MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioners McGautha and Crampton were convicted of murder in the first degree in the courts of California and Ohio respectively and sentenced to death pursuant to the statutes of those States. In each case the decision whether the defendant should live or die was left to the absolute discretion of the jury. In McGautha's case the jury, in accordance with California law, determined punishment in a separate proceeding following the trial on the issue of guilt. In Crampton's case, in accordance with Ohio law, the jury determined guilt and punishment after a single trial and in a single verdict. We granted certiorari in the McGautha case limited to the question whether petitioner's constitutional rights were infringed by permitting the jury to impose the death penalty without any governing standards. 398 U.S. 936 (1970). We granted certiorari in the Crampton case limited to that same question and to the further question whether the jury's imposition of the death sentence in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible. Ibid.
It will put the constitutional issues in clearer focus to begin by setting out the course which each trial took.
A. McGautha's Guilt Trial
McGautha and his codefendant Wilkinson were charged with committing two armed robberies and a murder on February 14, 1967.
B. McGautha's Penalty Trial
At the penalty trial, which took place on the following day but before the same jury, the State waived its opening, presented evidence of McGautha's prior felony convictions and sentences, see n. 2, supra, and then rested. Wilkinson testified in his own behalf, relating his unhappy childhood in Mississippi as the son of a white
Wilkinson called several witnesses in his behalf. An undercover narcotics agent testified that he had seen the murder weapon in McGautha's possession and had seen McGautha demonstrating his quick draw. A minister with whom Wilkinson had boarded testified to Wilkinson's church attendance and good reputation. He also stated that before trial Wilkinson had expressed his horror at what had happened and requested the minister's prayers on his behalf. A former fellow employee testified that Wilkinson had a good reputation and was honest and peaceable.
McGautha also testified in his own behalf at the penalty hearing. He admitted that the murder weapon was his, but testified that he and Wilkinson had traded guns, and that it was Wilkinson who had struck Mrs. Smetana and killed her husband. McGautha testified that he came from a broken home and that he had been wounded during World War II. He related his employment record, medical condition, and remorse. He admitted his criminal record, see n. 2, supra, but testified that he had
The jury was instructed in the following language:
The trial judge ordered a probation report on McGautha. Having received it, he overruled McGautha's motions for a new trial or for a modification of the penalty verdict, and pronounced the death sentence.
C. Crampton's Trial
Petitioner Crampton was indicted for the murder of his wife, Wilma Jean, purposely and with premeditated malice. He pleaded not guilty and not guilty by reason of insanity.
At trial the State's case was as follows. The Cramptons had been married about four months at the time of the murder. Two months before the slaying Crampton was allowed to leave the state mental hospital, where he was undergoing observation and treatment for alcoholism and drug addiction, to attend the funeral of his wife's father. On this occasion he stole a knife from the house of his late father-in-law and ran away. He called the house several times and talked to his wife, greatly upsetting her. When she pleaded with him to return to the hospital and stated that she would have to call the police, he threatened to kill her if she did. Wilma and her brother nevertheless did notify the authorities, who picked Crampton up later the same evening. There was testimony of other threats Crampton had made on his wife's life, and it was revealed that about 10 days before the murder Mrs. Crampton's fear of her husband had caused her to request and receive police protection.
The State's main witness to the facts surrounding the murder was one William Collins, a convicted felon who had first met Crampton when they, along with Crampton's brother Jack, were in the State Prison in Michigan. On January 14, 1967, three days before the murder, Collins and Crampton met at Jack Crampton's house in Pontiac, Michigan. During those three days Collins and Crampton roamed the upper Midwest, committing a series of petty thefts and obtaining amphetamines, to which both were addicted, by theft and forged prescriptions.
About nine o'clock on the evening of January 16, Crampton called his wife from St. Joseph, Michigan; after the call he told Collins that he had to get back to Toledo, where his wife was, as fast as possible. They arrived in the early morning hours of January 17. After
That evening Crampton called his wife's home and learned that she was present. He quickly drove out to the house, and told Collins, "Leave me off right here in front of the house and you take the car and go back to the parking lot and if I'm not there by six o'clock in the morning you're on your own."
About 11:20 that evening Crampton was arrested for driving a stolen car. The murder weapon was found between the seats of the car.
Mrs. Crampton's body was found the next morning. She had been shot in the face at close range while she was using the toilet. A .45-caliber shell casing was near the body. A jacket which Crampton had stolen a few days earlier was found in the living room. The coroner, who examined the body at 11:30 p. m. on January 18, testified that in his opinion death had occurred 24 hours earlier, plus or minus four hours.
The defense called Crampton's mother as a witness. She testified about Crampton's background, including a serious concussion received at age nine, his good grades in junior high school, his stepfather's jealousy of him, his leaving home at age 14 to live with various relatives, his enlistment in the Navy at age 17, his marriage to a girl named Sandra, the birth of a son, a divorce, then a
Crampton's attorney also introduced into evidence a series of hospital reports which contained further information on Crampton's background, including his criminal record, which was substantial, his court-martial conviction and undesirable discharge from the Navy, and the absence of any significant employment record. They also contained his claim that the shooting was accidental; that he had been gathering up guns around the house and had just removed the clip from an automatic when his wife asked to see it; that as he handed it to her it went off accidentally and killed her. All the reports concluded that Crampton was sane in both the legal and the medical senses. He was diagnosed as having a sociopathic personality disorder, along with alcohol and drug addiction. Crampton himself did not testify.
The jury was instructed that:
The jury was given no other instructions specifically addressed to the decision whether to recommend mercy, but was told in connection with its verdict generally:
The jury deliberated for over four hours and returned a verdict of guilty, with no recommendation for mercy.
Sentence was imposed about two weeks later. As Ohio law requires, Ohio Rev. Code Ann. § 2947.05 (1954), Crampton was informed of the verdict and asked whether he had anything to say as to why judgment should not be pronounced against him. He replied:
This statement was found insufficient to justify not pronouncing sentence upon him, and the court imposed the death sentence.
Before proceeding to a consideration of the issues before us, it is important to recognize and underscore the nature of our responsibilities in judging them. Our function is not to impose on the States, ex cathedra, what might seem to us a better system for dealing with capital cases. Rather, it is to decide whether the Federal Constitution proscribes the present procedures of these two
We consider first McGautha's and Crampton's common claim: that the absence of standards to guide the jury's discretion on the punishment issue is constitutionally intolerable. To fit their arguments within a constitutional frame of reference petitioners contend that to leave the jury completely at large to impose or withhold the death penalty as it sees fit is fundamentally lawless and therefore violates the basic command of the Fourteenth Amendment that no State shall deprive a person of his life without due process of law. Despite the undeniable surface appeal of the proposition, we conclude that the courts below correctly rejected it.
In order to see petitioners' claim in perspective, it is useful to call to mind the salient features of the history of capital punishment for homicides under the common law in England, and subsequent statutory developments in this country. This history reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die. Thus, the laws of Alfred, echoing Exodus 21: 12-13, provided: "Let the man who slayeth another wilfully perish by death. Let him who slayeth another of necessity or unwillingly, or unwilfully, as God may have sent him into his hands, and for whom he has not lain in wait be worthy of his life and of lawful bot if he seek an asylum." Quoted in 3 J. Stephen, History of the Criminal Law of England 24 (1883). In the 13th century, Bracton set it down that a man was responsible for all homicides except those which happened by pure accident or inevitable necessity, although he did not explain the consequences of such responsibility. Id., at 35. The Statute of Gloucester, 6 Edw. 1, c. 9 (1278), provided that in cases of self-defense or misadventure the jury should neither convict nor acquit, but should find the fact specially, so that the King could decide whether to pardon the accused. It appears that in time such pardons—which may not have prevented forfeiture of goods—came to issue as of course. 3 Stephen, supra, at 36-42.
