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. 1 4 3 “ 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. 1 4 6 “ § 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. 1 4 8 “ § 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 1 4 9 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