William J. Brennan, Jr.

“ 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. ”

“ It contains no element of the proudest tradition of the common law-the ability to grow with time by slowly deriving principles of general applicability from careful consideration of the myriad facts of a multitude of particular cases. Neither we nor the State of Ohio can know the reasoning by which this jury determined to impose the death penalty, or the facts upon which that reasoning was based. All we know is that the jury did not appear to find the question a particularly difficult one. ”

“ 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. ”

“ 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. ”

“ Therefore, before examing 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. ”

“ 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 on what poetry is.' Niemotko v. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Before we 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. ”

“ Allowing a vague or overbroad statute to be enforced if, and only if, an acceptable construction 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. ”

“ 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. ”

“ 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 ther own, independent judgment on the propriety of a jury-imposed death penalty, [69] the existence of the trial court's power to set aside such verdicts adds little to the likelihood of evenhanded treatment. ”

“ In light of the fact that first-degree murder convictions in the period 1959-1968 never exceeded 58 per year, evidence that a significant number of jurors were involved in more than one capital sentencing determination would seem to raise substantial questions about the randomness of the jury selection procedures.↑ No matter how broad the scope of state power to determine when the death penalty should be inflicted, it cannot be seriously questioned that its infliction for some reasons is constitutionally impermissible. ”

“ 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 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. ”

“ 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. ”

“ 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 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. ”

“ 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 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. ”

“ 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 Constitution. [2] And this principle has been central to the decisions of this Court giving content to the Due Process Clause. ”

“ 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. ”

“ 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 factors. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ But capital sentencing is not the only difficult question with which legislatures have ever been faced. At least since Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L.Ed. 253 (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. ”

“ 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. ”

“ 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. [43] 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. ”