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decided*fn*: May 3, 1971.



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 opinion dissenting in No. 204, in which Brennan and Marshall, JJ., joined, post, p. 226. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 248.

Author: Harlan

[ 402 U.S. Page 185]

 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 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 punishment 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 certiorari in the McGautha case limited to the question whether petitioner's constitutional rights were infringed by permitting the jury to impose the death penalty without 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 jury's imposition of the death sentence in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible. Ibid.*fn1 For the reasons

[ 402 U.S. Page 186]

     that follow, we find no constitutional infirmity in the conviction of either petitioner, and we affirm in both cases.


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 co-defendant Wilkinson were charged with committing two armed robberies and a murder on February 14, 1967.*fn2 In accordance with California procedure in capital cases, the trial was in two stages, a guilt stage and a punishment stage.*fn3 At the guilt trial the

[ 402 U.S. Page 187]

     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 defendant forcibly restrained a customer, the other struck Mrs. Smetana on the head. A shot was fired, fatally wounding 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 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 opening, presented evidence of McGautha's prior felony convictions and sentences, see n. 2, supra, and then rested. Wilkinson testified in his own behalf, relating his unhappy childhood in Mississippi as the son of a white

[ 402 U.S. Page 188]

     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 obtaining 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 suggested 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 participating 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 minister 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 penalty 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 record, medical condition, and remorse. He admitted his criminal record, see n. 2, supra, but testified that he had

[ 402 U.S. Page 189]

     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 sympathy for the defendants in arriving at a proper penalty in this case; however, the law does forbid you from being governed by mere conjecture, prejudice, 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 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 evidence 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,

[ 402 U.S. Page 190]

     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 determining 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.*fn4

[ 402 U.S. Page 191]

     Deliberations began in the early afternoon of August 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 imprisonment and McGautha's punishment at death.

The trial judge ordered a probation report on McGautha. 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.*fn5 McGautha's conviction was unanimously affirmed by the California Supreme Court. 70 Cal. 2d 770, 452 P. 2d 650 (1969). His contention that standardless jury sentencing 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.*fn6 In accordance with the Ohio practice which

[ 402 U.S. Page 192]

     he challenges, his guilt and punishment were determined in a single unitary proceeding.

At trial the State's case was as follows. The Cramptons 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 alcoholism 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 Crampton's brother Jack, were in the State Prison in Michigan. On January 14, 1967, three days before the murder, Collins and Crampton met at Jack Crampton's house in Pontiac, 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

[ 402 U.S. Page 193]

     Crampton had stopped by his wife's home and sent Collins 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 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

[ 402 U.S. Page 194]

     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 information on Crampton's background, including his criminal record, which was substantial, his court-martial conviction 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 concluded that Crampton was sane in both the legal and the medical senses. He was diagnosed as having a sociopathic 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 carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings and to render your verdict accordingly. In fulfilling your duty, your efforts must be to arrive at a just verdict.

[ 402 U.S. Page 195]

     "Consider all the evidence and make your finding 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 prejudiced 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 pronouncing sentence upon him, and the court imposed the death sentence.*fn7 Crampton's appeals through the Ohio courts were unavailing. 18 Ohio St. 2d 182, 248 N. E. 2d 614 (1969).


Before proceeding to a consideration of the issues before us, it is important to recognize and underscore the nature of our responsibilities in judging them. Our function 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 Constitution proscribes the present procedures of these two

[ 402 U.S. Page 196]

     States in such cases. In assessing the validity of the conclusions reached in this opinion, that basic factor should be kept constantly in mind.


We consider first McGautha's and Crampton's common claim: that the absence of standards to guide the jury's discretion on the punishment issue is constitutionally intolerable. To fit their arguments within a constitutional 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 Fourteenth 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.*fn8

[ 402 U.S. Page 197]


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 man was responsible for all homicides except those which happened by pure accident or inevitable necessity, although he did not explain the consequences of such responsibility. 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 proceedings, with the possibility of degradation from orders,

[ 402 U.S. Page 198]

     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 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 restricted to cases of "chance medley," came to include homicides where the existence of adequate provocation rebutted the inference of malice. 3 id., at 46-73.

The growth of the law continued in this country, where there was rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers. Thus, in 1794, Pennsylvania attempted to reduce the rigors of the law by abolishing capital punishment except for "murder of the first degree," defined to include all "willful, deliberate and premeditated" killings, 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 appropriately punishable by death soon proved as unsuccessful as the concept of "malice aforethought." Within a year the distinction between the degrees of murder was practically obliterated in Pennsylvania. See Keedy, History 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: I, 37 Col. L. Rev. 701,

[ 402 U.S. Page 199707]

     -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, in Law and Literature 70, 100 (1931).*fn9

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, paras. 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,

[ 402 U.S. Page 20052]

     (1964). Tennessee was the first State to give juries sentencing discretion in capital cases,*fn10 Tenn. Laws 1837-1838, c. 29, but other States followed suit, as did the Federal Government in 1897.*fn11 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.*fn12 The Court reversed a murder conviction in which the trial judge instructed the jury that it should not return a recommendation of mercy unless it found the existence of mitigating circumstances. The Court found this instruction to interfere 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, illness or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness

[ 402 U.S. Page 201]

     of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone." 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 purpose of the statute." Id., at 749. The only other significant 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 sentencing juries in capital cases, the Court relied heavily

[ 402 U.S. Page 202]

     on the fact that such juries "do little more -- and must do nothing less -- than express the conscience of the community 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.*fn13 Several States have enacted new criminal codes

[ 402 U.S. Page 203]

     in the intervening 12 years, some adopting features of the Model Penal Code.*fn14 Other States have modified their laws with respect to murder and the death penalty in other ways.*fn15 None of these States have followed the Model Penal Code and adopted statutory criteria for imposition of the death penalty. In recent years, challenges to standardless jury sentencing have been presented to many state and federal appellate courts. No 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. 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).


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 discretion in capital sentencing have, it is said, implicitly

[ 402 U.S. Page 204]

     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, 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 provision 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,

[ 402 U.S. Page 205]

     and no formula which fails to do so can claim to be just or satisfy public opinion." 1-2 Royal Commission on Capital Punishment, Minutes of Evidence 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; "the decision of the jury would be within their unfettered discretion and in no sense governed by the principles of law." Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, para. 553 (b). The Commission went on to say, in substantial confirmation of the views of the Home Office:

"No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary judgment on the facts of 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 discretion that in effect supersedes it." Id., at para. 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 para. 498, quoted in Model 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 circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are

[ 402 U.S. Page 206]

     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 circumstances enumerated . . . and any other facts that it deems relevant," and that the court should so instruct when the issue was submitted to the jury. Id., at § 210.6 (2) (Proposed Official Draft, 1962).*fn16 The Final Report of the National Commission on Reform of Federal Criminal Laws (1971) recommended entire abolition of the death penalty in federal cases. In a provisional chapter, prepared for the contingency that Congress 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: "in deciding whether a sentence of death should be imposed, the court and the jury, if any, may consider the mitigating and aggravating circumstances set forth in the subsections below." Id., at provisional § 3604 (1) (emphasis added).

[ 402 U.S. Page 207]

     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 impermissible considerations.*fn17 And, of course, they provide 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 undertaking 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 limitations 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.*fn18 The

[ 402 U.S. Page 208]

     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 consequences 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.


As we noted at the outset of this opinion, McGautha'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 procedure is required by the laws of California and of five other States.*fn19 Petitioner Crampton, whose guilt and punishment were determined at a single trial, contends

[ 402 U.S. Page 209]

     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 defendant 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 construction, 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. "Even on the assumption that the failure of Congress to [provide for the convening of a penalty jury] was wholly inadvertent, 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 complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing 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 petitioners in Spencer v. Texas, 385 U.S. 554 (1967). Like Crampton, Spencer had been tried in a unitary proceeding before a jury which fixed punishment at death. Also like Crampton, Spencer contended that the Due Process

[ 402 U.S. Page 210]

     Clause of the Fourteenth Amendment required a bifurcated 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 petitioners. 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 defendant'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.


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 constitutional right not to be compelled to be a witness

[ 402 U.S. Page 211]

     against himself. Yet under the Ohio single-trial procedure, 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 Simmons 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 legitimate 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 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 permit 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 sanction 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

[ 402 U.S. Page 212]

     sensitive," 390 U.S., at 393, for it involved the incrimination of the defendant out of his own mouth.

We found it not a little difficult to support this invocation of the Fifth Amendment privilege. We recognized that "as 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 distinguishing feature in Simmons' case, we said, was that "the 'benefit' to be gained is that afforded by another provision 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. Richardson, 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 ultimately found not constitutionally entitled, in the trilogy we held the defendants bound by "waivers" of rights under the Fifth, Sixth, and Fourteenth Amendments made in order to avoid burdens which, it was ultimately determined, 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 "tension" between constitutional rights and the policies behind them, the validity of that reasoning must now be regarded as open to question, and it certainly cannot be

[ 402 U.S. Page 213]

     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 difficult judgments" as to which course to follow. McMann v. Richardson, 397 U.S., at 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring 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 constitutional violation in requiring him to undergo a unitary trial.


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 evidence 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 consistent

[ 402 U.S. Page 214]

     with the privilege for the State to provide no means whereby a defendant wishing to present evidence 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 petitioner complains and the historical excesses which gave rise to the privilege. See generally 8 J. Wigmore, Evidence § 2250 (McNaughton rev. ed. 1961); L. Levy, Origins 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 approaching Crampton's dilemma could arise.

The policies of the privilege likewise are remote support for the proposition that defendants should be permitted 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 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

[ 402 U.S. Page 215]

     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 considerations 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 require that the determination whether to waive the privilege 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 may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U.S., at 561; cf. Michelson 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 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 Government case enough for it to support a verdict of guilty.

[ 402 U.S. Page 216]

     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 proved. The relevant differences between sentencing and determination of guilt or innocence are not so great as to call for a difference 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 sentencing is wholly a matter of scientific calculation from objectively 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 damaging his case on guilt. We therefore turn to the converse situation, in which a defendant remains silent on the issue of guilt and thereby loses any opportunity to address the jury personally on punishment.