During all this time there was no clear distinction in terminology or consequences among the various kinds of criminal homicide. All were prima facie capital, but all were subject to the benefit of clergy, which after 1350 came to be available to almost any man who could read. Although originally those entitled to benefit of clergy were simply delivered to the bishop for ecclesiastical proceedings, with the possibility of degradation from orders,
The growth of the law continued in this country, where there was rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers. Thus, in 1794, Pennsylvania attempted to reduce the rigors of the law by abolishing capital punishment except for "murder of the first degree," defined to include all "willful, deliberate and premeditated" killings, for which the death penalty remained mandatory. Pa. Laws 1794, c. 1777. This reform was soon copied by Virginia and thereafter by many other States.
This new legislative criterion for isolating crimes appropriately punishable by death soon proved as unsuccessful as the concept of "malice aforethought." Within a year the distinction between the degrees of murder was practically obliterated in Pennsylvania. See Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev. 759, 773-777 (1949). Other States had similar experiences. Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Col. L. Rev. 701,
At the same time, jurors on occasion took the law into their own hands in cases which were "willful, deliberate, and premeditated" in any view of that phrase, but which nevertheless were clearly inappropriate for the death penalty. In such cases they simply refused to convict of the capital offense. See Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶¶ 27-29 (1953); Andres v. United States, 333 U.S. 740, 753 (1948) (Frankfurter, J., concurring); cf. H. Kalven & H. Zeisel, The American Jury 306-312 (1966).
In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact. See Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1102 and n. 18 (1953); Note, The Two-Trial System in Capital Cases, 39 N. Y. U. L. Rev. 50,
This Court subsequently had occasion to pass on the correctness of instructions to the jury with respect to recommendations of mercy in Andres v. United States, 333 U.S. 740 (1948). The Court approved, as consistent with the governing statute, an instruction that:
The case was reversed, however, on the ground that other instructions on the power to recommend mercy might have been interpreted by the jury as requiring them to return an unqualified verdict of guilty unless they unanimously agreed that mercy should be extended. The Court determined that the proper construction was to require a unanimous decision to withhold mercy as well, on the ground among others that the latter construction was "more consonant with the general humanitarian purpose of the statute." Id., at 749. The only other significant discussion of standardless jury sentencing in capital cases in our decisions is found in Witherspoon v. Illinois, 391 U.S. 510 (1968). In reaching its conclusion that persons with conscientious scruples against the death penalty could not be automatically excluded from sentencing juries in capital cases, the Court relied heavily
In recent years academic and professional sources have suggested that jury sentencing discretion should be controlled by standards of some sort. The American Law Institute first published such a recommendation in 1959.
Petitioners seek to avoid the impact of this history by the observation that jury sentencing discretion in capital cases was introduced as a mechanism for dispensing mercy—a means for dealing with the rare case in which the death penalty was thought to be unjustified. Now, they assert, the death penalty is imposed on far fewer than half the defendants found guilty of capital crimes. The state and federal legislatures which provide for jury discretion in capital sentencing have, it is said, implicitly
In our view, such force as this argument has derives largely from its generality. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.
Thus the British Home Office, which before the recent abolition of capital punishment in that country had the responsibility for selecting the cases from England and Wales which should receive the benefit of the Royal Prerogative of Mercy, observed:
The Royal Commission accepted this view, and although it recommended a change in British practice to provide for discretionary power in the jury to find "extenuating circumstances," that term was to be left undefined; "[t]he decision of the jury would be within their unfettered discretion and in no sense governed by the principles of law." Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶ 553 (b). The Commission went on to say, in substantial confirmation of the views of the Home Office:
The draftsmen of the Model Penal Code expressly agreed with the conclusion of the Royal Commission that "the factors which determine whether the sentence of death is the appropriate penalty in particular cases are too complex to be compressed within the limits of a simple formula . . . ." Report ¶ 498, quoted in Model Penal Code, § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959). The draftsmen did think, however, "that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are
In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.
As we noted at the outset of this opinion, McGautha's trial was in two stages, with the jury considering the issue of guilt before the presentation of evidence and argument on the issue of punishment. Such a procedure is required by the laws of California and of five other States.
This Court has twice had occasion to rule on separate penalty proceedings in the context of a capital case. In United States v. Jackson, 390 U.S. 570 (1968), we held unconstitutional the penalty provisions of the Federal Kidnaping Act, which we construed to mean that a defendant demanding a jury trial risked the death penalty while one pleading guilty or agreeing to a bench trial faced a maximum punishment of life imprisonment. The Government had contended that in order to mitigate this discrimination we should adopt an alternative construction, authorizing the trial judge accepting a guilty plea or jury waiver to convene a special penalty jury empowered to recommend the death sentence. Id., at 572. Our rejection of this contention was not based solely on the fact that it appeared to run counter to the language and legislative history of the Act. "[E]ven on the assumption that the failure of Congress to [provide for the convening of a penalty jury] was wholly inadvertent, it would hardly be the province of the courts to fashion a remedy. Any attempt to do so would be fraught with the gravest difficulties . . . ." Id., at 578-579. We therefore declined "to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality." Id., at 580. Jackson, however, did not consider the possibility that such a procedure might be constitutionally required in capital cases.
Substantially this result had been sought by the petitioners in Spencer v. Texas, 385 U.S. 554 (1967). Like Crampton, Spencer had been tried in a unitary proceeding before a jury which fixed punishment at death. Also like Crampton, Spencer contended that the Due Process
Spencer considered the bifurcation issue in connection with the State's introduction of evidence of prior crimes; we now consider the issue in connection with a defendant's choice whether to testify in his own behalf. But even though this case cannot be said to be controlled by Spencer, our opinion there provides a significant guide to decision here.
Crampton's argument for bifurcation runs as follows. Under Malloy v. Hogan, 378 U.S. 1 (1964), and Griffin v. California, 380 U.S. 609 (1965), he enjoyed a constitutional right not to be compelled to be a witness
Simmons, however, dealt with a very different situation from the one which confronted petitioner Crampton, and not everything said in that opinion can be carried over to this case without circumspection. In Simmons we held it unconstitutional for the Federal Government to use at trial the defendant's testimony given on an unsuccessful motion to suppress evidence allegedly seized in violation of the Fourth Amendment. We concluded that to permit such use created an unacceptable risk of deterring the prosecution of marginal Fourth Amendment claims, thus weakening the efficacy of the exclusionary rule as a sanction for unlawful police behavior. This was surely an analytically sufficient basis for decision. However, we went on to observe that the penalty thus imposed on the good-faith assertion of Fourth Amendment rights was "of a kind to which this Court has always been peculiarly
We found it not a little difficult to support this invocation of the Fifth Amendment privilege. We recognized that "[a]s an abstract matter" the testimony might be voluntary, and that testimony to secure a benefit from the Government is not ipso facto "compelled" within the meaning of the Self-Incrimination Clause. The distinguishing feature in Simmons' case, we said, was that "the `benefit' to be gained is that afforded by another provision of the Bill of Rights." Id., at 393-394. Thus the only real basis for holding that Fifth Amendment policies were involved was the colorable Fourth Amendment claim with which we had begun.
