U.S. Supreme Court Williams v. New York, 337
U.S. 241 (1949) Williams v. New York No. 671 Argued April 21, 1949 Decided June 6, 1949 337
U.S. 241 APPEAL FROM THE COURT OF APPEALS OF
NEW YORK Syllabus The Due Process Clause of the Fourteenth Amendment does not
require that a person convicted after a fair trial be confronted
with and permitted to cross-examine witnesses as to his prior
criminal record considered by the judge in accordance with a state
statute in determining what sentence to impose pursuant to broad
discretion vested in him under state law -- even when the jury
recommends life imprisonment and the judge imposes a death
sentence. Pp. 337 U. S.
242 -252.

															(a) It has long been the practice to permit the sentencing judge
to exercise a wide discretion as to the sources and types of
information used to assist him in determining the sentence to be
imposed within the limits fixed by law. P. 337 U. S.
246 .

															(b) Modern concepts individualizing punishment have made it all
the more necessary that a sentencing judge not be denied an
opportunity to obtain pertinent information by a requirement of
rigid adherence to restrictive rules of evidence properly
applicable to the trial. Pp. 337 U. S.
246 -249.

															(c) To deprive the sentencing judge of information contained in
reports of probation officers would undermine modern penological
procedural policies that have been cautiously adopted throughout
the nation after careful consideration and experimentation. Pp. 337 U. S.
249 -250

															(d) In considering the sentence to be imposed after conviction,
the sentencing judge is not restricted to information received in
open court. Pp. 337 U. S.
250 -251.

															(e) A different result is not required when a death sentence is
imposed. Pp. 337 U. S.
251 -252.

															298 N.Y. 803, 83 N.E.2d 698, affirmed.

															After a fair trial, appellant was convicted of murder in the
first degree and the jury recommended life imprisonment. After
considering information as to his previous criminal record without
permitting him to confront or cross-examine the witnesses on that
subject, the trial Page 337 U. S. 242 judge sentenced him to death. The Court of Appeals of New York
affirmed. 298 N.Y. 803, 83 N.E.2d 698. On appeal to this Court, affirmed, p. 337 U. S.
252 .

															MR. JUSTICE BLACK delivered the opinion of the Court.

															A jury in a New York state court found appellant guilty of
murder in the first degree. [ Footnote 1 ] The jury recommended life imprisonment, but
the trial judge imposed sentence of death. [ Footnote 2 ] In giving his reasons for imposing the
death sentence, the judge discussed in open court the evidence upon
which the jury had convicted, stating that this evidence had been
considered in the light of additional information obtained through
the court's "Probation Department, and through other sources."
Consideration of Page 337 U. S. 243 this additional information was pursuant to § 482 of New York
Criminal Code, which provides:

															". . . Before rendering judgment or pronouncing sentence, the
court shall cause the defendant's previous criminal record to be
submitted to it, including any reports that may have been made as a
result of a mental, phychiatric [ sic ] or physical
examination of such person, and may seek any information that will
aid the court in determining the proper treatment of such
defendant."

															The Court of Appeals of New York affirmed the conviction and
sentence over the contention that, as construed and applied, the
controlling penal statutes are in violation of the due process
clause of the Fourteenth Amendment of the Constitution of the
United States

															"in that the sentence of death was based upon information
supplied by witnesses with whom the accused had not been confronted
and as to whom he had no opportunity for cross-examination or
rebuttal. . . ."

															298 N.Y. 803, 804, 83 N.E.2d 698. Because the statutes were
sustained over this constitutional challenge, the case is here on
appeal under 28 U.S.C. § 1257(2).

