mcgautha california argued november decided may together crampton ohio certiorari ohio petitioner convicted murder california sentenced death penalty left jury absolute discretion punishment determined separate proceeding following trial issue guilt petitioner convicted murder sentenced death ohio jury also absolute penalty discretion determined guilt penalty single trial single verdict certiorari granted consider whether petitioners rights infringed permitting death penalty without standards govern imposition consider constitutionality single guilt punishment proceeding held light history experience limitations human knowledge establishing definitive standards impossible say leaving untrammeled discretion jury power pronounce life death capital cases violates provision constitution pp constitution prohibit considering compassionate purposes jury sentencing capital cases better served issues guilt punishment resolved single trial focusing jury attention solely punishment guilt determined pp petitioner failed show unitary trial violated constitution forcing making difficult judgments decision whether remain silent issue guilt cost surrendering chance plead case punishment issue simmons distinguished pp policies privilege offended defendant capital case yields pressure testify issue punishment risk damaging case guilt pp ohio provide ritual allocution state need provide petitioner opportunity speak jury free adverse consequences issue guilt pp harlan delivered opinion burger stewart white blackmun joined black filed separate opinion post douglas filed opinion dissenting brennan marshall joined post brennan filed dissenting opinion douglas marshall joined post herman selvin appointment argued cause filed briefs petitioner john callahan appointment argued cause petitioner brief dan mccullough william burgess william driscoll gerald lubitsky ronald george deputy attorney general california argued cause respondent brief thomas lynch attorney general william james assistant attorney general melvin resnick argued cause respondent brief harry friberg alice robie resnick solicitor general griswold argued cause amicus curiae urging affirmance cases brief philip lacovara jack greenberg james nabrit iii michael meltsner anthony amsterdam filed brief naacp legal defense educational fund et al amici curiae cases luke mckissack filed brief amicus curiae briefs amici curiae filed richard stevens attorney general ohio elmer gertz willard lassers american civil liberties union illinois division et al lassers gertz alex elson marvin braiterman american friends service committee et al justice harlan delivered opinion petitioners mcgautha crampton convicted murder first degree courts california ohio respectively sentenced death pursuant statutes case decision whether defendant live die left absolute discretion jury mcgautha case jury accordance california law determined punishment separate proceeding following trial issue guilt crampton case accordance ohio law jury determined guilt punishment single trial single verdict granted certiorari mcgautha case limited question whether petitioner constitutional rights infringed permitting jury impose death penalty without governing standards granted certiorari crampton case limited question question whether jury imposition death sentence proceeding verdict determined issue guilt constitutionally permissible ibid reasons follow find constitutional infirmity conviction either petitioner affirm cases put constitutional issues clearer focus begin setting course trial took mcgautha guilt trial mcgautha penalty trial wilkinson called several witnesses behalf undercover narcotics agent testified seen murder weapon mcgautha possession seen mcgautha demonstrating quick draw minister wilkinson boarded testified wilkinson church attendance good reputation also stated trial wilkinson expressed horror happened requested minister prayers behalf former fellow employee testified wilkinson good reputation honest peaceable mcgautha also testified behalf penalty hearing admitted murder weapon testified wilkinson traded guns wilkinson struck smetana killed husband mcgautha testified came broken home wounded world war ii related employment record medical condition remorse admitted criminal record see supra testified mere accomplice two robberies prior conviction murder resulted slaying mcgautha also admitted guilty plea charge carrying concealed weapon called witnesses behalf jury instructed following language part trial law forbid influenced pity defendants may governed mere sentiment sympathy defendants arriving proper penalty case however law forbid governed mere conjecture prejudice public opinion public feeling defendants case found guilty offense murder first degree duty determine penalties provided law imposed defendant offense arriving determination consider evidence received presented people defendants throughout trial jury may also consider evidence circumstances surrounding crime defendant background history facts aggravation mitigation penalty received however essential decision find mitigating circumstances one hand evidence aggravation offense hand notwithstanding facts proved mitigation aggravation determining punishment shall inflicted entirely free act according judgment conscience absolute discretion verdict must express individual opinion juror beyond prescribing two alternative penalties law provides standard guidance jury selection penalty rather commits whole matter determining two penalties shall fixed judgment conscience absolute discretion jury determination matter jury agree must unanimous two penalties imposed app trial judge ordered probation report mcgautha received overruled mcgautha motions new trial modification penalty verdict pronounced death sentence mcgautha conviction unanimously affirmed california cal contention standardless jury sentencing unconstitutional rejected authority earlier case anderson cal divided narrowly issue crampton trial trial state case follows cramptons married four months time murder two months slaying crampton allowed leave state mental hospital undergoing observation treatment alcoholism drug addiction attend funeral wife father occasion stole knife house late ran away called house several times talked wife greatly upsetting pleaded return hospital stated call police threatened kill wilma brother nevertheless notify authorities picked crampton later evening testimony threats crampton made wife life revealed days murder crampton fear husband caused request receive police protection state main witness facts surrounding murder one william collins convicted felon first met crampton along crampton brother jack state prison michigan january three days murder collins crampton met jack crampton house pontiac michigan three days collins crampton roamed upper midwest committing series petty thefts obtaining amphetamines addicted theft forged prescriptions nine evening january crampton called wife joseph michigan call told collins get back toledo wife fast possible arrived early morning hours january crampton stopped wife home sent collins door purported message two went home crampton crampton knew empty obtain guns broke stole rifle ammunition handguns including automatic later identified murder weapon crampton kept gun indicated collins believed wife affair fired air remark effect slug type quite bit damage said found wife man suspected kill evening crampton called wife home learned present quickly drove house told collins leave right front house take car go back parking lot six morning evening crampton arrested driving stolen car murder weapon found seats car crampton body found next morning shot face close range using toilet shell casing near body jacket crampton stolen days earlier found living room coroner examined body january testified opinion death occurred hours earlier plus minus four hours defense called crampton mother witness testified crampton background including serious concussion received age nine good grades junior high school stepfather jealousy leaving home age live various relatives enlistment navy age marriage girl named sandra birth son divorce remarriage sandra another divorce shortly finally marriage wilma crampton also testified crampton drug addiction brushes law youth adult undesirable discharge navy crampton attorney also introduced evidence series hospital reports contained information crampton background including criminal record substantial conviction undesirable discharge navy absence significant employment record also contained claim shooting accidental gathering guns around house removed clip automatic wife asked see handed went accidentally killed reports concluded crampton sane legal medical senses diagnosed sociopathic personality disorder along alcohol drug addiction crampton testify jury instructed find defendant guilty murder first degree punishment death unless recommend mercy event punishment imprisonment penitentiary life app must influenced consideration sympathy prejudice duty carefully weigh evidence decide disputed questions fact apply instructions findings render verdict accordingly fulfilling duty efforts must arrive verdict consider evidence make finding intelligence impartiality without bias sympathy prejudice state ohio defendant feel case fairly impartially tried app sentence imposed two weeks later ohio law requires ohio rev code ann crampton informed verdict asked whether anything say judgment pronounced replied please believe received fair impartial trial jury prejudiced past record fact drug addict believe receive fair impartial trial say ii proceeding consideration issues us important recognize underscore nature responsibilities judging function impose ex cathedra might seem us better system dealing capital cases rather decide whether federal constitution proscribes present procedures two cases assessing validity conclusions reached opinion basic factor kept constantly mind iii consider first mcgautha crampton common claim absence standards guide jury discretion punishment issue constitutionally intolerable fit arguments within constitutional frame reference petitioners contend leave jury completely large impose withhold death penalty sees fit fundamentally lawless therefore violates basic command fourteenth amendment state shall deprive person life without due process law despite undeniable surface appeal proposition conclude courts correctly rejected order see petitioners claim perspective useful call mind salient features history capital punishment homicides common law england subsequent statutory developments country history reveals continual efforts uniformly unsuccessful identify fact homicides slayer die thus laws alfred echoing exodus provided let man slayeth another wilfully perish death let slayeth another necessity unwillingly unwilfully god may sent hands lain wait worthy life lawful bot seek asylum quoted stephen history criminal law england century bracton set man responsible homicides except happened pure accident inevitable necessity although explain consequences responsibility statute gloucester edw provided cases misadventure jury neither convict acquit find fact specially king decide whether pardon accused appears time pardons may prevented forfeiture goods came issue course stephen supra time clear distinction terminology consequences among various kinds criminal homicide prima facie capital subject benefit clergy came available almost man read although originally entitled benefit clergy simply delivered bishop ecclesiastical proceedings possibility degradation orders incarceration corporal punishment found guilty centuries maximum penalty clergyable offenses became branding thumb imprisonment one year forfeiture goods stephen supra statutes hen edw benefit clergy taken away cases murder malice prepensed stephen supra next century half however malice prepense malice aforethought came divorced actual ill inferred without act killing correspondingly manslaughter initially restricted cases chance medley came include homicides existence adequate provocation rebutted inference malice growth law continued country rebellion rule imposing mandatory death sentence convicted murderers thus pennsylvania attempted reduce rigors law abolishing capital punishment except murder first degree defined include willful deliberate premeditated killings death penalty remained mandatory laws reform soon copied virginia thereafter many new legislative criterion isolating crimes appropriately punishable death soon proved unsuccessful concept malice aforethought within year distinction degrees murder practically obliterated pennsylvania see keedy history pennsylvania statute creating degrees murder rev similar experiences wechsler michael rationale law homicide rev result characterized way chief judge cardozo merely privilege offered jury find lesser degree suddenness intent vehemence passion seems call irresistibly exercise mercy objection giving dispensing power given directly mystifying cloud words medicine law law literature order meet problem jury nullification legislatures try refine definition capital homicides instead adopted method forthrightly granting juries discretion exercising fact see knowlton problems jury discretion capital cases rev note system capital cases rev tennessee first state give juries sentencing discretion capital cases laws followed suit federal government act stat shortly thereafter winston dealt federal statute first time reversed murder conviction trial judge instructed jury return recommendation mercy unless found existence mitigating circumstances found instruction interfere scheme act commit whole question capital punishment judgment consciences jury far considerations age sex ignorance illness intoxication human passion weakness sympathy clemency irrevocableness executed sentence death apprehension explanatory facts may exist brought light consideration whatever allowed weight deciding question whether accused capitally punished committed act congress sound discretion jury jury alone ibid power recommend mercy conferred solely upon connection extend prescribe definite rule defining exercise power commits entire matter exercise judgment recent years academic professional sources suggested jury sentencing discretion controlled standards sort american law institute first published recommendation several enacted new criminal codes intervening years adopting features model penal code modified laws respect murder death penalty ways none followed model penal code adopted statutory criteria imposition death penalty recent years challenges standardless jury sentencing presented many state federal appellate courts held challenge good see supra petitioners recognize requires strong showing upset settled practice nation constitutional grounds see walz tax commission jackman rosenbaum cf palko connecticut petitioners seek avoid impact history observation jury sentencing discretion capital cases introduced mechanism dispensing mercy means dealing rare case death penalty thought unjustified assert death penalty imposed far fewer half defendants found guilty capital crimes state federal legislatures provide jury discretion capital sentencing said implicitly determined indeed greater portion guilty capital crimes permitted live made determination petitioners argue stopped short legislatures failed provide rational basis distinguishing one group cf skinner oklahoma failed even suggest basis whatever merits providing mechanism take account unforeseeable case calling mercy original purpose petitioners contend mechanism constitutionally intolerable means selecting extraordinary cases calling death penalty function view force argument derives largely generality come grips hard task actually attempting draft means channeling capital sentencing discretion confirmed lesson taught history recounted identify fact characteristics criminal homicides perpetrators call death penalty express characteristics language fairly understood applied sentencing authority appear tasks beyond present human ability thus british home office recent abolition capital punishment country responsibility selecting cases england wales receive benefit royal prerogative mercy observed difficulty defining statutory provision types murder punished death may illustrated reference many diverse considerations home secretary regard deciding whether recommend clemency simple formula take account innumerable degrees culpability formula fails claim satisfy public opinion royal commission capital punishment minutes evidence formula possible provide reasonable criterion infinite variety circumstances may affect gravity crime murder discretionary judgment facts case way equitably distinguished conclusion borne american experience experiment degrees murder introduced long ago supplemented giving courts discretion effect supersedes apparent criteria purport provide minimal control sentencing authority exercise discretion purport give exhaustive list relevant considerations way may affected presence absence circumstances even undertake exclude constitutionally impermissible considerations course provide protection jury determined decide whimsy caprice short suggest subjects jury consider deliberations bear witness intractable nature problem standards history capital punishment beginning reflected thus indeed caution undertaking establish standards pronounce large standards realm constitutionally required light history experience present limitations human knowledge find quite