The insubstantiality of the purely Fifth Amendment interests involved in Simmons was illustrated last Term by the trilogy of cases involving guilty pleas: Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Parker v. North Carolina, 397 U.S. 790 (1970). While in Simmons we relieved the defendant of his "waiver" of Fifth Amendment rights made in order to obtain a benefit to which he was ultimately found not constitutionally entitled, in the trilogy we held the defendants bound by "waivers" of rights under the Fifth, Sixth, and Fourteenth Amendments made in order to avoid burdens which, it was ultimately determined, could not constitutionally have been imposed. In terms solely of Fifth Amendment policies, it is apparent that Simmons had a far weaker claim to be relieved of his ill-advised "waiver" than did the defendants in the guilty-plea trilogy. While we have no occasion to question the soundness of the result in Simmons and do not do so, to the extent that its rationale was based on a "tension" between constitutional rights and the policies behind them, the validity of that reasoning must now be regarded as open to question, and it certainly cannot be
The criminal process, like the rest of the legal system, is replete with situations requiring "the making of difficult judgments" as to which course to follow. McMann v. Richardson, 397 U. S. at 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved. Analysis of this case in such terms leads to the conclusion that petitioner has failed to make out his claim of a constitutional violation in requiring him to undergo a unitary trial.
We turn first to the privilege against compelled self-incrimination. The contention is that where guilt and punishment are to be determined by a jury at a single trial the desire to address the jury on punishment unduly encourages waiver of the defendant's privilege to remain silent on the issue of guilt, or, to put the matter another way, that the single-verdict procedure unlawfully compels the defendant to become a witness against himself on the issue of guilt by the threat of sentencing him to death without having heard from him. It is not contended, nor could it be successfully, that the mere force of evidence is compulsion of the sort forbidden by the privilege. See Williams v. Florida, 399 U.S. 78, 83-85 (1970). It does no violence to the privilege that a person's choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case. See Spencer v. Texas, 385 U. S., at 561 and n. 7; cf. Michelson v. United States, 335 U.S. 469 (1948). The narrow question left open is whether it is consistent
So far as the history of the privilege is concerned, it suffices to say that it sheds no light whatever on the subject, unless indeed that which is adverse, resulting from the contrast between the dilemma of which petitioner complains and the historical excesses which gave rise to the privilege. See generally 8 J. Wigmore, Evidence § 2250 (McNaughton rev. ed. 1961); L. Levy, Origins of the Fifth Amendment (1968). Inasmuch as at the time of framing of the Fifth Amendment and for many years thereafter the accused in criminal cases was not allowed to testify in his own behalf, nothing approaching Crampton's dilemma could arise.
The policies of the privilege likewise are remote support for the proposition that defendants should be permitted to limit the effects of their evidence to the issue of punishment. The policies behind the privilege are varied, and not all are implicated in any given application of the privilege. See Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964); see generally 8 J. Wigmore, supra, at § 2251, and sources cited therein, n. 2. It can safely be said, however, that to the extent these policies provide any guide to decision, see McKay, Book Review, 35 N. Y. U. L. Rev. 1097, 1100-1101 (1960), the only one affected to any appreciable degree is that of "cruelty."
It is undeniably hard to require a defendant on trial for his life and desirous of testifying on the issue of punishment to make nice calculations of the effect of his testimony on the jury's determination of guilt. The issue of cruelty thus arising, however, is less closely akin
It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e. g., Brown v. Walker, 161 U.S. 591, 597-598 (1896); Fitzpatrick v. United States, 178 U.S. 304, 314-316 (1900); Brown v. United States, 356 U.S. 148 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U. S., at 561; cf. Michelson v. United States, 335 U.S. 469 (1948); but cf. Luck v. United States, 121 U. S. App. D. C. 151, 348 F.2d 763 (1965); United States v. Palumbo, 401 F.2d 270 (CA2 1968). Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.
Further, a defendant whose motion for acquittal at the close of the Government's case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the Government case enough for it to support a verdict of guilty.
We are thus constrained to reject the suggestion that a desire to speak to one's sentencer unlawfully compels a defendant in a single-verdict capital case to incriminate himself, unless there is something which serves to distinguish sentencing—or at least capital sentencing—from the situations given above. Such a distinguishing factor can only be the peculiar poignancy of the position of a man whose life is at stake, coupled with the imponderables of the decision which the jury is called upon to make. We do not think that the fact that a defendant's sentence, rather than his guilt, is at issue creates a constitutionally sufficient difference from the sorts of situations
We conclude that the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt. We therefore turn to the converse situation, in which a defendant remains silent on the issue of guilt and thereby loses any opportunity to address the jury personally on punishment.
It is important to identify with particularity the interests which are involved. Petitioner speaks broadly of a right of allocution. This right, of immemorial origin, arose in a context very different from that which confronted petitioner Crampton.
Leaving aside the term "allocution," it also appears that petitioner is not claiming the right simply to be heard on the issue of punishment. This Court has not directly determined whether or to what extent the concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so.
On the other hand, petitioner is not seeking vindication for his interest in making a personal plea for mercy.
Before we conclude this opinion, it is appropriate for us to make a broader observation than the issues raised by
Certainly the facts of these gruesome murders bespeak no miscarriage of justice. The ability of juries, unassisted by standards, to distinguish between those defendants for whom the death penalty is appropriate punishment and those for whom imprisonment is sufficient is indeed illustrated by the discriminating verdict of the jury in McGautha's case, finding Wilkinson the less culpable of the two defendants and sparing his life.
The procedures which petitioners challenge are those by which most capital trials in this country are conducted, and by which all were conducted until a few years ago. We have determined that these procedures are consistent with the rights to which petitioners were constitutionally entitled, and that their trials were entirely fair. Having
APPENDIX TO OPINION OF THE COURT
Model Penal Code § 210.6 (Proposed Official Draft, 1962, and changes of July 30, 1962):
(1) Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree if it is satisfied that:
(a) none of the aggravating circumstances enumerated in Subsection (3) of this Section was established by the evidence at the trial or will be established if further proceedings are initiated under Subsection (2) of this Section; or
(b) substantial mitigating circumstances, established by the evidence at the trial, call for leniency; or
(c) the defendant, with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty to murder as a felony of the first degree; or
(d) the defendant was under 18 years of age at the time of the commission of the crime; or
(e) the defendant's physical or mental condition calls for leniency; or
(f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt.
(2) Determination by Court or by Court and Jury. Unless the Court imposes sentence under Subsection (1) of this Section, it shall conduct a separate proceeding to determine whether the defendant should be sentenced for a felony of the first degree or sentenced to death. The proceeding shall be conducted before the Court alone
In the proceeding, evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in Subsections (3) and (4) of this Section. Any such evidence, not legally privileged, which the court deems to have probative force, may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant's counsel is accorded a fair opportunity to rebut such evidence. The prosecuting attorney and the defendant or his counsel shall be permitted to present argument for or against sentence of death.
The determination whether sentence of death shall be imposed shall be in the discretion of the Court, except that when the proceeding is conducted before the Court sitting with a jury, the Court shall not impose sentence of death unless it submits to the jury the issue whether the defendant should be sentenced to death or to imprisonment and the jury returns a verdict that the sentence should be death. If the jury is unable to reach a unanimous verdict, the Court shall dismiss the jury and impose sentence for a felony of the first degree.
The Court, in exercising its discretion as to sentence, and the jury, in determining upon its verdict, shall take into account the aggravating and mitigating circumstances enumerated in Subsections (3) and (4) and any
[Alternative version of Subsection (2), providing for determination of sentence by the Court in all cases, omitted.]
(3) Aggravating Circumstances.
(a) The murder was committed by a convict under sentence of imprisonment.
(b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person.