															The narrow contention here makes it unnecessary to set out the
facts at length. The record shows a carefully conducted trial
lasting more than two weeks, in which appellant was represented by
three appointed lawyers who conducted his defense with fidelity and
zeal. The evidence proved a wholly indefensible murder committed by
a person engaged in a burglary. The judge instructed the jury that,
if it returned a verdict of guilty as charged, without
recommendation for life sentence, "The Court must impose the death
penalty," but, if such recommendation was made, "the Court may
impose a life sentence." The judge went on to emphasize that "the
Court is not bound to accept your recommendation." Page 337 U. S. 244 About five weeks after the verdict of guilty with recommendation
of life imprisonment, and after a statutory pre-sentence
investigation report to the judge, the defendant was brought to
court to be sentenced. Asked what he had to say, appellant
protested his innocence. After each of his three lawyers had
appealed to the court to accept the jury's recommendation of a life
sentence, the judge gave reasons why he felt that the death
sentence should be imposed. He narrated the shocking details of the
crime as shown by the trial evidence, expressing his own complete
belief in appellant's guilt. He stated that the pre-sentence
investigation revealed many material facts concerning appellant's
background which, though relevant to the question of punishment,
could not properly have been brought to the attention of the jury
in its consideration of the question of guilt. He referred to the
experience appellant "had had on thirty other burglaries in and
about the same vicinity" where the murder had been committed. The
appellant had not been convicted of these burglaries, although the
judge had information that he had confessed to some and had been
identified as the perpetrator of some of the others. The judge also
referred to certain activities of appellant as shown by the
probation report that indicated appellant possessed "a morbid
sexuality," and classified him as a "menace to society." The
accuracy of the statements made by the judge as to appellant's
background and past practices were not challenged by appellant or
his counsel, nor was the judge asked to disregard any of them or to
afford appellant a chance to refute or discredit any of them by
cross-examination or otherwise.

															The case presents a serious and difficult question. The question
relates to the rules of evidence applicable to the manner in which
a judge may obtain information to guide him in the imposition of
sentence upon an already convicted defendant. Within limits fixed
by statutes, Page 337 U. S. 245 New York judges are given a broad discretion to decide the type
and extent of punishment for convicted defendants. Here, for
example, the judge's discretion was to sentence to life
imprisonment or death. To aid a judge in exercising this discretion
intelligently, the New York procedural policy encourages him to
consider information about the convicted person's past life,
health, habits, conduct, and mental and moral propensities. The
sentencing judge may consider such information even though obtained
outside the courtroom from persons whom a defendant has not been
permitted to confront or cross-examine. It is the consideration of
information obtained by a sentencing judge in this manner that is
the basis for appellant's broad constitutional challenge to the New
York statutory policy.

															Appellant urges that the New York statutory policy is in
irreconcilable conflict with the underlying philosophy of a second
procedural policy grounded in the due process of law clause of the
Fourteenth Amendment. That policy as stated in In Re
Oliver, 333 U. S. 257 , 333 U. S. 273 ,
is in part that no person shall be tried and convicted of an
offense unless he is given reasonable notice of the charges against
him and is afforded an opportunity to examine adverse witnesses.
[ Footnote 3 ] That the due
process clause does provide these salutary and time-tested
protections where the question for consideration is the guilt of a
defendant seems entirely clear from the genesis and historical
evolution of the clause. See, e.g., Chambers v. Florida, 309 U. S. 227 ,
236-237, and authorities cited in note 10 Page 337 U. S. 246 Tribunals passing on the guilt of a defendant always have been
hedged in by strict evidentiary procedural limitations. [ Footnote 4 ] But both before and since
the American colonies became a nation, courts in this country and
in England practiced a policy under which a sentencing judge could
exercise a wide discretion in the sources and types of evidence
used to assist him in determining the kind the extent of punishment
to be imposed within limits fixed by law. [ Footnote 5 ] Out-of-court affidavits have been used
frequently, and, of course, in the smaller communities, sentencing
judges naturally have in mind their knowledge of the personalities
and backgrounds of convicted offenders. [ Footnote 6 ] A recent manifestation of the historical
latitude allowed sentencing judges appears in Rule 32 of the
Federal Rules of Criminal Procedure. That rule provides for
consideration by federal judges of reports made by probation
officers containing information about a convicted defendant,
including such information "as may be helpful in imposing sentence
or in granting probation or in the correctional treatment of the
defendant. . . ." [ Footnote
7 ]

