Amicus Curiae Brief — McGautha v. California

Supreme Court brief1971

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What actually matters in this document.

Text

i ee biti dics reraiinndiie

C. The penalty trial_..............

D. Co-defendant’s case on punish-

. McGautha’s case on punishment.

. Closing arguments............--

. Jury instructions on punishment. .

. Jury deliberations, verdict, and

D. Jury instructions---.........---

E. Verdict and sentence..........--

‘Argument:

I. The United States Constitution does not

_ require that state legislatures prescribe

statutory standards to guide or govern

wrt es

& Co

omnc

No}

Argument—Continued

I. The United States Constitution—Con-

tinued

A. Historically, sentencing discre-

tion, whether entrusted to judge

or jury, in capital and non-

capital cases, has not depended

on legislative criteria:

1. Introduction: The attack

on “standardless” sen-

tencing in these cases

implicates all felony sen-

2. Jury sentencing discretion

is firmly established in

American criminal law:

(a) Jury-sentencing

in non-capital

(b) Jury-sentencing

in capital cases_

B. Jury discretion in capital cases

serves a legitimate governmen-

C. Juries can and do function ration-

ally without explicit legislative

standards on capital sentencing.

D. The present system of jury dis-

cretion in capital sentencing

does not violate any constitu-

tionally protected interest of

II. Neither the privilege against self-incrimi-

nation nor the due process clause re-

quires separate trials on the issues of

guilt and punishment in every capital

Ill

Argument—Continued

Il. Neither the privilege—Continued

A. The unitary trial is the estab-

lished and approved mode for

even complex criminal cases --

B. A statute allowing the jury in a

capital case to fix punishment

as part of a single-stage guilt

trial does not violate the privi-

lege against self-incrimination - -

1. A defendant has no consti-

tutional right to offer his

personal testimony limit-

ed to the issue of punish-

2. The defendant in a unitary

capital trial can present

mitigation evidence

through witnesses other

than himeelf...-....--

3. The unitary tria! procedure

does not imperinissibly

burden the exercise of

C. A statute which authorizes the

jury in a capital case to fix pun-

ishment in light of the evidence

adduced at a one-stage trial on

guilt is fundamentally fair- -- - -

1. A state may rationally de-

termine that a sentence

for murder should be

based on the circum-

stances of the crime it-

Page

102

107

- ETT ERI TS

Argument—Continued

II. Neither the privilege—Continued

C. A statute which—Continued

2. Even at a murder trial

confined solely to guilt,

sufficient facts about the

defendant emerge to per-

mit intelligent sentenc-

3. A separate hearing con-

fined to penalty may

affirmatively disadvan-

tage defendants________

Conia nests sitind die nenceaknnteancees

Appendix A: Statutes involved _---...----...__.

Appendix B: Initial introduction of jury discretion

to set life sentence for murder and/or other capi-

tal offenses (none providing statutory stand-

SID ai kn dah init Od ARO RED Kndmngnchnkenne

Appendix C: States authorizing jury to exercise

discretion in unitary trial to set sentence for

murder at death or life imprisonment (none pro-

viding statutory standards) -_____...__-_____-

Appendix D: States authorizing jury to exercise

discretion in separate, post-guilt proceeding to

set sentence for murder at death or life imprison-

ment (none providing statutory standards) ____- ,

Appendix E: Federal civil statutes authorizing

discretion in imposing capital punishment (none

providing statutory standards) -__--_.....----

Appendix F: Offenses under the Uniform Code of

Military Justice punishable by death or such

other punishment as a court martial may direct -

Appendix G:

Model Penal Code § 210.6. _--........------.

Study Draft of a New Federal Criminal Code

111

114

125

126

128

132

136

14]

Cases:

CITATIONS

Anderson, In re, 69 Cal. 2d 613, 73 Cal. Rptr.

21, 447 P. 2d 117 (1968)..-..-.-....----- 46

Andres v. United States, 333 U.S. 740 (1948).. 38,

39, 41, 47

Andrews v. Schwartz, 156 U.S. 272 (1895) __-_- 80

Ashbrook v. State, 49 Ohio App. 298, 197 N.E.

DRG CRUE s wamcescnccconcvecaticdusecus 100

Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567

(ieee ncn a slicnccaccudncabekuuas haus 46

Baldwin v. New York, 399 U.S. 66 (1970). 45, 63, 75

Bell v. Patterson, 279 F. Supp. 760 (D. Colo.),

affirmed, 402 F. 2d 394 (C.A. 10, 1968)_... 29,

46, 85, 86, 87, 99

Betts v. Brady, 316 U.S. 455 (1942)___...__- 28

Brady v. United States, 397 U.S. 742 (1970)__ 102, 103

Brown v. Walker, 161 U.S. 591 (1896)-_..__-- 96

Brown v. United States, 356 U.S. 148 (1958)_. 98

Bruton v. United States, 391 U.S. 123 (1968)_. 67, 92

Calloway v. United States, 399 F. 2d 1006

(C.A.D.C.), certiorari denied, 393 U.S. 987

Calton v. Utah, 130 U.S. 83 (1889)_____-- 38,

Carter v. Jury Commission of Greene County,

S06 UD. SEO (IGF i cso ec

Coleman v. Alabama, 389 U.S. 22 (1967) _ _ -_-

Coleman v. United States, 334 F. 2d 558

Ces Sncaneccasesnanntitnaden

Coleman v. United States, 357 F. 2d 563

Cele WOU ac nw alndds cuatunesdeoante

Commonwealth v. Bell, 417 Pa. 291, 208 A. 2d

GPG os Cancecdbadncbuvscdeieuceddnen 118

Commonwealth v. Ross, 413 Pa. 35, 195 A. 2d

Ge We cabtbnlatasdiduunctccendacasun 43

Contee v. United States, 410 F. 2d 249

PSs MERe cikidcacdukiccebeanuabe 85

S$ S$ &R BSB

Cases—Continued he

Cook v. Willingham, 400 F. 2d 885 (C.A. 10,

Co a et eee Es ee? Sen 79

Crow Dog, Ex parte, 109 U.S. 556 (1883)... 3

Duisen v. State,—Mo.—, 441 S.W. 2d 688

(BQG0).....---.....-.-.---.-------- +. 47, 60

Duncan v. Louisiana, 391 U.S. 145 (1968)... 63, 67

Ernst, Petition of, 294 F. 2d 556 (C.A. 3),

certiorari denied, 368 U.S. 917 (1961)---- 46, 100

Ferguson v. Georgia, 365 U.S. 570 (1961) -- 93, 96, 100

Fitzgerald v. Peyton, 303 F. Supp. 467 (W.D.

Wa. BOB. cai ohn 2 eas eh be dh nk ees 31

Florida ex rel. Thomas v. Culver, 253 F. 2d

507 (C.A. 5), certiorari denied, 358 U.S.

PR ac5s ch ceaecoensnvenasseanens 46

Frady v. United States, 348 F. 2d 84

(C.A.D.C.), certiorari denied, 382 U.S. 909

CRB oGS1LL. 205 ~ enol dthi-cenwe 88, 90, 115, 123

Frank v. United States, 395 U.S. 147 (1969).. 110

Giaccio v. Pennsylvania, 382 U.S. 399 (1966).. 31

Gideon v. Wainwright, 372 U.S. 335 (1963) --

Gohlston v. State, 143 Tenn. 126, 223 S.W. 839

ead eeeenacnnnedagnneeh 35

Gore v. United States, 357 U.S. 386 (1958)... 80

Gregg v. United States, 394 U.S. 489 (1969).. 79

Harrison v. United States, 392 U.S. 219 (1968) -

Hill v. United States, 368 U.S. 424 (1962) -_-_-

Holmes v. United States, 363 F. 2d 281 (C.A.

ES y tte Pe aR 88

Howard v. Fleming, 191 U.S. 126 (1903) ---.-- 82

Hunter v. State—Tenn.—, 440 S.W. 2d 1

(GT ORR aise a LES Eres een 47, 60

Jackman v. Rosenbaum Co, 260 U.S. 22 (1922). 44

Jackson v. Denno, 378 U.S. 368 (1964) ---.---- 67

Jackson v. State, 225 Ga. 790, 171 S.E. 2d 501

tinued Page

Johnson v. Commonwealth, 208 Va. 481, 158

S.E. 2d 725 (1968), petition for certiorari

dismissed pursuant to Rule 60, 396 U.S.

G88 (10BD) .. ..ccccaccccdcescnoscene---- 47, 88

Johnaon v. United States, 225 U.S. 405 (1912). 82

Jones v. Staie, 416 8.W. 2d 412 (Tex. Crim.

App. 1967)....------------------------- 123

Kemmier, In re, 136 U.S. 436 (1890)-..------ 32

Louisiana ex rel. Francis v. Resweber, 329 U.S.

488 (1069). .0 cncccnccccncccccccetnsesee 32

McCants v. State, 282 Ala. 397, 211 So. 2d 877

(1968), pending on petition for certiorari,

No. 5009 Misc., O.T. 1970...-.---------- 46

McKane v. Durston, 153 U.S. 684 (1894) ----- 80

McMann v. Richardson, 397 U.S. 759

(1970) .......------------------------ 102, 103

Manor v. State, 223 Ga. 594, 157 S.E. 2d 431

| hig staligpedie aieendlaninbien > 61

Mathis v. State, 283 Ala. 308, 216 So. 2d 286

(1968) ......-.----------+-------------- 88

Marwell v. Bishop, 398 F. 2d 138 (C.A.8,

1968), vacated, 398 U.S. 262 (1970)--.---- 46, 87

Miller v. State, 224 Ga. 627, 163 S.E. 2d 730

(1008) icin cnwinddncscnareenasoneente onan 46

North Carolina v. Pearce, 395 U.S. 711 (1969) +5,

82, 108

0’Callahan v. Parker, 395 U.S. 258 (1969).... 140

Parker v. North Carolina, 397 U.S. 790 (1970). 102

Parman v. United States, 399 F. 2d 559 (C.A.

D.C.), certiorari denied, 393 U.S. 858

(1968)...--.--------------------------- 85

People v. Bandhauer, 1 Cal. 3d 609, 83 Cal.

Rptr. 184, 463 P. 2d 408 (1970)---------- 61

People v. Dusablon, 16 N.Y. 2d 9, 261 N.Y.S.

2d 38, 209 N.E. 2d 90 (1965) -.------------ 121

Cases—Continued

People v. Fitepatrick, 308 N.Y.S. 2d 18 (Co,

Ct. 1970)

wow nennenennsensonnecnne-astns 47

People v. Floyd, 1 Cal. 3d 694, 83 Cal. Rptr.

608, 464 P. 2d 64 (1970)__---.------___. 118

‘People v. Hicks, 287 N.Y. 165, 38 N.E. 2d

ks 2k reed iereg tremens Aun mek oe SRC 2 7

People v. Hurst, 42 Ill. 2d 217, 247 N.E. 2d

GR ice cknkeacsececcpetseadiscscs 123

People v. Kelley, 44 Ill. 2d 315, 255 N.E. 2d

Sr eee ica Ghent ititeedss coe 123

People v. McGautha, 70 Cal. 20770, 76 Cal.

Rptr. 434, 452 P. 2d 650 (1969), certiorari

granted, 398 U.S. 936 (1970)......_...__- 1

People ex rel. McKevitt v. District Court,

—Colo.—, 447 P. 2d 205 (1968) ____--- 88, 95, 99

Pope v. United States, 372 F. 2d 710 (C.A. 8,

1967), vacated, 392 U.S. 651 (1968)__ 46, 88, 113

Pope v. United States, 392 U.S. 651 (1968)... 138

Powell v. Alabama, 287 U.S. 45 (1932)_.---- 28

Powell v. Texas, 392 U.S. 514 (1968) _---_--- 110

Raffel v. United States, 271 U.S. 494 (1926)... 9%

Reid v. Covert, 354 U.S. 1 (1957)_..--------- 28

Schwab v. Berggren, 143 U.S. 442 (1892).... %

Scott v. United States, 419 F. 2d 264 (C.A.D.C.

1969) __...--- ois i hd eb A AS bg Dee 48, 80

Segura v. Patterson, 402 F. 2d 249 (C.A. 10,

SEs « cnbincede tee sdeene 46, 62, 87, 95, 99, 106

Simmons v. United States, 390 U.S. 377 (1968). 98

Sims v. Eyman, 405 F. 2d 439 (C.A. 9, 1969). 46,

109, 111, 112, 116

Smith v. State, 487 S.W. 2d 835 (Tex. Crim.

SE Cth es cane bode a cae nse kate 122

Solesbee v. Balkcom, 339 U.S. 9 (1950) -_------ 29, 79

Specht v. Patterson, 386 U.S. 605 (1967).. 79, 93, 94

Spencer v. Texas, 385 U.S. 554 (1967) - ------ 31,

38, 44, 67, 84, 86, 92, 98, 115, 116

—

ntinued Page

State v. Crampton, 18 Ohio St. 2d 182, 248 N.E.

2d 614 (1969), certiorari granted, 398 U.S.

986 (1970). -.-.------------------------ 2, 100

State v. Forcella, 52 N.J. 263, 245 A. 2d 181

(1968), pending on petition for certiorari,

No. 5011 Misc., O.T. 1970_. 47, 69, 88, 115, 116

State v. Johnson, 34 N.J. 212, 168 A. 2d 1,

appeal dismissed, 368 U.S. 145, certiorari

denied, 368 U.S. 933 (1961)---.---------- 29, 47

State v. Kelbach, 23 Utah 2d 231, 461 P. 2d 297

(1969) ...-.----++--=+--+----------- 47, 88, 95

State v. Latham, 190 Kan. 411, 375 P. 2d 788

(1962), certiorari denied, 373 U.S. 919 (1963) - 47

State v. Maloney, 105 Ariz. 348, 464 P. 2d 793

(1970) «o sennnns- nn ccewnest---pspeesrs- 81

State v. Roseboro, 276 N.C. 185, 171 S.E. 2d

886 (1970), pending on petition for certiorari

No. 5178 Misc., O.T. 1970__------------- 47, 61

State v. Smith, 74 Wash. 2d 744, 446 P. 2d

571 (1969), pending on petition for cer-

tiorari, No. 5034 Mise., O.T. 1970... 47, 69, 123

State v. Walters, 145 Conn. 60, 138 A. 2d 786,

appeal dismissed and certiorari denied, 358

ee Ff: | ee rere: eee 46

State v. Worthy, 239 N.C. 449, 123 S.E. 2d 835

(ROD iain wits dob pce -nacsdwnesnnsonnsss 61

Stephens v. Turner, 421 F.2d 290 (C.A. 10,

| a ee es are enn 48, 82

Trop v. Dulles, 356 U.S. 86 (1958)----------- 65

United States v. Chapman, 420 F. 2d 925 (C.A.

GS I ain oak ctecncencincncnsceasstness 79

United States v. Curry, 358 F. 2d 904 (C.A. 2),

certiorari denied, 385 U.S. 873 (1966). 87, 88, 115

United States v. Gross, 416 F. 2d 1205 (C.A. 8,

1969), certiorari denied, 397 U.S. 1013

Cases—Continued 0 ie

United States v. Huff, 409 F. 2d 1225 (C.A. 5), ©

certiorari denied, 396 U.S. 857 (1969) _- ___ 85, 9g

United States v. Jackson, 390 U.S. 570 (1968). 33,

87, 115, 117, 138

United States v. Kee Ming Hsu, 424 F. 2d 1286

ay EES Spat pei ett ae petty 79

United States ex rel. Scoleri v. Banmiller, 310

F. 2d 720 (C.A. 3, 1962), certiorari denied,

ee 01 I conan eensccaskse cts 88

United States ex rel. Smith v. Nelson, 275 F.

Supp. 261 (N.D. Calif. 1967)_.....-.....- 46

United States ex rel. Thompson v. Price, 258 F.

2d 918 (C.A. 3), certiorari denied, 358 U.S.

ip al ap ly | ab lig el 3 amo hep 87

United States v. Trigg, 392 F. 2d 860 (C.A. 7),

certiorari denied, 391 U.S. 961 (1968) _____- 79

United States v. White, 225 F. Supp. 514

CE Metre cnc oekcbate eset suas 115

Walz v. Tax Commission, 397 U.S. 664 (1970).. 43

Ward v. California, 269 F. 2d 906 (C.A. 9,

ee ee ee eee adeheacsd 121

Washington v. Texas, 388 U.S. 14 (1967)_--. 100

Weems v. United States, 217 U.S. 349 (1910)__ 109

Wilkerson v. Utah, 99 U.S. 130 (1879) -___-_- 32, 38

Williams v. Florida, 399 U.S. 78 (1970) _-_ 45, 68, 105

Williams v. New York, 337 U.S. 241 (1949). 26,

28, 79, 93, 94, 109, 121

Williams v. Oklahoma, 358 U.S. 576 (1959)-..27,

79, 93, 109

Williams v. Oklahoma City, 395 U.S. 458

Wilson v. State, 225 So. 2d 321 (Fla. 1969) ___ 46, 61

Winston v. United States, 172 U.S. 303 (1899).. 38,

39, 54, 61, 62

Witherspoon v. Illinois, 391 U.S. 510 (1968)_- 32,

38, 64, 65, 66

Federal Statutes and Rules: hited

Act of January 15, 1897, c. 29, 29 Stat. 487_._ 129

Act of March 22, 1962, Pub. L. 87-423,

EL APP RN is bite tine wannwadbdosmtaatlens 131

Alaska Criminal Code, Act of March 3, 1899,

-c. 429, 30 Stat. 1253... ....-2.-.22-_-- 8. 129

D.C. Code Ann. § 22-2404 (1967)_...._____- 133

Pod. BR. Card. GO) s.... ..2i05di.2 86

a e ” Sy es eee eee ee 86, 87

- Fed. B. Cot PS ki 2. cect 95

Uniform Code of Military Justice:

Art. 85, 10 U.S.C. § 885....._..__.___- 140

Art. 90, 10 U.S.C. § 890____.___._____- 140

Ast. 04, 10.U B00. 6608... 2i.6 cel 140

Art. 99, 10 U.S.C. § 899__......._____- 140

Art. 100, 10 U.S.C. § 900___....._____- 140

Art. 101, 10 U.S.C. § 901___....._____- 140

Art. 102, 10 U.S.C. § 902_...___.____-_- 140

Art. 104, 10 U.S.C. § 904._._..._.____- 140

Art. 106, 10 U.S.C. § 906__.__________- 140

Ast. 2 De ae eee... «nw n~----... 140

Ast. 138,130 USA $9182.22. 2.5... 140

Ant..306, 10 UBC: § O16............... 140

Art. 120, 10 U.S.C. § 920_..._._______- 140

Bets Weer lt ili sis ne 139

NE OS ee ean Oe tes Qe ae 139

OR ee | RCSL pee rept eet Grane 138

es Oe ics Zc 139

We SA. no Bi ow ldecs us 139

ie Meee RUN edi cues lasek 138

Beene Beebe ke cl ccdioiu ius 139

Re eres DIRS oben i clad edb 139

ears BEL be cleiide eet cwsuls 139

Ie ae We oh ace een l. ockci.t 139

be ti | a a a go a a 138

Ne, We uot i aye 139

We ae Os Chain ah ene Ghatiad 138

Federal Statutes and Rules—Continued

2 UBC. $1967G)e- 2. Sone sseeccduag

28 DBAS § WOhei) 225i ci see i.

URE BOO i uke es

3 UBC 4O0G) see ct we

Pe EE EE ae

State Statutes and Rules:

