘‘ [ijnnumer- 
able witnesses could be produced to testify on both sides of tin? 
question” and because, quoting Lore, “ [jjuries in capital cases cannot 
become legislatures ad hoc.” 56 Cal. 2d, at 770. 366 R. 2d, at 56, 
16 Cal. Rptr., at 800. Love held argument of counsel impermis­
sible because evidence on the question was impermissible. 56 Cal. 
2d, at 731, 366 P. 2d, at 39, 16 Cal. Rptr., at 732.



203 & 204— DISSENT

365 (1962); concerning whether capital punishment 
should ever he imposed, People v. Moya, 53 Cal. 2d 819, 
350 P. 2d 112, 3 Cal. Rptr. 360 (1960); 6 * 08 * *- or concerning 
])hysical suffering of the victim unintended by the defend­
ant, People v. Love, 53 Cal. 2d 843, 350 P. 2d 705, 3 Cal. 
Rptr. 665 (I960)."'' Except for these limitations, how­
ever, virtually any matter may be explored. People v. 
Terry, 61 Cal. 2d 137, 142-153, 390 P. 2d 381, 385-392, 
37 Cal. Rptr. 605, 609-619 (1964).

Following the arguments of counsel,'11 the jury is in­
structed on its function in determining the penalty to bo 
imposed. A standard instruction on the subject exists""' 
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 penal­
ties provided by law should be imposed on each de­
fendant 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. 
A'ou may also consider all of the evidence of the 
circumstances surrounding the crime, of each defend­
ant's background and history, and of the facts in 
aggravation or mitigation of the penalty which have

McC.AUTHA v. CALIFORNIA 53

62 The basis for this ruling is that the issue 1ms been foreclosed by
the statute allowing capital punishment to be imposed.

08 This rule is based, apparently, upon the notion that such evi­
dence would be unduly inflammatory. See People v. Floyd, 1 Cal.
3d 694, 464 P. 2d 64, S3 Cal. Rptr. 60S (1970).

04 People v. Bandhauer, 66 Cal. 2d 524, 426 P. 2d 900, 5S Cal. 
Rptr. 332 (1967). struck down prospectively the earlier practice of 
allowing the prosecution to open and close the arguments as incon­
sistent with the Legislature’s "strict neutrality” concerning the choice 
of life or death. Id., at 531. 426 P. 2d. at 905, 5S Cal. Rptr., at 337.

cr'California Jury Instructions, Criminal. 8.S0 (3d rev. ed. 1970).



20.S A 204—DISSENT

been received iiere in court. However, it is not es­
sential to your decision that you find mitigating cir­
cumstances on the one hand or evidence in aggrava­
tion 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 dis­
cretion 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 judg­
ment, conscience, and absolute discretion. That ver­
dict must express the individual opinion of each 
juror.

“ Now beyond prescribing the two alternative pen­
alties, 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.” 00

Substantially more elaborate versions of this instruction 
may, if the trial court desires, be given. People v. Har-

54 McGAUTIIA v. CALIFORNIA

00 The elided paragraph, not included in the standard instruction 
referred to, instructed the .jury that they 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 in­
structed 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.



203 & 204—DISSENT

rison, 59 Cal. 2d 622, 381 P. 2d 665, 30 Cal. Rptr. S41 
(1963). In addition, the trial court is supposed to in­
struct the jury that a defendant serving a life sentence 
may be paroled, but that they should not presume that 
the California Adult Authority will release a prisoner 
until it is safe to do so, and that they should not take the 
possibility of parole into account. People v. McGautha, 
70 Cal. 2d 770, 452 P. 2d 650, 76 Cal. Rptr. 434 (1969). 
Finally, under California law it is error to charge that the 
jury’s verdict should express the conscience of the com­
munity; the jury should be told, instead, that the verdict 
must “express the individual conscience of each juror.’r 
People v. Harrison, 59 Cal. 2d 622, 633, 381 P. 2d 665, 
670-671, 30 Cal. Rptr. 841, 847 (1963).'“

A substantial number of subsidiary instructions may 
but need not be given to the jury; the governing prin­
ciple 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 137, 154, 390 P. 2d 381, 392, 37 Cal. 
Rptr. 605, 616 (1964); see People v. Friend, 47 Cal. 2d 
749, 306 P. 2d 463 (1957). A trial judge may, should he 
desire, “ aid the jury by setting the kinds of factors that 
may be considered, thereby setting the tone for the jury’s 
deliberations,” People v. Polk, 63 Cal. 2d 443, 451, 406 
P. 2d 641, 646, 47 Cal. Rptr. 1, 6 (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 instruc-

°' The jury was so instructed in the present ease; see supra., p. [87], 
In light of this it is mystifying to find the Court relying, ante, at 
117], on the following quotation from Witherspoon v. Illinois, 391 
I T. S. 510, 519 (196c8), 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.)

