Wallace Contempt Suit (Telegram)

    SUPREME COURT OF THK UNITED STATES

No. 204.— October T erm , 1970

James Edward Crampton, 
Petitioner, 

v.
State of Ohio.

On Writ of Certiorari to the 
Supreme Court of Ohio.

[May 3, 19711

M r. Justice D ouglas, with whom M r. Justice Bren­
nan  and M r. Justice M arshall concur, dissenting.

In my view the unitary trial which Ohio provides in 
first-degree murder cases does not satisfy the require­
ments of procedural Due Process under the Fourteenth 
Amendment.

Ohio makes first-degree murder punishable by death 
“ unless the jury trying the accused recommends mercy, 
in which case the punishment shall be imprisonment 
for life.” Ohio Rev. Code 8 2901.01. Petitioner was in­
dicted and tried for murder in the first degree for the 
killing of his wife. His pleas were “ not guilty” and 
“ not guilty by reason of insanity.”

The court, after a psychiatric examination, concluded 
that petitioner was sane and set the case for trial before a 
jury. The issues of guilt, punishment and insanity were 
simultaneously tried and submitted to the jury.

Petitioner did not testify at the trial. But a psy­
chiatrist testified on his behalf, offering medical records 
of his case from two state hospitals. His mother testi­
fied concerning his childhood, education, and background.

On the issue of punishment the jury was charged: 
“ You must not be influenced by any consideration 

of sympathy or prejudice. It is your duty to care­
fully weigh the evidence, to decide all disputed 
questions of fact, to apply the instructions of the



204—DISSENT

court to your finding, and to render your verdict 
accordingly. Tn fulfilling your duty, your efforts 
must be to arrive at a just verdict.

“Consider all the evidence and make your find­
ings with intelligence and impartiality, and without 
bias, sympathy or prejudice, so that the State of 
Ohio and the defendant will feel their case was fairly 
and impartially tried. . . .”

He was found guilty of murder in the first degree with­
out a recommendation of mercy and the court sentenced 
him to death. The Supreme Court of Ohio sustained 
the single-verdict procedure and the absolute discretion 
of the jury in the matter of punishment. 18 Ohio St. 2d 
182. 248 N. E. 2d G14.

On the issue of guilt the State was required to produce 
evidence to establish it. On the issue of insanity the 
burden was on petitioner to prove it by a preponderance 
of the evidence. State v. Austin, 71 Ohio St. 317. 73 
X. E. 2d 218. On the issue of mercy viz. life imprison­
ment rather than death, petitioner under Ohio law was 
banned from offering any specific evidence directed only 
toward a claim of mercy. Ashbrook v. State, 49 Ohio 
App. 298, 197 N. E. 214.

If a defendant wishes to testify in support of the 
defense of insanity or in mitigation of what he is 
charged with doing, he can do so only if he surrenders 
his right to be free from self-incrimination. Once he 
takes the stand he can be cross-examined not only as 
respects the crime charged but also on other misdeeds. 
In Ohio impeachment covers a wide range of subjects: 
prior convictions for felonies and statutory misde­
meanors,1 pending indictments," prior convictions in mili- * 2

' State v. Murdock, 172 Ohio St. 221, 174 N. E. 2d 543. And 
see State v. Polthrd. 21 Ohio St. 2d 171, 255 N. E. 2d 620.

2 State v. Heeler, 10 Ohio St. 2d 167, 249 N. E. 2d 912.

2 CRAMPTON v. OHIO



204—DISSENT

tary service and dishonorable discharges.'1 * * Once lie
testifies lie can be recalled for cross-examination in the 
State’s case in rebuttal.4

While the defendant in Ohio has the right of allocu­
tion, that right even in first-degree murder cases occurs 
only after the jury’s verdict has been rendered. Unless 
there is prejudicial error vitiating the conviction or in­
sufficient evidence 5 * to convict, the jury’s verdict stands 
and the judge must enter the verdict. Allocution, 
though mandatory,° is thus a ritual only.7

Slate v. Williams, 85 Ohio App. 230, 88 N. E. 2d 420. Merely
taking the stand puts credibility in issue. Hamilton v. State, 30
Ohio App. 153, 177 N. E. 221.

4 Johns v. State, 42 Ohio App. 412, 182 N. E. 356.
■r’ State v. Frohner, 150 Ohio St. 53, SO X . E. 2d IS; Hoppe v. 

State. 29 Ohio App. 407, 103 X. E. 715.
« Sitsbif v. State, 119 Ohio St. 314. 104 X. E. 2d 232.
7 “ At common law the defendant in a felony case had a right, called 

‘allocution,’ to be asked formally whether he had ‘any thing to 
offer why judgment should not be awarded against him.’ . . . since 
the common law judge generally had no discretion as to the quantum 
of punishment in felony cases, the point of his question to the 
defendant was not to elicit mitigating evidence or a plea for leniency, 
but to give the defendant a formal opportunity to present one of 
the strictly defined legal reasons which required the avoidance or 
delay of sentencing: he was not the person convicted, he had benefit 
of clergy or a pardon, he was insane, or if a woman, she was 
pregnant.” Note. Procedural Due Process at the Judicial Sentencing. 
SI Harv. L. Rev. 821, 832-833.