impossible say committing untrammeled discretion jury power pronounce life death capital cases offensive anything constitution entitled assume jurors confronted truly awesome responsibility decreeing death fellow human act due regard consequences decision consider variety factors many suggested evidence arguments defense counsel attempt catalog appropriate factors elusive area inhibit rather expand scope consideration list circumstances ever really complete infinite variety cases facets case make general standards either meaningless statement obvious jury need iv noted outset opinion mcgautha trial two stages jury considering issue guilt presentation evidence argument issue punishment procedure required laws california five petitioner crampton whose guilt punishment determined single trial contends procedure like california compelled constitution well twice occasion rule separate penalty proceedings context capital case jackson held unconstitutional penalty provisions federal kidnaping act construed mean defendant demanding jury trial risked death penalty one pleading guilty agreeing bench trial faced maximum punishment life imprisonment government contended order mitigate discrimination adopt alternative construction authorizing trial judge accepting guilty plea jury waiver convene special penalty jury empowered recommend death sentence rejection contention based solely fact appeared run counter language legislative history act ven assumption failure congress provide convening penalty jury wholly inadvertent hardly province courts fashion remedy attempt fraught gravest difficulties therefore declined create whole cloth complex completely novel procedure thrust upon unwilling defendants sole purpose rescuing statute charge unconstitutionality jackson however consider possibility procedure might constitutionally required capital cases substantially result sought petitioners spencer texas like crampton spencer tried unitary proceeding jury fixed punishment death also like crampton spencer contended due process clause fourteenth amendment required bifurcated trial evidence relevant solely issue punishment prejudice case guilt rejected contention following language say jury trial style probably fairest commentators courts suggested might well agree matter us legislative context far cry constitutional determination method handling problem compelled fourteenth amendment jury trials rare jurisprudence never compelled matter constitutional law even matter federal procedure recidivism major problem substantial changes trial procedure countless local courts around country required sustain contentions made petitioners unwilling take step quite beyond pale proper function federal system footnotes omitted crampton argument bifurcation runs follows malloy hogan griffin california enjoyed constitutional right compelled witness yet ohio procedure remain silent issue guilt cost surrendering chance plead case issue punishment contends due process clause fourteenth amendment elaborated townsend burke specht patterson mempa rhay right heard issue punishment right sentence fixed without benefit relevant evidence therefore argues ohio procedure possesses flaw condemned simmons creates intolerable tension constitutional rights since tension largely avoided bifurcated trial petitioner contends legitimate state interest putting election trial held invalid capital cases simmons however dealt different situation one confronted petitioner crampton everything said opinion carried case without circumspection simmons held unconstitutional federal government use trial defendant testimony given unsuccessful motion suppress evidence allegedly seized violation fourth amendment concluded permit use created unacceptable risk deterring prosecution marginal fourth amendment claims thus weakening efficacy exclusionary rule sanction unlawful police behavior surely analytically sufficient basis decision however went observe penalty thus imposed assertion fourth amendment rights kind always peculiarly sensitive involved incrimination defendant mouth found little difficult support invocation fifth amendment privilege recognized abstract matter testimony might voluntary testimony secure benefit government ipso facto compelled within meaning clause distinguishing feature simmons case said benefit gained afforded another provision bill rights thus real basis holding fifth amendment policies involved colorable fourth amendment claim begun insubstantiality purely fifth amendment interests involved simmons illustrated last term trilogy cases involving guilty pleas brady mcmann richardson parker north carolina simmons relieved defendant waiver fifth amendment rights made order obtain benefit ultimately found constitutionally entitled trilogy held defendants bound waivers rights fifth sixth fourteenth amendments made order avoid burdens ultimately determined constitutionally imposed terms solely fifth amendment policies apparent simmons far weaker claim relieved waiver defendants trilogy occasion question soundness result simmons extent rationale based tension constitutional rights policies behind validity reasoning must regarded open question certainly given broad thrust attributed crampton present case criminal process like rest legal system replete situations requiring making difficult judgments course follow mcmann richardson although defendant may right even constitutional dimensions follow whichever course chooses constitution token always forbid requiring choose threshold question whether compelling election impairs appreciable extent policies behind rights involved analysis case terms leads conclusion petitioner failed make claim constitutional violation requiring undergo unitary trial turn first privilege compelled contention guilt punishment determined jury single trial desire address jury punishment unduly encourages waiver defendant privilege remain silent issue guilt put matter another way procedure unlawfully compels defendant become witness issue guilt threat sentencing death without heard contended successfully mere force evidence compulsion sort forbidden privilege see williams florida violence privilege person choice testify behalf may open door otherwise inadmissible evidence damaging case see spencer texas cf michelson narrow question left open whether consistent privilege state provide means whereby defendant wishing present evidence testimony issue punishment may limit force evidence state rebuttal issue see nothing history policies precedents relating privilege requires means available far history privilege concerned suffices say sheds light whatever subject unless indeed adverse resulting contrast dilemma petitioner complains historical excesses gave rise privilege see generally wigmore evidence mcnaughton rev ed levy origins fifth amendment inasmuch time framing fifth amendment many years thereafter accused criminal cases allowed testify behalf nothing approaching crampton dilemma arise policies privilege likewise remote support proposition defendants permitted limit effects evidence issue punishment policies behind privilege varied implicated given application privilege see murphy waterfront commission see generally wigmore supra sources cited therein safely said however extent policies provide guide decision see mckay book review rev one affected appreciable degree cruelty undeniably hard require defendant trial life desirous testifying issue punishment make nice calculations effect testimony jury determination guilt issue cruelty thus arising however less closely akin cruel trilemma perjury contempt murphy waterfront commission fundamental requirements fairness decency embodied due process clauses whichever label preferred appraising considerations inevitably matter judgment individuals may differ however guide decision furnished clear validity analogous choices criminal defendants attorneys quite routinely faced long held defendant takes stand behalf claim privilege matters reasonably related subject matter direct examination see brown walker fitzpatrick brown thought overly harsh situations require determination whether waive privilege take account matters may brought also generally recognized defendant takes stand behalf may impeached proof prior convictions like see spencer texas cf michelson cf luck app palumbo thought inconsistent enlightened administration criminal justice require defendant weigh pros cons deciding whether testify defendant whose motion acquittal close government case denied must decide whether stand motion put defense risk bolster government case enough support verdict guilty calderon wright federal practice procedure cf american bar association project standards criminal justice trial jury approved draft see comment motion acquittal neglected safeguard yale cf cephus app finally last term williams florida occasion consider florida rule put petitioner case choice either abandoning alibi defense giving state opportunity prepare rebuttal leads start rejected contention rule unconstitutionally compelled defendant incriminate pressures might lead defendant furnish arguably testimonial incriminating information arose simply force historical fact beyond state control strength state case built facts response kind pressure offering evidence testimony compelled transgressing fifth fourteenth amendments conclude policies privilege compelled offended defendant capital case yields pressure testify issue punishment risk damaging case guilt therefore turn converse situation defendant remains silent issue guilt thereby loses opportunity address jury personally punishment important identify particularity interests involved petitioner speaks broadly right allocution right immemorial origin arose context different confronted petitioner crampton see generally barrett allocution pts mo rev preserved original form ohio many petitioner seeks sure purposes wholly unrelated served right allocution former times see green opinion frankfurter nevertheless different procedure occurring radically different framework criminal justice leaving aside term allocution also appears petitioner claiming right simply heard issue punishment directly determined whether extent concept due process law requires criminal defendant wishing present evidence argument presumably relevant issues involved sentencing permitted assuming without deciding constitution require opportunity denial right crampton case ohio constitution guarantees defendants right counsel argue summation mercy well acquittal shelton state ohio extent evidence going solely issue punishment admissible ohio law unclear see ashbrook state ohio app event seems apparent ohio judges one expect take lenient view admissibility evidence offered defendant trial life present case illustrates accused put jury great deal background evidence best tenuous connection issue guilt record crampton case reveal evidence offered part defendant excluded ground relevant solely issue punishment hand petitioner seeking vindication interest making personal plea mercy even bifurcated trial defendant restricted giving evidence argument made counsel petitioner contention therefore comes fact ohio trial may deter defendant bringing jury attention evidence peculiarly within knowledge may mean death verdict returned jury never heard sound voice think possibility former sufficiently great sustain petitioner claim trial may deprive jury rational basis fixing sentence assuming case relevant information solely within petitioner knowledge think constitution forbids requirement evidence available jury issues relevant largely symbolic value represented latter interest ohio provided retention ritual allocution albeit form precisely avoid possibility person might tried convicted sentenced death complete silence held failure ensure personal participation criminal process necessarily constitutional flaw conviction hill think ohio required provide opportunity petitioner speak jury free adverse consequences issue guilt therefore reject branch petitioner argument well conclude opinion appropriate us make broader observation issues raised cases strictly call may well american law institute national commission reform federal criminal laws concluded bifurcated trials criteria jury sentencing discretion superior means dealing capital cases death penalty retained federal constitution marks limits authority cases guarantee trial procedures best worlds accord enlightened ideas students infant science criminology even measure individual predilections members see spencer texas constitution requires trials fairly conducted guaranteed rights defendants scrupulously respected constitutional standpoint conclude impermissible state consider compassionate purposes jury sentencing capital cases better served issues guilt punishment determined single trial focusing jury attention solely punishment issue guilt determined certainly facts gruesome murders bespeak miscarriage justice ability juries unassisted standards distinguish defendants death penalty appropriate punishment imprisonment sufficient indeed illustrated discriminating verdict jury mcgautha case finding wilkinson less culpable two defendants sparing life procedures petitioners challenge capital trials country conducted conducted years ago determined procedures consistent rights petitioners constitutionally entitled trials entirely fair reached conclusions performed task measuring process federal constitutional standards accordingly judgment cases affirmed appendix opinion death sentence excluded defendant found guilty murder shall impose sentence felony first degree satisfied none aggravating circumstances enumerated subsection section established evidence trial established proceedings initiated subsection section substantial mitigating circumstances established evidence trial call leniency defendant consent prosecuting attorney approval pleaded guilty murder felony first degree defendant years age time commission crime defendant physical mental condition calls leniency although evidence suffices sustain verdict foreclose doubt respecting defendant guilt determination jury unless imposes sentence subsection section shall conduct separate proceeding determine whether defendant sentenced felony first degree sentenced death proceeding shall conducted alone defendant convicted sitting without jury upon plea guilty prosecuting attorney defendant waive jury respect sentence cases shall conducted sitting jury determined defendant guilt good cause shown discharges jury new jury empanelled purpose proceeding evidence may presented matter deems relevant sentence including limited nature circumstances crime defendant character background history mental physical condition aggravating mitigating circumstances enumerated subsections section evidence legally privileged deems probative force may received regardless admissibility exclusionary rules evidence provided defendant counsel accorded fair opportunity rebut evidence prosecuting attorney defendant counsel shall permitted present argument sentence death determination whether sentence death shall imposed shall discretion except proceeding conducted sitting jury shall impose sentence death unless submits jury issue whether defendant sentenced death imprisonment jury returns verdict sentence death jury unable reach unanimous verdict shall dismiss jury impose sentence felony first degree exercising discretion sentence jury determining upon verdict shall take account aggravating mitigating circumstances enumerated subsections facts deems relevant shall impose recommend sentence death unless finds one aggravating circumstances enumerated subsection finds mitigating circumstances sufficiently substantial call leniency issue submitted jury shall instruct also shall inform jury nature sentence imprisonment may imposed including implication respect possible release upon parole jury verdict sentence death alternative version subsection providing determination sentence cases omitted aggravating circumstances murder committed convict sentence imprisonment defendant previously convicted another murder felony involving use threat violence person time murder committed defendant also committed another murder defendant knowingly created great risk death many persons murder committed defendant engaged accomplice commission attempt commit flight committing attempting commit robbery rape deviate sexual intercourse force threat force arson burglary kidnapping murder committed purpose avoiding preventing lawful arrest effecting escape lawful custody murder committed pecuniary gain murder especially heinous atrocious cruel manifesting exceptional depravity mitigating circumstances defendant significant history prior criminal activity murder committed defendant influence extreme mental emotional disturbance victim participant defendant homicidal conduct consented homicidal act murder committed circumstances defendant believed provide moral justification extenuation conduct defendant accomplice murder committed another person participation homicidal act relatively minor defendant acted duress domination another person time murder capacity defendant appreciate criminality wrongfulness conduct conform conduct requirements law impaired result mental disease defect intoxication youth defendant time crime footnotes information also alleged mcgautha four prior felony convictions felonious theft robbery murder without malice robbery assault recent convictions occurred proceeding chambers mcgautha admitted convictions jury