Crampton v State of Ohio Motion for Leave to File Brief Amicus Curiae
Public Court Documents
January 1, 1970
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Brief Collection, LDF Court Filings. Crampton v State of Ohio Motion for Leave to File Brief Amicus Curiae, 1970. 1cdb9c8a-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a26a881a-0770-4c40-b150-bba214b63e2a/crampton-v-state-of-ohio-motion-for-leave-to-file-brief-amicus-curiae. Accessed June 07, 2025.
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In the
9
Supreme ©xutrt ni % IniUb
October Term, 1970
No. 203
Dennis Councle McGautha,
Petitioner,
State oe California,
Respondent.
ON WRIT OP CERTIORARI TO THE SUPREME COURT OP CALIFORNIA
No. 204
James Edward Crampton,
—v,—
State of Ohio,
Petitioner,
Respondent.
on writ of certiorari to the supreme court of OHIO
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE AND
BRIEF AMICI CURIAE OF THE N.A.A.C.P. LEGAL DEFENSE
AND EDUCATIONAL FUND, INC., AND THE NATIONAL
OFFICE FOR THE RIGHTS OF THE INDIGENT
Jack Greenberg
James M. Nabrit, III
Jack H immelstein
10 Columbus Circle, Suite 2030
New York, New York 10019
Michael Meltsner
Columbia University School of Law
New York, New York 10027
A nthony G. A msterdam
Stanford University Law School
Stanford, California 94305
Attorneys for the N.A.A.C.P. Legal
Defense and Educational Fund,
Inc., and the National Office for
the Rights of the Indigent
I N D E X
Motion for Leave to File Brief Amici Curiae and State
ment of Interest of the A m ici...................................... 1-M
Brief Amici Curiae ............................................................ 1
Summary of Argument .................................................. 2
Argument .......................................................................... 3
I. Introduction ................... -....................................... 3
II. The Issue of Standardless and Arbitrary Capi
tal Sentencing P ow er............................................ 18
A. The Nature of the Powrnr ............................. 18
1. Ohio ................................................ 18
2. California .................................................... 30
3. Other Jurisdictions .................................. 49
B. The Power Is Unconstitutional ................... 64
III. The Issue of the Single-Verdict Capital Trial 72
IV. The Question of Retroactivity ............... ........... 74
A. The “ Standards” Issue ................................... 74
B. The Single-Verdict Trial Issue ................... 78
Conclusion ............................................................................. 82
A ppendix A —
Brief for Petitioner, William L. Maxwell v. 0. E.
Bishop, O.T. 1968, No. 622 ..................................... la
A ppendix B—
Available Information Relating to the Proportion
of Persons Actually Sentenced to Death, Among
Those Convicted of Capital Crimes ..................... 24a
A ppendix C—
Manner of Submission of the Death-Penalty Issue
at Petitioner Maxwell’s Trial ............................... 35a
PAGE
11
T able op A uthorities
page
Cases:
Adderly v. Wainwright, U.S.D.C., M.D. Fla., No. 67-
298-C iv -J .......... ................. ................ ............... ............... 3-M
Akins v. State, 148 Tex. Crim. App. 523, 182 S.W.2d
723 (1944) ............................ ...... .............. ......... ....... 64
Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954) .... 55
Andres v. United States, 333 U.S. 740 (1948) ............... 50
Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214
(1935) .......................................................................21,72,74
Bagley v. State,------ A rk .------- , 444 S.W.2d 567 (1969) 61
Baker v. State, 137 Fla. 27, 188 So. 634 (1939) ....... . 64
Bankhead v. State, 124 Ala. 14, 26 So. 979 (1899) ____ 51
Barfield v. State, 179 Ga. 293, 175 S.E. 582 (1934) ____ 55
Batts v. State, 189 Tenn. 30, 222 S.W.2d 190 (1946) .... 64
Baugus v. State, 141 So.2d 264 (Fla. 1962) ..55, 57, 61, 63, 68
Beard v. State, 64 Ohio Law Abs. 532, 112 N.E.2d 832
(1951) .............. ......................... ...................... 19
Boggs v. State, 268 Ala. 358, 106 S.2d 263 (1958) ......... 55
Bouie v. City of Columbia, 378 U.S. 347 (1964) ........... 71
Boykin v. Alabama, 395 U.S. 238 (1969) (O.T. 1968,
No. 642) ......................................................... .. ........... 3-M, 49
Brown v. State, 109 Ala. 70, 20 So. 103 (1896) ... ....... 58, 62
Brown v. State, 190 Ga. 169, 8 S.E.2d 652 (1940) ------ 60
Burgess v. State, 256 Ala. 5, 53 So.2d 568 (1951) ....... 51
Burnette v. State, 157 So.2d 65 (Fla. 1963) ............ ...55, 61
Butler v. Alabama, O.T. 1970, No. 5492 ........ .................. 62
City of Toledo v. Reasonover, 5 Ohio St. 2d 22, 213
N.E.2d 179 (1965) .... ..................................................... 18
Commonwealth v. Brown, 309 Pa. 515, 164 A. 726
(1933) 58
I l l
Commonwealth v. Edwards, 380 Pa. 52, 110 A.2d 216
(1955)... ................................................................................ 64
Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241
(1959) 64
Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84
(1948) ........................................................................ 55,64
Commonwealth v. McNeil, 328 Mass. 436, 104 N.E.2d
153 (1952) ..... 57,72
Commonwealth v. Nassar, 354 Mass. 249, 237 N.E.2d
39 (1968) ..................................... 57
Commonwealth v. Eoss, 413 Pa. 35, 195 A.2d 81 (1963) 62
Commonwealth v. Smith, 405 Pa. 456, 176 A.2d 619
(1962) 64
Commonwealth v. Taranow, 359 Pa. 342, 59 A.2d 53
(1948) .................... 55
Commonwealth v. Wooding, 355 Pa. 555, 50 A.2d 328
(1947) .......................................................................55,56,61
Commonwealth v. Zeitz, 364 Pa. 294, 72 A.2d 282 (1950) 64
Daniels v. State, 199 Ga. 818, 35 S.E.2d 362 (1945) .....60, 66
Davis v. State, 123 So.2d 703 (Fla. 1960) ........ ...... ....... 64
Davis v. State, 190 Ga. 100, 8 S.E.2d 394 (1940) ____ 60
Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901)__57, 60
Duisen v. State, ------- Mo. ------ , 441 S.W.2d 688
(1969) ............................................................................. 55, 56
PAGE
Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2d
948 (1944) ........................... ................ ...................... ...55,60
Ex parte Knight, 73 Ohio App. 547, 57 N.E.2d 273
(1944) ............................ ................................................ 19,21
Ex parte Kramer, 61 Nev. 174, 122 P.2d 862 (1942) ..... 54
IV
Ex parte Skaug, 63 Nev. 101, 164 P.2d 743 (1945) ____ 61
Fleming v. State, 34 Ohio App. 536, 171 N.E. 407
(1929), aff’d, 122 Ohio St. 156, 171 N.E. 27 (1930) .... 18
Franks v. State, 139 Tex. Grim. App. 42, 138 S.W.2d
109 (1940) ...................... .......... ...................................... 56
Furman v. Georgia, O.T. 1970, Misc. No. 5059 .... ........ . 62
Garner v. State, 28 Fla. 113, 9 So. 835 (1891) ...... ........ 61
Giaecio v. Pennsylvania, 382 U.S. 399 (1966) ...............3, 68
Gohlston v. State, 143 Tenn. 126, 223 S.W. 839 (1920) 53
Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632
(1955) ....................................................................... 56,59,61
Hamilton v. Alabama, 368 U.S. 52 (1961) ....................... 81
Harrington v. California, 395 U.S. 250 (1969) ............... 79
Harris v. State, 183 Ga. 574, 188 S.E. 883 (1936) ____ 61
Hernandez v. State, 43 Ariz. 424, 32 P.2d 18 (1934) ....55, 61
Hicks v. State, 196 Ga. 671, 27 S.E.2d 307 (1943) ____ 61
Hill v. North Carolina, O.T. 1970, Misc. No. 5136 ....... 62
Hinton v. State, 280 Ala. 848, 189 So.2d 849 (1966) .... 55
Hopkins v. State, 190 Ga. 180, 8 S.E.2d 633 (1940) .... 61
Hoppe v. State, 29 Ohio App. 467, 163 N.E. 715
(1928) ...... ................................................. ......... ........... 19, 28
Howell v. State, 102 Ohio St. 411, 131 N.E. 706
(1921) ............................ ............. 22, 23, 24, 25, 26, 27, 66, 71
In re Anderson, 69 Cal.2d 613, 447 P.2d 117, 73 Cal.
Rptr. 21 (1968), O.T. 1970, Misc. No. 5118.......5-M, 47,48
Jackson v. Denno, 378 U.S. 368 (1964) ........ ............ ..... 78
Johnson v. New Jersey, 384 U.S. 719 (1966)...........75, 77, 81
PAGE
V
Johnson v. State, 61 So.2d 179 (Fla. 1952) .................. 64
Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961) ....58, 60
Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964) ....51, 60
Jones v. Commonwealth, 194 Va. 273, 72 S.E.2d 693
(1952) ...................................................................... .. 58
Kramer v. State, 60 Nev. 262, 108 P.2d 304 (1940) ....... 54
Lee v. State, 166 So.2d 131 (Fla. 1964) ........................... 51
Leopold v. People, 105 Colo. 147, 95 P.2d 811 (1939) .... 58
Licavoli v. State, 20 Ohio Ops. 562, 34 N.E.2d 450
(1935) ............................................................ .......... ........ 27
Linkletter v. Walker, 381 U.S. 618 (1965) .......... .......... 57, 77
Liska v. State, 115 Ohio St. 283, 152 N.E. 667 (1926) ..27, 66
Lovelady v. State, 150 Tex.Crim.App. 50, 198 S.W.2d
570 (1947) ................ ................. ................. .......... ........... 56
Lovett v. State, 30 Fla, 142, 11 So. 550 (1892) .............. 61
McBnrnett v. State, 206 Ga. 59, 55 S.E.2d 598 (1949) 55
McCants v. Alabama, O.T. 1970, Misc. No. 5009 ........... 62
McCoy v. State, 191 Ga. 516, 13 S.E.2d 183 (1941) ....... 60
Manor v. State, 223 Ga. 594, 157 S.E.2d 431 (1967) .... 56
Marks v. Louisiana, O.T. 1970, Misc. No. 5007 ....... ....... 63
Massa v. State, 37 Ohio App. 532, 175 N.E. 219 (1930) 22,
26, 27
Mathis v. New Jersey, O.T. 1970, Misc. No. 5006 .......60, 62
Maxwell v. B ishop,------U.S. - — (1970) (O.T. 1969,
No. 13) .......................... ..... ...........................4-M, 5-M, 7,12
Merchant v. State, 217 Md. 61, 141 A.2d 487 (1958) .... 63
Montalto v. State, 51 Ohio App. 6, 199 N.E. 198 (1935) 18
Moore v. Illinois, O.T. 1970, Misc. No. 5056 ............... 63
Morissette v. United States, 342 U.S. 246 (1952) ....... 76
PAGE
VI
Newton v. State, 21 Fla. 53 (1884) ................................... 61
Pait v. State, 112 So.2d 380 (Fla. 1959) .............. ........ 61
People v. Aikens, 70 Cal.2d 369, 450 P.2d 258, 74 Cal.
Rptr. 882 (1969) ...................... .......... ...... ................ ..32,36
People v. Anderson, 63 Cal.2d 351, 406 P.2d 43, 46
Cal. Rptr. 763 (1965) ............................ ....................... 37
People v. Anderson, 64 Cal.2d 633, 414 P.2d 366, 51
Cal. Rptr. 238 (1966) ..... ..... ...... .......... .................. ...45, 47
People v. Baldonado, 53 Cal.2d 824, 350 P.2d 115, 3
Cal. Rptr. 363 (1960) .... ................... ............... .............. 32
People v. BancLhauer, 1 Cal.3d 609, 463 P.2d 408, 83
Cal. Rptr. 184 (1970) .................................................... 45
People v. Bandhaner, 66 Cal.2d 524, 426 P.2d 900, 58
Cal. Rptr. 332 (1967) ......... .......... ......... .............. 39, 40, 47
People v. Bernette, 30 IlL2d 359,197 N.E.2d 436 (1964) 55
People v. Bickley, 57 Cal.2d 788, 372 P.2d 100, 22 Cal.
Rptr. 340 (1962) ................ ...... ......... ................... 35,37,38
People v. Black, 367 111. 209, 10 N.E.2d 801 (1937) ....... 58
People v. Brawley, 1 Cal.3d 277, 461 P.2d 361, 82 Cal.
Rptr. 161 (1969) ..........................................................44,46
People v. Brice, 49 Cal.2d 434, 317 P.2d 961 (1957) .... 47
People v. Cartier, 54 Cal.2d 300, 353 P.2d 53, 5 Cal.
Rptr. 573 (1960) ..... ........ ........ ..................................... 47
People v. Ciucci, 8 111.2d 619, 137 N.E.2d 40 (1956) .... 58
People v. Clark, 62 Cal.2d 870, 402 P.2d 856, 44 Cal.
Rptr. 784 (1965) .... ............ ...... .................. .......... .....36,45
People v. Corwin, 52 Cal.2d 404, 340 P.2d 626 (1959) 35
People v. Crews, 42 IU.2d 60, 244 N.E.2d 593 (1969) .... 63
People v. Deptnla, 58 Cal.2d 225, 373 P.2d 430, 23 Cal.
Rptr. 366 (1962)
PAGE
32
PAGE
People v. Durham, 70 Cal.2d 171, 449 P.2d 198, 74 Cal.
Eptr. 262 (1969) ....... ......... ...................................35,36,40
People v. Feldkamp, 51 Cal.2d 237, 331 P.2d 632
(1958)............... ................ ............................................. ....35,48
People v. Floyd, 1 Cal.2d 694, 464 P.2d 64, 83 Cal.
Rptr. 608 (1970) .............. 35,38
People y . Friend, 47 Cal.2d 749, 306 P.2d 463 (1957) .... 41,
42,43, 44, 46,47
People v. Garner, 57 Cal.2d 135, 367 P.2d 680, 18 Cal.
Eptr. 40 (1961) ............................................................. 37
People v. Gilbert, 63 Cal.2d 690, 408 P.2d 365, 47 Cal.
Eptr. 909 (1966) ............................................................. 35
People v. Glatman, 52 Cal.2d 283, 340 P.2d 8 (1959) .... 33
People v. Golston, 58 Cal.2d 535, 375 P.2d 51, 25 Cal.
Eptr. 83 (1962) ............................................................. 32
People v. Gonzales, 56 Cal.2d 317, 363 P.2d 871, 14 Cal.
Eptr. 639 (1961) .......................................... 40
People v. Gonzales, 66 Cal.2d 482, 426 P.2d 929, 58 Cal.
Eptr. 361 (1967) ........................... 35
People y . Green, 47 Cal.2d 209, 302 P.2d 307 (1956) ....41, 47
People v. Griffin, 60 Cal.2d 182, 383 P.2d 432, 32 Cal.
Eptr. 24 (1963) rev’d on other grounds, 380 U.S. 609
(1965) ............................... 36,40
People v. Hamilton, 60 Cal.2d 105, 383 P.2d 412, 32 Cal.
Eptr. 4 (1963) ................ .....36,38,40,41,47
People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 30 Cal.
Eptr. 841 (1963) .......................................... 40, 41, 43, 44, 46
People v. Hill, 66 Cal.2d 536, 426 P.2d 908, 58 Cal.
Eptr. 340 (1967) ................................................38,40,41,48
People v. Hillery, 62 Cal.2d 692, 401 P.2d 382, 44 Cal.
Rptr. 30 (1965) 37
V l l l
People v. Hillery, 65 Cal.2d 795, 423 P.2d 208, 56 Cal.
Rptr. 280 (1967) ................................... 35,40,41,43,45,46
People y . Hines, 61 Cal.2d 164, 390 P.2d 398, 37 Cal.
Rptr. 622 (1964) ........ 36,39,42,47,70
People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 16 Cal.
Rptr. 370 (1961) .......... ........ ...........35,40,41,42,43,47,48
People v. Imbler, 57 Cal.2d 711, 371 P.2d 304, 21 Cal.
Rptr. 568 (1962) ............ 37
People v. Jackson, 59 Cal.2d 375, 379 P.2d 937, 29 Cal.
Rptr. 505 (1963) .......... 35
People v. Jacobson, 63 Cal.2d 319, 405 P.2d 555, 46 Cal.
Rptr. 515 (1965) ............................................................. 35
People v. Jackson, 67 Cal.2cl 96, 429 P.2d 600, 60 Cal.
Rptr. 248 (1967) .............................................. - ...... ...... 32
People v. Jones, 52 Cal.2d 636, 343 P.2d 577 (1959) ....32, 33,
38,47, 67
People v. Ketehel, 59 Cal.2d 503, 381 P.2d 394, 30 Cal.
Rptr. 538 (1963) ............................................... 35,37,40,48
People v. Kidd, 56 Cal.2d 759, 366 P.2d 49, 16 Cal.
Rptr. 793 (1961) ............................................................. 37
People v. King, 1 Cal.3d 791, 463 P.2d 753, 83 Cal.
Rptr. 401 (1970) ............................................................. 32
People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 16 Cal.
Rptr. 801 (1961) ..........................................37,40,41,43,44
People v. Langdon, 52 Cal.2d 425, 341 P,2d 303 (1959) 32
PAGE
People v. Linden, 52 Cal.2d 1, 338 P.2d 397 (1959) ....40,41,
43, 48
People v. Lindsey, 56 Cal.2d 324, 363 P.2d 910, 14 Cal.
Rptr. 678 (1961) ....................... .................................. 36,48
People v. Lookado, 66 Cal.2d 307, 425 P.2d 208, 57 Cal.
Rptr. 608 (1967) .......................................... ............... 32,48
PAGE
People v. Lopez, 60 Cal.2d 223, 384 P.2d 16, 32 Cal.
Rptr. 424 (1963) ......... ................................_..................
People v. Love, 53 Cal.2d 843, 350 P.2d 705, 3 Cal.
Eptr. 665 (1960) .......................................... ..... 35, 36, 38,
People v. Love, 56 Cal.2d 720, 366 P.2d 33, 16 Cal.
Rptr. 777, 17 Cal. Rptr. 481 (1961) ...............37,40,47,
People v, McClellan,------Cal.3d------- , 457 P.2d 871, 80
Cal. Rptr. 31 (1969) .......................................... ..........
People v. Mason, 54 Cal.2d 164, 351 P.2d 1025, 4 Cal.
Rptr. 841 (1960) ..............................................................
People v. Massie, 66 Cal.2d 899, 428 P.2d 869, 59 Cal.
Rptr. 733 (1967) ..............................................................
People v. Mathis, 63 Cal.2d 416, 406 P.2d 65, 46 Cal.
Rptr. 785 (1965) ..............................................................
People v. Mitchell, 63 Cal.2d 805, 409 P.2d 211, 48 Cal.
Rptr. 371 (1966) .............................................. 36,40,46,
People v. Modesto, 59 Cal.2d 722, 382 P.2d 33, 31 Cal.
Rptr. 225 (1963) ..............................................................
People v. Monk, 56 Cal.2d 288, 363 P.2d 865, 14 Cal.
Rptr. 633 (1961) ..............................................................
People v. Moore, 53 Cal.2d 451, 348 P.2d 584, 2 Cal.
Rptr. 6 (1960) ..................................................................
People v. Morse, 60 Cal.2d 631, 388 P.2d 33, 36 Cal.
Rptr. 201 (1964) .....................................................37, 40,
People v. Moya, 53 Cal.2d 819, 350 P.2d 112, 3 Cal.
Rptr. 360 (1960) ..............................................................
People v. Nicholans, 65 Cal.2d 866, 423 P.2d 787, 56 Cal.
Rptr. 635 (1967) ..............................................................
People v. N ye,------ Cal.3d--------, 455 P.2d 395, 78 Cal.
Rptr. 467 (1969) .....................................................38, 45,
36
,76
,48
36
47
32
36
48
36
48
48
46
37
48
46
X
People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134
N.E.2d 197 (1956) .......................................................... 76
People v. Pike, 58 Cal.2d 70, 372 P.2d 656, 22 Cal.
Eptr. 664 (1962) .......................................... ............... 35,37
People v. Polk, 63 Cal.2d 443, 406 P.2d 641, 47 Cal.
Eptr. 1 (1965) .................................................. 36,44,45,47
People v. Parvis, 52 Cal.2d 871, 346 P.2d 22 (1959) ....36, 38
People v. Parvis, 56 Cal.2d 93, 362 P.2d 713, 13 Cal.
Eptr. 801 (1961) .................................................... ....... 41, 47
People v. Parvis, 60 Cal.2d 323, 384 P.2d 424, 33 Cal.
Eptr. 104 (1963) ........................... 37
People v. Eeeves, 64 Cal.2d 766, 415 P.2d 35, 51 Cal.
Eptr. 691 (1966) ...... ................................................32, 36, 48
People v. Eisenlioover, 70 Cal.2d 39, 447 P.2d 925, 73
Cal. Eptr. 533 (1968) ...................................................... 36
People v. Eittger, 54 Cal.2d 720, 355 P.2d 645, 7 Cal.
Eptr. 901 (1960) ............................... 48
People v. Shipp, 59 Cal.2d 845, 382 P.2d 577, 31 Cal.
Eptr. 457 (1963) ........................... 40
People v. Sieterle, 56 Cal.2d 320, 363 P.2d 913, 14 Cal.
Eptr. 681 (1961) ................. 32
People v. Sosa, 251 Cal. App.2d 9, 58 Cal. Eptr. 912
(1967) 32
People v. Spencer, 60 Cal.2d 64, 383 P.2d 134, 31 Cal.
Eptr. 782 (1963) .............................................................. 40
People v. Stanworth,------- Cal.3d------ , 457 P.2d 889, 80
Cal. Eptr. 49 (1969) ...................................................... 45
People v. Sullivan, 345 111. 87, 177 N.E. 733 (1931) ..... 58
People v. Tahl, 65 Cal.2d 719, 423 P.2d 246, 56 Cal.
Eptr. 318 (1967) ................................................ 33, 35, 36, 40
People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 51 Cal.
Eptr. 417 (1966) ...................................................... 35, 40, 41
PAGE
XX
PAGE
People y. Terry, 57 Cal.2d 538, 370 P.2d 985, 21 Cal.
Rptr. 185 (1962) .................................~....... 35, 37, 38,40,47
People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 37 Cal.
Rptr. 605 (1964) ..... ................. 36,38,39,40,45,46,47,68
People y. Thomas, 65 Cal.2d 698, 423 P.2d 233, 56 Cal.
Rptr. 305 (1967) .............................................................. 40
People v. Varnum, 61 Cal.2d 425, 392 P.2d 961, 38 Cal.
Rptr. 881 (1964) .......................................................... ... 37
People v. Varnnm, 66 Cal.2d 808, 427 P.2d 772, 59 Cal.
Rptr. 108 (1967) ........................................... 36
People v. Vaughn,------ Cal.3d------ , 455 P.2d 122, 78
Cal. Rptr. 186 (1969) ...............................................-.36 ,45
People v. Washington,------Cal.2d--------, 458 P.2d 479,
80 Cal. Rptr. 567 (1969) ............................. 32,41,43,45,46
People v. Welch, 58 CaL2d 271, 373 P.2d 427, 23 Cal.
Rptr. 363 (1962) ......................................................37,48
People v. White, 69 Cal.2d 751, 446 P.2d 993, 72 Cal.
Rptr. 873 (1968) .......................... 40,47
People v. Whitmore, 251 Cal. App.2d 359, 59 Cal.
Rptr. 411 (1967) ........ 32
Pixley v. State, 406 P.2d 662 (Wyo. 1965) .......57, 59, 60, 61
Porter v. State, 177 Tenn. 515, 151 S.W.2d 171
(1941) ..............................................................................57,64
Rehfeld v. State, 102 Ohio St. 431, 131 N.E. 712
(1921) ..................................................................... -...... 24,25
Rice v. Commonwealth, 278 Ky. 43, 128 S.W.2d 219
(1939) .............................................-.......................... 51,61,64
Rice v. State, 250 Ala. 638, 35 So.2d 617 (1948) ............. 64
Roberts v. Russell, 392 U.S. 293 (1968) .........................75, 78
Robinson v. California, 370 U.S. 660 (1962) ................... 76
Roseboro v. North Carolina, O.T. 1970, Misc. No. 5178 62
Xll
Scott v. State, 247 Ala. 62, 22 So.2d 529 (1945) ........... 64
Shelton v. State, 102 Ohio St. 376, 131 N.E. 704 (1921) 27
Shimniok v. State, 197 Miss. 179, 19 So. 760
(1944) ........... 57,62,64
Shnstrom v. State, 205 Ind. 287,185 N.E. 438 (1933) .... 63
Simmons v. United States, 390 U.S. 377 (1968) ........... 73
Smith & Riggins v. Washington, O.T. 1970, Misc. No.
5034 ............................ 63
Spain v. State, 59 Miss. 19 (1881) ....... 55,58,61
Spencer v. Texas, 3S5 U.S. 554 (1967) ......................... 65
State v. Alvarez, 182 Neb. 358, 154 N.W.2d 746
(1967) .............................................................. .52,63
State v. Ames, 50 Ohio Law Abs. 311, 80 N.E.2d 168
(1947), rehearing denied, 81 N.E.2d 238 (1948), app.
dism’d, 149 Ohio St. 192, 78 N.E.2d 48 (1948) ...........27, 28
State v. Anderson (Mo. Sapp.), 384 S.W.2d 591 (1964) 63
State v. Blakely, 158 S.C. 304, 155 S.E. 408 (1930) ....... 58
State v. Brown, 60 Wyo. 379, 151 P.2d 950 (1944) ....53, 56,
59, 61
State v. Bntner, 67 Nev. 936, 220 P.2d 631 (1950) ....... 64
State v. Caldwell, 135 Ohio St. 424, 21 N.E.2d 343
(1939) ....... 24,25,26,73
State v. Carey, 36 Del. 521, 178 A. 877 (Ct. Oyer &
Terminer 1935) ....................... 62
State v. Carter, 21 Ohio St.2d 212, 256 N.E.2d 714
(1970) ........... 23
State v. Cerar, 60 Utah 208, 207 P. 597 (1922) ............. 64
State v. Chasteen, 228 S.C. 88, 88 S.E.2d 880 (1955) .... 55
State v. Christenson, 166 Kan. 152, 199 P.2d 475 (1948) 55
State v. Clokey, S3 Ida. 322, 364 P.2d 159 (1961) ........... 60
PAGE
xm
State v. Collins, 50 Wash.2d 740, 314 P.2d 660 (1957) .... 58
State v. Cosby, 100 Ohio App. 459, 137 N.E.2d 282
(1955) ................................................................................ 28
State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963) 61
State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556 (1932) 52
State v. Daniels, 231 S.C. 176, 97 S.E.2d 902 (1957) ..... 61
State v. Donahue, 141 Conn. 656, 109 A.2d 364
(1954) ........................................................................ 55,59,60
State y . Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897
(1969) ..............................................................................23,25
State v. Ellis, 98 Ohio St. 21, 120 N.E. 218 (1918) ....20,21,
23, 24, 28
State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794
(1964) 19,28
State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362, 365
(1925) .......................................................... 19,20
State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968),
O.T. 1970, Misc. No. 5011 .................................... ........ 52, 57
State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868, 885
(1948) ........................................................................19,20,28
State v. Galvano, 34 Del. 323, 154 A. 461 (Ct. Oyer &
Terminer 1930) ...................................... 62
State v. Habig, 106 Ohio St. 151, 140 N.E. 195, 199
(1922) 19,20
State v. Harper, 251 S.C. 379, 162 S.E.2d 712 (1968) .... 53
State v. Henley, 15 Ohio St.2d 86, 238 N.E.2d 773
(1968) 27
State v. Henry, 197 La. 199, 3 So.2d 104 (1941) ....55, 61, 66
State v. Jackson, 227 La. 642, 80 So.2d 105 (1955) ......... 55
State v. Jarolowski, 30 Del. 108, 103 A. 657 (Ct. Oyer &
Terminer 1918)
PAGE
57
XIV
State v. Jones, 201 S.C. 403, 23 S.E.2d 387 (1942) ....... 55, 58
State v. Karayians, 108 Ohio St. 505, 141 N.E. 334
(1923) ..................... ......... ...................................22,26
State v. Kilpatrick, 201 Kan. 6, 439 P.2d 99 (1968) .... 64
State v. King, 158 S.C. 251, 155 S.E. 409 (1930) ........... 58
State v. Klnmpp, 1.5 Ohio Ops.2d 461, 175 N.E.2d 767
(1960), app. dism’d, 171 Ohio St. 62, 167 N.E.2d 778
(I960) ...... ........ ............... ........ ................................22, 27, 28
State v. Laster, 365 Mo. 1076, 293 S.W.2d 300 (1956) .... 63
State v. Laws, 51 N.J. 594, 242 A.2d 333 (1968) ........... 63
State v. Lee, 36 Del. 11, 171 A. 195 (Ct. Oyer & Ter
miner 1933) ......... ........... ........... ...................................57, 62
State v. Lucear, 93 Ohio App. 281, 109 N.E.2d 39
(1952) ........ 19,20,28
State v. Marsh, 234 N.C. 101, 66 S.E.2d 6S4 (1951) ....... 60
State v. McClellan, 12 Ohio App.2d 204, 232 N.E.2d
414 (1967) ..................... 20
State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962) ....... 63
State v. McMillan, 233 N.C. 630, 65 S.E.2d 212 (1951) 60
State v. Markham, 100 Utah 226, 112 P.2d 496
(1941) .................................................................. 53,56,58,64
State v. Meyer, 163 Ohio St. 279, 126 N.E.2d 585
(1955) ................................... 27
State v. Mount, 30 N.J. 195, 152 A.2d 343 (1959) .......55, 57,
59, 70
State v. Monzon, 231 S.C. 655, 99 S.E.2d 672 (1957) .... 63
State v. Mnskns, 158 Ohio St. 276, 109 N.E.2d 15 (1952) 27
State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965) ......... 70
State v. Owen, 73 Ida. 394, 253 P.2d 203 (1953) ....57, 58, 72
State v. Palen, 120 Mont. 434, 186 P.2d 223
(1947) ...... ................... ....................... ......................52, 55, 64
PAGE
XV
State v. Pierce, 44 Ohio Law Abs. 193, 62 N.E.2d 270
(Ohio App. 1945) ................................................... 24,25,27
State v. Porello, 138 Ohio St. 239, 34 N.E.2d 198 (1941) 28
State v. Pruett, 18 Ohio St.2d 167, 248 N.E.2d 605
(1969) ............................... ................................................ 23
State v. Pugh, 250 N.C. 278, 108 S.E.2d 649 (1959) ..... 61
State v. Ramirez, 34 Ida. 623, 203 P. 279 (1921) ........... . 63
State v. Reed, 85 Ohio App. 36, 84 N.E.2d 620 (1948) .... 28
State v. Reynolds, 41 N.J. 163, 195 A.2d 449 (1963) ....62, 69
State v. Riley, 41 Utah 225, 126 P. 294 (1912) ...........58, 61
State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148
(1955) ................................................................................ 29
State v. Robinson, 89 Ariz. 224, 360 P.2d 474 (1961) .... 63
State v. Romeo, 42 Utah 46, 128 P. 530 (1912) ...........58, 61
State v. Roseboro, ------ N.C. ------ , 171 S.E.2d 886
(1970) ............ 52,56
State v. Ruth, 276 N.C. 36, 170 S.E.2d 897 (1969) ....... 64
State v. Sahadi, 3 Ohio App.2d 209, 209 N.E.2d 758
(1964) 19,29
State v. Schiller, 70 Ohio St. 1, 70 N.E. 505 (1904) ....26, 27
State v. Simmons, 234 N.C. 290, 66 S.E.2d 897
(1951) ............. 55,61,64
State v. Skaug, 63 Nev. 59, 161 P.2d 708 (1945) ....... 61
State v. Smith, 123 Ohio St. 237,174 N.E. 768 (1931) .... 19
State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968) .... 58
State v. Spino, 90 Ohio App. 139,104 N.E.2d 200 (1951) 18
State v. St. Clair, 3 Utah2d 230, 282 P.2d 323 (1955) .... 57
State v. Stewart, 176 Ohio St. 156, 198 N.E.2d 439
PAGE
(1964) .......................................... .......... ....... .............. ..19, 28
State v. Thorne, 39 Utah 208, 117 P. 58 (1911) ____58,61
State v. Thorne, 41 Utah 414, 126 P. 286 (1912) ........... 6L
State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582 (1950) ___ 58
XV I
State v. Tudor, 154 Ohio St. 249, 95 N.E.2d 385
(1950) ... ......................................................... .............. ..21, 27
State v. Van Vlaek, 57 Ida. 316, 65 P.2d 736 (1937) ..... 61
State v. Vasquez, 101 Utah 444, 121 P.2d 903 (1942) 56, 58
State v. Walters, 145 Conn. 60,138 A.2d 786 (1958) ....56, 57,
59, 64
State v. Watson, 20 Ohio App.2d 115, 252 N.E.2d 305
(1969) ............... ................................................................ 27
State y. White, 60 Wash.2d 551, 374 P.2d 942
(1962) ..... 57,61,64
State y. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d
607 (1969) ........ 23
State v. Winsett, 205 A.2d 510 (Del. Super. Ct.
1964) 57,62
State v. Worthy, 239 S.C. 449, 123 S.E.2d 835
(1962) .............................................................................. 58,61
State ex rel. Evans v. Eckle, 163 Ohio St. 122, 126
N.E.2d 48 (1955) ..... 19
State ex rel. Scott v. Alvis, 156 Ohio St. 387,102 N.E.2d
845 (1951) ............... 19
Stein v. New York, 346 U.S. 156 (1953) ....... .................... 81
Stovall v. Denno, 388 U.S. 293 (1967) ....................... ........ 81
Sukle v. People, 107 Colo. 269, 111 P.2d 233 (1941) ..... 58
Sullivan v. State, 47 Ariz. 224, 55 P.2d 312, 318
(1936) ........................................... 56,58
Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689
(1951) ..................................... 56,57,60,61,63
Swain v. Alabama, O.T. 1970, Misc. No. 5327 ................. 62
Tehan v. United States ex rel. Shott, 382 U.S. 406
(1966) ............................................... 79
Thomas v. Florida, O.T. 1970, Misc. No. 5079 ............... 63
PAGE
xvn
Trop v. Dulles, 356 U.S. 86, 101 (1958) ........................... 13
Turner v. State, 21 Ohio Law Abs. 276 (1936) ....... ........ 27
Turner v. State, 144 Tex. Grim. App. 327, 162 S.W.2d
978 (1942) ........................................................................ 64
Walker v. Nevada, O.T. 1970, Misc. No. 5083 ............... 63
Waters v. State, 87 Okla. Crim. App. 236, 197 P.2d
299 (1948) ........................................................................ 63
Wheat v. State, 187 Ga. 480, 1 S.E.2d 1 (1939) ....... .....58, 60
White v. Bhay, 64 Wash.2d 15, 390 P.2d 535 (1964) .... 61
White v. State, 227 Md. 615,177 A.2d 877 (1962), rev’d
on other grounds, 373 U.S. 59 (1963) ........................... 63
Williams v. Georgia, 349 U.S. 375 (1955) ....... ........ ...... , 81
Williams v. New York, 337 U.S. 241 (1949) ................... 76
Williams v. State, 89 Okla. Crim. App. 95, 205 P.2d
524 (1949) ........................................................................ 63
Williams v. State, 119 Ga. 425, 46 S.E. 626 (1904) ____ 55
Wilson v. State, 286 Ala. 86, 105 So.2d 66 (1958) ......... 64
Wilson v. State, 225 So.2d 321 (Fla. 1969) ................... 56
Winston v. United States, 172 U.S. 303 (1899) ............ 50
Witherspoon v. Illinois, 391 U.S. 510 (1968) (O.T.
1967, No. 1015) .................................. 3-M, 13, 73, 74, 75, 77
Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843
(1932) ........................................................................54,57,59
Wyett v. State, 220 Ga. 867,142 S.E.2d 810 (1965) ....... 58
Yates v. Cook, O.T. 1970, Misc. No. 5012................. 62
Yates v. State, 251 Miss. 376, 169 So.2d 792 (1964) .... 52
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) _____ 3
PAGE
XV111
Statutes:
18 U.8 .C. § i m (1964) .......... ................... ...... ............ . 50
Ala. Code Ann., tit. 14, §318 (Recomp. vol. 1958) ....... 54
Ariz. Rev. Stat. §13-453 (1956) ......................................... 51
Ariz. Rev. Stat. §13-1717(B) (1956) _________________ 63
Ark. Stat. Ann. §43-2153 (Repl. vol. 1964) ....... ........... 54
Cal. Acts Amendatory of the Codes 1873-1874, ch. 508,
§1 ......... -........................................................................... - 33
Cal. Const. Art. 1, § 7 ..... ..................................... ............... 32
Calif. Mil. & Yet. Code §1670 ......... ........ ..... .................. 31
Cal. Mil. & Vet. Code §1672(a) ............. ........ ................ 31
Cal. Pen. Code §3 7 .............................................................. 31
Cal. Pen. Code §128 ........... .................... .............. ............. 31
Cal. Pen. Code §190 ........................ ....... ........ ....... - .... -31, 33
Cal. Penal Code §190.1 _______ __ ________ ___ .-.31, 33, 34
Cal. Pen. Code §209 ................................... .......... — ...... . 31
Cal. Pen. Code §219 ............................ ......... ............. - ..... 31
Cal. Pen. Code §1026 ................................... ............ ....... 33
Cal. Pen. Code §1168 ............................................... ........... 31
Cal. Pen. Code §1168a ........................................................ 31
Cal. Pen. Code §4500 ..................................................... -15, 31
Cal. Pen. Code §5077 ............... ...............................- ...... - 31
Cal. Stats. 1957, ch. 1968, §2 ..... .......... ........... ........... 33
Cal. Stats. 1959, ch. 738, §1 .................................... ....... 33
Col. Rev. Stat. §40-2-3(1) (1965 Perm. cam. supp.) _.... 51
Col. Rev. Stat. §40-2-3(2)(a), (b) (1965 Perm. cnm.
snpp.) ............................................................. - .... — ...... 51
Col. Rev. Stat. §40-2-3(2) (c) (1965 Perm. cum.
supp.) ........ - ..................... .......................... -.................. 51,54
Conn. Gen. Stat. Ann. §53-9 (1970-1971 Cum. pocket
part) ........ ......................................................................... 51
PAGE
X IX
Conn. Gen. Stat. Ann. §53-10 (1970-1971 Cnm. pocket
part) ..........................................................................51, 54, 57
Del. Stat. Ann., tit. 11, §3901 (1968 Cum. pocket
part) .............................................................................. -53, 54
D.C. Code §22-2404 (1967) ..... ........................................... 50
Fla. Stat. Ann. §919.23(2) (1944) ................................... 54
Fla. Stat. Ann. §912.01 (1944) .......................................... 51
Fla. Stat. Ann., Rules Crim. Pro. 1.260 (1967).... .......... 51
Ga. Code Ann. §26-3102 (Criminal Code of Georgia,
1968-1969) ......................................................................51,54
Ga. General Assembly, 1970 Sess., H.B. No. 228 ........... 5
Ida. Code Ann. §18-4004 (1948) ...................................... 51, 54
111. Stat. Ann., tit. 38, §1-7 (c) (1) (1970 Cum. pocket
part) ........................................................................... —53, 54
111. Stat. Ann., tit. 38, § l-7 (c)(2 ) (1970 Cum. pocket
part) ........................................................................... — 51
111. Stat. Ann., tit. 38, §9-l(b) (1964) ...........................53,54
Burns Ind. Stat. Ann. §9-1819 (1956 Repl. vol.) ............. 51
Burns Ind. Stat. Ann., §10-3401 (1956 Repl. vol.) ......... 54
Kan. Stat. Ann. §21-4501(a) (1969 Cum. supp.) ...... .51,54
Ky. Rev. Stat. Ann. §435.010 (1969) ................. ......... 51, 54
La. Stat. Ann., Code Crim. Pro., art. 557 (1967) ........... 52
La. Stat. Ann., Code Crim. Pro., art. 780 (1967) ........... 52
La. Stat. Ann., Code Crim. Pro. art. 817 (1967) ....... 52,54
Md. Code Ann., art. 27, §413 (Repl. vol. 1967) ...........53, 54
Mass. Ann. Laws, ch. 265, §2 (1968) .......................52, 54, 57
Miss. Code Ann., tit. 11, §2217 (Recomp. vol. 1956) ....52, 54
Vernon’s Mo. Stat. Ann. §546.410 (1953) ....................... 52
Vernon’s Mo. Stat. Ann. §546.430 (1953) ................... 63
Vernon’s Mo. Stat. Ann. §559.030 (1953) ................... 52,54
Mont. Rev. Code §94-2505 (Repl. vol. 1969) ...............52, 54
PAGE
X X
Neb. Rev. Stat. §28-401 (Reissue vol. 1964) ______ ___ 54
Nev. Laws 1967, oh. 523, §438, p. 1470 ........................... . 52
Xev. Rev. Stat. §200.030(3) ........................... .................. 54
N.H. Rev. Stat. §585:4 (1955) .......................................52,54
N.H. Rev. Stat. §585:5 (1955) ........................ 54
N.J. Stat. Ann. §2A:113-3 (1969) ............ 52
N.J. Stat. Ann. §2A:113-4 (1969) .................... 52,54,57
N.M. Laws 1969, cb. 128, §1, N.M. Stat. Ann., §40A-
29-2.1 (1970 Cum. Supp.) ................ .................... ..... 49,50
N.Y. Pen. Law §125.30 ................. ...................... .............. 50
N.C. Gen. Stat. §14-17 (Repl. vol. 1969) ............. ......... 52, 54
93 Ohio Laws 223 (S.B. No. 504) ............ ...................... . 20
115 Ohio Laws 531 (S.B. No. 90, §1.) _____ ____ _______ 19
Ohio Rev. Code, §2901.01 (Ohio Gen. Code, §12400) .... 20
Ohio Rev. Code, §2901.02 (Ohio Gen. Code, §12401) .... 20
Ohio Rev. Code §2901.03 (Ohio Gen. Code, §12402) .... 20
Ohio Rev. Code, §2901.04 (Ohio Gen. Code, §12402-1) .. 20
Ohio Rev. Code §2901.09 (Ohio Gen. Code, §12406) .... 19
Ohio Rev. Code, §2901.10 (Ohio Gen. Code, §12407) .... 19
Ohio Rev. Code, §2901.27 (Ohio Gen. Code §12427) .... 20
Ohio Rev. Code, §2901.28 (Ohio Gen. Code, §13386) .... 20
Ohio Rev. Code, §2907.141 (Ohio Gen. Code, §12441) .... 18
Ohio Rev. Code, §2907.09 (Ohio Gen. Code, §12437) .... 18
Ohio Rev. Code, §2945.06 (Ohio Gen. Code, §13442-5) __ 19
Ohio Rev. Code, §2945.11 (Ohio Gen. Code, §13442-9) .. 18
Okla. Stat. Ann., tit. 21, §707 (1958) .................... ........ ..53, 54
Pa. Laws 1794, eh. 257, §§1-2............................................ 6
Purdon’s Pa. Stat. Ann., tit. 18, §4701 (1963) ....... ....53, 54
Purdon’s Pa. Stat. Ann., tit. 19, Appendix, Rule Crim.
Pro. 1115 (1969 Cum. pocket part) ........................... 53
PAGE
X XI
S.C. Code Ann. §16-52 (1962) ............................................ 53
S.D. Comp. Laws. §§22-16-12, -13 (1967) ...................53, 54
S.D. Comp. Laws. §22-16-14 (1967) ............................... 53
Tenn. Code Ann. §39-2405 (1955) ...................... ........... .53, 54
Tenn. Code Ann. §39-2406 (1955) ............. ......... 53,54,57,59
Vernon’s Tex. Stat. Ann., Code Crim. Pro., art. 37.07
(2)(b) (1969-1970 Cum. pocket part) .......... ............ 53
Vernon’s Tex. Stat. Ann., Pen. Code, art. 1257 (1961) .. 53,
54
Vernon’s Tex. Stat. Ann., Pen. Code art. 1257 (a)
(1961) .................................................... 53
Utah Code Ann. §76-30-4 (1953) ........ ................... ...... 53,54
Vt. Stat. Ann. tit. 13, §2303 (1969 Cum. Pocket Part) .. 50
Va. Code Ann. §18.1-22 (Repl. vol. 1960) ...................53, 54
Va. Code Ann. §19.1-250 (Repl. vol. 1960) ...................53, 54
Wash. Rev. Code §9.48.030 (1961) ...... ..... ............. ..... 53,54
Wyo. Stat. Ann. §6-54 (1957) ...................................... 53,54
PAGE
Other A uthorities
Advisory Council op J udges op the National Council
on Crime and Delinquency, Model Sentencing A ct,
§§5-9 (1963) ...................................................................... 9
A merican L aw Institute, Model P enal Code, Tent.
Draft No. 9 (May 8, 1959) .......................... ............... 76
A merican Law Institute, Model P enal Code, §210.6
(P.O.D., May 4, 1962) ....................................... -......... 9, 62
An cel, The Problem of the Death Penalty, in Sellin,
Capital P unishment (1967) 76
X XII
Bedau, Death Sentences in New Jersey 1907-1960, 19
Rutgers L. R ev. 1 (1964) .... ................................... ...4-M, 76
Bedau, The Courts, The Constitution, and Capital
Punishment, 1968 Utah L. Rev. 201, 232 (1968) ....... 77
Bedau, The Death Penalty in A merica (1964) 268 .... 76
California Jury Instructions, Criminal (CALJIC) 1.30
(Third rev. ed. 1970) ........................................ ............. 43
California Jury Instructions, Criminal (CALJIC) 8.80
(Third rev. ed. 1970) ____________ ____________ __ 42,43
California Jury Instructions, Criminal (CALJIC) 8.81
(Third rev. ed. 1970) ............ ............. ............ ............. 36
California Jury Instructions, Criminal (CALJIC) 8.82
(Third rev. ed. 1970) ...................................................... 38
Comment, The Death Penalty Cases, 56 Cal. L. Rev.
1268 (1968) ................. 30
Comment, The California Penalty Trial, 52 Cal. L.
R ev. 386 (1964) ................................................ ............. 30
DiSalle, Comments on Capital Punishment and Clem
ency, 25 Ohio St. L.J. 71, 72 (1964) ......... ................. 4-M
Duffy & H irshberg, 88 Men and 2 W omen (1962) ____4-M
Herman, An Acerbic Look at the Death Penalty in
Ohio, 15 W estern Reserve L. Rev. (1964) ......... ..... 28
Johnson, Selective Factors in Capital Punishment, 36
Social F orces 165 (1957) ............................................ 4-M
K oestler, Reflections on Hanging (Amer. ed. 1957)
144-152 ....... 76
Lawes, Twenty Thousand Y ears in Sing Sing (1932) 4-M
National Commission on Reform of Federal Criminal
Laws, Study Draft of a New Federal Criminal
Code, §§3601-3605 (1970)
PAGE
9
XXL11
Note, A Study of the California Penalty Jury in
First-Degree-Murder Cases, 21 Stan. L. R ev. 1297
(1969) ............... ......... ............. ................. ........ .....4-M, 30, 49
Note, Post-Conviction Remedies in California Death
Penalty Cases, 11 Stan. L. Rev. 94 (1958) ................ . 49
Note, The Void-for-Vagueness Doctrine in the Supreme
Court, 109 U. Pa. L. Rev. 67, 81 (1960) ....................... 70
Ohio Department of Mental Hygiene and Corrections,
Ohio Judicial Criminal Statistics 1959; 1960; 1961;
1962; 1963; 1964; 1965; 1966; 1967; 1968 ..................29-30
Ohio Legislative Service Commission, Staff Research
R eport No. 46, Capital P unishment (January 1961)
54 ............ 29
P aley, P rinciples of Moral and P olitical P hilosophy
(11th Amer. ed. 1825) 384-386 .................................. .....6, 7, 8
P resident’s Commission on Law E nforcement and
A dministration of J ustice, Report (T he Challenge
of Crime in a F ree Society) (1967) 143 ............ .........12,13
1 R adinowicz, A H istory of E nglish Criminal L aw
and Its A dministration F rom 1750 (1948) 31-33 ..... 77
Reckless, The Use of the Death Penalty, 15 Crime &
Delinquency 43 (1969) ................................................... 49
R oyal Commission on Capital P unishment 1949-1953,
R eport (H.M.S.O. 1953) [Cmd. 8932] 1 7 ..................75-76
Sellin, The Death Penalty (1959) .............................. . 76
Sellin, The Death Penalty (1967) .......................... ........ 76
Statement by Attorney General Ramsey Clark, Before
the Subcommittee on Criminal Laws and Procedures
of the Senate Judiciary Committee, on S. 1760,
To Abolish the Death Penalty, July 2, 1968, De
partment of Justice Release, p. 2 .............................. 77
PAGE
XX1Y
PAGE
Symposium Note, The Two-Trial System in Capital
Cases, 39 N.Y.U.L. R ev. 50 (1964) .............................. 30
United States Department of Justice, Bureau of
Prisons, National Prisoner Statistics ......................... 30
No. 23, Executions 1959 (February, 1960) ........ 30
No. 26, Executions 1960 (March, 1961) ............... 30
No. 28, Executions 1961 (April, 1962) ................. 30
No. 32, Executions 1962 (April, 1963) ........... 30
No. 34, Executions 1930-1963 (May, 1964) ........ 30
No. 37, Executions 1964 (April, 1964) .................. 30
No. 39, Executions 1930-1965 (June, 1966) ......... 30
No. 41, Executions 1930-1966 (April, 1967) ....... 30
No. 42, Executions 1930-1967 (June, 1968) ........ 30
No. 45, Capital Punishment 1930-1968 (August
1969) ...................................................................15,30,50
2 W ith in , California Crimes, §§904-905 (1963) .......... 30
I n the
t o u r ! rtf % I n i t r i i S ta te s
October T erm , 1970
No. 203
D ennis Councle M cGautha,
Petitioner,
State oe California,
Respondent.
on writ oe certiorari to the supreme court of California
No. 204
J ames E dward Crampton,
—v.—
Petitioner,
State of Ohio,
Respondent.
on writ of certiorari to the supreme COURT OF OHIO
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND STATEMENT OF INTEREST OF THE AMICI
Movants N.A.A.C.P. Legal Defense and Educational
Fund, Inc., and National Office for the Rights of the Indi
gent respectfully move the Court for permission to file the
attached brief amici curiae, for the following reasons. The
reasons assigned also disclose the interest of the amici.
2-M
(1) The N.A.A.C.P. Legal Defense and Educational
Fund, Inc. (LDF) is a non-profit corporation formed to as
sist Negroes to secure their constitutional rights by the
prosecution of lawsuits. One of its charter purposes is to
provide free legal assistance to Negroes suffering injustice
by reason of race who are unable, on account of poverty, to
employ legal counsel. For many years, LDF attorneys have
represented in this Court and the lower courts persons
charged with capital crimes, particularly Negroes charged
with capital crimes in the Southern States.
(2) A central purpose of the LDF is the legal eradication
of practices in American society that bear with discrimina
tory harshness upon Negroes and upon the poor, deprived,
and friendless—who too often are Negroes. To further this
purpose, the LDF established in 1965 a separate corpora
tion, the National Office for the Rights of the Indigent
(NORI) having among its objectives the provision of legal
representation to the poor in individual cases and advocacy
before appellate courts in matters that broadly affect the
interests of the poor.
(3) The long experience of LDF attorneys in the han
dling of death cases has convinced us that capital punish
ment in the United States is administered in a fashion that
consistently makes racial minorities, the deprived and the
downtrodden, the peculiar objects of capital charges, capital
convictions, and sentences of death. We believe that this
and other grave injustices are referable in part to the
fundamental character of the death penalty as an institu
tion in modern American society,1 and in part to common
1 This point is developed at length in the Brief for the N.A.A.
C.P. Legal Defense and Educational Fund, Inc., and the National
Office for the Rights of the Indigent, as Amici Curiae, in Boykin v.
3-M
practices in the trial of capital cases which depart alike
from the standards of an enlightened criminal justice and
from the minimum requirements of fairness and even-
handedness fixed by the Constitution of the United States
for proceedings by which life may be taken. Finally, we
have come to appreciate that in the uniquely stressful
processes of capital trials and direct appeals, ordinarily
handled by counsel appointed for indigent defendants,
many pressures and conflicts may impede the presentation
of effective attacks on these unfair and unconstitutional
practices ;2 and that in the post-appeal period, such attacks
are grievously handicapped by the ubiquitous circum
stance that the inmates of the death rows of this Nation are
as a class impecunious, mentally deficient, unrepresented
and therefore legally helpless in the face of death.3 * * * * * * * II
Alabama, 395 U.S. 238 (1969) (O.T. 1968, No. 642), wherein "we
urged that the death penalty was a cruel and unusual punishment
forbidden by the Eighth and Fourteenth Amendments.
2 Two of these practices are at issue in the present cases. Others
are described in our amici curiae brief in Boykin v. Alabama, note
I supra, at pp. 3-7, nn. 6, 7; and in the Brief Amici Curiae of the
N.A.A.C.P, Legal Defense and Educational Fund, Inc., and the
National Office for the Eights of the Indigent, in Witherspoon v.
Illinois, 391 U.S. 510 (1968) (O.T. 1967, No. 1015), pp. 12-28.
3 In 1967, counsel for the amici instituted the case of Adderly
v. Wainwright, U.S.D.C., M.D. Fla., No. 67-298-Civ-J, by a class-
action petition for a writ of habeas corpus on behalf of all con
demned men in the State of Florida. In connection with the Dis
trict Court’s determination "whether it should entertain such a
proceeding in class-action form, it authorized counsel to conduct
interviews of all the inmates of Florida’s death row. The findings
of these court-ordered interviews, subsequently reported by counsel
to the court and relied upon in the court’s decision that class-action
proceedings were proper, indicated that of the 34 men interviewed
whose direct appeals had been concluded, 17 were without legal
representation (except for purposes of the Adderly suit itself) ;
II others were represented by volunteer lawyers associated with
the LDF or the ACLU; and in the case of two more, the status of
4-M
(4) For these reasons, amici LDF and NOM undertook
in 1967 to represent all condemned men in the United States
for whom adequate representation could not otherwise he
found. In less than three years, we have come to represent
about 200 of the approximately 550 men on death row,4 and
to provide consultative assistance to attorneys for a large
number of the others. In this Court, we represent twenty-
one men and one woman under sentences of death, whose
cases are pending on petitions for certiorari that raise one
or both of the issues presented by the present cases. We
briefed and argued those issues before the Court in Max-
legal representation was unascertainable. All 34 men (and all
other men interviewed on the row) were indigent; the mean in
telligence level for the death row population (even as measured
by a nonverbal test which substantially overrated mental ability
in matters requiring literacy, such as the institution and main
tenance of legal proceedings) was below normal; unrepresented
men were more mentally retarded than the few who were repre
sented ; most of the condemned men were, by occupation, unskilled,
farm or industrial laborers; and the mean number of years of
schooling for the group was a little over eight years (which does
not necessarily indicate eight grades completed). These findings
parallel those both of scholars who have undertaken to describe
the characteristics of the men on death row, e.g., Sedan, Death
Sentences in New Jersey 1907-1960, 19 Rutgers L. Rev. 1 (1964) ;
Johnson, Selective Factors in Capital Punishment, 36 Social
F orces 165 (1957); Note, A Study of the California Penalty Jury
in First-Degree-Murder -Cases, 21 Stan. L. Rev. 1297, 1337-1339,
1376-1379, 1384-1385, 1418 (1969), and of officials experienced in
dealing with death-row inmates, e.g., DiSalle, Comments on Capi
tal Punishment and Clemency, 25 Ohio St. L.J. 71, 72 (1964) :
“ I want to emphasize that from my own personal experience
those who were sentenced to death and appeared before me
for clemency were mostly people who were without funds for
a full and adequate defense, friendless, uneducated, and with
mentalities that bordered on being defective.”
Accord: Lawes, Twenty Thousand Years in Sing Sing (1932),
302, 307-310; Duffy & Hirshberg, 88 Men and 2 W omen (1962),
256-257.
4 See note 18 infra.
5-M
well v. B ishop,------ U .S .--------, 26 L. Ed.2d 221, 90 S. Ct.
1578 (1970) (O.T. 1969, No. 13), and handled the California
Supreme Court case of In re Anderson, 69 Cal.2d 613, 447
P.2d 117, 73 Cal. Eptr. 21 (1968), upon which that court's
decision in the present McGautha case rests. The Anderson
matter is currently pending on petition for certiorari as
O.T. 1970, Misc. No. 5118.
(5) We seek to file this brief amici curiae, urging re
versal, in order to place the issues before the Court in a
broader perspective than that provided by these two Cali
fornia and Ohio cases. Presentation of the broader perspec
tive is particularly important because, in certain aspects,
California and Ohio capital-trial practices differ from those
of many other States—for example, the Arkansas practice
involved in Maxwell v. Bishop. We shall explore those dif
ferences and their significance. It is not our purpose to re
hash the arguments that we made so recently in Maxwell.
For the Court’s convenience, should it wish to consult those
arguments, we append our Maxwell brief to this one (Ap
pendix A, infra). It develops our basic constitutional con
tentions. In the body of this present brief, we advance
several additional considerations that we think should be
brought to the attention of the Court, relative to the interest
of the 550 men (and, insofar as we are advised, 3 women)
whose lives immediately depend upon what the Court de
cides herein.
(6) Both parties in McGautha and petitioner in Cramp-
ton have consented to the filing of a brief amici curiae by
LDF and NOEI. The present motion is necessitated be
cause counsel for the State of Ohio has refused consent in
Crampton.
6-M
W hebefobe, movants pray that the attached brief amici
curiae be permitted to be filed with the Court.
Bespectfully submitted,
J ack Gbeenbebg
J ames M. Nabbit, I I I
J ack H immelstein
10 Columbus Circle, Suite 2030
New York, New York 10019
M ichael M eltskeb
Columbia University School of Law
New York, New York 10027
A nthony G. A mstebdam
Stanford University Law School
Stanford, California 94305
Attorneys for the N.A.A.C.P. Legal
Defense and Educational Fund,
Inc., and the National Office for
the Bights of the Indigent
I n th e
©ourt ni % llxnUin States
October T erm , 1970
No. 203
D ennis Cotjncle M cGau th a ,
Petitioner,
State of California,
Respondent.
ON W RIT OF CERTIORARI t o THE SUPREME COURT OF CALIFORNIA
No. 204
J ames E dward Champion ,
-v.-
Petitioner,
State of Ohio ,
Respondent.
ON W RIT OF CERTIORARI TO TH E SUPREME COURT OF OHIO
BRIEF AMICI CURIAE
2
Summary of Argument
I.
