241 Opinion of the Court. dence 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. 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, 621. 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 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). Opinion of the Court. 337 U.S. trivial. Today's philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders.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." The practice of probation which relies heavily on non-judicial implementation has been accepted as a wise policy."2 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, 4203. Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.' 13 Modern changes in the treatment of offenders make it more necessary now than a century ago for observance 92 Blackstone, Commentaries on the Laws of England (Lewis' ed. 1897) 1756-1757. 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, 220. In Pennsylvania v. Ashe, 302 U. S. 51, 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). 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 (Deering, 1941) § 1168. 12 Glueck, Probation and Criminal Justice 232 (1933); National Probation Assn., Directory of Probation and Parole Officers 275 (1947); Cooley, Probation and Delinquency (1927). 13 Judge Ulman writing on The Trial Judge's Dilemma discusses the problems that confront the sentencing judge and quotes from 241 Opinion of the Court. 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, investigational 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." To deprive sentenc one of his court opinions as to the factors that a judge should consider in imposing sentence: "1st. The protection of society against wrong-doers. "2nd. The punishment-or much better-the discipline of the wrong-doer. "3rd. The reformation and rehabilitation of the wrong-doer. "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). 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 Opinion of the Court. 337 U.S. ing 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 crossexamination. And the modern probation report draws on information concerning every aspect of a defendant's life.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 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). 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) Employinent; (10) Resources; (11) Summary; (12) Plan; and (13) Agencies Interested. Each of the headings is further broken down into sub-headings. 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). 241 Opinion of the Court. 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.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 twentyyear 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 con 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. |