McGautha v. State of California Motion for Leave to File Brief Amicus Curiae
Public Court Documents
January 1, 1970
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Brief Collection, LDF Court Filings. McGautha v. State of California Motion for Leave to File Brief Amicus Curiae, 1970. 3cdb9c8a-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b28d7419-5a3f-4f22-b7fd-e953a1beccd9/mcgautha-v-state-of-california-motion-for-leave-to-file-brief-amicus-curiae. Accessed July 16, 2025.
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C a p r o n e © u n i t is ! tip m&nxtzb S t a t e s
Octobeb Term, 1970
No. 203
Dennis Councle McGautha,
—v.—
State of California,
Petitioner,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 204
.Tamer Edward Crampton,
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 Himmelstein
.10 Columbus Circle, Suite 2030
New York, New York 10019
Michael Meltsner
Columbia University School of Law
New York, New York 10027
Anthony G. Amsterdam
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 ic i ...................................... 1-M
Brief A m ici Curiae ..... 1
Summary of Argum ent................................................... 2
Argument .................................................................. 3
I. Introduction ............................................................ 3
II. The Issue of Standardless and Arbitrary Capi
tal Sentencing Power ................................ 18
A. The Nature of the Power ............................. 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
PAGE
Conclusion 82
T able of A uthorities
PAGE
Cases:
Adderly v. WainwrigM, U.S.D.C., M.D. Fla., No. 67-
298-Civ-J............................................................................ 3
Akins v. State, 148 Tex. Grim. App. 523, 182 S.W.2d
723 (1944) ........................................................................
Alford y . State, 223 Ark. 330, 266 S.W.2d 804 (1954) ....
Andres v. United States, 333 U.S. 740 (1948) ...............
Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214
(1935) ........................................................................21,72,
Bagley v. State,------ Ark. — —, 444 S.W.2d 567 (1969)
Baker v. State, 137 Fla. 27, 188 So. 634 (1939) ...........
Bankhead v. State, 124 Ala. 14, 26 So. 979 (1899) .......
Barfield v. State, 179 Ga. 293, 175 S.E. 582 (1934) .......
Batts v. State, 189 Tenn. 30, 222 S.W.2d 190 (1946) ....
Bangns v. State, 141 So.2d 264 (Fla. 1962) ..55, 57, 61, 63,
Beard v. State, 64 Ohio Law Abs. 532, 112 N.E.2d 832
(1951) .... ............................................................................
Boggs v. State, 268 Ala. 358, 106 S.2d 263 (1958) ........ .
Bouie v. City of Columbia, 378 U.S. 347 (1964) ...........
Boykin v. Alabama, 395 U.S. 238 (1969) (O.T. 1968,
No. 642) ........................................................................ 3-M,
Brown v. State, 109 Ala. 70, 20 So. 103 (1896) ...........58,
Brown v. State, 190 Ga. 169, 8 S.E.2d 652 (1940) .......
Burgess v. State, 256 Ala. 5, 53 So.2d 568 (1951) .......
Burnette v. State, 157 So.2d 65 (Fla. 1963) ...............55,
Butler v. Alabama, O.T. 1970, No. 5492 ................. .........
City of Toledo v. Reasonover, 5 Ohio St. 2d 22, 213
N.E.2d 179 (1965) ..........................................................
Commonwealth v. Brown, 309 Pa. 515, 164 A. 726
(1933) .......................................................................... .....
!-M
64
55
50
,74
61
64
51
55
64
68
19
55
71
49
62
60
51
61
62
18
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. Ross, 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.
Eptr. 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
Y
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 Ya. 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.