The power of the States to punish crime with death is
not in issue here. What is in issue is their use of an arbi
trary system to select the men who die. The basic irration
ality of capital punishment may make the designing of non-
arbitrary selective procedures more difficult than the use
of arbitrary ones. But it cannot, consistent with Due Proc
ess, justify arbitrary procedures.
II.
A procedure by which jurors are empowered to choose
between life and death without standards or principles of
general application to guide and confine that choice is es
sentially lawless. For the reasons developed in our brief
in Maxwell v. Bishop, it violates the rule of law basic to
Due Process. The California and Ohio versions of the pro
cedure challenged here are not constitutionally differen
tiable from the Arkansas procedure at issue in Maxwell.
III.
Ohio’s single-verdict capital trial procedure is also un
constitutional for the reasons that we urged against Arkan
sas’ similar procedure in Maxwell.
IV.
A decision invalidating standardless capital sentencing
by juries or the single-verdict capital trial procedure should
be given fully retroactive effect, to the extent of forbidding
execution of the sentence of death upon any man condemned
to die under those procedures.
3
A R G U M E N T
I.
Introduction.
As the Court begins anew to deliberate the difficult
constitutional questions raised by standardless capital
sentencing and by the single-verdict capital trial procedure,
it is vital to identify succinctly what is, and what is not,
legally at issue and practically at stake.
The federal constitutionality of capital punishment, as
such, is not in question. The only question is whether
certain 'procedures for administering capital punishment
comply with basic safeguards of the Constitution designed
to forbid the use of arbitrariness as a tool of American
government.5 That limitation of the issue has several
important implications.
First, the interest that the States of California and Ohio
are asserting in these cases is not an interest in the main
tenance of the death penalty for the crime of murder.
Nothing that the Court could conceivably decide in either
case would deprive the States (or the National Government)
of the power to employ death as a punishment for any
crime. To the extent that this extreme resort is legislatively
believed to be a necessary and proper means of social
5 “ Certainly one of the basic purposes of the Due Process Clause
has always been to protect a person against having the Govern
ment impose burdens upon him except in accordance with the valid
laws of the land.” Giaccio v. Pennsylvania, 382 U.S. 399, 403
(1966). For “ the very idea that one man may be compelled to
hold his life, or the means of living, or any material right essential
to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the
essence of slavery itself.” Yick Wo v. Hopkins, 118 U.S. 356, 370
(1886).
4
defense, no holding of this Court herein would or could
disable it.
Second, the interest that the States are asserting here is
not an interest in the regular and systematic use of the
punishment of death as an instrument of state penal policy.
It is not a considered legislative prescription of that
punishment for all or most murderers or other “ capital”
criminals, or for any legislatively determined sub-class,
kind, type or sort of murderers or “ capital” criminals. It
is not a legislative determination that any societal interest
makes it necessary and proper that Dennis Councle Mc-
Gautha or James Edward Crampton or any other man or
woman convicted of murder should forfeit his life. For not
only have the legislatures of California and Ohio failed to
decide the question when, if ever, some interest of society
requires that life be taken; they have failed to provide
procedures by which any responsible organ of government
decides that question.
Consistently with the capital punishment laws of those
States, California and Ohio juries might never sentence a
murderer to die; they might sentence all murderers to die;
or, if—as is most likely—they distinguish some murderers
from others, they are perfectly free to kill some and spare
the remainder for reasons which have absolutely no relation
to the purposes for which capital punishment was legis
latively authorized in the first place. For the moment, we
are not concerned with the constitutional issues raised by
this sort of procedure, but only with the States’ interest
in maintaining it. That interest is manifestly not any one
that might be served by the efficient selective use of death
as an anti-crime device, since the very methods of selectivity
in question here preclude decision of the question who shall
5
live and who shall die conformably with principles of anti
crime efficiency—or any other principles in which the State
may have a stake.
Third, the States’ interest here is not in preserving pro
cedures that either are or have been determined legislatively
to be essential for the administration of capital punish
ment. That is obvious enough with regard to the single
verdict procedure (since six States, including California,
now use a form of split-verdict procedure for the trial of
capital cases) ;6 but, as regards the matter of the arbitrary
discretion given juries in capital sentencing, the Attorneys
'General of Arkansas and California appeared to have been
urging this Court in Maxwell v. Bishop either that the
formulation of standards for non-arbitrary capital sentenc
ing was impossible, or at least that the Court should
respect the legislative judgment that it was impracticable.
The argument of impossibility ignores alike history and
the existence of contemporary models of standards for
capital sentencing. The historical oversight is glaring,
inasmuch as prior to the advent of the Twentieth Century,
virtually all capital statutes provided standards for impos
ing the death sentence: namely, the legislative definition of
the capital crime itself. Mandatory capital crimes provide
one form of standards for the imposition of the death
penalty, although not the only form. For centuries, legis
latures evolved those standards; and during the Nine
teenth, particularly, legislatures in this country and in
England drastically reduced the reach of the death penalty
6 Effective July 1, 1970, Georgia became the sixth State. Ga.
General Assembly, 1970 Sess., H.B. No. 228. The other five States
are California, Connecticut, New York, Pennsylvania and Texas.
See our Maxwell brief, Appendix A infra, pp. 77-78 n. 79.
6
both by removing some crimes from the roster of capital
offenses and by redefining or subdividing others—provid
ing, for example, degrees of murder.7 So it is rather
surprising to hear advanced today, in support of standard
less capital sentencing, the precise argument used by
Archdeacon William Paley in 1785 to justify England’s
“ Bloody Code” of more than 250 capital crimes: that be
cause “ it is impossible to enumerate or define beforehand
. . . those numerous unforeseen, mutable and indefinite
circumstances, both of the crime and the criminal, which
constitute or qualify the malignity of each offence,” the
proper course is to “ [sweep] into the net every crime which,
under any possible circumstances, may merit the punish
ment of death; but, when the execution of this sentence
comes to be deliberated upon, a small proportion of each
class are singled out” for the actual business of dying.
“ The wisdom and humanity of this design,” Paley con
cluded, “ furnish a just excuse for the multiplicity of capital
offences, which the laws of England are accused of creating
beyond those of other countries.” 8
7 The first jurisdiction to divide murder into degrees was Penn
sylvania, by a statute of 1794. Pa. Laws 1794, ch. 257, §§1-2.
That statute, like its successors which wrere enacted in virtually
every one of the United States during the following century, re
served the death penalty for murder in the first degree. Its
Preamble recited that public safety was best secured by moderate
and certain punishments, rather than by severe and excessive ones,
that “ it is the duty of every Government to endeavor to reform,
rather than exterminate offenders, and [that] the punishment of
death ought never to be inflicted, where it is not absolutely neces
sary to the public safety.”
8 Paley, Principles of Moral and Political Philosophy filth
Amur, ed. 1825), 384-386:
“ There are two methods of administering penal justice.
“ The first methods assigns capital punishments to few of
fences and inflicts it invariably.
(footnote continued on next page)
7
Paley’s sanguinary peroration furnishes an exact counter
part of the argument made before this Court by California
in the Maxwell case: that standardless capital sentencing
is warranted by the State’s interest in retaining the death
penalty while preserving the quality of “mercy” uncon
strained. We shall return shortly to this ironic invocation
of the concept of mercy to justify arbitrary procedures for
killing people. At this juncture, it suffices to say that the
“ The second method assigns capital punishments to many
kinds of offences, but inflicts it only upon a few examples of
each kind.
“ The latter of which two methods has been long adopted in
this country, where, of those who receive sentence of death,
scarcely one in ten is executed. And the preference of this
to the former method seems to be founded in the considera
tion, that the selection of proper objeets for capital punish
ment principally depends upon circumstances, which however
easy to perceive in each particular case after the crime is
committed, it is impossible to enumerate or define beforehand;
or to ascertain however with that exactness, which is requisite
in legal definitions. Hence, although it be necessary to fix
by precise rules of law the boundary on one side . . ., that
nothing less than the authority of the whole legislature be
suffered to determine that boundary, and assign these rules;
yet the mitigation of punishment, the exercise of lenity, may
without danger be entrusted to the executive magistrate,
whose discretion wall operate upon those numerous unfore
seen, mutable and indefinite circumstances, both of the crime
and the criminal, which constitute or qualify the malignity
of each offence... .
“For if judgment of death "were reserved for one or two
species of crimes only (which would probably be the case if
that judgment was intended to be executed without excep
tion), crimes might occur of the most dangerous example, and
accompanied with circumstances of heinous aggravation, which
did not fall within any description of offenses that the laws
had made capital, and which consequently could not receive
the punishment their own malignity and the public safety
required. . . .
“ The law of England is constructed upon a different and
a better policy. By the number of statutes creating capital
8
interest of mercy, like the other interests that we have
identified thus far, is nowise threatened by petitioners’
contentions in these cases. Their argument against arbi
trary capital sentencing is not an argument for mandatory
capital crimes (although, of course, the enactment of
mandatory capital crimes would avoid it, in the fashion of
throwing the baby out with the bath). It is an argument
that where discretion is given to a legal tribunal in a matter
so grave as the taking or sparing of human life, that dis
cretion must be suitably refined, directed and limited, so as
to ward against wholly lawless caprice. Devices for provid
ing that kind of protection are quite readily available which
nevertheless allow the capital-sentencing jury (not to speak
of the Governor)9 ultimate powers of mercy.
We mentioned above certain contemporary models of
such devices, principally the capital-sentencing provisions
offences, it sweeps into the net every crime which, under any
possible circumstances, may merit the punishment of death;
but, when the execution of this sentence comes to be deliber
ated upon, a small proportion of each class are singled out,
the general character, or the peculiar aggravations, of whose
crimes render them fit examples of public justice. By this
expedient, few actually suffer death, whilst the dread and
danger of it hang over the crimes of many. . . . The wisdom
and humanity of this design furnish a just excuse for the
multiplicity of capital offences, which the laws of England
are accused of creating beyond those of other countries. . . . ”
9 We hardly need say that nothing involved in these cases, or in
petitioners’ arguments, touches the clemency power of the execu
tive. Conversely, to recognize the unfettered character of that
power is not to legitimate giving a similar power to sentencing
juries. It is one thing to say that a man, once condemned to die
by procedures whose lawful regularity satisfies the concerns of
Due Process, may then be subjected to the unlimited authority of
commutation. It is quite another thing to say that a man may be
killed pursuant to a process which at no stage of the decision to
kill him satisfies Due Process concerns.
9
of the Model Penal Code10 and of the Study Draft recently
published by the National Commission on Reform of
Federal Criminal Laws.11 Both of these provisions use a
variety of means to assure regularity and delimit dis
cretion in capital sentencing: the prescription of circum
stances which exclude the death penalty; the requirement
of specified findings which allow the death penalty; the
enumeration of criteria for determination in cases where
it is allowed; and the subjection of that determination to
judicial review at the trial and appellate levels under the
same criteria. Alternatively, capital sentencing procedures
could be designed along the lines of the extended-sentencing
provisions of the Model Sentencing Act of the N.C.C.D.,12
directing specified inquiries into the defendant’s back
ground and propensities. These approaches might be
combined, or others adopted.13 None would prohibit either
capital punishment or mercy, while restricting the jury’s
power simply to take away life arbitrarily.
As for the suggestion that California’s or Ohio’s legis
lature, or any other, has determined that these approaches
are impracticable—a determination, so the suggestion goes,
that this Court should respect—that is quite fallacious. To
be sure, it is true that American legislatures have in fact
given their juries arbitrary capital sentencing power, as
10 A merican Law Institute, Model Penal Code, §210.6
(P.O.D., May 4, 1962), pp. 128-132.
11 National Commission on Beform of Federal Criminal
Laws, Study Draft of a New Federal Criminal Code, §§3601-
3605 (1970), pp. 307-311.
12 A dvisory Council of Judges of the National Council on
Crime and Delinquency, Model Sentencing A ct, §§5-9 (1963).
13 S ee o n r Maxwell b r ie f , A p p e n d ix A , infra p p . 38-45, 63-64
n. 67.
10
once they were wont to give their police chiefs arbitrary
powers of licensure of public meetings before this Court
forbade. Often it is the easier course, legislatively, to cast
the net overbroadly, particularly where the courts have not
identified constitutional interests that require otherwise.
But to read into such a course the determination that other
courses are impracticable—as distinguished from merely
more exacting—is to read what no legislature has written.
The plain fact of the matter is that the arbitrary death-
sentencing procedures challenged in these cases and perva
sive in the United States today represent the several
legislatures’ easy way out of the problem of devising work
able methods of selection of the persons who should die,
once mandatory capital punishment for murderers and
other “ capital” criminals became politically untenable.
Wholesale execution of the persons guilty of these crimes
is no longer tolerable to enlightened public opinion;
differentiation among them is difficult, particularly since
the purposes of the death penalty are diffuse, controversial,
and—when exposed to rational debate—too unsubstantial
to command agreement either upon those purposes them
selves or upon the uses of the death penalty appropriate to
achieve them;14 so the matter is simply handed over to
individual juries to kill or not, as they please.
And here one touches, we believe, the real interest of the
States of California and Ohio in the present cases. That is
an interest in maintaining the death penalty while avoiding
the responsibility for rationalizing it to the extent necessary
in order to assure its regular, consistent, non-arbitrary
application. Or, to put the matter the other way around, it
14 See note 154 infra.
11
is an interest precisely in maintaining arbitrary proeednres
for administration of the death penalty and selection of
the men to die, lest, in the process of formulating non-
arbitrary selective procedures, the death penalty be ex
posed to legislative and public scrutiny that might severely
restrict or even wholly condemn it.
To this extent only do these cases implicate a possible
restriction of state power to impose death as a penalty for
crime. If petitioners prevail in both their claims here, a
State which chooses to kill human beings in the service of
some penal policy will have to give considered legislative
attention to its reasons for doing so, and to the design of
standards and procedures for selection of the men it will
kill which conform to those reasons and assure their imple
mentation in a regular, non-arbitrary fashion. Nothing
more is at stake for the States.15 16
15 We have pointed out in our Maxwell brief, Appendix A infra,
pp. 60-61, why a decision forbidding arbitrary capital sentencing
by juries would not necessarily imply a like constitutional restric
tion upon_ non-capital jury sentencing in the relatively few States
where juries determine penalty for non-capital crimes.
We have also pointed out, id., at pp. 35-37, grounds which might
distinguish capital jury sentencing from capital sentencing by
judges. ̂ As a practical matter, in terms of the States’ interest in
this litigation, judge sentencing in capital cases involves no addi
tional considerations. In every State which permits capital sen
tencing by judges alone (that is, not upon the recommendation
of a jury), such judge sentencing is an alternative procedure to
jury sentencing, usually available upon pleas of guilty or the de
fendant’s waiver of jury trial. I f these States are required to de
sign constitutionally adequate standards for capital jury sentenc
ing, those standards obviously can and will also be made to apply
to capital sentencing by judges. All that is realistically at stake,
therefore, in the question whether capital sentencing by juries and
by judges is constitutionally distinguishable, is whether the men
sentenced to death by judges acting without standards prior to
the Court’s decision of these instant cases shall live or die. As
12
On the other hand, what is at stake not merely for the
individuals charged with capital crimes hut for the entire
system of criminal justice in these gravest of legal pro
ceedings, is the rule of law that is fundamental to the Due
Process Clause and to our very conception of government
in a free society. The question is not, as California sug
gested in the Maxwell argument that it was, whether
individual capital defendants would “ do better” under
regularized sentencing procedures or arbitrary ones. Some
defendants undoubtedly would do better, and some would
do worse. But they would do better or worse for reasons
rationally related to the publicly exposed justifications for
having the death penalty, not—as now—wholly arbitrarily.
Our society is not bottomed on the rule of law because some
of us “do better” for it. Our society is bottomed on the
rule of law because, without it, irresponsible and arbitrary
governmental action may destroy any one of us, and that
destruction diminishes us all.
Perhaps at no time in American history has the rule of
law been so important, and respect for it so precious, as
they are now. Institutionalized arbitrariness, particularly
in matters of life and death, critically undermines the rule
of law and its just claim to respect. So it is a matter of the
highest expediency, as well as a constitutional command,
that (as the National Crime Commission recommended):
“ [Where a State chooses to retain capital punishment],
we point out in our discussion of retroactivity, pp. 74-82 infra,
the States’ interest in killing any of these men is negligible.
The federal Government does, however, have a few, infrequently
used capital statutes that confer sentencing discretion exclusively
upon judges. As to these, any constitutional distinction between
standardless capital sentencing by juries and standardless capital
sentencing by judges would have future, as well as past, signifi
cance.
13
the types of offenses for which it is available should be
strictly limited, and the law should be enforced in an
evenhanded and nondiscriminatory manner, with proce
dures for review of death sentences that are fair and
expeditious. When a State finds that it cannot administer
the death penalty in such a manner, . . . the penalty should
be abandoned.” 16
The problem, of course, is that arbitrary procedures for
the imposition of capital punishment inevitably function to
preclude both their own review and the reconsideration of
the basic question of the death penalty. When the decision
to kill human beings is made ad hoc and without reference
to any articulated standards, policies or justifications,
capital punishment escapes the sorts of legislative and
public scrutiny necessary to assure either “ evenhanded and
nondiscriminatory” enforcement (supra), or conformity
with “ The evolving standards of decency that mark the
progress of a maturing society,’ ” (Trap v. Dulles, 356 U.S.
86, 101 (1958) (plurality opinion), quoted in Witherspoon
v. Illinois, 391 U.S. 510, 519 n. 15 (1968)). For it is, once
again, the easy way out—too easy, we think, where the
matter of killing human beings is involved—for a legis
lature to leave undisturbed upon the statute books a capital
punishment law whose evenhanded and nondiscriminatory
enforcement it could not rationally support, and its public
would abhor—so long as both the legislature and the public
are assured that it need not in fact be evenhandedly and
nondiscriminatorily applied. If a few poor ugly wretches
are the only ones who have to actually die, and upon grounds
16 President’s Commission on Law Enforcement and Ad
ministration of Justice, Report (The Challenge of Crime in a
Free Society) (1967), 143.
14
not susceptible of examination or application to anyone
else, capital punishment obviously escapes the fair scrutiny
of public conscience, with its attendant pressure to keep
the legislature acting decently. For the public can easily
bear the rare and random imposition of a punishment
which, if applied systematically and regularly, would make
the common gorge rise.
But this is not the worst of it. The individual condemned
man goes to his death not merely in the dubious service of
a self-insulated, comprehensively arbitrary system, but as
the result of a particular selective judgment made
arbitrarily in his own case, singling him out without design
or reason as the happenstance tribute of that system. He
is picked to die, out of a group of identically situated
defendants convicted of the same crime and thereupon
permitted to live.17 Perhaps his case differs in some aspects
from theirs; perhaps it does not; no matter, since the
sentencing jury is not required to consider either the
differences or any principles that might make them rele
vant. It may simply elect to kill him or not, as it chooses,
for any reason, or for no reason, and certainly for no
reason that need or will be applied in the case of any other
defendant. The notion that judgments upon any important
issue should be made by a purported court of law in this
fashion is incredible; but, that life-or-death judgments—
and, in our system of law, only life-or-death judgments—
should be so made, is positively mind-staggering.
Insofar as we can tell, there are now approximately five
hundred and fifty-three condemned persons on the death
17 See onr Maxwell brief, Appendix A infra, pp. 11-12.
15
rows of this country.18 Five hundred and forty-eight of
them have been sentenced to die under the arbitrary
sentencing power challenged in these McGautha and Cramp-
ton cases.19 For these men, as for the Court, the question
that the cases present is not whether a State may constitu
tionally use death to punish crime. It is whether they may
constitutionally be selected to die, from amongst their
thousands of death-eligible compeers, by a process so
fundamentally lawless that a small-claims court could not
18 The last available official figure was 479, as of December 31,
1968. See United States Department of Justice, Bureau of Prisons’
National Prisoner Statistics, Bulletin No. 45, Capital Punishment
1930-1968 (August, 1969), p. 22. The Bureau of Prisons of the
United_ States Department of Justice reported to us in response
to our inquiry that the figures which they have compiled for the as
yet unpublished National Prisoner Statistics Bulletin on Capital
Punishment for 1969 place the figure of condemned persons at
525, as of December 31, 1969. Adjustment in light of the num
bers of death sentences known to us to have been rendered, va
cated and commuted during the first seven months of 1970 brings
the number to the estimated 553 set forth in text.
19 From the estimated total of 553, we exclude five who are under
sentence of death in California for the only mandatory capital
crime still in active use in the United States: assault with a deadly
weapon or any means likely to cause great bodily injury by a
prisoner under sentence of life imprisonment, where the person
assaultedis not an inmate and dies, Cal. Pen. Code §4500. Among
the remaining 548, we do not distinguish between men sentenced
to die by juries (like McGautha and Crampton) and men sen
tenced to die by judges. Cf. note 15, para. 2, supra. So far as
we are advised, no figures are available that would permit even
a rough estimate of how many of the 548 persons under sentence
of death for discretionary capital crimes were judge-sentenced.
We can make the estimate, however, that about 390 of them
were sentenced to death under the single-verdict procedure also
challenged in the Crampton case. This figure is derived by exclud
ing from the 502 (1) all death-row inmates in California, Con
necticut and Pennsylvania, (2) an estimated number in Texas
tried since 1967, when that State adopted a split-verdict form of
capital trial procedure, and (3) an estimated number of inmates
in other jurisdictions sentenced to death after pleas of guilty.
(Georgia’s split verdict statute became effective only last month;
and New York has no prisoners now under sentence of death.)
16
validly use it as the basis for rendering a five-dollar judg
ment.20 That is the issue which this Court must decide.
We have made these introductory observations for one
reason. It is to state precisely the significance of the ques
tions of capital trial procedure now before the Court. From
the point of view of the States, they are far less important
than the ultimate question—not here presented—whether
the Constitution, in particular the Eighth Amendment,
permits the use of capital punishment at all. But from the
point of view of constitutional principle, they are at least
equally important.
Death, which creates their importance, also obscures it.
For the enormity of death is such that the basic question—
whether to permit its use as a punishment for crime—
naturally tends to dwarf into apparent insignificance all
questions relating to procedures for its imposition. So very
difficult and emotionally exhausting is that basic question,
that once legislative competence to use capital punishment
has been granted— once it has been decided or assumed
that someone can properly and legally be made to d ie -
even the vital question, who, seems relatively picayune.
That tendency is seconded by the notion that, since the
legislature can sentence all condemned criminals of a sort
to death, the process of sparing some but not others is an
act of mercy, of whose mysterious workings none can
legitimately complain. Besides, death is such an extraor
dinary thing, so beyond the pale of human reason, that to
ask a legislature to deal reasonably with it, find reasonable
bases for its imposition here and its extenuation there,
surely is too much to ask.
20 See our Maxwell brief, Appendix A infra, p. 42.
17
But it is not too much to ask. Arbitrarily killing people
is not “mercy.” Who gets killed is not a picayune question.
And the enormity of state-inflicted death is no reason for
the attenuation of basic constitutional safeguards. It is
a reason for heightened insistence upon those safeguards.
We have admitted above that the designing of non-
arbitrary procedures for the administration of capital
punishment would be more difficult for legislatures than
continuation of the present arbitrary ones. Indeed, as we
see it, the real question in these cases is whether the Con
stitution requires the legislatures to shoulder that difficulty.
In other contexts, the avoidance of legislative difficulty
might itself be a weighty constitutional concern. But legis
lation that extinguishes human life should be difficult at
least to this extent: that the problem of providing regular
and fundamentally lawful procedures for its administration
must be responsibly met, and arbitrariness in those
procedures not excused on the astounding ground that the
death penalty is basically irrational anyway.
18
II.
The Issue of Standardless and Arbitrary Capital Sen
tencing Power.
A. The Nature of the Power
With a single exception,21 all capital crimes currently in
use in the United States involve the discretionary (that
is, non-mandatory) imposition of the death penalty.22
Practices for the selection of the men who will die for these
crimes vary considerably, however, from State to State.
We first describe the Ohio and California practices here in
issue, and then contrast them with the discretionary capital-
sentencing practices in use in other American jurisdictions.
1. Ohio
Non-capital sentencing in Ohio is done almost entirely by
judges.23 All capital sentencing is, however, done by
21 See note 19, supra.
22 See our Maxwell brief, Appendix A infra, p. 26, n. 24.
23 Juries trying non-capital criminal cases are required by stat
ute to be told that they should not consider the question of punish
ment, and that punishment rests with the court. Ohio Rev. Code,
§2945.11 (Ohio Gen. Code, §13442-9). See, e.g., State v. Spino, 90
Ohio App. 139, 104 N.E.2d 200 (1951). Judicial sentencing is gen
erally discretionary within statutory limits, and the exercise of
that discretion is not reviewable on appeal. City of Toledo v.
Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179 (1965) • Fleming
v. State, 34 Ohio App. 536, 171 N.E. 407 (1929), aff’d, 122 Ohio
St. 156, 171 N.E. 27 (1930). But see Montalto v. State, 51 Ohio
App. 6, 199 N.E. 198 (1935).
In regard to two non-capital crimes, juries do have sentencing
power. They may decide whether the sentence for nighttime
burglary of a dwelling and for bank robbery should be life im
prisonment or some lesser term. Ohio Rev. Code, §2907.09 (Ohio
Gen. Code, §12437); Ohio Rev. Code, §2907.141 (Ohio Gen. Code,
19
juries,24 unless the defendant waives jury trial25 or pleads
guilty26 to a capital offense. In either of these last instances,
a statute provides for sentencing by a three-judge court,27
§12441). _ See State v. Sahadi, 3 Ohio App.2d 209, 209 N.E.2d 758
(1964) (jury-waived case).
24 Ohio has two mandatory capital crimes, neither of which has
apparently ever been employed: Ohio Rev. Code §2901.09 (Ohio
Gen. Code, §12406) (killing the President or a person in the line
of presidential succession); Ohio Rev. Code, §2901.10 (Ohio Gen.
Code, §12407) (killing the Governor or Lieutenant Governor).
Ohio’s remaining capital statutes— six in number— confer sentenc
ing discretion upon the jury. See note 30 infra.
25 A capital defendant has a right to waive a jury and insist
upon a bench trial in a capital case. State v. Smith, 123 Ohio St.
237,174 N.E. 768 (1931).
26 The trial court has discretion to decline to accept a guilty plea.
See State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362, 365 (1925);
State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868, 885 (1948).
27 Ohio Rev. Code, §2945.06 (Ohio Gen. Code, §13442-5). For
instances of the statute’s application in a ease of jury waiver, see
State v. Stewart, 176 Ohio St. 156, 198 N.E.2d 439 (1964); and
in cases of guilty pleas, see State v. Frohner, 150 Ohio St. 53, 80
N.E.2d 868 (1948); State ex rel. Scott v. Alvis, 156 Ohio St. 387,
102 N.E.2d 845 (1951) ■ State v. Ferguson, 175 Ohio St. 390, 195
N.E.2d 794 (1964); State v. Lucear, 93 Ohio App. 281, 109 N.E.2d
39 (1952).
The three-judge statute dates from 1933. 115 Ohio Laws 531
(S.B. No. 90, §1). Prior to that date, one judge could take a guilty
plea in a capital case and exercise the jury’s sentencing discre
tion, State v. Habig, 106 Ohio St. 151, 140 N.E. 195 (1922); State
v. Ferranto, 112 Ohio St. 667, 148 N.E. 362 (1925); State ex
rel. Evans v. Eckle, 163 Ohio St. 122, 126 N.E.2d 48 (1955);
Beard v. State, 64 Ohio Law Abs. 532, 112 N.E.2d 832 (1951);
although, apparently, three judges were sometimes convened in
such cases, as a matter of practice and upon consent of the parties,
see Hoppe v. State, 29 Ohio App. 467, 163 N.E. 715 (1928). The
effect of the 1933 statute was to withdraw capital sentencing power
from a single judge, Ex parte Knight, 73 Ohio App. 547, 57 N.E.
2d 273 (1944), but it did not otherwise affect the nature of the
sentencing discretion committed to judicial exercise in cases of
pleas or jury waivers. See note 28 infra.
20
which is granted sentencing powers identical to those
ordinarily exercised by capital juries.28
The provision conferring capital sentencing discretion
upon juries dates from 1898.29 It is now found, in identical
form, in each of Ohio’s five non-mandatory capital
statutes.30 The archetypal statute, involved in the Crampton
case, is Ohio Rev. Code, §2901.01 (Ohio Gen. Code, §12400),
which provides that:
“ Whoever violates this section is guilty of murder
in the first degree and shall be punished by death unless
the jury trying the accused recommends mercy, in
which case the punishment shall be imprisonment for
life.”
Construing this provision, the Ohio Supreme Court has
said that: “Whether or not a recommendation of mercy
shall be made upon finding an accused guilty of murder in
28 State v. IlaMg, 106 Ohio St. 151, 140 N.E. 195, 199 (1922);
State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362, 367 (1925);
State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868, 885 (1948);
State v. Lucear, 93 Ohio App. 281, 109 N.E.2d 39, 41 (1952).
29 93 Ohio Laws 223 (S.B. No. 504). See State v. Ellis, 98 Ohio
St. 21, 120 N.E. 218 (1918); State v. McClellan, 12 Ohio App.2d
204, 232 N.E.2d 414, 417 (1967).
30 Ohio Eev. Code, §2901.01 (Ohio Gen. Code, §12400) (first-
degree murder) • Ohio Rev. Code, §2901.02 (Ohio Gen. Code,
§12401) (killing by obstructing or injuring a railroad) ; Ohio
Rev. Code §2901.03 (Ohio Gen. Code, §12402) (killing of a guard
by a prisoner); Ohio Rev. Code, §2901.04 (Ohio Gen. Code, §12402-
1) (killing a police officer in the discharge of his duties) ; Ohio
Rev. Code, §2901.27 (Ohio Gen. Code, §12427) (kidnapping or
maiming for the purpose of extortion, where the person kidnapped
has not been liberated unharmed); Ohio Rev. Code, §2901.28 (Ohio
Gen. Code, §13386) (killing a kidnapped person by designated
means).
21
the first degree is a matter vested fully and exclusively in
the discretion of the jury.” 31
The only restriction placed upon the jury’s absolute
discretion is that a recommendation of mercy must in some
way be based upon the evidence presented at trial. As the
Ohio courts put i t :
“ [T]he General Assembly has given to the jury an
absolute discretion to recommend mercy which dis
cretion should be exercised in view of all the facts and
circumstances described by the evidence. . . . This
matter is confided fully and exclusively to such dis
cretion of the jury.” 32
“ Evidence,” in this context, means the evidence presented
at the single-verdict trial upon the issue of guilt or inno
cence. No evidence may “be introduced directed specifically
toward a claim for mercy” since the question of life or
death itself is “ a matter entirely within [the jury’s] . . .
discretion,” and therefore “not an issue in the case.” 33
31 State v. Ellis, 98 Ohio St. 21, 120 N.B. 218 (1918) (Court’s
Syllabus, 120 N.B., at 218). See also Liska v. State, 115 Ohio St.
283, 152 N.E. 667, 668 (1926) ( “ The recommendation of mercy
rests wholly in the sound discretion of the jury. They may extend
or withhold as they see fit” ) ; Ashbrook v. State, 49 Ohio App.
298, 197 N.B. 214 (1935) (Court’s Syllabus, 197 N.E., at 214)
( “ The action of a jury in recommending or failing to recommend
mercy in a first-degree murder case is a matter entirely within its
discretion. . . . ” ).
32 State v. Tudor, 154 Ohio St. 249, 95 N.E.2d 385, 390 (1950);
see also Ex parte Knight, 73 Ohio App. 547, 57 N.E.2d 273 275
(1944).
33 Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214 (1935)
(Court’s Syllabus, 197 N.B., at 214).
2 2
The concept that a capital jury is required to base any
decision in favor of mercy34 upon the evidence derives from
the leading case of Howell v. State, 102 Ohio St. 411, 131
N.E. 706 (1921), which held that it was not error to charge
the jury, upon a first degree murder conviction, “ to consider
and determine whether or not, in view of all the circum
stances and facts leading up to and attending the alleged
homicide as disclosed by the evidence, you should or should
not make such recommendation.” 35 The Howell court
determined, as stated in its syllabus, that:
34 Under the Ohio statute, the death penalty is decreed unless the
jury returns a verdict affirmatively recommending mercy. State
v. Klumpp, 15 Ohio Ops.2d 461, 175 N.E.2d 767, 775 (1960),
app. dism’d, 171 Ohio St. 62, 167 N.E.2d 778 (1960). So the
effect of the requirement that the jury base its recommendation
upon evidence is to demand an affirmative evidentiary ground only
in the case of a decision to spare the defendant’s life. The decision
to kill him need have no such basis. See Massa v. State, 37 Ohio
App. 532, 175 N.E. 219, 221-222 (1930) (finding a claim of error
going to penalty nonprejudicial since the appellate court can find
nothing in the record that might have supported a recommendation
of m ercy); and see State v. Karayians, 108 Ohio St. 505, 141 N.E.
334, 336 (1923).
35 In sustaining this charge, the court adopted the State’s con
tention that “while the discretion of the jury may be unrestricted
and absolute, it must be exercised only in view of the evidence,
and must be confined to the facts and circumstances produced or
lacking in the trial of the case.” 131 N.E., at 707.
“ It may be true, and some courts so hold, that the function
of a court, in permitting the jury to make a recommendation
respecting mercy, is best fulfilled by simply giving the terms
of the statute to the jury and informing them that the mak
ing or withholding of the recommendation is a matter entirely
within their discretion. In such case, of course, it would be
presumed that the jury would fulfill their duty from a con
sideration of the case as presented to them as sworn jurors.
But in arriving at a determination with reference to this
recommendation they should be guided by the evidence, or
lack of evidence, as the case may be, as disclosed upon the
trial. It would be a travesty upon justice were the jury
23
“ Section 12400, General Code, giving the jury dis
cretion to recommend mercy in eases of conviction of
first degree murder, confers an absolute discretion
which should not be influenced by the court. However,
this discretion should be exercised in view of all the
facts and circumstances disclosed by the evidence.”
It should be noted that, while the Howell charge itself
spoke of “ all the circumstances and facts leading up to and
attending the . . . homicide,” the Howell syllabus spoke
more broadly, in terms of “ all the facts and circumstances
disclosed by the evidence.” To the extent that these two
notions differ,36 it is the latter one that has subsequently
permitted to ignore the evidence and rest their conviction
upon their conscientious scruples against imposing capital
punishment, or take into consideration facts which may have
come to their knowledge while they were not acting in their
capacity as jurors. That was not the purpose of the law.
We hol’d, therefore, that the trial court did not commit error
in charging the jury as it did.” (131 N.E., at 709; see also
id., at 707.)
The court’s concern lest a recommendation of mercy be based on
“ conscientious scruples” is said to flow from (but is somewhat
puzzling in light of) the Ohio legislature’s exclusion of scrupled
jurors from capital juries. See id., at 707. Ohio excluded such
jurors at the time of Howell (while permitting jurors scrupled in
favor of capital punishment to sit, see Stale v. Ellis, 98 Ohio St.
21, 120 N.E. 218 (1918)), and still does. See State v. Pruett,
18 Ohio St.2d 167, 248 N.E.2d 605 (1969); State v. Wigglesworth,
18 Ohio St.2d 171, 248 N.E.2d 607 (1969); State v. Eaton, 19
Ohio St.2d 145, 249 N.E.2d 897 (1969); State v. Carter, 21 Ohio
St.2d 212, 256 N.E.2d 714 (1970).
36 Of course, the circumstances “ leading up to and attending the
. . . homicide” might or might not be conceived to include back
ground facts concerning the defendant. This is not the only am
biguity in Howell. Although the Howell charge and syllabus
seem to say that a decision either way on the question of life or
death must be based upon the evidence, the effect of the charge
within the context of Ohio practice is to require only that a
favorable recommendation be based upon the evidence. See note
24
become anchored in Ohio law. The model jury charge that
has evolved to embody the Howell principle appears to be
the one approved in State v. Caldwell, 135 Ohio St. 424, 21
N.E.2d 343, 344 (1939):
“ [If you find the defendant guilty of first degree
murder,] then you will have one further duty to per
form, and that is, you will determine whether or not
you will extend or withhold mercy. . . . In that con
nection whether you recommend or withhold mercy is
a matter solely within your discretion, calling for the
exercise of your very best and most profound judg
ment, not motivated by considerations of sympathy or
as a means of escaping a hard or disagreeable duty,
but must be [sic] considered by you in the light of all
the circumstances of the case with respect to the
evidence submitted to you and the other circumstances
surrounding this defendant.” 34 * * 37
34 supra. That effect is consonant with the Howell opinion, which
appears most concerned lest the jurors go outside the record (for
example, to considerations of “ conscientious scruples” ) in decid
ing to recommend mercy. See note 34 supra. See also the post-
Howell ambiguity noted in note 37 infra.
37 Although the concept of Howell was to limit a recommenda
tion of mercy to a basis of circumstances “ disclosed by” the evi
dence, the Caldwell charge speaks of the evidentiary circumstances
of the case and “the other circumstances surrounding this defen
dant.” It is not plain whether these latter circumstances need to
be determined from the evidence. Presumably they do (see the
following paragraph), but the confusion is compounded by the
jury charges approved in Behfeld v. State, 102 Ohio St. 431,
131 N.E. 712, 713 (1921) ( “ circumstance or fact in the case, or
. . . all the evidence” ), and State v. Pierce, 44 Ohio Law Abs. 193,
62 N.E.2d 270, 273 (Ohio App. 1945) ( “consideration of the evi
dence, the character of the crime and the attending circum
stances” ), note 38 infra.
In the Caldwell case itself, the jury returned to ask for further
instructions concerning the question of mercy, and the following
colloquy occurred:
“ The Foreman: "What are grounds for granting mercy?
“ The Court: That rests solely and wholly in your sound
discretion. You should determine whether or not in your
25
The Howell-Caldwell charge is approved by the Ohio
appellate courts whenever it is given,38 but it does not
appear mandatory to give it, Jury charges have been
discretion mercy should be granted from a consideration_ of
the evidence, the character of the crime and the attending
circumstances. . . .
“ The Foreman: . . . What are extenuating circumstances?
Are they something which we can determine in our own judg
ment alone?
“ The Court: No, if there are any, you must determine them
from the evidence.
“ The Foreman: Well, then, may we consider sociological
matters and environment in determining this question of
mercy?
“ The Court: No— they have nothing whatever to do with
this case.”
These supplemental instructions were sustained on the appeal.
38 See State v. Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897, 907
n. 4 (1969); State v. Pierce, 44 Ohio Law Abs. 193, 62 N.E.2d
270, 273 (1945). In Pierce, the trial judge initially charged:
“Now, the question of recommendation of mercy . . . is a,
matter the law leaves entirely with you, and I give you this
in charge: you may recommend, if in your judgment you
think you are justified in doing so. It is for you to say whether
all the facts in the case warrant you in making or not making
such recommendation, but you are not limited or circum
scribed in any respect. Tim law prescribed [sic] no rule for
the exercise of your discretion. It is a matter entirely with
you.”
When the jury returned with a request that this passage be read
again, the judge instead gave the substance of the Caldwell
charge, and added: “You should determine whether or not in
your discretion mercy should be granted from a consideration of
the evidence, the character of the crime and the attending cir
cumstances.” „
See also Behfeld v. State, 102 Ohio St. 431, 131 N.E. <12, 713
(1921), where the following charge was approved:
“ This right or option [to recommend mercy] may be exer
cised by the jury under the same evidence which would jus
tify the return of a verdict the punishment of which is death
in the electric chair. It is entirely within your province and
26
sustained which do no more than tell the jurors that they
have an option of mercy.89 Whether the latter form of
charge would be in error as against a specific request to
charge in the language of Howell and Caldwell is unclear,* 40
hut probably it would not.41
your discretion to say whether there is any circumstance or
fact in the case, or whether from all the evidence you believe
that, notwithstanding his guilt of murder in the first degree,
mercy or clemeney should he extended. If you do recom
mend mercy, the court is bound to reduce the punishment to
life imprisonment. It is a matter wholly within the discre
tion of this jury.”
89 <SHate v. Karayians, 108 Ohio St. 505, 141 N.B. 334, 335
(1923) ( “ the jury may recommend mercy, and, in that event,
that . . . should be set forth in your verdict” ) ; Massa v. State, 37
Ohio App. 532, 175 N.B. 219, 221 (1930) (“you have a right to
recommend mercy provided you see fit to do so” ). In Karayians,
the Ohio Supreme Court characterized the instruction telling the
jury that it might make a recommendation of mercy as “unac
companied by any restriction or limitation whatever upon their
discretion to make such recommendation.” 141 N.B., at 336. And
see State v. Schiller, 70 Ohio St. 1, 70 N.B. 505 (1904).
40 The issue is unlikely to arise. We have pointed out at notes
34, 36 supra, that—because of the fashion in which Ohio law casts
the burden of persuasion by requiring an affirmative recommenda
tion of mercy in order to spare the defendant’s life—the Tlowell-
Caldwell charge restricts the bases upon which the jury may let
the defendant live but not those upon which it may kill him. De
fense counsel cannot, therefore, practicably request the charge.
In the present Crampton case, the jury was told only that the
punishment for first degree murder “ is death, unless you recom
mend mercy, in which event the punishment is imprisonment in
the penitentiary during life.” (Crampton Appendix, p. 70.) It
was handed a verdict form with a line “which you must fill in.
We—blank— recommend mercy and you will put in that line, we
do, or, we do not, according to your finding.” (Crampton Appen
dix, p. 71.) No other instructions relevant to the question of life
or death were given, except that when the jury during its delibera
tions sent in a note asking “Does the vote have to be unanimous
for recommendation?” the court sent back the written response:
“Yes.” (Crampton Trial Transcript, pp. 436-437.)
41 We infer this from the broad discretion to charge or not to
charge specific matters relative to the question of mercy that is
27
One point is clear, however. An Ohio jury’s death verdict
is absolutely final. It may not be reviewed or set aside by
any court.42
recognized in the line of Ohio decisions dealing with instructions
on the consequences of a recommendation of mercy. Under these
decisions, the trial judge may explain or decline to explain matters
of possible pardon, commutation and parole incident to a sentence
of life imprisonment, as he pleases. The preferred procedure ap
pears to be to say nothing about such matters, but the judge has
discretion to charge on them and will not be reversed if he does.
State v. Meyer, 163 Ohio St. 279, 126 N.E.2d 585 (1955); State v.
Henley, 15 Ohio St.2d 86, 238 N.E.2d 773 (1968). And see State
v. Schiller, 70 Ohio St. 1, 70 N.E. 505 (1904) ; Liska v. State, 115
Ohio St. 283, 152 N.E. 667 (1926); State v. Tudor, 154 Ohio St.
249, 95 N.E.2d 385 (1950); Massa v. State, 37 Ohio App, 532, 175
N.E. 219 (1930) ; Licavoli v. State, 20 Ohio Ops. 562, 34 N.E.2d
450 (1935).
The only other line of Ohio cases illuminating the nature of that
State’s procedures for deciding the question of penalty in a capital
case, concerns the proper scope of counsel’s arguments. The prose
cutor may argue for the death penalty, and defense counsel may
argue against it, so long as they do not go outside the record.
Howell v. State, 102 Ohio St. 411, 131 N.E. 706 (1921) ; Shelton v.
State, 102 Ohio St. 376, 131 N.E. 704 (1921). In State v. Ames,
50 Ohio Law Abs. 311, 80 N.E.2d 168, 171 (1947), rehearing de
nied, 81 N.E.2d 238 (1948), app. dism’d, 149 Ohio St. 192, 78
N.E.2d 48 (1948), the prosecutor was permitted to argue that the
defendant should not be sent to the penitentiary to educate young
criminals and turn them back on society. Cf. State v. Pierce, 44
Ohio Law Abs. 193, 62 N.E.2d 270 (1945). In State v. Muskus,
158 Ohio St. 276, 109 N.E.2d 15 (1952) (reversal upon other
grounds), it was held to be improper for him to say that it was a
shame to spend the taxpayers’ money to try these bums (an argu
ment obviously prejudicial on the guilt issue as well), and that
more money should not be spent housing them in the penitentiary.
In State v. Watson, 20 Ohio App.2d 115, 252 N.E.2d 305 (1969)
(reversal upon another ground), the court condemned arguments
that a death verdict should be returned to “support our police”
and “ support our way of life,” but said that these would not alone
constitute reversible error. And see Turner v. State, 21 Ohio Law
Abs. 276 (1936), holding it error for the prosecutor to inform the
jury that the court could set aside the jury’s death verdict— as,
under Ohio law, it cannot.
42 The trial court may not review it, Turner v. State, 21 Ohio
Law Abs. 276, 279-280 (1936) ; State v. Klumpp, 15 Ohio Ops,2d
28
“ [T]he courts have nothing to do with the sentence
in a case of this kind; . . . the Legislature . . . has not
only defined the crime . . . but it has also fixed the
penalty. When a person is convicted of first degree
murder . . ., the Legislature has decreed that such
person must die in the electric chair, unless the jury
recommends mercy. The Courts have nothing to say
as to the punishment; the penalty of death is man
datory and is left squarely with the jury . . . * 43
Similarly, the death sentencing decision of a three-judge
court, upon a plea of guilty or a jury waiver, is totally
unreviewable.44
461, 175 N.E.2d 767, 775-776 (I960), app. dism’d, 171 Ohio St. 62,
167 N.E.2cl 778 (1960); see State v. Ellis, 98 Ohio St. 21, 120 N.E.
218, 219 (1918) (dictum) ; nor may an appellate court, State v.
Ames, 50 Ohio Law Abs. 311, 80 N.E.2d 168, 170 (1947), rehearing
denied, 81 N.E.2d 238 (1948), app. dism’d, 149 Ohio St. 192, 78
N.E.2d 48 (1948); State v. Reed, 85 Ohio App. 36, 84 N.E.2d 620,
624 (1948). In 1963, a bill was introduced in the Ohio Legislature
that wTould have given both trial and appellate courts power to
reduce a jury-imposed death sentence, but it died in committee.
See Herman, An Acerbic Look at the Death Penalty in Ohio, 15
W estern Reserve L. Rev. 512, 514 (1964).
43 State v. Klumpp, 15 Ohio Ops.2d 461, 175 N.E.2d 767, 775
(1960), app. dism’d, 171 Ohio St. 62, 167 N.E.2d 778 (1960).
44 State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964) ;
State v. Stewart, 176 Ohio St. 156, 198 N.E.2d 439 (1964) ; Hoppe
v. State, 29 Ohio App. 467, 163 N.E. 715 (1928) ; State v. Lucear,
93 Ohio App. 281, 109 N.E.2d 39 (1952); and see State v. Frohner,
150 Ohio St. 53, 80 N.E.2d 868 (1948). Of course, where the evi
dence is legally insufficient to sustain conviction of the capital of
fense, a conviction may be set aside on appeal, and the sentence
necessarily falls with it. State v. Porello, 138 Ohio St. 239, 34
N.E.2d 198 (1941); State v. Cosby, 100 Ohio App. 459, 137 N.E.2d
282 (1955). Also, apparently, if the conviction is against the
weight of the evidence, a Court of Appeals may reverse and re
mand for a new trial, although it may not reduce the degree of
29
Under the procedures just described, Ohio juries and
judges sentence to death less than one-quarter of the per
sons whom they yearly convict of first-degree murder. In
the past decade, the figures have been lower: averaging
about 15% death verdicts.45
the offense or direct an acquittal. See State v. Robinson, 162 Ohio
St. 486, 124 N.E.2d 148 (1955) (noncapital ease). Also, if the
sentencing judge affirmatively states that he is not exercising the
sentencing discretion conferred by the law, a sentence will be re
versed and remanded with directions to exercise the discretion.
State v. Sahadi, 3 Ohio App.2d 209, 209 N.E.2d 758 (1964) (non
capital case; see note 23, para. 2, supra). But once the discretion
is exercised, it is unreviewable.
45 Between 1949 and 1958, it is estimated that there were 217
first-degree murder convictions in Ohio, as compared with 49 death
verdicts for first-degree murder. The death-sentencing rate was
therefore less than 25%. Ohio Legislative Service Commission,
Staff Research Report No. 46, Capital Punishment (January’
1961), 54. (It is unclear whether these figures are for jury trials
alone or for both jury and bench trials.)
B etw een 1959 an d 1968, the figures fo r a ll tria ls ( ju r y and
ben ch ) are as fo l lo w s :
Number o f First- Number o f Death
Degree Murder Sentences Upon
Year Convictions Convictions
less than 7 ; exact
1959 ________________ ..... 24 figure u n rep orted
1960 ________________ ____ 24 2
1 9 6 1 ________________ ____ 27 5
1 9 6 2 ________________ ____ 33 3
1963 ________________ ____ 23 2
1 9 6 4 ________________ ...._ 34 6
1965 ________________ ___ 42 8
1966 ________________ ____ 38 5
1 9 6 7 ________________ ____ 45 9
1968 ________________ ____ 58 10
T ota l _______ ______ 348 54
The sources of the ten conviction figures, respectively, are: Ohio
Department of Mental Hygiene and Corrections, Ohio Judicial
30
2. California* 46
In California, as in Ohio, juries have virtually no role
in non-capital sentencing,47 but are the principal sentencing
Criminal Statistics [hereafter cited as OJCS], 1959, p. 12; OJCS,
1960, p. 8; OJCS, 1961, p. 12; OJCS, 1962, p. 9; OJCS, 1963, p. 13;
OJCS, 1964, p. 8; OJCS, 1965, p. 11; OJCS, 1966, p. 9; OJCS,
1967, p. 9; OJCS, 1968, p. 11.
The sources of the ten death-sentence figures, respectively, are:
United States Department of Justice, Bureau oe Prisons, Na
tional Prisoner Statistics [hereafter cited as NPS] Bulletin
No. 23, Executions 1959 (February, 1960), p. 1; NPS Bulletin No.
26, Executions 1960 (March, 1961), table 5; NPS Bulletin No. 28,
Executions 1961 (April, 1962), table 5; NPS Bulletin No. 32, Exe
cutions 1962 (April, 1963), table 5; NPS Bulletin No. 34, Execu
tions 1930-1963 (May, 1964), p. 14; NPS Bulletin No. 37, Execu
tions 1930-1964 (April, 1964 [sic: 1965]), p. 14; NPS Bulletin
No. 39, Executions 1930-1965 (June, 1966), p. 14; NPS Bulletin
No. 41, Executions 1930-1966 (April 1967), p. 13; NPS Bulletin
No. 42, Executions 1930-1967 (June, 1968), p. 16; NPS Bulletin
No. 45, Capital Punishment 1930-1968 (August, 1969), p. 16.
These two sets of figures appear to be reliably comparable. (See
the discussion in Appendix B to our Maxwell brief, Appendix A
infra, pp. 24a-26a.) The OJCS figures cover only 87 of Ohio’s 88
counties, while the NPS figures cover all 88; but the missing OJCS
county is a small one (accounting for less than 1% of the State’s
population), and likely insignificant for present purposes. Since
the NPS figures are for prisoners received at prison under sentence
of death, and since prisoners are not always received in the same
year in which they are convicted, there may be a degree of non
comparability between the OJCS and NPS figures for any single
year; but this would balance out over a ten-year span.
46 California capital trial practice is discussed in Note, A Study
of the California Penalty Jury in First-Degree-Murder Cases, 21
Stan. L. Rev. 1297, 1311-1315 (1969); Comment, The Death
Penalty Cases, 56 Cal. L. Rev. 1268, 1366-1369, 1404-1415, 1420-
1422, 1424-1434 (1968) ; Comment, The California Penalty Trial,
52 Cal. L. Rev. 386 (1964); Symposium Note, The Two-Trial Sys
tem in Capital Cases, 39 N.Y.U.L. Rev. 50 (1964).
47 2 W itkin, California Crimes, §§904-905 (1963), at pp. 859-
860. The jury’s only function in non-capital sentencing relates to
a few crimes classified as “misdemeanor-felonies,” which the jury
may determine to be the former or the latter. The judge exercises
all other sentencing power. Did. However, if he imposes a state-
31
agency in capital cases. California has one mandatory
capital statute in active (albeit relatively infrequent) use,48
and maintains a few obsolete ones on the books ;49 otherwise,
its capital laws confer the choice of death or imprisonment
upon the jury.50 Juries make this sentencing choice whether
the defendant pleads guilty or not guilty,51 * unless, with
prison sentence, he does not fix the maximum term; that is later
fixed by the Adult Authority. Cal. Pen. Code §§1168, 1168a, 5077.
48 Cal. Pen. Code §4500 (assault with a deadly weapon or any
means likely to cause great bodily injury by a prisoner under sen
tence of life imprisonment, where the person assaulted is not an
inmate and dies). See note 19, para. 1, supra.
48 These are treason (Cal. Pen. Code §37), train wrecking where
any person suffers bodily harm (Cal. Pen. Code §219), and—that
most astounding of capital offenses, which simultaneously admits
the fallibility of human judicial process and attaches irremediable
consequences to it—the capital crime of procuring the execution of
an innocent man by perjury in a capital case (Cal. Pen. Code §128).
50 Cal. Pen. Code §190 (first degree murder; death or imprison
ment “at the discretion of the court or jury trying the same” ) ;
Cal. Pen. Code §209 (kidnapping for ransom or robbery where
the kidnapped person suffers bodily harm; death or imprisonment
“ at the discretion of the jury trying the same” ) ; Cal. Pen. Code
§219 (train wrecking where no person suffers bodily harm; death
or imprisonment “ at the option of the jury trying the case” ) ;
Cal. Pen. Code §4500 (assault with a deadly weapon or any means
likely to cause great bodily injury by a prisoner under sentence
of life imprisonment, where the person assaulted is an inmate
or does not die; death or imprisonment “ at the discretion of the
court or jury trying the same” ) ; Cal. Mil. & Vet. Code §§1670,
1672(a) (sabotage causing death or great bodily injury; death or
imprisonment “at the discretion of the jury trying the case, or at
the discretion of the court where a jury does not try the case” ).
Notes 51-53 infra explain why these statutes envisage principally
jury sentencing; bench sentencing, as will appear, is authorized
only upon a waiver of jury trial.
61 Cal. Pen. Code §190.1, set out in notes 56-7 infra, governs
the sentencing procedure under all five non-mandatory capital
statutes collected in note 50 supra. Its second paragraph provides
explicitly that if a defendant is convicted upon a plea of guilty,
a jury shall determine sentence unless a jury is waived. (Com
pare the Ohio practice described at note 27 supra.) For instances
32
consent of the prosecution, a jury is waived.52 Upon a
waiver, a single judge exercises the jury’s sentencing
power.53
of jury sentencing upon a guilty plea, see, e.g., People v. Baldo-
nado, 53 Cal.2d 824, 350 P.2d 115, 3 Cal. Eptr. 363 (1960) ;
People v. Seiterle, 56 Cal.2d 320, 363 P.2d 913, 14 Cal. Eptr. 681
(1961).
52 Cal. Const., Art. I, §7 provides both that criminal defendants
have a right to trial by jury, and that they may waive that right
only with the prosecutor’s consent. The California courts hold
that consent of the prosecutor is required for a waiver of jury
trial both upon the trial of guilt, People v. Washington,------ Cal.
2 d ------ , 458 P.2d 479, 493-494, 80 Cal. Eptr. 567 (1969) ; People
v. Whitmore, 251 Cal. App.2d 359, 59 Cal. Eptr. 411, 415 (1967),
and upon the trial of penalty after guilt has been determined,
People v. King, 1 Cal.3d 791, 463 P.2d 753, 83 Cal. Eptr. 401
(1970).
For instances of judicial sentencing upon a jury waiver after a
plea of guilty, see, e.g., People v. Deptula, 58 Cal.2d 225, 373
P.2d 430, 23 Cal. Eptr. 366 (1962); People v. Massie, 66 Cal.2d
899, 428 P.2d 869, 59 Cal. Eptr. 733 (1967). For instances of
judicial sentencing following a bench trial upon a jury waiver
at trial on a plea of not guilty, see, e.g., People v. Lookado, 66
Cal.2d 307, 425 P.2d 208, 57 Cal. Rptr. 608 (1967); People v.
Aikens, 70 Cal.2d 369, 450 P.2d 258, 74 Cal. Rptr. 882 (1969);
cf. People v. Beeves, 64 Cal.2d 766, 415 P.2d 35, 51 Cal. Rptr. 691
(1966) (plea of not guilty by reason of insanity). Where a capital
defendant thus waives a jury for trial of the issue of guilt, sen
tencing must be done by a judge; a jury may not be impaneled
only for sentencing. Cal. Pen. Code §190.1, notes 56-7 infra, as
construed in People v. Golston, 58 Cal.2d 535, 375 P.2d 51, 25
Cal. Rptr. 83 (1962). The same statute seems to say, conversely,
that if jury trial is had upon the issue of guilt, sentencing must
be done by the jury; however, there is at least one reported in
stance of a jury-trial waiver as to penalty following a jury’s
determination of guilt, People v. Sosa, 251 Cal. App.2d 9, 58 Cal.
Rptr. 912 (1967), apparently with the prosecutor’s consent, see
note 51 supra. Cf. People v. Jackson, 67 Cal.2d 96, 429 P.2d 600,
60 Cal. Rptr. 248 (1967) (jury waiver at penalty trial following
appellate reversal and remand as to penalty alone).
53 See, e.g., People v. Jones, 52 Cal.2d 636, 343 P.2d 577, 585
(1959) ; People v. Langdon, 52 Cal.2d 425, 341 P.2d 303, 308
(1959).
33
That power, which was originally conferred in mnrder
cases in 1874,54 is now expressed by essentially similar
terminology in all of California’s five non-mandatory
capital statutes.55 The first-degree murder statute, Cal.
Pen. Code §190, involved in the present McGautha case, is
typical:
“ Every person guilty of 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 of punishment shall be
determined as provided in Section 190.1 . . . .”
Section 190.1, enacted in 1957,56 establishes a bifurcated or
“ split-trial” procedure for the trial of capital cases, pro
viding, in pertinent part:
“ The guilt or innocence of every person charged with
an offense for which the penalty is in the alternative
death or imprisonment for life shall first be determined,
without a finding as to penalty. If such person has
54 Cal. Acts Amendatory of the Codes 1873-1874, ch. 508, §1, p.
457.
55 See note 50 swpra.
56 Cal. Stats. 1957, ch. 1968, §2, p. 3509. A 1959 amendment,
Cal. Stats. 1959, ch. 738, §1, p. 2727, dealt primarily with the
manner of trial in capital cases where the defense of insanity
was raised. California has long provided for separate trials of
the issues of guilt and sanity in all criminal cases, Cal. Pen. Code
§1026; and the 1959 amendment to §190.1 made clear that, on
pleas of not guilty and not guilty by reason of insanity to a capital
crime, the issues of guilt, sanity and penalty were to be separately
tried, in that order. The only other change made by the amend
ment was deletion of a paragraph in the 1957 statute which had
provided that evidence admissible at the guilt trial was also ad
missible at the penalty trial. This deletion has been given no effect
by the California courts. Compare People v. Glatman, 52 Cal.2d
283, 340 P.2d 8 (1959), and People v. Jones, 52 Cal.2d 636, 343
P.2d 577 (1959), with People v. Tahl, 65 Cal.2d 719, 423 P.2d
246, 251, 56 Cal. Rptr. 318 (1967).
