Walton v. Arizona

WALTON v. ARIZONA Argued January No. 88-7351. 1 990 Decided June1990 J., opin- delivered the White, judgment of the Court and announced Rehnquist, I, II, V, in which respect to Parts and with ion of the Court Kennedy, JJ., 0’ConnOR, Scalia, joined, opinion an J., and and C. and Rehnquist, J., IV, C. and O’Con- III and in which respect with to Parts Scalia, J., Kennedy, JJ., opinion concurring in nor, joined. filed an and BRENNAN,J., p. 656. filed a part concurring judgment, post, in the and Marshall, J., joined, post, p. 674. Black- in which dissenting opinion, Marshall, Brennan, mun, opinion, and J., dissenting in which a filed J., Stevens, dissenting opin- Stevens, JJ., p. filed a joined, post, 677. ion, post, p. 708. petitioner. argued

Timothy With Ford the cause for K. Young. I. was Denise him on the briefs Attorney Ari- General of McMurdie, Assistant

Paul J. respondent. argued With him on the the cause for zona, Attorney Corbin, General, K. and were Robert Jessica brief * Funkhouser. Gifford judgment announced and White Justice opinion respect of the Court with to Parts I, II, delivered opinion respect with III and V, IV, and to Parts which and Jus- Justice, O’Connor, Chief Justice joined. Kennedy tice validity case is the

At issue of the death sentence imposed by jury peti- trial an Arizona court after a found Jeffrey guilty committing first-degree Walton tioner murder. provide person

The Arizona statutes commits first- degree “[ijntending knowing murder if or that his conduct person death, will such cause causes the death of another premeditation” committing if in with specified the course of certain any

offenses and without state other mental than required what is for the commission of such offenses, he any person. causes the death of Ariz. Rev. Stat. Ann. Poivell, Laurence, White, *John A. Michael Randy Welsh S. Hertz filed brief for the American Civil Liberties Union et al. as amici curiae urging reversal. A urging brief of amici curiae affirmance was filed for the Common- Jr., Pennsylvania Preate, Attorney wealth of et al. Ernest D. General of Grad, Pennsylvania, General, A. Attorney Robert Chief Deputy Mary Seiverling, Deputy Attorney General, Kelly, J. John Chief

Benefield Connecticut, Buttenvorth, Attorney State’s of Attorney Robert General of Florida, Jones, Attorney Idaho, T. James F. Hartigan, General of Neil Illinois, Attorney Stephan, Attorney General of Robert T. General of Kan- sas, Cowan, Attorney Kentucky, Moore, Frederic J. General of Michael C. Attorney Mississippi, Webster, General of Attorney William L. General of Missouri, Racicot, Attorney Montana, Marc McKay, Brian General of At- Nevada, torney Arnold, Attorney General of John P. General of New Stratton, Hampshire, Mexico, Attorney Hal Lacy General New of H. Attorney Thornburg, Carolina, Celebrezze, of Anthony General North J. Jr., Attorney Ohio, Attorney of Henry, General Robert H. General of Oklahoma, Roger Tellinghuisen, A. Attorney Dakota, General of South Eikenberry, Attorney Kenneth 0. Washington, Joseph General of B. Meyer, Attorney Wyoming. General of § 13-1105 After a has person been found of guilty first-degree murder, the sentence such is crime deter- 13-703(B). mined in § accordance with the of It provisions is there directed that a . . . “separate shall sentencing hearing be alone” conducted before the court to determine whether the sentence shall be death or life In the imprisonment. course of such is hearing, judge to determine instructed or of any existence nonexistence of the or aggravating (F) (G) mitigating circumstances defined subsections of (F) §13-703. Subsection defines 10 circum- aggravating stances that be One may considered. of them is whether the offense was committed with the of expectation receiving 13-703(F)(5). § value. anything pecuniary Another is whether the defendant committed the in an offense especially 13-703(F)(6). heinous, § or manner. cruel, depraved Sub- (G) section defines mitigating any circumstances as factors “which are relevant in determining whether a sen- impose to tence less death, any than including aspect of the defendant’s character, or record and the circum- propensities any stances offense, but including not to” five speci- limited fied factors.1 The burden of the existence of establishing any circumstances is on the prosecution, while the burden of establishing circumstances

1Those are as factors follows: “1. capacity appreciate defendant’s of his wrongfulness con- requirements duct or to significantly conform his conduct to the of law was impaired, impaired but not so prosecution. as to constitute a defense duress, “2. The although defendant was under unusual substantial prosecution. not such as to constitute a defense to “3. legally The defendant was accountable for of another the conduct provisions 13-303, minor, § relatively under the participation but his was although not so minor as to prosecution. constitute defense to reasonably

“4. The defendant could have conduct in foreseen that his the course of the commission of the offense for defendant was which the cause, convicted a grave causing, would would create risk person. another 703(G)(1989). age.” “5. The § defendant’s Ariz. Rev. Stat. Ann. 13— 13-703(C). The court is directed to re- § defendant. on its as to findings aggravat- verdict forth setting a special turn then a and “shall impose circumstances and ing finds one more of the ag- if the court of death sentence (F) in subsection of this circumstances enumerated gravating circumstances suffi- no mitigating and that there are section 13-703(E). § leniency.” substantial to call ciently I codefendants, Hoo- his two Robert Walton and Petitioner Arizona, in Tucson, to a bar went Ramsey, and Sharold ver find and rob some- intending of March night on him in car, him and leave random, up, steal his tie one in the car. bar’s they while fled the State desert Powell, Thomas lot, young, the trio encountered parking Powell at Marine. The three robbed off-duty gunpoint then into the him his car drove out they into which forced Tucson, the Powell While three asked out driving desert. whether more any about where lived and he had he questions Ramsey When the car told a frightened money. stopped, Walton and then that he would not be hurt. Hoover Powell him had lie face down on the Powell out of the car and forced what with him. near the car while debated to do they ground Walton Hoover and to sit Eventually, Ramsey instructed Walton then took a .22 the car and turn the radio loud. up Powell off into the desert. and marched derringer caliber distance, Walton forced Powell to lie walking After short neck, his foot on Powell’s ground, down on placed later Powell once the head. Walton told Hoover shot that he had and that he had “never seen Ramsey shot Powell was found body ap- a man his before.” Powell’s pee pants was and led later, a week after Walton arrested proximately to the murder A medical examiner determined site. police had been and rendered unconscious that Powell blinded Instead, killed. re- shot but was not Powell immediately in the consciousness, floundered about gained apparently ultimately dehydration, starvation, and from desert, and died day body approximately pneumonia was found. a before his first-degree being jury murder after convicted Walton of A felony premeditated given murder. instructions on both judge § The trial Ann. 13-1105 Ariz. Rev. Stat. See sentencing hearing required separate conducted the then §13-703(B). argued aggravating by that two The State (1) present: The murder was committed were circumstances § depraved especially 13- heinous, manner,” cruel or “in an pecuniary 703(F)(6), committed for the murder was 13-703(F)(5). mitigation presented § testi- gain. Walton long opined psychiatrist mony a that Walton had from a who judgment, impaired history his see of substance abuse which 13-703(G)(1), may § have sexu- been abused and that Walton argued age, ally also Walton’s a child. Walton’s counsel as mitigating sentencing, as circumstance. at the time 13-703(G)(5). hearing, § of the At the conclusion See “beyond any the one doubt” that Walton was found court trial ag- two found that the The court also shot Powell. who present. pressed State were gravating circumstances age his Walton’s it considered stated that had The court wrongfulness appreciate conduct, as capacity of his urged by mitigating defendant’s factors as all well were “no that that there The court then concluded counsel. sufficiently to call substantial circumstances §13-703. leniency.” App. The court sentenced 61. See death. Walton Walton’s conviction affirmed Arizona (1989). Relying 2d 1017 Ariz. 769P. 571,

and sentence. specific rejected prior chal- various decisions, the court itson constitutionality lenges to the proceeded pressed here, and then

statute, some which are independent Walton’s sentence review of its to conduct proven were be- factors to “ensure order mitigation appropriate was yond all doubt and reasonable Id,., 586, 2d, 769 P. at considered.” at 1032.2 The court or began by “especially heinous, cruel de- examining circumstance found praved” aggravating judge. trial the. it previously

The court out that had pointed determined that a murder is committed cruel especially manner when “the mental inflicts abuse be- perpetrator anguish physical id., (cita- death,” fore the victim’s 769 P. 2d, at “[mjental omitted), tions and that a victim’s anguish includes Ibid. as to his ultimate fate.” In uncertainty case, this court concluded that there was evidence that Powell ample suffered mental to prior his death.3 The Arizona anguish Supreme also found the Court evidence sufficient to conclude that the crime was committed man- especially depraved ner, out had a pointing that it defined murder depraved as one where “the murder, relishes the perpetrator evidencing Id., 587, debasement or perversion.” at 769 P. at 1033.4 2d, 2 rejected opinion, challenge, the course of its the court also Walton’s Court, repeated not actually Hoover and shot that not Walton Pow pointed ell. jury The court because the on out that was instructed both felony only verdict, premeditated general but murder entered trial required court was to independently under law make the Florida, (1982), determination mandated Enmund v. 458 U. S. 782 Arizona, (1987), killed, kill, Tison v. 481 that U. S. 137 Walton to intended kill, attempted felony participant recklessly as a was indifferent Ariz., 2d, killing 585, to the of Powell. at P. 159 769 at 1031. court then held that trial Enmund court’s determination on sub was based Ariz., 586, 2d, stantial evidence. 159 at 769 P. at 1032. 3 argued The court being that Powell must was have realized as he driven harmed, out of Tucson might into desert that he be and the pointed court out obviously frightened that Powell was that Ram enough sey Then, tried to reassure him he would that not be harmed. court noted, Walton and ground they Hoover forced Powell lie on the while argued fate, eventually over his Walton marched into Powell off desert gun surely with a but rope, making no he was Powell realize that going up to be tied and left unharmed. The court further observed frightened Id., 586-587, Powell was so he urinated on himself. 769 at 2d, P. at 1032-1033. “ The court having concluded that Walton’s seen a reference ‘never ” pee pants man in his before’ constituted fascination evidence “callous pecuniary gain

Additionally, circum- that the the court found present. 588, 2d, 769 P. at 1034. After at Id., was stance examining regarding mitigating evidence his sub-

Walton’s youth, that there the court concluded and his stance abuse le- sufficient to call for circumstances “no were Finally, 2d, P. at 1035. the court Id., at nience.” proportionality review and determined its conducted “proportional im- to sentences was death sentence Walton’s posed Id., 2d, 769 P. at 1036. in similar cases.” Appeals Ninth for the

Because the United States un- death statute to be held the Arizona has Circuit in this submitted Walton for the reasons constitutional (en Ricketts, F. 2d Adamson v. case, see banc), granted to resolve certiorari, 493 U. S. we gener- importance that are issues conflictand to settle penalty. ally af- We now in the administration judgment Court. of the Arizona firm the h-4 1—1 every finding argument of fact under- is that Walton’s first by jury, sentencing lying made a not must be decision the judge, would be constitutional that the Arizona scheme a and mitigating aggravating only jury cir- decides what if a judge given present case and the trial in a are cumstances Contrary findings. imposes to on those sentence based then “Any argument that the Con- assertion, however: Walton’s impose requires jury the sentence of death or a stitution imposition findings prerequisite of a sen- to such the make by prior soundly rejected decisions of has been tence (1990). Mississippi, 745 494 U. S. v. Court.” Clemons challenges repeatedly rejected constitutional have We provides sentencing scheme, for sen- which death Florida’s Florida, jury. tencing by judge, 490 Hildwin v. the the not suffering the the of “an indifference to with the murder” and demonstrated Id., 587, 769 killing." “in at pleasure” taken the ... a of victim and sense 2d, P. at 1033. 648 curiam); Spaziano (per Florida, v.