It is important to identify with particularity the interests 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 confronted petitioner Crampton.*fn20 See generally Barrett,

[ 402 U.S. Page 218]

     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.*fn21 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 concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so.*fn22 Assuming, without deciding,

[ 402 U.S. Page 219]

     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 summation 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 evidence 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 vindication for his interest in making a personal plea for mercy.*fn23

[ 402 U.S. Page 220]

     Even in a bifurcated trial, the defendant could be restricted 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 sufficiently 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 knowledge, we do not think the Constitution forbids a requirement 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 allocution, albeit only in its common-law form, precisely to avoid the possibility that a person might be tried, convicted, and sentenced to death in complete silence. We have held that failure to ensure such personal participation in the criminal process is not necessarily a constitutional flaw in the conviction. Hill v. United States, 368 U.S. 424 (1962). We do not think that Ohio was required 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 petitioner's argument as well.


Before we conclude this opinion, it is appropriate for us to make a broader observation than the issues raised by

[ 402 U.S. Page 221]

     these cases strictly call for. It may well be, as the American 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 enlightened ideas of students of the infant science of criminology, 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 punishment 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, unassisted by standards, to distinguish between those defendants for whom the death penalty is appropriate punishment 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

[ 402 U.S. Page 222]

     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



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 verdict, it does not foreclose all doubt respecting the defendant'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

[ 402 U.S. Page 223]

     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, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in Subsections (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 admissibility under the exclusionary rules of evidence, provided that the defendant's counsel is accorded a fair opportunity 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 imprisonment and the jury returns a verdict that the sentence 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 circumstances enumerated in Subsections (3) and (4) and any

[ 402 U.S. Page 224]

     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 circumstances 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, including 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 another murder or of a felony involving the use or threat of violence to the person.

(c) At the time the murder was committed the defendant 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.

[ 402 U.S. Page 225]

     (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 justification or extenuation for his conduct.

(e) The defendant was an accomplice in a murder committed 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 requirements 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 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 221. The Constitution grants this Court no power to reverse convictions because of our personal beliefs that state criminal procedures are "unfair," "arbitrary," "capricious," "unreasonable," 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

[ 402 U.S. Page 226]

     responsibility is rather to determine whether petitioners have been denied rights expressly or impliedly guaranteed by the Federal Constitution as written. I agree with the Court's conclusions that the procedures employed 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 guaranteed 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 interpretation 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).

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN 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 requirements 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

[ 402 U.S. Page 227]

     was indicted 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 psychiatrist testified on his behalf, offering medical records of his case from two state hospitals. His mother testified 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 carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings 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 finding 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. . . ." (Emphasis added.)

He was found guilty of murder in the first degree without 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

[ 402 U.S. Page 228]

     N. E. 218. On the issue of mercy, viz., life imprisonment 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 misdemeanors,*fn1a pending indictments,*fn2a prior convictions in military service, and dishonorable discharges.*fn3a Once he testifies he can be recalled for cross-examination in the State's case in rebuttal.*fn4a

While the defendant in Ohio has the right of allocution, 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 insufficient evidence*fn5a to convict, the jury's verdict stands and the judge must enter the verdict. Allocution, though mandatory,*fn6a is thus a ritual only.*fn7a

[ 402 U.S. Page 229]

     If the right to be heard were to be meaningful, it would have to accrue before sentencing; yet, except for allocution, 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 exercise

[ 402 U.S. Page 230]

     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 Amendment made applicable to the States by the Fourteenth.

On the question of insanity and punishment the accused 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 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 testimony as to character. "Thus, while the law gives defendant 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 color a jury's judgment on the wholly different issue of guilt.

The greatest comfort the majority has is this Court's recent decision in Spencer v. Texas, 385 U.S. 554, holding that a two-stage trial is not required when a State

[ 402 U.S. Page 231]

     under a habitual-offender statute seeks to introduce on the issue of guilt in a unitary trial evidence of a defendant's prior convictions. Yet Spencer was a five-to-four decision which meant it barely passed muster as a constitutional procedure. The dissent of Mr. Chief Justice Warren, in which three other Justices joined, will have, I think, endurance beyond the majority view.

That dissent, id., at 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. Mr. Chief Justice Warren said: "In England, the prejudice which results from proof of prior crimes before a finding of guilt has been recognized for more than a century, and the rule has been that 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.*fn8a

[ 402 U.S. Page 232]

     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 a 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:

"It is difficult, if not impossible, to prove that a confession which a jury has found to be involuntary has nevertheless influenced the verdict or that its finding of voluntariness, if this is the course it took, was affected by the other evidence showing the confession was true. But the New York procedure poses substantial threats to a defendant's constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined." Id., at 389.

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

[ 402 U.S. Page 233]

     be reviewed by either the trial court*fn9a or an appellate court.*fn10a 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 desirability, advisability or wisdom of recommending mercy."*fn11a While there was not a specific instruction 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 circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you should or should not make such recommendation [of mercy]." Howell v. State, 102 Ohio St. 411, 413, 131 N. E. 706-707. This instruction means that while the jury may not consider general sociological or environmental data, it may consider any such factors which have specifically been admitted into evidence in the case for other purposes. State v. Caldwell, 135 Ohio St. 424, 21 N. E. 2d 343.*fn12a

[ 402 U.S. Page 234]

     But the right of allocution is at best partial and incomplete when the accused himself is barred from testifying on the question of sentencing, and when the only evidence admissible comes from other people or is introduced 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 Art. I, § 10, or by the Fourteenth Amendment, 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 Art. I, § 10, against bills of attainder or the prohibition against cruel and unusual punishments contained 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*fn14a is one of those barriers, as revealed over and over 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.

[ 402 U.S. Page 236]

     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 Page 236} New York, 371 U.S. 208; Sniadach v. Family Finance Corp., 395 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 punishment. We emphasized in Townsend v. Burke, 334 U.S. 736, 741, how the right to be heard through counsel might be crucial to avoid sentencing on a foundation "extensively 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 (opinion of Frankfurter, J.):

"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

[ 402 U.S. Page 237]

     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 defendant, 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 halting 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 denied both counsel and the defendant, the denial reaches constitutional proportions. See United States v. Johnson, 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 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 constitutional level, all must agree that no one can ever show more "aggravating" circumstances than the fact

[ 402 U.S. Page 238]

     that he stands on the verge of receiving the death sentence.

At least then, the right of allocution becomes a constitutional right -- the right to speak to the issues touching 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 protection of the Self-Incrimination Clause of the Fifth Amendment. To obtain the benefit of the former he would have to surrender the latter. MR. JUSTICE HARLAN, 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 that 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.

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 Amendment rights. MR. JUSTICE STEWART 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

[ 402 U.S. Page 239]

     who choose to exercise them, then it would be patently unconstitutional." Id., at 581.

That "undeniable 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-Incrimination 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."

The same result was reached by the Court of Appeals for the District of Columbia Circuit in Melson v. Sard, 131 U. S. App. D.C. 102, 402 F.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 rights must not be conditioned 'by the exaction of a price.'" Id., at 104, 402 F.2d, at 655.

[ 402 U.S. Page 240]

     The words "by the exaction of a price" are from Garrity 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 protection of a statutory right to a hearing. Garrity involved only employment rights. In the same category is Thomas v. United States, 368 F.2d 941, where the Court of Appeals for the Fifth Circuit 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 Circuit expressed the same view in Scott v. United States, 135 U. S. App. D.C. 377, 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

[ 402 U.S. Page 241]

     exacted as a condition to the constitutional right to be heard on the issue of punishment.

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 reconciled with the evolving gloss of civilized standards which this Court, long before the time of those who now sit here, has 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 procedures such as ordeal by battle that became imbedded in the law were difficult to dislodge.*fn15a 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" and "wrong." Once it was a capital offense to steal from the person something "above the value of a shilling."*fn16a

Insight and understanding have increased with the years, though the springs 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 investigation. Psychiatry has shown that blind faith in rightness and wrongness is no reliable measure of human

[ 402 U.S. Page 242]

     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 Amendment 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 satisfies the requirements of procedural due process?

We need not read procedural due process as designed to satisfy man's deep-seated 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 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

[ 402 U.S. Page 243]

     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 brutality and violence" was said by Mr. Chief Justice Hughes to be "revolting to the sense of justice" and "a clear denial of due process." Brown v. Mississippi, 297 U.S. 278, 286.

In 1884 the Court in Hurtado v. California, 110 U.S. 516, 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 unchangeableness attributed to the laws of the Medes and Persians."

The Court went on to point out that though due process has its roots in Magna Carta, the latter contained words that changed with meaning as the centuries passed. Ibid. The Court noted that "this flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law." Id., 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 inherited 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

[ 402 U.S. Page 244]

     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 experiences 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 Carta served merely as a restraint on the executive and as a guide to the House of Commons, the keeper of the Constitution. In this Nation, however, the Constitution serves a different function.

"It necessarily happened, therefore, that as these broad and general maxims of liberty and justice held in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be incongruous to measure and restrict them by the 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 BLACK 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,

[ 402 U.S. Page 245]

     who would not conform and who resisted tyranny. . . . [A] 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 criminal 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 assurance 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 safeguards 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 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

[ 402 U.S. Page 246]

     Butler, speaking for the Court in Pennsylvania v. Ashe, 302 U.S. 51, 55, said:

"For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities 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*fn17a -- in the sense of procedural due process -- is denied where a State makes inadmissible evidence designed to educate the jury on the character and propensities 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 available 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 procedure 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 procedural due process, close the door to evidence relevant to the "intelligent imposition of sentences" either by

[ 402 U.S. Page 247]

     judges or by juries. Cf. Specht v. Patterson, supra, at 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" concerning the defendant's criminal record "which were materially 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 the issues. In Ohio, the deficiency in the procedure is compounded by the unreviewability of the failure to grant mercy.*fn18a

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

[ 402 U.S. Page 248]

     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 "can 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 imprisonment in first-degree murder cases is not palpably "organized to return a verdict of death" in the Witherspoon sense. But the rules governing and restricting 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 to an accused resulting from mingling the issues of guilt, insanity, and punishment in one unitary proceeding 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.