“ The common law right of the defendant to be asked if he wishes 
to make a statement on his own behalf at the time of sentencing 
would appear still to be recognized in more than half of the 
American jurisdictions, although it finds expression in many forms 
and comes from many sources. In at least one state, the right 
rises to a constitutional level. See R. I. Const, art. I, §10; 
Robalewski v. Superior Court, 197 A. 2d 751 (R. I. 1964). In 
many more states the right is guaranteed by statute. For a repre­
sentative sample, see Cal. Penal Code §§ 1200, 1201 (1956); Iowa 
Code Ann. § 789.6 (1950); Kan. Gen. Stat. Ann. § 62-1510 (1964):

CRAMPTON v. OHIO 3



204— DISSENT

If the right to be heard were to be meaningful, it would 
have to accrue before sentening; yet, except for allocu­
tion, any attempt on the part of the accused during the 
trial to say why the judgment of death should not be 
pronounced against him entails a surrender of his right 
against self-incrimination. It therefore seems plain that 
the single-verdict procedure is a burden on the exer­
cise of the right to be free of compulsion as respects 
self-incrimination. For he can testify on the issue of 
insanity or on other matters in extenuation of the crime 
charged only at the price of surrendering the protection 
of the Self Incrimination Clause of the Fifth Amend­
ment made applicable to the States by the Fourteenth.

On the question of insanity and punishment the ac­
cused should be under no restraints when it comes to 
putting before the court and the jury all the relevant 
facts. Yet he cannot have that freedom where these 
issues are tied to the question of guilt. For on that issue 
he often dare not speak lest he in substance be tried not 
for this particular offense but for all the sins he ever 
committed.

Petitioner also had to surrender much of his right to 
a fair hearing on the issue of punishment to assert his 
defense of insanity. To support his insanity plea he had

Mo. Rev. Stftt. §§ 540.570, 546.5S0 (1953); N. Y. Code Crim. Proc. 
§ 480 (1958); Okla. Stat. Ann. tit. 22, § 970 (1958); Tex. Code 
Crim. Proe. art. 42.07 (1966); Wash. Rev. Code Ann. § 10.64.040 
(1961). See also 48 Iowa L. Rev. 172, 173-74 n. 11 (1962). In a 
few more jurisdictions, the right is secured by rules of court. See, 
e. <7. N. J. Crim. Prac. Rules, Superior and County Courts, Rule 
3:7-10 (d) (1967); Fed. R. Crim. R. 32 (a )(1 ). See also F. R. D. 
192-193 (1966); Hill v. United States, 368 U. S. 424 (1962); 
Green v. United States, 365 U. S. 301 (1961). In other jurisdic­
tions, case law is the only source of the defendant’s right. See 
Barrett, Allocution, 9 Mo. L. Rev. 115, 126-40 (1944).” Sentencing 
Alternatives and Procedures, Advisory Committee on Sentencing and 
Review, Amer. Bar Assoc. (Dec. 1967) pp. 254-255.

4 CRAMPTON v. OHIO



204—DISSENT

to submit bis hospital records, both of which contained 
information about his convictions and imprisonment for 
prior crimes and about his use of drugs as well.

Of course a defendant’s character witnesses can be- 
examined respecting the defendant’s other crimes. 
Michelson v. United States, 335 U. S. 469. But that is 
an effort to weigh the credibility of the proffered testi­
mony as to character. “Thus, while the law gives de­
fendant the option to show as a fact that his reputation 
reflects a life and habit incompatible with commission 
of the offense charged, it subjects his proof to tests of 
credibility designed to prevent him from profiting by a 
mere parade of partisans.” Id., at 479. It is a far 
cry, however, to let hospital records tendered on an issue 
of insanity to color a jury’s judgment on the wholly dif­
ferent issue of guilt.

The greatest comfort the majority has is this Court’s 
recent decision in Spencer v. Texas, 385 U. S. 554, hold­
ing that a two-stage trial is not required when a State 
under a habitual-offender statute seeks to introduce on 
the issue of guilt in a unitary trial evidence of a de­
fendant’s prior convictions. Yet Spencer was a five-to- 
four decision which meant it barely passed muster as a 
constitutional procedure. The dissent of Chief Justice 
Warren, in which three other Justices joined, will have, I 
think, endurance beyond the majority view.

That dissent, id., 569 et seq., points out the prejudice to 
an accused if, prior to a finding of guilt, earlier convictions 
are admissible in evidence. There is mounting evidence 
shown in court decisions (Id., at 585) and in modern state 
procedures that that practice does not comport with 
fairness implicit in due process. Chief Justice Warren 
said: “ In England, the prejudice which results from proof 
of prior crimes before a finding of guilt has been recog­
nized for more than a century, and the rule has been that

CRAMPTON v. OHIO 5-



204— DISSENT

a finding as to prior crimes is made in a separate hearing 
after the finding of guilt.” Id., at 586.

