McGautha v. State of California Motion for Leave to File Brief Amicus Curiae

Public Court Documents
January 1, 1970

McGautha v. State of California Motion for Leave to File Brief Amicus Curiae preview

Brief includes case Crampton v. Ohio. Brief also submitted by the National Office for the Rights of the Indigent. Date is approximate.

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  • Brief Collection, LDF Court Filings. McGautha v. State of California Motion for Leave to File Brief Amicus Curiae, 1970. 3cdb9c8a-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b28d7419-5a3f-4f22-b7fd-e953a1beccd9/mcgautha-v-state-of-california-motion-for-leave-to-file-brief-amicus-curiae. Accessed July 05, 2025.

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    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



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