McGautha v. State of California Brief Amicus Curiae for the United States
Public Court Documents
October 1, 1970
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Brief Collection, LDF Court Filings. McGautha v. State of California Brief Amicus Curiae for the United States, 1970. 07db9c8a-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2b679861-0801-4486-ad11-4cbf89e1e36a/mcgautha-v-state-of-california-brief-amicus-curiae-for-the-united-states. Accessed April 29, 2025.
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N o s . 2 0 8 a n d 2 0 4
T
October Term, 1970
Dennis CounCle;iJcCrA uth a, petitioner
v.
State of California
OX WRIT OF CERTIORARI TO THE SUPREME COURT
OF CALIFORNIA
J ames Edward Crampton, petitioner
v.
State of Ohio
OX WRIT OF CERTIORARI TO THE SUPREME COURT
OF OHIO
brief for the united states as amicus curiae
E R W IN N. GRISWOLD,
Solicitor General,
P H IL IP A. LACOVARA,
Special Assistant to the
Attorney General,
Department of Justice,
Washington, D,C. 20580.
/ / \ :
I N D E X
Page
Opinions below__________________________________ I
Jurisdiction_____________________________________ 2
Statutes involved_______________________________ 2
Questions presented_____________________________ 3
Statement:
I. McGautha:
A. The charges_____________________ 3
B. The guilt trial___________________ 4
C. The penalty trial________________ 4
D. Co-defendant’s case on punish
ment_________________________ 5
E. McGautha’s case on punishment. 7
F. Closing arguments______________ 8
G. Jury instructions on punishment._ 9
H. Jury deliberations, verdict, and
sentence______________________ 9
II. Crampton:
A. The charge______________________ 10
B. The prosecution’s evidence______ 11
C. The defense case________________ 15
D. Jury instructions________________ 17
E. Verdict and sentence____________ 17
Summary of argument__________________________ 18
Argument:
I. The United States Constitution does not
require that state legislatures prescribe
statutory standards to guide or govern
the jury’s determination of sentence in
a capital case_________________________ 25
a)
II
Argument— Continued age
I. The United States Constitution— Con
tinued
A. Historically, sentencing discre
tion, whether entrusted to judge
or jury, in capital and non
capital cases, has not depended
on legislative criteria:
1. Introduction: The attack
on “ standardless” sen
tencing in these cases
implicates all felony sen
tencing________________ 25
2. Jury sentencing discretion
is firmly established in
American criminal law:
(a) Jury-sentencing
in non-capital
cases__________ 29
(b) Jury-sentencing
in capital cases- 32
B. Jury discretion in capital cases
serves a legitimate governmen
tal interest___________________ 48
C. Juries can and do function ration
ally without explicit legislative
standards on capital sentencing- 66
D. The present system of jury dis
cretion in capital sentencing
does not violate any constitu
tionally protected interest of
an accused____________________ 78
II. Neither the privilege against self-incrimi
nation nor the due process clause re
quires separate trials on the issues of
guilt and punishment in every capital
case 83
I l l
Argument— C ontiirae d
II . Neither the privilege— Continued
A. The unitary trial is the estab
lished and approved mode for
even complex criminal cases__
B. A statute allowing the jury in a
capital case to fix punishment
as part of a single-stage guilt
trial does not violate the privi
lege against self-incrimination _ _
1. A defendant has no consti
tutional right to offer his
personal testimony limit
ed to the issue of punish
ment__________________
2. The defendant in a unitary
capital trial can present
mitigation evidence
through witnesses other
than himself___________
3. The unitary trial procedure
does not impermissibly
burden the exercise of
the privilege not to tes
tify—
C. A statute which authorizes the
jury in a capital case to fix pun
ishment in light of the evidence
adduced at a one-stage trial on
guilt is fundamentally fair____
1, A state may rationally de
termine that a sentence
for murder should be
based on the circum
stances of the crime it
self___________________
Page
84
90
91
99
102
107
1 0 8
IV
Argument— 0 ontinued
II. Neither the privilege— Continued
C. A statute which— Continued
2. Even at a murder trial
confined solely to guilt,
sufficient facts about the
defendant emerge to per
mit intelligent sentenc
ing____________________ 111
3. A separate hearing con
fined to penalty may
affirmatively disadvan
tage defendants________ 114
Conclusion______________________________________ 125
Appendix A: Statutes involved__________________ 126
Appendix B: Initial introduction of jury discretion
to set life sentence for murder and/or other capi
tal offenses (none providing statutory stand
ards)_________________________________________ 128
Appendix C: States authorizing jury to exercise
discretion in unitary trial to set sentence for
murder at death or life imprisonment (none pro
viding statutory standards)___________________ 132
Appendix D : States authorizing jury to exercise
discretion in separate, post-guilt proceeding to
set sentence for murder at death or life imprison
ment (none providing statutory standards)____ 136
Appendix E: Federal civil statutes authorizing
discretion in imposing capital punishment (none
providing statutory standards)________________ 138
Appendix F: Offenses under the Uniform Code of
Military Justice punishable by death or such
other punishment as a court martial may direct. 140
Appendix G:
Model Penal Code § 210.6____________________ 141
Study Draft of a New Federal Criminal Code
§§ 3602-3605_________________________________ 145
V
CITATIONS
Cases: page
Anderson, In re, 69 Cal. 2d 613, 73 Cal. Rptr.
21, 447 P. 2d 117 (1968)___________________ 46
Andres v. United States, 333 U.S. 740 (1948)__ 38,
39, 41, 47
Andrews v. Schwartz, 156 U.S. 272 (1895)____ 80
Ashbrook v. State, 49 Ohio App. 298, 197 N.E.
214 (1935)_________________________________ 100
Bagiev v. State, 247 Ark. 113, 444 S.W. 2d 567
(1969)____________________________________ 46
Baldwin v. New York, 399 U.S. 66 (1970)_ 45, 63, 75
Bell v. Patterson, 279 F. Supp. 760 (D. Colo.),
affirmed, 402 F. 2d 394 (C.A. 10, 1968)___ 29,
46, 85, 86, 87, 99
Betts v. Brady, 316 U.S. 455 (1942)_________ 28
Brady v. United States, 397 U.S. 742 (1970)__ 102, 103
Brown v. Walker, 161 U.S. 591 (1896)______ 96
Brown v. United States, 356 U.S. 148 (1958)__ 98
Bruton v. United States, 391 U.S. 123 (1968)__ 67, 92
Calloway v. United States, 399 F. 2d 1006
(C.A.D.C.), certiorari denied, 393 U.S. 987
(1968)____ . ______________________________ 33
Gallon v. Utah, 130 U.S. 83 (1889)________38,39
Carter v. Jury Commission of Greene County,
396 U.S. 320 (1970)______________________ 64
Coleman v. Alabama, 389 U.S. 22 (1967)_____ 65
Coleman v. United States, 334 F. 2d 558
(C.A.D.C. 1964)__________________________ 90
Coleman v. United States, 357 F. 2d 563
(C.A.D.C. 1965)__________________________ 59
Commonwealth v. Bell, 417 Pa. 291, 208 A. 2d
465 (1965)_______________________________ 118
Commonwealth v. Ross, 413 Pa. 35, 195 A. 2d
81 (1963)________________________________ 43
Contee v. United States, 440 F. 2d 249
(C.A.D.C. 1969)__________________________ 85
VI
Oases— Continued Page
Cook v. Willingham, 400 F. 2d 885 (C.A. 10,
1965)_______________________________________ 79
Crow Dog, Ex parte, 109 U.S. 556 (1883)____ 38
Duisen v. State,— Mo.— , 441 S.W. 2d 688
(1969)____________________________________ 47,60
Duncan v. Louisiana, 391 U.S. 145 (1968)__ 63,67
Ernst, Petition of, 294 F. 2d 556 (C.A. 3),
certiorari denied, 368 U.S. 917 (1961)------ 46, 100
Ferguson v. Georgia, 365 U.S. 570 (1961)- .. 93, 96, 100
Fitzgerald v. Peyton, 303 F. Supp. 467 (W.D.
Va. 1969)_________________________________ 31
Florida ex rel. Thomas v. Culver, 253 F. 2d
507 (C.A. 5), certiorari denied, 358 U.S.
822 (1958)________________________________ 46
Frady v. United, States, 348 F. 2d 84
(C.A.D.C.), certiorari denied, 382 U.S. 909
(1965)____ 88,90,115,123
Frank v. United States, 395 U.S. 147 (1969) 110
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) __ 31
Gideon v. Wainwright, 372 U.S. 335 (1963) __ 28
Gohlston v. State, 143 Tenn. 126, 223 S.W. 839
(1920)____________________________________ 35
Gore v. United States, 357 U.S. 386 (1958)__ 80
Gregg v. United States, 394 U.S. 489 (1969)__ 79
Harrison v. United States, 392 U.S. 219 (1968) _ 99
Hill v. United States, 368 U.S. 424 (1962)___ 95
Holmes v. United States, 363 F. 2d 281 (C.A.
D.C. 1966)_______________________________ 88
Howard v. Fleming, 191 U.S. 126 (1903)_____ 82
Hunter v. State,—Tenn.— , 440 S.W. 2d 1
(1969)__________________ ’_________________ 47,60
Jackman v. Rosenbaum Co, 260 U.S. 22 (1922) _ 44
Jackson v. Denno, 378 U.S. 368 (1964)______ 67
Jackson v. State, 225 Ga. 790, 171 S.E. 2d 501
(1969)____________________________________ 88
VII
Cases— Continued Page
Johnson v. Commonwealth, 208 Ya. 481, 158
S.E. 2d 725 (1968), petition for certiorari
dismissed pursuant to Rule 60, 396 U.S.
801 (1969)_________________________________47,88
Johnson v. United States, 225 U.S. 405 (1912)_ 82
Jones v. State, 416 S.W. 2d 412 (Tex. Grim.
App. 1967)_______________________________ 123
Kemmler, In re, 136 U.S. 436 (1890)-------------- 32
Louisiana ex rel. Francis v. Resweber, 329 U.S.
452 (1947)_______________________________ 32
McCants v. State, 282 Ala. 397, 211 So. 2d 877
(1968), pending on petition for certiorari,
No. 5009 Misc., O.T. 1970________________ 46
McKane v. Durston, 153 U.S. 684 (1894)-------- 80
McMann v. Richardson, 397 U.S. 759
(1970)_________________________________ 102, 103
Manor v. State, 223 Ga. 594, 157 S.E. 2d 431
(1967) _____________________________ YT5G7 61
Mathis v. State, 283 Ala. 308, 216 So. 2d 286
(1968) _____________________________ 88
Maxwell v. Bishop, 398 F. 2d 138 (C.A.8,
1968), vacated, 398 U.S. 262 (1970)_______46, 87
Miller v. State, 224 Ga. 627, 163 S.E. 2d 730
(1968)__________________________________ i — 46
North Carolina v. Pearce, 395 U.S. 711 (1969) 45,
82, 108
O’Callahan v. Parker, 395 U.S. 258 (1969).— 140
Parker v. North Carolina, 397 U.S. 790 (1970)- 102
Parman v. United States, 399 F. 2d 559 (C.A.
D.C.), certiorari denied, 393 U.S. 858
(1968)______________________________ 85
People v. Bandhauer, 1 Cal. 3d 609, 83 Cal.
Rptr. 184, 463 P. 2d 408 (1970)_____ 61
People v. Dusablon, 16 N.Y. 2d 9, 261 N.Y.S.
2d 38, 209 N.E. 2d 90 (1965) 121
VIII
Cases— Continued Page
People v. Fitzpatrick, 308 N.Y.S. 2d 18 (Co.
Ct. 1970)___________________________________ 47
People v. Floyd, 1 Cai. 3d 694, 83 Cal. Rptr.
608, 464 P. 2d 64 (1970)__________________ 118
People v. Hicks, 287 N.Y. 165, 38 N.E. 2d
482 (1941)__________________________________ 77
People v. Hurst, 42 111. 2d 217, 247 N.E. 2d
614 (1969)________________________________ 123
People v. Kelley, 44 111. 2d 315, 255 N.E. 2d
390 (1970)________________________________ 123
People v. McGautha, 70 Cal. 2^770, 76 Cal.
Rptr. 434, 452 P. 2d 650 (1969), certiorari
granted, 398 U.S. 936 (1970)___________ 1
People ex rel. McKevitt v. District Court,
— Colo.— , 447 P. 2d 205 (1968)_______ 88, 95, 99
Pope v. United States, 372 F. 2d 710 (C.A. 8,
1967) , vacated, 392 U.S. 651 (1968).. 46,88,113
Pope v. United States, 392 U.S. 651 (1968)--- 138
Powell v. Alabama, 287 U.S. 45 (1932)__________ 28
Powell v. Texas, 392 U.S. 514 (1968)________ 110
Raff el v. United States, 271 U.S. 494 (1926) _ _ _ 96
Reid v. Covert, 354 U.S. 1 (1957)____________ 28
Schwab v. Berggren, 143 U.S. 442 (1892)____ 94
Scott v. United States, 419 F. 2d 264 (C.A.D.C.
1969)______________________________________ 48,80
Segura v. Patterson, 402 F. 2d 249 (C.A. 10,
1968) ___________________ 46, 62, 87, 95, 99, 106
Simmons v. United States, 390 U.S. 377 (1968)- 98
Sims v. Eyman, 405 F. 2d 439 (C.A. 9, 1969)- 46,
109, 111, 112, 116
Smith v. State, 437 S.W. 2d 835 (Tex. Grim.
App. 1969)_______________________________ 122
Solesbee v. Balkcom, 339 U.S. 9 (1950)_______29, 79
Specht v. Patterson, 386 U.S. 605 (1967)__ 79, 93, 94
Spencer v. Texas, 385 U.S. 554 (1967)_______ 31,
38, 44, 67, 84, 86, 92, 98, 115, 116
IX
Cases— Continued Page
State v. Crompton, 18 Ohio St. 2d 182, 248 N.E.
2d 614 (1969), certiorari granted, 398 U.S.
936 (1970)__ ____________________________ 2,100
State v. Forcella, 52 N.J. 263, 245 A. 2d 181
(1968) , pending on petition for certiorari,
No. 5011 Misc., O.T. 1970— 47, 69, 88, 115, 116
State v. Johnson, 34 N.J. 212, 168 A. 2d 1,
appeal dismissed, 368 U.S. 145, certiorari
denied, 368 U.S. 933 (1961)______________ 29, 47
State v. Kelbach, 23 Utah 2d 231, 461 P. 2d 297
(1969) ______________________________ 47, 88, 95
State v. Latham, 190 Kan. 411, 375 P. 2d 788
(1962), certiorari denied, 373 U.S. 919 (1963) _ 47
State v. Maloney, 105 Ariz, 348, 464 P. 2d 793
(1970) __________________________________ 81
State v. Roseboro, 276 N.C. 185, 171 S.E. 2d
886 (1970), pending on petition for certiorari
No. 5178 Misc., O.T. 1970________________ 47, 61
State v. Smith, 74 Wash. 2d 744, 446 P. 2d
571 (1969), pending on petition for cer
tiorari, No. 5034 Misc., O.T. 1970___ 47, 69, 123
State v. Walters, 145 Conn. 60, 138 A. 2d 786,
appeal dismissed and certiorari denied, 358
U.S. 46 (1958)___________________________ 46
State v. Worthy, 239 N.C. 449, 123 S.E. 2d 835
(1962)____________________________________ 61
Stephens v. Turner, 421 F.2d 290 (C.A. 10,
1970)____________________________________ 48,82
Trap v. Dulles, 356 U.S. 86 (1958)____________ 65
United States v. Chapman, 420 F. 2d 925 (C.A.
5,1969)_____________ 79
United States v. Curry, 358 F. 2d 904 (C.A. 2),
certiorari denied, 385 U.S. 873 (1966) _ 87, 88, 115
United States v. Gross, 416 F. 2d 1205 (C.A. 8,
1969), certiorari denied, 397 U.S. 1013
(1970) 79
X
Cases— Continued Page
United States v. Huff, 409 F. 2d 1225 (C.A. 5),
certiorari denied, 396 U.S. 857 (1969)_____ 85, 86
United States v. Jackson, 390 U.S. 570 (1968) _ 33,
87, 115, 117, 138
United States v. Kee Ming Hsu, 424 F. 2d 1286
(C.A. 2, 1970)____________________________ 79
United States ex rel. Scoleri v. Bamniller, 310
F. 2d 720 (C.A. 3, 1962), certiorari denied,
374 U.S. 828 (1963)____ . _________________ 88
United States ex rel. Smith v. Nelson, 275 F.
Supp. 261 (N.D. Calif. 1967)______________ 46
United States ex rel. Thompson v. Price, 258 F.
2d 918 (C.A. 3), certiorari denied, 358 U.S.
922 (1958)________________________________ 87
United States v. Trigg, 392 F. 2d 860 (C.A. 7),
certiorari denied, 391 U.S. 961 (1968)_______ 79
United States v. White, 225 F. Supp. 514
(D.D.C. 1963)______________________________ 115
Walz v. Tax Commission, 397 U.S. 664 (1970)-. 43
Ward v. California, 269 F. 2d 906 (C.A. 9,
1959)___________________________________ ’ 121
Washington v. Texas, 388 U.S. 14 (1967)___ 100
Weems v. United States, 217 U.S. 349 (1910) __ 109
Wither son v. Utah, 99 U.S. 130 (1879)______32,38
Williams v. Florida, 399 U.S. 78 (1970)__ 45, 63, 105
Williams v. New York, 337 U.S. 241 (1949) __ 26,
28, 79, 93, 94, 109, 121
Williams v. Oklahoma, 358 U.S. 576 (1959)_-_27,
79, 93, 109
Williams v. Oklahoma City, 395 U.S. 458
(1969)____________________________________ 79
Wilson v. State, 225 So. 2d 321 (Fla. 1969)__ 46, 61
Winston v. United States, 172 U.S. 303 (1899)__ 38,
39, 54, 61, 62
Witherspoon v. Illinois, 391 U.S. 510 (1968) __ 32,
38, 64, 65, 66
X I
Federal Statutes and Rules: Page
Act of January 15, 1897, c. 29, 29 Stat. 487 _ _ 129
Act of March 22, 1962, Pub. L. 87-423,
76 Stat. 46_______________________________ 131
Alaska Criminal Code, Act of March 3, 1899,
c. 429, 30 Stat. 1253______________________ 129
D.C. Code Ann. § 22-2404 (1967)___________ 133
Fed. R. Civ. P. 42(b)_______________________ 86
Fed. R. Crim. P. 14________________________ 86, 87
Fed. R. Grim. P. 32(a)_____________________ 95
Uniform Code of Military Justice:
Art. 85, 10 U.S.C. § 885_______________ 140
Art. 9o’ 10 U.S.C. § 890_______________ 140
Art. 94, 10 U.S.C. § 894_______________ 140
Art. 99, 10 U.S.C. § 899_______________ 140
Art. 100, 10 U.S.C. § 900______________ 140
Art, 101, 10 U.S.C. § 901______________ 140
Art. 102, 10 U.S.C. § 902______________ 140
Art. 104, 10 U.S.C. § 904______________ 140
Art. 106, 10 U.S.C. § 906______________ 140
Art. 110, 10 U.S.C. § 910______________ 140
Art. 113, 10 U.S.C. § 913______________ 140
Art. 118, 10 U.S.C. § 918______________ 140
Art. 120, 10 U.S.C. § 920______________ 140
18 U.S.C. § 34_____________________________ 139
18 U.S.C, § 794____________________________ 139
18 U.S.C, § 837(b)_______________ 138
18 U.S.C. § 1111___________________________ 139
18 U.S.C. § 1114___________________________ 139
18 U.S.C. § 1201(a)_________________________ 138
18 U.S.C. § 1716___________________________ 139
18 U.S.C. § 1751___________________________ 139
18 U.S.C. § 1992___________________________ 139
18 U.S.C. § 2031___________________________ 139
18 U.S.C. § 2113(e)_________________________ 138
18 U.S.C. § 2381___________________________ 139
21 U.S.C. § 176b___________________________ 138
X II
Federal Statutes and Rules— Continued page
28 U.S.C. § 1257(3)________________________ 2
28 U.S.C. § 1291___________________________ 80
42 U.S.C. § 2272___________________________ 138
42 U.S.C. § 2274___________________________ 138
42 U.S.C. § 2275________________________ 138
42 U.S.C. § 2276___________________________ 138
49 U.S.C. § 1472(i)_________________________ 139
State Statutes and Rules:
Ala. Code tit. 14, § 318 (1958)______________ 132
Ala. Penal Code of 1841, Acts 1841, p. 122— 128
Alaska Stat. § 11.15.010 (Supp. 1968)----------- 132
Alaska Stat. § 11.15.020 (Supp. 1968)----------- 132
Ariz. Terr. Acts 1885, No. 70_______________ 129
Ariz. Rev. Stat. Ann. § 13-453 (1956)----------- 132
Ark. Acts 1915, No. 187------------------------------- 130
Ark. Stat. § 41-2227 (1964)_________________ 132
Ark. Stat. § 43-2153 (1964)_________________ 132
Cal. Amendatory Acts 1873-1874, ch. 508— 37, 129
Cal. Penal Code §190 (West, Supp. 1970)_ 2,126,
136
Cal. Penal Code § 190.1 (West, Supp. 1970)— 2, 4,
86,118, 126, 136
Cal. Penal Code § 1026_____________________ 86
Cal. Stat. 1957, ch. 1968, p. 3509------------------ 136
Colo. Laws 1901, ch. 64_____________________ 129
Colo. Rev. Stat. § 40-2-3 (1963)------------------ 132
Conn. Gen. Stat. § 53-10 (1968)------------------- 136
Conn. Penal Code §2 9 --------------------------------- 42
Conn. Penal Code, Pub. Acts 1969, No. 828_ 119, 136
Conn. Pub. Acts 1951, No. 369_____________ 131
Conn. Pub. Acts 1963, No. 588--------------------- 136
Dakota Terr. Laws 1883, ch. 9 --------------------- 129
Del. Code Ann. tit. 11, § 571 (Supp. 1988) —_ 132
Del. Code Ann, tit. 11, §3901 (Supp. 1968)__ 132
Del. Laws 1917, ch. 266____________________ 130
Fla. Acts 1872, No. 15, ch. 1877____________ 129
X III
State Statutes and Rules— Continued Page
Fla. Stat. Ann. § 782.04 (1965)_________ 133
Fla. Stat. Ann. § 919.23 (1944)_________ 133
Ga. Acts 1866, No. 208_____________________ 128
Ga. Acts 1866, No. 210_________________ __128
Ga. Code Ann. §26-1101 (Supp. 1969)_ 136
Ga. Code Ann. § 26-3102 (Supp. 1969)_ 136
Ga. Code 1861, §4220___ 128
Ga. Criminal Code, Laws 1968, p. 1249_____ 136
Ga. Laws 1970, No. 1333_________________ 120, 136
Hawaii Laws 1955, Act 239_________________ 131
Hawaii Rev. Stat. § 748-4 (1968)___________ 132
Ida. Code § 18-4004 (1948)_________________ 133
Ida. Gen. Laws 1911, ch. 68________________ 130
111. Ann. Stat. ch. 38, § 1-7 (Smith-Hurd,
Supp. 1970)____________________________ 123, 133
111. Ann. Stat. ch. 38, § 9-1 (Smith-Hurd,
1964)____________________________________ 133
111. Criminal Code, Laws 1961, p. 1983_____89, 133
111. Pub. Laws 1867, p. 90___________________ 128
Iowa Code Ann. § 690.2 (Supp. 1969)_______ 132
Iowa Laws 1878, ch. 165____________________ 129
Ind. Ann. Stat. § 9-1819 (1956)_____________ 133
Ind. Ann. Stat. § 10-3401 (1956)____________ 133
Ind. Rev. Stat. 1881, § 1904________________ 129
Kan. Criminal Code, Laws 1969, ch. 180____ 133
Kan. Laws 1935, ch. 154____________________ 130
Kan. Stat. Ann. § 21-3401 (Supp. 1969)_____ 133
Kan. Stat. Ann. § 21-4501 (Supp. 1969)____89, 133
Kan. Stat. Ann. §21-4606 (Supp. 1969)_____ 42
Kan. Stat. Ann. §21-4607 (Supp. 1969)_____ 42
Ky. Gen. Stat. 1873, ch. 29_________________ 129
Ky. Pub. Acts 1869, ch. 1659__________ 128
Ky. Rev. Stat. § 435.010 (1969)_____________ 133
Ky. R. Crim. P. § 9.84 (1969)______________ 133
La. Acts 1846, No. 139_____________________ 128
La. Code Crim. P. Ann. art. 817 (West 1967). 133
XIV
State Statutes and Rules— Continued Page
La. Stat. Ann. § 14.30 (1951)_______________ 133
Me. Rev. Stat. Ann. tit. 17, § 2651 (1964)___ 132
Md. Ann. Code art. 27, § 413 (1967)________ 133
Md. Laws 1916, ch. 214_____________________ 130
Mass. Acts 1951, ch. 203______________ (____ 131
Mass. Ann. Laws ch. 265, § 2 (1968)________ 133
Mich. Comp. Laws § 750.316 (Supp. 1970)___ 132
Minn. Gen. Laws 1868, ch. 88_______________ 128
Minn. Stat. Ann. § 609.185 (1964)__________ 132
Miss. Code Ann. §2217 (1956)______________ 133
Miss. Code Ann. § 2536 (1956)______________ 133
Miss. Laws 1872, ch. 76_____________________ 129
Mo. Ann. Stat. § 546.410 (1953)_____________ 134
Mo. Ann. Stat. § 559.030 (1959)____________ 134
Mo. Laws 1907, p. 235______________________ 130
Mont. Laws 1907, ch. 179___________________ 130
Mont. Rev. Codes § 94-2505 (1969)_________ 134
Neb. Laws 1893, ch. 44_____________________ 129
Neb. Laws 1969, ch. 213________________ 42, 90, 134
Neb. Rev. Stat. §28-401___________________ 134
Nev. Rev. Laws 1912, § 6386_______________ 130
Nev. Rev. Stat. § 200.030 (1969)____________ 134
N.H. Laws 1903, ch. 114____________________ 129
N.H. Rev. Stat. Ann. §585:4 (1955)_________ 134
N.J. Pub. Laws 1916, ch. 270_______________ 130
N.J. Stat. § 2A: 113-4 (1951)________________ 134
N.M. Laws 1939, ch. 49____________________ 130
N.M. Laws 1969, ch. 128_______________ 42, 90, 134
N.M. Stat. Ann. §40A -2-l (1964)__________ 134
N.M. Stat. Ann. §4QA-29-2 (1964)_________ 134
N.M. Stat. Ann. §40A-29-2.1 (Supp. 1969)._ 134
N.Y. Laws 1937, ch. 67_____________________ 130
N.Y. Laws 1963, ch. 994____________________ 136
N.Y. Penal Law §65.00 (1967)______________ 42
N.Y. Penal Law § 125.30 (1967)_____________ 136
N.Y. Penal Law §125.35 (1967)__________ 119, 136
XV
State Statutes and Rules— Continued page
N.C. Gen. Stat. §14-17 (1969)______________ 134
N.C. Sess. Laws 1949, ch. 299---------------------- 130
N.D. Cent. Code §12-06-06 (Supp. 1 9 6 9 )..- 132
N.D. Cent. Code §12-27-13 (1960)_________ 132
93 Ohio Laws 223 (1898)__________________ 37, 129
Ohio Rev. Code Ann. § 2901.01 (Page 1954)___ 2,
83, 127,134
Ohio Rev. Code Ann. § 2947.05 (Page 1954). 95
Okla. Stat. Ann. tit. 21, § 707 (1958)------------ 134
Okla, Terr. Stats. 1890, ch. 25______________ 129
Ore. Gen. Laws 1920, ch. 19------------------------- 130
Ore. Rev. Stat. § 163.010 (1967)____________ 132
Pa. Laws 1794, ch. 257--------------------------------- 34
Pa. Pub. Laws 1925, ch. 411_______________ 37,130
Pa. Pub. Laws 1959, No. 594------------------------ 136
Pa. Stat. tit. 18, § 4701 (1963)____________ 118, 136
R. I. Gen. Laws § 11-23-2 (1969)__________ 132
S. C. Acts 1878, No. 541__________________ 129
S.C. Acts 1894, No. 530____________________ 129
S.C. Code § 16-52 (1962)___________________ 134
S.D. Comp. Laws § 22-16-12 (1967)------------- 134
S.D. Comp. Laws § 22-16-13 (1967)________ 134
S.D. Comp. Laws § 23-48-16 (1967)________ 134
Term. Code Ann. § 39-2405 (1956)---------------- 135
Tenn. Code Ann. § 39-2406 (1956)--------------- 135
Tenn- Laws 1837-1838, ch. 29--------------------- 35, 128
Tex. Acts 1965, ch. 722-------------------------------- 137
Tex. Code Grim. P. Ann. art. 37.07 (Supp.
1970)_____________________________ 119,137
Tex. Gen. Laws 1858, ch. 121, art. 71a--------- 128
Tex. Penal Code Ann. art. 1257 (1961)--------- 137
Utah. Code Ann. § 76-30-4 (1953)--------------- 135
Utah Penal Code of 1876, Comp. Laws 1876,
p. 586____________________________________ 129
Yt. Acts 1910, No. 225______________________ 130
Yt. Stat. Ann. tit. 13, § 2303 (Supp. 1969)— 135
XVI
State Statutes and Rules— Continued Page
Ya. Acts 1914, ch. 240______________________ 130
Va. Code § 18.1-22 (1960)__________________ 135
Ya. Code § 19.1-250 (1960)_________________ 135
Wash. Rev. Code § 9.48.030 (1956)_________ 135
Wash. Sess. Laws 1909, ch. 249_____________ 130
Wash. Sess. Laws 1919, ch. 112_____________ 130
W. Va. Code 1870, ch. 159__________________ 128
W. Ya. Code § 61-2-2 (1966)_______________ 132
Wis. Stat. Ann. § 940.01 (1958)_____________ 132
Wyo. Sess. Laws 1915, ch. 87_______________ 130
Wyo. Stat. § 6-54 (1957)___________________ 135
Foreign Statute:
Great Britain, Homicide Act of 1957, 5 & 6
Eliz. 2, c. 11, §§ 5, 6______________________ 54
Miscellaneous:
Appellate Power to Reduce Jury-Determined
Sentences, 23 Rutgers L. Rev. 490 (1969) __ 61
Appellate Review of Primary Sentencing De
cisions: A Connecticut Case Study, 69 Yale
L.J. 1453 (1960)__________________________ 28
American Bar Ass’n, Project on Minimum
Standards for Criminal Justice: Standards
Relating to Sentencing Alternatives and
Procedures (Tent. Draft 1967)____________ 28, 54
A.L.I., Model Penal Code (Tent. Draft No. 9,
1959)_______________________ 34, 42, 57, 58, 61, 88
A.L.I., Model Penal Code (Proposed Official
Draft 1962)____________ 42, 56, 74, 75, 77, 88, 141
36 A.L.I., Proceedings (1959)----------------- 57, 58, 116
Bedau, The Death Penalty in America (rev.
ed. 1967)__________________________ 34,49,60,61
Bifurcated Trial Procedure and First Degree
Murder, 3 Suffolk U.L. Rev. 628 (1969) __ 117
Bradford, An Enquiry How Far the Punish
ment of Death Is Necessary in Pennsylvania
(1795) 34
XVII
Miscellaneous— Continued
California and Pennsylvania Courts Divide on
Question of Admissibility of Details of Prior
Unrelated Offenses at Hearing on Sentencing
Under Split Verdict Statutes, 110 U. Pa. L.
Rev. 1036 (1962)_________________________
The California Penalty Trial, 52 Calif. L.