We should not square with Due Process the practice 
which receives impetus in Ohio where reports on a man’s 
insanity contain references to his criminal record which 
most assuredly prejudice his trial on the issue of guilt.8

We have already traveled part of the distance required 
for reversal in the present case. In Jackson v. Denno, 
378 U. S. 368, we held that whether on controverted 
facts a confession was voluntary must he tried by a 
State in a separate proceeding. We pointed out the 
vice in allowing the jury that determines guilt also to 
determine whether the confession was voluntary. We 
said:

“ It is difficult, if not impossible, to prove that a 
confession which a jury has found to be involun­
tary has nevertheless influenced the verdict or that 
its finding of voluntariness, if this is the course it 
took, was affected by the other evidence showing 
the confession was true. But the New York pro­
cedure poses substantial threats to a defendant’s 
constitutional rights to have an involuntary con­
fession entirely disregarded and to have the coercion 
issue fairly and reliably determined.” Id., at 3S9.

8 As Chief Justice Warren said:
"Whether or not a State lias recidivist statutes on its books, it Is 
well established that evidence of prior convictions may not be used 
by the State to show that the accused has a criminal disposition and 
that the probability that he committed the crime currently charged 
is increased. While this Court has never held that the use of prior 
convictions to show nothing more than a disposition to commit 
crime would violate the Due Process Clause of the Fourteenth 
Amendment, our decisions exercising supervisory power over criminal 
trials in federal courts, as well as decisions by courts of appeals and 
of state courts, suggest that evidence of prior crimes introduced for 
no purpose other than to show criminal disposition would violate 
the Due Process Clause.”  Spencer v. Texas, 385 U. S., at 572-574.

6 CRAMPTON v. OHIO



204—DISSENT

Yet the risk of prejudice in Jackson v. Denno seems 
minor compared witlt the risk of prejudice in a unitary 
trial where the issues of guilt, insanity, and punishment 
are combined, submitted to one jury with evidence of 
prior convictions coming in under cover of hospital 
records pertinent to insanity, and certainly likely to be 
prejudicial on the issue of guilt. I see no way to make 
this unitary trial fair in the sense of procedural Due 
Process unless the issue of insanity is segregated and 
tried to a separate jury.

As noted, evidence as to whether the jury should show 
mercy to him is excluded from consideration, and the 
jury is admonished not to show any “ sympathy” to the 
accused.

Under Ohio law the determination of whether to grant 
or withhold mercy is exclusively for the jury and cannot 
be reviewed by either the trial court0 or an appellate 
court.’" The first time that specific mention of mercy 
to the jury is permissible is during closing argument 
where the defendant is permitted “ to argue to the jury 
the desireability, advisability or wisdom of recommend­
ing mercy.” 9 10 11 While there was not a specific instruc­
tion on mercy in the instant case (beyond the instruction 
to make findings without bias, sympathy or prejudice), 
the Ohio courts have approved instructions “ 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 [on mercy].”'

9 Turner v. State, 21 Ohio Law Abs. 276; State v. Khonpp, 15 
Ohio Ops. 2d 461, 175 X. E. 2d 767.

10State v. Ames, 50 Ohio St. Law Abs. 311, SO X. E. 2d 16S. 
The result is the same if the sentencing decision is based on a guilty 
plea or a jury waiver. State v. Lncear, 93 Ohio App. 2S1, 109 
X. E. 2d 39; State v. Ferguson, 175 Ohio St. 390, 195 N. E. 2d 794.

11Shelton v. State, 102 Ohio St. 376, 131 X. E. 704 (Syllabus)..

CliAMPTON v. OHIO 7



204—DISSENT

Howell v. State, 102 Ohio St. 411, 131 X. E. 706. This 
instruction moans that while the jury may not consider 
general sociological or environmental data, it may con­
sider any such factors which have specifically been ad­
mitted into evidence in the case for other purposes. 
State v. Caldwell, 135 Ohio St. 424, 21 X. E. 2d 343.12

Ashbrook v. State, supra, holds that evidence “directed 
specifically toward a claim for mercy” cannot be intro­

12 In Caldwell the jury was initially instructed: “ [W]hether you 
recommend or withhold mercy is a matter solely within your dis­
cretion, calling for the exercise of your very best and most profound 
judgment, not motivated by considerations of sympathy or as a 
means of escaping a hard or disagreeable duty, but must be con­
sidered by you in the light of all the circumstances of the case with 
respect to the evidence submitted to you and the other circum­
stances surrounding this defendant.” Following some deliberation 
the jury returned for special instructions and the following occurred: 

Court: “ 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 circumstances.”

Foreman: “ What are extenuating circumstances? Are they some­
thing which we can determine in our own judgment alone?”