McGAUTHA v. CALIFORNIA 55-



203 & 204— DISSENT

tion. People x. Polk, supra. Similarly, although a trial 
judge may instruct the jury that they may be moved by 
sympathy for the defendant. People v. Anderson, 64 Cal. 
2d 633, 414 P. 2d 366, 51 Cal. Ilptr. 238 (1966), he may 
refuse to give such an instruction at defense request, 
People v. Htilery, 65 Cal. 2d 795, 423 P. 2d 208, 56 Cal. 
Ilptr. 280 (1967), although it is error to instruct the jury 
that they may not be so moved. People v. Polk, supra; 
People v. Band haver, 1 Cal. 3d 609. 463 P. 2d 408. 83 Cal. 
Ilptr. 184 (1970). It is error to instruct the jury that 
it may not consider doubts about the defendant’s guilt as 
mitigating circumstances, People x. 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, 80 Cal. Ilptr. 567 (1969), although the trial 
judge may give such a charge if he desires, People x. Polk, 
supra; People x. Terry, supra.

Finally, a jury determination to impose the death sen­
tence may not be reviewed by any court. It may, how­
ever. be set aside by the judge presiding at the trial. The 
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. Pen. Code S 1 IS 1 (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 punish­
ment to be imposed, the court may modify such verdict or 
finding by imposing the lesser punishment without grant­
ing or ordering a new trial, and this power shall extend to 
any court to which the case may be appealed.” The Cali­
fornia Supreme Court has construed this statute to em­
power the trial court to set aside a jury verdict of death. 
People x. Moore, 53 Cal. 2d 451, 454, 348 P. 2d 584, 586, 
2 C’al. IIptr. 6. 8 (1960), but not to give any such power to

50 McGAUTHA v. CALIFORNIA



i

an appellate court. People v. Green, 47 Cal. 2d 209, 235, 
302 P. 2d 307, 324-325 (1950); In re Anderson, 69 Cal. 2d 
613, 447 P. 2d 117, 73 Cal. Rptr. 21 (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 324-325. What this means is 
that the trial judge does not review the jury’s determina­
tion that a convicted defendant should be killed: based 
upon his “own independent view of the evidence,” People 
v. Love, 56 Cal. 2d 720, 728, 366 P. 2d 33, 36, 16 Cal. Rptr. 
777, 780 (1961), quoting People v. Moore, 53 Cal. 2d 451, 
454, 348 P. 2d 584, 5S6, 2 Cal. Rptr. 6, 8 (1960), the trial 
court is to determine itself whether the defendant should 
be killed, apparently on exactly the same basis and in ex­
actly the same way as it would if the issue had never 
been submitted to a jury.58 See People v. Moore, supra; 
People v. Hill, 66 Cal. 2d 536. 426 P. 2d 908, 58 Cal. Rptr. 
340 (1957); People v. Love, supra; In re Anderson, suj>ra. 
In short, no defendant sentenced to die may obtain judi­
cial review of that decision, but one sentenced to flic 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, 30 Cal. Rptr. 538. 561 (1963).

I find this procedure likewise defective under the Due 
Process Clause. Although it differs in some not insig­
nificant respects from the procedure used in Ohio, it 
nevertheless is entirely bare of the fundamental safe­
guards 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 legis­

58 1 lmt is, tile court is to exercise the same unlimited power given 
to the jury.

203 & 204—DISSENT

McGAUTIIA v. CALIFORNIA 57



203 <k 20-1— DISSENT

lature, which has committed the matter entirely to what- 
every 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 759. 770. 366 P. 2d 49, 56, 16 Cal. Rptr. 793. 800 
(1961), 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,” Wilkes <fc Holzheiser, Inc. 
v. Department of Alcoholic Beverage Control, 65 Cal. 2d 
349, 369, 420 P. 2d 735, 748, 55 Cal. Rptr. 23, 36 (1965). 
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 
the question. Except insofar as it incorporates the 
Eighth Amendment’s prohibition against cruel and un­
usual 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, inde­
pendent judgment on the propriety of a jury-imposed 
death penalty f’9 the existence of the trial court’s power to

58 McGALJTHA v. CALIFORNIA

00 Apparently the trial judge did not do so in this case: denying 
petitioner McGautha’s motion for reduction of penalty, he said:



203 & 204—DISSENT

set aside such verdicts adds little to the likelihood of 
evenhanded treatment. For this power is to be exer­
cised in precisely the same way as the jury’s—without 
guideline or check, without review, without any explana­
tion of reasons or findings of fact, without any oppor­
tunity 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 inde­
pendent judgment on the question,* 70 will do his best to 
avoid conscious inconsistency. But there remains a mul­
tiplicity 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 p. [57], supra. In 
such circumstances, the possibility of consistent decision­
making is nonexistent, “A multiplicity of tribunals and 
a diversity of procedures are quite as apt to produce in­
compatible or conflicting adjudications as are different 
rules of substantive law.” Garner v. Teamsters Local 
776, 340 U. S. 485, 49CM91 (1953).

