Amicus Curiae Brief — McGautha v. California
Supreme Court brief1971
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Text
— —
— 5 1
IN THE
Court, US.
Supreme Court of the United PRAT E 5
Octoser TAM, 1970
— ArT 12 1970
wile JOHN F. DAVIS, CLERK
Dennis CouncLE MoGautTHa, :
etitioner,
—v.—
Strate or CALIFORNIA,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
—
No. 204
JaMEs EDWARD CRAMPTON,
Petitioner,
—v.—
State or OHIO,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
2 ͤ —äa4— — —
—— — —— —
—
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE AND
BRIEF AMICI CURIAE OF THE N.A.A.C.P. LEGAL DEFENSE
AND EDUCATIONAL FUND, INC., AND THE NATIONAL
OFFICE FOR THE RIGHTS OF THE INDIGENT
I
Jack GREENBERG
James M. Nasait, III
Jack HIMMELSTEIN
10 Columbus Circle, Suite 2030
New York, New York 10019
MicHAaEL MELTSNER
Columbia University School of Law
New York, New York 10027
AntTHony G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
Attorneys for the N.A.A.C.P. Legal
Defense and Educational Fund,
Inc., and the National Office for
the Rights of the Indigent
INDEX
PAGE
Motion for Leave to File Brief Amici Curiae and State-
ment of Interest of the Amici 1-M
Brief Amici Curiae | : 1
Summary of Argument 2
Argument 3
I. Introduction 3
II. The Issue of Standardless and Arbitrary Capi-
tal Sentencing Power 18
A. The Nature of the Power 18
1. Ohio 18
2. California 30
3. Other Jurisdictions 49
B. The Power Is Unconstitutional — 64
III. The Issue of the Single-Verdict Capital Trial 72
IV. The Question of Retroactivity 74
A. The “Standards” Issue 74
B. The Single-Verdict Trial Issue 78
ConcLUSION 82
Aprenpix A—
Brief for Petitioner, William L. Maxwell v. O. E.
Bishop, O. T. 1968, No. 622 la
Arrenpix B—
Available Information Relating to the Proportion
of Persons Actually Sentenced to Death, Among
Those Convicted of Capital Crimes 24a
Aprenpix C—
Manner of Submission of the Death-Penalty Issue
at Petitioner Maxwell’s Trial 35a
— — a
TaBLe oF AUTHORITIES
Cases:
Adderly v. Wainwright, U.S.D.C., M.D. Fla., No. 67.
298-Civ-J —
Akins v. State, 148 Tex. Crim. App. 523, 182 §.W.24
723 (1944) — 6ʃ
Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954) — 55
Andres v. United States, 333 U.S. 740 (1948) — 50
Ashbrook v. State, 49 Ohio App. 298, 197 N. E. 214
(1935) 21.72.74
Baker v. State, 137 Fla. 27, 188 So. 634 (1939) 64
Bankhead v. State, 124 Ala. 14, 26 So. 979 (1899) 51
Barfield v. State, 179 Ga. 293, 175 S. E. 582 (1934) 33
Batts v. State, 189 Tenn. 30, 222 S.W.2d 190 ( 1946) — 64
Baugus v. State, 141 So. 2d 264 (Fla. 1962) . 55, 57, 61, 63, 68
Beard v. State, 64 Ohio Law Abs. 532, 112 N.E.2d 832
(1951) 19
Boggs v. State, 268 Ala. 358, 106 S.2d 263 ( 1958) . 55
Bouie v. City of Columbia, 378 U.S. 347 (1964) 71
Boykin v. Alabama, 395 U.S. 238 (1969) (O.T. 1968,
No. 642) 3-M, 49
Brown v. State, 109 Ala. 70, 20 So. 103 (1896) 58, 62
Brown v. State, 190 Ga. 169, 8 S. E. 2d 652 (1940) 6
Burgess v. State, 256 Ala. 5, 53 So. 2d 568 (1951) . 51
Burnette v. State, 157 So. 2d 65 (Fla. 1963)
Butler v. Alabama, O. T. 1970, No. 5492 62
City of Toledo v. Reasonover, 5 Ohio St. 2d 22, 213
N. E. 2d 179 (1965) 18
Commonwealth v. Brown, 309 Pa. 515, 164 A. 726
(1933) 58
3M
PAGE
Commonwealth v. Edwards, 380 Pa. 52, 110 A.2d 216
(1955) 64
Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241
(1959) 64
Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84
(1948) 55, 64
Commonwealth v. McNeil, 328 Mass. 436, 104 N. E. 2d
153 (1952) 57, 72
Commonwealth v. Nassar, 354 Mass. 249, 237 N. E. 2d
39 (1968)
Commonwealth v. Ross, 413 Pa. 35, 195 A.2d 81 (1963)
Commonwealth v. Smith, 405 Pa. 456, 176 A.2d 619
(1962)
Commonwealth v. Taranow, 359 Pa. 342, 59 A.2d 53
(1948)
Commonwealth v. Wooding, 355 Pa. 555, 50 A.2d 328
(1947) 55, 56, 61
Commonwealth v. Zeitz, 364 Pa. 294, 72 A.2d 282 (1950) 64
Daniels v. State, 199 Ga. 818, 35 S. E. 2d 362 (1945)
Davis v. State, 123 So.2d 703 (Fla. 1960)
Davis v. State, 190 Ga. 100, 8 S. E. 2d 394 (1940)
Dinsmore v. State, 61 Neb. 418, 85 N. W. 445 (1901) —57, 60
Duisen v. State, —— Mo. ——, 441 S.W.2d 688
(1969) 55, 56
Edwards v. Commonwealth, 298 Ky. 366, 182 S. W. 2d
948 (1944) 55, 60
Ex parte Knight, 73 Ohio App. 547, 57 N. E. 2d 273
(1944) 19, 21
Ex parte Kramer, 61 Nev. 174, 122 P.2d 862 (1942) 54
“=
— —— a eG A TE
PAGE
Ex parte Skaug, 63 Nev. 101, 164 P.2d 743 (1945) . 61
Fleming v. State, 34 Ohio App. 536, 171 N. E. 407
(1929), af d, 122 Ohio St. 156, 171 N. E. 27 (1930) — 18
Franks v. State, 139 Tex. Crim. App. 42, 138 S. W. 2d
109 (1940) —
Furman v. Georgia, O. T. 1970, Misc. No. 5059 — 62
Garner v. State, 28 Fla. 113, 9 So. 835 (1891)
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) 3,68
Gohlston v. State, 143 Tenn. 126, 223 S. W. 839 (1920) 53
Grandsinger v. State, 161 Neb. 419, 73 N. W. 2d 632
(1955) 56, 59, 61
Hamilton v. Alabama, 368 U.S. 52 ( 1961) 81
Harrington v. California, 395 U.S. 250 (1969) 79
Harris v. State, 183 Ga. 574, 188 S.E. 883 (1936) . 61
Hernandez v. State, 43 Ariz. 424, 32 P. 2d 18 (1934) 55, 61
Hicks v. State, 196 Ga. 671, 27 S.E.2d 307 (1943). 61
Hill v. North Carolina, O. T. 1970, Misc. No. 5136 a
Hinton v. State, 280 Ala. 848, 189 So. 2d 849 (1966) — 55
Hopkins v. State, 190 Ga. 180, 8 S. E. 2d 633 (1940) — 61
Hoppe v. State, 29 Ohio App. 467, 163 N. E. 715
(1928) 19, 28
Howell v. State, 102 Ohio St. 411, 131 N.E. 706
(1921) 22, 23, 24, 25, 26, 27, 66, 71
In re Anderson, 69 Cal.2d 613, 447 P.2d 117, 73 Cal.
Rptr. 21 (1968), O.T. 1970, Misc. No. 5118 N, 47, 48
Jackson v. Denno, 378 U.S. 368 ( 1964) 78
Johnson v. New Jersey, 384 U.S. 719 (1966) 75, 77, 81
— — ore ee — — .
Johnson v. State, 61 So.2d 179 (Fla. 1952) 64
Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961) ....58, 60
Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964) ....51, 60
Jones v. Commonwealth, 194 Va. 273, 72 S. E. 2d 693
(1952) 58
Kramer v. State, 60 Nev. 262, 108 P. 2d 304 (1940) 54
Lee v. State, 166 So. 2d 131 (Fla. 1964) 51
Leopold v. People, 105 Colo. 147, 95 P.2d 811 (1939) .... 58
Licavoli v. State, 20 Ohio Ops. 562, 34 N.E.2d 450
(1935) 27
Linkletter v. Walker, 381 U.S. 618 (1965) 57, 77
Liska v. State, 115 Ohio St. 283, 152 N. E. 667 (1926) . 27, 66
Lovelady v. State, 150 Tex. Crim. App. 50, 198 S. W. 2d
570 (1947) 56
Lovett v. State, 30 Fla. 142, 11 So. 550 (1392) 61
McBurnett v. State, 206 Ga. 59, 55 S.E.2d 598 (1949) 55
McCants v. Alabama, O. T. 1970, Misc. No. 5009. 62
McCoy v. State, 191 Ga. 516, 13 S. E. 2d 183 (1941) 60
Manor v. State, 223 Ga. 594, 157 S. E. 2d 431 (1967) ... 56
Marks v. Louisiana, O. T. 1970, Mise. No. 5007 63
Massa v. State, 37 Ohio App. 532, 175 N. E. 219 (1930) 22,
26, 27
Mathis v. New Jersey, O.T. 1970, Mise. No. 5006-60, 62
Maxwell v. Bishop, —— U.S. —— (1970) (O. T. 1969,
No. 13) 4-M, 5-M, 7, 12
Merchant v. State, 217 Md. 61, 141 A.2d 487 (1958) .... 63
Montalto v. State, 51 Ohio App. 6, 199 N.E. 198 (1935) 18
Moore v. Illinois, O.T. 1970, Mise. No. 5058 63
Morissette v. United States, 342 U.S. 246 (1952) 76
Newton v. State, 21 Fla. 53 (1884)
Pait v. State, 112 So.2d 380 0 S|
People v. Aikens, 70 Cal.2d 369, 450 P.2d 258, 74 Cal.
Rptr. 882 (1969) 32, 36
People v. Anderson, 63 Cal.2d 351, 406 P.2d 43, 46
Cal. Rptr. 763 (1965) eg ae
People v. Anderson, 64 Cal.2d 633, 414 P.2d 366, 51
Cal. Rptr. 238 (1966) 45, 47
People v. Baldonado, 53 Cal.2d 824, 350 P.2d 115, 3
Cal. Rptr. 363 (1960) — 32
People v. Bandhauer, 1 Cal.3d 609, 463 P.2d 408, 83
Cal. Rptr. 184 (1970) — 6
People v. Bandhauer, 66 Cal. 2d 524, 426 P. 2d 900, 58
Cal. Rptr. 332 (1967) 39, 40, 47
People v. Bernette, 30 IIl. 2d 359, 197 N. E. 2d 436 (1964) 55
People v. Bickley, 57 Cal. 2d 788, 372 P. 2d 100, 22 Cal.
Rptr. 340 (1962) 35, 37, 38
People v. Black, 367 III. 209, 10 N.E.2d 801 (1937) ...... 58
People v. Brawley, 1 Cal.3d 277, 461 P.2d 361, 82 Cal.
Rptr. 161 (1969) 44, 46
People v. Brice, 49 Cal.2d 434, 317 P.2d 961 (1957) — 47
People v. Cartier, 54 Cal. 2d 300, 353 P. 2d 53, 5 Cal.
Rptr. 573 (1960) 47
People v. Ciucei, 8 IIl. 2d 619, 137 N. E. 2d 40 (1956) — 58
People v. Clark, 62 Cal.2d 870, 402 P.2d 856, 44 Cal.
Rptr. 784 (1965) 36, 45
People v. Corwin, 52 Cal.2d 404, 340 P.2d 626 (1959) 35
People v. Crews, 42 IIl. 2d 60, 244 N. E. 2d 593 (1969) — 63
People v. Deptula, 58 Cal. 2d 225, 373 P. 2d 430, 23 Cal.
Rptr. 366 (1962) 32
PAGE
People v. Durham, 70 Cal.2d 171, 449 P.2d 198, 74 Cal.
Rptr. 262 (1969) 35, 36, 40
People v. Feldkamp, 51 Cal.2d 237, 331 P.2d 632
(1958) 35, 48
People v. Floyd, 1 Cal.2d 694, 464 P.2d 64, 83 Cal.
Rptr. 608 (1970) 35, 38
People v. Friend, 47 Cal.2d 749, 306 P.2d 463 (1957) . 41,
42, 43, 44, 46, 47
People v. Garner, 57 Cal.2d 135, 367 P.2d 680, 18 Cal.
Rptr. 40 (1961) 37
People v. Gilbert, 63 Cal.2d 690, 408 P.2d 365, 47 Cal.
Rptr. 909 (1966) 35
People v. Glatman, 52 Cal.2d 283, 340 P.2d 8 (1959) — 33
People v. Golston, 58 Cal.2d 535, 375 P.2d 51, 25 Cal.
Rptr. 83 (1962) 32
People v. Gonzales, 56 Cal.2d 317, 363 P.2d 871, 14 Cal.
Rptr. 639 (1961) 40
People v. Gonzales, 66 Cal.2d 482, 426 P.2d 929, 58 Cal.
Rptr. 361 (19677 35
People v. Green, 47 Cal.2d 209, 302 P.2d 307 (1956) ....41, 47
People v. Griffin, 60 Cal.2d 182, 383 P.2d 432, 32 Cal.
Rptr. 24 (1963) rev’d on other grounds, 380 U.S. 609
(1965) 36, 40
People v. Hamilton, 60 Cal.2d 105, 383 P.2d 412, 32 Cal.
Rptr. 4 (1963) 36, 38, 40, 41, 47
People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 30 Cal.
Rptr. 841 (1963) 40, 41, 43, 44, 46
People v. Hill, 66 Cal.2d 536, 426 P.2d 908, 58 Cal.
Rptr. 340 (1967) 38, 40, 41, 48
People v. Hillery, 62 Cal.2d 692, 401 P.2d 382, 44 Cal.
Rptr. 30 (1965) 37
People v. Hillery, 65 Cal.2d 795, 423 P.2d 208, 56 Cal.
Rptr. 280 (1967) 35, 40, 41, 43, 45, 46
People v. Hines, 61 Cal.2d 164, 390 P.2d 398, 37 Cal.
Rptr. 622 (1964) 36, 39, 42, 47,70
People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 16 Cal.
Rptr. 370 (1961) 35, 40, 41, 42, 43, 47, 48
People v. Imbler, 57 Cal.2d 711, 371 P.2d 304, 21 Cal.
Rptr. 568 (1962) 37
People v. Jackson, 59 Cal.2d 375, 379 P.2d 937, 29 Cal.
Rptr. 505 (1963) 35
People v. Jacobson, 63 Cal.2d 319, 405 P.2d 555, 46 Cal.
Rptr. 515 (1965) 3
People v. Jackson, 67 Cal. 2d 96, 429 P. 2d 600, 60 Cal.
Rptr. 248 (1967) 32
People v. Jones, 52 Cal.2d 636, 343 P.2d 577 (1959) ....32, 33,
38, 47, 67
People v. Ketchel, 59 Cal.2d 503, 381 P.2d 394, 30 Cal.
Rptr. 538 (1963) 35, 37, 40, 48
People v. Kidd, 56 Cal.2d 759, 366 P.2d 49, 16 Cal.
Rptr. 793 (1961) 37
People v. King, 1 Cal.3d 791, 463 P.2d 753, 83 Cal.
Rptr. 401 (1970) 32
People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 16 Cal.
Rptr. 801 (1961) 37, 40, 41, 43, 44
People v. Langdon, 52 Cal.2d 425, 341 P.2d 303 (1959) 32
People v. Linden, 52 Cal.2d 1, 338 P.2d 397 (1959) -...40, 41,
43, 48
People v. Lindsey, 56 Cal.2d 324, 363 P.2d 910, 14 Cal.
Rptr. 678 (1961) 36, 48
People v. Lookado, 66 Cal.2d 307, 425 P.2d 208, 57 Cal.
Rptr. 608 (1967) 32, 48
People v. Lopez, 60 Cal.2d 223, 384 P.2d 16, 32 Cal.
Rptr. 424 (1963) 36
People v. Love, 53 Cal.2d 843, 350 P.2d 705, 3 Cal.
Rptr. 665 (1960) 35, 36, 38, 76
People v. Love, 56 Cal.2d 720, 366 P.2d 33, 16 Cal.
Rptr. 777, 17 Cal. Rptr. 481 (1961) ..............37, 40, 47, 48
People v. McClellan, —— Cal.3d ——, 457 P.2d 871, 80
Cal. Rptr. 31 (1969) 36
People v. Mason, 54 Cal.2d 164, 351 P.2d 1025, 4 Cal.
Rptr. 841 (1960) 47
People v. Massie, 66 Cal.2d 899, 428 P.2d 869, 59 Cal.
Rptr. 733 (1967) 32
People v. Mathis, 63 Cal.2d 416, 406 P.2d 65, 46 Cal.
Rptr. 785 (1965) 36
People v. Mitchell, 63 Cal.2d 805, 409 P.2d 211, 48 Cal.
Rptr. 371 (1966) 36, 40, 46, 48
People v. Modesto, 59 Cal.2d 722, 382 P.2d 33, 31 Cal.
Rptr. 225 (1963) 36
People v. Monk, 56 Cal.2d 288, 363 P.2d 865, 14 Cal.
Rptr. 633 (1961) 48
People v. Moore, 53 Cal.2d 451, 348 P.2d 584, 2 Cal.
Rptr. 6 (1960) 48
People v. Morse, 60 Cal.2d 631, 388 P.2d 33, 36 Cal.
Rptr. 201 (1964) 37, 40, 46
People v. Moya, 53 Cal.2d 819, 350 P.2d 112, 3 Cal.
Rptr. 360 (1960) 37
People v. Nicholaus, 65 Cal. 2d 866, 423 P. 2d 787, 56 Cal.
Rptr. 635 (1967) 48
People v. Nye, —— Cal.3d ——, 455 P. 2d 395, 78 Cal.
Rptr. 467 (1969) 38, 45, 46
PAGE
People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134
N.E.2d 197 (1956) 76
People v. Pike, 58 Cal. 2d 70, 372 P. 2d 656, 22 Cal.
Rptr. 664 (1962) 35, 37
People v. Polk, 63 Cal.2d 443, 406 P.2d 641, 47 Cal. .
Rptr. 1 (1965) 36, 44, 45,47
People v. Purvis, 52 Cal.2d 871, 346 P.2d 22 (1959) _..36, 38
People v. Purvis, 56 Cal.2d 93, 362 P.2d 713, 13 Cal.
Rptr. 801 (1961) 41, 47
People v. Purvis, 60 Cal.2d 323, 384 P.2d 424, 33 Cal.
Rptr. 104 (1963) 37
People v. Reeves, 64 Cal.2d 766, 415 P.2d 35, 51 Cal.
Rptr. 691 (1966) 32, 36, 48
People v. Risenhoover, 70 Cal.2d 39, 447 P.2d 925, 73
Cal. Rptr. 533 (1968) 36
People v. Rittger, 54 Cal.2d 720, 355 P.2d 645, 7 Cal.
Rptr. 901 (1960) 48
People v. Shipp, 59 Cal.2d 845, 382 P.2d 577, 31 Cal.
Rptr. 457 (1963) 40
People v. Sieterle, 56 Cal.2d 320, 363 P.2d 913, 14 Cal.
Rptr. 681 (1961) 32
People v. Sosa, 251 Cal. App.2d 9, 58 Cal. Rptr. 912
(1967) 32
40
45
58
People v. Spencer, 60 Cal.2d 64, 383 P.2d 134, 31 Cal.
Rptr. 782 (1963)
People v. Stanworth, —— Cal.3d ——, 457 P.2d 889, 80
Cal. Rptr. 49 (1969)
People v. Sullivan, 345 Ill. 87, 177 N.E. 733 (1931) ......
People v. Tahl, 65 Cal.2d 719, 423 P.2d 246, 56 Cal.
Rptr. 318 (1967) 33, 35, 36, 40
People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 51 Cal.
Rptr. 417 (1966) 35, 40, 41
xi
PAGE
People v. Terry, 57 Cal.2d 538, 370 P.2d 985, 21 Cal.
Rptr. 185 (1962) 35, 37, 38, 40, 47
People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 37 Cal.
Rptr. 605 (1964) 36, 38, 39, 40, 45, 46, 47, 68
People v. Thomas, 65 Cal.2d 698, 423 P.2d 233, 56 Cal.
Rptr. 305 (1967) 40
People v. Varnum, 61 Cal.2d 425, 392 P.2d 961, 38 Cal.
Rptr. 881 (1964) 37
People v. Varnum, 66 Cal.2d 808, 427 P.2d 772, 59 Cal.
Rptr. 108 (1967) 36
People v. Vaughn, —— Cal.3d ——, 455 P.2d 122, 78
Cal. Rptr. 186 (1969) 26, 45
People v. Washington, —— Cal.2d ——, 458 P.2d 479,
80 Cal. Rptr. 567 (1969) 32, 41, 43, 45, 46
People v. Welch, 58 Cal.2d 271, 373 P.2d 427, 23 Cal.
Rptr. 363 (1962) 37, 48
People v. White, 69 Cal. 2d 751, 446 P. 2d 993, 72 Cal.
Rptr. 873 (1968) 40, 47
people v. Whitmere, 251 Cal. App. 2d 359, 59 Cal.
