Opinion — McGautha v. California

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SUPREME COURT OF THE UNITED STATES

Syllabus

McGAUTHA v. CALIFORNIA

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

No. 203. Argued November 9, 1970—Decided May 3, 1971*

Petitioner in No. 203 was convicted of first-degree murder in Cali-

fornia, and was sentenced to death. The penalty was left to the

jury’s absolute discretion, and punishment was determined in a

separate proceeding following the trial on the issue of guilt. Peti-

tioner in No. 204 was convicted of first-degree murder, and was

sentenced to death in Ohio, where the jury, which also had abso-

lute penalty discretion, determined guilt and penalty after a single

- trial and in a single verdict. Certiorari was granted to consider

whether petitioners’ rights were infringed by permitting the death

penalty without standards to govern its imposition, and in No. 204,

to consider the constitutionality of a single guilt and punishment

proceeding. Held:

1. In light of history, experience, and the limitations of human

knowledge in establishing definitive standards, it is impossible to

say that leaving to the untrammeled discretion of the jury the

power to pronounce life or death in capital cases violates any pro-

vision of the Constitution. Pp. 12-24.

2. The Constitution does not prohibit the States from consider-

ing that the compassionate purposes of jury sentencing in capital

cases are better served by having the issues of guilt and punish-

ment resolved in a single trial than by focusing the jury’s attention

solely on punishment after guilt has been determined. Pp. 24-38.

(a) Petitioner in No. 204 has failed to show that his unitary

trial violated the Constitution by forcing “the making of difficult

judgments” in his decision whether to remain silent on the issue

of guilt at the cost of surrendering his chance to plead his case

*Together with No. 204, Crampton v. Ohio, on certiorari to the

Supreme Court of Ohio.

I

.

1 McGAUTHA v. CALIFORNIA

Syllabus

on the punishment issue. Simmons v. United States, 390 U. 8,

377, distinguished. Pp. 27-29.

(b) The policies of the privilege against self-incrimination are

not offended when a defendant in a capital case yields to the pres-

sure to testify on the issue of p ishment at the risk of damaging

his case on guilt. Pp. 29-34.

(e) Ohio does provide for the common-law ritual of allocution,

but the State need not provide petitioner an opportunity to speak

to the jury free from any adverse consequences on the issue of

guilt. Pp. 34-37.

No. 203, 70 Cal. 2d 770, 452 P. 2d 650; and No. 204, 18 Ohio St.

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

Hartan, J., delivered the opinion of the Court, in which Burcer,

C. J., and Srewart, WHITE, and Biackmvn, JJ., joined. Brack, J.,

filed an opinion concurring in the result. Dovcl As, J., filed an opin-.

jon dissenting in No. 204, in which BRENNAN and Mans HALL, JJ,,

joined. BRENNAN, J., filed a dissenting opinion, in which Dovcias

and Mans HALL, JJ., joined.

e 20643, of any typographical or other

in order that

to press,

SUPREME COURT OF THE UNITED STATES

Nos. 203 & 204.—Ocroser Term, 1970

Dennis Councle McGautha,

; On Writ of Certiorari to the

Petitioner, Supreme Court of Cali-

203 ps fornia.

State of California.

James Edward Crampton,

Petitioner, On Writ of Certiorari to the

204 v. Supreme Court of Ohio.

State of Ohio.

[May 3, 1971]

Mr. Justice HAnLAx delivered the opinion of the

Court.

Petitioners McGautha and Crampton were convicted

of murder in the first degree in the courts of California

and Ohio respectively and sentenced to death pursuant to

the statutes of those States. In each case the decision

whether the defendant should live or die was left to the

absolute discretion of the jury. In McGautha’s case the

jury, in accordance with California law, determined pun-

ishment in a separate proceeding following the trial on the

issue’ of guilt. In Crampton’s case, in accordance with

Ohio law, the jury determined guilt and punishment after

a single trial and in a single verdict. We granted certi-

orari in the McGautha case limited to the question

whether petitioner’s constitutional rights were infringed

by permitting the jury to impose the death penalty with-

out any governing standards. 398 U. S. 936 (1970). We

granted certiorari in the Crampton case limited to that

same question and to the further question whether the

2 McGAUTHA v. CALIFORNIA

jury’s imposition of the death sentence in the same pro-

ceeding and verdict as determined the issue of guilt was

constitutionally permissible. Jbid.* For the reasons

that follow, we find no constitutional infirmity in the

conviction of either petitioner, and we affirm in both

cases.

I

It will put the constitutional issues in clearer focus to

begin by setting out the course which each trial took.

A. McGautha’s Guilt Trial

McGautha and his codefendant Wilkinson were charged

with committing two armed robberies and a murder on

February 14, 1967. In accordance with California pro-

cedure in capital cases, the trial was in two stages, a guilt

stage and a punishment stage.“ At the guilt trial the

1 The same two questions were included in our grant of certiorari

in Marwell v. Bishop, 393 U. S. 997 (1968), three years ago.

After twice hearing argument in that case, see 395 U. S. 918 (1969),

we remanded the case to the District Court for consideration of

possible violations of the rule of Witherspoon v. Illinois, 391 U. 8.

510 (1968). 398 U. S. 262 (1970). In taking that course we at the

same time granted certiorari in the McGautha and Crampton cases

to consider the two questions thus pretermitted in Marwell. See id.,

at 267 n. 4.

2 The information also alleged that McGautha had four prior

felony convictions: felonious theft, robbery, murder without malice,

and robbery by assault. The most recent of these convictions

occurred in 1952. In a proceeding in chambers McGautha admitted

the convictions, and the jury did not learn of them at the guilt

stage of the trial.

California Penal Code § 190.1 (West Supp. 1970) provides:

“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 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 shall thereupon be further

McGAUTHA v. CALIFORNIA 3

evidence tended to show that the defendants, armed with

istols, entered the market of Mrs. Pon Lock early in

the afternoon of the murder. While Wilkinson kept a

customer under guard, McGautha trained his gun on

Mrs. Lock and took almost $300. Roughly three hours

later, McGautha and Wilkinson held up another store,

this one owned by Mrs. Benjamin Smetana and operated

by her with her husband’s assistance. While one defend-

ant forcibly restrained a customer, the other struck Mrs.

Smetana on the head. A shot was fired, fatally wound-

ing Mr. Smetana. Wilkinson’s former girl friend testified

that shortly after the robbery McGautha told her he had

shot a man and showed her an empty cartridge in the

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 surrounding 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 pre-

sented, and the penalty fixed shall be expressly stated in the deci-

sion 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

the commission of the crime. The burden of proof as to the age

of said person shall be upon the defendant.

“Tf the defendant was convicted by the court sitting without a

jury, the trier of fact shall be the court. If the defendant was

convicted by a plea of guilty, the trier of fact shall be a jury unless

a jury is waived. If the defendant was convicted 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 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 penalty, 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.”

4 McGAUTHA v. CALIFORNIA

chamber of his gun. Other evidence at the guilt stage

was inconclusive on the issue as to who fired the fatal

shot. The jury found both defendants guilty of two

counts of armed robbery and one count of first-degree

murder as charged.

B. McGautha’s Penalty Trial

At the penalty trial, which took place on the following

day but before the same jury, the State waived its open-

ing, presented evidence of McGautha’s prior felony con-

victions and sentences, see n. 2, supra, and then rested.

Wilkinson testified in his own behalf, relating his un-

happy childhood in Mississippi as the son of a white

father and a Negro mother, his honorable discharge from

the Army on the score of his low intelligence, his regular

attendance at church, and his good record for holding jobs

and supporting his mother and siblings up to the time he

was shot in the back in an unprovoked assault by a street

gang. Thereafter, he testified, he had difficulty obtain-

ing or holding employment. About a year later he fell

in with McGautha and his companions, and when they

found themselves short of funds, one of the group sug-

gested that they knock over somebody.” This was the

first time, Wilkinson said, that he had ever had any

thoughts of committing a robbery. He admitted partici-

pating in the two robberies but said he had not known

that the stores were to be held up until McGautha drew

his gun. He testified that it had been McGautha who

struck Mrs. Smetana and shot Mr. Smetana.

Wilkinson called several witnesses in his behalf. An

undercover narcotics agent testified that he had seen

the murder weapon in McGautha’s possession and had

seen McGautha demonstrating his quick draw. A min-

ister with whom Wilkinson had boarded testified to

Wilkinson’s church attendance and good reputation. He

also stated that before trial Wilkinson had expressed his

McGAUTHA v. CALIFORNIA 5

horror at what had happened and requested the minister’s

prayers on his behalf. A former fellow employee testified

that Wilkinson had a good reputation and was honest

and peaceable.

McGautha also testified in his own behalf at the pen-

alty hearing. He admitted that the murder weapon was

his, but testified that he and Wilkinson had traded guns,

and that it was Wilkinson who had struck Mrs. Smetana

and killed her husband. McGautha testified that he

came from a broken home and that he had been wounded

during World War II. He related his employment rec-

ord, medical condition, and remorse. He admitted his

criminal record, see n. 2, supra, but testified that he had

been a mere accomplice in two of those robberies and

that his prior conviction for murder had resulted from

a slaying in self-defense. McGautha also admitted to a

1964 guilty plea to a charge of carrying a concealed

weapon. He called no witnesses in his behalf.

The jury was instructed in the following language:

‘in this part of the trial the law does not forbid you

from being influenced by pity for the defendants and

you may be governed by mere sentiment and sym-

pathy for the defendants in arriving at a proper

penalty in this case; however, the law does forbid

you from being governed by mere conjecture, preju-

dice, public opinion or public feeling.

“The defendants in this case have been found

guilty of the offense of murder in the first degree,

and it is now your duty to determine which of the

penalties provided by law should be imposed on

each defendant for that offense. Now in arriving

at this determination you should consider all of the

evidence received here in court presented by the

People and defendants throughout the trial before

this jury. You may also consider all of the evidence

of the circumstances surrounding the crime, of each

— —Ü—ä̃— —— —

6 McGAUTHA v. CALIFORNIA

defendant’s background and history, and of the

facts in aggravation or mitigation of the penalty

which have been received here in court. However,

it is not essential to your decision that you find

mitigating circumstances on the one hand or evi-

dence in aggravation of the offense on the other

hand.

«„ — Notwithstanding facts, if any, proved in

mitigation or aggravation, in determining which

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.

“Now, 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 determin-

ing which of the two penalties shall be fixed to the

judgment, conscience, and absolute discretion of the

jury. In the determination of that matter, if the

jury does agree, it must be unanimous as to which

of the two penalties is imposed.” App. 221-223.

The penalty jury interrupted its deliberations to ask whether a

sentence of life imprisonment meant that there was no possibility of

parole. The trial judge responded as follows:

“A sentence of life imprisonment means that the prisoner may

be paroled at some time during his lifetime or that he may spend

the remainder of his natural life in prison. An agency known as

the Adult Authority is empowered by statute to determine if and

when a prisoner is to be paroled, and under the statute no prisoner

can be paroled unless the Adult Authority is of the opinion that the

prisoner when released will assume a proper place in society and

that his release is not contrary to the welfare of society. A prisoner

released on parole may remain on parole for the balance of his

McGAUTHA v. CALIFORNIA 7

Deliberations began in the early afternoon of Au-

gust 24, 1967. In response to jury requests the testimony

of Mrs. Smetana and of three other witnesses was reread.

Late in the afternoon of August 25 the jury returned

verdicts fixing Wilkinson’s punishment at life imprison-

ment and McGautha’s punishment at death.

The trial judge ordered a probation report on Mc-

Gautha. Having received it, he overruled McGautha’s

motions for a new trial or for a modification of the penalty

verdict, and pronounced the death sentence.“ Me-

life and if he violates the terms of the parole he may be returned

to prison to serve the life sentence.

“So that you will have no misunderstandings relating to a sentence

of life imprisonment, you have been informed as to the general

scheme of our parole system. You are now instructed, however,

that the matter of parole is not to be considered by you in deter-

mining the punishment for either defendant, and you may not

speculate as to if, or when, parole would or would not be granted.

It is not your function to decide now whether these men will be

suitable for parole at some future date. So far as you are concerned,

you are to decide only whether these men shall suffer the death

penalty or whether they shall be permitted to remain alive. If

upon consideration of the evidence you believe that life imprison-

ment is the proper sentence, you must assume that those officials

charged with the operation of our parole system will perform their

duty in a correct and responsible manner, and that they will not

parole a defendant unless he can be safely released into society. It

would be a violation of your duty as jurors if you were to fix the

penalty at death because of a doubt that the Adult Authority will

properly carry out its responsibilities.” App. 224-225.

8 Under California law the trial judge has power to reduce the

penalty to life if he concludes that the jury's verdict is not supported

by the weight of the evidence. Cal. Penal Code § 1181 (7). See

In re Anderson, 69 Cal. 2d 613, 623, 73 Cal. Rptr. 21, 28, 447 P. 2d

117, 124 (1968). The California Supreme Court, to which appeal

is automatic in capital cases, Cal. Penal Code § 1239 (b), has no

such power. People v. Lookadoo, 66 Cal. 2d 307, 327, 57 Cal. Rptr.

608, 621, 425 P. 2d 208, 221 (1967).

8 McGAUTHA v. CALIFORNIA

Gautha’s conviction was unanimously affirmed by the

California Supreme Court. 70 Cal. 2d 770, 76 Cal. Rptr.

434, 452 P. 2d 650 (1969). His contention that stand-

ardless jury sentencing is unconstitutional was rejected

on the authority of an earlier case, In re Anderson, 69

Cal. 2d 613, 73 Cal. Rptr. 21, 447 P. 2d 117 (1968), in

which that court had divided narrowly on the issue.

C. Crampton’s Trial

Petitioner Crampton was indicted for the murder of

his wife, Wilma Jean, purposely and with premeditated

malice. He pleaded not guilty and not guilty by reason

of insanity In accordance with the Ohio practice which

he challenges, his guilt and punishment were determined

in a single unitary proceeding.

At trial the State’s case was as follows. The Cramp-

tons had been married about four months at the time of

the murder. Two months before the slaying Crampton

was allowed to leave the state mental hospital, where

he was undergoing observation and treatment for alco-

holism and drug addiction, to attend the funeral of his

wife’s father. On this occasion he stole a knife from the

house of his late father-in-law and ran away. He called

the house several times and talked to his wife, greatly

upsetting her. When she pleaded with him to return to

the hospital and stated that she would have to call the

police, he threatened to kill her if she did. Wilma and

her brother nevertheless did notify the authorities, who

picked Crampton up later the same evening. There was

testimony of other threats Crampton had made on his

wife’s life, and it was revealed that about 10 days before

6 Pursuant to Ohio law, Ohio Rev. Code Ann. § 2945.40 (Page

1954), Crampton was committed to a state mental hospital for a

month of observation. After a hearing on the psychiatric report the

trial court determined that Crampton was competent to stand trial.

McGAUTHA v. CALIFORNIA 9

the murder Mrs. Crampton’s fear of her husband had

caused her to request and receive police protection.

The State’s main witness to the facts surrounding the

murder was one William Collins, a convicted felon who

had first met Crampton when they, along with Cramp-

ton’s brother Jack, were in the State Prison in Michigan.

On January 14, 1967, three days before the murder, Col-

lins and Crampton met at Jack Crampton’s house in Pon-

tisc, Michigan. During those three days Collins and

Crampton roamed the upper Midwest, committing a

series of petty thefte and obtaining amphetamines,

to which both wer. addicted, by theft and forged

prescriptions.

About nine o'clock on the evening of January 16,

Crampton called his wife from St. Joseph, Michigan;

after the call he told Collins that he had to get bac to

Toledo, where his wife was, as fast as possible. They

arrived in the early morning hours of January 17. After

Crampton had stopped by his wife’s home and sent Col-

lins to the door with a purported message for her, the

two went to the home of Crampton’s mother-in-law,

which Crampton knew to be empty, to obtain some guns.

They broke in and stole a rifle, ammunition, and some

handguns, including the .45 automatic which was later

identified as the murder weapon. Crampton kept this

gun with him. He indicated to Collins that he believed

his wife was having an affair. He fired the .45 in the air,

with a remark to the effect that “a slug of that type would

do quite a bit of damage,” and said that if he found his

wife with the man he suspected he would kill them both.

That evening Crampton called his wife’s home and

learned that she was present. He quickly drove out to

the house, and told Collins, “Leave me off right here in

front of the house and you take the car and go back to

10 McGAUTHA v. CALIFORNIA

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

morning you're on your own.”

About 11:20 that evening Crampton was arrested for

driving a stolen car. The murder weapon was found

between the seats of the car.

Mrs. Crampton’s body was found the next morning.

She had been shot in the face at close range while she

was using the toilet. A .45 caliber shell casing was near

the body. A jacket which Crampton had stolen a few

days earlier was found in the living room. The coroner,

who examined the body at 11:30 p. m. on January 18,

testified that in his opinion death had occurred 24 hours

earlier, plus or minus four hours.

The defense called Crampton’s mother as a witness.