Rev. 386 (1964)____'_____________________
The Capital Punishment Controversy, 60 J.
Crim. L., Criminol. & Pol. Sci. 360 (1969) _
The Changing Role of the Jury in the Nineteenth
Century, 74 Yale L. J. 170 (1964)_________
Dawson, Sentencing: The Decision As to the
Type, Length, and Conditions of Sentence
(Am. Bar Foundation 1969)________ 27, 42, 58, 60
Executive Clemency in Capital Cases, 39
N.Y.U.L. Rev. 136 (1964)___________ . ___ 117
Frankfurter, Of Law and Men (Elman ed.
1956)________________________________ 69,70,112
George, Aggravating Circumstances in American
Substantive and Procedural Criminal Law, 32
U.M.K.C.L. Rev. 14 (1964)___________ 61
Goldberg & Dershowitz, Declaring the Death
Penalty Unconstitutional, 83 Harv. L. Rev.
1773 (1970)__________________________ 68
Great Britain, Royal Commission on Capital
Punishment 1949-1953, Report (1953)_____ 53,
54, 70, 88
Great Britain, Select Committee on Capital
Punishment, Report (1930)_______________ 34,52
Hart, The Aims of the Criminal Law, 23 Law &
Contemp. Prob. 401 (1958)_______________ 111
117
118
66
30
Page
405 -3 8 S — 7 (
XVIII
Miscellaneous— Continued Page
Jury Sentencing in Virginia, 53 Ya. L. Rev.
968 (1967) — ____________________________ 30,31
Kadish, Legal Norm and Discretion in the Police
and Sentencing Process, 75 Harv. L. Rev.
904 (1962)_______________________ :_______ 28
Kalven, A Study of the California Penalty Jury
in First-Degree-Murder Cases: Preface, 21
Stan. L. Rev. 1297 (1969)________________ 74
Kalven & Zeisel, The American Jury (1966)__ 29,
59, 61, 68, 70, 71, 72, 77, 101, 120
Knowlton, Problems of Jury Discretion in
Capital Cases, 101 U. Pa. L. Rev. 1099
(1953)_________________________ 38, 100, 112, 115
Michael & Wechsler, Criminal Law and Its
Administration (1940)____________________ 59
National Commission on Reform of Federal
Criminal Laws, Study Draft of a New Fed
eral Criminal Code (1970)________________ 42,
56, 58, 80, 88, 107, 145
Packer, Making the Punishment Fit the Crime,
77 Harv. L. Rev. 1071 (1964)_____________ 110
Poe, Capital Punishment Statutes in the Wake
of United States v. Jackson: Some Unresolved
Questions, 37 G.W.L. Rev. 719 (1969)_____ 33
Powers, Parole Eligibility of Prisoners Serving
a Life Sentence (Mass. Correctional Ass’n
1969)_____________________________________ 32
President’s Commission on Law Enforcement
and Administration of Justice, Task Force
Report: The Courts (1967)_______________ 30,80
President’s Commission on Law Enforcement
and Administration of Justice, The Chal
lenge of Crime in a Free Society (1967) __ 28,32
X IX
Miscellaneous— Continued Page
Schwartz, Punishment of Murder in Penn
sylvania, in II Royal Comm’n on Capital
Punishment, Memoranda and Replies to a
Questionnaire 776 (1952)--------------------------- 37
Sentencing Disparity: Causes and Cures, 60
J. Crim. L., Criminol., & Pol. Sci. 182 (1969) _ 27, 42
Stephen History of the Criminal Law of
England (1883)----------------------------------------- 52
A Study of the California Penalty Jury in
First-Degree-Murder Cases: Standardless
Sentencing, 21 Stan. L. Rev. 1302 (1969)__ 51,
73, 77, 117
The Supreme Court and Capital Punishment—
From Wilkerson to Witherspoon and Beyond,
14 St. L. U. L. Rev. 463 (1970)___________ 62
Time Magazine, May 25, 1970--------------------- 59
The Two-Trial System in Capital Cases, 39
N.Y.U.L. Rev. 50 (1964)________________ 58, 118
U.S. Bureau of Prisons, National Prisoner Sta
tistics Bulletin: Capital Punishment 1930-
1968 (August 1969)------------------- ----------- 138,140
Wechsler, Codification of Criminal Law in the
United States: The Model Penal Code, 68
Colum. L. Rev. 1425 (1968)______________ 52
Wechsler, Degrees of Murder and Related As-
pects of the Penal Lav: in the United States,
in II Royal Comm’n on Capital Punishment,
Memoranda and Replies to a Questionnaire
783 (1952)_______________________________ 56
Wechsler, Symposium on Capital Punishment,
7 N.Y.L.F. 250 (1961)____________________ 51
Weigel, Appellate Revision of Sentences: To
Make the Punishment Fit the Crime, 20 Stan.
L. Rev. 405 (1968)_______________________ 28, 80
Jit Mxt $n$nm djourt of tlxt Mnlid JStatea
October Term, 1970
No. 203
Dennis Councle McG-autha, petitioner
v.
State of California
ON W R IT OF C E R TIO R AR I TO TH E SUPREME COURT
OF C ALIFO RN IA
No. 201
J ames Edward Crampton, petitioner
v.
State of Ohio
ON W R IT OF C E R T IO R AR I TO TH E SUPREM E COURT
OF OHIO
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
O PIN IO N S B E L O W
The opinion o f the Supreme Court o f California
in People v. McGautha (Mc.A. 249-265) 1 is reported
at 70 Cal. 2d 770, 76 Cal. Rptr. 434, 452 P . 2d 650. * (l)
1 References to the printed appendices in the McGautha case
and in the Crampton case are abbreviated herein as “ Mc.A.”
and “ C.A.” , respectively. References to the transcript o f record
in the Crampton case will be given as “ R.” .
( l )
2
The opinion o f the Supreme Court o f Ohio in State
v. Crampton (C.A. 83-88) is reported at 18 Ohio St.
2d. 182, 248 N.E. 2d 614.
JU R IS D IC T IO N
The judgment of the Supreme Court o f California
in McGautha was filed on April 14, 1969, and rehear
ing was denied on May 14, 1969 (Me.A. 266). On
June 21, 1969, the petition for a writ o f certiorari
was filed. Certiorari was granted, 398 U.S. 936, on
June 1, 1970 (Me.A. 267), limited to Question 1 o f the
petition.
The judgment of the Supreme Court of Ohio in
Crampton was filed on June 11, 1969 (C.A. 82), and
the petition for a writ of certiorari was filed on July 31,
1969. Certiorari was granted, 398 U.S. 936, on June 1,
1970 (C.A. 89), limited to Questions 2 and 3 of the
petition.
This Court’s jurisdiction rests in both cases on 28
TJ.S.C. 1257(3).
B y order o f June 29, 1970, the Court invited the
Solicitor General to submit a brief expressing the
views o f the United States in these two cases. 399
U.S. 924. This brief is submitted in response to that
order.
S T A T U T E S IN V O L V E D
Sections 190 and 190.1 o f the California Penal Code
and Section 2901.01 of the Ohio Revised Code are set
forth in Appendix A, infra, pp. 126-127.
3
QUESTIONS PR E SE N T E D
1 1 1 both cases:
1. Whether the principles o f clue process and equal
protection require that a State which provides for a
jury to determine if a death sentence should he im
posed after conviction for first degree murder in a
particular case must prescribe statutory standards to
guide or govern that sentencing decision.
In Crampton only:
2. Whether a defendant’s privilege against self
incrimination is violated by trying him under a stat
ute that authorizes the jury, as part o f a single
proceeding, to find the defendant guilty o f first degree
murder and also to limit his punishment, after such
a finding, to life imprisonment in place o f the death
penalty.
ST A T E M E N T
I. MC GATJTHA
A . T H E CHARGES
B y information filed on April 6, 1967, petitioner
Dennis Councle McGautha and co-defendants W il
liam Rodney Wilkinson and Fannie Lue Smith were
charged with the armed robbery o f one Pon Lock
on February 14, 1967, and with the armed robbery
and murder o f Benjamin Smetana on the same date
(Me.A. 1 -3). Petitioner McGautha was also charged
with four prior felony convictions: felonious theft,
robbery, murder without malice, and robbery by as
4
sault (Me.A. 3 -4 ).2 MeGautha and his co-defendant
Wilkinson went to trial on the information, after
Miss Smith’s case was severed (Me.A. 6, 34-35).
B . T H E G U IL T T R IA L
The evidence established that at about 2:30 pan.
on February 14, 1967, MeGautha and Wilkinson
entered a market in Los Angeles and, brandishing
pistols, kept one customer at bay while taking almost
$300 from the owner, Mrs. Pon Lock.
At approximately 5:30 that same afternoon, Me
Gautha and Wilkinson entered another market in
Los Angeles, operated by Mr. and Mrs. Benjamin
Smetana, again intent on armed robbery. While a
customer wns forcibly restrained by one o f the rob
bers, the other one struck Mrs. Smetana on the side
o f her head and she fell to the floor. A shot was fired,
and Mr. Smetana fell mortally wounded. The driver
o f the get-away car testified that MeGautha, admitted
shooting the shopkeeper (Me.A. 250-251).
The jury found both MeGautha and Wilkinson
guilty as charged o f two counts o f armed robbery and
one count of first degree murder (Me.A. 11-14).
C. T H E P E N A L T Y T R IA L
On the following day, a separate proceeding was
commenced before the same jury, pursuant to Section
190.1 of the California Penal Code, to enable the jury
2 In accordance with California practice, MeGautha admitted
these four prior convictions in a proceeding in chambers so that
the fact o f the convictions would not come before the jury at
the guilt trial (Me.A. 35-37).
to consider evidence on whether to fix life imprison
ment or death as the sentence on the murder convic
tions (Me. A. 15).
The State’s case at the penalty phase was limited
to the introduction of a file of documents from Texas
containing records of petitioner McGautha’s prior
felony convictions, photographs, and fingerprints
(Me.A. 81).
d . c o - d e f e n d a n t ’ s c a s e o n p u n i s h m e n t
Co-defendant Wilkinson then took the stand. He
testified that at the time of the trial he was twenty-
six years old, born in Mississippi the son of a white
father and a Negro mother. He had attended a Negro
school where his classmates teased him about his back
ground. After his father died Wilkinson had to leave
school in the 11th grade in order to help support his
mother, his sisters, and his younger brother (Mc.A.
84-85). At age 18 he enlisted in the Army, and served
without disciplinary action. He was honorably dis
charged after approximately six months of service
when his X.Q., somewhere in the eighties, failed to
meet revised Army standards (Mc.A. 85-86).
Wilkinson further testified that after returning
home to Mississippi, and while he was working to
support his family, a girl friend implicated him in a
bad-check episode, but he was not convicted of any
crime (Mc.A. 87). A fter that he went to California,
where he took a job and rented a room in a boarding
house run by a Baptist minister. He joined the min
ister’s church and continued his attendance until he
6
was arrested for the robberies and murder (Mc.A.
87-88).
He had worked steadily for a time, earning promo
tions and sending support to his family in Mississippi
(Mc.A. 88). A il this had changed when in July 1965
he was shot in the back in an unprovoked assault by
a street gang. A fter his hospital confinement, W il
kinson encountered difficulty getting or keeping a
job, and it became necessary for his mother to send
him money. It was during this period when he was
“ desperate for money” that Wilkinson met petitioner
McGaiitha and his associates and the subject o f hold
ups was broached to him (Mc.A. 91-92). Armed with
a broken pistol he had found and never fired, W il
kinson testified, he had participated in the two rob
beries, but denied actually knowing that the stores
were to be held-up until McGautha drew his gun at
each store. Wilkinson denied that he had drawn his
own pistol on either occasion (Mc.A. 95-100).
Wilkinson testified that it was McGrautha, not he,
who bad fired the fatal shot, and that it was Mc
Grautha who had struck Mrs. Smetana (Mc.A. 109, 112,
114, 119).
Wilkinson called five other witnesses on his behalf:
An undercover narcotics agent testified that he had
seen the murder weapon in McGrautha’s possession;
he had seen it kept under MeGrautha’s pillow on one
occasion, and on another occasion witnessed Mc
Grautha demonstrating his speed in drawing the gun
from his waistband, where he carried it (Mc.A. 137-
138). W ilkinson’s girl friend testified that they at
7
tended church services together (Me.A. 142). The
Baptist minister in whose boarding house Wilkinson
had lived testified that Wilkinson attended his church
and had a good reputation in the community. He also
stated that when he visited Wilkinson in jail prior
to trial, Wilkinson said he was horrified at what had
happened and asked the minister to pray for him
(Me.A. 145-147). A police sergeant who had investi
gated the crime testified that Wilkinson had been co-
operative following his arrest (Me.A. 151). A former
fellow employee who had also been Wilkinson’s busi
ness partner in a salvage project described Wilkinson
as an honest, non-violent person who had a good repu
tation (Me. A. 157).
E . M C G A U T IIA ’ S CASE ON P U N IS H M E N T
Petitioner McGautha too testified in his own be
half. Forty-one years old at the time of the trial, he
admitted to having a “ bad” criminal record but denied
that he had shot Mr. Smetana or struck his wife
(Mc.A. 159-160). Although he acknowledged that the
murder weapon was his, he testified that between the
two robberies Wilkinson had expressed concern that
his own automatic could hold only one shell and that for
this reason the two men had traded guns. Thus, Mc
Gautha testified, it was Wilkinson who had actually used
the pistol to club Mrs. Smetana and to kill her husband
(Me.A. 160-161).
McGautha also testified that his mother and father
had separated when he was four, that he had been
injured in combat in 1942, that he had worked for
8
various celebrities, that he had a heart condition, and
that he “ regretted” Mr. Smetana’s death (Me.A.
162-164).
McGrautha admitted his prior criminal record but
denied committing two of the robberies for which he
had been convicted and claimed that the murder-with-
out-maliee conviction involved only self-defense
(Me.A. 174-175). McGrautha also admitted a guilty
plea in 1964 to a charge o f carrying a concealed weap
on (Me. A. 177).
Asked why he had lied to the police during their in
vestigation o f the crime, McGrautha explained; “ Nor
mally, anyone would have done that, sir.” (Me.A.
180).
McGrautha called no other witnesses. Both defend
ants then rested.
F . CLOSIN G A R G U M E N T S
In closing arguments, the prosecutor stated to the
ju ry : “ Seriously consider whether or not the death
penalty should lie imposed on both defendants and as
to the person who was Benjamin Smetana’s killer fix
the penalty at death.” (Me.A. 206). It was Wilkinson,
the prosecutor argued, who struck Mrs. Smetana with
his own gun, but petitioner McGrautha who, using his
pistol, shot Mr. Smetana (Mc.A. 202). Mention was
also made of McGrautha’s prior felony convictions,
including an earlier criminal homicide, and of his re
fusal to acknowledge his responsibility for those past
crimes (Mc.A. 204-205).
W ilkinson’s counsel emphasized his client’s youth,
his prior unblemished record, his low I.Q., his candor,
and his remorse (Mc.A. 207-211). Petitioner Me-
9
Gautha’s counsel conceded that his client had a bad
record and that he had told some lies, but asked the
jury to set a life sentence because it was not Mc-
Gautha who had pulled the trigger (Me.A. 213, 218-
219).
G. J U R Y IN ST R U C T IO N S O N P U N IS H M E N T
In instructing the jury on its responsibility to fix
the penalty, the court advised them that while the law
forbade them to consider mere conjecture, prejudice,
or public feeling, they were free to be governed by
“ mere sentiment and sympathy” (Mc.A. 222). They
were told that they might also consider “ all of the
evidence o f the circumstances surrounding the crime,
o f each defendant’s background and history, and of
the facts in aggravation or mitigation of the penalty
which have been received here in court” (Mc.A. 222).
But the jurors were also told that they were entirely
free to set the punishment notwithstanding any facts
proved in aggravation or mitigation (Mc.A. 222-223).
They were further instructed th a ti ‘ the law itself pro
vides no standard for the guidance o f the jury in the
selection of the penalty, but, rather, commits the
whole matter o f determining which o f the two penal
ties shall be fixed to the judgment, conscience, and
absolute discretion of the ju ry ” (Mc.A. 223).
H . J U R Y D E LIB ER A TIO N S, VERDICT, A N D SEN TE N CE
During their deliberations on the penalty question,
the jury returned to the courtroom several times to
request further instructions and re-readings o f testi
mony. They had Mrs. Smetana’s testimony re-read,
and asked for that portion o f the testimony of the
10
driver of the get-away car that discussed what each
o f the defendants had in his hands when leaving the
Smetana market (Mc.A. 225-226).3 After another re
reading of a portion o f Mrs. Smetana’s testimony
was requested and allowed (Mc.A. 229-230), the jury
once again interrupted its deliberations to ask for a
re-reading o f the entire testimony o f two other wit
nesses, and this was done (Mc.A. 231). A fter further
deliberations, the jurors returned with a verdict fix
ing W ilkinson’s penalty at life imprisonment and
petitioner McGrautha’s sentence at death (Mc.A. 231-
232).4
On September 15, 1967, Wilkinson was accordingly
sentenced to life imprisonment upon his murder con
viction (Mc.A. 31, 235-237). Petitioner McGrautha’s
sentencing was postponed until September 29, 1967,
to permit the Probation Department to prepare a
probation report. (Mc.A. 237). On that date, the
court denied McGrautha’s motion for a new trial or
for a modification o f the penalty verdict, and sen
tenced him to death (Mc.A. 32-33, 239-248).
II. CRAMPTOlSr
A . T H E CHARGE
Petitioner James Edward Crampton was indicted
by a grand jury in Lucas County, Ohio, on March 2,
1967, and charged with murdering W ilma Jean
3 Because o f difficulty locating the portions desired, the wit
ness’s entire testimony was re-read to the jury (Mc.A. 228-229).
4 Deliberations on the penalty question had begun at 2:12
p.m. on August 24, 1967, and the verdicts were returned at
4:45 p.m. on August 25, 1967 (Mc.A. 224, 231).
11
Crampton, purposely and with premeditated malice,
on January 17th o f that year (C.A. 4).
He pleaded not guilty to the charge and alterna
tively pleaded not guilty by reason o f insanity
(C.A. 4 ). He was then committed to Lima State
Hospital for one month’s observation, and when the
hospital subsequently reported that Crampton would
be considered sane he was ordered to stand trial
(C.A. 1).
B . T H E PR O SEC U TIO N 'S EVIDENCE
The State’s evidence established the following facts:
Petitioner Crampton had married the deceased ap
proximately four months prior to her death (R. 45;
C.A. 57). The deceased’s brother testified that about
two months before the killing, Crampton had been
allowed to leave the state hospital where he was un
dergoing observation to attend the funeral o f his
w ife ’s father. A fter the funeral, the witness said he
discovered Mrs. Crampton crying because her husband
had taken a knife and run away. In the interim,
Crampton had telephoned the house, and when his
wife warned him to return to the hospital he told
her “ I f you call the police, I will kill you then get
to your mother” (R . 23-24, 35). Later that evening,
after Mrs. Crampton and the witness notified the po
lice, Crampton was picked up by the authorities
(R . 37-38).
A friend o f the victim testified that she was at the
victim ’s home four days prior to the killing, when
Crampton arrived and kicked and pounded on the
back door until he was admitted (R . 41-42). Cramp-
12
ton then pushed his wife into the living room, and
upstairs. He had a knife in one hand and was holding
his wife at the same time. He said i f anyone called
the police he would kill them all (R . 42-43, 50). Later
that evening he telephoned and told the witness to
leave. The witness said she would but would take Mrs.
Crampton with her. At that Crampton said he would
come back to get them all with a gun he had (R . 43).
Later witnesses confirmed that Crampton had made
threats on his w ife’s life and that police protection
had been ordered about ten days before the murder
because of W ilma Jean Crampton’s fear o f her hus
band (R . 174, 212, 215).
In the course o f the testimony o f one of the State’s
witnesses it was brought out that he had first met
Crampton in 1964 while they were both “ doing tim e”
in the Michigan State Prison (R . 58) ; that he had
met Crampton again on January 14, 1967, in Pontiac,
Michigan; that Crampton purchased some ampheta
mines (R . 61) ; that Crampton talked of his activities
since his release from the Leavenworth Penitentiary,
including his admission to a hospital for drug addic
tion (R . 61) ; that on the evening o f January 14 he
and the defendant drove to Cary, Indiana, where
Crampton stole some license plates and put them on
his rented car (R. 62) ; that they checked into a motel
where they pilfered some money from the coin box
o f a mechanical vibrator (R . 63); that Crampton
found his w ife ’s car and towed it away (R . 62-63) ;
that Crampton burglarized some coin machines and
stole a typewriter at a truck stop (R. 65) ; that on
13
the evening o f January 15, Crampton broke into a
hospital to get some drugs, and stole some shaving
equipment and a jacket as well (R . 68-69); and
that Crampton then forged another prescription for
amphetamines and obtained the drugs from a phar
macy, unsuccessfully trying the same technique to
secure a different drug for his traveling companion,
the witness (R . 71). A fter injecting drugs directly
into his vein and after obtaining some more pills at
another drug store, Crampton telephoned his wife in
Toledo, and after the call announced that he and the
witness had to drive there right away (R . 72-73,
108-109).
Crampton and his friend arrived in Toledo in the
early morning hours of January 17 (R. 73). A fter
first stopping at his w ife ’s house, Crampton and the
witness drove to the home of Crampton’s mother-in-
law; they broke in and stole several items including
a rifle, some ammunition, and a few handguns— in
cluding one later identified as the murder weapon
(R. 76-78). Crampton kept that pistol, a .45 caliber
automatic, with him from then on (R. 79-80).
Crampton then indicated that he suspected that his
wife and her ex-boss were having an illicit affair, and
Crampton and the witness drove around to several
locations, in a car Crampton had just stolen, trying
to find the couple (R. 78-82). As he was driving with one
hand, Crampton fired the automatic out the car win
dow, commenting that a slug like that could do quite
a bit o f damage, and adding “ I f I find them together
I ’m going to kill both of them” (R . 80).
405- 388— 70 3
14
Later, Crampton located his wife at home by tele
phone, and quickly drove out to the home. He told
the witness: ‘ ‘Leave me off right here in front of the
house and you take the car and go back to the park
ing lot and if I ’m not there by six o ’clock in the
morning you ’re on your own” (R . 82).
On the following morning the police were sum
moned to Mrs. Crampton’s home by her daughter,
the child o f a previous marriage, when the daughter
was unable to rouse anyone at the house (R . 129-130).
The investigating officer found Mrs. Crampton’s dead
body in an upstairs bathroom. She had been shot in
the face at close range underneath her right eye.
A .45 caliber shell casing was found beside the body.
(R. 132-133, 167-168, 221-222, 230-231). The jacket
Crampton had stolen during the hospital burglary a
few days earlier was found in the living room (R. 69,
79, 204-205, 223, 229).
In the interim, before discovery o f his w ife ’s body,
Crampton had been arrested for driving a stolen ear.
Between the bucket seats in the car Crampton was
driving was the murder weapon, a .45 caliber auto
matic pistol (R . 139-141).
A fter being advised o f his constitutional rights,
Crampton admitted stealing the car and the .45 cali
ber pistol, and told about the other crimes he had
committed over the past few days; he declined, how
ever, to discuss his wife (R. 164-166, 170, 180-181,
224-228). A tape recording o f one questioning ses
sion, containing these admissions and a reference to
several years Crampton had spent in prison, was
played before the jury (R . 252-266).
15
C. T H E DEFENSE CASE
As part of the defense case, Cramp ton’s mother was
called as a witness. She stated he was born in 1926,
making him 41 years old at the time o f the trial
(C.A. 49). At age nine she said Crampton had fallen
off an ice truck and injured his head (C.A. 53). He
was raised in a broken home until he left at age 14
because his stepfather did not want him around (C.A.
49). He reportedly was a good student but attended
only one year of regular high school (C.A. 50-51).
Later, after a dishonorable discharge from the Navy,
he completed his high school education in the Jackson
Prison while serving part o f a 10-15 year sentence
for robbery (A . 52). He also spent time in Leaven
worth, his mother testified, for interstate transporta
tion of a stolen ear (C.A. 56). He was also known by
his mother to have been a drug addict since at least
1949 (C.A. 55, 59).
During this period, he had married, had a child,
been divorced, remarried to the same woman, and
again divorced (C.A. 54-56). He married Wilma
Jean Crampton in September 1966, approximately
four months before she was murdered (C.A. 57).
In support o f his insanity defense, Crampton in
troduced a series of hospital studies and reports, to
gether with reports collected by hospital personnel
from various state correction authorities. These docu
ments contained a substantial amount of informa
tion about his background. For instance, it appeared
that Crampton’s intelligence was in the average to
above-average range measuring from 106 to 113 on
16
various tests (C.A. 24, 40). The documents also
showed that Crampton had a juvenile record, plus
convictions for grand larceny, armed robbery, and
interstate auto theft. He was a parole violator and
had previously escaped from jail. W hile in the Navy
he was court-martialed for larceny and impersonat
ing an officer, and given an undesirable discharge.
A fter then fraudulently enlisting in the Army, he
was again court-martialed and dishonorably dis
charged. He had a long arrest record and was ad
dicted to narcotics and amphetamines. Because of
his frequent incarceration, he had no significant em
ployment record (C.A. 14-15, 21-23, 26-27, 30, 32-33,
42, 46).
One report, based on information given by Cramp-
ton’s wife when he was admitted to a state hospital
for observation about two months prior to her mur
der, recorded that Crampton had struck her and
threatened her with a knife (C.A. 9).
One of the reports prepared after Crampton was
committed for observation following his insanity plea
recited that he had suspected his wife o f infidelity
(C.A. 21). Various reports spoke of Crampton’s claim
that the shooting was accidental; that his wife had
talked about shooting herself if Crampton did not
return to the hospital ; that he was gathering up the
guns around the house and had just removed the
clip from one gun when his wife, who was sitting on
the toilet, asked to see i t ; and that in handing the gun
17
to her, it somehow discharged, wounding her fatally
in the head (C.A. 21-24).5
All reports concluded that Crampton was sane, with
no psychosis, organic brain damage, detachment
from reality, or inability to distinguish right from
wrong. H is condition was characterized simply as
an anti-social or sociopathic reaction, coupled with
alcohol and drug addiction (C. A. 18, 20, 24, 25, 31).
D. J U R Y IN ST R U C T IO N S
After instructing the jury on the elements o f first
degree murder, possible lesser included offenses, and
the defense o f insanity (C.A. 60-70), the court told
the jury of its punishment responsibility:
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 peni
tentiary during life (C.A. 70).
E . VERDICT A N D SEN TEN CE
The jury retired to deliberate at 2 :Q0 p.m. on
October 30, 1967, and at 6 :15 p.m. they returned with
a verdict o f guilty o f murder in the first degree, with
no recommendation o f mercy (C.A. 2, 78).
Sentence was imposed on November 15, 1967.
Crampton was given the opportunity to state any
5 In its instructions, the court charged the jury that there
was some evidence that the killing was accidental, and that
acceptance o f such evidence would require a verdict of not
guilty (C.A. 68).
18
reasons why sentence should not be imposed. He made
certain statements that were found insufficient to
prohibit the passing o f sentence. He was accordingly
sentenced to death, as required by the Ohio statute in
the absence o f a jury recommendation o f mercy
(C.A. 2-3, 78-79).
S U M M A R Y OR A R G U M E N T
In the view o f the United States, there is no con
stitutional impediment to affirmance o f the convic
tions in both o f these cases.
I
A. The common attack made both by McGautha
and by Crampton is that the absence o f statutory
standards or criteria to govern or guide the ju ry ’s
determinaton o f punishment invalidates the death
sentences imposed upon them. The argument that
the Constitution requires legislative formulation of
sentencing standards for jury sentencing in capital
cases equally calls into question the settled practice
o f authorizing judges to set sentences in the exercise
o f broad discretion in non-capital felony eases with
out providing extrinsic standards. Such a thrust runs
counter not only to the modern philosophy o f max
imizing sentence flexibility but also to this Court’s
pronouncements that sentencing procedures are not
governed by the same rigid requirements that are
constitutionally necessary for trying a defendant’s
guilt.
Jury sentencing in non-capital eases originated in
colonial times and survives today in one-quarter o f
19
the States. The authority for the jury in a capital
case to determine whether the death penalty should
be imposed upon conviction dates from at least 1838
and was well established by the time the Fourteenth
Amendment was ratified. Virtually every American
jurisdiction at some point or other has conferred
discretionary power on the jury in a capital murder
case to determine the penalty, and this practice is
followed today wherever the death penalty for mur
der is retained. In the entire history of this univer
sally accepted feature of our criminal laws no State,
even when adopting other major alterations to its
criminal code, has found it necessary or desirable to
codify the considerations which should govern the
ju ry ’s conscientious sense of judgment on this ques
tion. For at least a century this Court and lower
federal and state courts have reviewed convictions
and death sentences set by juries under these statutes
and neither this Court nor any other has heretofore
expressed anything but approval for the wisdom and
fairness o f entrusting flexible sentencing discretion
to the trial juries in capital cases. This unbroken
chain o f legislative and judicial approval of “ stand
ardless” jury discretion in capital cases presents a
powerful presumption that the practice is funda
mentally fair within the meaning of the Due Process
Clause.
B. Allowing a capital jury freedom to exercise its
judgment on the question of the proper sentence in a
particular case serves a legitimate public interest.
There is first o f all a variety o f sound objections to
any different approach. An attempt to codify “ stand
2 0
ards” that would be exclusive and exhaustive in the
same sense as the elements of a crime would foolishly
reintroduce the rigidity of long discredited automatic
sentences; it is just not reasonably possible to define
in advance exactly how a particular crime committed
by a particular defendant should be punished. Some
sentencing discretion is therefore essential. Proposals
like that of the Model Penal Code to formulate a list
o f illustrative considerations that the sentencer in an
actual case might treat as tending to aggravate or
to mitigate the punishment suffer from other objec
tions. There is considerable doubt that such criteria
alert the modern jury to any pertinent considerations
that would not be self-evident in the context o f a
concrete case. But in addition, respectable authority
supports the fear that formal statutory enumeration
of factors considered by the State to be “ aggravating”
may upset the current demonstrable reluctance of
jurors to set a death sentence when they are charged
with the intensely personal responsibility for deter
mining the penalty. Moreover, statutory enumeration
o f abstract criteria could interfere with the legitimate
State policy o f leaving the life-and-death decision on
penalty to the contemporary conscience o f the com
munity speaking through the jury.
C. Arguments that the Constitution requires statu
tory standards to circumscribe the jury ’s sentencing
discretion proceed on erroneous legal and factual prem
ises, This Court has repeatedly emphasized that an
essential basis for our national commitment to trial
by jury is the assumption that juries act fairly, ra
2 1
tionally, and intelligently. Any contrary speculation
in this type o f case must assume that twelve jurors
Screened by defense counsel will conclude their delib
erations with agreement that a man should die in the
absence o f any weighty reason or by virtue of some
vicious bias. The empirical data demonstrate quite the
opposite conclusion: that under the present system
juries do act reasonably on the basis o f pertinent con
siderations and that in so deciding they do not rely
on any irrational factor or on any personal bias. Thus,
whatever favorable reasons there may be for enacting
formal lists of sentencing criteria, they cannot be said
to be essential to just and rational sentencing by
the modern American jury— a jury that must be
chosen so as to insure that it will fairly represent the
community.