Rptr. 411 (1967) 32
Pixley v. State, 406 P.2d 662 (Wyo. 1965)
Porter v. State, 177 Tenn. 515, 151 S.W.2d 171
(1941) 57, 64
Rehfeld v. State, 102 Ohio St. 431, 131 N.E. 712
(1921) 24, 25
Rice v. Commonwealth, 278 Ky. 43, 128 S.W.2d 219
(1939) 51, 61, 64
Rice v. State, 250 Ala. 638, 35 So.2d 617 (1948) 64
Roberts v. Russell, 392 U.S. 293 (1968) 75, 78
Robinson v. California, 370 U.S. 660 .
Roseboro v. North Carolina, O. T. 1970, Misc. No. 5178 62
PAGE
Scott v. State, 247 Ala. 62, 22 So.2d 529 (1945) 0 64
Shelton v. State, 102 Ohio St. 376, 131 N.E. 704 (1921) 97
Shimniok v. State, 197 Miss. 179, 19 So. 760
(1944) 57, 62,64
Shustrom v. State, 205 Ind. 287, 185 N.E. 438 (1933) — 63
Simmons v. United States, 390 U.S. 377 (1968) 7³
Smith & Riggins v. Washington, O. T. 1970, Misc. No.
5034 63
Spain v. State, 59 Miss. 19 (1881) 55, 58, 61
Spencer v. Texas, 385 U.S. 554 (1967) 65
State v. Alvarez, 182 Neb. 358, 154 N.W.2d 746
(1967) 52, 63
State v. Ames, 50 Ohio Law Abs. 311, 80 N.E.2d 168
(1947), rehearing denied, 81 N.E. 2d 238 (1948), app.
dism’d, 149 Ohio St. 192, 78 N.E.2d 48 (1948) 27, 8
State v. Anderson (Mo. Supp.), 384 S.W.2d 591 (1964) 63
State v. Blakely, 158 S.C. 304, 155 S.E. 408 (1930) ..... 58
State v. Brown, 60 Wyo. 379, 151 P.2d 950 (1944) ...53, 56,
59, 61
State v. Butner, 67 Nev. 936, 220 P.2d 631 (1950) —— 64
State v. Caldwell, 135 Ohio St. 424, 21 N.E.2d 343
(1939) 24, 25, 26, 78
State v. Carey, 36 Del. 521, 178 A. 877 (Ct. Oyer &
Terminer 1935)
State v. Carter, 21 Ohio St.2d 212, 256 N.E.2d 714
(1970)
State v. Cerar, 60 Utah 208, 207 P. 597 (1922)
State v. Chasteen, 228 S.C. 88, 88 S.E.2d 880 (1955) ....
State v. Christenson, 166 Kan. 152, 199 P.2d 475 (1948)
State v. Clokey, 83 Ida. 322, 364 P.2d 159 (1961)
State v. Collins, 50 Wash.2d 740, 314 P.2d 660 (1957) .... 58
State v. Cosby, 100 Ohio App. 459, 137 N.E.2d 282
(1955) 28
State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963) 61
State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556 (1932) 52
State v. Daniels, 231 S.C. 176, 97 S. E. 2d 902 (1957) 61
State v. Donahue, 141 Conn. 656, 109 A.2d 364
(1954) 55, 59, 60
State v. Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897
(1969) 23, 25
State v. Ellis, 98 Ohio St. 21, 120 N.E. 218 (1918) 20, 21,
23, 24, 28
State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794
(1964) 19, 28
State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362, 365
(1925) 19, 20
State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968),
0.T. 1970, Misc. No. 5011 ..52, 57
State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868, 885
(1948) 19, 20, 28
State v. Galvano, 34 Del. 323, 154 A. 461 (Ct. Oyer &
Terminer 1930)
State v. Habig, 106 Ohio St. 151, 140 N.E. 195, 199
(1922) 19, 20
State v. Harper, 251 S.C. 379, 162 S.E.2d 712 (1968) — 53
State v. Henley, 15 Ohio St.2d 86, 238 N. E. 2d 773
(1968) 27
State v. Henry, 197 La. 199, 3 So. 2d 104 (1941) 55, 61, 66
State v. Jackson, 227 La. 642, 80 So. 2d 105 (1955)
State v. Jarolowski, 30 Del. 108, 103 A. 657 (Ct. Oyer &
Terminer 1918) 57
xiv
PAGE
State v. Jones, 201 S. C. 403, 23 S.E.2d 387 (1942) — 55,88
State v. Karayians, 108 Ohio St. 505, 141 N. E. 334
(1923) 22, %
State v. Kilpatrick, 201 Kan. 6, 439 P.2d 99 (1968) — 64
State v. King, 158 S.C. 251, 155 S.E. 409 (1930). 68
State v. Klumpp, 15 Ohio Ops.2d 461, 175 N.E.2d 767
(1960), app. dism’d, 171 Ohio St. 62, 167 N.E.2d 778
(1960) 22, 27, B
State v. Laster, 365 Mo. 1076, 293 S.W.2d 300 (1956) — 63
State v. Laws, 51 N.J. 594, 242 A.2d 333 (1968) . 63
State v. Lee, 36 Del. 11, 171 A. 195 (Ct. Oyer & Ter-
miner 1933) 57, 62
State v. Lucear, 93 Ohio App. 281, 109 N.E.2d 39
(1952) 19, 20, 28
State v. Marsh, 234 N.C. 101, 66 S.E.2d 684 (1951) 60
State v. McClellan, 12 Ohio App.2d 204, 232 N.E.2d
414 (1967) 20
State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962) . 63
State v. McMillan, 233 N.C. 630, 65 S.E.2d 212 (1951) 60
State v. Markham, 100 Utah 226, 112 P.2d 496
(1941) 53, 56, 58, 64
State v. Meyer, 163 Ohio St. 279, 126 N.E.2d 585
(1955) 27
State v. Mount, 30 N. J. 195, 152 A. 2d 343 (1959) 55, 57,
59, 70
State v. Mouzon, 231 S. C. 655, 99 S. E. 2d 672 (1957) — 63
State v. Muskus, 158 Ohio St. 276, 109 N. E. 2d 15 (1952) 27
State v. Narten, 99 Ariz. 116, 407 P. 2d 81 (1965). 70
State v. Owen, 73 Ida. 394, 253 P. 2d 203 (1953) ....57, 58, 72
State v. Palen, 120 Mont. 434, 186 P. 2d 223
(1947) 52, 55, 64
PAGE
state v. Pierce, 44 Ohio Law Abs. 193, 62 N.E.2d 270
(Ohio App. 1945) 24, 25, 27
State v. Porello, 138 Ohio St. 239, 34 N.E.2d 198 (1941) 28
State v. Pruett, 18 Ohio St.2d 167, 248 N.E.2d 605
(1969) 23
State v. Pugh, 250 N.C. 278, 108 S. E. 2d 649 (1959) 61
State v. Ramirez, 34 Ida. 623, 203 P. 279 8 63
State v. Reed, 85 Ohio App. 36, 84 N. E. 2d 620 (1948) .... 28
State v. Reynolds, 41 N. J. 163, 195 A. 2d 449 (1963) ....62, 69
State v. Riley, 41 Utah 225, 126 P. 294 (1912). 58, 61
State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148
(1955) 29
State v. Robinson, 89 Ariz. 224, 360 P.2d 474 (1961) — 63
State v. Romeo, 42 Utah 46, 128 P. 530 (1912) 58, 61
State v. Roseboro, —— N.C. ——, 171 S. E. 2d 886
(1970) 52, 56
State v. Ruth, 276 N. C. 36, 170 S. E. 2d 897 (1969) 4
State v. Sahadi, 3 Ohio App. 2d 209, 209 N. E. 2d 758
(1964) 19, 29
State v. Schiller, 70 Ohio St. 1, 70 N. E. 505 (1904) ....26, 27
State v. Simmons, 234 N. C. 290, 66 S. E. 2d 897
(1951) 55, 61, 64
State v. Skaug, 63 Nev. 59, 161 P. 2d 708 (1945) 61
State v. Smith, 123 Ohio St. 237, 174 N.E. 768 (1931) — 19
State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968) ... 58
State v. Spino, 90 Ohio App. 139, 104 N. E. 2d 200 (1951) 18
State v. St. Clair, 3 Utah2d 230, 282 P. 2d 323 (1955) — 57
State v. Stewart, 176 Ohio St. 156, 198 N. E. 2d 439
(1964) 19, 28
State v. Thorne, 39 Utah 208, 117 P. 58 (1911) ........58, 61
State v. Thorne, 41 Utah 414, 126 P. 286 (1912) ............ 61
State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582 (1950) ...... 58
PAGE
State v. Tudor, 154 Ohio St. 249, 95 N.E.2d 385
(1950) A, 27
State v. Van Vlack, 57 Ida. 316, 65 P. 2d 736 (1937) 61
State v. Vasquez, 101 Utah 444, 121 P. 2d 903 (1942) —56, 58
State v. Walters, 145 Conn. 60, 138 A. 2d 786 (1958) —56, 51,
59, 64
State v. Watson, 20 Ohio App.2d 115, 252 N.E.2d 305
(1969) 2
State v. White, 60 Wash.2d 551, 374 P.2d 942
(1962) 57, 61, 64
State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d
607 (1969) 2B
State v. Winsett, 205 A.2d 510 (Del. Super. Ct.
1964) 57, 62
State v. Worthy, 239 S.C. 449, 123 S.B.2d 835
(1962) 58, 61
State ex rel. Evans v. Eckle, 163 Ohio St. 122, 126
N.E.2d 48 (1955) 19
State ex rel. Scott v. Alvis, 156 Ohio St. 387, 102 N.E.2d
845 (1951) 19
Stein v. New York, 346 U.S. 156 (1953) 81
Stovall v. Denno, 388 U.S. 293 (1967) 81
Sukle v. People, 107 Colo. 269, 111 P.2d 233 (1941) . 58
Sullivan v. State, 47 Ariz. 224, 55 P.2d 312, 318
(1936) 56, 58
Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689
(1951) 56, 57, 60, 61, 63
Swain v. Alabama, O. T. 1970, Misc. No. 5327. 62
Tehan v. United States ex rel. Shott, 382 U.S. 406
(1966) 79
Thomas v. Florida, O. T. 1970, Mise. No. 5079 ................ 63
Trop v. Dulles, 356 U.S. 86, 101 (1958)
Turner v. State, 21 Ohio Law Abs. 276 (1936) 27
Turner v. State, 144 Tex. Crim. App. 327, 162 S. W. 2d
978 (1942) 4
Walker v. Nevada, O. T. 1970, Misc. No. 50838 63
Waters v. State, 87 Okla. Crim. App. 236, 197 P. 2d
299 (1948) 63
Wheat v. State, 187 Ga. 480, 1 S.E.2d 1 (1939) 58, 60
White v. Rhay, 64 Wash.2d 15, 390 P.2d 535 (1964) ... 61
White v. State, 227 Md. 615, 177 A.2d 877 (1962), rev’d
on other grounds, 373 U.S. 59 (1963) 63
Williams v. Georgia, 349 U.S. 375 (1955) 81
Williams v. New York, 337 U.S. 241 (1949) ................ 76
Williams v. State, 89 Okla. Crim. App. 95, 205 P.2d
524 (1949) 63
Williams v. State, 119 Ga. 425, 46 S. E. 626 (1904) 55
Wilson v. State, 286 Ala. 86, 105 So.2d 66 (1958) 64
Wilson v. State, 225 So.2d 321 (Fla. 19699 56
Winston v. United States, 172 U.S. 303 (1899) „
Witherspoon v. Illinois, 391 U.S. 510 (1968) (O. T.
1967, No. 1015) 3M, 13, 73, 74, 75, 77
Woodruff v. State, 164 Tenn. 530, 51 S. W. 2d 843
(1932) 54, 57, 59
Wyett v. State, 220 Ga. 867, 142 S. E. 2d 810 (1965) 58
Yates v. Cook, O. T. 1970, Misc. No. 5012 62
Yates v. State, 251 Miss. 376, 169 So. 2d 792 (1964) ... 52
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) 3
Statutes:
18 U.S.C. §1111 (1964)
Ala. Code Ann., tit. 14, §318 (Recomp. vol. 1958)
Ariz. Rev. Stat. §13-453 (1956)
Ariz. Rev. Stat. §13-1717(B) (1956)
Ark. Stat. Ann. §43-2153 (Repl. vol. 1964)
Cal. Acts Amendatory of the Codes 1873-1874, ch. 508,
$1
Cal. Const. Art. 1, §7
Calif. Mil. & Vet. Code 61670
Cal. Mil. & Vet. Code §1672(a)
Cal. Pen. Code §37
Cal. Pen. Code §128
Cal. Pen. Code §190
Cal. Penal Code 6190.1
Cal. Pen. Code §209
Cal. Pen. Code §219
Cal. Pen. Code §1026
Cal. Pen. Code $1168
Cai. Pen. Code §1168a
Cal. Pen. Code §4500
Cal. Pen. Code 65077
Cal. Stats. 1957, ch. 1968, §2
Cal. Stats. 1959, ch. 738, §1
Col. Rev. Stat. §40-2-3(1) (1965 Perm. cum. supp.) —
Col. Rev. Stat. §40-2-3(2) (a), (b) (1965 Perm. cum.
supp.) 51
Col. Rev. Stat. §40-2-3(2)(c) (1965 Perm. cum.
supp.) 51, 54
Conn. Gen. Stat. Ann. §53-9 (1970-1971 Cum. pocket
part) 51
—
se ewes. —
282 8 2828
4
88 8
!
—
=
8
25
8 88 SSS
it of 28 e fe r Gee eee eee ee Ue (lee
PAGE
Conn. Gen. Stat. Ann. 553-10 (1970-1971 Cum. pocket
part) 51, 54, 57
Del. Stat. Ann., tit. 11, §3901 (1968 Cum. pocket
part) 53, 54
D.C. Code §22-2404 (1967) 50
Fla. Stat. Ann. 5919.23 (2) (1944) 54
Fla. Stat. Ann. §912.01 (1944) 51
Fla. Stat. Ann., Rules Crim. Pro. 1.260 (1967) 51
da. Code Ann. 526-3102 (Criminal Code of Georgia,
1968-1969) 51, 54
Ga. General Assembly, 1970 Sess., H.B. No. 228 ............ 5
Ida. Code Ann. §18-4004 (1948) 51, 54
Il. Stat. Ann., tit. 38, §1-7 (e) (1) (1970 Cum. pocket
part) 53, 54
Il. Stat. Ann., tit. 38, $1-7(c)(2) (1970 Cum. pocket
part) 51
Ill. Stat. Ann., tit. 38, §9-1(b) (1964) 53, 54
Burns Ind. Stat. Ann. 69-1819 (1956 Repl. vol.) 51
Burns Ind. Stat. Ann., §10-3401 (1956 Repl. vol.) 54
Kan. Stat. Ann. §21-4501(a) (1969 Cum. supp.) ........ 51, 54
Ky. Rev. Stat. Ann. §435.010 (1969) 51, 54
La. Stat. Ann., Code Crim. Pro., art. 557 (1967) ............ 52
La. Stat. Ann., Code Crim. Pro., art. 780 (1967) ............ 52
La. Stat. Ann., Code Crim. Pro. art. 817 (1967) 52, 54
Md. Code Ann., art. 27, §413 (Repl. vol. 1967) ............ 53, 54
Mass. Ann. Laws, ch. 265, §2 (1968) 52, 54, 57
Miss. Code Ann., tit. 11, §2217 (Recomp. vol. 1956) ....52, 54
Vernon’s Mo. Stat. Ann. §546.410 (1953) 52
Vernon’s Mo. Stat. Ann. §546.430 (1953) 63
Vernon’s Mo. Stat. Ann. $559.030 (1953) 52, 54
Mont. Rev. Code §94-2505 (Repl. vol. 1969) ................ 52, 54
PAGE
Neb. Rev. Stat. §28-401 (Reissue vol. 1964) — 64
Nev. Laws 1967, ch. 523, 5438, p. 1470 — 32
Nev. Rev. Stat. 5200. 030 (3) 3
N. H. Rev. Stat. 6585 :4 (1955) 52, 54
N.H. Rev. Stat. §585:5 (1955) i
N. J. Stat. Ann. §2A:113-3 (1969) — 32
N. J. Stat. Ann. 52A: 113-4 (1969) 52, 54,57
N.M. Laws 1969, ch. 128, §1, N.M. Stat. Ann., 540A.
29-2.1 (1970 Cum. Supp.) 49, 50
N.Y. Pen. Law 6125.30 50
N.C. Gen. Stat. §14-17 (Repl. vol. 1969) 52, 54
93 Ohio Laws 223 (S.B. No. 504)
115 Ohio Laws 531 (S. B. No. 90, 61.)
Ohio Rev. Code, §2901.01 (Ohio Gen. Code, 512400)
Ohio Rev. Code, §2901.02 (Ohio Gen. Code, $12401) ....
Ohio Rev. Code $2901.03 (Ohio Gen. Code, §12402) ....
Ohio Rev. Code, §2901.04 (Ohio Gen. Code, §12402-1) ..
Ohio Rev. Code §2901.09 (Ohio Gen. Code, 512406)
Ohio Rev. Code, §2901.10 (Ohio Gen. Code, §12407) ....
Ohio Rev. Code, $2901.27 (Ohio Gen. Code $12427) ....
Ohio Rev. Code, §2901.28 (Ohio Gen. Code, 513386)
Ohio Rev. Code, $2907.141 (Ohio Gen. Code, §12441) ....
Ohio Rev. Code, $2907.09 (Ohio Gen. Code, 512437 r
Ohio Rev. Code, §2945.06 (Ohio Gen. Code, §13442-5) _
Ohio Rev. Code, §2945.11 (Ohio Gen. Code, §13442-9) ..
Okla. Stat. Ann., tit. 21, 5707 (1958) 5
Pa. Laws 1794, ch. 257, §§1-2
Purdon’s Pa. Stat. Ann., tit. 18, §4701 (1963) 53,
Purdon’s Pa. Stat. Ann., tit. 19, Appendix, Rule Crim.
Pro. 1115 (1969 Cum. pocket part)
“
Fao PF SSSSSSSSESSSBVSY
PAGE
80. Code Ann. §16-52 (1962) 53
8.D. Comp. Laws. $§22-16-12, -13 (1967) 53, 54
8.D. Comp. Laws. §22-16-14 (1967) 53
Tenn. Code Ann. 539-2405 (1955) 53, 54
Tenn. Code Ann. §39-2406 (1955) 53, 54, 57, 59
Vernon’s Tex. Stat. Ann., Code Crim. Pro., art. 37.07
(2)(b) (1969-1970 Cum. pocket part) 53
Vernon’s Tex. Stat. Ann., Pen. Code, art. 1257 (1961) .. 53
54
Vernon’s Tex. Stat. Ann., Pen. Code art. 1257(a)
(1961) 53
Utah Code Ann. 576-304 (1953) 53, 54
Vt. Stat. Ann. tit. 13, §2303 (1969 Cum. Pocket Part) 50
Va. Code Ann. §18.1-22 (Repl. vol. 1960) .................... 53, 54
Va. Code Ann. $19.1-250 (Repl. vol. 1960) 53, 54
Wash. Rev. Code §9.48.030 (1961) .. 53, 54
Wyo. Stat. Ann. §6-54 (1957) . 53, 54
Orner AUTHORITIES
Apvisony Counci. or Jupons or THE NATIONAL Counci.
on CRIME AND DANN, Mop. Sentenctne Act,
565.9 (1963) 9
American Law Institute, Mopen Penat Coon, Tent.
Draft No. 9 (May 8, 1959) 76
American Law Institute, Mop. Penau Cong, §210.6
(P. O. D., May 4, 1962) 9, 62
Ancel, The Problem of the Death Penalty, i in SELLiN,
CariraL PunisHmMent (1967) 76
PAGE
Bedau, Death Sentences in New Jersey 1907-1960, 19
Rurtozrs L. Rev. 1 (1964) 4M. 7%
Bedau, The Courts, The Constitution, and Capital
Punishment, 1968 Uran L. Rev. 201, 232 (1968) 7
Brpav, Tae Dnarn Pewaury N America (1964) 268 75
California Jury Instructions, Criminal (CALJIC) 1.30
(Third rev. ed. 1970) — @
California Jury Instructions, Criminal (CALJIC) 8.80
(Third rev. ed. 1970) 42, 43
California Jury Instructions, Criminal (CALJIC) 8.81
(Third rev. ed. 1970) 36
California Jury Instructions, Criminal (CALJIC) 8.82
(Third rev. ed. 1970) . 8
Comment, The Death Penalty Cases, 56 Cal. L. Rev.
1268 (1968) 30
Comment, The California Penalty Trial, 52 Can. L.
Rev. 386 (1964) 3⁰
DiSalle, Comments on Capital Punishment and Clem-
ency, 25 Omo Sr. L. J. 71, 72 (1964) 4M
Durry & Himsuserc, 88 Men arp 2 Women (1962) 4
Herman, An Acerbic Look at the Death Penalty in
Ohio, 15 Western Reserve L. Rev. (1964) 28
Johnson, Selective Factors in Capital Punishment, 36
Soca. Forces 165 (1957) 4M
Koestizr, Rertecrions on Hanoine (Amer. ed. 1957)
144-152 76
Lawes, Twenty THovsanp Years rs Suva So (1932) 4M
Nationa Commission on RerorM or Feperat Cramaman
Laws, Srupy Drarr or a New Feperat Carmona.
