John Marshall Harlan II

“ 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. ”

“ 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 see 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. ”

“ Except for four States that entirely abolished capital punishment in the middle of the last century, every American jurisdiction has at some time authorized jury sentencing in capital cases. None of these statutes have provided standards for the choice between death and life imprisonment. ”

“ 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. ”

“ 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. ”

“ While we recognize the truth of Mr. Justice Frankfurter's insight in Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (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. ”

“ 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. ”

“ 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. ”

“ If we are mistaken in this, and petitioners contend that Ohio's and California's definitions of first-degree murder are too broad, we consider their position constitutionally untenable.↑ The issue whether a defendant is entitled to an instruction that certain factors such as race are not to be taken into consideration is not before us, as the juries were told not to base their decisions on 'prejudice,' and no more specific instructions were requested. ”

“ 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) . ”

“ 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 premediated' killings, for which the death penalty remained mandatory. ”

“ 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. ”

“ Other States have modified their laws with respect to murder and the death penalty in other ways. [15] 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. ”

“ 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. E.g., United States v. Calderon, 348 U.S. 160, 164 and n. 1, 75 S.Ct. 186, 188, 99 L.Ed. 202 (1954) ; 2 C. Wright, Federal Practice and Procedure § 463 (1969) ; cf. American Bar Association, Project on Standards for Criminal Justice, Trial by Jury 107-108 (Approved Draft, 1968) . ”

“ 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 found it not a little difficult to support this invocation of the Fifth Amendment privilege. We recognized that ' (a) s an abstract matter' the testimony might be voluntary, and that testimony to secure a benefit from the Government is not ipso facto 'compelled' within the meaning of the Self-Incrimination Clause. The 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, 88 S.Ct., at 976. ”

“ He was diagnosed as having a sociopathic personality disorder, along with alcohol and drug addiction. Crampton himself did not testify.
'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 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. ”

“ Even in noncapital 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. ”

“ The States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the 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. ”

“ In the 13th century, Bracton set it down that a man was responsible for all homicides except those which happened by pure accident or inevitably 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 has been preserved in its original form in Ohio and in many other States. [21] 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, 81 S.Ct., at 655 (opinion of Frankfurter, J.) , is nevertheless a very different procedure occurring in a radically different framework of criminal justice. ”

“ 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 presented in a concrete case.' Ibid. ”

“ 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 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. ”

“ Id., at 572, 88 S.Ct., at 1211. Our rejection of this contention was not based solely on the fact that it appeared to run counter to the language and legislative history of the Act. ' (E) ven on the assumption that the failure of Congress to (provide for the convening of a penalty jury) was wholly 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, 88 S.Ct., at 1215. ”