She testified about Crampton’s background, including a

serious concussion received at age nine, his good grades

in junior high school, his stepfather’s jealousy of him,

his leaving home at age 14 to live with various relatives,

his enlistment in the Navy at age 17, his marriage to a

girl named Sandra, the birth of a son, a divorce, then a

remarriage to Sandra and another divorce shortly after,

and finally his marriage to Wilma. Mrs. Crampton also

testified to Crampton’s drug addiction, to his brushes

with the law as a youth and as an adult, and to his

undesirable discharge from the Navy.

Crampton’s attorney also introduced into evidence

series of hospital reports which contained further infor-

mation on Crampton’s background, including his criminal

record, which was substantial, his court-martial convie-

tion and undesirable discharge from the Navy, and

the absence of any significant employment record. They

also contained his claim that the shooting was accidental;

that he had been gathering up guns around the house

and had just removed the clip from an automatic when

his wife asked to see it; that as he handed it to her

it went off accidentally and killed her. All the reports

McGAUTHA v. CALIFORNIA 11

concluded that Crampton was sane in both the legal and

the medical senses. He was diagnosed as having a socio-

pathic personality disorder, along with alcohol and drug

addiction. Crampton himself did not testify.

The jury was instructed that

“If you find the defendant guilty of murder in

the first degree, the punishment is death, unless you

recommend mercy, in which event the punishment

is imprisonment in the penitentiary during life.”

App. 70.

The jury was given no other instructions specifically

addressed to the decision whether to recommend mercy,

but was told in connection with its verdict generally:

“You must not be influenced by any consideration

of sympathy or prejudice. It is your duty to care-

fully weigh the evidence, to decide all disputed ques-

tions of fact, to apply the instructions of the court

to your findings and to render your verdict accord-

ingly. In fulfilling your duty, your efforts must be

to arrive at a just verdict.

“Consider all the evidence and make your find-

ing with intelligence and impartiality, and without

bias, sympathy, or prejudice, so that the State of

Ohio and the defendant will feel that their case was

fairly and impartially tried.” App. 71-72.

The jury deliberated fur over four hours and returned a

verdict of guilty, with no recommendation for mercy.

Sentence was imposed about two weeks later. As Ohio

law requires, Ohio Rev. Code Ann. § 2947.05 (Page 1954),

Crampton was informed of the verdict and asked whether

he had anything to say as to why judgment should not

be pronounced against him. He replied:

“Please the Court, I don’t believe I received a

fair and impartial trial because the jury was preju-

12 McGAUTHA v. CALIFORNIA

diced by my past record and the fact I had been a

drug addict, and I just believe I didn’t receive a

fair and impartial trial. That’s all I have to say.”

This statement was found insufficient to justify not pro-

nouncing sentence upon him, and the court imposed the

death sentence.’ Crampton’s appeals through the Ohio

courts were unavailing. 18 Ohio St. 2d 182, 248 N. E.

2d 614 (1969).

II

Before proceeding to a consideration of the issues be-

fore us, it is important to recognize and underscore the

nature of our responsibilities in judging them. Our fune-

tion is not to impose on the States, ex cathedra, what

might seem to us a better system for dealing with capital

cases. Rather it is to decide whether the Federal Con-

stitution proscribes the present procedures of these two

States in such cases. In assessing the validity of the con-

clusions reached in this opinion, that basic factor should

be kept constantly in mind.

III

We consider first MeGautha's and Crampton's com-

mon claim: that the absence of standards to guide the

jury’s discretion on the punishment issue is constitution-

ally intolerable. To fit their arguments within a consti-

tutional frame of reference petitioners contend that to

leave the jury completely at large to impose or withhold

the death penalty as it sees fit is fundamentally lawless

and therefore violates the basic command of the Four-

teenth Amendment that no State shall deprive a person

of his life without due process of law. Despite the

Under Ohio law, a jury’s death verdict may not be reduced as

excessive by either the trial or the appellate court. Turner v. State,

21 Ohio Law Abs. 276, 279-280 (Ct. App. 1936); State v. Klumpp,

15 Ohio Ops. 2d 461, 468, 175 N. E. 2d 767, 775-776 (Ct. App),

appeal dismissed, 171 Ohio St. 62, 167 N. E. 2d 778 (1960).

McGAUTHA v. CALIFORNIA 13

undeniable surface appeal of the proposition, we conclude

that the courts below correctly rejected it.

A

In order to see petitioners’ claim in perspective, it is

useful to call to mind the salient features of the history

of capital punishment for homicides under the common

law in England, and subsequent statutory developments

in this country. This history reveals continual efforts,

uniformly unsuccessful, to identify before the fact those

homicides for which the slayer should die. Thus, the

laws of Alfred, echoing Exodus 21: 12-13, provided “Let

the man who slayeth another wilfully perish by death.

Let him who slayeth another of necessity or unwillingly,

or unwilfully, as God may have sent him into his hands,

and for whom he has not lain in wait be worthy of his life

and of lawful bot if he seek an asylum.” Quoted in 3 J.

Stephen, History of the Criminal Law of England 24

(1883). In the 13th century, Bracton set it down that a

The lower courts thus placed themselves in accord with all other

American jurisdictions which have considered the issue. See, e. 9.,

In re Ernst, 204 F. 2d 556 (CA3 1961); Florida ex rel. Thomas v.

Culver, 253 F. 2d 507 (CA5 1958); Maxwell v. Bishop, 398 F. 2d

138 (CA8 1968), vacated on other grounds, 398 U. S. 262 (1970) ;

Sims v. Eyman, 405 F. 2d 439 (CA9 1969) ; Segura v. Patterson, 402

F. 2d 249 (CA10 1968); McCants v. State, 282 Ala. 397, 211 So. 2d

877 (1968); Bagley v. State, 247 Ark. 113, 444 8. W. 2d 567

(1969); State v. Walters, 145 Conn. 60, 138 A. 2d 786 (1958),

appeal dismissed, 358 U. S. 46 (1958); Wilson v. State, 225 So. 2d

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

(1968); State v. Latham, 190 Kan. 411, 375 P. 2d 788 (1962);

Duisen v. State, —- Mo. —, 441 8. W. 2d 688 (1969); State v.

Johnson, 34 N. J. 212, 168 A. 2d 1, appeal dismissed, 368 U. S. 145

(1961); People v. Fitzpatrick, 61 Misc. 2d 1043, 308 N. Y. S. 2d 18

(Co. Ct. 1970); State v. Roseboro, 276 N. C. 185, 171 S. E. 2d 886

(1970); Hunter v. State, 222 Tenn. 672, 440 S. W. 2d 1 (1969);

State v. Kelbach, 23 Utah 2d 231, 461 P. 2d 297 (1969); Johnson v.

Commonwealth, 208 Va. 481, 158 8. E. 2d 725 (1968); State v.

Smith, 74 Wash. 2d 744, 446 P. 2d 571 (1968).

14 McGAUTHA v. CALIFORNIA

man was responsible for all homicides except those which

happened by pure accident or inevitable necessity, al-

though he did not explain the consequences of such re-

sponsibility. Id., at 35. The Statute of Gloucester, 6

Edw. 1, c. 9 (1278), provided that in cases of self-defense

or misadventure the jury should neither convict nor

acquit, but should find the fact specially, so that the

King could decide whether to pardon the accused. It

appears that in time such pardons—which may not have

prevented forfeiture of goods—came to issue as of course,

3 Stephen, supra, at 36-42.

During all this time there was no clear distinction

in terminology or consequences among the various kinds

of criminal homicide. All were prima facie capital, but

all were subject to the benefit of clergy, which after 1350

came to be available to almost any man who could read.

Although originally those entitled to benefit of clergy

were simply delivered to the bishop for ecclesiastical pro-

ceedings, with the possibility of degradation from orders,

incarceration, and corporal punishment for those found

guilty, during the 15th and 16th centuries the maximum

penalty for clergyable offenses became branding on the

thumb, imprisonment for not more than one year, and

forfeiture of goods. 1 Stephen, supra, at 459-464. By

the statutes of 23 Hen. 8, c. 1, 58 3, 4 (1531), and 1 Edw.

6, c. 12, § 10 (1547), benefit of clergy was taken away

in all cases of “murder of malice prepensed.” 1 Stephen,

supra, at 464-465; 3 Stephen, supra, at 44. During the

next century and a half, however, malice prepense” or

“malice aforethought” came to be divorced from actual ill

will and inferred without more from the act of killing.

Correspondingly, manslaughter, which was initially re-

stricted to cases of “chance medley,” came to include

homicides where the existence of adequate provocation

rebutted the inference of malice. 3 Stephen, supra,

46-73.

McGAUTHA v. CALIFORNIA 15

The growth of the law continued in this country, where

there was rebellion against the common-law rule im-

posing a mandatory death sentence on all convicted

murderers. Thus, in 1794, Pennsylvania attempted to

reduce the rigors of the law by abolishing capital punish-

ment except for “murder of the first degree,” defined to

include all “wilful, deliberate, and premeditated” killings,

for which the death penalty remained mandatory. Pa.

Laws 1794, c. 1766. This reform was soon copied by Vir-

ginia and thereafter by many other States.

This new legislative criterion for isolating crimes ap-

propriately punishable by death soon proved as unsuc-

cessful as the concept of “malice aforethought.” Within

a year the distinction between the degrees of murder was

practically obliterated in Pennsylvania. See Keedy, His-

tory of the Pennsylvania Statute Creating Degrees of

Murder, 97 U. Pa. L. Rev. 759, 773-777 (1949). Other

States had similar experiences. Wechsler & Michael, A

Rationale of the Law of Homicide, 37 Colum. L. Rev. 701,

707-709 (1937). The result was characterized in this

way by Chief Judge Cardozo, as he then was:

“What we have is merely a privilege offered to the

jury to find the lesser degree when the suddenness

of the intent, the vehemence of the passion, seems

to call irresistibly for the exercise of mercy. I have

no objection to giving them this dispensing power,

but it should be given to them directly and not in

a mystifying cloud of words.” “What Medicine Can

Do For Law” (1928) in Law and Literature 70, 100

(1931).

In context the emphasis is on the confusing distinction between

degrees of murder, not the desirability of jury sentencing discretion.

It may also be noted that the former New York definitions of first-

and second-degree murder were somewhat unusual. See Wechsler &

Michael, supra, 37 Colum. L. Rev., at 704 n. 13, 709 n. 26.

16 McGAUTHA v. CALIFORNIA

At the same time, jurors on occasion took the law into

their own hands in cases which were “willful, deliberate,

and premeditated” in any view of that phrase, but

which nevertheless were clearly inappropriate for the

death penalty. In such cases they simply refused to

convict of the capital offense. See Report of the Royal

Commission on Capital Punishment, 1949-1953, Cmd.

8932, N 27-29 (1953) ; Andres v. United States, 333 U. S.

740, 753 (Frankfurter, J., concurring); cf. H. Kalven &

H. Zeisel, The American Jury 306-312 (1966).

In order to meet the problem of jury nullification,

legislatures did not try, as before, to refine further the

definition of capital homicides. Instead they adopted

the method of forthrightly granting juries the discretion

which they had been exercising in fact. See Knowlton,

Problems of Jury Discretion in Capital Cases, 101 U. Pa.

L. Rev. 1099, 1102 and n. 18 (1953); Note, The Two-

Trial System in Capital Cases, 39 N. Y. U. L. Rev. 50,

52 (1964). Tennessee was the first State to give juries

sentencing discretion in capital cases, Tenn. L. 1837-

1838, c. 29, but other States followed suit, as did the

Federal Government in 1897." Act of Jan. 15, 1897,

10 The practice of jury sentencing arose in this country during the

colonial period for cases not involving capital punishment. It has

been suggested that this was a “reaction to harsh penalties imposed

by judges appointed and controlled by the Crown” and a result of

“the early distrust of governmental power.” President’s Commission

on Law Enforcement and Administration of Justice, Task Force

Report: The Courts 26 (1967).

11 California and Ohio, the two States involved in these cases,

abolished mandatory death penalties in favor of jury discretion in

1874 and 1898. Act of Mar. 28, 1874, o. 508, Cal. Amendatory Acts

1873-1874, at 457; 93 Ohio Laws 223. Except for four States that

entirely abolished capital punishment in the middle of the last cen-

tury, every American jurisdiction has at some time authorised jury

sentencing in capital cases. None of these statutes have provided

standards for the choice between death and life imprisonment. See

Brief for the United States as Amicus Curiae 128-137.

McGAUTHA v. CALIFORNIA 17

C. 20, $1, 29 Stat. 487. Shortly thereafter, in Winston

v. United States, 172 U. S. 303 (1899), this Court dealt

with the federal statute for the first time.* The Court

reversed a murder conviction in which the trial judge in-

structed the jury that it should not return a recommen-

dation of mercy unless it found the existence of mitigating

circumstances. The Court found this instruction to in-

terfere with the scheme of the Act to commit the whole

question of capital punishment “to the judgment and the

consciences of the jury.” Id., at 313.

“How far considerations of age, sex, ignorance, ill-

ness or intoxication, of human passion or weak-

ness, of sympathy or clemency, or the irrevocable-

ness of an executed sentence of death, or an appre-

hension that explanatory facts may exist which

have not been brought to light, or any other con-

sideration whatever, should be allowed weight in

deciding the question whether the accused should

or should not be capitally punished, is committed

by the act of Congress to the sound discretion of

the jury, and of the jury alone.” Ibid.

This Court subsequently had occasion to pass on the

correctness of instructions to the jury with respect to

recommendations of mercy in Andres v. United States,

333 U. S. 740 (1948). The Court approved, as consistent

with the governing statute, an instruction that

“This power [to recommend mercy] is conferred

solely upon you and in this connection the Court

cannot extend or prescribe to you any definite

rule defining the exercise of this power, but commits

12See also Calton v. Utah, 130 U. S. 83 (1889), in which the

Court reversed a conviction under the statutes of Utah Territory

in which the jury had not been informed of its right under the

territorial code to recommend a sentence of imprisonment for life

at hard labor instead of death.

McGAUTHA v. CALIFORNIA

the entire matter of its exercise to your judgment.”

Id., at 743 n. 4.

The case was reversed, however, on the ground that

other instructions on the power to recommend mercy

might have been interpreted by the jury as requiring

them to return an unqualified verdict of guilty unless they

unanimously agreed that mercy should be extended. The

Court determined that the proper construction was to

require a unanimous decision to withhold mercy as well,

on the ground among others that the latter construction

was “more consonant with the general humanitarian pur-

pose of the statute.” Id., at 749. The only other sig-

nificant discussion of standardless jury sentencing in

capital cases in our decisions is found in Witherspoon v.

Illinois, 391 U. S. 510 (1968). In reaching its conclusion

that persons with conscientious scruples against the death

penalty could not be automatically excluded from sen-

tencing juries in capital cases, the Court relied heavily

on the fact that such juries “do little more—and must

do nothing less—than express the conscience of the com-

munity on the ultimate question of life or death.” Id.,

at 519 (footnote omitted). The Court noted that “one

of the most important functions any jury can perform in

making such a selection is to maintain a link between

contemporary community values and the penal system—

a link without which the determination of punishment

could hardly reflect ‘the evolving standards of decency

that mark the progress of a maturing society. Id., at

519 n. 15. The inner quotation is from the opinion of

Mr. Chief Justice Warren for four members of the Court

in Trop v. Dulles, 356 U. S. 86, 101 (1958).

In recent years academic and professional sources have

suggested that jury sentencing discretion should be

controlled by standards of some sort. The American

Law Institute first published such a recommendation in

McGAUTHA v. CALIFORNIA 19

1959." Several States have enacted new criminal codes

in the intervening 12 years, some adopting features of

the Model Penal Code.“ Other States have modified

their laws with respect to murder and the death penalty

in other ways.“ None of these States have followed the

Model Penal Code and adopted statutory criteria for

imposition of the death penalty. In recent years, chal-

lenges to standardless jury sentencing have been pre-

sented to many state and federal appellate courts. No

18 Model Penal Code § 201.6 (Tent. Draft No. 9, 1959). The

criteria were revised and approved by the Institute in 1962 and

now appear in § 210.6 of the Proposed Official Draft of the Model

Penal Code. As revised they appear in the Appendix to this

opinion. More recently the National Commission on Reform of

Federal Criminal Laws published a Study Draft of a New Federal

Criminal Code (1970). Section 3605 contained standards virtually

identical to those of the Model Penal Code. The statement of the

Chairman of the Commission, submitting the Study Draft for public

comment, described it as “something more than a staff report and

something less than a commitment by the Commission or ary of its

members to every aspect of the Draft.” Study Draft, at xx. The

primary differences between the procedural provisions for capital

sentencing in the Model Penal Code and those in the Study Draft are

that the Code provides that the court and jury “shall” take the cri-

teria into account, while the Study Draft provided that they “may”

do so; and the Model Penal Code forbids imposition of the death

penalty where no aggravating circumstances are found, while the

Study Draft showed this only as an alternative provision. The latter

feature is affected by the fact that only a very few murders were

to be made capital. See id., at 307. In its Final Report (1971), the

Commission recommended abolition of the death penalty for federal

crimes. An alternate version, said to represent a “substantial body

of opinion in the Commission,” id., comment to provisional § 3601,

provided for retention of capital punishment for murder and treason

with procedural provisions which did not significantly differ from

those in the Study Draft.