learn guilt stage trial cal penal code provides guilt innocence every person charged offense penalty alternative death imprisonment life shall first determined without finding penalty person found guilty offense punishable life imprisonment death found sane plea guilty reason insanity shall thereupon proceedings issue penalty trier fact shall fix penalty evidence may presented proceedings issue penalty circumstances surrounding crime defendant background history facts aggravation mitigation penalty determination penalty life imprisonment death shall discretion jury trying issue fact evidence presented penalty fixed shall expressly stated decision verdict death penalty shall imposed however upon person age years time commission crime burden proof age said person shall upon defendant defendant convicted sitting without jury trier fact shall defendant convicted plea guilty trier fact shall jury unless jury waived defendant convicted jury trier fact shall jury unless good cause shown discharges jury case new jury shall drawn determine issue penalty case defendant found guilty jury another jury trying issue penalty unable reach unanimous verdict issue penalty shall dismiss jury either impose punishment life lieu ordering new trial issue penalty order new jury impaneled try issue penalty issue guilt shall retried jury penalty jury interrupted deliberations ask whether sentence life imprisonment meant possibility parole trial judge responded follows sentence life imprisonment means prisoner may paroled time lifetime may spend remainder natural life prison agency known adult authority empowered statute determine prisoner paroled statute prisoner paroled unless adult authority opinion prisoner released assume proper place society release contrary welfare society prisoner released parole may remain parole balance life violates terms parole may returned prison serve life sentence misunderstandings relating sentence life imprisonment informed general scheme parole system instructed however matter parole considered determining punishment either defendant may speculate parole granted function decide whether men suitable parole future date far concerned decide whether men shall suffer death penalty whether shall permitted remain alive upon consideration evidence believe life imprisonment proper sentence must assume officials charged operation parole system perform duty correct responsible manner parole defendant unless safely released society violation duty jurors fix penalty death doubt adult authority properly carry responsibilities app california law trial judge power reduce penalty life concludes jury verdict supported weight evidence cal penal code see anderson cal california appeal automatic capital cases cal penal code power people lookadoo cal pursuant ohio law ohio rev code ann crampton committed state mental hospital month observation hearing psychiatric report trial determined crampton competent stand trial ohio law jury death verdict may reduced excessive either trial appellate turner state ohio law abs app state klumpp ohio op ct app appeal dismissed ohio lower courts thus placed accord american jurisdictions considered issue see ernst florida ex rel thomas culver maxwell bishop vacated grounds sims eyman segura patterson mccants state bagley state ark state walters appeal dismissed wilson state miller state state latham duisen state mo state johnson appeal dismissed people fitzpatrick misc state roseboro hunter state state kelbach utah johnson commonwealth state smith context emphasis confusing distinction degrees murder desirability juries sentencing discretion may also noted former new york definitions murder somewhat unusual see wechsler michael practice jury sentencing arose country colonial period cases involving capital punishment suggested reaction harsh penalties imposed judges appointed controlled crown result early distrust governmental power president commission law enforcement administration justice task force report courts california ohio two involved cases abolished mandatory death penalties favor jury discretion act mar cal amendatory acts ohio laws except four entirely abolished capital punishment middle last century every american jurisdiction time authorized jury sentencing capital cases none statutes provided standards choice death life imprisonment see brief amicus curiae see also calton utah reversed conviction statutes utah territory jury informed right territorial code recommend sentence imprisonment life hard labor instead death model penal code tent draft criteria revised approved institute appear proposed official draft model penal code revised appear appendix opinion recently national commission reform federal criminal laws published study draft new federal criminal code section contained standards virtually identical model penal code statement chairman commission submitting study draft public comment described something staff report less commitment commission members every aspect draft study draft xx primary differences procedural provisions capital sentencing model penal code study draft code provides jury shall take criteria account study draft provided may model penal code forbids imposition death penalty aggravating circumstances found study draft showed alternative provision latter feature affected fact murders made capital see final report commission recommended abolition death penalty federal crimes alternate version said represent substantial body opinion commission comment provisional provided retention capital punishment murder treason procedural provisions significantly differ study draft see penal law criteria judges deciding probation stat ann supp reducing class capital crimes model penal code provides jury fix punishment death unless found least one aggravating circumstances sufficiently substantial mitigating circumstances model penal code proposed official draft reporter comment recognized fundamental distinction procedure redefinition class potentially capital murders model penal code comment pp tent draft understand petitioners contentions seek standards guiding sentencing authority discretion greater strictness definition class cases discretion exists mistaken petitioners contend ohio california definitions murder broad consider position constitutionally untenable issue whether defendant entitled instruction certain factors race taken consideration us juries told base decisions prejudice specific instructions requested cf griffin california giaccio pennsylvania point contrary result giaccio held invalid face pennsylvania statute authorized criminal juries assess costs defendants whose conduct although amounting crime charged nevertheless found reprehensible concluded statute sound one simply made crime engage reprehensible conduct consequently unconstitutionally vague stated holding intend cast doubt whatever constitutionality settled practice many leave juries finding defendants guilty crime power fix punishment within legally prescribed limits cal penal code stat rev supp act mar laws penal law supp stat tit tex code crim art supp see also model penal code proposed official draft national commission reform federal criminal laws final report provisional report royal commission capital punishment cmd instance accused permitted assistance counsel permitted testify behalf entitled put evidence behalf almost possibility review conviction see williams proof guilt ed stephen history criminal law england ohio rev code ann provides sentence pronounced defendant must informed verdict jury finding asked whether anything say judgment pronounced williams new york trial judge disregarded jury recommendation mercy imposed death sentence part presentence report based hearsay held due process clause require state choose prohibiting use reports holding adversary hearing defendant sources information contained therein specht patterson characterized williams broadly holding fourteenth amendment require judge hearings give convicted person opportunity participate hearings came determine sentence imposed stated adhered williams declined extend separate determination whether convicted person committed institution treatment colorado sex offenders act see also mempa rhay green justice frankfurter opinion four members spoke eloquently desirability permitting defendant personal plea mercy hill held failure sentencing judge ask defendant represented counsel whether personally anything say though violation fed rule crim proc error constitutional dimensions reserved issue whether silencing defendant wished speak rise level since occasion deal related problems length may noted passing petitioner point requested opportunity address jury personally issue punishment compare georgia practice permitting defendant make unsworn statement subject deprecating view opportunity taken familiar discussed ferguson georgia separate opinion justice black concur judgments substantially opinion however view task determine whether petitioners trials fairly conducted ante constitution grants power reverse convictions personal beliefs state criminal procedures unfair arbitrary capricious unreasonable shocking conscience see rochin california black concurring wade black concurring dissenting responsibility rather determine whether petitioners denied rights expressly impliedly guaranteed federal constitution written agree conclusions procedures employed california ohio determine whether capital punishment shall imposed offend due process clause fourteenth amendment likewise believe petitioners deprived right explicitly impliedly guaranteed provisions bill rights eighth amendment forbids cruel unusual punishments view words read outlaw capital punishment penalty common use authorized law countries ancestors came time amendment adopted inconceivable framers intended end capital punishment amendment although people urged amend constitution interpretation keep abreast modern ideas never believed lifetime judges system legislative power see harper virginia board elections black dissenting justice douglas justice brennan justice marshall concur dissenting view unitary trial ohio provides murder cases satisfy requirements procedural due process fourteenth amendment ohio makes murder punishable death unless jury trying accused recommends mercy case punishment shall imprisonment life ohio rev code ann petitioner indicted tried murder first degree killing wife pleas guilty guilty reason insanity psychiatric examination concluded petitioner sane set case trial jury issues guilt punishment insanity simultaneously tried submitted jury petitioner testify trial psychiatrist testified behalf offering medical records case two state hospitals mother testified concerning childhood education background issue punishment jury charged must influenced consideration sympathy prejudice duty carefully weigh evidence decide disputed questions fact apply instructions findings render verdict accordingly fulfilling duty efforts must arrive verdict consider evidence make finding intelligence impartiality without bias sympathy prejudice state ohio defendant feel case fairly impartially tried emphasis added issue guilt state required produce evidence establish issue insanity burden petitioner prove preponderance evidence state austin ohio issue mercy life imprisonment rather death petitioner ohio law banned offering specific evidence directed toward claim mercy ashbrook state ohio app defendant wishes testify support defense insanity mitigation charged surrenders right free takes stand respects crime charged also misdeeds ohio impeachment covers wide range subjects prior convictions felonies statutory misdemeanors pending indictments prior convictions military service dishonorable discharges testifies recalled state case rebuttal defendant ohio right allocution right even murder cases occurs jury verdict rendered unless prejudicial error vitiating conviction insufficient evidence convict jury verdict stands judge must enter verdict allocution though mandatory thus ritual right heard meaningful accrue sentencing yet except allocution attempt part accused trial say judgment death pronounced entails surrender right therefore seems plain procedure burden exercise right free compulsion respects testify issue insanity matters extenuation crime charged price surrendering protection clause fifth amendment made applicable fourteenth question insanity punishment accused restraints comes putting jury relevant facts yet freedom issues tied question guilt issue often dare speak lest substance tried particular offense sins ever committed petitioner also surrender much right fair hearing issue punishment assert defense insanity support insanity plea submit hospital records contained information convictions imprisonment prior crimes use drugs well course defendant character witnesses examined respecting defendant crimes michelson effort weigh credibility proffered testimony character thus law gives defendant option show fact reputation reflects life habit incompatible commission offense charged subjects proof tests credibility designed prevent profiting mere parade partisans far cry however let hospital records tendered issue insanity color jury judgment wholly different issue guilt greatest comfort majority recent decision spencer texas holding trial required state statute seeks introduce issue guilt unitary trial evidence defendant prior convictions yet spencer decision meant barely passed muster constitutional procedure dissent chief justice warren three justices joined think endurance beyond majority view dissent et points prejudice accused prior finding guilt earlier convictions admissible evidence mounting evidence shown decisions modern state procedures practice comport fairness implicit due process chief justice warren said england prejudice results proof prior crimes finding guilt recognized century rule finding prior crimes made separate hearing finding guilt square due process practice receives impetus ohio reports man insanity contain references criminal record assuredly prejudice trial issue guilt already traveled part distance required reversal present case jackson denno held whether controverted facts confession voluntary must tried state separate proceeding pointed vice allowing jury determines guilt also determine whether confession voluntary said difficult impossible prove confession jury found involuntary nevertheless influenced verdict finding voluntariness course took affected evidence showing confession true new york procedure poses substantial threats defendant constitutional rights involuntary confession entirely disregarded coercion issue fairly reliably determined noted evidence whether jury show mercy excluded consideration jury admonished show sympathy accused ohio law determination whether grant withhold mercy exclusively jury reviewed either trial appellate first time specific mention mercy jury permissible closing argument defendant permitted argue jury desirability advisability wisdom recommending mercy specific instruction mercy instant case beyond instruction make findings without bias sympathy prejudice ohio courts approved instructions consider determine whether view circumstances facts leading attending alleged homicide disclosed evidence make recommendation mercy howell state ohio instruction means jury may consider general sociological environmental data may consider factors specifically admitted evidence case purposes state caldwell ohio ashbrook state supra holds evidence directed specifically toward claim mercy introduced yet howell caldwell ashbrook show evidence admitted purposes jury free consider purpose caldwell objection going outside record evidence considering sociological environmental matters background evidence often comes character witnesses one case defendant presented witnesses testified reputation peaceful citizen good character even instant case petitioner mother testified concerning childhood education background right allocution best partial incomplete accused barred testifying question sentencing evidence admissible comes people introduced different limited purposes line legislative function judicial function clear state make criminal conduct pleases save limited constitution example ban ex post facto laws art fourteenth amendment religious exercises freedom speech press involved punish conduct penalties chooses save sanctions run afoul ban art bills attainder prohibition cruel unusual punishments contained eighth amendment concerned wisdom state policies constitutional barriers state action procedural due process one barriers revealed decisions requirements explicit bill rights speedy trial klopfer north carolina trial jury duncan louisiana right counsel gideon wainwright right confrontation pointer texas made applicable reason fourteenth amendment requirements procedural due process implied expressed inclusion exclusion turns basic question fairness category notice right heard schroeder city new york sniadach family finance phase right heard looms large crampton constitutional right matter procedural due process heard issue punishment emphasized townsend burke right heard counsel might crucial avoid sentencing foundation extensively materially false right heard broader includes right speak one self said green opinion frankfurter unmindful relevant major changes evolved criminal procedure since seventeenth century sharp decrease number crimes punishable death right defendant testify behalf right counsel see reason procedural rule limited