D. The current practice of “ standardless” jury sen
tencing does not violate any specific constitutional
rights o f an accused. It is well settled that a defend
ant cannot insist on “ notice” of the considerations that
may enter into his post-conviction sentencing and can
not demand an opportunity to litigate sentencing fac
tors. Statutory criteria cannot be said to be essential
to permit meaningful review since the Constitution
does not assure the right to appeal, and particularly
does not guarantee review of a sentence otherwise
within prescribed limits. In the few States where
sentence review is authorized, the courts have experi
enced no difficulty exercising their responsibilities;
on the contrary, to the extent formal criteria are pro
vided the practical scope of review may be contracted
since nearly every first-degree murder case contains
2 2
some “ aggravating” aspects, however defined, that
would sustain a death sentence.
Thus, we suggest, nothing in the Constitution com
pels the States to do what no jurisdiction has found
necessary or wise: formulate “ sentencing standards”
for juries in capital cases.
I I
A. Although six States have by recent statute de
cided to separate capital (or all felony) trials into
two stages, focusing separately on guilt and on pun
ishment, no court has held such a procedure mandated
by the Constitution in any context. This Court itself
on several occasions has declined to find bifurcated
trials constitutionally compelled, noting to the con
trary that they are essentially alien to our criminal
jurisprudence. Our system of criminal procedure as
sumes that a criminal trial is essentially an integated
disposition of all jury-triable issues, and it has never
been held constitutionally necessary to isolate even
complex issues for separate jury trials.
B. Petitioner Crampton’s insistence that the uni
tary trial creates an impermissible tension between
two constitutional rights is multiply defective. The
contention that in order to protect his privilege
against self-incrimination he must forego his “ right
to speak to his sentencer” — or vice versa— errone
ously assumes a constitutional foundation for that
latter “ right.” This Court has often held that a con
victed defendant does not have the right to partici
pate personally in the sentencing process by advanc
2 3
ing considerations to which the sentencer should advert
in fixing punishment. To the extent such considera
tions can he presented, they may be presented through
other defense witnesses while the defendant relies on
his own privilege to remain silent.
Whenever an accused desires to be heard on some
issue relating to the finding o f guilt, he is vulnerable
to examination on any other relevant issue and he
assumes the risk that his testimony may prove self-
defeating. A defendant who wishes personally to tes
tify in favor of mitigating circumstances can do so at
his guilt trial but he has no more constitutional basis
for complaining that the punishment issue has not
been severed than does a defendant who would prefer
to confine his testimony to a one-sided disclosure on
an alibi issue. That the State could make available
procedures for separate trials on different issues does
not establish that the privilege against self-incrimi
nation compels this course.
The accused being tried for murder in a one-stage
trial faces the very same tactical pressures that inhere
in every criminal prosecution. In some circumstances
it may seem desirable to take the witness stand and
in others it may not. As the Court’s guilty-plea cases
last Term demonstrate, the practical necessity o f mak
ing difficult choices in defending a criminal charge,
including a capital charge, does not establish that the
procedures which occasion the election impermissibly
burden the rights involved.
C. Nor is there substance to the arguments o f vari
ous amici that unitary trials unconstitutionally pre
2 4
vent the sentencing jury from obtaining access to
information needed for rational sentencing. The
States have the freedom to determine as a matter of
penal policy that the “ punishment should fit the
crime” and thus may authorize that sentence be fixed
in light of the circumstances o f the crime as developed
at trial. This Court has never held that the Constitu
tion requires consideration o f anything akin to a
pre-sentence report before a convicted murderer can
be sentenced.
The realities o f murder trials, in any event, show
that even where evidence related solely to penalty is
not admissible the jury receives a reasonably accurate
picture o f the defendant on trial. These background
details may come out in a variety o f ways but they
suffice to satisfy whatever minimum level of informa
tion might conceivably be argued to be indispensable
to intelligent sentencing.
Finally, there is considerable uncertainty about the
actual effect o f holding separate penalty hearings.
Various courts and commentators have suggested that
the procedure may generally operate to the disad
vantage of defendants because such a hearing does not
significantly enlarge the defendant’s ability to bring
favorable evidence before the jury but does open up
such critical areas as the accused’s prior criminal
record for exposure to the jury. It would thus be un
wise to hold that bifurcation is so great an improvement
over the present unitary trial system that due process
demands it, when it is possible that it encourages death
sentences.
25
A R G U M E N T
I
THE UNITED STATES CONSTITUTION DOES NOT REQUIRE THAT
STATE LEGISLATURES PRESCRIBE STATUTORY STANDARDS TO
GUIDE OR GOVERN THE JURY’S DETERMINATION OP SEN
TENCE IN A CAPITAL CASE
The petitioners in both cases argue that their death
sentences are constitutionally invalid. One claim, com
mon to both cases, rests on the fact that the statutes
under which they were tried and convicted for first
degree murder entrusted to the jury the decision
whether a death sentence should be imposed but did
not establish any explicit criteria for making that
decision. This absence o f statutory standards, they
argue, denies them due process and equal protection
of the law under the Fourteenth Amendment.
It is unclear whether petitioners contend that such
criteria would define the factors which the jury must
find to be present or absent in order to fix a capital
sentence, or would simply enumerate some considera
tions on which the jury should reflect. In either event,
it is our view that the United States Constitution does
not mandate the formulation o f any such criteria for
this purpose.
A . H IS T O R IC A L L Y , S E N T E N C IN G DISCRETION , W H E T H E R ENTRU STED TO
JU DGE OR J U R Y , I N C A P IT A L A N D N O N -C A P IT A L CASES, H A S N OT DE
PENDED O N LEGISLATIVE C RITERIA
1. Introduction: the attack on ustandar<Uess,'> sentencing in
these cases implicates all felony sentencing
In order to assess petitioners’ constitutional claims,
their actual context and likely implications should
26
be clear. Although the issue is narrowly cast as a chal
lenge to “ standardless” jury discretion in fixing the
sentence in a capital case, the arguments advanced in
support o f the position would seem to apply equally
to any sentencing, whether by a judge or by a jury,
and whether the offense is maximally punishable by
death, life imprisonment, or a variable term o f years.
Throughout our history, a developing penology has
tended to expand, rather than to contract, the dis
cretion given to the sentencing organ to deal with a
convicted felon. This Court expressly recognized this
historical experience in one of the eases which, we
believe, stands directly in the way o f petitioners’ con
tentions, Williams v. New York, 337 U.S. 241 (1949),
where the Court upheld a death sentence imposed by
a judge in the exercise o f discretion uncontrolled by
any statutory standards. The Court there noted an
important, and here pertinent, distinction between the
standards and procedures necessarily surrounding the
determination of guilt and the flexibility and discre
tion properly inhering in the sentencing process:
Tribunals passing on the guilt o f a defend
ant always have been hedged in by strict evi
dentiary procedural limitations. But both be
fore and since the American colonies became a
nation, courts in this country and in England
practiced a policy under which a sentencing
judge could exercise a wide discretion in the
sources and types o f evidence used to assist
Mm in determining the kind and extent of
punishment to be imposed within the limits
fixed bylaw. (337 U.S. at 246; footnotes omitted.)
27
The Court also observed that modern developments
like indeterminate sentences and probation “ have re
sulted in an increase in the discretionary powers ex
ercised in fixing punishments.” 337 U.S. at 249.
In a later case, the Court rejected a claim that a
sentencing judge had failed to accord due process of
law in electing to impose a death sentence after a
guilty plea, without making use of a procedure for
hearing evidence in aggravation or mitigation of
penalty; the procedure followed was found sufficient
because the penalty decision rested with the judge
“ in the exercise o f his sound discretion.” See
Williams v. Oklahoma, 358 U.S. 576, 585 (1959).
Especially in setting prison sentences in non
capital cases, the range o f alternatives open to a
sentencing judge is even more expansive than in a
capital case, where the sharp distinction separating
the alternatives, life and death, unquestionably clari
fies and illuminates the choice to be made. Yet, even
in such cases, sentencing judges are for the most part
not provided with “ external legislative guidelines
which delineate sentencing factors and their relative
weight. ’ ’ 6
In recent years, there have been efforts on several
fronts to introduce comprehensive changes in the
present American sentencing structure, and among
the techniques proposed is legislative formulation of
the considerations that are to be weighed in deter
6 See Sentencing Disparity: Causes and Cures, 60 J. Crim.
L., Criminol. & Pol. Sci. 182 (1969). See also, Dawson, Sen
tencing: The Decision as to the Type, Length, and Conditions
of Sentence 379—380 (Am. Bar Foundation 1969).
2 8
mining sentence.7 W e do not question that much of
this concern is legitimate; nor do we deny that leg
islatures may appropriately attempt to devise and
codify sentencing guidelines. Our disagreement is
simply with the argument that the Constitution re
quires such an approach, either in capital or non
capital cases.
A ruling in favor o f petitioners’ constitutional
claims would inevitably implicate the validity o f all
American felony sentencing. The viability o f a con
stitutional distinction between the “ process due” in
capital and non-capital cases 8 finds little support in
our jurisprudence.9 Indeed in Williams v. New York,
supra, 337 U.S. at 251, the Court refused to accept
such a contention “ that we should draw a constitutional
distinction as to the procedure * * * where the death
sentence is imposed. ”
Nor is it likely that a ruling in petitioners’ favor
7 See, e.g,, President’s Commission on Law Enforcement and
Administration o f Justice, The Challenge o f Crime in a
Free Society 145 (1967); Amei'iean Bar Association, Project
on Minimum Standards for Criminal Justice: Standards Re
lating to Sentencing Alternatives and Procedures 108 (Tent..
Draft 1967); Kadish, Legal Norm and Discretion in the
Police and Sentencing Process, 75 Harv. L. Rev. 904, 922
(1962); Rote, Appellate Review o f Primary Sentencing Deci
sions: A Connecticut Case Study, 69 Yale L.J. 1453, 1454-1459
(1960). See, also, Weigel, Appellate Revision o f Sentences:
To Make the Punishment F it the Crime, 20 Stan. L. Rev.
405 (1968).
8 See Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., con
curring) .
9 See, e.g.. the progression from Powell v. Alabama, 287 U.S.
45 (1932), through Betts v. Brady, 316 U.S. 455 (1942), to
Gideon v. Wainwright, 372 U.S. 335 (1963).
29
on this point could rationally be confined to jury sen
tencing.10 11 The identity of the sentencing authority, we
believe, has little to do with the constitutional need,
vel non, for statutory standards. The existence o f dis
cretion remains the same, as does the inherent pos
sibility that sentences in apparently similar situations
may vary from case to case, and from sentencing
tribunal to sentencing tribunal. Constant too is the
absence o f extrinsic criteria on which defendants (or
prosecutors) can focus in seeking to affect the sen
tencing decision.11 Thus, it is in this larger context
that the precise issue tendered by petitioners must be
viewed. W e turn now to that precise issue.
2. Jury sentencing discretion is firmly established in American
criminal law.
(a) Jury-Sentencing in Non-Capital Cases. The
power and responsibility of a judge to exercise broad
10 Several courts have expressed this awareness in rejecting
challenges to “ standardless” jury sentencing. See, e.g., Bell v.
Patterson, 279 F. Supp. 760, 766 (D. Colo. 1968), affirmed, 402
F. 2d 394 (C.A. 10, 1968); State v. Johnson, 34 N.J. 212, 168
A. 2d 1, 10, appeal dismissed for want of substantial federal
question, 368 U.S. 145, certiorari denied, 368 U.S. 933 (1961).
11 The same situation also prevails later on in the sentencing
process when the Executive is called upon in a capital case
to grant a reprieve or commute a death sentence. “ Standard-
less” discretion is involved, and the considerations actually
brought to bear seem to overlap with those involved in the
initial fixing of sentence by judge or jury. See Kalven & Zeisel,
The American Jury, 445-448 (1966). This Court has already
held compatible with due process the exercise o f that discre
tion without adversary hearing or judicial review, pointing
again to the distinction between the procedures necessary for
a fair trial o f guilt and the flexibility appropriate during the
post-conviction process. See Solesbee v. Balkcom, 339 U.S. 9,
12-13 (1950).
405- 388— 70----------4
3 0
discretion in determining a criminal sentence without
dependence on external legislative criteria is a famil
iar facet o f penal systems generally. In the United
States, however, the criminal law has long accorded
the jury a unique place in the sentencing process.
In fully one-fourth of the States, the jury trying
the question o f guilt has the responsibility for fixing
the punishment to be imposed in some or all wow-capi
tal criminal cases.12 This wide-spread practice dates
from our colonial period and represents a “ reaction
to harsh penalties imposed by judges appointed and
controlled by the Crown and to the early distrust of
governmental power.” 13
Although there is room to doubt whether there re
mains as pressing a need for such a role for the
jury in our contemporary society, that judgment must
necessarily be one that our federal system leaves to
the States to decide in accordance with their local
customs, traditions, and preferences. Indeed, on two
occasions recently this Court has digressed to point
out that the constitutional claims being advanced and
decided did not call into question the continuing
12 See Jury Sentencing in Virginia, 53 Ya. L. Rev. 968, 969
n. 2 (1967), citing such statutes from 13 states.
13 President’s Commission on Law Enforcement and Admin
istration of Justice, Task Force Report: The Courts 26
(1967).
For largely the same reasons, from colonial times through
much o f the last century, juries in many States were also em
powered to be the final judges o f the law as well as o f the
facts in criminal (and civil) trials. See Note, The Changing
Bole o f the Jury in the Nineteenth Century, 74 Yale L.J. 170,
171-176 (1964).
31
validity o f this jury function. In Spencer v. Texas,
385 TJ.S. 554, 560 (1967), in affirming a death sen
tence imposed by a jury in a single-stage guilt-and-
recidivist trial, the Court noted that the accused was
not attempting to assert “ that it is unconstitutional for
the jury to assess the punishment to be meted out to
a defendant in capital or other criminal cases * *
And in Giaccio v. Pennsylvania, 382 U.S. 399, 405,
n.8 (1966), a case on which petitioners strenuously
seek to rely, the Court carefully noted that by its
holding against a peculiar Pennsylvania statute au
thorizing a jury in its unfettered discretion to assess
costs against an acqtiitted defendant, “ we intend to
cast no doubt whatever on the constitutionality o f the
settled practice o f many States to leave to the juries find
ing defendants guilty of a crime the power to fix
punishment within legally prescribed limits. ” 11
The principal policy objection to jury sentencing
in non-capital cases seems to focus on the ju ry ’s lack
o f access to a pre-sentence report and its unfamiliar
ity with prison conditions, programs, and alterna
tives, all o f which make it difficult to make a reasoned
choice on how long a prison term to set for a particu
lar offender.14 15 16 Even at the non-constitutional level of
policy, however, these objections would not be apt in
14 See, also, Fitzgerald v. Peyton , 303 F. Supp. 467, 470
(W.D. Va. 1969), holding that Virginia’s practice of allowing
juries to impose “ such punishment as you consider just under
the evidence and within the limits stated in the Court’s in
structions” does not violate fundamental fairness or any specific
constitutional right.
16 See Jury Sentencing in Virginia, supra, 53 Va. L. Eev. at
976-979.
32
capital cases, where the choice o f alternatives— death
or life imprisonment— is more limited and where that
choice is based on common human experience and
community conscience, rather than on penological ex
pertise.16 Significantly, the 1967 Report o f the Presi
dent’s Crime Commission confined its recommendation
that jury-sentencing be eliminated to jury sentencing
in non-capital cases.17
(b) Jury-Sentencing in Capital Cases. For the
reasons which follow, the United States takes the
position that the death sentences imposed on the peti
tioners in these two eases are not invalid on any
constitutional grounds.18 To aid in the assessment of
16 The possibility o f rehabilitation and the prospect of release
are not, currently, practical concerns in a capital case, since
even with a life sentence the theoretical chance for parole,
available in some States, is usually postponed by statute for
many years and is not often, at present, actually attained.
See Powers, Parole Eligibility o f Prisoners Serving a Life
Sentence 23-45 (Mass. Correctional Ass’n 1969).
17 President’s Commission on Law Enforcement and Admin
istration o f Justice, The Challenge o f Crime in a Free Society
145 (1967).
18 There are a number o f theoretical constitutional challenges
to death sentences that are not properly before the Court.
First, Crampton’s petition for certiorari posed the question
whether the death penalty constitutes “ cruel and unusual pun
ishment” in violation o f the Eighth and Fourteenth Amend
ments, but the grant o f certiorari, 398 U.S. 936, was limited to
exclude that question. See, also, Wilkerson v. Utah, 99 U.S. 130
(1879); In re Kem/mler, 136 U.S. 436 (1890); Louisiana ex rel.
Francis v. Resweber, 329 U.S. 452 (1947) (all rejecting such
objections to the execution of the death penalty). Second, in
both petitions, questions based on Witherspoon v. Illinois, 391
U.S. 510 (1968), and involving the exclusion o f jurors opposed
to capital punishment, were raised but those too were excluded
33
the precise challenge being made to “ standardless”
jury sentencing in capital cases, we think it will prove
useful to make a brief excursion into the origins and
history o f this practice.
B y the end o f the eighteenth century, a consider
able variety of crimes carried an automatic death
sentence upon conviction. The evident harshness of
this practice, coupled with the construction of prisons
where serious felons could be securely confined to
serve a non-capital punishment, led to the reduction
in the number o f capital crimes. The treatment of
murder, however, created some special problems, since
it was then as now generally considered the most
serious type o f crime, but lawyers and juries recog
nized that not all murders deserved identical pun
ishment. W ith considerable regularity, juries preferred
to acquit certain murderers rather than to send them
automatically to their deaths.
In 1794, at the urging of distinguished reform-
minded lawyers like William Bradford, Pennsylvania
devised an apparent solution to the problem: Legis
latively dividing murder— an intentional and unjus
tified homicide— into two degrees, one defining a
by the limited grants o f certiorari, 398 U.S. 936. Third, neither
the California statutes nor the Ohio statute involved in the
instant cases present a problem under United States v. Jackson,
390 U.S. 570 (1968), since neither State provides that the death
penalty may be imposed only on a person who insists upon
trial by jury. See, generally, Cattoivay v. United States, 399 F.
2d 1006, 1009, n. 4 (C.A.D.C.), certiorari denied, 393 U.S. 987
(1968); Poe, Capital Punishment Statutes in the Wake o f United
States v. Jackson: Some Unresolved Questions, 37 G.W.L. Rev.
719 (1969).
3 4
class o f murders for which the death penalty was
provided, and the second covering murders where the
extreme penalty was thought unwarranted.19 This ap
proach sought to predict and circumscribe the types
o f aggravated murders, without any attention to or
room for mitigating factors in the particular in
stances. Pennsylvania’s legislative division, segregat
ing murders committed after premeditation and
deliberation or in the course of a felony from all
others, was copied over the years in most of the other
States.20
This approach to the problem soon proved to be
far from wholly adequate or satisfactory. The degree
device continued much of the rigidity of the earlier
common law punishment for murder— death automati
cally upon conviction—but simply narrowed the type
of crime that was subject to the penalty. Even within
that narrowed category, however, juries repeatedly
considered the inevitable death penalty inappropriate
in light of the facts o f particular ‘ ‘ premeditated” or
‘ ‘ felony-murders” .
A new way of confronting the problem then
emerged. The nature o f the difficulty was that the
community, as reflected in the jury, refused to agree
that every “ first degree murderer” should, by reason
o f an abstract legislative definition, ineluctably be
19 Pa. Laws 1794, ch. 257.
20 See, generally, Bradford, An Enquiry How Far the Pun
ishment o f Death Is Necessary in Pennsylvania 35-39, 72-74
(1795); Bedau, The Death Penalty in America 1-8 (rev. ed.
1967); A.L.I. Model Penal Code §201.6, Comment, pp. 65-66
(Tent. Draft No. 9, 1959) ; Great Britain, Select Committee on
Capital Punishment, Report IT 11, 17 (1930).
3 5
marched to the gallows. This dissatisfaction was ex
pressed through the ju ry ’s power to nullify the death
penalty on a ease-by-case method: by returning a ver
dict of guilty o f a lesser crime or by outright acquit
tal. A t stake were the integrity o f the jury system
and the societal interest in just conviction and fair
punishment; the background was the wide-spread
phenomenon of jury-sentencing in non-capital eases.
In that context, the States devised an accommodation
that in retrospect seems eminently sensible: legisla
tively eliminating the mandatory death penalty for
first-degree murder and officially sanctioning the
ju ry ’s right to determine the penalty on a case-by
case basis.
Our research indicates that Tennessee was the first
State to enact such legislation. The Act o f January
10, 1838, provided in part: 21
* * * in all cases hereafter to be tried, where
any person is convicted of murder in the first de
gree, if the jury who try him should be of the
opinion that there were mitigating circumstances
in the case, and shall so state in their verdict,
then in such case it shall be the duty of the
court to sentence the defendant to confinement
in the Penitentiary for life * * *.
This type o f statute, authorizing the jury in a
capital case to exercise its own judgment on whether
the death penalty was warranted, was quickly adopted
21 Tennessee Laws 1837-1838, ch. 29. See Gohlson v. State, 143
Tenn. 126, 223 S.W. 839 (1920).
36
in a number o f other States.22 Alabama in its 1841
Penal Code introduced such discretion; Louisiana and
Texas followed suit in 1846 and 1858, respectively,
and provided that the ju ry ’s power extended to all
capital cases, not only murder. B y 1868, when the
Fourteenth Amendment was ratified, Georgia, Illinois
and Minnesota had also added similar provisions, and
by 1878 fifteen States and territories had chosen to au
thorize their juries in capital eases to determine
whether the defendant, upon conviction, should ac
tually die for his crime. Before the end of the last
century, twenty-three States and territories plus the
federal government had enacted laws authorizing the
“ standardless” discretion attacked in the present
cases.
Except for four States that abolished capital pun
ishment in the middle o f the nineteenth century
(Maine, Michigan, Rhode Island, and W isconsin),
every other American jurisdiction has at some point
enacted a statute of this type, so that at present in
all but two o f the jurisdictions that retain capital
punishment for murder the jury determines in its
discretion whether the penalty o f death will be im
posed.23 The current statutes so providing are listed
in Appendices C and D, infra, pp. 132-137.24
22 Appendix B, pp. 128-131, infra, chronologically lists the in
troduction o f jury discretion on capital sentencing in each
American jurisdiction.
23 Both of those two exceptional States authorize the death
penalty only for murder committed while serving a life
sentence: Rhode Island makes the death penalty mandatory
in such a situation, and North Dakota permits the judge to
decide the punishment. See App. C, infra, p. 132, fn. 1.
24 Appendices E and F, infra, pp. 138-140, summarize the status
37
Furthermore, the legislative acceptance o f this type
of provision by the various States has been steady
and continuous over the last 130 years. No momentary
“ fa d ” or mere experiment in criminal procedure,
jury discretion in capital cases has been adopted in
State after State right up through recent years.
Pennsylvania, which had introduced the degree sys
tem in 1794, added jury discretion to its penal laws
in 1925.2° New York adopted the same course in
1937, with Connecticut and Massachusetts, for exam
ple, doing so in 1351, Hawaii in 1955, and the Dis
trict of Columbia in 1362.25 26
The two States whose murder statutes are being
challenged in the present cases were among the rela
tively early adherents to this legislative approach.
California first authorized jury discretion as to the
penalty for murder by the Act o f March 28, 1874.27
And Ohio enacted such a provision in 1898.28
and effect of death penalty provisions in federal civil and mili
tary statutes. Only one (military) offense carries a mandatory
death penalty (spying); all but three o f the thirty other
capital statutes leave the determination o f penalty to the trier
o f fact on the issue o f guilt, whether that happens to be the
jury, a judge, or a court martial.
25 Pa. Pub. Laws 1925, ch. 411. See Schwartz, Punishment of
Murder in Pennsylvania, in I I Royal Commission on Capital
Punishment, Memoranda and Replies to a Questionnaire 776,
777 (1952).
26 Five States, Iowa, Colorado, Washington, Oregon and
Kansas, first adopted jury discretion in capital murder cases
when they re-introduced capital punishment following vary
ing periods as “abolition” States. See Appendix B, infra,
pp. 129-130.
27 Calif. Amendatory Acts 1873-1874, ch. 508, p. 457.
28 93 Ohio Laws 223.
38
This clear pattern of legislative selection of the
very practice challenged in these cases has been com
plemented by consistent judicial approval. This Court,
for example, has for at least a century been called
upon to review convictions under these statutes and
has without exception commented favorably on them.
See, e.g., Wilkerson v. Utah, 99 U.S. 130, 136 (1879) ;
E x parte Crow Bog, 109 U.S. 556, 560 (1883); Colton
v. Utah, 130 U.S. 83, 86-87 (1889); Winston v.
United States, 172 U.S. 303, 310-313 (1899); Andres
v. United States, 333 U.S. 740, 742-744 (1948);
Spencer v. Texas, 385 U.S. 554, 557 (1967); W ither
spoon v. Illinois, 391 U.S. 510, 519 (1968).
In Colton, supra, the Court reviewed a murder con
viction and death sentence under the 1876 Utah ter
ritorial statute which made a death sentence auto
matic unless the jury recommended mercy. Failure to
advise the jury of their power under the statute to
affect the penalty was held reversible error. The
Court explained: “ The statute evidently proceeds
upon the ground that there may be cases of murder in
the first degree, the punishment for which by im
prisonment for life at hard labor will suffice to meet
the ends of public justice.” 130 U.S. at 86-87.29
In Winston, the Court had before it the 1897
amendment to the federal murder statute authorizing
the jury to direct upon conviction: “ without capital
29 See, also, Knowlton, Proile?ns o f Jury Discretion in Capi
tal Cases, 101 IT. Pa. L. Rev. 1099, 1102 (1953).
punishment” . The opinion for the Court in that
1899 decision observed (172 U.S. at 310) :
The hardship of punishing with death every
crime coming within the definition o f murder
at common law, and the reluctance o f jurors
to concur in a capital conviction, have induced
American legislatures, in modern times, to allow
some cases o f murder to be punished by imprison
ment instead of by death. That end has been gen
erally attained in one o f two ways.30
The first way discussed by the Court was the degree
system, allowing the jury “ to say whether the facts
made a case of murder in the first degree or murder
in the second degree” (172 U.S. at 312), and thus
capital or non-capital. The opinion then continues
(•ibid.) :
Second. The difficulty of laying down exact
and satisfactory definitions o f degrees in the
crime o f murder, applicable to all possible cir
cumstances, has led other legislatures to prefer
the more simple and flexible rule of conferring
upon the jury, in every case of murder, the
right o f deciding whether it shall be punished
by death or by imprisonment. This method has
been followed by Congress in the Act o f 1897.
The Act o f Congress confers this right upon
the jury in broad and unlimited terms * * *.
The Court pointed to its earlier decision in Colton,
supra, and other cases {ibid.)
as illustrating the steadfastness with which the
full and free exercise by the jury o f powers
30 See, also A-ndres v. United States, 333 U.S. 740, 752-753,
767-77 (1948) (Frankfurter, J., concurring, together with A p
pendix).
4 0
newly conferred upon them by statute in this
matter has been upheld and guarded by this
court against the possible effect o f any restric
tion or omission in the ruling and instructions
of the judge presiding at the trial.
In light of the Court’s determination to respect and
enforce the clear legislative design of allowing the
jury unfettered discretion, the trial court’s attempt
to restrict the ju ry ’s freedom was held reversible.
Although that ruling that the trial judge erred in
trying to impinge upon the ju ry ’s discretion under
a statute like the present ones does not directly affirm
the constitutionality o f such legislation, the Court’s
language indicates awareness of the wisdom of this
legislative choice (172 U.S. at 313):
The Act does not itself prescribe nor author
ize the court to prescribe, any rule defining or
circumscribing the exercise of this right; but
commits the whole matter o f its exercise to the
judgment and consciences of the jury. The au
thority of the jury to decide that the accused
shall not be punished capitally is not limited
to eases in which the court, or the jury, is of
opinion that there are palliating or mitigat
ing circumstances. But it extends to every
case in which, upon a view of the whole evi
dence, the jury is o f opinion that it would not
be just or wise to impose capital punishment.
Plow far considerations of age, sex, ignorance,
illness or intoxication, o f human passion or
weakness, o f sympathy or clemency, or the irre
vocableness of an executed sentence of death,
or an apprehension that explanatory facts may
4 1
exist which have not been brought to light, or
any other consideration whatever, should be
allowed weight in deciding the question whether
the accused should or should not be capitally
punished, is committed by the act o f Congress
to the sound discretion of the jury, and of the
jury alone.
Later, in the Andres case, the accused under sen
tence of death urged before this Court that under that
same statute the trial judge was required “ to explain
to the jury the scope of their discretion in granting
mercy to the defendant,” 333 U.S. at 742. The Court
rejected this contention, upholding the correctness of
an instruction that advised the jury simply (333 U.S.
at 743 n. 4) :
This power is conferred solely upon you and
in this connection the Court can not extend or
prescribe to you any definite rule defining the
exercise o f this power, but commits the entire
matter of its exercise to your judgment.
This type o f judicial determination not to detract
from the full sentencing discretion given to the jury
in capital cases has been uniform and consistent up
through the present. In addition, the various legis
latures have consistently chosen to adhere to this same
policy. Since 1959, when the American Law Institute
as part o f its Model Penal Code first actually pub
lished proposed “ aggravating circumstances” and
“ mitigating circumstances” designed to be included
in murder statutes and to control the ju ry ’s sentenc
4 2
ing discretion,31 a number of States have revised their
criminal codes and to one extent or another adopted
various proposals included in the Model Penal Code.32
Still other States have considered and enacted amend
ments dealing with their murder statutes.33 Yet, none
31 See A L I, Model Penal Code §201.6 (Tent. Draft No. 9,
1959). As revised, approved and promulgated by the Institute,
these criteria are now part o f § 210.6 of the Proposed Official
Draft dated 1962. This section is quoted in its entirety in
Appendix G, infra, pp. 141-145.
The National Commission on Reform of Federal Criminal
Laws in Section 3605 o f its Study Draft, o f a New Federal
Criminal Code (1970) has also proposed “ criteria” for assess
ing the punishment o f the capital crimes o f murder and treason.
This provision is set out in Appendix G, infra, pp. 148-149.
32 New criminal codes have been adopted in the following
States (by year o f effective date) : Illinois (1961), Texas (Code
o f Criminal Procedure, 1965), New York (1967), Georgia
(1969), Kansas (1970), Connecticut (1971). The pertinent cita
tions appear in Appendices C and D, infra, pp. 132-137.
Among the changes proposed by the Model Penal Code and
accepted are: bifurcation o f guilt/penalty trials in murder cases
(New York, Texas, Georgia, Connecticut), and criteria for
judges in sentencing to probation (N.Y. Penal Law § 65.00;
Conn. Penal Code §29) , or in fixing minimum prison sentences
or fines (Kan. Stat. Ann. §§21-4606, 21-4607). See, gen
erally, Sentencing Disparity: Causes and Cures, 60 J . Grim. L.
Criminol. & Pol. Sci. 182, 186-191 (1969).
The underlying premise o f the Model Penal Code’s proposals
in this area is that there is a general need for greater legis
lative control o f sentencing discretion. That premise is debat
able and the Code’s approach in this area has not generally
been followed. See Dawson, Sentencing: The Decision as to the
Type, Length, and Conditions o f Sentence 380-381 (Am. Bar
Foundation 1969).
33 See, e.g., the 1969 amendment to New Mexico’s murder
statute limiting the applicability o f the death penalty and the
1969 Nebraska amendment providing for capital sentencing by
the court after guilty plea or a jury-waived trial, as listed in
Appendix C, infra, p. 134.
4 3
of these States has found it desirable as a matter of
penal policy to adopt statutory “ standards” or “ cri
teria” to control the ju ry ’s determination whether
to impose a death sentence upon conviction o f a crime
for which that penalty is authorized. On the contrary,
even in the face of academic proposals for such stand
ards and for the elimination of jury discretion in
these cases, the legislatures o f all of these States have
unanimously concurred in preserving undiluted this
discretionary role for the jury.34 At this moment, not
a single state legislature has found it desirable or
appropriate to circumscribe the ju ry ’s weighty respon
sibility in this area.
