(concurring).
One cannot help voicing a very hesitant reluctance to enlarge upon the excellent opinion of Judge Blackmun. My concurrence in the analysis and substance of the Court’s viewpoint reflected therein is with full and firm conviction. However, I feel compelled to comment briefly upon an issue that has troubled me. This concerns the denial to the defendant herein, to exercise the right of allocution under Rule 32(a) of the Fed.R.Crim.P., which reads in part:
“ * * * Before imposing sentence-the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address, the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.”
As Judge Blackmun has so perceptively analyzed, this rule has resulted in conflicting viewpoints on the two stage trial.1 Rule 32(a) allows the court an opportunity to review all facts and circumstances “without strict evidential procedural limitations” to consider “any information in mitigation of punishment.”
Mr. Justice Black, in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, illustrates the inadequacy of allocution in the unitary trial, when he says:
“ * * * Rules of evidence 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 éngaged 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.” 337 U.S. at 246-247, 69 S.Ct. at 1083.
Historically and traditionally the right to sentence a convicted criminal under common law was in the power of the trial judge. Thus, at common law “no judgment for corporal punishment could be pronounced against a man in his absence, and in all capital felonies it was essential that it should appear of record that the defendant was asked before sentence if he had anything to say why it should not be pronounced.” Ball v. United States, 140 U.S. 118, at 129, 11 S.Ct. 761, at 765, *74035 L.Ed. 377. See also Schwab v. Berg-gren, 143 U.S. 442, at 447, 12 S.Ct. 525, 36 L.Ed. 218. However, the First Congress of the United States provided:
“That if any person or persons shall within any fort, arsenal, dockyard, magazine or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons on being thereof convicted shall suffer death.”
1 Stat. 113. Under this statute the trial judge was given no discretion in sentencing the defendant.2
The law of the First Congress was amended in 1897, adding the qualification that the verdict of jury can be “without capital punishment.” The amendment to the original statute 100 years later becomes significant as a contemporaneous and desired recognition of a civilized society’s concern to improve their criminal laws and punishment.3
The treatment of the 1897 amendment in Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456, demonstrates that the jury has unlimited discretion to grant life imprisonment even without mitigating circumstances being shown. It would thus appear, the past history of capital punishment in federal crimes indicates that the common law rule of allocution now incorporated in Rule 32(a) has no application whatsoever in a federal jury’s determination of the death sentence. Accordingly, the denial of al-locution in this case, in my humble opinion, is an outgrowth from the historical background of the legislation concerning punishment for willful murder. It is also an anachronistic reach-back to the Dark Ages.4
This incongruity has similar roots to other related histories of our criminal law. Originally, in England, a person charged with treason or a felony was denied the aid of counsel, whereas persons accused of misdemeanors were entitled to the full assistance of counsel. As early as 1758, Blackstone commented: “For upon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass ?” 4 Blackstone 355. See Powell v. State of Alabama, 287 U.S. 45, at 60, 53 S.Ct. 55, 77 L.Ed. 158.
Blackstone’s concern of 200 years ago appropriately questions the denial of al-locution in capital cases in our federal criminal law today. It is “a perversion of all sense of proportion” that this in*741equality should go unobserved without discordant voices being sounded. The weighted degree of proof or persuasion required under criminal insanity laws (and the judicial uncertainty of it all5) as to guilt or innocence cannot, in my opinion, present the same balancing factors as in determination of whether the •defendant’s punishment should be life or death. It is my fervent hope that the newly appointed National Commission to study our federal criminal procedures and laws will review this obvious omission and appropriate legislation will provide the remedy.
I suggest without reservation that this might be an appropriate case for consideration by the Executive of the exercise of clemency power to the extent of reducing the death sentences on the last three counts to life imprisonment. See Biddle v. Perovich, 274 U.S. 480, 487, 47 S.Ct. 664, 71 L.Ed. 1161. The ends of-criminal justice would be served by a life sentence for Duane Pope. I fully recognize that clemency is not within the power of the judiciary, yet the overall circumstance of this case and need of humaneness in laws of criminal procedure require me to speak.
. See Spencer v. State of Texas, 385 U.S. -, 87 S.Ct. 648,17 L.Ed.2d-(1967).
. Allocution under this statute (carrying a mandatory death sentence) was restricted. It was only allowed so “that the defendant might be identified by the court as the real party adjudged guilty; that he might have a chance to plead a pardon, or move in arrest of judgment; that he might have an opportunity to say why judgment should not be given against him; and that the example of being brought up for the animadversion of the court and the open denunciation of punishment might tend to deter others from the commission of similar offences.” Ball v. United States, 140 U.S. at 131, 11 S.Ct. at 766. Whereas Rule 32(a) is more meaningful in that it recognizes the right to “present any information in mitigation of punishment.”
. For an analysis of the amendment, see Mr. Justice Reed’s summary in Andres v. United States, 333 U.S. 740 at 747, n. 11, 68 S.Ct. 880 at 883, 92 L.Ed. 1055.