Cope, §§3601-3605 (1970) 9
PAGE
Note, A Study of the California Penalty Jury in
First-Degree-Murder Cases, 21 Sran. L. Rev. 1297
(1969) 4M. 30, 49
Note, Post-Conviction Remedies in California Death
Penalty Cases, 11 Srax. L. Rev. 94 (1958) 49
Note, The Void-for-Vagueness Doctrine in the Supreme
Court, 109 U. Pa. L. Rev. 67, 81 (1960) 70
Ohio Department of Mental Hygiene and Corrections,
Ohio Judicial Criminal Statistics 1959; 1960; 1961;
1962; 1963; 1964; 1965; 1966; 1967; 1968 ...............29-30
Ouro LecisLaTive Service CoMMISSION, Starr ReszakcH
Report No. 46, Carrral PuNISHMENT (January 1961)
54 — 29
pur, PRINCIPLES OF Morat anv Pol rrical PHILOSOPHY
(im Amer. ed. 1825) 384-386 6, 7, 8
Presipent’s Comission oN Law ENFORCEMENT AND
ApMINISTRATION OF JusTICE, Report (THe CHALLENGE
or Caime IN A Free Soctrery) (1967) 143 12, 13
1 Raprrowicz, A History or Enouss Crmoat Law
axp Irs ApMinisrraTion From 1750 (1948) 3133— 77
Reckless, The Use of the Death Penalty, 15 Cam &
Deuinquency 43 (1969) 49
Roya, Commission on CaprraL PUNISHMENT 1949-1953,
Report (H.M.S.O. 1953) [Cmd. 8932] 17 ..........-..-....75-76
Sellin, The Death Penalty (1959) 76
Sellin, The Death Penalty (1967) 76
Statement by Attorney General Ramsey Clark, Before
the Subcommittee on Criminal Laws and Procedures
of the Senate Judiciary Committee, on S. 1760,
To Abolish the Death Penalty, July 2, 1968, De-
partment of Justice Release, p. 2
Symposium Note, The Two-Trial System in Capital
Cases, 39 N.Y.U.L. Rev. 50 (1964)
United States Department of Justice, Bureau of
Prisons, National Prisoner Statistics ai
No. 23, Executions 1959 (February, 1960)
No. 26, Executions 1960 (March, 1961)
No. 28, Executions 1961 (April, 1962)
No. 32, Executions 1962 (April, 19635
No. 34, Executions 1930-1963 (May, 1964)
No. 37, Executions 1964 (April, 1964)
No. 39, Executions 1930-1965 (June, 1966)
No. 41, Executions 1930-1966 (April, 1967)
No. 42, Executions 1930-1967 (June, 1968)
No. 45, Capital Punishment 1930-1968 (August
1969) 15, 30, 50
2 Wire, Catrronnia Cromes, 5904-905 (1963) 90
In THE
supreme Court of the United States
Ocroszr Tze, 1970
—
No. 203
Dennis Councte McGavuTHa,
Petitioner,
—.—
Srate or CALIFORNIA,
Respondent.
ox WaIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORETA
—
No. 204
James Epwarp CraMPron,
Petitioner,
—v.—
Srate or Omo,
Respondent.
oN WRIT OF CERTIORARI TO THE SUPREME COUBT OF OHIO
—
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND STATEMENT OF INTEREST OF THE AMICI
Movants N.A.A.C.P. Legal Defense and Educational
Fund, Ine, and National Office for the Rights of the Indi-
gent respectfully move the Court for permission to file the
attached brief amici curiae, for the fol!owing reasons. The
reasons assigned also disclose the interest of the amici.
2-M
(1) The N.A.A.C.P. Legal Defense and Educational
Fund, Inc. (LDF) is a non-profit corporation formed to ag.
sist Negroes to secure their constitutional rights by the
prosecution of lawsuits. One of its charter purposes is tp
provide free legal assistance to Negroes suffering injustice
by reason of race who are unable, on account of poverty, tp
employ legal counsel. For many years, LDF attorneys haue
represented in this Court and the lower courts person;
charged with capital crimes, particularly Negroes charged
with capital crimes in the Southern States.
(2) A central purpose of the LDF is the legal eradication
of practices in American society that bear with discriming-
tory harshness upon Negroes and upon the | poor, deprived,
and friendless—who too often are Negroes. To further this
purpose, the LDF established in 1965 a separate corpora
tion, the National Office for the Rights of the Indigent
(NORI) having among its objectives the provision of legal
representation to the poor in individual cases and advocacy
before appellate courts in matters that broadly affect the
interests of the poor.
(3) The long experience of LDF attorneys in the han-
dling of death cases has convinced us that capital punish-
ment in the United States is administered in a fashion that
consistently makes racial minorities, the deprived and the
downtrodden, the peculiar objects of capital charges, capital
convictions, and sentences of death. We believe that this
and other grave injustices are referable in part to the
fundamental character of the death penalty as an institu-
tion in modern American society,’ and in part to common
—
Dre Kreer eee
=e th |
1 This point is developed at length in the Brief for the NAA.
C.P. Legal Defense and Educational Fund, Inc., and the National
Office for the Rights of the Indigent, as Amici Curiae, in Boykin v.
come ante ae ae aS oo ok ae
3-M
‘ees in the trial of capital cases which depart alike
from the standards of an enlightened criminal justice and
from the minimum requirements of fairness and even-
handedness fixed by the Constitution of the United States
for proceedings by which life may be taken. Finally, we
have come to appreciate that in the uniquely stressful
of capital trials and direct appeals, ordinarily
handled by counsel appointed for indigent defendants,
many pressures and conflicts may impede the presentation
of effective attacks on these unfair and unconstitutional
practices ;? and that in the post-appeal period, such attacks
sre grievously handicapped by the ubiquitous circum-
stance that the inmates of the death rows of this Nation are
ss 8 class impecanious, mentally deficient, unrepresented
ud therefore legally helpless in the face of death.“
Mabama, 395 U.S. 238 (1969) (O. T. 1968, No. 642), wherein we
uged that the death penalty was a cruel and unusual punishment
frbidden by the Eighth and Fourteenth Amendments.
wo of these practices are at issue in the present cases. Others
are described in our amici curiae brief in Boykin v. Alabama, note
lsupra, at pp. 3-7, nn. 6, 7; and in the Brief Amici Curiae of the
ACP. Legal Defense and Educational Fund, Inc., and the
National Office for the Rights of the Indigent, in Witherspoon v.
Minois, 391 U.S. 510 (1968) (O. T. 1967, No. 1015), pp. 12-28.
n 1967, counsel for the amici instituted the case of Adderly
1 Wainwright, U.S.D.C., M.D. Fla., No. 67-298-Civ-J, by a class-
ution petition for a writ of habeas corpus on behalf of all con-
demned men in the State of Florida. In connection with the Dis-
tet Court’s determination whether it should entertain such a
proceeding in class-action form, it authorized counsel to conduct
interviews of all the inmates of Florida’s death row. The findings
of these court-ordered interviews, subsequently reported by counsel
to the court and relied upon in the court’s decision that class-action
proceedings were proper, indicated that of the 34 men interviewed
whose direct appeals had been concluded, 17 were without legal
representation (except for purposes of the Adderly suit itself) ;
ll others were represented by volunteer lawyers associated with
the LDF or the ACLU; and in the case of two more, the status of
4M
(4) For these reasons, amici LDF and NORI undertook
in 1967 to represent all condemned men in the United States
for whom adequate representation could not otherwise be
found. In less than three years, we have come to represent
about 200 of the approximately 550 men on death row,‘ ang
to provide consultative assistance to attorneys for a larg.
number of the others. In this Court, we represent twenty.
one men and one woman under sentences of death, whose
cases are pending on petitions for certiorari that raise on
or both of the issues presented by the present cases. We
briefed and argued those issues before the Court in Maz.
i
.
:
men were more mentally retarded than the few who were
— 3
Forozs 165 (1957); Note, A Study of the California Penalty Jury
in First-Degree-Murder Cases, 21 Stan. L. Rev. 1297, 1337-1339,
1876-1879, 1884-1385, 1418 (1969), and of officials experienced in
dealing with death-row inmates, e.g., DiSalle, Comments on Capi-
tal Punishment and Clemency, 25 Onto St. LJ. 71, 72 (1964):
“T want to emphasize that from my own personal experience
those who were sentenced to death and appeared before m
for clemency were mostly people who were without funds for
a full and adequate defense, friendless, uneducated, and with
mentalities that bordered on being defective.”
Accord: Lawes, Twenty THousanp Years mw Sine Sine (1932),
302, 307-310; Durry & Hmsurere, 88 Men anp 2 Women (1502),
* See note 18 infra.
oo a a ON SS SO SS" SS OS ODD r FO Sse :«C
5-M
well v. Bishop, —— U.S. ——, 26 L. Ed.2d 221, 90 S. Ct.
1578 (1970) (O. T. 1969, No. 13), and handled the California
Supreme Court case of In re Anderson, 69 Cal.2d 613, 447
P.2d 117, 73 Cal. Rptr. 21 (1968), upon which that court’s
decision in the present McGautha case rests. The Anderson
matter is currently pending on petition for certiorari as
0.T. 1970, Mise. No. 5118.
(5) We seek to file this brief amici curiae, urging re-
versal, in order to place the issues before the Court in a
broader perspective than that provided by these two Cali-
foruia and Ohio cases. Presentation of the broader perspec-
tive is particularly important because, in certain aspects,
California and Chio capital-trial practices differ from those
of many other States—for example, the Arkansas practice
involved in Maxwell v. Bishop. We shall explore those dif-
ferences and their significance. It is not our purpose to re-
hash the arguments that we made so recently in Maxwell.
For the Court’s convenience, should it wish to consult those
arguments, we append our Maxwell brief to this one (Ap-
pendix A, infra). It develops our basic constitutional con-
tentions. In the body of this present brief, we advance
several additional considerations that we think should be
brought to the attention of the Court, relative to the interest
of the 550 men (and, insofar as we are advised, 3 women)
whose lives immediately depend upon what the Court de-
cides herein.
(6) Both parties in McGautha and petitioner in Cramp-
ton have consented to the filing of a brief amici curiae by
LDF and NORI. The present motion is necessitated be-
cause counsel for the State of Ohio has refused consent in
Crampton.
6-M
WHEREFORE, movants pray that the attached brief amig
curiae be permitted to be filed with the Court. 8
Respectfully submitted,
JaCK GREENBERG
James M. Nannrr, III
Jack HimMe.sTers
10 Columbus Circle, Suite 2030
New York, New York 10019
MicHarEL MELTSNER
Columbia University School of Law
New York, New York 10027
AntHory G. AmsTERDAM
Stanford University Law School
Stanford, California 94305
Attorneys for the N.A.A.C.P. Legal
Defense and Educational Funi,
Inc., and the National Office for
the Rights of the Indigent
Is THE
Supreme Court of the United States
Octoser TER, 1970
—
No. 203
Dennis Councte MoG aura,
Petitioner,
—v.—
Strate oF CALIFORNIA,
Respondent.
—
oN WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
No. 204
—
James Epwarp Cnaxrrox,
Petitioner,
ae
State or OxI0,
Respondent.
—
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
BRIEF AMICI CURIAE
2
Summary of Argument
L
The power of the States to punish crime with death is
not in issue here. What is in issue is their use of an arbi.
trary system to select the men who die. The basic irration.
ality of capital punishment may make the designing of non
arbitrary selective procedures more difficult than the ue
of arbitrary ones. But it cannot, consistent with Due Prog.
ess, justify arbitrary procedures.
II.
A procedure by which jurors are empowered to choose
between life and death without standards or principles of
general application to guide and confine that choice is es.
sentially lawless. For the reasons developed in our brief
in Maxwell v. Bishop, it violates the rule of law basic to
Due Process. The California and Ohio versions of the pro.
cedure challenged here are not constitutionally differen.
tiable from the Arkansas procedure at issue in Maxwell,
III.
Ohio's single-verdict capital trial procedure is also un-
constitutional for the reasons that we urged against Arkan
sas’ similar procedure in Maxwell.
IV.
A decision invalidating standardless capital sentencing
by juries or the single-verdict capital trial procedure should
be given fully retroactive effect, to the extent of forbidding
execution of the sentence of death upon any man condemned
to die under those procedures.
9 ee a a 00
sah oe x ons oe eee
ARGUMENT
L
Introduction.
As the Court begins anew to deliberate the difficult
constitutional questions raised by standardless capital
sentencing and by the single-verdict capital trial procedure,
it is vital to identify succinctly what is, and what is not,
legally at issue and practically at stake.
The federal constitutionality of capital punishment, as
sch, is not in question. The only question is whether
certain procedures for administering capital punishment
comply with basic safeguards of the Constitution designed
to forbid the use of arbitrariness as a tool of American
government.’ That limitation of the issue has several
important implications.
First, the interest that the States of California and Ohio
are asserting in these cases is not an interest in the main-
tenance of the death penalty for the crime of murder.
Nothing that the Court could conceivably decide in either
case would deprive the States (or the National Government)
4
disable it. 5
Second, the interest that the States are asserting here n
not an interest in the regular and systematic use of the
punishment of death as an instrument of state penal poliey,
It is not a considered legislative prescription of that
punishment for all or most murderers or other “ean; a
criminals, or for any legislatively determined eub dus
kind, type or sort of murderers or “capital” criminals, It
is not a legislative determination that any societal interest
makes it necessary and proper that Dennis Councle Me.
Gautha or James Edward Crampton or any other man or
woman convicted of murder should forfeit his life. For not
only have the legislatures of Cali ornia and Ohio failed to
decide the question when, if ever, /ome interest of society
requires that life be taken; they have failed to provide
procedures by which any responsible organ of government
decides that question.
defense, no holding of this Court herein would or emg
a ee a a „„ 0
Consistently with the capital punishment laws of those
States, California and Ohio juries might never sentence a
murderer to die; they might sentence all murderers to die;
or, if—as is most likely—they distinguish
rom others, they are
to the purposes
latively autho
raised by
as
in maintaining it. That interest is manifestly not
that might be served by the efficient selective use of death
as an anti-crime device, since the very methods of selecti
in question here preclude decision of the question who shall
1K rr trae e 2
live and who shall die conformably with principles of anti-
crime efficiency—or any other principles in which the State
may have a stake. ö
Third, the States’ interest here is not in preserving pro-
cedures that either are or have been determined legislatively
to be essential for the administration of capital punish-
ment, That is obvious enough with regard to the single-
yerdict procedure (since six States, including California,
now use a form of split-verdict procedure for the trial of
capital cases); but, as regards the matter of the arbitrary
discretion given juries in capital sentencing, the Attorneys
General of Arkansas and California appeared to have been
urging this Court in Maxwell v. Bishop either that the
formulation of standards for non-arbitrary capital sentenc-
ing was impossible, or at least that the Court should
respect the legislative judgment that it was impracticable.
The argument of impossibility ignores alike history and
the existence of contemporary models of standards for
capital sentencing. The historical oversight is glaring,
inasmuch as prior to the advent of the Twentieth Century,
virtually all capital statutes provided standards for impos-
ing the death sentence: namely, the legislative definition of
the capital crime itself. Mandatory capital crimes provide
one form of standards for the imposition of the death
penalty, although not the only form. For centuries, legis-
latures evolved those standards; and during the Nine-
teenth, particularly, legislatures in this country and in
England drastically reduced the reach of the death penalty
*Effective July 1, 1970, Georgia became the sixth State. Ga.
General Assembly, 1970 Sess., H.B. No. 228. The other five States
are California, Connecticut, New York, Pennsylvania and Texas.
See our Maxwell brief, Appendix A infra, pp. 77-78 n. 79.
6
both by removing some crimes from the roster of capita}
offenses and by redefining or subdividing others—proyig.
ing, for example, degrees of murder.’ So it is rather
surprising to hear advanced today, in support of standard.
less capital sentencing, the precise argument used by
Archdeacon William Paley in 1785 to justify England
“Bloody Code” of more than 250 capital crimes: that be.
cause “it is impossible to enumerate or define beforehand
. . . those numerous unforeseen, mutable and indefinite
circumstances, both of the crime and the criminal, which
constitute or qualify the malignity of each offence,” the
proper course is to “[sweep] into the net every crime which,
under any possible circumstances, may merit the punish.
ment of death; but, when the execution of this sentence
comes to be deliberated upon, a small proportion of each
class are singled out” for the actual business of dying.
“The wisdom and humanity of this design,” Paley con.
cluded, “furnish a just excuse for the multiplicity of capital
offences, which the laws of England are accused of creating
beyond those of other countries.“
The first jurisdiction to divide murder into degrees was Penn-
sylvania, by a statute of 1794. Pa. Laws 1794, ch. 257, 651.2.
That statute, like its successors which were enacted in virtually
every one of the United States during the following century, re.
served the death penalty for murder in the first degree. Its
Preamble recited that public safety was best secured by moderate
and certain punishments, rather than by severe and excessive ones,
that “it is the duty of every Government to endeavor to reform,
rather than exterminate offenders, and [that] the punishment of
death ought never to be inflicted, where it is not absolutely neces-
, sary to the public safety.”
* Patey, PRINcIPLEs OF MonaL AND Po.iticaL PHosopHy (11th
Amer. ed. 1825), 384-386 :
“There are two methods of administering penal justice.
“The first methods assigns capital punishments to few of-
fences and inflicts it invariably.
(footnote continued on next page)
7
Paley’s sanguinary peroration furnishes an exact counter-
part of the argument made before this Court by California
in the Maxwell case: that standardless capital sentencing
is warranted by the State’s interest in retaining the death
penalty while preserving the quality of “mercy” uncon-
strained. We shall return shortly to this ironic invocation ;
of the concept of mercy to justify arbitrary procedures for
killing people. At this juncture, it suffices to say that the
“The second method assigns capital punishments to many
kinds — 8 but inflicts it only upon a few examples of
each ki
“The latter of which two methods has been long adopted in
this country, where, of those who receive sentence of death,
scarcely one in ten is executed. And the preference of this
to the former method seems to be founded in the considera-
tion, that the selection of proper objects for capital punish-
ment principally depends upon circumstances, which however
easy to perceive in each particular case after the crime is
committed, it is impossible to enumerate or define beforehand ;
or to ascertain however with that exactness, which is requisite
in legal definitions. Hence, although it be necessary to fix
by precise rules of law the boundary on one side . . ., that
nothing less than the authority of the whole legislature be
suffered to determine that * and assign these rules;
yet the mitigation of punishment, the exereise of lenity, may
without danger be entrusted to the executive magistrate,
whose discretion will operate upon those numerous unfore-
seen, mutable and indefinite circumstances, both of the crime
and the criminal, which constitute or qualify the malignity
of each offence. .. .
“For if judgment of death were reserved for one or two
species of crimes only (which would probably be the case if
that judgment was intended to be execu without excep-
tion), crimes might occur of the most dangerous example, and
accompanied with circumstances of heinous aggravation, whi
did not fall within any description of offenses that the laws
had made capital, and which consequen could not receive
the punishment their own malignity and the public safety
“The law of England is constructed upon a different and
a better policy. By the number of statutes creating capital
—
— —— — . — ä ũ— ö
interest of mercy, like the other interests that we have
identified thus far, is nowise threatened by petitioners’
contentions in these cases. Their argument against arbi-
trary capital sentencing is not an argument for mandatory
capital crimes (although, of course, the enactment of
mandatory capital crimes would avoid it, in the fashion of
throwing the baby out with the bath). It is an argument
that where discretion is given to a legal tribunal in a matter
so grave as the taking or sparing of human life, that dis-
cretion must be suitably refined, directed and limited, so ag
to ward against wholly lawless caprice. Devices for provid-
ing that kind of protection are quite readily available which
nevertheless allow the capital-sentencing jury (not to speak
of the Governor)“ ultimate powers of mercy.
We mentioned above certain contemporary models of
such devices, principally the capital-sentencing provisions
offences, it sweeps into the net every crime which, under any
possible circumstances, may merit the punishment of death;
but, when the execution of this sentence comes to be deliber-
ated upon, a small proportion of each class are singled out,
the general character, or the peculiar aggravations, of whose
crimes render them fit examples of public justice. By this
expedient, few actually suffer death, whilst the and
danger of it hang over the crimes of many. ... The wisdom
and humanity of this design furnish a just excuse for the
multiplicity of capital offences, which the laws of England
are accused of creating beyond those of other countries. . . .”
We hardly need say that nothing involved in these cases, or in
petitioners’ arguments, touches the clemency power of the execu-
tive. Conversely, to recognize the unfettered character of that
power is not to legitimate giving a similar power to sentencing
juries. It is one thing to say that a man, once condemned to die
by procedures whose lawful regularity satisfies the concerns of
Due Process, may then be subjected to the unlimited authority of
commutation. It is quite another thing to say that a man may be
killed pursuant to a process which at no stage of the decision to
kill him satisfies Due Process concerns.
9
of the Model Penal Code“ and of the Study Draft recently
published by the National Commission on Reform of
Federal Criminal Laws. Both of these provisions use a
variety of means to assure regularity and delimit dis-
cretion in capital sentencing: the prescription of circum-
stances which exclude the death penalty; the requirement
of specified findings which allow the death penalty; the
enumeration of criteria for determination in cases where
it is allowed; and the subjection of that determination to
judicial review at the trial and appellate levels under the
game criteria. Alternatively, capital sentencing procedures
could be designed along the lines of the extended-sentencing
provisions of the Model Sentencing Act of the N. C. C. D. -
directing specified inquiries into the defendant’s back-
ground and propensities. These approaches might be
combined, or others adopted.“ None would prohibit either
capital punishment or mercy, while restricting the jury’s
power simply to take away life arbitrarily.
