McGautha v. California

McGAUTHA v. CALIFORNIA

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 verdift. Certiorari was granted to consider vrhether 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 Constitvtion. Pp. 196-208.

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. 208-222.

(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 on the punishment issue. Simmons v. United States, 390 U. S. 377, distinguished. Pp. 210-213.

(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 punishment at the risk of damaging his case on guilt. Pp. 213-217.

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

Supreme Court of Ohio.

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(c) 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. 217-220.

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

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

HARLAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., filed a separate opinion, post, p. 225. DOUGLAS, J., filed an opin- ion dissenting in No. 204, in which BRENNAN and MARSHALL, JJ., joined, post, p. 226. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHXLL, JJ., joined, post, p. 248.

Herman F. Selvin, by appointment of the Court, 400 U. S. 885, argued the cause and filed briefs for petitioner" in No. 203. John J. Callahan, by appointment of the Court, 399 U. S. 924, argued the cause for petitioner in No. 204. With him on the brief were Dan H. McCul- lough, William T. Burgess, William D. Driscoll, and Gerald S. Lubitsky.

Ronald M. George, Deputy Attorney General of Cali- fornia, argued the cause for respondent in No. 203. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney Gen- eral. Melvin L. Resnick argued the cause for respondent in No. 204. With him on the brief were Harry Friberg and Alice L. Robie Resnick.

Solicitor General Griswold argued the cause for the United States as amicus curiae urging affirmance in both cases. With him on the brief was Philip A. Lacovara.

Jack Greenberg, James M. Nabrit III, Michael Melts- ner, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae in both cases. Luke McKissack filed a brief as amicus curiae in No. 203. Briefs of amici curiae in No. 204 were filed by Richard F. Stevens for the Attor-

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ney General of Ohio; by Elmer Gertz and Willard J. Lassers for the American Civil Liberties Union, Illinois Division, et al.; and by Messrs. Lassers, Gertz, Alex Elson, and Marvin Braiterman for the American Friends Service Committee et al.

MR. JUSTICE HARLAN 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 Sfates. 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 aid to the further question whether the jury's imposition of the death sentence in the same pro- ceeding and verdict as determined the issue of guilt was constitutionally permissible. Ibid.' For the reasons

(1968),

1 The same two questions were included in our grant of certiorari in Maxwell v. Bishop, 393 U. S. 997 two Terms 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. S. 510 (1968). 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 Maxwell. See id., at 267 n. 4.

398 U. S. 262 (1970).

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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

MeGautha and his codefendant Wilkinson were charged with committing two armed robberies and a murder on February 14, 1967.2 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

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.

3 Cal. Penal.Code § 190.1 (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 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 pie- 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.

"If the defendant was convicted by the court sitting without a If the defendant was

jury, the trier of fact shall .be the court.

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evidence tended to show that the defendants, armed with pistols, 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 cylinder of his gun. Other evidence at the guilt stage was inconclusive on the issue as to who fired the fatal shot. The jury foimd 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

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 iue of penalty, or order a new jury impaneled to try the issue of penalty, but tne issue of guilt shall not be retried by such' iury."

419-882 0 - 72 - 17

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father and a Negro mother, his honorable discharge from the Army on the score of his low intelligence, his regular attendance at church, aAd 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 employmeht. 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 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

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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 defendant's background and history, and of the facts in aggravation or jmitigation 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 in determining which mitigation or aggravation, punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience,

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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 twd penalties shall be fixed to the judgment, conscience, and absolute discretion of the In the determination of that matter, if the jury. jury does agree, it must be unanimous as to which of the two penalties-is imposed." App. 221-223V'

4The

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 4ife 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 tl~ey 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 It parole a defendant unless he can be safely released into society.

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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 the death sentenc3.5 Mc- verdict, and pronounced Gautha's conviction was unanimously affirmed by the California Supreme Court. 70 Cal. 2d 770, 452 P. 2d 650 (1969). His contention that standardless jury sen- tencing is unconstitutional was rejected on the authority of an earlier case, In re Anderson, 69 Cal. 2d 613, 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

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.