															In addition to the historical basis for different evidentiary
rules governing trial and sentencing procedures, there are sound
practical reasons for the distinction. In a trial before verdict,
the issue is whether a defendant is guilty of having engaged in
certain criminal conduct of which he has been specifically accused.
Rules of evidence Page 337 U. S. 247 have been fashioned for criminal trials which narrowly confine
the trial contest to evidence that is strictly relevant to the
particular offense charged. These rules rest in part on a necessity
to prevent a time-consuming and confusing trial of collateral
issues. They were also designed to prevent tribunals concerned
solely with the issue of guilt of a particular offense from being
influenced to convict for that offense by evidence that the
defendant had habitually engaged in other misconduct. A sentencing
judge, however, is not confined to the narrow issue of guilt. His
task, within fixed statutory or constitutional limits, is to
determine the type and extent of punishment after the issue of
guilt has been determined. Highly relevant -- if not essential --
to his selection of an appropriate sentence is the possession of
the fullest information possible concerning the defendant's life
and characteristics. [ Footnote
8 ] And modern concepts individualizing punishment have made it
all the more necessary that a sentencing judge not be denied an
opportunity to obtain pertinent information by a requirement of
rigid adherence to restrictive rules of evidence properly
applicable to the trial.

															Undoubtedly, the New York statutes emphasize a prevalent modern
philosophy of penology that the punishment should fit the offender,
and not merely the crime. People v. Johnson, 252 N.Y. 387,
392, 169 N.E. 619. The belief no longer prevails that every offense
in a like legal category calls for an identical punishment without
regard to the past life and habits of a particular offender. This
whole country has traveled far from the period in which the death
sentence was an automatic and commonplace result of convictions --
even for offenses today deemed Page 337 U. S. 248 trivial. [ Footnote 9 ]
Today's philosophy of individualizing sentences makes sharp
distinctions for example between first and repeated offenders.
[ Footnote 10 ] Indeterminate
sentences the ultimate termination of which are sometimes decided
by nonjudicial agencies have, to a large extent, taken the place of
the old rigidly fixed punishments. [ Footnote 11 ] The practice of probation which relies
heavily on nonjudicial implementation has been accepted as a wise
policy. [ Footnote 12 ]
Execution of the United States parole system rests on the
discretion of an administrative parole board. 36 Stat. 819, 18
U.S.C. §§ 714, 716, (now §§ 4202-4204). Retribution is no longer
the dominant objective of the criminal law. Reformation and
rehabilitation of offenders have become important goals of criminal
jurisprudence. [ Footnote
13 ]

															Modern changes in the treatment of offenders make it more
necessary now than a century ago for observance Page 337 U. S. 249 of the distinctions in the evidential procedure in the trial and
sentencing processes. For indeterminate sentences and probation
have resulted in an increase in the discretionary powers exercised
in fixing punishments. In general, these modern changes have not
resulted in making the lot of offenders harder. On the contrary, a
strong motivating force for the changes has been the belief that,
by careful study of the lives and personalities of convicted
offenders, many could be less severely punished and restored sooner
to complete freedom and useful citizenship . This belief, to a
large extent, has been justified.

															Under the practice of individualizing punishments, investigation
techniques have been given an important role. Probation workers
making reports of their investigations have not been trained to
prosecute, but to aid, offenders. Their reports have been given a
high value by conscientious judges who want to sentence persons on
the best available information, rather than on guesswork and
inadequate information. [ Footnote 14 ] To deprive sentencing Page 337 U. S. 250 judges of this kind of information would undermine modern
penological procedural policies that have been cautiously adopted
throughout the nation after careful consideration and
experimentation. We must recognize that most of the information now
relied upon by judges to guide them in the intelligent imposition
of sentences would be unavailable if information were restricted to
that given in open court by witnesses subject to cross-examination.
And the modern probation report draws on information concerning
every aspect of a defendant's life. [ Footnote 15 ] The type and extent of this information make
totally impractical, if not impossible, open court testimony with
cross-examination. Such a procedure could endlessly delay criminal
administration in a retrial of collateral issues.