Eptr. 882 (1969) ........................................................... 32,36
People v. Anderson, 63 Cal.2d 351, 406 P.2d 43, 46
Cal. Eptr. 763 (1965) .................................................... 37
People v. Anderson, 64 Cal.2d 633, 414 P.2d 366, 51
Cal. Eptr. 238 (1966) ................................................ ..45,47
People v. Baldonado, 53 Cal.2d 824, 350 P.2d 115, 3
Cal. Eptr. 363 (1960) ...................................................... 32
People y. Bandhaner, 1 Cal.3d 609, 463 P.2d 408, 83
Cal. Eptr. 184 (1970) ............................. ..... ....... ........ 45
People v. Bandhauer, 66 Cal.2d 524, 426 P.2d 900, 58
Cal. Eptr. 332 (1967) .............................................39,40,47
People v. Bernette, 30 I11.2d 359, 197 N.E.2d 436 (1964) 55
People v. Bickley, 57 Cal.2d 788, 372 P.2d 100, 22 Cal.
Eptr. 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.
Eptr. 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.
Eptr. 573 (1960) .................. .......... ................. ............. 47
People v. Ciucci, 8 I11.2d 619, 137 N.E.2d 40 (1956) .... 58
People v. Clark, 62 Cal.2d 870, 402 P.2d 856, 44 Cal.
Eptr. 784 (1965) .................................................... .....36,45
People v. Corwin, 52 Cal.2d 404, 340 P.2d 626 (1959) 35
People v. Crews, 42 I11.2d 60, 244 N.E.2d 593 (1969) .... 63
People v. Deptnla, 58 Cal.2d 225, 373 P.2d 430, 23 Cal.
Eptr. 366 (1962) ......................................................... 32
PAGE
V ll
People v. Durham, 70 Cal.2d 171, 449 P.2d 198, 74 Cal.
Rptr. 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 v. 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.
Rptr. 40 (1961) ....... ....... ........................... ................... 37
People v. Gilbert, 63 Cal,2d 690, 408 P.2d 365, 47 Cal.
Rptr. 909 (1966) .............................................................. 35
People y. Glatman, 52 Cal.2d 283, 340 P.2d 8 (1959) .... 33
People v. Golston, 58 Cal.2d 535, 375 P.2d 51, 25 Cal.
Rptr. 83 (1962) ....... .................................... .................. 32
People v. Gonzales, 56 Cal.2d 317, 363 P.2d 871, 14 Cal.
Rptr. 639 (1961) ......... 40
People v. Gonzales, 66 Cal.2d 482, 426 P.2d 929, 58 Cal.
Rptr. 361 (1967) ......... 35
People v. 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.
Rptr. 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.
Rptr. 4 (1963) .......................................... .....36,38,40,41,47
People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 30 Cal.
Rptr. 841 (1963) ............. .40,41,43,44,46
People v. Hill, 66 Cal.2d 536, 426 P.2d 908, 58 Cal.
Rptr. 340 (1967) .................... 38,40,41,48
People v. Hillery, 62 Cal.2d 692, 401 P.2d 382, 44 Cal.
Rptr. 30 (1965)
PAGE
37
vm
People v. Hillery, 65 Cal.2d 795, 423 P.2d 208, 56 Cal.
Rptr. 280 (1967) ..................................35,40,41,43,45,46
People v. 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.2d 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. Ketchel, 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
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.
Rptr. 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.3 d ------- , 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. Mcholans, 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
PAGE
People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134
N.E.2d 197 (1956) ..........................................................
People v. Pike, 58 Cal.2d 70, 372 P.2d 656, 22 Cal.
Eptr. 664 (1962) ....................................................... ...35,
People v. Polk, 63 Cal.2d 443, 406 P.2d 641, 47 Cal.
Eptr. 1 (1965) .............................................. 36,44,45,
People v. Parvis, 52 Cal.2d 871, 346 P.2d 22 (1959) ....36,
People v. Purvis, 56 Cal.2d 93, 362 P.2d 713, 13 Cal.
Eptr. 801 (1961) ............................................................ 41,
People v. Parvis, 60 Cal.2d 323, 384 P,2d 424, 33 Cal.
Eptr. 104 (1963) ................... ....... ....................................
People v. Beeves, 64 Cal.2d 766, 415 P.2d 35, 51 Cal.