circumstances arose reasons right protects remain none modern innovations lessens need defendant personally opportunity present plea mitigation persuasive counsel may able speak defendant defendant might halting eloquence speak whether voice speaking defendant counsel voice defendant right heard often vital sentencing stage law decides punishment person found guilty mempa rhay hearing whether guilt punishment governed requirements due process said specht patterson due process words requires present counsel opportunity heard confronted witnesses right offer evidence least right allocution becomes constitutional right right speak issues touching sentencing one fate sealed yet trial unitary one right allocution even capital case theoretical real ohio procedure demonstrates petitioner also protection clause fifth amendment obtain benefit former surrender latter justice harlan speaking said simmons find intolerable one constitutional right surrendered order assert another made statement context case accused testified motion suppress evidence order protect fourth amendment rights later discovered testimony used prosecution strong piece evidence held protection fourth amendment rights warrant surrender dilution fifth amendment rights jackson held unenforceable federal statute made death penalty applicable contested guilt jury case undeniable tension fifth amendment rights sixth amendment rights justice stewart speaking said inevitable effect provision course discourage assertion fifth amendment right plead guilty deter exercise sixth amendment right demand jury trial provision purpose effect chill assertion constitutional rights penalizing choose exercise patently unconstitutional undeniable tension two constitutional rights led result jackson reversal simmons lead reversal unitary trial trial practical effect allows right heard issue punishment surrendering protection clause fifth amendment appeals second circuit indicated branker simmons prevented accused testimony hearing application proceed forma pauperis appointment counsel used prosecution part direct case defendant enjoy constitutional rights counsel appeal means supporting assertion rights testimony without running risk thereby may incriminating respect charges pending parolee given full free ability testify behalf present case revocation right hearing board meaningless furthermore fifth amendment rights must conditioned exaction price rights constitutional stature whose exercise state may condition exaction price engaging interstate commerce one resort federal courts diversity citizenship cases another assertion first amendment right still another imposition burden exercise amendment right also banned hold protection individual fourteenth amendment coerced statements prohibits use subsequent criminal proceedings statements obtained threat removal office extends whether policemen members body politic ibid exaction constitutional right may made assertion statutory right right hearing parole revocation right appeal follows fortiori constitutional right free compulsion may exacted condition constitutional right heard issue punishment truth justice brennan points dissent cases wooden position reflected today decision reconciled evolving gloss civilized standards long time sit reading protective procedural due process safeguards bill rights though dam suddenly placed across stream law procedural due process stream grown larger passing years history side history alone though nations killing men centuries felony crimes increase vestiges law enshrined today roots barbaric procedures barbaric procedures ordeal battle became imbedded law difficult dislodge though torture used exact confessions felonies mounted thought sanity determined ascertaining whether person knew difference right wrong capital offense steal person something value shilling insight understanding increased years though springs crime remain large part unknown federal bureau investigation teaches brains muscle solve crimes coerced confessions offensive civilized standards responsive modern needs criminal investigation psychiatry shown blind faith rightness wrongness reliable measure human responsibility convergence new technology criminal investigation new insight mental disorders made many ancient legal procedures seem utterly unfair today say cruel unusual punishment within meaning eighth amendment impose death sentence man stole loaf bread modern parlance sheet food stamps today say trial battle satisfies requirements procedural due process need read procedural due process designed satisfy man sadistic instincts need deference sadistic instincts say bound history defining procedural due process deny men fair trials yet today whole evolution procedural due process direction insisting fair procedures said hebert louisiana tate action whether one agency another shall consistent fundamental principles liberty justice lie base civil political institutions infrequently designated law land principles applicable alike depend upon vary local legislation case whole proceeding mask counsel jury judge swept fatal end irresistible wave public passion state courts failed correct wrong neither perfection machinery correction possibility trial counsel saw way avoiding immediate outbreak mob prevent securing petitioners constitutional rights hurtado california said due process frozen content one point time hold characteristic essential due process law deny every quality law age render incapable progress improvement stamp upon jurisprudence unchangeableness attributed laws medes persians went point though due process roots magna carta latter contained words changed meaning centuries passed ibid noted flexibility capacity growth adaptation peculiar boast excellence common law went say generalities constitution treated way constitution ordained true descendants englishmen inherited traditions english law history made undefined expanding future people gathered gathered many nations many tongues nothing magna charta rightly construed broad charter public right law exclude best ideas systems every age characteristic principle common law draw inspiration every fountain justice assume sources supply exhausted contrary expect new various experiences situation system mould shape new less useful forms necessarily happened therefore broad general maxims liberty justice held system different place performed different function position office english constitutional history law receive justify corresponding comprehensive interpretation applied england guards executive usurpation tyranny become bulwarks also arbitrary legislation application incongruous measure restrict ancient customary english law must held guarantee particular forms procedure substance individual rights life liberty property tyrannical governments immemorially utilized dictatorial criminal procedure punishment make scapegoats weak helpless political religious racial minorities differed conform resisted tyranny liberty loving people principle criminal punishments inflicted save proper legislative action already law land forbidden done even needed popular hatred abhorrence illegal confinement torture extortion confessions violations law land evolved fundamental idea man life liberty property forfeited criminal punishment violation law charge fairly made fairly tried public tribunal free prejudice passion excitement tyrannical power thus assurance ancient evils country order preserve blessings liberty wrote basic law requirement among others forfeiture lives liberties property people accused crime follow procedural safeguards due process obeyed standards fair trial resolution question punishment requires rules procedures different pertaining guilt justice butler speaking pennsylvania ashe said determination sentences justice generally requires consideration particular acts crime committed taken account circumstances offense together character propensities offender past may taken indicate present purposes tendencies significantly suggest period restraint kind discipline imposed upon noted williams new york leeway making available judges probation reports guide intelligent imposition sentences without submitting reports open testimony said due process clause treated device freezing evidential procedure sentencing mold trial procedure far ascertain never intimated state consistently procedural due process close door evidence relevant intelligent imposition sentences either judges juries cf specht patterson supra indeed late say absent constitutional amendment procedural due process applicability determination sentence imposed townsend burke supra held state sentence imposed basis assumptions concerning defendant criminal record materially untrue inconsistent due process law whether result caused carelessness design fortiori seem follow procedure designed bar opportunity present evidence showing mercy extended accused death case lacks fairness implicit due process unitary trial certainly mercy oriented however defect constitutional infirmity neutral awesome issue capital punishment rules stacked favor death one thing legislature decides death penalty attaches defined crimes quite another leave judge jury discretion sentence accused death show mercy procedures make trial death oriented law becomes mere pretense lacking procedural integrity likely result fair resolution issues ohio deficiency procedure compounded unreviewability failure grant mercy stated witherspoon illinois state may entrust determination whether man live die tribunal organized return verdict death case veniremen excluded jury cause simply voiced general objections death penalty expressed conscientious religious scruples infliction concluded defendant constitutionally put death hands tribunal selected tribunal selected ohio choose death life imprisonment murder cases palpably organized return verdict death witherspoon sense rules governing restricting administration unitary trial system place weights side man sadistic drive exclusion evidence relevant issue mercy conspicuous proof lopsided procedure hazards accused resulting mingling issues guilt insanity punishment one unitary proceeding multiplied whether procedure satisfy due process dealing lesser offenses may debated deference see grounds debate stake life reverse judgment conviction state murdock ohio see state pollard ohio state hector ohio state williams ohio app merely taking stand puts credibility issue hamilton state ohio app johns state ohio app state frohner ohio hoppe state ohio app silsby state ohio common law defendant felony case right called allocution asked formally whether thing offer judgment awarded ince common law judge generally discretion quantum punishment felony cases point question defendant elicit mitigating evidence plea leniency give defendant formal opportunity present one strictly defined legal reasons required avoidance delay sentencing person convicted benefit clergy pardon insane woman pregnant note procedural due process judicial sentencing felony harv rev common law right defendant asked wishes make statement behalf time sentencing appear still recognized half american jurisdictions although finds expression many forms comes many sources least one state right rises constitutional level see const art robalewski superior many right guaranteed statute representative sample see cal penal code iowa code ann stat ann mo rev stat code crim proc stat ann tit tex code crim proc art rev code ann see also iowa rev jurisdictions right secured rules see crim prac rules superior county courts rule fed rule crim proc see also hill green jurisdictions case law source defendant right see barrett allocution mo rev american bar association project standards criminal justice sentencing alternatives procedures approved draft chief justice warren said whether state recidivist statutes books well established evidence prior convictions may used state show accused criminal disposition probability committed crime currently charged increased never held use prior convictions show nothing disposition commit crime violate due process clause fourteenth amendment decisions exercising supervisory power criminal trials federal courts well decisions courts appeals state courts suggest evidence prior crimes introduced purpose show criminal disposition violate due process clause spencer texas turner state ohio law abs state klumpp ohio op state ames ohio law abs result sentencing decision based guilty plea jury waiver state lucear ohio app state ferguson ohio shelton state ohio syllabus caldwell jury initially instructed hether recommend withhold mercy matter solely within discretion calling exercise best profound judgment motivated considerations sympathy means escaping hard disagreeable duty must considered light circumstances case respect evidence submitted circumstances surrounding defendant following deliberation jury returned special instructions following occurred determine whether discretion mercy granted consideration evidence character crime attending circumstances foreman extenuating circumstances something determine judgment alone must determine evidence foreman well may consider sociological matters environment determining question granting mercy nothing whatever case point defense counsel requested following instruction determining whether discretion shall grant mercy defendant may consider environmental factors sociological conditions determining whether factors exist shall consider evidence permitted go case reasonable inferences derived therefrom may also consider making mind question mercy appearance demeanor actions defendant seen open state lucear supra recurring demands due process clause abolished see clark recent proposals constitutional amendment rev others suggested due process apart specifics bill rights mean notice procedures hearings trials prescribed congress see burns death pluribus unum depaul rev critics existing regime numerous justice frankfurter said ultimate justification nullifying saying congress president legislature massachusetts new york state beyond power provision constitution protects liberty infringement without due process law times assure times twice sit chair wonder whether great power give nine men matter wise well disciplined disinterested covers whole gamut political social economic activities law life things matter yet none us dare say conclude apart constitutional specifics notice procedure form hearings type trial prescribed legislature pass muster procedural due process present disagreement relates essential fair trial conventional historic standards procedural due process apply see blackstone commentaries ordeal battle finally abolished england geo stephen history criminal law england commonly overlooked justice one goals people expressed preamble constitution people order form perfect union establish justice insure domestic tranquility provide common defence promote general welfare secure blessings liberty posterity ordain establish constitution america hoppe state ohio app justice brennan justice douglas justice marshall join dissenting cases test viability principles whose roots draw strength core due process clause question petitioners present decision whether rule law basic society binding upon virtue due process clause fourteenth amendment fundamentally inconsistent capital sentencing procedures purposely constructed allow maximum possible variation one case next provide mechanism prevent consciously maximized variation reflecting merely random arbitrary choice however come grips fundamental question instead misapprehends petitioners argument deals cases petitioners contend due process requires capital sentencing carried predetermined standards precise capable purely mechanical application entirely eliminating vestiges flexibility discretion use misapprehended question treated context assumption legislatures ohio california incompetent express clarity bases upon determined persons guilty crimes killed others live assumption significantly finds support arguments made cases issue polarized led conclude rule law power kill irreconcilable conflict conflict resolves favor power kill view errs points premises conclusions unlike believe legislatures devoid wisdom power rational thought unable face problem capital punishment directly determine criteria convicted capital felons chosen live die thus view faced dilemma perceived cases almost century half approved multiplicity imaginative procedures designed state federal legislatures assure evenhanded treatment ultimate legislative control regarding matters legislatures deemed either complex otherwise inapposite regulation predetermined rules capable automatic application every case finally even shared view rule law power kill irreconcilable conflict hesitation concluding rule law must prevail except incorporates specific substantive constitutional guarantees state infringement due process clause fourteenth amendment limit power choose among competing social economic theories ordering life within respective jurisdictions require state power exerted choices must made responsible organ state government best may hoped state power exercised upon basis social choice made people state instead merely basis social choices made whim particular state official wielding power effective supervision process insure consistency decision amount nothing government whim termed government laws men marbury madison cranch government whim antithesis due process mere historical accident history liberty largely history