Court: “ No, if there are any, you must determine them from the 
evidence.”

Foreman: “ Well, then, may we consider sociological matters and 
environment in determining this question of granting mercy?” 

Court: “ No—they have nothing whatever to do with this case.”  
At this point defense counsel requested the following instruction: 
“ In determining whether or not in your discretion you shall grant 

mercy to the defendant, you may consider environmental factors 
and sociological conditions, and in determining whether or not 
these factors exist you shall consider all the evidence permitted to 
go to you in this case, and all reasonable inferences to be derived 
therefrom. You may also consider, in making up your mind on 
the question of mercy, the appearance, demeanor and actions of 
the defendant as you have seen him here in open court.”

the Ohio Supreme Court held it was not error to give this instruc­
tion because it was “ substantially identical with those contained in 
the answers of the court to the jury, and its subject matter was 
covered in the general charge. There was no occasion for repe­
tition.” 21 N. E. 2d, at 344-345.

8 CRAMPTON v. OHIO



204— DISSENT

duced. Yet Howell, Caldwell, and Ashbrook show that 
once evidence is admitted for other purposes the jury 
is free to consider it for any purpose. In Caldivell the 
objection of the court was to going outside the record 
for evidence in considering sociological and environ­
mental matters.

This background evidence often comes in through 
character witnesses. In one case a defendant presented 
12 witnesses who testified to his reputation as a peaceful 
and law-abiding citizen of good character.13 And even 
in the instant case petitioner’s mother testified con­
cerning his childhood, education, and background.

But the right of allocution is at best partial and incom­
plete when the accused himself is barred from testifying 
on the question of sentencing, and when the only evi­
dence admissible comes from other people or is intro­
duced for different and more limited purposes.

The line between the legislative function and the 
judicial function is clear. The State can make criminal 
such conduct as it pleases, save as it is limited by the 
Constitution itself, as for example by the ban on ex post 
facto laws in Article I, § 10, or by the Fourteenth Amend­
ment, as where religious exercises or freedom of speech 
or of the press is involved. It can punish such conduct by 
such penalties as it chooses, save as its sanctions run afoul 
of the ban in Article I, § 10 against bills of attainder or the 
prohibition against cruel and unusual punishments con­
tained in the Eighth Amendment. The Court is not 
concerned with the wisdom of state policies, only with 
the constitutional barriers to state action. Procedural 
Due Process 14 is one of those barriers, as revealed over and

13 State v. Lucear, supra, n. 2.
14 There have been recurring demands that the Due Process Clause- 

be abolished. See Clark, Some Recent Proposals for Constitutional 
Amendment, 12 Wis. L. Rev. 313, 324-326 (1937). Others have 
suggested that due process— apart from the specifics in the Bill of 
Rights—-should mean only such notice, procedures, hearings or trials

CRAMPTON v. OHIO 9



204—DISSENT

again in our decisions. Some of its requirements are 
explicit in the Bill of Rights—a speedy trial. Klopfer v. 
North Carolina, 386 U. S. 213; a trial by jury, Duncan 
v. Louisiana, 391 U. S. 145; the right to counsel, Gideon 
v. Wainwright, 372 l ’ . S. 335; the right to confrontation, 
Pointer v. Texas, 380 U. S. 400— all as made applicable 
to the States by reason of the Fourteenth Amendment.

Other requirements of procedural Due Process are only 
implied, not expressed; their inclusion or exclusion turns 
on the basic question of fairness. In that category are 
notice and the right to be heard. Schroeder v. City of 
New York, 371 U. S. 208; Sniadach v. Family Finance 
Corp., 395 U. S. 337. It is a phase of that right to be 
heard that looms large here.

Crampton had the constitutional right as a matter of 
procedural due process to be heard on the issue of punish­
ment. We emphasized in Townsend v. Burke, 334 U. S. 
736, 741, how the right to be heard through counsel

as are prescribed by Congress or the States. See Burns, The Death 
of I'] Pluribus Ununi, 19 D el1. L. Rev. 651, 682 (1971).

The critics of the existing regime have been numerous. Mr. .Jus­
tice Frankfurter once said: “ . . . the ultimate justification for nulli­
fying or saying that what Congress did, what the President did, what 
the legislature of Massachusetts or New York or any other State did 
was beyond its power, is that provision of the Constitution which 
protects liberty against infringement without due process of law. 
There are times, I can assure you—more times than once or twice—  
when I sit in this chair and wonder whether that isn’t too great a. 
power to give to any nine men, no matter how wise, how well disci­
plined, how disinterested. It covers the whole gamut of political, 
social, and economic activities.” Of Law and Life and Other Things 
129 (1965).

l e t  none of us, I dare say, would conclude that (apart from con­
stitutional specifics) any notice, any procedure, any form of hearings, 
any type of trial prescribed by any legislature would pass muster 
under procedural due process. Our present disagreement relates to 
what is essential for a fair trial, if the conventional, historic stand­
ards of procedural due process are to apply.