4 See, e. g., N. v. Penal Law § 65.00 (1967) (criteria for judges

in deciding on probation).

8B. g., N. M. Stat. Ann. § 40A-29-2.1 to §40A-29-22 (Supp.

1969), reducing the class of capital crimes.

20 McGAUTHA v. CALIFORNIA

court has held the challenge good. See n. 8, supra. As

petitioners recognize, it requires a strong showing to upset

this settled practice of the Nation on constitutional

grounds. See Walz v. Tar Commission, 397 U. S. 664,

678 (1970) ; Jackman v. Rosenbaum Co., 260 U. S. 22, 31

(1922); ef. Palko v. Connecticut, 302 U. S. 319, 325

(1937).

B

Petitioners seek to svoid the impact of this history by

the observation that jury sentencing discretion in capital

cases was introduced as a mechanism for dispensing

mercy—a means for dealing with the rare case in which

the death penalty was thought to be unjustified. Now,

they assert, the death penalty is imposed on far fewer than

half the defendants found guilty of capital crimes. The

state and federal legislatures which provide for jury dis-

cretion in capital sentencing have, it is said, implicitly

determined that some—indeed, the greater portion—of

those guilty of capital crimes should be permitted to live.

But having made that determination, petitioners argue,

they have stopped short—the legislatures have not only

failed to provide a rational basis for distinguishing the

one group from the other, ef. Skinner v. Oklahoma, 316

U. S. 535 (1942), but they have failed even to suggest any

basis at all. Whatever the merits of providing such a

mechanism to take account of the unforeseeable case

calling for mercy, as was the original purpose, petitioners

contend the mechanism is constitutionally intolerable as

a means of selecting the extraordinary cases calling for

the death penalty, which is its present-day function.

In our view, such force as this argument has derives

largely from its generality. Those who have come to

grips with the hard task of actually attempting to draft

means of channeling capital sentencing discretion have

confirmed the lesson taught by the history recounted

above. To identify before the fact those characteristics

McGAUTHA v. CALIFORNIA 21

of criminal homicides and their perpetrators which call

for the death penalty, and to express these characteristics

in language which can be fairly understood and applied

by the sentencing authority, appear to be tasks which

are beyond present human ability.

Thus the British Home Office, which before the recent

abolition of capital punishment in that country had the

responsibility for selecting the cases from England and

Wales which should receive the benefit of the Royal

Prerogative of Mercy, observed :

“The difficulty of defining by any statutory pro-

vision the types of murder which ought or ought

not to be punished by death may be illustrated by

reference to the many diverse considerations to which

the Home Secretary has regard in deciding whether

to recommend clemency. No simple formula can take

account of the innumerable degrees of culpability,

and no formula which fails to do so can claim to

be just or satisfy public opinion.” 1-2 Royal Com-

mission on Capital Punishment, Minutes of Evi-

dence 13 (1949).

The Royal Commission accepted this view, and although

it recommended a change in British practice to provide

for discretionary power in the jury to find “extenuating

circumstances,” that term was to be left undefined;

“(t]he decision of the jury would be within their unfet-

tered discretion and in no sense governed by the prin-

ciples of law.” Report of the Royal Commission on

Capital Punishment, 1949-1953, Cmd. 8932, f 553 (b).

The Commission went on to say, in substantial con-

firmation of the views of the Home Office:

“No formula is possible that would provide a

reasonable criterion for the infinite variety of cir-

cumstances that may affect the gravity of the crime

of murder. Discretionary judgment on the facts of

4

22 McGAUTHA v. CALIFORNIA

each case is the only way in which they can be

equitably distinguished. This conclusion is borne

out by American experience: there the experiment

of degrees of murder, introduced long ago, has had

to be supplemented by giving to the courts a dis-

cretion that in effect supersedes it.” Id., N 595.

The draftsmen of the Model Penal Code expressly

agreed with the conclusion of the Royal Commission that

“the factors which determine whether the sentence of

death is the appropriate penalty in particular cases are

too complex to be compressed within the limits of a

simple formula. Report 498, quoted in Model

Penal Code, § 201.6, Comment 3, at 71 (Tent. Draft No. 9,

1959). The draftsmen did think, however, “that it is

within the realm of possibility to point to the main cir-

cumstances of aggravation and of mitigation that should

be weighed and weighed against each other when they are

presented in a concrete case.” Ibid. The circumstances

the draftsmen selected, set out in the Appendix to this

opinion, were not intended to be exclusive. The Code

provided simply that the sentencing authority should

“take into account the aggravating and mitigating cir-

cumstances enumerated . . . and any other facts that

it deems relevant,” and that the court should so in-

struct when the issue was submitted to the jury. Id.,

§ 210.6 (2) (Proposed Official Draft, 1962). The Final

16 The Model Penal Code provided that the jury should not fix

punishment at death unless it found at least one of the aggravating

i ces and no sufficiently substantial mitigating circum-

stances. Model Penal Code § 2106 (2) (Proposed Official Draft

1962). As the reporter’s comment recognized, there is no funda-

mental distinction between this procedure and a redefinition of the

class of potentially capital murders. Model Penal Code § 2015,

Comment 3, at 71-72 (Tent. Draft No. 9, 1959). As we understand

these petitioners’ contentions, they seek standards for guiding the

sentencing authority’s discretion, not a greater strictness in the

definition of the class of cases in which the discretion exists. If

— —

McGAUTHA v. CALIFORNIA 23

of the National Commission on Reform of

Federal Criminal Laws (1971) recommended entire abo-

lition of the death penalty in federal cases. In a provi-

sional chapter, prepared for the contingency that Con-

gress might decide to retain the death penalty, the

Report contains a set of criteria virtually identical with

the aggravating and mitigating circumstances listed by

the Model Penal Code. With respect to the use to be

made of the criteria, the Report provides that: “ijn

deciding whether a sentence of death should be imposed,

the court and the jury, if any, may consider the miti-

gating and aggravating circumstances set forth in the

subsections below.” Id., provisional § 3604 (1) (empha-

sis added).

It is apparent that such criteria do not purport to

provide more than the most minimal control over the

sentencing authority’s exercise of discretion. They do

not purport to give an exhaustive list of the relevant

considerations or the way in which they may be affected

by the presence or absence of other circumstances. They

do not even undertake to exclude constitutionally im-

permissible considerations.” And, of course, they pro-

vide no protection against the jury determined to decide

on whimsy or caprice. In short, they do no more than

suggest some subjects for the jury to consider during

its deliberations, and they bear witness to the intractable

nature of the problem of “standards” which the history

of capital punishment has from the beginning reflected.

Thus they indeed caution against this Court’s under-

we are mistaken in this, and petitioners contend that Ohio’s and

California’s definitions of first-degree murder are too broad, we

consider their position constitutionally untenable.

u The issue whether a defendant is entitled to an instruction that

certain factors such as race are not to be taken into consideration

is not before us, as the juries were told not to base their decisions

on “prejudice,” and no more specific instructions were requested.

Cf. Griffin v. California, 380 U. S. 609, 614-615 and n. 6 (1965).

ä — —— LO

24 McGAUTHA v. CALIFORNIA

taking to establish such standards itself, or to pronounce

at large that standards in this realm are constitutionally

required.

In light of history, experience, and the present limita-

tions of human knowledge, we find it quite impossible

to say that committing to the untramelled discretion of

the jury the power to pronounce life or death in capital

cases is offensive to anything in the Constitution.” The

States are entitled to assume that jurors confronted with

the truly awesome responsibility of decreeing death

for a fellow human will act with due regard for the con-

sequences of their decision and will consider a variety

of factors, many of which will have been suggested by

the evidence or by the arguments of defense counsel.

For a court to attempt to catalog the appropriate factors

in this elusive area could inhibit rather than expand the

scope of consideration, for no list of circumstances would

ever be really complete. The infinite variety of cases

and facets to each case would make general standards

either meaningless “boiler-plate” or a statement of the

obvious that no jury would need.

IV

As we noted at the outset of this opinion, McGautha’s

trial was in two stages, with the jury considering the

18 Giaccio v. Pennsylvania, 382 U. S. 399 (1966), does not point

to a contrary result. In Giaccio the Court held invalid on its face

a Pennsylvania statute which authorized criminal juries to assess

costs against defendants whose conduct, although not amounting to

the crime with which they were charged, was nevertheless found

to be “reprehensible.” The Court concluded that the statute was

no more sound than one which simply made it a crime to engage

in “reprehensible conduct” and consequently that it was unconstitu-

tionally vague. The Court there stated:

“fijn so holding we intend to cast no doubt whatever on the

constitutionality of the settled practice of many States to leave to

juries finding defendants guilty of a crime the power to fix punish-

ment within legally prescribed limits.” Id., at 405 n. 8.

ene

McGAUTHA v. CALIFORNIA 25

issue of guilt before the presentation of evidence and

argument on the issue of punishment. Such a proce-

dure is required by the laws of California and of five

other States.“ Petitioner Crampton, whose guilt and

punishment were determined at a single trial, contends

that a procedure like California’s is compelled by the

Constitution as well.

This Court has twice had occasion to rule on separate

penalty proceedings in the context of a capital case. In

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

unconstitutional the penalty provisions of the Federal

Kidnaping Act, which we construed to mean that a de-

fendant demanding a jury trial risked the death penalty

while one pleading guilty or agreeing to a bench trial

faced a maximum punishment of life imprisonment. The

Government had contended that in order to mitigate

this discrimination we should adopt an alternative con-

struction, authorizing the trial judge accepting a guilty

plea or jury waiver to convene a special penalty jury

empowered to recommend the death sentence. Id., at

572. Our rejection of this contention was not based

solely on the fact that it appeared to run counter to the

language and legislative history of the Act. “[E]ven on

the assumption that the failure of Congress to [provide

for the convening of a penalty jury] was wholly inad-

vertent, it would hardly be the province of the courts to

fashion a remedy. Any attempt to do so would be fraught

with the gravest difficulties ....” Id., at 578-579.

10 Cal. Penal Code § 190.1 (West Supp. 1970); Conn. Gen. Stat.

Rev. §53a-46 (Supp. 1967); Act of Mar. 27, 1970, No. 1333, Ga.

Laws 1970, p. 949; N. Y. Penal Law §§ 125.30, 125.35 (McKinney

1967); Pa. Stat. Ann. Tit. 18, § 4701 (1963); Tex. Code Crim. Proc.

Art. 3707 (2)(b) (Supp. 1970). See also ALI, Model Penal Code

$210.6 (2) (Proposed Official Draft 1962); National Commission

on Reform of Federal Criminal Laws, Final Report, provisional

§ 3602 (1971); Report of the Royal Commission on Capital Punish-

ment, 1949-1953, Cmd. 8932, H 551-595 (1953).

26 McGAUTHA v. CALIFORNIA

We therefore declined “to create from whole cloth a com-

plex and completely novel procedure and to thrust it

upon unwilling defendants for the sole purpose of rescu-

ing a statute from a charge of unconstitutionality.” Id.,

at 580. Jackson, however, did not consider the possibility

that such a procedure might be constitutionally required

in capital cases.

Substantially this result had been sought by the peti-

tioner in Spencer v. Teras, 385 U. S. 554 (1967). Like

Crampton, Spencer had been tried in a unitary proceed -

ing before a jury which fixed punishment at death. Also

like Crampton, Spencer contended that the Due Process

Clause of the Fourteenth Amendment required a bifur-

cated trial so that evidence relevant solely to the issue

of punishment would not prejudice his case on guilt. We

rejected this contention, in the following language:

“To say that the two-stage jury trial in the English-

Connecticut style is probably the fairest, as some

commentators and courts have suggested, and with

which we might well agree were the matter before

us in a legislative or rule-making context, is a far

cry from a constitutional determination that this

method of handling the problem is compelled by the

Fourteenth Amendment. Two-part jury trials are

rare in our jurisprudence; they have never been

compelled by this Court as a matter of constitutional

law, or even as a matter of federal procedure. With

recidivism the major problem that it is, substantial

changes in trial procedure in countless local courts

around the country would be required were this

Court to sustain the contentions made by these pe-

titioners. This we are unwilling to do. To take

such a step would be quite beyond the pale of this

Court’s proper function in our federal system.” Id.,

at 567-568 (footnotes omitted).

McGAUTHA v. CALIFORNIA 27

Spencer considered the bifurcation issue in connection

with the State’s introduction of evidence of prior crimes;

we now consider the issue in connection with a de-

fendant’s choice whether to testify in his own behalf.

But even though this case cannot be said to be controlled

by Spencer, our opinion there provides a significant guide

to decision here.

A

Crampton’s argument for bifurcation runs as follows.

Under Malloy v. Hogan, 378 U. S. 1 (1964), and Griffin

y. California, 380 U. S. 609 (1965), he enjoyed a con-

stitutional right not to be compelled to be a witness

against himself. Yet under the Ohio single-trial pro-

cedure, he could remain silent on the issue of guilt only

at the cost of surrendering any chance to plead his case

on the issue of punishment. He contends that under

the Due Process Clause of the Fourteenth Amendment,

as elaborated in, e. g., Townsend v. Burke, 334 U. 8.

736 (1948); Specht v. Patterson, 386 U. S. 605 (1967);

and Mempa v. Ray, 389 U. S. 128 (1967), he had a

right to be heard on the issue of punishment and a

right not to have his sentence fixed without the benefit

of all the relevant evidence. Therefore, he argues, the

Ohio procedure possesses the flaw we condemned in Sim-

mons v. United States, 390 U. S. 377, 394 (1968); it

creates an intolerable tension between constitutional

rights. Since this tension can be largely avoided by a

bifurcated trial, petitioner contends that there is no le-

gitimate state interest in putting him to the election,

and that the single-verdict trial should be held invalid

in capital cases.

Simmons, however, dealt with a very different situation

from the one which confronted petitioner Crampton, and

not everything said in that opinion can be carried over

28 McGAUTHA v. CALIFORNIA

to this case without circumspection. In Simmons we held

it unconstitutional for the Federal Government to use at

trial the defendant’s testimony given on an unsuccessful

motion to suppress evidence allegedly seized in violation

of the Fourth Amendment. We concluded that to per-

mit such use created an unacceptable risk of deterring the

prosecution of marginal Fourth Amendment claims, thus

weakening the efficacy of the exclusionary rule as a sanc-

tion for unlawful police behavior. This was surely an

analytically sufficient basis for decision. However, we

went on to observe that the penalty thus imposed on the

good-faith assertion of Fourth Amendment rights was

“of a kind to which this Court has always been peculiarly

sensitive,” 390 U. S., at 393, for it involved the incrimina-

tion of the defendant out of his own mouth.

We found it not a little difficult to support this invoca-

tion of the Fifth Amendment privilege. We recognized

that [als an abstract matter” the testimony might be

voluntary, and that testimony to secure & benefit from

the Government is not ipso facto “eompelled” within the

meaning of the Self-Incrimination Clause. The distin-

guishing feature in Simmons’ case, we said, was that “the

‘benefit’? to be gained is that afforded by another pro-

vision of the Bill of Rights.” Id., at 393-394. Thus the

only real basis for holding that Fifth Amendment policies

were involved was the colorable Fourth Amendment

claim with which we had begun.

The insubstantiality of the purely Fifth Amendment

interests involved in Simmons was illustrated last Term

by the trilogy of cases involving guilty pleas. Brady v.

United States, 397 U. S. 742 (1970); McMann v. Richard -

son, 397 U. S. 759 (1970); Parker v. North Carolina, 397

U. S. 790 (1970). While in Simmons we relieved the

defendant of his “waiver” of Fifth Amendment rights

made in order to obtain a benefit to which he was ulti-

mately found not constitutionally entitled, in the trilogy

McGAUTHA v. CALIFORNIA 29

we held the defendants bound by “waivers” of rights un-

der the Fifth, Sixth, and Fourteenth Amendments made

in order to avoid burdens which, it was ultimately deter-

mined, could not constitutionally have been imposed. In

terms solely of Fifth Amendment policies, it is apparent

that Simmons had a far weaker claim to be relieved of his

ill-advised “waiver” than did the defendants in the guilty-

plea trilogy. While we have no occasion to question

the soundness of the result in Simmons and do not do

so, to the extent that its rationale was based on a ten-

sion” between constitutional rights and the policies be-

hind them, the validity of that reasoning must now be

regarded as open to question, and it certainly cannot be

given the broad thrust which is attributed to it by

Crampton in the present case.

The criminal process, like the rest of the legal system,

is replete with situations requiring “the making of dif-

ficult judgments” as to which course to follow. M cMann

v. Richardson, 397 U. S. 759, 769 (1970). Although a

defendant may have a right, even of constitutional di-

mensions, to follow whichever course he chooses, the

Constitution does not by that token always forbid re-

quiring him to choose. The threshold question is

whether compelling the election impairs to an appreciable

extent any of the policies behind the rights involved.

Analysis of this case in such terms leads to the conclusion

that petitioner has failed to make out his claim of a con-

stitutional violation in requiring him to undergo a unitary

trial.

