McGautha v. State of California Motion for Leave to File Brief Amicus Curiae
Public Court Documents
January 1, 1970

Cite this item
-
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 05, 2025.
Copied!
In the 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