8Under 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, 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; 425 P. 2d 208, 221 (1967)..

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

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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 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- tiac, Michigan. During those three days Collins and Crampton roamed the upper Midwest, committing a series of petty thefts and obtaining amphetamines, to which both were 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 back to Toledo, where his wife was, as fast as possible. They arrived in the early morning hours of January 17. After

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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 wifewith 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 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. 1The murder weapon was found between the seat9 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

194.

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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 a series of hospital reports'which contained further infor- mation on Crampton's background, including his criminal record, which was substantial, his court-martial convic- the Navy, and tion and undesirable discharge from 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 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 niurder 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 It is your duty to care- of sympathy or prejudice. 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- In fulfilling your duty, your efforts must be ingly. to arrive at a just verdict.

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"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 for 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 (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- 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 func- 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

I 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 Op. 2d 461, 468, 175 N. E. 2d 767, 775-776 (Ct. App.), appeal dismissed, 171 Ohio St. 62, 167 N. E. 2d 778 (1960).

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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 McGautha'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 undeniable surface appeal of the proposition, we conclude that the courts below correctly rejected it.'

8 The lower courts thus placed themselves in accord with all other American jurisdictions which have considered the issue. See, e. g., In re Ernst, 294 F. 2d 556 (CA3 1961); Florida ex rel. Thomas v. Culver, 253 F. 2d 507 (CA5 1958); Maxwell v. Bishop, 398 F. 2d 138 (CAS 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 S. W. 2d 567 (1969); State v. Walters, 145 Conn. 60, 138 A. 2d 786, 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, 441 S. W. 2d 688 (Mo. 1969); State v. Johnson, 34 N. J. 212, 168 A. 2d 1, appeal dismissed, 368 U. . 145 (1961); People v. Fitzpatrick, 61 Misc. 2d 1043, 308 N. Y. S. 2d 18 (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 S. E. 2d 725 (1968); State v. Smith, 74 Wash. 2d 744, 446 P. 2d 571 (1968).

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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 In the 13th century, Bracton set it down that a (1883). man was responsible for all homicides exceptr 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,

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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, §§ 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 id., at 44. During the next cen- tury and a half, however, "malice prepense" or "malice aforethought" came 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.

to be divorced from actual

3 id., at 46-73.

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 "willful, deliberate and premeditated" kill- ings, for which the death penalty remained mandatory. Pa. Laws 1794, c.. 1777. This reform was soon copied by Virginia 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 1ad similar experiqnces. Wechsler & Michael, A Rationale of the Law of Homicide: 1, 37 Col. L. Rev. 701,

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707-709 (1937). The result was characterized in this way by Chief Judge Cardzo, 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, in Law and Literature 70, 100 (1931).' 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, i 27-29 (1953); Andres v. United States, 333 U. S. 740, 753 (1948) (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,

9 In context the emphasis is on the confusing distinction between degrees of murder, not the desirability of juries' 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, 37 Col. L. Rev., at 704 n. 13, 709 n. 26.

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52 (1964). Tennessee was the first State to give juries sentencing discretion in capital cases," Tenn. Laws 183-7- 1838, c. 29, but other States followed suit, as did the Federal Government in 1897.11 Act of Jan. 15, 1897, c. 29, § 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-

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).

il 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, c. 508, Cal. Amendatory Acts 1873-1874, p. 457; Ohio Laws 1898, p. 223. Except for four States that entirely abolished capital punishment in the middle of the last century, every American jurisdiction has at some time authorized jury sentencing in capital cases. None of these statutes have pro- vided standards for the choice between death and life imprisonment. See Brief for the United States as Amicus Curiae 128-137.

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.

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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 can not extend or prescribe to you any definite rule defining the exercise of this power, but commits the entire matter of its exercise to your judgment." 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

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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 1959.1' Several States have enacted new criminal codes

" 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. X'ore 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 less than a commitment by the Commission or any of its members to every aspect of the Draft." Study Draft 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 alfernatiie provision. The latter feature is affected by the fact that only a very few murders were

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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 ways1 5 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 court has held the challenge good. See n. 8, supra. As petitioners recognize, it i'equires a strong showing to upset this settled practice of the Nation on constitutional grounds. See Walz v. Tax Commission, 397 U. S. 664, 678 (1970) ; Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922); cf. Palko v. Connecticut, 302 U. S. 319, 325 (1937).