(c) At the time the murder was committed the defendant also committed another murder.
(d) The defendant knowingly created a great risk of death to many persons.
(e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
(f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody.
(g) The murder was committed for pecuniary gain.
(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(a) The defendant has no significant history of prior criminal activity.
(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
(d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.
(e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.
(f) The defendant acted under duress or under the domination of another person.
(g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.
(h) The youth of the defendant at the time of the crime.
Separate opinion of MR. JUSTICE BLACK.
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 221. The Constitution grants this Court no power to reverse convictions because of our personal beliefs that state criminal procedures are "unfair," "arbitrary," "capricious," "unreasonable," or "shocking to our conscience." See, e. g., Rochin v. California, 342 U.S. 165, 174 (1952) (BLACK, J., concurring); United States v. Wade, 388 U.S. 218, 243 (1967) (BLACK, J., concurring and dissenting). Our
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting in No. 204.
In my view the unitary trial which Ohio provides in first-degree murder cases does not satisfy the requirements 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 Ann. § 2901.01. Petitioner
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 psychiatrist testified on his behalf, offering medical records of his case from two state hospitals. His mother testified concerning his childhood, education, and background.
On the issue of punishment the jury was charged:
He was found guilty of murder in the first degree without 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 614.
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
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 misdemeanors,
While the defendant in Ohio has the right of allocution, 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 insufficient evidence
On the question of insanity and punishment the accused 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 to submit his 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 testimony as to character. "Thus, while the law gives defendant 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 color a jury's judgment on the wholly different issue of guilt.
The greatest comfort the majority has is this Court's recent decision in Spencer v. Texas, 385 U.S. 554, holding that a two-stage trial is not required when a State
That dissent, id., at 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. Mr. Chief Justice Warren said: "In England, the prejudice which results from proof of prior crimes before a finding of guilt has been recognized for more than a century, and the rule has been that 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.
Yet the risk of prejudice in Jackson v. Denno seems minor compared with 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
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.
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 Art. I, § 10, or by the Fourteenth Amendment, 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 Art. I, § 10, against bills of attainder or the prohibition against cruel and unusual punishments contained 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
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
Crampton had the constitutional right as a matter of procedural due process to be heard on the issue of punishment. We emphasized in Townsend v. Burke, 334 U.S. 736, 741, how the right to be heard through counsel might be crucial to avoid sentencing on a foundation "extensively 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 U.S. 301, 304 (opinion of Frankfurter, J.):
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 denied both counsel and the defendant, the denial reaches constitutional proportions. See United States v. Johnson, 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 process. We said in Specht v. Patterson, 386 U.S. 605, 610:
If one insists, as in Hill, that there be "aggravating circumstances" to raise this right to be heard to a constitutional level, all must agree that no one can ever show more "aggravating" circumstances than the fact
At least then, the right of allocution becomes a constitutional right—the right to speak to the issues touching 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 protection of the Self-Incrimination Clause of the Fifth Amendment. To obtain the benefit of the former he would have to surrender the latter. MR. JUSTICE HARLAN, speaking for the Court, said in Simmons v. United States, 390 U.S. 377, 394: "[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another."
We 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.
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 Amendment rights. MR. 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
That "undeniable 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-Incrimination 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 same result was reached by the Court of Appeals for the District of Columbia Circuit in Melson v. Sard, 131 U. S. App. D. C. 102, 402 F.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:
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.2d 941, where the Court of Appeals for the Fifth Circuit 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 Circuit expressed the same view in Scott v. United States, 135 U. S. App. D. C. 377, 419 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
The truth is, as MR. JUSTICE BRENNAN points out in his dissent in these cases, that the wooden position of the Court, reflected in today's decision, cannot be reconciled with the evolving gloss of civilized standards which this Court, long before the time of those who now sit here, has been reading into the protective procedural due process safeguards of the Bill of Rights. It is as though a dam 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 procedures such as ordeal by battle that became imbedded in the law were difficult to dislodge.
Insight and understanding have increased with the years, though the springs 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 investigation. Psychiatry has shown that blind faith in rightness and wrongness is no reliable measure of human
Who today would say it was not "cruel and unusual punishment" within the meaning of the Eighth Amendment 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 satisfies the requirements of procedural due process?
We need not read procedural due process as designed to satisfy man's deep-seated sadistic instincts. We 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 Hebert v. Louisiana, 272 U.S. 312, 316-317:
One basic application of that test was made in Moore v. Dempsey, 261 U.S. 86, 91:
To allow a defendant in a state trial to be convicted by confessions "extorted by officers of the State by brutality and violence" was said by Mr. Chief Justice Hughes to be "revolting to the sense of justice" and "a clear denial of due process." Brown v. Mississippi, 297 U.S. 278, 286.
In 1884 the Court in Hurtado v. California, 110 U.S. 516, 529, said that due process was not frozen in content as of one point of time: "[T]o 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 unchangeableness attributed to the laws of the Medes and Persians."
The Court went on to point out that though due process has its roots in Magna Carta, the latter contained words that changed with meaning as the centuries passed. Ibid. The Court noted that "[t]his flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law." Id., at 530. And it went on to say that the generalities of our Constitution should be treated in the same way:
The Court pointed out that in England Magna Carta served merely as a restraint on the executive and as a guide to the House of Commons, the keeper of the Constitution. In this Nation, however, the Constitution serves a different function.
In more recent times the issue was forcefully stated by MR. JUSTICE BLACK in Chambers v. Florida, 309 U.S. 227, 236-237:
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 the rubric 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
We noted in Williams v. New York, 337 U.S. 241, 249-252, that the States have leeway in making available 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 procedural due process, close the door to evidence relevant to the "intelligent imposition of sentences" either by
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" concerning the defendant's criminal record "which were materially 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 the issues. In Ohio, the deficiency in the procedure is compounded by the unreviewability of the failure to grant mercy.
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
The tribunal selected by Ohio to choose between death and life imprisonment in first-degree murder cases is not palpably "organized to return a verdict of death" in the Witherspoon sense. But the rules governing and restricting 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 to an accused resulting from mingling the issues of guilt, insanity, and punishment in one unitary proceeding 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.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
These cases test the viability of principles whose roots draw strength from the very core of the Due Process Clause. The question that petitioners present for our decision is whether the rule of law, basic to our society and binding upon the States by virtue of the Due Process Clause of the Fourteenth Amendment, is fundamentally inconsistent with capital sentencing procedures that are purposely constructed to allow the maximum possible variation from one case to the next, and provide no mechanism to prevent that consciously maximized variation from reflecting merely random or arbitrary choice. The Court does not, however, come to grips with that fundamental question. Instead, the Court misapprehends
In my view the Court errs at all points from its premises to its conclusions. Unlike the Court, I do not believe that the legislatures of the 50 States are so devoid of wisdom and the power of rational thought that they are unable to face the problem of capital punishment directly, and to determine for themselves the criteria under which convicted capital felons should be chosen to live or die. We are thus not, in my view, faced by the dilemma perceived by the Court, for cases in this Court have for almost a century and a half approved a multiplicity of imaginative procedures designed by the state and federal legislatures to assure evenhanded treatment and ultimate legislative control regarding matters that the legislatures have deemed either too complex or otherwise inapposite for regulation under predetermined rules capable of automatic application in every case. Finally, even if I shared the Court's view that the rule of law and the power of the States to kill are in irreconcilable
Except where it incorporates specific substantive constitutional guarantees against state infringement, the Due Process Clause of the Fourteenth Amendment does not limit the power of the States to choose among competing social and economic theories in the ordering of life within their respective jurisdictions. But it does require that, if state power is to be exerted, these choices must be made by a responsible organ of state government. For if they are not, the very best that may be hoped for is that state power will be exercised, not upon the basis of any social choice made by the people of the State, but instead merely on the basis of social choices made at the whim of the particular state official wielding the power. If there is no effective supervision of this process to insure consistency of decision, it can amount to nothing more than government by whim. But ours has been "termed a government of laws, and not of men." Marbury v. Madison, 1 Cranch 137, 163 (1803). Government by whim is the very antithesis of due process.