34
been found guilty of an offense punishable by life
imprisonment or death, and has been found sane on
any plea of not guilty by reason of insanity, there shall
thereupon be further proceedings on the issue of
penalty, and the trier of fact shall fix the penalty.
Evidence may be presented at the further proceedings
on the issue of penalty, of the circumstances surround
ing the crime, of the defendant’s background and
history, and of any facts in aggravation or mitigation
of the penalty. The determination of the penalty of
life imprisonment or death shall be in the discretion of
the court or jury trying the issue of fact on the evidence
presented, and the penalty fixed shall be expressly
stated in the decision or verdict. The death penalty
shall not be imposed, however, upon any person who
was under the age of 18 years at the time of commis
sion of the crime. The burden of proof as to the age
of said person shall be upon the defendant.” 57 58
The statutory penalty trial is ordinarily conducted before
the same jury that has determined the defendant’s guilt.53
57 The balance of the section consists of two paragraphs, as fol
lows :
“ If the defendant was convicted by the court sitting with
out a jury, the trier of fact shall be the court. If the defen
dant was convicted by a plea of guilty, the trier of fact shah
be a jury unless a jury is waived. If the defendant was con
victed by a jury, the trier of fact shall be the same jury
unless, for good cause shown, the court discharges that jury
in which case a new jury shall be drawn to determine the
issue of penalty.
“ In any case in which the defendant has been found guilty
by a jury, and the same or another jury, trying the issue of
penalty, is unable to reach a unanimous verdict on the issue
of penalty, the court shall dismiss the jury and either impose
the punishment for life in lieu of ordering a new trial on the
issue of penalty, or order a new jury impaneled to try the
issue of penalty, but the issue of guilt shall not be retried by
such jury.”
58 Section 190.1, para. 2, supra note 57, permits the trial judge
to convene a new jury for the penalty phase “for good cause
35
Evidence may be presented relating to the circumstances
of the offense,59 the defendant’s attitudes toward it,60 his
mental characteristics,61 life history,62 crimes and other
anti-social behavior,63 and other matters.64 Although the
shown.” California decisions interpret this provision as express
ing a preference for retaining the same jury that determined
guilt, if practicable. E.g., People v. Gilbert, 63 Cal.2d 690, 408
P.2d 365, 378, 47 Cal. Rptr. 909 (1966); People v. Gonzales, 66
Cal.2d 482, 426 P.2d 929, 939-940, 58 Cal. Rptr. 361 (1967).
59 E.g., People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 643-644,
51 Cal. Rptr. 417 (1966) ; People v. Floyd, 1 Cal.3d 694, 464
P.2d 64, 79, 83 Cal. Rptr. 608 (1970).
60 E.g., People v. Corwin, 52 Cal.2d 404, 340 P.2d 626, 627
(1959); People v. Jacobson, 63 Cal.2d 319, 405 P.2d 555, 563-564,
46 Cal. Rptr. 515 (1965) ; People v. Talbot, 64 Cal.2d 691, 414
P.2d 633, 647, 51 Cal. Rptr. 417 (1966).
61 E.g., People v. Love, 53 Cal.2d 843, 350 P.2d 705, 713-714,
3 Cal. Rptr. 665 (1960) ; People v. Howk, 56 Cal.2d 687, 365 P.2d
426, 429-431, 16 Cal. Rptr. 370 (1961); People v. Bickley, 57 Cal.
2d 788, 372 P.2d 100, 102-103, 22 Cal. Rptr. 340 (1962); People
v. Jackson, 59 Cal.2d 375, 379 P.2d 937, 940, 29 Cal. Rptr. 505
(1963).
62 E.g., People v. Feldkamp, 51 Cal.2d 237, 331 P.2d 632, 633-
634 (1958); People v. Corwin, 52 Cal.2d 404, 340 P.2d 626, 627
(1959); People v. Love, 53 Cal.2d 843, 350 P.2d 705, 713-714, 3
Cal. Rptr. 665 (1960); People v. Pike, 58 Cal.2d 70, 372 P.2d
656, 670, 22 Cal. Rptr. 664 (1962).
63 Evidence of other crimes is broadly admissible, e.g., People v.
Ketchel, 59 Cal.2d 503, 381 P,2d 394, 415-416, 30 Cal. Rptr. 538
(1963); People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 385-386, 37
Cal. Rptr. 605 (1964); People v. Hillery, 65 Cal.2d 795, 423 P.2d
208, 214, 56 Cal. Rptr. 280 (1967), without regard to the nature
of the crimes, e.g., People v. Love, 53 Cal.2d 843, 350 P.2d 705,
711, 3 Cal. Rptr. 665 (1960) (possession of firearms, constituting a
parole violation); People v. Pike, 58 Cal.2d 70, 372 P.2d 656, 670,
22 Cal. Rptr. 664 (1962) (pimping) ; People v. Durham, 70 Cal.2d
171, 449 P.2d 198, 210, 212-214, 74 Cal. Rptr. 262 (1969) (sodomy).
Because the purpose of this evidence is to show the defendant’s
character, the jury need not be concerned with the technical ele
ments of the crimes. People v. Tahl, 65 Cal.2d 719, 423 P.2d 246,
257-258, 56 Cal. Rptr. 318 (1967). Juvenile offenses, People v.
36
California Supreme Court lias declared a few areas of
Beeves, 64 Cal.2d 766, 415 P.2d 35, 40-41, 51 Cal. Rptr. 691 (1966),
and misbehavior of various sorts, e.g., People v. Lindsey, 56 Cal.2 d
324, 363 P.2d 910, 911, 14 Cal. Eptr. 678 (1961); People v. Lopez,
60 Cal.2d 223, 384 P.2d 16, 34, 32 Cal. Eptr. 424 (1963) ; People
v. Mathis, 63 Cal.2d 416, 406 P.2d 65, 71-73, 46 Cal. Rptr. 785
(1965); People v. Bisenhoover, 70 Cal.2d 39, 447 P.2d 925, 935, 73
Cal. Eptr. 533 (1968), may be shown. It does not matter that the
defendant was never prosecuted for the offenses, People v. Mitchell,
63 Cal.2d 805, 409 P.2d 211, 218-219, 48 Cal. Eptr. 371 (1966);
People v. Aikens, 70 Cal.2d 369, 450 P.2d 258, 260, 74 Cal. Rptr.
882 (1969) ; or even that he has been tried and acquitted of them,
People v. Griffin, 60 Cal.2d 182, 383 P.2d 432, 436-437, 32 Cal.
Rptr. 24 (1963), rev’d on other grounds, 380 U.S. 609 (1965);
People v. Vaughn,------ Cal.3d -------- , 455 P.2d 122, 130, 78 Cal.
Rptr. 186 (1969). If he was previously convicted, the offense may
nonetheless be established by direct testimony dehors the earlier
record. People v. Purvis, 52 Cal.2d 871, 346 P.2d 22, 27-28 (1959) ;
People v. Durham, 70 Cal.2d 171, 449 P.2d 198, 212-214, 74 Cal.
Rptr. 262 (1969).
The jury must be instructed that, before it may consider other
crimes in aggravation, they are required to be proved beyond a
reasonable doubt. E.g., People v. Terry, 61 Cal.2d 137, 390 P.2d
381, 389 n. 8 , 37 Cal. Rptr. 605 (1964); People v. Polk, 63 Cal.2d
443, 406 P.2d 641, 645-646, 47 Cal. Rptr. 1 (1965) ; People v. Tahl,
65 Cal.2d 719, 423 P.2d 246, 257, 56 Cal. Rptr. 318 (1967) (dic
tum). See California Jury Instructions, Criminal (CALJIC)
8.81 (Third rev. ed. 1970), p. 259. Corollaries of this rule are that
confessional evidence of other offenses may not be received until
the corpus delicti has been established aliunde, e.g., People v.
Hamilton, 60 Cal.2d 105, 383 P.2d 412, 426-427, 32 Cal. Rptr. 4
(1963) ; People v. Hines, 61 Cal.2d 164, 390 P.2d 398, 405, 37 Cal.
Rptr. 622 (1964); People v. Clark, 62 Cal.2d 870, 402 P.2d 856,
861-862, 44 Cal. Eptr. 784 (1965) ; and that the offenses may not
be proved by the uncorroborated testimony of accomplices, People
v. Varnum, 66 Cal.2d 808, 427 P.2d 772, 777, 59 Cal. Reptr. 108
(1967); People v. McClellan,------ Cal.3d--------, 457 P.2d 871, 877-
880, 80 Cal. Rptr. 31 (1969). 64
64 E.g., People v. Love, 53 Cal.2d 843, 350 P.2d 705, 711, 3 Cal.
Rptr. 665 (1960) (dictum) (defendant’s statement that he wanted
to die, as indicating consciousness of guilt) ; People v. Tahl, 65
Cal.2d 719, 423 P.2d 246, 255-256, 56 Cal. Eptr. 318 (1967) (de
fendant’s statement that he planned to commit another killing, as
showing no remorse) ; People v. Modesto, 59 Cal.2d 722, 382 P.2d
33, 40-41, 31 Cal. Rptr. 225 (1963) (good character of victims).
37
inquiry improper,65 the range of evidence66 is exceedingly
65 These rulings are based upon the conception that certain issues
are impracticable to litigate, or unduly inflammatory, rather than
that they are irrelevant. The rulings therefore bespeak no limita
tion of the considerations that may move the jury in its undirected
and unfettered sentencing choice, see notes 83-88 infra.
First, the California Supreme Court has thought it impracticable
to permit litigation in penalty trials of issues going to the basic
question whether capital punishment should ever be used as a
criminal penalty. It has regarded that question as foreclosed by
the legislative decision to use it. E.g., People v. Moya, 53 Cal.2d
819, 350 P.2d 112, 114, 3 Cal. Rptr. 360 (1960); People v. Love,
56 Cal.2d 720, 366 P.2d 33, 35, 809, 16 Cal. Rptr. 777, 17 Cal.
Rptr. 481 (1961) ; People v. Kidd, 56 Cal.2d 759, 366 P.2d 49, 16
Cal. Rptr. 793 (1961).
Second, on basically similar grounds, the Court has closed off
trial of the question whether capital punishment has any deterrent
efficacy. All evidence, argument and jury instruction concerning
deterrence are forbidden. E.g., People v. Love, 56 Cal.2d 720, 366
P.2d 33, 35, 37-40, 809, 16 Cal. Rptr. 777, 17 Cal. Rptr. 481 (1961) ;
People v. Kidd, 56 Cal.2d 759, 366 P.2d 49, 55-56, 16 Cal. Rptr.
793 (1961); People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 65, 16 Cal.
Rptr. 801 (1961) ; People v. Terry, 57 Cal.2d 538, 370 P.2d 985,
1003-1004, 21 Cal. Rptr. 185 (1962) ; People v. Bickley. 57 Cal.2d
788, 372 P.2d 100, 103-107, 22 Cal. Rptr. 340 (1962) ; People v.
Ketchel, 59 Cal.2d 503, 381 P.2d 394, 412-414, 30 Cal. Rptr. 538
(1963) ; and see People v. Purvis, 60 Cal.2d 323, 384 P.2d 424, 435-
436, 33 Cal. Rptr. 104 (1963). However, the prosecution can usu
ally make some reference to deterrence and escape reversal under
the harmless error doctrine, provided that the reference is not too
emphatic. E.g., People v. Garner, 57 Cal.2d 135, 367 P.2d 680, 692-
693, 18 Cal. Rptr. 40 (1961) ; People v. Imiler, 57 Cal.2d 711, 371
P.2d 304, 308, 21 Cal. Rptr. 568 (1962); People v. Pike, 58 Cal.2d
70, 372 P.2d 656, 670-672, 22 Cal. Rptr. 664 (1962); and see
People v. Welch, 58 Cal.2d 271, 373 P.2d 427-429, 23 Cal. Rptr.
363 (1962) (bench trial).
Third, since 1964, no evidence or argument is permitted con
cerning the likelihood of parole from a sentence of life imprison
ment. That matter— considered impracticably speculative— is now
governed by a standard jury instruction. People v. Morse, 60
Cal.2d 631, 388 P.2d 33, 36-44, 36 Cal. Rptr. 201 (1964) ; see, e.g.,
People v. Varnum, 61 Cal.2d 425, 392 P.2d 961, 962-963, 38 Cal.
Rptr. 881 (1964) ; People v. Hillery, 62 Cal.2d 692, 401 P.2d 382,
395, 44 Cal. Rptr. 30 (1965); People v. Anderson, 63 Cal.2d 351,
38
broad67 and—because of the limitless discretion conferred
upon the jury68— extraordinarily nebulous.69
406 P.2d 43, 54; 46 Cal. Rptr. 763 (1965); and see California
Jury Instructions, Criminal (CALJIC) 8.82 (Third rev. ed.
1970), pp. 260-261.
Fourth, it is unclear to what extent evidence of the defendant’s
likely recidivism— considered without regard to the likelihood of
his release on parole from a sentence of life imprisonment— is ad
missible. The prosecution may apparently present psychiatric evi
dence that the defendant is not capable of being rehabilitated.
People v. Bickley, 57 Cal.2d 788, 372 P.2d 100, 102-103, 22 Cal.
Rptr. 340 (1962). It may not present recidivism records of other
non-homicidal criminals, People v. Purvis, 52 Cal.2d 871, 346 P.
2d 22, 30-31 (1959), perhaps only because these are non-proba-
tive of the likely recidivism of a homicide defendant. See note
66 infra. Perhaps, since the likelihood of recidivism in fact de
pends upon the likelihood of release on parole, this whole area
is now off limits under the principles of the preceding paragraph.
Fifth, proof of unintended physical suffering by the victim may
not be made, People v. Love, 53 Cal.2d 843, 350 P.2d 705, 711-
713, 3 Cal. Rptr. 665 (1960), apparently because it would be un
duly inflammatory. The Love opinion also suggests an alternative
ground for the rule: that retribution alone is not a proper concern
of the sentencing jury. But some kinds of evidence apparently
relevant only to retributive concerns are admissible (see the
Modesto case in note 64 supra) ; and it appears that prosecutorial
argument of retributive concerns, among others, will not be con
demned. See People v. Floyd, 1 Cal.3d 694, 464 P.2d 64, 81-82,
83 Cal. Rptr. 608 (1970).
66 Matters presented at the penalty trial must be proved in a
fashion that conforms to the ordinary rules of evidentiary com
petency: rules of hearsay, of connecting-up, etc. E.g., People v.
Terry ', 57 Cal.2d 538, 370 P.2d 985, 1001-1002, 21 Cal. Rptr. 185
(1962); People v. Hamilton, 60 Cal.2d 105, 383 P.2d 412, 426-429,
32 Cal. Rptr. 4 (1963) ; People v. Hill, 66 Cal.2d 536, 426 P.2d
908, 929, 58 Cal. Rptr. 340 (1967); People v. Nye, ------ Cal.3d
------ ----- 45 5 p.2d 395, 404, 78 Cal. Rptr. 467 (1969).
67 E.g., People v. Jones, 52 Cal.2d 636, 343 P.2d 577, 584 (1959);
People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 385-386, 37 Cal.
Rptr. 605 (1964).
68 See notes 83-88 infra.
69 See People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 384, 37 Cal.
Rptr. 605 (1964) :
(footnote continued on next page)
39
At the conclusion of arguments, by counsel,70 the jury is
instructed, generally: (1) that they are to consider all of
“ The ease raises another aspect of the almost insoluble dif
ficulty of defining the purpose, function and content of the
penalty trial in capital cases. We have previously pointed
out that the Legislature fixed no standards for the guidance
of the jury in determining whether a defendant should suf
fer the penalty of life imprisonment or death, and to that
extent left the function of the jury in a somewhat nebulous
state. (People v. Morse, 60 A.C. 613, 36 Cal. Rptr. 201, 388
P.2d 33.) We now face the further fact that the Legislature
did not clearly define the scope of the penalty trial; we must
determine what kind of evidence is admissible at such a trial
and fix the limits, if any, of this legislatively unchartered
enquiry.”
See also People v. Hines, 61 Cal.2d 164, 390 P.2d 398, 402, 37
Cal. Rptr. 622 (1964) :
“ The isolation of the determination of the death penalty
in the penalty trial, which proceeds without standards for the
jury, plus the expansion of the subject-matter of the trial,
which has reached very wide margins, gives to the jury an
undefined task performed upon a showing of a mass of ma
terial. As a result the jury may conceivably rest the death
penalty upon any piece of introduced data or any one factor
in this welter of matter. The precise point which prompts the
penalty in the mind of any one juror is not known to us
and may not even be known to him. Yet this dark ignorance
must be compounded twelve times and deepened even further
by the recognition that any particular factor may influence
any two jurors in precisely the opposite manner.”
70 Since People v. Bandhauer, 66 Cal.2d 524, 426 P .2d 900, 904-
905, 58 Cal. Rptr. 332 (1967), the practice has been that the
prosecutor opens the penalty arguments and the defendant closes
them. The earlier practice'of permitting the prosecutor to open
and close was abandoned (prospectively) in Bandhauer as less
consistent with “ the Legislature’s strict neutrality” concerning
the jury’s choice of life or death. Id., 426 P.2d, at 905.
California decisions concerning the scope of argument by coun
sel do not illuminate or delimit the factors which may determine
that life-or-death choice. Briefly:
First, argument, like evidence, may not attack the basic ques
tion of propriety of the legislative decision to allow the death
penalty. See note 65, para. First, supra. Defense counsel may
not, for example, argue that it is immoral in any case to con
40
demn a man to die. People v. Shipp, 59 Cal.2d 845, 382 P.2d 577,
582, 31 Cal. Rptr. 457 (1963).
Second, as indicated in note 65, paras. Second and Third, supra,
argument may not be addressed to considerations of deterrence
or the likelihood of parole in the event of a life sentence. Nor may
speculation be invited concerning the possibility that the defen
dant may escape from prison if sentenced to life. People v. White,
69 Cal.2'd 751, 446 P.2d 993, 998, 72 Cal. Rptr. 873 (1968). On
the other hand, somewhat inconsistently, the prosecutor is per
mitted to argue that the defendant is not rehabilitatable. People
v. Spencer, 60 Cal.2d 64, 383 P.2d 134, 151, 31 Cal. Rptr. 782
(1963) ; People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 646-647,
51 Cal. Rptr. 417 (1966).
Third, no mention may be made of the trial court’s power to
set aside a death verdict (see note 89 infra), of the Governor’s
power of pardon or commutation, or of the possibility of appeal.
People v. Linden, 52 Cal.2d 1, 338 P.2d 397, 410 (1959); People
v. Morse, 60 Cal.2d 631, 388 P.2d 33, 44-47, 36 Cal. Rptr. 201
(1964) ; ef. People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 385, 37
Cal. Rptr. 605 (1964) (forbidding instructions of the same sort).
Fourth, argument that is based upon factual matters must be
kept to the facts of record. People v. Love, 56 Cal.2d 720, 366 P.
2d 33, 37-40, 809, 16 Cal. Rptr. 777, 17 Cal. Rptr. 481 (1961).
Argument from facts not in evidence is improper. People v.
Terry, 57 Cal.2d 538, 370 P.2d 985, 1002-1003, 21 Cal. Rptr. 185
(1962) (pre-Morse case dealing with parole possibilities) ; People
v. Bandhauer, 66 Cal.2d 524, 426 P.2d 900, 903-904, 58 Cal. Rptr.
332 (1967).
Fifth, other purely inflammatory argument is forbidden, see
note 65, para. Fifth, supra. But the prosecutor may indulge in
damning characterizations supported by the evidence, e.g., People
v. Gonzales, 56 Cal.2d 317, 363 P.2d 871, 873, 14 Cal. Rptr. 639
(1961) ( “sex perversion cases” ) ; People v. Ketchel, 59 Cal.2d 503,
381 P.2d 394, 414-415, 30 Cal. Rptr. 538 (1963) ( “ cop killer” ) ;
People v. Lopez, 60 Cal.2d 223, 384 P.2d 16, 32-33, 32 Cal. Rptr.
424 (1963) ( “cold-blooded killers” who would dance on their vic
tim’s grave); People v. Mitchell, 63 Cal.2d 805, 409 P.2d 211,
213-214, 48 Cal. Rptr. 371 (1966) ( “ professional robber” ) ; Peo
ple v. Thomas, 65 Cal.2d 698, 423 P.2d 233, 239, 56 Cal. Rptr. 305
(1967) ( “a regular smart aleck” ) ; and he may, for example, in
vite the jury to use the death penalty as a form of justifiable
homicide. People v. Tahl, 65 Cal.2d 719, 423 P.2d 246, 262, 56
Cal. Rptr. 318 (1967).
Concerning the general scope of allowable argument and some
examples, see People v. Griffin, 60 Cal.2d 182, 383 P.2d 432, 437-
438, 32 Cal. Rptr. 24 (1963), rev’d on other grounds, 380 U.S.
41
the evidence ;71 (2) hut that they need not find mitigating
circumstances in order to spare the defendant, nor aggra
vating circumstances in order to condemn him,72 since the
Legislature has expressed no preference between the
penalties of life and death,73 leaving that matter in the
absolute discretion of the jury74 without standards or
criteria of any kind.75 The form instruction now in common
609 (1965); People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 646-
647, 51 Cal. Rptr. 417 (1966) ; People v. Hill, 66 Cal.2d 536, 426
P.2d 908, 924-927, 58 Cal. Rptr. 340 (1967).
People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 432, 16 Cal.
Rptr. 370 (1961); People v. HiUery, 65 Cal.2d 795, 423 P.2d 208,
215, 56 Cal. Rptr. 280 (1967).
72 People v. Green, 47 Cal.2d 209, 302 P.2d 307, 313-314, 317
(1956) ; People v. Friend, 47 Cal.2d 749, 306 P.2d 463, 466-472
(1957) ; People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 670-671,
30 Cal. Rptr. 841 (1963); People v. Washington,------ Cal.2d--------,
458 P.2d 479, 500, 80 Cal. Rptr. 567 (1969); and see In re An
derson, 69 Cal.2d 613, 447 P.2d 117, 124, 73 Cal. Rptr. 21 (1968).
73 See People v. Green, note 72 supra, 302 P.2d, at 314, 322;
People v. Friend, note 72 supra, 306 P.2d, at 469; People v. Wash
ington, note 72 supra, 458 P.2d, at 500; People v. Purvis, 56 Cal.
2d 93, 362 P.2d 713, 715, 13 Cal. Rptr. 801 (1961); People v.
Hamilton, 60 Cal.2d 105, 383 P.2d 412, 429, 32 Cal. Rptr. 4
(1963).
74 E.g., People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 65, 16 Cal.
Rptr. 801 (1961) (“ The court correctly instructed the jury that
the fixing of the penalty at death or life imprisonment was in their
‘absolute discretion’. . . ; People v. Howk, 56 Cal.2d 687, 365
P.2d 426, 432, 16 Cal. Rptr. 370 (1961) (approving instruction
that in ‘“ determining which punishment shall be inflicted, you
are entirely free to act according to your own judgment and
absolute discretion’. . . . ” ). See notes 83-88 infra.
75 People v. Linden, 52 Cal.2d 1, 338 P.2d 397, 409 n. 5 (1959)
(approving instructions that “ ‘Beyond prescribing the two alter
native penalties, the law itself provides no standard for the guid
ance of the jury in the selection of the penalty but rather com
mits the whole matter of determining which of the two penalties
shall be fixed to the judgment, conscience and discretion of the
42
use for this purpose, colloquially known as CALJIC 8.80,
runs as follows :76
' “ The defendant [s] in this case [has] [have] been
found guilty of the offense of murder in the first
degree. It is now your duty to determine which of the
penalties provided by law should be imposed [on each
defendant] for that offense. In arriving at this deter
mination you should consider all of the evidence
received here in court presented by the People and
defendant[s] throughout the trial before this jury.
You may also consider all of the evidence of the
circumstances on the one hand or evidence in aggrava-
dant’s [each defendant’s] background and history, and
of the facts in aggravation or mitigation of the penalty
which has been received here in court. However, it is
not essential to your decision that you find mitigating
circumstances on the one hand or evidence in aggreva-
tion of the offense on the other.
“It is the law of this state that every person guilty
of murder in the first degree shall suffer death or
confinement in the state prison for life, at the discretion
of the jury. I f you should fix the penalty as confine
ment for life, you will so indicate in your verdict. If
you should fix the penalty as death, you will so indicate
in your verdict. Notwithstanding facts, if any, proved
in mitigation or aggravation, in determining which
jury’. People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 432,
16 Cal. Rpt.r. 370 (1961) (approving instruction that “ ‘the law
does not prescribe, nor authorize the Court to innovate, any rule
circumscribing the exercise of your discretion, but, rather, com
mits the whole matter of its exercise to the judgment and con
sciences of the jury.’ ” ). And see People v. Friend, 47 Cal.2d 749,
306 P.2d 463, 473 (1957); People v. Hines, 61 Cal.2d 164, 390
P.2d 398, 401, 37 Cal. Rptr. 622 (1964). See also notes 85-88
infra.
76 California Jury Instructions, Criminal [CALJIC] 8.80
(Third rev. ed. 1970), pp. 257-258.
43
punishment shall be inflicted, yon are entirely free to
act according to your own judgment, conscience and
absolute discretion. That verdict must express the
individual opinion of each juror.
“ Beyond prescribing the two alternative penalties,
the law itself provides no standard for the guidance of
the jury in the selection of the penalty, but, rather,
commits the whole matter of determining which of the
two penalties shall be fixed to the judgment, conscience
and absolute discretion of the jury. In the determina
tion of that matter, if the jury does agree, it must be
unanimous as to which of the two penalties is imposed.”
CALJIC 8.80 has been expressly approved by the Cali
fornia Supreme Court,77 as have other78 and more elabo
rate79 fashions of expressing the jury’s entirely unguided
77 People v. Nye, ------ Cal.3d------ , 455 P.2d 395, 402 n. 5, 78
Cal. Rptr. 467 (1969). See also People v. Durham, 70 Cal.2d 171,
449 P.2d 198, 215-216, 74 Cal. Eptr. 262 (1969), approving
CALJIC 8.80 (then designated CALJIC 306.1 (New)), when given
in conjunction with present CALJIC 1.30 (then designated
CALJIC 11 (New)), which, as a part of the court’s basic, general
criminal charge, informs the jury that its power to determine the
facts and weigh the evidence “ is not an arbitrary power, but must
be exercised with sincere judgment, sound discretion, and in ac
cordance with the rules of law stated to you.” Of course, at the
penalty phase of the trial, no “ rules of law” are stated, and
CALJIC 8.80 denies that they exist.
™ People v. Linden, 52 Cal.2d 1, 338 P.2d 397, 409 n. 5 (1959);
People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 65, 16 Cal. Eptr. 801
(1961) : People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 432, 16 Cal.
Eptr. 370 (1961) ; People v. Hillery, 65 Cal.2d 795, 423 P.2d 208,
215, 56 Cal. Rptr. 280 (1967); People v. Washington,------ Cal.2d
------ 458 P.2d 479, 500, 80 Cal. Rptr. 567 (1969). (It is unclear,
in each of these cases, whether the entire substance of the trial
court’s charge is set forth in appellate opinion.)
79 People v. Friend, 47 Cal.2d 749, 306 P.2d 463, 474-475 (19o7) ;
People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 65, 16 Cal. Rptr. 801
(1961) ; People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 670-671,
30 Cal. Rptr. 841 (1963).
44
and unlimited discretion.80 That court has said that Cali
fornia trial judges are permitted to “ aid the jury by stating
the kinds of factors that may be considered [in the penalty
determination], thereby setting the tone for the jury’s
deliberation.” 81 But they are not required to give any
instruction of this sort;82 and, where stated at all, the
80 See, e.g., People v. Brawley, 1 Cal.3d 277, 461 P.2d 361, 374-
375, 82 Cal. Eptr. 161 (1969), finding no error in the trial court’s
refusal to tell the jury that its sentencing decision must be rational,
where the judge charged that the jury’s discretion was absolute,
and that it should give dispassionate consideration and a just ver
dict in the case.
81 People v. Polk, 63 Cal.2d 443, 406 P.2d 641, 646, 47 Cal. Eptr.
1 (1965). Where such factors are stated, it is usually in the lan
guage of the opinion in People v. Friend, note 79 supra, 306 P.2d
at 474-475:
“ . . . that in deciding the question whether the accused should
be put to death or sentenced to imprisonment for life it is
within their discretion alone to determine, each for himself,
how far he will accord weight to the considerations of the
several objectives of punishment, of the deterrence of crime,
of the protection of society, of the desirability of stern retribu
tion, or of sympathy or clemency, of age, sex, human passion,
ignorance or weakness, or (if appropriate under the evidence,
of illness or intoxication or provocation not sufficient to re
duce the degree or class of the crime), of the presumptions
concerning, or possible uncertainties attaching to, life im
prisonment, or of the irrevocableness of an executed sentence
of death, or an apprehension that explanatory facts may exist
which have not been brought to light, or any other considera
tion whatever which in the light of the evidence, the duty
they owe to the accused and to the state, and the law as ex
plained to them by the judge, appears to them to be impor
tant.”
See the Lane and Harrison cases, note 79 supra.
82 People v. Polk, 63 Cal.2d 443, 406 P.2d 641, 647, 47 Cal. Eptr.
1 (1965):
“ Finally, defendants contend that the trial court must in
struct on the legal considerations that the jury should take
into account when deciding whether the penalty should be
death or life imprisonment. We do not agree that such an
45
“ factors” in question are to be stated in a form that tells
the jurors “ it is within their discretion alone to determine,
each for himself, how far he will accord weight” to each
instruction is compulsory. The Legislature has entrusted to
the absolute discretion of the jury the awesome decision be
tween life imprisonment and the death penalty in first degree
murder cases. (Pen. Code, §190; People v. Green, 47 Cal.2d
209, 218, 302 P.2d 307.) The Legislature has thus indicated
its belief that jurors understand the factors that are relevant,
to such a decision. Recitation of such factors by the trial court
is therefore not essential. The trial court, may, however,
properly aid the jury by stating the kinds of factors that may
be considered, thereby setting the tone for the jury’s delibera
tion.”
See also People v. Hillery, 65 Cal.2d 795, 423 P.2d 208, 215, 56
Cal. Rptr. 280 (1967) ; People v. N y e ,------ Cal.3d-------- , 455 P.2d
395, 401-403, 78 Cal. Rptr. 467 (1969). The ordinary requirement
that, where requested, the court must charge upon the defendant’s
theories relative to every issue in the case is inapplicable to death-
penalty proceedings, where the only “ issue is whether, under all of
the evidence, the jury will choose one penalty or the other.”
People v. Clark, 62 Cal.2d 870, 402 P.2d 856, 867, 44 Cal. Rptr.
784 (1965).
So, although it is error to instruct the jurors that they may not
be moved by sympathy for the defendant, People v. Polk, 63 Cal.2d
443 406 P.2d 641, 646, 47 Cal. Rptr. 1 (1965) ; People v. Vaughn,
___L Cal.3d ------ , 455 P.2d 122, 131, 78 Cal. Rptr. 186 (1969) ;
People v. Stanworth,------ Cal.3d-------- , 457 P .2d 889, 904, 80 Cal.
Rptr 49 (1969); People v. Bandhauer, 1 Cal.3d. 609, 463 P.2d
408, 416, 83 Cal. Rptr. 184 (1970), it is not error to decline to
instruct that they may be so moved. People v. Anderson, 64 Cal.2d
633 414 P.2d 366, 371-372, 51 Cal. Rptr. 238 (1966); People v.
Hillery, 65 Cal.2d 795, 423 P.2d 208, 215, 56 Cal. Rptr. 280 (1967);
People v. Durham, 70 Cal.2d 171, 449 P.2d 198, 216, 74 Cal. Rptr.
262 (1969); People v. Washington, —— Cal.2d ------ , 458 P.2d
479, 499-500, 80 Cal. Rptr. 567 (1969). The court can mention
this’ matter (see note 81, supra) or not, as it chooses. Similarly,
it is error to tell the jurors that they may not consider possible
doubts concerning the defendant’s guilt, People v. Terry, 61 Cal.2d
137, 390 P.2d 381, 387, 388, 37 Cal. Rptr. 605 (1964) ; the court
can mention such doubts as a mitigating factor (note 81? supra,) ,
but it need not do so, People v. Washington, Cal.2d , 458
P.2d 479, 500, 80 Cal. Rptr. 567 (1969).
46
of a series of vague considerations.83 What is essential,
under California law, is that:
“ the jury must not be misled into thinking . . . that
their discretion in the selection of penalty, as between
either of the two alternatives, is in any way circum
scribed or limited by law. Their discretion within that
area is absolute and they should be so informed.” 84
This conception that the sentencing jury’s power to decide
between life and death is “ absolute” 85 and must be exercised
“without benefit of guideposts, standards or applicable
criteria” 86 is fundamental to the State’s capital punishment
legislation.87 It is plainly, as the California Supreme Court
has called it, a “ legal vacuum.” 88
83 See note 81 supra.
84 People v. Friend, 47 Cal.2d 749, 306 P.2d 463, 473 (1957).
85 E.g., People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 672,
30 Cal. Eptr. 841 (1963); People v. Mitchell, 63 Cal.2d 805, 409
P.2d 211, 222, 48 Cal. Eptr. 371 (1966) ; People v. Brawley, 1
Cal.3d 277, 461 P.2d 361, 374, 82 Cal. Eptr. 161 (1969). See also
People v. Jones, 52 Cal.2d 636, 343 P.2d 577, 587 (1959) (“ The
fact that there are [“ a great many heinous murders where life
imprisonment was imposed instead of the extreme penalty” ] . . .
only emphasizes how complete the discretion of the jury or trial
court is in imposing- the appropriate penalty.” ) .
86 E.g., People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 392, 37
Cal. Eptr. 605 (1964) ; People v. Hillery, 65 Cal.2d 795, 423 P.2d
208, 215, 56 Cal. Eptr. 280 (1967) ; People v. N y e ,------ Cal.Sd
------ ----- 455 P.2d 395, 402, 78 Cal. Eptr. 467 (1969) ; People v.
Washington, ------ Cal.2d ------ , 458 P.2d 479, 500, 80 Cal. Eptr.
567 (1969). See also People v. Morse, 60 Cal.2d 631, 388 P.2d 33,
40, 36 Cal. Eptr. 201 (1964) (“ . . . the jury has no guidelines, no
standards, no criteria . . . ” ).
87 “ Ever since People v. Leary (1895), . . . 105 Cal. 486, 496, 39
P. 24, it has been recognized law of this state that by section
190 of the Penal Code, as amended, the Legislature has ‘confided
the power to affix the punishment within these two alternatives
[death or life imprisonment] to the absolute discretion of the
47
After a California jury has returned a death verdict, the
trial judge is legally empowered to set it aside and enter a
sentence of life imprisonment instead—not as a matter of
jury’. . . . ” People v. Friend, 47 Cal.2d 749, 306 P.2d 463, 472
(1957). See People v. Brice, 49 Cal.2d 434, 317 P.2d 961, 962
(1957) (“selection of punishment is in every instance completely
within the absolute discretion of the jury” ) ; People v. Green, 47
Cal.2d 209, 302 P.2d 307, 313 (1956) (the “ discretion of the jury
[is not] . . . conditional on, or . . . guided by, any particular cir
cumstances” ) ; People v. Cartier, 54 Cal.2d 300, 353 P.2d 53, 61,
5 Cal. Rptr. 573 (1960) ( “ discretion [is] . . . absolute” ; there is
“no restriction that the law places upon the trier” ) ; People v.
Polk, 63 Cal.2d 443, 406 P.2d 641, 646, 47 Cal. Rptr. 1 (1965)
( “ The Legislature has entrusted to the absolute discretion of the
jury the awesome decision between life imprisonment and the
death penalty.” ). See also, e.g., People v. Jones, 52 Cal.2d 636,
343 P.2d 577, 585 (1959); People v. Mason, 54 Cal.2d 164, 351
P.2d 1025, 1028, 4 Cal. Rptr. 841 (1960); People v. Purvis, 56
Cal.2d 93, 362 P.2d 713, 715, 13 Cal. Rptr. 801 (1961) ; People
v. Howk, 56 Cal.2d 687, 365 P.2d 426, 432-433, 16 Cal. Rptr. 370
(1961); People v. Love, 56 Cal.2d 720, 366 P.2d 33, 38, 809, 16
Cal. Rptr. 777, 17 Cal. Rptr. 481 (1961) ; People v. Terry, 57 Cal.
2d 538, 370 P.2d 985, 1004, 21 Cal. Rptr. 185 (1962) ; People v.
Polk, 63 Cal.2d 443, 451, 406 P.2d 641, 646, 47 Cal. Rptr. 1
(1965); People v. Anderson, 64 Cal.2d 633, 414 P.2d 366, 372, 51
Cal Rptr. 238 (1966); People v. Bandhauer, 66 Cal.2d 524, 426
P.2d 900, 905, 58 Cal. Rptr. 332 (1967) ; People v. White, 69 Cal.
2d 751, 446 P.2d 993, 999, 72 Cal. Rptr. 873 (1968); In re
Anderson, 69 Cal.2d 613, 447 P.2d 117, 123-124, 73 Cal. Rptr. 21
(1968); and see People v. Hamilton, 60 Cal.2d 105, 383 P.2d 412,
430-431, 32 Cal. Rptr. 4 (1963) :
“ There are no basic guide lines to assist the jury in com
ing to [the penalty] . . . determination. On the trial of the
guilt issue the jury is bound by rules of law laid down by
the court in its instructions. But on the penalty phase of the
trial there are no such guide lines. The jury does not have
to find ameliorating circumstances to impose life imprison
ment, nor need it find aggravation to impose the death pen
alty. The choice between the two rests in the absolute dis
cretion of the jury.”
88 People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 392, 37 Cal.
Rptr. 605 (1964); People v. Hines, 61 Cal.2d 164, 390 P.2d 398,
402, 37 Cal. Rptr. 622 (1964).
48
“ review” in any sense, but in the exercise of a power as
absolute and limitless as the jury’s own.89 The California
Supreme Court (to which all appeals in death cases go
directly) categorically will not review or reduce a death
sentence, whether fixed by a jury90 or by a trial judge in a
jury-waived case.91
We have been unable to obtain comprehensive informa
tion concerning the percentage of persons convicted of non
mandatory capital crimes who are selected to suffer the
penalty of death under these California procedures. We
do know that, in all cases tried between 1958 and 1966
89 People v. Moore, 53 Cal.2d 451, 348 P.2d 584, 586, 2 Cal.
Rptr. 6 (1960). See, e.g., People v. Hill, 66 Cal.2d 536, 426 P.2d
908, 58 Cal. Rptr. 340 (1957); People v. Love, 56 Cal.2d 720, 366
P.2d 33, 36-37, 809, 16 Cal. Eptr. 777, 17 Cal. Eptr. 481 (1961);
People v. Ketchel, 59 Cal.2d 503, 381 P.2d 394, 417-418, 30 Cal.
Eptr. 538 (1963); In re Anderson, 69 Cal.2d 613, 447 P.2d 117,
124, 73 Cal. Eptr. 21 (1968).
90 E.g., People v. Green, 47 Cal.2d 209, 302 P.2d 307, 324-325
(1956) ; People v. Feldkamp, 51 Cal.2d 237, 331 P.2d 632, 634
(1958); People v. Linden, 52 Cal.2d 1, 338 P.2d 397, 410 (1959);
People v. Bittger, 54 Cal.2d 720, 355 P.2d 645, 653, 7 Cal. Eptr.
901 (1960); People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 433-
434, 16 Cal. Rptr. 370 (1961); People v. Love, 56 Cal.2d 720, 366
P.2d 33, 36, 809, 16 Cal. Eptr. 777, 17 Cal. Eptr. 481 (1961) ;
People v. Mitchell, 63 Cal.2d 805, 409 P.2d 211, 222, 48 Cal. Rptr.
371 (1966); People v. Beeves, 64 Cal.2d 766, 415 P.2d 35, 42, 51
Cal. Rptr. 691 (1966) • People v. Lookado, 66 Cal.2d 307, 425 P.
2d 208, 221, 57 Cal. Rptr. 608 (1967); In re Anderson, 69 Cal.2d
613, 447 P.2d 117, 124, 73 Cal. Rptr. 21 (1968).
91 E.g., People v. Monk, 56 Cal.2d 288, 363 P.2d 865, 871, 14
Cal. Rptr. 633 (1961); People v. Lindsey, 56 Cal.2d 324, 363 P,2d
910, 912, 14 Cal. Rptr. 678 (1961); People v. Welch, 58 Cal.2d
271, 373 P.2d 427, 430, 23 Cal. Rptr. 363 (1962). Of course, if
the evidence is insufficient to sustain conviction of a capital of
fense, the Supreme Court has power to vacate the conviction,
and the death sentence falls with it. E.g., People v. Nicholaus,
65 Cal.2d 8 6 6 , 423 P.2d 787, 56 Cal. Rptr. 635 (1967). That im
plies no review of the sentence.
49
wherein sentencing was done by the same jury that returned
a verdict of guilty of first-degree murder, about forty-three
percent resulted in a death sentence.92 Fifty-seven percent
resulted in life imprisonment.
3. Other Jurisdictions
Other American jurisdictions which retain the death
penalty93 prescribe it for a varying register of offenses94
but rarely use it except for murder, rape or kidnapping.
These active capital crimes are invariably non-mandatory.95
In order to keep the discussion that follows within manage
able bounds, we confine it to the practices used by the
92 Note, A Study of the California Penalty Jury in First-Degree-
Murder Cases, 21 Stan. L. Rev. 1297, 1310 n. 27 (1969). There
were 103 death sentences in 238 cases.
An earlier study provides the information that, out of a total
of 25 cases between 1942 and 1957 in which the California Supreme
Court reversed convictions of death-sentenced men, 10 men were
reconvicted of the capital offense but only 3 were resentenced to
die. Note, Post-Conviction Remedies in California Death Penalty
Cases, 11 Stan. L. Rev. 94, 104 n. 21 (1958).
93 The most recent description of the legal status of the death
penalty in the United States is Reckless, The Use of the Death
Penalty, 15 Crime & Delinquency 43 (1969), which cites earlier
studies. Since the publication of the Reckless article, New Mexico
has abolished the death penalty except for killings of police officers
and prison guards and “when the defendant commits a second
capital felony after time for due deliberation following commission
of a capital felony.” N.M. Laws 1969, eh. 128, §1, N.M. Stat.
Ann., §40A-29-2.1 (1970 Cum. Supp.).
94 We collected the capital sentencing provisions of the several
States in Appendix B to our brief amici curiae in Boykin v. Ala
bama, 395 U.S. 238 (1969) (O.T. 1968, No. 642). The most signifi
cant change since that compilation is the New' Mexico development
mentioned in note 93 swpra.
95 See our Maxwell brief, Appendix A infra, p. 26, n. 24.
50
States96 in capital sentencing for the crime of murder.97
Murder accounts for most of the capital sentences handed
down in the United States today;98 and the practices used
by most States in sentencing for that crime are the same
as those which they use for the other non-mandatory
capital crimes.99
In almost all States, capital sentencing is done principally
by juries. Where the defendant pleads not guilty, some
States permit the waiver of jury trial, entailing a trial of
guilt and determination of sentence by a judge or by a
multi-judge panel; while other States forbid waiver of
jury trial. A number of States also forbid a plea of guilty
to a capital offense. Most States permit it. Where it is
permitted, it usually constitutes a waiver of jury on the
96 The United States and the District of Columbia, of course,
also authorize capital punishment, in non-mandatory form, for
murder. 18 U.S.C. §1111 (1964); D.C. Code §22-2404 (1967).
The sentencing discretion conferred by those statutes is described
in Winston v. United States, 172 U.S. 303 (1899), and Andres v.
United States, 333 U.S. 740, 742-744 (1948). It can “be based upon
any consideration which [appeals] . . . to the jury.” Id., at 743.
97 We exclude discussion of the statutes found in a few juris
dictions which authorize the death penalty for only a very limited
class of murders. N.M. Stat. Ann., §40A-29-2.1 (1970 Cum. Supp.);
N.T. Pen. Law §125.30; Yt. Stat. Ann., tit. 13, §2303 (1969 Cum.
pocket part). There are no reported decisions explicating these
relatively recent statutes.
98 Of the 479 men on death row as of December 31, 1968, 405
were under sentence of death for murder. United States Depart
ment oe Justice, Bureau of Prisons, National Prisoner Sta
tistics, Bulletin No. 45, Capital Punishment 1930-1968 (August,
1969), p. 22.
" A number of the statutes that we shall cite in the following
notes apply to all non-mandatory capital crimes in the respective
jurisdictions. We shall refer to cases interpreting those statutes
whether or not they are murder cases. But, by eliminating cita
tion of statutes and cases which apply exclusively to offenses other
than murder, we can avoid a great deal of uninformative citation.
51
question of penalty; but many States impanel a jury
(whose waiver some do and others do not permit) even on
a guilty plea.100
100Alabama: All capital sentencing is done by juries. See
Bankhead v. State, 124 Ala. 14, 26 So. 979, 980-981 (1899);
Burgess v. State, 256 Ala. 5, 53 So.2d 568, 573-574 (19ol).
Arizona: A guilty plea entails sentencing by a judge. Ariz.
Rev. Stat. §13-453 (1956). It is unclear whether a jury can be
waived on a not guilty plea.
Arkansas: All capital sentencing is done by juries. See our
Maxwell brief, Appendix A infra, p. 28.
Colorado: A guilty plea entails sentencing by a judge. Colo.
Rev. Stat. Ann. §40-2-3(2) (a), (b), (c) (1965 Perm. cum. supp.).
Apparently a jury cannot be waived on a not guilty plea. Cf.
Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964), whose logic
suggests this result.
Connecticut: Judges sentence following either a jury-waived
guilt trial or a guilty plea. A three judge panel is convened in
the latter case but apparently not in the former. Conn. Gen. Stat.
Ann., §§53-9, 53-10 (1970-1971 Cum. pocket part).
Florida: Judges sentence following a guilty plea. Lee v. State,
166 So 2d 131 (Fla. 1964). Juries sentence following a jury trial
on a not guilty plea. Fla. Stat. Ann. §919.23(2) (1944). Florida
statutes forbid jury waiver on a not guilty plea, Fla. Stat. Ann.
§912.01 (1944), but the new Florida Criminal Rules (which may
or may not validly supersede the statute in this regard) permit it.
Fla. Stat. Ann., Rules Crim. Pro. 1.260 (1967).
Georgia: Judges sentence following either a jury-waived guilt
trial or a guilty plea. Ga. Code Ann. §26-3102 (Criminal Code of
Georgia, 1968-1969).
Idaho: Apparently all capital sentencing is done by juries.
Ida. Code Ann. §18-4004 (1948).
Illinois: Judges sentence following either a jury-waived guilt
trial or a guilty plea. 111. Stat. Ann., tit. 38, §1-7(c )(2 ) (1970
Cum. pocket part). See note 101 infra.
Indiana: Judges sentence following either a jury-waived guilt
trial or a guilty plea. Burns Ind. Stat. Ann. §9-1819 (1956 Repl.
vol.).
Kansas: Judges sentence following either a jury-waived guilt
trial or a guilty plea. Kan. Stat. Ann. §21-4501 (a) (1969 Cum.
supp.).
Kentucky: Apparently all capital sentencing is done by juries.
Ky. Rev. Stat. Ann. §435.010 (1969). See Bice v. Commonwealth,
52
In five States, trial judges have responsibility for capital
sentencing. But invariably, unless a jury is waived, the
question of penalty in these States is first submitted to a
jury. The jury’s decision in favor of life binds the trial
278 Ky. 43, 128 S.W.2d 219 (1939) (jury sentencing on guilty
plea).
Louisiana: All capital sentencing is done by juries. La. Stat.
Ann., Code Crim, Pro., arts. 557, 780, 817 (1967).
Massachusetts: Apparently all capital sentencing is done by
juries. Mass. Ann. Laws, ch. 265, §2 (1968).
Mississippi: All capital sentencing is done by juries. Miss. Code
Ann., tit. 11, §2217 (Recomp. vol. 1956). See Yates v. State, 251
Miss. 376, 169 So.2d 792, 802 (1964) (jury sentencing on guilty
plea).
Missouri: Sentencing is generally done by juries. Vernon’s Mo.
Stat. Ann. §§546.410, 559.030 (1953). See State v. Creighton,
330 Mo. 1176, 52 S.W.2d 556, 563-564 (1932). Practice regarding
waivers and guilty pleas is unclear.
Montana: Apparently judges sentence following either a jury-
waived guilt trial or a guilty plea. Mont. Rev. Code §94-2505
(Repl. vol. 1969). See State v. Palen, 120 Mont. 434, 186 P.2d
223 (1947) (judge sentencing on guilty plea).
Nebraska: Apparently judges sentence only following a guilty
plea. Neb. Rev. Stat. §28-401 (Reissue vol. 1964). See State v.
Alvarez, 182 Neb. 358, 154 N.W.2d 746 (1967).
Nevada: Apparently all capital sentencing is now done by
juries. Nev. Rev. Stat. §200.030(3). Former provisions relating
to sentencing by a three-judge court upon a guilty plea were re
pealed by Nev. Laws 1967, ch. 523 §438, p. 1470.
New Jersey: All capital sentencing is done by juries. A non vult
plea to a capital offense entails life imprisonment. N.J. Stat. Ann.
§§2A:113-3, -4 (1969). See State v. Forcella, 52 N.J. 263, 245
A.2d 181, 184-190 (1968) (presently pending on petition for certi
orari, O.T. 1970, Misc. No. 5011, with regard to the constitution
ality of this practice).
New Hampshire: On a guilty plea, a judge may sentence to life
imprisonment or may impanel a jury to decide punishment. Other
wise, apparently, ail capital sentencing is done by juries. N.H.
Rev. Stat. §§585:4, 585:5 (1955).
North Carolina: All capital sentencing is now done by juries.
N.C. Gen. Stat. §14-17 (Repl. vol. 1969). See Slate v. Roseboro,
------ N.C. --------, 171 S.E.2d 8 8 6 , 893 (1970).
(footnote continued on next page)
53
judge in three States; in two, its decision in favor of death
hinds him. So, in each of these States, the jury’s sentenc
ing power is decisive: the defendant’s life depends upon
its exercise in at least one direction.101 * 143 * * * * * * * 151
Oklahoma: Judges sentence following a guilty plea. Okla. Stat.
Ann., tit. 21, §707 (1958).
Pennsylvania: Judges sentence following a guilty plea. A three-
judge court may be convened. Purdon’s Pa. Stat. Ann., tit. 18,
§4701 (1963) ; tit. 19, Appendix, Rule Crim. Pro. 1115 (1969 Cum.
pocket part).
South Carolina: All capital sentencing is now done by juries.
S.C. Code Ann. §16-52 (1962). See State v. Harper, 251 S.C. 379,
162 S.E.2d 712, 715 (1968).
Tennessee: Apparently all capital sentencing is done by juries.
Term Code Ann. §§39-2405, 2406 (1955). See Gohlston v. State,
143 Tenn. 126, 223 S.W. 839 (1920).
Texas: Apparently all capital sentencing is now done by juries.
Vernon’s Tex. Stat. Ann., Pen. Code, arts. 1257, 1257(a) (1961) ;
Code Crim. Pro., art. 37.07(2) (b) (1969-1970 Cum. pocket part).
Virginia: Judges sentence following a guilty plea. Va. Code
Ann. §§18.1-22, 19.1-250 (Repl. vol. 1960).
Washington: Apparently all capital sentencing is done by juries.
Wash. Rev. Code §9.48.030 (1961).
Wyoming: Apparently all capital sentencing is done by juries.
Wyo. Stat. Ann. §6-54 (1957). See State v. Brown, 60 Wyo. 379,
151 P.2d 950, 955 (1944) (jury sentencing on guilty plea).
101 Delaware: The judge may sentence to life only if the jury
recommends life. Del. Stat. Ann., tit. 11, §3901 (1968 Cum.
pocket part). Illinois: The judge may sentence to death only if
the jury recommends death. 111. Stat. Ann., tit. 38, § § l-7 (c )(l )
(1970 Cum. pocket part), 9-1 (b) (1964). Maryland: The judge
may sentence to death only if the jury does not return a verdict
“without capital punishment.” Md. Code Ann., art. 27, §413
(Repl. vol. 1967). South Dakota: The judge may sentence to
death only if the jury recommends death. S.D. Comp. Laws.
§§22-16-12, -13 (1967). However, a jury trial may be waived,
leaving sentencing discretion entirely to the judge. S.D. Comp.
Laws. §22-16-14 (1967). Utah: The judge may sentence to life
only if the jury recommends life. Utah Code Ann. §76-30-4
(1953). See State v. Markham, 100 Utah 226, 112 P.2d 496
(1941).
54
The various States express the alternative nature of the
penalties of life and death in various ways. Basically there
are three forms of statement. The “ either-or” form, which
simply states the penalties in the disjunctive for the jury’s
choice, is most common.102 A considerable number of States
provide that the penalty for the crime is death, unless the
jury recommends mercy or returns a verdict qualified by
words such as “without capital punishment.” 103 A few
States authorize the death penalty only if the jury’s verdict
affirmatively calls for it.104
102 Ala. Code Ann., tit. 14, §318 (Recomp. vol. 1958): Ariz.
Rev. Stat. §13-453 (1956); Colo. Rev. Stat. §40-2-3(1), (2) (c)
(1965 Perm. cum. supp.) ; Ida. Code Ann. §18-4004 (1948) ; Burns
Ind. Stat. Ann. §10-3401 (1956 Repl. v o l.) ; Kan. Stat. Ann.
§21-4501 (a) (1969 Cum. supp.); Ky. Rev. Stat. Ann. §435.010
(1969); Vernon’s Mo. Stat. Ann. §559.030 (1953); Mont. Rev.
Code, §94-2505 (Repl. vol. 1969); Neb. Rev. Stat. §28-401 (Re
issue vol. 1964); Okla. Stat. Ann., tit. 21, §707 (1958) ; Purdon’s
Pa. Stat. Ann., tit. 18, §4701 (1963) ; Tenn. Code Ann. §§39-2405,
-2406 (1955) ; Vernon’s Tex. Stat. Ann., Pen. Code, art. 1257
(1961) ; Va. Code Ann. §§18.1-22, 19.1-250 (Repl. vol. 1960).
103 Ark. Stat. Ann. §43-2153 (Repl. vol. 1964) ; Conn. Gen. Stat.
Ann. §53-10 (1970-1971 Cum. pocket part) ; Del. Stat. Ann., tit.
11, §3901 (1968 Cum. pocket part), see note 101 supra; Fla.
Stat. Ann. §919.23(2) (1944); La. Stat. Ann., Code Grim. Pro.,
art. 817 (1967) ; Md. Code Ann., art. 27, §413 (Repl. vol. 1967),
see note 100 supra; Mass. Ann. Laws, ch. 265, §2 (1968); Kramer
v. State, 60 Nev. 262, 108 P.2d 304, 308-310 (1940) ; Ex parte
Kramer, 61 Nev. 174, 122 P.2d 862, 865 (1942), construing Nev.
Rev. Stat. §200.030(3); N.J. Stat. Ann. §2A:113-4 (1969); N.C.
Gen. Stat. Ann. §14-17 (Repl. vol. 1969); S.C. Code Ann. §16-52
(1962) ; Utah Code Ann. §76-30-4, see note 101 supra; Wyo. Stat.
Ann. §6-54 (1957); cf. Miss. Code Ann., tit. 11, §2217 (Recomp,
vol. 1956). ' ‘
104 Ga. Code Ann. §26-3102 (Criminal Code of Georgia, 1968-
1969); 111. Stat. Ann., tit. 38, § § l-7 (c )(l ) (1970 Cum. pocket
part), 9-1 (b) (1964); N.H. Rev. Stat. Ann. §585:4 (1955); S.D.
Comp. Laws §22-16-12, -13 (1967); Wash. Rev. Code §9.48.030
(1961).
55
Ubiquitously, these capital sentencing statutes, whatever
their form, are described by the state courts as conferring
both unlimited and unguided sentencing power upon the
jury. Phrases such as “ absolute discretion” and “'entirely
within the jury’s discretion” mark the opinions which
construe and apply the statutes.105 It is invariably said * 59
105 Boggs v. State, 268 Ala. 358, 106 S.2d 263, 266 (1958)
( “ sole discretion” ) • see also Hinton v. State, 280 Ala. 848, 189
So.2d 849, 853 (1966) ; Hernandez v. State, 43 Ariz. 424, 32
P.2d 18, 20 (1934) ( “wholly within the jury’s discretion” ) ; Alford
v. State, 223 Ark. 330, 266 S.W.2d 804, 805 (1954) (“ option lies
entirely with the jury” ) ; State v. Donahue, 141 Conn. 656, 109
A.2d 364, 368 (1954) ( “absolute discretion” ) ; Burnette v. State,
157 So.2d 65, 66 (Fla. 1963) ( “ entirely within the discretion of a
majority” of the jury) ; Baugus v. State, 141 So.2d 264, 266 (Fla.
1962) ( “ determined purely by the dictates of the consciences of
the individual jurors” ) ; Williams v. State, 119 Ga. 425, 46 S.E.
626 (1904) ( “ a matter solely in their discretion, which is not
limited or confined in any case” ) ; see also Barfield v. State, 179
Ga. 293, 175 S.E. 582, 584 (1934) ; McBurnett v. State, 206 Ga.
59, 55 S.E.2d 598, 599 (1949); People v. Bernette, 30 I11.2d 359,
197 N.E.2d 436, 443 (1964) ( “ an optional form of punishment
which [the jury] . . . is free to select or reject as it [sees] fit” ) ;
State v. Christensen, 166 Kan. 152, 199 P.2d 475, 479 (1948) (“ the
jury’s exclusive duty” ) ; Edwards v. Commonwealth, 298 Ky. 366,
182 S.W.2d 948, 951 (1944) ( “ exclusively within the province of
the jury” ) ; State v. Henry, 197 La. 199, 3 So.2d 104, 108 (1941)
( “ absolute, unconditional right and power” ) ; see also State v.