B Petitioners seek to avoid 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

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.

14 See, e. g., N. Y. Penal Law § 65.00 (1967)

(criteria for judges

in deciding on probation).

rE. g., N. M. Stat. Ann. §§ 40A-29-2.1, 40A-29-2.2

(Supp.

1969), reducing the class of capital crimes.

419-882 0 - 72 - 18

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determined that some-indeed, the greater portion-of those guilty of capital crimes should be permitted to live. that determination, petitioners argue, But having mad they have stopped short-the legislatures have not only failed to provide a rational basis for distinguishing the one group from the other, cf. 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 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,

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and no formula which fails to do so can claim to 1-2 Royal Com- be just or satisfy public opinion." 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 that term was to be left undefined; circumstances," "[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, T 553 (b). The Commission went on to say, in substantial con- firmation of the views of the Home Office:

is possible that would provide a "No formula 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 each case is the only way ini 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- 'Id., at T 595. cretion that in effect supersedes it." 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 ." Report f1 498, quoted in Model simple formula . . Penal Code, § 201.6, Comment 3, p. 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

.

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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 provides 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., at § 210.6 (2) (Proposed Official Draft, 1962)." The Final Report 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: "[i]n 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., at provisional § 3604 (1) (em- phasis added).

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

punishment at death unless it found at least one of the aggravating circumstances and no sufficiently substantial mitigating circum- stances. Model Penal Code § 210.6 (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 § 201.6, Comment 3, pp. 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 If in this, and petitioners contend that Ohio's and we are mistaken California's definitions of first-degree murder are too broad, we consider their position, constitutionally untenable

in which the discretion exists.

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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- 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 untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. 8 The.

17 The issue whether a defendant is entitled to an instruction that certain factors such as race are not to be taken into (,)nsideration 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). 18 Giaccio v. Pennsylvania, 382 U. S. 399 (1966), does not point In Giaccio the Court held invalid on its face to a contrary result. 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

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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, MeGautha's trial was in two stages, with the jury considering the 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. 9 Petitioner Crampton, whose guilt and punishment were determined at a single trial, contends

in "reprehensible conduct" and consequently that it was unconstitu- tionally vague. The Court there stated: "In so holding we 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.

intend

19 Cal. Penal Code § 190.1 (1970); Conn. Gen. Stat. Rev. § 53a-46 (Supp. 1969); Act of Mar. 27, 1970, No. 1333, Ga. Laws 1970, p. 949; N. Y. Penal Law §§ 125.30 (Supp. 1970-1971), 125.35 (1967); Pa. Stat. Ann., Tit. 18, § 4701 (1963); Tex. Code Crim. Proc., Art. 37.07 (2) (b) See also 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,

(Supp. 1970-1971).

551-595.

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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. 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- tioners in Spencer v. Texas, 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

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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).

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 v. California, 380 U. S. 609 (1965), he enjoyed a con- stitutional right not to be compelled to be a witness

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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. S. 736 (1948); Specht v. Patterson, 386 U. S. 605 (1967); and Mempa v. Rhay, 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 tension between constitutional creates an intolerable 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 In Simmons we held to this case without circumspection. 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

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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 "[a]s an abstract matter" the testimony might be voluntary, and that testimony to secure a benefit from the Government is not ipso facto "compelled" 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 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- In mined, could not constitutionally have been imposed. 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

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given the broad thrust which is attributed Crampton in the present case.

to it by

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. McMann v. Richardson, 397 U. S., at 769. Although a defend- ant may have a right, even of constitutional dimen- sions, to follow whichever course he chooses, the Con- stitution does not by that token always forbid requiring him is whether compelling the election impairs to an appreciable ex- tent 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.

to choose. The threshold question

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 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. S. 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., at 561 and n. 7; cf. Michelson v. United States, 335 U. S. 469 (1948). The narrow question left open is whether it is con-