Ala. Code tit. 14, § 318 (1958)_.....----.__- 132

Ala. Penal Code of 1841, Acts 1841, p. 122... 198

Alaska Stat. § 11.15.010 (Supp. 1968)__.__.. 132

Alaska Stat. § 11.15.020 (Supp. 1968)__..... 132

Ariz. Terr. Acts 1885, No. 70_.....---.--.-- 129

Ariz. Rev. Stat. Ann. § 13-453 (1956)______- 132

Ark: Atte WO16, BOCHT 022 ised sal. 130

Ark. Stat. § 41-2227 (1964)_._...._...______ 132

Ark. Stat. § 43-2153 (1964) _.........-.___. 132

Cal. Amendatory Acts 1873-1874, ch. 508___ 37, 129

Cal. Penal Code § 190 (West, Supp. 1970)_ 2, 126,

136

Cal. Penal Code § 190.1 (West, Supp. 1970).. 2,4,

86, 118, 126, 136

Cal. Penal Code:§ 2086. .o..22.5.004.1.u5.. 86

Cal. Stat. 1957, ch. 1968, p. 3509__-_...___- 136

Colo. Laws 1901, ch. 64. ....-..----------- 129

Colo. Rev. Stat. § 40-2-3 (1963)_......._--- 132

Conn. Gen. Stat. § 53-10 (1968)_.-...-_---- 136

Conn. Penal Code §. 90. ......5....2....... 42

Conn. Penal Code, Pub. Acts 1969, No. 828_ 119, 136

Conn. Pub. Acts 1951, No. 369_._...-_----- 131

Conn. Pub. Acts 1963, No. 588__....------- 136

Dakota Terr. Laws 1883, ch. 9___---------- 129

Del. Code Ann. tit. 11, § 571 (Supp. 1968)... 132

Del. Code Ann. tit. 11, § 3901 (Supp. 1968)_._ 132

Dal. Lawe 10917, cb. 906... ....4.25.....2.i. 130

Fla. Acts 1872, No. 15, ch. 1877__..-------- 129

State Statutes and Rules—Continued

Fla. Stat. Ann. § 782.04 (1965)

Fla. Stat. Ann. § 919.23 (1944)

Ga. Acts 1866, No. 208

Ga. Acts 1866, No. 210

Ga. Code Ann. § 26-1101 (Supp. 1969)

Ga. Code Ann. § 26-3102 (Supp. 1969)

Ga. Code 1861, § 4220

Ga. Criminal Code, Laws 1968, p. 1249

Ga. Laws 1970, No. 1333

Hawaii Laws 1955, Act 239. ____....______-

Hawaii Rev. Stat. § 748-4 (1968)

Ida. Code § 18-4004 (1948)

Ida. Gen. Laws 1911, ch. 68

Ml. Ann. Stat: ch. 38, § 1-7 (Smith-Hurd,

. & 123, 133

Ill. Ann. Stat. ch. 38, § 9-1 (Smith-Hurd,

Ill. Criminal Code, Laws 1961, p. 1983

iil. Pub. Laws 1867, p. 90

Iowa Code Ann. § 690.2 (Supp. 1969)

Towa Laws 1878, ch. 165

Ind. Ann. Stat. § 9-1819 (1956)

Ind. Ann. Stat. § 10-3401 (1956)

Ind. Rev. Stat. 1881, § 1904

Kan. Criminal Code, Laws 1969, ch. 180

Kan. Laws 1935, ch. 154

Kan. Stat. Ann. § 21-3401 (Supp. 1969)

Kan. Stat. Ann. § 21-4501 (Supp. 1969)__._ 89, 133

Kan. Stat. Ann. § 21-4606 (Supp. 1969)

Kan. Stat. Ann. § 21-4607 (Supp. 1969)

Ky. Gen. Stat. 1873, ch. 29

Ky. Pub. Acts 1869, ch. 1659

Ky. Rev. Stat. § 435.010 (1969)

Ky. R. Crim. P. § 9.84 (1969)

La. Acts 1846, No. 139

La. Code Crim. P. Ann. art. 817 (West 1967). 133

xIV

State Statutes and Rules—Continued gis

La. Stat. Ann. § 14.30 (1951)_-..-.....____. 133

Me. Rev. Stat. Ann. tit. 17, § 2651 (1964) ___

Md. Ann. Code art. 27, § 413 (1967). __..__.

Md. Laws 1916, ch. 214.___....---_-.____.

Mass. Acts 1951, ch. 203..-...----.--.._._.

Mass. Ann. Laws ch. 265, § 2 (1968)_._.___-

Mich. Comp. Laws § 750.316 (Supp. 1970). _.

Minn. Gen. Laws 1868, ch. 88_.........___.

Minn. Stat. Ann. § 609.185 (1964). __.._____

Miss. Code Ann. § 2217 (1956) _-_-._..-___.

Miss. Code Ann. § 2536 (1956). ..-......__.

Mies. Laws 1872, ch. 76... .........-...-...

Mo. Ann. Stat. § 546.410 (1953)_.......____

Mo. Ann. Stat. § 559.030 (1959)_.......____

REO. DOWD BEG, Br DOG: on ennnnnctstsosands

Mont. Laws 1907, ch. 179...........-.....-

Mont. Rev. Codes § 94-2505 (1969)_..______

Neb. Laws 1893, ch. 44.....-...-.-._--___-

Neb. Laws 1969, ch. 213____....------- 42, 90, 134

Neb. Rev. Stat. § 28-401_.._..-.._...____-

Nev. Rev. Laws 1912, § 6386__..._...._____-

Nev. Rev. Stat. § 200.030 (1969) ___._.____-

PU Ee. Ree BOR Gs BEE sisi, cic cininive wetions

N.H. Rev. Stat. Ann. §585:4 (1955)__...___-

N.J. Pub. Laws 1916, ch. 270_._.._..-____--

N.J. Stat. §2A: 113-4 (1951)._...__....___-

N.M. Laws 1939, ch. 49......-......-----.-

N.M. Laws 1969, ch. 128__..........-- 42, 90, 134

N.M. Stat. Ann. §40A-2-1 (1964).._______- 134

N.M. Stat. Ann. §40A-29-2 (1964)._______- 134

N.M. Stat. Ann. §40A-29-2.1 (Supp. 1969).. 184

N.Y: Dawe 1007; Gi OT... Bid ene ndetbex 130

Iu. © Rae BOGE, Oh: GUE. sk cnc onde 136

N.Y. Penal Law §65.00 (1967)_........___-_- 42

N.Y. Penal Law § 125.30 (1967)......._._-- 136

N.Y. Penal Law § 125.35 (1967)...__.___- 119, 136

State Statutes and Rules—Continued

N.C. Gen. Stat. §14-17 (1969)

N.C. Sess. Laws 1949, ch. 299 )

N.D. Cent. Code § 12-06-06 (Supp. 1969).... 132

N.D. Cent. Code § 12-27-13 (1960)

93 Ohio Laws 223 (1898)

Ohio Rev. Code Ann. § 2901.01 (Page 1954) ___ 2,

83, 127, 134

Ohio Rev. Code Ann. § 2947.05 (Page 1954). 95

Okla. Stat. Ann. tit. 21, § 707 (1958)

Okla. Terr. Stats. 1890, ch. 25

Ore. Gen. Laws 1920, ch. 19

Ore. Rev. Stat. § 163.010 (1967)

Pa. Laws 1794, ch. 257

Pa. Pub. Laws 1925, ch. 411

Pa. Pub. Laws 1959, No. 594

Pa. Stat. tit. 18, § 4701 (1963)

R.I. Gen. Laws § 11-23-2 (1969)

S.C. Acts 1878, No. 541

S.C. Acts 1894, No. 530

S.C. Code § 16-52 (1962) _-

S.D. Comp. Laws § 22-16-12 (1967)

§.D. Comp. Laws § 22-16-13 (1967)

S.D. Comp. Laws § 23-48-16 (1967)

Tenn. Code Ann. § 39-2405 (1956)

Tenn. Code Ann. § 39-2406 (1956)

Tenn. Laws 1837-1838, ch. 29

Tex. Acts 1965, ch. 722

Tex. Code Crim. P. Ann. art. 37.07 (Supp.

119, 137

Utah. Code Ann. § 76-30-4 (1953)

Utah Penal Code of 1876, Comp. Laws 1876,

1910, No. 225

Vt. Stat. Ann, tit. 13, § 2303 (Supp. 1969)... 135

XVI

State Statutes and Rules—Continued

We. Rate 2006, Wee lpn ce coe cc ccce cd: 130

Va. Code § 18.1-22 (1960). _.---..----.___- 135

Va. Code § 19.1-250 (1960) .-.---------_ 135

Wash. Rev. Code § 9.48.030 (1956) _________ 135

Wash. Sess. Laws 1909, ch. 249.....________ 130

Wash. Sess. Laws 1919, ch. 112_-.._._______ 130

W. Va. Code 1870, ch. 159. ..---------.2-.- 128

W. Va. Code § 61-2-2 (1966)_..-....-..___. 132

Wis. Stat. Ann. § 940.01 (1958)_........____ 132

Wyo. Sess. Laws 1915, ch. 87...-..-..--._.. 130

Wyo. Stat. § 6-54 (1957). ..------------2. 135

Foreign Statute:

Great Britain, Homicide Act of 1957, 5 & 6

By Oe Gh Be te Pitanickenescncccensess 54

Miscellaneous:

Appellate Power to Reduce Jury-Determined

Sentences, 23 Rutgers L. Rev. 490 (1969)_. 6

Appellate Review of Primary Sentencing De-

cisions: A Connecticut Case Study, 69 Yale

Ed IG as aa aeons cp ewevnades + o-

American Bar Ass’n, Project on Minimum

Standards for Criminal Justice: Standards

Relating to Sentencing Alternatives and

Procedures (Tent. Draft 1967)_........__- 28, 54

A.L.I., Model Penal Code (Tent. Draft No. 9,

WED) nn Sin dc ivdcnwssnpicnws 34, 42, 57, 58, 61, 88

A.L.I., Model Penal Code (Proposed Official

Draft 1062)............. 42, 56, 74, 75, 77, 88, 141

36 A.L.I., Proceedings (1959)........--- 57, 58, 116

Bedau, The Death Penalty in America (rev.

OB, FOGG i Geedeeyenga aden cncaeens 34, 49, 60, 61

Bifurcated Trial Procedure and First Degree

Murder, 3 Suffolk U.L. Rev. 628 (1969).. 117

Bradford, An Enquiry How Far the Punish-

ment of Death Is Necessary in Pennsylvania

TED ccoscscdcevevcaseqsscccsoncsceuum 34

xvi

Miscellaneous—Continued

California and Pennsylvania Courts Divide on

Question of Admissibility of Details of Prior

Unrelated Offenses at Hearing on Sentencing

Under Split Verdict Statutes, 110 U. Pa. L.

The Capital Punishment Controversy, 60 J.

Crim. L., Criminol. & Pol. Sci. 360 (1969) -

The Changing Role of the Jury in the Nineteenth

Century, 74 Yale L. J. 170 (1964)

Dawson, Sentencing: The Decision As to the

Type, Length, and Conditions of Sentence

(Am. Bar Foundation 1969) 27, 42, 58, 60

Executive Clemency in Capital Cases, 39

N.Y.U.L. Rev. 136 (1964)

Frankfurter, Of Law and Men (Elman ed.

69, 70, 112

George, Aggravating Circumstances in American

Substantive and Procedural Criminal Law, 32

U.M.K.C.L. Rev. 14 (1964)

Goldberg & Dershowitz, Declaring the Death

Penalty Unconstitutional, 83 Harv. L. Rev.

1773 (1970)

Great Britain, Royal Commission on Capital

Punishment 1949-1953, Report (1953)

Great Britain, Select Committee on Capital

Punishment, Report (1930)

Hart, The Aims of the Criminal Law, 23 Law &

Contemp. Prob. 401 (1958)

405-388—70——2

Miscellaneous—Continued

Jury Sentencing in Virginia, 53 Va. L. Rev.

BG AED 4.00 <ne nsqunnsinge sno seanensy 30, 31

Kadish, Legal Norm and Discretion in the Police

and Sentencing Process, 75 Harv. L. Rev.

A MUD cucndntwetinn sh enHe<nee 28

Kalven, A Study of the California Penalty Jury

in First-Degree-Murder Cases: Preface, 21

Stan. L. Rev. 1297 (1969) ....-.--.---.... 74

Kalven & Zeisel, The American Jury (1966). 29,

59, 61, 68, 70, 71, 72, 77, 101, 120

Knowlton, Problems of Jury Discretion in

Capital Cases, 101 U. Pa. L. Rev. 1099

[i aiccdhnainniontenesson 38, 100, 112, 115

Michael & Wechsler, Criminal Law and Its

Administration (1940). .................. 59

National Commission on Reform of Federal

Criminal Laws, Study Draft of a New Fed-

eral Criminal Code (1970) --..---------_- 42,

56, 58, 80, 88, 107, 145

Packer, Making the Punishment Fit the Crime,

77 Harv. L. Rev. 1071 (1964) __-_._...___- 110

Poe, Capital Punishment Statutes in the Wake

of United States v. Jackson: Some Unresolved

Questions, 37 G.W.L. Rev. 719 (1969) ____- 33

Powers, Parole Eligibility of Prisoners Serving

a Life Sentence (Mass. Correctional Ass’n

President’s Commission on Law Enforcement

and Administration of Justice, Task Force

Report: The Courts (1967)_.....-.------ 30, 80

President’s Commission on Law Enforcement

and Administration of Justice, The Chal-

lenge of Crime in a Free Society (1967). 28, 32

—

xrx

\Miscellaneous—Continued Page

Schwartz, Punishment of Murder in Penn-

sylvania, in II Royal Comm’n on Capital

Punishment, Memoranda and Replies to a

Questionnaire 776 (1952) _--....---------- 37

Sentencing Disparity: Causes and Cures, 60

J. Crim. L., Criminol., & Pol. Sci. 182 (1969). 27, 42

Stephen History of the Criminal Law of

England (1883)......................--- 52

A Study of the California Penalty Jury in

First-Degree-Murder Cases: Standardless

Sentencing, 21 Stan. L. Rev. 1302 (1969)-._ 51,

73, 77, 117

The Supreme Court and Capital Punishment—

From Wilkerson to Witherspoon and Beyond,

14 St. L. U. L. Rev. 463 (1970) ---------- 62

Time Magazine, May 25, 1970------------- 59

The Two-Trial System in Capital Cases, 39

1. VCs ees BP Cc cnncccancceses 58, 118

U.S. Bureau of Prisons, National Prisoner Sta-

tistics Bulletin: Capital Punishment 1930-

1968 (August 1969) . ......-......-.--- 138, 140

Wechsler, Codification of Criminal Law in the

United States: The Model Penal Code, 68

Colum. L. Rev. 1425 (1968)-.--.---------- 52

Wechsler, Degrees of Murder and Related As-

pects of the Penal Law in the United States,

in II Royal Comm’n on Capital Punishment,

Memoranda and Replies to a Questionnaire

FE Gn won ces onnencsnnccccansenssce 56

Wechsler, Symposium on Capital Punishment,

gee S 3; | ee 51

Weigel, Appellate Revision of Sentences: To

Make the Punishment Fit the Crime, 20 Stan.

Bi, Be GE an cov n kt ci diacecusnn

Yn the Supreme Gourt of the Guited States

OcToBER TERM, 1970

No. 203

Dennis COUNCLE MoGAUTHA, PETITIONER

Vv.

StaTEe oF CALIFORNIA

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

No. 204

JAMES Epwanp CRAMPTON, PETITIONER

StaTe oF OHIO

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF OHIO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the Supreme Court of California

in People v. McGautha (Mc.A. 249-265) * is reported

at 70 Cal. 2d 770, 76 Cal. Rptr. 434, 452 P. 2d 650.

1 References to the printed appendices in the McGautha case

and in the Crampton case are abbreviated herein as “Mc.A.”

and “C.A.”, respectively. References to the transcript of record

in the Crampton case will be given as “R.”.

(1)

The opinion of the Supreme Court of Ohio in State

v. Crampton (C.A. 83-88) is reported at 18 Ohio St.

2d 182, 248 N.E. 2d 614.

JURISDICTION

The judgment of the Supreme Court of California

in McGautha was filed on April 14, 1969, and rehear-

ing was denied on May 14, 1969 (Mc.A. 266). On

June 21, 1969, the petition for a writ of certiorari

was filed. Certiorari was granted, 398 U.S. 936, on

June 1, 1970 (Mc.A. 267), limited to Question 1 of the

petition.

The judgment of the Supreme Court of Ohio in

Crampton was filed on June 11, 1969 (C.A. 82), and

the petition for a writ of certiorari was filed on J uly 31,

1969. Certiorari was granted, 398 U.S. 936, on June 1,

1970 (C.A. 89), limited to Questions 2 and 3 of the

petition.

This Court’s jurisdiction rests in both cases on 28

U.S.C. 1257(3).

By order of June 29, 1970, the Court invited the

Solicitor General to submit a brief expressing the

views of the United States in these two cases, 399

U.S. 924. This brief is submitted in response to that

order.

STATUTES INVOLVED

Sections 190 and 190.1 of the California Penal Code

and Section 2901.01 of the Ohio Revised Code are set

forth in Appendix A, infra, pp. 126-127.

QUESTIONS PRESENTED

In both cases:

1. Whether the principles of due process and equal

protection require that a State which provides for a

jury to determine if a death sentence should be im-

posed after conviction for first degree murder in a

particular case must prescribe statutory standards to

guide or govern that sentencing decision.

In Crampton only:

9. Whether a defendant’s privilege against self-

incrimination is violated by trying him under a stat-

ute that authorizes the jury, as part of a single

proceeding, to find the defendant guilty of first degree

murder and also to limit his punishment, after such

a finding, to life imprisonment in place of the death

penalty.