10 CRAMPTON v. OHIO



204—DISSENT

might be crucial to avoid sentencing on a foundation “ex­
tensively and materially false.’’ But the right to be 
heard is broader than that; it includes the right to speak 
for one’s self. As was said in Green v. United States, 365 
1'. S. 301, 304 (plurality opinion):

“ We are not unmindful of the relevant major 
changes that have evolved in criminal procedure 
since the seventeenth century— the sharp decrease in 
the number of crimes which were punishable by 
death, the right of the defendant to testify on his 
own behalf, and the right to counsel. But we see 
no reason why a procedural rule should be limited 
to the circumstances under which it arose if reasons 
for the right it protects remain. None of these 
modern innovations lessens the need for the de­
fendant. personally, to have the opportunity to 
present to the court his plea in mitigation. The 
most persuasive counsel may not be able to speak 
for a defendant as the defendant might, with halt­
ing eloquence, speak for himself.”

The right to be heard, explicit in Rule 32 (a) of the 
Federal Rules of Criminal Procedure, may at times be 
denied, absent a showing of “aggravating circumstances” 
or of a claim that the defendant would have anything 
to say. See Hill v. United States, 368 U. S. 424. But 
where the opportunity to be heard on the sentence is de­
nied both counsel and the defendant, the denial reaches 
constitutional proportions. See United States v. John­
son, 315 F. 2d 714. 717.

Whether the voice speaking for the defendant be 
counsel’s voice or the defendant’s, the right to be heard 
is often vital at the sentencing stage before the law decides 
the punishment of the person found guilty. Mempa v. 
Rhay, 389 U. S. 128. 135. The hearing, whether on guilt 
or punishment, is governed by the requirements of Due

CRAMPTON v. OHIO 11



20-4— DISSENT

Process. We said in Specht v. Patterson, 3SG U. S. 605, 
610:

“Due process, in other words, requires that he be 
present with counsel, have an opportunity to be 
heard, be confronted with witnesses against him, 
have the right to cross-examine, and to offer evidence 
of his own.”

If one insists, as in Hill, that there be “aggravating 
circumstances” to raise this right to be heard to a con­
stitutional level, all must agree that no one can ever 
show more “aggravating” circumstances than the fact 
that he stands on the verge of receiving the death 
sentence.

At least then, the right of allocution becomes a con­
stitutional right— the right to speak to the issues touch­
ing on sentencing before one’s fate is sealed. Yet 
where the trial is a unitary one, the right of allocution 
even in a capital case is theoretical, not real, as the Ohio 
procedure demonstrates. Petitioner also had the protec­
tion of the Self-Incrimination Clause of the Fifth Amend­
ment. To obtain the benefit of the former he would 
have to surrender the latter. M r. Justice H arlan, 
speaking for the Court, said in Simmons v. United States, 
390 U. S. 377, 394 “ . . . we find it intolerable that one 
constitutional right should have to be surrendered in 
order to assert another.”

YY e made that statement in the context of a case where 
an accused testified on a motion to suppress evidence in 
order to protect his Fourth Amendment rights but later 
discovered that the testimony would be used by the 
prosecution as “a strong piece of evidence against him.” 
Id., at 391. We held that the protection of his Fourth 
Amendment rights did not warrant surrender or dilution 
of his Fifth Amendment rights.

12 CRAMPTON v. OHIO



204—DISSENT

In United States v. Jackson, 390 U. S. 570, we held 
unenforceable a federal statute which made the death 
penalty applicable only to those who contested their 
guilt before a .jury. In that case the “ undeniable tension”- 
was between Fifth Amendment rights and Sixth Amend­
ment rights. Mu. Justice Stewart speaking for the 
Court said: “The inevitable effect of any such provision is, 
of course, to discourage assertion of the Fifth Amendment 
right not to plead guilty and to deter exercise of the 
Sixth Amendment right to demand a jury trial. If the 
provision had no other purpose or effect than to chill 
the assertion of constitutional rights by penalizing those 
who choose to exercise them, then it would be patently 
unconstitutional.” Id., at 581.

That “ undenial tension” between two constitutional 
rights, which led to that result in Jackson and to a reversal 
in Simmons, should lead to a reversal here. For the 
unitary trial or single-verdict trial in practical effect 
allows the right to be heard on the issue of punishment 
only by surrendering the protection of the Self-Incrimi­
nation Clause of the Fifth Amendment.

The Court of Appeals for the Second Circuit indicated 
in United States v. Branker, 418 F. 2d 378, 380, that 
Simmons prevented an accused’s testimony at a hearing 
on his application to proceed in forma pauperis and for 
appointment of counsel to be used by the prosecution as 
part of its direct case against him:

“The defendant should enjoy his constitutional 
rights to counsel and to appeal and the means of 
supporting his assertion of these rights by his own 
testimony without running the risk that thereby he 
may be incriminating himself with respect to the 
charges pending against him.” Id., at 380.

