# Amicus Curiae Brief — McGautha v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0276%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 402 U.S. 183 ## 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 fa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0276%3A05. Public record. Not legal advice.