STATEMENT

I. MC GAUTHA

A. THE CHARGES

By information filed on April 6, 1967, petitioner

Dennis Councle McGautha and co-defendants Wil-

liam Rodney Wilkinson and Fannie Lue Smith were

charged with the armed robbery of one Pon Lock

on February 14, 1967, and with the armed robbery

and murder of Benjamin Smetana on the same date

(Mc.A. 1-3). Petitioner McGautha was also charged

with four prior felony convictions: felonious theft,

robbery, murder without malice, and robbery by as-

ee RIN mencnee ene ee

sault (Mc.A. 3-4).? McGautha and his co-defendant

Wilkinson went to trial on the information, after

Miss Smith’s case was severed (Mc.A. 6, 34-35),

B. THE GUILT TRIAL

The evidence established that at about 2:30 p.m.

on February 14, 1967, McGautha and Wilkinson

entered a market in Los Angeles and, brandishing

pistols, kept one customer at bay while taking almost

$300 from the owner, Mrs. Pon Lock.

At approximately 5:30 that same afternoon, Me-

Gautha and Wilkinson entered another market in

Los Angeles, operated by Mr. and Mrs. Benjamin

Smetana, again intent on armed robbery. While a

customer was forcibly restrained by one of the rob-

bers, the other one struck Mrs. Smetana on the side

of her head and she fell to the floor. A shot was fired,

and Mr. Smetana fell mortally wounded. The driver

of the get-away car testified that McGautha admitted

shooting the shopkeeper (Mc.A. 250-251).

The jury found both McGautha and Wilkinson

guilty as charged of two counts of armed robbery and

one count of first degree murder (Mc.A. 11-14),

C. THE PENALTY TRIAL

On the following day, a separate proceeding was

commenced before the same jury, pursuant to Section

190.1 of the California Penal Code, to enable the jury

*In accordance with California practice, McGautha admitted

these four prior convictions in a proceeding in chambers so that

the fact of the convictions would not come before the jury at

the guilt trial (Mc.A. 35-37).

to consider evidence on whether to fix life imprison-

ment or death as the sentence on the murder convic-

tions (Mc.A. 15).

The State’s case at the penalty phase was limited

to the introduction of a file of documents from Texas

containing records of petitioner McGautha’s prior

felony convictions, photographs, and fingerprints

(Mc.A. 81).

D. CO-DEFENDANT’S CASE ON PUNISHMENT

Co-defendant Wilkinson then took the stand. He

testified that at the time of the trial he was twenty-

six years old, born in Mississippi the son of a white

father and a Negro mother. He had attended a Negro

school where his classmates teased him about his back-

ground. After his father died Wilkinson had to leave

school in the 11th grade in order to help support his

mother, his sisters, and his younger brother (Mc.A.

84-85). At age 18 he enlisted in the Army, and served

without disciplinary action. He was honorably dis-

charged after approximately six months of service

when his 1.Q., somewhere in the eighties, failed to

meet revised Army standards (Mc.A. 85-86).

Wilkinson further testified that after returning

home to Mississippi, and while he was working to

support his family, a girl friend implicated him in a

bad-check episode, but he was not convicted of any

crime (Mc.A. 87). After that he went to California,

where he took a job and rented a room in a boarding

house run by a Baptist minister. He joined the min-

ister’s church and continued his attendance until he

was arrested for the robberies and murder (MeA

87-88).

He had worked steadily for a time, earning promo-

tions and sending support to his family in Mississippj

(Mc.A. 88). All this had changed when in July 1965

he was shot in the back in an unprovoked assault by

a street gang. After his hospital confinement, Wil-

kinson encountered difficulty getting or keeping a

job, and it became necessary for his mother to send

him money. It was during this period when he was

“desperate for money” that Wilkinson met petitioner

McGautha and his associates and the subject of hold-

ups was broached to him (Mc.A. 91-92). Armed with

a broken pistol he had found and never fired, Wil-

kinson testified, he had participated in the two rob-

beries, but denied actually knowing that the stores

were to be held-up until McGautha drew his gun at

each store. Wilkinson denied that he had drawn his

own pistol on either occasion (Me.A. 95-100).

Wilkinson testified that it was McGautha, not he,

who had fired the fatal shot, and that it was Me-

Gautha who had struck Mrs. Smetana (Mc.A. 109, 112,

114, 119).

Wilkinson called five other witnesses on his behalf:

An undercover narcotics agent testified that he had

seen the murder weapon in McGautha’s possession;

he had seen it kept under McGautha’s pillow on one

occasion, and on another occasion witnessed Me

Gautha demonstrating his speed in drawing the gun

from &is waistband, where he carried it (Mc.A. 137-

138). Wilkinson’s girl friend testified that they at-

tended church services together (Mc.A. 142). The

Baptist minister in whose boarding house Wilkinson

had lived testified that Wilkinson attended his church

and had a good reputation in the community. He also

sated that when he visited Wilkinson in jail prior

to trial, Wilkinson said he was horrified at what had

happened and asked the minister to pray for him

(Me.A. 145-147). A police sergeant who had investi-

gated the crime testified that Wilkinson had been co-

operative following his arrest (Mc.A. 151). A former

fellow employee who had also been Wilkinson’s busi-

ness partner in a salvage project described Wilkinson

as an honest, non-violent person who had a good repu-

tation (Mc.A. 157).

E. MC GAUTHA’S CASE ON PUNISHMENT

Petitioner McGautha too testified in his own be-

half. Forty-one years old at the time of the trial, he

admitted to having a “bad” criminal record but denied

that he had shot Mr. Smetana or struck his wife

(Mc.A. 159-160). Although he acknowledged that the

murder weapon was his, he testified that between the

two robberies Wilkinson had expressed concern that

his own automatie could hold only one shell and that for

this reason the two men had traded guns. Thus, Mc-

Gautha testified, it was Wilkinson who had actually used

the pistol to club Mrs. Smetana and to kill her husband

(Mc.A. 160-161).

McGautha also testified that his mother and father

had separated when he was four, that he had been

injured in combat in 1942, that he had worked for

various celebrities, that he had a heart condition, and

that he “regretted”? Mr. Smetana’s death (Me.A,

162-164).

McGautha admitted his prior criminal record but

denied committing two of the robberies for which he

had been convicted and claimed that the murder-with-

out-malice conviction involved only self-defense

(Mc.A. 174-175). McGautha also admitted a guilty

plea in 1964 to a charge of carrying a concealed weap-

on (Mc.A. 177).

Asked why he had lied to the police during their in-

vestigation of the crime, McGautha explained; “Nor-

mally, anyone would have done that, sir.” (Me.A.

180).

McGautha called no other witnesses. Both defend-

ants then rested.

F. CLOSING ARGUMENTS

In closing arguments, the prosecutor stated to the

jury: ‘‘Seriously consider whether or not the death

penalty should be imposed on both defendants and as

to the person who was Benjamin Smetana’s killer fix

the penalty at death.’’ (Mc.A. 206). It was Wilkinson,

the prosecutor argued, who struck Mrs. Smetana with

his own gun, but petitioner MeGautha who, using his

pistol, shot Mr. Smetana (Mc.A. 202). Mention was

also made of McGautha’s prior felony convictions,

including an earlier criminal homicide, and of his re-

fusal to acknowledge his responsibility for those past

crimes (Mc.A. 204-205).

Wilkinson’s counsel emphasized his client’s youth,

his prior unblemished record, his low I.Q., his candor,

and his remorse (Mc.A. 207-211). Petitioner Me-

Gautha’s counsel conceded that his client had a bad

record and that he had told some lies, but asked the

jury to set a life sentence because it was not Mc-

Gautha who had pulled the trigger (Mc.A. 213, 218-

219).

G. JURY INSTRUCTIONS ON PUNISHMENT

In instructing the jury on its responsibility to fix

the penalty, the court advised them that while the law

forbade them to consider mere conjecture, prejudice,

or public feeling, they were free to be governed by

“mere sentiment and sympathy”’ (Mc.A. 222). They

were told that they might also consider ‘‘all of the

evidence of the circumstances surrounding the crime,

of each defendant’s background and history, and of

the facts in aggravation or mitigation of the penalty

which have been received here in court’’ (Mc.A. 222).

But the jurors were also told that they were entirely

free to set the punishment notwithstanding any facts

proved in aggravation or mitigation (Mc.A. 222-223).

They were further instructed that ‘‘the law itself pro-

vides no standard for the guidance of the jury in the

selection of the penalty, but, rather, commits the

whole matter of determining which of the two penal-

ties shall be fixed to the judgment, conscience, and

absolute discretion of the jury’’ (Mc.A. 223).

H. JURY DELIBERATIONS, VERDICT, AND SENTENCE

During their deliberations on the penalty question,

the jury returned to the courtroom several times to

request further instructions and re-readings of testi-

mony. They had Mrs. Smetana’s testimony re-read,

and asked for that portion of the testimony of the

driver of the get-away car that discussed what each

of :he defendants had in his hands when leaving the

Smetana market (Mc.A. 225-226).° After another roe.

reading of a portion of Mrs. Smetana’s

was requested ond allowed (Mc.A. 229-230), the jury

once again interrupted its deliberations to ask for a

re-reading of the entire testimony of two other wit-

nesses, and this was done (Mc.A. 231). After further

deliberations, the jurors returned with a verdict fix-

ing Wilkinson’s penalty at life imprisonment and

petitioner McGautha’s sentence at death (Mc.A. 231-

232).*

On September 15, 1967, Wilkinson was accordingly

sentenced to life imprisonment upon his murder eon-

viction (Mc.A. 31, 235-237). Petitioner McGautha’s

sentencing was postponed until September 29, 1967,

to permit the Probation Department to prenare a

probation report. (Mc.A. 237). On that date, the

court denied McGautha’s motion for a new trial or

for a modification of the penalty verdict, and sen-

tenced him to death (Mc.A. 32-33, 239-248).

II. CRAMPTON

A. THE CHARGE

Petitioner James Edward Crampton was indicted

by a grand jury in Lucas County, Ohio, on March 2,

1967, and charged with murdering Wilma Jean

* Because of difficulty locating the portions desired, the wit-

ness’s entire testimony was re-read to the jury (Mc.A. 228-299).

*Deliberations on the penalty question had begun at 2:12

p-m. on August 24, 1967, and the verdicts were returned at

4:45 p.m. on August 25, 1967 (Mc.A. 224, 231).

Crampton, purposely and with premeditated malice,

on January 17th of that year (C.A. 4).

He pleaded not guilty to the charge and alterna-

tively pleaded not guilty by reason of insanity

(C.A. 4). He was then committed to Lima State

Hospital for one month’s observation, and when the

hospital subsequently reported that Crampton would

be considered sane he was ordered to stand trial

(C.A. 1).

B. THE PROSECUTION’S EVIDENCE

The State’s evidence established the following facts:

Petitioner Crampton had married the deceased ap-

proximately four months prior to her death (R. 45;

(.A. 57). The deceased’s brother testified that about

two months before the killing, Crampton had been

allowed to leave the state hospital where he was un-

dergoing observation to attend the funeral of his

wife’s father. After the funeral, the witness said he

discovered Mrs. Crampton crying because her husband

had taken a knife and run away. In the interim,

Crampton had telephoned the house, and when his

wife warned him to return to the hospital he told

her “If you call the police, I will kill you then get

to your mother’ (R. 23-24, 35). Later that evening,

after Mrs. Crampton and the witness notified the po-

lice, Crampton was picked up by the authorities

(R. 37-38).

A friend of the victim testified that she was at the

victim’s home four days prior to the killing, when

Crampton arrived and kicked and pounded on the

back door until he was admitted (R. 41-42). Cramp-

12 |

ton then pushed his wife into the living room, and

upstairs. His had a knife in one hand and was holding

his wife at the same time. He said if anyone called

the police he would kill them all (R. 42-43, 50). Later

that evening he telephoned and told the witness tp

leave. The witness said she would but would take Mrs,

Crampton with her. At that Crampton said he would

come back to get them all with a gun he had (R, 48),

Later witnesses confirmed that Crampton had made

threats on his wife’s life and that police protection

had been ordered about ten days before the murder

because of Wilma Jean Crampton’s fear of her hus-

band (R. 174, 212, 215).

In the course of the testimony of one of the State’s

witnesses it was brought out that he had first met

Crampton in 1964 while they were both ‘“‘doing time”

in the Michigan State Prison (R. 58); that he had

met Crampton again on January 14, 1967, in Pontiac,

Michigan; that Crampton purchased some ampheta-

mines (R. 61); that Crampton talked of his activities

since his release from the Leavenworth Penitentiary,

including his admission to a hospital for drug addic-

tion (R. 61); that on the evening of January 14 he

and the defendant drove to Gary, Indiana, where

Crampton stole some license plates and put them on

his rented car (R. 62) ; that they checked into a motel

where they pilfered some money from the coin box

of a mechanical vibrator (R. 63); that Crampton

found his wife’s car and towed it away (R. 62-63);

that Crampton burglarized some coin machines and

stole a typewriter at a truck stop (R. 65); that on

-—

the evening of January 15, Crampton broke into a

hospital to get some drugs, and stole some shaving

equipment and a jacket as well (R. 68-69) ; and

that Crampton then forged another prescription for

amphetamines and obtained the drugs from a phar-

macy, unsuccessfully trying the same technique to

cure a different drug for his traveling companion,

the witness (R. 71). After injecting drugs directly

into his vein and after obtaining some more pills at

another drug store, Crampton telephoned his wife in

Toledo, and after the call announced that he and the

witness had to drive there right away (R. 72-73,

108-109).

Crampton and his friend arrived in Toledo in the

early morning hours of January 17 (R. 73). After

frst stopping at his wife’s house, Crampton and the

witness drove to the home of Crampton’s mother-in-

law; they broke in and stole several items including

a Tifle, some ammunition, and a few handguns—in-

duding one later identified as the murder weapon

(R. 76-78). Crampton kept that pistol, a .45 caliber

automatic, with him from then on (R. 79-80).

Crampton then indicated that he suspected that his

wife and her ex-boss were having an illicit affair, and

Crampton and the witness drove around to several

locations, in a car Crampton had just stolen, trying

to find the couple (R. 78-82). As he was driving with one

hand, Crampton fired the automatic out the car win-

dow, commenting that a slug like that could do quite

a bit of damage, and adding “‘If I find them together

I’m going to kill both of them” (R. 80).

405-388—70——3

Later, Crampton located his wife at home by. tele.

phone, and quickly drove out to the home, He told

the witness: ‘‘Leave me off right here in front of the

house and you take the car and go back to the park.

ing lot and if I’m not there by six o’clock in the

morning you’re on your own’’ (R. 82). |

On the following morning the police were sum.

moned to Mrs. Crampton’s home ‘by her daughter,

the child of a previous marriage, when the daughter

was unable to rouse anyone at the house (R. 129-130),

The investigating officer found Mrs. Crampton’s dead

body in an upstairs bathroom. She had been shot in

the face at close range underneath her right eye.

A .45 caliber shell casing was found beside the body.

(R. 132-133, 167-168, 221-222, 230-231). The jacket

Crampton had stolen during the hospital burglary a

few days earlier was found in the living room (R. 69,

79, 204-205, 223, 229).

In the interim, before discovery of his wife’s body,

Crampton had been arrested for driving a stolen car.

Between the bucket seats in the car Crampton was

driving was the murder weapon, a .45 caliber auto-

matic pistol (R. 139-141).

After being advised of his constitutional rights,

Crampton admitted stealing the car and the .45 cali-

ber pistol, and told about the other crimes he had

committed over the past few days; he declined, how-

ever, to discuss his wife (R. 164-166, 170, 180-181,

224-228). A tape recording of one questioning ses-

sion, containing these admissions and a reference to

several years Crampton had spent in prison, was

played before the jury (R. 252-266).

C. THE DEFENSE CASE

As part of the defense case, Crampton’s mother was

called as a witness. She stated he was born in 1926,

making him 41 years old ‘at the time of the trial

(C.A. 49). At age nine she said Crampton had fallen

off an ice truck and injured his head (C.A. 58). He

was raised in a broken home until he left at age 14

because his stepfather did not want him around (C.A.

49). He reportedly was a good student but attended

only one year of regular high school (C.A. 50-51).

Later, after a dishonorable discharge from the Navy,

he completed his high school education in the Jackson

Prison while serving part of a 10-15 year sentence

for robbery (A. 52). He also spent time in Leaven-

worth, his mother testified, for interstate transporta-

tion of a stolen car (C.A. 56). He was also known by

his mother to have been a drug addict since at least

1949 (C.A. 55, 59).

During this period, he had married, had a child,

been divorced, remarried to the same woman, and

again divorced (C.A. 54-56). He married Wilma

Jean Crampton in September 1966, approximately

four months before she was murdered (C.A. 57).

In support of his insanity defense, Crampton in-

troduced a series of hospital studies and reports, to-

gether with reports collected by hospital personnel

from various state correction authorities. These docu-

ments contained a substantial amount of informa-

tion about his background. For instance, it appeared

that Crampton’s intelligence was in the average to

above-average range measuring from 106 to 113 on

various tests (C.A. 24, 40). The documents algo

showed that Crampton had a juvenile record, plus

convictions for grand larceny, armed robbery, and

interstate auto theft, He was a parole violator and

had previously escaped from jail. While in the Navy

he was court-martialed for larceny and impersonat-

ing an officer, and given an undesirable discharge.

After then fraudulently enlisting in the Army, he

was again court-martialed and dishonorably dis

charged. He had a long arrest record and was ad-

dicted to narcotics and amphetamines. Because of

his frequent incarceration, he had no significant em-

ployment record (C.A. 14-15, 21-23, 26-27, 30, 32-33,

42, 46).

One report, based on information given by Cramp-

ton’s wife when he was admitted to a state hospital

for observation about two months prior to her mur-

der, recorded that Crampton had struck her and

threatened her with a knife (C.A. 9).

One of the reports prepared after Crampton was

committed for observation following his insanity plea

recited that he had suspected his wife of infidelity

(C.A. 21). Various reports spoke of Crampton’s claim

that the shooting was accidental; that his wife had

talked about shooting herself if Crampton did not

return to the hospital; that he was gathering up the

guns around the house and had just removed the

clip from one gun when his wife, who was sitting on

the toilet, asked to see it; and that in handing the gun

to her, it somehow discharged, wounding her fatally

in the head (C.A. 21-24).’

All reports concluded that Crampton was sane, with

no psychosis, organic brain damage, detachment

from reality, or inability to distinguish right from

wrong. His condition was characterized simply as

an anti-social or sociopathic reaction, coupled with

gleohol and drug addiction (C.A. 18, 20, 24, 25, 31).

D. JURY INSTRUCTIONS

After instrueting the jury on the elements of first

degree murder, possible lesser included offenses, and

the defense of insanity (C.A. 60-70), the court told

the jury of its punishment responsibility :

If you find the defendant guilty of muruer

in the first degree, the punishment is deain,

unless you recommend mercy, in which event

the punishment is imprisonment in the peni-

tentiary during life (C.A. 70).

E. VERDICT AND SENTENCE

The jury retired to deliberate at 2:00 p.m. on

October 30, 1967, and at 6:15 p.m. they returned with

a verdict of guilty of murder in the first degree, with

no recommendation of mercy (C.A. 2, 78).

Sentence was imposed on November 15, 1967.