B

We turn first to the privilege against compelled self-

incrimination. The contention is that where guilt and

punishment are to be determined by a jury at a single

trial the desire to address the jury on punishment unduly

encourages waiver of the defendant’s privilege to remain

30 McGAUTHA v. CALIFORNIA

silent on the issue of guilt, or, to put the matter another

way, that the single-verdict procedure unlawfully compels

the defendant to become a witness against himself on

the issue of guilt by the threat of sentencing him to death

without having heard from him, It is not contended,

nor could it be successfully, that the mere force of evi-

dence is compulsion of the sort forbidden by the privilege.

See Williams v. Florida, 399 U. 8. 78, 83-85 (1970).

It does no violence to the privilege that a person's

choice to testify in his own behalf may open the door to

otherwise inadmissible evidence which is damaging to his

case. See Spencer v. Texas, 385 U. S. 554, 561 and n. 7

(1967); ef. Michelson v. United States, 335 U. S. 469

(1948). The narrow question left open is whether it

is consistent with the privilege for the State to provide

no means whereby a defendant wishing to present evi-

dence or testimony on the issue of punishment may limit

the force of his evidence (and the State’s rebuttal) to

that issue. We see nothing in the history, policies, or

precedents relating to the privilege which requires such

means to be available.

So far as the history of the privilege is concerned, it

suffices to say that it sheds no light whatever on the

subject, unless indeed that which is adverse, resulting

from the contrast between the dilemma of which peti-

tioner complains and the historical excesses which gave

rise to the privilege. See generally 8 J. Wigmore, Evi-

dence § 2250 (McNaugton rev. ed. 1961); L. Levy, Ori-

gins of the Fifth Amendment (1968). Inasmuch as at

the time of framing of the Fifth Amendment and for

many years thereafter the accused in criminal cases was

not allowed to testify in his own behalf, nothing ap-

proaching Crampton’s dilemma could arise.

The policies of the privilege likewise are remote sup-

port for the proposition that defendants should be per-

mitted to limit the effects of their evidence to the issue

McGAUTHA v. CALIFORNIA 31

of punishment. The policies behind the privilege are

yaried, and not all are implicated in any given application

of the privilege. See Murphy v. Waterfront Commission,

978 U. S. 52, 55 (1964); see generally 8 J. Wigmore,

supra, § 2251, and sources cited therein, n. 2. It can

safely be said, however, that to the extent these policies

provide any guide to decision, see McKay, Book Review,

95 N. V. U. L. Rev. 1097, 1100-1101 (1960), the only

one affected to any appreciable degree is that of “cruelty.”

It is undeniably hard to require a defendant on trial

for his life and desirous of testifying on the issue of

punishment to make nice calculations of the effect of his

testimony on the jury’s determination of guilt. The

issue of cruelty thus arising, however, is less closely akin

to “the cruel trilemma of self-accusation, perjury or

contempt,” Murphy v. Waterfront Commission, 378 U. S.,

at 55, than to the fundamental requirements of fairness

and decency embodied in the Due Process Clauses.

Whichever label is preferred, appraising such considera-

tions is inevitably a matter of judgment as to which

individuals may differ; however, a guide to decision is

furnished by the clear validity of analogous choices with

which criminal defendants and their attorneys are quite

routinely faced.

It has long been held that a defendant who takes the

stand in his own behalf cannot then claim the privilege

against cross-examination on matters reasonably related

to the subject matter of his direct examination. See,

e. ., Brown v. Walker, 161 U. S. 591, 597-598 (1896);

Fitepatrick v. United States, 178 U. S. 304, 314-316

(1900); Brown v. United States, 356 U. S. 148 (1958).

It is not thought overly harsh in such situations to re-

quire that the determination whether to waive the privi-

lege take into account the matters which may be brought

out on cross-examination. It is also generally recognized

that a defendant who takes the stand in his own behalf

32 McGAUTHA v. CALIFORNIA

may be impeached by proof of prior convictions or the

like. See Spencer v. Texas, 385 U. S. 554, 561 (1967);

cf. Michelson v. United States, 335 U. S. 469 (1948);

but ef. Luck v. United States, 348 F. 2d 763 (CADC

1965); Palumbo v. United States, 401 F. 2d 270 (CA2

1968). Again, it is not thought inconsistent with the

enlightened administration of criminal justice to require

the defendant to weigh such pros and cons in deciding

whether to testify.

Further, a defendant whose motion for acquittal at

the close of the Government's case is denied must decide

whether to stand on his motion or put on a defense,

with the risk that in so doing he will bolster the Gov-

ernment case enough for it to support a verdict of guilty,

E. g., United States v. Calderon, 348 U. S. 160, 164 and

n. 1 (1954); 2 C. Wright, Federal Practice and Procedure

§ 463 (1969); cf. ABA Project on Minimum Standards

for Criminal Justice: Trial by Jury 107-108 (Tent.

Draft, 1968). But see Comment, The Motion for Ac-

quittal: A Neglected Safeguard, 70 Yale L. J. 1151

(1961) ; ef. Cephus v. United States, 324 F. 2d 893 (CADC

1963). Finally, only last Term in Williams v. Florida,

399 U. S. 78 (1970), we had occasion to consider a Florida

“notice-of-alibi” rule which put the petitioner in that

case to the choice of either abandoning his alibi defense

or giving the State both an opportunity to prepare a

rebuttal and leads from which to start. We rejected the

contention that the rule unconstitutionally compelled

the defendant to incriminate himself. The pressures

which might lead the defendant to furnish this arguably

“testimonial” and “incriminating” information arose

simply from

“the force of historical fact beyond both his and the

State's control and the strength of the State's case

built on these facts. Response to that kind of pres-

sure by offering evidence or testimony is not com-

1

SS oe a a r aa ee

McGAUTHA v. CALIFORNIA 33

pelled self-incrimination transgressing the Fifth and

Fourteenth Amendments.” Id., at 85.

We are thus constrained to reject the suggestion that a

desire to speak to one’s sentencer unlawfully compels a

defendant in a single-verdict capital case to incriminate

himself, unless there is something which serves to dis-

tinguish sentencing—or at least capital sentencing—from

the situations given above. Such a distinguishing factor

can only be the peculiar poignancy of the position of a

man whose life is at stake, coupled with the imponder-

ables of the decision which the jury is called upon to

make. We do not think that the fact that a defendant’s

sentence, rather than his guilt, is at issue creates a con-

stitutionally sufficient difference from the sorts of situa-

tions we have described. While we recognize the truth

of Mr. Justice Frankfurter’s insight in Green v. United

States, 365 U. S. 301, 304 (1961) (plurality opinion),

as to the peculiar immediacy of a personal plea by the

defendant for leniency in sentencing, it is also true that

the testimony of an accused denying the case against him

has considerably more force than counsel’s argument that

the prosecution’s case has not been proven. The relevant

differences between sentencing and determination of guilt

or innocence are not so great as to call for a differ-

ence in constitutional result. Nor does the fact that

capital, as opposed to any other, sentencing is in issue

seem to us to distinguish this case. See Williams v. New

York, 337 U. S. 241, 251-252 (1949). Even in non-

capital sentencing the sciences of penology, sociology, and

psychology have not advanced to the point that sentenc-

ing is wholly a matter of scientific calculation from objec-

tively verifiable facts.

We conclude that the policies of the privilege against

compelled self-incrimination are not offended when a

defendant in a capital case yields to the pressure to

testify on the issue of punishment at the risk of dam-

34 McGAUTHA v. CALIFORNIA

aging his case on guilt. We therefore turn to the con-

verse situation, in which a defendant remains silent on

the issue of guilt and thereby loses any opportunity to

address the jury personally on punishment.

C

It is important to identify with particularity the inter-

ests which are involved. Petitioner speaks broadly of a

right of allocution. This right, of immemorial origin,

arose in a context very different from that which con-

fronted petitioner Crampton.” See generally Barrett,

Allocution (pts. 1-2), 9 Mo. L. Rev. 115, 232 (1944). It

has been preserved in its original form in Ohio and in

many other States. What petitioner seeks, to be sure

for purposes not wholly unrelated to those served by the

right of allocution in former times, see Green v. United

States, 365 U. S. 301, 304 (1961) (opinion of Frankfurter,

J.), is nevertheless a very different procedure occurring in

a radically different framework of criminal justice.

Leaving aside the term “allocution,” it also appears

that petitioner is not claiming the right simply to be

heard on the issue of punishment. This Court has not

directly determined whether or to what extent the con-

cept of due process of law requires that a criminal de-

fendant wishing to present evidence or argument pre-

20 For instance, the accused was not permitted to have the assist-

ance of counsel, was not permitted to testify in his own behalf, was

not entitled to put on evidence in his behalf, and had almost no

possibility of review of his conviction. See, e. g., G. Williams, The

Proof of Guilt 4-12 (3d ed., 1963); 1 J. Stephen, A History of the

Criminal Law of England 308-311, 350 (1883).

21 Ohio Rev. Code Ann. § 2947.05 (Page 1954) provides:

“Before sentence is pronounced, the defendant must be informed

by the court of the verdict of the jury, or the finding of the court,

and asked whether he has anything to say as to why judgment should

not be pronounced against him.”

McGAUTHA v. CALIFORNIA 35

sumably relevant to the issues involved in sentencing

should be permitted to do so.* Assuming, without de-

ciding, that the Constitution does require such an

opportunity, there was no den of such a right in

Crampton’s case. The Ohio Constitution guarantees

defendants the right to have their counsel argue in sum-

mation for mercy as well as for acquittal. Shelton v.

State, 102 Ohio St. 376, 131 N. E. 704 (1921). The

extent to which evidence going solely to the issue of

punishment is admissible under Ohio law is unclear, see

Ashbrook v. State, 49 Ohio App. 298, 197 N. E. 214 (Ct.

App. 1935), but in any event it seems apparent that Ohio

22In Williams v. New York, 337 U. S. 241 (1949), a trial judge

had disregarded a jury recommendation of mercy and imposed the

death sentence, in part because of a presentence report based on

hearsay. The Court held that the Due Process Clause did not

require a State to choose between prohibiting the use of such

reports and holding an adversary hearing at which the defendant

could cross-examine the sources of the information contained therein.

In Specht v. Patterson, 386 U. S. 605, 606 (1967), the Court char-

acterized Williams broadly as holding that the Fourteenth Amend-

ment “did not require a judge to have hearings and to give a

convicted person an opportunity to participate in those hearings

when he came to determine the sentence to be imposed.” The

Court stated that it adhered to Williams, but declined to extend

it to a separate determination whether a convicted person should be

committed to an institution for treatment under the Colorado Sex

Offenders Act. Id., at 608. See also Mempa v. Rhay, 389 U. 8. 128

(1967).

In Green v. United States, 365 U. S. 301, 304 (1961), Mr. Justice

Frankfurter, in an opinion for four members of the Court, spoke

eloquently of the desirability of permitting a defendant’s personal

plea for mercy, but in Hill v. United States, 368 U. S. 424 (1962),

the Court held that the failure of a sentencing judge to ask a

defendant represented by counsel whether he personally had any-

thing to say, though a violation of Federal Rule of Criminal Pro-

cedure 32 (a), was not an error of constitutional dimensions. The

Court reserved the issue whether silencing a defendant who wished

to speak would rise to that level. Id., at 429. We have not since

had occasion to deal with this or related problems at length.

PPP

36 McGAUTHA v. CALIFORNIA =

judges, as one would expect, take a lenient view of the

admissibility of evidence offered by a defendant on trial

for his life. As the present case illustrates, an accused

can put before the jury a great deal of background evi-

dence with at best a tenuous connection to the issue of

guilt. The record in Crampton’s case does not reveal

that any evidence offered on the part of the defendant

was excluded on the ground that it was relevant solely

to the issue of punishment.

On the other hand, petitioner is not seeking vindica-

tion for his interest in making a personal plea for mercy.”

Even in a bifurcated trial, the defendant could be re-

stricted to the giving of evidence, with argument to be

made by counsel only. Petitioner’s contention therefore

comes down to the fact that the Ohio single-verdict trial

may deter the defendant from bringing to the jury's

attention evidence peculiarly within his own knowledge,

and it may mean that the death verdict will be returned

by a jury which never heard the sound of his voice. We

do not think that the possibility of the former is suffi-

ciently great to sustain petitioner’s claim that the single-

verdict trial may deprive the jury of a rational basis for

fixing sentence. Assuming that in this case there was

relevant information solely within petitioner’s knowl-

edge, we do not think the Constitution forbids a require-

ment that such evidence be available to the jury on all

issues to which it is relevant or not at all. As to the

largely symbolic value represented by the latter interest,

23 It may be noted in passing

i dress the j

to make an unsworn statement on which he is not subject to cros-

examination, and the deprecating view of this opportunity taken by

those familiar with it, all discussed in Ferguson v. Georgia, 365 U. 8.

570 (1961).

McGAUTHA v. CALIFORNIA 37

Ohio has provided for retention of the ritual of allocu-

tion, albeit only in its common-law form, precisely to

avoid the possibility that a person might be tried, con-

yicted, and sentenced to death in complete silence. We

have held that failure to ensure such personal participa-

tion in the criminal process is not necessarily a constitu-

tional flaw in the conviction. Hill v. United States, 368

U. S. 424 (1962). We do not think that Ohio was re-

quired to provide an opportunity for petitioner to speak

to the jury free from any adverse consequences on the

issue of guilt. We therefore reject this branch of peti-

tioner’s argument as well.

V

Before we conclude this opinion, it is appropriate for

us to make a broader observation than the issues raised by

these cases strictly call for. It may well be, as the Amer-

ican Law Institute and the National Commission on

Reform of Federal Criminal Laws have concluded, that

bifurcated trials and criteria for jury sentencing discretion

are superior means of dealing with capital cases if the

death penalty is to be retained at all. But the Federal

Constitution, which marks the limits of our authority in

these cases, does not guarantee trial procedures that are

the best of all worlds, or that accord with the most en-

lightened ideas of students of the infant science of crim-

inology, or even those that measure up to the individual

predilections of members of this Court. See Spencer v.

Texas, 385 U. S. 554 (1967). The Constitution requires

no more than that trials be fairly conducted and that

guaranteed rights of defendants be scrupulously respected.

From a constitutional standpoint we cannot conclude

that it is impermissible for a State to consider that the

compassionate purposes of jury sentencing in capital cases

are better served by having the issues of guilt and punish-

—— AO IL

38 McGAUTHA v. CALIFORNIA

ment determined in a single trial than by focusing the

jury’s attention solely on punishment after the issue of

guilt has been determined.

Certainly the facts of these gruesome murders bespeak

no miscarriage of justice. The ability of juries, unas-

sisted by standards, to distinguish between those defend-

ants for whom the death penalty is appropriate punish-

ment and those for whom imprisonment is sufficient is

indeed illustrated by the discriminating verdict of the

jury in McGautha’s case, finding Wilkinson the les

culpable of the two defendants and sparing his life.

The procedures which petitioners challenge are those by

which most capital trials in this country are conducted,

and by which all were conducted until a few years ago.

We have determined that these procedures are consistent

with the rights to which petitioners were constitutionally

entitled, and that their trials were entirely fair. Having

reached these conclusions we have performed our task of

measuring the States’ process by federal constitutional

standards, and accordingly the judgment in each of these

cases is

Affirmed.

APPENDIX

Model Penal Code § 210.6 (Proposed Official Draft,

gr Death Sentence Excluded. When a defendant is

found guilty of murder, the Court shall impose sentence

for a felony of the first degree if it is satisfied that:

(a) none of the aggravating circumstances enumerated

in Subsection (3) of this Section was established by the

evidence at the trial or will be established if further

proceedings are initiated under Subsection (2) of this

Section; or

(b) substantial mitigating circumstances, established

by the evidence at the trial, call for leniency; or

(e) the defendant, with the consent of the prosecuting

attorney and the approval of the Court, pleaded guilty

to murder as a felony of the first degree; or

(d) the defendant was under 18 years of age at the

time of the commission of the crime; or

(e) the defendant’s physical or mental condition calls

for leniency; or

(f) although the evidence suffices to sustain the ver-

dict, it does not foreclose all doubt respecting the defend-

ant’s guilt.

(2) Determination by Court or by Court and Jury.

Unless the Court imposes sentence under Subsection (1)

of this Section, it shall conduct a separate proceeding

to determine whether the defendant should be sentenced

for a felony of the first degree or sentenced to death. The

proceeding shall be conducted before the Court alone

if the defendant was convicted by a Court sitting without

a jury or upon his plea of guilty or if the prosecuting

attorney and the defendant waive a jury with respect to

sentence. In other cases it shall be conducted before

the Court sitting with the jury which determined the

39

40 McGAUTHA v. CALIFORNIA

defendant’s guilt or, if the Court for good cause shown

discharges that jury, with a new jury empanelled for

the purpose.

In the proceeding, evidence may be presented as to

any matter that the Court deems relevant to sentence,

including but not limited to the nature and circumstances

of the crime, the defendant’s character, background, his-

tory, mental and physical condition and any of the aggra-

vating or mitigating circumstances enumerated in Sub-

sections (3) and (4) of this Section. Any such evidence,

not legally privileged, which the court deems to have

probative force, may be received, regardless of its admis-

sibility under the exclusionary rules of evidence, provided

that the defendant’s counsel is accorded a fair oppor-

tunity to rebut such evidence. The prosecuting attorney

and the defendant or his counsel shall be permitted to

present argument for or against sentence of death.