The same result was reached by the Court of Appeals 
for the District of Columbia in Melson v. Sard, 402 F.

CRAMPTON v. OHIO 13:



204—DISSENT

2d 653, which held that a parolee who testifies on a 
hearing in revocation of his parole may give testimony 
that may not be used in a subsequent criminal trial in 
violation of the Self-Incrimination Clause of the Fifth 
Amendment:

“ If a parolee is not given the full and free ability 
to testify in his own behalf and present his case 
against revocation, his right to a hearing before the 
Board would be meaningless. Furthermore, his 
Fifth Amendment right must not be conditioned ‘by 
the exaction of a price.’ ” Id., at 655.

The word “by the exation of a price” are from Gar- 
rity v. New Jersey, 385 U. S. 493, 500, where we held 
that the threat of discharge of a policeman cannot be 
used to secure incriminatory evidence against him. We 
said:

“There are rights of constitutional stature whose 
exercise a State may not condition by the exaction 
ot a price. Engaging in interstate commerce is 
one. . . . Ilesort to the federal courts in diversity 
of citizenship cases is another. . . . Assertion of a 
First Amendment right is still another. . . . The 
imposition of a burden on the exercise of a Twenty- 
fourth Amendment right is also banned. . . . We 
now hold the protection of the individual under the 
Fourteenth Amendment against coerced statements 
prohibits use in subsequent criminal proceedings of 
statements obtained under threat of removal from 
office, and that it extends to all, whether they are 
policemen or other members of our body politic.” 
Ibid.

Melson v. Sard involved protection of a statutory right 
to a hearing. Garrity involved only employment rights. 
In the same category is Thomas v. United States, 368 F.

14 CRAMPTOX v. OHIO



204—DISSENT

2d 041, where the Fifth Circuit Court of Appeals held 
a convicted man may not receive a harsher penalty than 
he would have received if he had waived his Fifth 
Amendment right. And the Court of Appeals for the 
District of Columbia expressed the same view in Scott 
v. United Slates, 410 F. 2d 264.

If exaction of a constitutional right may not be made 
for assertion of a statutory right (such as the right to a 
hearing on parole revocation or the right to appeal), it 
follows a fortiori that the constitutional right to be free 
from the compulsion of self-incrimination may not be 
exacted as a condition to the constitutional right to be 
heard.

The truth is, as M r. Justice Brennan points out in 
his dissent in these cases, that the wooden position of 
the Court, reflected in today’s decision, cannot be recon­
ciled with the evolving gloss of civilized standards which 
this Court, long before the time of those who now sit 
here, have been reading into the protective procedural 
Due Process safeguards of the Bill of Rights. It is as 
though a darn had suddenly been placed across the stream 
of the law on procedural Due Process, a stream which 
has grown larger with the passing years.

The Court has history on its side—but history alone. 
Though nations have been killing men for centuries, 
felony crimes increase. The vestiges of law enshrined 
today have roots in barbaric procedures. Barbaric pro­
cedures such as ordeal by battle that became imbedded 
in the law were difficult to dislodge.15 Though torture 
was used to exact confessions, felonies mounted. Once it 
was thought that “sanity” was determined by ascertaining 
whether a person knew the difference between “right”

,r'See Cooley’s Blaekstone (4th od.), pp. 347-349. Ordeal by 
battle was finally abolished in 1S19 in England. 7 Stats. United 
Kingdom, 723, 59 Geo. 3, e. 46.

CRAM FT OX v. OHIO 15



204—-DISSENT

and “ wrong.” Once it was a capital offense to steal from 
the person something “above the value of a shilling.” ir>

Insight and understanding have increased with the 
years, though the springes of crime remain in large part 
unknown. But our own Federal Bureau of Investigation 
teaches that brains, not muscle, solve crimes. Coerced 
confessions are not only offensive to civilized standards 
but not responsive to the modern needs of criminal in­
vestigation. Psychiatry has shown that blind faith in 
rightness and wrongness is no reliable measure of human 
responsibility. The convergence of new technology for 
criminal investigation and of new insight into mental 
disorders has made many ancient legal procedures seem 
utterly unfair.

Who today would say it was not “cruel and unusual 
punishment within the meaning of the Eighth Amend­
ment to impose the death sentence on a man who stole 
a loaf of bread, or in modern parlance, a sheet of food 
stamps? Who today would say that trial by battle satis­
fies the requirements of procedural due process?

We need not read procedural due process as designed 
to satisfy man’s deepseated sadistic instincts. WTe need 
not in deference to those sadistic instincts say we are 
bound by history from defining procedural Due Process 
so as to deny men fair trials. Yet that is what the Court 
does today. The whole evolution of procedural Due 
Process has been in the direction of insisting on fair 
procedures. As the Court said in Ilebert v. Louisiana, 
272 U. S. 312, 316-317:

“ . . . state action, whether through one agency or 
another, shall be consistent with the fundamental 
principles of liberty and justice which lie at the base 
of all our civil and political institutions and not

16 CRAMPTON v. OHIO

101 Stephen, History of the Criminal Law of England 467 (1883).



204—DISSENT

infrequently are designated as ‘law of the land.’ 
Those principles are applicable alike in all the 
States and do not depend upon or vary with local 
legislation.”