S.U. (1984); Florida, 428 U. S. S. U. Proffitt presents “[t]his example, we case Hildwin, stated question again the Amend- whether Sixth with the once us specify aggravating requires jury factors that the a ment capital punishment imposition in Florida,” 490 permit the of ultimately concluded “the Sixth and we S.,U. specific findings require au- that the not Amendment does thorizing imposition of death made of the sentence be the jury.” Id., at 640-641. the attempts to draw the

The distinctions Walton between statutory persuasive. are schemes not Florida Arizona jury sentence, a but true that in recommends It is Florida findings specific regard with to the it does not make factual aggravating and its or circumstances existence judge. binding A on the trial Florida recommendation is not jury’s findings of a trial court no more has assistance judge sentencing respect than does fact with issues a trial in Arizona. suggests aggravating that in factors

Walton also Florida they only sentencing while are “considerations” But as we in Poland are “elements of the offense.” observed capital punish- Arizona, an Arizona S.U. separate pen- “Aggravating are ment case: circumstances guide making offenses, but are ‘standards to alties [the] choice’ verdicts death and between alternative imprisonment. capital sentencing Thus, life Arizona’s under finding any particular judge’s aggravating cir- scheme, (i. e., itself re- cumstance does not of ‘convict’ defendant quire penalty), any particular failure to find (i. ‘acquit’ e., circumstance does not defendant omitted). (citation preclude penalty).” Id., the at 156 holding Bidlock, v. Our U. S. 376 Cabana provides support conclusion. held further for our Cabana appellate constitutionally the court could make (1982), finding the Florida, Enmund 458 U. S. 782 —that attempted kill, to kill—in killed, defendant intended to the “Enmund, first instance. We noted that ‘doesnot affect the any capital offense, state’s substantive even a definition of- (citations omitted), fense,”’ S., 474 U. at 385 and that “while Eighth prohibits the Amendment execution of such de- supply fendants, it does not a new element of the crime of capital jury.” Id., be murder must found only places n. 3. Enmund “a substantive limitation on sen- tencing, and like other such limits it need not be enforced jury.” If S., at 386. U. Constitution does not require finding proved that the Enmund be as an element of require jury murder, and the offense of does not a finding, make that we cannot a conclude that State is re- quired to denominate circumstances “elements” only jury permit of the offense or to determine the exist- ence of circumstances. such capital sentencing

We thus the Arizona conclude scheme does not violate the Sixth Amendment.

Ill unpersuasive Also is Walton’s contention that the Arizona Eighth statute violates Fourteenth Amendments be- imposes establishing, by it cause on defendants the burden of preponderance mitigating evidence, existence sufficiently leniency. call circumstances substantial 13-703(E) 13-703(0 §§ Ariz. Ann. See Rev. Stat.

It is true that the has refused to countenance state- imposed mitigating may restrictions on what circumstances deciding impose pen- whether be considered the death alty. g., See, Ohio, e. Lockett 438 U. S.

(plurality complaining opinion). But Walton is not that the any practice Arizona statute or excludes from consideration particular type mitigating evidence; and it does not follow progeny precluded from Lockett and its that a State is from proved. specifying circumstances are to be how opinion expressly itself, Indeed, in on Lockett we reserved 650 require the to defendants to violates Constitution “it

whether mitigat- nonpersuasion as the existence of of to the risk bear capital Id., n. 16 ing cases.” circumstances opinion). (plurality (1987), upheld Ohio, we the Martin v. 480 U. S. 228 capital imposing practice defendant the burden of of on a

Ohio that, by preponderance proving the evidence she was act- a allegedly ing committed the when she murder. in self-defense (1952), Oregon, upheld, the v. U. S. In Leland insanity requirement capital case, that the defense a in a by beyond proved defendant, the see a reasonable doubt be (1976), Delaware, v. and in Patter- Rivera 429 U. S. also (1977), rejected argu- York, we New 432 U. v. S. son by process imposing prepon- a violated due a ment that State prove standard a defendant to evidence on derance defense of extreme emotional disturbance. affirmative principle of these cases controls result The basic long allocating as a method of the burdens So State’s case. every prove proof not lessen the burden to ele- does State’s charged, prove the offense this case to the exist- ment of aggravating circumstances, a defendant’s constitu- ence of by placing rights are on him the not violated burden of tional proving mitigating sufficiently substantial to circumstances leniency. (1975), Mullaney Wilbur, 421 U. S. 684 call contrary. Mullaney proc- to down on struck due grounds required a state a statute convicted murder ess negate an to element of the offense murder defendant voluntary manslaugh- a to entitled to sentence for order be placed No burden is on such defendants Arizona’s ter. sentencing adopt scheme. We therefore decline to imperative require constitutional a rule that would as a circumstances claimed consider court preponderance negated by a unless the State them defendant evidence. Maryland, Neither does Mills 486 U. S. lend position. support Walton’s There this Court reversed jury it concluded that the death sentence because instruc- likely given sentencing phase jury tions at the led the be- any particular mitigating lieve that circumstance could not be unanimously jurors agreed the considered unless that such present. circumstance The Court’s was focus was on jurors whether reasonable would have read the instructions require unanimity possible consequences and, so, if the understanding. judge course, Here, the such an alone is point. sentencer, and Mills beside the the is therefore suggest Furthermore, Mills that it did not would be for- require juror, weighing bidden to each individual before a mitigating balance, in the claimed circumstance to be con- mitigating vinced in his or her own that the mind circum- proved by preponderance stance has been a of the evidence. contrary, jury in that case was it To instructed that any mitigating had to find circumstances had been preponderance proved Id., a the evidence. at 387. petitioner opinion in Neither the in Mills nor the Court its any objection hinted that there was constitutional to that as- pect of the instructions. reject argument

We therefore Walton’s Arizona’s allo- proof capital sentencing proceed- cation of the burdens of a ing violates the Constitution.

IV 703(E) § provides Walton insists that because that the 13— impose penalty ag- if court “shall” the death one or more gravating circum- circumstances are found leniency, stances are held to call for insufficient statute presumption creates an unconstitutional that death is the proper Blystone sentence. recent decisions v. Penn- Our (1990), sylvania, Boyde v. 494 U. California, S. (1990), Blystone this submission. re-

U. S. foreclose jected challenge jury Pennsylva- to a instruction based on requiring imposition if nia statute death to exist but no miti- circumstances were found present. pointed gating were We out that circumstances requirement sentencing “[t]he of individualized allowing jury to consider all relevant is satisfied cases (footnote omitted), mitigating evidence,” 494 S.,U. at 307 Pennsylvania did not that because the statute and concluded any type mitigat- considering preclude from the sentencer principle. ing id., 308, it with that evidence, was consonant that the was not addition, concluded statute ‘mandatory’ “impermissibly as that term was understood” (1976), Carolina, 428 U. S. 280 and Rob- Woodson North Louisiana, 428 U. S. 325 because it did not erts automatically upon types impose conviction certain S., at The same is the Ari- of murder. 494 U. 305. true of zona statute.

Similarly, upheld Boyde supra, pattern California, v. a you jury “[i]f which stated that conclude that the instruction aggravating outweigh mitigating circum- circumstances you impose stances, a shall sentence death.” See 494 omitted). (emphasis specifically at S.,U. 374 The Court requirement . . . un- noted “there is no constitutional jury, sentencing fettered discretion in the and States are free shape to structure and consideration of evidence equitable ‘inan a more effort to achieve rational and adminis- penalty.’” (quoting Id., tration of the at 377 Franklin Lynaugh, (plurality opinion)). v. 487 U. S. persuasive arguments Walton’s in this are no more than case Blystone Boyde. made and those

V especially heinous, Walton’s final contention is that the aggravating interpreted depraved cruel, or circumstance as by the fails to channel the sentencer’s discre- Arizona courts required by Eighth tion as and Fourteenth Amendments. pass fails con- Walton contends that Arizona factor stitutional for the this found muster same reasons “especially ag- heinous, atrocious, or Oklahoma’s cruel” gravating Maynard circumstance to be invalid v. Cart- wright, Georgia’s “outrageously 486 U. S. 356 and wantonly vile, horrible or inhuman” circumstance to be Godfrey Georgia, v. invalid 446 U. S. 420 Maynard Cartwright Godfrey Georgia, and however, distinguishable constitutionally significant are in two re- spects. Maynard Godfrey First, in both the defendant by jury jury was a sentenced either was instructed only in the bare terms of the relevant or in statute terms nearly vague. S., as See 486 at 358-359, 363-364; U. (plurality opinion). jury given S.,U. at 426 Neither was limiting challenged aggravat- constitutional definition of the ing appellate Second, factor. in neither case did the state reviewing propriety pur- court, in of the death sentence, port by applying limiting to affirm death sentence defi- aggravating presented. nition of the circumstance to the facts (plurality opinion). 364; S., S., U. at at 429 U. points These were crucial to the we conclusion reached in Maynard. They equally S., See U. 363-364. are crucial to our decision in case. jury

When a is the sentencer, final it is essential that the jurors properly regarding be instructed all facets of the sen- tencing process. enough jury It is not to instruct the in bare terms of circumstance that is unconstitu- tionally vague import holdings on its face. That is the our Maynard Godfrey. logic But the of those cases has no place sentencing by judge. in the context of a trial Trial judges presumed apply are to know the law it in and to mak- ing Supreme their If decisions. the Arizona has nar- “especially heinous, rowed the definition the cruel or de- praved” aggravating presume circumstance, we that Arizona judges applying trial are the narrower It definition. is irrel- may evant that the statute itself not narrow the construction judge apply Moreover, if factor. even a trial fails to narrowing applies improper the construction or construc- necessarily require tion, the Constitution does not that a appellate based court vacate death sentence on state Mississippi, Rather, as held Clemons factor. we may appellate itself a state court determine U. S. aggravat- supports the the existence of the evidence whether may properly ing as defined the court elimi- or circumstance altogether factor and determine consideration the nate any remaining aggravating are suffi- circumstances whether penalty. the to warrant cient is asked to a state court’s