. “Justice Benjamin N. Oardozo, our paragon of moral ideals on the bench, said, a generation ago:
“ ‘I have faith * * * that a century or less from now, our descendants will look back upon the penal system of today with the same surprise and horror that fill our own minds when we are told that only about a century ago 160 crimes were visited under English law with the punishment of death, and that in 1801 a child of 13 was hanged at Tyburn for the larceny of a spoon. Dark chapters are these in the history of law. We think of them with a shudder, and say to ourselves that we have risen to heights of mercy and of reason far removed from such enormities. The future may judge us less leniently than we choose to judge ourselves.’ ” Calm, Confronting Injustice, at p. 308 (Little, Brown & Co. 1966).
. See the rules in the various circuits, Appendix, supra. See also: Overholser, Criminal Responsibility: A Psychiatrist’s Viewpoint, 48 A.B.A.J. 527; Weintraub, Criminal Responsibility: Psychiatry Alone Cannot Determine It, 49 A.B. A.J. 1075; Bernstein, Criminal Responsibility: The Bar Must Lead In Law Reform, 50 A.B.A.J. 341; Diamond, Prom M’Naghten To Currens, And Beyond, 50 Cal.L.Rev. 189; Kuh, Insanity Defense — An Effort To Combine Law And Reason, 1102 Pa.L.Rev. 771; Ronee, McNaughten, Durham And Psychiatry, 34 P.R.D. 93; Mueller, M’Naghten Remains Irreplaceable: Recent Events In The Law Of Incapacity, 50 Geo.L.J. 105; Pingarett, Concept of Mental Disease In Criminal Law Insanity Tests, 332 ChiX.Rev. 229; Halleck, Critique Of Current Psychiatric Roles In The Legal Process, 1966 Wis. L.Rev. 379; Lawrence, Sanity: The Psychiatric — Legal Communicative Gap, 27 Ohio S.L.J. 219; Campbell, Strict Accountability Approach To Criminal Responsibility, 29 Ped.Prob. 33; Insanity As A Defense: A Panel Discussion (Lumbard, Hays, Weintraub, Biggs, Wechster, Kolb), 37 F.R.D. 365; Moore, M’Naughten is Dead — Or Is It?, 3 Houston L.Rev. 58; Raab, Moralist Looks At The Durham And M’Naghten Rules, 46 MinnX. Rev. 327; Ehrenzweig, Psychoanalysis Of The Insanity Plea — Clues To The Problems Of Criminal Responsibility And Insanity In The Death Cell, 73 Yale L.J. 425; Bazelon, Concept Of Responsibility, 53 Geo. L.J. 5; Palk, Sociological Approach To The “Right-Wrong” Test In Criminal Procedure, 7 Crim.L.Q. 331; Platt & Diamond, Origins Of The “Right-Wrong” Test Of Criminal Responsibility And Its Subsequent Development In The United States: An Historical Survey, 54 CalX.Rev. 1227; Krash, Durham Rule and Judicial Administration Of The Insanity Defense In the District of Columbia, 70 Yale L.J. 905; Cohen, M’Naghten v. Durham: A Discussion Of the Legal Test Of Insanity As Adopted By The Federal Courts, 3 J.A.G. Bull. 36; Board, Operational Criteria Por Determining Criminal Responsibility, 61 Col.L.Rev. 221; Gibbens, Sane And Insane Homicide, 49 J.Crim.L. 110; Goldstein & Katz, Abolish The “Insanity Defense” — Why Not? 72 Yale 853; Remington & Hel-stad, Mental Element In Crime — A Legislative Problem, 1952 Wis.L.Rev. 644; Cavanagh, Psychiatrist Looks At The Durham Decision, 5 Cath,UX.Rev. 25; Walton & Doherty, Psychopath And The MeNaghten Rules, 1954 Crim.L.Rev 22; Morris, “Wrong” In The M’Naughten Rules, 16 Mod.L.Rev. 435; Douglas, Durham Rule: A Meeting Ground Por Lawyers And Psychiatrists, 41 la.L.Rev. 485; Sobeloff, Insanity And The Criminal Law: Prom MeNaghten To Durham, And Beyond, 41 A.B.A.J. 793; Bennett, Insanity Defense — A Perplexing Problem Of Criminal Justice, 16 La.L.Rev. 484; Gotlieb, Intention, And Knowing The Nature And Quality Of An Act, 19 Mod.L.Rev. 270; Hall, Mental Disease And Criminal Responsibility — M’Naghten Versus Durham And The American Law Institutes Tentative Draft, 33 Ind.L.J. 212; Hall, Psychiatry And Criminal Responsibility, 65 Yale L.J. 761; Hall, Responsibility And Law: In Defense Of The MeNaghten Rules, 42 A.B.A.J. 917; Snyder, Who Is Wrong About The M’Naghten Rule And Who Cares?, 23 Brooklyn L.Rev. 1; Cohen, Criminal Responsibility And The Knowledge Of Right And Wrong, 142 Miami L.Rev. 30.