Eptr. 691 (1966) ...................................................... 32, 36,
People v. Bisenhoover, 70 Cal.2d 39, 447 P.2d 925, 73
Cal. Eptr. 533 (1968) .......................................................
People v. Eittger, 54 Cal.2d 720, 355 P.2d 645, 7 Cal.
Eptr. 901 (1960) ...............................................................
People v. Shipp, 59 Cal.2d 845, 382 P.2d 577, 31 Cal.
Eptr. 457 (1963) ........................... ....................................
People v. Sieterle, 56 Cal.2d 320, 363 P.2d 913, 14 Cal.
Eptr. 681 (1961) ..............................................................
People v. Sosa, 251 Cal. App.2d 9, 58 Cal. Eptr. 912
(1967) ....... .
People v. Spencer, 60 Cal.2d 64, 383 P.2d 134, 31 Cal.
Eptr. 782 (1963) ..............................................................
People v. Stanworth,------Cal.3d------- , 457 P.2d 889, 80
Cal. Eptr. 49 (1969) ......................................................
People v. Sallivan, 345 111. 87, 177 N.E. 733 (1931) ......
People v. Tahl, 65 Cal.2d 719, 423 P.2d 246, 56 Cal.
Eptr. 318 (1967) .................................................33, 35, 36,
People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 51 Cal.
Eptr. 417 (1966) ...................................................... 35, 40,
76
37
47
38
47
37
48
36
48
40
32
32
40
45
58
40
41
X I
PAGE
People v. 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 v. Thomas, 65 Cal.2d 698, 423 P,2d 233, 56 Cal.
Rptr. 305 (1967) ..................... -.......... -............................ 40
People v. Varnurn, 61 Cal.2d 425, 392 P.2d 961, 38 Cal.
Rptr. 881 (1964) ........ ...................................................... 37
People v. Varmim, 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 y . Welch, 58 Cal.2d 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
X ll
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 & Kiggins v. Washington, O.T. 1970, Misc. No.
5034 .................................................................................... 63
Spain v. State, 59 Miss. 19 (1881) ........................... 55,58,61
Spencer v. Texas, 385 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. Supp.), 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, 83 Ida. 322, 364 P.2d 159 (1961) ....... . 60
PAGE
sin
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 v. 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) ........... 57
PAGE
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, 15 Ohio Ops.2d 461, 175 N.E,2d 767
(1960), app. dism’d, 171 Ohio St. 62, 167 N.E.2d 778
(1960) ........................................................................ 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 684 (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
PAGE
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 X.K.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
(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) ........... 61
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
PAGE
(1950)............................................... ............... - ..... -...... 21, 27
State v. Van Vlack, 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 v. White, 60 Wash.2d 551, 374 P.2d 942
(1962) ........................................................................ 57,61,64
State v. 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) ....................... ........................ ................
Thomas v. Florida, O.T. 1970, Misc. No. 5079
79
63
S V 11
Trop v. Dulles, 356 U.S. 86, 101 (1958) .......... ................ 13
Turner v. State, 21 Oliio 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, Mise. No. 5083 ............... 63
Waters v. State, 87 Olda. Grim. App. 236, 197 P.2d
299 (1948) ......... ..... .......... ................. ............................ 63
Wheat v. State, 187 Ga. 480, 1 S.E.2d 1 (1939) ...........58,60
White v. Rhay, 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. Grim. 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
xvm
Statutes :
18 U.S.C. §1111 (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. & Vet. Code §1670 ........ ........... ............ ......... 31
Cal. Mil. & Vet. Code §1672(a) ........... ....... .... .............. 31
Cal. Pen. Code §37 ............................ ............ ......... —-..... - 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. cum. snpp.) — 51
Col. Rev. Stat. §40-2-3(2) (a), (b) (1965 Perm. cum.
supp.) ............................................................... —............. 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
PAGE
Conn. G-en. Stat. Ann. §53-10 (1970-197]. Cum. pocket
part) ............ ................ .............................................51, 54,
Del. Stat. Ann., tit. 11, §3901 (1968 Cum. pocket
part) ................. 53,
D.C. Code §22-2404 (1967) ..................... ............. ........... .