It is not a mere historical accident that "[t]he history of liberty has largely been the history of observance of procedural safeguards." McNabb v. United States, 318 U.S. 332, 347 (1943) (Frankfurter, J.). The range of permissible state choice among competing social and economic theories is so broad that almost any arbitrary or otherwise impermissible discrimination among individuals may mask itself as nothing more than such a permissible exercise of choice unless procedures are devised which adequately insure that the relevant choice is actually made. Such procedures may take a variety of forms. The decisionmaker may be provided with a set of guidelines to apply in rendering judgment. His decision may be required to rest upon the presence or absence
It is of critical importance in the present cases to emphasize that we are not called upon to determine the adequacy or inadequacy of any particular legislative procedure designed to give rationality to the capital sentencing process. For the plain fact is that the legislatures of California and Ohio, whence come these cases, have sought no solution at all. We are not presented with a State's attempt to provide standards, attacked as
"Our scheme of ordered liberty is based, like the common law, on enlightened and uniformly applied legal principle, not on ad hoc notions of what is right or wrong in a particular case." J. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, in The Evolution of a Judicial Philosophy 289, 291-292 (D. Shapiro ed., 1969).
The principal function of the Due Process Clause is to insure that state power is exercised only pursuant to procedures adequate to vindicate individual rights.
Analysis may usefully begin with this Court's cases applying what has come to be known as the "void-for-vagueness" doctrine. It is sometimes suggested that in holding a statute void for vagueness, this Court is merely applying one of two separate doctrines: first, that a criminal statute must give fair notice of the conduct that it forbids, e. g., Lanzetta v. New Jersey, 306 U.S. 451 (1939); Connally v. General Construction Co., 269 U.S. 385, 391 (1926); and second, that a statute may not constitutionally be enforced if it indiscriminately sweeps within its ambit conduct that may not be the subject of criminal sanctions as well as conduct that may. E. g., Baggett v. Bullitt, 377 U.S. 360 (1964); Dombrowski v. Pfister, 380 U.S. 479, 492-496 (1965). To this is often added the observation that both doctrines apply with particular vigor to state regulation of conduct at or near the boundaries of the First Amendment. See United States v. National Dairy Corp., 372 U.S. 29, 36 (1963); Smith v. California, 361 U.S. 147, 150-152 (1959).
Second, in dealing with statutes that are unconstitutionally overbroad, we have consistently indicated that "once an acceptable limiting construction is obtained, [such a statute] may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants." Dombrowski v. Pfister, 380 U. S., at 491 n. 7 (citations omitted);
Several features of Giaccio are especially pertinent in the present context. First, there were no First Amendment implications in either the conduct charged or that in which Giaccio claimed to have engaged: the State's evidence was to the effect that Giaccio had wantonly discharged a firearm at another, in violation of Pa. Stat.
Whether through its own force or only through the application of other, specific constitutional guarantees, the Due Process Clause of the Fourteenth Amendment protects individuals from a narrow class of impermissible exertions of power by the States. As applied to the procedures whereby admittedly permissible state power is exerted, however, the Due Process Clause has consistently been given a wider scope. "[O]ur system of law has always endeavored to prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136 (1955). Thus, we have never suggested that every judge who has been the target of contemptuous, personal attacks by litigants or their attorneys is incapable of rendering a fair decision on the merits of a contempt charge against such persons; but we have consistently held that, excepting only cases of urgent necessity, due process requires that contempt charges in such cases be heard by a different judge. Mayberry v. Pennsylvania, 400 U.S. 455 (1971); In re Murchison, supra. And in Tumey v. Ohio, 273 U.S. 510 (1927), we did not suggest that every judgment rendered by an official who had a financial stake in the outcome was ipso facto the product of bias. Proceeding from a directly contrary assumption,
On that basis we held the Louisiana procedure for determining the qualifications of prospective voters to be a denial of due process. Ibid.
Diverse as they are, these cases rest upon common ground. They all stand ineluctably for the proposition that due process requires more of the States than that they not exert state power in impermissible ways. Specifically, the rule of these cases is that state procedures are inadequate under the Due Process Clause unless they are designed to control arbitrary action and also to make meaningful the otherwise available mechanism for judicial review. We have elsewhere made this last point explicit. In Specht v. Patterson, 386 U.S. 605 (1967), we held that due process in commitment proceedings, "whether denominated civil or criminal," id., at 608, requires "findings adequate to make meaningful any appeal that is allowed." Id., at 610; see Garner v. Louisiana, 368 U.S. 157, 173 (1961). And in Jackson v. Denno, supra, the alternative ground on which we struck down a New York procedure for determining the voluntariness of a confession by submitting that question to the jury at the same time as the question of guilt was that the "admixture of reliability and voluntariness in the considerations of the jury would itself entitle a defendant to further proceedings in any case in which the essential
The depth to which these principles are embedded in the concept of due process is evidenced by the fact that we have, on occasion, applied them not merely to rule that a particular state procedure is or is not permissible under the Due Process Clause, but that a particular, specific procedure is required by due process. We have repeatedly held, for example, that a guilty plea and its inevitably attendant waivers of federally guaranteed rights are valid only if they represent a "voluntary and intelligent choice" on the part of the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970). The validity of a guilty plea may be tested on federal habeas corpus, where facts outside the record may be pleaded and proved. Waley v. Johnston, 316 U.S. 101 (1942). While recognizing the existence of such a remedy, we held in Boykin v. Alabama, 395 U.S. 238 (1969), that due process requires a record "adequate for any review that may be later sought," id., at 244, and does not permit protection of the federally guaranteed rights to be relegated to "collateral proceedings that seek to probe murky memories." Ibid. Accordingly, we held that due process requires a State, in accepting a plea of guilty, to make a contemporaneous record adequate "to show that [the defendant] had intelligently and knowingly pleaded guilty." Id., at 241. And only last Term, in Goldberg
In my view, the cases discussed above establish beyond peradventure the following propositions. First, due process of law requires the States to protect individuals against the arbitrary exercise of state power by assuring that the fundamental policy choices underlying any exercise of state power are explicitly articulated by some responsible organ of state government. Second, due process of law is denied by state procedural mechanisms that allow for the exercise of arbitrary power without providing any means whereby arbitrary action may be reviewed or corrected. Third, where federally protected rights are involved due process of law is denied by state procedures which render inefficacious the federal judicial machinery that has been established for the vindication of those rights. If there is any way in which these propositions must be qualified, it is only that in some circumstances the impossibility of certain procedures may be sufficient to permit state power to be exercised notwithstanding their absence. Cf. Carroll v. President and Commissioners, 393 U.S. 175, 182, 184-185 (1968). But the judgment that a procedural safeguard otherwise required by the Due Process Clause is impossible of application in particular circumstances is not one to be lightly made. This is all the more so when, as in the present cases, the argument of impossibility is not made by the parties before us, but only by this Court. Before we
A legislature that has determined that the State should kill some but not all of the persons whom it has convicted of certain crimes must inevitably determine how the State is to distinguish those who are to be killed from those who are not. Depending ultimately on the legislature's notion of wise penological policy, that distinction may be hard or easy to make.