The virtual unanimity of the jury-discretion system
in capital cases, carefully, consistently, and deliber
ately developed over more than a century, provides a
strong presumption o f its compatibility with the Con
stitution. Only last term this Court sustained the con
stitutionality of state grants o f property-tax exemp
tions to churches, relying in part upon this prudent
respect for the verdict o f history. See Wals v. Tax
Commission, 397 U.S. 664 (1970). The Chief Justice’s
opinion for the Court is instructive on this point (397
U.S. at 678) :
It is obviously correct that no one acquires a
vested or protected right in violation o f the
Constitution by long use, even when that span
34 Cf. Commonwealth v. Boss, 413 Pa. 35, 195 A. 2d 81, 86
(1963), where the court sustained a death sentence for murder
fixed after a separate penalty hearing in which the trial court
had brought the Model Penal Code criteria to- the jury’s atten
tion and then advised them that they were free to ignore them.
4 4
of time covers our entire national existence and
indeed predates it. Yet an unbroken practice of
according the exemption to churches, openly
and by affirmative state action, not covertly or
by state inaction, is not something to be lightly
east aside. Yearly fifty years ago, Mr. Justice
Holmes stated:
“ I f a thing has been practiced for two hundred
years by common consent, it will need a strong
case for the Fourteenth Amendment to affect
it. * * * ” Jackman v. Rosenbaum Co., 260 U.S.
22, 31 (1922).
Although discretion in capital cases made its appear
ance in the middle o f the last century, other eases
reflecting the same regard for history as does Walz
establish that a particular procedure o f state criminal
law need not stretch back into the colonial era in order
to merit such a presumption o f validity.35 In Spencer
v. Texas, 385 U.S. 554 (1967), the Court sustained the
validity o f a Texas statute that brought the prior
criminal record of a defendant charged with a capital
crime directly before the jury to enable it to assess his
punishment in light o f his recidivism. Referring to
“ the long-standing and wide-spread use that attend
the procedure under attack here,” the Court found it
“ impossible to say” that “ the possibility o f some col
lateral prejudice” rendered the procedure “ unconsti
tutional under the Due Process Clause.” (385 U.S. at
564). 36
36 O f course, as we have seen, the extant, related practice in a
number o f States o f allowing jury sentencing in non-capital
cases does pre-date the Constitution.
4 5
In Williams v. Florida, 399 U.S. 78 (1970), the
■Court sustained Florida’s notiee-of-alibi statute, com
menting: “ W e need not linger over the suggestion
that the discovery permitted the State against peti
tioner in this case deprived him of ‘due process’ or a
“ fair trial’.” (399 U.S. at 81). That there was a legiti
mate State interest in adhering to such a procedure
was implied from the fact that notice-of-alibi stat
utes were in force “ in a substantial number of
States” — sixteen by the Court’s count—and dated “ at
least from 1927” . (399 U.S. at 81-82).36
Moreover, the precise constitutional contentions pre
sented by petitioners in the present cases are not
novel. On the contrary, over recent years they have
become a routine ingredient in attempts to secure re
versal o f convictions accompanied by death sentences,
.since no capital statutes in the United States impose
specific conditions upon the jury ’s determination of
sentence. A fter respectful and serious consideration,
however, every American court, federal or state, that
has had occasion to pass upon the issue has concluded
36 See, also, North Carolina v. Pearce. 895 U.S. 711, 721
(1969), where the Court regarded as “ long established consti
tutional doctrine” a principle announced in 1896, which had
been followed “ for almost 75 years.”
Compare Baldwin v. New Yorh, 399 U.S. 66 (1970). There
New York City;s denial of a right to jury trial in offenses
punishable by a year in jail was held invalid. The plurality
opinion by Mr. Justice White pointed out that New York City
was the only American jurisdiction in that category. 399 U.S.
.■at 72.
M5^38S—T!®-
4 6
that the Constitution requires no such sentencing
standards for an American jury.37
This rare combination o f universal legislative ac
ceptance and uniform judicial approval must clothe
the jury discretion system with a substantial pre
sumption of constitutionality. To hold in light of this
history that an accused is denied “ due process of law”
when his sentence in a capital case is determined by
a jury exercising unimpaired discretion would neces
sarily carry with it the finding that for more than a
hundred years the legislatures o f the 46 States that
have enacted such laws, plus Congress, as well as
the federal and state courts throughout the country—
including this Court—have heretofore failed to per
ceive unfairness and arbitrariness so intense as to
violate minimum constitutional standards.
Moreover, petitioners point to no specific constitu
tional right that allegedly forbids this prevalent sys
37 See, e.g.. Petition of Ernst, 294 F. 2d 556, 560-561 (C.A.
3,1961), cert, den., 368 U.S. 917: Florida ex rel. Thomas v. Culver,
253 F. 2d 507, 508 (C.A. 5,1958), cert, den., 358 U.S. 822; Pope v.
United States, 372 F. 2d 710, 731 (C.A. 8, 1967) (en banc),
vacated on other grounds, 392 U.S. 651 (1968); Maxwell v.
Bishop, 398 F. 2d 138, 148-150 (C.A. 8, 1968), vacated on other
grounds, 398 U.S. 262 (1970); Sims v. Eyman, 405 F. 2d 439,
447 (C.A. 9, 1969); Segura v. Patterson, 402 F. 2d 249, 254
(C.A. 10, 1968) ; United States ex rel. Smith v. Nelson, 275 F.
Supp. 261, 265-266 (N.D. Calif. 1967); Bell v. Patterson, 279 F.
Supp. 760,765-767 (D. Colo.). affxl, 402 F. 2d 394 (C.A. 10,1968) ;
McCants v. State, 282 Ala. 397, 211 So. 2d 877, 880-881 (1968) ;
Bagley v. State, 247 Ark. 118, 444 S.W. 2d 567, 570 (1969); In re
Anderson, 69 Cal. 2d 613, 73 Cal. Rptr. 21, 447 P. 2d 117 (1968):
State v. Walters, 145 Conn. 60,138 A. 2d 786, 792-794 (1958), app.
dis'd and cert, den., 358 U.S. 46; Wilson v. State, 225 So. 2d 321,
324 (Fla. 1969); Miller v. State, 224 Ga. 627,163 S.E. 2d 730, 734
4 7
tem. They rely simply on the general principle of
fundamental fairness always recognized as implicit in
the Due Process Clause. Thus, we are not concerned
with a procedure that must be reassessed in the wake
o f recent constitutional developments placing a new
perspective on the meaning o f a constitutional clause
or newly holding a provision o f the Bill o f Rights ap
plicable to the States. Nor is the Court presented with
any freshly assembled data to establish that as a mat
ter o f fact the jury-discretion system operates un
fairly in practice; on the contrary, as we shall discuss
below (pp. 69-77), recent studies in this field tend
to confirm the wisdom and rationality of author
izing unencumbered jury discretion in capital sen
tencing. A ll petitioners adduce is a series o f rhetorical
constructs that fall far short of demonstrating funda
mental unfairness because they rest on ill-founded
legal assumptions and groundless factual specula
tions.
(1968); State v. Latham, 190 Kan. 411, 375 P. 2d 788, 797-799
(1962), cert, den., 373 U.S. 919; Duisen v. State, — Mo. — , 441
S.W. 2d 688, 692-693 (1969); State v. Johnson, 34 N.J. 212,168 A.
2d 1,10-11, appeal dismissed for want o f substantial federal ques
tion, 368 U.S’. 145, cert, den., 368 U.S. 933 (1961); State v. For-
cella, 52 N.J. 263, 245 A. 2d 181, 193-194 (1968); People v.
Fitzpatrick, 308 N.Y.S. 2d 18, 24 (Co. Ct. 1970); State v.
Roseboro, 276 N.C. 185, 171 S.E. 2d 886, 893 (1970); Hv/nter v.
State, — Tenn. — , 440 S.W. 2d 1,16 (1969); State v. Kelbach, 23
Utah 2d 231, 461 P. 2d 297, 299-300 (1969); Johnson v. Com
monwealth, 208 Va. 481, 158 S.E. 2d 725, 729-730 (1968);
State v. Smith, 74 Wash. 2d 744, 446 P. 2d 571, 589-590 (1969).
Cf. Andres v. United States, 333 U.S. 740, 743-744 (1948).
The Forcella, MeCants, Roseboro, and Smith cases are pending on
petitions for certiorari.
48
B . J U R Y D ISCRETION I N C A P IT A L S E N T E N C IN G SERVES A L E G IT IM A T E
G O VE R N M EN TA L IN TE R E ST
To the extent that it is necessary to examine the
affirmative justifications for the present system of
authorizing juries to exercise sentencing discretion
in capital cases without formal statutory “ standards,”
a variety o f appropriate objectives will emerge.
Flexibility is the hallmark o f modern sentencing
philosophy. The objective is to tailor the sentence, to
some extent, to the offender as well as to the offense.
W e assume that petitioners do not assert that the
Constitution forbids a general legislative policy of
providing sentencing alternatives for various crimes,
including murder. Certainly, no one would seriously
propose a return to the rigorous eighteenth century
practice o f punishing all persons convicted o f murder
with death. On the other hand, and by the same token,
the Constitution cannot be said to require that all
murderers ecpially receive life sentences (although
we do not deny the legislature’s power to make this
choice). Despite the superficial uniformity in such a
course, there is real inequality in treating identically
a variety o f persons who are different in essential
characteristics and who have committed crimes factu
ally distinguishable even if legally similar.38
Nor do we understand petitioners’ argument to be
that the jury is constitutionally incapable o f exercis
ing such discretion. Historically, as we have seen, jury
38 See Scott v. United States. 419 F. 2d 264, 282, n. 3
(C.A.D.C. 1969) (Leventhal, J., concurring). See also Stephens
v. Turner. 421 F. 2d 290, 292 (C.A. 10, 1970).
4 9
sentencing in felony cases has its roots in the colonial
period, and jury discretion in capital eases was given
with the avowed objective o f individuating punish
ment.39
Once it is conceded or established that the Constitu
tion permits sentencing discretion and allows the jury
to be the organ for exercising that discretion, the
arguments in favor o f constitutionally mandated
standards soon fall of their own weight.
One way to expose the fallacy in the arguments ad
vanced in favor o f constitutionally required “ stand
ards” is to explore the meaning of that term in this
context. A reading o f the briefs for petitioners and for
the amici supporting them reveals that despite the
frequency of the use o f the term, and despite its core
position in their constitutional contentions, there is
no consensus on what is meant, and even a good deal
o f internal ambiguity within each brief.
There are two possible meanings that could be as
signed to the terms “ standards” and “ criteria” in
these cases. One would signify an exhaustive and
exclusive definition o f the factual elements which
must be found to be present or absent as a condition
to imposing a particular sentence. This alternative
would make such “ standards” the sentencing analogues
to the formal elements of a crime. The other
possibility would be to understand “ standards” to in
clude simply an enumeration of some of the factors
that ought reasonably to be considered in determin
39 See Bedau, The Death Penalty in America 27 (rev. ed.
1967).
5 0
ing a sentence. This latter approach would furnish
essentially an informational checklist for the ju ry ’s
deliberations.40
In our view, neither o f these alternatives can lay
claim to any substantial constitutional foundation.
The former possibility, that o f constructing a defi
nition of the elements of capital as distinguished from
non-capital murders, is nothing less than regression
to the long discredited attempt to decide legislatively
in advance that a precise and rigid punishment is
to be imposed for committing a particular crime. As
such, it contradicts the trend of modern sentencing
philosophy and ignores the lesson o f our experience
with the failure of legislative grading through the
degree system.
A call for formal, binding, exhaustive, and exclu
sive elements for capital sentencing would in essence
demand that the States redefine their homicide laws
and distinguish between the types o f homicide that
must be punished with death and those that can not
be. Any freedom or flexibility within these categories
would, o f course, simply perpetuate the practice that
(on this alternative reading o f petitioners’ position)
40 To the extent that the latter meaning may be intended,
there would seem to be no significant reason why the criteria
would have to be included in a statute. A model jury instruc
tion approved by the bench or bar, or even an original charge
devised by the trial judge, would appear to satisfy this open-
ended approach, at least to the extent that it included a num
ber o f important factors and did not encourage reliance on
any irrational or illegal ones.
51
is challenged: the jury ’s discretion to select from
among authorized alternative punishments.41
Historical experience has proven that it is su
premely unwise to try, in advance of development of
the peculiar circumstances of the offense and o f the
offender, to prescribe legislatively whether the pun
ishment will be death. In this country, as we have
seen, a number o f States after 1794 legislatively
graded murders into a capital degree and a non
capital degree. The distinction rested on the premise
that murders committed after deliberation or in the
course o f committing certain forcible felonies like
rape or robbery warranted the death penalty—and
that only such homicides did. However, as Professor
Herbert Wechsler, Chief Reporter for the Model
Penal Code, has summarized:
A rigid legislative definition of the cases where
the sentence should be death has proved to be un
workable in practice, given the infinite variety of
circumstances that attend even the heinous
crimes. Therefore, it is inevitable that the jury
or the court be given the power to decide whether
the punishment should be imposed.42
41 The Model Penal Code criteria have been criticized on this
ground, that they still leave discretion to the jury. See A Study
of the California Penalty Jury in First-Degree-Murder Cases:
Standardless Sentencing, 21 Stan. L. Rev. 1302, 1422-1423
(1969).
42 Wechsler, Symposium on Capital, Punishment, 7 N.Y.L.F.
250, 259 (1961).
5 2
In another context Professor Weehsler reviewed
the reason for the failure o f the attempt to make
capital murders coextensive with premeditation:
The basic difficulty was, o f course, that no
single aspect o f mentation could provide a via
ble criterion for this purpose without refer
ence to other circumstances too complex to be
encompassed in the rule.43
In recognition o f the practical unsoundness o f the
ambitious American experiment with legislative grad-
ing,44 the British repeatedly rejected efforts to follow
the American course as essentially “ drawing an arbi
trary line” without regard for individual variations.45
A fter the most comprehensive study o f the problem
that has yet been done, the British Royal Commis
sion on Capital Punishment categorically rejected
legislative attempts to formulate distinctions between
capital and non-capital murders:
There are strong reasons for believing that it
must inevitably be found impracticable to de
fine a class o f murders in which alone the in
fliction o f the penalty is appropriate. The crux
o f the matter is that any legal definition must
be expressed in terms of objective characteristics
43 Weehsler, Codification o f Criminal Law in the United
States: The Model Penal Code, 68 Colum. L. Rev. 3425, 1446
(1968).
44 bee 3 Stephen, History of the Criminal Law of England
94 (1883): “As much cruelty, as much indifference to the life
o f others, a disposition at least as dangerous, is shown by
sudden as by premeditated murders.”
45 Great Britain, Select Committee on Capital Punishment,
Report If 169 (1930).
5 3
of the offence, whereas the choice o f the appro
priate penalty must be based on a much wider
range o f considerations, which cannot be de
fined but are essentially a matter for the exer
cise o f discretion. * * # The essence o f these
objections is that, as was said in the Home
Office memorandum, “ there are not in fact
two classes o f murder but an infinite variety
of offences which shade off by degrees from the
most atrocious, to the most excusable” ; that the
factors which determine whether the sentence
o f death is the appropriate penalty in particu
lar cases are too complex to be compressed
within the limits o f a single formula; and that
among the most important factors are the
motive o f the offence and the character and
circumstances o f the offender, which can never
be inferred from the legal quality o f his crimi
nal act.46
Thus, the Commission concluded, it is not feasible to
provide a fair, rational, and comprehensive statutory
definition o f a category o f murder exclusively and
automatically capital. Instead, the Commission recom
mended that the death penalty should continue to
apply to all cases o f common law murder unless the
jury found that there were “ extenuating circum
stances.” These circumstances, the Commission re
ported, would have to be left undefined “ for the same
46 Great Britain, Royal Commission on Capital Punishment,
1949-1953, Report If 498 (1953).
5 4
reasons for which we have found it impossible to
define degrees of murder.” 47
These conclusions, we believe, still carry great
weight, and have not, to our knowledge, been under
cut by any intervening legislative, judicial, or aca
demic developments. It is just as true today as it was
70 years ago when this Court decided Winston v.
United States, supra, that the “ difficulty o f laying
down exact and satisfactory definitions o f degrees in
the crime of murder, applicable to all possible cir
cumstances” makes reasonable a legislative prefer
ence for “ the more simple and flexible rule of con
ferring upon the jury, in every ease o f murder, the
right o f deciding whether it shall be punished by
death or by imprisonment.” 172 U.S. at 312. Con
firming this datum is the fact that a number o f States
that have recently revised their criminal codes have
abandoned the degree device altogether and instead
provided for one crime of murder which may be pun
ished by death if the jury so determines.48
47 Id., 553(b). These proposals were not adopted. Instead,
by the Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11, §§ 5, 6, Parlia
ment tried to separate capital from non-capital homicides, but
the lines drawn were generally recognized to have been utterly
arbitrary. Dissatisfaction with this attempt was one o f the
reasons for the temporary suspension o f all capital punishment
in 1965, which was followed in December 1969 by complete
abolition o f the death penalty in England.
48 See e.g., the Illinois Criminal Code o f 1961, the Kansas
Criminal Code of 1969, and the Connecticut Penal Code o f
1971, cited in Appendices C and D, infra, pp. 133,136. Cf. American
Bar Ass’n, Project on Minimum Standards for Criminal Jus
tice: Standards Kelating to Sentencing Alternatives and Pro
cedures (Tent. Draft 1967) :
“ The legislature can create institutions and programs, can
provide the system with funds and facilities, can isolate goals
55
Due process of law certainly does not compel the
States to choose a course that arbitrarily defines
crimes, simply so that sentences within the categories
will be uniform. It is no response to this point to say
that i f the States are unable to formulate such statu
tory standards then they cannot preserve capital pun
ishment. Such an argument at once proves too little and
too much. First, it begs the critical constitutional
question whether due process requires States to grade
crimes into varying degrees, with discrete penalties
automatically attaching to each degree. And second,
the argument could just as well be made—with evi
dent absurdity— in the context o f an armed robbery
conviction: i f the legislature cannot prescribe statu
tory standards to determine in advance when a five-
year prison sentence will be imposed, and when, for ex
ample, a seven-year sentence will be, then the seven-year
sentence is unconstitutional.
In either the capital or the non-capital sentencing
situation, we believe, it is appropriate to rely on the
good faith, moral responsibility, and conscientious
judgment o f the sentencing organ, whether judge or
jury. As Professor Wechsler advised the British
and objectives—but it cannot prescribe a proper sentence in
advance o f the event, (p. 54)
* * * * ❖ *
“ It would be unwise to attempt the codification of a rigid
set of principles which must be employed in an unbending
fashion in each case; such an attempt would suffer from many
of the same defects which accompany mandatory sentences set
in advance by the legislature. It would likewise be unwise to
be overly specific.” (p. 109).
5 6
Royal Commission, the existence of the jury-discre
tion system in sentencing for murder “ compensates
substantially for the difficulties o f improving the cri
teria for legislative grading.” 49 Legislative selection
o f this flexible option satisfies the requirements of
fundamental fairness under the Due Process Clause.
I f the petitioners and amici use the term “ stand
ards” in the second sense defined above— that o f an
enumeration o f various factors to which the sentenc
ing authority ought to give some thought in con
sidering what sentence to impose—their arguments
carry no more force than would an insistence on leg
islative grading.
It is this illustrative type of “ criteria” which the
American Law Institute in its Model Penal Code, and
the National Commission on Reform of Federal Crim
inal Laws in its Study Draft of a New Federal Crim
inal Code have formulated and proposed.50
Since the proponents o f the attack on “ standard-
less” jury discretion have pointed to the Model Penal
Code as illustrating a type of legislative response
available,51 it may prove useful to examine the nature
and scope of the Model Code’s “ criteria” and to
view petitioners’ constitutional arguments against
this backdrop.
49 Wechsler, Degrees of Murder and Delated Aspects o f the
Penal Law of the United States, in II Royal Commission on
Capital Punishment, Memoranda and Replies to a Question
naire 783, 785 (1952).
60 See Appendix G, infra, pp. 141-149.
51 See Brief for Petitioner McGautha, No. 203, pp. 27-28;
Brief Amici Curiae o f the N AACP et al., Nos. 203 and 204, pp.8-9.
5 7
The Reporter’s Comments to the Model Penal Code
explain that there is fundamental agreement with the
British Royal Commission “ that ‘the factors which
determine whether the sentence o f death is the ap
propriate penalty in particular cases are too complex
to be compressed within the limits of a single formu
la.’ ” 52 The Reporter continued:
W e think, however, that it is within the realm
of possibility to point to the main circum
stances o f aggravation and of mitigation that
should be weighed and weighed against each
other when they are presented in a concrete
case.53
Thus, the Model Penal Code simply undertakes to
“ point to ” some of the “ main circumstances” of ag
gravation and mitigation that “ should be weighed” in
the sentencing process. These criteria are not intended
to be exhaustive or exclusive, as is apparent from the
Code’s proposed direction that, in determining its
penalty verdict, the jury “ shall take into account the
aggravating and mitigating circumstances enmnerated
in Subsections (3) and (4 ) and any other facts that
it deems relevant * * * ” .54 The “ weighing” process
52 A L I, Model Penal Code § 201.6, Comment, at 71 (Tent. Draft
No. 9, 1959).
53 Ibid. (Emphasis in orginal.) As the emphasized passage
indicates the Model Penal Code departs from the British
Royal Commission’s position that there are too many combi
nations of aggravating and mitigating factors to permit leg
islative balancing. See 36 A L I, Proceedings 148 (1959) (re
marks o f Prof. Wechsler).
54 Section 210.6(2), Appendix G, infra, p. 143. (Emphasis
added).
58
is established by the simple direction that the death
penalty is not to be imposed “ unless it finds one of
the aggravating circumstances enumerated in Subsec
tion (3) and further finds that there are no mitigat
ing circumstances [whether enumerated or not] suffi
ciently substantial to call for leniency.” 65
Thus, the Model Penal Code’s ambitions are mod
est. The decision not to attempt to list every factor
that may appropriately be considered, and the failure
(and inability, we would think) to assign relative
weight to the enumerated factors, still leaves the jury
much of its traditional discretion.55 56 These “ criteria” ,
therefore, serve at most an educational function not
akin to standards in the strict sense.57
55 Ibid. The Study Draft o f a New Federal Criminal Code,
which is still in tentative form, contains similar criteria
adopted from the Model Penal Code (see Section 3605, A p
pendix G, infra, pp. 148-149). That proposed section would pro
vide that court and jury “ may consider the mitigating and
aggravating circumstances set forth in the subsections below.”
(Emphasis added). Still under consideration is the question
whether a finding of at least one aggravating circumstance
would be a pre-condition to a death sentence.
56 See Note, The Two-Trial System in Capital Cases, 39
N.Y.U.L. Rev. 50, 74 (1964).
The reference to “ mitigating circumstances” was made delib
erately “ open-ended” simply to carry out the objective that
the jury should not look only to aggravating circumstances.
See 36 A LI, Proceedings 204 (1959) (remarks of Prof.
Wechsler).
57 See Dawson, Sentencing: The Decision as to the Type,
Length, and Conditions o f Sentence 218 (Am. Bar Founda
tion 1969).
In this regard, we point out that there is an inherent diffi
culty in trying to use “ aggravating circumstances” and “miti
gating circumstances” as devices for establishing uniformity
5 9
The real question thus posed is whether the type
o f approach illustrated by the Model Penal Code is
not only an improvement over the present system but
is such a dramatic improvement that the failure o f the
States to adopt some such criteria leaves the present
regime so fundamentally unfair as to deny due process.58
Both o f these alternatives are subject to legitimate
doubt.
One recent study has noted that while the Model
Penal Code presupposes the need for greater legis
lative control of sentencing, this premise is debatable
in the sentencing process. Depending on the context, the same
conduct may have the quality of either an aggravating or a
mitigating element. For instance, the bloodiness of the crime
may actually not indicate bestiality and depravity, but may
instead evidence a unique combination of provocation and
mental and emotional stress.
It is inevitable, and, we believe, desirable, in a system which
depends on men and women—juries and judges—and not on
computers, in implementing the criminal process that there will
be varying assessments of apparently similar conduct, depend
ing on the peculiar facts. See Kalven & Zeisel, The American
Jury 438-439, 444-445 (1966). See, also, Speech of Sir Samuel
Eomilly to the House o f Commons (1810), reprinted in Michael
& Wechsler, Criminal Law and Its Administration 253 (1940).
Even judges sometimes find themselves unable to agree
whether a particular fact in a single case should be regarded
as in aggravation or mitigation of a capital murder. Compare
Coleman v. United States, 357 F. 2d 563, 569-570 (C.A.D.C.
1965) (en banc), with id. at 578 (Burger, Tamm, Danaher,
JJ., dissenting).
ss Indeed, it is not clear whether even adoption of criteria
such as those proposed by the Model Penal Code might not
itself lead to a challenge to such standards “ as inadequate’'.
.See Time Magazine, May 25, 1970, p. 67 (remarks o f Prof.
Anthony Amsterdam).
6 0
and the Code’s proposals in this area have not been
frequently followed.59
Many courts, in rejecting arguments about the con
stitutional need for standards to guide the jury ’s
sentencing discretion, have articulated what is im
plicit in this uniform decision by state legislatures
to omit this proposal o f the Model Penal Code from
their revised criminal codes, namely, that such stand
ards would be not only superfluous but unwise.60
Several policy judgments support this conclusion.
The very fact that the decision is one between life
and death calls, paradoxically, for caution in formu
lating abstract criteria that will not eliminate the
exercise of discretion but will diffuse the sentencing
authority’s sense o f personal responsibility for the
judgment.61 Any set of “ standards” or “ criteria” may,
by virtue o f its goal of establishing some extrinsic
determinants for the crucial decision, tend to transfer
the locus o f responsibility on this unique sentencing
decision from the living jury to the lifeless statute.
W e live in a society where, left to its own sense o f
responsibility and judgment, the American jury re
turns a capital verdict in only a fraction o f capital
trials.62 Yet it must be conceded that one or more
“ aggravating factors” — as defined by the Model Penal
68 See Dawson, supra note 57, at 380-381.
60 See, e.g., Duisen v. State, — Mo. — , 441 S.W. 2d 688, 692
(1969); Hunter v. State, — Tenn. — , 440 S.W. 2d 1, 16 (19691
61 Of. Dawson, supra note 57, at 381.
62 See Bedau, The Death Penalty in America 23 (rev ed
1967).
61
Code or any other conceivable enumeration03— accom
panies nearly every first-degree murder.63 64 Once the
legislature particularizes the “ aggravating circum
stances” that “ the State” deems sufficient to warrant
the death penalty in a specific case, there is solid
reason to anticipate a loss in sensitivity in the sen
tencing process without any corresponding gain in
rationality. Given the realities o f the well-documented
reluctance o f juries under the present system to im
pose a death sentence,65 forcing a juror to ask himself
why, in light o f the presence o f a sufficient aggravat
ing circumstance highlighted by the statute, the death
penalty should not be imposed may overthrow the
intrinsic caution of the present system.66
63 See, generally, George, Aggravating Circumstances in Ameri
can Substantive and Procedural Criminal Law. 32 U.M.K.C.L.
Rev. 14 (1964).
64 See Appellate Power to Reduce Jury-Determinecl Sentences,
23 Rutgers L. Rev. 490,528 (1969).
65 See, e.g., Bedau, The Death Penalty in America 23, 35-36
(rev. ed. 1967); Kalven & Zeisel, The American Jury 436
(1966); A LI, Model Penal Code §201.6, Comment, p. 73 (Tent.
Draft No. 9, 1959), and id., Appendix, pp. 220 et seq.
66 Under the present system such eminently “ rational” in
structions as that, in considering whether to fix a life sentence,
the jury should consider the accused’s intelligence and mental
ity, have been held grounds for reversal as unduly limiting
the jury’s right to be merciful for no reason at all. Manor v.
State. 223 Ga. 594, 157 S.E. 2d 431, 437 (1967). See, also State
v. Worthy, 239 S.C. 449, 123 S.E. 2d 835, 849 (1962) ; Wilson
v. State, 225 So. 2d 321, 324 (Fla. 1969); People v. Bandhauer,
1 Cal. 3d 609, 83 Cal. Rptr. 184, 463 P. 2d 408, 416 (1970);
State v. Roseboro, 276 N.C. 185,171 S.E. 2d 886,893 (1970), pend
ing on pet. for cert., No. 5178, O.T. 1970. Compare Winston v.
United States. 172 U.S. 303,312 (1899).
405-388— 70- -0
6 2
The Court of Appeals for the Tenth Circuit recently
made this point:
It is axiomatic that the line between contem
porary community values and the penal sys
tem is filled by the ju ry ’s being allowed to be
reflective of prevailing social thought. To assert
that the adoption o f rigid guidelines seeking
to control the jury in this respect, thereby sub
stituting merciless standards for present day
flexibility, is compelled by due process is clearly
untenable.67
This last observation brings us to the final justi
fication we deem it necessary to advance as a per
missible basis for the present system of “ standard
less” sentencing: that a State may reasonably find
that any set of statutory criteria would unduly stifle
or muffle the voice o f the “ contemporary community”
speaking through the jury on the question whether a
particular member o f society should pay the supreme
penalty for his murder.
Historically, as we have seen, it has been thought
appropriate to entrust this momentous decision “ to
the judgment and the consciences of the ju ry ” sum
moned to try the accused’s fate. Winston v. United
States, supra, 172 U.S. at 313. This allocation of
sentencing responsibility meshes neatly with the “ in
sistence upon community participation in the deter-
67Segura v. Patterson, 402 F. 2d 249, 254 (C.A. 10, 1968).
See, also, Comment, The Supreme Court and Capital Punish
ment—From Wilkerson to Witherspoon and Beyond, 14 St. L.
U.L. Rev. 463, 483 (1970) : “ It is doubtful that a detailed list of
predetermined standards could be as humane and flexible as
a jury in reflecting the changing standards o f society.”
6 3
initiation o f guilt or innocence” that underlies our
national commitment to the jury system. See Duncan
v. Louisiana, 391 U.S. 145, 156 (1968). As the Court
explained it only last Term in Williams v. Florida,
,399U .S .78,100 (1970),
the essential feature o f a jury obviously lies
in the interposition between the accused and
his accuser o f the common-sense judgment of
a group of laymen, and hi the community par
ticipation and shared responsibility which re
sults from that group’s determination o f guilt
or innocence.
This same philosophy animates the determination to
commit the decision whether a convicted murderer
should be executed to the “ common sense judgment of
a jury o f his peers” . Baldwin v. New York, 399 U.S.
66, 72 (1970). Jury discretion on capital punishment
reflects the policy that the death penalty should repre
sent the sanction o f the community, acting through the
community’s surrogates in a particular case. The jury
in a capital case is society in microcosm, deciding the
fate of one of its members. Thus last term in Williams
the Court expressly recognized that the fact that no
State provides for less than twelve jurors in a capital
case suggests that such a large body is “ used as a
means of legitimating society’s decision to impose the
death penalty” . 399 U.S. at 103.
Criteria legislatively codified in advance are not a
constitutionally necessary ingredient in this system.