These cases test the viability of principles whose roots draw strength from the very core of the Due Process Clause. The question that 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 variation from reflecting merely random or arbitrary choice. The Court does not, however, come to grips with that fundamental question. Instead, the Court misapprehends

[ 402 U.S. Page 249]

     petitioners' argument and deals with the cases as if petitioners contend that due process requires capital sentencing to be carried out under predetermined standards 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 that the legislatures of Ohio and California are incompetent 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 so polarized, the Court is led to conclude that the rule of law and the power of the States to kill are in irreconcilable 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 multiplicity of imaginative procedures designed by the state and federal legislatures to assure evenhanded treatment and ultimate legislative control regarding matters that the legislatures have deemed either too complex or otherwise 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

[ 402 U.S. Page 250]

     conflict, I would have no hesitation in concluding that the rule of law must prevail.

Except where it incorporates specific substantive constitutional guarantees against state infringement, the Due Process Clause of the Fourteenth Amendment does not limit the power of the States to choose among competing social and economic theories in the ordering of life within their respective jurisdictions. But it does require 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, and 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 "the 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 individuals may mask itself as nothing more than such a permissible 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 decision may be required to rest upon the presence or absence

[ 402 U.S. Page 251]

     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 or exhaustive -- intended to illuminate the question presented without setting a fixed balance. The process may draw upon the genius of the common law, and direct itself toward 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 which it is delegated, with ultimate legislative supervision on questions of basic policy afforded by requiring the decisionmakers to explain their actions, and evenhanded treatment enhanced by requiring disputed factual issues to be resolved and providing for some form of subsequent review. Creative legislatures may devise yet other procedures. 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 procedure designed to give rationality to the capital sentencing process. For the plain fact is that the legislatures 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

[ 402 U.S. Page 252]

     impermissible or inadequate. We are not presented with a legislative attempt to draw wisdom from experience through a process looking toward growth in understanding 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 relevant 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, unbridled, unreviewable exercise of naked power. Almost a century ago, we found an almost identical California procedure constitutionally inadequate to license a laundry. Yick Wo v. Hopkins, 118 U.S. 356, 366-367, 369-370 (1886). Today we hold it adequate to license a life. I would reverse petitioners' sentences of death.


"Our scheme of ordered liberty is based, like the common law, on enlightened and uniformly applied legal principle, not on ad hoc notions of what is right or wrong in a particular case." J. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, in The Evolution of a Judicial Philosophy 289, 291-292 (D. Shapiro ed., 1969).*fn1 The dangers inherent in any grant of governmental power without procedural safeguards 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 Government 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

[ 402 U.S. Page 253]

     Constitution.*fn2 And this principle has been central to the decisions of this Court giving content to the Due Process Clause.*fn3 As we said in Hurtado v. California, 110 U.S. 516, 535-536 (1884):

"It is not to be supposed that . . . the amendment prescribing due process of law is too vague and

[ 402 U.S. Page 254]

     indefinite to operate as a practical restraint. . . . Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but . . . 'the general 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 confiscation . . . and other similar special, partial and arbitrary exertions of power under the forms of legislation. 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.*fn4

[ 402 U.S. Page 255]

     While we have, on rare occasions, held that due process requires specific procedural devices not explicitly commanded by the Bill of Rights,*fn5 we have generally either indicated one acceptable procedure and left the States free to devise others,*fn6 or else merely ruled upon the validity or invalidity of a particular procedure without attempting to limit or even guide state choice of procedural mechanisms beyond stating the obvious proposition that inadequate mechanisms may not be employed.*fn7 Several principles, however, have until today been consistently employed to guide determinations of the adequacy of any given state procedure. "When the Government exacts . . . much, the importance of fair, evenhanded,

[ 402 U.S. Page 256]

     and uniform decisionmaking is obviously intensified." Gillette v. United States, 401 U.S. 437, 455 (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 created and protected by state law, due process requires that state procedures be adequate to allow all those concerned a fair hearing of their state-law claims. Boddie v. Connecticut, 401 U.S. 371 (1971); Covey v. Town of Somers, 351 U.S. 141 (1956); Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950). Third, where federally protected rights are involved, due process commands 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 opportunity 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 structured in such a way that, ultimately at least, fundamental choices among competing state policies are resolved by a responsible organ of state government. Louisiana v. United States, 380 U.S. 145, 152-153 (1965) (BLACK, J.); FCC v. RCA Communications, Inc., 346 U.S. 86, 90 (1953); 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.

[ 402 U.S. Page 257]

     To begin with, we have never treated claims of unconstitutional 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.S. 399 (1966); Winters v. New York, 333 U.S. 507 (1948); Cox v. New Hampshire, 312 U.S. 569 (1941). In Musser v. Utah, 333 U.S. 95 (1948), we even remanded a criminal 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, ante, p. 62 (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 fundamentally premised upon a concept of fair notice, such treatment would simply make no sense: a citizen cannot 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 infra, at 259-265, the inconsistency between theory and practice disappears. Of course such a choice, once made, is not irrevocable: statutes may be amended and statutory construction overruled. Nevertheless, an explicit state choice among possible statutory constructions substantially reduces the likelihood that subsequent convictions under the statute will be based on impermissible

[ 402 U.S. Page 259]

     factors.*fn9 It also renders more effective the available mechanisms for judicial review, by increasing the likelihood that impermissible factors, if relied upon, will be discernible from the record. Thus in Thompson v. Louisville, 362 U.S. 199 (1960), we were faced with the application 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, 397 U.S. 564 (1970) (impossible to determine whether verdict rested upon permissible or impermissible grounds).

Second, in dealing with statutes that are unconstitutionally 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 affords fair warning to the defendants." Dombrowski v. Pfister, 380 U.S., at 491 n. 7 (citations omitted)*fn10; see, e. g., Poulos v. New Hampshire, 345 U.S. 395 (1953). That is, an unconstitutionally overbroad statute may not be enforced at all until an acceptable construction has been obtained, e. g., Thornhill v. Alabama,

[ 402 U.S. Page 260310]

     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 construction of an overbroad statute has obviously not received from that construction any warning that would have enabled 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 punishable, it is hard to see how the doctrine of overbreadth 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 permitting 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 construction 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 policies: 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 encourage. If a vague or overbroad statute is applied before 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 punishable -- 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 construction

[ 402 U.S. Page 261]

     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.*fn11

[ 402 U.S. Page 262]

     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 requiring criminal defendants to pay the costs of prosecution in all cases*fn12 by committing the matter to the discretion of the jury in cases where the defendant was found not guilty.*fn13 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 sufficient 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

[ 402 U.S. Page 263]

     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 provided standards and guides that cure the . . . constitutional deficiencies. We do not agree. . . . In this case the trial judge instructed the jury that it might place the costs of prosecution on the appellant, though found not guilty of the crime charged, if the jury found that 'he has been guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction [and] . . . his misconduct has given rise to the prosecution.'

"It may possibly be that the trial court's charge comes nearer to giving a guide to the jury than those that preceded it, but it still falls short of the kind of legal standard due process requires. . . ." 382 U.S., at 402-404 (emphasis added) (citations omitted).*fn14

Several features of Giaccio are especially pertinent in the present context. First, there were no First Amendment implications in either the conduct charged or that in which Giaccio claimed to have engaged: the State's evidence was to the effect that Giaccio had wantonly discharged a firearm at another, in violation of Pa. Stat.

[ 402 U.S. Page 264]

     Ann., Tit. 18, § 4716 (1963), and Giaccio's defense was that "the firearm he had discharged was a starter pistol which only fired blanks." 382 U.S., at 400. Second, we were not presented with a defendant who had been convicted for conduct he could not have known was unlawful. Whether or not Giaccio's actions fell within § 4716, his conduct was unquestionably punishable under other state laws, e. g., Pa. Stat. Ann., Tit. 18, § 4406 (1963). Finally, it is worthy of note that in Giaccio two members of this Court explicitly sought to base the result upon the ground that, as a matter of substantive due process, the States were forbidden to impose the costs of prosecution upon an acquitted defendant. 382 U.S., at 405 (concurring opinions of STEWART and Fortas, JJ.). Yet we refused to place decision on any such ground. We held instead, consistently with our prior decisions, that the procedure for determining Giaccio's punishment lacked the safeguards against arbitrary action that are required by due process of law.*fn15

[ 402 U.S. Page 265]

     Our decisions applying the Due Process Clause through the doctrine of unconstitutional vagueness, then, lead to the following conclusions. First, the protection against arbitrary and discriminatory action embodied in the Due Process Clause requires that state power be exerted only through mechanisms that assure that fundamental choices among competing state policies be explicitly made by some responsible organ of the State.*fn16 Second, the cases suggest that due process requires as well that state procedures for decision of questions that may have adverse consequences for an individual neither leave room for the deprivation sub silentio of the individual's federally protected rights nor unduly frustrate the federal judicial review provided for the vindication of those rights. This second point is explicitly made in a not unrelated line of cases, to which I now turn.

[ 402 U.S. Page 266]


Whether through its own force or only through the application of other, specific constitutional guarantees, the Due Process Clause of the Fourteenth Amendment protects individuals from a narrow class of impermissible exertions of power by the States. As applied to the procedures whereby admittedly permissible state power is exerted, however, the Due Process Clause has consistently been given a wider scope. "Our system of law has always endeavored to prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136 (1955). Thus, we have never suggested that every judge who has been the target of contemptuous, personal attacks by litigants or their attorneys is incapable of rendering a fair decision on the merits of a contempt charge against such persons; but we have consistently held that, excepting only cases of urgent necessity, due process requires that contempt charges in such cases be heard by a different judge. Mayberry v. Pennsylvania, 400 U.S. 455 (1971); In re Murchison, supra. And in Tumey v. Ohio, 273 U.S. 510 (1927), we did not suggest that every judgment rendered by an official who had a financial stake in the outcome was ipso facto the product of bias. Proceeding from a directly contrary assumption,*fn17 we nevertheless held that due process was violated by any " procedure which would offer a possible temptation to the average man . . . not to hold the balance nice, clear and true between the State and the accused." Id., at 532. In Jackson v. Denno, 378 U.S. 368 (1964), one of the two grounds on which we struck down a New York procedure that required a jury to determine the

[ 402 U.S. Page 267]

     voluntariness of a confession at the same time that it determined his guilt of the crime charged was that the procedure created an impermissible -- and virtually unreviewable -- risk that the jury would not be able to disregard a confession that it felt was both involuntary and true. Id., at 388-391. Similarly, in a long line of cases beginning with Lovell v. Griffin, 303 U.S. 444 (1938), we have repeatedly held that due process is violated by state procedures for the administration of permit systems regulating the public exercise of First Amendment rights if the procedure allows a permit to be denied for impermissible reasons, whether or not an individual can actually demonstrate that he was denied a permit for activity which the State could not lawfully prohibit. And only recently, in Louisiana v. United States, 380 U.S. 145 (1965), we were faced with a state procedure for determining voting qualifications that, in the State's own words, vested "discretion in the registrars of voters to determine the qualifications of applicants for registration," but imposed "no definite and objective standards upon registrars of voters for the administration of the interpretation test." Id., at 152. After quoting, with apparent approval, an 1898 state criticism of a similar procedure on the ground that the "arbitrary power, lodged with the registration officer, practically places his decision beyond the pale of judicial review," ibid., we noted and accepted the District Court's finding that "Louisiana . . . provides no effective method whereby arbitrary and capricious action by registrars of voters may be prevented or redressed." Ibid. We continued:

"The applicant facing a registrar in Louisiana thus has been compelled to leave his voting fate to that official's uncontrolled power to determine whether the applicant's understanding of the Federal or State Constitution is satisfactory. . . . The cherished

[ 402 U.S. Page 268]

     right of people in a country like ours to vote cannot be obliterated by the use of laws like this, which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar. Many of our cases have pointed out the invalidity of laws so completely devoid of standards and restraints." 380 U.S., at 152-153.