My intention here is merely to provide an admittedly brief sketch of the several mechanisms that Congress has employed to assure that even with regard to the most complex and intractable problems, delegation by Congress of the power to make law has been subject to controls that limit the possibility of arbitrary action and that assure that Congress retains the responsibility for ultimate decision of fundamental questions of national policy. With these mechanisms in mind, I intend briefly to discuss the considerations relevant to the problem of capital sentencing with an eye to the question whether it may responsibly be said that all of these mechanisms are impossible of application by the States to the capital sentencing process.
At the outset, candor compels recognition that our cases regarding the delegation by Congress of lawmaking power do not always say what they seem to mean. Kenneth Culp Davis has been instrumental in pointing out the "unreality"
First. In a number of instances, Congress has in fact undertaken to regulate even rather complex questions by the prescription of relatively specific standards. It is certainly an open question whether determining what conduct should be subject to criminal sanctions is any more difficult than determining what those sanctions should be; yet Congress and the state legislatures as well have regularly passed criminal codes embodying, in the main, statutes directed at specifically and narrowly defined conduct.
Second. In other circumstances, Congress has granted to others the power to prescribe fixed rules to govern future activity and adjudications. Such delegations of power permit the legislature to declare the end sought and leave technical matters in the hands of experts,
Third. Perhaps the most common legislative technique for dealing with complex questions that will arise in a myriad of factual contexts has been the delegation to another group of lawmaking power which may be exercised either through rulemaking or the adjudication of individual cases, with choice between the two left to the agency's judgment. Such schemes, while allowing broad flexibility for the working out of policy on a case-by-case basis, nevertheless have invariably provided substantial protections to insure against arbitrary action and to guarantee that underlying questions of policy are considered and resolved. As with the delegation simply of rulemaking power, we have often found substantial guidance in the language and history of the governing statute. New York Central Securities Corp. v. United States, 287 U.S. 12 (1932); Radio Commission v. Nelson Bros. Co., 289 U.S. 266 (1933); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). Agency action under such delegations must typically be premised upon an explanation of both the findings and reasons for a given
The next question is whether there is anything inherent in the nature of capital sentencing that makes impossible the application of any or all of the means that have been elsewhere devised to check arbitrary action. I think it is fair to say that the Court has provided no explanation for its conclusion that capital sentencing is inherently incapable of rational treatment. Instead, it relies primarily on the Report of the [British] Royal Commission
Significantly, the Court neglects to mention that the recommendations of the Royal Commission on Capital Punishment found little more favor in England than Archdeacon Paley's. For the "British have been unwilling to empower either courts or juries to decide on life or death, insisting that death should be the sentence of the law and not of the tribunal." Symposium on Capital Punishment, 7 N. Y. L. F. 249, 253 (1961) (H. Wechsler). Beyond the Royal Commission's Report, the Court supports its conclusions only by referring to the standards proposed in the Model Penal Code
But, although I find the Court's discussion inadequate, there remains the question whether capital sentencing is inherently incapable of being carried out under procedures that provide the safeguards necessary to protect against arbitrary determinations. I think not. I reach this conclusion for the following reasons.
First. It is important at the outset to recognize that two separate questions are involved. The first question is what ends any given State seeks to achieve by imposing the death penalty. The second question is whether those ends will or will not be served in any given case. The first question requires determination of the penological policy adopted by the State in choosing to kill some of its convicted criminals.
Second. It is likewise important to bear in mind that the complexity of capital sentencing in any particular jurisdiction is inevitably a function of the penological policy to be applied. It is not, inherently, a difficult question. Thus, if a State should determine to kill those first-degree murderers who have been previously convicted of murder, and only those persons, the sentencing determination would ordinarily be a rather simple one.
Third. This is neither the time nor the place for an essay on the purposes of criminal punishment. Yet some discussion must be ventured. Without indicating any judgment as to their propriety—and without intending to suggest that no others may exist—it is apposite to note that the interests most often discussed in connection with a State's capital sentencing policy are four.
Fourth. This is not to say, of course, that there may be no room whatsoever for the exercise of discretion in the capital sentencing process. But discretion, to be worthy of the name, is not unchanneled judgment; it is judgment guided by reason and kept within bounds. Otherwise, in Lord Camden's words, it is "the law of tyrants: It is always unknown: It is different in different men: It is casual, and depends upon constitution, temper, passion. —In the best it is oftentimes caprice: In the worst it is every vice, folly, and passion, to which human nature is liable." Hindson and Kersey, cited in 8 How. St. Tr. 57 n. It may well be that any given State's notions of proper penological policy are such that the precise amount of weight to be given to any one factor in any particular case where death is a possible penalty is incapable of determination beforehand. But that is no excuse for refusing to tell the decisionmaker whether he should consider a particular factor at all. Particularly where decisions are made, not by a continuing body of persons, but by groups selected to make a single decision and dispersed immediately after the event, the likelihood of any consistency whatsoever is vanishingly small. "Perfection may not be demanded of law, but the capacity to counteract inevitable . . . frailties is the mark of a civilized legal mechanism." Rosenberg v. United States, 346 U.S. 273, 310 (1953) (Frankfurter, J., dissenting). The point is that even if a State's notion of wise capital sentencing policy is such that the policy cannot be implemented through a formula capable of mechanical application
Fifth. As I have already indicated, typical legislative response to problems deemed of sufficient urgency that some solution must be implemented immediately, yet at the same time of sufficient difficulty as to be incapable of explicit statutory solution, has been to provide a means whereby the law may be usefully developed on a case-by-case basis: systems are devised whereby each case may be decided upon its facts, with consistency and the development of more general principles left to the wisdom that comes from experience. I am speaking, of course, of the administrative process, where the basis and reasons for any given decision are explained and subject to review. I see no reason that capital sentencing is ipso facto unsuited to such treatment. To begin with, if a legislature should deem its present knowledge insufficient to create proper standards, it is hard indeed to see why its solution should not be one that could ultimately lead to the development of such standards. Cf. Lichter v. United States, 334 U.S. 742 (1948). I see no reason that juries which have determined that a given person should be killed by the State should be unable to explain why they reached that decision, and the facts upon which it was based. Persons dubious about the ability of juries to explain their findings should consult Fletcher v. Peck, 6 Cranch 87, 95-114 (1810) (findings of trial jury). Cf. Fed. Rule Civ. Proc. 49. Even if it be assumed that juries are incapable of making such explanations, we have already held that such inability does not excuse the State from providing a sentencing process that provides reasons for the decisions reached if those reasons are otherwise required. North Carolina v. Pearce, 395 U.S. 711, 726 (1969).
I have explained above the reasons for my belief that the Due Process Clause of the Fourteenth Amendment compels the States to make explicit the fundamental policy choices upon which any exertion of state power is based, and to exercise such power only under procedures that both limit the possibility of merely arbitrary action and provide a record adequate to render meaningful the institution of federal judicial review. I have also explained why, in my view, there is nothing inherent in the nature of capital sentencing that makes application of such procedures impossible. There remains, then, only the question whether the two state procedures under review today provide the necessary safeguards.