Any attempt to draw a parallel with our system’s in
sistence on explicit and formal definition o f elements
o f criminal conduct to guide the jury ’s guilt determi
6 4
nation is insupportable. The fixing o f a sentence is
“ different in kind from a finding that the defendant
committed a specified criminal offense” . Witherspoon
v. Illinois, 391 IT.S. 510, 521 n. 20 (1968). The former
inquiry involves the adjudication whether the accused
has done something for which he may be punished;
historical practice and fundamental fairness demand
that the accused have had advance warning o f the
precise contours o f lawful behavior and also that the
jury be advised exactly what it is the law has pro
scribed. Those are the dual policies protected by the
constitutional prohibition against “ vagueness” in sub
stantive criminal statutes. But in the sentencing deter
mination, the accused stands convicted o f crime and
the question is what course society should take with
him. That decision inherently and emphatically calls
for the making of an individuated value judgment—
and our basic assumptions about the jury system im
pel the conclusion that it is fundamentally fair to let
that critical decision be made, without more, by his
assembled peers.
The fairness o f this course seems all the more clear
today, when courts, statutes, and the Constitution
itself assure that it will be a fairly constituted jury o f
his peers that tries and sentences the accused. Now
settled is the principle that the federal Constitution
guarantees that jury lists must be drawn from a source
that “ reasonably reflects a cross section o f the popula
tion suitable in character and intelligence for that
civic duty” . Carter v. Jury Comm’n o f Greene County,
396 U.S. 320, 332—333 (1970). To assure compliance
with this constitutional command in the situation
6 5
where in actuality it may be most crucial, this Court
has reacted sternly to any serious possibility that
Negroes are systematically excluded from grand or
petit juries. See, e.g., Coleman v. Alabama, 389 U.S.
22 (1967).
And in Witherspoon v. Illinois, supra, the Court
pointed out that juries in capital eases today are
“ [gjuided by neither rule nor standard” and ex
plained the essence of the jury ’s function in this type
o f case (391 U.S. at 519) :
a jury that must choose between life imprison
ment and death can do little more— and must
do nothing less—than express the conscience
o f the community on the ultimate question of
life or death.
It was because of the ju ry ’s role as representatives
of society at large in a specific case that the Court
held that the Constitution forbids deliberate exclu
sion from a capital jury o f members o f a substantial
subgroup in our country—those with conscientious
scruples about the death penalty. The precise rea
soning is highly pertinent here (391 U.S. at 519) :
And one of the most important functions any
jury can perform in making such a selection
is to maintain a link between contemporary
community values and the penal system— a link
without which the determination o f punish
ment could hardly reflect “ the evolving stand
ards of decency that mark the progress o f a
maturing society” . Trop v. Dulles, 356 U.S. 86,
101 (opinion o f The Chief Justice, joined in
6 6
by Mr. Justice Black, Mr. Justice Douglas,
and Mr. Justice W hittaker).68
W e need not dwell on the point that Witherspoon
would be a superfluous exercise if it does not imply
that jury sentencing discretion without “ rule or
standard” is compatible with the Due Process Clause
i f there is no conscious attempt to make the jury
something less than a random cross-section o f the
community. Even apart from the inevitability o f such
an inference, we believe it is a legitimate policy for
a State, like California or Ohio, to conclude that it
should maximize the freedom of the individual jury
to express the community’s contemporary judgment
on the severity o f the penalty merited by a particular
defendant. I f it selects this policy a State, like Cali
fornia or Ohio, can rationally decide not to volunteer
any abstract and sterile “ criteria” that might incline
the jury away from the death penalty or toward it.
C. JU R IE S C A S A N D DO FUNCTION" R A T IO N A L L Y W IT H O U T E X P L IC IT
LE G ISLATIV E STANDARDS ON C A P IT A L S E N T E N C IN G
Implicit in the foregoing discussion is the basic
assumption that the jury acts rationally in dis
charging its functions. Certainly this is necessarily
assumed in connection with the jury ’s ascertainment
o f guilt. This Court has never impugned the validity
o f the assumption that, at least when screened from
prejudicial pressures like legally inadmissible but
68 On the evolving community attitude toward capital pun
ishment, see The Capital Punishment Controversy, 60 J. Crim. L.,
Criminol. & Pol. Sci. 360 (1969).
6 7
‘ ‘powerfully incriminating extrajudicial statements” , eo
the jury can be trusted to decide the controversy
reasonably, conscientiously, and intelligently. The
Court has carefully warned that it would be “ extrava
gant in the extreme” to take eases like Jackson v.
Denno, 378 U.S. 368 (1964), “ as evincing a general dis
trust on the part o f this Court of the ability of juries to
approach their task responsibly and to sort, out discrete
issues * * Spencer v. Texas, 385 U.S. 554, 565
(1967) . Later, in Bruton v. United States, supra, the
Court expressly reaffirmed its view that, except in rare
situations like the one there dealt with, “ this reliance
[on the ju ry ’s ability] is justified” . 391 U.S. at 135.
Indeed, in Duncan v. Louisiana, 391 U.S. 145
(1968) , in holding that the Sixth Amendment’s guar
antee o f trial by jury in serious criminal cases applies
to the States through the Fourteenth Amendment, the
Court considered and repudiated many of the same
allegations o f jury irresponsibility and capriciousness
that are explicit or implicit in the arguments of peti
tioners and the amici supporting them in the present
cases (391 U.S. at 157) :
In addition, at the heart of the dispute have
been express or implicit assertions that juries
are incapable of adequately understanding evi
dence or determining issues of fact, and that
they are unpredictable, quixotic, and little
better than a roll o f dice. Yet, the most recent
and exhaustive study of the jury in criminal
cases concluded that juries do understand the 69
69 Bruton v. United States, 391 U.S. 123, 135 (1968); see, also,
Jackson v. Denno, 378 U.S. 368 (1964).
6 8
evidence and come to sound conclusions in most
o f the cases presented to them and that when
juries differ with the result at which the judge
would have arrived, it is usually because they
are serving some of the very purposes for which
they were created and for which they are
now employed. [Emphasis added.] 70
The argument that “ standardless” discretion allows
the jury to fix a death sentence out of whim, igno
rance, or bigotry proceeds in blind disregard for the
actual mechanisms of jury room deliberations. That
argument unfairly assumes that, on this most serious
decision, twelve jurors who have been carefully
screened by defense counsel will silently cast their
ballots for their own private reasons without refer
ence to or regard for the views o f their fellow jury
men. On the contrary, w7e submit, as the records of
the deliberations in the instant cases strongly sug
gest, even when the evidence o f guilt is clear and
overwhelming, capital jurors take the time to dis
cuss and debate amongst themselves the reasons why
the defendant should or should not be executed for
his crime. It borders on the fatuous, in our view, to
suspect that twelve “ good men and true” , carefully
70 Citing Kalven & Zeisel, The American Jury (1966). We
discuss the Kalven & Zeisel findings in this regard in more
detail infra, pp. 70-73.
Nevertheless, despite these judicial reaffirmations and despite
the factual evidence, there remain critics who insist that juries
are so jaded by prejudice and caprice that even sentencing
standards would be o f no avail. See, e.g., Goldberg & Der-
showitz, Declaring The Death Penalty Unconstitutional, 83
Harv, L. Rev. 1773, 1793-1794 (1970).
69
selected for their integrity and responsibility, will
arrive at a capital verdict that is either thoughtless
or capricious, rather than the expression of commu
nity consensus in microcosm.71
As the New Jersey Supreme Court recently stated:
Here, the Legislature committed the decision
upon punishment to twelve jurors, to be made
upon and after a consideration of all the evi
dence. A reasoned judgment can be reached
upon an appraisal o f the total circumstances
even though no one can articulate in advance
a detailed list of conceivable factors or their
relative weights.72
The hard evidence o f the workings o f our present
system confirms in fact what has been repeatedly
71 See State v. Smith, 74 Wash. 2d 744,446 P. 2d 571, 590 (1969),
pending on pet. for cert., No. 5034, O.T. 1970.
See also the testimony of Mr. Justice Frankfurter before the
British Royal Commission on Capital Punishment in 1950,
reprinted in Frankfurter, O f Law and Men, 82 (Elman ed.
1956), speaking o f the jury in a capital case:
“ On the whole, not only do they express a rough kind of
popular feeling about conduct, but for the most part I think
we can trust twelve people on a jury at least as well as
judges as to motives, for judges are rather removed from every
day activities and on the whole are bound to be so by their
calling.”
O f course, to the extent the jurors may not agree on the
same precise reason why the defendant should or should not
receive a capital sentence, the situation is indistinguishable
from the guilt determination where in agreeing on the ultimate
question the individual jurors may have travelled different
paths. Nevertheless, it is the arrival at consensus after delib
eration that makes the verdict, whether on guilt or punishment,
a fair and probably accurate determination.
72 State v. Forcella. 52 N.J. 263,245 A. 2d 181,194 (1968), pend
ing on pet. for cert., No. 5011, O.T. 1970.
7 0
affirmed in theory: that juries do in concrete cases
follow rational sentencing patterns without refer
ence to any statutory criteria.
In the early 1950’s, the British Royal Commission
on Capital Punishment conducted an extensive can
vass o f the American approach to capital sentencing.
W e have already noted that the Commissi on con
cluded that “ [n ]o formula is possible that would pro
vide a reasonable criterion for the infinite variety of
circumstances that may affect the gravity o f the crime
of murder” , but that “ [d] iscretionary judgment on
the facts of each case is the only way in which they
can be equitably distinguished.” 73 The Commission
then proceeded to recommend adoption o f the Ameri
can system o f jury discretion.74 This recommendation
was made, however, only after the Commission was
satisfied that the American experience had demon
strated that, even when the penalty decision is en
trusted to the “unfettered discretion” of the jury,
“ they can be relied on to exercise it reasonably in all
but exceptional cases.” 75
Other more recent studies confirm this assessment.
Professors Harry Kalven Jr. and Hans Zeisel, in
preparing their massive study, The American Jury
(1966), analyzed in depth the workings o f over 3,500
73 Royal Commission on Capital Punishment 1949-1953, Re
port If 595 (1953).
74 Ibid.
75 Id. f 594. Mr. Justice Frankfurter had testified before the
Commission: “ May I say, with all respect, I do not under
stand the view that juries are not qualified to discriminate
between situations calling for mitigated sentences.” See Frank
furter, O f Law and Men 87 (Elman eel. 1956).
71
ju ry trials. Their ultimate conclusion was a reaffirma
tion o f the practical reliability o f the jury system.
W ith remarkable regularity, they found, the ad hoc
jury decides the case the way the experienced trial
judge would have.76 The authors posed three explana
tions to explain why the jury actually comes so close
to deciding in accordance with abstract norms (p.
498) :
* * * [F irst], the official law has done pretty
well in adjusting to the equities, and there is
therefore no- great gap between the official values
and the popular. Again, the group nature of
the jury decision will moderate and brake ec
centric views. Lastly, the*jury is not simply a
corner gang picked from the street; it has been
invested with a public task, brought under the
influence o f a judge, and put to work in solemn
surroundings.
The final assessment of the ju ry ’s performance, in
light o f the empirical data, is this (ib id .):
The jury thus represents a uniquely subtle
distribution o f official power, an unusual ar
rangement o f checks and balances. It repre
sents also an impressive way o f building discre
tion, equity, and flexibility into a legal system.
The data on jury behavior in capital cases illustrate
this rationality and judgment. The two types of situ
76 And to the extent there is disagreement, the jury is eight
times more likely to opt in favor o f the defendant than is the
judge (p. 376), either because o f its more stringent applica
tion of the reasonable-doubt standard or because o f its rec
ognition of particular “equities” not officially accommodated
by the law. See, e.g., pp. 107-116, 182-190, 300-305, 494-495.
7 2
ations that exist, one where judge and jury would
agree on the death penalty, and the other where they
would not, both seem to indicate that statutory
“ standards” would be superfluous. In the former ease,
where judge and jury agree that the death penalty
should be imposed, it is because the obvious factors
listed in the Model Penal Code as generally in
“ aggravation” 77 are actually present and are found
to preponderate in favor o f the death penalty. In
those situations where there is disagreement— and in
the event o f disagreement the jury is found to be
somewhat more lenient (p. 436)— there are present
one or more o f the rather obvious “ mitigation” fac
tors listed in the Code, such as provocation, emotional
instability, mental abnormality, or mere vicarious par
ticipation in a killing actually committed by someone
else (pp. 439-445).78 The fact o f disagreement in the
face o f the presence o f such factors simply illustrates
that a value-judgment must be made in weighing the
significance of mitigating circumstances against ag
gravating circumstances. This evaluation is an in
herent part o f the jury ’s deliberation on penalty, and
seems to be performed satisfactorily without external
statutory enumeration. Certainly, it must be conceded
77 Such factors include peculiar heinousness, multiple murder,
concurrence with other vicious felony (pp. 437-439).
78 The survey demonstrated that the “ jury’s sense o f equity”
emerged quite clearly in the felony-murder context where the
jury tolerates the “rigidity” of that rule in fixing guilt, but
“ rebels at imposing the death penalty for the vicarious crim
inal responsibility o f the defendant” who did not actually kill
the victim (p. 443 & n. 18). This distinction was evidently
drawn by the jury in the McGautha case now before the Court,
7 3
to be impossible to assign in advance some relative
quantitative weight that various circumstances should
be accorded in a particular case. Since this is so, and
since juries do at present make their penalty deter
minations in light o f “ aggravating” and “ mitigating”
circumstances that become evident in the concrete
case, we see utterly no factual basis for petitioners’
argument that only the formulation o f statutory
“ criteria” can supply fundamental rationality to the
ju r y ’s sentencing decision.
The other major recent study of the workings of
the modern jury system was conducted by the Stan
ford Law Review and focused on the precise question
now before the Court: whether juries charged with
the responsibility for fixing punishment in capital
eases behave irrationally in the absence o f statutory
standards. See A Study o f the California Penalty
Jury in First-Degree-M urder Cases: Standardless
Sentencing, 21 Stan. L. Rev. 1302 (1969). That sur
vey considered all California cases in which first-
degree murder verdicts were returned from 1958
through 1966, some 238 cases (pp. 1306, 1310). In
order to make the study as informative and inquisi
tive as possible, the authors investigated and analyzed
178 separate variables that might have entered into
the penalty decision in each case (see pp. 1317, and
1471-1476 [listing the variables]). The ultimate con
clusion reached, apparently to the surprise and disap
pointment o f the student Editors, was that there are
“ definite patterns o f jury decisionmaking, precluding
the possibility that juries make their decisions wholly at
random” , and that “ [m ]ore importantly, the discovery
7 4
of variables that by themselves affect the penalty deci
sion clearly indicates standards o f decisionmaking’ ’
even without explicit statutory criteria (p. 1419). On the
key question whether the patterns actually revealed
indicate that juries follow any irrational or illegal
standards— like race— , the conclusion was a resound
ing No (pp. 1346, 1366-1367, 1417-1420). On the con
trary, jurors under the present system do indeed
follow patterns which “ are rational in terms of, say,
the Model Penal Code” (p. 1429).19
For instance, the Model Penal Code enumerates as 79
79 The one asserted exception to this finding o f rationality
was the conclusion that juries appear to discriminate along
economic lines, in that blue-collar murderers were somewhat
more likely to receive the death penalty than white-collar mur
derers (p. 1419). This was the only “ factual” basis to which the
student authors could point as indicating that “ standardless”
sentencing should be abolished (pp. 1420, 1421, 1429, 1431). It
is not clear how this conclusion can be reconciled with the
authors’ own recognition that a set o f criteria like those in the
Model Penal Code could not in any event preclude a bias-
minded jury from making an unreviewable decision to “ aggra
vate” or “ mitigate” along impermissible lines (pp. 1422-1423).
However, the validity o f even this single finding o f irration
ality was questioned by Prof. PTarry Kalven Jr., who wrote
the Preface for the student piece. On the basis o f his years o f
experience with the American jury, Prof. Kalven commented:
“ I am not persuaded that this is an expression o f simple
class bias and not a reflection o f a more subtle concern with
personality and character.”
Professor Kalven further explained:
“ I would suggest also that the authors risk being corrupted
somewhat by their passion for turning their findings into con
stitutional arguments against the death penalty. It keeps them
from being speculative enough about the mystery they are
inquiring into.”
Kalven, A Study of the California Penalty Jury in First-
Degree-Murder Cases: Preface, 21 Stan. L. Kev. 1297, 1300, 1301
(1969).
7 5
“ aggravating circumstances” (see Section 210.6(3),
App. Ct, infra, p. 144) : a prior record o f violent felo
nies; commission o f more than one murder on the
same occasion; and killing while resisting arrest or
committing a forcible felony. Without the existence of
a formal codification o f such factors, juries exercising
their innate common sense 80 recognized, assessed, and
applied these factors in concrete cases. Thus, the most
significant impact on whether the death penalty was
selected came from whether the defendant had a prior
felony record (pp. 1326-1327, 1389-1390, 1412). The
incidence o f the death penalty also varied directly with
the number of victims actually killed or wounded (p.
1351, 1398). And a murder committed while resisting
arrest was recognized as aggravated (pp. 1354-1355),
as was a killing during the course of another felony,
like kidnapping or rape (p. 1352,1401).81
On the other hand, the Model Penal Code spells
out as “ mitigating circumstances” the lack o f prior
criminal history, the effect o f extreme mental or
emotional disturbance, vicarious participation in a
killing committed by another, and diminished mental
capacity. Here again, the jury required no such ex
trinsic enumeration to recognize the potential sig
nificance o f such factors. Thus, the cleaner the
defendant’s prior record, the less likely he was to
be condemned to death (pp. 1389-1390). So too, severe
provocation or stress reduced the likelihood o f the
80 See Baldwin v. New York^ 399 U.S. 66, 72 (1970).
81 Notably, one factor that the Model Penal Code would point
to as “ aggravating”-—exceptional bloodiness—is not assigned
any such significance by juries under the present system (p.
1357).
7 6
death penalty (pp. 1404-1406, 1408). I f the killing
was actually committed by a co-participant in the
crime, the jury was exceedingly unlikely to return a
death verdict (pp. 1348, 1398). And the Code’s con
cept of diminished responsibility was found to be
reflected in practice by the reduced incidence o f capi
tal verdicts against murderers who had, for instance,
consumed some alcohol before committing the crime
(pp. 1357-1358, 1389).
The two cases now before the Court illustrate the
accuracy o f those findings o f jury rationality even
in the absence o f extrinsic standards. When the jury
refused to exercise its prerogative under Ohio law
to recommend mercy for James Edward Crampton,
it knew him to be a habitual criminal who had spent
much of his adult life in prison, a man who had not
benefited from prior confinement in prison or treat
ment in hospitals. W ithin the span of a few days
prior to murdering his wife he had embarked on a
one-man interstate crime wave demonstrating extra
ordinary disregard for the law. The crime itself was
obviously cold-blooded murder, the culmination of
months of threats and the product o f a clear design
to obtain and use a lethal weapon. The killing was
completely unprovoked, while the victim was helpless.
And on the other hand, the evidence failed to demon
strate anything in support o f Crampton’s insanity
defense beyond a purely sociopathic condition— an an
tagonism to the norms of society.
htor is there any more room to speculate that the
‘standardless” sentencing o f Dennis Councle Mc-
Gautha was irrational. Rather, the jury seems to have
7 7
been eminently reasonable in drawing the distinction
it did in fixing a life sentence for co-defendant
Wilkinson and a death sentence for McGautha. In
terms of all the aggravating and mitigating circum
stances enumerated by the Model Penal Code and
actually sensed and applied by modern juries, Mc
Gautha and his co-defendant stood poles apart. P er
haps most dramatic was the ju ry ’s persistent effort
to determine which o f the two men had actually fired
the fatal shot. McGautha argues that this inquiry was
“ immaterial to the question o f their legal responsibil
ity for the crime charged” .82 Legally, o f course, both
men were guilty o f felony-murder. But as the Model
Penal Code suggests, and as the studies by Kalven
and Zeisel and by the Stanford Law Review dem
onstrate, it does indeed make sense on the penalty
question to treat a man who is in fact only a robber
differently from one who is in law and in fact a
killer.83
Thus, juries in general, as typified by the juries
in the instant cases, do follow rational patterns in
deliberating the fateful question o f which murderers
should die for their crimes and which should not.
There is simply no factual basis for the argument
that statutory standards are constitutionally neces
sary to insure the fairness o f these deliberations.
82 Brief for Petitioner McGautha, No. 203, p. 7.
83 See, also, People v. Hicks. 287 N.Y. 165, 170, 38 N.E. 2d
482, 485 (1941) (the jury in aMelony-murder ease may tailor
the penalties “ to the varying degrees o f moral guilt of the
pei’sons involved in the same crime” ).
405-388— 70------ 7
7 8
D. T H E PR E SE N T S Y S T E M OF J U R Y D ISCR E TIO N I N C A P IT A L S E N T E N C IN G
DOES N O T V IO LA TE A N Y C O N S T IT U T IO N A L L Y PROTECTED IN T E R E ST OF
A N ACCUSED
Petitioners’ principal thrust is that “ standardless”
jury discretion in capital sentencing is fundamentally
unfair because it allows juries to be arbitrary and
capricious when left to their own devices. W e have
seen that this contention finds no support in law or in
fact. But in the course o f pressing the argument, peti
tioners refer to certain other “ rights” which are al
legedly infringed by the State’s decision not to
establish a set o f statutory standards. These claims,
however, rest on equally shaky foundations.
1. The argument is made that the absence o f official,
published standards deprives every person charged
with a capital offense o f notice o f what factors are
going to be considered in determining his punishment
upon conviction. Such a contention proceeds on the
assumption that defense counsel (and indeed the
prosecutor) lack the same common sense that ani
mates the jury, for it rather naively supposes that
counsel cannot predict with some degree o f relia
bility what factors in his case are likely to appeal to
the jury he has helped to select (and thus should he
stressed) and which are likely to offend it (and thus
should he muted).
In any event, this “ notice” point ignores the settled
constitutional principle that when a pure question of
sentencing is involved— including capital sentencing—
the accused is not entitled to notice o f the factors
that will be considered, or to a hearing on their
weight, or to an opportunity to litigate those factors
7 9
or others. See, e.g., Williams v. New York, 337 U.S.
241, 245-246 (1949) ; Williams v. Oklahoma, 358 U.’S.
576, 583-584 (1959).84 In accordance with this settled
rule, this Court and lower federal courts invariably
agree that a defendant has no right to examine and
litigate the pre-sentence report on which his sentence
will he based.85
2. A second subordinate argument advanced in
support of the need for statutory standards is that
without such formally defined factors it is impossible
to review the ju ry ’s penalty decision. This contention
is doubly deficient. First, it begs the critical question
whether the jury is constitutionally obliged to fix a
penalty according to some set o f pre-determined cri
teria. And second, and perhaps more basic, this posi
tion has as its m ajor premise the notion that the Con
stitution guarantees a right o f review o f the ju ry ’s
penalty verdict. This premise is demonstrably false.
As was stated in Williams v. Oklahoma City, 395
U.S. 458, 459 (1969), this Court has “ never held that
the States are required to establish avenues o f appel
84 The holding in Williams v. New York on this point was
explicitly reaffirmed in Speeht v. Patterson, 386 U.S. 605, 608
(1967). Cf. Solesbee v. Balkeom, 339 U.S. 9, 12-13 (1950),
holding that due process does not guarantee a person under
sentence o f death a right to an adversary hearing or an op
portunity to present evidence in support o f a request for ex
ecutive clemency.
85 See, e.g., Gregg v. United States, 394 U.S. 489, 492 (1969);
United States v. Kee Ming Hsu, 424 F. 2d 1286, 1291 & n. 1
(C.A. 2, 1970); United States v. Chapman, 420 F. 2d 925,
926 (C.A. 5, 1969); United States v. Trigg, 392 F. 2d 860,
864 (C.A. 7), certiorai'i denied, 391 U.S. 961 (1968); United
States v. Gross, 416 F. 2d 1205 (C.A. 8, 1969), certiorari de
nied, 397 U.S. 1013 (1970) ; Cook v. Willingham, 400 F. 2d 885
(C.A. 10,1968).
8 0
late review.” See, also, M cKane v. Durston, 153 U.S.
684, 687 (1894). Indeed, in Andrews v. Schwarts, 156
U.S. 272, 275 (1895), the Court specifically rejected
the claim that due process should be held to guaran
tee a right of appeal in a capital case.
And even when appeals are allowed, there is no
constitutional compulsion to broaden the scope of
review to include the sentence. Few states currently
authorize appellate review7 of sentences.86 Similarly,
in the federal system, this Court and the lower fed
eral courts have long expressed inability, in the
absence o f specific statutory authority, to review a
sentence that is within the maximum limits fixed by
lawr. See, e.g., Gore v. United States, 357 U.S. 386,
393 (1958) ; Scott v. United States, 419 F. 2d 264, 266
n. 2 (C.A.D.C. 1969).87
It would seem to follow then that the Constitution
cannot be said to require the formulation o f stand
ards for capital sentencing in order to facilitate
review of the sentencing determination when the Con
stitution does not require the review itself and most
jurisdictions do not authorize it. Even where review
by the trial judge or by an appellate court is author
86 See President’s Commission on Law Enforcement and A d
ministration o f Justice, Task Force Report: The Courts 25
(1967).
87 See, also, Weigel, Appellate Revision o f Sentences: To
Make the Punishment F it the Grime, 20 Stan. L. Rev. 405,
411 (1968).
The National Commission on Reform o f Federal Criminal
Laws, in its Study Draft o f a New Federal Criminal Code
(1970), proposes amending 28 U.S.C. § 1291 to authorize courts
o f appeals to review, reduce, or set aside a criminal sentence
(p. 311).
81
ized, we can perceive no reason why the election to
permit that review must carry with it the enumeration
o f criteria to which the primary sentencing authority
is to look. Indeed, where review is allowed it may he
more desirable to avoid the formulation of sentencing
standards; such standards might tend to discourage
the reviewing court from exercising independent dis
cretion i f it found “ some” evidence in support o f one
or more “ aggravating circumstances” — almost an in
evitable situation in a first degree murder case.88 Thus,
even if it opts to permit review of the death sentence,
the State has a legitimate interest in not attempting
to codify sentencing considerations.
3. Finally, there are some cryptic references to the
Equal Protection Clause as a constitutional basis for
requiring standards. W e have already seen that juries
do, without statutory standards, follow general pat
terns in considering certain types o f circumstances
as normally o f an aggravating nature and others as of
a generally mitigating tone. It is true that a person
convicted o f a first-degree murder that appears to be
similar to the crime committed by another person
may receive the death penalty while the other per
son is sentenced to life imprisonment, or vice versa.
A t most this indicates that different juries— or judges
—may assess similar factors differently or accord
them different relative weight. This occasional dis
parity is inherent in any system that depends on hu
88 The Appendix to California’s Respondent’s Brief in the
McGautha case, No. 203, shows that every death case before the
California Supreme Court in the past five years involved at least
one “ aggravating circumstance.” Compare State v. Maloney, 105
Ariz. 348, 464 P. 2d 793, 805 (1970), reducing a death sentence to
8 2
man judgments in administering the law, and there is
little reason to suppose that the addition o f statutory
standards to the equation could or would affect the
assessment in a particular case. But apart from that,
the similarity o f certain circumstances surrounding
two murders may mask the existence o f substantial
diffences either in other aspects o f the crime or in the
respective defendants’ backgrounds. ISTo principle of
equal protection of the laws is offended by imposing
different sentences in such a context. Different pun
ishments for the “ same offense” can constitutionally
be justified on the basis o f the inevitable distinguish
ing circumstances. It is certainly true that no two
murders and no two murderers are the same, and the
Equal Protection Clause can not require that they be
treated identically.89 There can be no invidious dis
crimination or denial o f equal protection when the
sentencing “ result may depend upon a particular com
bination of infinite variables peculiar to each individ
ual trial.” North Carolina v. Pearce, 395 U.S. 711,
722 (1969). There is no logical, legal, or factual nexus
between “ standardless” sentencing under a statute
neutral on its face and any denial of equal protection.
As with all other constitutional challenges proposed
by petitioners against the present sentencing system,
this one too must fail.
life imprisonment in accordance with statutory authority to do so
when the court finds that “ the, punishment imposed is greater than
under the circumstances o f the case ought to be inflicted.”
89 See Howard v. Fleming, 191 U.S. 126, 135 (1903); >Step
hens v. Turner, 421 F. 2d 290, 292 (C.A. 10, 1970). Cf. John
son v. United States, 225 U.S. 405, 417 (1912) : “ There is cer
tainly nothing anomalous about punishing the crime o f mur
der differently in different jurisdictions.”
8 3
I I
NEITHER THE PRIVILEGE AGAINST SELF-INCRIMINATION NOR
THE DUE PROCESS CLAUSE REQUIRES SEPARATE TRIALS ON
THE ISSUES OF GUILT AND PUNISHM ENT IN EVERY CAPITAL
CASE
Petitioner James Edward Crampton raises an addi
tional constitutional contention in attacking his death
sentence. He contends that Section 2901.01 o f the
Ohio Revised Code under which he was tried and
convicted o f first-degree murder impermissibly im
pinged upon his privilege against self-incrimination.
Under that statute the jury determining guilt simul
taneously has the responsibility for deciding whether,
upon conviction, the accused’s punishment should be
reduced to life imprisonment in lieu o f the death
penalty that otherwise automatically attaches. The
essence o f petitioner’s contention is that this statu
tory scheme confronts an accused with an unreason
able dilemma: he must either waive his privilege
against self-incrimination by testifying before the
jury prior to its determination o f his guilt or he must
forego an opportunity to explain why, i f convicted,
he should receive mercy.90
Petitioner casts his argument in favor o f a consti
tutional requirement o f bifurcated trials in capital
cases solely in terms o f protecting the privilege
against self-incrimination.91 The amici curiae sup
porting the same objective, however, expand the pur
ported constitutional basis for it by also relying on
90 Since California provides for separate trials on the guilt
and punishment questions, the bifurcation issue does not arise
in the McGqutha case, No. 203.
91 See Brief for Petitioner Crampton, No. 204, pp. 9-19.
8 4
the requirements o f fundamental fairness under the
Due Process Clause.92 It is the view of the United
States that neither o f these constitutional principles
compels the adoption o f bifurcated trials in capital
cases or invalidates a death sentence imposed after
an otherwise fair unitary trial.
A . T H E U N IT A R Y T R IA L IS T H E E STA B LISH E D A N D APPROVED M ODE FOR
EVE N C O M P L E X C R IM IN A L CASES
W e preface our discussions o f the precise constitu
tional issues presented with a brief review o f the
place o f the bifurcated trial in our jurisprudence.
It is easy to conceive o f a variety o f criminal
prosecutions where a number o f complex issues arise
and where the accused may wish to be able to present
defenses in addition to and sometimes inconsistent
with a bare “ not-guilty” stance. Frequently such de
fenses are also inconsistent with each other. Hence, it
might be to the defendant’s tactical advantage to have
the trial subdivided, so that the jury could pass upon
his alibi defense, for instance, before he falls back
on a claim of self-defense or insanity. In no situation
heretofore, however, has an accused been able to show
a constitutional basis for imposing his preference.
As this Court noted not long ago in Spencer v.
Texas, 385 U.S. 554, 568 (1967) : “ Two-part jury
trials are rare in our jurisprudence; they have never
been compelled by this Court as a matter o f constitu
tional law, or even as a matter of federal procedure.”
In Spencer the accused unsuccessfully sought a ruling
that the Due Process Clause invalidated a Texas
92 See Brief Amici Curiae o f the N AACP et al., Nos. 203 and
204, pp. 72-74 and Appendix pp. 66-78.
8 5
statute that authorized the introduction o f prior-
crimes evidence at a one-stage criminal trial in order
to enable the jury, in fixing punishment, to set an
enhanced punishment for recidivism. Rejecting the
argument that fundamental fairness required a bi
furcated proceeding to prevent the jury from con
fusing the issues o f guilt and punishment the Court
upheld Spencer’s conviction and the sentence o f death
fixed by the jury.