The determination whether sentence of death shall be

imposed shall be in the discretion of the Court, except

that when the proceeding is conducted before the Court

sitting with a jury, the Court shall not impose sentence

of death unless it submits to the jury the issue whether

the defendant should be sentenced to death or to im-

prisonment and the jury returns a verdict that the sen-

tence should be death. If the jury is unable to reach

a unanimous verdict, the Court shall dismiss the jury

and impose sentence for a felony of the first degree.

The Court, in exercising its discretion as to sentence, |

and the jury, in determining upon its verdict, shall take

into account the aggravating and mitigating circum-

stances enumerated in Subsections (3) and (4) and any

other facts that it deems relevant, but it shall not impose

or recommend sentence of death unless it finds one of the

aggravating circumstances enumerated in Subsection (3)

and further finds that there are no mitigating circum-

e

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McGAUTHA v. CALIFORNIA 41

stances sufficiently substantial to call for leniency. When

the issue is submitted to the jury, the Court shall so

instruct and also shall inform the jury of the nature of

the sentence of imprisonment that may be imposed, in-

cluding its implication with respect to possible release

upon parole, if the jury verdict is against sentence of

death.

[Alternative version of Subsection (2), providing for

determination of sentence by the Court in all cases,

omitted. ]

(3) Aggravating Circumstances.

(a) The murder was committed by a convict under

sentence of imprisonment.

(b) The defendant was previously convicted of an-

other murder or of a felony involving the use or threat

of violence to the person.

(e) At the time the murder was committed the de-

fendant also committed another murder.

(d) The defendant knowingly created a great risk of

death to many persons.

(e) The murder was committed while the defendant

was engaged or was an accomplice to the commission of,

or an attempt to commit, or flight after committing or

attempting to commit robbery, rape or deviate sexual

intercourse by force or threat of force, arson, burglary

or kidnapping.

(f) The murder was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an

escape from lawful custody.

(g) The murder was committed for pecuniary gain.

(h) The murder was especially heinous, atrocious or

cruel, manifesting exceptional depravity.

(4) Mitigating Circumstances.

(a) The defendant has no significant history of prior

criminal activity.

42 McGAUTHA v. CALIFORNIA

(b) The murder was committed while the defendant

was under the influence of extreme mental or emotional

disturbance.

(c) The victim was a participant in the defendant’s

homicidal conduct or consented to the homicidal act.

(d) The murder was committed under circumstances

which the defendant believed to provide a moral justifi-

cation or extenuation for his conduct.

(e) The defendant was an accomplice in a murder com-

mitted by another person and his participation in the

homicidal act was relatively minor.

(f) The defendant acted under duress or under the

domination of another person.

(g) At the time of the murder, the capacity of the

defendant to appreciate the criminality [wrongfulness]

of his conduct or to conform his conduct to the require-

ments of law was impaired as a result of mental disease

or defect or intoxication.

(h) The youth of the defendant at the time of the

crime.

SUPREME COURT OF THE UNITED STATES

Nos. 203 & 204.—Ocrozer Term, 1970

Dennis gene the, On Writ of Certiorari to the

x8 5 Supreme Court of Cali-

* fornia.

State of California.

james Edward Crampton,

Petitioner, On Writ of Certiorari to the

20⁴ v. Supreme Court of Ohio.

State of Ohio.

[May 3, 1971]

Mr. Justice BLAck, concurring.

I concur in the Court’s judgments and in substantially

all of its opinion. However, in my view, this Court’s

task is not to determine whether the petitioners’ trials

were “fairly conducted.” Ante, at 37. The Constitu-

tion grants this Court no power to reverse convictions

because of our personal beliefs that state criminal pro-

cedures are “unfair,” “arbitrary,” “capricious,” “unrea-

sonable,” or “shocking to our conscience.” See, e. g.,

Rochin v. California, 342 U. S. 165, 174 (1952) (Back,

J., concurring) ; United States v. Wade, 388 U. S. 218,

243 (1967) (Back, J., dissenting and concurring). Our

responsibility is rather to determine whether petitioners

have been denied rights expressly or impliedly guaran-

teed by the Federal Constitution as written. I agree

with the Court’s conclusions that the procedures em-

ployed by California and Ohio to determine whether

capital punishment shall be imposed do not offend the

Due Process Clause of the Fourteenth Amendment.

Likewise, I do not believe that petitioners have been

deprived of any other right explicitly or impliedly guar-

2 McGAUTHA v. CALIFORNIA

anteed by the other provisions of the Bill of Rights

The Eighth Amendment forbids “cruel and unusual

punishments.” In my view, these words cannot be read

to outlaw capital punishment because that penalty was

in common use and authorized by law here and in the

countries from which our ancestors came at the time

the Amendment was adopted. It is inconceivable to

me that the Framers intended to end capital punishment

by the Amendment. Although some people have urged

that this Court should amend the Constitution by inter-

pretation to keep it abreast of modern ideas, I have

never believed that lifetime judges in our system have

any such legislative power. See Harper v. Virginia Board

of Elections, 383 U. S. 663, 670 (1966) (Brack, J.,

dissenting).

SUPREME COURT OF THE UNITED STATES

No. 204.—Ocroser Term, 1970

James Edward Crampton,

Petitioner, On Writ of Certiorari to the

v. Supreme Court of Ohio.

State of Ohio.

[May 3, 1971]

Mr. Justice Dove.as, with whom Mr. Justice BREN-

wan and Mr. Justice MARSHALL concur, dissenting.

In my view the unitary trial which Ohio provides in

first-degree murder cases does not satisfy the require-

ments of procedural Due Process under the Fourteenth

Amendment.

Ohio makes first-degree murder punishable by death

“unless the jury trying the accused recommends mercy,

in which case the punishment shall be imprisonment

for life.” Ohio Rev. Code § 2901.01. Petitioner was in-

dicted and tried for murder in the first degree for the

killing of his wife. His pleas were “not guilty” and

“not guilty by reason of insanity.”

The court, after a psychiatric examination, concluded

that petitioner was sane and set the case for trial before a

jury. The issues of guilt, punishment and insanity were

simultaneously tried and submitted to the jury.

Petitioner did not testify at the trial. But a psy-

chiatrist testified on his behalf, offering medical records

of his case from two state hospitals. His mother testi-

fied concerning his childhood, education, and background.

On the issue of punishment the jury was charged:

“You must not be influenced by any consideration

of sympathy or prejudice. It is your duty to care-

fully weigh the evidence, to decide all disputed

questions of fact, to apply the instructions of the

2 CRAMPTON v. OHIO

court to your finding, and to render your verdict

accordingly. In fulfilling your duty, your efforts

must be to arrive at a just verdict.

“Consider all the evidence and make your find.

ings with intelligence and impartiality, and without

bias, sympathy or prejudice, so that the State of

Ohio and the defendant will feel their case was fairly

and impartially tried.

He was found guilty of murder in the first degree with-

out a recommendation of mercy and the court sentenced

him to death. The Supreme Court of Ohio sustained

the single-verdict procedure and the absolute discretion

of the jury in the matter of punishment. 18 Ohio St. 2d

182, 248 N. E. 2d 614.

On the issue of guilt the State was required to produce

evidence to establish it. On the issue of insanity the

burden was on petitioner to prove it by a preponderance

of the evidence, State v. Austin, 71 Ohio St. 317, 73

N. E. 2d 218. On the issue of mercy viz. life imprison-

ment rather than death, petitioner under Ohio law was

banned from offering any specific evidence directed only

toward a claim of mercy. Ashbrook v. State, 49 Ohio

App. 298, 197 N. E. 214.

If a defendant wishes to testify in support of the

defense of insanity or in mitigation of what he is

charged with doing, he can do so only if he surrenders

his right to be free from self-incrimination. Once he

takes the stand he can be cross-examined not only as

respects the crime charged but also on other misdeeds.

In Ohio impeachment covers a wide range of subjects:

prior convictions for felonies and statutory misde-

meanors, pending indictments,’ prior convictions in mili-

1 State v. Murdock, 172 Ohio St. 221, 174 N. E. 2d 543. And

see State v. Pollard, 21 Ohio St. 2d 171, 256 N. E. 2d 620.

2 State v. Hecter, 19 Ohio St. 2d 167, 249 N. E. 2d 912.

_—

Fo MP ae oe ae Uae hw ill c

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*

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CRAMPTON v. OHIO 3

tary service and dishonorable discharges.’ Once he

testifies he can be recalled for cross-examination in the

State’s case in rebuttal.

While the defendant in Ohio has the right of allocu-

tion, that right even in first-degree murder cases occurs

only after the jury’s verdict has been rendered. Unless

there is prejudicial error vitiating the conviction or in-

sufficient evidence to convict, the jury’s verdict stands

and the judge must enter the verdict. Allocution,

though mandatory,® is thus a ritual only.”

3 State v. Williams, 85 Ohio App. 236, 88 N. E. 2d 420. Merely

taking the stand puts credibility in issue. Hamilton v. State, 39

Ohio App. 153, 177 N. E. 221.

4 Johns v. State, 42 Ohio App. 412, 182 N. E. 356.

State v. Frohner, 150 Ohio St. 53, 80 N. E. 2d 18; Hoppe v.

State, 29 Ohio App. 467, 163 N. E. 715.

* Silsbg v. State, 119 Ohio St. 314, 164 N. E. 2d 232. °

At common law the defendant in a felony case had a right, called

allocution, to be asked formally whether he had ‘any thing to

offer why judgment should not be awarded against him.’ . . since

the common law judge generally had no discretion as to the quantum

of punishment in felony cases, the point of his question to the

defendant was not to elicit mitigating evidence or a plea for leniency,

but to give the defendant a formal opportunity to present one of

the strictly defined legal reasons which required the avoidance or

delay of sentencing: he was not the person convicted, he had benefit

of clergy or a pardon, he was insane, or if a woman, she was

pregnant.” Note, Procedural Due Process at the Judicial Sentencing,

81 Harv. L. Rev. 821, 832-833.

“The common law right of the defendant to be asked if he wishes

to make a statement on his own behalf at the time of sentencing

would appear still to be recognised in more than half of the

American jurisdictions, although it finds expression in many forms

and comes from many sources. In at least one state, the right

rises to a constitutional level See R. I. Const art. I, 5 10;

Robalewski v. Superior Court, 197 A. 2d 751 ( i. 1964). In

many more states the right is guaranteed by statute. For a repre-

sentative sample, see Cal. Penal Code §§ 1200, 1201 (1956); Iowa

Code Ann. § 789.8 (1950); Kan. Gen. Stat. Ann. § 62-1510 (1964) ;

— ——

4 CRAMPTON v. OHIO

If the right to be heard were to be meaningful, it would

have to accrue before sentening; yet, except for allocu-

tion, any attempt on the part of the accused during the

trial to say why the judgment of death should not be

pronounced against him entails a surrender of his right

against self-incrimination. It therefore seems plain that

the single-verdict procedure is a burden on the exer-

cise of the right to be free of compulsion as respects

self-incrimination. For he can testify on the issue of

insanity or on other matters in extenuation of the crime

charged only at the price of surrendering the protection

of the Self Incrimination Clause of the Fifth Amend-

ment made applicable to the States by the Fourteenth.

On the question of insanity and punishment the ac-

cused should be under no restraints when it comes to

putting before the court and the jury all the relevant

facts. Yet he cannot have that freedom where these

issues are tied to the question of guilt. For on that issue

he often dare not speak lest he in substance be tried not

for this particular offense but for all the sins he ever

committed.

Petitioner also had to surrender much of his right to

a fair hearing on the issue of punishment to assert his

defense of insanity. To support his insanity plea he had

Mo. Rev. Stat. §§ 546.570, 546.580 (1953); N. Y. Code Crim. Proc.

§ 480 (1958); Okla. Stat. Ann. tit. 22, §970 (1958); Tex. Code

Crim. Proc. art. 42.07 (1966); Wash. Rev. Code Ann. § 10.64.040

(1961). See also 48 Iowa L. Rev. 172, 173-74 n. 11 (1962). Ina

few more jurisdictions, the right is secured by rules of court. See,

e. g. N. J. Crim. Prac. Rules, Superior and County Courts, Rule

3:7-10 (d) (1967); Fed. R. Crim. R. 32 (a)(1). See also F. R. D.

192-193 (1966); Hill v. United States, 368 U. S. 424 (1962);

Green v. United States, 365 U. S. 301 (1961). In other jurisdic-

tions, case law is the only source of the defendant’s right. See

Barrett, Allocution, 9 Mo. L. Rev. 115, 126-40 (1944).” Sentencing

Alternatives and Procedures, Advisory Committee on Sentencing and

Review, Amer. Bar Assoc. (Dec. 1967) pp. 254-255.

CRAMPTON v. OHIO 5

to submit his hospital records, both of which contained

information about his convictions and imprisonment for

prior crimes and about his use of drugs as well.

Of course a defendant’s character witnesses can be

examined respecting the defendant’s other crimes.

Michelson v. United States, 335 U. S. 469. But that is

an effort to weigh the credibility of the proffered testi-

mony as to character. “Thus, while the law gives de-

fendant the option to show as a fact that his reputation

reflects a life and habit incompatible with commission

of the offense charged, it subjects his proof to tests of

credibility designed to prevent him from profiting by a

mere parade of partisans.” Id., at 479. It is a far

cry, however, to let hospital records tendered on an issue

of insanity to color a jury’s judgment on the wholly dif-

ferent issue of guilt.

The greatest comfort the majority has is this Court’s

recent decision in Spencer v. Texas, 385 U. S. 554, hold-

ing that a two-stage trial is not required when a State

under a habitual-offender statute seeks to introduce on

the issue of guilt in a unitary trial evidence of a de-

fendant’s prior convictions. Yet Spencer was a five-to-

four decision which meant it barely passed muster as a

constitutional procedure. The dissent of Chief Justice

Warren, in which three other Justices joined, will have, I

think, endurance beyond the majority view.

That dissent, id., 569 et seq., points out the prejudice to

an accused if, prior to a finding of guilt, earlier convictions

are admissible in evidence. There is mounting evidence

shown in court decisions (Id., at 585) and in modern state

procedures that that practice does not comport with

fairness implicit in due process. Chief Justice Warren

said: “In England, the prejudice which results from proof

of prior crimes before a finding of guilt has been recog-

nized for more than a century, and the rule has been that

6 CRAMPTON v. OHIO

a finding as to prior crimes is made in a separate hearing

after the finding of guilt.” Id., at 586.

We should not square with Due Process the practice

which receives impetus in Ohio where reports on a man’s

insanity contain references to his criminal record which

most assuredly prejudice his trial on the issue of guilt.*

We have already traveled part of the distance required

for reversal in the present case. In Jackson v. Denno,

378 U. S. 368, we held that whether on controverted

facts à confession was voluntary must be tried by a

State in a separate proceeding. We pointed out the

vice in allowing the jury that determines guilt also to

determine whether the confession was voluntary. We

said:

“Tt is difficult, if not impossible, to prove that a

confession which a jury has found to be involun-

tary has nevertheless influenced the verdict or that

its findiug of voluntariness, if this is the course it

took, was affected by the other evidence showing

the confession was true. But the New York pro-

cedure poses substantial threats to a defendant’s

constitutional rights to have an involuntary con-

fession entirely disregarded and to have the coercion

issue fairly and reliably determined.” Id., at 389.

8 As Chief Justice Warren said:

“whether or not a State has recidivist statutes on its books, it is

well established that evidence of prior convictions may not be used

by the State to show that the accused has a criminal disposition and

that the probability that he committed the crime currently charged

is increased. While this Court has never held that the use of prior

of state courts, suggest that evidence of prior crimes introduced for

no purpose other than to show criminal disposition would violate

the Due Process Clause.” Spencer v. Texas, 385 U. S., at 572-574.

CRAMPTON v. OHIO 7

Yet the risk of prejudice in Jackson v. Denno seems

minor compared with the risk of prejudice in a unitary

trial where the issues of guilt, insanity, and punishment

are combined, submitted to one jury with evidence of

prior convictions coming in under cover of hospital

records pertinent to insanity, and certainly likely to be

prejudicial on the issue of guilt. I see no way to make

this unitary trial fair in the sense of procedural Due

Process unless the issue of insanity is segregated and

tried to a separate jury.

As noted, evidence as to whether the jury should show

mercy to him is excluded from consideration, and the

jury is admonished not to show any “sympathy” to the

accused.

Under Ohio law the determination of whether to grant

or withhold mercy is exclusively for the jury and cannot

be reviewed by either the trial court or an appellate

court. The first time that specific mention of mercy

to the jury is permissible is during closing argument

where the defendant is permitted “to argue to the jury

the desireability, advisability or wisdom of recommend-

ing mercy.”** While there was not a specific instruc-

tion on mercy in the instant case (beyond the instruction

to make findings without bias, sympathy or prejudice),

the Ohio courts have approved instructions “to consider

and determine whether or not, in view of all the circum-

stances and facts leading up to and attending the alleged

homicide as disclosed by the evidence, you should or

should not make such recommendation [on mercy].”

Turner v. State, 21 Ohio Law Abs. 276; State v. Klumpp, 15

Ohio Ops. 2d 461, 175 N. E. 2d 767.