When a federal court review statutory mitigat- aggravating application or of an individual particular ing case, in a it must first determine circumstance statutory language defining the circumstance is whether the provide any guidance vague If to the sentencer. itself too to attempt must so, then the federal court determine vague have further defined the whether the state courts they so, have those definitions and, terms if done whether they constitutionally provide sufficient, e., /. are whether guidance In there some sentencer. this case is no seri- argument “especially heinous, ous that Arizona’s cruel or de- praved” facially vague. But the factor is sought give Supreme Arizona Court has substance to operative terms, and we find that its meets con- construction requirements. stitutional is com-

The Court stated that “a crime perpetrator especially in- manner mitted in an cruel when anguish physical victim’s flicts mental abuse before the anguish “[m]ental death,” a victim’s uncer- and that includes tainty 2d, Ariz., fate.” 159 at 769 P. to his ultimate as argument rejected at 1032. The court State’s days being cruelty after constituted six Powell suffered shot pointed meaning of the statute. court out within the cruelty prior it cases to had limited circumstance suffering was where the victim intended situations Id., 2d, P. the killer. at 1033. or foreseeable to approval Cartwright, expressed Maynard we of a “especially heinous, would limit definition that Oklahoma’s aggravating in- circumstance to murders atrocious, or cruel” physical volving abuse,” S., or 486 U. of torture “some kind a construction was but we also noted such 364-365, at constitutionally acceptable.” only would be not the one “that by Supreme given Arizona Id., at 365. The construction cruelty aspect aggravating cir- of the Arizona Court to the ap- virtually we identical to the- construction cumstance is proved Maynard. in Supreme is similar construction also

The Arizona Court’s “especiallyheinous, atrocious, to the construction of Florida’s approved aggravating that we circumstance or cruel” (joint opinion of S., at 255-256 Florida, 428 U. Proffttt JJ.). Recognizing that the Stewart, Powell, and Stevens, proper degree an factor of definition of precision, susceptible we con- mathematical nature is not provi- given “especially cruel” to the clude that the definition constitutionally Supreme suffi- Court is sion the Arizona meaningful guidance gives to the sentencer. cient because it that a crime is fault the state court’s statement Nor can we per- “depraved” especially manner when the in an committed evidencing petrator debasement or murder, “relishes suffering perversion,” of the indifference to the or “shows an pleasure” killing. See victim and evidences a sense Ariz., 2d, P. at 1033. heinous, cruel, nevertheless contends that the Walton arbitrary applied depraved and, manner factor has been distinguish applied, cases which his case from as does not imposed. In effect Walton has not been the death sentence challenges proportionality review it. us to overturn and asks Court as erroneous just that the do, we have concluded decline This we challenged courts in the Arizona has been construed factor guidance the sentencer. a manner that furnishes sufficient constitutionally being proportionality review is not so, This may [Walton’s] “lawfully presume required, and we — freakishly’ imposed ‘wantonly and sentence was not any- disproportionate within is not that the sentence thus and McCleskey Eighth meaning Amendment.” recognized of the (1987);Pulley Harris, v. Kemp, 279, 306, 308 S. 481 U. Supreme Furthermore, the Arizona 37, 43 S. 465 U. good proportionality plainly review its undertook Court proportional to was Walton’s sentence found that and faith imposed to his. The Constitu in cases similar the sentences require that conclusion. to look behind us does not tion judgment Court is affirmed. of the ordered.

It is so concurring part concurring in the and Scalia, Justice judgment. says

Today petitioner that a state before Court (1) unconstitutionally sentencing broad discretion court had imprisonment, him to death instead sentence to unconstitutionally him to sentence nairoio discretion had unacquainted imprisonment An observer instead of death. (and penalty jurisprudence in the habit of with our say positions probably thinking logically) cannot these would sentencing, right. he The ultimate choice both be unitary point choice between death out, is a one—the would imprisonment. have discretion whether cannot One yet whether to select the other. lack discretion the one select surprised imaginary to discover would then be observer Our jurisprudence Eighth Amendment that, this Court’s under strong years, petitioner past have a chance of would antagonistic winning claims, simulta on both of these neously that four Members of this the facts evidenced —as post, both, at 677 win see think he should on Court (Black panel dissenting), a Federal an en banc and that mun, J., essentially Appeals case, see identical in an so held 1988). (CA9 Ricketts, F. 2d 1029-1044 Adamson logic jurisprudence just have our shows that But that say separately parted ways. that, and long I write since apply why, longer in- explain one of the two I seek to will no I with the agree branches of jurisprudence. compatible claim, first and concur its petitioner’s Court’s analysis II, claim, the second I I, to Parts and V. As to opinion as concur in the only judgment. A this Court has as past years,

I Over thecourse for the sumed role of States’ administra rulemaking body requiring capital tion of sen capital sentencing effectively — from the of adjudication tencing proceedings separate guilt, Carolina, v. North 428 U. S. 301- see, e. Woodson g., (1976) v. 428 opinion); Gregg Georgia, 305 U. S. (plurality (1976) judgment), 195 (opinion announcing dictating discretion the sentencer must and must and extent of type (1978) have, see, Ohio, e. Lockett v. 438 U. S. 586 g., (1980), v. 446 U. S. 420 (plurality opinion); Godfrey Georgia, that certain of evidence must and must categories requiring Carolina, admitted, see, e. 476 g., not be South Skipper (1986); (1987), U. Booth v. 482 U. S. un Maryland, S. minute instruc wording jury into the dertaking inquiries ensure that understand their duties under our jurors tions to rules, see, e. labyrinthine Mississippi, code Caldwell g., (1985); Mills v. 486 U. S. 367 Maryland, U. S. 320 that deci procedural sentencing and forms prescribing see, Carolina, follow, e. v. North g., McKoy sions must (1990). The development U. S. 433 case began was Furman v. Amendment Geor Eighth jurisprudence curiam), which has come to 408 U. S. gia, (per that a discretion to return a stand for the sentencer’s principle standards, must be so by specific sentence constrained in random and that the death is not inflicted penalty capri cious fashion. Furman, of two men con- we overturned the sentences murder

victed sentenced to death in state courts for and under one man so convicted and sentenced for statutes rape, jury complete impose gave discretion to death for crimes, with no standards as to the factors it should those gave per no The brief curiam reasons for relevant. deem say imposition decision, other than to “the the Court’s carrying penalty in of the death these cases out consti- punishment Eighth unusual violation the tute cruel and Id., Amendments.” at 239-240. To un- Fourteenth underlying in Furman, the reasons the decision one cover opinions forming turn to the the five Justices the ma- must separately jority, of whom wrote and none of whom each opinion. opinions, joined any other’s Of these two rested on possible ground the death the broadest was —that punishment in id., unusual all circumstances. See cruel and concurring); J., id., at at 305 369-371 (Mar- (Brennan, concurring). Douglas, A J., third, that of Justice shall, ground discretionary capital narrower rested on a —that systems petitioners sentencing under which the had been operated were in a manner that sentenced discriminated against unpopular groups. id., racial minorities and See (concurring opinion). 256-257 opinions, light subsequent however, in

The critical jurisprudence, development our those of were Justices They infrequency Stewart and White. focused on the seeming discretionary which, randomness with under systems, penalty imposed. state the death was Justice Stewart wrote:

“These death sentences are cruel and unusual in the way being by lightning cruel same struck is and un- people rapes For, usual. of all the and mur- convicted many just reprehensible ders in 1967 and as as petitioners among capriciously these, are selected upon handful whom the sentence of death random has imposed Eighth [T]he .... and Fourteenth fact been cannot infliction of a Amendments tolerate the sentence legal systems permit unique under of death freakishly imposed.” wantonly penalty and so to be so omitted). (footnotes opinion) (concurring Id., at 309-310 opinion the In his a similar view. took White Justice Eighth Amend- violated the review death sentences under now adminis- before us are statutes ment because “as the imposed infrequently that the threat tered, the is so to to be of substantial service of execution is too attenuated “[Tjhere meaningful justice.” is no Id., at 313. criminal imposed it distinguishing cases in which is the few basis many ibid., that it con- not,” it is so in which cases from only “pointless life with extinction of and needless stitutes a public pur- any marginal discernible social to contributions opinions poses,” Stewart of both Justice id., at 312. pun- way say out of White went

Justice punishment, and and unusual a cruel was not itself ishment capital sentencing, system mandatory in which that a pun- particular everyone crime received that aof convicted quite Id., “present different issues.” ishment, would concurring); id., also at 307-308 J., see 310-311 (White, (Stewart, concurring). J., adopt capital sen- new 35 States

Furman led at least tencing procedures the discretion some of that eliminated pen- impose previously the death or withhold conferred up- Georgia, supra, alty. Gregg we at 179. See “guided challenge against Eighth three dis- Amendment held which, representative measures, these schemes cretion” varying required certain forms, sentencer to consider specified aggravating reach- circumstances Georgia, Gregg principal-case, ing In the its decision. three-justice judgment announcing opinion supra, “mandating] af- that where discretion Furman as read grave body sentencing as the deter- a matter so on forded spared, taken or life should be a human mination of whether suitably as to and limited so directed must be that discretion capricious action,” wholly arbitrary and the risk minimize of Powell, opinion Stewart, (joint and id., Stevens, at 189 660 added). (White,

JJ.) J., (emphasis id., 221-222 at See also Rehnquist, concurring in Burger, J., joined J., and C. (1976) 251 242, S. judgment); Florida, v. 428 U. Proffitt JJ.); id., at opinion Stevens, Powell, and (joint Stewart, Rehnquist, (White, by Burger, joined J., J., and J., C. 260 judgment); 262, 276 concurring Texas, 428 U. S. v. Jurek JJ.); opinion (joint Stewart, Powell, Stevens, and (White, by Burger, joined J., and Rehn- J., C. id., at 279 quist, concurring judgment). J., routinely read Furman as cases, we have the 1976

Since limiting “channelling proposition standing and for penalty” imposing the death discretion the sentencer’s . . . Maynard requirement,” v. constitutional “fundamental is a Cartwright, (1988), and have insisted that 486 U. S. 356, 362 “ objective ‘clear and stand- the sentencer with furnish States guidance,’ provide ‘specific and that detailed and ards’ that imposing rationally process sen- reviewable the ‘make (foot- Godfrey Georgia, death,’” S., at 428 v. U. tence 446 omitted). actually Only in- have we twice since 1976

