402 U.S. 183 (1971)
Petitioners Dennis McGautha and James Edward Crampton were each convicted of murder in the first degree and sentenced to death pursuant to the statutes of California and Ohio.1
McGautha and his codefendant Wilkinson were charged in California with two armed robberies and a murder committed on February 14, 1967.2 At the guilt stage the evidence showed that McGautha and Wilkinson, armed with pistols, robbed Mrs. Pon Lock’s market of nearly three hundred dollars.3 Later the same day they robbed Mrs. Benjamin Smetana’s store during which Mr. Smetana was fatally shot.4 The jury found both defendants guilty of two counts of armed robbery and one count of first-degree murder.5
The following day the same jury heard the penalty stage.6 The State introduced McGautha’s prior felony convictions.7 Both defendants testified about their backgrounds.8 The jury fixed Wilkinson’s punishment at life imprisonment and McGautha’s at death.9
Crampton was indicted in Ohio for the murder of his wife Wilma Jean purposely and with premeditated malice.10 His guilt and punishment were determined in a single unitary proceeding.11 The State’s main witness was William Collins, a convicted felon who had met Crampton in prison.12 On the evening of the murder Crampton called his wife’s home and learned that she was present.13 He drove to the house and was arrested later that evening for driving a stolen car.14 The murder weapon was found between the seats of the car.15
Mrs. Crampton’s body was found the next morning.16 She had been shot in the face at close range while she was using the toilet.17 The defense introduced hospital records and testimony from Crampton’s mother concerning his background, drug addiction, and prior record.18 The jury returned a verdict of guilty of first-degree murder with no recommendation of mercy.19
In McGautha’s penalty trial the jury was instructed that it was entirely free to act according to its own judgment, conscience, and absolute discretion.20 Beyond prescribing the two alternative penalties the law itself provides no standard for the guidance of the jury.21 In Crampton’s trial the jury was told that if it found first-degree murder the punishment was death unless it recommended mercy, in which event the punishment was imprisonment for life, with no further guidance on the mercy decision.22 Both state supreme courts affirmed the convictions and death sentences.23 The Supreme Court granted certiorari in McGautha limited to the question of standardless jury sentencing and in Crampton on that question plus the constitutionality of the unitary trial procedure.24
Whether the absence of standards to guide the jury’s discretion on the punishment issue is constitutionally intolerable?25
The Due Process Clause of the Fourteenth Amendment does not require that juries receive standards to guide their discretion when deciding between life and death in capital cases.26
No. The facts of the case demonstrate that both states left the life-or-death decision to unguided jury discretion yet satisfied constitutional requirements.27 Petitioners Dennis McGautha and James Edward Crampton were each convicted of first-degree murder and sentenced to death. McGautha and codefendant Wilkinson were charged in California with two armed robberies and a murder on February 14, 1967. At the guilt stage the evidence showed the defendants robbed Mrs. Pon Lock’s market of nearly three hundred dollars. Later the same day they robbed Mrs. Benjamin Smetana’s store during which Mr. Smetana was fatally shot.
The jury found both defendants guilty of two counts of armed robbery and one count of first-degree murder. The following day the same jury heard the penalty stage at which the State introduced McGautha’s prior felony convictions and both defendants testified about their backgrounds. The jury fixed Wilkinson’s punishment at life imprisonment and McGautha’s at death. Crampton was indicted in Ohio for the murder of his wife Wilma Jean purposely and with premeditated malice.
His guilt and punishment were determined in a single unitary proceeding. The State’s evidence included testimony that Crampton had threatened his wife, stolen guns, and was arrested the night of the murder with the forty-five caliber murder weapon in his car. Mrs. Crampton’s body was found the next morning with a forty-five shell casing nearby. The defense introduced hospital records and testimony from Crampton’s mother concerning his background, drug addiction, and prior record.
The jury returned a verdict of guilty of first-degree murder with no recommendation of mercy. In McGautha’s penalty trial the jury was instructed that it was entirely free to act according to its own judgment, conscience, and absolute discretion. Beyond prescribing the two alternative penalties the law itself provides no standard for the guidance of the jury. In Crampton’s trial the jury was told that if it found first-degree murder the punishment was death unless it recommended mercy, in which event the punishment was imprisonment for life, with no further guidance on the mercy decision. Both state supreme courts affirmed the convictions and death sentences.