															The considerations we have set out admonish us against treating
the due process clause as a uniform command that courts throughout
the Nation abandon their age-old Page 337 U. S. 251 practice of seeking information from out-of-court sources to
guide their judgment toward a more enlightened and just sentence.
New York criminal statutes set wide limits for maximum and minimum
sentences. [ Footnote 16 ]
Under New York statutes, a state judge cannot escape his grave
responsibility of fixing sentence. In determining whether a
defendant shall receive a one-year minimum or a twenty-year maximum
sentence, we do not think the Federal Constitution restricts the
view of the sentencing judge to the information received in open
court. The due process clause should not be treated as a device for
freezing the evidential procedure of sentencing in the mold of
trial procedure. So to treat the due process clause would hinder,
if not preclude, all courts -- state and federal -- from making
progressive efforts to improve the administration of criminal
justice.

															It is urged, however, that we should draw a constitutional
distinction as to the procedure for obtaining information where the
death sentence is imposed. We cannot accept the contention. Leaving
a sentencing judge free to avail himself of out-of-court
information in making such a fateful choice of sentences does
secure to him a broad discretionary power, one susceptible of
abuse. But, in considering whether a rigid constitutional barrier
should be created, it must be remembered that there is possibility
of abuse wherever a judge must choose between life imprisonment and
death. And it is conceded Page 337 U. S. 252 that no federal constitutional objection would have been
possible if the judge here had sentenced appellant to death because
appellant's trial manner impressed the judge that appellant was a
bad risk for society, or if the judge had sentenced him to death
giving no reason at all. We cannot say that the due process clause
renders a sentence void merely because a judge gets additional
out-of-court information to assist him in the exercise of this
awesome power of imposing the death sentence.

															Appellant was found guilty after a fairly conducted trial. His
sentence followed a hearing conducted by the judge. Upon the
judge's inquiry as to why sentence should not be imposed, the
defendant made statements. His counsel made extended arguments. The
case went to the highest court in the state, and that court had
power to reverse for abuse of discretion or legal error in the
imposition of the sentence. [ Footnote 17 ] That court affirmed. We hold that appellant
was not denied due process of law. [ Footnote 18 ] Affirmed. Mr. Justice RUTLEDGE dissents.

															[ Footnote 1 ]

															"The killing of a human being, unless it is excusable or
justifiable, is murder in the first degree, when committed:"

															" * * * *" "2. By an act imminently dangerous to others, and evincing a
depraved mind, regardless or human life, although without a
premeditated design to effect the death of any individual; or
without a design to effect death, by a person engaged in the
commission of, or in an attempt to commit a felony, either upon or
affecting the person killed or otherwise. . . ."

															New York Penal Law, Consol.Laws, c. 40, § 1044.

															[ Footnote 2 ]

															"Murder in the first degree is punishable by death, unless the
jury recommends life imprisonment as provided by section ten
hundred forty-five-a."

															New York Penal Law, § 1045.

															"A jury finding a person guilty of murder in the first degree,
as defined by subdivision two of section ten hundred forty-four,
may, as a part of its verdict, recommend that the defendant be
imprisoned for the term of his natural life. Upon such
recommendation, the court may sentence the defendant to
imprisonment for the term of his natural life."

															New York Penal Law, § 1045-a.

															[ Footnote 3 ]

															Other due process requirements mentioned in the Oliver case were that the defendant should be permitted to offer evidence
in his own behalf and be represented by counsel. Appellant,
however, was represented by counsel both when tried and sentenced,
and the sentencing judge did not decline to permit introduction of
any evidence. In response to the judge's inquiry, statements were
made by appellant and his counsel.