1° State v. Ames, 50 Ohio St. Law Abs. 311, 80 N. E. 2d 168.

The result is the same if the sentencing decision is based on a guilty

plea or a jury waiver. State v. Lucear, 93 Ohio App. 281, 109

N. E. 2d 39; State v. Ferguson, 175 Ohio St. 390, 195 N. E. 2d 794.

11 Shelton v. State, 102 Ohio St. 376, 131 N. E. 704 (Syllabus).

—— 1

8 CRAMPTON v. OHIO

Howell v. State, 102 Ohio St. 411, 131 N. E. 706. This

instruction means that while the jury may not consider

general sociological or environmental data, it may con-

sider any such factors which have specifically been ad-

mitted into evidence in the case for other purposes.

State v. Caldwell, 135 Ohio St. 424, 21 N. E. 2d 343."

Ashbrook v. State, supra, holds that evidence “directed

specifically toward a claim for mercy” cannot be intro-

12 In Caldwell the jury was initially instructed: “[{W]hether you

recommend or withhold mercy is a matter solely within your di-

cretion, calling for the exercise of your very best and most profound

judgment, not motivated by considerations of sympathy or as 3

means of escaping a hard or disagreeable duty, but must be con-

sidered by you in the light of all the circumstances of the case with

the jury returned for special instructions and the following occurred:

Court: “You should determine whether or not in your discretion

character of the crime and the attending circumstances.”

Foreman: “What are extenuating circumstances? Are they some-

thing which we can determine in our own judgment alone?”

Court: “No, if there are any, you must determine them from the

evidence.”

Foreman: “Well, then, may we consider sociological matters and

environment in determining this question of granting mercy?”

Court: “No—they have nothing whatever to do with this case.”

At this point defense counsel requested the following instruction:

“In determining whether or not in your discretion you shall grant

mercy to the defendant, you may consider environmental factors

and sociological conditions, and in determining whether or not

these factors exist you shall consider all the evidence permitted to

go to you in this case, and all reasonable inferences to be derived

therefrom. You may also consider, in making up your mind on

the question of mercy, the appearance, demeanor and actions of

the defendant as you have seen him here in open cou: *

The Ohio Supreme Court held it was not error to give this instrue-

tion because it was “substantially identical with those contained in

the answers of the court to the jury, and its subject matter was

covered in the general charge. There was no occasion for repe-

tition.” 21 N. E. 2d, at 344-345.

CRAMPTON v. OHIO 9

duced. Yet Howell, Caldwell, and Ashbrook show that

once evidence is admitted for other purposes the jury

is free to consider it for any purpose. In Caldwell the

objection of the court was to going outside the record

for evidence in considering sociological and environ-

mental matters.

This background evidence often comes in through

character witnesses. In one case a defendant presented

12 witnesses who testified to his reputation as a peaceful

and law-abiding citizen of good character.“ And even

in the instant case petitioner’s mother testified con-

cerning his childhood, education, and background.

But the right of allocution is at best partial and incom-

plete when the accused himself is barred from testifying

on the question of sentencing, and when the only evi-

dence admissible comes from other people or is intro-

duced for different and more limited purposes.

The line between the legislative function and the

judicial function is clear. The State can make criminal

such conduct as it pleases, save as it is limited by the

Constitution itself, as for example by the ban on ex post

facto laws in Article I, § 10, or by the Fourteenth Amend-

ment, as where religious exercises or freedom of speech

or of the press is involved. It can punish such conduct by

such penalties as it chooses, save as its sanctions run afoul

of the ban in Article I, § 10 against bills of attainder or the

prohibition against cruel and unusual punishments con-

tained in the Eighth Amendment. The Court is not

concerned with the wisdom of state policies, only with

the constitutional barriers to state action. Procedural

Due Process is one of those barriers, as revealed over and

13 State v. Lucear, supra, n. 2.

There have been recurring demands that the Due Process Clause

be abolished. See Clark, Some Recent Proposals for Constitutional

Amendment, 12 Wis. L. Rev. 313, 324-326 (1937). Others have

suggested that due process—apart from the specifics in the Bill of

Rights—should mean only such notice, procedures, hearings or trials

10 CRAMPTON v. OHIO

again in our decisions. Some of its requirements are

explicit in the Bill of Rights—a speedy trial, Klopfer v.

North Carolina, 386 U. S. 213; a trial by jury, Duncan

v. Louisiana, 391 U. S. 145; the right to counsel, Gideon

v. Wainwright, 372 U. S. 335; the right to confrontation,

Pointer v. Texas, 380 U. S. 400—all as made applicable

to the States by reason of the Fourteenth Amendment.

Other requirements of procedural Due Process are only

implied, not expressed; their inclusion or exclusion turns

on the basic question of fairness. In that category are

notice and the right to be heard. Schroeder v. City of

New York, 371 U. S. 208; Sniadach v. Family N.. ane

Corp., 305 U. S. 337. It is a phase of that right to be

heard that looms large here.

Crampton had the constitutional right as a matter of

procedural due process to be heard on the issue of punish-

ment. We emphasized in Townsend v. Burke, 334 U. 8.

736, 741, how the right to be heard through counsel

as are prescribed by Congress or the States. See Burns, The Death

of E Pluribus Unum, 19 DeP. L. Rev. 651, 682 (1971).

The critics of the existing regime have been numerous. Mr. Jus-

tice Frankfurter once said: “. . . the ultimate justification for nulli-

fying or saying that what Congress did, what the President did, what

the legislature of Massachusetts or New York or any other State did

was beyond its power, is that provision of the Constitution which

protects liberty against infringement without due process of law.

There are times, I can assure you—more times than once or twice—

when I sit in this chair and wonder whether that isn’t too great a

power to give to any nine men, no matter how wise, how well disci-

plined, how disinterested. It covers the whole gamut of political,

social, and economic activities.” Of Law and Life and Other Things

129 (1965).

Yet none of us, I dare say, would conclude that (apart from con-

stitutional specifics) any notice, any procedure, any form of hearings,

any type of trial prescribed by any legislature would pass muster

under procedural due process. Our present disagreement relates to

what is essential for a fair trial, if the conventional, historic stand-

ards of procedural due process are to apply.

CRAMPTON v. OHIO 11

might be crucial to avoid sentencing on a foundation “ex-

tensively and materially false.” But the right to be

heard is broader than that; it includes the right to speak

for one’s self. As was said in Green v. United States, 365

U. S. 301, 304 (plurality opinion):

“We are not unmindful of the relevant major

changes that have evolved in criminal procedure

since the seventeenth century—the sharp decrease in

the number of crimes which were punishable by

death, the right of the defendant to testify on his

own behalf, and the right to counsel. But we see

no reason why a procedural rule should be limited

to the circumstances under which it arose if reasons

for the right it protects remain. None of these

modern innovations lessens the need for the de-

fendant, personally, to have the opportunity to

present to the court his plea in mitigation. The

most persuasive counsel may not be able to speak

for a defendant as the defendant might, with halt-

ing eloquence, speak for himself.”

The right to be heard, explicit in Rule 32 (a) of the

Federal Rules of Criminal Procedure, may at times be

denied, absent a showing of “aggravating circumstances”

or of a claim that the defendant would have anything

to say. See Hill v. United States, 368 U. S. 424. But

where the opportunity to be heard on the sentence is de-

nied both counsel and the defendant, the denial reaches

constitutional proportions. See United States v. John-

son, 315 F. 2d 714, 717.

Whether the voice speaking for the defendant be

counsel’s voice or the defendant’s, the right to be heard

is often vital at the sentencing stage before the law decides

the punishment of the person found guilty. Mempa v.

Rhay, 389 U. S. 128, 135. The hearing, whether on guilt

or punishment, is governed by the requirements of Due

12 CRAMPTON v. OHIO

Process. We said in Specht v. Patterson, 386 U. S. 605,

610:

‘Due process, in other words, requires that he be

present with counsel, have an opportunity to be

heard, be confronted with witnesses against him,

have the right to cross-examine, and to offer evidence

of his own.”

If one insists, as in Hill, that there be “aggravating

circumstances”. to raise this right to be heard to a con-

stitutional level, all must agree that no one can ever

show more “aggravating” circumstances than the fact

that he stands on the verge of receiving the death

sentence.

At least then, the right of allocution becomes a con-

stitutional right—the right to speak to the issues touch-

ing on sentencing before one’s fate is sealed. Yet

where the trial is a unitary one, the right of allocution

even in a capital case is theoretical, not real, as the Ohio

procedure demonstrates. Petitioner also had the protec-

tion of the Self-Incrimination Clause of the Fifth Amend-

ment. To obtain the benefit of the former he would

have to surrender the latter. Mr. Justice Haran,

speaking for the Court, said in Simmons v. United States,

390 U. S. 377, 394 “. . . we find it intolerable that one

constitutional right should have to be surrendered in

order to assert another.”

We made that statement in the context of a case where

an accused testified on a motion to suppress evidence in

order to protect his Fourth Amendment rights but later

discovered tliat the testimony would be used by the

prosecution as “a strong piece of evidence against him.”

Id., at 391. We held that the protection of his Fourth

Amendment rights did not warrant surrender or dilution

of his Fifth Amendment rights.

CRAMPTON v. OHIO 13

In United States v. Jackson, 390 U. S. 570, we held

unenforceable a federal statute which made the death

penalty applicable only to those who contested their

guilt before a jury. In that case the “undeniable tension”

was between Fifth Amendment rights and Sixth Amend-

ment rights. Mr. Justice Srewart speaking for the

Court said: “The inevitable effect of any such provision is,

of course, to discourage assertion of the Fifth Amendment

right not to plead guilty and to deter exercise of the

Sixth Amendment right to demand a jury trial. If the

provision had no other purpose or effect than to chill

the assertion of constitutional rights by penalizing those

who choose to exercise them, then it would be patently

unconstitutional.” Id., at 581.

That “undenial tension” between two constitutional

rights, which led to that result in Jackson and to a reversal

in Simmons, should lead to a reversal here. For the

unitary trial or single-verdict trial in practical effect

allows the right to be heard on the issue of punishment

only by surrendering the protection of the Self-Incrimi-

nation Clause of the Fifth Amendment.

The Court of Appeals for the Second Circuit indicated

in United States v. Branker, 418 F. 2d 378, 380, that

Simmons prevented an accused’s testimony at a hearing

on his application to proceed in forma pauperis and for

appointment of counsel to be used by the prosecution as

part of its direct case against him:

“The defendant should enjoy his constitutional

rights to counsel and to appeal and the means of

supporting his assertion of these rights by his own

testimony without running the risk that thereby he

may be incriminating himself with respect to the

charges pending against him.” Id., at 380.

The same result was reached by the Court of Appeals

for the District of Columbia-in Melson v. Sard, 402 F.

14 CRAMPTON v. OHIO

2d 653, which held that a parolee who testifies on a

hearing in revocation of his parole may give testimony

that may not be used in a subsequent criminal trial in

violation of the Self-Incrimination Clause of the Fifth

Amendment:

“If a parolee is not given the full and free ability

to testify in his own behalf and present his case

against revocation, his right to a hearing before the

Board would be meaningless. Furthermore, his

Fifth Amendment right must not be conditioned ‘by

the exaction of a price.. Id., at 655.

The word “by the exation of a price” are from Gar-

rity v. New Jersey, 385 U. S. 493, 500, where we held

that the threat of discharge of a policeman cannot be

used to secure incriminatory evidence against him. We

said:

“There are rights of constitutional stature whose

exercise a State may not condition by the exaction

of a price. Engaging in interstate commerce is

one.. . Resort to the federal courts in diversity

of citizenship cases is another. Assertion of a

First Amendment right is still another.... The

imposition of a burden on the exercise of a Twenty-

fourth Amendment right is also banned.... We

now hold the protection of the individual under the

Fourteenth Amendment against coerced statements

prohibits use in subsequent criminal proceedings of

statements obtained under threat of removal from

office, and that it extends to all, whether they are

policemen or other members of our body politic.”

Ibid.

Melson v. Sard involved protectior. of a »atutory right

to a hearing. Garrity involved only empsoyment rights.

In the same category is Thomas v. United States, 368 F.

CRAMPTON v. OHIO 15

94 941, where the Fifth Circuit Court of Appeals held

a convicted man may not receive a harsher penalty than

he would have received if he had waived his Fifth

Amendment right. And the Court of Appeals for the

District of Columbia expressed the same view in Scott

v. United States, 419 F. 2d 264.

If exaction of a constitutional right may not be made

for assertion of a statutory right (such as the right to a

hearing on parole revocation or the right to appeal), it

follows a fortiori that the constitutional right to be free

from the compulsion of self-incrimination may not be

exacted as a condition to the constitutional right to be

heard.

The truth is, as Mr. Justice BRENNAN points out in

his dissent in these cases, that the wooden position of

the Court, reflected in today’s decision, cannot be recon-

ciled with the evolving gloss of civilized standards which

this Court, long before the time of those who now sit

here, have been reading into the protective procedural

Due Process safeguards of the Bill of Rights. It is as

though a dam had suddenly been placed across the stream

of the law on procedural Due Process, a stream which

has grown larger with the passing years.

The Court has history on its side—but history alone.

Though nations have been killing men for centuries,

felony crimes increase. The vestiges of law enshrined

today have roots in barbaric procedures. Barbaric pro-

cedures such as ordeal by battle that became imbedded

in the law were difficult to dislodge. Though torture

was used to exact confessions, felonies mounted. Once it

was thought that “sanity” was determined by ascertaining

whether a person knew the difference between “right”

18See Cooley’s Blackstone (4th ed.), pp. 347-349. Ordeal by

battle was finally abolished in 1819 in England. 7 Stats. United

Kingdom, 723, 59 Geo. 3, c. 46.

—— — I

16 CRAMPTON v. OHIO

and “wrong.” Once it was a capital offense to steal from

the person something “above the value of a chilling.“

Insight and understanding have increased with the

years, though the springes of crime remain in large part

unknown. But our own Federal Bureau of Investigation

teaches that brains, not muscle, solve crimes. Coerced

confessions are not only offensive to civilized standards

but not responsive to the modern needs of criminal in-

vestigation. Psychiatry has shown that blind faith in

rightness and wrongness is no reliable measure of human

responsibility. The convergence of new technology for

criminal investigation and of new insight into mental

disorders has made many ancient legal procedures seem

utterly unfair.

Who today would say it was not “cruel and unusual

punishment” within the meaning of the Eighth Amend-

ment to impose the death sentence on a man who stole

a loaf of bread, or in modern parlance, a sheet of food

stamps? Who today would say that trial by battle satis-

fies the requirements of procedural due process?

We need not read procedural due process as designed

to satisfy man’s deepseated sadistic instincts. We need

not in deference to those sadistic instincts say we are

bound by history from defining procedural Due Process

so as to deny men fair trials. Yet that is what the Court

does today. The whole evolution of procedural Due

Process has been in the direction of insisting on fair

procedures. As the Court said in Hebert v. Louisiana,

272 U. S. 312, 316-317:

«| | state action, whether through one agency or

another, shall be consistent with the fundamental

principles of liberty and justice which lie at the base

of all our civil and political institutions and not

16 1 Stephen, History of the Criminal Law of England 467 (1883).

CRAMPTON v. OHIO 17

infrequently are designated as ‘law of the land.’

Those principles are applicable alike in all the

States and do not depend upon or vary with local

legislation.“

One basic application of that test was made in Moore

v. Dempsey, 261 U. S. 86, 91:

„. . . if the case is that the whole proceeding is

a mask that counsel, jury and judge were swept

to the fatal end by an irresistible wave of public

passion, and that the State Courts failed to correct

the wrong—, neither perfection in the machinery for

correction nor the possibility that the trial court and

counsel saw no other way of avoiding an immediate

outbreak of the mob can prevent this Court from

securing to the petitioners their constitutional rights.”

To allow a defendant in a state trial to be convicted

by confessions “extorted by officers of the State by bru-

tality and violence” was said by Chief Justice Hughes to

be “revolting to the sense of justice” and “a clear denial

of due process.” Brown v. Misissippi, 297 U. S. 278, 286.

In 1884 the Court in Hurtado v. California, 110 U. S.

516, 528-529, said that due process was not frozen in

content as of one point of time: “. . to hold that such

a characteristic is essential to due process of law, would

be to deny every quality of the law but its age, and to

render it incapable of progress or improvement. It

would be to stamp upon our jurisprudence the un-

changeableness attributed to the law of the Medes and

Persians.”

The Court went on to point out that though due

process has its roots in Magna Charta, the latter con-

tained words that changed with meaning as the centuries

passed. Id., at 529. The Court noted that “This flexi-

bility and capacity for growth and adaptation is the

peculiar boast. and excellence of the common law.” Id.,

18 CRAMPTON v. OHIO

at 530. And it went on to say that the generalities of

our Constitution should be treated in the same way:

“The Constitution of the United States was ordained,

it is true, by descendants of Englishmen, who in-

herited the traditions of English law and history; but

it was made for an undefined and expanding future,

and for a people gathered and to be gathered from

many nations and of many tongues. . - - There is

nothing in Magna Charta, rightly construed as a

broad charter of public right and law, which ought

to exclude the best ideas of all systems and of every

age; and as it was the characteristic principle of the

common law to draw its inspiration from every

fountain of justice, we are not to assume that the

sources of its supply have been exhausted. On

the contrary, we should expect that the new and

various experience of our own situation and system

will mould and shape it into new and not less useful

forms.” Id., at 530-531.