Crampton was given the opportunity to state any

‘In its instructions, the court charged the jury that there

was some evidence that the killing was accidental, and that

acceptance of such evidence would require a verdict of not

guilty (C.A. 68).

reasons why sentence should not be imposed. He made

certain statements that were found insufficient to

prohibit the passing of sentence. He was accordingly

sentenced to death, as required by the Ohio statute in

the absence of a jury recommendation of merey

(C.A. 2-3, 78-79).

SUMMARY OF ARGUMENT

In the view of the United States, there is no con-

stitutional impediment to affirmance of the convic-

tions in both of these cases.

A. The common attack made both by McGautha

and by Crampton is that the absence of statutory

standards or criteria to govern or guide the jury’s

determinaton of punishment invalidates the death

sentences imposed upon them. The argument that

the Constitution requires legislative formulation of

sentencing standards for jury sentencing in capital

cases equally calls into question the settled practice

of authorizing judges to set sentences in the exercise

of broad discretion in non-capital felony cases with-

out providing extrinsic standards. Such a thrust runs

counter not only to the modern philosophy of max-

imizing sentence flexibility but also to this Court’s

pronouncements that sentencing procedures are not

governed by the same rigid requirements that are

constitutionally necessary for trying a defendant’s

guilt.

Jury sentencing in non-capital cases originated in

colonial times and survives today in one-quarter of

the States. The authority for the jury in a capital

case to determine whether the death penalty should

be imposed upon conviction dates from at least 1838

and was well established by the time the Fourteenth

Amendment was ratified. Virtually every American

jurisdiction at some point or other has conferred

discretionary power on the jury in a capital murder

ease to determine the penalty, and this practice is

followed today wherever the death penalty for mur-

der is retained. In the entire history of this univer-

sally accepted feature of our criminal laws no State,

even when adopting other major alterations to its

criminal code, has found it necessary or desirable to

codify the considerations which should govern the

jury’s conscientious sense of judgment on this ques-

tion. For at least a century this Court and lower

federal and state courts have reviewed convictions

and death sentences set by juries under these statutes

and neither this Court nor any other has heretofore

expressed anything but approval for the wisdom and

fairness of entrusting flexible sentencing discretion

to the trial juries in capital cases. This unbroken

chain of legislative and judicial approval of ‘‘stand-

ardless” jury discretion in capital cases presents a

powerful presumption that the practice is funda-

mentally fair within the meaning of the Due Process

Clause.

B. Allowing a capital jury freedom to exercise its

judgment on the question of the proper sentence in a

particular case serves a legitimate public interest.

There is first of all a variety of sound objections to

any different approach. An attempt to codify ‘‘stand-

ards” that would be exclusive and exhaustive in the

same sense as the elements of a crime would foolishly

reintroduce the rigidity of long discredited automatic

sentences; it is just not reasonably possible to define

in advance exactly how a particular crime committed

by a particular defendant should be punished. Some

sentencing discretion is therefore essential. Proposals

like that of the Model Penal Code to formulate a list

of illustrative considerations that the sentencer in an

actual case might treat as tending to aggravate or

to mitigate the punishment suffer from other objec-

tions. There is considerable doubt that such criteria

alert the modern jury to any pertinent considerations

that would not be self-evident in the context of a

concrete case. But in addition, respectable authority

supports the fear that formal statutory enumeration

of factors considered hy the State to be ‘‘aggravating”

may upset the current demonstrable reluctance of

jurors to set a death sentence when they are charged

with the intensely personal responsibility for deter-

mining the penalty. Moreover, statutory enumeration

of abstract criteria could interfere with the legitimate

State policy of leaving the life-and-death decision on

penalty to the contemporary conscience of the com-

munity speaking through the jury.

C. Arguments that the Constitution requires statu-

tory standards to circumscribe the jury’s sentencing

discretion proceed on erroneous legal and factual prem-

ises. This Court has repeatedly emphasized that an

essential basis for our national commitment to trial

by jury is the assumption that juries act fairly, ra-

tionally, and intelligently. Any contrary speculation

in this type of case must assume that twelve jurors

greened by defense counsel will conclude their delib-

erations with agreement that a man should die in the

absence of any weighty reason or by virtue of some

vicious bias. The empirical data demonstrate quite the

opposite conclusion: that under the present system

juries do act reasonably on the basis of pertinent con-

siderations and that in so deciding they do not rely

on any irrational factor or on any personal bias. Thus,

whatever favorable reasons there may be for enacting

formal lists of sentencing criteria, they cannot be said

to be essential to just and rational sentencing by

the modern American jury—a jury that must be

chosen so as to insure that it will fairly represent the

community.

D. The current practice of “standardless”’ jury sen-

tencing does not violate any specific constitutional

rights of an accused. It is well settled that a defend-

ant cannot insist on ‘‘notice” of the considerations that

may enter into his post-conviction sentencing and can-

not demand an opportunity to litigate sentencing fac-

tors. Statutory criteria cannot be said to be essential

to permit meaningful review since the Constitution

does not assure the right to appeal, and particularly

does not guarantee review of a sentence otherwise

within prescribed limits. In the few States where

sentence review is authorized, the courts have experi-

enced no difficulty exercising their responsibilities;

on the contrary, to the extent formal criteria are pro-

vided the practical scope of review may be contracted

since nearly every first-degree murder case contains

some “aggravating” aspects, however defined, that

would sustain a death sentence.

Thus, we suggest, nothing in the Constitution com.

pels the States to do what no jurisdiction has found

necessary or wise: formulate ‘‘sentencing standards”

for juries in capital cases.

A. Although six States have by recent statute de

cided to separate capital (or all felony) trials into

two stages, focusing separately on guilt and on pun-

ishment, no court has held such a procedure mandated

_ by the Constitution in any context. This Court itself

on several occasions has declined to find bifurcated

trials constitutionally compelled, noting to the con-

trary that they are essentially alien to our criminal

jurisprudence. Our system of criminal procedure as-

sumes that a criminal trial is essentially an integated

disposition of all jury-triable issues, and it has never

been held constitutionally necessary to isolate even

complex issues for separate jury trials.

B. Petitioner Crampton’s insistence that the uni-

tary trial creates an impermissible tension between

two constitutional rights is multiply defective. The

contention that in order to protect his privilege

against self-incrimination he must forego his ‘“‘right

to speak to his sentencer’’—or vice versa—errone-

ously assumes a constitutional foundation for that

latter “right.” This Court has often held that a con-

victed defendant does not have the right to partici-

pate personally in the sentencing process by advane-

ing considerations to which the sentencer should advert

in fixing punishment. To the extent such considera-

tions can be presented, they may be presented through

other defense witnesses while the defendant relies on

his own privilege to remain silent.

Whenever an accused desires to be heard on some

issue relating to the finding of guilt, he is vulnerable

to examination on any other relevant issue and he

assumes the risk that his testimony may prove self-

defeating. A defendant who wishes personally to tes-

tify in favor of mitigating circumstances can do so at

his guilt trial but he has no more constitutional basis

for complaining that the punishment issue has not

heen severed than does a defendant who would prefer

to confine his testimony to a one-sided disclosure on

an alibi issue. That the State could make available

procedures for separate trials on different issues does

not establish that the privilege against self-incrimi-

nation compels this course.

The accused being tried for murder in a one-stage

trial faces the very same tactical pressures that inhere

in every criminal prosecution. In some circumstances

it may seem desirable to take the witness stand and

in others it may not. As the Court’s guilty-plea cases

last Term demonstrate, the practical necessity of mak-

ing difficult choices in defending a criminal charge,

including a capital charge, does not establish that the

procedures which occasion the election impermissibly

burden the rights involved.

C. Nor is there substance to the arguments of vari-

ous amici that unitary trials unconstitutionally pre-

vent the sentencing jury from obtaining access to

information needed for rational sentencing. The

States have the freedom to determine as a matter of

penal policy that the ‘‘punishment should fit the

crime’’ and thus may authorize that sentence be fixed

in light of the circumstances of the crime as developed

at trial. This Court has never held that the Constitu-

tion requires consideration of anything akin to a

pre-sentence report before a convicted murderer can

be sentenced.

The realities of murder trials, in any event, show

that even where evidence related solely to penalty is

not admissible the jury receives a reasonably accurate

picture of the defendant on trial. These background

details may come out in a variety of ways but they

suffice to satisfy whatever minimum level of informa-

tion might conceivably be argued to be indispensable

to intelligent sentencing.

Finally, there is considerable uncertainty about the

actual effect of holding separate penalty hearings.

Various courts and commentators have suggested that

the procedure may generally operate to the disad-

vantage of defendants because such a hearing does not

significantly enlarge the defendant’s ability to bring

favorable evidence before the jury but does open up

such critical areas as the accused’s prior criminal

record for exposure to the jury. It would thus be un-

wise to hold that bifurcation is so great an improvement

over the present unitary trial system that due process

demands it, when it is possible that it encourages death

sentences.

{HE UNITED STATES CONSTITUTION DOES NOT REQUIRE THAT

STATE LEGISLATURES PRESCRIBE STATUTORY STANDARDS TO

GUIDE OR GOVERN THE JURY’S DETERMINATION OF SEN-

TENCE IN A CAPITAL CASE

The petitioners in both cases argue that their death

sentences are constitutionally invalid. One claim, com-

mon to both cases, rests on the fact that the statutes

under which they were tried and convicted for first

degree murder entrusted to the jury the decision

whether a death sentence should be imposed but did

not establish any explicit criteria for making that

decision. This absence of statutory standards, they

argue, denies them due process and equal protection

of the law under the Fourteenth Amendment.

It is unclear whether petitioners contend that such

criteria would define the factors which the jury must

find to be present or absent in order to fix a capital

sentence, or would simply enumerate some considera-

tions on which the jury should reflect. In either event,

it is our view that the United States Constitution does

not mandate the formulation of any such criteria for

this purpose.

A, HISTORICALLY, SENTENCING DISCRETION, WHETHER ENTRUSTED TO

JUDGE OR JURY, IN CAPITAL AND NON-CAPITAL CASES, HAS NOT DE-

PENDED ON LEGISLATIVE CRITERIA

1. Introduction: the attack on “standardless” sentencing in

thése cases implicates all felony sentencing

In order to assess petitioners’ constitutional claims,

their actual context and likely implications should

be clear. Although the issue is narrowly cast as a chal-

lenge to “‘standardless’’ jury discretion in fixing the

sentence in a capital case, the arguments advanced in

support of the position would seem to apply equally

to any sentencing, whether by a judge or by a jury,

and whether the offense is maximally punishable by

death, life imprisonment, or a variable term of years,

Throughout our history, a developing. penology has

tended to expand, rather than to contract, the dis-

cretion given to the sentencing organ to deal with a

convicted felon. This Court expressly recognized this

historical experience in one of the cases which, we

believe, stands directly in the way of petitioners’ con-

tentions, Williams v. New York, 337 U.S. 241 (1949),

where the Court upheld a death sentence imposed by

a judge in the exercise of discretion uncontrolled by

any statutory standards. The Court there noted an

important, and here pertinent, distinction between the

standards and procedures necessarily surrounding the

determination of guilt and the flexibility and discre-

tion properly inhering in the sentencing process:

Tribunals passing on the guilt of a defend-

ant always have been hedged in by strict evi-

dentiary procedural limitations. But both be-

fore and since the American colonies became a

nation, courts in this country and in England

practiced a policy under which a sentencing

judge could exercise a wide discretion in the

sources and types of evidence used to assist

him in determining the kind and extent of

punishment to be imposed within the limits

fixed by law. (337 U.S. at 246 ; footnotes omitted.)

The Court also observed that modern developments

like indeterminate sentences and probation ‘“‘have re-

sulted in an increase in the discretionary powers ex-

ercised in fixing punishments.’’ 337 U.S. at 249.

In a later case, the Court rejected a claim that a

sentencing judge had failed to accord due process of

law in electing to impose a death sentence after a

guilty plea, without making use of a procedure for

hearing evidence in aggravation or mitigation of

penalty; the procedure followed was found sufficient

because the penalty decision rested with the judge

“in the exercise of his sound discretion.’’ See

Williams v. Oklahoma, 358 U.S. 576, 585 (1959).

Especially in setting prison sentences in non-

capital cases, the range of alternatives open to a

sentencing judge is even more expansive than in a

capital case, where the sharp distinction separating

the alternatives, life and death, unquestionably clari-

fies and illuminates the choice to be made. Yet, even

in such cases, sentencing judges are for the most part

not provided with ‘external legislative guidelines

which delineate sentencing factors and their relative

weight.”’ °

In recent years, there have been efforts on several

fronts to introduce comprehensive changes in the

present American sentencing structure, and among

the techniques proposed is legislative formulation of

the considerations that are to be weighed in deter-

See Sentencing Disparity: Causes and Cures, 60 J. Crim.

L, Criminol. & Pol. Sci. 182 (1969). See also, Dawson, Sen-

tencing: The Decision as to the Type, Length, and Conditions

of Sentence 379-380 (Am. Bar Foundation 1969).

mining sentence.’ We do not question that much of

this concern is legitimate; nor do we deny that leg-

islatures may appropriately attempt to devise and

codify sentencing guidelines. Our disagreement is

simply with the argument that the Constitution re-

quires such an approach, either in capital or non-

capital cases.

A ruling in favor of petitioners’ constitutional

claims would inevitably implicate the validity of all

American felony sentencing. The viability of a con-

stitutional distinction between the ‘‘process due’’ in

capital and non-capital cases * finds little support in

our jurisprudence.’ Indeed in Williams v. New York,

supra, 337 U.S. at 251, the Court refused to accept

such a contention “that we should draw a constitutional

distinction as to the procedure * * * where the death

sentence is imposed.”’

Nor is it likely that a ruling in petitioners’ favor

* See, ¢.g., President’s Commission on Law Enforcement and

Administration of Justice, The Challenge of Crime in a

Free Society 145 (1967); American Bar Association, Project

on Minimum Standards for Criminal Justice: Standards Re-

lating to Sentencing Alternatives and Procedures 108 (Tent.

Draft 1967); Kadish, Legal Norm and Discretion in the

Police and Sentencing Process, 75 Harv. L. Rev. 904, 922

(1962) ; Note, Appellate Review of Primary Sentencing Deci-

sions: A Connecticut Case Study, 69 Yale L.J. 1458, 1454-1459

(1960). See, also, Weigel, Appellate Revision of Sentences:

To Make the Punishment Fit the Crime, 20 Stan. L. Rev.

405 (1968).

*See Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., con-

* See, ¢.g., the progression from Powell v. Alabama, 287 U.S.

45 (1982), through Betts v. Brady, 316 U.S. 455 (1942), to

Gideon v. Wainwright, 372 U.S. 335 (1963).

on this point could rationally be confined to jury sen-

tencing.”*” The identity of the sentencing authority, we

believe, has little to do with the constitutional need,

vel non, for statutory standards. The existence of dis-

cretion remains the same, as does the inherent pos-

sibility that sentences in apparently similar situations

may vary from case to case, and from sentencing

tribunal to sentencing tribunal. Constant too is the

absence of extrinsic criteria on which defendants (or

prosecutors) can focus in seeking to affect the sen-

tencing decision.” Thus, it is in this larger context

that the precise issue tendered by petitioners must be

viewed. We turn now to that precise issue.

9, Jury sentencing discretion is firmly established in American

criminal law.

(a) J ury-Sentencing im Non-Capital Cases. The

power and responsibility of a judge to exercise broad

® Several courts have expressed this awareness in rejecting

to “standardless” jury sentencing. See, ¢.g., Bell v.

Patterson, 279 F. Supp. 760, 766 (D. Colo. 1968), affirmed, 402

F. 9d 394 (C.A. 10, 1968) ; State v. Johnson, 34 N.J. 212, 168

A. 2d 1, 10, appeal dismissed for want of substantial federal

question, 368 U.S. 145, certiorari denied, 368 U.S. 933 (1961).

The same situation also prevails later on in the sentencing

process when the Executive is called upon in a capital case

to grant a reprieve or commute a death sentence. “Standard-

less” discretion is involved, and the considerations actually

brought to bear seem to overlap with those involved in the

initial fixing of sentence by judge or jury. See Kalven & Zeisel,

The American Jury, 445-448 (1966). This Court has already

held compatible with due process the exercise of that discre-

tion without adversary hearing or judicial review, pointing

again to the distinction between the procedures necessary for

a fair trial of guilt and the flexibility appropriate during the

post-conviction process. See Solesbee v. Balkcom, 389 US. 9,

12-13 (1950).

405-388—70——4

discretion in determining a criminal sentence without

dependence on external legislative criteria is a fami).

iar facet of penal systems generally. In the United

States, however, the criminal law has long accorded

the jury a unique place in the sentencing process,

In fully one-fourth of the States, the jury trying

the question of guilt has the responsibility for fixing

the punishment to be imposed in some or all non-capi-

tal criminal cases.” This wide-spread practice dates

from our colonial period and represents a ‘‘reaction

to harsh penalties imposed by judges appointed and

controlled by the Crown and to the early distrust of

governmental power.’

Although there is room to doubt whether there re

mains as pressing a need for such a role for the

jury in our contemporary society, that judgment must

necessarily be one that our federal system leaves to

the States to decide in accordance with their local

customs, traditions, and preferences. Indeed, on two

occasions recently this Court has digressed to point

out that the constitutional claims being advanced and

decided did not call into question the continuing

"3 See Jury Sentencing in Virginia, 58 Va. L. Rev. 968, 969

n. 2 (1967), citing such statutes from 13 states.

3 President’s Commission on Law Enforcement and Admin-

istration of Justice, Task Force Report: The Courts 2%

(1967).

For largely the same reasons, from colonia] times through

much of the last century, juries in many States were also em-

powered to be the final judges of the law as well as of the

facts in criminal (and civil) trials. See Note, The Changing

Role of the Jury in the Nineteenth Century, 74 Yale LJ. 170,

171-176 (1964).

ce i ed ed od

validity of this jury function. In Spencer v. Texas,

995 U.S. 554, 560 (1967), in affirming a death sen-

tence imposed by a jury in a single-stage guilt-and-

recidivist trial, the Court noted that the accused was

not attempting to assert “that it is unconstitutional for

the jury to assess the punishment to be meted out to

a defendant in capital or other criminal cases * * *.”’

And in Giaccio v. Pennsylvania, 382 U.S. 399, 405,

n8 (1966), a case on which petitioners strenuously

seek to rely, the Court carefully noted that by its

holding against a peculiar Pennsylvania statute au-

thorizing a jury in its unfettered discretion to assess

costs against an acquitted defendant, “we intend to

cast no doubt whatever on the constitutionality of the

settled practice of many States to leave to the juries find-

ing defendants guilty of a crime the power to fix

punishment within legally prescribed limits.” *

The principal policy objection to jury sentencing

in non-capital eases seems to focus on the jury’s lack

of access to a pre-sentence report and its unfamiliar-

ity with prison conditions, programs, and alterna-

tives, all of which make it difficult to make a reasoned

choice on how long a prison term to set for a particu-

lar offender. Even at the non-constitutional level of

policy, however, these objections would not be apt in

“See, also, Fitzgerald v. Peyton, 303 F. Supp. 467, 470

(W.D. Va. 1969), holding that Virginia’s practice of allowing

juries to impose “such punishment as you consider just under

the evidence and within the limits stated in the Court’s in-

structions” does not violate fundamental fairness or any specific

constitutional right.