Jackson, 227 La. 642, 80 So.2d 105, 108 (1955) ; Spain v. State,
59 Miss. 19, 24 (1881) (“right . . . is without any condition)
Duisen v. State,------ M o .--------, 441 S.W.2d 68 8 , 692 (1969) (“ ab
solute discretion” ) ; State v. Palen, 120 Mont. 434, 186 P.2d 223,
224 (1947) (bench trial: “ entirely within the court’s discretion” ) ;
State v. Mount, 30 N.J. 195, 152 A.2d 343, 351 (1959) ( “ absolute
discretion of the jury upon its consideration of all the evidence” ) ;
State v. Simmons, 234 N.C. 290, 66 S.E.2d 897, 898 (1951) (“ an
unbridled discretionary right” ) ; Commonwealth v. Wooding, 355
Pa. 555, 50 A.2d 328, 329-330 (1947) ( “ absolute discretion of the
jury” ) ; see also Commonwealth v. Hough, 358 Pa. 247, 56 A.2d
84 85-86 (1948); Commonwealth v. Taranow, 359 Pa. 342, 59 A.2d
53, 55 (1948); State v. Jones, 201 S.C. 403, 23 S.E.2d 387, 392
(1942) (jury’s “ discretion in the matter is an unlimited one” ) ;
see also State v. Chasteen, 228 S.C. 88 , 88 S.E.2d 880, 887 (1955);
56
that they provide no standards, rules or guidelines to in
form the jury.106
Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843, 848 (1932)
(under a statute permitting a life verdict if, in the opinion of
the jury, there are mitigating circumstances, “ [i]n determining
whether, in their opinion, there are mitigating circumstances, the
jury are left entirely to their discretion. They are not told by
the Judge what would be mitigating circumstances. . . . ” ) ; Love-
lady v. State, 150 Tex. Crim. App. 50, 198 S.W.2d 570, 573-574
(1947) ( “ exclusively within the province of the jury” ) ; see also
Franks v. State, 139 Tex. Crim. App. 42, 138 S.W.2d 109, 115
(1940) ; State v. Markham, 100 Utah 226, 112 P.2d 496, 497 (1941)
( “ entirely within its discretion” ) ; see also State v. Vasquez, 101
Utah 444, 121 P.2d 903, 907 (1942) ; State v. Brown, 60 Wyo. 379,
151 P.2d 950, 955 (1944) ( “ discretion of the jury to impose the
penalty of death or life imprisonment is untrammeled” ) .
106 Sullivan v. State, 47 Ariz. 224, 55 P.2d 312, 318 (1936) ( “ The
statute does not prescribe what jurors shall or shall not consider” ) ;
State v. Walters, 145 Conn. 60, 138 A.2d 786, 793 (1958) (the
penalty decision is “not determined on any standards subject to
judicial review” ) ; Wilson v. State, 225 So.2d 321, 324 (Fla.
1969) (“ each juror is free to vote for mercy for any reason at
all” ) ; Manor v. State, 223 Ga. 594, 157 S.E.2d 431, 437 (1967)
(“ statutes . . . fix no standards for recommending mercy” ) ; Duisen
v. State, ------ - Mo. ------ , 441 S.W.2d 68 8 , 692 (1969), note 104
supra ( “without standards or rules” ) ; Sundahl v. State, 154 Neb.
550, 48 N.W.2d 689, 692 (1951) (statute “ does not prescribe or
authorize the court to prescribe any rule defining or circumscribing
the exercise of the right to determine whether the penalty shall
be death or imprisonment for life” ) ; see also Grandsinger v. State,
161 Neb. 419, 73 NAY.2d 632, 637 para. 12, 648 (1955) ; State v.
Boseboro, ------ N.C. ------ , 171 S.E.2d 8 8 6 , 892-893 (1970) ( “ The
very lack of any standard or rule leaves the jury without restric
tion, free to save the life of the accused as an unfettered act of
grace” ) ; Commonwealth v. Wooding, 355 Pa. 555, 50 A.2d 328,
329-330 (1947), note 105 supra ( “ The statute . . . provides no fixed
arbitrary standards regulating the exercise of that discretion. . . .
It does not indicate the kind or nature of the factors which should
be taken into consideration. Indeed, the question being one purely
of penology, there is room for a wide diversity of opinion even as
to the object to be accomplished through one sentence of the other,
—whether it be to punish the offender, to give opportunity for
his reformation, to protect the public against his commission
of further crimes, to act as a deterrent to others, or for some or
57
To be sure, some States, like Ohio, announce that the
jury is supposed to make its sentencing decision on the
basis of the evidence.* 107 Other States flatly reject that
all of these purposes combined. . . . ” ) ; State v. St. Clair, 3 Utah
2d 230, 282 P.2d 323, 326 (1955) ( “ They are not restricted to any
particular rule of law or limitation upon evidence” ) ; State v.
White, 60 Wash.2d 551, 374 P.2d 942, 955 (1962) (“ No standards
are required by our statute or the constitution” ) ; and see Baugus
v. State, 141 So.2d 264, 266 (Fla. 1962), note 105 supra (the
penalty aspect of the case is “ so nebulous as to be incapable of
definition” ) .
107 In only a half-dozen States is this plainly the rule, in the
sense that it could be embodied in a jury charge without risk of
error. Conn. Gen. Stat. Ann. §53-10 (1970-1971 Cum., pocket
p art); see State v. Walters, 145 Conn. 60, 138 A.2d 786, 792-794
(1958); State v. Jarolowski, 38 Del. 108, 103 A. 657, 658 (Ct.
Oyer & Terminer 1918); State v. Lee, 36 Del. 11, 171 A. 195,
200 (Ct. Oyer & Terminer 1933) ; State v. Winsett, 205 A.2d 510,
522 (Del. Super. Ct. 1964) ; Mass. Ann. Laws, eh. 265, §2 (1968);
see Commonwealth v. McNeil, 328 Mass. 436, 104 N.E.2d 153,
156-157 (1952); Commonwealth v. Nassar, 354 Mass. 249, 237
N.E.2d 39, 44 (1968); Dinsmore v. State, 61 Neb. 418, 85 N.W.
445, 453 (1901); Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689,
704 (1951); N.J. Stat. Ann. §2A:113-4 (1969); see State v.
Mount, 30 N.J. 195, 152 A.2d 343, 349-350 (1959); State v.
Forcella, 52 N.J. 263, 245 A.2d 181, 194 (1968); Tenn. Code
Ann. §39-2406 (1955) (the statutory requirement that the jury
base a life verdict upon mitigating circumstances amounts,
in effect, to a directing that it make its decision “under the facts
and circumstances appearing,” Porter v. State, 177 Tenn. 515,
151 S.W.2d 171, 174 (1941), since the court is not permitted to
define “mitigating circumstances,” Woodruff v. State, 164 Tenn.
530, 51 S.W.2d 843, 847-848 (1932)); Pixley v. State, 406 P.2d
662, 669 (Wyo. 1965). Opinions in two more States set out charges
limiting the jury’s determination to the evidence, but the deci
sions do not involve the question of their propriety in this regard.
State v. Owen, 73 Ida. 394, 253 P.2d 203, 207 (1953) ; ShimnioJc
v. State, 197 Miss. 179, 19 So. 760, 766 (1944) (charge that a
juror should not vote a death verdict unless he is convinced from
the evidence, beyond a reasonable doubt, that the death penalty
should be imposed). In several more States, there are opinions
containing dicta to the effect that the jury’s determination should
be made on the evidence, usually uttered in connection with hold-
58
conception.108 But even the States which accept it find that
it implies no standard or principle by which the jury’s
ings that a prosecutor’s argument based upon facts not in evi
dence was improper, or that the admission of certain evidence
inadmissible on the issue of guilt was prejudicial. These cases
might support jury charges in the respective jurisdictions limiting
the jury’s penalty consideration to the evidence, but probably that
would be to read too much into them. Sukle v. People, 107 Colo. 269,
111 P.2d 233, 235 (1941); People v. Black, 367 111. 209, 10 N.E.
2d 801, 804 (1937); State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582,
586 (1950); Jones v. Commonwealth, 194 Va. 273, 72 S.E.2d 693,
696 (1952). On the other hand, in some of these States, and in
some other States, it is highly likely that a jury charge instructing
the jurors that they may or shall consider the evidence (although
their decision need not be based upon it) would be sustained.
See Brown v. State, 109 Ala. 70, 20 So. 103, 107-108 (1896);
Jones v. People, 146 Colo. 40, 360 P.2d 6 8 6 , 692 (1961); and see
Leopold v. People, 105 Colo. 147, 95 P.2d 811, 814 (1939); Wheat
v. State, 187 Ga. 480, 1 S.E.2d 1, 3 (1939); People v. Sullivan,
345 111. 87, 177 N.E. 733, 736 (1931); People v. Ciucci, 8 I11.2d
619, 137 N.E.2d 40, 45 (1956); Commonwealth v. Brown, 309
Pa. 515, 164 A. 726, 730 (1933). Such a charge would be improper
in the several jurisdictions (except perhaps Washington) noted in
notes 108, 116 infra. See also the condemnation of the charge in
Wyett v. State, 220 Ga. 867, 142 S.E.2d 810 (1965).
Concerning the division of authority on the question whether
evidence going only to penalty is admissible, see note 149 infra.
108 Sullivan v. State, 47 Ariz. 224, 55 P.2d 312, 318 (1936)
(semble); Pait v. State, 112 So.2d 380, 385 (Fla. 1959); Spain v.
State, 59 Miss. 19, 24-25 (1881); State v. Worthy, 239 S.C. 449,
123 S.E.2d 835, 845, 848-849 (1962) (Legge, J., speaking for the
court on this point) ; see State v. King, 158 S.C. 251, 155 S.E. 409,
425-426 (1930); State v. Blakely, 158 S.C. 304, 155 S.E. 408
(1930) ; State v. Jones, 201 S.C. 403, 23 S.E.2d 387, 391-392
(1942) (the last three cases being modified by Worthy, supra, but
not in the present regard); State v. Thorne, 39 Utah 208, 117 P.
58, 62-63 (1911), overruled on the question whether such error is
prejudicial, State v. Riley, 41 Utah 225, 126 P. 294, 299 (1912) ;
State v. Romeo, 42 Utah 46, 128 P. 530, 538-539 (1912) (hold
ing charge erroneous but nonprejudicial) ; State v. Markham, 100
Utah 226, 112 P.2d 496, 497 (1941) (dictum) ; State v. Vasques,
101 Utah 444, 121 P.2d 903, 907 (1942) ; State v. Collins, 50 Wash.
2d 740, 314 P.2d 660, 663 (1957) (semble) ; but see State v. Smith,
74 Wash.2d 744, 446 P.2d 571, 590 (1968).
59
decision can be guided, informed or measured,109 controlled
or reviewed.110 Not surprisingly, none of these “ evidence”
States appears to take the “ evidence” principle very
seriously: in several of them, a jury charge embodying it
is optional with the trial judge.111
Apart from that question of the role of evidence in the
jury’s deliberations, jury-charge practice under the various
capital sentencing laws falls into four major categories.112
A very few States appear to favor instructions in terms
of “mitigating circumstances,” without defining those
circumstances.113 Another very few States approve an
109 See the Connecticut cases of Donahue, note 105 supra, and
Walters, note 106 supra; the Nebraska cases of Sundahl and Grand-
singer, note 106 supra; the New Jersey case of Mount, note 105
supra; the Tennessee case of Woodruff, note 105 supra; and the
Wyoming case of Brown, note 105 supra. See also the discussion
of the Ohio eases at notes 31-41 supra.
110 There seems to be no relation between the jurisdictions which
require the jury’s decision to be made on the evidence (note 107
supra) and those in which any measure of judicial review of the
jury has developed (notes 120-123 infra).
111 Ohio: see notes 39-41 supra. Nebraska: see the Sundahl and
Grandsinger cases, note 106 supra. Wyoming: see the Pixley ease,
note 107 supra. The other “ evidence” States appear not to have
passed upon the question.
112 yye pUt aside discussion of the question what the jury may
or should be told, in the various jurisdictions, with regard to the
parole, pardon and commutation aspects of a life sentence. There
is much litigation of this question, none of it informative for
present purposes.
113 In Tennessee, the relevant statute requires that a life ver
dict be based upon mitigating circumstances, Tenn, Code Ann.
§39-2406 (1955), and the jury is instructed in these terms. Wood
ruff v. State, 164 Tenn. 530, 51 S.W.2d 843, 848 (1932). Colorado
has a statute which provides, in effect, that when a homicide is
shown, “ the burden of proving circumstances of mitigation” de
volves on the defendant. This would appear to us to be nothing
more than the ordinary principle of homicide lore, in force in
6 0
instruction telling the jury that it should not be influenced
by mere sentiment, sympathy or passion, but not saying
what should influence the jury.114 A larger number of
States submit the question of life or death in terms of
“ absolute” or “unrestricted” discretion, or tell the jurors
that they may decide it either way “ for any reason or for
no reason,” or some such phrase.115 In other States, the
many jurisdictions by statute or common law, which has to do
with degrees of homicide and with justification (e.g., self-defense,
defense of others) ; but the Colorado Supreme Court takes the
unusual view that it also applies to the penalty determination.
See Jones v. People, 146 Colo. 40, 360 P.2d 6 8 6 , 692 (1961) ;
Jones v. People, 155 Colo. 148, 393 P.2d 366, 367-368 (1964).
Apparently a Colorado jury charge could be framed on this
principle, but that is not entirely clear. There is also language
in Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2d 948,
951 (1944), that might support a charge in terms of mitigating
circumstances.
114 Dinsmore v. State, 61 Neb. 418, 85 N.W. 445, 453 (1901);
see also Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689, 704
(1951); Pixley v. State, 406 P.2d 662, 669 (Wyo. 1965). See also
the jury charge reflected in the record in Mathis v. New Jersey,
O.T. 1970, Misc. No. 5006, trial transcript pp. 653-654.
115 State v. Donahue, 141 Conn. 656, 109 A.2d 364, 368 (1954)
(“ absolute discretion” ) ; Wheat v. State, 187 Ga. 480, 1 S.E.2d 1,
3 (1939) (jury’s power “not limited or confined” ; “no rule of law
governing the jury” ) ; Brown v. State, 190 Ga. 169, 8 S.E.2d 652,
655 (1940) ( “without rhyme or reason” ) ; Davis v. State, 190 Ga.
100, 8 S.E.2d 394, 397 (1940) ( “with or without a reason” ) ;
McCoy v. State, 191 Ga. 516, 13 S.E.2d 183, 185 (1941) ( “ rests
solely within the discretion, the wish, or desire of the jury” ) ;
Daniels v. State, 199 Ga. 818, 35 S.E.2d 362, 363 (1945) ( “with
or without reason, arbitrarily, just as they might see fit” ) ; State
v. Clohey, 83 Ida. 322, 364 P.2d 159, 161 (1961) (“you are
entirely free to act according to your own judgment” ) ; State v.
McMillan, 233 N.C. 630, 65 S.E.2d 212, 213 (1951) (wherein the
court says: “No conditions are attached to, and no qualifications
or limitations are imposed upon, the right of the jury to so recom
mend. It is an unbridled discretionary right. And it is incum
bent upon the court to so instruct the jury. . . . ” ) ; see also State
v. Marsh, 234 N.C. 101, 66 S.E.2d 684, 688 (1951); State v. Sim
61
judge is expected to do no more than to tell the jury that
it has a choice, and to hand them, alternative verdict
forms.116 This latter approach is widely permitted even in
States that do not require it.117 Cases now pending before
mons, 234 N.C. 29, 66 S.E.2d 897, 898 (1951); State v. Pugh, 250
N.C. 278, 108 S.E.2d 649, 650-651 (1959) ; State v. Crawford,
260 N.C. 548, 133 S.E.2d 232, 239-241 (1963); State v. Worthy,
239 S.C. 449, 123 S.E.2d 835, 845-849 (1962) (error to refuse
charge that jury can make recommendation “without any reason
at all” ) ; see also State v. Daniels, 231 S.C. 76, 97 S.E.2d 902,
905-906 (1957) (“ for any reason in the world or for no reason
in the world, except that it wants to do so. . . . ” ).
And see Fait v. State, 112 So.2d 380, 385 (Fla. 1959); Hicks
v. State, 196 Ga. 671, 27 S.E.2d 307, 309 (1943); State v. Henry,
197 La. 199, 3 So.2d 104, 108 (1941), for appellate formulations
of the any-reason-or-no-reason conception.
116 Hernandez v. State, 43 Ariz. 424, 32 P.2d 18, 20-21 (1934) ;
Bagley v. State, 247 Ark. 113, 444 S.W.2d 567, 569 (1969);
Baugus v. State, 141 So.2d 264, 266 (Fla. 1962) ■ see also Newton
v. State, 21 Fla. 53, 99-101 (1884); Garner v. State, 28 Fla. 113,
9 So. 835, 847 (1891); Lovett v. State, 30 Fla. 142, 11 So. 550,
556 (1892) ; Burnette v. State, 157 So.2d 65, 70 (Fla. 1963);
State v. Van Vlack, 57 Ida. 316, 65 P.2d 736, 755 (1937); Spain
v. State, 59 Miss. 19 (1881); State v. Skaug, 63 Nev. 59, 161 P.2d
708, 712 (1945); see also Ex parte Skaug, 63 Nev. 101, 164 P,2d
743, 747-748 (Nev. 1945) ; State v. Thorne, 39 Utah 208, 117 P.
58, 62-63 (1911), overruled on the question whether such error
is prejudicial, State v. Biley, 41 Utah 225, 126 P. 294, 299 (1912);
State v. Thorne, 41 Utah 414, 126 P. 286, 288 (19i2) ■ State v.
Borneo, 42 Utah 46, 128 P. 530, 538-539 (1912) (holding the error
nonprejudicial).
117 Harris v. State, 183 Ga. 574, 188 S.E. 883, 884 (1936) ; Hop
kins v. State, 190 Ga. 180, 8 S.E.2d 633, 635-636 (1940); Bice v.
Commonwealth, 278 Ky. 43, 128 S.W.2d 219, 223 (1939); Sundahl
v. State, 154 Neb. 550, 48 N.W.2d 689, 692 para. 11, 699-700 (1951);
Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632, 637 para. 12,
648 (1955) ; Commonwealth v. Wooding, 355 Pa. 555, 50 A.2d 328,
329-330 (1947) ; State v. White, 60 Wash.2d 551, 374 P.2d 942, 955
(1962) ; White v. Bhay, 64 Wash.2d 15, 390 P.2d 535, 540-541
(1964) ; Pixley v. State, 406 P.2d 662, 669 (Wyo. 1965) (dictum),
discussing State v. Brown, 60 Wyo. 379, 151 P.2d 950, 955 (1944).
6 2
the Court on petitions for certiorari exemplify some of
these basic forms of submissions,118 should the Court wish
to examine them.119
118 There are, of course, some jurisdictions and isolated cases that
do not fit into the basic categories. In Delaware, the jury is told
that the authorization for a recommendation of mercy “ is intended
to apply only to those cases where the jury believes from the evi
dence, all things considered, that life imprisonment would meet the
ends of justice and would he a sufficient punishment.” State v.
Lee, 36 Del. 11, 171 A. 195, 200 (Ct. Oyer & Terminer 1933). For
other Delaware charges, see State v. Galvano, 34 Del. 323, 154
A. 461, 467 (Ct. Oyer & Terminer 1930) ; State v. Winsett, 205
A.2d 510, 522 (Del. Super. Ot. 1964); compare State v. Carey,
36 Del. 521, 178 A. 877, 878 (Ct. Oyer & Terminer 1935). An
old Alabama case, Brown v. State, 109 Ala. 70, 20 So. 103, 107-108
(1896), approves a charge, no longer in use in that State today
(see the Alabama records indicated in note 119 infra) which
makes reference to the deterrent and incapacitative ends of pun
ishment. In Mississippi, the jury may be told that it should not
vote a death verdict unless it believes beyond a reasonable doubt
that the death penalty should be imposed. Shimniok v. State,
197 Miss. 179, 19 So.2d 760, 766 (1944); see the record in Yates
v. Cook, O.T. 1970, Misc. No. 5012, trial transcript, pp. 40-42. And
see Commonwealth v. Boss, 413 Pa. 35, 195 A.2d 81, 86 (1963),
in which the trial judge read the jury the Model Penal Code
standards, note 10 supra but said that it could disregard them if
it wanted to.
119 The form of instruction telling the jury not to be influenced
by considerations of sympathy, etc. is exemplified by Mathis v. New
Jersey, O.T. 1970, Misc. No. 5006, trial transcript, at pp. 653-654.
The entire Mathis charge, pp. 648-653, appears to go beyond the
usual New Jersey instruction (see State v. Reynolds, 41 N.J. 163,
195 A.2d 449, 460-461 (1963)), and has some of the aspects of
the standard Delaware instruction, note 118 supra.
The unrestricted-discretion form of submission is exemplified by
Furman v. Georgia, O.T. 1970, Misc. No. 5059, trial transcript,
pp. 117-118; Hill v. North Carolina, O.T. 1970, Misc. No. 5136,
trial transcript, pp. 91-92; Boseboro v. North Carolina, O.T. 1970,
Misc. No. 5178, trial transcript, pp. 673, 689-690.
Cases in which the jury is simply told that it has discretion or
a choice, and is handed verdict forms, are exemplified by Me-Cants
v. Alabama, O.T. 1970, Misc. No. 5009, trial transcript, p. 386;
Swain v. Alabama, O.T. 1970, Misc. No. 5327, trial transcript,
pp. 361-362; Butler v. Alabama, O.T. 1970, No. 5492, trial tran-
63
In a number of States, a jury’s death verdict may
be set aside or reduced by the trial court* 120 or by an
appellate court.121'122 But in most States it is final
and unreviewable.123
script, p. 487; Thomas v. Florida, O.T. 1970, Mise. No. 5079, trial
transcript, pp. 383-384; Marks v. Louisiana, O.T. 1970, Misc. No.
5007, trial transcript, pp. 75-76, 79; Moore v. Illinois, O.T. 1970,
Misc. No. 5056, of Record, pp. 21 trial transcript, p. 1001; Walker
v. Nevada, O.T. 1970, Misc. No. 5083, record, p. 270 (Instruction
# 51 ) ; Smith & Biggins v. Washington, O.T. 1970, Mise. No. 5034,
trial transcript, pp. 77, 84-85, 89. Transcript references, in each
case, are to the jury charge.
120 Vernon’s Mo. Stat. Ann. §546.430 (1953) ; see State v. Ander
son (Mo. Sup.), 384 S.W.2d 591, 610 (1964). The Missouri Su
preme Court’s review of the trial judge, and his of the jury, appear
in fact to he negligible. State v. Laster, 365 Mo. 1076, 293 S.W.2d
300, 304-5 (1956). There is also an intimation in State v. Mouzon,
231 S.C. 655, 99 S.E.2d 672, 676 (1957), that a trial judge in South
Carolina might have power to grant a new trial if he thought a
death sentence was improper.
121 Ariz. Rev. Stat. §13-1717(B) (1956); see State v. McGee, 91
Ariz. 101, 370 P.2d 261, 268 (1962) (enunciating an abuse-of-dis-
cretion test and finding no abuse) ; State v. Bolinson, 89 Ariz.
224, 360 P.2d 474, 478-479 (1961) (same as to judge-imposed
sentence); State v. Bamirez, 34 Ida. 623, 203 P. 279, 282-284
(1921) (enunciating an abuse-of-discretion test and finding no
abuse); Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689, 693 paras.
20-27, 703-706 (1951) (same); State v. Alvarez, 182 Neb. 358, 154
N.W.2d 746, 750-752 (1967) (same as to judge-imposed sentence) ;
Waters v. State, 87 Okla, Crim. App. 236, 197 P.2d 299, 305-
308 (1948) (reviewing prior cases); Williams v. State, 89 Okla.
Crim. App. 95, 205 P.2d 524, 541-542 (1949) (same); cf. Shus-
trom v. State, 205 Ind. 287, 185 N.E. 438, 440 (1933) (intimating
possible review of judge-imposed sentence for abuse of discretion).
It is also possible that State v. Laws, 51 N.J. 594, 242 A.2d 333
(1968), may open the door to appellate review in New Jersey, but
that appears unlikely.
122 The preceding two footnotes do not include references to the
States in which capital sentencing is done by a judge following the
recommendation of the jury. See note 101 supra. The trial judge’s
death-sentencing is not reviewable in Maryland, Merchant v. State,
217 Md. 61, 141 A.2d 487, 492 (1958) ; White v. State, 227 Md. 615,
177 A.2d 877, 879-880 (1962), rev’d on other grounds, 373 U.S. 59
64
B . T h e P o w e r Is U n c o n s t i t u t io n a l
We have described the capital sentencing practices of the
several States not for the purpose of nrging the Conrt to
draw constitutional distinctions among them, bnt rather in
order to place the Ohio and California versions of those
practices in a context that illuminates their nature. What * 123
(1963), but is in Illinois, People v. Crews, 42 I11.2d 60, 244 N.E.2d
593, 595-596 (1969) (bench trial on jury waiver). In Utah, a trial
judge may not sentence to life unless the jury returns a life verdict.
His refusal to follow that verdict is said to be reviewable, State v.
Markham, 100 Utah 226, 112 P.2d 496, 497 (1941) (finding no
abuse of discretion), but a jury’s death verdict is final and un-
reviewable, State v. Cerar, 60 Utah 208, 207 P. 597, 602 (1922).
123Alabama: Scott v. State, 247 Ala. 62, 22 So.2d 529, 531
(1945); Bice v. State, 250 Ala. 638, 35 So.2d 617, 619 (1948);
Wilson v. State, 286 Ala. 8 6 , 105 So.2d 6 6 , 71 (1958). Arkansas:
see our Maxwell brief, Appendix A infra, pp. 30-31. Connecticut:
State v. Walters, 145 Conn. 60, 138 A.2d 786, 793 (1958) (dictum).
Florida: Baker v. State, 137 Fla. 27, 188 So. 634 (1939) ; Johnson
v. State, 61 So.2d 179 (Fla. 1952) ; Baugus v. State, 141 So.2d 264,
266 (Fla. 1962); cf. Davis v. State, 123 So.2d 703, 707-708 (Fla.
1960) (judge sentence). Kansas: Cf. State v. Kilpatrick, 201 Kan.
6 , 439 P.2d 99, 108-111 (1968) (judge sentence). Kentucky: Rice
v. Commonwealth, 278 Ky. 43, 128 S.W.2d 219, 223 (1939). Mis
sissippi; Shimniok v. State, 197 Miss. 179, 19 So.2d 760, 768 (1944).
Montana: Cf. State v. Palen, 120 Mont. 434, 186 P.2d 223, 224
(1947). Nevada: State v. Butner, 67 Nev. 936, 220 P.2d 631,
634 (1950). North Carolina: See State v. Ruth, 276 N.C. 36, 170
S.E.2d 897, 901 (1969). Pennsylvania: Although the Supreme
Court does review judge-imposed death sentences, Commonwealth
v. Green, 396 Pa. 137, 151 A.2d 241 (1959), employing an abuse-
of-discretion test, Commonwealth v. Hough, 358 Pa. 247, 56 A.2d
84, 85-86 (1948), it does not review jury-imposed death sentences.
Commonwealth v. Zeitz, 364 Pa. 294, 72 A.2d 282, 285-286 (1950) ;
Commonwealth v. Edwards, 380 Pa. 52, 110 A.2d 216, 217 (1955);
Commonwealth v. Smith, 405 Pa. 456,176 A.2d 619, 620-621 (1962).
Tennessee: The trial court has no power to set aside a jury-imposed
death sentence. See Batts v. State, 189 Tenn. 1030, 222 S.W.2d
190, 193 (1946). It appears that the Supreme Court also lacks such
power, although it may recommend executive clemency. See Porter
v. State, 177 Tenn. 515,151 S.W.2d 171,174 (1941). Texas: Turner
v. State, 144 Tex. Grim. App. 327, 162 S.W.2d 978 (1942); Akins
v. State, 148 Tex. Crim. App. 523, 182 S.W.2d 723 (1944). Wash
ington: State v. White, 60 Wash.2d 551, 374 P.2d 942, 955 (1962).
65
is wrong with Ohio’s and California’s methods for selecting
the men whom they will kill is not some adventitious, local
feature of their respective procedures for the trial of
capital cases. It is the basic conception upon which those
procedures—and all others like them— rest: that law is a
dispensable commodity when juries are empowered to de
cide the question of life or death.
It would be a mistake, we think, to approach these
Crampton and McGautha cases as though the issue they
present were one of the reasonableness, or even of the fun
damental fairness, of two States’ resolutions of a problem
of criminal trial procedure. Were that the issue, of course
“ [t]olerance for a spectrum of state procedures dealing
with a common problem” might well be appropriate. Spen
cer v. Texas, 385 U.S. 554, 566 (1967). If Ohio’s or Cali
fornia’s legislature, or any other, had given considered
attention to the creation of any regular and systematic pro
cedure for selecting, among the men convicted of first-
degree murder, those who should die from those who should
live, then deference might properly be given to that mani
festation of “ the constitutional power of the States to pro
mulgate their own rules . . . to try their own state-created
crimes in their own state courts . . . .” Id., at 569.
But the problem is that neither Ohio nor California nor
any other State now maintains “ procedures” or “ rules”—
in the sense in which a regularized system of law under
stands the concepts of “procedures” and “ rules”—for tak
ing away convicted capital felons’ lives. What passes for
procedure in this most momentous matter that any tem
poral court can decide is simply institutionalized arbitrari
ness. Nice questions of judgment as to whether one lawful
system or another comports with constitutional norms is
66
altogether beside the point. The question is whether the
Constitution requires that there be a lawful system for the
choice between the penalties of life and death.
It is obvious, we believe, that conferring absolute, un
directed, arbitrary power upon jurors to make that choice
ad hoc is not a lawful system. Undoubtedly, its pervasive
use among the States is entitled to considerable weight in
adjudging the question of its constitutionality. But so,
also, is their experience in its use.
No state court that has ever construed or applied these
“ discretionary” capital sentencing statutes has been able
to regularize or rationalize them, or to discover any prin
ciple by which their operation could be made to conform
to the rule of law.124 Rather, they have universally been
treated as relegating the issue of human life to the “ abso
lute, unconditional right and power” 125 of individual ju
rors, as giving them an “ unbridled discretionary right,” 126
an “absolute discretion which should not be influenced by
the court” 127 and which must be exercised “without benefit
of guideposts, standards or applicable criteria,” 128 to “ ex
tend or withhold [life] as they see fit,” 129 “with or without
reason, arbitrarily, just as they might see fit.” 130 If there
is any other field, practice, process or operation of law,
civil or criminal, petty or enormous, in which judicial deci
124 See text and notes at notes 31-44, 56-91, 105-122 supra.
126 State v. Henry (Louisiana), note 105 supra.
126 State v. Simmons (North Carolina), note 105 supra.
127 Howell v. State (Ohio), text below note 34 supra.
128 See the California decisions cited in note 86 supra.
129Liska v. State (Ohio), note 31 supra.
130Daniels v. State (Georgia), note 115 supra.
67
sion-making is bounded and defined by terms such as these
— and invariably defined only by such terms as these—we
are unaware of it.
The terms are important for two reasons. First, they
demonstrate that the shockingly arbitrary consequences of
this fashion of administering the death penalty131—the
“ ghastly, brainless lottery” 132 in which a “ small and capri
cious selection of offenders have been put to death [while
most] persons convicted of the same crimes . . . [and many]
whose crimes were equally or more atrocious” are per
mitted to live133— are not simply administrative vagaries
or abuses. They are the very results contemplated and
expressly authorized by the capital sentencing statutes.
These consequences, as the California Supreme Court has
resignedly said, “ only [emphasize] how complete the dis
cretion of the jury or trial court is in imposing the appro
priate penalty.” 134
Second, the terms invariably used by the courts in ad
ministering these statutes clarify the issue now posed for
this Court’s decision. The States of Ohio and California
will doubtless point out, and quite correctly, that all of the
lower courts which have considered the constitutionality of
the statutes have sustained them.135 But what is important,
we think, is that those courts have not sustained the stat
131 Those consequences are described in our Maxwell brief, Ap
pendix A infra, pp. 11-24.
132 Id., p. 11.
133 Id., p. 12.
134 People v. Jones (California), note 85 supra.
135 See our Supplemental Brief for Petitioner, in Maxwell v.
Bishop, O.T. 1969, No. 13, pp. 31-32 nn. 21, 22.
utes on the theory that they are non-arbitrary; they have
sustained them despite the statutes’ recognized arbitrari
ness. When decisions not condemning but applying these
statutes can treat them as a “ legal vacuum,” 136 as creating
a decision-making process “ so nebulous as to be incapable
of definition,” 137 the Due Process question could hardly be
more baldly put.
We have developed in our Maxwell brief the reasons and
authorities which lead us to conclude that the Due Process
question can have only one answer:—that the arbitrary
capital sentencing power which these statutes confer upon
juries is unconstitutional because it flouts the basic purpose
of Due Process, “ to protect a person against having the
Government impose burdens upon him except in accordance
with the valid laws of the land.” Giaceio v. Pennsylvania,
382 U.S. 399, 403 (1966).138 We will not repeat that argu
ment here. However, in view of the differences, in some
matters of detail, between the Arkansas statute involved
in Maxwell, Ohio’s, California’s, and those of other States,
we think it necessary to add three short points. The essence
of the points is that these statutory differences are consti
tutionally immaterial; and that the statutes, one and all,
violate the Due Process Clause.
First, we think it makes no conceivable difference, for
Due Process purposes, whether a statute poses the alter
native penalties of life and death in either-or form (as does
California’s) or in death-unless-the-jury-recommends-mercy
form (as do Ohio’s and Arkansas’ ).139 In either event, the
136 People v. Terry (California), note 88 supra.
137 Baugus v. State (Florida), note 106 supra.
138 See our Maxwell brief, Appendix A infra, pp. 45-46.
139 See text and notes at notes 102-104 supra.
69
selective process is exactly the same, and the jury’s power
is identical. “ Kill him if you want” and “ Kill him, but
you may spare him if you want” mean the same thing in
any man’s language.140 The differing formulations may
have differing state-lawT consequences—with regard, for ex
ample, to the application of the requirement of jury una
nimity, or the effect of a “ silent verdict”—and, of course,
many human lives have been made to turn upon those
details. But the federal constitutional issue does not.
What is significant, so far as the constitutional issue is
concerned, is that a selective process of literally vital im
portance is occurring, and is equally authorized by all of
these verbal forms. Pursuant to that process, juries in
thousands of cases choose, from among thousands of per
sons convicted of “ capital” crimes, the considerably smaller
number who must actually die. That number is fewer than
one-half in California,141 probably fewer than one-quarter
in Ohio,142 and probably fewer still in most other States.143
So what is involved in a “ recommendation of mercy,” just
as in an either-or choice, is not “ mercy” at all. It is not the
sort of dispensation from the normal course of justice that
“mercy” suggests. Rather, it is the normal course of jus
tice, the routine and invariable practice, for determining
which “ capital” offenses shall be capitally punished. As
such, it must be constitutionally lawful, whatever it be
called.
140 See State v. Reynolds, 41 N.J. 163, 195 A.2d 449, 460-462
(1963).
141 See text and note at note 92 supra.
142 See text and note at note 45 supra.
143 See Appendix B to our Maxwell brief, Appendix A infra,
pp. 24a-34a.
70
Second, we think it makes no difference, for Due Process
purposes, whether the jury’s “ absolute discretion” is sup
posed to be exercised upon the basis of the evidence (as in
Ohio) or on a broader basis (as in California and Arkan
sas).144 Circumscription of the jury’s attention to the evi
dence, without telling them what to look for in the evidence
or how to appraise it, hardly satisfies the requirement of
the rule of law. “ It is scarcely consonant with ordered lib
erty that the amenability of an individual to punishment
should be judged solely upon the sum total of badness . . .
which can be found, or inferred, from a backward looking
appraisal of his trial record.” 145
Unguided by legal principles, standards or directives
of general applicability, the jury (or any individual juror)
can do no more with the evidence than to give it some
wholly private significance.
“ As a result the jury may conceivably rest the death
penalty upon any piece of introduced data or any one
factor in [the trial record]. . . . The precise point
which prompts the penalty in the mind of any one
juror is not known to us and may not even be known
to him. Yet this dark ignorance must be compounded
twelve times and deepened even further by the recog
nition that any particular factor may influence any two
jurors in precisely the opposite manner.” 146
144 See text and notes at notes 107-111 supra.
145 Note, The Void-for-Vagueness Doctrine in the Supreme Court,
109 U. Pa. L. Rev. 67, 81 (1960).
146 People v. Hines, 61 Cal.2d 164, 390 P.2d 398, 402, 37 Cal.
Rptr. 622 (1964). The court is speaking of the California penalty
trial, but its observation is equally applicable here.
71
Plainly, it is the purpose of the rule of law— of the fun
damental Anglo-American concept of the law of the land—
to forbid just such a decisional process. If it were consti
tutional, men could be governed without laws, only trials.
The constitutionally allowable rule of evidence in our sys
tem is to support the application of laws, not to excuse
their absence. Cf. Bouie v. City of Columbia, 378 U.S.
347, 349-350 (1964). So Ohio’s practice of giving its juries
“ absolute discretion” to sentence men to die “ in view of all
the facts and circumstances disclosed by the evidence” 147
falls far short of Due Process requirements.
Finally, we attach no constitutional significance to the
fact that California (unlike Ohio and Arkansas) permits
the trial judge to reduce a jury-imposed death sentence.
The jury’s decision remains nonetheless decisive, because,
if it decides that the defendant should live, he lives. It
remains nonetheless lawless because, although the trial
judge may undo it, he may not review it. Notwithstanding
whatever power California trial judges have, Dennis Coun
cle McGrautha will go to his death, if he dies, as the result
of an unreviewed and unreviewable exercise of arbitrary
power by his sentencing jury.
It would be unworldly to suppose that California trial
judges do or will set aside a jury’s death verdict except in
the rarest instances. But even if this were not so, the
judges’ own power to decide why and when they will set it
aside is cut from the same cloth as the jury’s. It is, once
again, a matter of “ absolute discretion,” limitless, unde
fined, uncompassable. We pretermit the question whether
capital sentencing of this sort by a judge, without the inter
147Howell v. State (Ohio), text below note 34 supra.
72
vention of a jury, would be constitutional.148 As a supposed
corrective of the lawlessness of capital jury sentencing, it
is obviously inadequate. To be sure, it increases—probably
in very small measure—the defendant’s chances of living;
but it does not do so according to any regular or lawful
principles. We do not believe that the constitutionality of
sentencing a man to play Russian Roulette depends upon
the number of times he is required to pull the trigger.
III.
The Issue o f the Single-Verdict Capital Trial.
With regard to the constitutionality of the single-verdict
capital trial (an issue presented only in the Crampton
case), we have little to add to what we said in our Maxwell
brief, Appendix A infra, pp. 66-78. One complication does
arise from the Ohio rule, unparalleled in Arkansas, that on
a trial upon a plea of not guilty to a capital charge, the
defendant is not permitted to introduce background evi
dence “ directed specifically toward a claim for mercy.”
Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214 (1935)
(Court’s Syllabus, 197 N.E., at 214).149
If the Ashbrook syllabus meant what it appears to say,
then Ohio practice might not present that “undeniable ten
148 See note 15, para. 2 supra.
149 See text at note 32 supra. States which employ the single
verdict trial procedure on a plea of not guilty in capital cases are
divided on the question whether the defendant may present back
ground evidence going solely to the issue of penalty. Compare
State v. Owen, 73 Ida. 394, 253 P.2d 203, 207-209 (1953), and
State v. Mount, 30 N.J. 195, 152 A.2d 343, 353-356 (1959), admit
ting such evidence, with State v. Narten, 99 Ariz. 116, 407 P.2d
81, 86-87 (1965) ; Commonwealth v. McNeil, 328 Mass. 436 104
N.E.2d 153, 156-157 (1952), excluding it.
73
sion” 150 between constitutional rights—that is, between the
privilege against self-incrimination and the right to be
heard on the life-or-death question of penalty—that we
urged in Maxwell as a ground for invalidating Arkansas’
single-verdict trial procedure. For, upon the assumption
that Ohio law entirely forbade any evidence going to pen
alty, a capital defendant would be pretty much in the same
position whether he exercised his privilege or not. Either
way, he would be prevented from presenting to the sen
tencing jurors evidence other than the circumstances of the
crime themselves, bearing on the question whether he “ was
fit to live.” 151 152 Such a state of the law would doubtless pre
sent its own constitutional problems; but they would not
be the problem briefed and argued in Maxwell and upon
which review was granted in this Crampton case.
However, the Ashbrook syllabus means no such thing.
For the court in Ashbrook recites, with apparent approval,
that the trial judge in that case “ did permit a great deal
of evidence indicating the character of the surroundings
of the [defendant] during his previous life, that he was
placed in orphan homes . . . , ” etc. (197 N.E., at 215). And
other Ohio cases make it indisputably clear that the law
of that State does not purport to restrict the jury’s penalty
determination to consideration only of the facts surround
ing the criminal offense, but permits consideration also of
“ the other circumstances surrounding this defendant.” 153
150Simmons v. United States, 390 U.S. 377, 394 (1968).
161 Witherspoon v. Illinois, 391 U.S. 510, 521 n. 20 (1968).
152 This quotation is from the jury charge approved in State v.
Caldwell, text at note 37 supra, and a number of subsequent cases.
See generally text and notes at notes 35-39 supra; and see the
court’s discussion relevant to “ evidence of the environment of the
defendant in the Caldwell case, supra, 21 N.E.2d, at 315.
74
What the AshbrooJc case appears to hold, simply, is that
the trial judge has considerable discretion in limiting the
latitude allowed to the defendant in the presentation of
background evidence.
But, if this is so, it does not at all reduce the tension
between the defendant’s self-incrimination privilege and
his right to be heard on the issues that Ohio law makes
relevant to the jury’s crucial sentencing choice. On the con
trary, it heightens that tension. For the more the trial
court is empowered to restrict other sorts of evidence rela
tive to the defendant’s background, the more vital becomes
his own testimony to the jury. For this reason, all that we
said in Maxwell applies with the same or added force in
Ohio.
IV.
The Question of Retroactivity.
If, as we have urged, the Court rules in petitioners’ favor
upon either of the issues presented herein, that ruling
should be made fully retroactive to the extent of invali
dating the sentences of death imposed upon all condemned
men tried under procedures which the Court’s decision
holds unconstitutional. See Witherspoon v. Illinois, 391
U.S. 510, 523 n. 22 (1968). We stress that only the sen
tences, not the convictions, of these men would be affected.
A. The “ Standards” Issue
The claim of unconstitutionality of standardless and ar
bitrary capital sentencing power (Part II, supra) is, by its
very nature, directed only against the sentencing process
and its fatal result. Vindication of the claim would not
75
affect any man’s conviction: even the present petitioners
would be entitled to nothing more than the vacating of their
death sentences. And all other men condemned to die under
the same unconstitutional procedures would be entitled to
the same relief, whatever the dates of their senteneings.
Two considerations compel this conclusion. First, the
absence of constitutionally requisite standards for capital
sentencing obviously “undermined ‘the very integrity of
the . . . process’ that decided [each man’s] . . . fate.”
Witherspoon v. Illinois, supra, 391 U.S., at 523 n. 22. In
deed, one could hardly conceive a constitutional error that
would more fundamentally attaint “ ‘the basis of fair hear
ing and trial’ ” 153 of the life-or-death penalty determination
than this utter lawlessness with regard to the criteria—
if there are criteria—by which the determination is made.
Second, the States have absolutely no legitimate interest
in killing these men. Where this Court has denied retro
activity to its constitutional decisions affecting individual
rights in the criminal process, it has always been upon the
recognition that some considerable interest of law enforce
ment would be adversely affected if the decisions were
retroactively applied. E.g., Linkletter v. Walker, 381
U.S. 618 (1965); Johnson v. New Jersey, 384 U.S. 719
(1966). But the only legitimate law enforcement concern
that could even speculatively be supposed to be served by
executing a man instead of imprisoning him for life is con
cern with general deterrence.154-155 Because deterrence
153 Roberts v. Bussell, 392 U.S. 293, 294 (1968).
164 The legitimate aims of the criminal law are (1) moral rein
forcement or reprobation, (2 ) isolation, reformation, rehabilitation
of the offender, and (3) deterrence. “Modern penological thought
discounts retribution in the sense of vengeance.” Royal Commis-
76
looks to the future, no deterrent interest is jeopardized by
vacating the death sentences of those men who committed
their offenses and were sentenced to death in the past—
and who, so far as the non-mandatory capital sentencing
laws of all the States are concerned, might as readily have
been sentenced to life imprisonment, apparently (under the
theory of these laws) without ill effect upon deterrence. * 134
sion on Capital Punishment 1949-1953, Report (H.M.S.O. 1953)
[Cmd. 8932] 17. Accord: Williams v. New York, 337 U.S. 241,
248 (1949); Morissette v. United States, 342 U.S. 248, 251 (1952);
People v. Love, 53 Cal.2d 843, 350 P.2d 705, 713 n. 3, 3 Cal. Rptr.
665 (1960); People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367,
134 N.E.2d 197, 201-202 (1956). So also does the Eighth Amend
ment, which now governs the States, Robinson v. California, 370
U.S. 660 (1962) ; for the propriety of vengeance, if recognized,
would authorize all cruel and unusual punishments.
Moral reinforcement or reprobation doubtless requires that the
most serious crimes be punished most seriously. But, obviously,
“ Grading punishments according to the severity of the crime does
not require that the upper limit of severity be the death penalty.”
Bedau, The Death Penalty in A merica (1964), 268. The rep
robation concern, therefore, hardly needs or warrants capital
punishment. See Ancel, The Problem of the Death Penalty, in
Sellin, Capital Punishment (1967), 3, 16-17, 19. In any event,
retroactive application of a decision holding unconstitutional the
procedures for selecting those men who are to be capitally pun
ished, and leaving the States free to restore capital punishment
to the statute books under constitutionally satisfactory selective
procedures, could have no possible effect upon the interest of repro
bation.
“ [R] eformation . . . can have no application where the death
penalty is exacted.” Royal Commission on Capital Punish
ment, op. cit. supra, at 18. As for isolation, the evidence is clear
and overwhelming that, for no class of criminals, is death required
to render them socially safe. The lesser alternative of imprison
ment is ample. Sellin, The Death Penalty (1959), published as
an appendix to A merican Law Institute, Model Penal Code,
Tent. Draft No. 9 (May 8 , 1959), 69-79; K oestler, Reflections
on Hanging (Amer. ed. 1957), 144-152; Bedau, op. cit. supra,
at 395-405; Bedau, Death Sentences in New Jersey 1907-1960, 19
Rutgers L. Rev. 1, 47 (1964).
This, notably, is the dimension in which our contemporary
penology differs radically from the penology of two hundred or
77
If men are to be deterred by threat of the death penalty
from committing crimes in the future, it will be because
the States in the future, at the time when those crimes
would have been committed, will have enacted statutes im
posing the death penalty under constitutional procedures
that conform to this Court’s decision in the present cases.
It will not be because men previously condemned to die
under unconstitutional procedures have been executed.
The Court gave recognition to precisely identical consid
erations in denying retroactivity to its own decisions whose
objective was deterrence of police illegality in LinJcletter
v. Walker, supra, and Johnson v. New Jersey, supra. The
logic of LinJcletter and Johnson, applied to a constitutional
decision whose only effect is to invalidate sentences of
death, compels the obverse conclusion: full retroactivity.
See Witherspoon v. Illinois, supra.
even one hundred years ago. In earlier times, imprisonment was
not a safe, humane or economically feasible alternative to capital
punishment. See 1 Radzinowicz, A H istory of English Criminal
Law and Its Administration From 1750 (1948), 31-33; Bedau,
The Courts, The Constitution, and Capital Punishment, 1968
Utah L. Rev. 201, 232 (1968). Today it is. The conclusion was
drawn by former Attorney General Ramsey Clark in these words:
“There was a time when self-preservation necessitated
[the] . . . imposition [of the death penalty] . . . . Later in
ordinate sacrifices by the innocent would have been required
to isolate dangerous persons from the public. Our civilization
has no such excuse.”
Statement by Attorney General Ramsey Clark, Before the Su-
eommittee on Criminal Laws and Procedures of the Senate Judici
ary Committee, on S. 1760, To Abolish the Death Penalty, July 2,
1968, Department of Justice Release, p. 2.
165 By the text, we do not mean to concede the deterrent efficacy
of the death penalty. We simply assume it arguendo for present
purposes.
78
B. The Single-Verdict Trial Issue
The claim of unconstitutionality of the single-verdict
capital trial procedure, upon the grounds that it creates an
impermissible tension between the privilege against self
incrimination and the capital defendant’s right to he fairly
heard on the life-or-death question of penalty (Part III,
supra), presents a somewhat more complex retroactivity
problem. This is so because four classes of persons are
potentially affected by the vindication of such a claim.
With regard to three of those classes, the retroactivity
question is relatively easy; but, as regards the fourth, it is
admittedly vexing.
The first class consists of capital defendants who, at
their single-verdict capital trial, exercised their consti
tutional privilege and were sentenced to death. As to them,
full retroactivity is appropriate under the reasoning of the
preceding Subpart IV (A ), dealing with the standards
issue. The harm that they have suffered as a result of the
unconstitutionality of the single-verdict trial is the impo
sition of a sentence of death that was not “ fairly and reli
ably determined” ;156 only the death sentence is affected;
surely the unreliability constitutes a “ serious flaw” 157 call
ing for retroactivity; and, as we have seen, the States have
no legitimate interest in enforcing these unreliably deter
mined death sentences.
The second class consists of persons tried for capital
crimes under the single-verdict trial procedure who exer
cised their privilege but were not sentenced to death. They
present no retroactivity problem, since the harmless error
166 Jackson v. Denno, 378 U.S. 368, 389 (1964).
157 Roberts v. Russell, 392 U.S. 293, 294 (1968).
79
doctrine amply disposes of their cases.158 The only harm
that they might have suffered was the death penalty that
was not in fact imposed upon them.
The third class involves defendants tried for capital
crimes who foreswore their privilege, testified, were con
victed and were sentenced to life imprisonment. They were
doubtless denied a constitutional trial, to the extent that
their testimony was compelled by their wish to address the
jury on the question of penalty and was incriminating. But
retroactivity in such cases seems to be denied by the logic
of Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966) ;
and since conviction, not merely sentence, is in question
here, there appears to be no reason why Tehan should not
be followed.
The fourth class— defendants tried under the single-ver
dict procedure who foreswore their privilege, testified, were
convicted, and were sentenced to death—is more trouble
some. Their convictions, assuredly, should be insulated
from retroactive invalidation by Tehan, as are those of
defendants sentenced to life. But their death sentences are
another matter. For the States have no more interest in
executing those death sentences, following constitutional
invalidation of the procedures under which they were
imposed, than in executing any other particular men for
crimes past. See Subpart IV (A ) supra.
Of course, the constitutional harm suffered by these men
relates to conviction rather than to penalty as such. But
it is equally plain that the penalty rests upon the conviction
and is authorized only by it. If the conviction, although
constitutionally infirm, is retroactively unassailable under
158Harrington v. California, 395 U.S. 250 (1969).
80
Tehan, does it necessarily follow that the penalty of death
is similarly insulated from invalidation?
We think not. For, with utmost respect, it would be apall-
ing if human life depended upon the fine fabric of this
Court’s largely discretionary retroactivity doctrines.
Those doctrines, and the often subtle distinctions that mark
them, are unquestionably a desirable accommodative mech
anism in the Court’s evolution of constitutional law. With
out them, the Court would be placed in the difficult position
of choosing between a stagnant Constitution and a perpet
ually disruptive one. Proper developments in constitu
tional law could come only at the cost of upsetting reliance
interests entitled to the Court’s respect. This consideration
has both occasioned the Court’s pronouncement of princi
ples of non-retroactivity and tortured their contours. For
the non-retroactivity concept is inveterately pragmatic, and
hardly lends itself to satisfactory doctrinal articulation.
Nor need it do so, when human life is not in the balance.
Pragmatic accommodation, most assuredly, is a necessary
and proper concern in any system of temporal law. But
pragmatic accommodations resulting in the extinction of
life is neither necessary nor proper. It is unnecessary be
cause, as we have said, no reliance interest of the States
will be adversely affected if the lives of persons uncon
stitutionally convicted and sentenced to death are not ex
tinguished. It is improper both because the extreme value
of human life ought not be compromised by mere prag
matism, however important in other affairs, and because
to admit of the possibility of such a compromise by appli
cation of the non-retroactivity doctrine would impose pre
cisely the kind of pressures upon the Court that the non
retroactivity doctrine is designed to avoid. For, in deciding
whether or not to make a constitutional decision generally
81
retroactive, the Court should not have to be burdened by
the strain of the deathful implications of that determi
nation for an unknown number of capitally sentenced men.159
“ The difference between capital and non-capital offenses
is the basis of differentiation in law in diverse ways in
which the distinction becomes relevant.” Williams v. Geor
gia, 349 U.S. 375, 391 (1955). See, e.g., Hamilton v. Ala
bama, 368 U.S. 52 (1961). So we think that the Court may
appropriately deny retroactivity whose effect would be to
release from conviction and consequent imprisonment per
sons who have been unconstitutionally convicted, while al
lowing retroactivity as the grounds for invalidation of
death sentences imposed upon those convictions.
We recognize that the Court has not taken this course
in the past. See Johnson v. New Jersey, supra; Stovall v.
Denno, 388 U.S. 293 (1967). But, so far as we are aware,
separate consideration of the questions of retroactivity ap
plicable to conviction and to sentence was not urged upon
the Court in those death cases. They are distinguishable
from the single-verdict aspect of the present case, of
course, in that the constitutionally invalid procedures there
in question had no particularized application only in death
cases. Here, by contrast, death sentences have been im
posed upon convictions that are unconstitutional (upon the
premise that the single-verdict argument prevails) because
defendants were compelled to incriminate themselves pre
cisely by a procedure designed by the States to secure
death sentences. That distinction might be drawn, but we
do not urge it. Rather, we think that any sentence of death
supported by a conviction under procedures later held to
be unconstitutional cannot constitutionally be executed.
159 See Stein v. New York, 346 U.S. 156, 196 (1953).
For these reasons retroactivity should be allowed even
in the cases of persons who testified at their single-verdict
trial, to the extent— and only to the extent— of setting aside
their death sentences. Retroactive application of the con
stitutional rules announced herein to all other classes of
death sentences is, as we have said, quite clear.
CONCLUSION
Both standardless capital jury sentencing and the
single-verdict capital trial procedure should be held un
constitutional. Those constitutional rulings should be
retroactively applied to the extent of invalidating all
death sentences obtained by procedures not in conform
ity with them.
Respectfully submitted,
Jack Greenberg
James M. Nabrit, III
J ack H immelstein
10 Columbus Circle, Suite 2030
New York, New York 10019
Michael Meltsner
Columbia University School of Law
New York, New York 10027
A nthony G. A msterdam
Stanford University Law School
Stanford, California 94305
Attorneys for the N.A.A.C.P. Legal
Defense and Educational Fund,
Inc., and the National Office for
the Bights of the Indigent
A P P E N D I C E S
APPENDIX A
I n the
iiujjmnp ©rntrt nf tlje Ittitph t̂atpjs
October T erm, 1968
No. 622
W illiam L. Maxwell,
Petitioner,
— v.—
O.E. B ishop, Superintendent of
Arkansas State Penitentiary,
Respondent,
ON W RIT OP CERTIORARI TO THE UNITED STATES
COURT OP APPEALS POR TH E EIGH TH CIRCUIT
BRIEF FOR PETITIONER
J ack Greenberg
James M. Nabrit, III
Norman C. A maker
M ichael Meltsner
J ack H immelstein
E lizabeth D uB ois
10 Columbus Circle
New York, New York 10019
George H oward, J r .
329% Main Street
Pine Bluff, Arkansas 71601
A nthony G. A msterdam
3400 Chestnut Street
Philadelphia, Pennsylvania 19104
Attorneys for Petitioner
I N D E X
Opinions Below ........... 1
Jurisdiction .......................................................................... 2
Questions Presented ........................................................... 2
Constitutional and Statutory Provisions Involved....... 3
Statement .............. -............................................................... 3
Summary of Argum ent............................ 6
A rgument
Introduction: The Pact and Implications of
Arbitrary Capital Sentencing ............................... 11
I. Arkansas’ Practice of Allowing Capital Trial
Juries Absolute and Arbitrary Power to Elect
Between the Penalties of Life or Death for the
Crime of Rape Violates the Rule of Law Basic
to the Due Process Clause ............................ 24
A. The Power Given Arkansas Juries is Es
sentially Lawless ............................................... 27
B. The Grant of Lawless Power in Capital
Sentencing is Unconstitutional....................... 45
II, Arkansas’ Single-Verdict Procedure for the
Trial of Capital Cases Violates the Constitution 66
Conclusion................................................................................. 79
PAGE
11
A ppendix A
Evidence.and Findings Below Relating to Racial
Discrimination by Arkansas Juries in the Exer
cise of Their Discretion to Sentence Capitally
for the Crime of Rape ........................................... l a
A ppendix B
Available Information Relating to the Propor
tion of Persons Actually Sentenced to Death,
Among Those Convicted of Capital Crim es....... 24a
A ppendix C
Manner of Submission of the Death-Penalty
Issue at Petitioner Maxwell’s Trial ................... 35t
PAGE
I l l
TABLE OF AUTHORITIES
Cases: page
Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954)
28, 30, 69
Allison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942) 31
Amos v. State, 209 Ark. 55, 189 S.W.2d 611 (1945) .... 69
Andrews v. United States, 373 U.S. 334 (1963) ........... 71
Ball v. State, 192 Ark. 858, 95 S.W.2d 632 (1936) ....... 31
Baxstrom v. Herrold, 383 U.S. 107 (1966) ................. 45, 53
Behrens v. United States, 312 F.2d 223 (7th Cir. 1962),
aff’d, 375 U.S. 162 (1963) ...........................................71,72
Bevis v. State, 209 Ark. 624, 192 S.W.2d 113 (1946) .... 68
Bieard v. State, 189 Ark. 217, 72 S.W.2d 530 (1934) .... 68
Black v. State, 215 Ark. 618, 222 S.W.2d 816 (1949) ....31, 68
Blake v. State, 186 Ark. 77, 52 S.W.2d 644 (1932) ......... 30
Bonds v. State, 240 Ark. 908, 403 S.W.2d 52 (1966) 69
Boone v. State, 230 Ark. 821, 327 S.W.2d 87 (1959) 29
Boykin v. Alabama, O.T. 1968, No. 642 ...............7,12, 20, 22
Brady v. Maryland, 373 U.S. 83 (1963) ............. ......... 25, 27
Brown v. Board of Education, 347 U.S. 483 (1954) ..... 25
Browning v. State, 233 Ark. 607, 346 S.W.2d 210 (1961) 69
Bruton v. United States, 391 U.S. 123 (1968) ............. 36, 76
Burgett v. Texas, 389 U.S. 109 (1967) ........................... 75
Burns v. State, 155 Ark. 1, 243 S.W. 963 (1922) .......28, 30
Carson v. State, 206 Ark. 80, 173 S.W.2d 122 (1943) .... 31
Chambers v. Florida, 309 U.S. 227 (1940) ................ ...34,53
Cheney v. State, 205 Ark. 1049, 172 S.W.2d 427 (1943) 31
Clark v. State, 135 Ark. 569, 205 S.W. 975 (1918) ....... 69
Cline v. Frink Dairy Co., 274 U.S. 445 (1927) ..... ......... 47
Cole v. Arkansas, 333 U.S. 196 (1948) ........................... 49
Coleman v. United States, 334 F.2d 558 (D.C.Cir. 1964) 72
IV
Cook v. State, 225 Ark. 1003, 287 S.W.2d 6 (1956) ....... 31
Couch v. United States, 235 F.2d 519 (D.C.Cir. 1956) .... 72
Cox v. Louisiana, 379 U.S. 536 (1956) ...............25,47, 55, 58
Crowe v. State, 178 Ark. 1121, 13 S.W.2d 606 (1929) .... 28
Curtis v. State, 188 Ark. 36, 64 S.W.2d 86 (1933) ....... 68
Davis v. State, 155 Ark. 245, 244 S.W. 750 (1922) .......31, 34
Dillon v. State, 222 Ark. 435, 261 S.W.2d 269 (1953) ......67,
68
Dixon v. State, 189 Ark. 812, 75 S.W.2d 242 (1934) ..... . 68
Dombrowski v. Pfister, 380 U.S. 479 (1965) _________47
Duncan v. Louisiana, 391 U.S. 145 (1968) ...................... 36
Edens v. State, 235 Ark. 178, 359 S.W.2d 432 (1962) .... 67
Edwards v. State, 208 Ark. 231, 185 S.W.2d 556 (1945) 68
Ezell v. State, 217 Ark. 94, 229 S.W.2d 32 (1950) ......... 31
Fay v. Noia, 372 U.S. 391 (1963) .............................10,32,77
Ferguson v. Georgia, 365 U.S. 570 (1961) .......... ............ 73
Fielder v. State, 206 Ark. 511, 176 S.W.2d 233 (1943).... 68
Fields v. State, 203 Ark. 1046, 159 S.W.2d 745 (1942).... 34
Frady v. United States, 348 F.2d 84, (D.C.Cir. 1965) .... 78
Freedman v. Maryland, 380 U.S. 51 (1965) ................... 47
Gadsden v. United States, 223 F.2d 627 (D.C.Cir. 1955) 72
Gaines v. State, 208 Ark. 293, 186 S.W.2d 154 (1945).... 68
Gerlach v. State, 217 Ark. 102, 229 S.W.2d 37 (1950) .... 69
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ___9, 59, 60, 61
Gilchrist v. State, 100 Ark. 330, 140 S.W. 261 (1911) .... 35
Gonzalez v. United States, 348 U.S. 407 (1955) ......... 49
Green v. State, 51 Ark. 189, 10 S.W. 266 (1889) ........... 35
Green v. United States, 365 U.S. 301 (1961) ................. 73
Green v. United States, 313 F.2d 6 (1st Cir. 1963), cert,
denied 372 U.S. 951 (1963) ............. ............................. 71
PAGE
V
Griffin v. California, 380 U.S. 609 (1965) ............. 72
Griffin v. Illinois, 351 U.S. 12 (1956) ..................... ........ 53
Hadley v. State, 205 Ark. 1027, 172 S.W.2d 237 (1943) 31
Hague v. C.I.O., 307 U.S. 496 (1939) ............................... 5
Ham v. State, 179 Ark. 20, 13 S.W.2d 805 (1929) ....... . 68
Hamilton v. Alabama, 368 U.S. 52 (1961) ................... - 34
Harvey v. State, 53 Ark. 425, 14 S.W. 645 (1890) .... . 34
Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959)....28, 31
Herndon v. Lowry, 301 U.S. 242 (1937) ............... ......... 47
Hildreth v. State, 215 Ark. 808, 223 S.W.2d 757 (1949) 31
Hill v. United States, 368 U.S. 424 (1962) ............. ......71, 72
Hodges v. State, 210 Ark. 672,197 S.W.2d 52 (1946)...29, 31
Holcomb v. State, 218 Ark. 608, 238 S.W.2d 505 (1951) 68
Holden v. Hardy, 169 U.S. 366 (1898) ........................... 49
House v. State, 230 Ark. 622, 324 S.W. 112 (1959) ....... 35
Hudspeth v. State, 188 Ark. 323, 67 S.W.2d 91 (1934) 31
In re Anderson,------ Cal.2d------- , 447 P.2d 117, 73 Cal.