The Court pointed out that in England Magna Charta

served merely as a restraint on the executive and as a

guide to the House of Commons, the keeper of the Con-

stitution. In this Nation, however, the Constitution

serves a different function.

“Tt necessarily happened, therefore, that as these

broad and general maxims of liberty and justice held

in our system a different place and performed a dif-

ferent function from their position and office in

English constitutional history and law, they would

receive and justify a corresponding and more com-

prehensive interpretation. Applied in England only

as guards against executive usurpation and tyranny,

here they have become bulwarks also against arbi-

trary legislation; but, in that application, as it would

be incongruous to measure and restrict them by the

CRAMPTON v. OHIO 19

ancient customary English law, they must be held

to guarantee not particular forms of procedure, but

the very substance of individual rights to life, liberty,

and property.” Id., at 532.

In more recent times the issue was forcefully stated

by Mr. Justice Buack in Chambers v. Florida, 309 U. S.

227, 236-237.

“Tyrannical governments had immemorially utilized

dictatorial criminal procedure and punishment to

make scapegoats of the weak, or of helpless political,

religious, or racial minorities and those who differed,

who would not conform and who.resisted tyranny.

. . & liberty loving people won the principle that

criminal punishments could not be inflicted save for

that which proper legislative action had already by

‘the law of the land’ forbidden when done. But

even more was needed. From the popular hatred

and abhorrence of illegal confinement, torture and

extortion of confessions of violations of the ‘law of

the land’ evolved the fundamental idea that no

man’s life, liberty or property be forfeited as crim-

inal punishment for violation of that law, until

there had been a charge fairly made and fairly

tried in a public tribunal free of prejudice, passion,

excitement, and tyrannical power. Thus, as assur-

ance against ancient evils, our country, in order

to preserve ‘the blessings of liberty,’ wrote into its

basic law the requirement, among others, that the

forfeiture of the lives, liberties or property of people

accused of crime can only follow if procedural safe-

guards of due process have been obeyed.”

That is all that is involved in this case. It is a mystery

how in this day and age a unitary trial that requires an

accused to give up one constitutional guarantee to save

another constitutional guarantee can be brought within

20 CRAMPTON v. OHIO

the rubric of procedural Due Process. It can be done

only by a tour de force by a majority that stops the

growth and evolution of procedural Due Process at a

wholly arbitrary line or harkens to the passions of men.

What a great regression it is when the end result is to

approve a procedure that makes the killing of people

charged with crime turn on the whim or caprice of one

man or of 12!

By standards of a fair trial, the resolution of the

question of punishment requires rules and procedures

different from those pertaining to guilt. Mr. Justice

Butler, speaking for the Court in Pennsylvania v. Ashe,

302 U. S. 51, 55, said:

“For the determination of sentences, justice gen-

erally requires consideration of more than the par-

ticular acts by which the crime was committed and

that there be taken into account the circumstances

of the offense together with the character and pro-

pensities of the offender. His past may be taken

to indicate his present purposes and tendencies and

significantly to suggest the period of restraint and

the kind of discipline that ought to be imposed

upon him.”

Justice in the sense of procedural due process—is

denied where a State makes inadmissible evidence de-

signed to educate the jury on the character and pro-

pensities of the accused. Ohio does just that.

We noted in Williams v. New York, 337 U. S. 241,

249-252, that the States have leeway in making avail-

* It is commonly overlooked that justice is one of the goals of

our people as expressed in the Preamble of the Constitution:

“We the People of the United States, in Order to form a more

perfect Union, establish Justice, insure domestic Tranquility, provide

for the common defence, promote the general Welfare, and secure

the Blessings of Liberty to ourselves and our Posterity, do ordain

and establish this Constitution for the United States of America.”

— —

CRAMPTON v. OHIO 21

able to judges probation reports “to guide them in the

intelligent imposition of sentences” without submitting

those reports to open court testimony with cross-

examination. We said, “The Due Process Clause should

not be treated as a device for freezing the evidential

ure of sentencing in the mold of trial procedure.”

Id., at 251. But so far as I can ascertain we never

have intimated that a State can, consistently with pro-

cedural due process, close the door to evidence relevant

to the “intelligent imposition of sentences” either by

judges or by juries. Cf. Specht v. Patterson, supra, 608-

609.

It is indeed too late to say that, absent a constitutional

amendment, procedural Due Process has no applicability

to the determination of the sentence which is imposed.

In Townsend v. Burke, supra, at 741, we held a state

sentence imposed “on the basis of assumptions” concern-

ing the defendant’s criminal record “which were mate-

rially untrue” was “inconsistent with due process of law”

whether the result was caused by “carelessness or design.”

A fortiori it would seem to follow that a procedure, which

is designed to bar an opportunity to present evidence

showing why “mercy” should be extended to an accused

in a death case, lacks that fairness which is implicit in

due process.

The unitary trial is certainly not “mercy”-oriented.

That is, however, not its defect. It has a constitutional

infirmity because it is not neutral on the awesome issue

of capital punishment. The rules are stacked in favor

of death. It is one thing if the legislature decides that

the death penalty attaches to defined crimes. It is

quite another to leave to judge or jury the discretion

to sentence an accused to death or to show mercy under

procedures that make the trial death-oriented. Then

the law becomes a mere pretense, lacking the procedural

integrity that would likely result in a fair resolution of

—— — NTE Se

22 CRAMPTON v. OHIO

the issues. In Ohio, the deficiency in the procedure ig

compounded by the unreviewability of the failure to

grant mercy.”

We stated in Witherspoon v. Illinois, 391 U. S. 510,

521, that “a State may not entrust the determination of

whether a man should live or die to a tribunal organized

to return a verdict of death.” In that case veniremen

had been excluded from a jury for cause “simply because

they voiced general objections to the death penalty or

expressed conscientious or religious scruples against its

infliction.” Id., at 522. We concluded that no defendant

“ean constitutionally be put to death at the hands of

a tribunal so selected.” Id., at 522-523.

The tribunal selected by Ohio to choose between death

and life imprisoment in first-degree murder cases is not

palpably “organized to return a verdict of death” in the

Witherspoon sense. But the rules governing and re-

stricting its administration of the unitary trial system,

place the weights on the side of man’s sadistic drive. The

exclusion of evidence relevant to the issue of “mercy” is

conspicuous proof of that lopsided procedure; and the

hazards on an accused resulting from mingling the issues

of guilt, insanity, and punishment in one unitary pro-

ceeding are multiplied. Whether this procedure would

satisfy Due Process when dealing with lesser offenses may

be debated. But with all deference I see no grounds for

debate where the stake is life itself.

I would reverse this judgment of conviction.

18 Hoppe v. State, 29 Ohio App. 467, 163 N. E. 715.

SUPREME COURT OF THE UNITED STATES

Nos. 203 & 204.—Ocroser Term, 1970

Dennis aa On Writ of Certiorari to the

5 a | Supreme Court of Cali-

208 ae fornia.

State of California.

James Edward Crampton,

Petitioner, On Writ of Certiorari to the

v. Supreme Court of Ohio.

State of Ohio.

[May 3, 1971]

Mr. Justice BRENNAN, with whom Mr. Jusricn

Dovetas and Mr. Justice MARsHALL join, dissenting.

These cases test the viability of principles whose roots

draw strength from the very core of the Due Process

Clause. The question which petitioners present for our

decision is whether the rule of law, basic to our society

and binding upon the States by virtue of the Due Process

Clause of the Fourteenth Amendment, is fundamentally

inconsistent with capital sentencing procedures that are

purposely constructed to allow the maximum possible

variation from one case to the next, and provide no

mechanism to prevent that consciously maximized varia-

tion from reflecting merely random or arbitrary choice.

The Court does not, however, come to grips with that

fundamental question. Instead, the Court misappre-

hends petitioners’ argument and deals with the cases as

if petitioners contend that due process requires capital

sentencing to be carried out under predetermined stand-

ards so precise as to be capable of purely mechanical

application, entirely eliminating any vestiges of flexibility

or discretion in their use. This misapprehended question

is then treated in the context of the Court’s assumption

——

2 McGAUTHA v. CALIFORNIA

that the legislatures of Ohio and California are incom-

petent to express with clarity the bases upon which they

have determined that some persons guilty of some crimes

should be killed, while others should live—an assumption

that, significantly, finds no support in the arguments

made by those States in these cases. With the issue 80

polarized, the Court is led to conclude that the rule of

law and the power of the States to kill are in irrecon-

cilable conflict. This conflict the Court resolves in favor

of the States’ power to kill.

In my view the Court errs at all points from its

premises to its conclusions. Unlike the Court, I do not

believe that the legislatures of the 50 States are so devoid

of wisdom and the power of rational thought that they

are unable to face the problem of capital punishment

directly, and to determine for themselves the criteria

under which convicted capital felons should be chosen to

live or die. We are thus not, in my view, faced by the

dilemma perceived by the Court, for cases in this Court

have for almost a century and a half approved a multi-

plicity of imaginative procedures designed by the state

and federal legislatures to assure evenhanded treatment

and ultimate legislative control regarding matters which

the legislatures have deemed either too complex or other-

wise inapposite for regulation under predetermined rules

capable of automatic application in every case. Finally,

even if I shared the Court’s view that the rule of law

and the power of the States to kill are in irreconcilable

conflict, I would have no hesitation in concluding that

the rule of law must prevail.

Except where it incorporates specific substantive con-

stitutional guarantees against state infringement, the

Due Process Clause of the Fourteenth Amendment does

not limit the power of the States to choose among com-

peting social and economic theories in the ordering of life

within their respective jurisdictions. But it does require

McGAUTHA v. CALIFORNIA 3

that, if state power is to be exerted, these choices must

be made by a responsible organ of state government.

For if they are not, the very best that may be hoped for

is that state power will be exercised not upon the basis

of any social choice made by the people of the State,

but instead merely on the basis of social choices made

at the whim of the particular state official wielding the

power. If there is no effective supervision of this process

to insure consistency of decision, it can amount to nothing

more than government by whim. But ours has been

“termed a government of laws, not of men.” Marbury v.

Madison, 1 Cranch 137, 163 (1803). Government by

whim is the very antithesis of due process.

It is not a mere historical accident that t he history

of liberty has largely been the history of observance

of procedural safeguards.” McNabb v. United States,

318 U. S. 332, 347 (1943) (Frankfurter, J.). The range

of permissible state choice among competing social and

economic theories is so broad that almost any arbitrary

or otherwise impermissible discrimination among individ-

uals may mask itself as nothing more than such a per-

missible exercise of choice unless procedures are devised

which adequately insure that the relevant choice is

actually made. Such procedures may take a variety of

forms. The decisionmaker may be provided with a set

of guidelines to apply in rendering judgment. His deci-

sion may be required to rest upon the presence or absence

of specific factors. If the legislature concludes that the

range of variation to be dealt with precludes adequate

treatment under inflexible, predetermined standards it

may adopt more imaginative procedures. The specificity

of standards may be relaxed, directing the decisionmaker’s

attention to the basic policy determinations underlying

the statute without binding his action with regard to

matters of important but unforeseen detail. He may be

instructed to consider a list of factors—either illustrative

4 McGAUTHA v. CALIFORNIA

or exhaustive—intended to illuminate the question pre-

sented without setting a fixed balance. The process may

draw upon the genius of the common law, and direct

itself towards the refinement of understanding through

case-by-case development. In such cases decision may

be left almost entirely in the hands of the body to whieh

it is delegated, with ultimate legislative supervision on

questions of basic policy afforded by requiring the deci-

sionmakers to explain their actions, and evenhanded treat-

ment enhanced by requiring disputed factual issues to be

resolved and providing for some form of subsequent re-

view. Creative legislatures may devise yet other proce-

dures. Depending upon the nature and importance of

the issues to be decided, the kind of tribunal rendering

judgment, the number and frequency of decisions to be

made, and the number of separate tribunals involved in

the process, these techniques may be applied singly or in

combination.

It is of critical importance in the present cases to

emphasize that we are not called upon to determine the

adequacy or inadequacy of any particular legislative pro-

cedure designed to give rationality to the capital sen-

tencing process. For the plain fact is that the legisla-

tures of California and Ohio, whence come these cases,

have sought no solution at all. We are not presented

with a State’s attempt to provide standards, attacked as

impermissible or inadequate. We are not presented with

a legislative attempt to draw wisdom from experience

through a process looking towards growth in understand-

ing through the accumulation of a variety of experiences.

We are not presented with the slightest attempt to bring

the power of reason to bear on the considerations rele-

vant to capital sentencing. We are faced with nothing

more than stark legislative abdication. Not once in the

history of this Court, until today, have we sustained

against a due process challenge such an unguided, un-

McGAUTHA v. CALIFORNIA 5

bridled, unreviewable exercise of naked power. Almost

a century ago, we found an almost identical California

ure constitutionally inadequate to license a laun-

_ Yick Wo v. Hopkins, 118 U. S. 356, 366-367, 369-

970 (1886). Today we hold it adequate to license a life.

1 would reverse petitioners’ sentences of death.

I

Our system of ordered liberty is based, like the com-

mon law, on enlightened and uniformly applied legal

principle, not on ad hoc notions of what is right or wrong

in a particular case.” HARLAN, Thoughts at a Dedica-

tion, in The Evolution of a Judicial Philosophy 289, 291-

992 (D. Shapiro ed. 1969). The dangers inherent in any

grant of governmental power without procedural safe-

upon its exercise were known to English law long

long before the Constitution was established. See, e. g.,

8 How. St. Tr. 55-58 n. “ The principle that our Gov-

ernment shall be of laws and not of men is so strongly

woven into our constitutional fabric that it has found

recognition in not just one but several provisions of the

Constitution.“ And this principle has been central to

My Brother HaRLan continues: “The stability and flexibility

that our constitutional system at once possesses is largely due to

our having carried over into constitutional adjudication the common-

law approach to legal development.” Id., at 292.

The prohibition against bills of attainder, Article I, §9, cl. 3

(federal), § 10, el. 1 (state), protects individuals or groups against

being singled out for legislative instead of judicial trial. See United

States v. Brown, 381 U. S. 437, 442-446 (1965) ; id., at 462 (dissent) ;

Cummings v. Missouri, 4 Wall. 277, 322-325 (1867). The prohibi-

tion against ex post facto laws, joined in the Constitution to the ban

on bills of attainder, prevents legislatures from achieving similar ends

by indirection, either by making criminal acts that were innocent

v. Bull, 3 Dall. 386, 390 (1798) (Chase, J.), or by increasing the

punishment imposed upon admittedly criminal acts that have al-

when performed, Cummings v. Missouri, supra, at 325-326; Calder

6 McGAUTHA v. CALIFORNIA

the decisions of this Court giving content to the Due

Process Clause. As we said in Hurtado v. California,

110 U. S. 516, 535-536 (1884):

“(I]t is not to be supposed that . . the amend-

ment prescribing due process of law is too vague and

ready been committed. In re Medley, 134 U. 8. 160, 166-173

(1890); Calder v. Bull, supra. The constitutional limitation of

federal legislative power to the Congress has been applied to require

that fundamental policy choices be made not by private individual—

or even public officers—acting pursuant to an unguided and un-

supervised delegation of legislative authority, but by the Nation as

a whole acting through Congress. See, e. 9., FCC v. RCA Com-

munications, Inc., 346 U. S. 86, 90 (1953) ; Lichter v. United States,

334 U. S. 742, 766, 769-773, 778 (1948) ; Schechter Poultry Corp. v.

United States, 295 U. S. 495, 529-530, 537-539 (1935); Panama

Ref'g Co. v. Ryan, 293 U. S. 388, 414-430 (1935); id., at 434, 435

(Cardozo, J., dissenting). Finally, the requirement of evenhanded

treatment imposed upon the States and their agents by the Equal

Protection Clause, see Cooper v. Aaron, 358 U. S. 1, 16-17 (1958),

McFarland v. American Sugar Co., 241 U. S. 79, 86-87 (1916)

(Holmes, J.), has been applied to the Federal Government as well

through the Fifth Amendment’s Due Process Clause. E. g., Shapiro

v. Thompson, 394 U. S. 618, 641-642 (1969); Schneider v. Rusk,

377 U. S. 163, 168-169 (1964); Bolling v. Sharpe, 347 U. 8. 497

(1954).

s Thus, although recognizing that the explicit constitutional pro-

hibition against er post facto laws applies only to legislative action,

we held in Bouie v. City of Columbia, 378 U. S. 347, 353-354 (1964),

that due process was violated by like action on the part of a state

court. Significantly, the dissenting Justices in Bouie took issue

only with the Court’s conclusion that the interpretation of the

statute in question by the State Supreme Court was not foreshadowed

by prior state law. See id., at 366-367. Similarly, although we have

held the States not bound, as is the Federal Government, by the

doctrine of separation of powers, Dreyer v. Illinois, 187 U. S. 71, 8-

84 (1902); Sweezy v. New Hampshire, 354 U. 8. 234, 255 (1957),

we have nevertheless held that state delegation of legislative authority

without guideline or check violates due process. Seattle Trust Co.

v. Roberge, 278 U. S. 116, 120-122 (1928); Eubank v. Richmond,

McGAUTHA v. CALIFORNIA 7

indefinite to operate as a practical restraint... .