The Supreme Court granted certiorari in McGautha limited to the question of standardless jury sentencing and in Crampton on that question plus the constitutionality of the unitary trial procedure. History reveals repeated unsuccessful efforts to identify in advance those homicides warranting death.28 The British Home Office and Royal Commission concluded that no formula can account for the infinite variety of circumstances affecting the gravity of murder.29 The Model Penal Code standards provide only minimal control and do not exclude impermissible considerations or protect against whim.30
In light of this history and the present limitations of human knowledge, committing the decision to untrammeled jury discretion is not offensive to the Constitution.31 The States may assume that jurors confronted with the awesome responsibility of decreeing death will act with due regard for the consequences and will consider a variety of factors suggested by the evidence.32
The absence of standards to guide the jury’s discretion on the punishment issue is not constitutionally intolerable.33
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Justice Black concurred in the Court’s judgments and in substantially all of its opinion.34 However, in his view, this Court’s task is not to determine whether the petitioners’ trials were fairly conducted.35 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.36
Our responsibility is rather to determine whether petitioners have been denied rights expressly or impliedly guaranteed by the Federal Constitution as written.37 He agreed 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.38 Likewise, he did not believe that petitioners have been deprived of any other right explicitly or impliedly guaranteed by the other provisions of the Bill of Rights.39
The Eighth Amendment forbids cruel and unusual punishments.40 In his 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.41 It is inconceivable to him that the framers intended to end capital punishment by the Amendment.42
Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, he has never believed that lifetime judges in our system have any such legislative power.43
Justice Brennan dissented arguing that the cases test the viability of principles rooted in the core of the Due Process Clause.44 The question is whether the rule of law is fundamentally inconsistent with capital sentencing procedures constructed to allow maximum possible variation from one case to the next with no mechanism to prevent that variation from reflecting merely random or arbitrary choice.45 The Court misapprehends petitioners’ argument and deals with the cases as if petitioners contend that due process requires capital sentencing under predetermined standards so precise as to be capable of purely mechanical application.46
The Court assumes that legislatures 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.47 The Court is led to conclude that the rule of law and the power of the States to kill are in irreconcilable conflict and resolves the conflict in favor of the States’ power to kill.48 Justice Brennan would reverse the sentences of death because the legislatures of California and Ohio have sought no solution at all and have engaged in stark legislative abdication of the responsibility to provide standards or procedures that limit arbitrary action.49
Justice Douglas dissented on the ground that the unitary trial which Ohio provides in first-degree murder cases does not satisfy the requirements of procedural Due Process under the Fourteenth Amendment.50 Under Ohio law the determination of whether to grant or withhold mercy is exclusively for the jury and cannot be reviewed by either the trial court or an appellate court.51 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.52
The unitary trial is not mercy oriented and the rules are stacked in favor of death.53 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.54 A procedure that makes the killing of people charged with crime turn on the whim or caprice of one man or of twelve lacks the procedural integrity that would likely result in a fair resolution of the issues.
Whether the jury’s imposition of the death sentence in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible?55
The Due Process Clause of the Fourteenth Amendment does not require a bifurcated trial in capital cases even when the defendant wishes to present evidence relevant solely to punishment.56
Yes. The facts of Crampton’s case illustrate that the unitary procedure does not create an intolerable tension between constitutional rights.57 Crampton was indicted in Ohio for the murder of his wife Wilma Jean purposely and with premeditated malice. He pleaded not guilty and not guilty by reason of insanity.58
In accordance with Ohio practice his guilt and punishment were determined in a single unitary proceeding.59 The State’s main witness to the facts surrounding the murder was William Collins, a convicted felon who had met Crampton in prison.60 On the evening of the murder Crampton called his wife’s home and learned that she was present. He drove to the house and was arrested later that evening 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. The defense called Crampton’s mother who testified about his background including a serious concussion at age nine, his drug addiction, and his brushes with the law.61 Crampton’s attorney also introduced hospital reports containing his claim that the shooting was accidental.62 The jury was instructed that if it found the defendant guilty of murder in the first degree the punishment is death unless it recommended mercy, in which event the punishment is imprisonment for life.63
The jury deliberated for over four hours and returned a verdict of guilty with no recommendation for mercy.64 Crampton’s argument that the unitary procedure forced him to choose between remaining silent on guilt or surrendering his chance to plead his case on punishment fails because the criminal process is replete with situations requiring difficult judgments as to which course to follow.65 The Constitution does not forbid requiring a defendant to choose between constitutional rights when the choice does not impair to an appreciable extent the policies behind the rights involved.66 The policies of the privilege against 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.67
The possibility that the single-verdict trial may deter the defendant from bringing to the jury’s attention evidence peculiarly within his own knowledge is not sufficiently great to sustain the claim that the procedure deprives the jury of a rational basis for fixing sentence.68 Ohio has provided for retention of the ritual of allocution to avoid the possibility that a person might be tried, convicted, and sentenced to death in complete silence.69
The jury’s imposition of the death sentence in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible.70
Related opinions on this issue
Justice Brennan’s dissent addresses the unitary trial as part of the broader failure of the Ohio procedure to provide any mechanism for ensuring that the capital sentencing decision rests on articulated state policy rather than whim. The Ohio procedure contains elements that render difficult if not impossible any consistency in result. 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.
A defendant who is to be sentenced by a panel of judges has an absolute right before the sentencing decision becomes final to address the sentencers on any subject he may choose. Yet such information may not be presented to a jury whether the jury desires it or not. The point is that consistent decisionmaking is impossible when one decisionmaker may consider information forbidden to another.
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 there is no idea what facts were relied on by the sentencers.
Justice Douglas focused his dissent on the unitary trial arguing that it does not satisfy procedural due process because it forces the accused to surrender the protection of the Self-Incrimination Clause in order to exercise the right to be heard on the issue of punishment. If the right to be heard were to be meaningful it would have to accrue before sentencing. 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. 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 inevitable effect of the procedure is to discourage assertion of the Fifth Amendment right and to deter exercise of the Sixth Amendment right to demand a jury trial. The constitutional right to be free from the compulsion of self-incrimination may not be exacted as a condition to the constitutional right to be heard on the issue of punishment.