observance procedural safeguards mcnabb frankfurter range permissible state choice among competing social economic theories broad almost arbitrary otherwise impermissible discrimination among individuals may mask nothing permissible exercise choice unless procedures devised adequately insure relevant choice actually made procedures may take variety forms decisionmaker may provided set guidelines apply rendering judgment decision may required rest upon presence absence specific factors legislature concludes range variation dealt precludes adequate treatment inflexible predetermined standards may adopt imaginative procedures specificity standards may relaxed directing decisionmaker attention basic policy determinations underlying statute without binding action regard matters important unforeseen detail may instructed consider list factors either illustrative exhaustive intended illuminate question presented without setting fixed balance process may draw upon genius common law direct toward refinement understanding development cases decision may left almost entirely hands body delegated ultimate legislative supervision questions basic policy afforded requiring decisionmakers explain actions evenhanded treatment enhanced requiring disputed factual issues resolved providing form subsequent review creative legislatures may devise yet procedures depending upon nature importance issues decided kind tribunal rendering judgment number frequency decisions made number separate tribunals involved process techniques may applied singly combination critical importance present cases emphasize called upon determine adequacy inadequacy particular legislative procedure designed give rationality capital sentencing process plain fact legislatures california ohio whence come cases sought solution presented state attempt provide standards attacked impermissible inadequate presented legislative attempt draw wisdom experience process looking toward growth understanding accumulation variety experiences presented slightest attempt bring power reason bear considerations relevant capital sentencing faced nothing stark legislative abdication history today sustained due process challenge unguided unbridled unreviewable exercise naked power almost century ago found almost identical california procedure constitutionally inadequate license laundry yick wo hopkins today hold adequate license life reverse petitioners sentences death scheme ordered liberty based like common law enlightened uniformly applied legal principle ad hoc notions right wrong particular case harlan thoughts dedication keeping judicial function balance evolution judicial philosophy shapiro dangers inherent grant governmental power without procedural safeguards upon exercise known english law long long constitution established see tr principle government shall laws men strongly woven constitutional fabric found recognition one several provisions constitution principle central decisions giving content due process clause said hurtado california supposed amendment prescribing due process law vague indefinite operate practical restraint law something mere exerted act power must special rule particular person particular case general law every citizen shall hold life liberty property immunities protection general rules govern society thus excluding due process law acts attainder bills pains penalties acts confiscation similar special partial arbitrary exertions power forms legislation arbitrary power enforcing edicts injury persons property subjects law whether manifested decree personal monarch impersonal multitude analysis may usefully begin cases applying come known doctrine sometimes suggested holding statute void vagueness merely applying one two separate doctrines first criminal statute must give fair notice conduct forbids lanzetta new jersey connally general construction second statute may constitutionally enforced indiscriminately sweeps within ambit conduct may subject criminal sanctions well conduct may baggett bullitt dombrowski pfister often added observation doctrines apply particular vigor state regulation conduct near boundaries first amendment see national dairy smith california unless assumed decisions matters shown almost unparalleled inconsistency factors may taken partial explanation doctrine begin never treated claims unconstitutional statutory vagueness terms statute written construed prior time conduct question instead invariably dealt statute glossed courts time decision giaccio pennsylvania winters new york cox new hampshire musser utah even remanded criminal case utah construction statute possible vagueness analyzed dealing vagueness attacks federal statutes hesitated construe statute avoid vagueness problems construed apply case hand see vuitch ante dennis kay vagueness doctrine fundamentally premised upon concept fair notice treatment simply make sense citizen expected foresee subsequent construction statute see freund civil liberties vand rev believe doctrine vagueness premised upon fundamental notion due process requires governments make explicit choices among competing social policies see infra inconsistency theory practice disappears course choice made irrevocable statutes may amended statutory construction overruled nevertheless explicit state choice among possible statutory constructions substantially reduces likelihood subsequent convictions statute based impermissible factors also renders effective available mechanisms judicial review increasing likelihood impermissible factors relied upon discernible record thus thompson louisville faced application specific vagrancy statute conduct dancing public bar reason believe constitutionally prohibited state chosen however able examine record conclude fact evidence support conviction statute cf bachellar maryland impossible determine whether verdict rested upon permissible impermissible grounds second dealing statutes unconstitutionally overbroad consistently indicated acceptable limiting construction obtained statute may applied conduct occurring prior construction provided application affords fair warning defendants dombrowski pfister citations omitted see poulos new hampshire unconstitutionally overbroad statute may enforced acceptable construction obtained thornhill alabama construction made statute construed may applied conduct occurring prior limiting construction notice overbreadth components vagueness doctrine treatment inexplicable far notice concerned one engaged certain conduct prior limiting construction overbroad statute obviously received construction warning enabled keep conduct within bounds law similarly adequate notice fact given overbroad statute certain conduct criminally punishable hard see doctrine overbreadth furthered forbidding state one hand punish conduct long acceptable limiting construction obtained permitting punish prior conduct statute acceptably construed however actions inexplicable examined terms articulated acceptable limiting construction fact obtained fact assurance responsible organ state power made explicit choice among possible alternative policies forgotten possess constitutional power make criminal much conduct may wish forbid may even desire encourage vague overbroad statute applied acceptably construed remains danger individual whose conduct admittedly clearly within scope statute face punished actions fact state desire make generally punishable conduct engaged another person subject criminal liability shuttlesworth birmingham allowing vague overbroad statute enforced acceptable construction obtained forces state make explicit social choices prevents discrimination application one policy one person another policy others particularly relevant present case decision giaccio pennsylvania case involved statute whereby pennsylvania attempted mitigate harshness rule requiring criminal defendants pay costs prosecution cases committing matter discretion jury cases defendant found guilty two members concurring result held due process forbade imposition costs upon acquitted defendant refused however base decision ground opinion brother black said agree trial act invalid due process clause vagueness absence standards sufficient enable defendants protect arbitrary discriminatory impositions costs established law fails meet requirements due process clause vague standardless leaves public uncertain conduct prohibits leaves judges jurors free decide without legally fixed standards prohibited particular case pennsylvania act contains standards certainly one basic purposes due process clause always protect person government impose burdens upon except accordance valid laws land implicit constitutional safeguard premise law must one carries understandable meaning legal standards courts must enforce state contends state interpretations provided standards guides cure constitutional deficiencies agree case trial judge instructed jury might place costs prosecution appellant though found guilty crime charged jury found guilty misconduct less offense charged nevertheless misconduct kind result required pay penalty short conviction misconduct given rise prosecution may possibly trial charge comes nearer giving guide jury preceded still falls short kind legal standard due process requires emphasis added citations omitted decisions applying due process clause doctrine unconstitutional vagueness lead following conclusions first protection arbitrary discriminatory action embodied due process clause requires state power exerted mechanisms assure fundamental choices among competing state policies explicitly made responsible organ state second cases suggest due process requires well state procedures decision questions may adverse consequences individual neither leave room deprivation sub silentio individual federally protected rights unduly frustrate federal judicial review provided vindication rights second point explicitly made unrelated line cases turn whether force application specific constitutional guarantees due process clause fourteenth amendment protects individuals narrow class impermissible exertions power applied procedures whereby admittedly permissible state power exerted however due process clause consistently given wider scope ur system law always endeavored prevent even probability unfairness murchison thus never suggested every judge target contemptuous personal attacks litigants attorneys incapable rendering fair decision merits contempt charge persons consistently held excepting cases urgent necessity due process requires contempt charges cases heard different judge mayberry pennsylvania murchison supra tumey ohio suggest every judgment rendered official financial stake outcome ipso facto product bias proceeding directly contrary assumption nevertheless held due process violated procedure offer possible temptation average man hold balance nice clear true state accused jackson denno one two grounds struck new york procedure required jury determine voluntariness confession time determined guilt crime charged procedure created impermissible virtually unreviewable risk jury able disregard confession felt involuntary true similarly long line cases beginning lovell griffin repeatedly held due process violated state procedures administration permit systems regulating public exercise first amendment rights procedure allows permit denied impermissible reasons whether individual actually demonstrate denied permit activity state lawfully prohibit recently louisiana faced state procedure determining voting qualifications state words vested discretion registrars voters determine qualifications applicants registration imposed definite objective standards upon registrars voters administration interpretation test quoting apparent approval state criticism similar procedure ground arbitrary power lodged registration officer practically places decision beyond pale judicial review noted accepted district finding louisiana provides effective method whereby arbitrary capricious action registrars voters may prevented redressed ibid continued applicant facing registrar louisiana thus compelled leave voting fate official uncontrolled power determine whether applicant understanding federal state constitution satisfactory cherished right people country like vote obliterated use laws like leave voting fate citizen passing whim impulse individual registrar many cases pointed invalidity laws completely devoid standards restraints diverse cases rest upon common ground stand ineluctably proposition due process requires exert state power impermissible ways specifically rule cases state procedures inadequate due process clause unless designed control arbitrary action also make meaningful otherwise available mechanism judicial review elsewhere made last point explicit specht patterson held due process commitment proceedings whether denominated civil criminal requires findings adequate make meaningful appeal allowed see garner louisiana jackson denno supra alternative ground struck new york procedure determining voluntariness confession submitting question jury time question guilt admixture reliability voluntariness considerations jury entitle defendant proceedings case essential facts disputed determine jury resolved issues assume reliably properly resolved accused emphasis added words due process forbids adopt procedures defeat institution federal judicial review depth principles embedded concept due process evidenced fact occasion applied merely rule particular state procedure permissible due process clause particular specific procedure required due process repeatedly held example guilty plea inevitably attendant waivers federally guaranteed rights valid represent voluntary intelligent choice part defendant north carolina alford validity guilty plea may tested federal habeas corpus facts outside record may pleaded proved waley johnston recognizing existence remedy held boykin alabama due process requires record adequate review may later sought permit protection federally guaranteed rights relegated collateral proceedings seek probe murky memories ibid accordingly held due process requires state accepting plea guilty make contemporaneous record adequate show defendant intelligently knowingly pleaded guilty last term goldberg kelly held decision withdrawal welfare benefits must rest solely legal rules evidence adduced hearing due process requires demonstrate compliance elementary requirement stat ing reasons determination indicat ing evidence relied ibid view cases discussed establish beyond peradventure following propositions first due process law requires protect individuals arbitrary exercise state power assuring fundamental policy choices underlying exercise state power explicitly articulated responsible organ state government second due process law denied state procedural mechanisms allow exercise arbitrary power without providing means whereby arbitrary action may reviewed corrected third federally protected rights involved due process law denied state procedures render inefficacious federal judicial machinery established vindication rights way propositions must qualified circumstances impossibility certain procedures may sufficient permit state power exercised notwithstanding absence cf carroll president commissioners judgment procedural safeguard otherwise required due process clause impossible application particular circumstances one lightly made present cases argument impossibility made parties us conclude capital sentencing inevitably matter complexity carried consonance fundamental requirements due process least examine mechanisms developed incomparable situations previously approved therefore examining specific capital sentencing procedures issue cases light due process clause compelled discuss mechanisms available control arbitrary action nature capital sentencing process ii legislature determined state kill persons convicted certain crimes must inevitably determine state distinguish killed depending ultimately legislature notion wise penological policy distinction may hard easy make capital sentencing difficult question legislatures ever faced least since wayman southard wheat recognized constitution prohibit congress dealing questions delegating others responsibility determination purpose trace detail either sources scope delegation doctrine extent applicable due process clause sufficient state view whatever sources doctrine application matter due process merely reflection fundamental principles due process already discussed brother harlan words delegation doctrine insures fundamental policy decisions society made appointed official body immediately responsible people prevents judicial review becoming merely exercise large providing courts measure judge official action challenged arizona california dissenting part outset candor compels recognition cases regarding delegation congress lawmaking power always say seem mean kenneth culp davis instrumental pointing unreality judicial language appearing direct attention solely presence absence statutory standards intelligible principle delegated authority may guided see generally davis administrative law treatise words difficulty complexity types policy determination requires legislative body allowed provide administrative working basic policy use specialized tribunals use method concentrating upon one particular narrow concrete problem time protection advance legislative guidance little consequence compared protection provided adequate procedural safeguards appropriate legislative supervision