As for the suggestion that California’s or Ohio’s legis-
lature, or any other, has determined that these approaches
are impracticable—a determination, so the suggestion goes,
that this Court should respect—that is quite fallacious. To
be sure, it is true that American legislatures have in fact
given their juries arbitrary capital sentencing power, as
„ AMERICAN Law Instrrute, Mope, Prenat Cong, §210.6
(P. O. D., May 4, 1962), pp. 128-132.
n NATIONAL ComMMiIssiONn ON REFORM OF FEDERAL CRIMINAL
Laws, Srupy. Drarr or 4 New Feperat Cemnat Cone, §§3601-
3605 (1970),-pp. 307-311.
u ApvisoRY COUNCIL OF JUDGES OF THE NaTIONAL COUNCIL ON
Came anp DN UNT, Mobi. Senrencine Act, §§5-9 (1963).
See our Maxwell brief, Appendix A, infra pp. 38-45, 63-64
n. 67.
10
once they were wont to give their police chiefs arbi
powers of licensure of public meetings before this Court
forbade. Often it is the easier course, legislatively, to cast
the net overbroadly, particularly where the courts have not
identified constitutional interests that require otherwise,
But to read into such a course the determination that other
courses are impracticable—as distinguished from merely
more exacting—is to read what no legislature has written,
The plain fact of the matter is that the arbitrary death.
sentencing procedures challenged in these cases and perva-
sive in the United States today represent the several
legislatures’ easy way out of the problem of devising work-
able methods of selection of the persons who should die,
once mandatory capital punishment for murderers and
other “capital” criminals became politically untenable.
Wholesale execution of the persons guilty of these crimes
is no longer tolerable to enlightened public opinion;
differentiation among them is difficult, particularly since
the purposes of the death penalty are diffuse, controversial,
and—when exposed to rational debate—too unsubstantial
to command agreement either upon those purposes them-
selves or upon the uses of the death penalty appropriate to
achieve them; so the matter is simply handed over to
individual juries to kill or not, as they please.
And here one touches, we believe, the real interest of the
States of California and Ohio in the present cases. That is
an interest in maintaining the death penalty while avoiding
the responsibility for rationalizing it to the extent necessary
in order to assure its regular, consistent, non-arbitrary
application. Or, to put the matter the other way around, it
14 See note 154 infra.
11
ig an interest precisely in maintaining arbitrary procedures
for administration of the death penalty and ‘selection of
the men to die, lest, in the process of formulating non-
arbitrary selective procedures, the death penalty be ex-
posed to legislative and public scrutiny that might severely
restrict or even wholly condemn it.
To this extent only do these cases implicate a possible
restriction of state power to impose death as a penalty for
crime. If petitioners prevail in both their claims here, a
State which chooses to kill human beings in the service of
some penal policy will have to give considered legislative
attention to its reasons for doing so, and to the design of
standards and procedures for selection of the men it will
kill which conform to those reasons and assure their imple-
mentation in a regular, non-arbitrary fashion. Nothing
more is at stake for the States.“
u We have pointed out in our Maxwell brief, Appendix A infra,
pp. 60-61, why a decision forbidding arbitrary capital sentencing
by juries would not necessarily imply a like constitutional restric-
tion upon non-capital jury sentencing in the relatively few States
where juries determine penalty for non-capital crimes.
We have also pointed out, id., at pp. 35-37, grounds which might
distinguish capital jury sentencing from capital sentencing by
judges. As a practical matter, in terms of the States’ interest in
this litigation, judge sentencing in capital cases involves no addi-
tional considerations. In every State which permits capital sen-
tencing by judges alone (that is, not upon the recommendation
of a jury), such judge sentencing is an alternative procedure to
jury sentencing, usually available upon pleas of guilty or the de-
fendant’s waiver of jury trial. If these States are required to de-
sign constitutionally adequate standards for capital jury sentenc-
ing, those standards obviously can and will also be made to apply
to capital sentencing by judges. All that is realistically at stake,
therefore, in the question whether capital sentencing by juries and
by judges is constitutionali distinguishable, is whether the men
sentenced to death by judges acting without standards prior to
the Court’s decision of these instant cases shall live or die. As
12
On the other hand, what is at stake not merely for the
individuals charged with capital crimes but for the entire
system of criminal justice in these gravest of legal pro.
ceedings, is the rule of law that is fundamental to the Due
Process Clause and to our very conception of government
in a free society. The question is not, as California sug.
gested in the Maxwell argument that it was, whether
individual capital defendants would “do better” under
regularized sentencing procedures or arbitrary ones. Some
defendants undoubtedly would do better, and some would
do worse. But they would do better or worse for reasons
rationally related to the publicly exposed justifications for
having the death penalty, not—as now—wholly arbitrarily.
Our society is not bottomed on the rule of law because some
of us “do better” for it. Our society is bottomed on the
rule of law because, without it, irresponsible and arbitrary
governmental action may destroy any one of us, and that
destruction diminishes us all.
Perhaps at no time in American history has the rule of
law been so important, and respect for it so precious, as
they are now. Institutionalized arbitrariness, particularly
in matters of life and death, critically undermines the rule
of law and its just claim to respect. So it is a matter of the
highest expediency, as well as a constitutional command,
that (as the National Crime Commission recommended):
[Where a State chooses to retain capital punishment),
we point out in our discussion of retroactivity, pp. 74-82 infra,
the States’ interest in killing any of these men is negligible.
The federal Government does, however, have a few, infrequently
used capital statutes that confer sentencing discretion exclusively
upon judges. As to these, any constitutional distinction between
standardless capital sentencing by juries and standardless capital
sentencing by judges would have future, as well as past, signifi-
cance.
13
the types of offenses for which it is available should be
strictly limited, and the law should be enforced in an
evenhanded and nondiscriminatory manner, with proce-
gares for review of death sentences that are fair and
expeditious. When a State finds that it cannot administer
the death penalty in such a manner, the penalty should
be abandoned.” 16
The problem, of course, is that arbitrary procedures for
the imposition of capital punishment inevitably function to
preclude both their own review and the reconsideration of
the basic question of the death penalty. When the decision
to kill human beings is made ad hoc and without reference
to any articulated standards, policies or justifications,
capital punishment escapes the sorts of legislative and
public scrutiny necessary to assure either “evenhanded and
nondiscriminatory” enforcement (supra), or conformity
with „the evolving standards of decency that mark the
progress of a maturing society,’ (Trop v. Dulles, 356 US.
96, 101 (1958) (plurality opinion), quoted in Witherspoon
v. Ilinois, 391 U.S. 510, 519 n. 15 (1968)). For it is, once
again, the easy way out—too easy, we think, where the
matter of killing human beings is involved—for a legis-
lature to leave undisturbed upon the statute books a capital
punishment law whose evenhanded and nondiscriminatory
enforcement it could not rationally support, and its public
would abhor—so long as both the legislature and the public
are assured that it need not in fact be evenhandedly and
nondiscriminatorily applied. If a few poor ugly wretches
are the only ones who have to actually die, and upon grounds
1 Prespent’s COMMISSION ON Law ENFORCEMENT AND AD-
MINISTRATION OF JusTICE, Report (THE CHALLENGE OF CRIME IN A
Fur Socrery) (1967), 143.
14
not susceptible of examination or application to anyone
else, capital punishment obviously escapes the fair scrutiny
of public conscience, with its attendant pressure to keep
the legislature acting decently. For the public can easily
bear the rare and random imposition of a punishment
which, if applied systematically and regularly, would make
the common gorge rise.
But this is not the worst of it. The individual condemned
man goes to his death not merely in the dubious service of
a self-insulated, comprehensively arbitrary system, but ag
the result of a particular selective judgment made
arbitrarily in his own case, singling him out without design
or reason as the happenstance tribute of that system. He
is picked to die, out of a group of identically situated
defendants convicted of the same crime and thereupon
permitted to live.“ Perhaps his case differs in some aspects
from theirs; perhaps it does not; no matter, since the
sentencing jury is not required to consider either the
differences or any principles that might make them rele-
vant. It may simply elect to kill him or not, as it chooses,
for any reason, or for no reason, and certainly for no
reason that need or will be applied in the case of any other
) defendant. The notion that judgments upon any important
| fissue should be made by a purported court of law in this
fashion is incredible; but, that life-or-death judgments—
| and, in our system of law, only life-or-death judgment
| should be so made, is positively mind-staggering.
;
Insofar as we can tell, there are now approximately five
hundred and fifty-three condemned persons on the death
17 See our Mazwell brief, Appendix A infra, pp. 11-12.
15
rows of this country.” Five hundred and forty-eight of
them have been sentenced to die under the arbitrary
sentencing power challenged in these McGautha and Cramp-
ton cases. For these men, as for the Court, the question
that the cases present is not whether a State may constitu-
tionally use death to punish crime. It is whether they may
constitutionally be selected to die, from amongst their
thousands of death-eligible compeers, by a process 80
fundamentally lawless that a small-claims court could not
cated and commuted during the first seven months of 1970 brings
the number to the estimated 553 set forth in text.
a rough estimate of how many of the 548 persons under sentence
of death for discretionary capital crimes were judge-sentenced.
We can make the estimate, however, that about 390 of them
were sentenced to death under the single-verdict procedure also
challenged in the Crampton case. This figure is derived by exclud-
ing from the 502 (1) all death-row inmates in California, Con-
necticut Pennsylvania, (2) an estimated number in Texas
tried since 1967, when that State adopted a split-verdict form of
capital trial procedure, and (3) an estimated number of inmates
in other jurisdictions sentenced to death after pleas of —
(Georgia’s split verdict statute became effective only last month ;
and New York has no prisoners now under sentence of death.)
16
validly use it as the basis for rendering a five-dollar jndg.
ment.“ That is the issue which this Court must decide.
We have made these introductory observations for one
reason. It is to state precisely the significance of the ques.
tions of capital trial procedure now before the Court. From
the point of view of the States, they are far less important
than the ultimate question—not here presented—whether
the Constitution, in particular the Eighth Amendment,
permits the use of capital punishment at all. But from the
point of view of constitutional principle, they are at least
equally important.
Death, which creates their importance, also obscures it,
For the enormity of death is such that the basic question—
whether to permit its use as a punishment for crime—
naturally tends to dwarf into apparent insignificance all
questions relating to procedures for its imposition. So very
difficult and emotionally exhausting is that basic question,
that once legislative competence to use capital punishment
has been granted—once it has been decided or assumed
that someone can properly and legally be made to die—
even the vital question, who, seems relatively picayune.
That tendency is seconded by the notion that, since the
legislature can sentence all condemned criminals of a sort
to death, the process of sparing some but not others is an
act of mercy, of whose mysterious workings none can
legitimately complain. Besides, death is such an extraor-
dinary thing, so beyond the pale of human reason, that to
ask a legislature to deal reasonably with it, find reasonable
bases for its imposition here and its extenuation there,
surely is too much to ask.
20 See our Maxwell brief, Appendix A infra, p. 42.
17
But it is not too much to ask. Arbitrarily killing people
is not “mercy.” Who gets killed is not a picayune question.
And the enormity of state-inflicted death is no reason for
the attenuation of basic constitutional safeguards. It is
, reason for heightened insistence upon those safeguards.
We have admitted above that the designing of non-
arbitrary procedures for the administration of capital
punishment would be more difficult for legislatures than
continuation of the present arbitrary ones. Indeed, as we
see it, the real question in these cases is whether the Con-
stitution requires the legislatures to shoulder that difficulty.
In other contexts, the avoidance of legislative difficulty
‘cht itself be a weighty constitutional concern. But legis-
lation that extinguishes human life should be difficult at
least to this extent: that the problem of providing regular
and fundamentally lawful procedures for its administration
must be responsibly met, and arbitrariness in those
procedures not excused on the astounding ground that the
death penalty is basically irrational anyway.
18
II.
The Issue of Standardless and Arbitrary Capital Sen
tencing Power.
A. The Nature of the Power
With a single exception,“ all capital crimes currently in
use in the United States involve the discretionary (that
is, non-mandatory) imposition of the death penalty.”
Practices for the selection of the men who will die for these
crimes vary considerably, however, from State to State,
We first describe the Ohio and California practices here in
issue, and then contrast them with the discretionary capital.
sentencing practices in use in other American jurisdictions,
1. Ohio
Non-capital sentencing in Ohio is done almost entirely by
judges.* All capital sentencing is, however, done by
n See note 19, supra.
22 See our Maxwell brief, Appendix A infra, p. 26, n. 24.
1 Juries trying non-capital criminal cases are required by stat-
ute to be told that they should not consider the question of punish-
ment, and that punishment rests with the court. Ohio Rev. Code,
§2945.11 (Ohio Gen. Code, §13442-9). See, e.g., State v. Spino, 90
Ohio App. 139, 104 N.E.2d 200 (1951). Judicial sentencing is gen-
erally diseretionary within statutory limits, and the exercise of
that discretion is not reviewable on appeal. City of Toledo v.
Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179 (1965); '
v. State, 34 Ohio App. 536, 171 N. E. 407 (1929), af d, 122 Ohio
St. 156, 171 N. E. 27 (1930). But see Montalto v. State, 51 Ohio
App. 6, 199 N. E. 198 (1935).
In regard to two non-capital crimes, juries do have sentencing
— They may decide whether the sentence for nighttime
urglary of a dwelling and for bank rob should be life im-
prisonment or some lesser term. Ohio Rev. e, §2907.09 (Ohio
Gen. Code, 512437); Ohio Rev. Code, §2907.141 (Ohio Gen. Code,
19
juries,” unless the defendant waives jury trial* or pleads
guilty® to a capital offense. In either of these last instances,
4 statute provides for sentencing by a three-judge court,”
———
612441). See State v. Sahadi, 3 Ohio App. 2d 209, 209 N. E. 2d 758
(1964) (jury-waived case).
%Qhio has two mandatory capital crimes, neither of which has
apparently ever been employed: Ohio Rev. Code §2901.09 (Ohio
Gen. Code, §12406) (killing the President or a person in the line
sdential succession) ; Ohio Rev. Code, §2901.10 (Ohio Gen.
§12407) (killing the Governor or Lieutenant Governor).
Ohio’s remaining capital statutes—six in number—confer sentenc-
ing discretion upon the jury. See note 30 infra.
„ capital defendant has a right to waive a jury and insist
upon a bench trial in a capital case. State v. Smith, 123 Ohio St.
M, 174 N.E. 768 (1931).
% The trial court has discretion to decline to accept a guilty plea.
See State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362, 365 (1925) ;
State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868, 885 (1948).
u Ohio Rev. Code, §2945.06 (Ohio Gen. Code, §13442-5). For
i of the statute’s application in a case of jury waiver, see
State v. Stewart, 176 Ohio St. 156, 198 N.E.2d 439 (1964); and
in cases of guilty pleas, see State v. Frohner, 150 Ohio St. 53, 80
NE.2d 868 (1948) ; State ex rel. Scott v. Alvis, 156 Ohio St. 387,
102 N.E.2d 845 (1951) ; State v. Ferguson, 175 Ohio St. 390, 195
hg (1964) ; State v. Lucear, 93 Ohio App. 281, 109 N.E.2d
89 (1952).
The three-judge statute dates from 1933. 115 Ohio Laws 531
(SB. No. 90, §1). Prior to that date, one judge could take a guilty
in a capital case and exercise the jury’s sentencing discre-
on, State v. Habig, 106 Ohio St. 151, 140 N.E. 195 tee ; State
J. Ferranto, 112 Ohio St. 667, 148 N. E. 362 (1925); State ex
rel. Evans v. Eckle, 163 Ohio St. 122, 126 N.E.2d 48 (1955);
Beard v. State, 64 Ohio Law Abs. 532, 112 N.E.2d 832 (1951) ;
although, apparently, three judges were sometimes convened in
such cases, as a matter of practice and upon consent of the parties,
see Hoppe v. State, 29 Ohio App. 467, 163 N.E. 715 (1928). The
efect of the 1933 statute was to withdraw capital sentencing power
from a single judge, Ez parte Knight, 73 Ohio App. 547, 57 N.E.
24 273 (1944), but it did not otherwise affect the nature of the
sentencing discretion committed to judicial exercise in cases of
pleas or jury waivers. See note 28 infra.
20
which is granted sentencing powers identical to those
ordinarily exercised by capital juries.”
The provision conferring capital sentencing discretion
upon juries dates from 1898.“ It is now found, in identical
form, in each of Ohio's five non-mandatory capita]
statutes.” The archetypal statute, involved in the Crampton
case, is Ohio Rev. Code, §2901.01 (Ohio Gen. Code, 512400),
which provides that:
“Whoever violates this section is guilty of murder
in the first degree and shall be punished by death unless
the jury trying the accused recommends mercy, in
which case the punishment shall be imprisonment for
life.”
Construing this provision, the Ohio Supreme Court has
said that: “Whether or not a recommendation of mercy
shall be made upon finding an accused guilty of murder in
** State v. Habig, 106 Ohio St. 151, 140 N.E. 195, 199 (1922);
State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362, 367 (1925);
State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868, 885 ore
State v. Lucear, 93 Ohio App. 281, 109 N.E.2d 39, 41 (1952).
*°93 Ohio Laws 223 (S. B. No. 504). See State v. Ellis, 98 Ohio
St. 21, 120 N. E. 218 (1918) ; State v. McClellan, 12 Ohio A
204, 232 N.E.2d 414, 417 (1967).
rr
21
the first degree is a matter vested fully and exclusively in
the discretion of the jury.“
The only restriction placed upon the jury’s absolute
discretion is that a recommendation of mercy must in some
way be based upon the evidence presented at trial. As the
Ohio courts put it:
“(T]he General Assembly has given to the jury an
absolute discretion to recommend mercy which dis-
cretion should be exercised in view of all the facts and
circumstances described by the evidence. . This
matter is confided fully and exclusively to such dis-
cretion of the jury.“
“Bvidence,” in this context, means the evidence presented
at the single-verdict trial upon the issue of guilt or inno-
cence. No evidence may “be introduced directed specifically
toward a claim for mercy” since the question of life or
death itself is “a matter entirely within [the jury’s] ...
diseretion,” and therefore “not an issue in the case.“
— ——
u State v. Ellis, 98 Ohio St. 21, 120 N. E. 218 (1918) (Court’s
2 12 120 N. E., at 218). See also Liska v. State, 115 Ohio St.
152 N. E. 667, 668 (1926) (“The recommendation of m
rests wholly in the sound discretion of the jury. They may exten
or withhold as they see fit“); Ashbrook v. State, Ohio App.
197 N. E. 214 (1935) (Court’s Syllabus, 197 N. E., at 214)
action of a jury in recommending or failing to recommend
merey in a first-degree murder ease is a matter entirely within its
discretion. ...””).
u State v. Tudor, 154 Ohio St. 249, 95 N.E.2d 385, 390 (1950);
— my Er parte Knight, 73 Ohio App. 547, 57 N.E.2d 273, 275
u Ashbrook v. State, 49 Ohio App. 298, 197 N.E. 214 (1935)
(Court’s Syllabus, 197 N.E., at 214).
—
22
The concept that a capital jury is required to base any
decision in favor of merey“ upon the evidence derives from
the leading case of Howell v. State, 102 Ohio St. 411, 13)
N.E. 706 (1921), which held that it was not error to charg
the jury, upon a first degree murder conviction, “to consider
and determine whether or not, in view of all the cireyp.
stances and facts leading up to and attending the alleged
homicide as disclosed by the evidence, you should or should
net make such recommendation.“ The Howell court
determined, as stated in its syllabus, that:
Under the Ohio statute, the death penalty is decreed unless the
j returns a verdict affirmatively recommending mercy. Stat
v. Klumpp, 15 Ohio Ops.2d 461, 175 N.E.2d 767, 775 (1960),
opp. diem d, 171 Ohio St. 62, 167 N.E.2d 778 (1960). So th
ect of the requirement that the jury base its recommendation
upon evidence is to demand an affirmative evidentiary ground only
in the case of a decision to spare the defendant’s life. The decision
to kill him need have no such basis. See Massa v. State, 37 Ohio
App. 532, 175 N.E. 219, 221-222 (1930) (finding a claim of error
going to penalty nonprejudicial since the appellate court can find
nothing in the record that might have supported a recommendation
of mercy) ; and see State v. Karayians, 108 Ohio St. 505, 141 NE.
334, 336 (1923).
**In sustaining this charge, the court adopted the State’s con-
tention that “while the discretion of the jury may be unrestricted
and absolute, it must be exercised only in view of the evidence,
and must be confined to the facts and circumstances produced or
lacking in the trial of the case.” 131 N.E., at 707.
“It may be true, and some courts so hold, that the funetion
of a court, in permitting the j to make a recommendation
respecting mercy, is best fulfilled by simply giving the terms
of the statute to the jury and informing them that the mak-
ing or withholding of the recommendation is a matter entirely
within their discretion. In such case, of course, it would be
presumed that the jury would fulfill their duty from a con-
sideration of the case as presented to them as sworn jurors,
But in arriving at a determination with reference to this
recommendation they should be guided by the evidence, or
lack of evidence, as the case may be, as disclosed upon the
trial. It would be a travesty upon justice were the jury
“Section 12400, General Code, giving the jury dis-
cretion to recommend mercy in cases of conviction of
first degree murder, confers an absolute discretion
which should not be influenced by the court. However,
this discretion should be exercised in view of all the
facts and circumstances disclosed by the evidence.”
It should be noted that, while the Howell charge itself
spoke of “all the circumstances and facts leading up to and
attending the... homicide,” the Howell syllabus spoke
more broadly, in terms of “sll the facts and circumstances
disclosed by the evidence.” To the extent that these two
notions differ,“ it is the latter one that has subsequently
i to ignore the evidence and rest their conviction
upon their conscientious scruples against imposing capital
punishment, or take into consideration facts which may have
come to their knowledge while they were not acting in their
capacity as jurors. That was not the purpose of the law.