661 “[States] concurring judgment), must J., and vens, rationally way [the death] in a that can administer distinguish individuals death between those for whom Spaziano appropriate not,” those for whom it is sanction and (1984). Zant Ste 447, 460 v. Florida, v. S. See also 468 U. (1983);Eddings phens, 455 Oklahoma, v. 862, 462 U. 877 S. Pulley (1982); 51 Harris, 37, Mary v. 465 U. S. U. S. (1984); 110 Maryland, S., v. 502; 482 at Mills Booth U. v. Phelps, v. U. 484 S. land, S., 374; at 486 U. Lowenfield

244 B introducing requiring Shortly doctrine con- our after “impose” the death discretion to straints on the sentencer’s developing forbidding penalty, began a doctrine the Court im- discretion to “decline to on sentencer’s constraints (emphasis supra, McCleskey Kemp, pose” leted). 304 de- at it. a would be This second doctrine—counterdoctrine exploded completely coherence whatever better word—has “guided once had. the notion of discretion” by making responded Furman Some States categories mandatory punishment of murder. for certain Carolina, in Woodsonv. North We these statutes invalidated (1976), Louisiana, 428 U. Roberts v. S. 428 U. S. sentencing concluding plurality that the of the Court a process the “char- consideration to must accord at least some Woodson, individual offender.” acter and record responded opinion). supra, (plurality Other States spare by leaving some discretion the sentencer Furman mitigating limiting cir- defendants, kinds but invalidated could consider. We the sentencer cumstances (1978). plu- Ohio, a S. 586 in Lockett U. these statutes rality saying requires Eighth the sen- Amendment considering, precluded from as a tencer “not be any aspect record factor, character or of a defendant’s any defendant offense of the circumstances death,” id., proffers a sentence less than as basis for (opinion Burger, joined by J., at 604 C. Stewart, Powell, JJ.) added). (emphasis omitted and The rea- Stevens, soning pluralities adopted in these cases was later by majority of the Court. Sumner v. Shuman, See (1987)(embracing Woodson);Eddings 66S.U. v. Oklahoma, Lockett). (embracing supra decisions, course,

These of had no basis in Furman. One supposed might curtailing eliminating have that or discretion sentencing capital only the of defendants was not consist- positively required by Furman, with many ent but it—as suppose. States, course, the did But in Woodson and emerged Lockett, it that uniform treatment of offenders guilty only required by of the same crime was not Eighth prohibited. the Amendment, but was all but An- “[cjentral nouncing proposition application the that to the [Eighth] the contemporary Amendment is a determination of regarding punishment,” standards the infliction of Woodson, supra, pointing steady growth at and to the of dis- cretionary sentencing systems previous years over the (those very systems we had found unconstitutional in Fur- man), supra, pluralities Woodson, 291-292, at the in those cases determined that a defendant could not be sentenced to by death unless the sentencer was convinced, an uncon- unguided strained and evaluation of offender and offense, appropriate punishment, that death was the id., at 304-305; supra, practice Lockett, In short, 604-605. which Furman had been described as the discretion to sentence to pronounced constitutionally prohibited, death and was in Woodsonand Lockett renamed the discretion not to sentence pronounced constitutionally required. years

As elaborated since, the Woodson-Lockett principle prevented imposing has States from all but the most minimal constraints on the sentencer’s discretion to decide eligible that an offender for the death should none- place, repeat- theless not receive have, it. We in the first edly rebuffed States’ efforts to channel that discretion objective rest. specifying on which its exercise should factors say principle sweep that It would misdescribe the sen must be considered “all evidence” objective what criterion of assume some tences That would precisely have mitigating, we forbidden. is what which effectively proudly announce that Constitution Our cases sentencing excluding prohibits deci from from the States any any aspect record, or or a defendant’s character sion surrounding ahad crime: the defendant that circumstance spoiled rich poor deprived childhood, had a or he great race, or the victim’s had a love for childhood; he he pathological race; victim’s for the hatred that he ahad capacity, mind has a brilliant or that he has limited mental society; great that he was contribution to which can make a despised mother. What his mother, or that he kind to his bearing criminal the de the crime on ever evidence rendering less de the defendant introduce as fense wishes to serving be into evidence must admitted g., supra, by Lockett, e. See, the sentencer. and considered specific (“character, age, prior intent to record, lack of at 597 crime”); relatively part in the . . . minor death, and cause (inter supra, Eddings Oklahoma, alia, that the de at 107 v. years old, was 5 “parents he were divorced when fendant’s [he] rules 14 with mother without until was lived his he Dugger, supervision”); 393, v. 481 U. S. 397 Hitchcock or (1987)(inter “petitioner alia, one of seven chil had been by family living picking cotton; poor that earned its dren in a petitioner cancer; had had that his father died uncle”); Skipper v. South Caro and affectionate been fond (that “petitioner 4 S., had been a well- lina, 476 U. trial). well-adjusted awaiting prisoner” while behaved and may channel the sentencer’s consideration of Nor States by defining weight significance it is to re evidence example, making mental retarda evidence of ceive—for only question insofar as it bears on the whether tion relevant deliberately. Penny Lyn- committed See v. the crime was augh, 322-323, 302, Rather, 492 U. S. they must v. North Carolina, “give let the sentencer McKoy effect,” 442-443 (1990), 494 U. S. mitigating evidence what- ever manner it Nor, when a is pleases. jury assigned the task, may State sentencing attempt impose structural on the rationality sentencing decision by requiring that miti- id., be unanimously, circumstances found gating see at 443; juror each must be allowed to determine “give effect” to his what evidence perception leniency, favors regardless of (or whether those assent perceptions command the are to) even other comprehensible jurors.

To that “there an acknowledge inherent perhaps tension” between this line cases line and the stemming from Furman, McCleskey v. Kemp, S., at 363 U. (Black J., is rather like dissenting), saying there was per mun, haps inherent tension between Allies and the Axis II. Powers World War And to refer the two lines as Florida, “twin objectives,” Spaziano v. pursuing S.,U. at 459, is rather like referring objectives to the twin of good and evil. be They cannot to Furman, reconciled. Pursuant and in order “to achieve more rational and equitable admin istration of the death penalty,” Franklin Lynaugh, U. S. we States require that “channel the sentencer’s discretion ‘clear and objective standards’ that provide detailed guidance,”’ Godfrey Georgia, ‘specific and S., 446 U. breath, however, at 428. the next we say that “the State cannot channel the sentencer’s discretion ... to consider any relevant offered [mitigating] by information the defendant,” McCleskey v. at Kemp, supra, (emphasis added), and sentencer that the must unconstrained enjoy dis cretion any to decide whether factors sympathetic on bearing the crime does not defendant or the indicate that he “deserve death,” supra, to be Penry Lynaugh, sentenced to v. at 326. The quite destroys latter whatever requirement obviously requirement rationality predictability was de former the signed to achieve.* explain attempted the contradiction to has Court

saying requirements functions: serve different that the two according rational criteria to “narrow” The first serves penalty, eligible the while for the death the class of offenders eligible is guarantees is death offender who that each second actually “an individualized death without sentenced to penalty.” appropriateness the death of the assessment Penry Lynaugh, supra, Stephens, Zant v. 317; at see also assess- But it is not “individualized S., 462 U. at 878-879. the No one asserts that Con- that the here. ment” issue merely purpose that the of Furman is contends *Justice Stevens (to the sentencer’s unconstrained discre- which group narrow the of crimes point “tip pyramid” near the applied) then to some undefined tion is murders, pyramid consisting of all of murder —the base of in minute de- particular type crime of murder defined apex consisting of a is, however, Post, no hint (dissenting opinion). There at tail. 715-718 attempt to determine what constitutes jurisprudence Furman of an our whether either pyramid,” of the and to assess “tip the critical line below the bring above alone sufficient to the statute the elements of the crime are (in specified) factors whatever need be aggravating line which case no I purpose. read aggravating factors are sufficient for or whether the (and statutes, States, post-Furman have enacting their cases them) specified when- certainly requiring aggravating factors to be read as confining the It is a means of given the sentencer is discretion. ever specific rather something to look for giving them sentencers’ discretion — large among all circumstances. leaving than them to wander matter produces consistency result which is unachievable —no That any they narrowly are left to take into account how the crime is defined —if sure, have, to be held that the discretion- aggravating factor at all. We duplicate already required limiting aggravating can factor factor crime, but Phelps, see U. S. definition Lowenfield discretion focused and con- circumstances the sentencer’s is still those given complete discretion We allowed sentencers to be fined. have never If requisite finding aggravating factors. and when without a (I latter, require permit Furman to assessment redefines basis) sufficiently "pyra- that a narrow level of the imagine cannot on what reached, prepared my I shall be to reconsider of murder has been mid” and Lockett. evaluation of Woodson permits en

stitution condemnation masse. is The issue process sentencing whether, in the of the individualized society may specify determination, the which factors are rele- may upon vant, and which it are not—whether insist a ra- making in tional scheme which all sentencers the individual- apply determinations the same standard. That ized is precisely the issue that was involved Furman, no more Having aggravating held, no less. in Furman, that the sought to be factors the individualized determination must specifiedin advance, be we are able to refer to the defendants qualify eligi- will who under those factors as a “class of death among actually bles”—from those to whom receive death will unspecified mitigating selected be on basis of factors. mitigating if we But sought had held Lockett to factors be specified in the individualized determination must be equally advance, we would have been able refer to the qualify who will defendants under those factors as a “class of mercy eligibles” among actually whom those re- —from mercy will unspecified ceive be selected on the basis of aggravating factors. words, In other classification versus explain opposite ag- does individuation treatment of gravating mitigating merely way it factors; one de- scribing opposite the result of that treatment. What is merely setting involved here is standards for individualized question why determinations, and the remains the Constitu- tion demands standards and opposite impossible standards be accorded treatment. It is why. to understand Since the individualized determination (does unitary is a one this defendant deserve death for this crime?) says once one each sentencer must be able to answer (and morally for “no” whatever it reason deems in- sufficient any jurors deed, morally whatever reason one of deems sufficient), impossible it becomes to claim that the Constitu- requires consistency rationality among tion sentencing preserved by strictly limiting determinations be rea- say “yes.” sons for which each sentencer can ran- fact, sys- in “freakishness” are even more evident domness and requires aggravating great factors to be in tem that found permits sentencers to accord different detail, since it treat- they only wish, reasons to ment, for whatever murderers, but to two murderers whose two different crimes gravity. to be of similar It is difficult have been found justify requirement long enough Furman to so as the mitigation; permitted allow random but im- States are to to pose simultaneously requiring mitigation random it while agree I with Justice White’s observation that the absurd. represents from Furman, Lockett a sheer “about-face” rule negation principle guided outright discretion that path regulating capital sentencing brought us down procedure place. Ohio, S., in the first Lockett v. 438 U. at dissenting part, concurring part, (opinion in in con- 622 curring judgments). in