reexamination accustomed scope judicial review protection comes hearing determination record specific findings reasons opportunity outside critics compare one case another critical supervision legislative authority judicial review likely superior protection afforded definiteness standards first number instances congress fact undertaken regulate even rather complex questions prescription relatively specific standards certainly open question whether determining conduct subject criminal sanctions difficult determining sanctions yet congress state legislatures well regularly passed criminal codes embodying main statutes directed specifically narrowly defined conduct similarly congress resolved certainly one delicate complex questions recent years extent national interest warranted federal regulation organizations including political parties infiltrated dominated subject foreign control leaving matter anyone else defining careful particularity characteristics required organization subject regulation see supp communist party sacb congressional response complex intractable problems depression era occasionally took similar form thus act approved rock royal stated congressional policy restore parity prices milk defined term delegated secretary agriculture power issue orders terms specified act commanding minimum prices determined accordance prescribed standards applicable areas prices fallen limit set congress see second circumstances congress granted others power prescribe fixed rules govern future activity adjudications delegations power permit legislature declare end sought leave technical matters hands experts leave others task devising specific rules carry congressional policy variety factual situations often case even major policy decisions may turn specialized knowledge expertise beyond legislative ken delegation rulemaking power may made broad standards body chosen familiarity subject matter regulated entirely aside whatever procedural protections may afforded interested parties prior promulgation administrative rules nature rulemaking process provides significant guarantees evenhanded treatment ultimate legislative supervision fundamental policy questions significantly upheld delegations rulemaking power without standards guide exercise two narrowly limited classes cases otherwise searched statute legislative history context regulation enacted order discern articulate legislative policy point whether intelligible legislative policy correctly inferred statute point policy expressly articulated serves guide subsequent administrative judicial action also provides basis upon legislature may determine whether power exercised accordance intelligible resolution fundamental policy questions discerned statute judicial decisions rulemaking process serves make explicit agency resolution questions thus allowing meaningful legislative supervision well providing bases judicial review agency action supposedly premised rule refinement old rule light experience gained administration third perhaps common legislative technique dealing complex questions arise myriad factual contexts delegation another group lawmaking power may exercised either rulemaking adjudication individual cases choice two left agency judgment schemes allowing broad flexibility working policy basis nevertheless invariably provided substantial protections insure arbitrary action guarantee underlying questions policy considered resolved delegation simply rulemaking power often found substantial guidance language history governing statute new york central securities radio commission nelson sunshine anthracite coal adkins agency action delegations must typically premised upon explanation findings reasons given decision supp requirement held far empty formality sec chenery phelps dodge nlrb regular course adjudication continuing body required explain reasoning upon decisions based results accumulation body precedent time general principles may deduced see history federal communications commission fairness doctrine traced red lion broadcasting fcc often noted importance administrative judicial review providing check exercise arbitrary power mulford smith american power light sec made clear judicial review designed reinforce internal protections arbitrary unconsidered action leaving questions policy agency congress thus withheld approval agency action unsupported indication reasons action phelps dodge nlrb supra reasons articulated improper sicurella even though record might well support identical action taken different reasons sec chenery supra administrative expertise relevant solution problem never brought bear upon fcc rca communications apparent conflict administrative rationales never explained agency barrett line change agency policy taken place particular adjudication concerned nlrb gissel packing combination rulemaking adjudicatory powers proved particularly useful tool situations prescription detailed standards first instance difficult impossible congress yet variety factual situations rendered particularly important protection random arbitrary decisions thus lichter dealt provisions original renegotiation act passed april directed various administrative officials proceed compulsory renegotiation contracts resulted excessive profits act originally passed attempted definition profits within four months however administrative practice solidified list six factors considered determining whether profits excessive slightly two months later factors adopted congress amendment act upholding original act claim excessive delegation stressed rapid development generally applicable standards availability judicial review check arbitrary inconsistent administrative action next question whether anything inherent nature capital sentencing makes impossible application means elsewhere devised check arbitrary action think fair say provided explanation conclusion capital sentencing inherently incapable rational treatment instead relies primarily report british royal commission capital punishment reaches conclusions substantially identical following urged archdeacon william paley justify england bloody code capital crimes selection proper objects capital punishment principally depends upon circumstances however easy perceive particular case crime committed impossible enumerate define beforehand ascertain however exactness requisite legal descriptions hence although necessary fix precise rules law boundary one side yet mitigation punishment may without danger intrusted executive magistrate whose discretion operate upon numerous unforeseen mutable indefinite circumstances crime criminal constitute qualify malignity offence judgment death reserved one two species crimes crimes might occur dangerous example accompanied circumstances heinous aggravation fall within description offences laws made capital consequently receive punishment malignity public safety required law england constructed upon different better policy number statutes creating capital offences sweeps net every crime possible circumstances may merit punishment death execution sentence comes deliberated upon small proportion class singled general character peculiar aggravations whose crimes render fit examples public justice wisdom humanity design furnish excuse multiplicity capital offences laws england accused creating beyond countries paley principles moral political philosophy amer ed formulate particularity standards satisfy fourteenth amendment doubt finding want standards presupposes conception necessary meet constitutional requirement draw fourteenth amendment many decision rests inarticulate major premise none worse standard may found inadequate without necessity explicit delineation standards adequate doggerel may felt poetry without need writing essay poetry niemotko maryland concurring result first important outset recognize two separate questions involved first question ends given state seeks achieve imposing death penalty second question whether ends served given case first question requires determination penological policy adopted state choosing kill convicted criminals second question requires relevant facts particular case determined state penological policy applied facts second likewise important bear mind complexity capital sentencing particular jurisdiction inevitably function penological policy applied inherently difficult question thus state determine kill murderers previously convicted murder persons sentencing determination ordinarily rather simple one hand state determine exclude murderers rehabilitated probably safe assume question proper sentencing policy complex one indeed borne mind either policies host others may applied cases us third neither time place essay purposes criminal punishment yet discussion must ventured without indicating judgment propriety without intending suggest others may exist apposite note interests often discussed connection state capital sentencing policy four state may seek inflict retribution wrongdoer inflicting punishment strictly proportion offense committed may seek infliction punishment deter others committing similar crimes may consider least wrongdoers likely commit crimes therefore seek prevent hypothetical future acts removing persons society may seek rehabilitate offenders reserving capital punishment cases judges likelihood rehabilitation less certain amount may assume many choosing kill convicted criminals intend thereby one ends listed need doubt may consider policies well relevant decision see reason whatsoever state may excused declaring policies seeks infliction capital punishment merely may difficult determine policies applied particular case anything seem difficulty decision particular cases support rather weaken point uniform decisionmaking requires state policy explicitly articulated yet seems somehow assume jurors likely fulfill function correctly apply uniform state policy never told policy assumption finds support anywhere side world unaware fourth say course may room whatsoever exercise discretion capital sentencing process discretion worthy name unchanneled judgment judgment guided reason kept within bounds otherwise lord camden words law tyrants always unknown different different men casual depends upon constitution temper passion best oftentimes caprice worst every vice folly passion human nature liable hindson kersey cited tr may well given state notions proper penological policy precise amount weight given one factor particular case death possible penalty incapable determination beforehand excuse refusing tell decisionmaker whether consider particular factor particularly decisions made continuing body persons groups selected make single decision dispersed immediately event likelihood consistency whatsoever vanishingly small perfection may demanded law capacity counteract inevitable frailties mark civilized legal mechanism rosenberg frankfurter dissenting point even state notion wise capital sentencing policy policy implemented formula capable mechanical application something incidentally known unless state makes explicit precisely policy reason give guidance called upon render decision fifth already indicated typical legislative response problems deemed sufficient urgency solution must implemented immediately yet time sufficient difficulty incapable explicit statutory solution provide means whereby law may usefully developed basis systems devised whereby case may decided upon facts consistency development general principles left wisdom comes experience speaking course administrative process basis reasons given decision explained subject review see reason capital sentencing ipso facto unsuited treatment begin legislature deem present knowledge insufficient create proper standards hard indeed see solution one ultimately lead development standards cf lichter see reason juries determined given person killed state unable explain reached decision facts upon based persons dubious ability juries explain findings consult fletcher peck cranch findings trial jury cf fed rule civ proc even assumed juries incapable making explanations already held inability excuse state providing sentencing process provides reasons decisions reached reasons otherwise required north carolina pearce sum see reason whatsoever believe nature capital sentencing surrounded protections ordinarily available check arbitrary lawless action course reason believe impossibility say nothing true legal profession eminent among years testified complete confidence something impossible introduced found easy administration history legal procedure history rejection reasonable civilised standards administration law eminent judges leading practitioners every effort effect improving changes resisted assumption man ultimate wisdom found legal system date try make change frankfurter problem capital punishment law men iii explained reasons belief due process clause fourteenth amendment compels make explicit fundamental policy choices upon exertion state power based exercise power procedures limit possibility merely arbitrary action provide record adequate render meaningful institution federal judicial review also explained view nothing inherent nature capital sentencing makes application procedures impossible remains question whether two state procedures review today provide necessary safeguards ohio capital defendant elects trial jury questions whether guilty crime charged whether killed simultaneously submitted jury jury trial may however waived right capital cases state smith ohio defendant may permission enter plea guilty state ferranto ohio absence jury trial sentencing decision made ohio rev code ann defendant exercises right jury trial may introduce evidence relevant question guilt evidence may introduced directed specifically toward claim mercy ashbrook state ohio app matter vested fully exclusively discretion jury state ellis ohio syllabus therefore ohio law issue case ashbrook state supra defendant present evidence question guilt may therefore present evidence whatsoever sentencing jury defendant waives jury trial however somewhat different situation presumably course rules evidence apply bench trial trial upon plea guilty sentencing determination made however two additional factors apply first defendant absolute right address sentence imposed ohio rev code ann denial ground resentencing silsby state ohio since jury decision defendant killed unreviewable state klumpp ohio op appeal dismissed ohio trial state reed ohio app exercise right effect sentencing determination jury cases trial may modify sentence term see lee state ohio may therefore swayed defendant personal plea moreover ohio rev code ann supp expressly permits trial hear testimony mitigation sentence term conviction plea statute applicable capital cases defendants pleading guilty waiving jury trial may introduce additional information question sentence however unreviewability jury sentence means effect cases tried jury finally death sentence imposed may reviewed modified appeal state ferguson ohio state stewart ohio standard instruction given capital juries question punishment appears state caldwell ohio ou determine whether extend withhold mercy connection whether recommend withhold mercy matter solely within discretion calling exercise best profound judgment motivated considerations sympathy means escaping hard disagreeable duty must considered light circumstances case respect evidence submitted circumstances surrounding defendant view way ohio capital sentencing procedure thought pass muster due process clause first nothing whatsoever process either sets forth basic policy considerations ohio believes relevant capital sentencing leads towards elucidation considerations light accumulated experience standard jury instruction contains best obscure hint instructions given present case contain none whatsoever far concerned jury decided impose death penalty matter simple vengeance considered atrocious crime felt imposition death penalty deter potential murderers felt petitioner killed might kill commit wrong future jury may influenced none considerations beyond present ability ohio legislature identify fact characteristics criminal homicides perpetrators judgment state ohio call death penalty express characteristics language fairly understood applied sentencing authority ante ohio procedure hardly designed improve ability contains element proudest tradition common law ability grow time slowly deriving principles general applicability careful consideration myriad facts multitude particular cases neither state ohio know reasoning jury determined impose death penalty facts upon reasoning based know jury appear find question particularly difficult one jury determined james edward crampton murdered wife done legally sane killed less five hours second policies applied state ohio determine james edward crampton die neither articulated explained jury made decision elsewhere set forth standard jury instructions quoted supra tell jury reach determination light circumstances case respect evidence submitted circumstances surrounding defendant perceptive jury might conclude instruction indicates ohio considers relative severity crime factor substantial importance determination sentence jury determine severity crime relation others however something mystery since ohio law simultaneously demands sentencing determination based strictly upon evidence adduced case hand howell state ohio forbids defendant introduce evidence crimes judgments aid jury determining whether murder