We hold, therefore, that the trial court did not commit error
4.47 707) the jury as it did” (131 N. E., at 709; see also
4. at 707.
fevor of capital punishm
E. 218 (19 and still does. See State v. Pruett,
24
become anchored in Ohio law. The model jury charge that
has evolved to embody the Howell principle appears to be
the one approved in State v. Caldwell, 135 Ohio St. 424 A
N.E.2d 343, 344 (1939):
“(If you find the defendant guilty of first degree
murder, ] then you will have one further duty to per-
form, and that is, you will determine whether or not
you will extend or withhold mercy. ... In that cop.
nection whether you recommend or withhold merey is
a matter solely within your discretion, calling for the
exercise of your very best and most profound judg.
ment, not motivated by considerations of sympathy or
as a means of escaping a hard or disagreeable duty,
but must be [sic] considered by you in the light of all
the circumstances of the case with respect to the
evidence submitted to you and the other circumstances
surrounding this defendant.” *"
34 supra. That effect is consonant with the Howell opinion, which
appears most concerned lest the jurors go outside the record (for
example, to considerations of “conscientious scruples”) in decid-
ing to recommend mercy. See note 34 supra. See also the post-
Howell ambiguity noted in note 37 infra.
* Although the concept of Howell was to limit a recommenda-
tion of mercy to a basis of circumstances “disclosed by” the evi-
dence, the Caldwell charge speaks of the evidentiary circumstances
of the case and “the other circumstances surrounding this defen-
dant.” It is not plain whether these latter circumstances need to
be determined from the evidence. Presumably they do (see the
following paragraph), but the confusion is compounded by the
jury approved in Rehfeld v. State, 102 Ohio St. 431,
131 N. E. 712, 713 (1921) (“circumstance or fact in the case, or
. . . all the evidence”), and State v. Pierce, 44 Ohio Law Abs. 193,
62 N.E.2d 270, 273 (Ohio App. 1945) (“consideration of the evi-
dence, the character of the crime and the attending circun-
stances”), note 38 infra.
In the Caldwell case itself, the jury returned to ask for further
instructions concerning the question of mercy, and the following
colloquy occurred:
“The Foreman: What are grounds for granting merey !
“The Court: That rests solely and wholly in your sound
discretion. You should determine whether or not in your
The Howell-Caldwell charge is approved by the Ohio
te courts whenever it is given,” but it does not
appear mandatory to give it. Jury charges have been
diseretion mercy should be granted from a consideration of
the evidence, the character of the crime and the attending
“The Foreman: ... What are extenuating circumstances?
Are they something which we can determine in our own judg-
ment alone?
“The Court: No, if there are any, you must determine them
from the evidence.
“The Foreman: Well, then, may we consider sociological
matters and environment in determining this question of
7
be Court: No- they have nothing whatever to do with
this case.”
These supplemental instructions were sustained on the appes.
Ohio St.2d 145, 249 N.E.2d 897, 90:
„44 Ohio Law Abs. 193, 62 N.E.2d
the trial judge initially charged:
in charge: may recommend, i i
think yo ified in doing so. It is
all the facts in the i
such recommendation,
scribed in any respect.
the exercise of your discretion.
you.”
When the jury returned with a request that this passage be read
again, the judge instead gave the substance of the Caldwell
charge, and added: “You should determine whether or not in
diseretion mercy should be granted from a consideration of
the evidence, the character of the crime and the attending cir-
102 Ohio St. 431, 131 N.E. 712, 713
(1921), was approved:
“This right or option
26
sustained which do no more than tell the jurors that they
have an option of mercy.” Whether the latter form of
charge would be in error as against a specific request tp
charge in the language of Howell and Caldwell is unclear,
but probably it would not.“ i
ur discretion to say whether there is any circumstance or
Sick tai thes coun: Gr Whether freed oft tho oredaaat believe
that, notwithstanding his guilt of murder in the frst degree,
mercy or clemency should be extended. If you do recom.
mend mercy, the court is bound to reduce the punishment 0
life imprisonment. It is a matter wholly within the disere.
tion of this jury.”
State v. Karayians, 108 Ohio St. 505, 141 N.E. 334, 335
(1923) (“the jury may recommend mercy, and, in that event,
that . . should be set forth in oad verdict”) ; Massa v. State, 37
Ohio App. 532, 175 N.E. 219, 221 (1930) (“you have a right to
recommend mercy provided you see fit to do so”). In Tarapi
the Ohio Supreme Court characterized the instruction telling the
jury that it might make a recommendation of mercy as unse-
companied by any restriction or limitation whatever upon their
discretion to make such recommendation.” 141 N.E., at 336. And
see State v. Schiller, 70 Ohio St. 1, 70 N.E. 505 (1904).
The issue is unlikely to arise. We have pointed out at notes
34, 36 supra, that—because of the fashion in which Ohio law casts
the burden of persuasion by requiring an affirmative recommends-
tion of mercy in order to spare the defendant’s life—the Howell-
Caldwell charge restricts the bases upon which the jury may let
the defendant live but not those upon which it may kill him. De-
fense counsel cannot, therefore, practicably request the charge.
In the present Crampton case, the j was told only that the
punishment for first degree murder “is death, unless you recom-
mend mercy, in which event the punishment is imprisonment in
the penitentiary during life.” (Crampton Appendiz, p. 70.) It
was handed a verdict form with a line “which you must fill in.
We—blank—recommend mercy and you will put in that line, we
do, or, we do not, according to your finding.” (Crampton Appen-
diz, p. 71.) No other instructions relevant to the question of life
or death were given, except that when the jury during its delibera-
tions sent in a note asking “Does the vote have to be unanimous
for recommendation?” the court sent back the written response:
“Yes.” (Crampton Trial Transcript, pp. 436-437.)
We infer this from the broad discretion to charge or not to
charge specific matters relative to the question of mercy that is
27
One point is clear, however. An Ohio jury’s death verdict
is absolutely final. It may not be reviewed or set aside by
any court.”
zred in the line of Ohio decisions dealing with instructions
on the consequences of a recommendation of mercy. Under these
decisions, the trial judge may explain or decline to explain matters
of possible pardon, commutation and parole incident to a sentence
diseretion to charge on them an will not be reversed if he does.
State v. Meyer, 163 Ohio St. 279, 126 N.E.2d 585 (1955) ; State v.
Henley, 15 Ohio St.2d 86, 938 N.E.2d 773 (1968). And see State
i 1, 70 N.E. 505 (1904); Liska v. State, 115
Ohio St. 283, 152 N.E. 667 (1926) ; State v. Tudor, 154 Ohio St.
249, 95 N.E.2d 385 (1950) ; Massa v. State, 37 Ohio App. 532, 175
NE. 219, (2890); Licavoli v. State, 20 Ohio Ops. 562, 34 N.E.2d
450 a
SS aly other line of Ohio cases illuminating the nature of that
State’s procedures for deciding the question of penalty in a capital
case, concerns the proper scope of counsel’s arguments. The prose-
entor may argue for the death penalty, and defense counsel ma
argue against it, 20 long as they do not go outside the reco
Howell v. State, 102 Ohio St. 411. 131 N.E. 706 (1921) ; Shelton v.
State, 102 Ohio St. 376, 131 N. E. 704 (1921). In State v. Ames,
50 Ohio Law Abs. 311, 80 N.E.2d 168, 171 (1947), rer ts
nied, 81 N.E.2d 238 (1948), app. dism’d, 149 Ohio St. 192, 78
NE2d 48 (1948), the prosecutor was permitted to argue that the
defendant should not be sent to the penitentiary to educate young
under Ohio law, it cannot.
“The trial court may not review it, Turner v. State, 21 Ohio
Law Abs. 276, 279-280 (1936) ; State v. Klumpp, 15 Ohio Ops.2d
28
„[The courts have nothing to do with the sentenge
in a case of this kind; . . the Legislature . . . has not
only defined the crime . . . but it has also fixed the
penalty. When a person is convicted of first degree
murder . ., the Legislature has decreed that such
person must die in the electric chair, unless the jury
recommends mercy. The Courts have nothing to say
as to the punishment; the penalty of death is man.
datory and is left squarely with the jury... .”*
Similarly, the death sentencing decision of a three-judge
court, upon a plea of guilty or a jury waiver, is totally
unreviewable.“
461, 175 N.E.2d 767, 775-776 (1960), app. dism’d, 171 Ohio St. 62,
167 N.E.2d 778 (1960) ; see State v. Ellis, 98 Ohio St. 21, 120 NB,
218, 219 (1918) (dictum); nor may an appellate court, State .
Ames, 50 Ohio Law Abs. 311, 80 N.E.2d 168, 170 (1947) Hag
denied, 81 N.E.2d 238 (1948), app. dism’d, 149 Ohio St. 192,
N.E.2d 48 (1948) ; State v. Reed, 85 Ohio App. 36, 84 N.E.2d
624 (1948). In 1963, a bill was introduced in the Ohio Legislature
that would have given both trial and appellate courts power to
reduce a jury-imposed death sentence, but it died in committee,
See Herman, An Acerbic Look at the Death Penalty in Ohio, 15
Western Reserve L. Rev. 512, 514 (1964).
State v. Klumpp, 15 Ohio Ops.2d 461, 175 N.E.2d 767, 775
(1960), app. dism’d, 171 Ohio St. 62, 167 N.E.2d 778 (1960).
State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964);
State v. Stewart, 176 Ohio St. 156, 198 N. E. 2d 439 (1964); Hoppe
v. State, 29 Ohio App. 467, 163 N. E. 715 (1928); State v. Lucear,
93 Ohio App. 281, 109 N. E. 2d 39 (1952); and see State v. Frohner,
150 Ohio St. 53, 80 N. E. 2d 868 (1948). Of course, where the evi-
dence is legally insufficient to sustain conviction of the capital of-
fense, a conviction may be set aside on appeal, and the sentence
necessarily falls with it. State v. Porello, 138 Ohio St. 239, 34
N.E.2d 198 (1941); State v. Cosby, 100 Ohio App. 459, 137 N.E.2d
282 (1955). Also, apparently, if the conviction is against the
weight of the evidence, a Court of Appeals may reverse and re-
mand for a new trial, although it may not reduce the degree of
Under the procedures just described, Ohie juries and
judges sentence to death less than one- quarter of the per-
gons whom they yearly convict of first-degree murder. In
the past decade, the figures have been lower: averaging
about 15% death verdicts.
the offense or direc Robinson, 162 Ohio
St. 486, 124 N. case). Also, if the
sentencing judge i exercising the
sentencing discretion conf sentence will be re-
eed and remanded with directions to exercise the discretion.
State v. Sahadi, 3 Ohio App.2d 209, 209 N. E. 2d 758 (1964) (non-
capital case; see note 23, para. 2, supra). But once the i
js exercised, it is unreviewable.
“Between 1949 and 1958, it is estimated that there were 217
murder convictions in Ohio, as compared with 49 death
murder. The death-sentencing rate was
Onio Laasiative Service Commission,
Starr RESEARCH No. 46, Capita PUNISHMENT (January,
1961), 54. (It is unclear whether these figures are for jury trials
alone or for both jury and bench trials.)
Between 1959 and 1968, the figures for all trials (jury and
bench) are as follows:
Number of First- Number of Death
Degree Murder Sentences Upon
Convictions Convictions
less than 7 ; exact
3
3
2
6
8
5
9
S[Sssss sse
Total 54
The sources of the ten conviction figures, respectively, are: OHIO
DzPaRTMENT oF MENTAL HYGIENE AND CorrEcTIONS, OHIO JUDICIAL
30
2. California“ me
In California, as in Ohio, juries have virtually no role
in non-capital sentencing, but are the principal sentencing
Cemunat Statistics [hereafter cited as OJCS], 1959, p. 12; OJC8,
1960, p. 8; OJCS, 1961, p. 12; OJCS, 1962, p. 9; OJCS, 1963, p. 13;
5008. 1964, P. 8; OJOS, 1965, p. 11; OJOS, 1966, p. 9; JOR
1967, p. 9; OJCS, 1968, p. 11. a4
The sources of the ten death-sentence figures, respectively, art:
Unrrep States DeparTMENT or JUSTICE, BUREAU OF Nu.
TIONAL Paisonen Statistics [hereafter cited as NPS] Bulletin
No. 23, Executions 1959 (February, 1960), p. 1; NPS Bulletin No,
26, Executions 1960 (March, 1961), table 5; NPS Bulletin No. 5,
Executions 1961 (April, 1962), table 5; NPS Bulletin No. 32, Rue
eutions 1962 (April, 1963), table 5; NPS Bulletin No. 2. oe
tions 1930-1963 (May, 1964), p. 14; NPS Bulletin No. 37, Exeeu.
tions 1930-1964 (April, 1964 350 1965), p. 14; NPS Bulletin
No. 39, Executions 1930-1965 (June, 1966), p. 14; NPS Bulletin
No. 41, Executions 1930-1966 (April 1967), p. 13; NPS Bulletin
No. 42, Executions 1930-1967 (June, 1968), p. 16; NPS
No. 45, Capital Punishment 1930-1968 (August, 1969), p. 16.
These two sets of figures a to be reliably comparable. (See
the discussion in bi ys B to our Maxwell brief 7 4
infra, pp. 24a-26a.) e OJCS figures cover only 87 0 Ohio’s 88
counties, while the NPS figures cover all 88; but the missing OJCS
county is a small one (accounting for less than 1% of the States
population), and likely insignificant for present purposes. Since
the NPS figures are for prisoners received at prison under sentence
of death, and since prisoners are not always received in the same
year in which they are convicted, there may be a degree of non-
— N between the OJ CS and NPS figures for any single
year; but would balance out over a ten-year span.
“ California capital trial practice is discussed in Note, A Study
of the California Penalty Jury in First-Degree-Murder Cases, 21
Sran. L. Rev. 1297, 1311-1315 (1969); Comment, The Death
Penalty Cases, 56 Cau. L. Rev. 1268, 1366-1369, 1404-1415, 1420.
1422, 1424-1434 (1968); Comment, The California Penalty Trial,
52 Cau. L. Rev. 386 (1964) ; Symposium Note, The Two-Trial Sys-
tem in Capital Cases, 39 N.Y.U.L. Rev. 50 (1964).
472 Wrrxin, Catirornia Crmmes, §§904-905 (1963), at pp. 859.
860. The jury’s only function in non-capital sentencing relates to
a few crimes classified as “misdemeanor-felonies,” which the jury
may determine to be the former or the latter. The judge exercises
all other sentencing power. Ibid. However, if he imposes a state-
$1
in capital cases. California has one mandatory
capital statute in active (albeit relatively infrequent) use,“
and maintains a few obsolete ones on the books ;“ otherwise,
its capital laws confer the choice of death or imprisonment
the jury.” Juries make this sentencing choice whether
the defendant pleads guilty or not guilty,” unless, with
prison sentence, he does not fix the maximum term; that is later
fixed by the Adult Authority. Cal. Pen. Code §§1168, 1168a, 5077.
4 Cal. Pen. Code 54500 (assault with a deadly weapon or any
means likely to cause great bodily injury by a prisoner under sen-
tence of life imprisonment, where the person assaulted is not an
inmate and dies). See note 19, para. 1, supra.
# These are treason (Cal. Pen. Code §37), train wrecking where
suffers bodily harm (Cal. Pen. Code §219), and—that
most astounding of capital offenses, which simultaneously admits
the fallibility of human judicial and attaches irremediable
ces to it—the capital e of procuring the execution of
an innocent man by perjury in a capital case (Cal. Pen. Code §128).
Cal. Pen. Code §190 (first degree murder; death or imprison-
ment “at the discretion of the court or jury trying the same“);
Cal. Pen. Code 5209 — — for ransom or robbery where
suffers bodily harm; death or imprisonment
“st the discretion of the jury trying the same”); Cal. Pen. Code
§219 (train wrecking where no person suffers bodily harm; death
or imprisonment “at the option of the jury trying the case”) ;
Cal. Pen. Code §4500 (assault with a deadly weapon or any means
likely to cause great bodily injury by a prisoner under sentence
court or jury trying the same”); Cal. Mil. & Vet. Code §§1670,
1672(a) (sabotage causing death or great bodily injury; death or
imprisonment “at the discretion of the j trying the case, or at
the discretion of the court where a jury not try the case”).
Notes 51-53 infra explain why these statutes envisage principally
jury sentencing ; bench sentencing, as will appear, is authorized
only upon a waiver of jury trial.
u Cal. Pen. Code §190.1, set out in notes 56-7 infra, governs
the sentencing procedure under all five non-mandatory capital
statutes collected in note 50 supra. Its second paragraph provides
explicitly that if a defendant is convicted upon a plea of guilty,
a jury shall determine sentence unless a jury is waived. (Com-
pare the Ohio practice described at note 27 supra.) For instances
—
consent of the prosecution, a jury is waived.” Upon a
waiver, a single judge exercises the jury’s sentencing
power.“
— —
of jury sentencing upon a guilty plea, see, e. g., People v. Baldo.
nado, 53 Cal.2d 824, 350 P.2d 115, 3 Cal. Rptr. 363 (1960);
. oe v. Seiterle, 56 Cal.2d 320, 363 P.2d 913, 14 Cal. Rptr. 681
(1961).
52 Cal. Const., Art. I, §7 provides both that criminal defendant
have a right to trial by jury, and that they a waive that right
only with the prosecutor’s consent. The California courts hold
that consent of the prosecutor is required for a waiver of j
trial both upon the trial of guilt, People v. Washington, ——
2d ——, 458 P.2d 479, 493-494, 80 Cal. Rptr. 567 (1969) ; People
v. Whitmore, 251 Cal. App.2d 359, 59 Cal. Rptr. 411, 415 (1967),
and upon the trial of penalty after guilt has been determined,
People v. King, 1 Cal.3d 791, 463 P.2d 753, 83 Cal. Rptr. 401
(1970).
For instances of judicial sentencing upon a jury waiver after a
of guilty, see, e.g., People v. Deptula, 58 Cal.2d 225, 373
2d 430, 23 Cal. Rptr. 366 (1962); People v. Massie, 66 Cal.2d
899, 428 P.2d 869, 59 Cal. Rptr. 733 (1967). For instances of
judicial sentencing following a bench trial upon a jury waiver
at trial on a plea of not guilty, see, e.g., People v. Lookado, 66
Cal.2d 307, 425 P.2d 208, 57 Cal. Rptr. 608 (1967); People v.
Aikens, 70 Cal.2d 369, 450 P.2d 258, 74 Cal. Rptr. 882 (1969);
ef. People v. Reeves, 64 Cal.2d 766, 415 P.2d 35, 51 Cal. Rptr. 691
(1966) (plea of not guilty by reason of insanity). Where a capital
defendant thus waives a jury for trial of the issue of guilt, sen-
tencing must be done by a judge; a jury may not be impaneled
only for sentencing. Cal. Pen. Code §190.1, notes 56-7 infra, as
construed in People v. Golston, 58 Cal.2d 535, 375 P.2d 51, 2%
Cal. Rptr. 83 (1962). The same statute seems to say, conversely,
that if jury trial is had upon the issue of guilt, sentencing must
be done by the jury; however, there is at least one reported in-
stance of a jury-trial waiver as to 8 ollowing a j
determination of guilt, People v. Sosa, 251 Cal. App.2d 9, 58
Rptr. 912 (1967), apparently with the prosecutor’s consent, see
note 51 supra. Cf. People v. Jackson, 67 Cal.2d 96, 429 P.2d 600,
60 Cal. Rptr. 248 (1967) (jury waiver at penalty trial following
appellate reversal and remand as to penalty alone).
58 See, e.g., People v. Jones, 52 Cal.2d 636, 343 P.2d 577,
585
1 People v. Langdon, 52 Cal. 2d 425, 341 P. 2d 303, 308
(1959).
That power, which was originally conferred in murder
cases in 1874," is now expressed by essentially similar
terminology in all of California’s five non-mandatory
capital statutes.* The first-degree murder statute, Cal.
pen. Code §190, involved in the present McGautha case, is
Every person guilty of murder in the first degree
shall suffer death, or confinement in the state prison
for life, at the discretion of the court or jury trying
the same, and the matter of punishment shall be
determined as provided in Section 190.1.
Section 190.1, enacted in 1957,“ establishes a bifurcated or
“split-trial” procedure for the trial of capital cases, pro-
viding, in pertinent part:
“The guilt or innocence of every person charged with
an offense for which the penalty is in the alternative
death or imprisonment for life shall first be determined,
without a finding as to penalty. If such person has
% Cal. Acts Amendatory of the Codes 1873-1874, ch. 508, §1, p.
457.
% See note 50 supra.
the issues of guilt and sanity in all criminal cases, Cal. Pen. Code
§1026; and the 1959 amendment to §190.1 made clear that, on
pleas of not guilty and not guilty by reason of insanity to a capital
crime, the issues of guilt, sanity and penalty were to 1
34
been found guilty of an offense punishable by life
imprisonment or death, and has been found sane on
any plea of not guilty by reason of insanity, there shal}
thereupon be further proceedings on the issue of
penalty, and the trier of fact shall fix the penalty,
Evidence may be presented at the further proceedings
on the issue of penalty, of the circumstances surround.
ing the crime, of the defendant’s background and
history, and of any facts in aggravation or mitigation
of the penalty. The determination of the penalty of
life imprisonment or death shall be in the discretion of
the court or jury trying the issue of fact on the evidence
presented, and the penalty fixed shall be expressly
stated in the decision or verdict. The death penalty
shall not be imposed, however, upon any person who
was under the age of 18 years at the time of commis.
sion of the crime. The burden of proof as to the age
of said person shall be upon the defendant.” *
The statutory penalty trial is ordinarily conducted before
the same jury that has determined the defendant’s guilt."