One basic application of that test was made in Moore 
v. Dempsey, 261 U. S. 86, 91:

“ . . - if the case is that the whole proceeding is 
a mask—that counsel, jury and judge were swept 
to the fatal end by an irresistible wave of public 
passion, and that the State Courts failed to correct 
the wrong— , neither perfection in the machinery for 
correction nor the possibility that the trial court and 
counsel saw no other way of avoiding an immediate 
outbreak of the mob can prevent this Court from 
securing to the petitioners their constitutional rights.”

To allow a defendant in a state trial to be convicted 
by confessions “extorted by officers of the State by bru­
tality and violence” was said by Chief Justice Hughes to 
be “revolting to the sense of justice” and “a clear denial 
of due process.” Brown v. Misissippi, 297 U. S. 278, 286.

In 1884 the Court in Hurtado v. California, 110 U. S. 
516, 528-529. said that due process was not frozen in 
content as of one point of time: . . to hold that such
a characteristic is essential to due process of law, would 
be to deny every quality of the law but its age, and to 
render it incapable of progress or improvement. It 
would be to stamp upon our jurisprudence the un­
changeableness attributed to the law of the Medes and 
Persians.”

The Court went on to point out that though due 
process has its roots in Magna Charta, the latter con­
tained words that changed with meaning as the centuries 
passed. Id., at 529. The Court noted that “This flexi­
bility and capacity for growth and adaptation is the 
peculiar boast and excellence of the common law.” Id.,

CRAMPTON v. OHIO 17



204— DISSENT

at 530. And it went on to say that the generalities of 
our Constitution should be treated in the same way:

“The Constitution of the United States was ordained, 
it is true, by descendants of Englishmen, who in­
herited the traditions of English law and history; but 
it was made for an undefined and expanding future, 
and for a people gathered and to be gathered from 
many nations and of many tongues. . . . There is 
nothing in Magna Charta, rightly construed as a 
broad charter of public right and law, which ought 
to exclude the best ideas of all systems and of every 
age; and as it was the characteristic principle of the 
common law to draw its inspiration from every 
fountain of justice, we are not to assume that the 
sources of its supply have been exhausted. On 
the contrary, we should expect that the new and 
various experience of our own situation and system 
will mould and shape it into new and not less useful 
forms.” Id., at 530-531.

The Court pointed out that in England Magna Charta 
served merely as a restraint on the executive and as a 
guide to the House of Commons, the keeper of the Con­
stitution. In this Nation, however, the Constitution 
serves a different function.

“ It necessarily happened, therefore, that as these 
broad and general maxims of liberty and justice held 
in our system a different place and performed a dif­
ferent function from their position and office in 
English constitutional history and law, they would 
receive and justify a corresponding and more com­
prehensive interpretation. Applied in England only 
as guards against executive usurpation and tyranny, 
here they have become bulwarks also against arbi­
trary legislation; but, in that application, as it would 
be incongruous to measure and restrict them by the

IS CHAMPTOX v. OHIO



204—DISSENT

ancient customary English law, they must be held 
to guarantee not particular forms of procedure, but 
the very substance of individual rights to life, liberty, 
and property.” Id., at 532.

In more recent times the issue was forcefully stated 
by M r. Justice Black in Chambers v. Florida, 309 U. S. 
227, 236-237.

“Tyrannical governments had immemorially utilized 
dictatorial criminal procedure and punishment to 
make scapegoats of the weak, or of helpless political, 
religious, or racial minorities and those who differed, 
who would not conform and who resisted tyranny. 
. . .  a liberty loving people won the principle that 
criminal punishments could not be inflicted save for 
that which proper legislative action had already by 
‘the law of the land’ forbidden when done. But 
even more was needed. From the popular hatred 
and abhorrence of illegal confinement, torture and 
extortion of confessions of violations of the ‘law of 
the land' evolved the fundamental idea that no 
man's life, liberty or property be forfeited as crim­
inal punishment for violation of that law, until 
there had been a charge fairly made and fairly 
tried in a public tribunal free of prejudice, passion, 
excitement, and tyrannical power. Thus, as assur­
ance against ancient evils, our country, in order 
to preserve ‘the blessings of liberty,’ wrote into its 
basic law the requirement, among others, that the 
forfeiture of the lives, liberties or property of people 
accused of crime can only follow7 if procedural safe­
guards of due process have been obeyed.”

