William O. Douglas

“ 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. ”

“ 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, 87 S.Ct., at 665.
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. ”

“ It therefore seems plain that the singleverdict procedure is a burden on the exercise 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. ”

“ 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. ”

“ 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 that the fact 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. ”

“ 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. ”

“ 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.' [16]
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. ”

“ 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. ”

“ 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, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 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. ”

“ Psychiatry has shown that blind faith in rightness and wrongness is no reliable measure of human 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. ”