McGautha v. State of California Brief Amicus Curiae for the United States

    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