Carmical v. Craven Reply Brief for Appellant

    SUPREME COURT OF THE UNITED STATES
Nos. 20.3 <fc 204.— October T erm, 1970

Dennis Councle McGautha, 
Petitioner,

203 v.
State of California.

On Writ of Certiorari to the 
Supreme Court of Cali­
fornia.

James Edward Crampton, 
Petitioner,

204 v.
State of Ohio.

On Writ of Certiorari to the 
Supreme Court of Ohio.

[May 3, 1971]

M r. Justice Black, concurring.
I concur in the Court’s judgments and in substantially 

all of its opinion. However, in my view, this Court's 
task is not to determine whether the petitioners’ trials 
were “ fairly conducted.” Ante, at 37. The Constitu­
tion grants this Court no power to reverse convictions 
because of our personal beliefs that state criminal pro­
cedures are “unfair,” “arbitrary,” “capricious,” “ unrea­
sonable,” or “ shocking to our conscience.” See, c. g., 
Rochin v. California, 342 U. S. 165, 174 (1952) (B lack. 
J.. concurring); United States v. Wade, 3S8 U. S. 218. 
243 (1967) (B lack, J., dissenting and concurring). Our 
responsibility is rather to determine whether petitioners 
have been denied rights expressly or impliedly guaran­
teed by the Federal Constitution as written. I agree 
with the Court’s conclusions that the procedures em­
ployed by California and Ohio to determine whether 
capital punishment shall be imposed do not offend the 
Due Process Clause of the Fourteenth Amendment. 
Likewise, I do not believe that petitioners have been 
deprived of any other right explicitly or impliedly guar-



203 <fc 204— CONCUR

McGAUTHA v .  CALIFORNIA

anteed by the other provisions of the Bill of Rights. 
The Eighth Amendment forbids “cruel and unusual 
punishments.’ ’ In my view, these words cannot be read 
to outlaw capital punishment because that penalty was 
in common use and authorized by law here and in the 
countries from which our ancestors came at the time 
the Amendment was adopted. It is inconceivable to 
me that the Framers intended to end capital punishment 
by the Amendment. Although some people have urged 
that this Court should amend the Constitution by inter­
pretation to keep it abreast of modern ideas. I have 
never believed that lifetime judges in our system have 
any such legislative power. See Harper v. Virginia Board 
of Elections, 383 U. S. 063. 670 (1966) ( B lack. J., 
dissenting).