committed less severe murders ashbrook state supra similarly directing jury attention circumstances surrounding defendant might thought ohio suggesting consideration environmental factors might make defendant actions justifiable less reflection personal blameworthiness yet reading instruction condemned state caldwell supra approved jury charge environmental factors nothing whatever sentencing decision also might thought directing juries consider circumstances surrounding defendant indication albeit rather backhanded one ohio desires capital sentencing juries take account likelihood particular defendant may rehabilitated certainly indication reinforced cases jury instructed regard possibility parole life sentence instructions parole optional trial state henley supra state meyer supra unless assumed every jury instructed nevertheless aware possibility parole likewise despite instructions base verdict evidence case nevertheless rely upon knowledge possibility parole failure instruct juries regard parole must mean either state policy regard rehabilitation fact implied instructions else state policy consciously applied capital cases finally one ohio case may explicable basis suggested nowhere else ohio law capital sentencing decision rests upon factors vary depending upon two simultaneously applicable capital statutes used support punishment state ferguson ohio defendant convicted guilty pleas entered charges premeditated murder felony murder growing murder course robbery single individual heard evidence fix penalty charges time sentenced life imprisonment premeditated murder charge death charge felony murder ohio affirmed sentence death light cases think fair say ohio law nowhere purported set forth considerations state policy intended underlie sentence death third even assumed ohio sentencing judges juries act upon shared although unarticulated unarticulable notions proper capital sentencing policy capital sentencing process ohio contains elements render difficult impossible consistency result presumably judges certainly juries specifically instructed cognizant possibility parole sentence life imprisonment juries irrelevant factor hard understand juries may given information relevant factor equally hard understand juries relevant factor inevitable consequence presenting information explicable reason capital sentencing juries consistency decisionmaking impossible similarly already noted substantial difference evidence may considered jury may considered sentencing panel judges although defendant may jury trial testify question guilt willing forgo privilege may even present evidence relevant solely question penalty defendant sentenced panel judges hand absolute right sentencing decision becomes final address sentencers subject may choose defendant appears well least chance present evidence sources relevant solely sentencing determination determination becomes final yet information may presented jury whether jury desires point consistent decisionmaking impossible one decisionmaker may consider information forbidden another basis whatsoever presented justify difference inexcusable fourth moreover reason believe ohio capital sentencing judges juries fact share common notions considerations relevant capital sentencing already pointed state policy ever articulated whatever may case judges capital sentencing juries drawn essentially random called upon decide one case one case whatever value may notion arbitrary decisionmaking may controlled committing difficult questions continuing body least maintain consistency principle changes views questions decided entirely absent capital jury sentencing process presently review capital sentencing juries ohio continuing bodies jury may told another jury done similar different cases likewise procedure review gain uniformity judicial review ohio law review permitted fifth although due process clause forbid state imposing different punishment offence particular circumstances moore missouri command punishment dealt alike similarly situated ibid leeper texas missouri lewis even granting state fullest conceivable room judgment particular circumstances justifying different treatment means least state must apply fundamental policies making judgment institution federal judicial review designed vindicate federally guaranteed rights yet procedure us renders possibility review entirely chimerical way determining policies applied state reaching judgment way inferring policies applied examination facts idea facts relied sentencers may void filled way presumptions based result actions neither given direction exercise judgment asked explain conclusion reached simply way determine whether petitioner crampton condemned die reasons ohio willing apply case reasons ohio explicitly set forth explicitly reject sum ohio capital sentencing procedure presently us raises fundamental questions state policy never explicitly decided responsible organ state nothing procedure looks towards gradual development uniform state policy accumulation body precedent protection whatsoever appears possibility merely arbitrary willful decisionmaking moreover features process appear make inconsistent action merely possible inevitable finally record provided ohio capital sentencing process makes virtually impossible redress violations federally guaranteed rights institution federal judicial review see possible basis holding capital sentencing procedure permissible due process clause therefore reverse petitioner crampton sentence death procedures whereby state california determines convicted criminals kill differ number respects used ohio following conviction possibly capital crime question penalty determined separate proceeding except defendant prosecution consent waived trial jury sentencing determination made jury whether conviction plea guilty guilty defendant waives jury trial issue guilt may sentence determined jury people golston cal notwithstanding statutory language appears possible defendant whose guilt determined jury sentence determined judge see people sosa cal app cal rptr jury waived identical sentencing power exercised single judge people langdon cal people jones cal jury determination impose death sentence may set aside judge presiding trial cal penal code construed people hill cal may otherwise reviewed whether fixed judge jury people welch cal judge anderson cal range evidence may introduced penalty trial broad ordinary rules competence hearsay apply people hines cal issues excluded exclusion however appears basis issues irrelevant rather either unduly inflammatory impractical litigate thus evidence argument prohibited concerning likelihood parole life sentence people morse cal concerning deterrent effects capital punishment people purvis cal people love cal people kidd cal although reference matter may present case see app made prosecution treated doctrine people garner cal especially trial people welch cal concerning whether capital punishment ever imposed people moya cal concerning physical suffering victim unintended defendant people love cal except limitations however virtually matter may explored people terry cal following arguments counsel jury instructed function determining penalty imposed standard instruction subject exists mandatory essentially instruction given present case defendants case found guilty offense murder first degree duty determine penalties provided law imposed defendant offense arriving determination consider evidence received presented people defendants throughout trial jury may also consider evidence circumstances surrounding crime defendant background history facts aggravation mitigation penalty received however essential decision find mitigating circumstances one hand evidence aggravation offense hand law state every person guilty murder first degree shall suffer death confinement state prison life discretion jury fix penalty confinement life indicate verdict fix penalty death indicate verdict notwithstanding facts proved mitigation aggravation determining punishment shall inflicted entirely free act according judgment conscience absolute discretion verdict must express individual opinion juror beyond prescribing two alternative penalties law provides standard guidance jury selection penalty rather commits whole matter determining two penalties shall fixed judgment conscience absolute discretion jury determination matter jury agree must unanimous two penalties imposed substantial number subsidiary instructions may need given jury governing principle instructions must make clear jury decision whether convicted defendant killed take place legal vacuum people terry cal see people friend cal trial judge may desire aid jury stating kinds factors may considered thereby setting tone jury deliberation people polk cal long done manner indicates jury free consider factors listed judge consider anything else may desire people friend supra however error refuse instruction people polk supra similarly although trial judge may instruct jury may moved sympathy defendant people anderson cal may refuse give instruction defense request people hillery cal although error instruct jury may moved people polk supra people bandhauer cal error instruct jury may consider doubts defendant guilt mitigating circumstances people terry supra error refuse charge doubt may mitigating factor people washington cal although trial judge may give charge desires people polk supra people terry supra finally jury determination impose death sentence may reviewed may however set aside judge presiding trial basis upon california made distinction importance present case entirely clear trial judge power reduce sentence death one life imprisonment based cal penal code provides pertinent part case wherein authority vested statute trial jury recommend determine part verdict finding punishment imposed may modify verdict finding imposing lesser punishment without granting ordering new trial power shall extend case may appealed california construed statute empower trial set aside jury verdict death people moore cal give power appellate people green cal anderson cal said trier fact vested exclusive discretion determine punishment people green supra means trial review jury determination convicted defendant killed based upon independent view evidence people love cal quoting people moore supra trial determine whether defendant killed apparently exactly basis exactly way issue never submitted jury see people moore supra people hill cal people love supra anderson supra short defendant sentenced die may obtain judicial review decision one sentenced die jury gets second bite apple entitled two decisions evidence people ketchel cal find procedure likewise defective due process clause although differs insignificant respects procedure used ohio nevertheless entirely bare fundamental safeguards required due process first procedures contain heart basic vice like ohio california fails provide means whereby fundamental questions state policy regard capital sentencing may authoritatively resolved resolved state legislature committed matter entirely whatevery judge jury may exercise sentencing authority particular case authoritatively resolved sentencing authority california expressly ruled part sentencing function people kidd cal also resolution binding one case one case simply means assure truly fundamental issues ultimately resolved legislature wilke holzheiser department alcoholic beverage control cal nothing whatsoever anywhere process gives assurance one defendant sentenced upon notions california penological policy even vaguely resembling applied next second question us procedure produce fewest number death sentences power trial judge set aside jury verdict might substantial importance course question except insofar incorporates eighth amendment prohibition cruel unusual punishments issue cases due process clause gives us warrant interfere state decision make certain crimes punishable death due process clause commands us however make certain state takes one man life reasons apply another even assumed trial judges obey california direction exercise independent judgment propriety death penalty existence trial power set aside verdicts adds little likelihood evenhanded treatment power exercised precisely way jury without guideline check without review without explanation reasons findings fact without opportunity ultimate legislative acceptance rejection policies applied true trial judges sense professional sentencers presumably given judge extent actually exercise independent judgment question best avoid conscious inconsistency remains multiplicity sentencing judges expressly told california seek guidance decision statute opinions indeed source outside individual opinions see supra circumstances possibility consistent decisionmaking nonexistent multiplicity tribunals diversity procedures quite apt produce incompatible conflicting adjudications different rules substantive law garner teamsters local third like ohio counterpart california procedure us inevitably operates frustrate institution federal judicial review know facts jury relied upon determining petitioner mcgautha killed reasons upon based decision know know basis upon state california determined fit live people morse cal know prosecutor closing argument strongly urged jury dennis councle mcgautha killed unregenerate bad taste insist pleaded guilty crime commit cf north carolina alford also know nothing instructions given jury contained slightest hint sole basis decision see supra finally also know whatever factors state california relied upon sentence petitioner mcgautha death factors permissible impermissible applied state every convicted capital criminal alone way whatsoever petitioner demonstrate factors relied upon obtain review propriety short procedure us case simultaneously invites sentencers flout constitution promises action immune federal judicial review astoundingly upholding procedure explicitly commends feature see ante think procedure consistent due process clause accordingly reverse petitioner mcgautha sentence death indicated reasons judgment procedures adopted ohio california defendants die inconsistent basic fundamental principles due process even thought procedures adequate try welfare claim goldberg kelly little hesitation finding inadequate life stake long recognized degree procedural regularity required due process clause increases importance interests stake see cafeteria workers mcelroy dissent first amendment interests involved held stringent procedural requirements indeed see stanley georgia freedman maryland quantity books kansas marcus search warrant speiser randall course first amendment interest transcending value life yet opinion turns law head conclude apparently decision take someone life tremendous import make decisions need inhibit ed safeguards otherwise required due process law ante belief contrary hold state determines take human life thereby exempted constitutional command due process law iv finally words said matters peripherally suggested cases first cases slightest way draw question power determine whether impose death penalty giaccio pennsylvania involved power state pennsylvania impose criminal punishment persons fire pistol loaded blanks another second cases call upon us determine whether petitioners trials fairly conducted way referred brother black ante call upon us determine whether due process clause requires words make certain men governed law arbitrary fiat man men power winship dissent whether state acting jury applies one standard determine one convicted criminal die due process clause commands every trial jurisdiction must adhere standard third called upon determine whether death penalty appropriate punishment petitioners us ante determination however apparently believes procedures us upheld results present cases comport unarticulated notions capital sentencing policy see ibid fundamental misapprehension judicial function pervades opinion single brief mention due process clause entirely eschews discussion constitution instead speaks considerations upon believes rest capital sentencing policy ante finally add several reasons present cases draw question power desire commit criminal sentencing powers jury one thing see reason believe juries capable explaining simple possibly perceptive terms facts found reasons considered sufficient take human life second already indicated believe life interest transcendent importance decision take life may require procedural regularity far beyond decision simply set sentence one another term years third jury sentencing involves decision determination ultimate question many years defendant actually serve generally placed substantially hands parole board single continuing board professionals whose general supervision accumulated wisdom go far toward insuring consistency sentencing finally cases juries asked fix convicted defendant sentence one another term years must inevitably aware matter defendant eventually return society mind jury least recognize rehabilitation must factor substantial weight deliberations course none cases us mean imply every question question life death may submitted state jury determined unguided unreviewed unreviewable discretion help concluding opinion core rests upon nothing solid inability imagine regime capital sentencing presently exists assent basis decision guide light reason must let minds bold new state ice liebmann brandeis dissenting brother harlan continues stability flexibility constitutional system possesses