On that basis we held the Louisiana procedure for determining the qualifications of prospective voters to be a denial of due process. Ibid.*fn18

Diverse as they are, these cases rest upon common ground. They all stand ineluctably for the proposition that due process requires more of the States than that they not exert state power in impermissible ways. Specifically, the rule of these cases is that state procedures are inadequate under the Due Process Clause unless they are designed to control arbitrary action and also to make meaningful the otherwise available mechanism for judicial review. We have elsewhere made this last point explicit. In Specht v. Patterson, 386 U.S. 605 (1967), we held that due process in commitment proceedings, "whether denominated civil or criminal," id., at 608, requires "findings adequate to make meaningful any appeal that is allowed." Id., at 610; see Garner v. Louisiana, 368 U.S. 157, 173 (1961). And in Jackson v. Denno, supra, the alternative ground on which we struck down a New York procedure for determining the voluntariness of a confession by submitting that question to the jury at the same time as the question of guilt was that the "admixture of reliability and voluntariness in the considerations of the jury would itself entitle a defendant to further proceedings in any case in which the essential

[ 402 U.S. Page 269]

     facts are disputed, for we cannot determine how the jury resolved these issues and will not assume that they were reliably and properly resolved against the accused." 378 U.S., at 387 (emphasis added). In other words, due process forbids the States to adopt procedures that would defeat the institution of federal judicial review.*fn19

The depth to which these principles are embedded in the concept of due process is evidenced by the fact that we have, on occasion, applied them not merely to rule that a particular state procedure is or is not permissible under the Due Process Clause, but that a particular, specific procedure is required by due process. We have repeatedly held, for example, that a guilty plea and its inevitably attendant waivers of federally guaranteed rights are valid only if they represent a "voluntary and intelligent choice" on the part of the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970). The validity of a guilty plea may be tested on federal habeas corpus, where facts outside the record may be pleaded and proved. Waley v. Johnston, 316 U.S. 101 (1942). While recognizing the existence of such a remedy, we held in Boykin v. Alabama, 395 U.S. 238 (1969), that due process requires a record "adequate for any review that may be later sought," id., at 244, and does not permit protection of the federally guaranteed rights to be relegated to "collateral proceedings that seek to probe murky memories." Ibid. Accordingly, we held that due process requires a State, in accepting a plea of guilty, to make a contemporaneous record adequate "to show that [the defendant] had intelligently and knowingly pleaded guilty." Id., at 241. And only last Term, in Goldberg

[ 402 U.S. Page 270]

     v. Kelly, 397 U.S. 254 (1970), we held that because a decision on the withdrawal of welfare benefits must "rest solely on the legal rules and evidence adduced at the hearing," id., at 271, due process requires that the decisionmaker " demonstrate compliance with this elementary requirement" by "stat[ing] the reasons for his determination and indicat[ing] the evidence he relied on." Ibid.


In my view, the cases discussed above establish beyond peradventure the following propositions. First, due process of law requires the States to protect individuals against the arbitrary exercise of state power by assuring that the fundamental policy choices underlying any exercise of state power are explicitly articulated by some responsible organ of state government. Second, due process of law is denied by state procedural mechanisms that allow for the exercise of arbitrary power without providing any means whereby arbitrary action may be reviewed or corrected. Third, where federally protected rights are involved due process of law is denied by state procedures which render inefficacious the federal judicial machinery that has been established for the vindication of those rights. If there is any way in which these propositions must be qualified, it is only that in some circumstances the impossibility of certain procedures may be sufficient to permit state power to be exercised notwithstanding their absence. Cf. Carroll v. President and Commissioners, 393 U.S. 175, 182, 184-185 (1968). But the judgment that a procedural safeguard otherwise required by the Due Process Clause is impossible of application in particular circumstances is not one to be lightly made. This is all the more so when, as in the present cases, the argument of impossibility is not made by the parties before us, but only by this Court. Before we

[ 402 U.S. Page 271]

     conclude that capital sentencing is inevitably a matter of such complexity that it cannot be carried out in consonance with the fundamental requirements of due process, we should at the very least examine the mechanisms developed in not incomparable situations and previously approved by this Court. Therefore, before examining the specific capital sentencing procedures at issue in these cases in light of the Due Process Clause, I am compelled to discuss both the mechanisms available for the control of arbitrary action and the nature of the capital sentencing process.


A legislature that has determined that the State should kill some but not all of the persons whom it has convicted of certain crimes must inevitably determine how the State is to distinguish those who are to be killed from those who are not. Depending ultimately on the legislature's notion of wise penological policy, that distinction may be hard or easy to make.*fn20 But capital sentencing is not the only difficult question with which legislatures have ever been faced. At least since Wayman v. Southard, 10 Wheat. 1 (1825), we have recognized that the Constitution does not prohibit Congress from dealing with such questions by delegating to others the responsibility for their determination. It is not my purpose to trace in detail either the sources and scope of the delegation doctrine or the extent to which it is applicable to the States through the Due Process Clause.

[ 402 U.S. Page 272]

     It is sufficient to state that in my view, whatever the sources of the doctrine,*fn21 its application to the States as a matter of due process*fn22 is merely a reflection of the fundamental principles of due process already discussed: in my Brother HARLAN's words, the delegation doctrine

"insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people [and] prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged." Arizona v.

[ 402 U.S. Page 273]

     K. Davis, Administrative Law Treatise §§ 2.01 to 2.05 (1958). In his words,

"The difficulty and complexity of some types of policy determination requires that the legislative body should be allowed to provide for the administrative working out of basic policy through the use of specialized tribunals which use the common-law method of concentrating upon one particular, narrow, and concrete problem at a time. The protection of advance legislative guidance is of little or no consequence as compared with the protection that can and should be provided through adequate procedural safeguards, appropriate legislative supervision or reexamination, and the accustomed scope of judicial review.

"The protection that comes from a hearing with a determination on the record, from specific findings and reasons, from opportunity for outside critics to compare one case with another, from critical supervision by the legislative authority . . . and from judicial review -- all this is likely to be superior to protection afforded by definiteness of standards." Id., §§ 2.05, at 98-99, 2.09, at 111 (1958).*fn27

[ 402 U.S. Page 275]

     The point made by Professor Davis has, I think, often been recognized by Congress. It is not surprising, then, to see that in many instances Congress has focused its attention much less upon the definition of precise statutory standards than on the creation of other means adequate to assure that policy is set in accordance with congressional desires and that individuals are treated according to uniform principles rather than administrative whim. Viewed in this light, our cases may be considered as illustrating at least three legislative techniques.

First. In a number of instances, Congress has in fact undertaken to regulate even rather complex questions by the prescription of relatively specific standards. It is certainly an open question whether determining what conduct should be subject to criminal sanctions is any more difficult than determining what those sanctions should be; yet Congress and the state legislatures as well have regularly passed criminal codes embodying, in the main, statutes directed at specifically and narrowly defined conduct.*fn28 Similarly, the Congress resolved what was certainly one of the most delicate and complex questions before it in recent years -- the extent, if any, to which the national interest warranted federal regulation of organizations, including political parties, infiltrated by, dominated by, or subject to foreign control -- not by leaving the matter to anyone else but by defining with careful particularity the characteristics that were required before

[ 402 U.S. Page 276]

     an organization could be subject to such regulation. See 50 U. S. C. §§ 782 (3), (4), (4A), (5) (1964 ed., Supp. V); Communist Party v. SACB, 367 U.S. 1 (1961). Congressional response to the complex and intractable problems of the depression era occasionally took a similar form. Thus the Act approved in United States v. Rock Royal Co-op., 307 U.S. 533 (1939), stated a congressional policy to restore parity prices in milk, defined the term, and delegated to the Secretary of Agriculture only the power to issue orders in terms themselves specified in the Act, commanding minimum prices to be determined in accordance with prescribed standards, to be applicable in areas where prices had fallen below the limit set by Congress. See id., at 575-577.

Second. In other circumstances, Congress has granted to others the power to prescribe fixed rules to govern future activity and adjudications. Such delegations of power permit the legislature to declare the end sought and leave technical matters in the hands of experts,*fn29 or to leave to others the task of devising specific rules to carry out congressional policy in a variety of factual situations.*fn30 Where, as is often the case, even major policy decisions may turn on specialized knowledge and expertise beyond legislative ken, delegation of rulemaking power may be made under broad standards to a body chosen for familiarity with the subject matter to be regulated.*fn31 But entirely aside from whatever procedural

[ 402 U.S. Page 277]

     protections may be afforded interested parties prior to the promulgation of administrative rules,*fn32 the very nature of the rulemaking process provides significant guarantees both of evenhanded treatment and of ultimate legislative supervision of fundamental policy questions. Significantly, we have upheld delegations of rule-making power without standards to guide its exercise only in two narrowly limited classes of cases.*fn33 We have otherwise searched the statute, the legislative history, and the context in which the regulation was enacted in order to discern and articulate a legislative policy.*fn34 The point is not whether an intelligible legislative policy was or was not correctly inferred from the statute. The point is that such a policy, once expressly articulated, not only serves to guide subsequent administrative and judicial action but also provides a basis upon which the legislature may determine whether power is being exercised in accordance

[ 402 U.S. Page 278]

     with its will.*fn35 Where no intelligible resolution of fundamental policy questions can be discerned from a statute or judicial decisions, the rulemaking process itself serves to make explicit the agency's resolution of these questions, thus allowing for meaningful legislative supervision,*fn36 as well as providing bases both for judicial review of agency action supposedly premised on the rule*fn37 and for refinement of an old rule in light of experience gained in its administration.