															[ Footnote 4 ]

															Courts have treated the rules of evidence applicable to the
trial procedure and the sentencing process differently. See,
e.g., Snyder v. Massachusetts, 291 U. S.
97 , 291 U. S. 107 , 291 U. S.
128 -129; Graham v. West Virginia, 224 U.
S. 616 , 619 [argument of counsel -- omitted]; United
States v. Dalhover, 96 F.2d 355, 359-360. But cf. State v.
Stevenson, 64 W.Va. 392, 62 S.E. 688.

															[ Footnote 5 ] See cases collected in 14 Am. & Eng.Ann.Cas. 968, et seq.; 77 A.L.R. 1211 et seq.; 86 A.L.R. 832 et seq. See also Note, The Admissibility of
Character Evidence in Determining Sentence, 9 U. of Chi.L.Rev. 715
(1942).

															[ Footnote 6 ] See Pound, Criminal Justice in America 178 (1930).

															[ Footnote 7 ] See Stephan v. United States, 133 F.2d 87, 100. See
also 18 U.S.C. § 3655.

															[ Footnote 8 ]

															Myerson, Views on Sentencing Criminals, 7 Law Soc.J. 854,
(1937); Glueck, Principles of a Rational Penal Code, 41 Harv.L.Rev.
453 (1928); Warner and Cabot, Administration of Criminal Justice,
50 Harv.L.Rev. 583, 607 (1937); Comment, Reform in Federal Penal
Procedure, 53 Yale L.J. 773 (1944).

															[ Footnote 9 ]

															2 Blackstone, Commentaries on the Laws of England 1756-1757
(Lewis' Ed. 1897).

															[ Footnote 10 ]

															With respect to this policy in the administration of the
Probation Act, this Court has said:

															"It is necessary to individualize each case, to give that
careful, humane, and comprehensive consideration to the particular
situation of each offender which would be possible only in the
exercise of a broad discretion." Burns v. United States, 287 U.
S. 216 , 287 U. S. 220 .
In Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S.
51 , 302 U. S. 55 ,
this Court further stated:

															"For the determination of sentences, justice generally requires
consideration of more than the particular acts by which the crime
was committed, and that there be taken into account the
circumstances of the offense, together with the character and
propensities of the offender." And see Wood and Waite, Crime and Its Treatment 438-442
(1941).

															[ Footnote 11 ]

															Wood and Waite, Crime and Its Treatment 437 (1941); Orfield,
Criminal Procedure from Arrest to Appeal 556-565 (1947). See,
e.g., Ill.Rev.Stat. c. 38, § 802 (1939); Cal.Pen.Code § 1168
(1941).

															[ Footnote 12 ]

															Glueck, Probation and Criminal Justice 232 (1933); National
Probation Assn., Directory of Probation and Parole Officers 275
(1947); Cooley, Probation and Delinquency (1927).

															[ Footnote 13 ]

															Judge Ulman, writing on The Trial Judge's Dilemma, discusses the
problems that confront the sentencing judge, and quotes from one of
his court opinions as to the factors that a judge should consider
in imposing sentence:

															"1st. The protection of society against wrongdoers."

															"2nd. The punishment -- or, much better -- the discipline of the
wrongdoer."

															"3rd. The reformation and rehabilitation of the wrongdoer."

															"4th. The deterrence of others from the commission of like
offenses."

															"It should be obvious that a proper dealing with these factors
involves a study of each case upon an individual basis. Was the
crime a crime against property only, or did it involve danger to
human life? Was it a crime of sudden passion, or was it studied and
deliberate? Is the criminal a man so constituted and so habituated
to war upon society that there is little or no real hope that he
ever can be anything other than a menace to society -- or is he
obviously amenable to reformation?"

															Glueck, Probation and Criminal Justice 113 (1933). See also 12 Encyc. of Soc.Science, Penal Institutions
57-64 (1934).

															[ Footnote 14 ]

															The late Federal Judge Lewis B. Schwellenbach, in his article on
the difficulties that confront a sentencing judge, wrote:

															"The knowledge of the life of a man, his background and his
family, is the only proper basis for the determination as to his
treatment. There is no substitute for information. The sentencing
judge in the Federal court has the tools with which to acquire that
information. Failure to make full use of those tools cannot be
justified."