Demands for bifurcation have also arisen with some
frequency in cases where the accused seeks to present
an insanity defense— as in Crampton’s case now be
fore the Court. In such situations, too, the lower
courts have dismissed assertions that the Constitu
tion requires separate trials, despite recognition that
the insanity defense might be “ collaterally incon
sistent with other defenses” ; this conclusion has been
reached even where the denial o f bifurcation led the
defendant to abandon the insanity claim in order to
preserve his privilege against self-incrimination.93
Even in first-degree murder cases the possibility of
overlapping inconsistency between a claim o f insan
ity and either a general plea of not guilty or such
other affirmative defenses as alibi, self-defense, or
lack o f premeditation, has not created a constitutional
right to split proceedings.94
These cases reflect the thesis, firmly established in
93 See United States v. Huff, 409 F. 2d 1225, 1228 (G.A. 5),
certiorari denied, 396 U.S. 857 (1969). See, also, Bell v. Patterson,
402 F. 2d 394, 399 (C.A. 10.1968), affirming 279 F. Supp. 760, 767
(D. Colo. 1968).
94 See, e.gn Gontee v. United States, 410 F. 2d 249 (C.A.D.C.
1969); Parman v. United States, 399 F. 2d 559, 562 (C.A.D.C.)
(Burger, J .), certiorari denied, 393 U.S. 858 (1968).
8 6
our criminal law, that the integrity o f a criminal
trial should not be sacrificed by carving it into a two-
or three-act play with the jury returning after each
intermission to announce whether the parties should
proceed to develop the next issue.95 96
This historical conception o f the essentially unitary
nature o f the criminal trial, coupled with the State’s
“ valid and substantial interest in expeditiously prose
cuting offenses” , has generally served to sustain the
propriety o f adhering to such a procedure, notwith
standing the potential complication o f the accused’s
position.69 In Spencer v. Texas, supra, this Court held
that the State’s interest in utilizing a unitary trial
for complete disposition o f all questions to be decided
by the jury was sufficient for due-process purposes
even though there was some possibility o f “ collateral
prejudice” (385 U.S. at 563-564) and even though a
two-stage trial might have been more fair to the ac
cused (385 U.S. at 567-568) :
95 Historically, in civil trials there has been greater resort
to separate determinations o f divisible issues. Significantly,
while Rule 42(b) of the Federal Rules o f Civil Procedure
explicitly authorizes severance o f separable claims or issues for
separate trials, its analogue in the Federal Rules o f Criminal Pro
cedure, Rule 14, authorizes only “separate trials o f counts” .
California, by contrast, provides by statute for a three-stage
jury trial in a capital case, where a plea o f not guilty by rea
son o f insanity is raised. First, guilt is to be tried, then sanity,
and finally penalty. See Cal. Penal Code §§ 190.1, 1026.
96 See, e.g., United States v. Huff, 409 F. 2d 1225, 1228 (C.A.
5, 1969); Bell v. Patterson, 279 F. Supp. 760, 767 (D. Colo.),
affirmed, 402 F. 2d 394 (C.A. 10, 1968).
8 7
To say that the two-stage jury trial in the
English-Connecticut style is probably the fair
est, as some commentators and courts have sug
gested, and with which we might well agree
were the matter before us in a legislative or
rule-making context [97], is a far cry from a
constitutional determination that this method
o f handling the problem is compelled by the
Fourteenth Amendment. [Court’s footnote
omitted.] 9S
In the present case petitioner challenges a statute
authorizing the jury in a capital case to fix punish
ment at the time it returns its verdict on guilt. This
attack has been made often in the past and has met
with uniform rejection by the lower federal and state
courts." As far as we are aware, no court has ever
held a statute o f this type unconstitutional on its
face, and none has reversed a conviction and death
sentence imposed under such a statute because o f the
97 But see Rule 14, Fed. R. Crim. P., which does not author
ize separate trials o f discrete issues in federal criminal cases.
98 Compare United States v. Jackson, 390 U.S. 570 (1968),
where in order to avoid placing an impermissible burden on
the right to a jury trial the government argued that the Federal
Kidnapping Act should be construed to provide for separate
trials on the guilt and capital punishment questions. Noting
that such bifurcation would be “ a procedure unique in the fed
eral system” (390 U.S. at 576), the Court declined to “ give the
statute this strangely bifurcated meaning***” (390 U.S. at 578).
See, also, App. E. infra, p. 138.
99 See, e.g., United States v. Gurry, 358 F. 2d 904, 913-916
(C.A. 2 ), cert, den., 385 U.S. 873 (1966); United States ex rel.
Thompson v. Price, 258 F. 2d 918, 921-922 (C.A. 3 ), cert, den.,
358 U.S. 922 (1958); Maxivell v. Bishop, 398 F. 2d 138 (C.A. 8,
1968), vacated on other grounds, 398 U.S. 262 (1970); Segura v.
Patterson, 402 F. 2d 249, 253-254 (C.A. 10, 1968); Bell v.
8 8
failure o f the trial judge, on motion or sua sponte,
to order a bifurcated trial.1
On the legislative side, proposals for bifurcation
in capital cases2 have met with somewhat more re-
Patterson, 279 F. Supp. 760 (D. Colo.), affirmed, 402 F. 2d
394 (C.A. 10, 1968); Mathis v. State, 283 Ala. 308, 216 So. 2d
286, 287-288 (1968); People ex rel. M cKevitt v. District Court
— Colo. — , 447 P. 2d 205, 207-208 (1968); Jackson v. State,
225 Ga. 790, 171 S.E. 2d 501, 504 (1969); State v. Forcella, 52
1ST.J. 263, 245 A. 2d 181, 194-195, pending on pet. for cert., No.
5011, O.T. 1970; State v. Kelbach, 23 Utah 2d 231, 461 P. 2d
297, 299 (1969); Johnson v. Commonwealth, 208 Va. 481, 158
S.E. 2d 725, 730-731, pet. for cert, dismissed, 396 U.S. 801 (1969).
Some federal courts have suggested that the bifurcation
question should be resolved on a case-by-case basis, and that
trial judges possess discretion to grant such requests whenever
substantial justice would be served. See United States v. Curry,
supra, 358 F. 2d at 916; Pope v. United States, 372 F. 2d 710,
730 (C.A. 8, 1967) (en banc), vacated on other grounds, 392
U.S. 651 (1968) ; Frady v. United States, 348 F. 2d 84, 91-92
(C.A.D.C.) (opinion o f McGowan, J.) certiorari denied, 382
U.S. 909 (1965); cf. Holmes v. United States, 363 F. 2d 281,
283 (C.A.D.C. 1966) (insanity issue). See also the imme
diately following footnote.
Compare United States ex rel. Scoleri v. Banmiller, 310 F.
2d 720, 725, 736 (C.A. 3, 1962), certiorari denied, 374 U.S.
828 (1963), where on the particular facts the court held that
due process had been violated by the introduction in a Penn
sylvania capital case o f evidence o f twenty-five prior armed
robbery convictions, despite an instruction that the jury was
to consider them only on the question o f punishment.
1 The record indicates that petitioner did not request a sep
arate hearing either on his insanity defense or on a request
for mercy until the case was in the Ohio appellate courts.
See C.A. 1-3 and Brief for Petitioner Crampton, No. 204, pp. 6-7.
2 See, e.g., Great Britain, Royal Commission on Capital
Punishment, 1949-1953, Report 555-561 (1953); A L I, Model
Penal Code §201.6 (Tent. Draft No. 9, 1959); id. §210.6 (Pro
posed Official Draft 1962) [App. G, infra, pp. 141-145.]; Na
tional Commission on Reform o f Federal Criminal Laws, Study
Draft o f a New Federal Criminal Code §3604 (1970) [App.
G, infra, 147].
ceptivity than have the proposals for statutory sen
tencing “ criteria” as discussed above. A t present,
however, thirty-three of the thirty-nine States that re
tain a discretionary death penalty for murder and
give the jury a voice in whether that penalty will
actually be pronounced, adhere to the traditional pro
cedure whereby the jury makes its decision as part of
the single proceeding at which guilt is in issue.3 The
District o f Columbia murder statute and the various
federal homicide statutes also prescribe a unitary
proceeding for determination o f both questions.4 The
remaining six States with a discretionary death pen
alty recently enacted statutes to provide for a sep
arate post-conviction hearing on the penalty question.
California in 1957 was the first State to adopt such a
procedure; Pennsylvania followed in 1959, as did
Connecticut and New York in 1963, Texas in 1965,
and Georgia on March 27 ,1970.5
On the other hand, several States that enacted new
criminal codes during this same period chose not to
authorize splitting the ju ry ’s guilt and punishment
determinations into a two-stage exercise.6 Still other
States in the interim have amended their murder
statutes and by-passed the opportunity to abandon the
3 See statutes listed in Appendix C, infra, pp. 132r-135.
4 See District o f Columbia statute in Appendix C, m/ra,
p. 133, and federal statutes in Appendix E, infra, pp. 138-139.
5 See Appendix D, infra, pp. 136-137, citing and discussing
these statutes.
6 See, for instance, the Illinois Criminal Code o f 1961 and
the Kansas Criminal Code o f 1969, cited in App. C, infra p. 133.
9 0
traditional single-trial system for capital cases.7 And
in 1962 when Congress amended the District o f Colum
bia murder statute to allow juries discretion to recom
mend life sentences, it deliberately declined to adopt
the California— Model Penal Code bifurcated proce
dure.8
Thus, although there has been a discernible trend
toward legislative adoption o f the two-stage trial in
death cases, the equally evident reluctance o f other
legislatures to follow suit suggests that bifurcation
may be a mixed blessing. Indeed, some of the reasons
we shall discuss (in section C below) in explaining
why we do not consider statutory bifurcation constitu
tionally compelled also indicate that the accused may
get a fairer shake in a unitary trial.
B. A STATU TE A L L O W IN G T H E J U R Y I N A C A P IT A L CASE TO F IX
P U N IS H M E N T AS P A R T OF A S IN G L E -ST A G E G U IL T T R IA L DOES
N OT V IO LA TE T H E PR IVILE G E A G A IN S T S E L F -IN C R IM IN A T IO N
Petitioner’s constitutional argument against the
procedure whereby the jury decides whether to recom
mend mercy without any further proceedings directed
exclusively toward that question is that this procedure
impermissibly creates a tension between two constitu
tional rights: “his F ifth and Fourteenth Amendments
right against self-incrimination * * * and his Four-
7 See, e.g., the 1969 amendments by Nebraska and New
Mexico, described in Appendix C, infra, p. 134.
8 See Frady v. United States, 348 F. 2d 84, 114-115 (C.A.D.C.)
(opinion o f Burger, J .), certiorari denied, 382 U.S. 909 (1965);
see, also, Coleman v. United States, 334 F. 2d 558 563,
(C.A.D.C. 1964).
91
teenth Amendment right ‘to be heard * * * and to
offer evidence o f his own’.” 9
The surface attraction o f this argument, however, is
not matched by any underlying support in constitu
tional principle or in practical reality. First, as we
shall attempt to show, it is doubtful that there is a
tension between two constitutional rights here, since
the alternative “ right” to which petitioner points is
apparently the opportunity to offer his own personal
testimony on the single issue o f punishment without
having any o f this testimony, directly or through cross-
examination, carry over into the consideration o f guilt.
W e are unable to discover the constitutional source
for this purported “ right” . Second, there is little fac
tual basis for an argument that the accused’s election
to rely on his privilege against self-incrimination com
pels him to forego an opportunity to present evidence
bearing on the question o f punishment, since— just as
with the guilt issue— a defendant exercising his con
stitutional option reserves the ability to make his ease
through other witnesses and evidence. And third, to
the extent the unitary trial procedure may be said to
occasion a hard choice between standing on the con
stitutional privilege or testifying personally, the proce
dure does not unconstitutionally burden his options or
“ compel” a waiver.
1. A defendant has no constitutional right to offer his personal
gation evidence through witnesses other than himself.
Petitioner’s constitutional argument depends first
on the existence o f an alleged dilemma: a “ bruising
9 Brief for Petitioner Crampton, No. 204, p. 7.
9 2
antagonism” forcing him to choose between two con
stitutional rights, “ the right to speak to his sentencer
or the right to remain silent.” 10 One traditional way
o f resolving an apparent dilemma is, o f course, to
determine whether each o f the “ horns” has been
correctly perceived, for it sometimes happens that an
erroneous definition of the alternatives clouds the true
dimension o f the choice involved. Here, one horn is
indeed the privilege against self-incrimination, which
allows a defendant charged with a crime to decline
to testify before the jury trying his case. W hat is
doubtful is the nature o f the other horn, “ the right
to speak to his sentencer” . Necessarily, i f petitioner
10 Brief for Petitioner Crampton, No. 204, pp. 13-14.
Throughout his argument in support o f bifurcation, petitioner
intertwines references to the alleged complication presented by
his use o f the insanity defense, because o f the “ risk that the
medical evidence o f his mental condition will disclose data
prejudicial on the issues o f guilt and punishment * * *” (Brief
p. 18). W e note first that this argument looks toward constitu
tionally compelled trifurcation of the trial into guilt, sanity,
and punishment stages. On the possibility o f guilt-sanity over
lap there is no reason to treat the one-stage trial as inherently
and unfairly causing the jury to confuse the two issues. See
Spencer v. Texas, supra, 385 U.S. at 565; Bruton v. United
States, supra, 391 U.S. at 135. On the possibility o f sanity-
punishment overlap, we fail to understand the point since
even under a bifurcated (or trifurcated) procedure the punish
ment decision would have to follow the determination o f sanity.
Even if it be assumed that insanity testimony would bring out
embarrassing facts that would not in any event come out at a
penalty hearing, that risk is inherent in the nature o f the in
sanity defense and is in no way enhanced by a procedure that
authorizes the jury to determine punishment as part o f the same
hearing—unless a new, and thus insulated jury is to be em
paneled solely for the penalty determination. There may be
a real strategic problem for the defense in attempting an in
sanity defense but it is not relevant to the issue whether the
Constitution requires a separate trial on penalty.
9 3
is to have any complaint about being impermissibly
forced to choose between two constitutional rights, this
second right must otherwise be exercisable compatibly
with the privilege against self-incrimination— the
right to remain silent. Thus, what must be meant
by the alleged constitutional right to “ speak to his
sentencer” is a right to participate in the sentencing
process by offering personal testimony confined to
that question and immunized from impact on the
issue o f guilt. So understood, this second alleged con
stitutional right turns out to be merely the creation
o f attractive rhetoric, for this Court has never held
either that a defendant has a constitutional right to
establish sentencing factors or that he has a right to
control the scope and impact o f the testimony he may
elect to give.
It is well settled that an accused does not have a
distinct constitutional right to address himself to the
sentencing authority. Whatever may be the present
right of a defendant to testify in his own behalf on
whether he is guilty o f the charge,11 the historical
difference between guilt trials and sentence determina
tions has thus far denied an accused any such right at
the sentencing stage. This distinction is at the heart of
cases like Williams v. New York, 337 U.S. 241 (1949),
and Williams v. Oklahoma, 358 U.S. 576 (1959),
which hold that even in a capital case due process
does not guarantee the accused an opportunity to liti
gate the factors which should be considered in passing
sentence. Any contrary reliance on Specht v. Patter
son, 386 U.S. 605 (1967), is misplaced. There, the 11
11 Compare Ferguson v. Georgia, 365 TJ.S. 570 (1961), with
id. at 602 (Clark and Frankfurter, JJ., concurring).
405- 388— 70------------8
9 4
Court defined the holding o f Williams v. New York as
follows (386 U.S. at 606):
W e held in William-s v. New York, 337 U.S.
241, that the Due Process Clause o f the Four
teenth Amendment did not require a judge to
have hearings and to give a; convicted person
an opportunity to participate in those hearings
when he came to determine the sentence to be
imposed. [Emphasis added.]
As thus restated the Court expressly stated in Specht
(386 U.S. at 608) : “ W e adhere to Williams v. N ew York,
supra ” declining only to extend that principle to pre
clude an opportunity for notice and hearing in the
radically different situation where a Sex Offenders Act
authorized different and more drastic dispositions only
if additional findings o f fact were made about circum
stances beyond those at issue in the guilt trial.
There are repeated references in the briefs o f peti
tioner and o f the amici supporting him to the “ right
o f allocution” . It is a gross miseharacterization to
press that “ right” as the coded equivalent o f a con
stitutional right to “ speak” to the sentencer with
palliating explanations why sentencing discretion
should be exercised in the defendant’s favor. The right
of allocution developed at common law to give a
defendant convicted o f a capital offense— where tradi
tionally the judge had no sentencing discretion— an
opportunity to state why judgment should not be
passed, “ thus giving him an opportunity to allege any
ground of arrest, or to plead a pardon, i f he had
obtained one, or to urge any other legal objection to
further proceedings against him.” Schwab v. Berg-
95
gren, 143 U.S. 442, 443-447 (1892). That opportunity
has generally been carried, forward by statute 12 or by
court rule.13 Indeed petitioner did avail himself o f this
opportunity under the Ohio statute,14 but his state
ments “ did not show sufficient cause why his sentence
should not be pronounced” (C.A. 2 -3 ). Furthermore,
even as thus properly and narrowly understood, the
“ right o f allocution” does not rise to the level o f a
constitutional right and its denial is not a “ funda
mental defect” . This Court so held in Hill v. United
States, 368 U.S. 424, 428 (1962).
Thus, having no constitutional right to allocution,
or to “ speak” to his sentencer, petitioner could not,
as he argues, have suffered the imposition of an imper
missible burden on the assertion o f a constitutional
right.15
But, o f course, the State of Ohio did not in any sense
attempt to prevent petitioner from “ speaking to his
sentencer” , if he wanted to testify before the jury that
was to decide his sentence. The real question is whether
he can point to any constitutional privilege allowing him
to confine his testimony solely to a single issue— pun
ishment— and also to avoid the normal consequence
12 See, e.g., Ohio Rev. Code § 2947.05: “ Before sentencing is
pronounced, the defendant must be informed by the eoiirt of
the verdict o f the jury, or the finding o f the court, and asked
whether he has anything to say as to why judgment should not
be pronounced against him.”
13 See, e.g., Rule 32(a), Fed. R. Crim. P.
14 See Brief for Petitioner Crampton, Appendix, pp. 33-35.
15 See Segura v. Patterson, 402 F. 2d 249, 252-253 (C.A. 10,
1968); People ex rel. M cKevitt v. District Court, — Colo. — ,
447 P. 2d 205, 208 (1968); State v. Kelbach, 23 Utah 2d 231,
461 P. 2d 297, 299 (1969).
9 6
of testifying that he thereby “ subjects himself to
cross-examination and impeachment. ” 16 The answer
is surely negative. Certainly, the privilege against
self-incrimination does not empower an accused to
enforce his preference about the selective subject and
significance o f his testimony by directing the jury
not to assess his testimony in connection with the
other issues in the case or by forbidding the prosecu
tion to elucidate damaging information from him.
Ever since the advent o f statutes waiving the common
law incompetence o f a criminal defendant to testify
in his own behalf,17 it has been settled that a defend
ant who elects to testify can be cross-examined in full.
See B-roum v. W alker, 161 U.S. 591, 597-598 (1896).
In R aff el v. United States, 271 U.S. 494 (1926), Jus
tice Stone, speaking for the Court, explained the con
stitutional significance o f a defendant’s decision to
testify :
W hen he takes the stand in his own behalf, he
does so as any other witness, and within the
limits o f the appropriate rules he may be cross-
examined as to facts in issue, (p. 497)
* * * * *
His waiver [o f the privilege against self-in
crimination] is not partial; having once cast
aside the cloak of immunity he may not re
sume it at will, whenever cross-examination
may be inconvenient or embarrassing. ( ibid.).
* * * * *
The safeguards against self-incrimination are
16 Brief for Petitioner Crampton, No. 204, p. 18.
17 See, generally, Ferguson v. Georgia, 365 U.S. 570, 575-583
(1961).
9 7
for the benefit o f those who do not wish to be
come witnesses on their own behalf and not for
those who do. There is a sound policy in requir
ing the accused who offers himself as a witness
to do so without reservation, as does any other
witness, (p. 499).
Thus, subject only to the usual rules limiting the
scope o f cross-examination, a defendant in a criminal
trial cannot decide to testify in support o f a particu
lar defense he wishes to make and then assert the priv
ilege against self-incrimination either to direct the
jury not to consider his testimony as bearing on
other parts o f the whole case or to preclude the pros
ecution from discrediting that testimony. A defend
ant charged with first-degree murder may be able to
construct a series o f defenses to the charge: one
simply challenging the sufficiency of the State’s case;
a second affirmatively alleging alibi; a third claiming
self-defense; a fourth averring provocation or a lack
of premeditation; and a fifth asserting insanity.
Testimony from the accused on any o f these latter
four defenses may undercut the general denial, either
through what he must disclose as part o f his story or
through concessions on cross-examination. And testi
mony on any of the four affirmative defenses raises
the same practical problem that petitioner complains
o f here, namely, the risk that the jury will (quite
logically, we think) conclude that the various theories
are mutually inconsistent. Yet, the defendant in such
a situation has not heretofore been allowed to invoke
the privilege against self-incrimination to compel sep
arate trials o f each defense or even to prevent the
9 8
jury from concluding that his testimony in support
o f alleged provocation, for example, actually indicates
premeditation. Similarly, the accused cannot jump
back behind that privilege when, in the course of
cross-examining on alibi testimony, the prosecutor
seeks to elicit a concession o f motive or an admission
o f presence at the scene o f the crime.18
There seems to be little reason in constitutional
principle to allow a defendant who wants to speak
only on the question o f sentence any more right to
constrict the breadth o f his testimony and the ju ry ’s
consideration o f it than is allowed to a defendant who
wants only to testify on a specific element o f guilt or
defense. In neither situation is it sufficient to say, as
petitioner earnestly argues in pressing his particular
claim, that the State could sever the trial into separate
hearings on discrete issues. (B rief pp. 14-15). The
State may do so, but there is no basis for asserting
that the privilege against self-inerimination requires
it to do so.19
The foregoing discussion demonstrates, we believe,
that the “ right.” petitioner claims he was unconstitu
tionally compelled to forego in order to assert his
privilege against self-incrimination is no more than
an imaginative construct. Since this is so, cases like
Simmons v. United States, 390 U.S. 377 (1968), which
18 See, generally, Brown v. United States. 356 U.S. 148, 15T-
156 (1958).
19 Cf. Spencer v. Texas, supra, 385 U.S. at 567-568: “ To say
that the two-stage jury trial in the English-Connecticut style
is probably the fairest [procedure] * * * is a far cry from a
constitutional determination that this method o f handling the
problem is compelled by the Fourteenth Amendment.”
9 9
condemned a practice that forced an unnecessary elec
tion between two constitutional rights (see 390 IT.S.
at 393-394), are not really apposite.
2. The defendant in a unitary capital trial can present miti
gation evidence through witnesses other than himself.
The Simmons case, supra, is doubly distinguishable
because in that ease the only practical way for the
defendant to assert his Fourth Amendment claim was
by testifying himself at a suppression hearing, since
that is customarily necessary to establish personal
standing to object to a search and seizure. It was in
that context that the Court held that he was entitled
to rely on his privilege against self-incrimination to
exclude his testimony from being used against him at
his trial on the merits. In the present ease, however,
petitioner was not forced to choose between his priv
ilege to remain silent and any right, assumed argu
endo, to advance his views on the punishment ques
tion.20 As a number o f courts have noted in rejecting
the very argument tendered by petitioner, whatever
evidence would be admissible on the punishment ques
tion through petitioner’s testimony could be presented
through other witnesses instead.21 Indeed, in rejecting
20 Even if that were the situation, it would not impermissibly
burden the exercise o f his constitutional rights i f the dilemma
resulted from the ordinary and inherent vicissitudes o f the
criminal process. Thus, the weight o f the State’s case and the
unavailability o f other witnesses may as a practical matter
“ compel” the defendant to testify, but such inherent presures
do not render the dilemma unconstitutional. See Harrison v.
United States, 392 IT.S. 219, 222 (1968).
21 See e.g., Segura v. Patterson, 402 F. 2d 249, 253 (C.A. 10,
1968); Bell v. Patterson, 279 F. Supp. 760, 765-766 (D. Colo.),
affirmed, 402 F. 2d 394 (C.A. 10, 1968); People ex ret. Me-
1 0 0
petitioner’s arguments the court below specifically
noted that he was able to present mitigation evidence
through witnesses other than himself and that- peti
tion availed himself o f this opportunity.22
ISTor can it be said that conjoining the determina
tion of guilt and capital punishment in one trial
creates any inherent pressure for the defendant to
testify. The constitutional protection o f the defend
ant’s right to summon other favorable witnesses23
relieves any such pressures. And it is demonstrable
that defendants do indeed call family, friends, or
character witnesses more often in murder cases than
Kevitt v. District Court, — Colo. — 447 P. 2d 205, 208 (1968);
cf. Petition o f Ernst, 294 F. 2d 556, 561 (C.A. 3), cert, den.,
368 U.S. 917. Most American jurisdictions allow the introduc
tion o f evidence directed solely toward mitigation o f punish
ment in capital cases. See Knowlton, Problems o f Jiiry Discretion
in Capital Cases, 101 U. Pa. L. Rev. 1099, 1116 (1953).
I f a State chooses not to allow any evidence to be introduced
on the question o f aggravating or mitigating the penalty, and
thus i f the jury is to determine punishment solely in light of
evidence o f the circumstances surrounding the crime, as peti
tioner argues is the rule in Ohio (B rief pp. 9-10)— and if such
a practice is permissible under the Constitution, as we argue
below—then it would seem to follow a fortiori that the State is
not constitutionally compelled to afford a separate trial on the
penalty question.
Recognizing the inevitability o f this conclusion, the amici
supporting petitioner take considerable pains to distinguish the
case on which he relies for this proposition, AsKbrook v. State,
49 Ohio App. 298, 197 N.E. 214 (1935), and to demonstrate
to the contrary that Ohio does allow the introduction o f miti
gation evidence. See Brief Amici Curiae o f N AACP et ah, Nos.
203 & 204, pp. 72-74.
22 C.A. 86-87 (18 Ohio St. 182, 248 N.E. 2d 614, 617).
23 Compare Washington v. Texas, 388 U.S. 14, 23 (1967),
with Ferguson v. Georgia, 365 U.S. 570 (1961).
1 0 1
in non-capital cases,24 Moreover, the available data
suggest that a defendant in a murder case is neither
induced to testify nor discouraged from doing so by
reason o f the fact that the jury will simultaneously
decide guilt and punishment.25 The decision whether
the accused will personally take the stand is based on
a multitude o f strategic considerations, and the uni
tary nature o f the trial does not seem to be a sig
nificant ingredient.
Thus, there is still a further reason for declining
to hold that the unitary trial inherently impinges
upon the privilege against self-incrimination, since this
premise is not supported by any theoretical likelihood
o f induced waiver or by any indication that the pro
cedure actually induces waiver o f the privilege. And
in the present case, where petitioner did not request
bifurcation at the trial court level and did in fact elect
to stand on his constitutional privilege he certainly
cannot be heard to argue that the unitary trial imper
missibly “ chills” the assertion o f the privilege
against self-incrimination. Nor on the other hand has
petitioner pointed to any peculiar information which
he alone could have presented and to which he would
have testified at a bifurcated proceeding. It seems
therefore that the unitary nature o f petitioner’s trial
had no significant impact at all on his decision
whether to testify in his own behalf.
24 See Kalven & Zeisel, The American Jury 143 (1966).
25 See Kalven & Zeisel, supra, at 143-148.
1 0 2
3. The unitary trial procedure does not impermissibly burden the
exercise o f the privilege not to testify.
Finally, even i f the Court adopts petitioner’s con
ception o f the “ bruising antagonism” that confronted
him—-a choice between his privilege against self-in
crimination and his “ right” to speak to his sentencer,
the fact that he had to make such an election does not
establish the desired constitutional infirmity in the
unitary proceeding.
Any foundation for the final leg o f petitioner’s
argument that the choice that confronted him (how
ever it may be defined) unconstitutionally impaled
him on the horns o f a dilemma was decisively washed
away by the Court’s guilty-plea trilogy last Term.
See Brady v. United States, 397 U.S. 742 (1970);
McMann v. Richardson, 397 U.S. 759 (1970); and
Parker v. North Carolina, 397 U.S. 790 (1970). In
Brady and Parker the defendants alleged that their
decisions to plead guilty, and thus to waive their con
stitutional rights to avoid self-incrimination and to
demand jury trials, were unconstitutionally induced
by the fear o f the death penalty, which could only
have been imposed after jury trials. This Court af
firmed the convictions. The rationale realistically took
account o f the accused’s inherent need to make tacti
cal judgments about his conduct o f a criminal proceed
ing against him. The innate complexity of a criminal
litigation generates a cross-current o f pressures, in
cluding some that induce defendants to plead guilty
in the hope or expectation that the consequences o f
such a course will be preferable to the result risked
upon trial. The constitutional touchstone, the Court
103
ruled, is simply one o f voluntariness, traditionally
considered: was the accused “ with the help o f coun
sel rationally [able to] weigh the advantages o f going
to trial against the advantages o f pleading guilty.”
Brady v. United States, supra, 397 U.S. at 750. That
the assessment made later turns out to have been un
wise does not vitiate the constitutionality o f the elec
tion. As the Court explained in Brady (397 U.S. at
756-757):
Often the decision to plead guilty is in
fluenced by imponderable questions fo r which
there are no certain answers; judgments may
be made that in the light o f later events seem
improvident, although they were perfectly sen
sible at the time. The rule that a plea must be
intelligently made to be valid does not require
that a plea be vulnerable to later attack i f the
defendant did not correctly assess every rele
vant factor entering into his decision. A defend
ant is not entitled to withdraw his plea merely
because he discovers long after the plea has
been accepted that his calculus misapprehended
the quality o f the State’s ease or the likely
penalties attached to alternative courses o f
action.
In McMann v. Richardson supra, three defendants
who had pleaded guilty to charges o f robbery and
murder contended that their pleas had been induced
by the fear that the State would be able to introduce
confessions they argued had been involuntarily pro
cured from them. This Court vacated orders o f the
court o f appeals which had ordered hearings on the
claims ; the Court held that the allegations that coun
seled defendants had entered guilty pleas because of
1 0 4
the existence o f allegedly coerced confessions, when
they would otherwise have put the State to its proof,
did not make out a claim for relief even i f true. As
the Court explained (397 U.S. at 769):
[T ]he decision to plead guilty before the evi
dence is in frequently involves the making o f
difficult judgments. * * * In the face o f un
avoidable uncertainty, the defendant and his
counsel must make their best judgment as to the
weight o f the State’s case. Counsel must predict
how the facts, as he understands them, would be
viewed by a court. I f proved, would those facts
convince a judge or jury o f the defendant’s
guilt? * * *
It seems clear to us that similar reasoning demands
rejection o f petitioner’s argument in the present case.
Guided by eminent appointed counsel, the choice that
confronted him was whether, on balance, it was stra
tegically desirable for him to 'testify. Evaluation o f
that option had to depend on many o f factors like the
weight o f the State’s case, the quality o f the expert
psychiatric testimony, the probable impact o f the testi
mony of petitioner’s mother, the availability o f other
witnesses, the relative significance o f petitioner’s po
tential testimony, the ju ry ’s likely attitude toward
the death penalty, and anticipation o f petitioner’s
impression as a witness. There is no basis for conclud
ing that the one additional factor in the calculus on
which petitioner focuses— the ju ry ’s responsibility for
simultaneously determining guilt and punishment-—
was so weighty that its presence overwhelmed his
ability to make a rational and intelligent choice.