; er The balance of the section consists of two paragraphs, as fol-
OWS :
“If the defendant was convicted by the court sitting with-
out a jury, the trier of fact shall be the court. If the defen.
dant was convicted by a plea of guilty, the trier of fact shall
be a jury unless a jury is waived. If the defendant was con-
victed by a jury, the trier of fact shall be the same jury
unless, for good cause shown, the court discharges that jury
in which case a new jury shall be drawn to determine the
issue of penalty.
“In any case in which the defendant has been found guilty
by a jury, and the same or another jury, trying the issue of
penalty, is unable to reach a unanimous verdict on the issue
of — the court shall dismiss the jury and either impose
the punishment for life in lieu of ordering a new trial on the
issue of penalty, or order a new jury impaneled to try the
issue of penalty, but the issue of guilt shall not be retried by
such jury.”
s Section 190.1, para. 2, supra note 57, permits the trial judge
to convene a new jury for the penalty phase “for good cause
Evidence may be presented relating to the circumstances
of the offense,” the defendant’s attitudes toward it,“ his
mental characteristics,” life history,” crimes and other
anti-social behavior, and other matters.“ Although the
shown.” California decisions interpret this provision as express-
ing a preference for retaining the same j that determined
if practicable. E.g., People v. Gilbert, Cal.2d 690, 408
2d 365, 378, 47 Cal. Rptr. 909 (1966) ; People v. Gonzales, 66
482, 426 P.2d 929, 939-940, 58 Cal. Rptr. 361 (1967).
“Eg. People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 643-644,
51 Cal. Rptr. 417 (1966); People v. Floyd, 1 Cal.3d 694, 464
P.2d 64, 79, 83 Cal. Rptr. 608 (1970).
„E. g., People v. Corwin, 52 Cal. 2d 404, 340 P. 2d 626, 627
(1959) ; People v. Jacobson, 63 Cal. 2d 319, 405 P. 2d 555, 563-564,
46 Cal. Rptr. 515 (1965); People v. Talbot, 64 Cal.2d 691, 414
P.2d 633, 647, 51 Cal. Rptr. 417 (1966).
“Bg, People v. Love, 53 Cal.2d 843, 350 P.2d 705, 713-714,
3 Cal Rptr. 665 (1960) ; People v. Howk, 56 Cal.2d 687, 365 P.2d
198, 429.431, 16 Cal. Rptr. 370 (1961) ; People v. Bickley, 57 Csi
24 788, 372 P.2d 100, 102-103, 22 Cal. Rptr. 340 (1962); People
. Jackson, 59 Cal.2d 375, 379 P.2d 937, 940, 29 Cal. Rptr. 505
(1968).
331 P
“Bg, People v. Feldkamp, 51 Cal.2d 237, .
634 (1958) ; People v. Corwin, 52 Cal.2d 404, 340 P.2d 626, 627
(1959) ; People v. Love, 58 Cal.2d 843, 350 P.2d 705, 713-714, 3
Gal. Rptr. 665 (1960); People v. Pike, 58 Cal.2d 70, 372 P.2d
656, 670, 22 Cal. Rptr. 664 (1962).
Evidence of other crimes is broadly admissible, e. g., People v.
Ketchel, 59 Cal.2d 503, 381 P.2d 394, 415-416, 30 Cal. Rptr. 538
(1963); People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 385-386, 37
Cal. Rptr. 605 (1964) ; People v. Hillery, 65 Cal.2d 795, 423 P.2d
208, 214, 56 Cal. Rptr. 280 (1967), without regard to the nature
of the crimes, e.g., People v. Love, 53 Cal.2d 843, 350 P.2d 705,
711, 3 Cal. Rptr. 665 (1960) (possession of firearms, constituting a
parole violation); People v. Pike, 58 Cal.2d 70, 372 P.2d 656, 670,
2 Cal. Rptr. 664 (1962) (pimping) ; People v. Durham, 70 Cal.2d
171, 449 P.2d 198, 210, 212-214, 74 Cal. Rptr. 262 (1969) (sodomy).
Because the purpose of this evidence is to show the defendant’s
character, the jury need not be concerned with the technical ele-
ments of the crimes. People v. Tahl, 65 Cal.2d 719, 423 P.2d 246,
257-258, 56 Cal. Rptr. 318 (1967). Juvenile offenses, People v.
99
an
California Supreme Court has declared a few areas of
Reeves, 64 Cal.2d 766, 415 P.2d 35, 40-41, 51 Cal. Rptr. 691 (1966)
and misbehavior of various sorts, e.g., People v. Lindsey, 56
324, 363 P.2d 910, 911, 14 Cal. Rptr. 678 (1961) ; People v. Lopes,
60 Cal.2d 223, 384 P.2d 16, 34, 32 Cal. Rptr. 424 (1963); P.
v. Mathis, 63 Cal.2d 416, 406 P.2d 65, 71-73, 46 Cal. Bite te
(1965) ; People v. Risenhoover, 70 Cal.2d 39, 447 P.2d 925, 935, 73
Cal. Rptr. 533 (1968), may be shown. It does not matter that the
defendant was never prosecuted for the offenses, People v. Mitchell,
63 Cal.2d 805, 409 P.2d 211, 218-219, 48 Cal. Rptr. 371 (1966);
People v. Aikens, 70 Cal.2d 369, 450 P.2d 258, 260, 74 Cal. Rpt.
882 (1969) ; or even that he has been tried and acquitted of them,
People v. Griffin, 60 Cal.2d 182, 383 P.2d 432, 436-437, 32 Cal
Rptr. 24 (1963), rev’d on other grounds, 380 U.S. 609 (1965);
People v. Vaughn, —— Cal.3d ——, 455 P.2d 122, 130, 78 Cal
Rptr. 186 (1969). If he was previously convicted, the offense may
nonetheless be established by direct testimony dehors the earlier
record. People v. Purvis, 52 Cal.2d 871, 346 P.2d 22, 27-28 (1959)
People v. Durham, 70 Cal.2d 171, 449 P.2d 198, 212-214, 74 Cal
Rptr. 262 (1969).
The jury must be instructed that, before it may consider other
crimes in vation, they are required to be proved da
reasonable doubt. E.g., People v. Terry, 61 Cal.2d 137, Pad
381, 389 n. 8, 37 Cal. Rptr. 605 (1964); People v. Polk, 63 Cal 2d
443, 406 P. 2d 641, 645-646, 47 Cal. Rptr. 1 (1965); People v. Tall,
65 Cal. 2d 719, 423 P. 2d 246, 257, 56 Cal. Rptr. 318 (1967) (die-
tum). See Catirornia Junr Instructions, CrmunaL (CALJIC)
8.81 (Third rev. ed. 1970), p. 259. Corollaries of this rule are that
confessional evidence of other offenses may not be received until
the corpus delicti has been established aliunde, eg., People v.
Hamilton, 60 Cal.2d 105, 383 P.2d 412, 426-427, 32 Cal. Rptr. 4
(1963) ; People v. Hines, 61 Cal.2d 164, 390 P.2d 398, 405, 37 Cal.
Rptr. 622 (1964); People v. Clark, 62 Cal.2d 870, 402 P.2d 856,
861-862, 44 Cal. Rptr. 784 (1965) ; and that the offenses 1 not
be proved by the uncorroborated testimony of accomplices, People
v. Varnum, 66 Cal.2d 808, 427 P.2d 772, 777, 59 Cal. Reptr. 108
(1967) ; People v. McClellan, —— Cal.3d ——,, 457 P.2d 871, 877-
880, 80 Cal. Rptr. 31 (1969).
E. g., People v. Love, 53 Cal.2d 843, 350 P.2d 705, 711, 3 Cal.
Rptr. 665 (1960) (dictum) (defendant’s statement that he wanted
to die, as indicating consciousness of guilt); People v. Tahl, 65
Cal.2d 719, 423 P.2d 246, 255-256, 56 Cal. Rptr. 318 (1967) (de
fendant’s statement that he planned to commit another killing, as
showing no remorse) ; People v. Modesto, 59 Cal.2d 722, 382 P.2d
33, 40-41, 31 Cal. Rptr. 225 (1963) (good character of victims).
broad“ and—because of the limitless discretion conferneg
upon the jury“—extraordinarily nebulous.”
406 P.2d 43, 54; 46 Cal. Rptr. 763 (1965); and see Catromm
Jury Instructions, Canina, (CALJIC) 8.82 (Third rev, of
1970), pp. 260-261.
Fourth, it is unclear to what extent evidence of the defendant's
likely recidivism—considered without regard to the likelihood of
his release on parole from a sentence of life imprisonment—ig ad.
missible. The prosecution may apparently present psychiatric eri.
dence that the defendant is not capable of bei ili
People v. Bickley, 57 Cal.2d 788, 372 P.2d 100, 102-103, 22 Cal
Rptr. 340 (1962). It may not present recidivism records of other
non-homicidal criminals, People v. Purvis, 52 Cal.2d 871, 346 P.
2d 22, 30-31 (1959), perhaps only because these are non-probe-
tive of the likely recidivism of a homicide defendant. See note
66 infra. Perhaps, since the likelihood of recidivism in fact de
pends upon the likelihood of release on parole, this whole ares
is now off limits under the principles of the preceding paragraph.
Fifth, proof of unintended eur suffering by the victim ms
not be made, People v. Love, Cal.2d 843, 350 P.2d 705, TL.
713, 3 Cal. Rptr. 665 (1960), apparently because it would be m-
duly inflammatory. The Love opinion suggests an alternative
ground for the rule: that retribution alone is not a proper concern
of the sentencing jury. But some kinds of evidence ap
relevant only to retributive concerns are admissible (see the
Modesto case in note 64 supra); and it appears that prosecutorial
argument of retributive concerns, among others, will not be con-
demned. See People v. Floyd, 1 Cal.3d 694, 464 P.2d 64, 81-62,
83 Cal. Rptr. 608 (1970).
Matters presented at the penalty trial must be proved in a
fashion that conforms to the ordinary rules of evidentiary com-
petency: rules of hearsay, of connecting-up, ete. E.g., People v.
Terry, 57 Cal.2d 538, 370 P.2d 985, 1001-1002, 21 Cal. Rptr. 185
(1962) ; People v. Hamilton, 60 Cal.2d 105, 383 P.2d 412, 426429
32 Cal. Rptr. 4 (1963); People v. Hill, 66 Cal.2d 536, 426 Pd
908, 929, 58 Cal. Rptr. 340 (1967); People v. Nye, —— Cal 3d
——., 455 P.2d 395, 404, 78 Cal. Rptr. 467 (1969).
nE. g., People v. Jones, 52 Cal.2d 636, 343 P.2d 577, 584 (1959);
People v. Terry, 61 Cal. 2d 137, 390 P. 2d 381, 385-386, 37 Cal
Rptr. 605 (1964).
8 See notes 83-88 infra.
o See People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 384, 37 Cal.
Rptr. 605 (1964) :
(footnote continued on next page)
39
At the conclusion of arguments, by counsel,” the jury is
iastrocted, generally: (1) that they are to consider all of
eens
“The case raises another aspect of the almost insoluble dif-
geulty of defining the purpose, function and content of the
— trial in capital cases. We have previously pointed
out that the Legislature fixed no standards for the guidance
of the jury in d ining whether a defendant should suf-
fer the penalty of life imprisonment or death, and to that
extent left the function of the jury in a somewhat nebulous
state. (People v. Morse, 60 A.C. 618, 36 Cal. Rptr. 201, 388
P.2d 33.) We now face the further fact that the Legislature
did not clearly define the scope of the penalty trial; we must
determine what kind of evidence is admissible at such a trial
and fix the limits, if any, of this legislatively unc
enquiry.”
See also People v. Hines, 61 Cal.2d 164, 390 P.2d 398, 402, 37
Cal. Rptr. 622 (1964) :
“The isolation of the determination of the death penalty
in the penalty trial, which proceeds without standards for the
jury, plus the ion of the subject-matter of the trial,
which has reach very wide margins, gives to the jury an
undefined task performed upon a showing of a mass of ma-
terial. As a result the jury ma conceivably rest the death
penalty upon any piece of introduced data or any one factor
in this welter of matter. The precise point which prompts the
in the mind of any one juror is not known to us
and may not even be known to him. Yet this dark ignorance
must be compounded twelve times and deepened even further
by the recognition that any particular factor may influence
any two jurors in precisely the opposite manner.”
Since People v. Bandhauer, 66 Cal.2d 524, 426 P.2d 900, 904-
905, 58 Cal. Rptr. 332 (1967), the practice has been that the
r opens the penalty arguments and the defendant closes
Legisla
the jury’s choice of life or death. Id., 426 P.2d, at 905.
California decisions concerning the scope of argument by coun-
sel do not illuminate or delimit the factors which may determine
that life-or-death choice. Briefly:
First, argument, like evidence, may not attack the basic ques-
tin of propriety of the legislative decision to allow the death
penalty. See note 65, para. First, supra. Defense counsel may
not, for example, argue that it is immoral in any case to con-
—
4＋ 22
40
a man to die. People v. Shipp, 59 Cal.2d 845, 382 P.2d 6,
582, 31 Cal. Rptr. 457 (1963).
Second, as indicated in note 65, paras. Second and Third, supra,
argument may not be addressed to considerations of deterrence
or the likelihood of parole in the event of a life sentence. Nor may
T wine’ bee
pencer,
(1963) ; People v. Talbot, 64 Cal. 2d 691, 414 P. 2d 633, 646-647,
51 Cal. Rptr. 417 (1966).
Third, no mention may be made of the trial court’s power tp
set aside a death verdict (see note 89 infra), of the Governor's
power of pardon or commutation, or of the possibility of
8 v. Linden, 52 Cal.2d 1, 338 P.2d 397, 410 (1959) ;
orse, 60 Cal.2d 631, 388 P.2d 33, 44-47, 36 Cal. Rptr.
(2964) ; ef. People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 385, $7
Rptr. 605 (1964) (forbidding instructions of the same sort).
Fourth, argument that is based upon factual matters must be
kept to the facts of record. People v. Love, 56 Cal.2d 720, 366 P.
2d 33, 37-40, 809, 16 Cal. Rptr. 777, 17 Cal. Rptr. 481 (1961).
ent from facts not in evidence is improper. People v.
Terry, 57 Cal. 2d 538, 370 P. 2d 985, 1002-1003, 21 Cal. Rptr. 185
(1962) 1 case dealing with parole possibilities) ; People
v. Bandhauer, 66 Cal.2d 524, 426 P.2d 900, 903-904, 58 Cal. Rptr.
332 (1967).
Fifth, other purely 1 argument is forbidden, bee
note 65, para. Fifth, supra. But the prosecutor may indulge in
damning characterizations supported by the evidence, e.g., People
v. Gonzales, 56 Cal.2d 317, 36% P.2d 871, 873, 14 Cel. ptr. 639
(1961) (“sex perversion cases); People v. Ketchel, 59 Cal.2d 503,
381 P.2d 394, 414-415, 30 Cal. Rptr. 538 (1963) (“cop killer”);
People v. Lopez, 60 Cal.2d 223, 384 P.2d 16, 32-33, 32 Cal.
424 grail ip erga killers” who would dance on their vie
tim’s gra eople v. Mitchell, 63 Cal.2d 805, 409 P.2d 211,
213.214. 48 1 270 Rptr. 371 (1966) (“professional robber“); Peo-
ple v. Thomas, 65 Cal.2d 698, 423 P.2d 233, 239, 56 Cal. Rptr. 305
(1967) (“a regular smart aleck”) ; ; and he may, for example, in-
vite the jury to use the death penalty as a form of justi
homicide. People v. Tahl, 65 Cal.2d 719, 423 P.2d 246, 262, 56
Cal. Rptr. 318 (1967).
Concerning the general scope of allowable argument and some
— 11 see People v. Griffin, 60 Cal. 2d 182, 383 P. 2d 432, 487.
438, 32 Cal. Rptr. 24 (1963), rev’d on other grounds, 380
41
the evidence; (2) but that they need not find mitigating
direumstances in order to spare the defendant, nor aggra-
vating circumstances in order to condemn him,” since the
Legislature has expressed no preference between the
ties of life and death,” leaving that matter in the
absolute discretion of the jury“ without standards or
riteria of any kind.” The form instruction now in common
609 (1965) ; People v. Talbot, 64 Cal.2d 691, 414 P.2d 633, 646-
647, 51 Cal. Rptr. 417 (1966) ; People v. Hill, 66 Cal. 536, 426
P2d 908, 924-927, 58 Cal. Rptr. 340 (1967).
u People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 432, 16 Cal.
Bptr. 370 (1961) ; People v. Hillery, 65 Cal. 2d 795, 423 P. 2d 208,
215, 56 Cal. Rptr. 280 (1967).
u People v. Green, 47 Cal.2d 209, 302 P.2d 307, 313-814, 317
People v.
90 Cal. Rptr. 841 (1963); People v. Washington, —— Cal. 2d ——,
458 P 2d 479, 500, 80 Cal. Rptr. 567 (1969); and see In re An-
derson, 69 Cal. 2d 613, 447 P. 2d 117, 124, 73 Cal. Rptr. 21 (1968).
n gee People v. Green, note 72 supra, 302 P. 2d, at 314, 322;
People v. Friend, note 72 supra, 306 P. 2d, at 469; People v. Wash-
ington, note 72 supra 458 P.2d, at 500; People v. Purvis, 56 Cal.
2d 93, 362 P.2d 713, 715, 13 Cal. Rptr. 801 (1961) ; People v.
— 60 Cal. 2d 105, 383 P. 2d 412, 429, 32 Cal. Rptr. 4
(1963).
“Eg. People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 65, 16 Cal.
Bptr. 801 (1961) (“The court correctly instructed the jury that
the fixing of the penalty at death or life imprisonment was in their
‘sheolute discretion’. . . .); People v. Howk, 56 Cal. 2d 687, 365
Pad 426, 432, 16 Cal. Rptr. 370 (1961) (approving instruction
that in determining which punishment shall be inflicted, you
tre entirely free to act according to own judgment and
\abeolute discretion’... . ). See notes infra.
People v. Linden, 52 Cal.2d 1, 338 P.2d 397, 409 n. 5 (1959)
(approving instructions that “ ‘Beyond prescribing the two alter-
native penalties, the law itself provides no standard for the guid-
ance of the jury in the selection of the . but rather com-
mits the whole matter of determining which o
shall be fixed to the judgment, conscience and discretion of the
42
use for this purpose, colloquially known as CALJIC 8.80,
runs as follows:“
“The defendant[s] in this case [has] [have] bee
found guilty of the offense of murder in the first
degree. It is now your duty to determine which of the
penalties provided by law should be imposed [on each
defendant] for that offense. In arriving at this deter.
mination you should consider all of the evideng
received here in court presented by the People and
defendant[s] throughout the trial before this jury.
You may also consider all of the evidence of the
circumstances on the one hand or evidence in aggrays.
dant’s [each defendant’s] background and history, and
of the facts in aggravation or mitigation of the penalty
which has been received here in court. However, it is
not essential to your decision that you find mitigating
circumstances on the one hand or evidence in aggreva.
tion of the offense on the other.
“It is the law of this state that every person guilty
of murder in the first degree shall suffer death or
confinement in the state prison for life, at the discretion
of the jury. If you should fix the penalty as confine.
ment for life, you will so indicate in your verdict, If
you should fix the penalty as death, you will so indicate
in your verdict. Notwithstanding facts, if any, proved
in mitigation or aggravation, in determining which
jury’....”); People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 432,
16 Cal. Rptr. 370 (1961) (approving instruction that “ ‘the law
does not prescribe, nor authorize the Court to innovate, any rule
circumscribing the exercise of your discretion, but, rather, com-
mits the whole matter of its exercise to the judgment and con-
sciences of the 7 ”). And see People v. Friend, 47 Cal. 2d 749,
306 P. 2d 463, 473 (1957); People v. Hines, 61 Cal. 2d 164, 390
* — 398, 401, 37 Cal. Rptr. 622 (1964). See also notes 85-88
infra.
CaLirorNiA Junr Instructions, CemnaL [CALJIC] 8.80
(Third rev. ed. 1970), pp. 257-258.
43
punishment shall be inflicted, you are entirely free to
act according to your own judgment, conscience and
absolute discretion. That verdict must express the
individual opinion of each juror.
“Beyond prescribing the two alternative penalties,
the law itself provides 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 penalties shall be fixed to the judgment, conscience
and absolute discretion of the jury. In the determina-
tion of that matter, if the jury does agree, it must be
unanimous as to which of the two penalties is imposed.”
CALJIC 8.80 has been expressly approved by the Cali-
fornia Supreme Court,” as have other“ and more elabo-
rate” fashions of expressing the jury’s entirely unguided
n People v. Nye, —— Cal.3d ——, 455 P.2d 395, 402 n. 5, 78
Cal. Rptr. 467 (1969). See also People v. Durham, 70 Cal.2d 171,
449 Pd 198, 215-216, 74 Cal. Rptr. 262 (1969), approving
CALJIC 8.80 (then designated CALJIC 306.1 (New) ), when given
in conjunction with present CALJIC 1.30 (then designated
C 11 (New)), which, as a part of the court’s basic, general
criminal „informs the jury that its power to determine the
facts and weigh the evidence “is not an arbitrary power, but must
be exercised with sincere judgment, sound discretion, and in ac-
cordance with the rules of law stated to you.” Of course, at the
penalty phase of the trial, no “rules of law” are stated, and
CALJIC 8.80 denies that they exist.
u People v. Linden, 52 Cal. 2d 1, 338 P. 2d 397, 409 n. 5 (1959);
People v. Lane, 56 Cal. 2d 773, 366 P. 2d 57, 65, 16 Cal. Rptr. 801
(1961) ; People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 432, 16 Cal.