Rptr. 21 (1968) ........................................ r.42, 45,46, 48, 49,
50, 51, 53, 56
In re Gault, 378 U.S. 1 (1967) ...................... ................ - 49
Irvin v. Dowd, 366 U.S. 717 (1961) ............... ................. 77
Jackson v. Denno, 378 U.S. 368 (1964) .............10, 36, 74, 75
Jenkins v. State, 222 Ark. 511, 261 S.W.2d 784 (1953) 35
Jenkins v. United States, 249 F.2d 105 (D.C. Cir. 1957) 72
Jones v. State, 204 Ark. 61, 161 S.W.2d 173 (1942) ..... 28
Landman v. Peyton, 370 F.2d 135, 141 (4th Cir. 1966).... 27
Long v. State, 240 Ark. 687, 401 S.W.2d 578 (1966) .... 69
Louisiana v. United States, 380 U.S. 145 (1965) ......... 5, 47
Lovely v. United States, 169 F.2d 386 (4th Cir. 1968).... 74
PAGE
VI
McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955) 34
McGraw v. State, 184 Ark. 342, 42 S.W.2d 373 (1931).... 68
McGuire v. State, 189 Ark. 503, 74 S.W.2d 235 (1934) 67
Malloy v. Hogan, 378 U.S. 1 (1964) ...............................10, 72
Marks v. State, 192 Ark. 881, 95 S.W.2d 634 (1936) .... 31
Marshall v. United States, 360 U.S. 310 (1959) ........... 74
Matter of Sims and Abrams, 389 F.2d 148 (5th Cir.
1967) ........................................................................ ......... 4a
Maxwell v. Bishop, 385 U.S. 650 (1967) ......................... 6
Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963) .....1,
4, 7a
Maxwell v. Stephens, 229 F. Supp. 205 (E.D.Ark. 1964)
aff’d 348 F.2d 325 (8th Cir. 1965), cert, denied, 382
U.S. 944 (1965) ..............................................................2 ,4
Mempa v. Rhay, 389 U.S. 128 (1967) ...........................27, 71
Moore v. State, 227 Ark. 544, 299 S.W.2d 838 (1957) .... 69
Moorer v. South Carolina, 368 F.2d 458 (4th Cir.
1966) .................................................................................. 4a
Morgan v. United States, 304 U.S. 1 (1938) ................. 49
N.A.A.C.P. v. Button, 371 U.S. 415 (1963) .......9,35,47,59
Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959) ......31, 35
Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949) 30
Niemotko v. Maryland, 340 U.S. 268 (1951) ................. 5
Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963) .... 69
Palmer v. State, 213 Ark. 956, 214 S.W.2d 372 (1948).... 31
People v. Hines, 61 Cal.2d 164, 390 P.2d 398, 37 Cal.
Rptr. 622 (1964) ................................. ..................... 41,51,72
Powell v. Alabama, 287 U.S. 45 (1932) ........................... 34
Powell v. State, 149 Ark. 311, 232 S.W. 429 (1921) ___ 67
PAGE
V ll
PAGE
Rand v. State, 232 Ark. 909, 341 S.W.2d 9 (1960) ....... 69
Ray v. State, 194 Ark. 1155, 109 S.W.2d 954 (1937) ..... 28
Rayburn v. State, 200 Ark. 914, 141 S.W.2d 532 (1940) 67
Rhea v. State, 226 Ark. 664, 291 S.W.2d 521 (1956) .... 69
Rideau v. Louisiana, 373 U.S. 723 (1963) ..................... 36
Rinaldi v. Yeager, 384 U.S. 305 (1966) ........................ 53
Rorie v. State, 215 Ark. 282, 220 S.W.2d 421 (1949) .... 31
Rosemond v. State, 86 Ark. 160, 110 S.W. 229 (1908) .... 35
Sanders v. United States, 373 U.S. 1 (1963) .... .............. 6
Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1956) ....28,
30
Shuttlesworth v. City of Birmingham, 382 U.S. 87
(1965) ........................................................................... 58
Simmons v. United States, 390 U.S. 377 (1968) .........73,76
Sims v. Georgia, 385 U.S. 538 (1967) ......................... ..... 76
Skaggs v. State, 234 Ark. 510, 353 S.W.2d 3 (1962) ...... 67
Skinner v. Oklahoma, 316 U.S. 535 (1942) .......9,10,27,54,
61, 65, 71, 75
Smith v. Cahoon, 283 U.S. 553 (1931) ...... ...................... 47
Smith v. State, 194 Ark. 1041, 110 S.W.2d 24 (1937) .... 31
Smith v. State, 205 Ark. 1075,172 S.W.2d 248 (1943).... 28
Smith v. State, 230 Ark. 634, 324 S.W.2d 341 (1959) ..... 28,
30, 31
Specht v. Patterson, 386 U.S. 605 (1967) ....10, 27, 49, 70, 75
Spencer v. Texas, 385 U.S. 554 (1967) .........................75, 76
State v. Peyton, 93 Ark. 406, 125 S.W. 416 (1910) .... 34
Stein v. New York, 346 U.S. 156 (1952) ................ 34
Thompson v. City of Louisville, 362 U.S. 199 (1960) .... 45
Tigner v. Texas, 310 U.S. 141 (1940).............................. 61
Townsend v. Burke, 334 U.S. 736 (1948) ................ 77
Turnage v. State, 182 Ark. 74, 30 S.W.2d 865 (1930) .... 31
V lll
United States v. Behrens, 375 U.S. 162 (1963) .....25, 71, 72
United States v. Beno, 324 F.2d 582 (2d Cir. 1963) ..... 74
United States v. Curry, 358 F.2d 904 (2d Cir. 1965) .... 78
United States v. Jackson, 390 U.S. 570 (1968) .....10, 73, 77
United States v. Johnson, 315 F.2d 714 (2d Cir. 1963)
cert, denied, 375 U.S. 971 (1964) .... ............. ............ 71, 72
United States v. National Dairy Prods. Corp., 372 U.S.
29 (1963) ..... ........................ ............................................ 60
United States ex rel. Rucker v. Myers, 311 F.2d 311
(3rd Cir. 1962), cert, denied, 374 U.S. 844 (1963) .... 74
United States ex rel. Scoleri v. Banmiller, 310 F.2d 720
(3rd Cir. 1962), cert, denied, 374 U.S. 828 (1963) .... 74
Walton v. State, 232 Ark. 86, 334 S.W.2d 657 (1960) .... 28
Ward v. State, 236 Ark. 878, 370 S.W.2d 425 (1963) .... 69
Watson v. City of Memphis, 373 U.S. 526 (1963) ....... 25
Weakley v. State, 168 Ark. 1087, 273 S.W. 374 (1925).... 69
Webb v. State, 154 Ark. 67, 242 S.W. 380 (1922) .......28, 30
Wells v. State, 193 Ark. 1092,104 S.W.2d 451 (1937) .... 28
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964) ....... 10, 76
Wilkerson v. State, 209 Ark. 138,189 S.W.2d 800 (1945) 31
Williams v. Georgia, 349 U.S. 375 (1955) ......... ............. 34
Williams v. New York, 337 U.S. 241 (1949) ................... 70
Williams v. Oklahoma, 358 U.S. 576 (1959) ................... 70
Willis v. State, 220 Ark. 965, 251 S.W.2d 816 (1952)....67, 68
Winters v. New York, 333 U.S. 507 (1948) ..................... 47
Witherspoon v. Illinois, 391 U.S. 510 (1968) ....11, 27, 33, 34,
47, 48, 49,
61, 70, 78
Wright v. State, 243 Ark. 221, 419 S.W.2d 320 (1967)....67,
68
PAGE
IX
Yick W o v. Hopkins, 118 U.S. 356 (1886) ...........5, 9, 47, 56,
57, 62
Young v. State, 230 Ark. 737, 324 S.W.2d 524 (1959) .... 31
Statutes:
Federal:
10 IJ.S.C. §920 (1964) ...................... .................................. 21
18 U.S.C. §2031 (1964) ......................................... .......... 21
28 U.S.C. §1254(1) (1964) ................................................. 2
28 U.S.C. §1291 (1964) ......... !.......................................... 2
28 U.S.C. §2241(c) (3) (1964) ............................................. 2
28 U.S.C. §2244(b) (Supp. II, 1966) .... .......... ............... 6
28 U.S.C. §2253 (1964) ...................................................... 2
28 U.S.C. §2254 (Supp. II, 1966) ................................... 6
State:
Ala. Code §§14-395, 14-397, 14-398 (Recomp. Vol. 1958) 21
Ark. Acts 1915, No. 187, §1 ......................................... 28
Ark. Stat. Ann. §28-707 (1962 Repl. Vol.) ................. 68
Ark. Stat. Ann. §41-2205 (1964 Repl. Vol.) ................... 35
Ark. Stat. Ann. §41-3401 (1964 Repl. Vol.) ................ 34
Ark. Stat. Ann. §41-2205 (1964 Repl. Vol.) ..................... 35
Ark. Stat. Ann. §41-3403 (1964 Repl. Vol.) ....3,21,24,27
Ark. Stat. Ann. §41-3405 (1964 Repl. Vol.) .................. 21
Ark. Stat. Ann. §41-3411 (1964 Repl. Vol.) ................. 21
Ark. Stat. Ann. §43-2108 (1964 Repl. Vol.) .................. 28
Ark. Stat. Ann. §43-2153 (1964 Repl. Vol.) ......... ...3,21,27
Ark. Stat. Ann. §43-2155 (1964 Repl. Vol.) .. .............. 24
Ark. Stat. Ann. §43-2155 (1964 Repl. Vol.) ................... 24
Cal. Penal Code §190.1 (Supp. 1966) ............................... 78
Conn. Gen. Stat. Rev. §53-10 (Supp. 1965) ......... ........... 78
PAGE
X
D.C. Code Ann. §22-2801 (1961) ....................................... 21
Fla. Stat. Ann. §794.01 (1964 Cum. Supp.) ................... 21
Ga. Code Ann. §§26-1302, 26-1304 (1963 Cum. Supp.) .... 21
Ky. Rev. Stat. Ann. §435.090 (1963) ............................... 21
La. Rev. Stat. Ann. §14:42 (1950) ................................ 21
Md. Ann. Code §§27-463, 27-12 (1967 Cum. Supp.) ....... 21
Miss. Code Ann. §2358 (Recomp. Vol. 1956) ................... 21
N.C. Gen. Stat. §14-21 (Recomp. Vol. 1953) ................... 21
N.Y. Pen. Law §§125.30,125.35 (Cum. Supp. 1968) ....... 78
Nev. Rev. Stat. §§200.363, 200.400 (1967) ..................... 21
Okla. Stat. Ann. Tit. 21, §§1111, 1114, 1115 (1958) ....... 21
Pa. Stat. Ann., tit. 18, §4701 (1963) ................................. 78
S.C. Code Ann. §§16-72, 16-80 (1962) ..... ....................... 21
Tenn. Code Ann. §§39-3702, 39-3703, 39-3704, 39-3706
(1955) ................................................................................. 21
Tex. Code Crim. Pro., Art. 37.07 (1967) ....................... 78
Tex. Pen. Code Ann., Arts. 1183, 1189 (1961) ............... 21
Vernon’s Mo. Stat. Ann. §559.260 (1953) ....................... 21
Va. Code Ann. §§18.1-44, 18.1-16 (Repl. Vol. 1960) ...... 21
PAGE
XI
Other Authorities:
American Law Institute, Model Penal Code, Tent.
Draft No. 9 (May 8, 1959), Comment to §201.6....... 10, 70
American Law Institute, Model Penal Code, §210.6
(P.O.D. May 4, 1962) .........................................62, 64, 74, 78
Bedau, A Social Philosopher Looks at the Death Pen
alty, 123 Am. J. Psychiatry 1361 (1967) ................... 16
Bedau, Death Sentences in New Jersey 1907-1960, 19
Butgers L. Rev. 1 (1964) .......................................... 13, 30a
Bedau, The Death Penalty in America (1964) ....... 15,16, 26
Cardozo, Law and Literature (1931) ...... ............ ........... 35
DiSalle, Comments on Capital Punishment and Clem
ency, 25 Ohio St. L.J. 71 (1964) .................................... 13
Duffy & Hirshberg, 88 Men and 2 Women (1962) ......... 12
Florida Division of Corrections, Fifth Biennial Report
(July 1, 1964-June 30, 1966) (1966) .......................28a, 32a
Garfinkel, Research Note on Inter- and Intra-Racial
Homicides, 26 Social Forces 369 (1949) ................... 16
Handler, Background Evidence in Murder Cases, 51 J.
C r i m . L . , C r i m . & P o l . S o l , 317, 321-327 (1960) ......... 71
H.L.A. Hart, Murder and the Principles of Punish
ment: England and the United States, 52 Nw. U.L.
Rev. 433, 438-439 (1957) ...............................................70-71
Hartung, Trends in the Use of Capital Punishment, 284
Annals 8 (1952) .............................................................. 16, 26
House of Commons Select Committee on Capital Pun
ishment, Report (H.M.S.O. 1930), para. 177
PAGE
70
XU
Institute of Judicial Administration, Disparity in Sen
tencing of Convicted Defendants (1954) ................... 36
Johnson, Selective Factors in Capital Punishment, 36
Social Forces 165 (1957) ............................... 13,16, 27a, 30a
Johnson, The Negro and Crime, 271 Annals 93 (1941) .. 16
Kalven & Zeisel, The American Jury (1966) ...............26, 34,
37, 41, 44, 30a
Knowlton, Problems of Jury Discretion in Capital
Cases, 101 U. Pa. L. Eev. 1099 (1953) .......................26, 71
Lawes, Twenty Thousand Years in Sing Sing (1932) .... 12
Lewis, The Sit-In Cases: Great Expectations, 1963
Supreme Court Review 101, 110 ................................... 47
Mattiek, The Unexamined Death (1966)........................... 16
New York State Temporary Commission on Revision
of the Penal Law and Criminal Code, Interim Report
(Leg. Doc. 1963, No. 8) ....................................... ........... 70
Packer, The Limits of the Criminal Sanction (1968)
92-94 ................................................................... 57
Packer, Making the Punishment Fit the Crime, 77
Harv. L . Rev. 1071 (1964) ............................................... 65
Partington, The Incidence of the Death Penalty For
Rape in Virginia, 22 Wash. & Lee L. Rev. 43 .......26a, 27a
Pennsylvania, Joint Legislative Committee on Capital
Punishment, Report (1961) ........................................... 16
Perkins, Criminal Law (1957) ........................................... 34
President’s Commission on Law Enforcement and Ad
ministration of Justice, Report (The Challenge of
Crime in a Free Society) (1967) ...............................16, 36
PAGE
xiii
PAGE
Royal Commission on Capital Punishment, 1949-1953,
Report (H.M.S.O. 1953) (Cmd. No. 8932), 6, 12-13,
195, 201-207 ........................................................................ 70
Rubin, Disparity and Equality of Sentences—A Con
stitutional Challenge, 40 F.R.D. (1966) ............... 16, 36, 54
State of California, Department of Justice, Division of
Law Enforcement, Bureau of Criminal Statistics,
Report (Crime and Delinquency in California, 1967)
(1968) ................................................................................ 32a
State of Georgia Board of Corrections, Annual Report
(1965), (1966), (1967) ............................. 28a, 32a
State of Maryland, Department of Correction, For
tieth Report (1966) ...................................................28a, 32a
Statement by Attorney General Ramsey Clark, Before
the Subcommittee on Criminal Laws and Procedures
of the Senate Judiciary Committee, on S. 1760, To
Abolish the Death Penalty, July 2, 1968, Department
of Justice Release, p. 2 ................................................... 12
Symposium on Capital Punishment, 7 N.Y.L.F. (1961) 23
Tennessee Department of Correction, Departmental
Report (1966) .............................................................29a, 32a
United Nations, Department of Economic and Social
Affairs, Capital Punishment (ST/SOA/SD /9-10)
(1968) .............................................................................. 16,22
United States Department of Justice, Bureau of Pris
ons, National Prisoner Statistics................................... 14
No. 42, Executions 1930-1967 (June, 1968) ....14,15, 24a,
28a, 32a, 33a, 34a
No. 41, Executions 1930-1966 (April, 1967) ....... 24a, 27a,
28a, 29a, 31a, 32a, 33a
XIV
No. 39, Executions 1930-1965 (June, 1966) .......24a, 27a,
28a, 31a, 32a, 33a
No. 37, Executions 1930-1964 (April, 1964 [sic:
1965]) ...........................................24a, 27a, 28a, 31a, 32a
No. 34, Executions 1930-1963 (May, 1964) 24a, 27a, 31a
PAGE
No. 32, Executions 1962 (April, 1963) ...................13,14,
24a, 27a, 31a
No. 28, Executions 1961 (April, 1962).......24a, 27a, 31a
United States Senate, Sub-Committee on Criminal
Laws and Procedures of the Committee on the Judi
ciary, Hearings on S. 1760, to Abolish the Death
Penalty (Unprinted Report of Proceedings, March
20, 1968) .......................................................................... 12,13
West, Dr. Louis J., “ A Psychiatrist Looks at the Death
Penalty,” Paper Presented at the 122nd Annual
Meeting of the American Psychiatric Association,
Atlantic City, New Jersey, May 11, 1966, p. 2 ........... 11
Wolf, Abstract of Analysis of Jury Sentencing in Capi
tal Cases: New Jersey: 1937-1961,19 Rutgers L. Rev.
56 (1964) .......................................................................... 31a
62 Harv. L. Rev. 77-78 Due Process Requirements of
Definiteness in Statutes (1948) ...................................49, 50
109 U. Pa. L. Rev. 67, 90 (1960) .............................. 47,59,61
109 U. Pa. L. Rev. 69, 81 (1960) ....................................... 52
69 Yale L.J. 1453, 1459 (1960) ........................................... 55
I n t h e
Qlmtrt ni tlu States
O ctober T e rm , 1968
No. 622
W illiam L. M axw ell ,
— v.—
Petitioner,
O.E. B ish o p , Superintendent of
Arkansas State Penitentiary,
Respondent.
ON W RIT O F CERTIORARI TO THE UNITED STATES
COURT OE APPEALS FOR TH E EIGHTH CIRCUIT
BRIEF FOR PETITIONER
Opinions Below
The opinion of the United States District Court for the
Eastern District of Arkansas denying petitioner’s applica
tion for a writ of habeas corpus is reported at 257 F. Supp.
710. It appears in the Appendix [hereafter cited A ......] at
20-41. The opinion of the United States Court of Appeals
for the Eighth Circuit affirming the district court is re
ported at 398 F.2d 138, and appears at A. 43-74.
Opinions at earlier stages of this proceeding are re
ported. The opinion of the Supreme Court of Arkansas
affirming petitioner’s conviction for the crime of rape and
sentence of death is found sub nom. Maxwell v. State, 236
Ark. 694, 370 S.W.2d 113 (1963). Opinions on disposition
of an earlier application for federal habeas corpus are
2
found sub nom. Maxwell v. Stephens, 229 F. Supp. 205
(E.D. Ark. 1964), aff’d, 348 F.2d 325 (8th Cir. 1965), cert,
denied, 382 U.S. 944 (1965).
Jurisdiction
The jurisdiction of the district court was conferred by
28 U.S.C. §2241 (c) (3) (1964). Jurisdiction of the court of
appeals was conferred by 28 U.S.C. §§1291, 2253 (1964).
The jurisdiction of this Court rests upon 28 U.S.C. §1254
(1) (1964).
The judgment of the court of appeals was entered on
July 11, 1968. (A. 75.) The petition for a writ of certio
rari was filed in this Court on October 9, 1968, and was
granted on December 16, 1968 (A. 76), limited to Ques
tions 2 and 3 of the petition.
Questions Presented
I. Whether Arkansas’ practice of allowing capital trial
juries absolute discretion, uncontrolled by standards or
directions of any kind, to impose the death penalty upon
a defendant convicted of the crime of rape violates the
Due Process Clause of the Fourteenth Amendment!
II. Whether Arkansas’ single-verdict procedure, which
requires the jury to determine guilt and punishment simul
taneously in a capital case, and thus requires a capital
defendant to elect between the exercise of his privilege
against self-incrimination and the presentation of evidence
requisite to rational sentencing choice, violates the Fifth
and Fourteenth Amendments!
3
Constitutional and Statutory Provisions Involved
The ease involves the Fifth and Fourteenth Amendments
to the Constitution of the United States.
It also involves A rkansas Statutes A nnotated, §§41-
3403, 43-2153 (1964 Repl. vol.), which provide, respectively,
as follows:
41-3403. Penalty for Rape. — Any person convicted
of the crime of rape shall suffer the punishment of
death for life imprisonment].
43-2153. Capital cases — Verdict of life imprison
ment. — The jury shall have the right in all cases
where the punishment is now death by law, to render
a verdict of life imprisonment in the State penitentiary
at hard labor.
Statement
Petitioner, William L. Maxwell, a Negro, was tried in
the Circuit Court of Garland County, Arkansas, in 1962
for the rape of a 35 year old, unmarried white woman. (A.
20.) As we shall describe more fully below, his trial was
conducted pursuant to the ordinary Arkansas procedures
for trying a capital case upon a plea of not guilty. The
issues of guilt and punishment were simultaneously tried
and submitted to the jury, which was given no instruc
tions limiting or directing its absolute discretion, in the
event of conviction, to elect between the punishments of
life or death.1 (A. 28-30, 40-41; see pp. 27-32, 66 n. 69, 35a
infra.)
1 Technically, an Arkansas jury chooses life by returning the
“verdict of life imprisonment” authorized by A rk. Stat. A nn.
§43-2153 (1964 Repl. vol.), text, supra. It chooses death by re
turning a guilty verdict without mention of life imprisonment,
upon which the death sentence is imposed as a matter of course
under A rk. Stat. A nn. §41-3403 (1964 Repl. vol.), text, supra.
(See A. 29, 44.)
4
Maxwell’s jury elected the punishment of death. The
Supreme Court of Arkansas affirmed. Maxwell v. State,
236 Ark. 694, 370 S.W.2d 113 (1963).2 A 1964 federal
habeas corpus proceeding challenging his rape conviction
and death sentence brought no relief. Maxwell v. Stephens,
229 F. Supp. 205 (E.D. Ark. 1964), aff’d, 348 F.2d 325
(8th Cir. 1965) (one judge dissenting), cert, denied, 382
U.S. 944 (1965).
The present habeas corpus proceeding was commenced
by a second federal petition, filed July 21, 1966. (A. 2-12.)
This petition raised, inter alia, three related constitutional
attacks upon petitioner’s death sentence. First, it com
plained of “ the unfettered discretion of the jury to choose
between the sentence of life or death. The jury’s choice
was . . . unregulated by legal principles of general appli
cation, was left to be determined by arbitrary and dis
criminatory considerations, and was in fact arbitrary and
discriminatory in petitioner’s case.” (A. 8.) Second, the
petition challenged Arkansas’ capital trial practice under
which “ the issues of guilt or innocence and of life or death
sentence [are] . . . determined by a jury simultaneously,
after the jury has heard evidence on both issues in the
same proceeding.” (A. 9.) This single-verdict procedure
(as we shall hereafter call it) not merely empowers, but
virtually compels, arbitrary capital sentencing because it
deprives the sentencing jury of information that is requi
site to rational sentencing choice, since “ evidence perti
nent to the question of penalty could not be presented
without prejudicing the jury against the petitioner on the
issue of guilt. . . . Nor could petitioner exercise his con
stitutional right of allocution before the jury which sen
tenced him, without thereby waiving his privilege against
self-incrimination held applicable to the states under the
2 No review of this decision was sought in this Court.
5
Fourteenth Amendment. . . . ” (A. 9-10.) Finally, petitioner
alleged that the arbitrary capital sentencing practices
which he attacked had in fact resulted in arbitrary appli
cation of the death penalty by Arkansas juries for the
crime of rape: Negroes convicted of the rape of white
women were discriminatorily sentenced to die on account
of race. (A. 5-7.)
The federal district court allowed a thorough evidentiary
hearing on the racial discrimination claim. (A. 17-18.)
That claim has been excluded from the present phase of
the case by this Court’s limited grant of certiorari (A. 76);
and we need not extend this Statement by describing the
evidence presented at the hearing. However, we shall have
occasion to refer to it in the argument portions of this1
brief, under the principle that where a state practice is
challenged as conferring arbitrary and lawless power tend
ing to abuse, in a manner forbidden by the Fourteenth
Amendment, proof that the power has in fact been regularly
abused is entitled to considerable weight.3 For this reason,
we set forth in Appendix A to the brief, pp. la-23a infra,
a detailed description of petitioner’s evidence in the dis
trict court relating to a thorough and extensive empirical
study of capital sentencing by Arkansas juries in rape
cases during the period 1945-1965, together with the find
ings of the district court and of the court of appeals in
reference to this study. [Appendices to the brief will here
after be cited as App., p..... a, infra.]
After hearing, the district court rendered its opinion of
August 26, 1966 (A. 20-41), rejecting petitioner’s conten
tion of discrimination (A. 33-40) and upholding the Ar
kansas procedures of unfettered jury discretion in capital
3 Louisiana v. United States, 380 U.S. 145 (1965); Niemotko v.
Maryland, 340 U.S. 268 (1951); Hague v. C.I.O., 307 U.S. 496
(1939); Tick Wo v. Hopkins, 118 U.S. 356 (1886).
6
sentencing (A. 28-33) and the single-verdict capital trial
(A. 40-41). The court declined to stay petitioner’s execu
tion, set for September 2, 1966 (A. 41) and declined to
issue a certificate of probable eause for appeal. Circuit
Judge Matthes of the Eighth Circuit similarly refused a
stay or a certificate; but petitioner’s execution was stayed
by Mr. Justice White on September 1, 1966; and this
Court subsequently reversed Judge Matthes’ orders and
remanded to the Court of Appeals for hearing of the
appeal. Maxwell v. Bishop, 385 U.S. 650 (1967).
By its opinion of July 11, 1968 (A. 43-74), the court of
appeals rejected on the merits each of petitioner’s consti
tutional claims (A. 47-64 (racial discrimination), 64-68
(unfettered jury discretion), 68-69 ( single-verdict proce
dure)). It accordingly affirmed the judgment of the dis
trict court denying petitioner’s application for habeas
corpus relief. (A. 75.)4
Summary o f Argument
All informed observers of the institution of capital
punishment in this country have noted its salient char
acteristic : it is unevenly, arbitrarily and discriminatorily
applied. That observation is strikingly borne out on this
record, which demonstrates that Arkansas juries have per
4 Adjudication on the merits was appropriate. State remedies
were exhausted, within 28 U.S.C. §2254 (Supp. II, 1966), since
no procedures are available in the Arkansas courts by which peti
tioner can raise his federal constitutional claims. This was alleged
in petitioner’s habeas application (A. 11), and admitted by respon
dent’s response (A. 14). The district court exercised its discretion
under Sanders v. United States, 373 U.S. 1 (1963), and 28 U.S.C.
§2244(b) (Supp. II, 1966), to entertain on the merits each of
petitioner’s present constitutional contentions, although presented
in a second federal habeas corpus petition; and the propriety of its
doing so cannot be questioned. See Maxwell v. Bishop, 385 U.S.
650 (1967).
7
sistently discriminated on grounds of race in sentencing
men to die. The court of appeals below admitted there
are “ recognizable indicators” that “the death penalty for
rape may have been discriminatorily applied over the
decades in that large area of states whose statutes pro
vide for it.” (A. 63.) But whether or not racial discrim
ination was here proved or is provable statistically, it
can hardly be denied that the evidence relating to actual
exercise of jury discretion in capital cases “ casts con
siderable doubt upon the quality of justice in those partic
ular cases throughout the system.” * 6 Extreme arbitrariness
in the selection of the few men sentenced to death and
executed, out of the great number convicted of capital
offenses each year, is patent; and (as we have pointed
out in greater detail in our amicus curiae brief in a com
panion case)6 the very extremity of this arbitrariness may
effectively conceal the workings of racial discrimination
and of every other invidious prejudice forbidden by the
Constitution. At the very least, the record compels this
Court’s strictest scrutiny under the Fourteenth Amend
ment of the regularity and fairness of the procedures by
which state courts, through their juries, choose the men
who will die.
I.
Petitioner challenges here the practice of uncontrolled
and undirected jury discretion in capital sentencing that
lies at the root of arbitrary and discriminatory imposition
of the death penalty. This is a practice which, even its
defenders must admit, is arbitrary in a legal sense. It
confers upon a group of twelve jurors, selected ad hoc to
6 The phrase is that of petitioner’s expert witness, an eminent
criminologist, testifying in the district court below. See note 19
infra.
6 Boykin v. Alabama, O.T. 1968, No. 642. See note 17 infra.
8
decide a particular case, a power to determine the question
of life or death that is unlike any other power possessed
by a jury, or even by a court, in our legal system. The
life-or-death decision is made utterly without standards
or governing legal principles; it is made without the
limitation of requisite factual findings, or of required
attention to any range or realm of fact, or of required
consideration of any general rule or policy of law; it is
made without any judicial control over the process or
the consequence of the jurors’ determination. The con
scientious and fairminded juror is given not the slightest
idea what he is to do, while the covert discriminator is
given absolute license to practice his biases in the matter
of taking human life. This unfettered jury discretion—
or, rather, naked and arbitrary power, lacking every at
tribute of legal discretion—can be likened only to the
unimaginable procedure of submitting to a jury in a civil
case the unadorned question whether the defendant ought
to be liable to the plaintiff; or, in a criminal case, whether
the defendant has done something for which he should be
punished. Such submissions are not made anywhere in
American law—except in the enormous decision whether
men shall live or die. They violate the rule of law that
is basic to Due Process, and especially critical in regard
to the choice of life or death.
Unfettered jury discretion in capital sentencing exhibits
those vices that have repeatedly been condemned by this
Court under the constitutional principles forbidding in
definiteness in penal legislation. First, a capital defendant,
with his life at stake, does not fairly know how to conduct
his defense. He does not know—to take one example—
whether the jurors will regard mental disorder as a
mitigating circumstance or an aggravating one; or whether
five jurors will think the circumstance mitigating while
seven vote to kill him for it. As a result, the capital trial
9
is a grisly game of blind-man’s buff, played for the
defendant’s life. Second, and more important, the con
ferring on the jury of “ a naked and arbitrary power”
(Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886)) to take a
man’s life for any reason or for no reason offends the
principle of legality, of regularity—the principle requiring
a rule of law and not of men— which the Due Process
Clause asserts as a protection against laws that would
otherwise be “ susceptible of sweeping and improper ap
plication” (N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963),
“ lest unwittingly or otherwise invidious discriminations
are made against groups or types of individuals in viola
tion of the constitutional guarantee of just and equal
laws” (Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
Due Process of Law fundamentally repudiates any such
power, which “ leaves . . . jurors free to decide, without
any legally fixed standards” (Giaccio v. Pennsylvania, 382
U.S. 399 (1966)), whether human life shall or shall not
be forfeit, even as a punishment for crime.
II.
The vices of unfettered jury discretion are compounded
when the jury’s life-or-death decision is made under a
single-verdict procedure. Whereas unfettered discretion
allows the jury arbitrary power, the single-verdict trial
virtually requires that that power be exercised arbitrarily.
This is so because information that is absolutely requisite
to rational sentencing choice cannot be presented to the
jury except at the cost of an unfair trial on the issue o f
guilt or innocence, and of enforced waiver of the defen
dant’s privilege against self-incrimination.
The single-verdict capital trial is federally unconstitu
tional for two reasons. First, it unnecessarily compels
a choice between the defendant’s Fifth and Fourteenth
1 0
Amendment privilege against self-incrimination (Malloy
v. Hogan, 378 TJ.S. 1 (1964)) and his Fourteenth Amend
ment right “ to be heard . . . and to offer evidence of his1
own” (.Specht v. Patterson, 386 TJ.S. 605, 610 (1967))
on the vital question of capital sentencing. As a result,
it unconstitutionally burdens the Privilege (United States
v. Jackson, 390 U.S. 570 (1968); Simmons v. United States,
390 U.S. 377 (1968)) by attaching to its exercise the in
dependently unconstitutional consequence that the capital
sentencing decision is made irrationally (Skinner v. Okla
homa, 316 U.S. 535 (1942)), because made “upon less than
all of the relevant evidence” (Jackson v. Denno, 378 U.S.
368, 389 n. 16 (1964)). Second, this procedure that forces
the capital defendant to a “choice between a method which
threatens the fairness of the trial of guilt or innocence
and one which detracts from the rationality of the deter
mination of sentence” 7 presents a “grisly, hard, Hobson’s
choice” 8 which is fundamentally unfair, in the Due Process
sense, where the wages of the gamble are death.
• # #
Logical presentation requires that our arguments relat
ing to unfettered jury discretion and to the single-verdict
procedure be stated separately. Either argument alone is,
in our view, sufficient to vitiate William L, Maxwell’s sen
tence of death under the Fourteenth Amendment. How
ever, it must be remembered that both of the challenged
procedures were employed at Maxwell’s trial. Their vices,
as we have pointed out, are mutually compounding. Used
together, they deprive Maxwell of his life after a trial ut
terly lacking in the rudimentary fairness and regularity
7 A merican Law Institute, Model Penal Code, Tent. Draft
No. 9 (May 8 , 1959), Comment to §201.6, at 64.
8 Whitus v. Balk.com, 333 F.2d 496, 499 (5th Cir. 1964). Cf.
Fay v. Noia, 372 U.S. 391, 440 (1963).
11
that Due Process assuredly demands when a state em
powers its jurors “ to answer ‘yes’ or ‘no’ to the question
whether this defendant was fit to live” (Witherspoon v.
Illinois, 391 U.S. 510, 521 n. 20 (1968)).
ARGUMENT
Introduction: The Fact and Implications of
Arbitrary Capital Sentencing
Knowledgeable observers of the administration of capital
punishment in the United States agree that death is meted
out among persons convicted of capital crimes in a fashion
that is uneven, rationally unsupportable and arbitrary in
the extreme.
“ Of all the uncertain manifestations of justice, capi
tal punishment is the most inequitable. It is primarily
carried out against the destitute, forlorn and forgotten.
. . . Members of racial and cultural minority groups
sutler most. The hundreds of extraneous factors, in
cluding geography, that decide whether a convicted
man will actually live or die, makes capital punishment
a ghastly, brainless lottery.” (Dr. Louis J. West, “ A
Psychiatrist Looks at the Death Penalty,” Paper Pre
sented at the 122nd Annual Meeting of the American
Psychiatric Association, Atlantic City, New Jersey,
May 11,1966, p. 2.)
Arbitrariness in the selection of men to be put to death
takes several forms. First, there is simply the matter of
baseless discrimination among individuals: freakish, whim
sical, erratic difference in the treatment of similar men
guilty of similar offenses. As the Attorney General o f the
United States put it recently:
12
“A small and capricious selection of offenders have
been put to death. Most persons convicted of the same
crimes have been imprisoned. Experienced wardens
know many prisoners serving life or less whose crimes
were equally, or more atrocious, than those of men on
death row.” (Statement by Attorney General Eamsey
Clark, Before the Subcommittee on Criminal Laws and
Procedures of the Senate Judiciary Committee, on
S. 1760, To Abolish the Death Penalty, July 2, 1968,
Department of Justice Belease, p. 2.)
Those who should surely know—the respected long-time
wardens of Sing-Sing and San Quentin prisons—corrobo
rate the Attorney General. L aw es , T w e n t y T housand
Y ears in S ing S ing (1932) 302, 307-310; D tjfey & H ir sh -
berg, 88 M en and 2 W omen (1962) 254-255J
Second, there is economic and caste discrimination.
“ [T]he death penalty . . . almost always hits the
little man, who is not only poor in material possessions
but in background, education, and mental capacity as
w ell. Father Daniel McAlister, former Catholic chap
lain at San Quentin, points out that The death penalty
seems to be meant for the poor, uneducated, and legally
impotent offender.’ ” (D u f fy & H irshberg, op. cit,
supra, 256-257.) 9
9 See also the testimony of Clinton T. Duffy, in United States
Senate, Subcommittee on Criminal Laws and Procedures of the
Committee on the Judiciary, Hearings on S. 1760, To Abolish the
Death Penalty (unprinted report of proceedings, March 20, 1968),
vol. 1, pp. 44-44A: “ I have often said, and I repeat here, that I
can take you into San Quentin Prison or to Sing Sing, Leaven
worth or Atlanta Prisons and I can pick out many prisoners in
each institution serving life sentences or less, and can prove that
their crimes were just as atrocious, and sometimes more so, than
most of those men on the row.”
13
Former Ohio Governor Michael DiSalle has made the same
point: “ I want to emphasize that from my own personal
experience those who were sentenced to death and appeared
before me for clemency were mostly people who were with
out funds for a full and adequate defense, friendless, un
educated, and with mentalities that bordered on being de
fective.” (DiSalle, Comments on Capital Punishment and
Clemency, 25 O hio S tate L. J. 71, 72 (1964).)10 11
Third, there is persuasive evidence of that most corrosive
and invidious form of discrimination, racial prejudice, in
the selection of the men who will die. The Federal Bureau
of Prisons maintains reliable statistics on executions in the
United States since 1930. Between that year and 1962, the
year in which petitioner Maxwell was sentenced to die, 446
persons were executed for rape in this country.11 Of these,
10 See also the testimony of Michael DiSalle, in Hearings, note 9
supra, vol. 1, pp. 14-16. The Governor’s observations are supported
by those of scholars who have undertaken to describe the charac
teristics of men on death row in other states. E.g., Bedau, Death
Sentences in New Jersey 1907-1960, 19 Rutgers L. Rev. 1 (1964);
Johnson, Selective Factors in Capital Punishment, 36 Social
Forces 165 (1957). And see the study of Florida’s death row
population described in the Brief for the N.A.A.C.P. Legal Defense
and Educational Fund, Inc., and the National Office for the Rights
of the Indigent, as Amici Curiae, in Boykin v. Alabama, O.T. 1968,
No. 642, at p. 7 n. 8 .
11 The figures below are taken from United States Department
op Justice, Bureau op Prisons, National Prisoner Statistics,
No. 32, Executions 1962 (April, 1963), which was put in evidence
as petitioner’s Exhibit P -6 at the habeas corpus hearing below.
Table 1 thereof shows the following numbers and percentages of
executions under civil authority in the United States between 1930
and 1962:
Negro
Rape 399 (89.5%)
Murder 1619 (49.1%)
Other 31 (45.6%)
Total 2049 (53.7%)
White Other Total
45 (10.1%)
1640 (49.7%)
37 (54.4%)
1722 (45.2%)
2 (0.4%) 446 (100%)
39 (1.2%) 3298 (100%)
0 (0.0 % ) 68 ( 100% )
41 (1.1%) 3812 (100%)
(Continued on p. 14)
14
399 were Negroes, 45 were whites, and 2 were Indians. All
were executed in Southern or border States or in the Dis
trict o f Columbia. The States of Louisiana, Mississippi,
Oklahoma, Virginia, West Virginia and the District never
executed a white man for rape during these years. Together
they executed 66 Negroes. Arkansas, Delaware, Florida,
(Continued from p. 13)
Table 2 thereof shows the following numbers of executions under
civil authority in the United States between 1930 and 1962, for the
offense of rape, by race and state:
J urisdiction Negro White Other Total
Federal ........................... 0 2 0 2
Alabama ......................... .... 20 2 0 22
Arkansas ......... ....... ..... .... 17 1 0 18
Delaware......................... 3 1 0 4
District of Columbia .... 2 0 0 2
Florida ........................... .... 35 1 0 36
Georgia ........................... .... 58 3 0 61
Kentucky ....................... 9 1 0 10
Louisiana ....................... .... 17 0 0 17
Maryland ....................... .... 18 6 0 24
Mississippi ..................... .... 21 0 0 21
Missouri ......................... 7 1 0 8
North Carolina ............. .... 41 4 2 47
Oklahoma ....................... 4 0 0 4
South Carolina ............. .... 37 5 0 42
Tennessee ....................... .... 22 5 0 27
Texas ............................... .... 66 13 0 79
Virginia ......................... .... 21 0 0 21
West Virginia ............... 1 0 0 1
Total ............................... .... 399 45 2 446
The figures have not changed appreciably since 1963. According
to the latest National Prisoner Statistics Bulletin, United States
Department of Justice, Bureau of Prisons, National Prisoner
Statistics, No. 42, Executions 1930-1967 (June, 1968), p. 7, table
1 , the following are the numbers and percentages of executions
under civil authority in the United States between 1930 and 1967:
Negro
Rape 405 (89.0%)
Murder 1630 (48.9%)
Other 31 (44.3%)
Total 2066 (53.1%)
White Other Total
48 (10.6%)
1664 (49.9%)
39 (55.7%)
1751 (45.4%)
2 (0.4%) 455 (100%)
40 (1.2%) 3334 (100%)
J )(0 .0 % ) 70 (1007o)
42 (1.1%) 3859 (100%)
(Continued on p. 15)
15
Kentucky and Missouri each executed one white man for
rape between 1930 and 1962. Together they executed 71
Negroes. Putting aside Texas (which executed 13 whites
and 66 Negroes), sixteen Southern and border States and
the District of Columbia between 1930 and 1962 executed
30 whites and 333 Negroes for rape: a ratio of better than
one to eleven. The nationwide ratio of executions for the
crime of murder was considerably less startling—one Negro
for each one white—but still startling enough, since Negroes
constituted about one-tenth of the Nation’s population dur
ing these years.
Of course, these suspicious figures might be explained, not
by arbitrary and discriminatory administration of the death
penalty, but by some rather extravagant hypotheses about
the Negro crime rate.12 Responsible analysts have rejected
such an explanation. With virtual unanimity, commissions
and individuals studying capital punishment have found
(Continued from p. 14)
The following is the breakdown of the 435 men reported under
sentence of death in the country as of December 31, 1967 (id., pp.
22-23, table 10):
Negro White Other Total
Nine Northeastern States .......... 33 29 0 62
Twelve North-Central States ..... 24 31 0 55
Thirteen Western States ......... ... 21 68 2 91
Sixteen Southern States ............ 159 66 0 225
Federal ............. :........................ 1 1 0 2
Total .......................................... ... 238 195 2 435
12 In fact, the number of crimes committed by Negroes appears
to be three to six times higher than that which the ratio of Negroes
in the population would lead one to expect. See Bedau, The Death
Penalty in A merica (1964) 412. Negroes constitute one-tenth or
one-ninth of the population (depending upon the time periods
under consideration). So, instead of the expectable one Negro-
committed crime to every nine white-committed crimes, there are
three to six Negro crimes to every nine white crimes. Far more
crimes numerically are obviously committed by whites than by
Negroes. Yet one Negro murder convict is executed for every
white murder convict executed; and nine Negro rape convicts are
executed for every white rape convict executed. See text, supra.
16
“ evidence that the imposition of the death sentence and the
exercise of dispensing power by the courts and the execu
tive follow discriminatory patterns. The death sentence is
disproportionately imposed and carried out on the poor,
the Negro, and the members of unpopular groups.” P resi
dent’s Commission on L aw E nforcement and A dministra
tion of J ustice, R eport (T he Challenge of Crime in a
F ree Society) (1967) 143. See also U nited Nations, De
partment of E conomic and Social A ffairs, Capital P un
ishment (ST/SOA/SD /9-10) (1968) 32, 98; Pennsylvania,
J oint L egislative Committee on Capital P unishment, R e
port (1961) 14-15; Mattick, T he U nexamined Death
(1966) 5, 17; B edau, T he D eath P enalty in A merica
(1964), 411-413; Bedau, A Social Philosopher Looks at the
Death Penalty, 123 A m . J. P sychiatry 1361, 1362 (1967);
Rubin, Disparity and Equality of Sentences—A Constitu
tional Challenge, 40 F.R.D. 55, 66-68 (1966); Johnson, Selec
tive Factors in Capital Punishment, 36 Social F orces 165
(1957); Hartung, Trends in the Use of Capital Punishment,
284 A nnals 8, 14-17 (1952); Garfinkel, Research Note on
Inter- and Intra-Racial Homicides, 26 S ocial F orces 369
(1949); Johnson, The Negro and Crime, 271 A n n a t e 93
(1941).
In order to provide a more systematic and rigorous ex
amination of the evidence of racial differentials in capital
sentencing, an extensive empirical study of sentencing pat
terns in rape cases was undertaken in 1965 by Dr. Marvin
E. Wolfgang, an eminent criminologist, at the request of
counsel for petitioner Maxwell (who also represent numer
ous condemned men in other States). Dr. Wolfgang’s study
covered every case of conviction for rape in 250 counties in
eleven States during the twenty-year period 1945-1965. The
data gathered in Arkansas, and Dr. Wolfgang’s analysis of
that data, were the subject of his testimony at the habeas
corpus hearing below. The testimony and the findings of
17
the lower courts relating to it are described in detail in
Appendix A, pp. la-23a infra. We summarize them briefly
here because of the importance of Dr, Wolfgang’s conclu
sions, which confirm the earlier impressions o f racial dis
crimination on the basis of the first fully controlled, exact
ing scientific study of the subject.
Dr, Wolfgang’s study began with the collection of data
concerning every case of conviction for the crime of rape
on the docket books of nineteen randomly selected Arkansas
counties, containing 47% of the State’s total population,
for the twenty years 1945-1965. The nineteen counties were
selected by accepted areal sampling methods with the goal
of producing a sample that would be representative of the
State of Arkansas as a whole; and, in the opinion of the
expert statistician whom Dr. Wolfgang employed to per
form the sampling operation, “ inferences drawn from this
sample . . . are valid for the State of Arkansas.” One point
should be stressed. The study, from the outset, concerns
cases of conviction for the capital crime of rape, and what
is studied is the performance of Arkansas juries in select
ing the convicted defendants upon whom they impose the
death penalty. It thus controls completely the possibility,
suggested above, that high frequencies observed in the
sentencing of Negroes to die for the crime of rape might be
explained by the supposition that Negroes commit rape, or
are convicted of rape, more frequently than whites. This
study compares the rate of death sentencing for Negro and
white defendants all of whom have been convicted of rape.
Field researchers dispatched to Arkansas conducted an
exhaustive investigation o f each case where a rape convic
tion had been had in the sample counties. They followed a
predetermined pattern for exploring the available sources
of information about each case, beginning with court rec
ords, trial transcripts, witness blotters, file jackets, judicial
opinions, etc., then proceeding to prison and pardon board
18
records, and finally to newspaper files and interviews with
trial counsel. They had uniform procedures for assigning
priorities to information sources in the event of conflicts;
and they used a uniform schedule, with objectively defined
categories, for recording the data found. At the hearing
below, the State of Arkansas conceded the validity of all of
the data thus gathered and recorded.
The “critical” data for each case were race of defendant,
race of victim, and sentence. Dr. Wolfgang analyzed these
variables and found conclusively that Negro defendants
convicted of the rape of white women were disproportion
ately frequently sentenced to death. Applying tests of
statistical significance that are generally used in the social
sciences (and in other disciplines, such as medical research,
as well), he found that the disproportionate frequency with
which the death sentence was imposed on these Negro de
fendants was so great that there was a less than two per
cent probability of its having occurred by chance. Put
another way, if race were not really related to the capital
sentencing patterns of Arkansas juries, the results observed
in the twenty years between 1945 and 1965 could have oc
curred fortuitously in fewer than two twenty-year periods
since the birth of Christ. Not surprisingly, the district court
agreed with Dr. Wolfgang in finding that the markedly
over-frequent sentencing to death of Negroes convicted of
rape of white women “ could not be due to the operation of
the laws of chance.”
Dr. Wolfgang next proceeded to determine whether any
other ascertainable circumstance in these rape cases could
account for the differential sentencing. The data gathered
by the researchers included not merely race and sentence,
but 28 pages of information about each case: characteris
tics of the defendant (age, family status; occupation; prior
criminal record; etc.) and of the victim (age; family status;
19
occupation; husband’s occupation if married; reputation
for chastity); nature of the defendant-victim relationship
(prior acquaintance; prior sexual relations, manner in
which defendant and victim arrived at the scene of the of
fense) ; circumstances of the offense (number of offenders
and victims; place; degree of violence or threat employed;
degree of injury received by victim; housebreaking or con
temporaneous offenses committed by defendant; presence
of members of the victim’s family and threats or violence
employed against them; nature of intercourse; involvement
of alcohol; etc.); and circumstances of the trial (plea;
presentation of defenses of insanity or consent; joinder for
trial of other charges against the defendant or co-defen
dants ; whether defendant testified; nature of his legal rep
resentation (retained or appointed); etc.). Every one of
these variables for which sufficient information could be
gathered from the official records and other sources studied
was analyzed with a view to determining whether it might
explain or account for the phenomenon of racially differen
tial sentencing. Dr. Wolfgang concluded that no non-racial
variable of which analysis was possible could account for
the differential observed. His ultimate conclusion was “ that
Negro defendants who rape white victims have been dis
proportionately sentenced to death, by reason of race, dur
ing the years 1945-1965 in the State of Arkansas.”
The district court disagreed with this ultimate conclu
sion, but for reasons that the court of appeals appears to
have thought unpersuasive and which will hardly survive
scrutiny of the record. See Appendix A, pp. 19a-23a infra.
The court of appeals itself rejected petitioner’s legal con
tention of racial discrimination, for doctrinal reasons that
are not now relevant; but it obviously thought that Dr.
Wolfgang’s factual finding of discrimination was not re
buttable. It expressly found that “ [t]here are recognizable
20
indicators . . . that the death penalty for rape may have
been discriminatorily applied over the decades in that large
area of states whose statutes provide for it.”
We have set forth this evidence of arbitrary and dis
criminatory capital sentencing at the outset of our argu
ment for three reasons. First, our specific constitutional
attacks upon the Arkansas death-sentencing procedures by
which petitioner Maxwell was condemned are, in essence:
(1) that the unfettered discretion given Arkansas juries
to select between the penalties of life and death, without
the guidance of standards or control by legal principles of
any sort, allows wholly arbitrary deprivation of human
life, in violation of Due Process, and (2) that Arkansas’
single-verdict practice in capital trials in effect compels the
arbitrary exercise of this arbitrary power because it de
prives the defendant who exercises his privilege against
self-incrimination of the opportunity to present to the
sentencing jury information that is the indispensable pre
requisite of rational sentencing choice. As this Court’s
prior decisions in several differing sorts of cases make
clear, evidence that abuse has in fact occurred has a con
siderable bearing on the issue whether a practice chal
lenged on the ground of lawlessness tending to abuse is sus
ceptible to that challenge. See cases cited in note 3 supra.
Second, there is obviously the most intimate sort of re
lationship between laws maintaining the death penalty,
procedures which allow its imposition arbitrarily, and racial
and caste discrimination in its actual administration. In the
Brief for the N.A.A.C.P. Legal Defense and Educational
Fund, Inc., and the National Office for the Rights of the
Indigent, as Amici Curiae, in the companion case of Boykin
v. Alabama, O.T. 1968, No. 642, we have analyzed one as
pect of that relationship: the point that the “public can
easily bear the rare, random occurrence of a punishment
2 1
which, if applied regularly, would make the common gorge
rise.” (Id., at 55.) “A legislator may not scruple to put a
law on the hooks whose general, even-handed, non-arbitrary
application the public would abhor—precisely because both
he and the public know that it will not be enforced generally,
even-handedly, non-arbitrarily.” (Id., at 39; see generally
id., at 35-61.)
This is most obviously the case with regard to the death
penalty for rape. Only sixteen American jurisdictions re
tain capital punishment for that offense. Nevada permits
imposition of the penalty exclusively in cases where rape is
committed with substantial bodily harm to the victim.18
The remaining fifteen jurisdictions—which allow their
juries absolute discretion to punish any rape with death—
are all Southern or border States.13 14 * The federal jurisdiction
and the District of Columbia also allow the death penalty
for rape in the jury’s unfettered discretion.16 We think the
13 Nev. Rev. Stat. §200.363 (1967). See also §200.400 (1967)
(assault with intent to rape, accompanied with acts of violence
resulting in substantial bodily harm).
14 The following sections punish rape or carnal knowledge unless
otherwise specified. Ala. Code §§14-395, 14-397, 14-398 (Recomp.
Vol. 1958) ; Ark. Stat. Ann. §§41-3403, 43-2153 (1964 Repl. V ols.);
see also §41-3405 (administering potion with intent to rape);
§41-3411 (forcing marriage) ; Fla. Stat. Ann. §794.01 (1964 Cum.
Supp.); Ga. Code Ann. §§26-1302, 26-1304 (1963 Cum. Supp.);
Ky. Rev. Stat. Ann. §435.090 (1963); La. Rev. Stat. Ann. §14:42
(1950) (called aggravated rape but slight force is sufficient to
constitute offense; also includes carnal knowledge); Md. Ann.
Code §27-463 (1967 Cum. Supp.); see also §27-12 (assault with
intent to rape) ; Miss. Code Ann. §2358 (Recomp. Vol. 1956) ;
Vernon’s Mo. Stat. Ann. §559.260 (1953); N.C. Gen. Stat. §14-21
(Reeomp. Vol. 1953); Okla. Stat. Ann. Tit. 21, §§1111, 1114, 1115
(1958); S.C. Code Ann. §§16-72, 16-80 (1962) (includes assault
with attempt to rape as well as rape and carnal knowledge); Tenn.
Code Ann. §§39-3702, 39-3703, 39-3704, 39-3706 (1955); Tex. Pen.
Code Ann., arts. 1183, 1189 (1961); Va. Code Ann. §18.1-44 (Repl.
Vol. 1960); see also §18.1-16 (attempted rape)*,,.
1618 U.S.C. §2031 (1964); 10 U.S.C. §920 (1964); D.C. Code
Ann. §22-2801 (1961).
22
relationship is obvious between this map of the legal inci
dence of capital punishment for rape and the discriminatory
exercise of juries’ discretion in the actual imposition of
death sentences. It is also worth noting that, outside the
United States, rape is punishable by death only in Malawi,
Taiwan, and the Union of South Africa .16
The mediating links between the allowability on the
statute books of the death penalty for a crime and its actual
use against the few, arbitrarily selected outcasts yearly
chosen to die are provided by the death-sentencing proce
dures challenged in the present case. It is these procedures
by which laws of apparently uniform application are con
verted in practice into instruments of the most vicious dis
crimination. Their rare, arbitrary and discriminatory use
against the poor and the disfavored insulates the laws, in
turn, against fair public scrutiny and reprobation. At the
same time that a capricious, a4 hoc selection of the men to
be killed makes sentencing patterns virtually immune
against judicial control under the Equal Protection Clause,17
the indefinite and arbitrary character of the sentencing
procedures themselves effectively precludes constitutional
control of particular death sentences rendered by individual
16 United Nations, Department of E conomic and Social A f
fairs, Capital Punishment (ST/SOA/SD/9-10) (1968), pp. 40,
86.
17 We make this point at greater length in the Brief for the
N.A.A.C.P. Legal Defense and Educational Fund, Inc., and the
National Office for the Rights of the Indigent, as Amici Curiae,
in Boykin v. Alabama, O.T. 1968, No. 642, at 53-55. The opinion
of the district court below presents an obvious instance of judicial
inability to detect racial discrimination where it is concealed under
the additional veil of ad hoc arbitrariness. See A. 37-40. “ Ob
viously, a State can discriminate racially and not get caught at it
if it kills men only sporadically, not too often. By being arbitrary
in selecting the victims of discrimination, a State can get away
with both arbitrariness and discrimination.” Boykin Brief, supra,
at 54.