In any event, it is made abundantly clear by the
Court’s most recent discussion o f the privilege against
1 0 5
self-incrimination that, even to the extent the statu
tory procedure did require petitioner to make a diffi
cult choice, the procedure cannot be condemned. In
Williams v. Florida, 399 U.S. 78 (1970), the Court
rejected the argument that Florida’s notice-of-alibi
statute transgressed the privilege against self-inerimi-
nation, holding that the privilege no more entitled a
defendant to await the end o f the State’s case before
announcing his defense “ than it entitled him to await
the ju ry ’s verdict on the State’s case-in-chief before
deciding whether or not to take the stand himself”
(399 U.S. at 85). In reaching that conclusion, the
Court noted (399 U.S. at 83-85):
The defendant in a criminal trial is fre
quently forced to testify himself * * * in an
effort to reduce the risk of conviction. * * *
That the defendant faces such a dilemma de
manding a choice between complete silence and
presenting a defense has never been thought an
invasion o f the privilege against self-incrimina
tion. The pressures generated by the State’s
evidence may be severe but they do not vitiate
the defendant’s choice * * * even though the
attempted defense ends in a catastrophe for the
defendant. * * *
* * * Response to that kind o f pressure by
offering evidence or testimony is not compelled
self-incrimination transgressing the F ifth and
Fourteenth Amendments.
Even more clear then is the conclusion in the pres
ent case that the privilege against self-incrimination
does not entitle the accused “ to await the ju ry ’s
verdict on the State’s case-in-ehief” and on his in
sanity defense “ before deciding whether to take the
1 0 6
stand himself” on the punishment question. There
fore, a procedure which occasions the need to make
and act upon the waiver decision before the jury re
turns its guilt verdict does not unreasonably impinge
upon the privilege.
As the Court o f Appeals for the Tenth Circuit in
Segura v. Patterson, 402 F. 2d 249, 253 (1968), ex
plained in rejecting an argument identical to peti
tioner’s:
This compulsion does not derive from any
coercion of the State, instead it arises from the
desire o f the accused to act in his own enlight
ened self-interest. He is compelled to testify
only in the sense that it may be to his advan
tage to do so. The choice is his embracing no
more substantial “ chilling effects” in a single-
verdict situation than it does in any other in
stance. It is always the case that in exercising
the constitutional right to remain silent, the
individual is forced to forego his opportunity
to personally appeal to the jury. Whether such
an appeal relates to the determination o f guilt
or punishment or both, it cannot be denied
that the inducement not to remain silent and
thus to forego a specific constitutional right
does not arise from any unnecessary burden
imposed by the State. W e conclude that the
single-verdict procedure does not “ needlessly
chill the exercise o f basic constitutional rights ’ ’.
[Footnote omitted]
A fortiori, petitioner cannot complain that trial pres
sures encourage waiver o f the privilege when these
pressures did not result in a decision to give up the
privilege by testifying at his trial.
1 0 7
C. A STATU TE W H IC H A U T H O R IZ E S T H E J U R Y I N A C A P IT A L CASE TO
F IX P U N IS H M E N T I N L IG H T OF T H E EVID EN C E ADDUCED A T A O N E -
STAGE 'T RIA L O N G U IL T IS F U N D A M E N T A L L Y F A IR
The amici curiae supporting petitioner’s attack on
the unitary trial advance the additional argument that
the demand for fundamental fairness implicit in the
Due Process Clause requires a separate penalty hear
ing. Their claim is that it is basically irrational to
allow a jury to sentence a defendant when there has
been no exploration o f the personal background
factors that are normally considered in judge-sentenc
ing o f m ajor felony offenders: “ it is the imperative
condition o f rational sentencing choice that the sen-
tencer consider more information about the individual
defendant than is likely or permissibly forthcoming
on trial o f the guilt issue.” 26
Counsel for the United States tends to agree that
modern sentencing philosophy properly emphasizes
maximum inquiry into the defendant’s background,
character, and potential and that a separate proceed
ing directed solely to the penalty question would be an
appropriate device for developing such information in
a structured way.27 W e disagree, however, with the
contention that the Constitution mandates resort to
such a device.
Sentencing hearings, and even pre-sentence reports,
have not heretofore achieved the level o f constitutional
requisites when sentence is to be determined by a
26 Brief Amici Curiae o f the N AACP et al., Nos. 203 and 204
Appendix, p. 70.
27 See National Commission on Reform of Federal Criminal
Laws, Study Draft o f a New Federal Criminal Code § 3604
(1970), App. G, infra, p. 147.
1 0 8
judge, and we discern no principled basis, in law or in
experience, for a contrary rule applicable to jury sen
tencing in capital cases. In this final portion o f our
brief we shall discuss three points that seem to sup
port this conclusion: first, that a State may permis
sibly determine that a sentence for murder should be
set in light o f the evidence adduced in the course of
litigating guilt; second, that whether or not the State
also allows evidence directed toward penalty to come
out at the guilt trial, the evidence showing the circum
stances surrounding a murder normally provides a
sufficiently substantial basis for rational sentencing of
the offender; and third, that certain indications that a
penalty trial may have a substantive impact in increas
ing the likelihood o f a death sentence caution against
general resort to the device as a constitutional
requirement.
1. A State may rationally determine that a sentence for murder
should be based on the circumstances of the crime itself
Implicit in the argument that the Constitution re
quires consideration o f extrinsic data about the de
fendant before he can be sentenced is the premise that
the State is forbidden to let the punishment “ fit the
crime” itself. Although current penology generally
tends toward the view that it is preferable to examine
the defendant’s life history, we are not aware o f any
decision by this Court that the Fourteenth Amend
ment establishes this philosophy as an essential in
gredient o f due process. A t most, the Court has
commented that “ a state may adopt the ‘prevalent
modern philosophy that the pmiishment should fit
the offender and not merely the crime’. ” North Caro
lina v. Pearce, 395 U.S. 711, 723 (1969) (emphasis
10 9
added), quoting from Williams v. New York, 337 U.S.
241, 247 (1949). But it is inherent in the nature o f
our federal system that an individual State may elect
as a matter of legislative policy not to copy a par
ticular penological philosophy elsewhere in vogue, and
we see no fundamental irrationality in a State’s de
cision to adhere to the traditional policy “ that the
punishment for first degree murder shall fit the par
ticular crime rather than the individual criminal.”
Sims v. Eyman, 405 F. 2d 439, 443 (C.A. 9, 1969).
Even where that policy is maintained, as we have
seen in Point I o f this brief, every State that au
thorizes capital punishment for murder has super
imposed a procedure for allowing the jury to indi
viduate the punishment. Thus, even if the penalty de
cision is made solely in the context o f the evidence
of the crime, there is room to exercise “ a sound dis
cretion” to take into account “ consideration o f all the
circumstances o f the crime” in order to decide what
the proper penalty should be for the particular
murder committed by the defendant on trial. Se*5
Williams v. Oklahoma, 358 U.S. 576, 585 (1959). W e
see nothing arbitrary in allowing a sentence to be
determined in such a context.
Indeed, to the extent this Court has undertaken to
deal with the constitutional parameters o f lawful
punishments, the dominant concern has been with the
proportionality of the punishment to the offense, and
not to the offender. Thus, in Weems v. United States,
217 U.S. 349 (1910), the Court condemned a particu
larly intense and persistent combination o f punish
ments for an offense that was found to be relatively
405- 388— 70------------9
1 1 0
trivial. In our society, as throughout the civilized
world, murder is regarded as intrinsically the most
hateful o f offenses and thus, to the extent a State re
tains the death penalty, that sanction is generally
authorized for murder.28 Especially where this unique
offense is involved, it appears well within the bounda
ries o f substantive due process o f law for the State to
determine that the punishment for murder should be
adjusted only to the facts surrounding that act itself—
the ultimate renunciation o f social peace and personal
security— and need not be measured against the mur
derer’s past deeds or misdeeds.29
This Court has historically refused to treat the
Constitution as imposing upon the States any partic
ular theory o f the nature and purposes o f punishment.
See, e.g., Powell v. Texas, 392 U.S. 514, 530 (plurality
opinion o f Marshall, J .). This recognition o f the
breadth o f the legislative freedom committed to the
States in fashioning their criminal laws leaves ample
room for a State to determine that the object and
effect o f its murder statute should be to hold a mur
derer personally accountable with his life for commit
28 See Frank v. United States, 395 U.S. 147, 148 (1969),
explaining that the “ most relevant indication” o f the “ serious
ness with which society regards the offense” is the “ severity
o f the penalty authorized for its commission.”
29 Compare Packer, Making the Punishment F it the Crime,
77 Harv. L. Eev. 1071, 1077-1078 (1964) :
It is true * ■ * that the idea o f imposing a penalty on
a class of offenses rather than adjusting it to the individual
punished runs counter to some cherished principles o f mod
ern penology. Nevertheless, individualization o f punishment
appears hardly to be a constitutional principle.”
I l l
ting that offense, irrespective o f his prior life-style.30
Thus, we believe, even a procedure which utterly pre
cludes introduction o f aggravation or mitigation evi
dence at the trial o f an accused’s guilt as a murderer
provides a constitutionally adequate basis for the jury
to determine how he should be punished.31
2. Even at a murder trial confined solely to guilt, sufficient facts
about the defendant emerge to permit intelligent sentencing
The sentencing milieu we discussed in the preceding
section relates to the constitutionality o f an abstract
model that assumes a more limited acquaintance with
the defendant’s general history than a jury deciding
a murder case actually gains. Whether or not the
State formally allows evidence purely concerned with
punishment to be admitted at a one-stage murder
trial, the jury will learn quite a bit about the accused
beyond his narrow involvement in the particular
crime. To the extent the amici supporting petitioner
argue that a jury fixing sentence after a unitary trial
has only a fragmentary or distorted picture o f the real
person on trial, the argument suffers from a serious
incongruity with reality. The experience o f those who
try capital murder cases and those who are regularly
called upon to review them is that, through one
medium o f admissibility or another, the jury ordi
narily has access to a fairly accurate, albeit often
rough or low-relief portrait o f the accused’s life.
W hen he was testifying before the British Royal
30 See Hart, The Aims o f the Criminal Law, 23 Law & Con-
temp. Prob. 401, 407-411 (1958).
31 Accord, Sims v. Eyrnan, supra. 405 F. 2d at 443.
112
Commission on Capital Punishment, Mr. Justice
Frankfurter was asked whether juries in capital cases
have enough information about the defendant to per
form their sentencing responsibility intelligently. He
stated that it was his experience that there is a suffi
cient factual context for the sentence, since “ with ref
erence to the particular transaction on which the jury
has to pass, a good many facts incidentally come out,
either through the defendant when he takes the stand,
or through other witnesses, when he doesn’t.” 32
The Court of Appeals for the Ninth Circuit in Sims
v. Eyman, supra, recently expressed the same expe
rience in rejecting an argument that introduction of
evidence related solely to mitigation is essential to a
fair trial (405 F. 2d at 443, 444) :
Many items o f information about the defend
ant may come in during the disclosure o f the
crime itself and the circumstances surround
ing it * * *.
* * * * * * *
* * * When a first degree murder case is tried
before a jury, the jury can form an opinion as
to the proper punishment from hearing the
whole case, observing witnesses, and discussing
the evidence introduced concerning the crime
and the surrounding circumstances.
Moreover, the general American rule in capital cases
is that mitigation evidence is admissible at the guilt
stage to show such things as environment, motive,
provocation, mental impairment, and the like.33 Espe-
32 Frankfurter, O f Law and Men 87 (Elman ed. 1956).
33 See Knowlton, Problems of Jury Discretion in Capital
Cases, 101 U. Pa. L. Rev. 1099, 1116 (1953).
1 1 3
cially where the defense o f insanity is raised, as it was
in the present case, the jury is likely to know as much
about the accused— at least as much of an extenuating
import— as does a judge possessed o f a pre-sentence
report. In affirming a conviction and death sentence
imposed by a jury, the Eighth Circuit, speaking
through then Circuit Judge Blaekmun, rejected an
argument similar to the one made by amid here, ex
plaining :
The jury also had the full picture o f the
defendant’s background, his prior behavior, and
the like. And the defense o f insanity, with all its
implications, is in itself wholly mitigative and
rehabilitative in nature. The jury therefore was
not without an appropriate measure of infor
mation.34
In the present case, petitioner was able to bring
before the jury through the sympathetic testimony of
his mother a rather complete chronology o f his life,
including his stepfather’s jealous rejection o f him
which drove him from his mother’s home at age 14
(C.A. 49), petitioner’s head injury at age nine (C.A.
53-54), his employment as a valet for an entertainer
(C.A. 53), and his unhappy experiences with mar
riage even after the birth of a son some nine years
prior to the trial (C.A. 54-56). And, o f course, the
data that were contained in the various psychiatric
reports and underlying documents introduced in sup
port o f petitioner’s insanity defense presented to the
jury a more vivid profile of petitioner than the ordi-
31 Pope v. United States, 372 F. 2d 710, 730 (1967) (en
banc), vacated on other grounds, 392 1T.S. 651 (1968).
1 1 4
nary pre-sentence report provides. Thus, whatever
quantum o f information about the accused may be
argued to be constitutionally necessary, there is no
room in the facts o f the present case to contend that
the jury which sentenced petitioner to death lacked
that irredueibly minimal familiarity with the man
whose fate they decided.
But to bring the discussion full circle we empha
size that the instant case is more typical than anoma
lous in this regard. Although the contours o f the back
ground evidence admitted in first-degree murder eases
fluctuate from case to case and jurisdiction to juris
diction, the normal course o f a one-stage murder trial
develops enough tangential information about the
accused to offer the sentencing jury a rather accurate
perspective on him.
3. A separate hearing confined to penalty may affirmatively
disadvantage defendants
The practical experience discussed in the preceding
section implies a possibility that some courts and com
mentators have verbalized: that holding a separate
penalty hearing may in its normal course operate to
the disadvantage o f defendants, fo r it offers them
little opportunity to adduce mitigating evidence that
could not be brought forth at the traditional one-stage
guilt trial, but allows the prosecution to develop
aggravating factors that would otherwise be inadmis-
11 5
sible. This C ourt35 and others36 have in the recent
past pointed to this uncertainty about the actual im
pact o f bifurcation as a prudent basis for declining
to hold that the Constitution impels its adoption. Our
experience with two-stage trials on guilt and punish
ment stretches back only thirteen years to California’s
adoption o f the device in 1957. It would be improvi
dent, we believe, to freeze this ambivalent procedure,
with its merits and demerits still elusive, into a con
stitutional directive.
In perhaps every single-stage jurisdiction the ac
cused can introduce a good deal o f ameliorative infor
mation either as somehow bearing upon the guilt de
termination or as frankly tending toward moderating
punishment.37 In fact in discussing the evidentiary
35 See United States v. Jackson, supra 390 U.S. at 579-581
and nil. 17 & 19; Spencer v. Texas, supra, 385 U.S. at 567-568
n. 12.
36 See, €.<?., Frady v. United States, 348 F. 2d 84, 115
(C.A.D.C.) (opinion o f Burger, J.) certiorari denied, 382 U.S.
909 (1965); United States v. Curry, 358 F. 2d 904, 914-915 (C.A.
2), certiorari denied, 385 U.S. 873 (1966) ; State v. Forcella, 52
N.J. 263, 245 A. 2d 181, 195 (1968), pending on pet. for cert., No.
5011,0 .T . 1970.
37 See Knowlton, Problems o f Jury Discretion in Capital
Gases, 101 U. Pa. L. Rev. 1099, 1116 (1953). See, also United
States v. White, 225 F. Supp. 514, 523 (D.D.C. 1963), rejecting
the argument that, under the 1962 amendment to the District
o f Columbia murder statute giving sentencing discretion to the
jury, the jury’s initial deliberations should be confined to guilt,
with the defendant thereafter permitted to present evidence
in mitigation:
“ Defendant clearly can only be helped by being permitted
to introduce character testimony possibly relevant to the choice
o f sentences before the jury has agreed upon the [guilt] verdict
itself. It is fairest to the defendant for the jury to have the
full range o f clearly distinguished alternatives before it for
consideration at one time.”
1 1 6
thrust o f the separate penalty hearing proposed by
the Model Penal Code (see App. G, infra ) the Code’s
Chief Reporter, P rof. Herbert Weehsler, explained
to the American Law Institute:
On the aggravating side the most important
illustration would be the previous [criminal]
record. On the mitigating side, it may be less
likely that there will be mitigations to be estab
lished that won’t be in evidence, but I can
conceive for example o f a psychiatric report
that might have weight and that would not
come in until after the verdict.38
It is precisely this type o f realistic prediction that
courts and commentators have made in suggesting
that bifurcation is a “ two-way street” which perhaps
provides down-hill momentum for the prosecution.39
Contrasted with the speculation that there might be
significant mitigating factors that the defense could
only introduce at a separate hearing is the unique and
certain opportunity for the State to open up the
accused’s background, character, and criminal history
to show just what kind of a person he really is. In
the unitary trial, if the defendant’s background is
unblemished, he can usually demonstrate that. I f he
is tainted with prior misbehavior he can normally
concentrate subtly enough on some redeeming features
so that the door will not be opened too wide to expose
all his faults.40 But at a two-stage trial there is little
more that the defendant can elucidate, while the State,
38 36 A.L.I., Proceedings 193 (1959).
39 See, e,g., Sims v. Eyman, 405 F. 2d 439, 444 (C.A. 9,
1969); State v. Forcella, 52 N.J. 263, 245 A. 2d 181, 195 (1968).
40 See Spencer v. Texas, supra, 385 U.S. at 560-562.
11 7
by hypothesis, is permitted to demonstrate in detail
Avhat it otherwise might not be able to show: that the
jury need have no illusions about the possibility that
the crime on trial might have been a momentary
aberration in an otherwise decent life.41
The Stanford Law Review’s recent massive survey
o f California murder eases has demonstrated that the
feature in the two-stage murder trials that had “ the
greatest impact on penalty was the presence or ab
sence o f a prior criminal record. Defendants with
such a record were considerably more likely to receive
the death penalty on the basis o f that attribute
alone.” 42 Yet it is just that type o f evidence that is
generally inadmissible to affect the punishment de
cision at a unitary trial but is routinely admissible
at a penalty hearing.43 Little wonder then that some
commentators have noted that the penalty hearing is
by no means an unambiguous plus for defendants.44
41 It has also been suggested that, to the extent thex-e has already
been a full hearing focusing on circumstances o f aggravation and
mitigation, the Executive may be particularly reluctant to grant
clemency in the face o f the jury’s decision. See Executive
Clemency in Capital Cases, 39 N.Y.TT.L. Rev. 136, 166-167
(1964).
That same study states that the California experience has
been that defense counsel have not been as well prepared for
litigation at the penalty phase as have been, the prosecuting
attorneys, nor have they been as sophisticated. See 39 N.Y.U.L.
Rev. at 167. This Court in United States v. Jackson, supra,,
390 U.S. at 580 n. 19, attributed this reported phenomenon to
the “ relative novelty o f penalty proceedings” .
42 A Study of the California Penalty Jury in First-Degree
Murder Cases: Standardless Sentencing, 21 Stan. L. Rev. 1302,
1326 (1969); see, also, id. at 1389-1390,1412.
4S See Note, 110 TJ. Pa. L. Rev. 1036, 1037 (1962).
44 See, e.g., The Bifurcated Trial Procedure and First Degree
Murder, 3 Suffolk U. L. Rev. 628, 632 (1969).
1 1 8
An examination o f bifurcation statutes now in force
reveals the scope o f adverse evidence admissible under
them, frequently without regard to the rules o f evi
dence applicable at a guilt trial.45 The California
statute, for example (Cal. Penal Code §190.1, App.
A, infra, p. 126) authorizes the introduction o f evi
dence “ o f the defendant’s background and history,
and o f any facts in aggravation or mitigation o f the
penalty.” Under this statute the State may prove not
only prior criminal convictions but also crimes for
which the defendant was neither charged nor con
victed, so long as the jury is told not to consider
them unless established beyond a reasonable doubt.
People v. F l o y d 1 Cal. 3d 694, 83 Cal. Rptr. 608,
464 P. 2d 64, 77 (1970).
The Pennsylvania statute (18 Pa. Stat. § 4701)
simply provides that after the verdict of guilt “ and
before the jury is permitted to separate, the court
shall proceed to receive such additional evidence not
previously received as may be relevant and admis
sible upon the question o f the penalty to be im
posed * * Under this statute, the Pennsylvania
Supreme Court has upheld the admissibility o f evi
dence o f crimes, including a separate homicide, com
mitted by the defendant after he committed the
murder on trial, reasoning that the statute is designed
to let the jury know exactly what kind o f man the
accused is at the time it fixes his punishment. Com
15 See, generally, on the admissibility of evidence at penalty
hearings: The California Penalty Trial, 52 Calif. L. Rev. 386,
388-389 (1964) ; The Two-Trial System in Capital Cases, 39
N.Y.U. L. Rev. 50, 59-63 (1964).
1 1 9
monwealth v. Bell, 417 Pa. 291, 208 A. 2d 465, 468
(1965).
The new Connecticut Pena] Code continues that
State’s use o f a penalty proceeding. Section 46(a) of
the new Code provides in part that in the penalty
proceedings:
* * * evidence may be presented as to any
matter that the court deems relevant to sen
tence, including but not limited to the nature
and circumstances o f the crime, the defend
ant’s character, background, history, mental
and physical condition, and any other facts in
aggravation or mitigation of the penalty. Any
such evidence which the court deems to have
probative force may be received, regardless of
its admissibility under the exclusionary rules
o f evidence.
The Texas provision states that in the post-verdict
proceedings “ evidence may be offered by the state
and the defendant as to the prior criminal record
o f the defendant, his general reputation and his char
acter.” Tex. Code Crim. Pro. art. 37.07(3) (a ) (Supp.
1970).
New Y ork ’s statute generally prescribes with refer
ence to the separate punishment hearing (N .Y. Penal
Law § 125.35) :
3. In such proceeding, evidence may be
presented by either party on any matter rel
evant to sentence including, but not limited
to, the nature and circumstances o f the crime,
defendant’s background and history, and any
aggravating or mitigating circumstances. Any
relevant evidence, not legally privileged, shall
120
be received regardless o f its admissibility under
the exclusionary rules o f evidence.
The new Georgia statute (Ga. Laws 1970, No.
1333, p. 949) provides that there is to be a penalty
hearing after a verdict o f guilty is returned in every
felony case:
In such hearing, subject to the laws o f evidence,
the jury shall hear additional evidence in exten
uation, mitigation, and aggravation o f punish
ment, including the record o f any prior criminal
convictions and pleas o f guilty or pleas o f nole
contend re [sic] o f the defendant, or the ab
sence of any such prior criminal convictions and
pleas; provided, however, that only such evi
dence in aggravation as the State has made
known to the defendant prior to his trial shall
be admissible.
There is substantial reason to believe that these pro
cedures do enlarge the probability that a jury will
return a death verdict. In commenting specifically
on the bifurcated procedures established in New York
and California which “ permit the jury access to the
broadest possible evidence about the defendant” , P ro
fessors Kalven and Zeisel reported: “ Some judges have
suggested that the system may be resulting in an in
crease in capital cases” .46
46 The American Jury, supra, at 448 & n. 29.
The State o f California in its Brief in the McGautha case
(No. 203) presents statistics in Table C (p. 72) that may in
dicate that the introduction o f bifurcation in California in
19o7 has had no discernible effect on the ratio o f death sen
tences to first degree murder convictions. It is difficult, however,
to draw any firm conclusions on this question from the gross
figures available. The relative constancy o f the death penalty
121
Reported cases tend to show that this adverse sub
stantive impact on defendants— though not an “ irra
tional’ ’ or unconstitutional one, o f course— may indeed
result from focusing on the question o f what penalty
the convicted murderer deserves.47 In Ward v. Cali
fornia, 269 F. 2d 906, 907-908 (C.A. 9, 1959), for
example, the court o f appeals was faced with a com
plaint from a murderer sentenced to death after a
California penalty trial that at the hearing the jury
was given evidence o f his prior criminal record which
would not have been admissible under the unitary
procedure in force at the time the offense was com
mitted. The court held that this material was properly
related to rational sentencing under the new procedure
and that he could not object to this expansion o f the
scope o f information available to aid in sentencing.
More vivid perhaps is People v. Dusablon, 16 Y .Y.
2d 9, 261 Y .Y.S. 2d 38, 209 Y.E. 2d 90 (1965), where
the Yew York Court o f Appeals was called upon to
review death sentences imposed by a jury after a
penalty hearing under Yew Y ork ’s 1963 bifurcation
statute. The two defendants were convicted o f felony
ratio over a period when the popular attitude toward the
death penalty has probably become somewhat more cautious
may mask some net impetus toward the death penalty stem-
ing from fuller knowledge about the defendants’ back
grounds.
47 In Williams v. New York , supra, it will be recalled, the
constitutional claims about the nature and source o f sentencing
information arose after a Yew York jury at a one-stage trial
had made a non-binding recommendation o f mercy but the trial
judge, with access to background information that had not come
before the jury, decided that a death sentence was appropriate.
See 337 U.S. at 244.
122
murder. Under the general American rule to which
New York had adhered, evidence o f prior criminal
convictions was not admissible under the former one-
stage procedure, but such evidence was properly ad
mitted at the penalty hearing. In affirming the convic
tions and death sentences, the court took note o f the
defendants’ plight under the bifurcated system (16
-N.Y. 2d at 17, 261 N.Y.S. 2d at 40, 209 U.E. 2d
at 91) :
It is possible that, i f the jury had not known
o f appellants’ prior criminal records, they
might have recommended life imprisonment in
the case o f either or both o f them, particularly,
perhaps, in the case o f the one who did not fire
the fatal shot in this felony murder.48
Similarly, defendants who received death sentences
after Texas punishment hearings at which relevant
bad-character evidence was admissible have unsuccess
fully complained about having their full backgrounds
exposed to the sentencing jury. See, e.g., Smith v.
State, 437 S.W. 2d 835, 838 (Tex. Grim. App. 1969) ;
4S The result in the McGautha case (No. 203) now before the
Court, tends to substantiate this realistic assessment. There, at
the end of the guilt trial the jury had very little clear information
about which defendant had fired the fatal shot and knew
nothing o f their respective criminal records. The jury evi
dently agonized over the death penalty decision and it seems
within the bounds of reasonable surmise to suspect that i f there
had not been a separate penalty proceeding at which these two
questions were fully ventilated the jury might not have felt
confident enough about the identity o f the trigger-man or about
the defendants’ characters to sentence either o f them to death.
12 3
Jones v. State, 416 S.W . 2d 412, 414 (Tex. Crim. App.
1967).49
And the Supreme Court o f the State o f Washing
ton, in affirming a death penalty set by a jury after
a one-stage trial for murder, overruled an objection
to the denial o f a request for bifurcation, noting
pointedly, State v. Smith, 74 Wash. 2d 744, 446 P.
2d 571, 591 (1969) :
It may be true that the advantages o f a bi
furcated trial outweigh the disadvantages to
the defendants; but the defendants themselves
do not appear to be altogether certain o f this,
particularly the [co-] defendant Riggins, who
objected to the procedure when it was proposed
to the trial court.50
49 See, also, People v. Hurst, 42 111. 2d 217, 247 N.E. 2d 614
(1969) ; People v. K elley , 44 111. 2d 315, 255 H.E. 2d 390
(1970) , upholding the introduction o f bad-character evidence
in separate penalty hearings in capital cases under the Illinois
provision for the sentencing judge in all felony cases to hear
post-conviction evidence in aggravation and mitigation. See 111.
Ann. Stat. ch. 38, § l -7 (g ) (Smith Hurd, Supp, 1970).
50 See, also, the opinion o f the Chief Justice while a circuit
judge, in Frady v. United States, supra, 348 F. 2d at 115,
advancing similar reasons for cautioning against judicial estab
lishment o f mandatory bifurcation:
“ Various arguments against such a system appear in the pro
ceedings of the Judicial Conference o f this Circuit which
considered this problem in drafting the bill it sent to Congress:
e.g., that such a procedure would be troublesome, expensive and
time-consuming; that the introduction o f aggravating back
ground evidence would work too harshly against the defendant,
inflaming the jury rather than providing a basis for dispas
sionate exercise o f discretion. A further substantial argument
1 2 4
W ith the record this ambivalent on the crucial ques
tion o f what effect separate penalty trials may have on
the defendants who are exposed to them, there is a
need for prudent restraint in deciding that the Con
stitution requires their adoption as an integral feature
o f due process. To some extent, a separate hearing on
punishment probably does introduce greater “ ration
ality” into the jury sentencing system, in that the
jury is more likely to learn just how jaded a particu
lar defendant may be. But on the other hand, it ap
pears that this procedure does not ordinarily acquaint
the jury with substantially more extenuating circum
stances than they otherwise would observe or learn
about. There exists at present this disquieting uncer
tainty about whether a separate penalty trial may not
in fact tip the scales in favor o f a capital sentence.
Certainly our experience with bifurcated capital trials
over the past thirteen years is empty o f any genuine or
compelling indication that such procedures are more
fair to an accused than the traditional unitary trial.
It seems to us, therefore, that the Court should not
be encouraged to believe that bifurcation is so over
made against a two-trial system during the course o f our 1959
Judicial Conference proceedings was that defendants are prob
ably better off under the present system, since in many capital
cases the ‘insanity’ issue is raised and the accused reaps much
o f the benefit o f developing background information in mitiga
tion without the burden o f being exposed to evidence in aggra
vation. Some serious students o f this problem see an additional
point in that defense counsel may be slow to adapt their tactics
to a two-trial procedure, thus prejudicing their clients.” (foot
note omitted)
1 2 5
whelmingly indispensable to a fair trial and a just
sentence that due process o f law forbids any other
procedure.
CONCLUSION
In the view of the United States, therefore, there is
no constitutional reason why the judgments o f the
Supreme Court o f California in No. 203, McGautha v.
California, and o f the Supreme Court o f Ohio in ]STo.
204, Crampton v. Ohio, should not be affirmed.
Respectfully submitted.
E rw in 1ST. Griswold,
Solicitor General.
P hilip A. L a c o v a r a ,
Special Assistant to the
Attorney General.
October 1970.
405-388— 70-------10
A P P E N D I X A
Statutes I nvolved
I. Sections 190 and 190.1 of the California Penal
Code (West, Supp. 1970) provide:
§ 190. Every person guilty o f murder in the
first degree shall suffer death, or confinement
in the state prison for life, at the discretion of
the court or jury trying the same, and the
matter o f punishment shall be determined as
provided in Section 190.1, and every person
guilty o f murder in the second degree is punish
able by imprisonment in the state prison from
five years to life.
§ 190.1. The guilt or innocence o f every per
son charged with an offense for which the pen
alty is in the alternative death or imprisonment
for life shall first be determined, without a
finding as to penalty. I f such person has been
found guilty o f an offense punishable by life
imprisonment or death, and has been found
sane on any plea o f not guilty by reason of
insanity, there shall thereupon be further pro
ceedings on the issue o f penalty, and the trier
of fact shall fix the penalty. Evidence may be
presented at the further proceedings on the issue
o f penalty, o f the circumstances surrounding the
crime, o f the defendant’s background and his
tory, and o f any facts in aggravation or miti
gation o f the penalty. The determination o f the
penalty of life imprisonment or death shall be
in the discretion o f the court or jury trying the
issue o f fact on the evidence presented, and the
penalty fixed shall be expressly stated in the
decision or verdict. The death penalty shall not
be imposed, however, upon any person who
was under the age o f 18 years at the time of
the commission o f the crime. The burden of
( 126)
1 2 7
proof as to the age o f said person shall be
upon the defendant.
I f the defendant was convicted by the court
sitting without a jury, the trier o f fact shall be
the court. I f the defendant was convicted by a
plea o f guilty, the trier o f fact shall be a jury
unless a jury is waived. I f the defendant was
convicted by a jury, the trier o f 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
o f penalty.