Fla. Stat. Ann. §919.23(2) (1944) ...................................
Fla. Stat. Ann. §912.01 (1944) ..... .................. ..................
Fla. Stat. Ann., Rules Crim. Pro. 1.260 (1967).... ..........
Ga. Code Ann. §26-3102 (Criminal Code of Georgia,
1968-1969) ................................ 51,
Ga. General Assembly, 1970 Sess., H.B. No. 228 ...........
Ida. Code Ann. §18-4004 (1948) .......................................51,
111. Stat. Ann., tit. 38, §1-7 (c)(1 ) (1970 Cum. pocket
part) ..................................................................... ....53,
111. Stat. Ann., tit. 38, § l-7 (c)(2 ) (1970 Cum. pocket
part) .............................................................................. .
111. Stat. Ann., tit. 38, §9-1 (b) (1964) ........................... 53,
Burns Ind. Stat. Ann. §9-1819 (1956 Repl. vol.) ..... .......
Burns Ind. Stat. Ann., §10-3401 (1956 Repl. vol.) .........
Kan. Stat. Ann. §21.-4501(a) (1969 Cum. supp.) ....... 51,
Ky. Rev. Stat. Ann. §435.010 (1969) .... ...................... 51,
La. Stat. Ann., Code Crim. Pro., art. 557 (1967) ...........
La. Stat. Ann., Code Crim. Pro., art. 780 (1967) ...........
La. Stat. Ann., Code Crim. Pro. art. 817 (1967) ....... 52,
Md. Code Ann., art. 27, §413 (Repl. vol. 1967) ..... ..... 53,
Mass. Ann. Laws, ch. 265, §2 (1968) .......................52, 54,
Miss. Code Ann., tit. 11, §2217 (Recomp. vol. 1956) ....52,
Vernon’s Mo. Stat. Ann. §546.410 (1953) .......................
Vernon’s Mo. Stat. Ann. §546.430 (1953) ...................
Vernon’s Mo. Stat. Ann. §559.030 (1953) ................... 52,
Mont. Rev. Code §94-2505 (Repl. vol. 1969) ...............52,
57
54
50
54
51
51
54
5
54
54
51
54
51
54
54
54
52
52
54
54
57
54
52
63
54
54
X X
Neb. Rev. Stat. §28-401 (Reissue vol. 1964) ....— ........ 54
Nev. Laws 1967, ch. 523, §438, p. 1470 .........................~ ~ 52
Nev. 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, ch. 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
Qkla. Stat. Ann., tit. 21, §707 (1958) ...............................53, 54
Pa. Laws 1794, ch. 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 (Eepl. vol. 1960) _______ 53, 54
Va. Code Ann. §19.1-250 (Eepl. vol. 1960) ___ _______53, 54
Wash. Eev. Code §9.48.030 (1961) ............ ................ ..53,54
Wyo. Stat. Ann. §6-54 (1957) ...................................... 53,54
PAGE
Other A uthorities
A dvisory Council op Judges 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 L aw Institute, Model P enal Code, §210.6
(P.O.D., May 4, 1962) .... ............... ................. ........... ....9, 62
Ancel, The Problem of the Death Penalty, in Sellin,
Capital P unishment (1967) 76
X X II
Bedau, Death Sentences in New Jersey 1907-1960, 19
R utgers L. R ev. 1 (1964) ........................................... 4-M, 76
Bedan, The Courts, The Constitution, and Capital
Punishment, 1968 Utah L. R ev. 201, 232 (1968) ....... 77
B edau, T he Death P enalty 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. R ev.