23
juries.18 I f the arbitrariness and discrimination infecting
the administration of the death penalty are to be regulated,
it must therefore be through judicial scrutiny of the pro
cedures that permit and encourage such arbitrariness and
discrimination.
This brings us to our third point relating to the signifi
cance of the evidence of arbitrary and discriminatory capi
tal sentencing. Herbert Wechsler has observed that: “most
dramatically when life is at stake, equality is a most im
portant element of justice.” Symposium on Capital Punish
ment, 7 N.Y.L.F. 250, 259 (1961). The Fourteenth Amend
ment makes it an indispensable element of justice under the
Constitution; and the Due Process Clause particularly is
designed to assure the regularity of procedures necessary
to control against uneven and unfair, arbitrary impositions
upon the individual.
What is in issue in this case is the essential fairness,
regularity and even-handedness required by Due Process
in proceedings by which the state determines to take human
life. Where the consequences of the use of those procedures
are marked by what the court of appeals below acknowl
edged were “ recognizable indicators . . . that the death
penalty for rape may have been discriminatorily applied
over the decades in that large area of states whose statutes
provide for it” (A. 63)—where an extensive, painstaking
and rigorous scientific study of the application of those pro
18 The opinion of the court of appeals below makes the point
extraordinarily well. It rests principally on the proposition that
the court cannot detect actual racial motivation on the part of the
particular jury which condemned petitioner to die. See A. 59-64.
Any such work of detection would, of course, be impossible be
cause the entire absence in Arkansas law of standards governing
the jury’s sentencing decision precludes appraisal of the propriety
of the decision, hence the inference of discrimination which might
attach to an otherwise inexplicable act of impropriety.
24
cedures “ casts considerable doubt upon the quality of
justice in those particular cases throughout the system” 19—
surely the procedures which allow these uses and conse
quences call for the most critical and searching scrutiny of
which courts are capable, to assure consistency with Due
Process. Such scrutiny, as we shall now show, finds Arkan
sas’ capital sentencing procedures drastically deficient.
I.
Arkansas’ Practice of Allowing Capital Trial Juries
Absolute and Arbitrary Power to Elect Between the
Penalties of Life or Death fo r the Crime of Rape Vio
lates the Rule of Law Basic to the Due Process Clause.
Reading the formal provisions of Arkansas statutory
law governing punishment for the crime of rape, it is
easy to be lulled into a quite misleading frame of mind.
The statutes say, in effect, that the penalty for rape is
death, except that the jury may instead elect to sentence
a defendant convicted of rape to life imprisonment. A u k .
S tat . A n n . §§41-3403, 43-2153 (1964 Repl. vol.), p. 3 supra.
The image conveyed is that death is the ordinary and
usual consequence of a rape conviction, while the sentence
of life imprisonment is some form of extraordinary dis
pensation from the true course of the law.
This image is as dangerous as it is wrong. Its danger
lies not primarily in the sort of simplistic legal reasoning
which has sometimes been supposed to be applicable to i t :
that a dispensing procedure which grants a gratuitous
benefit, rather than imposing a burden, escapes the con
19 Dr. Marvin E. Wolfgang, testifying on cross examination be
low (Tr. 81), quoted by the court of appeals at A. 53. Compare
the phraseology of the court of appeals relative to “suspicion . . .
with regard to southern interracial rape trials as a group over a
long period of time.” (A. 61-62.)
25
trol of constitutional safeguards designed to protect the
individual from arbitrary and overreaching state action.
We do not suppose that this Court would for a moment
countenance any such legal argument.20 The more insidious
danger of the image is a subtle attitude which it engenders,
that the process of decision-making by which life or death
is selected as the penalty for crime is not really terribly
important. The defendant, after all, has been convicted
of an offense whose punishment is death—although some
few defendants may be exempted from the actual necessity
of dying. This attitude fosters a view of the procedures
for selecting the men who will live and the men who
will die, from among the total number of men convicted
of capital offenses, that is both unreal and irresponsible.
We hope that there can be no doubt about the facts.
The penalty for rape is not death—in Arkansas or any
where else. Only one quarter of the total number of Ar
kansas rape convictions analyzed by Dr. Wolfgang re
sulted in a death sentence.21 22 The twenty-five per cent
figure is probably somewhat high even for Arkansas;2*
20 The Fourteenth Amendment’s requirements of fairness and
equality apply not merely to such “ rights” as a state is federally
compelled to give its citizens, but also to the processes of dis
pensing such benefits as the state may choose to give them, however
gratuitously. Brown v. Board of Education, 347 U.S. 483 (1954);
Watson v. City of Memphis, 373 U.S. 526 (1963); Cox v. Louisiana,
379 U.S. 536, 555-558 (1965). The principle has been applied to
criminal sentencing, United States v. Behrens, 375 U.S. 162 (1963),
and to capital sentencing in particular, Brady v. Maryland, 373
U.S. 83 (1963). So, even if the view is indulged that Arkansas’
capital sentencing procedures do no more than allow the conferring
of the benefit of life to a convicted defendant, those procedures
are nonetheless constrained by the Due Process and Equal Protec
tion Clauses, as Brady squarely holds.
21 See Petitioner’s Exhibit P-4, Appendix B, table 1. There were
fourteen death sentences imposed in a total of fifty-five cases.
22 The fifty-five cases mentioned in the preceding footnote are
all of those analyzed by Dr. Wolfgang. A few cases found on the
2 6
and it appears far higher than the percentage of rape
convicts who are sentenced to death in other states where
the offense is potentially capital.23 It is also true that
the penalty for first-degree murder is not death—in Ar
kansas or anywhere in the United States.24 By far the
greater number of first-degree murder convicts, like rape
convicts, are sentenced to some punishment other than
death.25 26 The testimony of Attorney General Clark, quoted
at p. 12 supra, was neither heedless nor uninformed:
“Most persons convicted of the same crimes [for which
“a small and capricious selection of offenders have been
put to death” ] have been imprisoned.”
What is important here is not the respective percentages
of men sentenced to life and to death (we shall recur to
their significance shortly), but rather the point that a
highly selective process of making individuating judgments
is occurring, called forth by a state’s statutes which give
its juries the option between a death sentence and some
thing less. This process begins at the point of a defen
docket books could not be analyzed, because information relating
to the critical variables was not discoverable. These were ordi
narily non-death eases, since official record-keeping in death cases
tends to be more fulsome.
23 See Appendix B, pp. 24a-34a infra.
24 The death penalty for first-degree murder is no longer manda
tory anywhere in the United States. See Bedau, The Death
j Penalty in A merica (1964) 27-30, 45-52.
j Indeed, there are very few crimes in the United States today
| that carry a mandatory death penalty, and those few are for the
| most part of the obscure sort under which no one is ever charged
1 (treason, in several states; perjury in a capital case, etc.). See
i ibid. And see Kalven & Zeisel, The A merican Jury (1966) 301,
435; Hartung, Trends in the Use of Capital Punishment, 284
A nnals 8 (1952); Knowlton, Problems of Jury Discretion in
Capital Cases, 101 U. Pa . L. Rev. 1099 (1953).
26 See Appendix B, pp. 24a-34a infra.
27
dant’s conviction for a capital crime; it applies to all
defendants so convicted; and it involves the making of
differentiations between them, choosing those ones among
their total number whose lives are to be taken.
The question is not worth debating whether the Four
teenth Amendment’s basic requirements of regularity,
fundamental fairness, and even-handedness operate as
constraints upon such a process of selection. Obviously,
they do. Witherspoon v. Illinois, 391 U.S. 510 (1968);
Brady v. Maryland, 373 U.S. 83 (1963). And see Specht
v. Patterson, 386 U.S. 605 (1967); Mempa v. Rhay, 389
U.S. 128 (1967); Skinner v. Oklahoma, 316 U.S. 535 (1942).
As Judge Sobeloff has written in another connection:
“Under our constitutional system, the payment
which society exacts for transgression of the law does
not include relegating the transgressor to arbitrary
and capricious action.” (Landman v. Peyton, 370 F.2d
135, 141 (4th Cir. 1966).)
The issue is whether the selection process used by the
State of Arkansas— and by most other American states
which retain capital punishment, we must add—comports
with the relevant Fourteenth Amendment constraints or
“ relegates the transgressor to arbitrary and capricious
action” in the manner of deciding whether he lives or dies.
We therefore pass to an examination of the Arkansas
process.
A. The Power Given Arkansas Juries Is Essentially Lawless.
1. A r k . S tat . A n n . §41-3403 (1964 Repl. vol.), p. 3
supra, fixes the punishment for rape as death. Pursuant
to A r k . S tat . A n n . §43-2153 (1964 Repl. vol.), p. 3 supra:
28
“ The jury shall have the right in all cases where
the punishment is now death by law, to render a
verdict of life imprisonment. . . 26
This option conferred upon the jury is the exclusive
method of selecting, among convicted capital offenders,
the ones who die. A jury trial may not be waived in a
capital case in Arkansas. A r k . S ta t . A n n . § 43-2108
(1964 Repl. v o l.) ; Scarber v. State, 226 Ark. 503, 506,
291 S.W.2d 241, 242-243 (1956).
2. The only procedural requisite for valid exercise
of the option is that the jury must be told it has a choice
between life imprisonment and death.27 It is apparently
sufficient, to meet this requirement, that the court hand
the jury alternative life and death verdict forms, identify
them, and tell the jury it may use either. Smith, v. State,
230 Ark. 634, 642-643, 324 S.W.2d 341, 346 (1959). The
Arkansas Supreme Court has expressly approved submis
sion of the penalty option to the jury under instructions
which do nothing more than tell the jury it has a choice.
Hays v. State, 230 Ark. 731, 736, 324 S.W.2d 520, 523-524
(1959) (“ ‘ . . . it will be your duty to assess the punish
ment. The punishment for murder in the first degree is
26 The predecessor of this section, first giving juries capital
sentencing discretion in Arkansas, was enacted in 1915. Arkansas
Acts 1915, No. 187, §1, at p. 774.
27 Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954); Smith
v. State, 205 Ark. 1075, 172 S.W.2d 248 (1943); Crowe v. State,
178 Ark. 1121, 13 S.W.2d 606 (1929); Webb v. State, 154 Ark.
67, 242 S.W. 380 (1922). In murder cases, it is also required that
the jury be told to determine the degree of the offense; and an
explicit first degree verdict is necessary to support a death sen
tence. Walton v. State, 232 Ark. 8 6 , 334 S.W.2d 657 (1960);
Jones v. State, 204 Ark. 61, 161 S.W.2d 173 (1942); Bay v. State,
194 Ark. 1155, 109 S.W.2d 954 (1937); Wells v. State, 193 Ark.
1092, 104 S.W.2d 451 (1937); but see Burns v. State, 155 Ark. 1,
243 S.W. 963 (1922).
29
death by electrocution or, at the option of the jury, im
prisonment in the penitentiary for the term of his natural
life.’ ” ) ; Hodges v. State, 210 Ark. 672, 674, 197 S.W.2d
52, 53 (1946) (“ ‘Gentlemen of the jury, if you wish to
return a verdict of guilty and fix the punishment at death,
your verdict will be [reciting verdict form ]. . . . I f you
wish to return a verdict and fix the punishment at life
imprisonment, you will return the following verdict [re
citing verdict form]. . . .’ ” ).28 No Arkansas cases have
been found in which more elaborate instructions were
given.
3. Arkansas Supreme Court decisions describing the
nature of the option given to the jury are little more
informative. They do no more than to recite the obvious
propositions that: “ The legislature evidently meant for
the jury to exercise its discretion in selecting the punish
28 In Boone v. State, 230 Ark. 821, 825-826, 327 S. W.2d 87, 89-90
(1959), the jury interrupted its deliberations to inquire of the
judge which was the maximum penalty in law, life imprisonment
or death. The following transpired:
“ ‘By the Court: No, no, sir the law doesn’t say. The law
simply says that the penalty shall be life imprisonment in the
event of a finding of guilty, or the penalty shall be death in
the event of a finding of guilty. It leaves it to the jurors to
decide which of these penalties shall be inflicted.’
“ ‘By the Court Reporter: (Reading) Gentlemen of the
Jury, you have asked the court to tell you at this state of
your deliberations which is considered in law to be the most
severe penalty. Whether it is death by electrocution, or
whether it is life imprisonment. Our statutes provide that
every person convicted of murder in the first degree shall
suffer death or life imprisonment. It is for you, the jury, to
say which of these two penalties should be inflicted, the
severity of either of those punishments is a matter for each
of you to decide to your own satisfaction.
“ ‘By the Court: Gentlemen, are there any other questions?
“ ‘By Member of the Jury: You didn’t help us much.
“ ‘By the Court: I am sorry, but I have got to go by the
law.’ ”
30
ment . . .” (Needham v . State, 215 Ark. 935, 939, 224
S.W.2d 785, 787 (1949); see Webb v . State, 154 Ark. 67,
72-75, 242 S.W. 380, 383-384 (1922)), and that “ this op
tion lies entirely with the jury.” Alford v. State, 223
Ark. 330, 332; 266 S.W.2d 804, 805 (1954)). The only
Arkansas case found which discourses more fully on the
nature of the option is Scarber v. State, 226 Ark. 503,
505, 291 S.W.2d 241, 242 (1956), where the Supreme Court
said that a jury charge requiring that the jurors not
impose the death penalty unless satisfied beyond a rea
sonable doubt that the defendant should receive it “placed
a greater burden on the state than it was required to
assume under the law.”
4. One point is quite clear however. The jury’s judg
ment is entirely unreviewable.29 Although the Arkansas
Supreme Court has spoken of its power to “ reduce a
punishment imposed upon the verdict of a jury . . . on
account of . . . excessive punishment,” Blake v. State, 186
Ark. 77, 80-82, 52 S.W.2d 644, 646 (1932), it has repeatedly
made clear that this power may be exercised to reduce
a death sentence only where (as in Blake) the evidence
is insufficient to sustain a jury verdict of conviction of
the capital charge. E.g., Smith v. State, 230 Ark. 634,
643-644, 324 S.W.2d 341, 346 (1959).30 Otherwise, with
regard to the death penalty, “ as we have many times
stated, the matter of assessing punishment is strictly
within the province of the jury, and we have no power
29 “ T h e s ta tu te g iv e s th e ju r y , a n d n o t th e co u r t , th e r ig h t to
re d u c e th e p u n ish m e n t. . . . ” Burns v . State, 155 A r k . 1, 8, 243
S .W . 963 , 967 (1 9 2 2 ) (d i c t u m ) . Accord: Webb v. State, 154 A r k .
67, 72, 242 S .W . 380 , 383 (1 9 2 2 ) (d i c t u m ) .
30 W h e r e th e e v id e n ce w il l n o t s u p p o r t c o n v ic t io n o n th e ca p ita l
ch a rg e b u t w i l l s u p p o r t c o n v ic t io n o f a le sser in c lu d e d offense ,
th e A rk a n s a s S u p re m e C o u r t re d u ce s th e p e n a lty to th a t p r o v id e d
b y la w f o r th e lesser offense . T h is is n o t , o f c o u rse , r e v ie w o f th e
sen ten ce b u t o f th e co n v ic t io n .
31
to change the fixed punishment unless the proof fails
to sustain the charge for which the defendant is con
victed.” Nail v. State, 231 Ark. 70, 85, 328 S.W.2d 836,
845 (1959). Accord: Smith v. State, 230 Ark. 634, 324
S.W.2d 341 (1959); Young v. State, 230 Ark. 737, 324
S.W.2d 524 (1959); Hildreth v. State, 215 Ark. 808, 223
S.W.2d 757 (1949); Rorie v. State, 215 Ark. 282, 220
S.W.2d 421 (1949); Palmer v. State, 213 Ark. 956, 214
S.W.2d 372 (1948); Allison v. State, 204 Ark. 609, 164
S.W.2d 442 (1942); Turnage v. State, 182 Ark. 74, 30
S.W.2d 865 (1930).31 See also Hays v. State, 230 Ark.
731, 324 S.W.2d 520 (1959); Hodges v. State, 210 Ark.
672, 197 S.W.2d 52 (1946).32 This powerlessness of the
Arkansas Supreme Court to review a death sentence stands
in sharp contrast to its freely exercised power to reduce
jury-fixed sentences in non-capital cases.33
31 T h e o n ly d ea th case in w h ich th e A rk a n s a s S u p re m e C o u r t
has e v e r assu m ed to re d u ce th e p e n a lty w ith o u t u p s e t t in g th e c o n
v ic t io n is Davis v. State, 155 A r k . 245 , 2 4 4 S .W . 75 0 (1 9 2 2 ) . I n
Davis, th e S u p re m e C o u r t d is b e lie v e d th e c o m p la in in g w itn e ss in
a r a p e case a n d re s p o n d e d b y g r a n t in g c le m e n c y to th e d e fe n d a n t .
I ts p o w e r to d o so w as la te r re p u d ia te d , a n d Davis e x p r e s s ly o v e r
ru le d , in th e Allison case, te x t supra, 20 4 A r k ., a t 6 1 4 ; 164 S .W .2 d ,
a t 445.
32 I t is in th e co n te x t o f th is lin e o f d e c is io n s th a t o n e m u st
re a d th e p h ra se in Ezell v. State, 217 A r k . 94 , 102 , 229 S .W .2 d
32, 36 (1 9 5 0 ) , d e c lin in g to re d u ce a d e a th sen te n ce f ix e d b y a
ju r y , “ i f it be c o n ce d e d th a t w e h a v e su ch p o w e r .” S ee a lso Black
v. State, 215 A r k . 618, 625, 222 S .W .2 d 816 , 820 (1 9 4 9 ) .
33 Carson v. State, 206 A r k . 80, 173 S .W .2 d 122 ( 1 9 4 3 ) ; Hadley
v . State, 205 A r k . 1027 , 172 S .W .2 d 237 ( 1 9 4 3 ) ; Marks v . State,
192 A r k . 881 , 95 S .W .2 d 634 ( 1 9 3 6 ) ; Ball v. State, 192 A r k . 858 ,
95 S .W .2 d 632 ( 1 9 3 6 ) ; Hudspeth v. State, 188 A r k . 323 , 67 S .W .
2 d 191 (1 9 3 4 ) . E v e n w h e re th e c o u r t re fu s e s to r e d u c e a ju r y -
fix e d n o n -c a p ita l sen ten ce , it d oes n o t ta lk o f la ck o f p o w e r ; i t
fin d s n o “ abuse o f d is c r e t io n ” b y th e ju r y , Cook v. State, 225 A r k .
1003, 287 S .W .2 d 6 ( 1 9 5 6 ) ; Wilkerson v . State, 209 A r k . 138 , 189
S.W.2 d 800 ( 1 9 4 5 ) ; Cheney v. State, 205 A r k . 1049, 172 S .W .2 d
427 (1 9 4 3 ) , a n d co n ce d e s th a t “ w e m a y re d u ce e x tre m e p e n a lt ie s
w h en n o t s u p p o r te d b y th e e v id e n c e ,” Smith v . State, 194 A r k .
1041 , 1045, 110 S .W .2 d 24 , 26 (1 9 3 7 ) .
32
5. Describing the Arkansas death-sentencing practice,
used at petitioner Maxwell’s trial, the district court below
wrote:
“ It may be conceded that the Arkansas statutes
dealing with rape and dealing with capital punishment
do not purport to set up any standards by which the
jury is to exercise its discretion in determining whether
it should exercise the power conferred upon it by
section 43-2153, and it will be assumed that no such
standards are to be found in the reported decisions
of the Supreme Court of Arkansas. Nor did the Cir
cuit Court in its charge to the jury attempt to lay
down any principles which should be applied in deter
mining whether petitioner, if convicted, should be
punished by life imprisonment rather than by death.”
(257 F. Supp. at 716; A. 30. ) 34- 85 * 35
84 A lth o u g h th e t r a n s c r ip t o f p e t it io n e r ’s sta te t r ia l has n o t b een
in c lu d e d in th e m a ter ia ls ce r t ifie d to th is C o u r t b y th e C o u r t o f
A p p e a ls f o r th e E ig h th C ir c u it , i t w a s b e fo r e th e D is t r ic t C o u r t
in p e t it io n e r ’s e a r lie r fe d e r a l h a b ea s c o r p u s p r o c e e d in g , see 229
F . S u p p . 205 , a n d h e n ce b y a g re e m e n t a v a ila b le to th e d is t r ic t
c o u r t in th e p re s e n t p r o c e e d in g (A . 1 7 ) . T h e d is t r ic t c o u r t r e fe r s
t o i t in th e q u o te d p a ssa g e , a n d in s ta t in g , f o r ex a m p le , th a t p e t i
t io n e r d id n o t t e s t i fy a t h is t r ia l ( A . 4 1 ) . T h e C o u r t o f A p p e a ls
sen t f o r th e t r a n s c r ip t w h ile th e a p p e a l w a s u n d e r su b m ission ,
a n d its o p in io n r e fe r s e x p l ic i t ly t o i t ( A . 59, n . 5 ) . F o r th e in
fo r m a t io n o f th e C o u r t , w e set fo r t h in A p p e n d ix C th e m a n n er
in w h ich th e s e n te n c in g o p t io n w a s s u b m itte d to p e t it io n e r ’s t r ia l
ju r y .
35 I n a fo o t n o t e to th is p assage , th e d is t r ic t c o u r t a d d s : “ I t does
n o t a p p e a r th a t co u n s e l f o r p e t it io n e r re q u e s te d a n y in s tru ctio n s
o n th e s u b je c t .” (2 5 7 F . S u p p . a t 716 , n . 6 ; A . 30, n . 6 .) T h e
c o u r t o f a p p e a ls a lso n o te d th a t “ th e d e fe n s e in M a x w e ll ’s ra p e
t r ia l r e q u e s te d n o in s tr u c t io n a l s ta n d a r d s .” (3 9 8 F .2 d , a t 1 4 9 ;
A . 6 5 .) B u t n e ith e r c o u r t f o u n d th a t p e t it io n e r h a d th e re b y c o m
m itte d th e so r t o f in te n t io n a l b y p a s s in g r e q u ir e d to f o r f e i t f e d
e ra l c la im s u n d e r Fay v. Noia, 372 U .S . 391 ( 1 9 6 3 ) ; a n d n o su ch
f in d in g c o u ld be m ad e . P e t it io n e r ’s c o n s t itu t io n a l c o m p la in t is
th a t th e re a re n o s ta n d a rd s fix e d b y A r k a n s a s la w t o g o v e r n the
j u r y ’s d e a th -p e n a lty d e c is io n , a n d in th e a b se n ce o f su ch s ta n d a rd s ,
33
We note the salient characteristics of the death-sen
tencing process just described.
First, the objective of the process is to differentiate
among individuals, in order to select from the total num
ber of men convicted of rape those who will live and those
who will die. The purpose for which this differentiation
is made is the most arcane, the most intractable judgment
known to the criminal law. “It should be understood that
much more is involved here than a simple determination of
sentence. For the State . . . empowered the jury in this
case to answer ‘yes’ or ‘no’ to the question whether this de
fendant was fit to live.” Witherspoon v. Illinois, 391 U.S.
510, 521 n. 20 (1968).
The ends thought to be served by capital punishment—
hence, the considerations which bear on the fitness of pre
scribing it in a particular case—are variable, and hardly
a matter controlled by consensus or enlightened by the
commonly shared values of our society. Arkansas’ legisla
ture has not identified the ends which it thinks worthy of
consideration in support of its general decision to retain
the death sentence for the offense of rape; nor has it pro
scribed consideration of whatever other ends may occur
to individual men sitting in judgment in rape cases. The
sentencer is informed only by his personal intuition and
particularistic experience concerning the goals in whose
interest he is empowered to kill other men. Sentencing in
non-capital cases—however complex the judgments it may
require—at least rests upon the common assumption that
the offender is to be salvaged if he is salvageable con
sistently with community protection. Capital sentencing
co u n s e l c o u ld n o t h a v e co n c e iv e d w h a t to re q u e s t th e c o u r t to
ch a rg e o n th e issue. S u r e ly , co u n se l w a s n o t r e q u ir e d to m ak e u p
h is o w n sta n d a rd s , in o r d e r to s u p p ly th e d e fic ie n cy o f A r k a n s a s ’
le g is la tio n .
34
rejects that assumption, in the case of some men but not
others, without explaining who or why.
Second, the consequences to the individual who is sen
tenced to die qre far less recondite than the objectives
which may, or may not, underlie the decision to kill him.
“Whatever the differences on which this decision hinges,
they remain demeaningly trivial compared to the stakes.”
K alven & Z eisel, T h e A m erican J ury (1966) 448-449.
The enormity of the stakes is altogether obvious.36
Third, the range of cases and convicted defendants sub
ject to the selection process, and among whom it operates
to differentiate, is extraordinarily broad. The crime of
rape in Arkansas (as in other states where it is capital)
encompasses every variety of consummated sexual assault,
whether on a child or a mature woman, whether the victim
is. brutally injured or physically unharmed, whether the
assailant is a prowling stranger or the victim’s social com
panion.37 The range of capital murder cases is similarly
36 W e th in k w e n e e d n o t e la b o ra te th e p o in t b e fo r e th is C o u rt ,
w h ic h h as so fr e q u e n t ly r e c o g n iz e d it . Witherspoon v. Illinois, 391
U .S . 510, 521 n . 20 ( 1 9 6 8 ) ; Hamilton v. Alabama, 368 U .S . 52
( 1 9 6 1 ) ; Williams v. Georgia, 349 U .S . 375 , 391 ( 1 9 5 5 ) ; Stein v.
New York, 346 U .S . 156 , 196 (1 9 5 2 ) • Chambers v. Florida, 309
U .S . 227 , 24 0 ( 1 9 4 0 ) ; Powell v . Alabama, 2 87 U .S . 45 (1 9 3 2 ) .
37 T h e A r k a n s a s s ta tu te in e ffe c t f r o m 1842 u n t il 1967 d e fin ed
ra p e in te rm s o f B la ck s to n e ’s v e n e ra b le fo r m u la t io n as “ th e ca rn a l
k n o w le d g e o f a fe m a le , fo r c ib ly , a n d a g a in s t h e r w ill .” A rk. Stat.
A nn. § 41 -3401 (1 9 6 4 R e p l. v o l . ) . B u t , in th is fo r m u la t io n , “ f o r c
ib ly ” m ea n s n o th in g m o re th a n th e d e g re e o f f o r c e n e cessa ry to
a ch ie v e in te r co u rs e , a n d “ a g a in s t h e r w i l l ” s ig n ifie s o n ly “ w ith o u t
h e r c o n s e n t .” T h is is th e d o c tr in e g e n e r a lly fo l lo w e d b y states
w h ic h re ta in th e co m m o n -la w fo r m u la t io n o f ra p e , see Perkins,
Criminal Law (1 9 5 7 ) 110 -112 , 1 1 9 -1 2 7 ; a n d it is th e ru le a n
n o u n c e d b y th e A rk a n sa s cases. McDonald v. State, 225 A r k . 38,
279 S .W .2 d 44 ( 1 9 5 5 ) ; Fields v. State, 203 A r k . 1046, 159 S .W ,2 d
745 ( 1 9 4 2 ) ; Davis v. State, 155 A r k . 245 , 24 4 S .W , 750 ( 1 9 2 2 ) ;
State v . Peyton, 93 A r k . 406 , 125 S .W . 416 ( 1 9 1 0 ) ; Harvey v.
State, 54 A r k . 4 25 , 14 S .W . 645 (1 8 9 0 ) .
I n 1967, A rk a n s a s e n a cte d a n e w s ta tu te d iv id in g r a p e in to
d e g re e s b u t n o t m a te r ia lly a ffe c t in g th e n a tu r e o f th e ch a rg e w h ich
35
broad.38 It is quite inconceivable that the legislature which
authorized the death penalty in all of these cases thought
that it should be used in very many of them. And, indeed,
it is used in practice in only a relatively small number.39
The prescription of the death penalty, with its discre
tionary incidence, is therefore a striking example of pur
posive overbreadth—that style of legislation which sweeps
far more broadly than its intended target, leaving to ad hoc
judgment in administration the job of deciding what that
target shall be.40
Fourth, in the case of the death penalty, the instrument
of administration is the lay jury, selected to try a partic
co n s titu te s th e ca p ita l degree.. A rk a n s a s A c t s 1967 , N o . 362 , p .
830, c o d ifie d as A rk. St at. A nn. §41 -3401 (1 9 6 8 C u m . S u p p . ) .
F ir s t d e g re e ra p e , w h ich is , ca p ita l, con sists o f sex u a l in te r co u rs e
w ith a fe m a le “ b y fo r c ib le co m p u ls io n ,” o r w h e re th e fe m a le is
“ in c a p a b le o f c o n se n t b y re a so n o f b e in g p h y s ic a lly h e lp less , o r
m e n ta lly in c a p a c ita te d ,” o r is less th a n e lev en y e a rs o ld . S e co n d
a n d th ir d d e g re e ra p e , w h ich a re n o n -ca p ita l, in v o lv e in te r co u rse ,
w h e th e r o r n o t con sen su a l, w ith fe m a le s u n d e r th e ages o f 14 a n d
16 re sp e c tiv e ly .
38 A rk a n sa s has th e co m m o n fo r m o f firs t d e g re e m u r d e r s ta tu te ,
A rk. Stat. Ann. § 41 -2205 (1 9 6 4 R e p l. v o l . ) , e n co m p a ss in g m u rd e rs
b y p o is o n o r ly in g in w a it , fe lo n y -m u r d e r s (a rso n , ra p e , r o b b e r y ,
b u r g la r y o r la r c e n y ) , a n d d e lib e ra te a n d p r e m e d ita te d m u rd e rs .
T h e S ta te fo l lo w s th e w id e ly a c c e p te d n o t io n th a t “ p re m e d ita t io n
a n d d e lib e ra tio n to d o m u r d e r m a y b e fo r m u la te d in th e a ssa ila n t ’s
m in d u p o n th e in sta n t. I t d oes n o t h a v e to e x is t in th e m in d a n
a p p r e c ia b le le n g th o f t im e .” Nail v. State, 231 A r k . 70 , 75, 328
S .W .2 d 836, 839 (1 9 5 9 ) . S ee House v . State, 230 A r k . 622 , 324
S .W . 112 ( 1 9 5 9 ) ; Jenkins v. State, 222 A r k . 511, 261 S .W .2 d 784
( 1 9 5 3 ) ; Gilchrist v. State, 100 A r k . 330, 140 S .W . 26 1 ( 1 9 1 1 ) ;
Rosemond v. State, 86 A r k . 160 , 110 S .W . 229 ( 1 9 0 8 ) ; Green v.
State, 51 A r k . 189 , 10 S .W . 266 (1 8 8 9 ) . C o n se q u e n tly , as M r.
J u s t ic e C a rd o z o p o in te d o u t m a n y y e a r s a g o , th e lin e b e tw een
se co n d a n d firs t d e g re e m u rd e r is p a p e r t h in ; a n d v ir t u a l ly a ll
m u rd e rs a re p o te n t ia l firs t d e g re e cases i f th e ju r y tak es th a t v ie w
o f th em . Cardozo, Law and Literature (1 9 3 1 ) 97 -101 .
39 See A p p e n d ix B , p p . 2 4 a -3 4 a infra.
40 T h is C o u r t h as p o in te d o u t th a t su ch le g is la t io n is in h e re n t ly
“ su sce p tib le o f sw e e p in g a n d im p r o p e r a p p lic a t io n .” N.A.A.G.P.
v. Button, 371 U .S . 415 , 433 (1 9 6 3 ) .
36
ular case. In pointing out this circumstance, we imply no
general criticism of trial by jury. Recognition of the unique
virtues of jury trial, see Duncan v. Louisiana, 391 U.S. 145
(1968), does not preclude the simultaneous recognition
that jury trial also has certain peculiar dangers, requiring
especial safeguards under the Constitution. See Jackson
v. Denno, 378 U.S. 368 (1964); Rideau v. Louisiana, 373
U.S. 723 (1963); Bruton v. United States, 391 U.S. 123
(1968). And it can hardly be doubted that the jury system,
for all of its merits, is that form of judicial process which
is least capable of developing uniform and consistent rules
of decision.41
Comparison of the jury with a sentencing judge is in
structive in this regard—-and none the less because sen
tencing by judges in this country has itself fallen far short
of the marks of regularity and even-handedness.42 The
judge, at least, is a professional sentencer. The very fact
that he sentences a considerable number of offenders pro
motes some consistency in their sentencing, even if it be
only the consistency of his habits. In the process, hopefully,
he gains some generalizable experience, develops bases for
rational comparative judgments; in any event, minimally,
he evolves a “ feel” for how the cases “ line up.” As a pro
fessional, he is somewhat better guarded against unex
amined visceral urges and inflammable emotions than are
. T lle P 0 ln t h as been s u c c in c t ly s ta ted , w ith p a r t ic u la r re fe r e n c e
to j u r y se n te n c in g , b y th e c o g n iz a n t T a sk F o r c e o f th e N a tio n a l
C r im e C om m iss ion . / ‘ [T ]h e t r a n s it o r y n a tu re o f ju r y se rv ice v i r
tu a lly p re c lu d e s ra t io n a l s e n te n c in g .” Pbesident’s Commission on
Law Enfobcement and A dministbation op Justice Task F obce
Repobt : The Coubts (1 9 6 7 ) 26.
42 S ee, e .g ., R u b in , Disparity and Equality of Sentences—-A Con
stitutional Challenge, 40 F .R .D . 55 ( 1 9 6 6 ) ; Institute of Judicial
A dministbation, D ispabity in Sentencing op Convicted Depen
dants (1 9 5 4 ).
37
lay jurors.43 He shares with other judges and sometimes
with corrections personnel a sense of common enterprise
and responsibility in regard to sentencing offenders that
can be, and often is, a regularizing influence. He talks with
other judges; lawyers talk to him about his sentencing
practices and theirs; he has contact with corrections peo
ple ; and he can be affected, as well, by more formal controls
and guides:—occasional instances of appellate sentencing
review or expressed disapprobation, sentencing conferences
and councils, etc. Notwithstanding all of these moderating
forces, as we have said, judicial sentencing often is ex
tremely erratic. How much more erratic and uneven then
must jurors natively tend to be, who are subject to not a
single one of the controls working on the judge! A unique
array of twelve untrained individuals assembles; hears one
case; sentences one man; then disperses. We repeat that
we would not in the least disparage jurors’ functioning in
this fashion to decide issues—whether factual, judgmental
or moral—adequately framed by uniform rules of law.
But the prospect that, without rules, the jurors will them
selves supply uniformity or regularity, is hopeless.
Fifth, in making its selection of the men to die, out o f all
those convicted, the jury is ordinarily deprived by Ar
kansas’ single-verdict procedure of information that is nec
essary to any sort of rational selective judgment. We de
velop this point independently in Part II, pp. 66-78 infra;
but it must be considered, together with the points made
43 “ T h e ju d g e v e r y o ft e n p e rce iv e s th e stim u lu s th a t m ov es th e
ju r y , b u t d oes n o t y ie ld to it . In d e e d i t is in te re s t in g h o w o fte n
th e ju d g e d escr ib es w ith s e n s it iv ity a fa c t o r w h ich he th e n e x c lu d e s
fr o m h is ow n co n s id e ra tio n s . S o m e h o w th e co m b in a t io n o f o ffic ia l
ro le , t r a d it io n , d is c ip lin e , a n d re p e a te d e x p e r ie n ce w ith th e task
m ak e o f th e ju d g e on e k in d o f d e c id e r . The. p e re n n ia l a m a teu r ,
la y m a n ju r y ea n n ot b e so q u ic k ly d o m e stica te d to o ffic ia l ro le a n d
t r a d i t io n ; it rem a in s a ccess ib le to s t im u li w h ic h th e ju d g e w il l
e x c lu d e .” Kalven & Zeisel, The A merican Jury (1 9 6 6 ) 497 -498 .
38
in paragraphs First through Fourth above, as composing
the background and concrete setting within which Arkan
sas juries exercise the “ option” or “discretion” allowed
them in capital sentencing. Having sketched the back
ground, we now come to that “ discretion,” which is the
nub of our constitutional complaint.
Sixth, the power of life-or-death decision given to the
jury is absolutely lawless. It is a raw, arbitrary power to
kill or to let live, unguided by principle, undirected by
concern for specified relevant facts, uncontrolled by any
general rules of law, unleashed of any requirement that it
be exercised pursuant to valid reasons or even to agreed-
upon reasons (since the twelve jurors may vote to kill for
twelve disparate reasons), and uncontrollable, unreviewable
by any other power in the legal system. It is, simply, the
power to take away a convicted man’s life for any reason
(good or bad, rational or irrational, generally applicable
or trotted out for the occasion) or for no reason at all—
on a whim, a caprice—or because the defendant did not
take the witness stand; because he took the stand, slander
ously claimed consent, and was disbelieved; or because of
the color of his skin.
Let us examine more closely the nature of this extraor
dinary “discretion.”
(1) Its exercise is not required to rest upon any
prerequisite findings of fact. Such findings, of course,
are required to support virtually every other judgment
of a jury in our legal system. “I f you find that the
defendant did strike the plaintiff with his car . . . ”—
thus runs the archetypal jury charge. The requirement
of factual findings serves both to guide the conscien
tious juror and to provide a basis for judicial control
by review of the unconscientious one. But a death-
sentencing jury need find no facts, either of a specific
39
sort (for example, that the rape resulted in substantial
bodily harm to the victim ;44 45 or that the defendant has
been convicted, or has committed, other rape of-
enses46), or of a more general sort (for example, that
the defendant is a likely rape recidivist, or that he is
incapable of rehabilitation).
(2) Nor is there any legal prescription, to guide
the jury or enable review of its judgment, of any
preclusive factual findings: circumstances that ex
clude the death penalty (for example, the defendant’s
youth; or conduct by the victim which led the defend
ant on).
(3) Nor is the jury required to consider, or to take
account of, any specified facts or concerns.
(4) Nor is there any enumeration, for the jurors,
of specified facts or concerns which they may consider.
The jury’s attention is not directed to any range or
realm of available factual or judgmental considera
tions.
(5) Nor is there enumeration and proscription of
impermissible considerations. The jury is not told
that it may not sentence the defendant to death for
his unregenerate bad taste in taking the stand and
perjuriously claiming consent; or for not taking the
stand.
(6) There is no prescription of guiding criteria,
legal norms, standards or principles for judgment. In
44 T h e S ta te o f N e v a d a re q u ire s su ch a f in d in g as th e p r e c o n d i
t io n o f th e im p o s it io n o f a d e a th sen ten ce in a r a p e p ro se cu t io n .
S ee n o te 13 supra.
45 T h is is th e so r t o f f in d in g re q u ir e d to s u p p o r t th e im p o s it io n
o f th e h a rsh er p e n a lty a llo w a b le u n d e r co m m o n sta te le g is la t io n
d e a lin g w ith re c id iv is ts .
40
some areas of law, where legal doctrine can do no bet-
ter, jurors are permitted to employ such general stan
dards as “ reasonable care” or “ the conduct of a rea
sonable man.” These standards are imprecise, but they
are standards; they serve to tell the jury what the law
has determined is the test or benchmark by which the
defendant is to be judged. The defendant is liable to
the plaintiff if he did not act with the degree of care
which a reasonable man would have employed; the jury
may decide (within limits) what that degree of care is,
but they are told that they must not find against the
defendant if he exercised it. No equivalent guidance
is provided to the death-sentencing jury. It may—
indeed, it must—make up its own governing principles,
which may or may not be those that other juries apply
to other convicted men. In fact, not even this much
rational deliberation is required, for it is illusory to
speak about the death-sentencing “jury” and “ its” gov
erning principles. The jurors are not directed or re
quired to discuss or to agree upon any common set of
principles; and the court’s instructions (unlike even
such formulations as the “ reasonable man” ) give them
nothing to focus any such discussion.
“ The precise point which prompts the penalty
in the mind of any one juror is not known to us
and may not even be known to him. Yet this dark
ignorance must be compounded twelve times and
deepened even further by the recognition that any
particular factor may influence any two jurors in
precisely the opposite manner.
" . . . Such factors as the grotesque nature of
the crime, the certainty of guilt, or the arrogant
behavior of the defendant may conceivably have
assured the death penalty. . . . Yet who can say
41
that these very factors might not have demon
strated to a particular juror that a defendant, al
though legally sane, acted under the demands of
some inner compulsion and should not die! . .
(People v. Hines, 61 Cal.2d 164, 169, 390 P.2d 398,
402, 37 Cal. Rptr. 622, 626 (1964).)
(7) There is no prescription even of the ultimate
legal goals and purposes to be considered in the formu
lation of criteria to guide the death-sentencing deci
sion. Anglo-American law addresses its vaguest sort
of directions to courts in such matters as child custody
cases, where the “best interests of the child” or some
equivalent formulation is the touchstone, or in eco
nomic regulation, where “unreasonable” restraints of
trade are forbidden. Death-sentencing jurors have not
even the direction and delimitation, the concentration
of attention upon specified general objectives, which
these vague formulations comport. Rather, the power
of life-or-death decision is wholly unguided and un
constrained, unlike any other decision made by a law
ful tribunal within our legal traditions.46 It can only
be likened to the power that would be conferred by a
practice—inconceivable in any American court—of
submitting to a jury in a civil case the naked ques
46 See Kalvin & Zeisel, The A merican Jury (1 9 6 6 ) 4 3 5 :
“ T h e d is c re t io n w h ich th e [d e a th -se n te n c in g ] ju r y in th e
U n ite d S ta tes is a sk ed to e x e rc ise is, i t sh o u ld be em p h a sized ,
s t r ik in g : th ere is n e ith e r ru le n o r s ta n d a rd to g u id e it . F o r
th is rea son , co m p a r iso n o f ju d g e a n d ju r y d e c is io n m u st h ere
d e p a r t f r o m th e s ta n d a rd p a tte r n o f a n a ly s is w h ich d iscu ssed
d isa g reem en t in term s o f w h y th e ju r y d if fe r r e d f r o m th e
ju d g e . W e h a v e v ie w e d th e la t te r [ in a ll s o r ts o f o th e r le g a l
ju d g m e n ts ] as a k in d o f b a se lin e r e p re s e n t in g th e la w , a n d
w e h ave tr ie d to t r a c e th e n u a n ce s o f j u r y ju d g m e n t as it
d e v ia te d f r o m th e le g a l n o r m o f th e ju d g e . F o r th e d ea th
p e n a lty , h ow ev er , th e ju d g e is n o t ‘ th e la w ’ h u t m e r e ly a n
o th e r d e c id e r . I n n o m e a n in g fu l sense ca n i t he sa id th a t th e
ju d g e ’s d e c is io n is m o re re p re se n ta tiv e o f th e la w th a n is th e
j u r y ’s .”
42
tion: “ Should the defendant be liable to the plaintiff!”
— or, in a criminal matter: “Has the defendant done
something for which he should be punished!”
“We wouldn’t turn it over to a jury, the deter
mining of whether the father or the mother or
whether the grandmother or a sister-in-law got
the child, according to the absolute whim or ca
price, or, as you put it, the discretion of the jury.
We wouldn’t turn over to the whim of a jury the
determination of whether a fox terrier belonged
to the husband or the wife in a separation. We
wouldn’t let a jury determine that with absolute
discretion. Any issue in the whole legal system
that you can think of, rights, property rights, per
sonal rights, are guided by precedents, by stan
dards, and to leave to a jury the absolute discre
tion to determine whether a person lives or dies,
without any guidance, or any compass or standard,
principles or anything else, is foreign to the whole
basic tradition o f the Anglo-Saxon common law.
That is the hurdle you have to face and that the
Court has to meet in passing on this question.” 47
47 W e q u o te th is p a ssa g e b eca u se it su m m a rizes b e tte r th a n a n y
th in g w r it te n on th e s u b je c t , a n d b e tte r th a n a n y th in g w e c o u ld
sa y , th e n a tu re a n d th e v ic e o f s ta n d a rd le ss d is c re t io n in ca p ita l
s e n te n c in g b y a ju r y . T h e p a ssa g e is a t r a n s c r ip t io n o f a s ta tem en t
b y C h ie f J u s t ic e T r a y n o r d u r in g a c o l lo q u y w ith th e A ss is ta n t
A t t o r n e y G en era l o f C a lifo r n ia in th e co u rse o f th e a rg u m e n t in
In re Anderson,-------- C a l .2 d ---------- , 447 P .2 d 117 , 73 C al. R p t r . 21
(1 9 6 8 ) , a case d iscu ssed a t p p . 4 5 -5 6 infra. S ee T r a n s c r ip t o f
P r o c e e d in g s in th e S u p re m e C o u r t o f C a li fo r n ia , In re Anderson,
C rim . N o . 11 ,572 , M a rch 28, 1968, p p . 107 -108 . H o w e v e r , b eca u se
q u e stio n s a sk ed fr o m the b e n ch m a y c o n v e y a m is le a d in g im p r e s
s ion o f a ju d g e ’s v iew s , a n d b eca u se w e w o u ld n o t w ish to ru n th e
s lig h te s t r isk o f m is re p re se n t in g th ose o f C h ie f J u s t ice T r a y n o r
— ev en w h ile u s in g h is w o r d s e x c lu s iv e ly f o r th e p u rp o se o f e x
p r e s s in g o u r o w n th o u g h ts— w e fe e l o b lig e d to s e t fo r t h h ere tw o
su b seq u en t, re la te d p assages in th e c o l l o q u y :
“ Chief Justice Traynor: I w o n d e r i f you were m a k in g
th is a rg u m e n t, M r. H a rr is . I d o n ’t w a n t to p u t w o r d s in to
43
(8) There is no review of the jury’s decision, and
no judicial safeguard of any sort against invidious dis
criminations and other abuses. It is therefore not sur-
y o u r m ou th . Y o u lo o k a t th is p r o b le m o f s ta n d a rd s r ig h t in
th e fa c e a n d i t ’s a w fu l ly ea sy to ta lk a b o u t sh ip s w ith o u t
r u d d e r s o r com p a ss , b o a ts w ith o u t o a rs a n d so fo r t h , a n d a b o u t
a ss ig n in g a f o x te r r ie r to o n e p e rs o n o r a n o th e r w ith o u t
s ta n d a rd s , b u t in th is a rea y o u ju s t c a n ’t f in d w o rk a b le s ta n
d a rd s . A n y k in d o f fo r m u la th a t y o u p u t u p w o u ld s im p ly
b e m a g ic w o rd s , a t best. W e h a v e n ’t h e a rd o f a n y p re c ise
s ta n d a rd s th a t w o u ld n ’t be lik e m o u th in g fo r m u la s t o th e
ju r y th a t it sh o u ld tak e in to c o n s id e ra t io n su ch a n d su ch
fa c t o r s a n d so fo r t h . Y o u c a n ’t g e t a n y th in g as p re c ise as a
r u d d e r o r a n oa r a n d so fo r th . T h a t b e in g th e case, th e q u e s
t io n is w h e th e r y o u are g o in g to h a v e d ea th o r n o t. T h e S ta te
c o u ld sa y th a t e v e ry k il l in g o r ce r ta in k illin g s , ju s t a u to
m a t ic a lly b r o u g h t o n th e d ea th p e n a lty . T h e p re se n t sy stem
is a d isp en sa tion th a t th e S ta te has m ad e. I t is fu t i le to th in k
o f s ta n d a rd s . I d o n ’t k n o w w h e th e r y o u m a k e th a t a rg u m e n t
o r n ot.
“ Chief Justice Tbaynor: L e t m e see i f I ca n resta te y o u r
a r g u m e n t a b o u t d is c re t io n , th a t th ere a re m a n y in s ta n ces , as
y o u p o in te d ou t, w h e re m a tters a re l e f t to th e d is c r e t io n o f
th e t r ia l ju d g e , a n d th a t is b eca u se th e a p p e lla te co u r ts , in
th e ir w isd o m a n d e x p e r ie n ce , d o n ’t k n o w w h a t p r e c is e s ta n
d a r d s sh o u ld b e set d o w n , b eca u se th e y a re n o t— th e y h a v e n ’t
h a d e n o u g h e x p e r ie n ce , h a v e n ’t h a d e n o u g h eases to le a d th em ,
h a v e n ’t h a d en o u g h sp e c if ic item s. S o w h e n th e a p p e lla te c o u r t
d o e s n ’t k n o w th e an sw er, it tu rn s th e m a tte r o v e r to th e d is
c r e t io n o f th e t r ia l ju d g e , ju s t as in m a n y in s ta n ces w h en w e
d o n ’t k n o w th e a n sw e r to a re a l to u g h q u estion , w e t u r n i t
o v e r to a ju r y .
“ N ow , h ere is th e to u g h e s t q u e stio n o f a ll th a t h u m a n b e in g s
h ave to fa ce , as to w h e th e r a m a n s h o u ld d ie o r n ot. A m an ,
sa y , w h o has th ro w n g a so lin e in to a ta v e r n a n d ca u sed , sa y ,
sev en o r e ig h t p e o p le t o be b u r n e d ; a m an w h o ra p e s a g ir l
a n d s a v a g e ly c u ts h e r u p ; w h o d o e s a ll o f th e o th e r h e in ou s
th in g s th a t som e o f these p e o p le h a v e b een c o n v ic te d o f .
“ N o w , th e q u estion is th is : S h o u ld th a t p e rs o n d ie o r n o t ?
W h e r e a re y o u g o in g to g e t th e g u id a n c e th a t is g o in g to te ll
y o u w h eth er a p e rso n sh o u ld d ie o r n o t?
“ M a y b e th e a n sw er is th a t b eca u se y o u h a v e n o a n sw er , a
c iv i liz e d s o c ie ty w o u ld n ’t h a v e th e d ea th p e n a lty . B u t y o u
m ig h t re ta lia te to th a t, th a t is r e a lly a q u e stio n f o r th e le g is
la tu re , b u t on th is q u e stio n o f s ta n d a rd s i t is im p o ss ib le to
44
prising that the performance of jurors in the exercise
of the lawless discretion given them is not merely ir
regular48 and arbitrary in particular cases,49 but ex
a r t ic u la te a 's ta n d a rd . O f a ll th e q u e s tio n s th a t c o u ld be p r o
p o u n d e d to m a n k in d , th is is on e w h ic h w o u ld d e fy a S o lo m o n .”
{Id., a t p p . 113 -114 , 1 2 0 -1 2 1 .) W e m ig h t a d d , c o n c e r n in g th is
last q u o te d p assage , th a t a g a in in o u r ju d g m e n t i t g oes d ir e c t ly to
th e h e a r t o f th e m a tter . W e q u ite a g re e th a t co m m o n e x p e r ie n ce
fu r n is h e s n o ea sy a n sw ers r e la t in g to th e s ta n d a rd s th a t sh ou ld
g o v e r n c a p ita l s e n te n c in g . A l l th e m o re rea son , w e h ave su g g ested ,
w h y th e d e a th -se n te n c in g d e c is io n c a n n o t p r o p e r ly be le f t to th e
u n g u id e d d e c is io n s o f in d iv id u a l ju r ie s . (S e e p p . 3 3 -3 4 supra.)
W e d e n y th a t i t w o u ld be im p o ss ib le f o r a le g is la tu re to p r o v id e
s ta n d a rd s g o v e r n in g c a p ita l s e n te n c in g , i f th e le g is la tu re g a v e the
m a tte r p r o p e r a tte n t io n a n d h a d r a t io n a l u lt im a te g o a ls in a u th o r
iz in g c a p ita l p u n ish m e n t as th e a v a ila b le p e n a lty in a n y case.
(S e e n o te 67 infra.) H o w e v e r , i f th e n a tu re o f th e d ea th p e n a lty ,
o r o f a le g is la tu r e ’s rea son s f o r o r d a in in g it , is su ch th a t n o r e g
u la r , ra tio n a l, e v e n -h a n d e d p o lic ie s o f g e n e ra l a p p lic a b il i ty ca n be
fo r m u la te d to g o v e r n its a d m in is tra t io n — w ith th e n e ce ssa ry resu lt
th a t in d iv id u a ls m u st be c o n d e m n e d to d ie ir r e g u la r ly , ir ra t io n a lly ,
u n e v e n ly : in sh ort, a r b it r a r i ly a n d w ith o u t d u e p ro ce ss o f la w —
th e n i t is o u r v ie w p r e c is e ly th a t th e D u e P r o c e s s C lau se fo r b id s a
c iv i liz e d so c ie ty to u se th is s o r t o f p e n a lty . I f a s a n c t io n ’s use
cannot be m a d e co n s is te n t w ith d u e p ro ce ss , th e C o n s t itu t io n o f th e
U n ite d S ta tes m ak es q u ite c le a r th a t th e sa n ctio n , n o t d u e p rocess ,
m u st b e a b a n d o n e d .
48 S ee Kalven & Zeisel, The A merican Jury (1 9 6 6 ) 437-449 .
E x a m in in g ju r y p e n a lty d e c is io n s in 111 d e a th cases, a n d th e
p r e s id in g ju d g e s ’ e v a lu a t io n s o f th em , K a lv e n a n d Z e ise l fin d th a t
ju r o r s a n d ju d g e s a g re e on a sen ten ce o f im p r is o n m e n t in 76 cases,
a g ree on d ea th in 14, a n d d isa g re e in 21. S ig n if ic a n t ly , th e re fo re ,
w h ere d e a th is th e o u tco m e , th ere is m o re o f t e n d isa g reem en t th an
a g reem en t. P a tte r n s in j u r y s e n te n c in g em e rg e , in th e sense th a t
d ea th -se n te n ce cases are fr e q u e n t ly ch a r a c te r iz e d b y th e sam e sorts
o f a g g r a v a t in g c ircu m sta n ces . B u t th ese sam e fa c t o r s a p p e a r in
m a n y cases w h ere th e d e a th sen ten ce is n o t im p o se d . “ M a n y o f th e
m u r d e r cases in w h ich th e ju d g e a n d j u r y d isa g re e on th e d ea th
p e n a ly a p p e a r n o less h e in o u s th a n th ose in w h ich th e y a g re e .” Id.,
a t 439. “ T h e le n ie n c y ca te g o r ie s h a v e a p la u s ib le r in g . B u t the
b r u te fa c t is th a t each tim e on e o f th e fa c t o r s lis te d w a s p ersu a siv e
to on e o f th e d e c id e rs , it w as u n p e rsu a s iv e to th e oth er. E ith e r th e
ju d g e o r th e j u r y w as w ill in g , d e sp ite th e p re se n ce o f th e le n ie n cy -
d is p o s in g fa c t o r , to h a v e th e d e fe n d a n t e x e c u te d .” Id., a t 444.
49 S ee p p . 11 -13 supra.
45
Mbits grossly unconstitutional discriminations50 which
the courts have been unable to control or correct. We
put aside, for present purpose, the question whether a
state is federally obligated to provide at least some
minimal form of judicial review of a jury’s determina
tions;60 61 or whether, if its highest court freely reviews
jury-fixed sentences in non-capital cases (as does Ar
kansas’ ), il may deny all power of review in capital
cases alone.62 The point we make here is that a total
absence of standards to govern the jury’s decision
making function—a defect that would defeat any
meaningful judicial review which is allowed—is the
more baneful, if possible, where there is no judicial
review. The jury makes the one and only judicial de
cision that a capital defendant is allowed on the ques
tion whether he lives or dies; and makes that decision
entirely arbitrarily.
B . The Grant o f Lawless Power in Capital Sentencing is
Unconstitutional.
We submit that the practice just described violates the
rule of law basic to the Due Process Clause. The same
submission was recently made to the Supreme Court of
California, wMch rejected it by a vote of four Justices to
three. In re Anderson,------ Cal.2d------ , 447 P.2d 117, 73
Cal. Eptr. 21 (1968). Justice Tobriner, joined by Chief
Justice Traynor and Justice Peters, dissented in an opinion
that states our position with incomparable lucidity. It was
the view of the dissenters that the California statutes grant
ing unfettered discretion to juries in capital sentencing
“violate the Fourteenth Amendment of the Constitu
tion of the United States because they provide no
60 S ee p p . 13 -20 supra.
51 C f . Thompson v . City of Louisville, 362 U .S . 199 (1 9 6 0 ) .
62 C f. Baxstrom v . Herrold, 383 U .S . 107 (1 9 6 6 ) .
46
standards or tests whatsoever to enable Judge or jury
to decide why one convicted capital defendant should
die and another should live. The California penalty
trial leaves this vital decision to the unguided whim
and caprice of the trier of fact; this irrational process,
the antithesis of due process, has no place in the con
stitutional structure of American law.” (Tobriner, J.,
joined by Traynor, C.J., and Peters, J., concurring
and dissenting in In re Anderson, supra, 73 Cal. Rptr.
at 36.)53
We commend the reasoning of the Anderson dissenting
opinion to this Court. After examining the nature of the
power which standardless capital-sentencing legislation
confers upon the jury and concluding that it requires the
jury “ to perform a sui generis function which subjects the
convicted capital defendant to a power of arbitrary deci
sion” (Anderson Dissent, p. 40 (original emphasis)), the
opinion states the constitutional premise against which
such a power must be judged:
“The constitutional imperative that laws infring
ing upon life and liberty be framed in terms of rea
sonably ascertainable standards is central to our ad
ministration of criminal justice.” (Anderson Dissent,
P- 42.)
Surely, this proposition is beyond dispute. For whatever
else “due process of law” may encompass, it has always
been thought to impose some demand of fundamental pro
cedural regularity in decision-making, some insistence upon
the rule of law, some adherence to the principle established
by Magna Carta that the life and liberty of the subject 63
63 T h e d is se n t in g o p in io n is a t 73 C a l. R p t r . 36-59. W e sh a ll
h e r e a fte r c ite it as Anderson Dissent, p. . . . , r e fe r r in g to the
p a g e s in 73 C a l. R p t r .
47
should not be taken but by the law of the land. This Court
has long condemned the sort of vagueness in criminal
statutes that “ licenses the jury to create its own standard
in each case,” Herndon v. Lowry, 301 U.S. 242, 263 (1937).
See, e.g., Smith v. Cahoon, 283 U.S. 553 (1931); Cline v.
Frink Dairy Co., 274 U.S. 445 (1927); Winters v. New
York, 333 U.S. 507 (1948). Statutes which authorize ad
hoc adjudications unconstrained by legal principles o f gen
eral application thereby confer a “naked and arbitrary
power” (Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886)),
which is at war with Due Process. The vice of such statutes
is not alone their failure to give fair warning of prohibited
conduct, but the breadth of room they leave for jury ar
bitrariness and the influence of impermissible considera
tions, N.A.A.C.P. v. Button, 371 U.S. 415, 432-433 (1963);
Freedman v. Maryland, 380 U.S. 51, 56 (1965); Lewis,
The Sit-In Cases: Great Expectations, 1963 S uprem e
Court E eview 101, 110; Note, 109 U. P a . L. E ev . 67, 90
(1960), including racial considerations, see Louisiana v.
United States, 380 U.S. 145 (1965); Dombrowski v. Pfister,
380 U.S. 479 (1965); Cox v. Louisiana, 379 U.S. 536 (1965),
and every other insidious urging of caprice or prejudice.