C contradictory objectives pursuit neces- simultaneous sarily produces As The Chief has confusion. Justice pointed elaborating gone “the has out, in our doctrine pillar post, that the sort of reasonable from with the result legislatures, appel- predictability upon courts, which trial completely necessity rely all but has been late courts must supra, J., at 629 Ohio, Lockett v. sacrificed.” (Rehnquist, years legisla- Repeatedly past dissenting). state over the adopted discretion-reducing procedures tures and courts have years only satisfy principle, later Furma?i to be told principle. Lockett have run afoul of the measures their capi- Having in Furman that unconstrained discretion said Georgia, unacceptable, sentencing Furman v. see tal was concurring); (Douglas, id., at 309-310 J., 256-257 S.,U. (Stewart, concurring); J., concur- id., at 311-312 J., (White, adopted schemes, mandatory ring), down we later struck sentencing they response Fiunnan, constrained because Carolina, North 428 U. S. Woodson v. discretion. See sentencing Having specific schemes state sustained they provided constitutionally necessary in 1976because degree “guided objective discretion” the form of sen- U, tencing g., criteria, see, Florida, e. v. S. Proffitt (1976); Texas, Jurek 428 U. S. 262 we later very they required down struck those schemes because sentencer to confine itself to the factors contained those objective Dugger, criteria, see Hitchcock v. 481 U. S. 393 (1987) (Florida); Penry Lynaugh, 492 U. S. 302 (Texas). Having encouraged adopt “impor- the States to safeguard against requiring tant additional arbitrariness” of specific jury findings supporting sentencing its decision, Gregg Georgia, (joint opinion S., Stewart, U. JJ.), findings Powell, and we later made such im- Stevens, (and possible meaning- as to circumstances thus whole) by prohibiting requirement jury less as a a that the agree mitigating McKoy on circumstances, v. North Caro- (1990). lina, 494 U. S. 433 For state lawmakers, the lesson nearly has been that a decision of this Court is worthless as a guide though approve seemingly future; for the we even require sentencing procedure today, may some we well retro- actively prohibit it tomorrow. jurisprudence containing contradictory

In a commands impose penalty that discretion to the death must be limited impose but discretion not to ally the death must be virtu- procedures support unconstrained, a vast number of a plausible claim in one direction or the other. Conscientious obliged counsel are claims, to make those and conscientious judges capital to consider them. arisen, There has thus in permanent stay applications peti- cases, a floodtide of judgments tions for certiorari to review adverse at each alleging round of direct and collateral review, novel defects sentencing procedure arising permutation out of some attempting give either courts, Furman or Lockett. State contradictory principles jurisprudence effect to the in our certainty reluctant to condemn offender without virtual suspend committed, that no error has been often the normal procedural give rules bar to claim to each new ear or undercon- was overconstrained sentencer’s discretion yet ruling typically gives rise to an- An strained. adverse by the time that is habeas review—and round of federal other yet may new rule announced another have concluded we well appeal yet justify to the state courts. will another uncertainty unpredictability are evident effects tip though only of a we see alone, in this Court even McKoy granting iceberg. certiorari Since mountainous (the February supra, first of this 21, 1989 Carolina, North on granted), capital we have re- have certiorari cases to Term’s petitions cases; 8 were for certiorari over 350 ceived granted granted, for this for the 9 cases and 84 were held wonder, then, case alone. this Small Term; were held for system capital punishment that has that the statistics show approved, many States, vote of the democratic been theoretically approved people, been as constitutional that has except as unable to function Court, that seems but justice. May timely parody there As of of swift or even only have row; 2,327 murderers on death were convicted NAACP 1972 Furman decision. executed since our been Row, A. 1 Legal Fund, U. S. Death Defense and Educational out have that have been carried Those executions years eight average of after the commission occurred Summary Stewart, E. Carnes & S. the crime. See (unpublished § Capital VIII Punishment Data Post-Furman Attorneys by report with on file General Alabama Assistant 1988), Powell, Library, Com- Law cited Harvard School mentary, 1013, 1038, n. 26 102 Harv. L. Rev. my efforts view, for us to reexamine our it is time against the constitu- the text of

area and to measure them provision they purportedly based. which are tional on

II by applicable Amendment, Eighth made to the States The Amendment, California, see Robinson v. the Fourteenth (1962), provides: U. S. required, bail not be

“Excessive shall nor excessive imposed, punishments fines nor cruel and unusual inflicted.” requirement punishments as

The stands in stark contrast requirement they fines, to the for bail and which are invalid if punishments are “excessive.” When other than fines are in- explicitly requires volved, a the Amendment court to con- only whether is harsh, sider the severe or but Eighth it If not, whether it is also “unusual.” then the prohibit judge it, Amendment does not no matter how cruel a might Eighth Moreover, think it to be. Amendment’s prohibition against punish- is directed cruel and unusual by regulate procedures not, terms, ments. sentencing It does its opposed punishment. as to the substance of As prohibition “[t]he observed, has Chief Justice Eighth punish- Amendment relates to character of the process imposed.” ment, and not which it is Gard- Florida, ner v. U. S. J., (Rehnquist, dissenting). procedural sentencing Thus, the elements prohibition, only they scheme come within if at all, when systematically are of such a nature as to render the infliction punishment of a cruel “unusual.” Georgia,

Our decision Furman v. 408 U. S. 238 arguably supported by already was this text. IAs have de- supra, opinions Part scribed, I-A, see the critical of Justice Stewart and Justice White that case rested on the ground discretionary capital sentencing had made the infrequent among such a sentence random event (“wanto[n] freakis[hj,” capital offenders as Justice Stew- it) colorfully imposition put art that its had become cruel and (this far I unusual. As as can discern is not the occasion to subject), explore probably that is not what was meant Eighth punishment” an “unusual in the Amendment—that is say, prohibit originally did not text traditional form imposed, punishment rarely opposed that is as to a form of punishment phrase that is not But the can bear traditional. States, until meaning. Moreover, most since former the penalty century, manda- beginning was the death the of prescribed, H. see tory it was for which the convictions for (3d 1982); Penalty ed. in America 10-11 Bedau, The Death be said it cannot Bowers, in America Executions W. phrase interpretation the is contradicted that the Furman penalty permissible in the to a clear references the Const., 5; Arndt. Arndt. U. S. Const., Constitution, see U. S. precedent willing § the es- to adhere to I am 14, 1. therefore cases, that when and to hold Furman line of our tablished given capital punishment adopts a crime but does for a State Eighth mandatory, it from Amendment bars make it the re- giving discretion to select unfettered the sentencer convey requires cipients, advance, and it establish but to Maynard v. governing See sentencer, standard. (1988); Godfrey Georgia, 446 Cartwright, S. 356 U. U. S. however, another cases, is line of Woodson-Lockett

The relation discern, that bears no I As far as can matter. Eighth man- Amendment. text of the whatever to the sentencing datory imposition discretion— death—without traditionally punished with have a crime which States Eighth Amendment, possibly be- violate death cannot (neither absolutely nor for it will not be “cruel” cause (neither crime) particular it will not be “unusual” being type tradi- that is not sense of rarely “freakishly” being im- nor in the sense of tional quite aban- posed). have It that most States is immaterial automatically sentencing practice all to death doned separate guilty crime, in favor of a aof offenders opportunity given procedure in is which the sentencer appropriateness death in the individual consider the S., Carolina, case, at 294-295 428 U. Woodson v. North see mandatory opinion); (plurality relevant that is it still less be) (or alleged capital sentencing of touch out is “‘contemporary community regarding with values’” the ad- n (citation omitted). justice, id., ministration of at 295 argument, I am id., awareof the see at 302-303; Roberts v. (plurality Louisiana, S., opinion), 428 U. at 333-335 mandatory capital sentencing may schemes suffer from the absolutely discretionary same defects that characterize mandatory systems, argument goes, juries schemes. frequently acquit they guilty offenders whom find but believe do deserve the death for their crime; and because “jury any nullification” occurs without the benefit of guidance or State, standards from the the result is the same “arbitrary capricious imposition of death sentences” problem struck down in Furman. One obvious with this ar- gument proves invalidating is that it much, too Furman at juries the same time ig- that it validates Woodson. If will determining guilt nore their mandatory instructions in a capital sentencing they scheme, there is no reason to think “ similarly objective will not chafe at the ‘clear and standards’ providing] ‘specific guidance,”’ . . . Godfrey and detailed (footnotes Georgia, supra, omitted), at 428 that Furman re- quires. approach preferred, The Furman must be since it is facially implausible arising that the risk of arbitrariness from juries’ ignoring greater their instructions is than the risk of giving arbitrariness from them no instructions at all. The theory adopted of “unusualness” in Furman is tenuous enough explicitly when used to invalidate conferred stand- sentencing unwilling ardless theory I discretion; am to extend- that -

to situations in which the sentencer is denied that dis- (found conjecture cretion, on the basis aof nowhere else law) juries systematically disregard their oaths. Despite the fact that I think Woodsonand Lockett find no proper they basis in my Constitution, have some claim to adherence because of the doctrine of stare decisis. I do not reject lightly, reject My that claim Ibut must it here. ini- my problem, tial and fundamental as I have it in described above, detail wrong, is not that Woodson and Lockett are rationally Lockett are but that Woodson and irreconcilable inquiry Furman. It that which led me with into they wrong. either or Furman was I would not whether precisely, apply apply or, more know how to how to them— I them Furman —ií I wanted to. both cannot continue say, degree “narrowing” case, in to case after what of is suffi- objective in cient to achieve the constitutional enunciated objective any im- Furman when I that that is in case know possible I of achievement because of Woodson-Lockett. And say, case, in case after what of re- cannot continue to sort upon are unconstitutional under straints sentencer discretion posi- I Woodson-Lockett when know that the Constitution tively can- under Furman. Stare decisis constraints favors impossible. possibly I command the Since cannot be incompatible guided principles, I must what seem to me reject plainly the one that in error. objectives of stare decisis are not fur-

The of the doctrine any adhering in The Woodson-Lockett event. thered to certainty purpose introducing and doctrine exists for the stability protecting expectations the into the law and in on individuals and institutions that have acted reliance existing described, rules. As I have the Woodson-Lockett — very purpose principle has frustrated this from the outset contradicting the of much of our death basic thrust unwary laying traps generat- jurisprudence, States, and uncertainty signs ing in the law that no a fundamental shows ending diminishing. or even principle lacking support I in in con- cannot adhere to so unworthy plainly respect under text and so stitutional not, Accordingly, I will the stare decisis. this case or uphold Eighth future, vote to Amendment claim that unlawfully discretion has been restricted. sentencer’s Ill finally, turn, petitioner’s Eighth I Amendment claims present case. respect agree claim, With Furman I with the analysis join portions conclusion, and Court’s those of its opinion. circumstance found exist in this case, “especially that the murder was committed in an hei- depraved” cruelty being nous, or cruel defined as manner — involving anguish physical abuse, infliction mental depravity involving relishing defined as of mur- suffering speci- or the der victim’s with reasonable —defines ficity distinguish death-eligible certain elements of- They precise enough, my from fense other murders. are guide view, both to the sentencer to enable review of the sentence. petitioner’s respects

As to that in two claim the Arizona procedure deprived the sentencer of discretion all to consider mitigating circumstances: For the I reasons do stated above Eighth correct, not believe that if claim, states an Amend- ment violation. part judgment.