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
Dueey & H irshberg, 88 Men and 2 W omen (1962) .......4-M
Herman, An Acerbic Look at the Death Penalty in
Ohio, 15 W estern R eserve L. R ev. (1964) ............... 28
Johnson, Selective Factors in Capital Punishment, 36
Social F orces 165 (1957) ................................. .......... .....4-M
K oestler, R eflections on H anging (Amer. ed. 1957)
144-152 ................................................................. 76
Lawes, Twenty T housand Y ears in Sing Sing (1932) 4-M
National Commission on R eform of F ederal Criminal
Laws, Study Draft of a New F ederal Criminal
Code, §§3601-3605 (1970)
PAGE
9
xxni
Note, A Study of the California Penalty Jury in
First-Degree-Murder Cases, 21 S t a n . L. R ev . 1297
(1969) ........................................................ ............. 4-M, 30,49
Note, Post-Conviction Remedies in California Death
Penalty Cases, 11 S t a n . L. R ev . 94 (1958) ........... . 49
Note, The Void-for-Vagueness Doctrine in the Supreme
Court, 109 U. P a . L. R ev . 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, State R esearch
Report 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, R eport (T he Challenge
of Crime in a F ree Society) (1967) 143 ................... 12,13
1 R adinowicz, A H istory of E nglish Criminal Law
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,
Report (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
X XIV
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 itk ix , California Crimes, §§904-905 (1963) ........... 30
Isr the
m* ('trnxl uf %
O c t o b e r T e r m , 1970
No. 203
D e n n i s C o u n c l e M 'c G a u t h a ,
Petitioner,
S t a t e o f C a l i f o r n i a ,
Respondent.
ON W RIT OF CERTIORARI TO TH E SUPREME COURT OF CALIFORNIA
No. 204
J a m e s E d w a r d C r a m p t o n ,
Petitioner,
— v . —
S t a t e o f O h i o ,
Respondent.
ON W RIT 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 TJ.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 Rights 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 foldings
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 NORI undertook
in 1967 to represent all condemned men in the United States
for whom adequate representation could not otherwise be
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 unaseertainable. 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., Bedau, Death
Sentences in New Jersey 1907-1960, 19 R utgers 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: L awes, Twenty Thousand Y ears in Sing Sing (1932),
302, 307-310; D uefy & H irshberg, 88 Men and 2 W omen (1962),
256-257.
4 See note 18 infra.
5-M
well v. Bishop,------ U .S .--------, 26 L. Ed.2d 221, 90 S. Ct.
1578 (1970) (O.T. 1969, No. 13), and handled the California
Supreme Conrt case of In re Anderson, 69 Cal.2d 613, 447
P.2d 117, 73 Cal. Bptr. 21 (1968), upon which that court’s
decision in the present McOautlia 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 annici curiae by
LDF and NOEL The present motion is necessitated be
cause counsel for the State of Ohio has refused consent in
Grampian.
6-M
W herefore, movants pray that the attached brief amici
curiae be permitted to be filed with the Court.
Respectfully submitted,
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 s THE
J§>ii$fr£m£ (Em tri u f tlj? United Btatv#
October Term, 1970
No. 203
Dennis Councle McGautha,
Petitioner,
State of California,
Respondent.
ON W RIT OE CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 204
James E dward Champion,
Petitioner,
State of Ohio,
Respondent.
ON W RIT OF CERTIORARI TO THE 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 6 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) f 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, eh. 257, §§1-2.
That statute, like its successors which were 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, P rinciples of Moral and P olitical P hilosophy (11th
Amer. 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 objects 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 will 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 P enal Code, §210.6
(P.O.D., May 4, 1962), pp. 128-132.
11 National Commission on Reform of F ederal Criminal
Laws, Study D raft of a New F ederal 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 See onr Maxwell brief, Appendix A, infra pp. 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.
1 1
is an interest precisely in maintaining arbitrary procedures
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,’ ” (Trop 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 P resident’s Commission on Law E nforcement and A d
ministration of Justice, E eport (T he Challenge of Crime in a
F ree 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 our 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 eases.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
assaulted is 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 o f Standardless and Arbitrary Capital Sen
tencing Power.
A. The Nature of the Power
With a single exception,31 all capital crimes currently in
use in the United States involve the discretionary (that
is, non-mandatory) imposition of the death penalty.21 22 23 * * * *
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.28 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.