Law is something more than mere will asserted as

an act of power. It must be not a special rule for

a particular person or a particular case, but... ‘the

law. . . so ‘that every citizen shall hold

his life, liberty, property and immunities under the

protection of the general rules which govern society,’

and thus excluding, as not due process of law, acts

of attainder, bills of pains and penalties, acts of con-

fiscation . . and other similar special, partial and

arbitrary exertions of power under the forms of legis-

lation. Arbitrary power, enforcing its edicts to the

injury of the persons and property of its subjects,

is not law, whether manifested as the decree of a

personal monarch or of an impersonal multitude.”

The principal function of the Due Process Clause is

to insure that state power is exercised only pursuant to

procedures adequate to vindicate individual rights.‘

26 U. S. 137, 143-144 (1912); ef. Browning v. Hooper, 269 U. 8.

996, 405-406 (1926). See the discussion infra, at [24-26]. Finally,

in Hurtado v. California, 110 U. S. 516, 535-536 (1884), quoted in

the text immediately above, we noted as an example of a clear vio-

lation of due process the passage by a legislature of a bill of attainder.

Cf. n. 2, supra, and cases cited.

We have, of course, applied specific substantive protections of the

Bill of Rights to limit state power under the Due Process Clause.

F. g., Near v. Minnesota, 283 U. S. 697 (1931) (First Amendment) ;

Robinson v. California, 370 U. S. 660 (1962) (Eighth Amendment) ;

Griswold v. Connecticut, 381 U. S. 479, 481-486 (1965) (First,

Third, Fourth, Fifth, and Ninth Amendments). Conversely, we

have held at least some aspects of the Fourteenth Amendment's

Equal Protection Clause applicable to limit federal power under the

Due Process Clause of the Fifth Amendment. See Shapiro v.

Thompson, 394 U. S. 618, 641-642 (1969), and cases cited. Finally,

we have of course held that due process forbids a State from punish-

ing the assertion of federally guaranteed rights whether procedural

or otherwise. North Carolina v. Pearce, 395 U. S. 711, 723-725

8 McGAUTHA v. CALIFORNIA

While we have, on rare occasions, held that due process

requires specific procedural devices not explicitly com-

manded by the Bill of Rights,“ we have generally either

indicated one acceptable procedure and left the States

free to devise others, or else merely ruled upon the

validity or invalidity of a particular procedure without

attempting to limit or even guide state choice of pro-

cedural mechanisms beyond stating the obvious proposi-

tion that inadequate mechanisms may not be employed.’

Several principles, however, have until today been

consistently employed to guide determinations of the

adequacy of any given state procedure. When the Gov-

ernment exacts . . . much, the importance of fair, even-

handed, and uniform decisionmaking is obviously intensi-

fied.” Gillette v. United States, 40- U. S. —, —

(1971). Procedures adequate to determine a welfare

claim may not suffice to try a felony charge. Compare

Goldberg v. Kelly, 397 U. S. 254, 270-271 (1970), with

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

even where the only rights to be adjudicated are those

(1969); Spevack v. Klein, 385 U. S. 511 (1967); ef. Ex parte Hull,

312 U. S. 546 (1941). But we have long rejected the view, typified

by, e. g., Adkins v. Children’s Hospital, 261 U. S. 525 (1923), over-

ruled in West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937),

that the Due Process Clause vests judges with a roving commission

to impose their own notions of wise social policy upon the States.

Ferguson v. Skrupa, 372 U. S. 726, 730-731 (1963).

F. g., North Carolina v. Pearce, 395 U. S. 711, 725-726 (1969);

Boykin v. Alabama, 395 U. S. 238, 242-244 (1969); see also Goldberg

v. Kelly, 397 U. S. 254, 269-271 (1970).

F. g., United States v. Wade, 388 U. 8. 218, 236-239 (1967);

Miranda v. Arizona, 384 U. S. 436, 467-473 (1966); Jackson v.

Denno, 378 U. S. 368, 377-391 (1964).

F. g., Johnson v. Avery, 393 U. 8. 483, 488-490 (1969); In re

Murchison, 349 U. S. 133 (1955); Seattle Trust Co. v. Roberge,

278 U. S. 116 (1928).

McGAUTHA v. CALIFORNIA 9

created and protected by state law, due process requires

that state procedures be adequate to allow all those con-

cerned a fair hearing of their state-law claims. Boddie v.

Connecticut, 40- U. S. — (1971); Covey v. Town of

Somers, 351 U. S. 141 (1956); Mullane v. Central Han-

over Trust Co., 339 U. S. 306 (1950). Third, where fed-

erally protected rights are involved, due process com-

mands not only that state procedure be adequate to

assure a fair hearing of federal claims, In re Gault, 387

U. S. 1 (1967), but also that it provide adequate oppor-

tunity for review of those federal claims where such

review is otherwise available. Goldberg v. Kelly, 397

U.S., at 271; Boykin v. Alabama, 395 U. S. 238, 242-244

(1969) ; Jackson v. Denno, 378 U. S. 368, 387 (1964) ; cf.

North Carolina v. Pearce, 395 U. S. 711, 725-726 (1969);

In re Murchison, 349 U. S. 133, 136 (1955). Finally, and

closely related to the previous point, due process requires

that procedures for the exercise of state power be struc-

tured in such a way that, ultimately at least, fundamental

choices among competing state pulicies are resolved by

a responsible organ of state government. Louisiana v.

United States, 380 U. S. 145, 152-153 (1965) (BLIAck, J.);

FCC v. RCA Communications, Inc., 346 U. S. 86, 90

(0953); Niemotko v. Maryland, 340 U. S. 268 (1951);

United States v. Rock Royal Co-op, 307 U. S. 533, 574,

575 (1939); Currin v. Wallace, 306 U. S. 1, 15 (1939);

Lovell v. Griffin, 303 U. S. 444 (1938); Browning v.

Hooper, 269 U. S. 396, 405-406 (1926); McKinley v.

United States, 249 U. S. 397, 399 (1919); Eubank v.

Richmond, 226 U. S. 137, 143-144 (1912); Yick Wo v.

Hopkins, 118 U. S. 356, 366-367, 369-370 (1886). The

damage that today's holding, if followed, would do to our

constitutional fabric can only be understood from a closer

examination of our cases than is contained in the Court’s

opinion. I therefore turn to those cases.

10 McGAUTHA v. CALIFORNIA

A

Analysis may usefully begin with this Court’s cases

applying what has come to be known as the “void-for-

vagueness” doctrine. It is sometimes suggested that in

holding a statute void for vagueness, this Court is merely

applying one of two separate doctrines: first, that a crim-

inal statute must give fair notice of the conduct that it

forbids, e. g., Lanzetta v. New Jersey, 306 U. S. 451

(1939); Connally v. General Construction Co., 269 U. 8.

385, 391 (1926); and second, that a statute may not

constitutionally be enforced if it indiscriminately sweeps

within its ambit conduct that may not be the subject

of criminal sanctions as well as conduct that may. E. g,

Baggett v. Bullitt, 377 U. S. 360 (1964) ; Dombrowski v.

Pfister, 380 U. S. 479, 492-496 (1965). To this is often

added the observation that both doctrines apply with

particular vigor to state regulation of conduct at or

near the boundaries of the First Amendment. See

United States v. National Dairy Corp., 372 U. S. 29, 3%

(1963); Smith v. California, 361 U. S. 147, 150-152

(1959). But unless it be assumed that our decisions in

such matters have shown an almost unparellelled incon-

sistency, these factors may not be taken as more than 2

partial explanation of the doctrine.

To begin with, we have never treated claims of uncon-

stitutional statutory vagueness in terms of the statute

as written or as construed prior to the time of the conduct

in question. Instead, we have invariably dealt with the

statute as glossed by the courts below at the time of

decision here. E. g., Giaccio v. Pennsylvania, 382 U. 8.

399 (1966); Winters v. Neu York, 333 U. S. 507 (1948);

For analysis in substantially these terms, see, e. 9. Collings,

Unconstitutional Uncertainty—An Appraisal, 40 Cornell L. Q 1

(1955); Freund, The Supreme Court and Civil Liberties, 4 Vand.

L. Rev. 533 (1951); Comment, 53 Mich. L. Rev. 264 (1954).

McGAUTHA v. CALIFORNIA 11

Cox v. New Hampshire, 312 U. S. 569 (1941). In Musser

v. Utah, 333 U. S. 95 (1948), we even remanded a crim-

inal case to the Utah Supreme Court for a construction

of the statute so that its possible vagueness could be

analyzed. In dealing with vagueness attacks on federal

statutes, we have not hesitated to construe the statute

to avoid vagueness problems and, having so construed it,

apply it to the case at hand. See United States v.

Vuitch, — U. S. — (1971); Dennis v. United States,

341 U. S. 494, 502 (1951); Kay v. United States, 303

U. S. 1 (1938). If the vagueness doctrine were funda-

mentally premised upon a concept of fair notice, such

treatment would simply make no sense: a citizen can-

not be expected to foresee subsequent construction of

a statute by this or any other court. See Freund, The

Supreme Court and Civil Liberties, 4 Vand. L. Rev.

533, 540-542 (1951). But if, as I believe, the doctrine

of vagueness is premised upon the fundamental notion

that due process requires governments to make explicit

their choices among competing social policies, see pp.

[12-18] infra, the inconsistency between theory and

practice disappears. Of course such a choice, once made,

is not irrevocable: statutes may be amended and statu-

tory construction overruled. Nevertheless, an explicit

state choice among possible statutory constructions sub-

stantially reduces the likelihood that subsequent convic-

tions under the statute will be based on impermissible

factors” It also renders more effective the available

A vague statute may be applied one way to one person and a

different way to another. Aside from the fact that this in itself

would constitute a denial of equal protection, Niemotko v. Maryland,

340 U. S. 268, 272 (1951), ef. H. Black, A Constitutional Faith

31-32 (1969), the reasons underlying different application to dif-

ferent individuals may in themselves be constitutionally imper-

missible. Cf. Schacht v. United States, 398 U. S. 58 (1970) (appli-

cability of statute determined by political views); Yick Wo v.

Hopkins, 118 U. S. 356 (1886) (application of statute on racial basis).

12 McGAUTHA v. CALIFORNIA

mechanisms for judicial review, by increasing the likeli-

hood that impermissible factors, if relied upon, will be

discernible from the record. Thus in Thompson v. Louis-

ville, 362 U. S. 199 (1960), we were faced with the appli-

cation of a specific vagrancy statute to conduct—dancing

in a public bar—that there is no reason to believe could

not have been constitutionally prohibited had the State

chosen to do so. We were, however, able to examine the

record and conclude that there was in fact no evidence

that could support a conviction under the statute. Cf.

Bachellar v. Maryland, 307 U. S. 564 (1970) (impossible

to determine whether verdict rested upon permissible

or impermissible grounds).

Second, in dealing with statutes that are unconstitu-

tionally overbroad, we have consistently indicated that

“once an acceptable limiting construction is obtained,

[such a statute] may be applied to conduct occurring

prior to the construction, provided such application af-

fords fair warning to the defendants.” Dombrowski v.

Pfister, 380 U. S. 479, 491 n. 7 (1965) (citations omit-

ted); see, e. g., Poulos v. New Hampshire, 345 U. S. 395

(1953). That is, an unconstitutionally overbroad stat-

ute may not be enforced at all until an acceptable con-

struction has been obtained, e. g., Thornhill v. Alabama,

310 U. S. 88 (1940); but once such a construction has

been made, the statute as construed may be applied to

conduct occurring prior to the limiting construction. If

notice and overbreadth were the only components of the

vagueness doctrine, this treatment would, once again, be

inexplicable. So far as notice is concerned, one who has

engaged in certain conduct prior to the limiting construc-

tion of an overbroad statute has obviously not received

from that construction any warning that would have en-

10 Younger v. Harris, 40- U. 8. — (1971), and its companions

cast no shadow upon the sentence quoted.

McGAUTHA v. CALIFORNIA 13

abled him to keep his conduct within the bounds of law.

Similarly, if adequate notice has in fact been given by an

overbroad statute that certain conduct was criminally

ishable, it is hard to see how the doctrine of over-

breadth is furthered by forbidding the State, on the one

hand, to punish that conduct so long as an acceptable

limiting construction has not been obtained, but permit-

ting it to punish the same, prior conduct once the statute

has been acceptably construed. Once again, however, our

actions are not at all inexplicable if examined in the terms

articulated here. Once an acceptable limiting construc-

tion has in fact been obtained, there is by that very fact

an assurance that a responsible organ of state power has

made an explicit choice among possible alternative poli-

cies: for it should not be forgotten that the States possess

constitutional power to make criminal much conduct that

they may not wish to forbid, or may even desire to en-

courage. If a vague or overbroad statute is applied be-

fore it has been acceptably construed, there remains the

danger that an individual whose conduct is admittedly

clearly within the scope of the statute on its face will be

punished for actions which in fact the State does not

desire to make generally punishible—conduct which, if

engaged in by another person, would not be subject to

criminal liability. Shuttlesworth v. Birmingham, 382

U. S. 87, 91-92 (1965). Allowing a vague or overbroad

statute to be enforced if, and only if, an acceptable con-

struction has been obtained forces the State to make

explicit its social choices and prevents discrimination

through the application of one policy to one person and

another policy to others.”

11 A closely related proposition may he derived from a separate line

of cases. In Louisiana Power & Light Co. v. City of Thibodauz,

360 U. S. 25 (1959), we upheld abstention by a federal district

court in a diversity action from decision whether, under a state

statute never construed by the Louisiana courts, cities in the State

14 McGAUTHA v. CALIFORNIA

Particularly relevant to the present case is our decision

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

case involved a statute whereby Pennsylvania attempted

to mitigate the harshness of its common-law rule requir-

ing criminal defendants to pay the costs of prosecution

in all cases * by committing the matter to the discretion

possessed the power to take local gas and electric companies by

eminent domain. The same day, in Allegheny County v. Frank

Mashuda Co., 360 U. S. 185 (1959), we upheld the action of another

district court in refusing to abstain from decision whether, under

state law allowing takings for public but not for private use, Alle-

gheny County possessed the power to take a particular property for

a particular use. Are the decisions irreconcilable? As we have often

remarked, the basis of diversity jurisdiction is “the supposition that,

possibly, the state tribunal[s} might not be impartial between their

own citizens and foreigners.” Pease v. Peck, 18 How. 595, 599

(1856). The question of state law presented in Thibodaur was a

broad one having substantial ramifications beyond the lawsuit at

hand. Any prejudice against the out-of-state company involved

in that case could have been given effect in state courts only at the

cost of a possibly incorrect decision that would have significant

adverse effect upon state citizens as well as the particular outsider

involved in the suit. In Mashuda, on the other hand, decision one

way or another would have little or no effect beyond the case in

question: any possible state bias against out-of-staters could be given

full effect withoyt -hampering any significant state policy. Taken

together, then, Thibodaur and Mashuda may stand for the propo-

sition that the possibility of bias which stands at the foundation of

federal diversity jurisdiction may nevertheless be discounted if that

bias could be given effect only through a decision that will have

inevitable repercussions on a matter of fundamental state policy.

Put another way, Thibodaur and Mashuda may serve to illustrate

in another context the principle that necessarily underlies many of

this Court’s “vagueness” decisions: the due process requirement that

States make explicit their choice among competing views on ques-

tions of fundamental state policy serves to enforce the requirement of

evenhanded treatment that due process commands.

12 See Brief for Respondent in Giaccio, at 8-10; Commonwealth v.

Tilghman, 4 S. & R. 127 (Pa. Sup. Ct. 1818); Act of March 20, 1797,

3 Smith’s Laws 281.

ee

McGAUTHA v. CALIFORNIA 15

of the jury in cases where the defendant was found not

guilty.* Two members of this Court, concurring in the

result, would have held that due process forbade the

imposition of costs upon an acquitted defendant. 382

U. S., at 405. We refused, however, to base our decision

on that ground. In an opinion by my Brother BLACK,

we said:

“We agree with the trial court . . that the 1860

Act is invalid under the Due Process Clause because

of vagueness and the absence of any standards suffi-

cient to enable defendants to protect themselves

against arbitrary and discriminatory impositions of

costs.

„It is established that a law fails to meet

the requirements of the Due Process Clause if it is

so vague and standardless that it leaves the public

uncertain as to the conduct it prohibits or leaves

judges and jurors free to decide, without any legally

fixed standards, what is prohibited and what is not

in each particular case. This 1860 Pennsylvania Act

contains no standards at all.... Certainly one

of the basic purposes of the Due Process Clause has

always been to protect a person against having the

Government impose burdens upon him except in

accordance with the valid laws of the land. Implicit

in this constitutional safeguard is the premise that

the law must be one that carries an understandable

meaning with legal standards that courts must

enforce. ...

“ The State contends that. . state court

interpretations have

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