I therefore concur in and concur in the joins, Justice whom Brennan, with Justice Marshall dissenting.* application today longstanding Court’s most cavalier

Eighth developed Amendment doctrines over the course of inquiry, two decades of careful and sustained when added to examples host application of other recent of crabbed penalty g., Blystone context, doctrine the death see, e. v. (1990); Pennsylvania, Boyde 494 U. S. v. California, 494 (1990); (1990); Parks, U. S. 370 Sawyer cf. v. 494 U. S. Saffle p. suggests Smith, ante, 227, that this is losing sight responsibility of its to ensure that the ultimate only criminal sanction is out meted accordance with con- join principle. stitutional I While Justice Blackmun’s dis- senting opinions today’s my decisions, I also adhere to opinion applies 89-189, *[This also to No. Jeffers, post, Lewis v. p. 764.] penalty view that the death is all circumstances a cruel and punishment: unusual infirmity punishment

“The fatal constitutional in the death is that it treats ‘members of the human race as objects toyed nonhumans, as to be with and discarded. [It is] premise thus inconsistent with the fundamental [Cruel Punishments] and Unusual Clause that even being possessed the vilest remains a criminal human dignity.’ penalty common human As it such is a ‘subjects princi- the individual to a fate forbidden ple guaranteed by [Clause].’ of civilizedtreatment I ground hold, therefore today alone, would on that that death is punishment prohibited by a cruel and unusual obviously Clause. ‘Justice of this kind is no less shock- ing itself, than the murder, crime the new “official” offering far from redress for the offense committed against society, adds instead a second defilement to the (1976) Gregg Georgia, first.’” 428 U. S. 230-231 (citations omitted). (dissenting opinion) and footnote Georgia, See also Furman v. (concurring opinion). 408 U. S. 257-306 penalty wholly if I Even did not believe that the death principle dig- inconsistent with the constitutional of human nity, agree dignity lying I would that the concern for human Eighth requires at the core of the Amendment that a decision impose only the death be made after an assess- propriety ment of its in each individual case. process significance

“A that accords no to relevant facets of the character and record of the individual offender or particular the circumstances of the offense excludes from fixing punishment consideration the ultimate of death possibility compassionate mitigating of or factors stemming from the diverse frailties of humankind. It convicted, persons designated treats all aof offense not uniquely beings, as individual human but as members of 676 subjected faceless, undifferentiated mass to be to the

blind infliction of the of death.” v. Woodson (1976) Carolina, (joint opinion 280, North 428 U. 304 S. JJ.). Stewart, Powell, and Stevens, system capital punishment [must be] “a Thus at once con principled but sistent also humane and sensible to the uniqueness Eddings Oklahoma, of the individual.” v. 455 (1982).* 104, U. S. past, gone extraordinary

In the “this Court has meas- prisoner ures to ensure that the sentenced to be executed process guarantee, humanly afforded that will much as as is possible, imposed that the sentence whim, was not out of passion, prejudice, Id., or mistake.” at 118 (O’Connor, J., today’s concurring). anything, reflect, But if decisions opposing ought pris- concern that States able be to execute separate opinion dismissing *Justice Scalia’s principle settled Ohio, (1978), underlying Lockett v. 438 U. S. 586 based on the asser- principle tion that this doctrinal cannot be with reconciled that underlying v. Georgia, Furman 408 U. misdescription S. 238 reflects apparent misunderstanding of our doctrine. Justice Scalia’s concern principle that the Lockett explicit is not commanded text of the Court; Eighth long rejected by Amendment been has it is well estab- Eighth proscription lished Amendment's cruel pun- and unusual ishments meaning evolving “must draw its from the decency standards of Dulles, progress society." Trap mark the a maturing v. 356 U. S. (1958) 86, States, opinion); (plurality see Weems v. United 217 U. S. (1910). 349, 378 The Lockett principles speak and Furman to different underlying concerns our notion punishment; of civilized the Lockett rule primarily flows from the Amendment’s core dignity, concern human see Carolina, 280, Woodson v. North (joint opinion U. S. Stewart, Powell, Stevens, JJ.), principle Furman whereas the re- the understanding flects punishment the Amendment commands that wholly arbitrary S., be meted out in a and irrational manner. 428 U. at applied 303. Our cases principles together have these to “insisft] that capital punishment imposed fairly, be and with consistency, reasonable Oklahoma, S., added); Eddings not at all.” (emphasis U. see, g., Penry Lynaugh, e. 492 U. S. 326-328 gen- See erally (Stevens, J., post, at 714-719 dissenting). possible with oners as little interference as from our estab- Eighth lished Amendment doctrine. with whom Justice Blackmun,

Justice Brennan, Jus- join, dissenting. and Justice Stevens Marshall, tice my statutory provisions, pertinent view, two Arizona Eighth here, princi- run afoul of the established Amendment ple that a defendant is entitled to an individualized sentencing determination which involves the consideration of mitigating all require- relevant evidence. The first is the may only ment that the sentencer consider those proved by preponderance circumstances of the evidence. provision The second is the that the defendant bears the bur- establishing mitigating “sufficiently den of circumstances leniency.” substantial to call for I also conclude that Arizo- depraved” aggravating na’s “heinous, cruel or circumstance, provides as construed Court, no meaningful guidance sentencing authority and, to the aas consequence, is unconstitutional.

I Jeffrey therefore dissent from the Court’s affirmance of Alan Walton’s sentence of death.

I During past years, penalty ju this Court’s death risprudence consistently importance has stressed the of an individualized-sentencing process, permits par one that “the aspects ticularized consideration of relevant of the character imposition and record of each convicted defendant before the upon him of a sentence of death.” Woodsonv. North Caro lina, (plurality opinion). 428 U. S. Such a procedure required process “[a] because that accords no significance to relevant facets of the character and record of particular the individual offender or the circumstances fixing offense excludes from consideration the ultimate punishment possibility compassionate of death the or miti gating stemming factors from the diverse frailties of human plurality Id., kind.” at 304. A of this Court stated in capital Ohio, 586, Lockett 438 U. S. a that may precluded considering, “not be sentencer from a miti- as any aspect gating of a factor, defendant’s character or record any of the circumstances of the offense that the defend- (Em- proffers a ant as basis for a sentence less than death.” original.) phasis Eddings in v. Oklahoma, 455 U. S. (1982), majority “[t]he

114-115 a sentencer, held that and the appellate court] may [state weight review, on determine the given mitigating they may to be relevant evidence. But by give weight excluding it no such evidence from their con- The Court, moreover, sideration.”1 has insisted that the respected. as well substance as the form of Lockett must be (1989)(“[I]t Penry Lynaugh, See 492 U. S. is not enough simply present mitigating to allow the defendant to evidence to the sentencer. The sentencer must also be able give imposing to consider and sentence”). effect to that evidence holdings closely principles emerge. From those two related “qualitative first The is difference” between death penalties greater degree and all other a necessitates of “reli- ability appropriate in the determination that death is the punishment specific in a Carolina, case.” Woodsonv. North (plurality opinion). S., at 305 U. The second that is particularized sentencing procedure Eighth mandated requires Amendment that the sentencer be allowed to con- “any aspect any sider of a defendant’s character or record and prof- of the circumstances of the offense that the defendant a fers as basis for a sentence less than death.” Lockett v. (plurality opinion). Only

Ohio, S., 438 U. at 604 if the de- opportunity present fendant is allowed an unrestricted rel- mitigating capital procedure sentencing evant evidence will a sufficiently satisfy be deemed reliable to constitutional stand- Eddings ards. The Court said in “the rule Lockett Eddings 1The Court further instructed that on remand “the state courts must consider all relevant mitigating weigh against evidence and it S., the evidence of the circumstances.” 456 117. U. consistency produced by ignoring

recognizes a individual consistency.” S., at 112. U. false differences (a) today upholds which ex- statute The Court mitigating cir- consideration all from the sentencer’s cludes prove pre- has failed to that the defendant cumstances (b) places upon ponderance evidence, and demonstrating that the the burden of defendant “sufficiently proved to call so are substantial circumstances explain leniency.” plurality no how makes effort Eighth provisions with Amendment these are consistent prog- principles their Woodson, Lockett, announced analysis plurality’s eny.2 in- these issues Indeed, the assert, however, analysis with that its is consistent plurality The does contrast, ante, 649-650. Justice progeny. Lockett and its See affirmance, Scalia, expresses no view on provides fifth vote for who the comports with the standards an question whether the Arizona statute instead, argues, any that viola prior He in the Court’s decisions. nounced Eight Lockett should be overruled. is immaterial because tion of Lockett law, I good and not agree that Lockett remains shall of the Court Members ju today exposition Eighth of this Court’s Amendment attempt a detailed however, wish, make two brief observations: risprudence. I do First, citation then- argument is not new —as his Scalia’s Justice ante, Rehnquist’s See at 667. Lockett demonstrates. dissent Justice all capital be allowed to consider relevant The that a sentencer must rule debated, intensely vigorously opposed, mitigating evidence has been starting as a common eventually accepted by Members of this Court all See, g., Dugger, e. analysis in cases. Hitchcock point for individual Court). history (Scalia, J., writing a unanimous This U. S. support only of stare decisis continued suggests not that considerations this It indicates as well that Court’s application of the Lockett rule. patently it so irrational Eighth jurisprudence Amendment is not abruptly discarded. should be integrity adjudica- of My to the this Court's second observation relates presumed throughout process. validity The Lockett has been this tive of case, by arguments Scalia have been ad- raised Justice argument. disturbing It is the deci- petitioner's brief or dressed single rejection a line turn Justice's of in a case should on sive vote controversy, eight authority parties that both to this Members Court, accepted. this have virtually capital cases,

eludes no discussion of and those that majority demonstrably inapposite. does discuss are plurality “analogous” Rather, relies on cases that do not penalty. analysis thereby ignores the death involve Its what thought principles regarding be I had settled the distinc- capital sentencing. nature of tive