Third. Perhaps the most common legislative technique for dealing with complex questions that will arise in a myriad of factual contexts has been the delegation to another group of lawmaking power which may be exercised either through rulemaking or the adjudication of individual cases, with choice between the two left to the agency's judgment. Such schemes, while allowing broad flexibility for the working out of policy on a case-by-case basis, nevertheless have invariably provided substantial protections to insure against arbitrary action and to guarantee that underlying questions of policy are considered and resolved. As with the delegation simply of rulemaking power, we have often found substantial guidance in the language and history of the governing statute. New York Central Securities Corp. v. United States, 287 U.S. 12 (1932); Radio Commission v. Nelson Bros. Co., 289 U.S. 266 (1933); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). Agency action under such delegations must typically be premised upon an explanation of both the findings and reasons for a given

[ 402 U.S. Page 279]

     decision, e. g., 5 U. S. C. § 557 (c)(3) (1964 ed., Supp. V), a requirement we have held to be far more than an empty formality. SEC v. Chenery Corp., 318 U.S. 80 (1943); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 196-197 (1941). The regular course of adjudication by a continuing body required to explain the reasoning upon which its decisions are based results in the accumulation of a body of precedent from which, over time, general principles may be deduced. See, e. g., the history of the Federal Communications Commission's "fairness doctrine," traced in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-379 (1969). We have often noted the importance of administrative or judicial review in providing a check on the exercise of arbitrary power, Mulford v. Smith, 307 U.S. 38, 49 (1939); American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946), and we have made clear that judicial review is designed to reinforce internal protections against arbitrary or unconsidered action while leaving questions of policy to the agency or the Congress. Thus we have withheld approval from agency action unsupported by an indication of the reasons for that action, Phelps Dodge Corp. v. NLRB, supra ; where the reasons articulated were improper, Sicurella v. United States, 348 U.S. 385 (1955), even though the record might well support identical action taken for different reasons, SEC v. Chenery Corp., supra ; where administrative expertise relevant to the solution of a problem had never been brought to bear upon it, FCC v. RCA Communications, Inc., 346 U.S. 86, 91-92 (1953); where an apparent conflict in administrative rationales had never been explained by the agency, Barrett Line, Inc. v. United States, 326 U.S. 179 (1945); and where a change in agency policy had taken place after the particular adjudication concerned, NLRB v. Gissel Packing Co., 395 U.S. 575, 615-616 (1969).

[ 402 U.S. Page 280]

     Combination of rulemaking and adjudicatory powers has proved a particularly useful tool in situations where prescription of detailed standards in the first instance has been difficult or impossible for the Congress, yet the variety of factual situations has rendered particularly important protection against random or arbitrary decisions. Thus in Lichter v. United States, 334 U.S. 742 (1948),*fn38 this Court dealt with the provisions of the original Renegotiation Act, passed in April 1942, which directed various administrative officials to proceed with compulsory "renegotiation" of contracts that had resulted in "excessive profits." The Act as originally passed attempted no definition of such profits; within four months, however, administrative practice had solidified about a list of six factors to be considered in determining whether profits were excessive; slightly more than two months later, these factors were adopted by Congress in an amendment to the Act. In upholding the original Act against a claim of excessive delegation, we stressed both the rapid development of generally applicable standards, id., at 766, 769, 771, 773-774, 778, 783, and the availability of judicial review to check arbitrary or inconsistent administrative action. Id., at 770, 771, 786-787.


The next question is whether there is anything inherent in the nature of capital sentencing that makes impossible the application of any or all of the means that have been elsewhere devised to check arbitrary action. I think it is fair to say that the Court has provided no explanation for its conclusion that capital sentencing is inherently incapable of rational treatment. Instead, it relies primarily on the Report of the [British] Royal Commission

[ 402 U.S. Page 281]

     on Capital Punishment, which reaches conclusions substantially identical with the following urged in 1785 by Archdeacon William Paley to justify England's "Bloody Code" of more than 250 capital crimes:

"The selection of proper objects for capital punishment principally depends upon circumstances, which, however easy to perceive in each particular case after the crime is committed, it is impossible to enumerate or define beforehand; or to ascertain, however, with that exactness, which is requisite in legal descriptions. Hence, although it be necessary to fix, by precise rules of law, the boundary on one side . . . yet the mitigation of punishment . . . may, without danger, be entrusted to the executive magistrate, whose discretion will operate upon those numerous, unforeseen, mutable and indefinite circumstances, both of the crime and the criminal, which constitute or qualify the malignity of each offence. . . . For if judgment of death were reserved for one or two species of crimes only . . . crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggravation, which did not fall within any description of offences that the laws had made capital, and which, consequently, could not receive the punishment their own malignity and the public safety required. . . .

"The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime, which under any possible circumstances may merit the punishment of death: but, when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes, render them fit examples of public justice. . . . The wisdom and humanity of this design

[ 402 U.S. Page 282]

     furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries." W. Paley, Principles of Moral and Political Philosophy 399-401 (6th Amer. ed. 1810).

Significantly, the Court neglects to mention that the recommendations of the Royal Commission on Capital Punishment found little more favor in England than Archdeacon Paley's. For the "British have been unwilling to empower either courts or juries to decide on life or death, insisting that death should be the sentence of the law and not of the tribunal." Symposium on Capital Punishment, 7 N. Y. L. F. 249, 253 (1961) (H. Wechsler). Beyond the Royal Commission's Report, the Court supports its conclusions only by referring to the standards proposed in the Model Penal Code*fn39 and judging them less than perfect. The Court neglects to explain why the impossibility of perfect standards justifies making no attempt whatsoever to control lawless action. In this context the words of Mr. Justice Frankfurter are instructive:

"It is not for this Court to formulate with particularity the [standards] which would satisfy the Fourteenth Amendment. No doubt, finding a want of such standards presupposes some conception of what is necessary to meet the constitutional requirement we draw from the Fourteenth Amendment. But many a decision of this Court rests on some inarticulate major premise and is none the worse for it. A standard may be found inadequate without the necessity of explicit delineation of the standards that would be adequate, just as doggerel may be felt not to be poetry without the need of writing an essay

[ 402 U.S. Page 283]

     on what poetry is." Niemotko v. Maryland, 340 U.S., at 285 (concurring in result).

But, although I find the Court's discussion inadequate, there remains the question whether capital sentencing is inherently incapable of being carried out under procedures that provide the safeguards necessary to protect against arbitrary determinations. I think not. I reach this conclusion for the following reasons.

First. It is important at the outset to recognize that two separate questions are involved. The first question is what ends any given State seeks to achieve by imposing the death penalty. The second question is whether those ends will or will not be served in any given case. The first question requires determination of the penological policy adopted by the State in choosing to kill some of its convicted criminals.*fn40 The second question requires that the relevant facts in any particular case be determined, and that the State's penological policy be applied to those facts.

Second. It is likewise important to bear in mind that the complexity of capital sentencing in any particular jurisdiction is inevitably a function of the penological policy to be applied. It is not, inherently, a difficult question. Thus, if a State should determine to kill those first-degree murderers who have been previously convicted of murder, and only those persons, the sentencing determination would ordinarily be a rather simple one.*fn41 On the other hand, if a State should determine to exclude only those first-degree murderers who cannot be rehabilitated,

[ 402 U.S. Page 284]

     it is probably safe to assume that the question of proper sentencing under such a policy would be a complex one indeed. It should be borne in mind that either of these policies -- or a host of others -- may have been applied in the cases before us.*fn42

Third. This is neither the time nor the place for an essay on the purposes of criminal punishment. Yet some discussion must be ventured. Without indicating any judgment as to their propriety -- and without intending to suggest that no others may exist -- it is apposite to note that the interests most often discussed in connection with a State's capital sentencing policy are four.*fn43 A State may seek to inflict retribution on a wrongdoer, inflicting punishment strictly in proportion to the offense committed. It may seek, by the infliction of punishment, to deter others from committing similar crimes. It may consider at least some wrongdoers likely to commit other crimes, and therefore seek to prevent these hypothetical future acts by removing such persons from society. It may seek to rehabilitate most offenders, reserving capital punishment only for those cases where it judges the likelihood of rehabilitation to be less than a certain amount. I may assume that many if not all States choosing to kill some convicted criminals intend thereby to further more than one of the ends listed above; and I need not doubt that some States may consider other policies as well relevant to the decision. But I can see no reason whatsoever that a State may be excused from declaring what policies it seeks to further by the infliction of capital punishment merely because it may be difficult to determine how those policies should be applied in any particular case. If anything, it would seem that the difficulty of decision in particular cases would support rather

[ 402 U.S. Page 285]

     than weaken the point that uniform decisionmaking requires that state policy be explicitly articulated. Yet the Court seems somehow to assume that jurors will be most likely to fulfill their function and correctly apply a uniform state policy if they are never told what that policy is. If this assumption finds support anywhere this side of the Looking-Glass World, I am unaware of it.