The Anderson dissent points out that this basic princi
ple of legality, of the rule of law, is no less applicable to
a court’s sentencing function than to its guilt-determining
function. It notes this Court’s recent explicit recognition
in Witherspoon v. Illinois, 391 U.S. 510, 521 n. 20 (1968),
that while sentencing choice—and, in particular, the choice
of life or death—may be :
“different in kind from a finding that the defendant
committed a specified criminal offense, . . . this does
not mean that basic requirements of procedural fair
ness can be ignored simply because the determination
involved in this case differs in some respects from the
48
traditional assessment of whether the defendant en
gaged in a proscribed course of conduct.”
Witherspoon, say the Anderson dissenters:
“ therefore squarely stands for the proposition that the
requirements of the Fourteenth Amendment—those
that go to the very fairness and integrity of the
penalty-determining process— apply to the procedure
pursuant to which the state, be it by judge or jury,
takes the life of a capital offender.” (Anderson Dis
sent, p. 40.)
And other recent decisions of the Court point ineluctably
to the same conclusion. See cases cited at p. 27 supra.
The question, then, is whether an unlimited grant of
arbitrary power to make the life-or-death sentencing choice
falls afoul of the Fourteenth Amendment’s requirements
that “go to the very fairness and integrity of the penalty
determining process.” The Anderson dissenters conclude,
and we here submit, that it does, for several reasons.
First, the totally undefined issue that is presented for
the jury’s decision makes it impossible for the defendant,
whose life is at stake, advisedly and intelligently to pre
pare and present his defense on the sentencing question.
We shall see in Part II of this brief, pp. 66-78 infra, that
the single-verdict trial procedure in capital cases im
measurably exacerbates the unfair litigation posture in
which the defendant is put, by requiring him to fashion
his case in a manner that sets at loggerheads his interests
in a fair trial of the guilt question and a sound penalty
determination. But, even without this additional handicap,
the capital defendant who confronts a jury armed with
unconfined and unguided power to sentence him to life or
death is denied the least semblance of a fair trial on the
matter of penalty. This Court has long recognized the
49
“principle of procedural due process . . . that notice of
the specific charge, and a chance to be heard in a trial of
the issues raised by that charge, if desired, are among the
constitutional rights of every accused in a criminal pro
ceeding in all courts, state or federal.” Cole v. Arkansas,
333 TT.S. 196, 201 (1948). See In re Gault, 387 U.S. 1, 33-34
(1967). Even in non-criminal matters, the. Court has found
a Due Process right to adequate notice of the issues posed
for adjudication in a proceeding affecting individual in
terests. E.g., Holden v. Hardy, 169 U.S. 366, 389 (1898);
Morgan v. United States, 304 U.S. 1 (1938); Gonzales v.
United States, 348 U.S. 407 (1955). A fortiori, such no
tice and an “ opportunity to be heard” are required in the
sentencing phase of a criminal case, Specht v. Patterson,
386 U.S. 605, 610 (1967), particularly where the jury is
“ empowered . . . to answer ‘yes’ or <no’ to the question
whether this defendant [is] . . . fit to live,” Witherspoon
v. Illinois, 391 U.S. 510, 521 n. 20 (1968). But without
rules of decision “ sufficiently definite to guide the lawyer
in contesting their applicability to his client . . . , the right
to a hearing would be of little value, because there would
be no adequate standards toward which argument and
evidence could be directed.” Note, 62 H arv. L. R ev . 77, 78
(1948).6,1 64
64 T h e Anderson Dissent, p . 44 , n . 9 q u o tes th e f o l lo w in g p a ssa g e
fr o m th is H a r v a r d N ote , w h ich id e n tifie s th e tw o d u e p r o c e s s c o n
ce rn s th a t a re a t th e c o re o f th e p re se n t c a s e :
“ ‘ [D ] u e p rocess re q u ire s th e a d ju d ic a t io n o f an in d iv id u a l ’s
r ig h ts a n d d u tie s to b e g o v e r n e d b y r u le s o f su ffic ien t o b je c
t iv i t y to g u a r d a g a in s t a n a r b it r a r y o r ad hominem re su lt .
I t fo l lo w s th a t su ch ru les , w h e n e m b o d ie d in a sta tu te , m u st
b e d e fin ite e n o u g h to en a b le th e ju d g e to m a k e r u lin g s o f la w
a n d ch a rg es to th e ju r y w h ic h a re so c lo s e ly re fe r a b le t o th e
s ta tu te as to a ssu re c o n s is te n c y o f a p p lica t io n .
“ ‘D u e p ro ce ss re q u ire s , in a d d it io n , th a t th e ru le s b e su ffi
c ie n t ly d e fin ite t o g u id e th e la w y e r in co n te s t in g th e ir a p
p lic a b il i t y to h is c lien t. W it h o u t th is la t te r re q u ire m e n t, the
r ig h t to a h e a r in g w o u ld b e o f l it t le v a lu e , b eca u se th e re w o u ld
50
It would be fair to describe the defendant’s situation in
a capital trial as a deadly guessing game. He cannot know
what facts or positions will save him or cost him his life.55
The legislature has not told him, or told the jury, when
capital punishment is to be imposed or why it is to be im
posed; and the jurors are free to take their own views.
Views on capital punishment being what they are in our
society, and the justifications for the death penalty being
rather obscure matters of personal taste in the absence of
some legislative specification, the jurors’ attitudes will
range wildly. A defense of consent which may not con
vince the jury to acquit the defendant may nevertheless
lead it to the conclusion that—because the prosecutrix was
less than firm in her resistance—the defendant should not
be executed. Or the jury may think the degree of resistance
by the prosecutrix irrelevant. Particularly where the de
fendant is Negro and the prosecutrix white, the defense
of consent may cause the jury to execute the defendant for
the unpardonable offense of adding slander to rape. Given
its grisly risks, how is counsel to know what he stands
to gain by making the defense? 65
b e n o a d e q u a te s ta n d a rd s to w a r d w h ic h a rg u m e n ts a n d e v i
d e n ce c o u ld be d ir e c te d . B o th o f th ese re q u ire m e n ts w o u ld
seem to be sa tis fied b y th e sam e d e g re e o f d e fin ite n e s s ; a sta tu te
w h ic h is su ffic ie n tly d e fin ite to g u id e th e ju d g e sh o u ld a lso
b e su ffic ie n tly d e fin ite t o g u id e th e la w y e r in lit ig a t io n , b e
cau se th e re th e fu n c t io n o f ea ch is th e sam e— to test a p p lic a
t io n o f ru les to p a r t ic u la r s itu a t io n s .’ (N o te , D u e P ro ce ss
R e q u ire m e n ts o f D e fin ite n e ss in S ta tu te s (1 9 4 8 ) 62 H a rv . L .
R e v . 7 7 -7 8 . ) ”
65 “ W e m u st a ssu m e th a t in e s ta b lish in g th e a lte rn a t iv e p u n is h
m en ts o f d e a th a n d l i fe im p r is o n m e n t ra th e r th a n se tt in g d o w n
o n e m a n d a to r y p u n ish m e n t, th e L e g is la tu r e c o n c lu d e d th a t n o t a ll
c a p ita l o ffe n d e rs sh o u ld be p u n ish e d b y th e e x tre m e p e n a lty . . . .
Y e t th e c u r r e n t a d m in is tra t io n o f th e d e a th p e n a lty , b y fa i l in g to
p r o v id e c r it e r ia su ffic ie n tly a s ce rta in a b le to g u id e co u r ts a n d ju r ie s
in m a k in g th a t d is t in c t io n , p re v e n ts a c o n v ic te d ca p ita l d e fe n d a n t
fr o m k n o w in g h o w to sh o w th a t he fa l ls w ith in th e c lass o f ca p ita l
o ffe n d e rs f o r w h o m th e la w c o n te m p la te s th e le sser p e n a lty o f l i fe
im p r is o n m e n t .” Anderson Dissent, p. 44.
51
I f the defendant was under the influence of alcohol or
drugs, the jury may take the view that that is a mitigating
incident—or an aggravating one. Five jurors may have
sympathy for a defendant who displays a severe mental
or emotional disorder not amounting to legal insanity;
while seven, who would reserve the death penalty for just
such perverted savages, vote to kill him. for his disorder.
See People v. Hines, quoted at pp. 40-41, supra. The re
sult is not a litigation in any ordinary sense but a flailing
contest or a gambling escapade in which the wages of a
misplaced guess are death. This is simply not a Due
Process trial. See Anderson Dissent, pp. 43-44.
Second, “ the complete absence of standards in the ad
ministration of the death penalty deprives the convicted
capital defendant of any way to protect himself against an
arbitrary imposition of the death penalty. Since no limita
tions bound the exercise of the discretion of the trier of
fact, the defendant can neither challenge the evidence in
troduced . . . on the ground of insufficiency nor seek review
on the ground of erroneous application of the death penalty
to him.” Anderson Dissent, p. 44. Standardless death-
sentencing thus effectively strips the convicted capital de
fendant of all of the safeguards of the Constitution in con
nection with the life-or-death penalty decision. Jurors may
inflict death upon him for reasons or by processes forbidden
by the clearest constitutional commands, and yet get away
with it. The inability of the district and circuit courts
below to come to grips with petitioner Maxwell’s contention
of racial discrimination is a striking example of how con
stitutional protections founder in the sea of limitless dis
cretion that envelops and conceals the jury’s decision
making process. The district court avoided Maxwell’s com
pelling statistical showing of racially discriminatory sen
tencing patterns on the part of Arkansas juries by as
suming that the factors which might be affecting the jurors
52
in their selection of the men sentenced to die were so subtle
and complex that statistics could not take account of them
all. (See A. 39-40.) Thus, although the court itself found
as a fact that Negroes convicted of the rape of white vic
tims were disproportionately frequently given death sen
tences, and although it was uncontested that no non-racial
factor of which analysis was possible on the basis of an
exhaustive empirical study could explain the racial death-
sentencing differential, the court was able to imagine fac
tors that must have escaped identification or measurement
and that could account for the differential.56 Perhaps. Such
is the range of freedom in the jurors’ sentencing decision
that almost any speculation is possible.
The court of appeals took a somewhat more hard-headed
view of the evidence and did not really deny that petitioner
had proved a state-wide practice of racial discrimination.
It rejected his Equal Protection contention principally on
the ground that the particular jury which sentenced Max
well to die had not been shown to have a discriminatory
motivation. (A. 59-64.) Doubtless this last conclusion is
factually correct. Since, under Arkansas law, Maxwell’s
jurors could have had almost anything in mind—or nothing
in mind—to support their death verdict, it is quite impos
sible to say.
It has been pointed out that one of the purposes of the
Due Process requirement of definiteness in penal legisla
tion is to delimit “ to what extent the administration of
public order can assume a form which, first, makes pos
sible the deprivation sub silentio of the rights of particular
citizens and, second, makes virtually inefficacious the fed
eral judicial machinery established for the vindication of
those rights.” Note, 109 IT. Pa. L. R e v . 69, 81 (1960). The
56 Viz., th e “ issu e o f co n s e n t” d is cu sse d a t A . 40.
53
function of courts to protect against the deprivation of
specific constitutional guarantees— such as the guarantee
against racial discrimination— “requires at the least a con
tinued surveillance to assure the regularity of legislated
and administered modes of applying public compulsion to
all particular men. It requires, as a corollary, the mainte
nance of a state of institutions in which that surveillance
is kept effective.” Id., at 89. If ever a form of penal enact
ment flouted these requirements, and thereby established a
regime of administration in which nothing was certain but
that denials of federal rights would go undetected and un-
correctible, standardless death-sentencing legislation is that
form.
Third, the arbitrary power which this legislation confers
to differentiate among convicted rape defendants by sen
tencing some to life and some to death for any or no reason
violates a constitutional concern in regard to which “ the
equal protection and due process clauses of the Four
teenth Amendment overlap.” Anderson Dissent, p. 47.
This is the concern for even-handed treatment which al
lows “no invidious discriminations between persons and
different groups of persons,” Griffin v. Illinois, 351 U.S. 12,
17 (1956), and ordains that all shall “ ‘stand on an equality
before the bar of justice in every American court,’ ” ibid.,
quoting Chambers v. Florida, 309 U.S. 227, 241 (1940). A
corollary of these propositions is that differences in the
treatment of individuals by the courts must have some ra
tional basis: that is, there cannot be differentiations with
out differences, nor differentiations along lines of differ
ence that have no rational relation to the purpose for dif
ferentiating. E.g., Rinaldi v. Yeager, 384 U.S. 305 (1966);
Baxstrom v. Herrold, 383 U.S. 107 (1966). Particularly
where “legislation . . . involves one of the basic civil rights
of man . . . , strict scrutiny of the classification which a
State makes . . . is essential, lest unwittingly or otherwise,
54
invidious discriminations are made against groups or types
of individuals in violation of the constitutional guaranty
of just and equal laws.” Skinner v. Oklahoma, 316 U.S.
535, 541 (1942).
The Skinner case held that a state could not, by legisla
tive classification, draw the line of sexual sterilization be
tween thieves and embezzlers. “ When the law lays an un
equal hand on those who have committed intrinsically the
same quality of offense and sterilizes one and not the other,
it has made . . . [a constitutionally forbidden invidious
discrimination].” Id., at 541. We take it that, under
Skinner, a state could not constitutionally draw the line of
death between thieves and embezzlers either; nor could it
permit its juries to draw so irrational a line in the exercise
of a general death-sentencing discretion. If this is so, it
is difficult to conceive how Arkansas may give its juries
arbitrary power—which necessarily includes the compe
tence to draw lines as unsubstantial as the line between
thieves and embezzlers, or more unsubstantial still—with
out falling afoul of the same constitutional interdiction.
This is not to say, of course, that a state may not consti
tutionally provide for differential sentencing of offenders
convicted of the identical offense. There is no inconsist
ency whatever between the principle of equality and a
procedure for individualizing sentencing—even death sen
tencing. “Equality and individualization go together; they
complement each other. They are of one piece.” 67 This is
so because any system of individualization that efficiently
serves the penal interests of the state must necessarily be
based upon some rational scheme for differentiating among
offenders; and if the bases of differentiation are rational, 57 *
57 Rubin, Disparity and Equality of Sentences—A Constitutional
Challenge, 40 F .R .D . 55 , 69 (1 9 6 6 ) .
55
the Fourteenth Amendment is satisfied. The trouble with
standardless death-sentencing legislation is that it author
izes irrational differentiation.68 By
“ providing no classifieatory criteria whatsoever, [it]
permits the trier of fact arbitrarily to determine
whether [a] particular convicted capital defendant
should suffer death rather than life imprisonment.
Such absence of classification renders the current pro
cedure insufficient to satisfy even the minimum require
ment of the equal protection clause that differential
treatment of persons prima facie similarly situated
must bear some rational relation to a discernible legis
lative purpose. In failing to provide any rational basis
upon which to justify an imposition of the death pen
alty on those particular capital defendants sentenced
to death rather than life imprisonment, [standardless
death-sentencing statutes make an invidious discrimi
nation]. . . . ‘It is clearly unconstitutional to enable a
public official [let alone an ad hoc group of 12 individ
uals]69 to * * * engage in invidious discrimination
among persons or groups * * * by use of a statute pro
viding a system of broad discretionary * * * power.’
(Cox v. State of Louisiana, . . . 379 U.S. 536, 557
68 “ R e c o g n it io n o f th e p r o b le m cre a te d b y d isp a ra te sen ten ces
d oes n o t , h ow ev er , c o m p e l th e c o n c lu s io n th a t a ll o ffe n d e rs w h o
c o m m it th e sam e o ffen se o u g h t to re ce iv e th e sam e sen ten ce— th e
th e o r y o f ‘u n i fo r m s e n te n c in g .’ T h e re m a y be d if fe r e n t ia t in g p e r
son a l a n d so c ia l fa c t o r s w h ich re q u ire ‘ in d iv id u a l iz a t io n ’— d iffe re n t
sen ten ces f o r o ffe n d e rs w h o h ave e n g a g e d in th e sam e a n ti-so c ia l
c o n d u c t . B u t i f a sy stem o f in d iv id u a liz a t io n is to s a t is fy o b je c
tio n s a g a in st d is p a r ity , th e d is p a r ity in h e re n t in in d iv id u a liz a t io n
m u st re su lt fr o m th e a r t icu la te d a p p lic a t io n o f u n i fo r m c r ite r ia
d e s ig n e d to e ffe ctu a te a g r e e d -u p o n g o a ls .” N o te , 69 Yale L .J .
1453, 1459 (1 9 6 0 ) .
69 T h is b ra ck e te d in se r t io n is b y th e a u th o r o f th e Anderson
d issen t. T h e o th ers in th e p a ssa g e a re ou rs. E m p h a s is th r o u g h o u t
is fo u n d in th e o r ig in a l.
56
[1965] . . . ; Yick Wo v. Hopkins, . . . 118 U.S. 356, 366-
368 [1886] . . . .) Thus, the trier of fact’s absolute
power to impose the death penalty on a convicted cap
ital defendant violates the basic interdictment of the
equal protection clause that no person shall hold ‘a
naked and arbitrary power’ to make invidious dis
criminations against another. (Yick Wo v. Hopkins,
supra, 118 IJ.S. at pp. 366-368 . . .)” (Anderson Dissent,
pp. 49-50.)
Fourth, and most fundamentally, the process of the stan
dardless death-sentencing decision subjects the defendant
to an exercise of legally unregulated power which is anti
thetical to the rule of law expressed by Due Process.
“ The epitome of the vice of absence of procedural safe
guards inherent in vague and standardless statutes
thus permeates the administration of the death pen
alty: the defendant sentenced to death cannot even
show that an ad hoc group of 12 jurors . . . exercising
absolute power over his life abused this discretion.
[The statutes giving the jury such power] . . . thus
deny due process of law because they provide no
standards by which an abuse of discretion by the trier
of fact can be curbed or even subjected to review. The
power of the trier of fact to decree the death sentence
is as broad and arbitrary as it is absolute and un
touchable.” (Anderson Dissent, p. 44.)
In this aspect, what is constitutionally wrong with stan
dardless death-sentencing is that it collides violently with
a principle so basic that it hardly ever is or needs to be
explicitly asserted, because our entire system of law as
sumes it. It is the principle of legality. Standardless
death-sentencing is its opposite: arbitrariness. In order to
protect against the regime of arbitrariness, the fabric of
57
our legal structure—laws, Constitution, and courts—has
been established. The function of the structure, to main
tain the rule of law, has as its one most essential objective
to deny arbitrariness entrance to the system. For “the
very idea that one man may be compelled to hold his life,
or the means of living, or any material right essential to
the enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails, as
being the essence of slavery itself.” Tick Wo v. Hopkins,
118 U.S. 356, 370 (1886).
Under the principle of legality, it could scarcely be con
tended that an Arkansas statute would be valid which pro
vided: “Whoever is found condemnable in the discretion
of the jury shall be guilty of an offense.” 60 Yet we submit
60 S ee Packer, The Limits of the Criminal Sanction (1 9 6 8 )
9 2 -9 4 :
“ L e t u s su p p o se f o r a m o m e n t th a t a le g is la tu re , c o n te m
p la t in g th e m om en tou s p r o b le m o f d r a f t in g a n e w c r im in a l
c o d e , d e c id e d to so lv e its p r o b le m b y a s in g le g r a n d e n a c tm e n t :
w h o e v e r d oes a n y th in g b a d sh a ll be p u n ish e d as ju s t ic e m a y
re q u ire . W h e n a c o u r t is c a lle d u p o n to d e c id e w h e th e r J o h n
J o n e s , w h o h it h is n e ig h b o r o v e r th e h ea d w ith a h a m m er
d u r in g th e cou rse o f a n a rg u m e n t, has v io la te d th e sta tu te ,
is th e c o u r t m a k in g la w o r is i t a p p ly in g la w ! T h e q u estion
is a b su rd , o f cou rse . I n a sense, th e c o u r t is d o in g b oth . B u t
th e s ig n ifica n t q u estion , w h ich is co n ce a le d b y ca te g o r ic a l
tre a tm e n t o f la w -m a k in g a n d la w -a p p lic a t io n , i s : h o w g re a t
a d e g re e o f fr e e d o m is th e c o u r t a llo ca te d in d e c id in g w h e th e r
to tre a t J o h n J o n e s ’s c o n d u c t as c r im in a l? T h e e x tr e m ity o f
th e e x a m p le m ak es th e issue c lea r . . . . I t h a r d ly n e e d s a r g u
m e n t th a t th e h y p o th e t ic a l c r im in a l en a ctm e n t ju s t p r o p o s e d
— w h o e v e r d oes a n y th in g b a d sh a ll be p u n ish e d as ju s t ic e m a y
re q u ire — d oes v io le n ce to th e p r in c ip le o f le g a lity . A s th e e x
a m p le sh ow s, i t is n o t e n o u g h th a t th e la w fo r m a lly b e in g
a p p lie d is la w in ex isten ce a t th e tim e th e c o n d u c t c o m p la in e d
o f o c cu rre d . D e v ice s a re n e e d e d to en su re th a t th e a m o u n t o f
d is c re t io n e n tru ste d to th ose w h o e n fo r c e th e la w d o e s n o t
e x ce e d to le ra b le lim its . B u t th e w o r k in g o u t o f th e d ev ices
a n d th e d e c is io n a b o u t w h a t lim its a re to le ra b le a re fu n c t io n s
th a t fa l l to th e co u rts . I t is, o f cou rse , n o a c c id e n t th a t th e y
fa l l t o th e c o u r t s ; n e ith e r , h o w e v e r , is it th e r e s u lt o f a n y
58
that this suppositious statute stands no differently in light
of the relevant concerns of Due Process than the unregu
lated sentencing practice under which Arkansas juries con
demn some but not other men to die. The statute and the
sentencing practice have an indistinguishable vice: both
permit adjudications that take away a man’s liberty or his
life on an entirely ad hoc basis, without reference to rules
of decision that have ever been applied, or will ever be ap
plied, to any other man. When selection among individ
uals for the purpose of killing some of them is made in
this fashion—according not to laws of general application
but simply to the caprices of moment-to-moment, arbitrary
opinions61—more is wrong than that the men selected to die
are treated unequally as compared with the rationally un
differentiated men selected to live, or that the men selected
to die are treated irrationally with regard to any purpose
that might be advanced for the selection process or its
lethal consequences. WTiat is wrong, more essentially, is
that the men selected to die are treated lawlessly. “ Cer
tainly one of the basic purposes of the Due Process Clause
o m n ico m p e te n t la w g iv e r ’s d e lib e ra te p la n . I t is, v e r y s im p ly ,
■an in s t itu t io n a l n ecess ity . . . .
. “ • . . T h e d e v ice s w o rk e d o u t b y th e c o u r ts to k eep th e p r in
c ip le o f le g a l ity in g o o d r e p a ir c o m p r is e a c lu s te r o f d o ctr in e s
th a t g iv e th e c r im in a l la w m u ch o f its d is t in c t iv e co n te n t. F o r
o u r p u rp o se s it is e n o u g h to id e n t i fy a n d d e s c r ib e tw o o f these
d o c tr in e s , w h ich fa i r ly re p re se n t th e v a lu e s in v o lv e d . T h e y are
th e v o id -fo r -v a g u e n e s s d o c tr in e a n d th e d o c tr in e r e q u ir in g
s tr ic t c o n s tr u c t io n o f p e n a l sta tu tes . . . .
“ U n d e r th e v a g u en ess d o c tr in e in its s ta rk e st fo r m , th e c o u r t
sa y s to th e le g is la tu r e : y o u h a v e g iv e n so m u ch d is c re t io n in
p ic k in g a n d c h o o s in g a m o n g th e v a r io u s k in d s o f c o n d u c t to
w h ich th is sta tu te m a y he a p p lie d th a t w e w il l n o t le t i t be
a p p lie d a t a ll. T h a t is u n q u e s t io n a b ly th e resp on se th a t an
A m e r ic a n c o u r t w o u ld g iv e to th e p r o s e c u t io n o f J o h n J on e s
u n d e r th e h y p o th e t ic a l b a d c o n d u c t s ta tu te d iscu ssed a b o v e .”
61 C f. M r . J u s t ice B la ck , c o n c u r r in g , in Cox v . Louisiana, 379
TJ.S. 536 , 579 (1 9 6 5 ) , a p p r o v e d in Shuttlesworth v . City of Birmina-
ham, 382 U .S . 87, 90 (1 9 6 5 ) .
59
has always been to protect a person against having the
Government impose burdens upon him except in accordance
with the valid laws of the land.” Giaccio v. Pennsylvania,
382 U.S. 399, 403 (1966).
It is true, of course, that the “whoever-is-found-eon-
demnable” statute deals with the definition of crime, while
Arkansas’ sentencing practice regulates the degree of pun
ishment for crime. Questions of “ fair notice” that are im
plicated in crime-defining provisions are not necessarily in
volved in provisions relating to penalty alone. But, as we
have said above, the Due Process requirement of definite
ness in penal laws is not simply a command of notice; it is
also a command of regularity. N.A.A.C.P. v. Button, 371
U.S. 415, 433 (1963); Note, 109 U. P a. L. R ev . 67, 90
(1960). We think it obvious that “whoever-is-found-con-
demnable” is constitutionally bad not principally because a
man does not know how to behave consistently with it, but
because—however he behaves—he may be arbitrarily and
capriciously taken by the heels. The fault of that sort of
statute is that it “ injects into the governmental wheel so
much free play that in the practical course of its operation
it is likely to function erratically—responsive to whim or
discrimination unrelated to any specific determination of
need by the responsible policy-making organs of society.
. . . ” Ibid. The precise vice inheres in wholly unregulated
jury discretion to sentence a convicted man to life or death.
He too may be dealt with arbitrarily, his life extinguished
for any reason or for none at all.
Giaccio v. Pennsylvania, supra, supports, if it does not
compel, the conclusion that Arkansas’ standardless grant
of discretion to its juries in capital sentencing is unconsti
tutional. What was at issue there, as here, was a state
practice governing disposition. No “ fair notice” problem
was involved-—except, of course, the problem present in at
60
least an equal degree in a capital case tried to a jury with
limitless sentencing power62— that it was impossible at the
trial to know what issues were being tried. But this proce
dural deficiency, however important, was not the crux of
Giaccio. That decision turned squarely on the proposition
that the Fourteenth Amendment forbade Pennsylvania to
leave its “ jurors free to decide, without any legally fixed
standards,” 382 U.S. at 402-403, whether to impose upon
a defendant a rather small item of costs.63 It is not evident
why, in the infinitely more significant matter of sentencing
men to death, Arkansas juries can he permitted the same
lawless and standardless freedom.
Nor does footnote 8 in the Giaccio opinion, relied upon
by both courts below,64 blunt the implications of the Giaccio
holding for our present purposes. In that footnote, the
Court said that it intended to cast no doubt upon the
constitutionality of leaving to juries finding defendants
guilty of a crime the power to fix punishment “within
legally prescribed limits.” The problem in this case is
precisely that there were no “ legally prescribed limits,” in
any realistic sense, to the jury’s discretion. The Giaccio
footnote speaks for jury sentencing generally, not capital
sentencing. But, once again:
“It should be understood that much more is involved
here than a simple determination of sentence. For the
State . . . empowered the jury in this case to answer
‘yes’ or ‘no’ to the question whether this defendant
62 S ee p p . 4 8 -51 supra.
63 I t s h o u ld b e n o te d th a t n o F ir s t A m e n d m e n t r ig h ts o r o th er
p r e fe r r e d fe d e r a l g u a ra n te e s d e m a n d in g th e s p e c ia l p r o te c t io n
a ffo r d e d b y a h e ig h te n e d re q u ire m e n t o f s ta t u t o r y sp e c if ic ity , see
United States v. National Dairy Prods. Corp., 372 U .S . 29, 36
(1 9 6 3 ) , w e re in v o lv e d in Giaccio.
“ See A. 32, 67.
61
was fit to live.” (Witherspoon v. Illinois, 391 U.S.
510, 521 n. 20 (1968).)
Given the imprecision of the sentencing art, even when
performed by judges, see Tigner v. Texas, 310 U.S. 141,
148-149 (1940), it may well he that juries can constitu
tionally be given some discretion in selecting a smaller
or larger fine, a longer or shorter term of years, partic
ularly where the range of choice is relatively circumscribed
and the effect of the choice is somewhat qualified by parole
statutes and the continued availability of post-conviction
process to rectify after-discovered mistakes made at the
trial. But the degree of arbitrariness allowed a State is
not so liberal where grave and irremediable punitive ex
actions are at stake, see Skinner v. Oklahoma, 316 U.S.
535 (1942); and none is graver or more irremediable than
the sentence of death by electrocution.
Nor did the Court in Giaccio, adverting to the problem
of jury sentencing, have before it what has been presented
here: evidence showing that in fact the capital sentencing
discretion given juries has been exercised on the ground
of race explicitly forbidden by the Constitution. See pp.
13-20 supra. We have not the slightest hesitation in con
tending that the arbitrary and standardless discretion
afforded Arkansas juries constitutes per se a flagrant vio
lation of the Fourteenth Amendment. But, in addition,
this discretion has “ in operation displayed the latitude it
[allows] . . . for discontrol, irrationality and irregularity.”
Note, 109 U. P a. L. R ev. 67, 108 (1960). There can be no
better demonstration of the potential, the inevitable
tendency, of this sort of law than what has happened in
its administration in a State where race has spelled the
difference between life and death. See cases cited in note 3
supra.
62
Of course, petitioner does not contend that the Due
Process Clause forbids entirely the exercise of discretion
in sentencing, even by a jury and even in a capital case.
Ways may be found to delimit and to guide discretion,
narrow its scope and subject it to review; and these may
bring a grant of discretion within constitutionally tolerable
limits. Whether the approach taken by a State such as
Nevada, which makes certain reviewable findings of fact
the indispensable condition of imposing capital punish
ment,65 or that of the Model Penal Code, which both estab
lishes prerequisite findings and enumerates aggravating
and mitigating circumstances,66 or that of the states which
provide plenary review of capital jury sentencing by trial
and/or appellate courts, would be constitutional, is not
the question presented. Here, Arkanses has taken none
of these available steps, used none of these available de
vices, to hold its jurors back from the exercise of “ a naked
and arbitrary power,” Yick Wo v. Hopkins, 118 TJ.S. 356,
366 (1886).
One point involved in this totally unconfined regime of
discretion deserves emphasis. It is often said, and rightly,
that it is a vexing and difficult job to select from among
all capital offenders those upon whom death will actually
be imposed. See note 47 supra. But by making the death
penalty non-mandatory, the Arkansas legislature has as
sumed that such a selection can be made, and has required
it to be made. Selection might be achieved in either of
two ways: by leaving the matter to ad hoc judgment, or
by formulating generally applicable principles of dif
ferentiation. A legislature may adopt the ad hoc approach
for one or another reason. It may have no generally appli
65 S ee n o te 13 supra.
66 S ee A merican Law Institute, Model Penal Code, §210.6
(P .O .D . M a y 4, 1 9 6 2 ) , p p , 128-132 .
63
cable principles in view, and intend that the selection be
made arbitrarily. In that case, it is obviously heedless of
Due Process.
Or a legislature may find the articulation of general prin
ciples too burdensome, at the same time that it hopes and
expects its jurors to act rationally—to develop death-
sentencing patterns that are regular and non-arbitrary.
Its expectation may or may not be fulfilled: from the sum
of ad hoc life-or-death decisions, a pattern may or may not
emerge. I f it does not, the legislature’s product—-whatever
its intendment—is again heedless of Due Process.
But if a rational pattern does emerge in the ad hoc selec
tive decisions of particular juries, it will be because there
exist rational general principles of differentiation, to which
the juries have more or less conformed. Such rational
general principles, if they exist, must be expressible, de
finable, describable in legislation. It is hardly to be sup
posed that what a random, shuttling corps of legally un
trained jurors can appreciate and act upon is not suscepti
ble of formulation by a legislative body. I f there are sorts
or classes of cases in which the death penalty is not gen
erally imposed, these can be identified and described; and
the use of the penalty in such cases disallowed. If there are
rather limited sorts of cases in which the penalty generally
is imposed, these can be enumerated, circumscribed, and
the penalty limited to them.67 If these things cannot he
67 A s su g g ested in th e te x t a t p p . 38 -45 supra, th ere a re a c o n
s id e ra b le n u m b e r o f w a y s in w h ich a le g is la tu re m ig h t ch oose to
d e lim it th e d e a th -se n te n c in g d is c r e t io n o f ju r o r s . I t m ig h t c o n d i
t io n th e im p o s it io n o f th e p e n a lty u p o n sp e c if ie d fin d in g s o f fa c t ,
w h e th e r sp e c if ic (r e la t in g to th e h a rm d o n e th e v ic t im , th e d e fe n
d a n t ’s p r io r h is to r y o f s im ila r o ffenses, e t c .) o r g e n e ra l (r e la t in g
to th e d e fe n d a n t ’s lik e lih o o d o f re c id iv ism , h is r e fo r m a b ili ty , e t c . ) .
I t m ig h t d ir e c t th e j u r y ’s a tte n t io n to e n u m e ra te d a g g r a v a t in g
c ircu m sta n ces . I t m ig h t d ir e c t th e j u r y ’s a tte n t io n to en u m e ra te d
m it ig a t in g c ircu m sta n ces , o r m ak e th e f in d in g o f sp e c if ie d c ire u m -
64
done, it is because the incidence of the death penalty is
purely arbitrary. If it can be done, it constitutionally must
be done, because of the significant differences, in the light of
Due Process concerns, between requiring rational decision
making and hoping for it.
For even if patterns of rational sentencing choice emerge
within a system of wholly unfettered discretion to choose,
it is the characteristic and consequence of such a system
that choices are allowed and will be made, in particular
cases, in utter disregard of the pattern. Arkansas juries
may generally reserve the death penalty for rationally
differentiable categories of particularly heinous rapes; the
Arkansas legislature may hope and expect that they will
do so ; but it remains the fact that any one jury may not do
so, and may sentence a defendant to die because he is too
young, or too old, or too sick, or too healthy, or too bump
tious, or too black. With human life at stake, a system that
permits this result also is heedless of Due Process.
Concededly, the goals of sentencing are complex, and in
designing devices for achieving them the states must have
some tolerance under the Constitution. But as the issue of
petitioner Maxwell’s sentence was submitted to his jury
in its sole discretion under Arkansas practice, the atten
tion of the jurors was directed to none o f these goals. They
were not required or invited to consider any of the pur
poses of criminal punishment, or any particular aspect
or aspects of petitioner’s conduct in relation to such pur
stances legally preclusive of imposition of the penalty. It might
identify permissible considerations, or impermissible considerations.
It might fix governing rules, criteria or principles, of greater or
lesser generality. It might identify the purposes of capital punish
ment which should inform the development of such criteria. Or it
might use a combination of these approaches, as does the Model
Penal Code. See note 66 supra.
65
poses. They were not required or invited to consider the
extent of physical harm to the prosecutrix, the moral
heinousness of the defendant’s acts, his susceptibility or
lack of susceptibility to reformation, or even the appropri
ateness of the deterrent effect of killing this defendant (as
distinguished from any other) “ pour decourager les
autres.” Cf. Packer, Making the Punishment Fit the
Crime, 77 H arv. L. R e v . 1071, 1077 (1964) . They were per
mitted to choose between life and death for any reason,
rational or irrational, or for no reason at all—on an im
pulse, a surge of hatred, a vague distaste for petitioner or
his color. In making the determination to impose the
death sentence, they acted wilfully and unreviewably,
without guidance and without controls. Nothing therefore
assured that there would be the slightest thread of connec
tion between the sentence they exacted and any reason
able justification for exacting it. Cf. Skinner v. Oklahoma,
supra. To concede the complexity and interrelation of
sentencing goals, see Packer, supra, is no reason to sus
tain a procedure which ignores them all. It is futile to put
forward justification for a death so inflicted; there is no
assurance that the infliction responds to the justification
or will conform to it in operation. Inevitably, under Ar
kansas’ death-sentencing practice, capital punishment in
the few, arbitrarily selected cases where it is applied, is
both irrational and lawless. Thus it denies Due Process
to the men condemned to die.
66
II.
Arkansas’ Single-Verdict Procedure for the Trial of
Capital Cases Violates the Constitution,
Arkansas’ practice of submitting simultaneously to the
trial jury the two issues of guilt and punishment in a cap
ital case compounds the vice of lawless jury discretion
just discussed, by making it virtually impossible for the
jurors to exercise their discretion in any rational fashion.68
Under Arkansas procedure, the jury hears evidence si
multaneously on the issues of guilt and punishment, and
resolves both issues at a single sitting. Under this pro
cedure, there is no separate hearing on penalty apart
from the criminal trial itself, and no opportunity for
allocution or for the presentation of evidence in mitiga
tion of sentence after the finding of guilt but prior to the
life-death sentencing choice.69
68 The court of appeals below pointed out that “no request was
made of the district court [sic] for a two stage trial.” (A. 68.)
But the court did not suggest that this amounted to the sort of
intentional bypassing required to forfeit constitutional claims as
against federal habeas corpus. See note 35 supra. Bather, it enter
tained and rejected petitioner’s constitutional contention on the
merits (A. 68-69), as had the district court (A. 40-41).
69 The Arkansas procedure is thus described by the district court
(A. 40-41) :
“ Under that procedure the State puts on its evidence first, and
in many types of cases, including rape eases, evidence which is
relevant to guilt is also relevant to punishment. When the
State has completed its presentation, the defense may or may
not introduce evidence, and the defendant may or may not
testify in his own behalf. If he does testify, he waives his
privilege against self-incrimination with respect to the charge
against him, and may be cross examined as fully as any other
witness. The deliberations of the jury relate to both the ques
tion of guilt and the question of punishment; there is. no post
conviction hearing before the jury as to the punishment which
the defendant should receive.”
67
The effect of this method of proceeding is obvious, and
devastatingly prejudicial to the accused. He is whipsawed
between his rights of allocution and to present evidence
to support a rational sentencing decision, and his privilege
against self-incrimination. If he wishes personally to
address the jurors with respect to their decision whether
he shall live or die, he can do so only at the price of
taking the stand and thereby surrendering his privilege.70
He is subject not only to incriminating cross-examination
but also to impeachment71— a process which, in Arkansas,
involves the introduction by the prosecution of an uncom
monly prejudicial lot of ordure.72 If he exercises the
70 See note 69 swpra.
71 When a criminal defendant “voluntarily takes the stand as a
witness in his own behalf he is subject to the same cross-examination
to which any other witness might be subjected.” Dillon v. State,
222 Ark. 435, 442, 261 S.W.2d 269, 273 (1953). For the applica
tion of the rule in capital trials, see Wright v. State, 243 Ark. 221,
419 S.W.2d 320 (1967); McGuire v. State, 189 Ark. 503, 74 S.W.2d
235 (1934). “ ‘This court had adopted the rule that witnesses,
including the accused, may be impeached on cross examination by
drawing out the fact that they have committed other crimes and
immoralities.’ ” Skaggs v. State, 234 Ark. 510, 511, 353 S.W.2d 3,
4 (1962) (conviction reversed on other grounds). Accord: Ray
burn v. State, 200 Ark. 914, 141 S.W.2d 532 (1940) (capital case).
72 As the Skaggs case, note 71 supra, indicates, the Arkansas law
relating to impeachment permits cross examination regarding not
merely prior convictions, but prior criminal acts not resulting in
convictions, and other “ immoralities.” Wright v. State, 243 Ark.
221, 419 S.W.2d 320 (1967) (rape defendant asked whether several
persons had not told him to quit hanging around their places of
business because he made indecent proposals to women); Edens v.
State, 235 Ark. 178, 359 S.W.2d 432 (1962) (defendant in false
pretenses case asked whether he had not defrauded each of several
named persons); Willis v. State, 220 Ark. 965, 251 S.W.2d 816
(1952) (homicide defendant asked whether he did not once get
drunk and have a wreck and kill a b o y ); Powell v. State, 149 Ark.
311, 232 S.W. 429 (1921) (defendant in carnal abuse case asked
whether he had not cohabited with his wife before they were mar
ried).
The sorts of misconduct which may thus be brought out are ap
parently limitless. They need have no real relation to the trait of
68
privilege, on the other hand, he risks an uninformed, arbi
trary, and uncompassionate death verdict. Should he wish
to present background and character evidence to inform
the jury’s sentencing choice, he may do so only at the cost * 707
truthfulness. See, in addition to the eases cited above, the following
exemplary cases involving capital trials: Black v. State, 215 Ark.
618, 222 S.W.2d 816 (1949) (convictions for “ certain misdemean
ors,” including drunk driving, elicited); Edwards v. State, 208
Ark. 231, 185 S.W.2d 556 (1945) (conviction and fine on a liquor
charge elicited) ; Bieard v. State, 189 Ark. 217, 72 S.W.2d 530
(1934) (general reputation of the defendant three or four years
prior to the offense adduced); Curtis v. State, 188 Ark. 36, 64 S.W.
2d 86 (1933) (involvement in illicit relationship with a named
woman elicited). Although the doctrine is that misconduct which
is too remote in time may not be elicited, at least if it does not
involve a conviction, Dixon v. State, 189 Ark. 812, 75 S.W.2d 242
(1934) (20-year old homicide), a 12- to 14-year old drunk-driving
accident is not too remote, Willis v. State, supra; nor is a 19-year
old juvenile conviction for auto theft, Dillon v. State, 222 Ark. 435,
261 S.W.2d 269 (1953), nor a 20-year old fine on a liquor charge,
Edwards v. State, supra. Impeachment relating to general miscon
duct or specific bad acts is limited to cross examination, but prior
convictions may be proved aliunde. Holcomb v. State, 218 Ark. 608,
238 S.W.2d 505 (1951). To the extent that Abk. Stat. A nn. §28-
707 (1962 Repl. Vol.) may seem more restrictive than the rules
described in this footnote, “ [tjhe cases do not appear to have held
to the strict language of the statute.” Id. at 612, 238 S.W.2d at 507.
The Arkansas court has shown no disposition to restrict the exhi
bition of prior misconduct for the purposes of impeachment even
where it is of such a nature as to be devastatingly prejudicial with
regard to the crime charged. See the following cases regarding
capital trials: Wright v. State, supra (rape defendant asked about
instances when he had been told to quit hanging around places
because he made indecent proposals to women) ; Bevis v. State, 209
Ark. 624, 192 S.W.2d 113 (1946) (homicide defendant asked if he
did not shoot his first w ife ); Gaines v. State, 208 Ark. 293, 186
S.W.2d 154 (1945) (homicide defendant asked whether he had not
previously shot his brother-in-law and a neighbor, nearly killing
them); Fielder v. State, 206 Ark. 511, 176 S.W.2d 233 (1943)
(homicide defendant asked whether he did not shoot two other men
to death); Ham v. State, 179 Ark. 20, 13 S.W.2d 805 (1929) (homi
cide defendant asked whether he had not killed a man a few days
ago) ; McGraw v. State, 184 Ark. 342, 42 S.W.2d 373 (1931) (defen
dant, charged with wife’s homicide, asked whether he had not
previously killed his wife’s step-father).
69
of opening the question of. character generally prior to
the determination of guilt or innocence, thereby risking
the receipt of bad-character evidence73 ordinarily ex
cludable because highly prejudicial on the guilt question.74
Or he may avoid that risk of prejudice by confining the
evidence at trial to matters relevant to guilt, letting the
jury sentence him to life or death in ignorance of his
character.
A procedure of this sort in unconstitutional, both be
cause it results in a fundamentally unfair trial and be
cause it infringes the several federal constitutional rights
which it sets at loggerheads. To appreciate why this is
73 Arkansas follows the ordinary rules permitting the cross exam
ination of a defense character witness in the “ have you heard” form
which permits the eliciting of every prejudicial occurrence, real or
imagined, in the defendant’s history. See Amos v. State, 209 Ark.
55, 189 S.W.2d 611 (1945); Clark v. State, 135 Ark. 569, 205 S.W.
975 (1918). The prosecution may also elicit the defendant’s had
reputation in regards to traits broader than those which the defen
dant’s character witness bolstered. See Weakley v. State, 168 Ark.
1087, 273 S.W. 374 (1925).
74 In Arkansas, as elsewhere, the prosecution is forbidden to open
the question of the defendant’s character, or to develop bad-
character evidence in his case-in-chief. See, e.g., Long v. State, 240
Ark. 687, 401 S.W.2d 578 (1966); Browning v. State, 233 Ark. 607,
346 S.W.2d 210 (1961); Band v. State, 232 Ark. 909, 341 S.W.2d
9 (1960). Unless the defendant testifies or opens the character
question, evidence of prior crimes is inadmissible. Bonds v. State,
240 Ark. 908, 403 S.W.2d 52 (1966) ; Rhea v. State, 226 Ark. 664,
291 S.W.2d 521 (1956). Of course, Arkansas has the usual excep
tions relating to proof of intent, motive, modus operandi, etc., e.g.,
Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963); but these
rules were exhaustively considered in Alford v. State, 223 Ark. 330,
266 S.W.2d 804 (1954), and there delimited in such a way as to
make prior crime evidence inadmissible in the ordinary rape case,
Under Alford, prior-crime evidence would also be inadmissible—
again, unless the defendant takes the stand or opens the character
question—in the ordinary murder ease. Moore v. State, 227 Ark.
544, 299 S.W.2d 838 (1957). Compare Ward v. State, 236 Ark. 878,
370 S.W.2d 425 (1963) (sexual perversion); Qerlach v. State, 217
Ark. 102, 229 S.W.2d 37 (1950) (assault with intent to rape).
70
so, one must begin by recognizing what this Court has
several times said, that much evidence which is not rele
vant to the issue of guilt of the charge for which the
capital accused is on trial—evidence which, indeed, is
prejudicial and inadmissible on the issue of guilt—is highly
relevant to a non-arbitrary decision on the question of
punishment. “ [Mjodern concepts individualizing punish
ment have made it all the more necessary that a sentenc
ing judge not be denied an opportunity to obtain pertinent
information by a requirement of rigid adherence to re
strictive rules of evidence properly applicable to the trial.”
Williams v. New York, 337 U.S. 241, 247 (1949); see also
Williams v. Oklahoma, 358 U.S. 576, 585 (1959); Wither
spoon v. Illinois, 391 U.S. 510, 521 n. 20 (1968). A fortiori,
a jury engaged in the task of determining wdiether a defen
dant shall live or die needs much information that cannot
and should not be put before it within the confines of tradi
tional and proper limitations on the proof allowable as
going to guilt or innocence. It is fair to say that the over
whelming weight of considered contemporary judgment
concurs in the conclusion that, whether discretionary death
sentencing be done by a judge or jury, it is the imperative
condition of rational sentencing choice that the sentencer
consider more information about the individual defendant
than is likely or permissibly forthcoming on trial of the
guilt issue. E.g., H ouse of Commons Select Committee
on Capital P unishm ent , R eport (H.M.S.O. 1930), para.
177; R oyal Commission on Capital P unishm ent , 1949-
1953, R eport (H.M.S.O. 1953) (Cmd. No. 8932), 6, 12-13,
195, 201, 207; A merican L aw I nstitute, M odel P enal
Code, Tent. Draft. No. 9 (May 8, 1959), Comment to §201.6
at 74-76; New Y ork State T emporary Commission on R e
vision of the P enal L aw and Criminal Code, I nterim
R eport (Leg. Doc. 1963, No. 8) (February 1, 1963), 15-16;
H.L.A. Hart, Murder and the Principles of Punishment:
71
England and the United States, 52 Nw. U.L.Rev. 433, 438-
439 (1957); Knowlton, Problems of Jury Discretion in
Capital Cases, 101 U.Pa. L.R ev. 1099, 1109, 1135-1136
(1953); Handler, Background Evidence in Murder Cases,
51 J. Crim .L., Crim . & P ol. S ci. 317, 321-327 (1960).
The single-verdict procedure therefore confronted peti
tioner, on trial for his life, with a gruesome Hobson’s
choice:
Petitioner had a crucial interest—amounting, indeed, to
an independent federal constitutional right, see Skinner v.
Oklahoma, 316 U.S. 535 (1942)—that his sentence be ra
tionally determined. The Constitution guaranteed him,
also, certain procedural rights in this sentencing process:
inter alia, “ an opportunity to be heard . . . and to offer evi
dence of his own.” Specht v. Patterson, 386 U.S. 605, 610
(1967); Mempa v. Rhay, 389 U.S. 128 (1967). As the basis
for a rational sentencing determination, he would want to
present to the sentencing jurors evidence of his history,
his character, his motivation, and the events leading up
to his commission of the crime of which he was guilty (if
he was guilty). The common-law gave him a right of allo
cution which is an effective vehicle for this purpose, as well
as for a personal appeal to the jurors, where capital
sentencing is discretionary. This Court has already recog
nized that allocution may in some circumstances rise to the
dignity of a due process command.75 * 315
76 Hill v. United States, 368 U.S. 424, 428-429 (1962); see
Andrews v. United States, 373 U.S. 334, 336-337 (1963). Acting
on these opinions, several circuit courts have found allocution a
constitutional right. Green v. United States, 313 F.2d 6 (1st Cir.
1963), cert, denied 372 U.S. 951 (1963); United States v. Johnson,
315 F.2d 714 (2d Cir. 1963), cert, denied, 375 U.S. 971 (1964);
Behrens v. United States, 312 F.2d 223 (7th Cir. 1962), aff’d, 375
U.S. 162 (1963).
The Hill case holds that, absent “aggravating” circumstances
(368 U.S. at 429), failure of a sentencing judge to invite the
72
But to exercise his right of allocution before verdict on
the guilt issue, petitioner was required to forego his con
stitutional privilege against self-incrimination. Malloy v.
Hogan, 378 U.S. 1 (1964); Griffin v. Californiai, 380 U.S.
609 (1965). He was required to take the stand and be sub
jected to cross-examination that could incriminate him.76
defendant to exercise his right of allocution does not violate due
process. But Hill was not a capital case, nor a case in which
counsel was denied the right to present pertinent information to
the sentencer, nor “ a case where the defendant was affirmatively
denied an opportunity to speak during the hearing at which Ms
sentence was imposed . . . [nor where the sentencer] was either
misinformed or uninformed as to any relevant circumstances . . .
[nor where it was even claimed] that the defendant would have
had anything at all to say if he had been formally invited to
speak.” Ibid. In an Arkansas capital case, the following “aggravat
ing circumstances” are presented: (A ) the circumstances that the
right of allocution has had unique historical significance in capital
cases, see Couch v. United States, 235 F.2d 519, 521 (D.C. Cir.
1956) (opinion of Judge F ahy); Coleman v. United States, 334
F.2d 558, 566 (D.C. Cir. 1964) (opinion of Judges Burger and
McGowan) ; (B) the circumstance that in capital cases matters
which may affect the sensitive discretion of the jury in its life-
death choice are traditionally viewed with a stricter eye to possi
bilities of prejudice than are other matters in the criminal process,
see People v. Hines, 61 Cal. 2d 164, 390 P.2d 398, 37 Cal. Rptr. 622
(1964); (C) the circumstance that Arkansas’ single verdict pro
cedure “ affirmatively” denies a defendant his opportunity to address
the jury on sentence, within the meaning of Hill, supra; (D) the
circumstance that, for the reasons set out above in text, a jury
making a capital sentencing choice on no other information than the
trial of the guilt issue allows is invariably “ either misinformed or
uninformed” within the meaning of Hill; (E ) the circumstance
that, under the Arkansas procedure, not only is the defendant de
nied the right to make a personal statement without giving up his
constitutional privilege against self-incrimination, but he is simi
larly denied the right to have his counsel supply evidence on the
sentencing issue without incurring the risks of prejudice on the
guilt issue, see the Johnson and Behrens eases cited, supra; also
Gadsden v. United States, 223 F.2d 627 (D.C. Cir. 1955); Jenkins
v. United States, 249 F.2d 105 (D.C. Cir. 1957).
70 Even apart from cross-examination, allocution before verdict
of guilt destroys the privilege, for much of the value of the defen
dant’s personal statement to his sentencer derives from its spon-
73
He declined to surrender the Privilege, and did not address
the jury. (A. 41.) The jurors who sentenced him to die
therefore had neither heard his case for mercy, nor even
the sound of his voice.
United States v. Jackson, 390 U.S. 570 (1968), holds that
the exercise of the Fifth Amendment privilege in criminal
trials may not be penalized or needlessly burdened. Simul
taneous submission to the jury of the guilt and death
penalty issues results in just such a needless burden. The
burden is the obvious and onerous one that the defendant
must go to his death like a dumb animal, forbidden to plead
his case and incapable even of impressing the human qual
ity of his voice on his sentencing jury. It is a needless
burden because the State has ample means to avoid it by,
for example, a bifurcated jury trial, judge sentencing, or
the elimination of the death penalty. Consistently with
Jackson, Simmons v. United States, 390 U.S. 377, 394
(1968), points the way to condemnation of the “undeniable
tension” between constitutional rights presented here. The
question in Simmons was whether a defendant might be
obliged either to give up what he believed to be a valid
Fourth Amendment claim or “ in legal effect, to waive his
Fifth Amendment privilege against self-incrimination” ;
and this Court there held it “ intolerable that one constitu
tional right should have to be surrendered in order to
assert another.” Ibid.
But the single-verdict practice which petitioner challenges
presents grave problems in addition to this conflict between
the right of allocution and the privilege. If the defendant * 570
taneity, see Green v. United States, 365 U.S. 301, 304 (1961)
(opinion of Mr. Justice Frankfurter). This same spontaneity—
unguided by the questions of counsel—leaves the defendant im
permissibly unprotected as he appears before a jury which has
not yet decided on his guilt. Cf. Ferguson v. Georgia, 365 U.S.
570 (1961).
74
seeks to present to the jury evidence of his background
and character, apart from his own statement, the prosecu
tion may counter with evidence o f the defendant’s bad char
acter, including evidence of unrelated crimes. The prohibi
tion which ordinarily keeps this sort of evidence from the
trial jury sitting to determine the issue of guilt is “ one of
the most fundamental notions known to our law,” United
States v. Beno, 324 F.2d 582, (2d Cir. 1963), arising “ out
of the fundamental demand for justice and fairness which
lies at the basis of our jurisprudence,” Lovely v. United
States, 169 F.2d 386, 389 (4th Cir. 1948); see Marshall v.
United States, 360 U.S. 310 (1959). Allowing the trial jury
access to unfavorable background information, however
pertinent to the issue of punishment, and however clearly
limited by jury instructions to that use, may itself amount
to a denial of due process of law. Compare United States
ex rel. Scoleri v. Banmiller, 310 F.2d 720 (3d Cir. 1962),
cert, denied, 374 U.S. 828 (1963), with United States ex rel.
Bucher v. Myers, 311 F.2d 311 (3d Cir. 1962), cert, denied,
374 U.S. 844 (1963). In any event, the possibility that the
background information will be strongly prejudicial forces
a defendant to a “choice between a method which threatens
the fairness of the trail of guilt or innocence and one which
detracts from the rationality of the determination of the
sentence.” A merican L aw I nstitute, M odel P enal Code,
supra at 64.
In this aspect, the practice of simultaneous submission of
guilt and sentence to a jury is much akin to New York’s
former practice of simultaneously submitting to a jury the
two issues of the voluntary nature of a confession and the
guilt of the accused. The New York practice was, of course,
struck down in Jackson v. Denno, 378 U.S. 368 (1964),
where the Court recognized that joint jury trial of the two
issues prevented either from being “ fairly and reliably
75
determined.” 378 U.S. at 389 ; see id. at 386-391. One fault
of the practice was that:
“ . . . an accused may well be deterred from testifying
on the voluntariness issue when the jury is present
because of his vulnerability to impeachment by proof
of prior convictions and broad cross-examination. . . .
Where this occurs the determination of voluntariness
is made upon less than all of the relevant evidence.
(378 U.S. at 389 n. 16) .77
77 To the extent that petitioner’s argument on this branch of
his case draws sustenance from the radiations of the rule of Jack-
son v. Denno, text, supra, his argument is not weakened by Spencer
v. Texas, 385 U.S. 554 (1967), cited by the court of appeals.
The Spencer decision dealt with the Texas procedure for determin
ing the punishment decreed under its recidivist statutes, pursuant
to which a jury trying a criminal defendant was informed by. a
reading of the indictment that the defendant had been convicted
of prior crimes, and evidence was introduced in support of these
allegations during the course of trial. The procedure was attacked
on the ground that it unduly prejudiced the defendant on the
issue of guilt, in violation of the Due Process Clause. In rejecting
this attack, the Court held, inter alia, that Jackson v. Denno did
not require a two-stage jury trial for invocation of a state’s ha
bitual offender statute and that “ the emphasis [in Jackson] was
on protection of a specific constitutional right and the Jackson
procedure was designed as a specific remedy to ensure that an in
voluntary confession was not in fact relied upon by the jury,” 385
U.S., at 565.
But no more “ specific constitutional right” can be imagined than
that which prohibits the state’s taking of petitioner’s life pursuant
to a sentencing process which is irrational because sentencing
choice is made without information essential to the choice, Skinner
v. Oklahoma, supra; Specht v. Patterson, supra. And though the
Court in Spencer read Jackson as not broadly requiring a two-
stage jury proceeding whenever evidence of prior crimes which
might possibly prejudice the jury’s determination of the guilt
issue is presented at the trial (because of the justifications gen
erally accepted for permitting such evidence—see 385 U.S., at
560-61), Jackson’s holding that “a general jury verdict [is] not
a reliable vehicle for determining the issue of voluntariness [of a
confession] because jurors might have difficulty in separating the
issue of voluntariness from that of guilt or innocence,” 385 U.S. at
565, is unimpaired. See Burgett v. Texas, 389 U.S. 109 (1967):
76
And see Bruton v. United States, 391 U.S. 123 (1968).
It is in precisely the same manner that single-verdict
capital sentencing tends either to make trials of guilt
unfair—by forcing the defense to present evidence poten
tially helpful on the punishment issue and prejudicial on
the issue of guilt— or to produce the unfair result that
men are sentenced to death “upon, less than all of the rele
vant evidence” if the defense declines, to take that risk.78
Simmons v. United States, text, supra. That, by analogy, applies
with equal, if not greater force to the jury’s determination of the
issues of guilt and sentence in a capital case. The “specific remedy”
for reliably determining these issues enjoined on the courts by
Jackson, reinforced by Sims v. Georgia, 385 U.S. 538 (1967), and
endorsed by Spencer is that of separate consideration of the issues.
Moreover, there are crucial differences between the situation pre
sented here and that presented by the practice challenged in
Spencer. First, the sole claim urged by the petitioners in Spencer
was that the introduction of prior crime evidence, before jury
verdict on the guilt issue unduly prejudiced the defendant on that
issue (385 U.S. at 559, 567) and was therefore unconstitutional
per se. Petitioner’s submission here differs. The effect of the single
verdict sentencing procedure which he challenges is to confront a
capital defendant with the grim specter of having to sacrifice one
or another of his precious constitutional rights, either allocution
or self-incrimination. By whatever choice he makes, he is preju
diced on either the issue of guilt or sentence; and he must decide—■
with his life at stake—-which kind of prejudice to invite. Of.