Rptr. 370 (1961) ; People v. Hillery, 65 Cal.2d 795, 423 P2a 208,
215, 56 Cal. Rptr. 280 (1967) ; People v. Washington, —— Cal. 2d
—, 458 P.2d 479, 500, 80 Cal. Rptr. 567 (1969). (It is unclear,
in each of these cases, whether the entire substance of the trial
court’s charge is set forth in appellate opinion.)
People v. Friend, 47 Cal. 2d 749, 306 P.2d 463, 474-475 (1957) ;
People v. Lane, 56 Cal.2d 773, 366 P.2d 57, 65, 16 Cal. Rptr. 801
(1961) ; People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 670-671,
30 Cal. Rptr. 841 (1963).
44
Wg
N
and unlimited discretion.” That court has said that Cu
fornia trial judges are permitted to “aid the jury by stating
the kinds of factors that may be considered [in the penalty
determination], thereby setting the tone for the jury's
deliberation.“ * But they are not required to give any
instruction of this sort;** and, where stated at all, the
e See, e.g., People v. Brawley, 1 Cal.3d 277, 461 P.2d 361, 374
375, 82 Cal. Rptr. 161 (1969), finding no error in the trial court,
refusal to tell the jury that its sentencing decision must be
where the judge charged that the jury’s discretion was a
and that it should give dispassionate consideration and a just ver.
dict in the case.
People v. Polk, 63 Cal.2d 443, 406 P.2d 641, 646, 47 Cal,
1 (1965). Where such factors are stated, it is usually in the
guage of the opinion in People v. Friend, note 79 supra, 306 P24
at 474-475;
4. . . that in deciding the question whether the accused
be put to death or sentenced to imprisonment for life it is
within their discretion alone to determine, each for himeelf,
how far he will accord weight to the considerations of the
several objectives of punishment, of the deterrence of crime,
of the protection of society, of the desirability of stern retribp.
tion, or of sympathy or clemency, of age, sex, human passion,
ignorance or weakness, or (if appropriate under the evidence,
2 2 = 1 — ages = 7 to re
uce the degree or e of the crime), o 2
concerning, or possible uncertainties attaching to, life im
prisonment, or of the irrevocableness of an sentence
of death, or an apprehension that explanatory facts may exist
which have not been brought to light, or any other considera-
tion whatever which in the light of the evidence, the duty
they owe to the accused and to the state, and the law as ex-
plained to them by the judge, appears to them to be impor-
tant.”
See the Lane and Harrison cases, note 79 supra.
People v. Polk, 63 Cal.2d 443, 406 P.2d 641, 647, 47 Cal. Rptr.
1 (1965) :
“Finally, defendants contend that the trial court must in-
struct on the legal considerations that the jury should take
into account when deciding whether the penalty should be
death or life imprisonment. We do not agree that such an
„
45
“tgetors” in question are to be stated in a form that tells
the jurors “jt is within their discretion alone to determine,
each for himself, how far he will accord weight” to each
instruction is compulsory. The Legislature has entrusted to
the absolute discretion of the ony Se awesome decision be-
tween life imprisonment and the th penalty in first degree
. Code, § reen, 47 Cal.2d
us indicated
therefore not essential.
perly aid the jury by —
considered, thereby setting the tone for the jury’s delibera-
tion.”
See also People v. Hillery, 65 Cal.2d 795, 423 P.2d 208, 215, 56
Cal. Rptr. 280 (1967); People v. Nye, Aw. Cal.3d ——, 455 P.2d
995, 401-403, 78 Cal. Rptr. 467 (1969). The ordinary requirement
that, where requested, cha the defendant's
theories relative to every issue in th i
penalty roceedings, where the only
is
Pp
the evidence, the jury
cople v. Clark, 62
is error to instruct the jurors that they may not
for the defendant, People v. Polk, 63 Cal.2d
, 47 Cal. Rptr. 1 (1965) ; People v. Vaughn,
, 45 Cal. Rptr. 186 (1969) ;
. Stanwort 3d 7 P.2da 889, 904, 80 Cal.
1969) ; 1 Cal.3d 609, 463 P.2d
error to decline to
, 371-872, 51 Cal.
7 208,
70 Cal. 2d 171, 449
46
of a series of vague considerations.” What is essential,
under California law, is that:
“the jury must not be misled into thinking. . . that
their discretion in the selection of penalty, as between
either of the two alternatives, is in any way circum.
scribed or limited by law. Their discretion within that
area is absolute and they should be so informed.” *
This conception that the sentencing jury’s power to decide
between life and death is “absolute” * and must be exercised
“without benefit of guideposts, standards or applicable
criteria” * is fundamental to the State’s capital punishment
legislation.“ It is plainly, as the California Supreme Court
has called it, a “legal vacuum.” “
83 See note 81 supra.
% People v. Friend, 47 Cal.2d 749, 306 P.2d 463, 473 (1957).
e E. g., People v. Harrison, 59 Cal.2d 622, 381 P.2d 665, 672,
30 Cain ‘Rptr. 841 (1963); People v. Mitchell, 63 Cal.2d 805, 409
P.2d 211, 222, 48 Cal. Rptr. 371 (1966) ; People v. Brawley, 1
Cal.3d 277, 461 P.2d 361, 374, 82 Cal. Rptr. 161 (1969). See also
People v. Jones, 52 Cal.2d 636, 343 P.2d 577, 587 (1959) (“The
fact that there are [“a great many heinous ‘murders where life
imprisonment was imposed instead of the extreme penalty”) .
only emphasizes how complete the discretion of the jury or trial
court is in imposing the appropriate penalty.“).
8° E. g., People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 392, 37
Cal. Rptr. 605 (1964) ; People v. Hillery, 65 Cal.2d 795, 423 P.2d
208, 215, 56 Cal. Rptr. 280 (1967); People v. Nye, —— Cal8d
—, 455 P. 2d 395, 402, 78 Cal. Rptr. 467 (1969); People v.
Washington, — Cal.2d ——, 458 P.2d 479, 500, 80 Cal. Rptr.
567 (1969). See also People v. Morse, 60 Cal. 2d 631, 388 P. 2d 33,
40, 36 Cal. Rptr. 201 (“... the jury has no ‘guidelines, no
standards, no criteria ...”).
er “Ever since People v. Leary (1895), .. . 105 Cal. 486, 496, 39
P. 24, it has been recognized law of this state that by section
190 of the Penal Code, as amended, the Legislature has ‘confided
the power to affix the punishment within these two alternatives
[death or life imprisonment] to the absolute discretion of the
47
After a California jury has returned a death verdict, the
trial judge is legally empowered to set it aside and enter a
sentence of life imprisonment instead—not as a matter of
— —
‘ory’... .” People v. Friend, 47 Cal. 2d 749, 306 P. 2d 463, 472
(1957). See People v. Brice, 49 Cal.2d 434, 317 P.2d 961, 962
1957) (“selection of punishment is in every instance *
within the absolute discretion of the jury“); People v. Green, 4
Cal.2d 209, 302 P.2d 307, 313 (1956) (the “discretion of the jury
[is not. conditional on, or . . guided INI cir-
); People v. Cartier, 54 Cal.2d 300, P.2d 53, 61,
5 Cal. Rptr. 573 (1960) (“discretion [is] . . . absolute”; there is
“no restriction that the law places upon the trier”); People v.
Polk, 68 Cal.2d 448, 406 P.2d 641, 646, 47 Cal. Rptr. 1 (1965)
(“The Legislature has entrusted to the absolute discretion of the
jury the awesome decision between life imprisonment and the
death ae See also, e.g., People v. Jones, 52 Cal.2d 636,
943 P.2d 577, 585 (1959); People v. Mason, 54 Cal.2d 164, 351
P2d 1025, 1028, 4 Cal. Rptr. 841 (1960); People v. Purvis, 56
Cal.2d 93, 362 P.2d 713, 715, 13 Cal. Rptr. 801 (1961); People
y. Howk, 56 Cal.2d 687, 365 P.2d 426, 482-433, 16 Cal. Rptr. 370
(1961); People v. Love, 56 Cal.2d 720, 366 P.2d 33, 38, 809, 16
Cal. Rptr. 777, 17 Cal. Rptr. 481 (1961) ; People v. Terry, 57 Cal.
2d 588, 370 P.2d 985, 1004, 21 Cal. Rptr. 185 (1962); People v.
Polk, 68 Cal.2d 443, 451, 406 P.2d 641, 646, 47 Cal. Rptr. 1
2 People v. Anderson, 64 Cal. 2d 633, 414 P. 2d 366, 372, 51
Rptr. 238 (1966); People v. Bandhawer, 66 Cal. 2d 524, 426
P. 2d 900, 905, 58 Cal. Rptr. 332 (1967); People v. White, 69 Cal.
ad 751, 446 P.2d 993, 999, 72 Cal. Rptr. 873 (1968); In re
Anderson, 69 Cal.2d 613, 447 P.2d 117, 123-124, 73 Cal. Rptr. 21
(1968) ; and see People v. Hamilton, 60 Cal.2d 105, 383 P.2d 412,
430-431, 82 Cal. Rptr. 4 (1963) :
“There are no basic guide lines to assist the j in com-
ing to [the penalty] . . . determination. On the t of the
guilt issue the jury is bound by rules of law laid down by
the court in its instructions. But on the penalty phase of the
trial there are no such guide lines. The jury does not have
to find ameliorating circumstances to impose life imprison-
ment, nor need it find aggravation to impose the death pen-
alty. The choice between the two rests in the absolute dis-
cretion of the jury.”
u People v. Terry, 61 Cal.2d 137, 390 P.2d 381, 392, 37 Cal.
Rptr. 605 (1964); People v. Hines, 61 Cal.2d 164, 390 P.2d 398,
402, 37 Cal. Rptr. 622 (1964).
48
“review” in any sense, but in the exercise of a power as
absolute and limitless as the jury’s own.” The California
Supreme Court (to which all appeals in death cases go
directly) categorically will not review or reduce a death
sentence, whether fixed by a jury“ or by a trial judge in a
jury-waived case.“
We have been unable to obtain comprehensive informa.
tion concerning the percentage of persons convicted of non.
mandatory capital crimes who are selected to suffer the
penalty of death under these California procedures. We
do know that, in all cases tried between 1958 and 1966
8° People v. Moore, 53 Cal.2d 451, 348 P.2d 584, 586, 2 Cal.
Rptr. 6 (1960). See, eg., People v. Hill, 66 Cal.2d 536, 426 P.2d
908, 58 Cal. Rptr. 340 (1957) ; People v. Love, 56 Cal.2d 720, 366
P.2d 33, 36-37, 809, 16 Cal. Rptr. 777, 17 Cal. Rptr. 481 (1961);
People v. Ketchel, 59 Cal.2d 503, 381 P.2d 394, 417-418, 30 Cal.
Rptr. 538 (1963); In re Anderson, 69 Cal.2d 613, 447 P.2d 117,
124, 73 Cal. Rptr. 21 (1968).
0 E. g., People v. Green, 47 Cal.2d 209, 302 P.2d 307, 324-325
(1956); People v. Feldkamp, 51 Cal.2d 237, 331 P.2d 632, 634
(1958) ; People v. Linden, 52 Cal.2d 1, 338 P.2d 397, 410 (1959);
People v. Rittger, 54 Cal.2d 720, 355 P.2d 645, 653, 7 Cal. Rptr.
901 (1960); People v. Howk, 56 Cal.2d 687, 365 P.2d 426, 433.
434, 16 Cal. Rptr. 370 (1961) ; People v. Love, 56 Cal.2d 720, 366
P.2d 33, 36, 809, 16 Cal. Rptr. 777, 17 Cal. Rptr. 481 (1961);
People v. Mitchell, 63 Cal.2d 805, 409 P.2d 211, 222, 48 Cal. Rptr.
$71 (1966); People v. Reeves, 64 Cal.2d 766, 415 P.2d 35, 42, 51
Cal. Rptr. 691 (1966) ; People v. Lookado, 66 Cal.2d 307, 425 P.
2d 208, 221, 57 Cal. Rptr. 608 (1967) ; In re Anderson, 69 Cal.2d
618, 447 P.2d 117, 124, 73 Cal. Rptr. 21 (1968).
1 E. g., People v. Monk, 56 Cal.2d 288, 363 P.2d 865, 871, 14
Cal. Rptr. 633 (1961); People v. Lindsey, 56 Cal.2d 324, 363 P.2d
910, 912, 14 Cal. Rptr. 678 (1961); People v. Welch, 58 Cal.2d
271, 373 P.2d 427, 430, 23 Cal. Rptr. 363 (1962). Of course, if
the evidence is insufficient to sustain conviction of a capital of-
fense, the Supreme Court has power to vacate the conviction,
and the death sentence falls with it. E.g., People v. Nicholaus,
65 Cal.2d 866, 423 P.2d 787, 56 Cal. Rptr. 635 (1967). That im-
plies no review of the sentence.
49
wherein sentencing was done by the same jury that returned
a verdict of guilty of first-degree murder, about forty-three
t resulted in a death sentence.” Fifty-seven percent
resulted in life imprisonment.
3, Other Jurisdictions
Other American jurisdictions which retain the death
penalty“ prescribe it for @ varying register of offenses”
but rarely use it except for murder, rape or kidnapping.
These active capital crimes are invariably non-mandatory.”
In order to keep the discussion that follows within manage-
able bounds, we confine it to the practices used by the
u Note, A Study of the California Penalty Jury in First-Degree-
Murder Cases, 21 Stan. L. Rev. 1297, 1310 n. 27 (1969). There
were 103 death sentences in 238 cases.
An earlier study provides the information that, out of a total
of 25 cases between 1942 and 1957 in which the California Supreme
Court reversed convictions of death-sentenced men, 10 men were
reconvieted of the capital offense but only 3 were resentenced to
die. Note, Post-Conviction Remedies in California Death Penalty
Cases, 11 Stan. L. Rev. 94, 104 n. 21 (1958).
“The most recent description of the legal status of the death
— in the United States is Reckless, The Use of the Death
wnalty, 15 Crime & DMI 43 (1969), which cites earlier
studies. Since the publication of the Reckless article, New Mexico
has abolished the death penalty except for killings of police officers
and prison guards and “when the defendant commits a second
capital felony after time for due deliberation following commission
of a capital felony.” N. M Laws 1969, ch. 128, §1, N.M. Stat.
Ann, §40A-29-2.1 (1970 Cum. Supp.).
“We collected the capital sentencing provisions of the several
States in Appendix B to our brief amici curiae in Boykin v. Ala-
bana, 395 U.S. 238 (1969) (O. T. 1968, No. 642). The most signifi-
cant change since that compilation is the New Mexico development
mentioned in note 93 supra
% See our Maxwell brief, Appendix A infra, p. 26, n. 24.
— tee meee ——
50
States“ in capital sentencing for the crime of murder”
Murder accounts for most of the capital sentences handed
down in the United States today ;** and the practices used
by most States in sentencing for that crime are the same
as those which they use for the other non-mandatory
capital crimes.”
In almost all States, capital sentencing is done principally
by juries. Where the defendant pleads not guilty, some
States permit the waiver of jury trial, entailing a trial of
guilt and determination of sentence by a judge or by a
multi-judge panel; while other States forbid waiver of
jury trial. A number of States also forbid a plea of guilty
to a capital offense. Most States permit it. Where it is
permitted, it usually constitutes a waiver of jury on the
The United States and the District of Columbia, of course,
also authorize capital punishment, in non-mandatory form, for
murder. 18 U.S.C. §1111 (1964); D.C. Code §22-2404 (1967).
The sentencing discretion conferred by those statutes is described
in Winston v. United States, 172 U.S. 303 (1899), and Andres v.
United States, 333 U.S. 740, 742-744 (1948). It can “be based upon
any consideration which [appeals] . . . to the jury.” Id., at 743.
We exclude discussion of the statutes found in a few juris-
dictions which authorize the death penalty for only a very limited
class of murders. N.M. Stat. Ann., §40A-29-2.1 (1970 Cum. Supp.);
N.Y. Pen. Law §125.30; Vt. Stat. Ann., tit. 13, §2303 (1969 Cum.
pocket part). There are no reported decisions explicating these
relatively recent statutes.
os Of the 479 men on death row as of December 31, 1968, 405
were under sentence of death for murder. Unrrep States Depart
MENT OF JUSTICE, BuREAU OF Prisons, NATIONAL PRISONER Sti-
tistics, Bulletin No. 45, Capital Punishment 1930-1968 (August,
1969), p. 22.
* A number of the statutes that we shall cite in the following
notes apply to all non-mandatory capital crimes in the respective
jurisdictions. We shall refer to cases interpreting those statutes
whether or not they are murder cases. But, by eliminating cita-
tion of statutes and cases which apply exclusively to offenses other
than murder, we can avoid a great deal of uninformative citation.
51
—
question of penalty; but many States impanel a jury
(whose waiver some do and others do not permit) even on
a guilty plea.’
8
1 Alabama: All capital sentencing is done juries. See
Bankhead v. State, 124 Ala. 14, 26 So. 979, 980-981 (1899);
Burgess v. State, 256 Ala. 5, 53 So.2d 568, 573-574 (1951).
Arizona: A guilty plea entails sentencing by a judge. Ariz.
Rev. Stat. §13-453 (1956). It is unclear whether a jury can be
waived on a not guilty plea.
Arkansas: All capital sentencing is done by juries. See our
Mazwell brief, Appendix A infra, p. 28.
Colorado: A guilty plea entails sentencing by a judge. Colo.
Rev. Stat. Ann. §40-2-3(2) (a), (b), (e) (1965 Perm. cum. supp.).
Apparently a jury cannot be waived on a not guilty plea. Cf.
Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964), whose logic
this result.
Connecticut: Judges sentence following either a jury-waived
it trial or a guilty plea. A three judge panel is convened in
the latter case but apparently not in the former. Conn. Gen. Stat.
Ann., §§53-9, 53-10 (1970-1971 Cum. pocket part).
Florida: Judges sentence following a guilty plea. Lee v. State,
166 So.2d 131 (Fla. 1964). Juries sentence following a joy trial
on a not guilty plea. Fla. Stat. Ann. §919.23(2) (1944). Florida
statutes forbid jury waiver on a not guilty plea, Fla. Stat. Ann.
§912.01 (1944), but the new Florida Criminal Rules (which may
or may not validly supersede the statute in this regard) permit it.
Fla. Stat. Ann., Rules Crim. Pro. 1.260 (1967).
Georgia: Judges sentence following either a jury-waived guilt
trial or a guilty plea. Ga. Code Ann. §26-3102 (Criminal Code of
Georgia, 1968-1969).
Idaho: Apparently all capital sentencing is done by juries.
Ida. Code Ann. §18-4004 (1948).
Illinois: Judges sentence following either a jury-waived guilt
trial or a guilty plea. III. Stat. Ann., tit. 38, 51-7 (e) (2) (1970
Cum. pocket part). See note 101 infra.
Indiana: Judges sentence following either a jury-waived guilt
5 or a guilty plea. Burns Ind. Stat. Ann. §9-1819 (1956 Repl.
vol).
Kansas: Judges sentence following either a jury-waived guilt
trial 5 a guilty plea. Kan. Stat. Ann. 521-4501 (a) (1969 Cum.
supp.).
Kentucky: Apparently all capital sentencing is done by juries.
Ky. Rev. Stat. Ann. §435.010 (1969). See Rice v. Commonwealth,
52
In five States, trial judges have responsibility for capita]
sentencing. But invariably, unless a jury is waived, the
question of penalty in these States is first submitted to g
jury. The jury’s decision in favor of life binds the trial
a 1 43, 128 S. W. 2d 219 (1939) (jury sentencing on guilty
plea).
Louisiana: ~All capital sentencing is done by juries. La. Stat,
Ann., Code Crim. Pro., arts. 557, 780, 817 (1967).
Massachusetts: Apparently all capital sentencing is done by
juries. Mass. Ann. Laws, ch. 265, §2 (1968).
Mississippi: All capital sentencing is done by juries. Miss. Code
Ann,, tit. 11, §2217 (Recomp. vol. 1956). See Yates v. State, 251
— 376, 169 So. 2d 792, 802 (1964) (jury sentencing on guilty
plea).
Missouri: Sentencing is generally done by juries. Vernon’s Mo,
Stat. Ann. §§546.410, 559.030 (1953). See State v. Creighton,
830 Mo. 1176, 52 S.W.2d 556, 563-564 (1932). Practice regarding
waivers and guilty pleas is unclear.
Montana: Apparently judges sentence following either a jury-
waived guilt trial or a guilty plea. Mont. Rev. Code §94-2505
(Repl. vol. 1969). See State v. Palen, 120 Mont. 434, 186 P.2d
223 (1947) (judge sentencing on guilty plea).
Nebraska: Apparently judges sentence only following a guilty
plea. Neb. Rev. Stat. 528-401 (Reissue vol. 1964). See State v.
Alvarez, 182 Neb. 358, 154 N.W.2d 746 (1967).
Nevada: Apparently all capital sentencing is now done by
juries. Nev. Rev. Stat. §200.030(3). Former provisions relating
to sentencing by a three-judge court upon a guilty plea were re-
pealed by Nev. Laws 1967, ch. 523 §438, p. 1470.
New Jersey: All capital sentencing is done by juries. A non vult
plea to a capital offense entails life imprisonment. N.J. Stat. Ann.
§§2A :113-3, 4 (1969). See State v. Forcella, 52 N.J. 263, 245
A.2d 181, 184-190 (1968) (presently pending on petition for certi-
orari, O. T. 1970, Mise. No. 5011, with regard to the constitution-
ality of this practice).
New Hampshire: On a guilty plea, a judge may sentence to life
imprisonment or 1 impanel a jury to decide punishment. Other-
wise, apparently, capital sentencing is done by juries. N.H.
Rev. Stat. 58585 :4, 585:5 (1955).
North Carolina: All capital sentencing is now done by juries.