															Schwellenbach, Information vs. Intuition in the Imposition of
Sentence, 27 J.Am.Jud.Soc. 52 (1943). And see McGuire and
Holtzoff, The Problem of Sentence in the Criminal Law, 20
B.U.L.Rev. 423 (1940).

															[ Footnote 15 ]

															A publication circulated by the Administrative Office of the
United States Courts contains a suggested form for all United
States probation reports, and serves as an example of the type of
information contained in the reports. This form consists of
thirteen "marginal headings." (1) Offense; (2) Prior Record; (3)
Family History; (4) Home and Neighborhood; (5) Education; (6)
Religion; (7) Interests and Activities; (8) Health (physical and
mental); (9) Employment; (10) Resources; (11) Summary; (12) Plan;
and (13) Agencies Interested. Each of the headings is further
broken down into subheadings. The form represents a framework into
which information can be inserted to give the sentencing judge a
composite picture of the defendant. Administrative Office of the
United States Courts, The Presentence Investigation Report, Pub.
No. 101 (1943).

															[ Footnote 16 ]

															A few New York criminal statutes will illustrate the broad
statutory limits within which the sentencing judge must fix a
defendant's penalty. Robbery in the first degree is punishable by
imprisonment for not "less than ten years" nor "more than thirty
years." New York Penal Law, § 2125. Rape in the first degree is
"punishable by imprisonment for not more than twenty years." New
York Penal Law, § 2010. Burglary in the first degree is punishable
by imprisonment from ten to thirty years, burglary in the second
degree "for a term not exceeding fifteen years." New York Penal
Law, § 407.

															[ Footnote 17 ] People v. Stein, 96 Misc. 507, 161 N.Y.S. 1107; People ex rel. Barone v. Fox, 202 N.Y. 616, 96 N.E. 1126; People v. Johnson, 252 N.Y. 387, 393, 169 N.E. 619. And see Commonwealth v. Johnson, 348 Pa. 349, 35 A.2d 312.
As to English procedure see 28 Crim.App.R. 89, 90-91. Also see Note, Right of Criminal Offenders to Challenge
Reports Used in Determining Sentence, 49 Col.L.Rev. 567 (1949).

															[ Footnote 18 ]

															What we have said is not to be accepted as a holding that the
sentencing procedure is immune from scrutiny under the due process
clause. See Townsend v. Burke, 334 U.
S. 736 .

															MR. JUSTICE MURPHY, dissenting.

															A combination of factors in this case impels me to dissent.

															Petitioner was convicted of murder by a jury, and sentenced to
death by the judge. The jury which heard the Page 337 U. S. 253 trial unanimously recommended life imprisonment as a suitable
punishment for the defendant. They had observed him throughout the
trial, had heard all the evidence adduced against him, and, in
spite of the shocking character of the crime of which they found
him guilty, were unwilling to decree that his life should be taken.
In our criminal courts, the jury sits as the representative of the
community; its voice is that of the society against which the crime
was committed. A judge, even though vested with statutory authority
to do so, should hesitate indeed to increase the severity of such a
community expression.

															He should be willing to increase it, moreover, only with the
most scrupulous regard for the rights of the defendant. The record
before us indicates that the judge exercised his discretion to
deprive a man of his life in reliance on material made available to
him in a probation report consisting almost entirely of evidence
that would have been inadmissible at the trial. Some, such as
allegations of prior crimes, was irrelevant. Much was incompetent
as hearsay. All was damaging, and none was subject to scrutiny by
the defendant.

															Due process of law includes at least the idea that a person
accused of crime shall be accorded a fair hearing through all the
stages of the proceedings against him. I agree with the Court as to
the value and humaneness of liberal use of probation reports as
developed by modern penologists, but, in a capital case, against
the unanimous recommendation of a jury, where the report would
concededly not have been admissible at the trial, and was not
subject to examination by the defendant, I am forced to conclude
that the high commands of due process were not obeyed.