% See Jury Sentencing in Virginia, supra, 53 Va. L. Rev. at

976-979.

capital cases, where the choice of alternatives—death

or life imprisonment—is more limited and where that

choice is based on common human experience and

community conscience, rather than on penological ex:

pertise.” Significantly, the 1967 Report of the Pregi-

dent’s Crime Commission confined its recommendation

that jury-sentencing be eliminated to jury sentencing

in non-capital cases.”

(b) Jury-Sentencing in Capital Cases. For the

reasons which follow, the United States takes the

position that the death sentences imposed on the peti-

tioners in these two cases are not invalid on any

constitutional grounds.” To aid in the assessment of

** The possibility of rehabilitation and the prospect of release

are not, currently, practical concerns in a capital case, since

even with a life sentence the theoretical chance for parole,

available in some States, is usually postponed by statute for

many years and is not often, at present, actually attained.

See Powers, Parole Eligibility of Prisoners Serving a Life

Sentence 23-45 (Mass. Correctional Ass’n 1969).

17 President’s Commission on Law Enforcement and Admin-

istration of Justice, The Challenge of Crime in a Free Society

145 (1967).

* There are a number of theoretical constitutional challenges

to death sentences that are not properly before the Court.

First, Crampton’s petition for certiorari posed the question

whether the death penalty constitutes “cruel and unusual pun-

ishment” in violation of the Eighth and Fourteenth Amend-

ments, but the grant of certiorari, 398 U.S. 936, was limited to

exclude that question. See, also, Wilkerson v. Utah, 99 U.S. 130

(1879); Jn re Kemmler, 136 U.S. 436 (1890) ; Louisiana ea rel.

Francis v. Resweber, 329 U.S. 452 (1947) (all rejecting such

objections to the execution of the death penalty). Second, in

both petitions, questions based on Witherspoon v. Illinois, 391

U.S. 510 (1968), and involving the exclusion of jurors opposed

to capital punishment, were raised but those too were excluded

the precise challenge being made to ‘“‘standardless’’

jury sentencing in capital cases, we think it will prove

yseful to make a brief excursion into the origins and

history of this practice.

By the end of the eighteenth century, a consider-

able variety of crimes carried an automatic death

sentence upon conviction. The evident harshness of

this practice, coupled with the construction of prisons

where serious felons could be securely confined to

serve a non-capital punishment, led to the reduction

in the number of capital crimes. The treatment of

murder, however, created some special problems, since

it was then as now generally considered the most

serious type of crime, but lawyers and juries recog-

nized that not all murders deserved identical pun-

ishment. With considerable regularity, juries preferred

to acquit certain murderers rather than to send them

automatically to their deatiis.

In 1794, at the urging of distinguished reform-

minded lawyers like William Bradford, Pennsylvania

devised an apparent solution to the problem: Legis-

latively dividing murder—an intentional and unjus-

tified homicide—into two degrees, one defining a

by the limited grants of certiorari, 398 U.S. 936. Third, neither

the California statutes nor the Ohio statute involved in the

instant cases present a problem under United States v. Jackson,

390 U.S. 570 (1968), since neither State provides that the death

penalty ‘may be imposed only on a person who insists upon

trial by jury. See, generally, Calloway v. United States, 399 F.

2d 1006, 1009, n. 4 (C.A.D.C.), certiorari denied, 393 U.S. 987

(1968) ; Poe, Capital Punishment Statutes in the Wake of United

States v. Jackson: Some Unresolved Questions, 37 G.W.L. Rev.

719 (1969).

class of murders for which the death penalty wag

provided, and the second covering murders where the

extreme penalty was thought unwarranted.” This ap.

proach sought to predict and cireumscribe the types

of aggravated murders, without any attention to or

room for mitigating factors in the particular in.

stances. Pennsylvania’s legislative division, segregat-

ing murders committed after premeditation and

deliberation or in the course of a felony from all

others, was copied over the years in most of the other

States.”

This approach to the problem soon proved to be

far from wholly adequate or satisfactory. The degree

device continued much of the rigidity of the earlier

common law punishment for murder—death automati-

cally upon conviction—but simply narrowed the type

of crime that was subject to the penalty. Even within

that narrowed category, however, juries repeatedly

considered the inevitable death penalty inappropriate

in light of the facts of particular ‘‘ premeditated” or

‘*felony-murders’’. ;

A new way of confronting the problem then

emerged. The nature of the difficulty was that the

community, as reflected in the jury, refused to agree

that every ‘‘first degree murderer” should, by reason

of an abstract legislative definition, ineluctably be

1° Pa, Laws 1794, ch. 257.

2° See, generally, Bradford, An Enquiry How Far the Pur-

ishment of Death Is Necessary in Pennsylvania 35-39, 72-74

(1795); Bedau, The Death Penalty in America 1-8 (rev. ed.

1967); A.L.I. Model Penal Code § 201.6, Comment, pp. 65-66

(Tent. Draft No. 9, 1959) ; Great Britain, Select Committee on

Capital Punishment, Report {J 11, 17 (1930).

marched to the gallows. This dissatisfaction was ex-

pressed through the jury’s power to nullify the death

penalty on a case-by-case method: by returning a ver-

dict of guilty of a lesser crime or by outright acquit-

tal. At stake were the integrity of the jury system

and the societal interest in just conviction and fair

punishment; the background was the wide-spread

phenomenon of jury-sentencing in non-capital cases.

In that context, the States devised an accommodation

that in retrospect seems eminently sensible: legisla-

tively eliminating the mandatory death penalty for

first-degree murder and officially sanctioning the

jury’s right to determine the penalty on a case-by-

_ case basis.

Our research indicates that Tennessee was the first

State to enact such legislation. The Act of January

10, 1838, provided in part: ”

* * * in all cases hereafter to be tried, where

any person is convicted of murder in the first de-

gree, if the jury who try him should be of the

opinion that there were mitigating circumstances

in the case, and shall so state in their verdict,

then in such case it shall be the duty of the

court to sentence the defendant to confinement

in the Penitentiary for life * * *.

This type of statute, authorizing the jury in a

capital case to exercise its own judgment on whether

the death penalty was warranted, was quickly adopted

"Tennessee Laws 1837-1838, ch. 29. See Gohlson v. State, 148

Tenn. 126, 223 S.W. 839 (1920).

in a number of other States.” Alabama in its 184)

Penal Oode introduced such discretion; Louisiana and

Texas followed suit in 1846 and 1858, respectively,

and provided that the jury’s power extended to aj]

capital cases, not only murder. By 1868, when the

Fourteenth Amendment was ratified, Georgia, Illinois

and Minnesota had also added similar provisions, and

by 1878 fifteen States and territories had chosen to au-

thorize their juries in capital cases to determine

whether the defendant, upon conviction, should ae.

tually die for his crime. Before the end of the last

century, twenty-three States and territories plus the

federal government had enacted laws authorizing the

“standardless” discretion attacked in the present

cases.

Except for four States that abolished capital pun-

ishment in the middle of the nineteenth century

(Maine, Michigan, Rhode Island, and Wisconsin),

every other American jurisdiction has at some point

enacted a statute of this type, so that at present in

all but two of the jurisdictions that retain capital

punishment for murder the jury determines in its

discretion whether the penalty of death will be im-

posed.” The current statutes so providing are listed

in Appendices C and D, infra, pp. 132-137."

** Appendix B, pp. 128-131, infra, chronologically lists the in-

troduction of jury discretion on capital sentencing in each

American jurisdiction.

78 Both of those two exceptional States authorize the death

penalty only for murder committed while serving a life

sentence: Rhode Island makes the death penalty mandatory

in such a situation, and North Dakota permits the judge to

decide the punishment. See App. C, infra, p. 132, fn. 1.

** Appendices E and F, infra, pp. 138-140, summarize the status

Furthermore, the legislative acceptance of this type

of provision by the various States has been steady

and continuous over the last 130 years. No momentary

“fad” or mere experiment in criminal procedure,

jury discretion in capital cases has been adopted in

State after State right up through recent years.

Pennsylvania, which had introduced the degree sys-

tem in 1794, added jury discretion to its penal laws

in 1925. New York adopted the same course in

1937, with Connecticut and Massachusetts, for exam-

ple, doing so in 1951, Hawaii in 1955, and the Dis-

trict of Columbia in 1962.”

The two States whose murder statutes are being

challenged in the present cases were among the rela-

tively early adherents to this legislative approach.

California first authorized jury discretion as to the

penalty for murder by the Act of March 28, 1874.”

And Ohio enacted such a provision in 1898.”

and effect of death penalty provisions in federal civil and mili-

tary statutes. Only one (military) offense carries a mandatory

death penalty (spying); all but three of the thirty other

capital statutes leave the determination of penalty to the trier

of fact on the issue of guilt, whether that happens to be the

jury, a judge, or a court martial.

*Pa, Pub, Laws 1925, ch. 411. See Schwartz, Punishment of

Murder in Pennsylwania, in II Royal Commission on Capital

Punishment, Memoranda and Replies to a Questionnaire 776,

117 (1952).

*Five States, Iowa, Colorado, Washington, Oregon and

Kansas, first adopted jury discretion in capital murder cases

when they re-introduced capital punishment following vary-

ing periods as “abolition” States. See Appendix B, infra,

pp. 129-130.

“Calif. Amendatory Acts 1873-1874, ch. 508, p. 457.

*93 Ohio Laws 223.

This clear pattern of legislative selecticn of the

very practice challenged in these cases has been com-

plemented by consistent judicial approval. This Court,

for example, has for at least a century been called

upon to review convictions under these statutes and

has without exception commented favorably on them.

See, e.g., Wilkerson v. Utah, 99 U.S. 130, 136 (1879);

Ex parte Crow Dog, 109 U.S. 556, 560 (1883) ; Calton

v. Utah, 130 U.S. 83, 86-87 (1889); Winston y,

United States, 172 U.S. 303, 310-313 (1899) ; Andres

v. United States, 333 U.S. 740, 742-744 (1948);

Spencer v. Texas, 385 U.S. 554, 557 (1967) ; Wither-

spoon V. Illinois, 391 U.S. 510, 519 (1968).

In Calton, supra, the Court reviewed a murder con-

viction and death sentence under the 1876 Utah ter-

ritorial statute which made a death sentence auto-

matic unless the jury recommended mercy. Failure to

advise the jury of their power under the statute to

affect the penalty was held reversible error. The

Court explained: ‘‘The statute evidently proceeds

upon the ground that there may be cases of murder in

the first degree, the punishment for which by im-

prisonment for life at hard labor will suffice to meet

the ends of public justice.’’ 130 U.S. at 86-87.”

In Winston, the Court had before it the 1897

amendment to the federal murder statute authorizing

the jury to direct upon conviction: “without capital

2° See, also, Knowlton, Problems of Jury Discretion in Capi

tal Cases, 101 U. Pa. L. Rev. 1099, 1102 (1953).

punishment’’. The opinion for the Court in that

1999 decision observed (172 U.S. at 310):

The hardship of punishing with death every

erime coming within the definition of murder

at common law, and the reluctance of jurors

to concur in a capital conviction, have induced

American legislatures, in modern times, to allow

some cases of murder to be punished by imprison-

ment instead of by death. That end has been gen-

erally attained in one of two ways.”

The first way discussed by the Court was the degree

system, allowing the jury ‘‘to say whether the facts

made a case of murder in the first degree or murder

in the second degree” (172 U.S. at 312), and thus

capital or non-capital. The opinion then continues

(ibid.) :

Second. The difficulty of laying down exact

and satisfactory definitions of degrees in the

crime of murder, applicable to all possible cir-

cumstances, has led other legislatures to prefer

the more simple and flexible rule of conferring

upon the jury, in every case of murder, the

right of deciding whether it shall be punished

by death or by imprisonment. This method has

been followed by Congress in the Act of 1897.

The Act of Congress confers this right upon

the jury in broad and unlimited terms * * *.

The Court pointed to its earlier decision in Calton,

supra, and other cases (tbid.)

as illustrating the steadfastness with which the

full and free exercise by the jury of. powers

See, also Andres v. United States, 333 U.S. 740, 752-753,

767-77 (1948) (Frankfurter, J., concurring, together with Ap-

pendix).

newly conferred upon them by statute in this

matter has been upheld and guarded by this

court against the possible effect of any restric.

tion or omission in the ruling and instructions

of the judge presiding at the trial.

In light of the Court’s determination to respect and

enforce the clear legislative design of allowing the

jury unfettered discretion, the trial court’s attempt

to restrict the jury’s freedom was held reversible,

Although that ruling that the trial judge erred in

trying to impinge upon the jury’s discretion under

a statute like the present ones does not directly affirm

the constitutionality of such legislation, the Court's

language indicates awareness of the wisdom of this

legislative choice (172 U.S. at 313):

The Act does not itself prescribe nor author-

ize the court to prescribe, any rule defining or

cireumseribing the exercise of this right; but

commits the whole matter of its exercise to the

judgment and consciences of the jury. The au-

thority of the jury to decide that the accused

shall not be punished capitally is not limited

to cases in which the court, or the jury, is of

opinion that there are palliating or mitigat-

ing circumstances. But it extends to every

ease in which, upon a view of the whole evi-

dence, the jury is of opinion that it would not

be just or wise to impose capital punishment.

How far considerations of age, sex, ignorance,

illness or intoxication, of human passion or

weakness, of sympathy or clemency, or the irre-

vocableness of an executed sentence of death,

or an apprehension that explanatory facts may

exist which have not been brought to light, or

any other consideration whatever, should be

allowed weight in deciding the question whether

the accused should or should not be capitally

punished, is committed by the act of Congress

to the sound discretion of the jury, and of the

jury alone.

Later, in the Andres case, the accused under sen-

tence of death urged before this Court that under that

same statute the trial judge was required “‘to explain

to the jury the scope of their discretion in granting

merey to the defendant.” 333 U.S. at 742. The Court

rejected this contention, upholding the correctness of

an instruction that advised the jury simply (333 U.S.

at 743 n. 4):

This power is conferred solely upon you and

in this connection the Court can not extend or

prescribe to you any definite rule defining the

exercise of this power, but commits the entire

matter of its exercise to your judgment.

This type of judicial determination not to detract

from the full sentencing discretion given to the jury

in capital cases has been uniform and consistent up

through the present. In addition, the various legis-

latures have consistently chosen to adhere to this same

policy. Since 1959, when the American Law Institute

as part of its Model Penal Code first actually pub-

lished proposed “aggravating circumstances” and

“mitigating circumstances” designed to be included

in murder statutes and to control the jury’s sentenc-

;

}

;

ing discretion,” a number of States have revised their

criminal codes and to one extent or another adopted

various proposals included in the Model Penal Code

Still other States have considered and enacted amend-

ments dealing with their murder statutes.™ Yet, none

**See ALI, Model Penal Code § 201.6 (Tent. Draft No, 9,

1959). As revised, approved and promulgated by the Institute,

these criteria are now part of $210.6 of the Proposed Official

Draft dated 1962. This section is quoted in its entirety in

Appendix G, infra, pp. 141-145.

The National Commission on Reform of Federal Criminal

Laws in Section 3605 of its Study Draft of a New Federal

Criminal Code (1970) has also proposed “criteria” for assess.

ing the punishment of the capital crimes of murder and treason.

This provision is set out in Appendix G, infra, pp. 148-149,

** New criminal codes have been adopted in the following

States (by year of effective date) : Illinois (1961), Texas (Code

of Criminal Procedure, 1965), New York (1967), Georgia

(1969), Kansas (1970), Connecticut (1971). The pertinent cita-

tions appear in Appendices C and D, infra, pp. 132-137.

Among the changes proposed by the Model Penal Code and

accepted are: bifurcation of guilt/penalty trials in murder cases

(New York, Texas, Georgia, Connecticut), and criteria for

judges in sentencing to probation (N.Y. Penal Law § 65.00;

Conn. Penal Code § 29), or in fixing minimum prison sentences

or fines (Kan. Stat. Ann. §§ 21-4606, 21-4607). See, gen-

erally, Sentencing Disparity: Causes and Cures, 60 J. Crim. L

Criminol. & Pol. Sci. 182, 186-191 (1969).

The underlying premise of the Model Penal Code’s proposals

in this area is that there is a general need for greater legis

lative control of sentencing discretion. That premise is debat-

able and the Code’s approach in this area has not generally

been followed. See Dawson, Sentencing: The Decision as to the

Type, Length, and Conditions of Sentence 380-381 (Am. Bar

Foundation 1969).

** See, ¢.g., the 1969 amendment to New Mexico’s murder

statute limiting the applicability of the death penalty and the

1969 Nebraska amendment providing for capital sentencing by

the court after guilty plea or a jury-waived trial, as listed in

Appendix C, infra, p. 184.

of these States has found it desirable as a matter of

penal policy to adopt statutory “standards” or “cri-

teria’? to control the jury’s determination whether —

to impose a death sentence upon conviction of a crime

for which that penalty is authorized. On the contrary,

even in the face of academic proposals for such stand-

ards and for the elimination of jury discretion in

these cases, the legislatures of all of these States have

ynanimously concurred in preserving undiluted this

diseretionary role for the jury.” At this moment, not

a single state legislature has found it desirable or

appropriate to cireumscribe the jury’s weighty respon-

sibility in this area.

The virtual unanimity of the jury-discretion system

in capital cases, carefully, consistently, and deliber-

ately developed over more than a century, provides a

strong presumption of its compatibility with the Con-

stitution. Only last term this Court sustained the con-

stitutionality of state grants of property-tax exemp-

tions to churches, relying in part upon this prudent

respect for the verdict of history. See Walz v. Tax

Commission, 397 U.S. 664 (1970). The Chief J ustice’s

opinion for the Court is instructive on this point (397

US. at 678) :

It is obviously correct that no one acquires a

vested or protected right in violation of the

Constitution by long use, even when that span

“Cf, Commonwealth v. Ross, 413 Pa. 35, 195 A. 2d 81, 86

(1963), where the court sustained a death sentence for murder

fixed after a separate penalty hearing in which the trial court

had brought the Model Penal Code criteria to the jury’s atten-

tion and then advised them that they were free to ignore them.

ae uammmemmee ee

of time covers our entire national existence and

indeed predates it. Yet an unbroken practieg of

according the exemption to churches, openly

and by affirmative state action, not covertly or

by state inaction, is not something to be lightly

cast aside, Nearly fifty years ago, Mr. Justice

Holmes stated:

“Tf a thing has been practiced for two hundred

years by common consent, it will need a s

case for the Fourteenth Amendment to affect

it. * * *’’ Jackman v. Rosenbaum Co., 260 U.S,

22, 31 (1922).