A capital sentencing flatly provides: The Arizona statute establishing “[T]he [mitigating] burden of existence circumstances included subsection G of this section is on (1989). §13-703(0 Ariz. Rev. the defendant.” Stat. Ann. The Arizona Court has construed the statute to require any mitigating proved circumstances must be preponderance g., See, the evidence. e. State v. McMurtrey, 71, 73, Ariz. 691 P. 2d provision There can be no doubt that this law ex- cludes from the sentencer’s consideration relevant might evidence that affect the determination whether the appropriate. Exclusion of that evidence is unsupported by legiti- this Court’s decisions and serves no mate state interest. plurality analyze does not within case the frame- Eighth

work established our Amendment decisions. plurality exclusively noncapital Rather, relies almost on upholding right place upon cases the State’s the defendant proving the burden of an ante, affirmative defense. See at misplaced, 650. Reliance however, on these cases is since upon premise wholly inapplica- those decisions a rest that is capital sentencing in ble the In context. Patterson New explained justifica- York, 432 U. S. 197 the Court the noncapital allowing persuasion in tion a case for the burden of placed upon as to affirmative to be defenses the defendant rather than the State: put Clause,

“The Due Process we it, as see does not New abandoning York to the choice or un- those defenses disprove dertaking to their existence in order to convict of a crime which otherwise is within its constitutional powers punishment. to sanction substantial [I]n . . each instance of a murder conviction under present proved beyond law, the New York will have a intentionally reasonable doubt the defendant has person, disputed an act it killed another which is not the constitutionally may punish. State criminalize and If recognize chooses to State nevertheless factor mitigates degree criminality punishment, we may think the assure that the State has been itself certainty. fact recognize established with reasonable To at mitigating require all a circumstance does not the State prove in each in which its nonexistence case the fact is put judgment in issue, if its would be too cumber- expensive, Id., some, too and too inaccurate.” at 207- added). (emphasis upon argument The Court’s decision thus rested that “the greater power includes the lesser”: since the constitu State tionally recognize all, could decline to it the defense could step placing proof upon take the lesser the burden of reasoning simply inapposite capi defendant. That is when a evidence, mitigating tal defendant introduces since State greater power entirely.3 lacks the to exclude the evidence analyze petitioner’s But it makes no sense to claim of by drawing “analogous” Lockett error on cases outside the sphere capital sentencing. requirement developing

3 This not recognized is the first time Member of this Court has greater power connection between the State's to eliminate all consideration mitigating power proof place evidence and its lesser the burden of on (Rehn- Ohio, the defendant. Lockett v. See 438 U. S. J., (“Because concurring part part) I dissenting continue to Ql’iST, believe that the Constitution not offended refusal to con State's all, sider infirmity shifting factors at there can be the bur no them"). persuasion den of to the defendant when it chooses to consider (with capital sentencing presenta- individualized unlimited evidence), mitigating pur-

tion of relevant ported has rely principles applicable prosecu- on to criminal generally. Eighth Instead, tions the Court’s Amendment jurisprudence explicitly proceeded premise has from the punishment “that death is a from all different other sanctions degree.” in rather than kind Woodson v. North Carolina, (plurality opinion).4 suggest S.,U. at 303-304 To principles Eddings appli- announced Lockett and are only they cable insofar as are consistent with the constitu- governing noncapital deprive tional rules is to cases de- those significance. all cisions of

Application preponderance standard in this context especially problematic light is of the fact that the “exist mitigating frequently ence” of a factor is anot factual issue to “yes” given. Stebbing or which a “no” answer can be See Maryland, 469U. S. 902-904 J., dis (Marshall, certiorari). senting example, from denial of statute, The “[t]he lists as a first circumstance fact that de capacity appreciate wrongfulness fendant’s of his con requirements his duct to conform conduct to the of law was impaired significantly § . . . .” Ariz. Rev. Ann. Stat. 13— 703(G)(1) Petitioner offered evidence of childhood Presumably, sexual abuse. individual no who suffers such wholly treatment is unaffected; time, at the same it is rare deeply that such individual is so traumatized that his impairment complete furnishes defense for his actions. question capacity The fully whether an individual’s to behave law “impaired” degree, propo-

is is one of not an either/or in Lockett plurality that, recognize noncapital stated: “We cases, practice the established of individualized sentences rests not on commands, public policy constitutional but on into . . enacted . statutes. imposition Given that public authority profoundly so dif penalties, all ferent from other we cannot avoid conclusion that an indi Id., vidualized decision is essential cases.” 604-605.

683 preponderance encourages sition. The standard, however, vaguely the sentencer to conclude that unless some defined “significance” threshold of has been reached, the evidence of consequent impairment abuse and cannot be considered at all. appears Supreme ap

Indeed, it that the Arizona Court has plied just g., the statute this fashion. e. See, v. State (1986)(“[W]e Wallace, 151 362, 369, Ariz. P. 232, 728 2d 239 years’ find that neither defendant’s ‘difficult earlier nor his drugs’ capacity use of ‘various so affected his to conform to requirements they mitigating of law that constitute fac 703(G)(1)”), § tors under denied, cert. 1011 U. S. 13— (1987); Rossi, 371, v. 359, 367, State 146 Ariz. 706 P. 2d (intoxication mitigating or duress is not a circumstance substantial); Woratzeck, unless it is 452, State 134 Ariz. (1982)(same); 458, 657P. 865, Nash, 2d State 143Ariz. (State acknowledged 406, 694 P. 2d some de gree impairment argued signifi of mental but that “it was not circumstance”), enough mitigating cant denied, to be a cert. 471 U. S. 1143 The Arizona Court has not simply impairment held that duress or which falls below the given weight stage threshold be should reduced at the final sentencing process, mitigating when cir Rather, are cumstances balanced. it has held that duress or impairment mitigat which falls below the threshold is not a misleading, many ing instances, factor. It is therefore rejection proffered mitigat characterize Arizona court’s ing evidence as a determination that the evidence should not judge may acting upon be credited. The trial instead be proved, impairment, though is not belief that a defendant’s Thus, “significant” meaning of the statute. under within the give weight sentencing judge law, no is entitled to ground mitigating that the evidence is evidence on the proof, guise mitigating enough. a burden of Under provides not to evidence is that some the statute at all. be considered rejection particular judge’s miti- the trial when Even credibility determinations, gating based on circumstance preponderance is unwarranted. application standard Mitigating meet this standard is not so that fails to evidence sentencing proper place in the deci- it has no unreliable guilt punishment, like decisions as to or as to Decisions sion: cumulative based on the effect of innocence, will often be fully pieces which evidence, no one of itself is several preponderance problems persuasive. the standard The with presents possi- compounded several when the defendant are judge might mitigating A be 49%convinced factors. trial ble yet mitigating circumstances; he would be each of as to conclude, law, that there was no miti- as a matter of to forced weigh against gation factors. closely Supreme re- has articulated two

The Arizona Court capital placing upon justifications defendant the lated proving mitigating that a circumstance exists. burden “[f]acts which would tend to show court has asserted knowledge peculiarly mitigation within the of a defend- are 416, 46, Smith, 412, 125 Ariz. 610 P. 2d v. ant,” State every (1980), negate require “[t]o miti- and that State place impermissible gating an burden on circumstance would 441, P. Watson, 120 Ariz. 2d State,” State v. happen argued if the defendant that he had might ask what would 3 One impairment.” Presum mitigating circumstance of “moderate proved the mitigating would that no such ably respond the Arizona indicating that prior law. decisions recognized under Arizona factor is a impairment would not constitute proffered evidence of or duress certain factor, language on the of the stat mitigating that court has relied ute, impairment “significant” and duress “substan requires which be Rossi, 359, 366-367, See, 706 P. 2d g., Ariz. e. tial.” State (1985). it ground that Rejection mitigating evidence on the 378-379 statute, in the how support mitigating a circumstance an does not defined (1987), ever, Dugger, 481 U. with Hitchcock S. cannot be reconciled cannot be restricted capital that a defendant in which this Court held statutory mitigating proof of factors.

1253, 1259 cert. U. denied, 440 S. 924 Until today, this Court has never a identified state interest which

outweighs capital right pres defendant’s to unrestricted entation of if evidence. Even an such interest exist, however, could the interests advanced State support preponderance standard do not withstand scrutiny. justifications

The State’s are not without force when criminal defendant an offers affirmative defense a trial to guilt jury’s determine innocence. A decision as to an af binary firmative is a defense either choice: the defense is ac cepted jury’s acceptance or it is not. Since the of the defense (or automatically acquittal results in conviction aon charge), may prejudice lesser State real suffer if the de minimally persuasive fense established on the basis of evi — practical opportunity dence which the State has no to rebut especially anticipate if it is difficult to the defenses that particular may individual In contrast, offer. if a mitigating sentencer believes that certain evidence has some persuasive preponderance value, but meet does not the simply may give standard, the sentencer re evidence weight weight proportional persuasiveness duced its — —at balancing stage.6 legitimate the final No interest is served (1982) ("The Oklahoma, 104, Eddings v. 6 See 455 U. S. 114-115 sen- tencer, review, appellate and the may [state on court] determine weight the given they to be relevant mitigating may evidence. But give noit consideration”). by weight excluding such evidence from their Supreme theAs Arizona recognized, Court has the determination that an aggravating mitigating require factor exists does not that the factor any particular given weight. be require “The statute does not that the aggravating weighed number against circumstances be the number of circumstance, mitigating circumstances. mitigating example, One for ‘sufficiently may be to outweigh aggravating substantial’ two circum- stances. The converse is aggravating also true —one circumstance could be so substantial two mitigating or more circumstances would not 13-454(D).”' ‘sufficiently leniency. § be substantial to call for A. R. S. Brookover, (1979). 38, 1322, Ariz. State 601 P. 2d by forbidding give any the sentencer to such evidence effect at all. prohi- rule at issue here falls Arizona well within the progeny.

bition announced Lockett and its The statute de- range mitigating fines a wide of relevant evidence—evidence degree persuasiveness with some has not which been proved by preponderance given by cannot be effect —that capital support the sentencer. That rule finds no precedents, legitimate governmental Court’s and it serves no pen- interest. I therefore conclude the death alty statute, as construed of Arizona, impermissibly limits the sentencer’s consideration rele- thereby Eighth evidence, vant violates Amendment.7

B I also that the Constitution believe State of Ari forbids the place upon prov zona to defendant the burden ing mitigating “sufficiently circumstances that are substan 13-703(E) leniency.” § tial to call Ariz. Rev. Stat. Ann. Once circumstance has been estab lished, the Arizona statute mandates that is to be appropriate penalty proves deemed the unless the defendant statutory provision, my view, otherwise. That estab “presumption Eighth lishes a of death” violation of Amendment. place 7Nor is Arizona’s decision to proving mitigation burden of on prove defendant saved the fact that State required ag beyond

gravating McCleskeg circumstances reasonable doubt. See (“In Kemp, carefully S. U. contrast to the defined impone standards that must narrow a sentencer’s discretion the death sentence, ability the limits a State’s Constitution a narrow sentencer’s might discretion to consider relevant evidence that it to decline cause sentence”) impose (emphasis in original). the death 1988) (en Ricketts, 1011, (CA9 banc), 8 See v. 2d Adamson 865 F. 1041 cert, 1469, pending, Dugger, No. 88-1553. See also Jackson v. 837 F. 2d (1988). (CA11), denied, 1474 1026 cert. 486 U. S.