Beasonover, 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) (j ury-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 case 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. Alois, 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. Halig, 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.2 * * 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
2SState v. Eabig, 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 9 3 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 Rev. 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 33
“ 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.” ?s
31 State v. Ellis, 98 Ohio St. 21, 120 N.E. 218 (1918) (Court’s
Syllabus, 120 N.E., at 218). See also Lisha 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.E. 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 varte 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.E., at 214).
22
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 mercy) ; 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 cases 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,86 it is the latter one that has subsequently 36
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 hold, therefore, that the trial court did not commit error
in charging the jury as it did.” (131 N.B., 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 State 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. Garter, 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 ease 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 Rehfeld 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 f
“ The Court: That rests solely and wholly in your sound
discretion. You should determine whether or not in your
25
The Howell-Caid-well 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. The 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-
cum stjciiiC G S.
See also Behfeld v. State, 102 Ohio St. 431, 131 N.E. 712, 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.39 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
but 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 clemency should be 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.”
39 State v. Karayians, 108 Ohio St. 505, 141 N.E. 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.E. 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.E., at 336. And
see State v. Schiller, 70 Ohio St. 1, 70 N.E. 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 Howell-
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 eases 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. Stale, 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 (1960), app. dism’d, 171 Ohio St. 62,
167 X.K.2M 778 (1960) ; see State v. Ellis, 98 Ohio St, 21, 120 N.B.
218, 219 (1918) (dictum) ; nor may an appellate court, State v.
Ames, 50 Ohio Law Abs. 311, 80 N.B.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.B.2d 620,
624 (1948). In 1963, a bill was introduced in the Ohio Legislature
that would 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 R eserve 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.B.2d 778 (1960).
44 State v. Ferguson, 175 Ohio St. 390, 195 N.B.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.B. 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.B.2d 198 (1941) ; State v. Cosby, 100 Ohio App. 459, 137 N.B.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 case). 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.)
Between 1959 and 1968, the figures for all trials (jury and
bench) are as follows:
Number o f First- Number o f Death
Degree Murder Sentences Upon
Year Convictions Convictions
less than 7; exact
1959 24 figure unreported
21960 ______ 24
1961 27 5
1962 33 3
19(18 ______ 23 2
1964 ______ 34 6
1965 42 8
1966 ______ 38 5
1967 ______ 45 9
1968 ______ 58 10
Total ___ _____ 348 54
The sources of the ten conviction figures, respectively, are: Ohio
Department of Mental H ygiene and Corrections, Ohio Judicial
30
2. California* 46
In California, as in Ohio, juries have virtually no role
in non-eapital 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 of Prisons, Na
tional P risoner 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. R ev. 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. Ibid. However, if he imposes a state-
31
agency in capital eases. 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.
49 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 ease (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. & Yet. 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.
51 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. Rptr. 363 (1960) ;
People v. Seiterle, 56 Cal.2d 320, 363 P.2d 913, 14 Cal. Rptr. 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. Rptr. 567 (1969); People
v. Whitmore, 251 Cal. App.2d 359, 59 Cal. Rptr. 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. Rptr. 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. Rptr. 366 (1962) ; People v. Massie, 66 Cal.2d
899, 428 P.2d 869, 59 Cal. Rptr. 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.
Athens, 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. Lang don, 52 Cal.2d 425, 341 P.2d 303, 308
(1959).
33
That power, which was originally conferred in murder
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 supra.
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 eases, 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. Talil, 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
The statutory penalty trial is ordinarily conducted before
the same jury that has determined the defendant’s guilt.58
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 shall
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/9 the defendant’s attitudes toward it,59 60 his
mental characteristics/1 life history/2 crimes and other
anti-social behavior/3 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. HiUery, 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 has declared a few areas of
Reeves, 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.2d
324, 363 P.2d 910, 911, 14 Cal. Rptr. 678 (1961) ; People v. Lopez,
60 Cal.2d 223, 384 P.2d 16, 34, 32 Cal. Rptr. 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. Rptr. 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. Rptr. 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 J ury 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. Rptr. 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. Rptr. 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. Imbler, 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
------ , 455 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 case 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. Sines, 61 Gal.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.2d 751, 446 P.2d 993, 998, 72 Cal. Eptr. 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) ; cf. 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) but 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).