Although discretion in capital cases made its appear-

ance in the middle of the last century, other cases

reflecting the same regard for history as does Walz

establish that a particular procedure of state criminal

law need not stretch back into the colonial era in order

to merit such a presumption of validity. In Spencer

v. Texas, 385 U.S. 554 (1967), the Court sustained the

validity of a Texas statute that brought the prior

criminal record of a defendant charged with a capital

crime directly before the jury to enable it to assess his

punishment in light of his recidivism. Referring to

“the long-standing and wide-spread use that attend

the procedure under attack here,” the Court found it

“impossible to say’’ that “the possibility of some col-

lateral prejudice’’ rendered the procedure ‘‘unconsti-

tutional under the Due Process Clause.’ (385 U.S. at

564).

*° Of course, as we have seen, the extant, related practice in a

number of States of allowing jury sentencing in non-capital

cases does pre-date the Constitution.

In Williams v. Florida, 399 U.S. 78 (1970), the

Court sustained Florida’s notice-of-alibi statute, com-

menting: “We need not linger over the suggestion

that the discovery permitted the State against peti-

tioner in this ease deprived him of ‘due process’ or a

‘fair trial’.” (399 U.S. at 81). That there was a legiti-

mate State interest in adhering to such a procedure

was implied from the fact that notice-of-alibi stat-

utes were in force ‘‘in a substantial number of

States” —sixteen by the Court’s count—and dated ‘‘at

least from 1927”. (399 U.S. at 81-82).”

Moreover, the precise constitutional contentions pre-

sented by petitioners in the present cases are not

novel. On the contrary, over recent years they have

become a routine ingredient in attempts to secure re-

versal of convictions accompanied hy death sentences,

since no capital statutes in the United States impose

specific conditions upon the jury’s determination of

sentence. After respectful and serious consideration,

however, every American court, federal or state, that

has had occasion to pass upon the issue has concluded

% See, also, North Carolina v. Pearce, 395 U.S. 711, 721

(1969), where the Court regarded as “long established consti-

tutional doctrine” a principle announced in 1896, which had

been followed “for almost 75 years.”

Compare Baldwin v. New York, 399 U.S. 66 (1970). There

New York City’s denial of a right to jury trial in offenses

punishable by a year in jail was held invalid. The plurality

opinion by Mr. Justice White pointed out that New York City

was the only American jurisdiction in that category. 399 U.S.

at 72.

405-388—-70—_5

that the Constitution requires no such sentencing

standards for an American jury.” =

This rare combination of universal legislative ae.

ceptance and uniform judicial approval must clothe

the jury discretion system with a substantial pre

sumption of constitutionality. To hold in light of this

history that an accused is denied “due process of law”

when his sentence in a capital case is determined by

a jury exercising unimpaired discretion would neees-

sarily carry with it the finding that for more than a

hundred years the legislatures of the 46 States that

have enacted such laws, plus Congress, as well as

the federal and state courts throughout the country—

including this Court—have heretofore failed to per-

ceive unfairness and arbitrariness so intense as to

violate minimum constitutional standards.

Moreover, petitioners point to no specific constitu-

tional right that allegedly forbids this prevalent sys-

** See, ¢.g.. Petition of Ernst, 294 F. 2d 556, 560-561 (C.A.

3, 1961), cert. den., 368 U.S. 917; Florida ex rel. Thomas v. Culver,

253 F. 2d 507, 508 (C.A. 5, 1958), cert. den., 358 U.S. 822; Pope v.

United States, 372 F. 2d 710, 731 (C.A. 8, 1967) (en bane),

vacated on other grounds, 392 U.S. 651 (1968); Maawell v.

Bishop, 398 F. 2d 138, 148-150 (C.A. 8, 1968), vacated on other

grounds, 398 U.S. 262 (1970); Sims v. Eyman, 405 F. 2d 439,

447 (C.A. 9, 1969); Segura v. Patterson, 402 F. 2d 249, 254

(C.A. 10, 1968) ; United States ex rel. Smith vy. Nelson, 275 F.

Supp. 261, 265-266 (N.D. Calif. 1967) ; Bell v. Patterson, 279 F.

Supp. 760, 765-767 (D. Colo.), aff'd, 402 F. 2d 394 (C.A. 10, 1968) ;

McCants v. State, 282 Ala. 397, 211 So. 2d 877, 880-881 (1968);

Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567, 570 (1969) ; In re

Anderson, 69 Cal. 2d 613, 73 Cal. Rptr. 21, 447 P. 2d 117 (1968);

State v. Walters, 145 Conn. 60, 138 A. 2d 786, 792-794 (1958), app.

dis‘d and cert. den., 358 U.S. 46; Wilson v. State, 225 So. 2d 321,

324 (Fla. 1969) ; Miller v. State, 224 Ga. 627, 163 S.E. 2d 730, 734

tem. They rely simply on the general principle of

fundamental fairness always recognized as implicit in

the Due Process Clause. Thus, we are not concerned

with a procedure that must be reassessed in the wake

of recent constitutional developments placing a new

perspective on the meaning of a constitutional clause

or newly holding a provision of the Bill of Rights ap-

plicable to the States. Nor is the Court presented with

any freshly assembled data to establish that as a mat-

ter of fact the jury-discretion system operates un-

fairly in practice; on the contrary, as we shall discuss

below (pp. 69-77), recent studies in this field tend

to confirm the wisdom and rationality of author-

ing unencumbered jury discretion in capital sen-

tencing. All petitioners adduce is a series of rhetorical

constructs that fall far short of demonstrating funda-

mental unfairness because they rest on ill-founded

legal assumptions and groundless factual specula-

tions.

(1968); State v. Latham, 190 Kan. 411, 375 P. 2d 788, 797-799

(1962), cert. den., 373 U.S. 919; Duisen v. State, — Mo. —, 441

S.W. 2d 688, 692-693 (1969) ; State v. Johnson, 34 N.J. 212, 168 A.

94 1, 10-11, appeal dismissed for want of substantial federal ques-

tion, 368 U.S. 145, cert. den., 368 U.S. 933 (1961) ; State v. For-

wlla, 52 N.J. 263, 245 A. 2d 181, 193-194 (1968); People v.

Fitepatrick, 308 N.Y.S. 2d 18, 24 (Co. Ct. 1970); State v.

Roseboro, 276 N.C. 185, 171 S.E. 2d 886, 893 (1970) ; Hunter v.

State, — Tenn. —, 440 S.W. 2d 1, 16 (1969) ; State v. Kelbach, 23

Utah 2d 231, 461 P. 2d 297, 299-3800 (1969) ; Johnson v. Com-

monwealth, 208 Va. 481, 158 S.E. 2d 725, 729-730 (1968) ;

State v. Smith, 74 Wash. 2d 744, 446 P. 2d 571, 589-590 (1969).

Cf. Andres v. United States, 333 U.S, 740, 743-744 (1948).

The Forcella, McCants, Roseboro, and Smith cases are pending on

petitions for certiorari.

Pn ee

B. JURY DISCRETION IN CAPITAL SENTENCING SERVES A LEGITIMATE

GOVERNMENTAL INTEREST

To the extent that it is necessary to examine the

affirmative justifications for the present system of

authorizing juries to exercise sentencing discretion

in capital cases without formal statutory “standards,”

a variety of appropriate objectives will emerge.

Flexibility is the hallmark of modern sentencing

philosophy. The objective is to tailor the sentence, ty

some extent, to the offender as well as to the offense,

We assume that petitioners do not assert that the

Constitution forbids a general legislative policy of

providing sentencing, alternatives for various crimes,

including murder/Certainly, no one would seriously

propose a re to the rigorous eighteenth century

practice of A ing all persons convicted of murder

with dea n the other hand, and by the same token,

the Consfitution cannot be said to require that all

murderers equally receive life sentences (although

we do not deny the legislature’s power to make this

choice). Despite the superficial uniformity in such a

course, there is real inequality in treating identically

a variety of persons who are different in essential

characteristics and who have committed crimes factu-

ally distinguishable even if legally similar.”

Nor do we understand petitioners’ argument to be

that the jury is constitutionally incapable of exercis-

ing such discretion. Historically, as we have seen, jury

%° See Scott v. United States, 419 F. 2d 264, 282, n. 8

(C.A.D.C. 1969) (Leventhal, J., concurring). See also Stephens

v. Turner, 421 F. 2d 290, 292 (C.A. 10, 1970).

_—_

sentencing in felony cases has its roots in the colonial

period, and jury discretion in capital cases was given

with the avowed objective of individuating punish-

ment.”

Once it is conceded or established that the Constitu-

tion permits sentencing discretion and allows the jury

to be the organ for exercising that discretion, the

arguments in favor of constitutionally mandated

standards soon fall of their own weight.

One way to expose the fallacy in the arguments ad-

yanced in favor of constitutionally required ‘“‘stand-

ards” is to explore the meaning of that term in this

context. A reeding of the briefs for petitioners and for

the amici supporting them reveals that despite the

frequency of the use of the term, and despite its core

position in their constitutional contentions, there is

no consensus on what is meant, and even a good deal

of internal ambiguity within each brief. ;

There are two possible meanings that could be as-

signed to the terms “standards” and “criteria” in

fhese eases. One would signify an exhaustive and

exclusive definition of the factual elements which

must be found to be present or absent as a condition

to imposing a particular sentence. This alternative

would make such “‘standards’’ the sentencing analogues

to the formal elements of a crime. The other

possibility would be to understand “standards” to in-

clude simply an enumeration of some of the factors

that ought reasonably to be considered in determin-

%See Bedau, The Death Penalty in America 27 (rev. ed.

1967).

ing a sentence. This latter approach would furnish

essentially an informational checklist for the jury's

deliberations.“ )

In our view, neither of these alternatives can lay

claim to any substantial constitutional foundation,

The former possibility, that of constructing a defi-

nition of the elements of capital as distinguished from

non-capital murders, is nothing less than regression

to the long discredited attempt to decide legislatively

in advance that a precise and rigid punishment js

to be imposed for committing a particular crime. As

such, it contradicts the trend of modern sentencing

philosophy and ignores the lesson of our experience

with the failure of legislative grading through the

degree system.

A call for formal, binding, exhaustive, and exclu-

sive elements for capital sentencing would in essence

demand that the States redefine their homicide laws

and distinguish between the types of homicide that

must be punished with death and those that can not

be. Any freedom or flexibility within these categories

would, of course, simply perpetuate the practice that

(on this alternative reading of petitioners’ position)

“To the extent that the latter meaning may be intended,

there would seem to be no significant reason why the criteria

would have to be included in a statute. A model jury instrue-

tion approved by the bench or bar, or even an original charge

devised by the trial judge, would appear to satisfy this open-

ended approach, at least to the extent that it included a num-

ber of important factors and did not encourage reliance on

any irrational or illegal ones.

is challenged: the jury’s discretion to select from

among authorized alternative punishments.”

Historical experience has proven that it is su-

premely unwise to try, in advance of development of

the peculiar circumstances of the offense and of the

offender, to prescribe legislatively whether the pun-

ishment will be death. In this country, as we have

seen, a number of States after 1794 legislatively

ed murders into a capital degree and a non-

capital degree. The distinction rested on the premise

that murders committed after deliberation or in the

course of committing certain forcible felonies like

rape or robbery warranted the death penalty—and

that only such homicides did. However, as Professor

Herbert Wechsler, Chief Reporter for the Model

Penal Code, has summarized:

A rigid legislative definition of the cases where

the sentence should be death has proved to be un-

workable in practice, given the infinite variety of

circumstances that attend even the heinous

crimes. Therefore, it is inevitable that the jury

or the court be given the power to decide whether

the punishment should be imposed.

“The Model Penal Code criteria have been criticized on this

ground, that they still leave discretion to the jury. See A Study

of the California Penalty Jury in First-Degree-Murder Cases:

Standardless Sentencing, 21 Stan. L. Rev. 1302, 1422-1423

(1969).

“Wechsler, Symposium on Capital Punishment, 7 N.Y.L.F.

250, 259 (1961).

In another context Professor Wechsler reviewa

the reason for the failure of the attempt to make

capital murders coextensive with premeditation :

The basic difficulty was, of course, that no

single aspect of mentation could provide a vig.

ble criterion for this purpose without refer.

ence to other circumstances too complex to be

encompassed in the rule.“

In recognition of the practical unsoundness of the

ambitious American experiment with legislative grad.

ing,“ the British repeatedly rejected efforts to follow

the American course as essentially “drawing an arti-

trary line’’ without regard for individual variations,“

After the most comprehensive study of the problem

that has yet been done, the British Royal Commis.

sion on Capital Punishment categorically rejected

legislative attempts to formulate distinctions between

capital and non-capital murders:

There are strong reasons for believing that it

must inevitably be found impracticable to de-

fine a class of murders in which alone the in-

fliction of the penalty is appropriate. The crux

of the matter is that any legal definition must

be expressed in terms of objective characteristics

** Wechsler, Codification of Criminal Law in the United

States: The Model Penal Code, 68 Colum. L. Rev. 1425, 1446

(1968).

“See 3 Stephen, History of the Criminal Law of England

94 (1883): “As much cruelty, as much indifference to the life

of others, a disposition at least as dangerous, is shown by

sudden as by premeditated murders.”

“Great Britain, Select Committee on Capital Punishment,

Report $169 (1930).

of the offence, whereas the choice of the appro-

priate penalty must be based. on a much wider

range of considerations, which cannot be de-

fined but are essentially a matter for the exer-

cise of discretion. * * * The essence of these

objections is that, as was said in the Home

Office memorandum, ‘‘there are not in fact

two classes of murder but an infinite variety

of offences which shade off by degrees from the

most atrocious, to the most excusable’’; that the

factors which determine whether the sentence

of death is the appropriate penalty in particu-

lar cases are too complex to be compressed

within the limits of a single formula; and that

among the most important factors are the

motive of the offence and the character and

circumstances of the offender, which can never

be inferred from the legal quality of his crimi-

nal act.“

Thus, the Commission concluded, it is not feasible to

provide a fair, rational, and comprehensive statutory

definition of a category of murder exclusively and

automatically capital. Instead, the Commission recom-

mended that the death penalty should continue to

apply to all cases of common law murder unless the

jury found that there were “extenuating circum-

stances.” These circumstances, the Commission re-

ported, would have to be left undefined ‘‘for the same

“Great Britain, Royal Commission on Capital Punishment,

1949-1958, Report { 498 (1953).

reasons for which we have found it impossible to

define degrees of murder.”’ “’

These conclusions, we believe, still carry great

weight, and have not, to our knowledge, been under.

cut by any intervening legislative, judicial, or aca-

demic developments. It is just as true today as it was

70 years ago when this Court decided Winston y,

United States, supra, that the “difficulty of laying

down exact and satisfactory definitions of degrees in

the crime of murder, applicable to all possible cir.

cumstances’’ makes reasonable a legislative prefer.

ence for ‘‘the more simple and flexible rule of con-

ferring upon the jury, in every case of murder, the

right of deciding whether it shall be punished by

death or by imprisonment.” 172 U.S. at 312. Con-

firming this datum is the fact that a number of States

that have recently revised their criminal codes have

abandoned the degree device altogether and instead

provided for one crime of murder which may be pun-

ished by death if the jury so determines.”

“" Id., 4553(b). These proposals were not adopted. Instead,

by the Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11, $8 5, 6, Parlia-

ment tried to separate capital from non-capital homicides, but

the lines drawn were generally recognized to have been utterly

arbitrary. Dissatisfaction with this attempt was one of the

reasons for the temporary suspension of all capital punishment

in 1965, which was followed in December 1969 by complete

abolition of the death penalty in England.

“See ¢.g., the Illinois Criminal Code of 1961, the Kansas

Criminal Code of 1969, and the Connecticut Penal Code of

1971, cited in Appendices C and D, infra, pp. 133, 136. Cf. American

Bar Ass’n, Project on Minimum Standards for Criminal Jus-

tice: Standards Relating to Sentencing Alternatives and Pro-

cedures (Tent. Draft 1967) :

“The legislature can create institutions and programs, can

provide the system with funds and facilities, can isolate goals

te Te

Due process of law certainly does not compel the

States to choose a course that arbitrarily defines

erimes, simply so that sentences within the categories

will be uniform. It is no response to this point to say

that if the States are unable to formulate such statu-

tory standards then they cannot preserve capital pun-

ishment. Such an argument at once proves too little and

too much. First, it begs the critical constitutional

question whether due process requires States to grade

crimes into varying degrees, with discrete penalties

automatically attaching to each degree. And second,

the argument could just as well be made—with evi-

dent absurdity—in the context of an armed robbery

conviction: if the legislature cannot prescribe statu-

tory standards to determine in advance when a five-

year prison sentence will be imposed, and when, for ex-

ample, a seven-year sentence will be, then the seven-year

sentence is unconstitutional.

In either the capital or the non-capital sentencing

situation, we believe, it is appropriate to rely on the

good faith, moral responsibility, and conscientious

judgment of the sentencing organ, whether judge or

jury. As Professor Wechsler advised the British

and objectives—but it cannot prescribe a proper sentence in

advance of the event. (p. 54)

* * * * *

“Jt would be unwise to attempt the codification of a rigid

set of principles which must be employed in an unbending

fashion in each case; such an attempt would suffer “rom many

of the same defects which accompany mandatory sentences set

in advance by the legislature. It would likewise be unwise to

be overly specific.” (p. 109).

Royal Commission, the existence of the jury-disere.

tion system in sentencing for murder “compensate

substantially for the difficulties of improving the ri-

teria for legislative grading.” Legislative selection

of this flexible option satisfies the requirements of

fundamental fairness under the Due Process Clause,

If the petitioners and amict use the term “stand.

ards’”’ in the second sense defined above—that of an

enumeration of various factors to which the sentenc-

ing authority ought to give some thought in con-

sidering what sentence to impose—their arguments

carry no more force than would an insistence on leg-

islative grading.

It is this illustrative type of “criteria’’ which the

American Law Institute in its Model Penal Code, and

the National Commission on Reform of Federal Crim-

inal Laws in its Study Draft of a New Federal Crim-

inal Code have formulated and proposed.”

Since the proponents of the attack on “standard-

less” jury discretion have pointed to the Model Penal

Code as illustrating a type of legislative response

available,” it may prove useful to examine the nature

and seope of the Model Code’s “criteria’”’ and to

view petitioners’ constitutional arguments against

this backdrop.

** Wechsler, Degrees of Murder and Related Aspects of the

Penal Law of the United States, in II Royal Commission on

Capital Punishment, Memoranda and Replies to a Question-

naire 783, 785 (1952).

*° See Appendix G, infra, pp. 141-149.

*'See Brief for Petitioner McGautha, No. 203, pp. 27-28;

Brief Amici Curiae of the NAACP et al., Nos. 203 and 204, pp.3-9.