Whitus v. Balkcom, note 78, infra. Also, while in Spencer the
juries were given limiting instructions to guide their considera
tion of the prior crime evidence on the guilt issue, the jury’s dis
cretion in sentencing choice under Arkansas law is not limited or
regulated in any way. See pp. 24-45, supra. Hence there is more
than “ the possibility of some collateral prejudice” (385 U.S. at 564)
which the Court in Spencer thought not of sufficient gravity to
condemn the procedure there attacked.
Finally, the Arkansas procedure has been shown on this record
to have resulted in a pattern of racially discriminatory death sen
tencing. This goes far toward satisfying the concern of the Spencer
court over the lack of a convincing showing of prejudice.
78 Such a “ ‘grisly,’ hard, Hobson’s choice” is itself so unfair as
to violate due process. See Whitus v. Balkcom, 333 F.2d 496, 499
(5th Cir. 1964).
77
This latter alternative was the course of Maxwell’s trial,
and its result. Not only, in such a case, is the jury em
powered to act arbitrarily, see pp. 24-65, supra; it is
virtually compelled to do so for want of information upon
which nonarbitrary choice can be based. In short, although
the Due Process Clause guaranteed Maxwell a fair trial
on the issue of punishment, e.g., Townsend v. Burke, 334
U.8. 736 (1948), as well as on the issue of guilt, e.g., Irvin
v. Dowd, 366 U.S. 717 (1961), the single-verdict procedure
employed in his case required him to purchase the second
of these at the cost of the first. Cf. Fay v. Noia, 372 U.S.
391, 440 (1963).
As the question in United States v. Jackson, 390 U.S.
570 (1968), was whether the provision of the federal kid
naping statute reserving the infliction of the death sentence
to the exclusive province of the jury “needlessly en
courages” guilty pleas and jury waivers and therefore
“needlessly chill[s] the exercise of basic constitutional
rights,” 390 U.S., at 582, 583, so the question here is
whether the simultaneous trial of guilt and punishment
needlessly encourages the waiver of the right to remain
silent or needlessly chills the right to put in evidence rele
vant to rational sentencing and the right of allocution.
“ The question is not whether the chilling effect is ‘inci
dental’ rather than intentional; the question is whether
that effect is unnecessary and therefore excessive.” 390
U.S., at 582. We submit the answer to the question is
clear, in light of the ready availability of alternative modes
of procedure not involving the same destructive collision
of the defendant’s rights— such as the split-verdict proce
dure now in use in a number of jurisdictions79 and uni
79 A man tried on a capital charge in California, Connecticut,
New York, Pennsylvania and Texas receives first a hearing on in
nocence or guilt; then, after a finding of guilt, a separate hearing
78
formly recommended by modern commentators, see Frady
v. United States, 348 F.2d 84, 91 n. 1 (D.C. Cir.- 1965)
(McGowan, J . ) ; cf. United States v. Curry, 358 F.2d 904,
914 (2d Cir. 1965).80
on the issue of punishment. Cal. Penal Code, §190.1 (Supp. 1966);
Conn. Gen. Stat. Rev. §53-10 (Supp. 1965); N.Y. Pen. Law
§§125.30, 125.35 (Cum. Supp. 1968); Pa. Stat. A nn., tit. 18, §4701
(1963); Tex. Code Crim, Pro., Art. 37.07 (1967). See also §210.6
of the Model Penal Code, note 66, supra. In view of the availability
of this alternative “ split-verdict” mode of procedure which does
not entail the deprivation of petitioner’s rights, the constitutionally
unfair single-verdict procedure used in petitioner’s case can obvi
ously not be defended on the ground of necessity. Petitioner, of
course, does not contend that the State is constitutionally compelled
to have a bifurcated trial. The bifurcated trial is only one of the
alternatives available to the State which do not entail the needless
burden on capital defendants’ constitutional rights here complained
of.
80 Cf. Witherspoon v. Illinois, 391 U.S. 510, 520 n. 18 (1968),
noting that if a defendant could establish that a jury which was
representative with respect to penalty was not representative with
respect to guilt,
“ the question would then arise whether the State’s interest in
submitting the penalty issue to a jury capable of imposing
capital punishment may be vindicated at the expense of the
defendant’s interest in a completely fair determination of guilt
or innocence— given the possibility of accommodating both in
terests by means of a bifurcated trial, using one jury to decide
guilt and another to fix punishment.”
79
CONCLUSION
Petitioner’s trial jury was permitted lawless and arbi
trary power to decide whether he should live or die, in
violation of the rule of law that is fundamental to the
Fourteenth Amendment. Arkansas’ single-verdict capital
trial procedure assured that this arbitrary power would
be used arbitrarily, by depriving the jury of information
requisite to rational sentencing choice, as a consequence of
petitioner’s exercise of his Fifth and Fourteenth Amend
ment privilege against self-incrimination. The use of these
two procedures at his trial deprived petitioner of his life
without due process of law. The judgment below should
be reversed.
Respectfully submitted,
J ack Greenberg
J ames M. Nabrit, III
N orman C. A maker
M ichael M eltsner
J ack H immelstein
E lizabeth D uB ois
10 Columbus Circle
New York, New York 10019
George H oward, J r.
329% Main Street
Pine Bluff, Arkansas 71601
A nthony G. A msterdam
3400 Chestnut Street
Philadelphia, Pennsylvania 19104
Attorneys for Petitioner
APPENDIX A
Evidence and Findings Below Relating to Racial Dis
crimination by Arkansas Juries in the Exercise o f Their
Discretion to Sentence Capitally for the Crime o f Rape.
A. The Evidence of the Wolfgang Study.
Petitioner’s second federal habeas corpus petition, giving
rise to the proceedings now before the Court, alleged that
new evidence had become available with respect to his
claim of racial discrimination in capital sentencing, pre
viously urged at his trial, on his direct appeal, and in his
initial federal habeas application. It averred, specifically,
that a systematic study of Arkansas rape convictions dur
ing a twenty-year period had been:
“ conducted in the summer of 1965, as part of a study
of the application of the death penalty for rape in
eleven southern states. This comprehensive study re
quired the work of 28 lawT students throughout the
summer, the expenditure of more than $35,000 and
numerous hours, of consultative time by expert crimi
nal lawyers, criminologists and statisticians. Petitioner,
who is an indigent, could not have himself at any time
during the prior proceedings in his cause conducted
such a study.” (A. 6, quoted by the court of appeals,
at A. 48.)
At a pre-trial conference, the district court was advised
that petitioner intended to present at an evidentiary hear
ing the results of this comprehensive study. Its pre-trial
conference order reflected that petitioner’s evidence would
consist in part of “ the testimony of Dr. Marvin E. W olf
gang, a criminologist and statistician on the faculty of the
University of Pennsylvania, and . . . certain studies and
la
2a
A ppen d ix A
a report made by Professor Wolfgang,” which in turn were
based upon “ [bjasic data . . . gathered by law student
field workers from various sources and . . . recorded on
individual case schedules.” (A. 17-18.) Accordingly, the
order provided for procedures to facilitate the establish
ment of “ the validity and accuracy of the individual case
schedules.” (A. 18.)la
“ It was agreed that counsel for Maxwell will make
those schedules available for the inspection of counsel
for Respondent not later than August 10 and will also
furnish the names and addresses of the field workers
who assembled the original data in Arkansas. Not
later than August 15 counsel for Respondent will ad
vise opposing counsel and the Court as to whether,
to what extent, and on what grounds he questions any
individual case schedule.
“ Subject to objections on the ground of relevancy
and materiality, and subject to challenges to individual
case schedules, Professor Wolfgang will be permitted
to testify as an expert witness and to introduce Ms
la The “ individual case schedules” referred to are the completed
forms, for each case of conviction of rape, of the printed schedule
captioned “ Capital Punishment Survey” admitted as Petitioner’s
Exhibit P-2 (Tr. 57). [Tr. —- references in this Appendix are to
the original transcript of the district court proceedings.] The use
of this printed schedule in the process of data-gathering was ex
plained by Dr. Wolfgang at Tr. 22-25. Instructions given the
field researchers in use of the schedule are included in the record
as an exhibit, Petitioner’s Exhibit P-3 (Tr. 25-27, 57), hut, in
view of the respondent’s concession that the facts gathered’ by
the researchers were accurate, see text infra, no effort was made
in the testimony to demonstrate the steps taken in gathering the
data to assure reliability. See Tr. 25-27. Also, in light of the
court’s pre-trial conference order, text, immediately infra, the
completed “ individual case schedules” were not introduced in
evidence.
3a
report as a summary exhibit reflecting and illustrating
his opinions. Again subject to objections or challenges
to individual schedules there will be no occasion for
Petitioner to introduce the schedules in evidence or
prove the sources of the information reflected thereon
or therein, or to call the individual field workers as
witnesses.” (A. 18.)
When the case came on for hearing, counsel for peti
tioner announced that no objections had been filed by the
respondent to any of the individual case schedules, so that
“all of the facts in the schedules are treated as though
they are true, and Dr. Wolfgang’s testimony is to be treated
as though based not on schedules, but on facts which are
established of record . . . As I understand it, the basic facts
on which Dr. Wolfgang’s testimony and his analysis are
made are treated as established for the purpose of this
case.” (Tr. 8.) Counsel for respondent and the court
agreed with this statement (Tr. 8-9), the court settling that:
“ The basic facts—that is, the age of the victim, the
race, and so on, of the individual defendants, or the
alleged victims—the basic evidentiary facts, as the
Court understands it, stand admitted, and that Dr.
Wolfgang in testifying, or anybody elso who testifies
about these basic figures, will not be faced with an
objection as to the authenticity of his basic data.”
(Tr. 9.)2a
On this understanding, Dr. Marvin E. Wolfgang was
called as a witness for petitioner. In its written opinion,
the district court termed him a “well qualified sociologist
2a The Court of Appeals accepted this procedure without ques
tion. (A. 48.)
A ppend ix A
4 a
and criminologist on the faculty of the University of Penn
sylvania” and noted that his “qualifications to testify as
an expert are not questioned and are established” (257
F. Supp. at 717-718; A. 33).3a (Similarly, the Court of
Appeals was later to find that Dr. Wolfgang “ obviously
is a man of scholastic achievement and of experience in
his field,” whose “ ‘qualifications as a criminologist have
[concededly] never been questioned by the respondent.’ ”
(398 F.2d at 141; A. 49.)) Dr. Wolfgang’s testimony occu
pies some ninety pages of the transcript of the hearing
(Tr. 10-99); in addition, “a written report prepared by
him, together with certain other relevant documentary ma
terial, was received in evidence without objection” (257 F.
Supp. at 717-718; A. 33-34). The written report referred
to, Petitioner’s Exhibit P-4, was received as substantive
evidence (Tr. 57), and will be relied upon together with
Dr. Wolfgang’s testimony in the summary of evidence that
follows.
The district court’s opinion fairly summarizes the “back
ground facts of the Wolfgang study” :4a
“In early 1965 Dr. Wolfgang was engaged by the
NAACP Legal Defense and Educational Fund, Inc., to * 250
A ppen d ix A
3a Interrogation of Dr. Wolfgang establishing his qualifications is
at Tr. 10-14. In addition, Petitioner’s Exhibit P-1, a curriculum
vitae of Dr. Wolfgang, was received in evidence to establish his
qualifications, Tr. 14-16. Dr. Wolfgang is one of the foremost
criminologists in the country.
4a The general scope of the study, which gathered data concern
ing every case of conviction for rape during a 20-year period in
250 counties in eleven States, is described more fully in the affidavit
of Norman C. Amaker, Esq., attached as Exhibit 2 to the petition
for habeas corpus. For other descriptions, see the Memorandum
and Order, dated July 18, 1966, appended to the opinion in Moorer
v. South Carolina, 368 F,2d 458 (4th Cir. 1966); and the opinion
in Matter of Sims and Abrams, 389 F.2d 148 (5th Cir. 1967).
make a study of rape convictions in a number of south
ern States, including Arkansas, to prove or disprove
the thesis that in those States the death penalty for
rape is disproportionately imposed upon Negro men
convicted of raping white women. Dr. "Wolfgang was
apprised of the fact that the results of his study might
well be used in litigation such as the instant case.
“As far as Arkansas is concerned, Dr. Wolfgang
caused Mr. John Monroe, a qualified statistician, to
select a representative sample of Arkansas counties
with reference to which the study would be made. The
sample drawn by Mr. Monroe, who testified at the
hearing, consisted of 19 counties in the State.
“ During the summer of 1965 law students interested
in civil rights problems were sent into Arkansas to
gather basic data with respect to all rape convictions
in the sample counties for a period beginning January
1, 1945, and extending to the time of the investigation.
Data obtained as to individual cases were recorded on
individual case schedules. When the work was com
pleted, the individual schedules were turned over to
Dr. Wolfgang for evaluation.
“ The investigation brought to light 55 rape convic
tions during the study period involving 34 Negro men
and 21 white men. The offenses fell into three cate
gories, namely: rapes of white women by Negro men;
rapes of Negro women by Negro men; and rapes of
white women by white men. No convictions of white
men for raping Negro women were found.” (257 F.
Supp. at 718; A. 34-35. See also the opinion of the
Court of Appeals, 398 F.2d at 141-142; A. 49.)
The design of the investigation was described by Dr.
Wolfgang as a function of its objectives “ to collect the
5a
A ppendix A
6a
appropriate kind of data necessary to provide some kind
of empirical study, either in support of, or in rejection of,
the underlying assumption” (Tr. 17)—i.e., that there is
racially differential imposition of the death penalty for
rape in the States studied (Tr. 16-17)—and “ to give the
empirical data the appropriate kind of statistical analysis
that would satisfy scientific requirements” (Tr. 17). The
basic research methodology involved these several stages:
(1) identification of the cases to be studied; (2) collection
of data concerning the critical variables (race of defen
dant, race of victim, sentence imposed) in each case, and
statistical analysis of the relationship between these vari
ables; (3) collection of data concerning other variables
(“control” variables) in each case, and statistical analysis
of the relationship between each such variable and the
critical variables (race and sentence) to determine whether
the operation of the control variables could explain or
account for whatever relationship might be observed be
tween the critical variables; (4) reporting of results of
the analysis. It is convenient to summarize the evidence
presented to the district court under these four heads,
with respect to the Arkansas study. Such a summary can
only imperfectly portray the character and range of the
Wolfgang study. We respectfully invite the Court’s atten
tion to the whole record of the hearing below.
1. Identification of the Cases to Be Studied.
Data were gathered concerning every case of conviction
for rape during a 20-year period (January 1, 1945 to the
summer of 1965) in a representative sample of Arkansas
counties (Tr. 21). Two points should be noted here.
First, because the study begins with cases of conviction
for rape, it addresses itself at the outset to the possibility
A ppend ix A
suggested by the Supreme Court of Arkansas on the direct
appeal in petitioner’s case, Maxwell v. State, 236 Ark. 694,
370 S.W.2d 113 (1963), that any showing that Negroes are
more frequently sentenced to death for rape than, whites
might be accounted for by the supposition that Negroes
commit rape, or are convicted of rape, more frequently
than whites. What is compared in this study is the rate
of capital sentencing of Negro and white defendants all of
whom have been convicted of rape.
Second, in order to give a valid basis for generalization
about the performance of Arkansas juries, every case of
conviction for rape in a randomly selected sample of Ar
kansas counties was included in the study (Tr. 62-63). The
county sampling procedure was employed because resources
available for the field study did not permit the gathering
of data in every county in the State (Tr. 21, 107-111), and
because it is “unnecessary to collect every individual case,
so long as the sample is presumed to be a valid represen
tation—a valid representative one” (Tr. 21). At Dr. W olf
gang’s request, a random sample (Tr. 128) of Arkansas’
75 counties wTas drawn by Mr. John Monroe, a “qualified
statistician” (257 F. Supp. at 718; A. 34), with seventeen
years experience in sampling and surveys (398 F.2d at 144;
A. 53-54) .5a Testifying below, Mr. Monroe described in
detail the sampling process used (Tr. 107-141) to draw
counties “ in such a manner that the sample counties within
each state would provide a representative sampling for that
state so that inferences could be drawn for each state in the
sample and for the region as a whole” (Tr. 107). Nineteen
counties in the State (Tr. 28, 118; 122-123; Petitioner’s Ex-
BaMr. Monroe’s qualifications appear at Tr. 104-106. His biog
raphy, in summary form, was admitted as Petitioner's Exhibit P-10
(Tr. 144-145).
i a
A ppend ix A
8a
Mbit P-5, appendices C, D ; Petitioner’s Exhibit P-7) con
taining more than 47 per cent of the total population of
Arkansas (Petitioner’s Exhibit P-4, p. 1; Tr. 130; 398 F.2d
at 144; A. 54) were drawn by a “ theoretically unbiased”
random method (Tr. 118). Mr. Monroe testified that “ a
sample is the procedure of drawing a part of a whole, and
if this sample is drawn properly according to the law of
chance, or with known probability, by examining a small
part of this whole, and using the appropriate statistical
methods, one can make valid inferences about the whole
population from examining a small part” (Tr. 116). He con
cluded that his own sample of Arkansas counties “ is a very
reliable sample under the restrictions that we were confined
to, the number of counties that could be investigated during
the time allotted. In other words, for the size of the sample,
the 19 counties, it was a very reliable and highly acceptable
sample insofar as sampling statistics are concerned” (Tr.
118; see also Tr. 130, 132). “ I would say that, as far as
the sample is concerned, the inferences drawn from this
sample, as described, are valid for the State of Arkansas”
(Tr. 135). See 398 F.2d at 144; A. 54.
(These conclusions were not questioned by the courts
below, although, as we shall see, both courts were con
cerned over the circumstances that Mr. Monroe’s areal
sampling methods resulted in the selection of counties that
lie principally in the southern and eastern portions of the
State. This circumstance was apparently not thought to
impugn the sample’s factual representativeness—to the
contrary, as the record shows and the district court found
(257 F. Supp. at 720; A. 38), the sampling method was “ ac
ceptable statistically”—but it was given importance by the
legal theory of both courts that petitioner was required to
show that Garland County, not the State of Arkansas as a
A ppend ix A
9a
whole, applied the death penalty for rape discriminatorily.
Notwithstanding this legal conception, neither court below
contested the uncontradicted factual assertions of Mr. Mon
roe, as an expert statistician, that conclusions drawn from
data gathered in his sample counties would be valid for the
State of Arkansas. See 398 F.2d at 144; A. 53-55.)
2. Data Concerning the Critical Variables (Race
and Sentence) and Statistical Analysis o f the
Relationship Between Them.
For each individual case of conviction of rape, data were
gathered as to race of defendant, race of victim, and sen
tence imposed (Tr. 28-30).6a Using approved statistical
techniques, analysis was performed to determine the re
lationship among these variables (Petitioner’s Exhibit P-4,
pp. 2-4). Briefly, the analysis involved these steps: (a)
erection of a scientifically testable “ null hypothesis” “ as
serting there is no difference in the distribution . . . of the
sentence of death or life imprisonment imposed on Negro
or white defendants” (Tr. 30-31; see also Tr. 31-32); (b)
calculation of a “ theoretical or expected frequency” (Tr.
33) which represents the number of Negro defendants and
the number of white defendants (or, more specifically, the
number of Negro defendants convicted of rape of white
victims, and of all other defendants) who would be ex
pected to be sentenced to death if the null hypothesis (that
sentence is not related to race) were valid (Tr. 32-33); (c)
6a The sources from which these data, and other data relating to
the individual cases of rape convictions studied, were obtained is
described in detail in Petitioner’s Exhibit P-3, pp. 1-6. See note
8a, infra. Because the accuracy of all the basic data was con
ceded by the respondent below, see text supra at pp. la-3a, methods
of data collection and data sources were not developed at the
hearing, and Exhibit P-3 was put in merely for the information
of the court.
A ppend ix A
10a
comparison of this “ theoretical or expected frequency” with,
the frequency of death sentences actually observed in the
collected data for each racial combination of defendants
and victims; and (d) determination whether the discrep
ancy between the expected and observed frequencies is suf
ficiently great that, under generally accepted statistical
standards, that discrepancy can be said to be a product
of the real phenomena tested, rather than of the operation
of chance within the testing process, sampling, etc. (Tr.
33-37). “ I f that difference reaches a sufficiently high pro
portion, sufficiently high number, then the assertion can be
made, using again the traditional cut-off point,7a that the
difference is significant and could not have occurred by
chance” (Tr. 34). See 398 F.2d at 142; A. 50. The result
of this analysis, then, is the determination whether there
is a relationship or “ association” between Negro defend
ants convicted of rape of white victims and the death sen
tence imposed by Arkansas juries; and if so, whether that
relationship or association is “ significant” in the statistical
sense that the possibility of its occurrence by chance is so
slight as properly to be discounted. (See Petitioner’s Ex
hibit P-4, pp. 2-4.) (As we shall see infra, such a relation
ship, showing disproportionately frequent death sentencing
of Negroes convicted of rape of white victims, was in
fact established by the data.)
7a Dr. Wolfgang explained in considerable detail the. procedures
by which relations among items of observed data are tested statis
tically for reliability, “ not only in sociology and social sciences,
but other disciplines as well, . . . such as medical research” (Tr.
36). The basic procedure used in the present study—the chi-square
method of statistical analysis and the traditional measure of statis
tical “ significance” which treats as real observed relationships that
could not have occurred more than five times out of one hundred
by chance (expressed in the formula P < .05)— is described at
Tr. 33-37, with explication of these matters by reference to the
familiar example of head-or-tail coin tossing.
A ppend ix A
11a
3. Data Concerning “ Control” Variables.
Data gathering did not stop, however, with the facts of
race and sentence. As explained by Dr. Wolfgang, data
were collected on numerous other circumstances attending
each case of conviction for rape that “were felt to be rele
vant to the imposition of the type of sentence” (Tr. 40).
These data were sought by the exhaustive inquiries that
occupy 28 pages of small type on the data-gathering form
that is Petitioner’s Exhibit P-2—inquiries concerning the
defendant (age; family status; occupation; prior criminal
record; etc.), the victim (age; family status; occupation;
husband’s occupation if married; reputation for chastity;
etc.), defendant-victim relationship (prior acquaintance if
any; prior sexual relations if any; manner in which defen
dant and victim arrived at the scene of the offense), cir
cumstances of the offense (number of offenders and vic
tims; place of the offense; degree of violence or threat
employed; degree of injury inflicted on victim if any;
housebreaking or other contemporaneous offenses com
mitted by defendant; presence vel non at the time of the
offense of members of the victim’s family or others, and
threats or violence employed, or injury inflicted if any,
upon them; nature of intercourse; involvement of alcohol
or drugs; etc.), circumstances of the trial (plea; presenta
tion vel non of defenses of consent or insanity; joinder of
defendant’s rape trial with trial on other charges or trial
of other defendants; defendant’s representation by counsel
(retained or appointed) at various stages of trial and sen
tencing; etc.), and circumstances of post-trial proceedings
if any. See 398 F.2d at 142; A. 50-51.
The district court aptly characterized these factors as
“ Generally speaking, and subject to certain exceptions, . . .
variables . . . which reasonably might be supposed to either
A ppend ix A
12a
aggravate or mitigate a given rape” (257 F. Supp. at 718
n. 8; A. 35, n. 8). Their exhaustive scope appears upon the
face of Petitioner’s Exhibit P-2, and from Dr. Wolfgang’s
testimony: “ The principle underlying the construction of
the schedule [Petitioner’s Exhibit P-2] was the inclusion of
all data that could be objectively collected and transcribed
from original source documents that were available to the
investigators—the field investigators— such as appeal tran
scripts, prison records, pardon board records, and so forth,
and whatever was generally available was included. In this
sense, it was a large eclectic approach that was used for the
purpose of assuring ourselves that we had all available data
on these cases” (Tr. 96-97; see also Tr. 65-70). Dr. W olf
gang conceded that some data potentially pertinent to sen
tencing choice were not collected—for example, strength of
the prosecution’s case in each individual rape trial—but ex
plained that this was because such items were not informa
tion “that we could objectively collect” (Tr. 97). See 398
F.2d at 142; A. 51.
The pertinency of these data to the study was that some
of the many circumstances investigated, “ rather than race
alone, may play a more important role in the dispropor
tionate sentencing to death of Negro defendants convicted
of raping white victims” (Tr. 40).
“ These factors, not race, it could be argued, may be
determining the sentencing disposition; and Negroes
may be receiving death sentences with disproportionate
frequency only because these factors are dispropor
tionately frequent in the case of Negro defendants.
For example, Negro rape defendants as a group, it
may be contended, may employ greater violence or do
greater physical harm to their victims than do white
rape defendants; they may more frequently be repre
A ppend ix A
13a
sented at their trials by appointed rather than retained
counsel, and they may more frequently commit con
temporaneous offenses, or have a previous criminal rec
ord, etc.” (Dr. Wolfgang’s written report, Petitioner’s
Exhibit P-4, p. 5.)
In order to determine whether the control variables ex
plained or accounted for the racial disproportion in death
sentencing, analysis had to be made of the relationship
between each such factor for which data were available
and sentence on the one hand, race on the other. Dr. W olf
gang explained that no variable could account for the sig
nificant association between Negro defendants with white
victims and the death sentence unless that variable “ was
significantly associated with the sentence of death or life”
(Tr. 41), and unless it also was significantly associated
with Negro defendants convicted for rape of white victims
(Tr. 41-42).
A variable, even though associated with such Negro de
fendants (i.e., found disproportionately frequently in their
cases), could not furnish a non-raeial explanation for their
over-frequent sentence to death unless it was itself affect
ing the incidence of the death sentence (as evidenced by
its significant association with the death sentence) (see,
e.g., Tr. 45-46); while a variable which was not associated
with Negro defendants convicted of rape of white victims
could also not explain the frequency with which they, as
a class, were sentenced to death (e.g., Tr. 49-52). See gen
erally Petitioner’s Exhibit P-4, pp. 6-7.
4. Results and Conclusions.
Based on his study of the data gathered for the twenty
years 1945-1965 in the State of Arkansas, Dr. Wolfgang con-
A ppend ix A
14a
eluded categorically that “ compared to all other rape de
fendants, Negroes convicted of raping white victims were
disproportionately sentenced to death.” (Dr. Wolfgang’s
written report, Petitioner’s Exhibit P-4, p. 8, para. 3 (origi
nal emphasis).) “We found a significant association be
tween Negro defendants having raped white victims and
the disproportionate imposition of the death penalty in com
parison with other rape convictions.” (Tr. 52; see also Tr.
37-39.) Indeed, the disparity of sentencing between Negroes
with white victims and all other racial combinations of con
victed defendants and victims was such that it could have
occurred less than twice in one hundred times by chance
(Tr. 37-38)—i.e., if race were not really related to capital
sentencing in Arkansas, the results observed in this twenty-
year study could have occurred fortuitously in two (or
less) twenty-year periods since the birth of Christ. Thus,
the Wolfgang study convincingly documents the dis
crimination which previously available data— collected less
systematically or in a form permitting less rigorous scien
tific analysis—-also suggests: for example, the Federal
Bureau of Prisons’ National Prisoner Statistics for execu
tions during the period 1930-1962 (Petitioner’s Exhibit
P-6, Tr. 99-101), which disclose that more than nine times
as many Negroes as whites were put to death for rape dur
ing this period in the United States. See also pp. 13-16,
supra, of this brief.
A considerable part of Dr. Wolfgang’s testimony was ad
dressed to the question whether this disproportion could be
explained away or accounted for by the operation of other,
non-racial (“ control” ) variables. He testified that after the
Arkansas data were collected, he considered and subjected
to analysis every such variable or factor about which suf
ficient information was available to support scientific study
(Tr. 56, 64-65, 78-80, 97). With respect to a substantial
A ppend ix A
15a
number of the variables investigated by the field research
ers, their exhaustive exploration8®- failed to provide enough
sa g y reason of the court's pre-trial order and respondent’s con
cession under the procedures fixed by that order that the- responses
recorded by the field researchers on the individual case schedules
were accurate (see pp. la-3a, supra), petitioner did not present in
any systematic fashion below testimony relating to the data-gather-
ing procedures. The concession, of course, included the accuracy
of the response “unknown” wherever that appeared on a schedule,
and—as counsel for petitioner pointed out in the district court,
without disagreement from respondent or the court—the response
“unknown” “means that research, using the State’s records and
using all of the resources that we have poured into this case, is
unable to make any better ease than this” (Tr. 155-156).
The nature of the. research effort involved is indicated by Peti
tioner’s Exhibit P-3 (Tr. 25-27, 57), the instructions to the field
researchers. Those instructions include the following, at pp. 4-6:
“ Whether the work is done by a single researcher or divided
among more than one, the course of investigation of any spe
cific case will ordinarily involve the following steps.-
“ (1) Inspection of the county court docket books for en
tries relating to the case.
“ (2) Inspection of all other records relating to the case
available at the eounty court: file jackets, transcripts, witness
blotters, letter files, pre-sentence reports.
“ (3) Inspection of appellate court records in any case where
appeal was taken. Appellate court records include the, docket
of the appellate court, its file jacket, record on appeal (if
maintained on file in the appellate court), eourt opinion or
opinions if any, and appellate court clerk’s letter file.
“ (4) Inspection of prison records of the defendant if he
was incarcerated in a prison which maintains records.
“ (5) Inspection of pardon board records in any case where
the defendant submitted any application for executive clem
ency.
“ (6) If the foregoing sources fail to provide sufficient in
formation to complete the schedule on the case, interview of
defense counsel in the case.
“ (7) If the foregoing sources fail to provide sufficient in
formation to complete, the schedule on the case, inspection of
local and area newspaper files for items pertaining to the case.
“ Three general directives should be kept in mind:
“ (A) We are concerned with the sentencing decision, in
each case, of a particular official body at a particular time
A ppend ix A
16a
information for study. (E.g., victim’s reputation for
chastity, Tr. 79.) Notwithstanding respondent’s pre-trial
A ppend ix A
(i.e., the trial judge or jury; the pardon board). Every such
body acts—can act— only on the facts known to it at the time
it acts. For this reason, the “ facts” of a case called for by
the schedule, mean, so far as possible, the facts perceived by
the sentencing body. Facts which we know to have been
known to the sentencing body are preferred facts, and sources
which disclose them are preferred sources. (A trial transcript,
where it exists, is therefore the most desirable source of facts.)
Other sources are of decreasing value as the likelihood de
creases that the facts which they disclose were known to the
sentencing body. (A newspaper story which purports to re
port trial testimony, therefore, is to be preferred to one which
purports to report the facts of the offense on the basis of
other sources of information.)
“ (B) After this survey is completed, its results will be made
the basis for allegations of fact in legal proceedings. If the
allegations are controverted, it will be necessary to prove them,
and the proof will have to be made within the confines of
ordinary evidentiary rules, including the hearsay principle,
best evidence rule, etc. For this reason, sources of facts which
are judicially admissible evidence to prove the facts which
they disclose are preferred sources. Official records are most
desirable in this dimension; then the testimony of witnesses
having knowledge of the facts (for example, defense counsel),
finally, secondary written sources (for example, newspapers).
Wherever an official record or document may contain perti
nent information, inspect it yourself if you can; don’t take
somebody’s word for what is in it.
“ (C) Many of the facts you need to know will have been
contested in the judicial and post-judicial proceedings lead
ing to a defendant’s sentence and its execution. We have no
method for resolving factual disputes or, ordinarily, for know
ing how the triers of fact resolved them. As an invariable
rule, then, the facts should be reported in the light most
favorable to the prosecution, and most unfavorable to the
defendant, in every case. If a trial transcript exists, and if
it contains the testimony of the complaining witness and of
the defendant, resolve all conflicts of testimony in favor of
the complaining witness and report the facts as they might
reasonably have been found by a jury which credited the
complaining witness, drew all rational inferences from her
17 a
concession of the accuracy of the field researchers’ re
sponses on the individual case schedules, including the
response “unknown” where that appeared (see note 8a
supra), counsel for respondent attempted to suggest in
cross-examination of Dr. Wolfgang that these gaps in in
formation impugned the underlying data-gathering process.
Dr. Wolfgang replied:
“ the absence of information, I would be unwilling to as
sert is due to lack of any effort. Very diligent efforts
were made by the field investigators to collect the in
formation—from court clerks, from police records,
from prisons, from other sources available in the com
munity—and they were instructed to follow down each
piece of information, each source of information to its
fullest extent, so that I have no reason to doubt that
the effort was made to collect the data” (Tr. 80).
His testimony as a whole makes it clear that—although, as
he put it: “ Information is always limited” (Tr. 72)—he
was confident that he had enough of it to support his con
clusions. (See particularly Tr. 76-79.)
He was able to subject twenty-two “quite relevant vari
ables” (Tr. 78)—in addition to race of defendant, race of
victim, and sentence—to analysis. (See Petitioner’s Ex
hibit P-4, Appendix A ; Tr. 29, 52.) Most of these were not
significantly associated with sentence, and so Dr. W olf-
testimony most strongly against the defendant, discredited
the defendant, and refused to draw any disputable inferences
in his favor. Treat all other sources in a similar fashion. In
interviews with defense counsel, try to impress upon counsel
that you have to have the facts as they might have appeared
in the worst light for his client. In reading newspaper items
which give conflicting versions of the facts, adopt the version
most unfavorable to the defendant.”
A ppend ix A
18a
gang could assert categorically that they did not account
for or explain the disproportionately frequent death sen
tencing of Negroes with white victims (Tr. 42-46, 53-54).
These variables included the defendant’s age, whether he
was married, whether he had dependent children, whether
he had a prior criminal record; the victim’s age, whether
she had dependent children; whether the defendant and
victim were strangers or acquaintances prior to the offense;
place where the offense occurred (indoors or outdoors),
whether the defendant committed an unauthorized entry in
making his way to that place; whether the defendant dis
played a weapon in connection with the offense; degree of
seriousness of injury to the victim; and the defendant’s
plea (guilty or not guilty), type of counsel (retained or
appointed), and duration of trial (Tr. 47, 53; Petitioner’s
Exhibit P-4, p. 9, para. 5; Petitioner’s Exhibit P-5). Two
variables were shown to bear significant association with
sentence: death sentences were more frequent in the cases
of defendants who had a prior record of imprisonment, and
in the cases of defendants who committed other offenses
contemporaneously with the rape. But because these vari
ables were not associated with race,9a Dr. Wolfgang con
cluded that they also could not account for the fact that
Negroes convicted of rape of white victims were dispropor
tionately often sentenced to death (Tr. 47-52, 54; Peti
tioner’s Exhibit P-4, pp. 8-9, para. 4; Petitioner’s Exhibit
P-5). Other variables appeared so frequently or so in-
9a Statistical analysis of the association between these variables
and race of the defendant disclosed no significant association.
When defendant-victim racial combinations were considered, the
numbers of cases for which information was available became too
small for statistical treatment, but on the basis of trend of as
sociation, Dr. Wolfgang concluded that here too there was no
association of significance.
A ppend ix A
19a
frequently in the total population of cases studied that
statistical analysis of them was “unnecessary and impos
sible” : the fact that they appeared to characterize all cases
(or no cases), irrespective of sentence or of racial com
binations of defendant and victim, pointed to the conclu
sion that they were not available explanations for the re
lationship observed between death sentences and Negroes
with white victims. These variables included the victim’s
reputation for chastity and prior criminal record; whether
the defendant and victim had had sexual relations prior
to the occasion of the rape; the degree of force employed by
the defendant; whether the victim was made pregnant by
the rape; and whether the defendant interposed a defense
of insanity at trial (Tr. 54-55, 94-95, Petitioner’s Exhibit
P-5). Summarizing, Dr. Wolfgang found that no variable
of which analysis was possible could account for the ob
served disproportionate frequency of sentencing to death
of Negroes convicted of rape of white victims (Tr. 56-57).
His ultimate conclusion was:
“ On the basis of the foregoing findings, it appears
that Negro defendants who rape white victims have
been disproportionately sentenced to death, by reason
of their race, during the years 1945-1965 in the State
of Arkansas.” (Dr. Wolfgang’s written report, Peti
tioner’s Exhibit P-4, pp. 13-14 (emphasis added).)
B. The Opinion of the District Court.
Although respondent presented no evidence of any sort
in rebuttal, the district court disagreed with Dr. W olf
gang’s conclusions. It accepted his finding that the differ
ential sentencing to death of Negroes with white victims
“ could not be due to the operation of the laws of chance”
A ppendix A
20a
(257 F. Supp. at 718; A. 35); but supposed, again without
any sort of evidentiary presentation by the State, that it
might be due to some factor respecting which statistical
analysis had not been possible, such as the issue of consent
in rape cases (257 F. Supp. at 720-721; A. 40). The Court
remarked that the “ variables which Dr. Wolfgang con
sidered are objective . . . broad and in instances . . . im
precise” ; that in many of the individual rape cases studied
“ the field workers were unable to obtain from available
sources information which might have been quite perti
nent” ; and that “ Dr. Wolfgang’s statistics really reveal
very little about the details” of comparative individual cases
of rape. (257 F. Supp. at 720; A. 39.) While recognizing
that “ the sample drawn by Mr. Monroe seems to have been
drawn in a manner which is acceptable statistically” (257
F. Supp. at 720; A. 38), the court noted that the counties
randomly chosen had turned out not to be evenly geographi
cally dispersed, and not to include many counties of sparse
Negro population (ibid.). Garland County, which was not
itself included in the sample, is a county of sparse Negro
population located in a portion of the State in which the
sample counties fell less frequently than elsewhere. For
those reasons, the district court declined to conclude that
“ the Garland County jury which tried petitioner was moti
vated by racial discrimination when it failed to assess a
punishment of life imprisonment” (257 F. Supp. at 719;
A. 37)— (a subjective proposition, parenthetically, which
petitioner’s counsel had explicitly disavowed any intention
to undertake to prove). With regard to the State of
Arkansas generally, the district court thought that the
“ cases studied, and the number of death sentences imposed
are simply too few in number to afford convincing proof”
of racial discrimination (257 F. Supp. at 720; A. 38).
A ppend ix A
21a
Placing some reliance on the language in Dr. Wolfgang’s
written report to the effect that the report was “prelimi
nary” and “ tentative” (257 F. Supp. at 720; A. 39), the
court concluded:
“ On the meager material before it the Court is sim
ply not prepared to convict Arkansas juries of uncon
stitutional racial discrimination in rape cases. As a
matter of fact, the Court doubts that such discrimina
tion, which is a highly subjective matter, can be de
tected accurately by a statistical analysis such as was
undertaken here. Statistics are elusive things at best,
and it is a truism that almost anything can be proved
by them.” (257 F. Supp. at 720; A. 39-40; see also 257
F. Supp. at 719-720; A. 37-38.)
C . The Opinion of the Court o f Appeals.
The court of appeals agreed with the district court in
rejecting petitioner’s contention that his death sentence
must be set aside by reason of racial discrimination in capi
tal sentencing—but for somewhat different reasons. “Like
the trial court, . . . although perhaps not for each and all
of the reasons it advanced, we feel that the [statistical]
argument does not have validity and pertinent application
to Maxwell’s case.” (398 F.2d at 146; A. 59.) “What we are
concerned with here is Maxwell’s case and only Maxwell’s
case.” (398 F.2d at 147; A. 60.)
The court of appeals, in general, appears to concede the
validity of Dr. Wolfgang’s methodology, and even of his
conclusion that a pattern of racial discrimination has been
shown. (398 F.2d at 146-148; A. 59-64.) It finds that Dr.
Wolfgang testified his report was “preliminary” only “ in
the sense that the other states for which data was being col
A ppend ix A
22a
lected would be included in the final report.” (398 F.2d at
143; A. 52-53.) And the court accepts that there are “ rec
ognizable indicators” “ that the death penalty for rape may
have been discriminatorily applied over the decades in that
large area of states whose statutes provide for it.” 10a
Nevertheless the court holds, in effect, that this statistical
showing of discrimination is irrelevant because it does “not
show that the petit jury which tried and convicted Maxwell
acted in his case with racial discrimination” (398 F.2d at
147; A. 60) or that Maxivell himself “ was the victim of dis
crimination based on race” (398 F.2d at 148; A. 64.)
“ [Wjhatever . . . suspicion it may arose [sic] with
respect to southern interracial rape trials as a group
over a long period of time, and whatever it may dis
close with respect to other localities, we feel that the
statistical argument does nothing to destroy the in
tegrity of Maxwell’s trial.” (398 F.2d at 147; A. 61-62.)
This is so because the Arkansas statistics “ do not relate
specifically to Garland County where this particular offense
was committed and where Maxwell was tried and con
victed.” (398F .2datl46 ; A. 59.)
“ [W]hile it is true that it is in a sense the state
which prosecutes, nevertheless the county has a char-
10a (398 F.2d at 148; A. 63.) Despite the generality of the court’s
language, this finding must relate specifically to the State of Ar
kansas. This is so because no proof was offered on this record of
the results of the Wolfgang study in other States. The only evi
dence of record with regard to areas outside Arkansas was Peti
tioner’s Exhibit P-6, the National Prisoner Statistics. These show
raur numbers of executions for rape and murder, by race, for all
the States. (See pp. 13-15 n. 11, supra.) They do no more than
show that Dr. Wolfgang’s conclusions for Arkansas are conform
able to the national pattern. Thus, if there is south-wide discrimi
nation, there is most assuredly discrimination in Arkansas.
A ppend ix A
23a
aeter, too. . . . Yet the Garland County statistics [pro
duced in the earlier habeas corpus proceeding] . . .
afford no local support to the petitioner’s statistical
argument. The evidence produced at the prior hearing
and at this one discloses only Maxwell as a recipient of
the death penalty in Garland County for rape.
“ . . . [W ]e are not yet ready to nullify this peti
tioner’s Garland County trial on the basis of results
generally, but elsewhere, throughout the South.” (398
F.2d at 147; A. 61.)
We think it apparent, on a fair reading of the court of
appeals’ opinion, that that court found unavoidable Dr.
Wolfgang’s conclusion concerning racial discrimination in
capital sentencing by Arkansas juries in rape cases. At
the very least, the court of appeals explicitly admitted
that there are “ recognizable indicators” and “ground for
suspicion that the death penalty for rape may have been
discriminatorily applied over the decades in that large
area of states whose statutes provide for it.” (398 F.2d at
148; A. 63.)
A ppend ix A
24a
APPENDIX B
Available Information Relating to the Proportion of
Persons Actually Sentenced to Death, Among Those
Convicted of Capital Crimes.
It is exceptionally difficult to obtain information which
will permit construction of a reliable estimate concerning
the proportion of persons actually sentenced to death,lb
among all those convicted of capital crimes. In order to
calculate this proportion, two comparable figures are re
quired : the number of persons convicted of a given capital
offense, and the number of persons sentenced to death
for it. The figures must be comparable in the sense that
they relate to the same jurisdiction, the same period of
time, and the same offense.
Figures for the number of death sentences imposed
during recent years, for each of the several capital offenses,
in each of the capital-punishment jurisdictions, may be
estimated— albeit somewhat inexactly—from data reported
in the National Prisoner Statistics Bulletins on Executions.
The relevant tables are cited in the footnote,2b which also
lb By “ persons actually sentenced to death,” we mean persons
upon whom the sentencing authority, judge or jury, imposes ̂ a
death sentence. AVe do not mean to take account of later judicial
decisions vacating the sentence, of executive clemency, or of any
other factor that may result in the initial death sentence not being
carried out.
2b The National Prisoner Statistics Bulletins on Executions are
published annually. The latest is U n it e d S t a t e s D e p a r t m e n t op
J u s t ic e , B u r e a u o p P r is o n s , N a t io n a l , P r is o n e r S t a t is t ic s , No.
42, Executions 1930-1967 (June, 1968). In the columns below we
list the numbers and titles of the issues relied upon in this Ap
pendix, the abbreviation which will hereafter be used to designate
each, and the pages and tables of each that contain pertinent in
formation.
Number, title, date Abbreviation Page and table
No. 28, Executions NPS (1961) p. unnumbered,
1961 (April, 1962) table 5
25a
sets forth the citation form that will be used hereafter
to describe each bulletin. There are several problems with
the tables as sources of information relating to the num
ber of persons sentenced to death. First, the figure which
they report represents the number of persons received
by the respective state penitentiaries from the courts,
each year, under sentence of death. This may be fewer
than the actual number of death sentences imposed in
some states, where the practice is to hold a death-sentenced
man in a local facility pending post-verdict motions and/or
appeals. Second, for this or other reasons, a few death
sentences imposed each year are not reported to the NPS
until the following year. The latest NPS Bulletin gives
revised figures for prisoners received from court under
sentence of death for each year since 1961 (NPS (1967),
p. 12, table 4 ); but these figures are not broken down by
jurisdiction and offense. Figures broken down by juris
diction and offense must be taken from the earlier annual
reports, and have not been revised.
But these problems are inconsequential compared to
those of ascertaining comparable figures relating to the
A ppend ix B
Number, title, date Abbreviation Page and table
No. 32, Executions
1962 (April, 1963)
NPS
No. 34, Executions
1930-1963 (May, 1964)
NPS
No. 37, Executions
1930-1964 (April,
1964 [sic: 1965])
NPS
No. 39, Executions
1930-1965 (June, 1966)
NPS
No. 41, Executions
1930-1966 (April, 1967)
NPS
No. 42, Executions
1930-1967 (June, 1968)
NPS
(1962) p. unnumbered,
table 5
(1963) p. 14, table 5
(1964) p. 14, table 4
(1965) p. 14, table 4
(1966) p. 13, table 4
(1967) pp. 12-17, tables 4-7
26a
number of convictions for capital offenses. Conviction
figures are almost nowhere published. The rare published
figures suffer from assorted woes that virtually destroy
their usefulness. Some states report judicial statistics
for fiscal years, making comparison with the calendar-
year NPS reports difficult. Most states report conviction
figures for categories of cases (“murder” ; “ sexual of
fenses” ) that include, but are not entirely composed of,
capital crimes. Many states report not conviction figures,
but figures concerning the number of commitments to the
state penitentiary under conviction and sentence for given
offenses. These figures omit large numbers of convicted
persons: namely, those sentenced to imprisonment in local
facilities, or to probation, or whose sentences are sus
pended. Secondary sources reporting conviction figures
suffer from the same defects and often, in addition, they
report totals for a span of years that includes both a
period of mandatory capital sentencing and a succeeding
period of discretionary capital sentencing within a juris
diction.
Confronted with these problems, we adopt the approach
of setting out below all of the information we can find
relating to the question of what proportion among all
convicted capital offenders are actually sentenced to death.
The information comes from a variety of states, for a
variety of periods, and has a variety of problems. We
report each item separately, and explain its problems as
we see them.
A . R ape.
1. Partington appears to say that, between 1908 and
1963, there were 2798 offenders committed to the Virginia
State Penitentiary upon convictions for the capital crimes
A ppend ix B
27a
of rape, attempted rape, statutory rape, and attempted
statutory rape. There were 68 death sentences in this
group, including two imposed upon defendants who had
been convicted of capital robbery as well as the sexual
offense. For rape alone, there were 1565 commitments,
including 41 death sentences. The principal problem with
these figures appears to be that the commitment figures
are doubtless considerably lower than the number of
capital convictions, since some capital offenders would
have received jail terms, probation, or suspended sen
tences. Partington, The Incidence of the Death Penalty
for Rape in Virginia, 22 W ash . & Lee L. R ev. 43, 43-44,
71-73 (1965).
2. Johnson reports that in North Carolina, between
July 1, 1938 and December 31, 1953, there were 382 convic
tions for rape, as compared with 52 death sentences (ad
missions to death row) upon conviction for rape. The
conviction figure seems unduly low, even considering the
availability to the jury of verdicts for lesser offenses.
Johnson, Selective Factors in Capital Punishment, 36
Social F orces 165, 166 (1957).
3. In the federal courts, where rape is capitally punish
able under both the federal code and the District of Colum
bia Code, there appear to have been a total of 111 rape
convictions between July 1, 1961 and June 30, 1966, ex
cluding the fiscal year 1964-1965, for which no figure is
reported. For the calendar years 1961 through 1966, no
death sentences were imposed for rape by a federal court.
Conviction figures are taken from table D5 in the Annual
Reports of the Director of the Administrative Office of
the United States Courts for the years 1962-1966; death-
sentence figures from NPS (1961) through NPS (1966).
A ppendix B
28a
4. Dr. Wolfgang’s study of rape convictions in the
State of Arkansas described in Appendix A to this brief
uncovered 55 instances of conviction for rape in 19 counties
over the period 1945-1965. (This figure excludes a, few
cases which were not subjected to analysis for want of
essential information relating to them.) In 14 of the cases,
the death sentence was imposed. See Petitioner’s Exhibit
P-4, Appendix B, table 1.
5. There appear to have been 96 commitments under
conviction for capital rape offenses in Florida between
July 1, 1964 and June 30, 1966. During the three calendar
years encompassing these two fiscal years, 8 men were
sentenced to die for rape. F lorida D ivision of Corrections,
F ifth B iennial R eport (July 1, 1964-June 30, 1966)
(1966) 74-75; NPS (1964); id. (1965); id. (1966).
6. There appear to have been 89 commitments under
conviction for rape and assault with intent to rape in
Maryland between July 1, 1965 and June 30, 1966. During
the two calendar years encompassing that one fiscal year,
2 men were sentenced to die for rape offenses. (During
these years all rape and assault with intent to rape were
capital in Maryland.) State of M aryland, D epartment of
Correction, F ortieth R eport (July 1, 1965— June 30,
1966) (1966) 36; NPS (1965); id. (1966).
7. There appear to have been 186 commitments under
conviction for rape in Georgia between July 1, 1964 and
June 30, 1967. During the four calendar years encompass
ing these three fiscal years, 8 men were sentenced to die
for rape. State of Georgia B oard of Corrections, A nnual
R eport (July 1,1964— June 30, 1965) (1965) 56; id. (July 1,
1965— June 30, 1966) (1966) 52; id. (July 1, 1966—June 30,
1967) (1967) 39; NPS (1964); id. (1965); id. (1966); id.
(1967) .
A ppend ix B
29a
A ppendix B
8. There appear to have been 21 commitments under
conviction for rape in Tennessee between July 1, 1965 and
June 30, 1966. During the two calendar years encompass
ing this fiscal year, 5 men were sentenced to die for rape
in the state. T ennessee D epartment op Correction, D e
partmental R eport (Year ending June 30, 1966) (pages
unnumbered; chart designated: “ Offenses Committed” ) ;
NPS (1965); id. (1966).
9. Because of the extreme paucity of available data
relating to the question dealt with in this Appendix, we
venture to set forth the figures discovered in Dr. W olf
gang’s study of several other states, although as yet
unpublished.815 Data from six states, in addition to Ar
kansas, have thus far been analyzed. We give the respective
numbers of rape convictions and death sentences for rape
during the period 1945-1965 in a representative sample of
counties for each state (again excluding cases eliminated
from analysis because of lack of essential information).
State Rape Convictions Death Sentences
3b We feel that there is no impropriety in presenting these figures
for the information of the Court, since they serve to cast light on
an obscure and essentially non-controversial point. We have of
course abstained from making reference to Dr. Wolfgang’s findings
relating to the impact of racial factors on capital sentencing in
other states than Arkansas, since that issue is a more contro
versial one.
Alabama
Florida
Georgia
Louisiana
South Carolina
Tennessee
185
218
369
125
394
213
20
36
17
22
26
18
A ppend ix B
B . Murder.
1. Wolfgang reports that in Philadelphia during the
period 1948-1952 there were 77 convictions of first degree
murder, as compared with 7 death sentences. W olfgang,
P atterns in Criminal H omicide (Science ed., Wiley, 1966)
305-306, table 36.
2. Kalven and Zeisel report 21 death sentences out of
a sample of 111 murder cases tried in the years 1954, 1955
and 1958 in which a jury returned a verdict of guilty of
a capital degree of the offense, and the presiding judge
agreed with their guilty verdict. K alven & Z eisel, T he
A merican J ury (1966) 435-436.
3. Johnson reports that in North Carolina, between
July 1, 1938 and December 31, 1953, there were 742 con
victions for first degree murder, as compared with 162
death sentences (admissions to death row) upon conviction
for first degree murder. Johnson, Selective Factors in
Capital Punishment, 36 S ocial F orces 165, 166 (1957).
4. Bedau reports that in New Jersey, between 1916 and
1955, 497 persons were committed to the state penitentiary
with life sentences for murder, while 157 persons were
sentenced to death for murder. (These are all first degree
cases, it would appear, since New Jersey law does not
permit life imprisonment for second degree murder. The
death penalty for first degree murder was made discre
tionary in 1916.) The problem here is that the figures for
conviction include both jury convictions (entailing jury
discretion to sentence to life or death) and court convic
tions upon a plea of non vult (which, under New Jersey
law, precludes the death penalty). Bedau, Death Sentences
in New Jersey 1907-1960, 19 R utgers L. R ev. 1, 30 (1964).
31a
Between 1956 and 1960 in New Jersey, Bedau finds 61 first
degree murder convictions, resulting in 13 death sentences
and 48 life sentences (17 on a jury verdict and 31 on a
plea of non vult). Id. at 51.4b These figures may relate
only to male convicts, since Bedau received his conviction
figures from Edwin W olf (see next paragraph), who
studied the prison records of convicted male offenders.
5. W olf reports that of 159 convictions by a jury of a
male offender for the offense of first degree murder in
New Jersey between 1937 and 1961, 62 resulted in a death
sentence and 97 in a sentence of life imprisonment. Wolf,
Abstract of Analysis of Jury Sentencing in Capital Cases:
New Jersey: 1937-1961, 19 R utgers L. R ev. 56, 60 (1964).
6. In the federal courts, where first degree murder is
capitally punishable under both the federal code and the
District of Columbia Code, there appear to have been a
total of 11 convictions for this offense between July 1,
1961 and June 30, 1966, excluding the fiscal year 1964-1965,
for which no figure is reported. During the calendar years
1961 through 1966, 2 death sentences were imposed by
federal courts for murder. Note that the death-sentence
figure relates to a period of six years, including the four
for which the conviction figure is given. This awkward
form of comparison is necessitated by the problem of re
lating calendar to fiscal years. Conviction figures are taken
from table D5 in the Annual Reports of the Director of
the Administrative Office of the United States Courts for
the years 1962-1966; death-sentence figures from NPS
(1961) through NPS (1966).
4b The figure “ 60” in the lower right-hand cell of table X X V III
ought to be “ 61.” This is so because the figure “ 4” in the last
column for the year 1958 is a typographical error and should
read “ 5.”
A ppend ix B
32a
7. California reports 88 first degree murder convictions
during 1967, as compared with 17 death sentences. State
op California, D epartment of J ustice, D ivision of L aw
E nforcement, B ureau of Criminal Statistics, R eport
(C rime and D elinquency in California, 1967) (1968) 140;
NPS (1968).
8. There appear to have been 78 commitments under
conviction for first degree murder in Florida between
July 1, 1964 and June 30, 1966. During the three calendar
years encompassing these two fiscal years, 16 men were
sentenced to die for first degree murder. F lorida D ivi
sion of Corrections, F ifth B iennial R eport (July 1, 1964-
June 30, 1966) (1966) 74-75; NFS (1964); id. (1965); id.
(1966) .
9. There appear to have been 28 commitments under
conviction for first degree murder in Maryland between
July 1, 1965 and June 30, 1966. During the two calendar
years encompassing that one fiscal year, 4 men were sen
tenced to die for first degree murder. M aryland D epart
ment of Correction, F ortieth R eport (July 1, 1965— June
30, 1966) (1966) 36; NPS (1965); id. (1966).
10. There appear to have been 269 commitments under
conviction for murder in Georgia between July 1, 1964 and
June 30, 1967. During the four calendar years encompass
ing these three fiscal years, 12 men were sentenced to die
for murder. (During these years all murder was capital in
Georgia, which recognized no degrees of the offense.)
S tate of Georgia B oard of Corrections, A nnual R eport
(July 1,1964— June 30, 1965) (1965) 56; id. (July 1, 1965—
June 30, 1966) (1966) 52; id. (July 1, 1966— June 30, 1967)
(1967) 39; NFS (1964); id. (1965); id. (1966); id. (1967).
A ppend ix B
33a
11. There appear to have been 23 commitments under
conviction for first degree murder in Tennessee between
July 1, 1965 and June 30, 1966. During the two calendar
years encompassing this fiscal year, no men were sentenced
to die for murder in the state. T ennessee D epartment of
Correction, D epartmental R eport (Year ending June 30,
1966) (pages unnumbered; chart designated: “ Offenses
Committed” ) ; NPS (1965); id. (1966).
# # *
In addition to the figures available for comparison, su
pra, national totals of commitments under sentence of
death are reported. These alone give some sense of the
extreme infrequency with which persons convicted of capi
tal crimes are actually sentenced to death. Thirty-nine
States, the District of Columbia, and the federal jurisdic
tion all have on their books statutes of general applicabil
ity punishing one or more offenses with death. In some
States, half a dozen or more crimes may be so punish
able.Bb Yet the following numbers of men were received
under sentence of death in all of the prisons of the United
States in the following years (NPS (1968), p. 12, table 4 ):
1961 — 140
1962 — 103
1963 — 93
1964 — 106
1965 — 86
1966 — 118
1967 — 85
A ppend ix B
6b See Brief for the N.A.A.C.P. Legal Defense and Educational
Fund, Inc., and the National Office for the Rights of the Indigent,
as Amici Curiae, in Boykin v. Alabama, O.T. 1968, No. 642, Ap
pendix A, pp. la-8a.
34a
NPS (1968), p. 13, table 5, breaks down the figure of 85
for the year 1967 as follows, by offense and race:
A ppen d ix B
Murder
White
36
Nonwbite
38
Total
74
Rape 1 6 7
Kidnaping 1 0 1
Robbery 0 1 1
Assault by Life Prisoner615 2 0 2
Burglary 0 0 0
40 45 85
6b This is a California offense, carrying a mandatory death
sentence.
35a
APPENDIX C
Manner o f Submission o f the Death-Penalty Issue at
Petitioner Maxwell’ s Trial.
The only instruction to the jury at Maxwell’s trial re
lating to its sentencing function was the following passage,
which concluded a lengthy instruction dealing with the sub
stantive law of rape and the principle that, to convict the
defendant of rape, the jury must find him guilty beyond
a reasonable doubt:
“If you find the defendant guilty, you will say: ‘We
the Jury, find the defendant guilty of rape as charged
in the information.’ I f you bring in that verdict then
the law fixes the punishment at death and it will be
the duty of the Court to sentence him accordingly.
But you may bring in this kind of verdict: ‘We the
Jury, find the defendant guilty of rape as charged in
the information and fix his punishment at life impris
onment in the Penitentiary.’ But if you find the de
fendant not guilty, or have a reasonable doubt of his
guilt in the whole case, you will say: ‘We the Jury,
find the defendant not guilty.’ ” (Trial transcript, p.
332.)
The jury was given three verdict forms in the language
just recited, which were read again to the jury before the
case was submitted. (Id., at p. 369.)
RECORD PRESS. INC., 95 MORTON ST., NEW YORK, N. Y. 10014, (212) 243-5775
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