71 People v. Howie, 56 Cal.2d 687, 365 P.2d 426, 432, 16 Cal.
Rptr. 370 (1961) ; People v. Hillery, 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 :7e
“ The defendant^] 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. If 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. Rptr. 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, you 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. Rptr. 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.
78 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. Rptr. 801
(1961) ; People v. llowh, 56 Cal.2d 687, 365 P.2d 426, 432, 16 Cal.
Rptr. 370 (1961) ; People v. Ilillery, 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 (1957) ;
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).
4 4
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. Rptr. 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. Rptr.
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,
ot 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 Rptr
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 * So,
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. Nye, — — 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,
------ Cal.3 d ------ , 455 P.2d 122, 131, 78 Cal. Rptr. 186 (1969) ;
People v. Stanwortk,------ 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.2 d --------, 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.
Si 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. Rptr. 841 (1963) ; People v. Mitchell, 63 Cal,2d 805, 409
P.2d 211, 222, 48 Cal. Rptr. 371 (1966) ; People v. Brawley, 1
Cal.3d 277, 461 P.2d 361, 374, 82 Cal. Rptr. 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. Rptr. 605 (1964) ; People v. Hillery, 65 Cal.2d 795, 423 P.2d
208, 215, 56 Cal. Rptr. 280 (1967) ; People v. Nye, ------ Cal.3d
____ , 455 P.2d 395, 402, 78 Cal. Rptr. 467 (1969); People v.
Washington, ------ Cal.2d ------ , 458 P.2d 479, 500, 80 Cal. Rptr.
567 (1969). See also People v. Morse, 60 Cal.2d 631, 388 P.2d 33,
40, 36 Cal. Rptr. 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 lias 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 o f
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 Gal.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).
4 8
“ 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
89People 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. Rptr. 777, 17 Cal. Rptr. 481 (1961) ;
People v. Ketchel, 59 Cal.2d 503, 381 P.2d 394, 417-418, 30 Cal.
Rptr. 538 (1963); In re Anderson, 69 Cal.2d 613, 447 P.2d 117,
124, 73 Cal. Rptr. 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. Rptr.
901 (1960); People v. Hawk, 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. Rptr. 777, 17 Cal. Rptr. 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. Loohado, 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 866, 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 94 prescribe it for a varying register of offenses91
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 & D elinquency 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, ch. 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-
lama, 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 supra.
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.Y. P en . Law §125.30; Vt. 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 op Justice, B ureau op Prisons, National Prisoner Sta
tistics, Bulletin No. 45, Capital Punishment 1930-1968 (August,
1969), p. 22.
99 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
100 Alabama: All capital sentencing is done by juries. See
jBankhead v. State, 124 Ala. 14, 26 So. 979, 980-981 (1899);
Burgess v. State, 256 Ala. 5, 53 So.2d 568, 573-574 (1951).
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 Grim. 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, all 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 State v. Roseboro,
-------N.C. --------, 171 S.E.2d 886, 893 (1970).
(footnote continued on next page)
53
judge in three States; in two, its decision in favor of death
binds 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 *
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 Grim. 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.B.2d 712, 715 (1968).
Tennessee: Apparently all capital sentencing is done by juries.
Tenn. 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 Grim. 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 -l(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.” 108 A few
States authorize the death penalty only if the jury’s verdict
affirmatively calls for it.103 104
103 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
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 688, 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. Grim. App. 50, 198 S.W.2d 570, 573-574
(1947) ( “ exclusively within the province of the jury” ) ; see also
Franks v. State, 139 Tex. Grim. 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. S ta te ,------ Mo. -------- , 441 S.W.2d 688, 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 N.W.2d 632, 637 para. 12, 648 (1955) ; State v.