Fourth. This is not to say, of course, that there may be no room whatsoever for the exercise of discretion in the capital sentencing process. But discretion, to be worthy of the name, is not unchanneled judgment; it is judgment guided by reason and kept within bounds. Otherwise, in Lord Camden's words, it is "the law of tyrants: It is always unknown: It is different in different men: It is casual, and depends upon constitution, temper, passion. -- In the best it is oftentimes caprice: In the worst it is every vice, folly, and passion, to which human nature is liable." Hindson and Kersey, cited in 8 How. St. Tr. 57 n. It may well be that any given State's notions of proper penological policy are such that the precise amount of weight to be given to any one factor in any particular case where death is a possible penalty is incapable of determination beforehand. But that is no excuse for refusing to tell the decisionmaker whether he should consider a particular factor at all. Particularly where decisions are made, not by a continuing body of persons, but by groups selected to make a single decision and dispersed immediately after the event, the likelihood of any consistency whatsoever is vanishingly small. "Perfection may not be demanded of law, but the capacity to counteract inevitable . . . frailties is the mark of a civilized legal mechanism." Rosenberg v. United States, 346 U.S. 273, 310 (1953) (Frankfurter, J., dissenting). The point is that even if a State's notion of wise capital sentencing policy is such that the policy cannot be implemented through a formula capable of mechanical application -- something

[ 402 U.S. Page 286]

     which, incidentally, cannot be known unless and until the State makes explicit precisely what that policy is -- there is no reason that it should not give some guidance to those called upon to render decision.

Fifth. As I have already indicated, typical legislative response to problems deemed of sufficient urgency that some solution must be implemented immediately, yet at the same time of sufficient difficulty as to be incapable of explicit statutory solution, has been to provide a means whereby the law may be usefully developed on a case-by-case basis: systems are devised whereby each case may be decided upon its facts, with consistency and the development of more general principles left to the wisdom that comes from experience. I am speaking, of course, of the administrative process, where the basis and reasons for any given decision are explained and subject to review. I see no reason that capital sentencing is ipso facto unsuited to such treatment. To begin with, if a legislature should deem its present knowledge insufficient to create proper standards, it is hard indeed to see why its solution should not be one that could ultimately lead to the development of such standards. Cf. Lichter v. United States, 334 U.S. 742 (1948). I see no reason that juries which have determined that a given person should be killed by the State should be unable to explain why they reached that decision, and the facts upon which it was based. Persons dubious about the ability of juries to explain their findings should consult Fletcher v. Peck, 6 Cranch 87, 95-114 (1810) (findings of trial jury). Cf. Fed. Rule Civ. Proc. 49. Even if it be assumed that juries are incapable of making such explanations, we have already held that such inability does not excuse the State from providing a sentencing process that provides reasons for the decisions reached if those reasons are otherwise required. North Carolina v. Pearce, 395 U.S. 711, 726 (1969).

[ 402 U.S. Page 287]

     In sum, I see no reason whatsoever to believe that the nature of capital sentencing is such that it cannot be surrounded with the protections ordinarily available to check arbitrary and lawless action. That it has not been is, of course, no reason to believe that it cannot be:

"As to impossibility, all I can say is that nothing is more true of [the legal] profession than that the most eminent among them, for 100 years, have testified with complete confidence that something is impossible which, once it is introduced, is found to be very easy of administration. The history of legal procedure is the history of rejection of reasonable and civilized standards in the administration of law by most eminent judges and leading practitioners. . . . Every effort to effect improving changes is resisted on the assumption that man's ultimate wisdom is to be found in the legal system as at the date at which you try to make a change." F. Frankfurter, The Problem of Capital Punishment, in Of Law and Men 77, 86 (1956).


I have explained above the reasons for my belief that the Due Process Clause of the Fourteenth Amendment compels the States to make explicit the fundamental policy choices upon which any exertion of state power is based, and to exercise such power only under procedures that both limit the possibility of merely arbitrary action and provide a record adequate to render meaningful the institution of federal judicial review. I have also explained why, in my view, there is nothing inherent in the nature of capital sentencing that makes application of such procedures impossible. There remains, then, only the question whether the two state procedures under review today provide the necessary safeguards.

[ 402 U.S. Page 288]


In Ohio, if a capital defendant elects trial by jury the questions whether he is guilty of the crime charged and, if so, whether he should be killed are simultaneously submitted to the jury. Jury trial may, however, be waived as of right in capital cases, State v. Smith, 123 Ohio St. 237, 174 N. E. 768 (1931),*fn44 or a defendant may, with the permission of the court, enter a plea of guilty. State v. Ferranto, 112 Ohio St. 667, 148 N. E. 362 (1925). In the absence of jury trial the sentencing decision is made by a three-judge court. Ohio Rev. Code Ann. § 2945.06 (1954).

A defendant who exercises his right to jury trial may introduce only evidence relevant to the question of guilt. No evidence may "be introduced directed specifically toward a claim for mercy," Ashbrook v. State, 49 Ohio App. 298, 302, 197 N. E. 214, 216 (1935), for that "is a matter vested fully and exclusively in the discretion of the jury," State v. Ellis, 98 Ohio St. 21, 120 N. E. 218 (court's syllabus) (1918), and therefore, under Ohio law, is "not an issue in the case." Ashbrook v. State, supra. A defendant who can present no evidence on the question of guilt may not, therefore, present any evidence whatsoever to the sentencing jury.

A defendant who waives jury trial, however, is in a somewhat different situation. Presumably, of course, the same rules of evidence apply at a bench trial or at a trial upon a plea of guilty.*fn45 Where the sentencing

[ 402 U.S. Page 289]

     determination is made by the court, however, two additional factors apply. First, the defendant has an absolute right to address the court before sentence is imposed, Ohio Rev. Code Ann. § 2947.05 (1954), denial of which is a ground for resentencing. Silsby v. State, 119 Ohio St. 314, 164 N. E. 232 (1928). Since the jury's decision that a defendant should be killed is unreviewable by any court, State v. Klumpp, 15 Ohio Op. 2d 461, 468, 175 N. E. 2d 767, 775-776, appeal dismissed, 171 Ohio St. 62, 167 N. E. 2d 778 (1960) (trial court); State v. Reed, 85 Ohio App. 36, 84 N. E. 2d 620 (1948), exercise of this right can have no effect on the sentencing determination in jury cases. But the trial court may modify its own sentence during the same term of court, see Lee v. State, 32 Ohio St. 113 (1877), and may therefore be swayed by the defendant's personal plea. Moreover, Ohio Rev. Code Ann. § 2947.06 (Supp. 1970) expressly permits a trial court to "hear testimony of mitigation of a sentence at the term of conviction or plea." If this statute is applicable to capital cases,*fn46 defendants pleading guilty or waiving jury trial may introduce additional information on the question of sentence. Again, however, the unreviewability of a jury sentence means that it can have no effect in cases tried to a jury. Finally, a death sentence imposed by a three-judge court may not be reviewed or modified on appeal. State v. Ferguson, 175 Ohio St. 390, 195 N. E. 2d 794 (1964); State v. Stewart, 176 Ohio St. 156, 198 N. E. 2d 439 (1964).

The standard instruction given capital juries on the question of punishment appears in State v. Caldwell, 135 Ohio St. 424, 425, 21 N. E. 2d 343, 344 (1939):

"You will determine whether or not you will extend or withhold mercy. . . . In that connection

[ 402 U.S. Page 290]

     whether you recommend or withhold mercy is a matter solely within your discretion, calling for the exercise of your very best and most profound judgment, not motivated by considerations of sympathy or as a means of escaping a hard or disagreeable duty, but must be considered by you in the light of all the circumstances of the case with respect to the evidence submitted to you and the other circumstances surrounding this defendant."

The jury may be instructed that "sociological matters and environment" have "nothing whatever to do with [the] case," id., at 428, 21 N. E. 2d, at 344, but it appears that this instruction is not generally given. Likewise, the trial court may, but is not compelled to, inform the jury about matters such as parole from a sentence to life imprisonment. State v. Meyer, 163 Ohio St. 279, 126 N. E. 2d 585 (1955); State v. Henley, 15 Ohio St. 2d 86, 238 N. E. 2d 773 (1968). In petitioner Crampton's case, the jury was instructed generally that it should not be "influenced by any consideration of sympathy or prejudice." On the question of punishment, it was told only 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." The jury was also handed a verdict form with a "line which you must fill in. We -- blank -- recommend mercy and you will put in that line, we do, or, we do not, according to your finding." Except for a supplementary instruction informing the jury that its recommendation had to be unanimous, no further instructions on the question of punishment were given the jury.

There is in my view no way that this Ohio capital sentencing procedure can be thought to pass muster under the Due Process Clause.

[ 402 U.S. Page 291]

     may be rehabilitated. Certainly this indication is reinforced in cases where the jury is instructed with regard to the possibility of parole from a life sentence. But instructions on parole are optional with the trial court, State v. Henley, supra; State v. Meyer, supra, and unless it be assumed that every jury not so instructed is nevertheless aware of the possibility of parole (and likewise that, despite instructions to base its verdict on the evidence in the case, it will nevertheless rely upon its own knowledge of the possibility of parole), failure to instruct all juries with regard to parole must mean either that a state policy with regard to rehabilitation is not in fact implied by such instructions, or else that such a state policy is consciously applied only in some capital cases. Finally, one Ohio case may be explicable only on a basis suggested nowhere else in Ohio law: that the capital sentencing decision rests upon factors that vary depending upon which of two simultaneously applicable capital statutes is used to support punishment. In State v. Ferguson, 175 Ohio St. 390, 195 N. E. 2d 794 (1964), the defendant had been convicted on guilty pleas entered to charges of premeditated murder and felony murder, both growing out of the murder, during the course of a robbery, of a single individual. The three-judge court that heard evidence to fix the penalty on both charges at the same time sentenced him to life imprisonment on the premeditated murder charge, and to death on the charge of felony murder. The Ohio Supreme Court affirmed the sentence of death. In light of these cases, I think it fair to say that Ohio law has nowhere purported to set forth the considerations of state policy intended to underlie a sentence of death.