That is all that is involved in this case. It is a mystery 
how in this day and age a unitary trial that requires an 
accused to give up one constitutional guarantee to save 
another constitutional guarantee can be brought within

CRAM FIX )N v. OHIO 19



204— DISSKXT

21) CRAM PTC) X  v. OHIO

the rul>ric of procedural Due Process. It can be done 
only by a tour de force by a majority that stops the 
growth and evolution of procedural Due Process at a 
wholly arbitrary line or harkens to the passions of men. 
What a great regression it is when the end result is to 
approve a procedure that makes the killing of people 
charged with crime turn on the whim or caprice of one 
man or of 12!

By standards of a fair trial, the resolution of the 
question of punishment requires rules and procedures 
different from those pertaining to guilt. Mr. Justice 
Butler, speaking for the Court in Pennsylvania v. Ashe, 
302 U. S. 51, 55, said:

“For the determination of sentences, justice gen­
erally requires consideration of more than the par­
ticular acts by which the crime was committed and 
that there be taken into account the circumstances 
of the offense together with the character and pro­
pensities of the offender. His past may be taken 
to indicate his present purposes and tendencies and 
significantly to suggest the period of restraint and 
the kind of discipline that ought to be imposed 
upon him.”

Justice17—in the sense of procedural due process—is 
denied where a State makes inadmissible evidence de­
signed to educate the jury on the character and pro­
pensities of the accused. Ohio does just that.

We noted in Williams v. New York, 337 U. S. 241, 
249-252, that the States have leeway in making avail­

17 It is commonly overlooked that justice is one of the goals of 
our people as expressed in the Preamble of the Constitution:

“ We the People of the United States, in Order to form a more 
perfect Union, establish Justice, insure domestic Tranquility, provide 
for the common defence, promote the general Welfare, and secure 
the Blessings of Libertj- to ourselves and our Posterity, do ordain 
and establish this Constitution for the United States of America.”



204—DISSENT

able to judges probation reports “ to guide them in the 
intelligent imposition of sentences” without submitting 
those reports to open court testimony with cross- 
examination. We said, “The Due Process Clause should 
not be treated as a device for freezing the evidential 
procedure of sentencing in the mold of trial procedure.” 
Id., at 251. But so far as I can ascertain we never 
have intimated that a State can, consistently with pro­
cedural due process, close the door to evidence relevant 
to the “ intelligent imposition of sentences” either by 
judges or by juries. Cf. Specht v. Patterson, supra, 60S- 
G 0 9 .

It is indeed too late to say that, absent a constitutional 
amendment, procedural Due Process has no applicability 
to the determination of the sentence which is imposed. 
In Townsend v. Burke, supra, at 741, we held a state 
sentence imposed “on the basis of assumptions” concern­
ing the defendant’s criminal record “which were mate­
rially untrue” was “ inconsistent with due process of law” 
whether the result was caused by “carelessness or design.” 
A fortiori it would seem to follow that a procedure, which 
is designed to bar an opportunity to present evidence 
showing why “mercy” should be extended to an accused 
in a death case, lacks that fairness which is implicit in 
due process.

The unitary trial is certainly not “mercy’’-oriented. 
That is, however, not its defect. It has a constitutional 
infirmity because it is not neutral on the awesome issue 
of capital punishment. The rules are stacked in favor 
of death. It is one thing if the legislature decides that 
the death penalty attaches to defined crimes. It is 
quite another to leave to judge or jury the discretion 
to sentence an accused to death or to show mercy under 
procedures that make the trial death-oriented. Then 
the law becomes a mere pretense, lacking the procedural 
integrity that would likely result in a fair resolution of

CRAMPTON v. OHIO 21



>

204—DISSENT

the issues. In Ohio, the deficiency in the procedure is 
compounded by the unreviewability of the failure to 
grant mercy.18

We stated in Witherspoon v. Illinois, 391 U. S. 510, 
521, that “ a State may not entrust the determination of 
whether a man should live or die to a tribunal organized 
to return a verdict of death.” In that case veniremen 
had been excluded from a jury for cause “ simply because 
they voiced general objections to the death penalty or 
expressed conscientious or religious scruples against its 
infliction.” Id., at 522. We concluded that no defendant 
“can constitutionally be put to death at the hands of 
a tribunal so selected.” Id., at 522-523.

The tribunal selected by Ohio to choose between death 
and life imprisoment in first-degree murder cases is not 
palpably “organized to return a verdict of death” in the 
Witherspoon sense. But the rules governing and re­
stricting its administration of the unitary trial system, 
place the weights on the side of man’s sadistic drive. The 
exclusion of evidence relevant to the issue of “mercy” is 
conspicuous proof of that lopsided procedure; and the 
hazards on an accused resulting from mingling the issues 
of guilt, insanity, and punishment in one unitary pro­
ceeding are multiplied. Whether this procedure would 
satisfy Due Process when dealing with lesser offenses may 
be debated. But with all deference I see no grounds for 
debate where the stake is life itself.

I would reverse this judgment of conviction.

22 CRAMPTON v. OHIO

18 Hoppe v. State, 29 Ohio App. 467, 103 N. E. 715.