In Ohio, if a capital defendant elects trial by jury the questions whether he is guilty of the crime charged and, if so, whether he should be killed are simultaneously submitted to the jury. Jury trial may, however, be waived as of right in capital cases, State v. Smith, 123 Ohio St. 237, 174 N. E. 768 (1931),
A defendant who exercises his right to jury trial may introduce only evidence relevant to the question of guilt. No evidence may "be introduced directed specifically toward a claim for mercy," Ashbrook v. State, 49 Ohio App. 298, 302, 197 N. E. 214, 216 (1935), for that "is a matter vested fully and exclusively in the discretion of the jury," State v. Ellis, 98 Ohio St. 21, 120 N. E. 218 (court's syllabus) (1918), and therefore, under Ohio law, is "not an issue in the case." Ashbrook v. State, supra. A defendant who can present no evidence on the question of guilt may not, therefore, present any evidence whatsoever to the sentencing jury.
A defendant who waives jury trial, however, is in a somewhat different situation. Presumably, of course, the same rules of evidence apply at a bench trial or at a trial upon a plea of guilty.
The standard instruction given capital juries on the question of punishment appears in State v. Caldwell, 135 Ohio St. 424, 425, 21 N.E.2d 343, 344 (1939):
The jury may be instructed that "sociological matters and environment" have "nothing whatever to do with [the] case," id., at 428, 21 N. E. 2d, at 344, but it appears that this instruction is not generally given. Likewise, the trial court may, but is not compelled to, inform the jury about matters such as parole from a sentence to life imprisonment. 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). In petitioner Crampton's case, the jury was instructed generally that it should not be "influenced by any consideration of sympathy or prejudice." On the question of punishment, it was told only that "[i]f you find the defendant guilty of murder in the first degree, the punishment is death, unless you recommend mercy, in which event the punishment is imprisonment in the penitentiary during life." The jury was also 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." Except for a supplementary instruction informing the jury that its recommendation had to be unanimous, no further instructions on the question of punishment were given the jury.
There is in my view no way that this Ohio capital sentencing procedure can be thought to pass muster under the Due Process Clause.
Third. Even if it be assumed that Ohio sentencing judges and juries act upon shared, although unarticulated and unarticulable, notions of proper capital sentencing
Fourth. There is, moreover, no reason to believe that Ohio capital sentencing judges and juries do in fact share common notions of the considerations relevant to capital sentencing. I have already pointed out that no state policy has ever been articulated. And whatever may be the case with judges, capital sentencing juries are drawn essentially at random
Fifth. Although the Due Process Clause does not forbid a State from imposing "a different punishment for the same offence . . . under particular circumstances," Moore v. Missouri, 159 U.S. 673, 678 (1895), it does command that punishment be "dealt out to all alike who are similarly situated." Ibid.; Leeper v. Texas, 139 U.S. 462, 468 (1891); Missouri v. Lewis, 101 U.S. 22, 31 (1880). Even granting the State the fullest conceivable room for judgment as to what are and are not "particular circumstances" justifying different treatment, this means at the least that the State must itself apply the same fundamental policies to all in making that judgment. The institution of federal judicial review is designed to vindicate this (and other
In sum, the Ohio capital sentencing procedure presently before us raises fundamental questions of state policy which have never been explicitly decided by any responsible organ of the State. Nothing in the procedure looks towards the gradual development of a uniform state policy through accumulation of a body of precedent. No protection whatsoever appears against the possibility of merely arbitrary or willful decisionmaking; moreover, some features of the process appear to make inconsistent action not merely possible but inevitable. And finally, the record provided by the Ohio capital sentencing process makes virtually impossible the redress of any violations of federally guaranteed rights through the institution of federal judicial review. I can see no possible basis for holding such a capital sentencing procedure permissible under the Due Process Clause, and I would therefore reverse petitioner Crampton's sentence of death.
The procedures whereby the State of California determines which convicted criminals to kill differ in a number of respects from those used by Ohio. Following conviction of a possibly capital crime,
The range of evidence that may be introduced at the penalty trial is broad. Ordinary rules of competence, hearsay, etc., apply, e. g., People v. Hines, 61 Cal.2d 164, 174-175, 390 P.2d 398, 405 (1964), and a few issues are excluded. Exclusion, however, appears to be not on the basis that the issues are irrelevant, but rather that they are either unduly inflammatory or impractical to litigate. Thus, evidence or argument is prohibited concerning the likelihood of parole from a life sentence, People v. Morse, 60 Cal.2d 631, 388 P.2d 33 (1964);
Following the arguments of counsel,
Substantially more elaborate versions of this instruction may, if the trial court desires, be given. People v. Harrison, 59 Cal.2d 622, 381 P.2d 665 (1963). In addition, the trial court is supposed to instruct the jury that a defendant serving a life sentence may be paroled, but that it should not presume that the California Adult Authority will release a prisoner until it is safe to do so, and that it should not take the possibility of parole into account. People v. McGautha, 70 Cal.2d 770, 452 P.2d 650 (1969). Finally, under California law it is error to charge that the jury's verdict should express the conscience of the community; the jury should be told, instead, that the verdict must "express the individual conscience of each juror." People v. Harrison, supra, at 633, 381 P. 2d, at 671.
Finally, a jury determination to impose the death sentence may not be reviewed by any court. It may, however, be set aside by the judge presiding at the trial. The
I find this procedure likewise defective under the Due Process Clause. Although it differs in some not insignificant respects from the procedure used in Ohio, it nevertheless is entirely bare of the fundamental safeguards required by due process.
First. Both procedures contain at their heart the same basic vice. Like Ohio, California fails to provide any means whereby the fundamental questions of state policy with regard to capital sentencing may be authoritatively resolved. They have not been resolved by the state legislature, which has committed the matter entirely to whatevery judge or jury may exercise sentencing authority in any particular case. But they cannot be authoritatively resolved by the sentencing authority, not only because the California Supreme Court has expressly ruled that that is not part of the sentencing function, People v. Kidd, 56 Cal. 2d, at 770, 366 P., at 56, but also because any such resolution is binding for one case and one case only. There are simply no means to assure that "truly fundamental issues [will ultimately] be resolved by the Legislature," Wilke & Holzheiser, Inc. v. Department of Alcoholic Beverage Control, 65 Cal.2d 349, 369, 420 P.2d 735, 748 (1966). Nothing whatsoever anywhere in the process gives any assurance that one defendant will be sentenced upon notions of California penological policy even vaguely resembling those applied to the next.
Second. If the question before us were what procedure would produce the fewest number of death sentences, the power of a trial judge to set aside a jury's verdict might be of substantial importance. But that, of course, is not
Third. Like its Ohio counterpart, the California procedure before us inevitably operates to frustrate the institution of federal judicial review. We do not and cannot know what facts the jury relied upon in determining that petitioner McGautha should be killed, or the reasons upon which it based that decision. We do not know—and cannot know—the basis upon which the State of California determined that he was not "fit to live," People v. Morse, 60 Cal. 2d, at 647, 388 P. 2d, at 43. We do know that the prosecutor, in her closing argument, strongly urged to the jury that Dennis Councle McGautha should be killed because he had the unregenerate bad taste to insist that he had once pleaded guilty to a crime he did not commit.
I have indicated above the reasons why, in my judgment, the procedures adopted by Ohio and California to sentence-convicted defendants to die are inconsistent with the most basic and fundamental principles of due process. But even if I thought these procedures adequate to try a welfare claim—which they are not, Goldberg v. Kelly, 397 U.S. 254 (1970)—I would have little hesitation in finding them inadequate where life itself is at stake. For we have long recognized that the degree of procedural regularity required by the Due Process Clause increases with the importance of the interests at stake. See Cafeteria Workers v. McElroy, 367 U.S. 886, 895-896 (1961); id., at 900-901 (dissent). Where First Amendment interests have been involved we have held the States to stringent procedural requirements indeed. See, e. g., Stanley v. Georgia, 394 U.S. 557 (1969); Freedman v. Maryland, 380 U.S. 51 (1965); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Marcus v. Search Warrant, 367 U.S. 717 (1961); Speiser v. Randall, 357 U.S. 513 (1958). Of course the First Amendment is "an interest of transcending value," id., at 525, but so is life itself. Yet the Court's opinion turns the law on its head to conclude, apparently, that because a decision to take someone's life is of such tremendous import, those who make such decisions need not be "inhibit[ed]" by the safeguards otherwise required by due process of law. Ante, at 208. My belief is to the contrary, and I would hold that no State which determines to take a human life is thereby exempted from the constitutional command that it do so only by "due process of law."