In any case in which defendant has been
found guilty by a jury, and the same or an
other jury, trying the issue o f penalty, is unable
to reach a unanimous verdict on the issue o f
penalty, the court shall dismiss the jury and
either impose the punishment for life in lieu of
ordering a new trial on the issue o f penalty, or
order a new jury impaneled to try the issue o f
penalty, but the issue o f guilt shall not be
retried by such jury.
II . Section 2901.01 o f the Ohio Revised Code Ann.
(Page, 1954), provides:
ISTo person shall purposely, and either o f de
liberate and premeditated malice, or by means
o f poison, or in perpetrating or attempting to
perpetrate a rape, arson, robbery, or burglary,
kill another.
Whoever violates this section is guilty of
murder in the first degree and shall be pun
ished by death unless the jury trying the ac
cused recommends mercy, in which case the
punishment shall be imprisonment for life.
Murder in the first degree is a capital crime un
der Section 9 and 10 o f Article I, Ohio Constitu
tion.
A P P E N D I X B
I nitial I ntroduction of J ury D iscretion to Set L ife
Sentence for Murder and/ or Other Capital Of
fenses 1 (N one P roviding Statutory Standards)
1838— Tennessee, A ct of June 10, 1838, Laws 1837-
1838, ch. 29.
1841— Alabama, Penal Code o f 1841 (A ct o f Jan. 9
1841), cb. 3, § 1, Acts 1841, p. 122.
1846— Louisiana, Act o f June 1, 1846, Acts 1846, No.
139, p. 118 (all capital crimes)
1858— Texas, Act o f February 12, 1858, Gen. Laws
1858, ch. 121, art. 71a (in any capital case,
when lesser penalty authorized, jury to fix
penalty)
1861— Georgia, Code 1861, § 4220
1866— Georgia, Acts 1866, No. 208 (all capital crimes)
Georgia, Acts 1866, No. 210 (rape)
1867— Illinois, Public Laws 1867, p. 90, § 1 (all capi
tal felonies; life or term not less than 14
years optional)
1868— Minnesota, General Laws 1868, ch. 88
1869— Kentucky, Public Acts 1869, eh. 1659, § 1 p.
52 (rape; jury to sentence to death or term
of years)
1870— W est Virginia, Code 1870, ch. 159, § 19
U n less otherwise indicated, all provisions relate to murder.
Four states that abolished capital punishment for murder
in the middle o f the last century are the only states that have
not enacted statutes o f this type authorizing jury discretion
(Rhode Island, Maine, Michigan, and Wisconsin).
U2 8)
1 2 9
1872— Florida, Acts 1872, No. 15, eh. 1877 (any capital
offense)
Mississippi, Laws 1872, ch. 76, § 5 (in any capi
tal case, life sentence with “ consent” o f jury)
1873— Kentucky, Gen. Stat. 1873, ch. 29, art. 3, § 3,
p. 322
1874— California, Act of March 28, 1874, Amendatory
Acts 1873-1874, eh. 508, p. 457
1876— Utah Territory, Penal Code o f 1876, § 90,
Comp. Laws 1876, p. 586
1878— Iowa, Laws 1878, ch. 165 [on re-establishment
of capital punishment]
South Carolina, Acts 1878, No. 541 (arson and
rape)
1881— Indiana, Revised Statutes 1881, § 1904
1883— Dakota Territory, Laws 1883, ch. 9, §§ 1, 2
1885—Arizona Territory, Acts 1885, No. 70, p. 134
(life, unless jury fixes death)
1890— Oklahoma Territory, Statutes 1890, ch. 25, § 13,
p. 446 [enacted by first territorial legisla
ture]
1893— Nebraska, Laws 1893, ch. 44
1894— South Carolina, Acts 1894, No. 530, p. 785
1897— United States, Act o f January 15, 1897, c. 29,
§ 1, 29 Stat. 487 (murder and rape; jury au
thorized to prescribe “ without capital pun
ishment” )
1898— Ohio, 93 Ohio Laws 223
1899— Alaska, Criminal Code, Act o f March 3, 1899, c.
429, §§ 3, 4, 30 Stat. 1253 (murder punishable
by death unless jury qualifies verdict by add
ing “ without capital punishment” )
1901— Colorado, Laws 1901, ch. 64, § 2 [on re-establish
ment o f capital punishment]
1903— New Hampshire, Laws 1903, ch. 114, § 1
1 3 0
1907— Missouri, Laws 1907, p. 235
Montana, Laws 1907, ch. 179, § 1
1910— Vermont, Acts 1910, Vo. 225
1911— Idaho, General Laws 1911, ch. 68, § 1, p. 190
Nevada, Act o f March 11, 1911, § 121, Revised
Laws 1912, § 6386
1914— Virginia, Acts 1914, eh. 240, p. 419
1915— Arkansas, Acts 1915, Vo. 187, § 1 (all capital
cases)
Wyoming, Session Laws 1915, ch. 87, § 1
1916— Maryland, Laws 1916, ch. 214, § 1 (murder pun
ishable by death or life in discretion o f court
unless jury adds binding qualification “ with
out capital punishment” )
Vew Jersey, Pub. Laws 1916, ch. 270, § 1, p. 576.
1917— Delaware, Laws 1917, ch. 266 (all capital cases;
jury authorized to make non-binding recom
mendation o f life)
1919— Washington, Session Laws 1919, ch. 112, § 1, p.
273 [on re-establishment o f capital punish
ment] [under Session Laws 1909, ch. 249,
§ 140, prior to abolition, discretion had been
given to court]
1920— Oregon, Gen. Laws 1920, ch. 19 (death, unless
jury fixes life) [on re-establishment o f capi
tal punishment]
1925— Pennsylvania, Public Laws 1925, ch. 411, § 1, p.
759
1935— Kansas, Laws 1935, ch. 154 [on re-establish
ment o f capital punishment]
1937—V ew York, Laws 1937, ch. 67, §§ 1, 2 (death, un
less jury fixes life)
1939— Vew Mexico, Laws 1939, ch. 49 (death, unless
jury specifies life)
1949— Vorth Carolina, Session Laws 1949, ch. 299 (all
capital cases)
131
1951— Connecticut, Public Acts 1951,3STo. 369
Massachusetts, Acts 1951, ch. 203 (death, unless
ju ry fixes life ; death mandatory for murder
in course o f rape)
1955— Hawaii, Laws 1955, Act 239, § 4
1962— District o f Columbia, Act o f March 22, 1962,
Pub. L. 87-423, § 1, 76 Stat. 46.
A P P E N D I X C
States A uthorizing J ury To Exercise D iscretion
in U nitary Trial T o Set Sentence for Murder
at D eath or L ife I mprisonment (D one P roviding
Statutory Standards) 1
Ala. Code tit. 14, § 318 (1958)
Ariz. Rev. Stat. Ann. § 13-453 (1956)
Ark. Stat. §§ 41-2227 (death penalty specified for mur
der), 43-2153 (ju ry has right to render life verdict
in any capital case) (1964)
Colo. Rev. Stat. § 40-2-3 (1963)
Del. Code Ann. tit. 11, §§ 571 (death penalty specified
for murder), 3901 (in all capital cases jury may
make nonbinding recommendations of life) (Supp.
1968)
1 Except as otherwise noted, statutes do not provide that one
penalty or the other will be imposed in the absence o f a con
trary determination by the jury.
Two states permitting capital punishment for murder do not
leave the penalty question with the jury. In North Dakota only
first degree murder committed while serving a life sentence
for murder may be punished by death, but the judge determines
whether to impose the death sentence. See N.D. Cent. Code
§§ 121-27-13 (1960), 12-06-06 (Supp. 1969). In Rhode Island,
murder is punishable by life imprisonment unless committed by
a person under a life sentence, in which case the death penalty
is directed. See R.I. Gen. Laws § 11-23-2 (1969).
In nine states there is no death penalty for murder, the maxi
mum punishment being life imprisonment. See Alaska Stat.
§§ 11.15.010, 11.15.020 (Supp. 1968) ; Hawaii Rev. Stat. § 748-4
(1968); Iowa Code Ann. § 690.2 (Supp. 1969); Me. Rev. Stat. Ann.
tit. 17, § 2651 (1964); Mich. Comp. Laws § 750.316 (Supp. 1970) ;
Minn. Stat. Ann. § 609.185 (1964); Ore. Rev. Stat. §163.010
(1967) ; W. Ya. Code § 61-2-2 (1966) ; Wis. Stat, Ann. § 940.01
(1958).
(1 3 2 )
1 3 3
D.C. Code Ann. § 22-2404 (1967) (death unless jury
recommends life)
Fla. Stat. Ann. §§ 782.04 (1965) (death penalty speci
fied for murder), 919.23(2) (1944) (in all capital
cases jury may sentence to life)
Idaho Code § 18-4004 (1948)
Illinois Ann. Stat. eh. 38, §§ 9-1 (Smith-Hurd, 1964)
(indeterminate term o f fourteen years to life, or
death for murder), 1 -7 (c ) (1 ) (Smith-Hurd, Supp.
1970) (imprisonment unless jury returns non-bind
ing verdict o f death) [Illinois Criminal Code of
1961, Laws 1961 p. 1983]
Ind. Ann. Stat. §§ 10-3401 (life or death for murder),
9-1819 (jury fixes punishment)
Kan. Stat. Ann. §§ 21-3401 (murder is Class A felony
punishable by death or life ), 21-4501 (ju ry deter
mines which punishment to lie inflicted for Class A
felonies) (Supp. 1969) [as added by Kansas Crim
inal Code o f 1969, Laws 1969, ch. 80, effective July
1, 1970]
Ky. Rev. Stat. § 435.010 (1969) (murder punishable
by death or life) (1969); Ky. R. Crim. P. § 9.84
(1969) (ju ry fixes punishment)
La. Stat. Ann. § 14.30 (1951) (death penalty specified
for m urder); La. Code Crim. P . Ann, art. 817
(W est 1967) (ju ry may qualify verdict in any capi
tal case as “ without capital punishment” )
Md. Ann. Code art. 27, § 413 (1967) (death or life, to
be determined by court, unless jury specifies “ with
out capital punishment” )
Mass. Ann. Laws, ch. 265, § 2 (1968) (death, unless
jury fixes life)
Miss. Code Ann. §§ 2217 (death penalty specified for
murder), 2536 (in any capital case, jury may reduce
penalty to life) (1956)
1 3 4
Mo. Ann. Stat. §§ 559.030 (1959) (death or life for
murder) 546.410 (1953) (ju ry selects punishment in
any case where alternatives available)
Mont. Rev. Codes § 94-2505 (1969)
Neb. Rev. Stat. § 28-401 (as amended by Laws 1969,
eh. 213, p. 829 [providing for penalty to be deter
mined by court after guilty plea or judge-trial])
Nev. Rev. Stat. § 200.030 (1969)
N.H. Rev. Stat. Ann. § 585:4 (1955) (life, unless jury
specifies capital punishment)
N.J. Stat. §2A :113-4 (1951) (death, unless jury rec
ommends life)
N.M. Stat. Ann. § §4 0 A -2 -l (murder is capital
felony), 40A-29-2 (capital felon to be sentenced
to death unless jury sets life) (1964), 40A-29-2.1
(Supp. 1969) (as added by Laws 1969, ch. 128, § 1,
providing there shall be no capital punishment
except for killing peace officer or, i f jury rec
ommends death, for committing second capital
felony after time for “ due deliberation” following
commission o f capital felony)
N.C. Gen. Stat. § 14-17 (1969) (death, unless jury
recommends life)
Ohio Rev. Code Ann. § 2901.01 (Page, 1954) (death,
unless jury recommends mercy)
Okla. Stat. Ann. tit. 21, § 707 (1958)
S.C. Code § 16-52 (1962) (death, unless jury sets life)
S.D. Comp. Laws §§ 22-16-12 (murder punishable by
death or life) ; 22-16-13 (after return o f guilty ver
dict, court may require jury to deliberate on punish
ment, with or without instructions; death sentence
authorized, but not required, only i f jury so rec
ommends) ; 23-48-16 (whenever court has discre
tion on punishment it may hear evidence on aggra
vation or mitigation) (1967)
1 3 5
Term. Code Arm. §§ 39-2405, 39-2406 (1956) (death,
unless jury finds “ mitigating circumstances,” then
may fix term from 20 years up to life)
Utah Code Ann. § 76-30-4 (1953) (death, unless jury
recommends life)
Vt. Stat. Ann. tit. 13, § 2303 (Supp. 1969) (death
penalty authorized, in the determination o f the
jury, only for unrelated second murder or for kill
ing o f peace officer)
Va. Code §§ 18.1-22, 19.1-250 (1960) (death, life, or
at least 20 years)
Wash. Rev. Code § 9.48.030 (1956) (life, unless jury
imposes death)
W yo. Stat. § 6-54 (1957) (death, unless jury qualifies
verdict as “ without capital punishment” )
A P P E N D I X D
States A uthorizing J ury T o E xercise D iscretion in
Separate, P ost-Guilt P roceeding T o Set Sen
tence for Murder at Death or L ife I mprisonment
(N one P roviding Statutory Standards)
Calif. Penal Code §§ 190, 190.1 (West, Supp. 1970)
[§ 190.1, providing for bifurcation, added by Stat.
1957, eh. 1968, § 2, p. 3509]
Conn. Gen. Stat. § 53-10 (1968) [as amended by Pub.
Acts 1963, Xo. 588, to provide for separate proceed
ing on penalty] [superseded by § 46 o f Connecticut
Penal Code, effective October 1,1971, Pub. Acts 1969,
Xo. 828, also providing for bifurcation, making jury
recommendation o f death penalty non-binding]
Georgia Code Ann. §§ 26-1101 (death or life for mur
der), 26-3102 (in all capital cases, death to be
imposed only i f jury so recommends, otherwise
life) (Supp. 1969) [as added by Criminal Code of
Georgia, Laws 1968, p. 1249, effective July 1, 1969]
[bifurcation now authorized by Act o f March 27,
1970, Laws 1970, Xo. 1333, p. 949: in all felony
eases, separate pre-sentence hearing to be conducted
before same jury as returned guilty verdict, to de
termine punishment; jury to fix punishment unless
it cannot agree; death sentence may not be imposed
unless jury so decides].
X .Y . Penal Law §§ 125.30, 125.35 (1967) [bifurca
tion first authorized under prior Penal Law by
Laws 1963, ch. 994, §§ 1, 2, amending form er Sec
tions 1045 and 1045-a]
Pa. Stat. tit. 18, § 4701 (1963) [as amended by Public
Laws 1959, Xo. 594, § 1 , p. 1621, to provide for sep
arate proceeding on penalty]
(1 3 6 )
137
Tex. Penal Code Ann. art. 1257 (1961) (murder
punishable by death, or term o f at least two years) ;
Tex. Code Crim. P. Ann. art. 37.07 (2) (b ) (Supp.
1970) (where state seeks death penalty, punish
ment to be determined by jury) [bifurcation first
authorized under prior provision, Texas Code of
Criminal Procedure o f 1965, Acts 1965, eh, 722, vol.
2, p. 317: punishment to be determined by judge
unless defendant elected jury determination; sep
arate penalty hearing authorized in either event]
A P P E N D I X E
F ederal Civil Statutes A uthorizing D iscretion in
I mposing Capital P unishment (N one P roviding
S tatutory Standards) 1
I. Statutes Under W hich Only the Jury Can Im
pose Death Sentence:1 2
18 U.S.C. § 837 (b ) (transporting explosives with
intent to injure, if death results)
18 U.S.C. § 1201(a) (kidnapping, if victim not
released unharmed)
18 U.S.C. § 2113(e) (bank robbery accompanied
by death or kidnapping)
21 U.S.C. § 176b (selling heroin to minor)
42 U.S.C. § 2272 (violating or impeding enforce
ment of Atomic Energy Act)
42 U.S.C. §§2274, 2275, 2276 (communicating,
acquiring, or tampering with restricted data
with intent to injure United States)
II . Statutes W hich Provide For Death Penalty
1 The death penalty is not mandatory under any federal
civil statutes. Since 1930, there have been 33 executions under
the civil authority of the federal government: 15 for murder,
6 for kidnapping (in five such cases the victim had been
killed), 6 for sabotage, 2 for rape, 2 for espionage, and 2 for
bank robbery with homicide. There has been only one federa
civil execution since 1957, and that in 1963 for kidnapping.
See U S. Bureau o f Prisons, National Prisoner Statistics Bul
letin: 'Capital Punishment 1930-1968 table 14 (August 1969).
2 The death penalty provisions in two o f the statutes in
this category were held unconstitutional in United States v.
Jackson, 390 U.S. 570 (1968) (18 U.S.C. § 1201(a)), and Pope
v. United States, 392 U.S. 651 (1968) (18 U.S.C. § 2113(e)).
(188)
1 3 9
Unless Jury Qualifies Its Verdict as “ W ithout Capi
tal Punishment” :
18 U.S.C. §1111 (first degree murder within
federal territory)
18 U.S.C. § 1114 (murder o f designated federal
officials)
18 U.S.C. § 1751 (murder or kidnapping, i f death
results, o f President or others in line o f presi
dential succession)
I I I . Statutes W hich Provide that Jury or Judge
Trying Guilt, or Judge A fter Guilty Plea, May Set
Death Penalty:
18 U.S.C. § 34 (destruction o f aircraft or motor
carrier facilities, resulting in death)
18 U.S.C. § 1716 (causing death by mailing in
jurious substances)
18 U.S.C. § 1992 (train wrecking resulting in
death) [death or life, in discretion of jury or
o f court in case o f guilty plea; no provision
with respect to trial by court]
49 U.S.C. §1472 ( i ) (aircraft piracy)
IV . Statutes W hich Leave Capital Sentencing Dis
cretion to the Court in All Situations:
18 U.S.C. § 794 (delivery o f defense information
to foreign government)
18 U.S.C. § 2031 (rape within federal territory)
18 U.S.C. § 2381 (treason)
A P P E N D I X F
Offenses U nder the .Uniform Code of M ilitary
J ustice P unishable by D eath or Such Other
P unishment as a Court M artial May D irect 1
Art. 85, 10 U.S.C. § 885 (desertion in time o f war)
Art. 90, 10 U.S.C. § 890 (striking, drawing weapon
on, or disobeying lawful order o f superior, in time
of war)
Art. 94, 10 U.S.C. § 894 (mutiny)
Art. 99,10 U.S.C. § 899 (misbehavior before the
enemy)
Art. 10*0, 10 U.S.C. § 900 (subordinate’s compelling
surrender)
Art. 101, 10 U.S.C. § 901 (improper use or disclosure
o f countersign in time o f war)
Art, 102, 10 U.S.C. § 902 (forcing a safeguard)
Art. 104, 10 U.S.C. § 904 (aiding the enemy)
Art, 110, 10 U.S.C. § 910 (wilfully hazarding military
vessel)
Art. 113, 10 U.S.C. § 913 (misbehavior by sentinel)
Art. 118; 10 U.S.C. $ 918 (murder)
Art. 120,10 U.S.C. § 920 (rape)
1 The Uniform Code provides a mandatory death sentence
only for one crime, spying, Art, 106, 10 U.S.C. § 906,
Since 1930, the Army and the Air Force have carried out
160 executions, none since 1961. O f these, 106 were for murder,
and 53 for rape. (As to the present scope o f court-martial
jurisdiction over such offenses, see O'1 Callahan v. Parker, 395
U.S. 258 (1969).) The remaining execution was for desertion.
The Navy has not executed any one since 1849. See U.S.
Bureau of Prisons, National Prisoner Statistics Bulletin:
Capital Punishment 1930-1968 at p. 1 n. 2 (August 1969).
(140)
I. Section 210.6 o f the American Law Institute’s
Model Penal Code (Prop. Off. Draft 1962) provides:
‘ ‘ Section 210.6. Sentence o f Death for Murder;
Further Proceedings to Determine Sentence
“ (1) Death Sentence Excluded. When a defendant
is found guilty o f murder, the Court shall impose
sentence for a felony o f the first degree i f it is
satisfied that:
(a ) none o f the aggravating circumstances
enumerated in Subsection (3) o f this Section
was established by the evidence at the trial or
will be established i f further proceedings _ are
initiated under Subsection (2) o f this Section;
or
(b ) substantial mitigating circumstances,
established by the evidence at the trial, call for
leniency; or
(c ) the defendant, with the consent of the
prosecuting attorney and the approval o f the
Court, pleaded guilty to murder as a felony of
the first degree; or
(d ) the defendant was under 18 years o f age
at the time o f the commission o f the crime; or
(e) the defendant’s physical or mental con
dition calls for leniency; or
( f ) although the evidence suffices to sustain
the verdict, it does not foreclose all doubt re
specting the defendant’s guilt.
“ (2) Determination by Court or by Court and Jury.
Unless the Court imposes sentence under Subsection
(1) o f this Section, it shall conduct a separate pro
ceeding to determine whether the defendant should
APPENDIX G
(141)
4<Xo-388— 'TO- 11
1 4 2
be sentenced for a felony o f the first degree or sen
tenced to death. The proceeding shall be conducted
before the 001114; alone if the defendant was convicted
by a Court sitting without a jury or upon his plea
of guilty or i f the prosecuting attorney and the de
fendant waive a jury with respect to sentence. In
other cases it shall be conducted before the Court
sitting with the jury which determined the defendant’s
guilt or, if the Court for good cause shown dis
charges that jury, with a new jury empanelled for
the purpose.
“ In the proceeding, evidence may be presented as
to any matter that the Court deems relevant to sen
tence, including but not limited to the nature and
circumstances o f the crime, the defendant’s character,
background, history, mental and physical condition
and any of the aggravating or mitigating circum
stances enumerated in Subsections (3) and (4 ) o f this
Section. Any such evidence which the Court deems to
have probative force may be received, regardless o f its
admissibility under the exclusionary rules o f evidence,
provided that the defendant’s counsel is accorded a
fair opportunity to rebut any hearsay statements. The
prosecuting attorney and the defendant or his counsel
shall be permitted to present argument for or against
sentence of death.
“ The determination whether sentence o f death shall
be imposed shall be in the discretion o f the Court,
except that when the proceeding is conducted before
the Court sitting with a jury, the Court shall not
impose sentence o f death unless it submits to the jury
the issue whether the defendant should be sentenced
to death or to imprisonment and the jury returns a
verdict that the sentence should be death. I f the ju iy
is unable to reach a unanimous verdict, the Court shall
dismiss the jury and impose sentence for a felony o f
the first degree.
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“ The Court, in exercising its discretion as to sen
tence, and the jury, in determining upon its verdict,
shall take into account the aggravating and mitigating
circumstances enumerated in Subsections (3) and (4)
and any other facts that it deems relevant, but it
shall not impose or recommend sentence o f death
unless it finds one o f the aggravating circumstances
enumerated in Subsection (3) and further finds that
there are no mitigating circumstances sufficiently sub
stantial to call for leniency. W hen the issue is sub
mitted to the jury, the Court shall so instruct and also
shall inform the jury o f the nature o f the sentence of
imprisonment that may be imposed, including its im
plication with respect to possible release upon parole,
i f the jury verdict is against sentence o f death.
“ Alternative formulation o f Subsection (2) :
“ (2) Determination by Court. Unless the Court im
poses sentence under Subsection (1) o f this Section,
it shall conduct a separate proceeding to determine
whether the defendant should be sentenced for a
felony o f the first degree or sentenced to death. In the
proceeding, the Court, in aeeordane with Section 7.07,
shall consider the report o f the pre-sentence investi
gation and, if a psychiatric examination has been
ordered, the report o f such examination. In addi
tion, evidence may be presented as to any matter
that the Court deems relevant to sentence, including
but not limited to the nature and circumstances of
the crime, the defendant’s character, background, his
tory, mental and physical condition and any o f the
aggravating or mitigating circumstances enumerated
in Subsections (3 ) and (4) o f this Section. Any such
evidence which the Court deems to have probative
force may be received, regardless o f its admissibility
under the exclusionary rules of evidence, provided
that the defendant’s counsel is accorded a fair oppor
1 4 4
tunity to rebut any hearsay statements. The prose
cuting attorney and the defendant or his counsel shall
be permitted to present argument for or against sen
tence o f death.
“ The determination whether sentence o f death shall
be imposed shall be in the discretion o f the Court.
In exercising such discretion, the Court shall take
into account the aggravating and mitigating circum
stances enumerated in Subsections (3) and (4) and
any other facts that it deems relevant but shall not
impose sentence o f death unless it finds one o f the
aggravating circumstances enumerated in Subsection
(3) and further finds that there are no mitigating
circumstances sufficiently substantial to call for
leniency.
“ (3) Aggravating Circumstances.
(a) The murder was committed by a convict
under sentence o f imprisonment.
(b ) The defendant was previously convicted
o f another murder or o f a felony involving the
use or threat o f violence to the person.
(c ) At the time the murder was committed
the defendant also committed another murder.
(d ) The defendant knowingly created a
great risk o f death to many persons.
(e) The murder was committed while the
defendant was engaged or was an accomplice in
the commission of, or an attempt to commit, or
flight after committing or attempting to com
mit robbery, rape or deviate sexual intercourse
by force or threat o f force, arson, burglary or
kidnapping.
( f ) The murder was committed for the pur
pose o f avoiding or preventing a lawful arrest
or effecting an escape from lawful custody.
(g ) The murder was committed for pecuni
ary gain.
(h) The murder was especially heinous, atro-
145
eious or cruel, manifesting exceptional de
pravity.
“ (4) Mitigating Circumstances.
(a ) The defendant has no significant history
o f prior criminal activity.
(b ) The murder was committed while the
defendant was under the influence of extreme
mental or emotional disturbance.
(e) The victim was a participant in the de
fendant’s homicidal conduct or consented to the
homicidal act.
(d ) The murder was committed under circum
stances which the defendant believed to provide
a moral justification or extenuation for his con
duct.
(e) The defendant was an accomplice in a
murder committed by another person and his
participation in the homicidal act was relatively
minor.
( f ) The defendant acted under duress or
under the domination of another person.
(g ) At the time o f the murder, the capacity
o f the defendant to appreciate the criminality
[wrongfulness] o f his conduct or to conform
his conduct to the requirements o f law was
impaired as a result o f mental disease or defect
or intoxication.
(h ) The youth o f the defendant at the time
o f the crime.”
II . Chapter 36, “ Sentence of Death or L ife Im
prisonment” , o f the National Commission on Reform
o f Federal Criminal Laws, Study D raft of‘ a New
Federal Criminal C ode1 (1970), provides in part:
xThe Study Draft would provide for a death penalty only
for treason and for certain categories o f intentional murder. See
Sections 1601 and 3602.
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“ § 3602. W hen Sentence o f Death or L ife Imprison
ment Authorized
“ A sentence o f death or of life imprisonment is
authorized only for a defendant found guilty o f :
(a ) treason (section 1101);
(b ) first degree murder (section 1601).
[ § 1601. Murder.
(1) Offense. A person is guilty o f murder
i f he:
* * * * *
(2) Grading. Murder is in the first degree,
punishable as provided in Chapter 36, i f it is:
(a) intentional murder o f the President, Vice
President, President-elect or Vice-President-
elect o f the United States; (b ) intentional mur
der o f a law enforcement officer, or a public
servant having custody o f the defendant or an
other, to prevent the performance o f his official
duties; or (c) intentional murder by a convict,
under sentence o f imprisonment for murder or
under sentence o f life imprisonment or death,
while in custody or immediate flight therefrom.
Otherwise murder is in the second degree, a
Class A felony.]
“ § 3603. Death Sentence Excluded
“ I f a defendant is found guilty o f a crime listed
in section 3602, the court shall impose a sentence of
life imprisonment if it is satisfied that:
(a ) the defendant was less than eighteen
years old at the time o f the commission o f the
crim e;
_ (b ) the defendant’s physical or mental con
dition calls for leniency;
(c ) although the evidence suffices to sustain
the verdict, it does not foreclose all doubt re
specting the defendant’s guilt; or
(d) there are other substantial mitigating
circumstances which render sentence o f death
unwarranted.
14 7
“ §3604. Further Proceedings To Determine Sentence
(1) Court or Jury. Unless the court imposes
sentence under section 3603, it shall conduct a
separate proceeding to determine whether the
defendant should be sentenced to death or life
imprisonment. The proceeding shall be con
ducted before a jury unless the defendant, with
the approval o f the court, waives it. I f a jury
determined the defendant’s guilt and it is not
discharged by the court for good cause,_ the
proceeding shall be conducted with that jury.
Otherwise it shall be conducted with a jury
empaneled for that purpose.
(2) Evidence and Instructions. In the pro
ceeding, evidence may be presented by either
party as to any matter relevant to sentence,
including the nature and circumstances o f the
crime, defendant’s character, backgroimd, his
tory, mental and physical condition, and any
aggravating or mitigating circumstances. Any
such evidence, not legally privileged, which the
court deems to have probative force, may be
received, regardless o f its admissibility under
the exclusionary rules o f evidence, provided
that the defendant is accorded a fair oppor
tunity to rebut such evidence.
(3) Verdict and Sentence. The determina
tion whether a sentence o f death shall be im
posed shall be in the discretion o f the court,
except that when the proceeding is conducted
before the court sitting with a jury, the court
shall not impose a sentence o f death unless it
submits to the jury the issue whether the de
fendant should be sentenced to death or life
imprisonment and the jury returns a verdict
that the sentence should be death. I f the
jury is unable to reach a unanimous verdict,
the court shall impose a sentence o f life im
prisonment.
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“ § 3605. Criteria for Determination
(1) Consideration o f aggravating and miti
gating circumstances. In deciding whether a
sentence o f death should be imposed, the court
and the jury, if any, may consider the mitigat
ing and aggravating circumstances set forth
in the subsections below. [The death sentence
shall not be imposed unless one o f the aggravat
ing circumstances be found.]
(2) Mitigating Circumstances. In the cases
o f both treason and murder the following shall
be mitigating circumstances:
(a ) the crime was committed while the
defendant was under the influence o f ex
treme mental or emotional disturbance;
(b ) the defendant acted under unusual
pressures or influences or under the domi
nation o f another person;
(c ) at the time o f the offense, the ca
pacity of the defendant to appreciate the
wrongfulness o f his conduct or to conform
his conduct to the requirements of law was
impaired as a result o f mental disease or
defect or intoxication;
'(d ) the youth o f the defendant at the
time of the offense;
(e) the defendant was an accomplice in
the offense committed by another person
and his participation was relatively
m inor;
( f ) the offense was committed under
circumstances which the defendant be
lieved to provide a moral justification or
extenuation for his conduct;
(g ) the defendant has no significant his
tory o f prior criminal activity.
(3) Aggravating Circumstances (Treason).
In the case o f treason, the following shall be
aggravating circumstances:
(a ) the defendant knowingly created a
great risk o f death to another person or a
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great risk o f substantial impairment of
national security;
(b ) the defendant violated a legal duty
concerning protection o f the national se
curity ;
(c ) the defendant committed treason for
pecuniary gain.
(4 ) Aggravating Circumstances (M urder).
In the case o f murder, the following shall be
aggravating circumstances:
(a ) the defendant was previously con
victed of another murder or a felony in
volving the use or threat o f violence to the
person;
(b ) at the time the murder was commit
ted the defendant also committed another
m urder;
(c ) the defendant knowingly created a
great risk o f death to many persons;
(d ) the murder was committed while the
defendant was engaged or was an accom
plice in the commission of, or an attempt
to commit, or flight after committing or
attempting to commit robbery, rape, or
deviate sexual intercourse by force or
threat o f force, arson, burglary or kid
napping ;
(e) the murder was committed for pe
cuniary gain ;
( f ) the murder was especially heinous,
atrocious, or cruel, manifesting excep
tional depravity.
U .S . GOVERNMENT PRINTING O F F IC E : 1970