N.C. Gen. Stat. §14-17 (Repl. vol. 1969). See State v. Roseboro,
N.C. , 171 S.E.2d 886, 893 (1970).
(footnote continued on next page)
CT
53
judge in three States; in two, its decision in favor of death
pinds him. So, in each of these States, the jury’s sentenc-
ing power is decisive: the defendant’s life depends upon
its exercise in at least one direction.”
Oklahoma: Judges sentence following a guilty plea. Okla. Stat.
Ann., tit. 21, §707 (1958).
Pennsylvania : Judges sentence following a guilty plea. A three-
j court may be convened. Purdon's Pa. Stat. Ann., tit. 18,
0 (1963) ; tit. 19, Appendix, Rule Crim. Pro. 1115 (1969 Cum.
pocket part).
South Carolina: All capital sentencing is now done by juries.
8 C. Code Ann. §16-52 (1962). See State v. Harper, 251 S. C. 379,
162 §.E.2d 712, 715 (1968).
Tennessee : Appt capital sentencing is done by juries.
Tenn. Code Ann. §§39-2405, 2406 (1955). See Gohlston v. State,
143 Tenn. 126, 223 S.W. 839 (1920).
Texas: Apparently all capital sentencing is now done by juries.
Vernon’s Tex. Stat. Ann., Pen. Code, arts. 1257, 1257 (a) (1961) ;
Code Crim. Pro., art. 37.07(2)(b) (1969-1970 Cum. pocket part).
Virginia: Judges sentence following a guilty plea. Va. Code
Ann. §§18.1-22, 19.1-250 (Repl. vol. 1960).
Washington: Apparently all capital sentencing is done by juries.
Wash. Rev. Code §9.48.030 (1961).
Wyoming: Apparently all capital sentencing is done by juries.
Wyo. Stat. Ann. §6-54 (1957). See State v. Brown, 60 Wyo. 379,
151 P.2d 950, 955 (1944) (jury sentencing on guilty plea).
11 Delaware: The judge may sentence to life only if the jury
recommends life. Del. Stat. Ann., tit. 11, §3901 (1968 Cum.
pocket part). Illinois: The judge may sentence to death only if
the jury recommends death. III. Stat. Ann, tit. 38, §§1-7(¢) (1)
(1970 pocket part), 9-1(b) (1964). Maryland: The judge
may sentence to death only if the jury does not return a verdict
“without capital punishment.” Md. Code Ann., art. 27, §413
(Repl. vol. 1967). South Dakota: The judge may sentence to
death only if the jury recommends death. S.D. Comp. Laws.
§§22-16-12, -13 (1967). However, a jury trial may be waived,
leaving sentencing discretion entirely to the judge. S. D. Comp.
Laws. §22-16-14 (1967). Utah: The judge 8 sentence to life
only if the jury recommends life. Utah Code Ann. §76-30-4
(1958). See State v. Markham, 100 Utah 226, 112 P.2d 496
(1941).
54
The various States express the alternative nature of the
penalties of life and death in various ways. Basically there
are three forms of statement. The “either-or” form, which
simply states the penalties in the disjunctive for the jury’s
choice, is most common.“ A considerable number of States
provide that the penalty for the crime is death, unless the
jury recommends mercy or returns a verdict qualified by
words such as “without capital punishment.”** A fey
States authorize the death penalty only if the jury’s verdict
affirmatively calls for it.“
102 Ala. Code Ann., tit. 14, §318 (Recomp. vol. 1958); Aria
Rev. Stat. 513-453 (1956); Colo. Rev. Stat. §40-2-3(1), (2) (e)
(1965 Perm. cum. supp.) ; Ida. Code Ann. 518-4004 (1948); Burns
Ind. Stat. Ann. 510-3401 (1956 Repl. vol.); Kan. Stat. Ann
§21-4501(a) (1969 Cum. supp.); Ky. Rev. Stat. Ann. §435.010
(1969); Vernon’s Mo. Stat. Ann. §559.030 (1953); Mont. Rer.
Code, §94-2505 (Repl. vol. 1969); Neb. Rev. Stat. §28-401 (Re
issue vol. 1964); Okla. Stat. Ann., tit. 21, 5707 (1958); Purdon’s
Pa. Stat. Ann., tit. 18, §4701 (1963) ; Tenn. Code Ann. §§39-2405,
-2406 (1955); Vernon’s Tex. Stat. Ann., Pen. Code, art. 1257
(1961); Va. Code Ann. §§18.1-22, 19.1-250 (Repl. vol. 1960).
108 Ark. Stat. Ann. §43-2153 (Repl. vol. 1964); Conn. Gen. Stat.
Ann. §53-10 (1970-1971 Cum. pocket part); Del. Stat. Ann,, tit.
11, §3901 (1968 Cum. pocket part), see note 101 supra; Fis.
Stat. Ann. §919.23(2) (1944); La. Stat. Ann., Code Crim. Pro,
art. 817 (1967); Md. Code Ann., art. 27, §413 (Repl. vol. 1967),
see note 100 supra; Mass. Ann. Laws, ch. 265, 52 (1968); Kramer
v. State, 60 Nev. 262, 108 P.2d 304, 308-310 (1940); Ez parte
Kramer, 61 Nev. 174, 122 P.2d 862, 865 (1942), construing Nev.
Rev. Stat. §200.030(3); N.J. Stat. Ann. §2A:113-4 (1969); N.C.
Gen. Stat. Ann. §14-17 (Repl. vol. 1969) ; S.C. Code Ann. §16-52
(1962) ; Utah Code Ann. §76-30-4, see note 101 supra; Wyo. Stat.
Ann. 56-54 (1957); ef. Miss. Code Ann,, tit. 11, §2217 —
vol. 1956).
10% Ga. Code Ann. 526-3102 (Criminal Code of Georgia, 1968.
1969); III. Stat. Ann., tit. 38, 551-7 (e) (1) (1970 Cum. pocket
part), 9-1 (b) (1964); N. H. Rev. Stat. Ann. 5585 :4 (1955); S. D.
Comp. Laws 6522-16-12, -13 (1967); Wash. Rev. Code 59.48.00
(1961).
55
Ubiquitously, these capital sentencing statutes, whatever
their form, are described by the state courts as conferring
both unlimited and unguided sentencing power upon the
jury. Phrases such as “absolute discretion” and “entirely
within the jury’s discretion” mark the opinions which
construe and apply the statutes.** It is invariably said
16 Boggs v. State, 268 Ala. 358, 106 S.2d 263, 266 (1958)
(“sole discretion”); see also Hinton v. State, 280 Ala. 848, 189
80. 2d 849, 853 (1966); Hernandez v. State, 43 Ariz. 424, 32
P.2d 18, 20 (1934) (“wholly within the jury’s discretion”) ; Alford
y, State, 223 Ark. 330, 266 S.W.2d 804, 805 (1954) (“option lies
entirely with the jury); State v. Donahue, 141 Conn. 656, 109
A2d 364, 368 (1954) (“absolute discretion”) ; Burnette v. State,
157 So.2d 65, 66 (Fla. 1963) (“entirely within the discretion of a
majority” of the jury); Baugus v. State, 141 So.2d 264, 266 (Fla.
1962) (“determined purely by the dictates of the consciences of
the individual jurors); Williams v. State, 119 Ga. 425, 46 S. E.
626 (1904) (“a matter solely in their discretion, which is not
limited or confined in any case”); see also Barfield v. State, 179
Ga. 293, 175 S.E. 582, 584 (1934); McBurnett v. State, 206 Ga.
59, 55 S.E.2d 598, 599 (1949); People v. Bernette, 30 I11.2d 359,
197 N.E.2d 436, 443 (1964) (“an optional form of punishment
which [the jury] . . . is free to select or reject as it [sees] fit“);
Mate v. Christensen, 166 Kan. 152, 199 P.2d 475, 479 (1948) (“the
jurys exclusive duty); Edwards v. Commonwealth, 298 Ky. 366,
182 §.W.2d 948, 951 (1944) (“exclusively within the province of
the jury); State v. Henry, 197 La. 199, 3 So.2d 104, 108 (1941)
(“absolute, unconditional right and power”); see also State v.
Jackson, 227 La. 642, 80 So.2d 105, 108 (1955); Spain v. State,
59 Miss. 19, 24 (1881) (“right . .. is without any condition)
Duisen v. State, Mo. „441 S.W.2d 688, 692 (1969) (“ab-
solute discretion”) ; State v. Palen, 120 Mont. 434, 186 P.2d 223,
2 (1947) (bench trial: “entirely within the court’s discretion”) ;
State v. Mount, 30 N.J. 195, 152 A.2d 343, 351 (1959) (“absolute
discretion of the jury upon its consideration of all the evidence“);
State v. Simmons, 234 N.C. 290, 66 S.E.2d 897, 898 (1951) (“an
unbridled discretionary right“); Commonwealth v. Wooding, 355
Pa. 555, 50 A.2d 328, 329-330 (1947) (“absolute discretion of the
jury”); see also Commonwealth v. Hough, 358 Pa. 247, 56 A.2d
$4, 85-86 (1948) ; Commonwealth v. Taranow, 359 Pa. 342, 59 A.2d
53, 55 (1948); State v. Jones, 201 S.C. 403, 23 S.E.2d 387, 392
(1942) (jury’s “discretion in the matter is an unlimited one”) ;
see also State v. Chasteen, 228 S.C. 88, 88 S.E.2d 880, 887 (1955) ;
56
that they provide no standards, rules or guidelines to jp.
form the jury.
Woodruff v. State, 164 Tenn. 530, 51 8.W.2d 848, 848 (1932)
(under a statute permitting a life verdict if, in the opinion of
the jury, there are mitigating circumstances, “[iJn d ini
whether, in their opinion, there are mitigating circumstances, the
jury are left entirely to their discretion. They are not told by
the Judge what would be mitigating circumstances. . . .”);
lady v. State, 150 Tex. Crim. App. 50, 198 S. W. 2d 570, 573.574
(1947) (“exclusively within the province of the jury“); see als
Franks v. State, 139 Tex. Crim. App. 42, 138 S. W. 2d 109, 115
(1940) ; State v. Markham, 100 Utah 226, 112 P.2d 496, 497 (1941)
(“entirely within its discretion”) ; see also State v. Vasquez, 10)
Utah 444, 121 P.2d 903, 907 (1942) ; State v. Brown, 60 Wyo. 379,
151 P.2d 950, 955 (1944) (“discretion of the jury to impose the
penalty of death or life imprisonment is untrammeled”’).
100 Sullivan v. State, 47 Ariz. 224, 55 P.2d 312, 318 (1936) (“The
statute does not prescribe what jurors shall or shall not consider”);
State v. Walters, 145 Conn. 60, 138 A.2d 786, 793 (1958) (the
penalty decision is “not determined on any standards subject to
judicial review”); Wilson v. State, 225 So.2d 321, 324 (Fla
1969) (“each juror is free to vote for mercy for any reason at
all“); Manor v. State, 223 Ga. 594, 157 S.E.2d 431, 437 (1967)
(“statutes ... fix no standards for recommending mercy”) ; Duisen
v. State, Mo. , 441 S. W. 2d 688, 692 (1969), note 104
supra (“without standards or rules“); Sundahl v. State, 154 Neb.
550, 48 N.W.2d 689, 692 (1951) (statute “does not prescribe or
authorize the court to prescribe any rule defining or circ i
the exercise of the right to determine whether the penalty shall
be death or imprisonment for life“); see also Grandsinger v. State,
161 Neb. 419, 73 N.W.2d 632, 637 para. 12, 648 (1955) ; State v.
Roseboro, —— N.C. ——, 171 S.E.2d 886, 892-893 (1970) (“The
very lack of any standard or rule leaves the jury without restric
tion, free to save the life of the accused as an unfettered act of
grace”); Commonwealth v. Wooding, 355 Pa. 555, 50 A.2d 328,
329-330 (1947), note 105 supra (“The statute . . . provides no fixed
arbitrary standards regulating the exercise of that discretion. ...
It does not indicate the kind or nature of the factors which should
be taken into consideration. Indeed, the question being one purely
of penology, there is room for a wide diversity of opinion even a
to the object to be accomplished through one sentence of the other,
—whether it be to punish the offender, to give opportunity for
his reformation, to protect the public against his commission
of further crimes, to act as a deterrent to others, or for some or
57
To be sure, some States, like Ohio, announce that the
jury is supposed to make its sentencing decision on the
basis of the evidence. Other States flatly reject that
——
all of these purposes combined... .”) ; State v. St. Clair, 3 Utah
94 230, 282 P.2d 323, 326 (1955) (“They are not restricted to any
j rule of law or limitation upon evidence”); State v.
White, 60 Wash.2d 551, 374 P.2d 942, 955 (1962) (“No standards
are required by our statute or the constitution”) ; and see Baugus
v. State, 141 So.2d 264, 266 (Fla. 1962), note 105 supra (the
penalty aspect of the case is “so nebulous as to be incapable of
definition“).
In only a half-dozen States is this plainly the rule, in the
sense that it could be embodied in a jury charge without risk of
error. Conn. Gen. Stat. Ann. §53-10 (1970-1971 Cum. pocket
part); see State v. Walters, 145 Conn. 60, 138 A.2d 786, 792-794
(1958); State v. Jarolowski, 38 Del. 108, 103 A. 657, 658 (Ct.
& Terminer 1918); State v. Lee, 36 Del. 11, 171 A. 195,
W (Ct Over & Terminer 1933); State v. Winsett, 205 A.2d 510,
522 (Del. — Ct. 1964); Mass. Ann. Laws, ch. 265, 52 (1968);
see Commonwealth v. McNeil, 328 Mass. 436, 104 N.E.2d 153,
156-157 (1952); Commonwealth v. Nassar, 354 Mass. 249, 237
NE2d 39, 44 (1968); Dinsmore v. State, 61 Neb. 418, 85 N. W.
445, 453 (1901) ; Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689,
104 (1951); NJ. Stat. Ann. §2A:113-4 (1969); see State v.
Mount, 30 N. J. 195, 152 A.2d 343, 349-350 (1959); State v.
Forcella, 52 N.J. 263, 245 A.2d 181, 194 (1968); Tenn. Code
Ann. §39-2406 (1955) (the statutory requirement that the jury
base a life verdict upon mitigating circumstances amounts,
in effect, to a directing that it make its decision “under the facts
and circumstances appearing,” Porter v. State, 177 Tenn. 515,
151 8.W.2d 171, 174 (1941), since the court is not permitted to
define “mitigating circumstances,” Woodruff v. State, 164 Tenn.
530, 51 S.W.2d 843, 847-848 (1932)); Pixley v. State, 406 P.2d
662, 669 (Wyo. 1965). Opinions in two more States set out charges
limiting the jury’s determination to the evidence, but the deci-
sions do not involve the question of their propriety in this regard.
State v. Owen, 73 Ida. 394, 253 P.2d 203, 207 (1953) ; Shimniok
v. State, 197 Miss. 179, 19 So. 760, 766 (1944) (charge that a
juror should not vote a death verdict unless he is convinced from
the evidence, beyond a reasonable doubt, that the death penalty
should be imposed). In several more States, there are opinions
containing dicta to the effect that the jury’s determination should
be made on the evidence, usually uttered in connection with hold-
58
conception.“ But even the States which accept it find that
it implies no standard or principle by which the jury
ings that a prosecutor’s argument based upon facts not in eu
dence was improper, or that the admission of certain evi
inadmissible on the issue of guilt was prejudicial. These cases
might support jury charges in the respective jurisdictions limi
the jury’s penalty consideration to the evidence, but probably that
would be to read too much into them. Sukle v. People, 107 Colo. 269,
111 P.2d 283, 235 (1941); People v. Black, 367 III. 209, 10 NE
2d 801, 804 (1937) ; State v. Tiedt, 360 Mo. 594, 229 S.W.24 582,
586 (1950); Jones v. Commonwealth, 194 Va. 273, 72 8. E. 2d 693,
some other States, it is highly likely that a jury charge i i
the jurors that they may or shall consider the evidence (al
their decision n not be based upon it) would be sustained
See Brown v. State, 109 Ala. 70, 20 So. 103, 107-108 (1896);
Jones v. People, 146 Colo. 40, 360 P.2d 686, 692 (1961); and se
* v. People, 105 Colo. 147, 95 P. 2d 811, 814 (1939); Wheat
v. State, 187 Ga. 480, 1 8. E. 2d 1, 3 (1939); People v. Sullivan,
345 III. 87, 177 N.E. 733, 736 (1931); People v. Ciucci, 8 III 2d
619, 137 N. E. 2d 40, 45 (1956); Commonwealth v. Brown, 300
Pa. 515, 164 A. 726, 730 (1933). Such a charge would be improper
in the several jurisdictions (except perhaps Washington) noted in
notes 108, 116 infra. See also the condemnation of the charge in
Wyett v. State, 220 Ga. 867, 142 S.E.2d 810 (1965).
Concerning the division of authority on the question whether
evidence going only to penalty is admissible, see note 149 infra.
% Sullivan v. State, 47 Ariz. 224, 55 P.2d 312, 318 (1936)
(semble) ; Pait v. State, 112 So.2d 380, 385 (Fla. 1959) ; Spain v,
State, 59 Miss. 19, 24-25 (1881) ; State v. Worthy, 239 S.C. 449,
123 8. E. 2d 835, 845, 848-849 (1962) (Legge, J., speaking for the
court on this point); see State v. King, 158 S.C. 251, 155 8. E. 409,
425-426 (1930); State v. Blakely, 158 S.C. 304, 155 8. E. 408
(1930); State v. Jones, 201 S.C. 403, 23 S.E.2d 387, 391-392
(1942) (the last three cases being modified by Worthy, supra, but
not in the present regard); State v. Thorne, 39 Utah 208, 117 P.
58, 62-63 (1911), overruled on the question whether such error is
prejudicial, State v. Riley, 41 Utah 225, 126 P. 294, 299 (1912);
State v. Romeo, 42 Utah 46, 128 P. 530, 538-539 (1912) (hold.
ing charge erroneous but nonprejudicial) ; State v. Markham, 100
Utah 226, 112 P.2d 496, 497 (1941) (dictum) ; State v. Vasques,
101 Utah 444, 121 P.2d 903, 907 (1942) ; State v. Collins, 50 Wash.
2d 740, 314 P.2d 660, 663 (1957) (semble) ; but see State v. Smith,
74 Wash.2d 744, 446 P.2d 571, 590 (1968).
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59
decision can be guided, informed or measured,“ controlled
or reviewed. Not surprisingly, none of these “evidence”
States appears to take the “evidence” principle very
seriously: in several of them, a jury charge embodying it
is optional with the trial judge.“
Apart from that question of the role of evidence in the
jury's deliberations, jury-charge practice under the various
capital sentencing laws falls into four major categories.
A very few States appear to favor instructions in terms
of “mitigating circumstances,” without defining those
cireumstances. Another very few States approve an
u See the Connecticut cases of Donahue, note 105 supra, and
Walters, note 106 supra; the Nebraska cases of Sundahl and Grand-
singer, note 106 supra; the New J case of Mount, note 105
supra; the Tennessee case of Woodruff, note 105 supra; and the
Wyoming case of Brown, note 105 supra. See also the discussion
of the Ohio cases at notes 31-41 supra.
110 There seems to be no relation between the jurisdictions which
require the jury’s decision to be made on the evidence (note 107
) and those in which any measure of judicial review of the
jury has developed (notes 120-123 infra).
m Ohio: see notes 39-41 supra. Nebraska: see the Sundahl and
Grandsinger cases, note 106 supra. Wyoming : see the Pizley case,
note 107 supra. The other “evidence” States appear not to have
passed upon the question.
m We put aside discussion of the question what the jury may
or should be told, in the various jurisdictions, with regard to the
parole, pardon and commutation aspects of a life sentence. There
is much litigation of this question, none of it informative for
present purposes.
n In Tennessee, the relevant statute requires that a life ver-
diet be based upon mitigating circumstances, Tenn. Code Ann.
§39-2406 (1955), and the j is instructed in these terms. Wood-
ruff v. State, 164 Tenn. 530, 51 8. W. 2d 843, 848 (1932). Colorado
has a statute which provides, in effect, that when a homicide is
shown, “the burden of proving circumstances of mitigation” de-
volves on the defendant. This would appear to us to be nothing
more than the ordinary principle of homicide lore, in force in
60
instruction telling the jury that it should not be influenced
by mere sentiment, sympathy or passion, but not saying
what should influence the jury.“ A larger number of
States submit the question of life or death in terms of
“absolute” or “unrestricted” discretion, or tell the jurors
that they may decide it either way “for any reason or for
no reason,” or some such phrase.“ In other States, the
many jurisdictions by statute or common law, which has to do
with degrees of homicide and with justification (e.g., self-defense,
defense of others); but the Colorado Supreme Court takes the
unusual view that it also applies to the penalty determination.
See Jones v. People, 146 Colo. 40, 360 P.2d 686, 692 (1961);
Jones v. People, 155 Colo. 148, 393 P.2d 366, 367-368 (1964).
Apparently a Colorado jury charge could be framed on this
principle, but that is not entirely clear. There is also language
in Edwards v. Commonwealth, 298 Ky. 366, 182 S.W.2d 948,
951 (1944), that might support a charge in terms of mitigating
circumstances.
114 Dinsmore v. State, 61 Neb. 418, 85 N. W. 445, 453 (1901);
see also Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689, 704
(1951); Pizley v. State, 406 P.2d 662, 669 (Wyo. 1965). See also
the jury charge reflected in the record in Mathis v. New Jersey,
O. T. 1970, Mise. No. 5006, trial transcript pp. 653-654.
115 State v. Donahue, 141 Conn. 656, 109 A.2d 364, 368 (195
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