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sistent 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 (MeNaughton 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 of punishment. The policies behind the privilege are varied, and not all are implicated in any given application of the privilege. See Murphy v. Waterfront Commission, 378 U. S. 52, 55 (1964); see generally 8 J. Wigmore, supra, at § 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, 35 N. Y. 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 cocula4ions of the effect of his testimony on the jury's determination of guilt. The issue of cruelty thus arising however, is less closely akin

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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. g., Brown v. Walker, 161 U. S. 591, 597-598 (1896); Fitzpatrick 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 accouht 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 may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U. S., at 561; cf. Michel- son v. United States, 335 U. S. 469 (1948); but cf. Luck v. United States, 121 U. S. App. D. C. 151, 348 F. 2d 763 (1965); United States v. Palumbo, 401 F. 2d 270 (CA2 1968). Again, it is not thought incon- sistent 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.

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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. American Bar Association, Project on Standards for Criminal Justice, Trial by Jury 107-108 (Approved Draft, 1968). But see Comment, The Mo- tion for Acquittal: A Neglected Safeguard, 70 Yale L. J. 1151 (1961); cf. Cephus v. United States, 117 U. S. App. b. C. 15, 324 F. 2d 893 (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- pelled self-incrimination transgressing the Fifth and Fourteenth Amendments."

Id., at 85.

We arethus 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-

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Opinion of the Court

tions we have described. While we recognize the truth of'Mr. Justice Frankfurter's insight in Green v. United States, 365 t. 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 proved. 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- 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. 0 See generally Barrett, 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

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Opinion of the Court

402 U. S.

It Allocution (pts. 1-2), 9 Mo. L. Rev. 115, 232 (1944). 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., at 304 (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- sumably relevant to the issues involved in sentencing should be permitted to do so." Assuming, without de-

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 "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."

(1954) provides:

22 In 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 the sentence to be imposed." The when he came to determine 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

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Opinion of the Court

ciding, that the Constitution does require such an opportunity, there was no denial 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 (1935), but in any event it seems apparent that Ohio 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.23

Offenders Act. (1967).

Id., at 608. See also Mempa v. Rhay, 389 U. S. 128

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 Fed. Rule Crim. Proc. 32 (a), was not an error of constitutional 'dimensions. The.Court reserved to. speak the would rise to that level. Id., at 429. We have not since had occasion to deal with this or related problems at length.

issue whether silencing, a defendant who wished

23 It may be noted in passing that petitioner at no point requested an opportunity to address the jury personally on the issue of punish- ment. Compare the Georgia practice of permitting the defendant to make an unsworn statement on which he is not subject to cross-

419-882 0 - 72 - 19

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Opinion of the Court

402 U. S.

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, 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- victed, 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

examination, and the deprecating view of this opportunity taken by those familiar with it, all discussed in Ferguson v. Georgia, 365 U. S. 570 (196!).

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Opinion of the Court

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- 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 less 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

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Appendix to opinion of the Court

402 U. S.

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 TO OPINION OF THE COURT

Model Penal Code § 210.6 (Proposed Official Draft,

1962, and changes of July 30, 1962):

(1) 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

(c) 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

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Appendix to opinion of the Court

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 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 shuuld be sentenced to d3ath 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

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Appendix to opinion of the Court

402 U. S.

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- 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 determinatibn 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.

(c) 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 in 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.

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183

Opinion of BLACK, J.

(4) Mitigating Circumstances. (a) The defendant has no significant history of prior

criminal activity.

(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.

Separate opinion of MR. JUSTICE BLACK. I concur in the Court's judgments aid 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 221. 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) (BLACK, J., concurring); United States v. Wade, 388 U. S. 218, 243 (1967) (BLACK, J.,concurring and dissenting). Our

OCTOBER TERM, 1970

DOUGLAS, J., dissenting

402 U. S.

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 conchisions 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- 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. 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) (BLACK, J., dissenting).

It

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BREN- NAN and MR. JUSTICE MARSHALL concur, dissenting in No. 204.

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 Ann. § 2901.01. Petitioner