largely due carried constitutional adjudication approach legal development prohibition bills attainder art cl federal cl state protects individuals groups singled legislative instead judicial trial see brown dissent cummings missouri wall prohibition ex post facto laws joined constitution ban bills attainder prevents legislatures achieving similar ends indirection either making criminal acts innocent performed cummings missouri supra calder bull dall chase increasing punishment imposed upon admittedly criminal acts already committed medley calder bull supra constitutional limitation federal legislative power congress applied require fundamental policy choices made private individuals even public officers acting pursuant unguided unsupervised delegation legislative authority nation whole acting congress see fcc rca communications lichter schechter poultry panama refining ryan cardozo dissenting finally requirement evenhanded treatment imposed upon agents equal protection clause see cooper aaron mcfarland american sugar holmes applied federal government well fifth amendment due process clause shapiro thompson schneider rusk bolling sharpe thus although recognizing explicit constitutional prohibition ex post facto laws applies legislative action held bouie city columbia due process violated like action part state significantly dissenting justices bouie took issue conclusion interpretation statute question state foreshadowed prior state law see similarly although held bound federal government doctrine separation powers dreyer illinois sweezy new hampshire nevertheless held state delegation legislative authority without guideline check violates due process seattle trust roberge eubank richmond cf browning hooper see discussion infra finally hurtado california quoted text immediately noted example clear violation due process passage legislature bill attainder cf supra cases cited course applied specific substantive protections bill rights limit state power due process clause near minnesota first amendment robinson california eighth amendment griswold connecticut first third fourth fifth ninth amendments conversely held least aspects fourteenth amendment equal protection clause applicable limit federal power due process clause fifth amendment see shapiro thompson cases cited finally course held due process forbids state punishing assertion federally guaranteed rights whether procedural otherwise north carolina pearce spevack klein cf ex parte hull long rejected view typified adkins children hospital overruled west coast hotel parrish due process clause vests judges roving commission impose notions wise social policy upon ferguson skrupa north carolina pearce supra boykin alabama see also goldberg kelly wade miranda arizona jackson denno johnson avery murchison seattle trust roberge supra analysis substantially terms see collings unconstitutional uncertainty appraisal cornell freund civil liberties vand rev comment rev vague statute may applied one way one person different way another aside fact constitute denial equal protection niemotko maryland cf black constitutional faith reasons underlying different applications different individuals may constitutionally impermissible cf schacht applicability statute determined political views yick wo hopkins application statute racial basis younger harris companions cast shadow upon sentence quoted closely related proposition may derived separate line cases louisiana power light city thibodaux upheld abstention federal district diversity action decision whether state statute never construed louisiana courts cities state possessed power take local gas electric companies eminent domain day allegheny county frank mashuda upheld action another district refusing abstain decision whether state law allowing takings public private use allegheny county possessed power take particular property particular use decisions irreconcilable often remarked basis diversity jurisdiction supposition possibly state tribunal might impartial citizens foreigners pease peck question state law presented thibodaux broad one substantial ramifications beyond lawsuit hand prejudice company involved case given effect state courts cost possibly incorrect decision significant adverse effect upon state citizens well particular outsider involved suit mashuda hand decision one way another little effect beyond case question possible state bias given full effect without hampering significant state policy taken together thibodaux mashuda may stand proposition possibility bias stands foundation federal diversity jurisdiction may nevertheless discounted bias given effect decision inevitable repercussions matter fundamental state policy put another way thibodaux mashuda may serve illustrate another context principle necessarily underlies many vagueness decisions due process requirement make explicit choice among competing views questions fundamental state policy serves enforce requirement evenhanded treatment due process commands see brief appellee giaccio pp commonwealth tilghman sup act march smith laws standards provided guide jury decision see see app giaccio charge given case giaccio say intend cast doubt whatever constitutionality settled practice many prescribing jury sentencing insofar jury sentencing general concerned giaccio means necessarily inconsistent practice see infra find little short bewildering treatment giaccio appears read case standing proposition due process forbids jury impose punishment upon defendants conduct although amounting crime charged nevertheless found reprehensible ante course procedures review permit precisely action without providing even minimal safeguards found insufficient giaccio see part iii infra difference giaccio present cases procedures review apply acquitted defendants already found guilty crime elsewhere opinion concluded relevant differences sentencing determination guilt innocence great call difference constitutional result ante think fair say nowhere treatment giaccio even attempt explain unspecified relevant differences finds call difference constitutional result point may made another way consistently held due process clause protects individuals arbitrary governmental action despite sharp conflict among members standards applied determining whether governmental action fact arbitrary see griswold connecticut harlan concurring judgment black dissenting members agreed phrase content giaccio pennsylvania black due process requires defendants protected arbitrary discriminatory punishment vagueness cases suggest state action arbitrary therefore violative due process based upon distinctions state specifically forbidden make loving virginia designed effect punishing individual assertion federally protected rights north carolina pearce black also based upon permissible state policy choice never explicitly made responsible organ state doubtless mayors allow consideration costs case affect judgment held alternative ground louisiana procedure applied violated fifteenth amendment see also case upon direct review jackson conviction proceed review assumption disputes resolved favor state held unable tell jury resolved matters essential bear mind complexity capital sentencing determinations function penological policy applied state might conclude example murderers sentenced death committed one crime application criterion facts particular case relatively simple applied federal government doctrine appears roots constitutional requirement separation powers course applicable dreyer illinois sweezy new hampshire due process clause fifth amendment see wayman southard wheat argument counsel due process separation powers field clark separation powers carter carter coal due process two doctrines unrelated words justice brandeis doctrine separation powers adopted convention promote efficiency preclude exercise arbitrary power myers dissent least since yick wo hopkins indicated due process places limits manner extent state legislature may delegate others powers legislature might admittedly exercise eubank richmond embree kansas city road district browning hooper cline frink dairy miller schoene seattle trust roberge louisiana giaccio pennsylvania see jaffe law making private groups harv rev passage quoted explicitly exegesis separation powers point discussed precisely functions performed due process clause recent original analysis precisely effect see davis administrative law treatise supp davis administrative law treatise yakus phrase chief justice taft hampton professor davis recently suggested insofar presupposes search legislative standards doctrine prohibiting undue delegation legislative power explicitly abandoned time come courts acknowledge nondelegation doctrine unsatisfactory invent better ways protect arbitrary administrative power doctrine altered turn effective useful judicial tool purpose longer either prevent delegation legislative power require meaningful statutory standards purpose much deeper one protecting unnecessary uncontrolled discretionary power focus totality protections arbitrariness including safeguards standards administrative law treatise supp adoption approach suggests cause delegation doctrine merge concept due process course congress intended provide criminal sanctions intended regulatory scheme often simply made criminal willful violation administrative regulations rather enacting statutes outlawing specific conduct buttfield stranahan congressional directive prohibit importation tea impure unfit consumption standards purity fitness prescribed administrator grimaud delegation power make regulations use national forests improve protect forests red lion broadcasting fcc fairness doctrine nbc regulation contracts substantive exercises federal rulemaking power governed administrative procedure act et seq supp ever since wayman southard wheat regularly upheld congressional delegation courts agencies power make rules procedure cf supp excepting procedural rules requirements otherwise imposed rulemaking procedures administrative procedure act second regularly upheld federal statutes seek state policies adopting enforcing state law howard fahey mallonee found broad statutory standards drawing content accumulated experience established practices american trucking assns sustained exercise rulemaking power basis rules dealt matters explicitly mentioned statute reasonably necessary prevent frustration specific provisions act compare perkins lukens steel stat compare wunderlich stat see congressional revision federal trade commission rule regarding cigarette advertising fed reg stat accardi shaughnessy lichter termed professor davis respects greatest delegation uphold davis administrative law treatise notes substantially adopted one proposal national commission reform federal criminal laws mean imply course state compelled single uniform penological policy applicable crimes presumably state may example seek rehabilitate burglars pursue deterrence sentencing parking violators course occasion difficult problems identity validity prior convictions might arise see part iii infra literature surveyed packer limits criminal sanction reviewed yale waiver apparently matter right trial either representation defense counsel information come attention reason believe defendant presently insane see state smith supra apparently thing ohio plea guilty murder ohio rev code ann provides defendant pleads guilty murder first degree composed three judges shall examine witnesses determine degree crime pronounce sentence accordingly statute limited terms particular class cases question appears never discussed reported opinions see infra see supra see ohio rev code supra see ohio rev code supp supra addition evidence sentencing authority therefore possible bases decision vary substantially number factors presence absence insanity defense willingness vel non defendant waive privilege forth context irrational nature unitary trial particularly conspicuous jury considered recidivism relevant sentencing determination obtain information respect point defendant testify evidence crimes relevant reasons motive identity forth question guilt ohio exclude jurors conscientious scruples capital punishment state carter ohio course codefendants may tried jury jurors may time sat another capital case nothing suggests however latter class jurors anything insubstantial one light fact murder convictions period never exceeded per year evidence significant number jurors involved one capital sentencing determination seem raise substantial questions randomness jury selection procedures matter broad scope state power determine death penalty inflicted seriously questioned infliction reasons constitutionally impermissible yet nothing ohio procedure us prevents jury relying upon impermissible reasons allows anyone determine whether jury done cal penal code defines mandatory capital crime assault malice aforethought means likely cause great bodily injury prisoner sentence life imprisonment person assaulted fellow inmate dies within year day amici legal defense educational fund national office rights indigent represent without contradiction elsewhere mandatory capital statute presently active use see brief amici curiae cal penal code provides pertinent part person found guilty offense punishable life imprisonment death found sane plea guilty reason insanity shall thereupon proceedings issue penalty trier fact shall fix penalty evidence may presented proceedings issue penalty circumstances surrounding crime defendant background history facts aggravation mitigation penalty determination penalty life imprisonment death shall discretion jury trying issue fact evidence presented penalty fixed shall expressly stated decision verdict defendant convicted sitting without jury trier fact shall defendant convicted plea guilty trier fact shall jury unless jury waived defendant convicted jury trier fact shall jury unless good cause shown discharges jury case new jury shall drawn determine issue penalty case defendant found guilty jury another jury trying issue penalty unable reach unanimous verdict issue penalty shall dismiss jury either impose punishment life lieu ordering new trial issue penalty order new jury impaneled try issue penalty issue guilt shall retried jury see cal art people king cal see supra proceedings leading determination indicated text immediately following reviewable morse noted hen opened door slight crack allow instruction admit evidentiary showing realistic consequence sentence life imprisonment mind limited legitimate objective various maneuvers pushed door widely ajar many confusing elements entered courtroom cal kidd held defendant submit evidence capital punishment ineffective deterrent nnumerable witnesses produced testify sides question quoting love uries capital cases become legislatures ad hoc cal love held argument counsel impermissible evidence question impermissible cal basis ruling issue foreclosed statute allowing capital punishment imposed rule based apparently upon notion evidence unduly inflammatory see people floyd cal people bandhauer cal struck prospectively earlier practice allowing prosecution open close arguments inconsistent legislature strict neutrality concerning choice life death california jury instructions criminal rev elided paragraph included standard instruction referred instructed jury consider evidence crimes defendant unless crimes proved beyond reasonable doubt jury also instructed law forbid influenced pity defendants may governed mere sentiment sympathy defendants app jury instructed present case see supra light mystifying find relying ante following quotation witherspoon illinois sustain california procedure capital sentencing juries little must nothing less express conscience community ultimate question life death emphasis added omitted exercise unlimited power given jury apparently trial judge case denying petitioner mcgautha motion reduction penalty said ertainly think except unusual circumstances justified placing judgment people carefully deliberated upon case decided proper penalty case life imprisonment app see supra mcgautha three robberies ten years prison another killing documents front jury room prior record thing prior record way minimizes involvement imagine first prior think robbery nerve sit witness stand tell people asking kill nerve tell people pleaded guilty robbery really robbery tells second robbery friends giving ride involved second robbery commit robbery pleaded guilty got sentenced years served six years kind person spent time prison still unwilling acknowledge participation crime app peculiarity california law raises another subtle point juries noted required base decision particular findings fact given jury determine impose death sentence found particular facts thought relevant still required find facts even preponderance evidence people hines cal suggest due process requires facts found beyond reasonable doubt reverse due process grounds conviction sentence believed contrary weight evidence mind serious question whether state may constitutionally allow chosen trier fact base determination kill person facts trier fact believe supported weight evidence cf winship harlan concurring standard proof required due process depends upon consequences erroneous factual determination sure refers jury consideration arguments suggested defense counsel however understand imply arguments counsel state given less consideration except course insofar state power may restricted eighth amendment question involved cases