# McGautha v. California > Supreme Court of the United States · May 3, 1971 · 402 U.S. 183 URL: https://www.frixlaw.com/law-library/cases/9424552 ## Case - **Full name:** McGAUTHA v. CALIFORNIA - **Court:** Supreme Court of the United States - **Decided:** May 3, 1971 - **Citations:** 402 U.S. 183; 91 S. Ct. 1454; 28 L. Ed. 2d 711; 1971 U.S. LEXIS 107 - **Precedential status:** Published - **Opinion:** Concurrence by Black - **Judges:** Harlan, Burger, Stewart, White, Blackmun, Black, Douglas, Brennan, Marshall - **Cited by:** 828 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by Gregg v. Georgia, 428 U.S. 153 (1976). - Negative treatments: 6 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9424552 ## How later opinions describe it (automated extraction) - stating that, although “a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions,” “it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding w… - concluding 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” - noting that aggravating circum stances could have been part of offense but instead were used as post-conviction enhancement - holding that "the threshold question is whether compelling the election [between constitutional rights] impairs to an appreciable extent any of the policies behind the rights involved" - rejecting the suggestion that the fifth amendment privilege against self-incrimination was offended where the defendant in a capital case could remain silent on the issue of his guilt only at the expense of surrendering any chance to testify on the issue of punishment ## Opinion text 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., Rockin 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 *226 responsibility is rather to determine whether petitioners have been denied rights expressly or impliedly guaranteed by the Federal Constitution as written. I agree with the Court’s conclusions that the procedures employed by California and Ohio to determine whether capital punishment shall be imposed do not offend the Due Process Clause of the Fourteenth Amendment. Likewise, I do not believe that petitioners have been deprived of any other right explicitly or impliedly guaranteed by the other provisions of the Bill of Rights. The Eighth Amendment forbids “cruel and unusual punishments.” In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power. See Harper v. Virginia Board of Elections, 383 U. S. 663, 670 (1966) (Black, J., dissenting). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9424552. Public record. Not legal advice.