The Reporter’s Comments to the Model Penal Code

explain that there is fundamental agreement with the

British Royal Commission “that ‘the factors which

determine whether the sentence of death is the ap-

propriate penalty in particular cases are too complex

to be compressed within the limits of a single formu-

ia?” The Reporter continued : |

We think, however, that it is within the realm

of possibility to point to the main circum-

stances of aggravation and of mitigation that

should be weighed and weighed against each

other when they are presented in a concrete

case.”

Thus, the Model Penal Code simply undertakes to

“point to”? some of the “main circumstances”’ of ag-

gravation and mitigation that ‘‘should be weighed”’ in

the sentencing process. These criteria are not intended

to be exhaustive or exclusive, as is apparent from the

Code’s proposed direction that, in determining its

penalty verdict, the jury ‘‘shall take into account the

aggravating and mitigating circumstances enumerated

in Subsections (3) and (4) and any other facts that

it deems relevant * * *’’.* The ‘‘weighing’’ process

* ALJ, Model Penal Code § 201.6, Comment, at 71 (Tent. Draft

No. 9, 1959).

* bid. (Emphasis in orginal.) As the emphasized passage

indicates the Model Penal Code departs from the British

Royal Commission’s position that there are too many combi-

nations of aggravating and mitigating factors to permit leg-

islative balancing. See 36 ALI, Proceedings 148 (1959) (re-

marks of Prof. Wechsler).

= 210.6(2), Appendix G, infra, p. 143. (Emphasis

is established by the simple direction that the death

penalty is not to be imposed ‘‘unless it finds one of

the aggravating ciircumstances enumerated in Subsee-

tion (3) and further finds that there are no mitigat.

ing circumstances; [whether enumerated or not] sufi-

ciently substantiall to call for leniency.”’ ”

Thus, the Model Penal Code’s ambitions are mod-

est. The decision not to attempt to list every factor

that may appropriately be considered, and the failure

(and inability, we would think) to assign relative

weight to the enumerated factors, still leaves the jury

much of its traditional discretion.” These “‘criteria”,

therefore, serve at most an educational function not

akin to standards in the strict sense.”

58 Ibid. The Study’ Draft of a New Federal Criminal Code,

which is still in ‘tentative form, contains similar criteria

adopted from the Model Penal Code (see Section 3605, Ap-

pendix G, infra, pp. 148-149). That proposed section would pro-

vide that court andi jury “may consider the mitigating and

aggravating circumstances set forth in the subsections below.”

(Emphasis added). Still under consideration is the question

whether a finding of at least one aggravating circumstance

would be a pre-condiition to a death sentence.

86See Note, The Two-Trial System in Capital Cases, 9

N.Y.U.L. Rev. 50, 74 (1964).

The reference to “mitigating circumstances” was made delib-

erately “open-ended” simply to carry out the objective that

the jury should not look only to aggravating circumstances.

See 36 ALI, Proceedings 204 (1959) (remarks of Prof.

Wechsler).

51 See Dawson, Sentencing: The Decision as to the Type,

Length, and Conditions of Sentence 218 (Am. Bar Founda-

tion 1969).

In this regard, we point out that there is an inherent diff.

culty in trying to use “aggravating circumstances” and “miti-

gating circumstances” as devices for establishing uniformity

The real question thus posed is whether the type

of approach illustrated by the Model Penal Code is

not only an improvement over the present system but

is such a dramatic improvement that the failure of the

States to adopt some such criteria leaves the present

regime SO fundamentally unfair as to deny due process.”

Both of these alternatives are subject to legitimate

doubt.

One recent study has noted that while the Model

Penal Code presupposes the need for greater legis-

lative control of sentencing, this premise is debatable

—

in the sentencing process. Depending on the context, the same

conduct may have the quality of either an aggravating or &

mitigating element. For instance, the bloodiness of the crime

may actually not indicate bestiality and depravity, but may

instead evidence a unique combination of provocation and

mental and emotional stress.

It is inevitable, and, we believe, desirable, in a system which

depends on men and women—juries and judges—and not on

computers, in implementing the criminal process that there will

be varying assessments of apparently similar conduct, depend-

ing on the peculiar facts. See Kalven & Zeisel, The American

Jury 438-439, 444-445 (1966). See, also, Speech of Sir Samuel

Romilly to the House of Commons (1810), reprinted in Michael

& Wechsler, Criminal Law and Its Administration 253 (1940).

Even judges sometimes find themselves unable to agree

whether a particular fact in a single case should be regarded

as in aggravation or mitigation of a capital murder. Compare

Coleman v. United States, 357 F. 2d 563, 569-570 (C.A.D.C.

1965) (en banc), with id. at 578 (Burger, Tamm, Danaher,

JJ., dissenting).

Indeed, it is not clear whether even adoption of criteria

such as those proposed by the Model Penal Code might not

itself lead to a challenge to such standards “as inadequate”.

See Time Magazine, May 25, 1970, p. 67 (remarks of Prof.

Anthony Amsterdam).

and the Code’s proposals in this area have wiaiieg

frequently followed.”

Many courts, in rejecting arguments about the con-

stitutional need for standards to guide the jury

sentencing discretion, have articulated what is im.

plicit in this uniform decision by state legislatures

to omit this proposal of the Model Penal Code from

their revised criminal codes, namely, that such stand.

ards would be not only superfluous but unwise.”

Several policy judgments support this conclusion,

The very fact that the decision is one between life

and death calls, paradoxically, for caution in form-

lating abstract criteria that will not eliminate the

exercise of discretion but will diffuse the sentencing

authority’s sense of personal responsibility for the

judgment.” Any set of “standards” or “‘criteria” may,

by virtue of its goal of establishing some extrinsic

determinants for the crucial decision, tend to transfer

the locus of responsibility on this unique sentencing

decision from the living jury to the lifeless statute.

We live in a society where, left to its own sense of

responsibility and judgment, the American jury re

turns a capital verdict in only a fraction of capital

trials.“ Yet it must be conceded that one or more

“aggravating factors’’—as defined by the Model Penal

%° See Dawson, supra note 57, at 380-381.

* See, ¢.9., Duisen v. State, — Mo. —, 441 S.W. 2d 688, 692

(1969) ; Hunter v. State, — Tenn. —, 440 S.W. 2d 1, 16 (1969)

* Cf. Dawson, supra note 57, at 381.

* See Bedau, The Death Penalty in America 23 (rev. ed.

1967).

Code or any other conceivable enumeration “—accom-

panies nearly every first-degree murder.“ Once the

legislature particularizes the “aggravating circum-

stances” that “‘the State” deems sufficient to warrant

the death penalty in a specific case, there is solid

reason to anticipate a loss in sensitivity in the sen-

tencing process without any corresponding gain in

rationality. Given the realities of the well-documented

reluctance of juries under the present system to im-

a death sentence,® forcing a juror to ask himself

why, in light of the presence of a sufficient aggravat-

ing circumstance highlighted by the statute, the death

penalty should not be imposed may overthrow the

intrinsic caution of the present system.”

® See, generally. George, Aggravating Circumstances in Ameri-

can Substantive and Procedural Criminal Law. 32 U.M.K.C.L.

Rev. 14 (1964).

“See Appellate Power to Reduce Jury-Determined Sentences,

93 Rutgers L. Rev. 490, 528 ( 1969).

See, e.g. Bedau, The Death Penalty in America 23, 35-36

(rev. ed. 1967); Kalven & Zeisel, The American Jury 436

(1966) ; ALI, Model Penal Code § 201.6, Comment, p. 73 (Tent.

Draft No. 9, 1959), and éd., Appendix, pp. 220 e¢ seq.

“Under the present system such eminently “rational” in-

structions as that, in considering whether to fix a life sentence,

the jury should consider the accused’s intelligence and mental-

ity, have been held grounds for reversal as unduly limiting

the jury’s right to be merciful for no reason at all. Manor v.

State. 923 Ga. 594, 157 S.E. 2d 431, 437 (1967). See, also State

v. Worthy, 239 S.C. 449, 123 S.E. 9d 835, 849 (1962); Wilson

v. State, 225 So. 2d 321, 324 (Fla. 1969) ; People v. Bandhauer,

1 Cal. 3d 609, 83 Cal. Rptr. 184, 463 P. 2d 408, 416 (1970) ;

State v. Roseboro, 276 N.C. 185, 171 S.E. 2d 886, 893 (1970), pend-

ing on pet. for cert., No. 5178, O.T. 1970. Compare Winston v.

United States, 172 U.S. 303, 312 (1899).

405-388— 70——_6

The Court of Appeals for the Tenth Cireuit reoenty

made this point:

It is axiomatic that the line between contem.

porary community values and the penal sys.

tem is filled by the jury’s being allowed to be

reflective of prevailing social thought. To assert

that the adoption of rigid guidelines seeking

to control the jury in this respect, thereby sub-

stituting merciless standards for present day

flexibility, is compelled by due process is clearly

untenable.”

This last observation brings us to the final justi-

fication we deem it necessary to advance as a per-

missible basis for the present system of ‘‘standard-

less’? sentencing: that a State may reasonably find

that any set of statutory criteria would unduly stifle

or muffle the voice of the “‘contemporary community”

speaking through the jury on the question whether a

particular member of society should pay the supreme

penalty for his murder.

Historically, as we have seen, it has been thought

appropriate to entrust this momentous decision “to

the judgment and the consciences of the jury” sun-

moned to try the accused’s fate. Winston v. United

States, supra, 172 U.S. at 313. This allocation of

sentencing responsibility meshes neatly with the “in-

sistence upon community participation in the deter-

* Segura v. Patterson, 402 F. 2d 249, 254 (C.A. 10, 1968).

See, also, Comment, Zhe Supreme Court and Capital Punish-

ment—From Wilkerson to Witherspoon and Beyond, 14 St. L.

U.L. Rev. 463, 483 (1970) : “It is doubtful that a detailed list of

predetermined standards could be as humane and flexible as

a jury in reflecting the changing standards of society.”

mination of guilt or innocence” that underlies our

national commitment to the jury system. See Duncan

y, Louisiana, 391 U.S. 145, 156 (1968). As the Court

explained it only last Term in Williams v. Florida,

399 U.S. 78, 100 (1970),

the essential feature of a jury obviously lies

in the interposition between the accused and

his accuser of the common-sense judgment of

a group of laymen, and in the community par-

ticipation and shared responsibility which re-

sults from that group’s determination of guilt

or innocence.

This same philosophy animates the determination to

commit the decision whether a convicted murderer

should be executed to the “common sense judgment of

a jury of his peers”. Baldwin v. New York, 399 U.S.

66, 72 (1970). Jury discretion on capital punishment

reflects the policy that the death penalty should repre-

sent the sanction of the community, acting through the

community’s surrogates in a particular case. The jury

in a capital case is society in microcosm, deciding the

fate of one of its members. Thus last term in Willtams

the Court expressly recognized that the fact that no

State provides for less than twelve jurors in a capital

ease suggests that such a large body is ‘used as a

means of legitimating society’s decision to impose the

death penalty’’. 399 U.S. at 103.

Criteria legislatively codified in advance are not a

constitutionally necessary ingredient in this system.

Any attempt to draw a parallel with our system’s in-

sistence on explicit and formal definition of elements

of criminal conduct to guide the jury’s guilt determi-

nation is -insupportable. The fixing of a sentence jg

“different in kind from a finding that the defendant

committed a specified criminal offense”. Witherspoon

v. Illinois, 391 U.S. 510, 521 n. 20 (1968). The former

inquiry involves the adjudication whether the accused

has done something for which he may be punished;

historical practice and fundamental fairness demand

that the accused have had advance warning of the

precise contours of lawful behavior and also that the

jury be advised exactly what it is the law has pro-

scribed. Those are the dual policies protected by the

constitutional prohibition against ‘‘vagueness”’ in sub-

stantive criminal statutes. But in the sentencing deter-

mination, the accused stands convicted of crime and

the question is what course society should take with

him. That decision inherently and emphatically calls

for the making of an individuated value judgment—

and our basic assumptions about the jury system im-

pel the conclusion that it is fundamentally fair to let

that critical decision be made, without more, by his

assembled peers.

The fairness of this course seems all the more clear

today, when courts, statutes, and the Constitution

itself assure that it will be a fairly constituted jury of

his peers that tries and sentences the accused. Now

settled is the principle that the federal Constitution

guarantees that jury lists must be drawn from a source

that “reasonably reflects a cross section of the popula-

tion suitable in character and intelligence for that

civic duty”. Carter v. Jury Comm’n of Greene County,

396 U.S. 320, 332-333 (1970). To assure compliance

with this constitutional command in the situation

ee i

. 65

where in actuality it may be most crucial, this Court

has reacted sternly to any serious possibility that

Negroes are systematically excluded from grand or

petit juries. See, ¢.9., Coleman v. Alabama, 389 U.S.

92 (1967).

And in Witherspoon v. Illinois, supra, the Court

pointed out that juries in capital cases today are

“fgjuided by neither rule nor standa ” and ex-

plained the essence of the jury’s function in this type

of case (391 U.S. at 519):

a jury that must choose between life imprison-

ment and death can do little more—and must

do nothing less—than express the conscience

of the community on the ultimate question of

life or death.

It was because of the jury’s role as representatives

of society at large in a specific case that the Court

held that the Constitution forbids deliberate exclu-

sion from a capital jury of members of a substantial

subgroup in our country—those with conscientious

scruples about the death penalty. The precise rea-

soning is highly pertinent here (391 U.S. at 519):

And one of the most important functions any

jury can perform in making such a selection

is to maintain a link between contemporary

community values and the penal system—a link

without which the determination of punish-

ment could hardly reflect ‘‘the evolving stand-

ards of decency that mark the progress of a

maturing society”. Trop v. Dulles, 356 U.S. 86,

101 (opinion of The Chief Justice, joined in

by Mr. Justice Black, Mr. Justice Douglas,

and Mr. Justice Whittaker).®

We need not dwell on the point that Witherspoon

would be a superfluous exercise if it does not imply

that jury sentencing discretion without “rule or

standard’’ ¢s compatible with the Due Process Clause

if there is no conscious attempt to make the jury

something less than a random cross-section of the

community. Even apart from the inevitability of such

an inference, we believe it is a legitimate policy for

a State, like California or Ohio, to conclude that it

should maximize the freedom of the individual jury

to express the community’s contemporary judgment

on the severity of the penalty merited by a particular

defendant. If it selects this policy a State, like Cali-

fornia or Ohio, can rationally decide not to volunteer

any abstract and sterile ‘‘criteria’’ that might incline

the jury away from the death penalty or toward it.

Cc. JURIES CAN AND DO FUNCTION RATIONALLY WITHOUT EXPLICIT

LEGISLATIVE STANDARDS ON CAPITAL SENTENCING

Implicit in the foregoing discussion is the basic

assumption that the jury acts rationally in dis-

charging its functions. Certainly this is necessarily

assumed in connection with the jury’s ascertainment

of guilt. This Court has never impugned the validity

of the assumption that, at least when screened from

prejudicial pressures like legally inadmissible but

* Qn the evolving community attitude toward capital pun-

ishment, see The Capital Punishment Controversy, 60 J. Crim. L.,

Criminol. & Pol. Sci. 360 (1969).

99 «69

“powerfully incriminating extrajudicial statements”,

the jury can be trusted to decide the controversy

reasonably, conscientiously, and intelligently. The

Court has carefully warned that it would be “extrava-

t in the extreme” to take cases like Jackson v.

Denno, 378 U.S. 368 (1964), “as evincing a general dis-

trust on the part of this Court of the ability of juries to

approach their task responsibly and to sort out discrete

issues * * *.”? Spencer v. Texas, 385 U.S. 554, 565

(1967). Later, in Bruton v. United States, supra, the

Court expressly reaffirmed its view that, except in rare

situations like the one there dealt with, ‘‘this reliance

[on the jury’s ability] is justified’’. 391 U.S. at 135.

Indeed, in Duncan v. Louisiana, 391 U.S. 145

(1968), in holding that the Sixth Amendment’s guar-

antee of trial by jury in serious criminal cases applies

to the States through the Fourteenth Amendment, the

Court considered and repudiated many of the same

allegations of jury irresponsibility and capriciousness

that are explicit or implicit in the arguments of peti-

tioners and the amici supporting them in the present

eases (391 U.S. at 157):

In addition, at the heart of the dispute have

been express or implicit assertions that juries

are incapable of adequately understanding evi-

dence or determining issues of fact, and that

they are unpredictable, quixotic, and little

better than a roll of dice. Yet, the most recent

and exhaustive study of the jury in criminal

cases coneluded that juries do understand the

* Bruton v. United States, 301 U.S. 123, 135 (1968) ; see, also,

Jackson v. Denno, 378 U.S. 368 (1964).

evidence and come to sound conclusions in most

of the cases presented to them and that when

juries differ with the result at which the judge

would have arrived, it is usually because they

are serving some of the very purposes for which

they were created and for which they ar

now employed. [Emphasis added.]° .

The argument that ‘‘standardless”’ discretion allows

the jury to fix a death sentence out of whim, igno-

rance, or bigotry proceeds in blind disregard for the

actual mechanisms of jury room deliberations. That

argument unfairly assumes that, on this most serious

decision, twelve jurors who have been carefully

screened by defense counsel will silently cast their

ballots for their own private reasons without refer-

ence to or regard for the views of their fellow jury-

men. On the contrary, we submit, as the records of

the deliberations in the instant cases strongly sug-

gest, even when the evidence of guilt is clear and

overwhelming, capital jurors take the time to dis-

cuss and debate amongst themselves the reasons why

the defendant should or should not be executed for

his crime. It borders on the fatuous, in our view, to

suspect that twelve ‘“‘good men and true’’, carefully

Citing Kalven & Zeisel, The American Jury (1966). We

discuss the Kalven & Zeisel findings in this regard in more

detail infra, pp. 70-73.

Nevertheless, despite these judicial reaffirmations and despite

the factual evidence, there remain critics who insist that juries

are so jaded by prejudice and caprice that even sentencing

standards would be of no avail. See, e.g., Goldberg & Der-

showitz, Declaring The Death Penalty Unconstitutional, 8

Harv. L. Rev. 1773, 1793-1794 (1970).

oe “_ NS FS oF

selected for their integrity and responsibility, will

arrive at a capital verdict that is either thoughtless

or capricious, rather than the expression of commu-

nity consensus in microcosm.”

As the New Jersey Supreme Court recently stated :

Here, the Legislature committed the decision

upon punishment to twelve jurors, to be made

upon and after a consideration of all the evi-

dence. A reasoned judgment can be reached

upon an appraisal of the total circumstances

even though no one can articulate in advance

a detailed list of conceivable factors or their

relative weights.”

The hard evidence of the workings of our present

system confirms in fact what has been repeatedly

7 See State v. Smith, 74 Wash. 2d 744, 446 P. 2d 571, 590 (1969),

pending on pet. for cert., No. 5034, O.T. 1970.