Roseboro, ------ N.C. ------ , 171 S.E.2d 886, 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 Baxigus
v. State, 141 So.2d 264, 266 (Pla. 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
part) ; see State v. Walters, 145 Conn. 60, 138 A.2d 786, 792-794
(1958); State v. Jarolowshi, 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, ch. 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) ; Shimniok
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) woxild be sustained.
See Brown v. State, 109 Ala. 70, 20 So. 103, 107-108 (1896);
Jones v. People, 146 Colo. 40, 360 P.2d 686, 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
W yett 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. Vasquez,
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 cases 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 case,
note 107 supra. The other “ evidence” States appear not to have
passed upon the question.
112 We 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
60
instruction telling the jury that it should not be influenced
by mere sentiment, sympathy or passion, but not saying
what should influence the jury.11* 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.114 115 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 686, 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. Clokey, 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, 183 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 Pait 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 (1912); 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 be 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. Ct. 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 McCants
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 court120 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, Misc. 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, Misc. 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 be negligible. State v. Laster, 365 Mo. 1076, 293 S.W.2d
300, 3,04-5 (1956). There is also an intimation in State v. Mouzon,
231S.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. Robinson, 89 Ariz.
224 360 P.2d 474, 478-479 (1961) (same as to judge-imposed
sentence); State v. Ramirez, 34 Ida. 623, 203 P. 279, 282-284
(1921) (enunciating an abuse-of-discretion test and finding no
abuse) ySundahl 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 f 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.
, i22 fpjjg prececiing 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. The Power Is Unconstitutional
We have described the capital sentencing practices of the
several States not for the purpose of urging the Court to
draw constitutional distinctions among them, but 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).
123 Alabama: 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. 86, 105 So.2d 66, 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: Bice
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. Buth, 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. Crim. 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 eases. 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
“ [tjolerance 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 ai’bitrari-
ness. Nice questions of judgment as to whether one lawful
system or another comports with constitutional norms is
6 6
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.
125 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 8 6 supra.
129 Liska 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.” 134 135
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.185 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.
6 8
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.” Giaccio 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 8 8 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 yon want” and “ Kill him, but
yon maj7 spare him if yon want” mean the same thing in
any man’s language.140 The differing formulations may
have differing state-law 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. Bather, 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-f or-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 snch 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 McGautha 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
147 Howell 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” 160 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.” 150 151 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 Ashbrooh syllabus means no such thing.
For the court in Ashbrooh 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.” 152
150 Simmons v. United States, 390 U.S. 377, 394 (1968).
161 Witherspoon v. Illinois, 391 U.S. 510, 521 n. 20 (1968).
152 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 Ashbrook 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 sentencings.
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 TJ.S. 719
(1966). But the only legitimate lawT 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.154'166 Because deterrence
153 Roberts v. Bussell, 392 U.S. 293, 294 (1968).
154 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 Cqmmis-
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.
sign on Capital P unishment 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. 246, 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 P unishment (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.
“ [Reformation . . . can have no application where the death
penalty is exacted.” R oyal Commission on Capital P unish
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 L aw Institute, Model Penal Code,
Tent. Draft No. 9 (May 8, 1959), 69-79; K oestler, Reflections
on H angino (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 Linkletter
v. Walker, supra, and Johnson v. New Jersey, supra. The
logic of Linkletter 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 E nglish Criminal
Law and Its A dministration F rom 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-
committee 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.
155 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 be 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
156 Jackson v. Denno, 378 U.S. 368, 389 (1964).
157Roberts v. Bussell, 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 IY (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
158 Harrington v. California, 395 U.S. 250 (1969).
8 0
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.158
“ 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. Bather, we think that any sentence of death
supported by a conviction under procedures later held to
be unconstitutional cannot constitutionally be executed. 159
159 See Stein v. New York, 346 U.S. 156, 196 (1953).
82
For these reasons retroactivity should he 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
M ichael 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
RECORD PRESS, INC., 95 MORTON ST., NEW YORK, N. Y. 10014, (212) 243-5775