Third. Even if it be assumed that Ohio sentencing judges and juries act upon shared, although unarticulated and unarticulable, notions of proper capital sentencing

[ 402 U.S. Page 294]

     policy, the capital sentencing process in Ohio contains elements that render difficult if not impossible any consistency in result. Presumably all judges, and certainly some juries (i. e., those who are specifically so instructed) will be cognizant of the possibility of parole from a sentence to life imprisonment. Other juries will not. If this is an irrelevant factor, it is hard to understand why some juries may be given this information. If it is a relevant factor, it is equally hard to understand why other juries are not. And if it is a relevant factor, the inevitable consequence of presenting the information, for no explicable reason, to some but not all capital sentencing juries, is that consistency in decisionmaking is impossible. Similarly, as I have already noted,*fn48 there is a substantial difference between the evidence that may be considered by a jury and that which may be considered by a sentencing panel of judges. For although the defendant may, in a jury trial, testify on the question of guilt if he is willing to forgo his privilege against self-incrimination, he may not even then present evidence relevant solely to the question of penalty. A defendant who is to be sentenced by a panel of judges, on the other hand, has an absolute right before the sentencing decision becomes final to address the sentencers on any subject he may choose.*fn49 And such a defendant appears as well to have at least a chance to present evidence from other sources relevant solely to the sentencing determination before that determination becomes final.*fn50 Yet such information may not be presented to a jury, whether the jury desires it or not. The point, again, is that consistent decisionmaking is impossible when one decisionmaker may consider information forbidden to another.

[ 402 U.S. Page 295]

     And where, as here, no basis whatsoever is presented to justify the difference, it is inexcusable.*fn51

Fourth. There is, moreover, no reason to believe that Ohio capital sentencing judges and juries do in fact share common notions of the considerations relevant to capital sentencing. I have already pointed out that no state policy has ever been articulated. And whatever may be the case with judges, capital sentencing juries are drawn essentially at random*fn52 and called upon to decide one case and one case only.*fn53 Whatever value there may be in the notion that arbitrary decisionmaking may be controlled by committing difficult questions to a continuing body which can at least maintain consistency of principle until it changes its views on the questions to be decided, is entirely absent from the capital jury sentencing process

[ 402 U.S. Page 296]

     presently under review. For capital sentencing juries in Ohio are not continuing bodies, and no jury may be told what another jury has done in similar (or different) cases. Likewise, the procedure under review cannot gain uniformity from judicial review, for under Ohio law no such review is permitted.

Fifth. Although the Due Process Clause does not forbid a State from imposing "a different punishment for the same offence . . . under particular circumstances," Moore v. Missouri, 159 U.S. 673, 678 (1895), it does command that punishment be "dealt out to all alike who are similarly situated." Ibid.; Leeper v. Texas, 139 U.S. 462, 468 (1891); Missouri v. Lewis, 101 U.S. 22, 31 (1880). Even granting the State the fullest conceivable room for judgment as to what are and are not "particular circumstances" justifying different treatment, this means at the least that the State must itself apply the same fundamental policies to all in making that judgment. The institution of federal judicial review is designed to vindicate this (and other*fn54 ) federally guaranteed rights. Yet the procedure before us renders the possibility of such review entirely chimerical. There is no way of determining what policies were applied by the State in reaching judgment. There is no way of inferring what policies were applied by an examination of the facts, for we have no idea what facts were relied on by the sentencers. Nor may this void be filled in any way by presumptions based on the result of their actions, for they were neither given direction in the exercise of judgment nor asked to explain the conclusion they reached. There

[ 402 U.S. Page 297]

     is simply no way that this or any other court can determine whether petitioner Crampton was condemned to die for reasons that Ohio would be willing to apply in any other case -- or for reasons that Ohio would, if they were explicitly set forth, just as explicitly reject.

In sum, the Ohio capital sentencing procedure presently before us raises fundamental questions of state policy which have never been explicitly decided by any responsible organ of the State. Nothing in the procedure looks towards the gradual development of a uniform state policy through accumulation of a body of precedent. No protection whatsoever appears against the possibility of merely arbitrary or willful decisionmaking; moreover, some features of the process appear to make inconsistent action not merely possible but inevitable. And finally, the record provided by the Ohio capital sentencing process makes virtually impossible the redress of any violations of federally guaranteed rights through the institution of federal judicial review. I can see no possible basis for holding such a capital sentencing procedure permissible under the Due Process Clause, and I would therefore reverse petitioner Crampton's sentence of death.


The procedures whereby the State of California determines which convicted criminals to kill differ in a number of respects from those used by Ohio. Following conviction of a possibly capital crime,*fn55 the question of penalty

[ 402 U.S. Page 298]

     is determined in a separate proceeding.*fn56 Except where the defendant has, with the prosecution's consent,*fn57 waived trial by jury, the sentencing determination is made by a jury whether conviction was on a plea of guilty or not guilty. A defendant who waives jury trial on the issue of guilt may not have his sentence determined by a jury. People v. Golston, 58 Cal. 2d 535, 375 P. 2d 51 (1962). Notwithstanding the statutory language,*fn58 it appears possible for a defendant whose guilt is determined

[ 402 U.S. Page 299]

     by a jury to have his sentence determined by a judge. See People v. Sosa, 251 Cal. App. 2d 9, 58 Cal. Rptr. 912 (1967). If a jury is waived, identical sentencing power will be exercised by a single judge. People v. Langdon, 52 Cal. 2d 425, 341 P. 2d 303 (1959); People v. Jones, 52 Cal. 2d 636, 343 P. 2d 577 (1959). A jury determination to impose a death sentence may be set aside by the judge presiding at the trial, Cal. Penal Code § 1181 (7) (1970), construed in People v. Hill, 66 Cal. 2d 536, 426 P. 2d 908 (1967). It may not be otherwise reviewed, whether fixed by a judge or jury. People v. Welch, 58 Cal. 2d 271, 373 P. 2d 427 (1962) (judge); In re Anderson, 69 Cal. 2d 613, 447 P. 2d 117 (1968).*fn59

The range of evidence that may be introduced at the penalty trial is broad. Ordinary rules of competence, hearsay, etc., apply, e. g., People v. Hines, 61 Cal. 2d 164, 174-175, 390 P. 2d 398, 405 (1964), and a few issues are excluded. Exclusion, however, appears to be not on the basis that the issues are irrelevant, but rather that they are either unduly inflammatory or impractical to litigate. Thus, evidence or argument is prohibited concerning the likelihood of parole from a life sentence, People v. Morse, 60 Cal. 2d 631, 388 P. 2d 33 (1964);*fn60 concerning the deterrent effects of capital punishment, People v. Purvis, 60 Cal. 2d 323, 341, 384 P. 2d 424, 435-436 (1963); People v. Love, 56 Cal. 2d 720, 366 P. 2d 33 (1961); People v. Kidd, 56 Cal. 2d 759, 366 P. 2d 49

[ 402 U.S. Page 300]

     (1961),*fn61 although some reference to the matter may (as in the present case, see App. 199) be made by the prosecution and be treated under the harmless-error doctrine, People v. Garner, 57 Cal. 2d 135, 367 P. 2d 680 (1961), especially if trial is to the court, People v. Welch, 58 Cal. 2d 271, 274, 373 P. 2d 427, 429 (1962); concerning whether capital punishment should ever be imposed, People v. Moya, 53 Cal. 2d 819, 350 P. 2d 112 (1960);*fn62 or concerning physical suffering of the victim unintended by the defendant, People v. Love, 53 Cal. 2d 843, 350 P. 2d 705 (1960).*fn63 Except for these limitations, however, virtually any matter may be explored. People v. Terry, 61 Cal. 2d 137, 142-153, 390 P. 2d 381, 385-392 (1964).

Following the arguments of counsel,*fn64 the jury is instructed on its function in determining the penalty to be imposed. A standard instruction on the subject exists*fn65

[ 402 U.S. Page 301]

     but is not mandatory; it is, essentially, the instruction given in the present case:

"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 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 evidence in aggravation of the offense on the other hand.

"It is the law of this state that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury. If you should fix the penalty as confinement for life, you will so indicate in your verdict. If you should fix the penalty as death, you will so indicate in your verdict. Notwithstanding facts, if any, proved in mitigation or aggravation, in determining which 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

[ 402 U.S. Page 302]

     guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury. In the determination of that matter, if the jury does agree, it must be unanimous as to which of the two penalties is imposed."*fn66

Substantially more elaborate versions of this instruction may, if the trial court desires, be given. People v. Harrison, 59 Cal. 2d 622, 381 P. 2d 665 (1963). In addition, the trial court is supposed to instruct the jury that a defendant serving a life sentence may be paroled, but that it should not presume that the California Adult Authority will release a prisoner until it is safe to do so, and that it should not take the possibility of parole into account. People v. McGautha, 70 Cal. 2d 770, 452 P. 2d 650 (1969). Finally, under California law it is error to charge that the jury's verdict should express the conscience of the community; the jury should be told, instead, that the verdict must "express the individual conscience of each juror." People v. Harrison, supra, at 633, 381 P. 2d, at 671.*fn67

[ 402 U.S. Page 303]

     A substantial number of subsidiary instructions may but need not be given to the jury; the governing principle is that the instructions must make clear to the jury that its decision whether or not a convicted defendant is to be killed is to take place in a "legal vacuum." People v. Terry, 61 Cal. 2d, at 154, 390 P. 2d, at 392; see People v. Friend, 47 Cal. 2d 749, 306 P. 2d 463 (1957). A trial judge may, should he desire, "aid the jury by stating the kinds of factors that may be considered, thereby setting the tone for the jury's deliberation," People v. Polk, 63 Cal. 2d 443, 451, 406 P. 2d 641, 646 (1965), so long as this is done in a manner that indicates to the jury that it is free not to consider any of the factors listed by the judge, and to consider anything else it may desire, People v. Friend, supra. It is not, however, error to refuse such an instruction. People v. Polk, supra. Similarly, although a trial judge may instruct the jury that it may be moved by sympathy for the defendant, People v. Anderson, 64 Cal. 2d 633, 414 P. 2d 366 (1966), he may refuse to give such an instruction at defense request, People v. Hillery, 65 Cal. 2d 795, 423 P. 2d 208 (1967), although it is error to instruct the jury that it may not be so moved. People v. Polk, supra; People v. Bandhauer, 1 Cal. 3d 609, 463 P. 2d 408 (1970). It is error to instruct the jury that it may not consider doubts about the defendant's guilt as mitigating circumstances, People v. Terry, supra, but it is not error to refuse to charge that such doubt may be a mitigating factor, People v. Washington, 71 Cal. 2d 1061, 458 P. 2d 479 (1969), although the trial judge may give such a charge if he desires, People v. Polk, supra; People v. Terry, supra.