See also the testimony of Mr. Justice Frankfurter before the

British Royal Commission on Capital Punishment in 1950,

reprinted in Frankfurter, Of Law and Men, 82 (Elman ed.

1956), speaking of the jury in a capital case:

“Qn the whole, not only do they express a rough kind of

popular feeling about conduct, but for the most part I think

we can trust twelve people on a jury at least as well as

judges as to motives, for judges are rather removed from every-

day activities and on the whole are bound to be so by their

calling.”

Of course, to the extent the jurors may not agree on the

same precise reason why the defendant should or should not

receive a capital sentence, the situation is indistinguishable

from the guilt determination where in agreeing on the ultimate

question the individual jurors may have travelled different

paths, Nevertheless, it is the arrival at consensus after delib-

eration that makes the verdict, whether on guilt or punishment,

a fair and probably accurate determination.

” State v. Forcella, 52 N.J. 268, 245 A. 2d 181, 194 (1968), pend-

ing on pet. for cert., No. 5011, O.T. 1970.

pre agp a OE IIe

affirmed in theory: that juries do in concrete cages

follow rational sentencing patterns without refer-

ence to any statutory criteria.

In the early 1950’s, the British Royal Commission

on Capital Punishment conducted an extensive ean-

vass of the American approach to capital sentencing,

We have already noted that the Commission eon.

cluded that “[n]o formula is possible that would pro-

vide a reasonable criterion for the infinite variety of

circumstances that may affect the gravity of the crime

of murder”, but that “[d]iscretionary judgment on

the facts of each case is the only way in which they

can be equitably distinguished.” The Commission

then proceeded to recommend adoption of the Ameri-

can system of jury discretion.“ This recommendation

was made, however, only after the Commission was

satisfied that the American experience had demon-

strated that, even when the penalty decision is en-

trusted to the “unfettered discretion” of the jury,

“they can be relied on to exercise it reasonably in all

but exceptional cases.’’ ™

Other more recent studies confirm this assessment.

Professors Harry Kalven Jr. and Hans Zeisel, in

preparing their massive study, The American Jury

(1966), analyzed in depth the workings of over 3,500

** Royal Commission on Capital Punishment 1949-1953, Re-

port 7595 (1953).

™ [bid.

> Jd. §594. Mr. Justice Frankfurter had testified before the

Commission: “May I say, with all respect, I do not under-

stand the view that juries are not qualified to discriminate

between situations calling for mitigated sentences.” See Frank-

furter, Of Law and Men 87 (Elman ed. 1956).

jury trials. Their ultimate conclusion was a reaffirma-

tion of the practical reliability of the jury system.

With remarkable regularity, they found, the ad hoc

jury decides the case the way the experienced trial

judge would have." The authors posed three explana-

tions to explain why the jury actually comes so close

tp deciding in accordance with abstract norms (p.

498) :

* * * [First], the official law has done pretty

well in adjusting to the equities, and there is

therefore no great gap between the official values

and the popular. Again, the group nature of

the jury decision will moderate and brake ec-

centric views. Lastly, the jury is not simply a

corner gang picked from the street; it has been

invested with a public task, brought under the

influence of a judge, and put to work in solemn

surroundings.

The final assessment of the jury’s performance, in

light of the empirical data, is this (tbid.) :

The jury thus represents a uniquely subtle

distribution of official power, an unusual ar-

rangement of checks and balances. It repre-

sents also an impressive way of building discre-

tion, equity, and flexibility into a legal system.

The data on jury behavior in capital cases illustrate

this rationality and judgment. The two types of situ-

And to the extent there is disagreement, the jury is eight

times more likely to opt in favor of the defendant than is the

judge (p. 376), either because of its more stringent applica-

tion of the reasonable-doubt standard or because of its rec-

ognition of particular “equities” not officially accommodated

by the law. See, ¢.g., pp. 107-116, 182-190, 300-305, 494-495.

ations that exist, one where judge and jury woul

agree on the death penalty, and the other where they

would not, both seem to indicate that statutory

“standards’’ would be superfluous. In the former cage,

where judge and jury agree that the death penalty

should be imposed, it is because the obvious factors

listed in the Model Penal Code as generally in

‘‘aggravation’’™ are actually present and are found

to preponderate in favor of the death penalty. In

those situations where there is disagreement—and in

the event of disagreement the jury is found to be

somewhat more lenient (p. 436)—there are present

one or more of the rather obvious ‘‘mitigation”’ fae-

tors listed in the Code, such as provocation, emotional

instability, mental abnormality, or mere vicarious par-

ticipation in a killing actually committed by someone

else (pp. 439-445).” The fact of disagreement in the

face of the presence of such factors simply illustrates

that a value-judgment must be made in weighing the

significance of mitigating circumstances against ag-

gravating circumstances. This evaluation is an in-

herent part of the jury’s deliberation on penalty, and

seems to be performed satisfactorily without external

statutory enumeration. Certainly, it must be conceded

™ Such factors include peculiar heinousness, multiple murder,

concurrence with other vicious felony (pp. 437-439).

** The survey demonstrated that the “jury’s sense of equity”

emerged quite clearly in the felony-murder context where the

jury tolerates the “rigidity” of that rule in fixing guilt, but

“rebels at imposing the death penalty for the vicarious crim-

inal responsibility of the defendant” who did not actually kill

the victim (p. 443 & n. 18). This distinction was evidently

drawn by the jury in the McGautha case now before the Court.

to be impossible to assign in advance some relative

quan ‘tative weight that various circumstances should

be accorded in a particular case. Since this is so, and

since juries do at present make their penalty deter-

minations in light of ‘“‘aggravating” and “mitigating” -

circumstances that become evident in the concrete

case, we see utterly no factual basis for petitioners’

argument that only the formulation of statutory

“eriteria’’ can supply fundamental rationality to the

jury’s sentencing decision,

The other major recent study of the workings of

the modern jury system was conducted by the Stan-

ford Law Review and focused on the precise question

now before the Court: whether juries charged with

the responsibility for fixing punishment in capital

cases behave irrationally in the absence of statutory

standards. See A Study of the California Penalty

Jury in First-Degree-Murder Cases: Standardless

Sentencing, 21 Stan. L, Rev. 1302 (1969). That sur-

vey considered all California cases in which first-

degree murder verdicts were returned from 1958

through 1966, some 238 cases (pp. 1306, 1310). In

order to make the study as informative and inquisi-

tive as possible, the authors investigated and analyzed

178 separate variables that might have entered into

the penalty decision in each case (see pp. 1317, and

1471-1476 [listing the variables]). The ultimate con-

clusion reached, apparently to the surprise and disap-

pointment of the student editors, was that there are

“definite patterns of jury decisionmaking, precluding

the possibility that juries make their decisions wholly at

random”, and that “[m]Jore importantly, the discovery

of variables that by themselves affect the penalty deci.

sion clearly indicates standards of decisionmaking”

even without explicit statutory criteria (p. 1419). On the

key question whether the patterns actually revealed

indicate that juries follow any irrational or illegal

standards—like race—, the conclusion was a resound-

ing No (pp. 1346, 1366-1367, 1417-1420). On the con.

trary, jurors under the present system do indeed

follow patterns which ‘‘are rational in terms of, say,

the Model Penal Code’’ (p. 1429).”

For instance, the Model Penal Code enumerates as

The one asserted exception to this finding of rationality

was the conclusion that juries appear to discriminate along

economic lines, in that blue-collar murderers were somewhat

more likely to receive the death penalty than white-collar mur-

derers (p. 1419). This was the only “factual” basis to which the

student authors could point as indicating that “standardless”

sentencing should be abolished (pp. 1420, 1421, 1429, 1431). It

is not clear how this conclusion can be reconciled with the

authors’ own recognition that a set of criteria like those in the

Model Penal Code could not in any event preclude a bias-

minded jury from making an unreviewable decision to “aggra-

vate” or “mitigate” along impermissible lines (pp. 1422-1493),

However, the validity of even this single finding of irration-

ality was questioned by Prof. Harry Kalven Jr., who wrote

the Preface for the student piece. On the basis of his years of

experience with the American jury, Prof. Kalven commented:

“I am not persuaded that this is an expression of simple

class bias and not a reflection of a more subtle concern with

personality and character.”

Professor Kalven further explained :

“IT would suggest also that the authors risk being corrupted

somewhat by their passion for turning their findings into con-

stitutional arguments against the death penalty. It keeps them

from being speculative enough about the mystery they are

inquiring into.”

Kalven, A Study of the California Penalty Jury in First-

Degree-Murder Cases: Preface, 21 Stan. L. Rev. 1297, 1300, 1301

(1969).

eee ee eet mrt ew

“aggravating circumstances” (see Section 210.6(3),

App. G, infra, p. 144): a prior record of violent felo-

nies; commission of more than one murder on the

occasion; and killing while resisting arrest or

" ommitting a forcible felony. Without the existence of

a formal codification of such factors, juries exercising

‘ their innate common sense “ recognized, assessed, and

applied these factors in concrete cases. Thus, the most

significant impact on whether the death penalty was

selected came from whether the defendant had a prior

felony record (pp. 1326-1327, 1389-1390, 1412). The

incidence of the death penalty also varied directly with

the number of victims actually killed or wounded (p.

1351, 1398). And a murder committed while resisting

arrest was recognized as aggravated (pp. 1354-1355),

as was a killing during the course of another felony,

like kidnapping or rape (p. 1352, 1401)."

On the other hand, the Model Penal Code spells

out as “mitigating circumstances” the lack of prior

criminal history, the effect of extreme mental or

emotional disturbance, vicarious participation in a

killing committed by another, and diminished mental

capacity. Here again, the jury required no such ex-

trinsie enumeration to recognize the potential sig-

nificance of such factors. Thus, the cleaner the

defendant’s prior record, the less likely he was w

be condemned to death (pp. 1389-1390). So too, severe

provocation or stress reduced the likelihood of the

“See Baldwin v. New York, 399 U.S. 66, 72 (1970).

* Notably, one factor that the Model Penal Code would point

to as “aggravating”—exceptional bloodiness—is not assigned

any such significance by juries under the present system (p.

1357).

death penalty (pp. 1404-1406, 1408). If the killing

was actually committed by a co-participant in ‘the

crime, the jury was exceedingly unlikely to return a

death verdict (pp. 1348, 1398). And the Code’s con-

cept of diminished responsibility was found to be

reflected in practice by the reduced incidence of capi-

tal verdicts against murderers who had, for instanee,

consumed some alcohol before committing the crime

(pp. 1357-1358, 1389).

The two cases now before the Court illustrate the

accuracy of those findings of jury rationality even

in the absence of extrinsic standards. When the jury

refused to exercise its prerogative under Ohio law

to recommend mercy for James Edward Crampton,

it knew him to be a habitual criminal who had spent

much of his adult life in prison, a man who had not

benefited from prior confinement in prison or treat-

ment in hospitals. Within the span of a few days

prior to murdering his wife he had embarked on a

one-man interstate crime wave demonstrating extra-

ordinary disregard for the law. The crime itself was

obviously cold-blooded murder, the culmination of

months of threats and the product of a clear design

to obtain and use a lethal weapon. The killing was

completely unprovoked, while the victim was helpless.

And on the other hand, the evidence failed to demon-

strate anything in support of Crampton’s insanity

defense beyond a purely sociopathic condition—an an-

tagonism to the norms of society.

Nor is there any more room to speculate that the

‘standardless’”’ sentencing of Dennis Councle Me-

Gautha was irrational. Rather, the jury seems to have

heen eminently reasonable in drawing the distinction

it did in fixing a life sentence for co-defendant

Wilkinson and a death sentence for McGautha. In

terms of all the aggravating and mitigating circum-

stances enumerated by the Model Penal Code and

actually sensed and applied by modern juries, Mc-

Gautha and his co-defendant stood poles apart. Per-

haps most dramatic was the jury’s persistent effort

to determine which of the two men had actually fired

the fatal shot. McGautha argues that this inquiry was

“immaterial to the question of their legal responsibil-

ity for the crime charged’’.” Legally, of course, both

men were guilty of felony-murder. But as the Model

Penal Code suggests, and as the studies by Kalven

and Zeisel and by the Stanford Law Review dem-

mstrate, it does indeed make sense on the penalty

question to treat a man who is im fact only a robber

differently from one who is in law and in fact a

killer.”

Thus, juries in general, as typified by the juries

in the instant cases, do follow rational patterns in

deliberating the fateful question of which murderers

should die for their crimes and which should not.

There is simply no factual basis for the argument

that statutory standards are constitutionally neces-

sry to insure the fairness of these deliberations.

“Brief for Petitioner McGautha, No. 203, p. 7.

'See, also, People v. Hicks, 287 N.Y. 165, 170, 88 N.E. 2d

492, 485 (1941) (the jury in a felony-murder case may tailor

the penalties “to the varying degrees of moral guilt of the

persons involved in the same crime”).

405-888—70——7

D. THE PAESENT SYSTEM OF JURY: DISCRETION IN CAPITAL GRUNT HEC,

DOES NOT VIOLATE ANY CONSTITUTIONALLY PROTECTED INTEREST or

AN ACCUBED

Petitioners’ principal thrust i is that “‘standardless”

jury discretion in capital sentencing is fundamentally

unfair because it allows juries to be arbitrary ‘and

capricious when left to their own devices. We have

seen that this contention finds ho support in law or in

fact. But in the course of pressing the argument, peti.

tioners refer to certain other “rights’”’ which are al-

legedly infringed by the State’s decision not ty

establish a set of statutory standards. These claims,

however, rest on equally shaky foundations.

1, The argument is made that the absence of official,

published standards deprives every person charged

with a capital offense of notice of what factors are

going to be considered in determining his punishment

upon conviction. Such a contention proceeds on the

assumption that defense counsel (and indeed the

prosecutor) lack the same common sense that ani-

mates the jury, for it rather naively supposes that

counsel cannot predict with some degree of relia-

bility what factors in his case are likely to appeal to

the jury he has helped to select (and thus should be

stressed) and which are likely to offend it (and thus

should be muted).

In any event, this “notice” point ignores the settled

constitutional principle that when a pure question of

sentencing is involved—including capital sentencing—

the accused is not entitled to notice of the factors

that will be considered, or to a hearing on their

weight, or to an opportunity to litigate those factors

or others. See, ¢.9., Williams v. New York, 337 U.S.

941, 245-246 (1949) ; Williams v. Oklahoma, 358 US.

516, 583-584 (1959)." In accordance with this settled

rule, this Court and lower federal courts invariably

agree that a defendant has no right to examine and

litigate the pre-sentence report on which his sentence

will be based.”

9, A second subordinate argument advanced in

support of the need for statutory standards is that

without such formally defined factors it is impossible

to review the jury’s penalty decision. This contention

is doubly deficient. First, it begs the critical question

ghether the jury is constitutionally obliged to fix a

penalty according to some set of pre-determined cri-

teria. And second, and perhaps more basic, this posi-

tion has as its major premise the notion that the Con-

stitution guarantees a right of review of the jury’s

penalty verdict. This premise is demonstrably false.

As was stated in Williams v. Oklahoma City, 395

U.S. 458, 459 (1969), this Court has ‘‘never held that

the States are required to establish avenues of appel-

“The holding in Williams v. New York on this point was

explicitly reaffirmed in Specht v. Patterson, 386 U.S. 605, 608

(1967). Cf. Solesbee v. Balkcom, 389 U.S. 9, 12-18 (1950),

holding thut due process does not guarantee % person under

sentence of death a right to an adversary hearing or an op-

portunity to present evidence in support of a request for ex-

ecutive clemency.

See, c.g., Gregg v. United States, 394 U.S. 489, 492 (1969) ;

United States v. Kee Ming Heu, 494 F. 2d 1286, 1291 & n. 1

(C.A. 2, 1970); United States v. Chapman, 420 F. 2d 925,

996 (C.A. 5, 1969); United States v. Trigg, 392 F. 2d 860,

864 (C.A. 7), certiorari denied, 391 U.S. 961 (1968); United

States v. Gross, 416 F. 2d 1205 (C.A. 8, 1969), certiorari de-

nied, 397 U.S. 1013 (1970) ; Cook v. Willingham, 400 F. 2d 885

(C.A. 10, 1968).

late review.’’ See, also, McKane v. Durston, 153 Ug,

684, 687 (1894). Indeed, in Andrews v. Schwarts, 15%

U.S. 272, 275 (1895), the Court specifically rejected

the claim that due process should be held to guaran.

tee a right of appeal in a capital case.

And even when appeals are allowed, there is no

constitutional compulsion to broaden the scope of

review to include the sentence. Few states

authorize appellate review of sentences.” Si

in the federal system, this Court and the lower fed.

eral courts have long expressed inability, in the

absence of specific statutory authority, to review a

sentence that is within the maximum limits fixed by

law. See, e.g., Gore v. United States, 357 U.S. 386,

393 (1958) ; Scott v. United States, 419 F. 2d 264, 266

n. 2 (C.A.D.C. 1969)."

It would seem to follow then that the Constitution

cannot be said to require the formulation of stand-

ards for capital sentencing in order to facilitate

review of the sentencing determination when the Con-

stitution does not require the review itself and most

jurisdictions do not authorize it. Even where review

by the trial judge or by an appellate court is author-

** See President’s Commission on Law Enforcement and Ad-

ministration of Justice, Task Force Report: The Courts 25

brand also, Weigel, Appellate Revision of Sentences: To

Make the Punishment Fit the Crime, 20 Stan. L. Rev. 405,

411 (1968).

The National Commission on Reform of Federal Criminal

Laws, in its Study Draft of a New Federal Criminal Code

(1970), proposes amending 28 U.S.C. § 1291 to authorize courts

of appeals to review, reduce, or set aside a criminal sentence

(p. 311).

ised, We can perceive no Treason why the election to

it that review must carry with it the enumeration

of criteria to which the primary sentencing authority

is to look. Indeed, where review is allowed it may be

more desirable to avoid the formulation of sentencing

standards; such standards might tend to discourage

the reviewing court from exercising independent dis-

eretion if it found “some” evidence in support of one

or more “aggravating circumstances”—almost an in-

evitable situation in a first degree murder case. Thus,

even if it opts to permit review of the death sentence,

the State has a legitimate interest in not attempting

to codify sentencing considerations.

3, Finally, there are some cryptic references to the

Equal Protection Clause as a constitutional basis for

requiring standards. We have already seen that juries

do, without statutory standards, follow general pat-

terns in considering certain types of circumstances

as normally of an aggravating nature and others as of

a generally mitigating tone. It is true that a person

convicted of a first-degree murder that appears to be

similar to the crime committed by another person

may receive the death penalty while the other per-

son is sentenced to life imprisonment, or vice versa.

At most this indicates that different juries—or judges

—may assess similar factors differently or accord

them different relative weight. This occasional dis-

parity is inherent in any system that depends on hu-

*The Appendix to California’s Respondent’s Brief in the

MeGautha case, No. 208, shows that every death case before the

California Supreme Court in the past five years involved at least

one “aggravating circumstance.” Compare St

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