Finally, a few words should be said about matters peripherally suggested by these cases. First, these cases do not in the slightest way draw into question the power of the States to determine whether or not to impose the death penalty itself, any more than Giaccio v. Pennsylvania, 382 U.S. 399 (1966), involved the power of the State of Pennsylvania to impose criminal punishment on persons who should fire a pistol loaded with blanks at another. Second, these cases do not call upon us to determine whether petitioners' trials were "fairly conducted" in the way referred to by my Brother BLACK. Ante, at 225. What they do call upon us to determine is whether the Due Process Clause requires the States, in his words, "to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power," In re Winship, 397 U.S. 358, 384 (1970) (dissent), and whether if a State, acting through its jury, applies one standard to determine that one convicted criminal should die, "the Due Process Clause commands that every trial in that jurisdiction must adhere to that standard." Id., at 386. Third, we are not called upon to determine whether "the death penalty is appropriate punishment" for the petitioners before us. Ante, at 221. That determination is for the States.
Finally, I should add that for several reasons the present cases do not draw into question the power of the States that should so desire to commit their criminal sentencing powers to a jury. For one thing, I see no reason to believe that juries are not capable of explaining, in simple but possibly perceptive terms, what facts they have found and what reasons they have considered sufficient to take a human life. Second, I have already indicated why I believe that life itself is an interest of such transcendent importance that a decision to take a life may require procedural regularity far beyond a decision simply to set a sentence at one or another term of years. Third, where jury sentencing involves such a decision, determination of the ultimate question—how many years a defendant will actually serve—is generally placed very substantially in the hands of a parole board— a single, continuing board of professionals whose general supervision and accumulated wisdom can go far toward insuring consistency in sentencing. And finally, in most cases where juries are asked to fix a convicted defendant's sentence at one or another term of years, they must inevitably be aware that, no matter what they do, the defendant will eventually return to society. With this in mind, a jury should at the very least recognize that rehabilitation must be a factor of substantial weight in its deliberations. Of course, none of these cases are before us, and I do not mean to imply that any and every question other than the question of life or death may be submitted by a State to a jury to be determined in its unguided, unreviewed, and unreviewable discretion. But I cannot help concluding that the Court's opinion, at its
"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 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 surrounding 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 the commission of the crime. The burden of proof as to the age of said person shall be upon the defendant.
"If the defendant was convicted by the court sitting without a jury, the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived. If the defendant was convicted 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 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."
"A sentence of life imprisonment means that the prisoner may be paroled at some time during his lifetime or that he may spend the remainder of his natural life in prison. An agency known as the Adult Authority is empowered by statute to determine if and when a prisoner is to be paroled, and under the statute no prisoner can be paroled unless the Adult Authority is of the opinion that the prisoner when released will assume a proper place in society and that his release is not contrary to the welfare of society. A prisoner released on parole may remain on parole for the balance of his life and if he violates the terms of the parole he may be returned to prison to serve the life sentence.
"So that you will have no misunderstandings relating to a sentence of life imprisonment, you have been informed as to the general scheme of our parole system. You are now instructed, however, that the matter of parole is not to be considered by you in determining the punishment for either defendant, and you may not speculate as to if, or when, parole would or would not be granted. It is not your function to decide now whether these men will be suitable for parole at some future date. So far as you are concerned, you are to decide only whether these men shall suffer the death penalty or whether they shall be permitted to remain alive. If upon consideration of the evidence you believe that life imprisonment is the proper sentence, you must assume that those officials charged with the operation of our parole system will perform their duty in a correct and responsible manner, and that they will not parole a defendant unless he can be safely released into society. It would be a violation of your duty as jurors if you were to fix the penalty at death because of a doubt that the Adult Authority will properly carry out its responsibilities.' App. 224-225.
"In so holding we intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits." Id., at 405 n. 8.
"Before sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, or the finding of the court, and asked whether he has anything to say as to why judgment should not be pronounced against him."
In Green v. United States, 365 U.S. 301, 304 (1961), Mr. Justice Frankfurter, in an opinion for four members of the Court, spoke eloquently of the desirability of permitting a defendant's personal plea for mercy, but in Hill v. United States, 368 U.S. 424 (1962), the Court held that the failure of a sentencing judge to ask a defendant represented by counsel whether he personally had anything to say, though a violation of Fed. Rule Crim. Proc. 32 (a), was not an error of constitutional dimensions. The Court reserved the issue whether silencing a defendant who wished to speak would rise to that level. Id., at 429. We have not since had occasion to deal with this or related problems at length.
"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 representative sample, see Cal. Penal Code §§ 1200, 1201 (1956); Iowa Code Ann. § 789.6 (1950); Kan. Gen. Stat. Ann. § 62-1510 (1964); Mo. Rev. Stat. §§ 546.570, 546.580 (1953); N. Y. Code Crim. Proc. § 480 (1958); Okla. Stat. Ann. tit. 22, § 970 (1958); Tex. Code Crim. Proc. 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. g., N. J. Crim. Prac. Rules, Superior and County Courts, Rule 3:7-10 (d) (1967); Fed. Rule Crim. Proc. 32 (a) (1). See also 39 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 jurisdictions, case law is the only source of the defendant's right. See Barrett, Allocution, 9 Mo. L. Rev. 115, 126-40 (1944)." American Bar Association, Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures 254-255 (Approved Draft, 1968).
"Whether or not a State has 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.
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 something 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 refuse to give this instruction 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 repetition." 135 Ohio St., at 425-428, 21 N. E. 2d, at 344-345.
The critics of the existing regime have been numerous. Mr. Justice Frankfurter once said: "[T]he ultimate justification for nullifying 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 disciplined, how disinterested. It covers the whole gamut of political, social, and economic activities." Of Law and Life and Other Things That Matter 129 (1965).
Yet none of us, I dare say, would conclude that (apart from constitutional 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 standards of procedural due process are to apply.
"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 Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
"The non-delegation doctrine can and should be altered to turn it into an effective and useful judicial tool. Its purpose should no longer be either to prevent delegation of legislative power or to require meaningful statutory standards; its purpose should be the much deeper one of protecting against unnecessary and uncontrolled discretionary power. The focus . . . should be on the totality of protections against arbitrariness, including both safeguards and standards." Administrative Law Treatise, § 2.00, at 40 (Supp. 1970). Adoption of this approach, he suggests, would cause the delegation doctrine to "merge with the concept of due process." Id., § 2.00-6, at 58.
"If [a] person has 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 surrounding 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. . . .
"If the defendant was convicted by the court sitting without a jury, the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived. If the defendant was convicted 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 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."
"[C]ertainly this Court, I do not think, except in most unusual circumstances, is justified in placing the Court's judgment over and above that of the 12 people who have carefully deliberated upon this case and decided that the proper penalty in this case should not be life imprisonment." App. 243.
"What kind of person do we have here who, having spent all that time in prison, still is unwilling to acknowledge his participation in crime?" App. 204-205.