I hird. Like its Ohio counterpart, the California pro­
cedure 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 determin­
ing that petitioner McGautha should be killed, nor the 
reasons upon which they based that decision. We do not 
know—and cannot know— the basis upon which the

McGAUTHA v. CALIFORNIA oil-

“ [C]ertainly this Court, I do not think, except in most unusual cir­
cumstances, 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.

70 See n. 69, supra.



203 & 204—DISSENT

State of California determined that he was not “ fit to 
live,” People v. Morse, GO Cal. 2d 631, 647, 388 P. 2d 
33, 43, 36 Cal. Rptr. 201, 211 (1964). We do know that 
the prosecutor, in her closing argument, strongly urged 
to the jury that Dennis Councle McGautha should be 
killed because he had the unregenerate bad taste to in­
sist that he had once pleaded guilty to a crime he did 
not commit.71 Cf. North Carolina v. Alford, 400 U. S. 
25, 32-39 (1970). We also know that nothing in the 
instructions given the jury contained the slightest hint 
that this could not be the sole basis for their decision. 
See supra, at [53-54], And, finally, we also know 
that whatever factors the State of California relied upon 
to sentence petitioner McGautha to death—factors per­
missible 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 Con­
stitution of the United States and promises them that,

71 “ [McGautha] has three robberies. He has over ten years in 
prison, and he has another killing, and you will have all these docu­
ments in front of you in the jury room about his prior record, and 
the thing about his prior record is the way in which lie 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—lie 
lias 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 in­
volved 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.

60 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

should they do so, their action is immune from federal 
judicial review.7- Astoundingly, the Court in upholding 
the procedure explicitly commends this very feature. 
See ante, at [24]. 1 do not think that such a procedure
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 judg­

ment, 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 T thought these procedures ade­
quate to try a welfare claim— which they are not, Gold­
berg v. Kelly, 397 U. S. 255 (1970)— I would have little 
hesitation in finding them inadequate where life itself

McGAUTHA v. CALIFORNIA 61

T- A peculiarity of California law raises another, more subtle point. 
Juries, as noted, are not required to base their decision on any par­
ticular 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. 37 Cal. Rptr. 622, 628 (1964). 1 do nor 
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 him­
self does not believe are supported by the weight of the evidence. 
Cf. In re Winship, 397 U. S. 358, 370, 371-373 (1970) (Harlan, J„ 
concurring) (standard of proof required by due process depends 
upon the “ consequences of an erroneous factual determination” ).

T:; The Court, to be sure, refers only to jury consideration of argu­
ments suggested “ by defense counsel.” I do not, however, under­
stand the Court to imply that the arguments of counsel for the State 
are given any less consideration.



203 A 204—DISSENT

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. 
S86, 895-896 (1961); id., at 900-901 (dissent). Where 
First Amendment interests have been involved we have 
held the States to stringent procedural requirements in­
deed. See, e. g., Stanley v. Georgia, 394 U. S. 557 (1969); 
Freedman v. Maryland. 380 V. S. 51 (1965); A Quantity 
of Books v. Kansas, 37S 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 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 [24], My belief is to the contrary, and I would 
hold that no State which determines to take a human 
lift is thereby exempted from the constitutional command 
that it do so only by “due process of law.”

TV

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. Pennsyl­
vania, 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 con­
ducted” in the way referred to by my Brother B lack. 
Ante, a t ---- . 171181 they do call upon us to determine

62 McGAUTHA v. CALIFORNIA



203 & 204—DISSENT

is whether the Due Process Clause requires the States, 
in his words, “ to make certain that men would be gov­
erned by law, not the arbitrary fiat of the man or men 
in power,” In re Win ship, 397 U. S. 358, 384 (1970) (dis­
sent), 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 386. Third, we are not called upon 
to determine whether “the death penalty is appropriate 
punishment” for the petitioners before us. Ante, at 
[38]. That determination is for the States.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 no­
tions of capital sentencing policy. See ibid. This fun­
damental misapprehension of the judicial function per­
vades the Court’s opinion, which after a single brief 
mention of the Due Process Clause entirely eschews dis­
cussion of the Constitution, and instead speaks only of 
the considerations upon which it believes the States 
should rest their capital sentencing policy Ante at 
[12-24],

Finally, I should add that for several reasons the pres­
ent cases do not draw into question the power of the 
States that should so desire to commit their criminal sen­
tencing 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 
ha\e found and what reasons they have considered suf­
ficient to take a human life. Second, I have already in­
dicated 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 de­

McGAUTHA v. CALIFORNIA 03'

74 Except, of course, insofar as state power may be restricted by 
tbe Eighth Amendment, a question not involved in these cases.



203 & 204— DISSENT

cision siinj)ly 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 towards 
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 are be­
fore us, and I do not mean to imply than 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 
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. 
Liebman, 285 U. S. 262, 311 (1932) (Brandeis, J., 
dissenting).

G4 McGAUTHA v. CALIFORNIA