Later courts went against this
Disapproved on other grounds by People v. Morse, 60 Cal. 2d 631 (1964)
56 Cal.2d 720, 730 , disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2
The opinion
GIBSON, C. J., TRAYNOR, J., PETERS, J., WHITE, J., and DOOLING, J.
The dissenting opinion to the order denying rehearing requires this response.
We held in this case that it was prejudicial error for the prosecutor in a murder case to assert that the death penalty is a more effective deterrent than life imprisonment when there was no evidence to that effect in the record and to bolster that assertion with statements of fact of which there was likewise no evidence in the record.
The wisdom and deterrent effect of the death penalty are for the Legislature to determine, and are therefore not justici *757 able issues. Hence our holding that evidence thereon was inadmissible. Juries in capital eases are not legislatures ad hoc and trials on the issue of penalty are not to be converted into legislative hearings. Were it otherwise, counsel for both sides could prolong as well as confuse the trial on the issue of penalty with a tangle of conflicting evidence on the vigorously disputed proposition that the death penalty is a more effective deterrent than life imprisonment. Even the dissenters agree that “certainly the . . . holding is correct” that the “wisdom or deterrent effect of [the penalties of first degree murder] are for the Legislature to determine and are therefore not justiciable issues. Hence evidence as to these matters is inadmissible. ’ ’
The People argue that “it is proper to advise a jury of the effect of the various penalties between which they must choose, for only if such is done can the jury arrive at an intelligent determination of which penalty to impose.” In support of this argument eases are cited holding that it is proper to inform the jury of the minimum term that a person given a life sentence for first degree murder may serve.
What the petition for rehearing fails to recognize is that the basis of the argument permitted on the minimum term that may be served on a life sentence is the introduction of evidence to support such argument. Once we concluded that evidence of the comparative deterrent effect of the respective sentences was not admissible, it necessarily followed that argument on the subject would not be proper unless we could say as a matter of common knowledge that the death penalty is the more effective deterrent. We could not so conclude when it is common knowledge instead that there is vigorous dispute whether capital punishment is a more effective deterrent than life imprisonment.
Thus “Whether or not the death penalty more effectively deters the crime of murder than would any other punishment is the most hotly debated question within the capital punishment policy issue.” (Ohio Legislative Service Commission, Capital Punishment, Staff Research Report No. 46, January, 1961, p. 31.) This conclusion is documented in numerous studies by penologists, criminologists, legislative committees, and others. (See, for example, Report of the Royal Commission on Capital Punishment 1949-1953; Report of California Senate Committee on Judiciary March 9, I960; Assembly Interim Committee Reports, 1955-1957, Report of Subcommittee of the Judiciary Committee on Capital Punishment *758 Pertaining to the Problems of the Death Penalty and Its Administration in California; Thorsten Sellin, The Death Penalty—A Report for the Model Penal Project of the American Law Institute (1959) ; Sir Ernest Gowers (Chairman of the Royal Commission on Capital Punishment), A Life for a Life (1956); Bennett (Director of Bureau of Prisons, U.S. Department of Justice), Delaware Abolishes Capital Punishment, 44 ABAJ 1053; Gardner (Chairman of the General Council of the Bar of England and Wales), Capital Punishment in Britain, 45 ABAJ 259; Savitz, A Study in Capital Punishment, 49 Journal of Criminal Law, Criminology and Police Science 338; George Ryley Scott, The History of Capital Punishment (1951); E. Roy Calvert, Capital Punishment in the Twentieth Century (1927); Capital Punishment (1961), the National Council, Episcopal Church; Zilborg, The Psychology of the Criminal Act and Punishment (1954); Ball, The Deterrence Concept in Criminology and Law, 46 J. Crim. L., C. & P. S. 347, 353-354; The Deterrent Influence of the Death Penalty in Murder and the Penalty of Death, 284 The Annals of the American Academy of Political and Social Science, p. 62; Morris, Thoughts on Capital Punishment, 35 Wash. L. Rev. 335 .)
The Legislature has taken care not to express a preference for one penalty or the other. Instead it has left to the absolute discretion of the jury the fixing of the punishment for first degree murder. It bears noting that reasons other than deterrence have been advanced in support of the death penalty, such as retribution, and the protection of society from further harm from the defendant. It is a far-fetched speculation that the Legislature, by leaving it to the jury to impose one penalty or the other, has indicated that the death penalty is a more effective deterrent than life imprisonment.
It is a baseless fear that the preclusion of arguments to the jury on a question they cannot properly evaluate without evidence will encourage murders in the commission of crimes of violence. The Penal Code provides for the death penalty. A criminal will hardly be emboldened to take a risk so grave because of a ruling that neither the defendant nor the prosecutor can introduce evidence or argue to the jury that one or the other of the penalties prescribed is the more effective deterrent.