Finally, a jury determination to impose the death sentence may not be reviewed by any court. It may, however, be set aside by the judge presiding at the trial. The

[ 402 U.S. Page 304]

     basis upon which the California Supreme Court has made this distinction, of some importance in the present case, is not entirely clear. The trial judge's power to reduce a sentence of death to one of life imprisonment is based on Cal. Penal Code § 1181 (7) (1970), which provides, in pertinent part, that "in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed." The California Supreme Court has construed this statute to empower the trial court to set aside a jury verdict of death, People v. Moore, 53 Cal. 2d 451, 454, 348 P. 2d 584, 586 (1960), but not to give any such power to an appellate court, People v. Green, 47 Cal. 2d 209, 235, 302 P. 2d 307, 324-325 (1956); In re Anderson, 69 Cal. 2d 613, 447 P. 2d 117 (1968). This is said to be because "the trier of fact is vested with exclusive discretion to determine punishment." People v. Green, supra, at 235, 302 P. 2d, at 325. What this means is that the trial court does not review the jury's determination that a convicted defendant should be killed; based upon its "own independent view of the evidence," People v. Love, 56 Cal. 2d, at 728, 366 P. 2d 33, 36, quoting People v. Moore, supra, at 454, 348 P. 2d, at 586 (1960), the trial court is to determine itself whether the defendant should be killed, apparently on exactly the same basis and in exactly the same way as it would if the issue had never been submitted to a jury.*fn68 See People v. Moore, supra; People v. Hill, 66 Cal. 2d 536, 426 P. 2d 908 (1967); People v. Love, supra; In re Anderson, supra.

[ 402 U.S. Page 305]

     In short, no defendant sentenced to die may obtain judicial review of that decision, but one sentenced to die by a jury gets a second bite at the apple: he is "entitled to two decisions on the evidence." People v. Ketchel, 59 Cal. 2d 503, 546, 381 P. 2d 394, 417 (1963).

I find this procedure likewise defective under the Due Process Clause. Although it differs in some not insignificant respects from the procedure used in Ohio, it nevertheless is entirely bare of the fundamental safeguards required by due process.

First. Both procedures contain at their heart the same basic vice. Like Ohio, California fails to provide any means whereby the fundamental questions of state policy with regard to capital sentencing may be authoritatively resolved. They have not been resolved by the state legislature, which has committed the matter entirely to what every judge or jury may exercise sentencing authority in any particular case. But they cannot be authoritatively resolved by the sentencing authority, not only because the California Supreme Court has expressly ruled that that is not part of the sentencing function, People v. Kidd, 56 Cal. 2d, at 770, 366 P., at 56, but also because any such resolution is binding for one case and one case only. There are simply no means to assure that "truly fundamental issues [will ultimately] be resolved by the Legislature," Wilke & Holzheiser, Inc. v. Department of Alcoholic Beverage Control, 65 Cal. 2d 349, 369, 420 P. 2d 735, 748 (1966). Nothing whatsoever anywhere in the process gives any assurance that one defendant will be sentenced upon notions of California penological policy even vaguely resembling those applied to the next.

Second. If the question before us were what procedure would produce the fewest number of death sentences, the power of a trial judge to set aside a jury's verdict might be of substantial importance. But that, of course, is not

[ 402 U.S. Page 306]

     the question. Except insofar as it incorporates the Eighth Amendment's prohibition against cruel and unusual punishments -- not an issue in these cases -- the Due Process Clause gives us no warrant to interfere with a State's decision to make certain crimes punishable by death. The Due Process Clause commands us, however, to make certain that no State takes one man's life for reasons that it would not apply to another. And even if it be assumed that trial judges obey the California Supreme Court's direction to exercise their own, independent judgment on the propriety of a jury-imposed death penalty,*fn69 the existence of the trial court's power to set aside such verdicts adds little to the likelihood of evenhanded treatment. For this power is to be exercised in precisely the same way as the jury's -- without guideline or check, without review, without any explanation of reasons or findings of fact, without any opportunity for ultimate legislative acceptance or rejection of the policies applied. It is true that trial judges are in a sense "professional sentencers"; presumably any given judge, to the extent that he actually does exercise independent judgment on the question,*fn70 will do his best to avoid conscious inconsistency. But there remains a multiplicity of sentencing judges, all of whom have been expressly told by the Supreme Court of California not to seek guidance for their decision from the statute, from that court's opinions, or indeed from any source outside their own, individual opinions. See supra, at 304-305.

[ 402 U.S. Page 307]

     In such circumstances, the possibility of consistent decisionmaking is nonexistent. "A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law." Garner v. Teamsters Local 776, 346 U.S. 485, 490-491 (1953).

Third. Like its Ohio counterpart, the California procedure before us inevitably operates to frustrate the institution of federal judicial review. We do not and cannot know what facts the jury relied upon in determining that petitioner McGautha should be killed, or the reasons upon which it based that decision. We do not know -- and cannot know -- the basis upon which the State of California determined that he was not "fit to live," People v. Morse, 60 Cal. 2d, at 647, 388 P. 2d, at 43. We do know that the prosecutor, in her closing argument, strongly urged to the jury that Dennis Councle McGautha should be killed because he had the unregenerate bad taste to insist that he had once pleaded guilty to a crime he did not commit.*fn71 Cf. North Carolina v. Alford, 400 U.S., at 32-39. We also know

[ 402 U.S. Page 308]

     that nothing in the instructions given the jury contained the slightest hint that this could not be the sole basis for its decision. See supra, at 301-302. And, finally, we also know that whatever factors the State of California relied upon to sentence petitioner McGautha to death -- factors permissible or impermissible, applied by the State to every convicted capital criminal or to him alone -- there is no way whatsoever that petitioner can demonstrate that those factors were relied upon and obtain review of their propriety. In short, the procedure before us in this case simultaneously invites sentencers to flout the Constitution of the United States and promises them that, should they do so, their action is immune from federal judicial review.*fn72 Astoundingly, the Court in upholding the procedure explicitly commends this very feature. See ante, at 207-208.*fn73 I do not think that such a procedure

[ 402 U.S. Page 309]

     is consistent with the Due Process Clause, and I would accordingly reverse petitioner McGautha's sentence of death.


I have indicated above the reasons why, in my judgment, the procedures adopted by Ohio and California to sentence convicted defendants to die are inconsistent with the most basic and fundamental principles of due process. But even if I thought these procedures adequate to try a welfare claim -- which they are not, Goldberg v. Kelly, 397 U.S. 254 (1970) -- I would have little hesitation in finding them inadequate where life itself is at stake. For we have long recognized that the degree of procedural regularity required by the Due Process Clause increases with the importance of the interests at stake. See Cafeteria Workers v. McElroy, 367 U.S. 886, 895-896 (1961); id., at 900-901 (dissent). Where First Amendment interests have been involved we have held the States to stringent procedural requirements indeed. See, e. g., Stanley v. Georgia, 394 U.S. 557 (1969); Freedman v. Maryland, 380 U.S. 51 (1965); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Marcus v. Search Warrant, 367 U.S. 717 (1961); Speiser v. Randall, 357 U.S. 513 (1958). Of course the First Amendment is "an interest of transcending value," id., at 525, but so is life itself. Yet the Court's opinion turns the law on its head to conclude, apparently, that because a decision to take someone's life is of such tremendous import, those who make such decisions need not be "inhibit[ed]" by the safeguards otherwise required by due process of law. Ante, at 208. My belief is to the contrary, and I would hold that no State which determines to take a human life is thereby exempted from the constitutional command that it do so only by "due process of law."

[ 402 U.S. Page 310]


Finally, a few words should be said about matters peripherally suggested by these cases. First, these cases do not in the slightest way draw into question the power of the States to determine whether or not to impose the death penalty itself, any more than Giaccio v. Pennsylvania, 382 U.S. 399 (1966), involved the power of the State of Pennsylvania to impose criminal punishment on persons who should fire a pistol loaded with blanks at another. Second, these cases do not call upon us to determine whether petitioners' trials were "fairly conducted" in the way referred to by my Brother BLACK. Ante, at 225. What they do call upon us to determine is whether the Due Process Clause requires the States, in his words, "to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power," In re Winship, 397 U.S. 358, 384 (1970) (dissent), and whether if a State, acting through its jury, applies one standard to determine that one convicted criminal should die, "the Due Process Clause commands that every trial in that jurisdiction must adhere to that standard." Id., at 386. Third, we are not called upon to determine whether "the death penalty is appropriate punishment" for the petitioners before us. Ante, at 221. That determination is for the States.*fn74 The Court, however, apparently believes that the procedures before us are to be upheld because the results in the present cases comport with its own, unarticulated notions of capital sentencing policy. See ibid. This fundamental misapprehension of the judicial function pervades the Court's opinion, which after a single brief mention of the Due Process Clause entirely eschews discussion

[ 402 U.S. Page 311]

     of the Constitution, and instead speaks only of the considerations upon which it believes the States should rest their capital sentencing policy. Ante, at 196-208.

Finally, I should add that for several reasons the present cases do not draw into question the power of the States that should so desire to commit their criminal sentencing powers to a jury. For one thing, I see no reason to believe that juries are not capable of explaining, in simple but possibly perceptive terms, what facts they have found and what reasons they have considered sufficient to take a human life. Second, I have already indicated why I believe that life itself is an interest of such transcendent importance that a decision to take a life may require procedural regularity far beyond a decision simply to set a sentence at one or another term of years. Third, where jury sentencing involves such a decision, determination of the ultimate question -- how many years a defendant will actually serve -- is generally placed very substantially in the hands of a parole board -- a single, continuing board of professionals whose general supervision and accumulated wisdom can go far toward insuring consistency in sentencing. And finally, in most cases where juries are asked to fix a convicted defendant's sentence at one or another term of years, they must inevitably be aware that, no matter what they do, the defendant will eventually return to society. With this in mind, a jury should at the very least recognize that rehabilitation must be a factor of substantial weight in its deliberations. Of course, none of these cases are before us, and I do not mean to imply that any and every question other than the question of life or death may be submitted by a State to a jury to be determined in its unguided, unreviewed, and unreviewable discretion. But I cannot help concluding that the Court's opinion, at its

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     core, rests upon nothing more solid than its inability to imagine any regime of capital sentencing other than that which presently exists. I cannot assent to such a basis for decision. "If we would guide by the light of reason, we must let our minds be bold." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

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