687 repeatedly The Arizona has that indicated mitigating a defendant’s evidence will be deemed “suffi ciently leniency” only mitigating substantial to call if the “outweigh” aggravation.9 factors court those That has requirement ground “[w]hen sustained the on the that the only guilt question punishment issue of is settled and the process already requiring remains, due is offended guilty carry showing why defendant to burden of he leniency.” should Watson, receive State v. Ariz., 120 at 447, mitigating aggravating 586 P. 2d, 1259. If the cir equipoise, requires cumstances are in the statute that the judge impose punishment. capital trial The assertion that a may imposed directly sentence death be a such case runs Eighth requirement capital counter to the Amendment a upon sentence must rest “determination that is appropriate punishment specific in a case.” Woodson v. (plurality opinion). North Carolina, S., 428 at 305 U. plurality approach a hard-line takes and makes little holding ground juris- Eighth

effort to its on our Amendment prudence. support position, plurality only of its cites very Blystone Pennsylvania, two cases, recent v. 494 (1990), Boyde U. S. 299 (1990). v. California, 494 U. 370 S. precedents misplaced. Reliance even on these upheld provided The statutes in those cases the death “only imposed would be after a determination that outweigh mitigating circumstances cir- present particular cumstances in the crime committed particular defendant, there are no such Blystone, S., circumstances.” Boyde U. at 305. In neither Blystone challenged require capi- nor did the statute McCall, 125, 1165, g., 9 See, 119, e. State v. 160 Ariz. 770 P. 2d (1989); Mauro, 59, (1988); 186, 208, State v. State 159 Ariz. 766 P. 2d Moorman, (1987); LaGrand, 578, 587, 679, 154 Ariz. 744 P. 2d State 579, 21, 37, (1987); denied, 153 Ariz. 734 P. cert. State 2d 484 U. S. 872 105, 110, denied, v. McMurtrey, 151 Ariz. 726 P. 2d cert. 480 U. S. mitigating aggravating when factors are sentence tal simply speak evenly do not the balanced. Those decisions to per- posed whether the Arizona statute: the State issue missibly may place upon capital defendant the

the burden demonstrating appropriate. is not that a death sentence of explain why may attempt plurality does not to aggravating require in a case where a sentence evenly mitigating Indeed, are balanced.10" circumstances acknowledge dispos plurality that this is the does not even only conclusory question. a Instead, it assertion: offers itive allocating long a as State’s method of burdens of “So prove every proof burden to does not lessen the State’s ele prove charged, in this case to the exist of the offense ment aggravating circumstances, a defendant’s constitu ence of by placing rights him are not violated on the burden of tional sufficiently mitigating proving substantial circumstances leniency.” Ante, searches in vain call for at 650. One limiting principle. May require any hint of a a State that the imposed aggravating be an whenever factor is mitigating do not circumstances “substan established tially May outweigh” aggravation? a those state statute presumptively appropriate provide that a death sentence is proved, aggravating is whenever an circumstance and that only by showing presumption can be rebutted that miti “extraordinarily great”? gating circumstances are These plurality’s appear satisfy viz., would test: formulations required aggravating an is to establish circum State mitigating stance, and no evidence is excluded from the sen- present right mitigating tencer’s consideration.11 But the only ensuring 10TheState’s asserted interest “reliable" evidence provides at the no balancing stage considered final of course basis for is imposed requirement death be whenever evidence evenly aggravating to be reliable balances the circumstances. found presumption triggered only by finding The fact that the of death is aggravating circumstance does not save the statute. See Sumner v. of an Shuman, (proof 483 U. S. of an factor “doles] adequate basis on which to determine whether the death sen- provide meaningless evidence rendered all but if the rules that guide virtually the sentencer’s deliberations ensure that the mitigating change will evidence the outcome.12 plurality’s analysis requirement

Like the of the that miti- gating proved by preponderance circumstances a be of the approval provision appears upon evidence, its of this rest to analogy mitigating capital sentencing between evidence in noncapital noncapital and affirmative in defenses In cases. given cases, course, are States to sacri- broad latitude precision predictability imposing fice for determinate sen- restricting ability present tences and the defendant’s to evi- mitigation similarly in dence or If excuse. the States were capital punishment mandatory specified free to make for prohibit mitigating crimes, and to the introduction of evi- plurali- dence or declare such to be irrelevant, evidence ty’s reasoning today be would unassailable. There then objection sentencing permitted be no could to a scheme which argue inappropri- a defendant to that the death was placed upon case, ate his but his shoulders the burden persuading repeatedly Court, however, the sentencer. This recognized “qualitative has that the difference between penalties greater reliability degree and other a calls for imposed,” Ohio, when the death sentence is v. 438 Lockett (plurality opinion), capital 604 S.,U. at that in “the cases punishment directly personal should be related to the cul- pability Penry Lynaugh, defendant,” S., v. 492 U. way principles squared I

327. see no that these can be with case"; appropriate any tence is particular sanction defendant evidence). still entitled is to consideration mitigating individualized Penry Lynaugh, 12 See U. enough S. C‘[I]t is not simply present to allow the to mitigating defendant to evidence sentencer. The sentencer must also be able to effect give consider and to sentence"); in imposing that evidence Lynaugh, Franklin v. U. S. (1988) (O’Connor, J., ("Indeed, concurring judgment) right weigh have the sentencer consider and relevant mitigating evidence would meaningless permitted be consideration"). unless the sentencer give was also effect its capital sentencing provides scheme which doubtful should be resolved in favor of a I cases sentence of death. conclude that the therefore Constitution bars Arizona from upon capital proving placing defendant burden of “sufficiently are call circumstances substantial to leniency.”

II Godfrey Georgia, 446 U. S. we considered wantonly Georgia’s “outrageously vile, inhu- horrible or plurality man” circumstance. The concluded: nothing standing words, alone, “There these few any implies arbitrary capricious inherent restraint on person ordinary infliction of the death A sentence. sensi- fairly bility every could characterize almost murder as ‘outra- geously wantonly vile, or Id., horrible and inhuman.’” at Maynard ago, Cartwright, 428-429. Two in Terms (1988), unanimously U. S. 356 the an Court struck down part upon Oklahoma sentence based “es- State’s pecially aggravating heinous, atrocious, cruel” or circum- language The stance. Court that “the noted of the Okla- aggravating gave homa . circumstance issue . . no more guidance wantonly ‘outrageously than the or vile, horrible or language jury inhuman’ that the returned in its verdict Godfrey.” Id., at 363-364. today aggravating Arizona

The statute at issue lists as an “[t]he circumstance the conclusionthat defendant committed especially depraved the offense heinous, cruel man 13-703(F)(6) (1989)(the (F)(6) § Ariz. ner.” Rev. Stat. Ann. circumstance). Supreme consistently The Arizona “[t]hese disjunctive; has held that terms are considered the any presence one of is an three factors circum Beaty, stance.” State v. Ariz. 232, 242, 519, 762 P. 2d (1989). cert. denied, 491 U. S. 910 At the sen tencing phase present primarily case, in the the State relied detailing injuries on medical evidence the that the victim regained Powell suffered when he the consciousness after shooting.13 judge’s sentencing The trial order stated that he found that had Walton “committed the offense an ex- tremely depraved App. heinous, cruel or manner,” 56, but specify finding. “independ- did not the basis for that In its Supreme ent review” of the sentence, the Arizona (F)(6) supported by Court held that the circumstance was suffering shooting, evidence of Powell’s after the since Wal- ton could not have foreseen that Powell would survive his found, wound. however, The court murder was es- pecially great anguish cruel since “Powell suffered mental during both car ride when his fate was uncertain and in his final march into the desert when his fate had become cer- 571, tain.” Ariz. 769 P. 2d finding depravity sup-

court that a also indicated would be ported by shooting comment Walton’s some hours after the pee pants that he had “never seen a man in his before.” Ibid. sustaining majority death, Walton’s sentence of of- principal grounds upon says, Godfrey

fers two which, it Maynard may distinguished. majority points First, be capital sentencing out that in Arizona is conducted judge presumed any limiting trial who is to be aware of Supreme construction announced Ante, State Court. majority Second, at 653. Court to affirm the death sen- by applying limiting aggravating

tence a definition of the presented.” my circumstance the facts view, to Ibid. supports neither of these factors the Court’s decision to af- petitioner’s firm death sentence. objected testimony Defense counsel to the introduction of this on the

ground that suffering Walton could not have foreseen Powell’s after the shooting, reasonably since Walton believed that Powell was dead. The judge objection trial testimony overruled the on ground the that “the I going testify certainly understand to goes cruelty. he's to ..." to Tr. 233 (Jan. 1987). 26,

A presumed sentencing judge jury, the to know a is Unlike Supreme controlling opinions of the State in the as stated law vague aggravating is on its if the circumstance Even Court. judge’s discretion will be valid if the has face, the sentence provided by suitably the the “instructions” channeled been The trial appellate of the statute. construction court’s Supreme opinions, familiarity judge’s with Court’s the State only body if that however, to narrow his discretion will serve aggravating of the cir- articulates construction law of case meaning- consistent, and that that is coherent and cumstance range fully the to which of homicides limits expect majority apply.14 therefore would will One factor prior Supreme analyze decisions issued to Arizona Court (Jan. 1987), petitioner’s 27, imposition sentence judge who sentenced Walton whether the order to determine presumed the basis of a have acted on con- can be to death aggravat- stitutionally limiting sufficient construction ing Court, however, no Arizona cases at The cites factor. second-guess justifying the omission as a refusal all, Supreme proportionality Ante, review. Court’s State Godfrey May- distinguishes thus 655-656. sentencing judges pre- ground are that Arizona nard on the opinions guided Arizona read and be sumed to principle, yet Supreme insists, that it Court, a matter of is as opinions determining those furnish con- whether barred from finding court’s of cru trial “[T]he Court stated: 14The prior shooting to the by the mental torment of the victim elty supported 587, 159 Ariz. place which afterwards.” the events took rather than however, ‘‘finding made no judge, P. The trial 2d the offense in an generally that Walton “committed cruelty”: he found more ” heinous, depraved judge's The trial sentence extremely cruel or manner. statutory only given if terms have been all three can stand therefore constitutionally limiting constructions. sufficient

693 stitutionally adequate guidance. me, it This, seems is reasoning strange indeed.15 and unusual Supreme majority examined the Arizona Court’s Had the “especially depraved” ag heinous, or application cruel pressed gravating it have been hard circumstance, would meaningful placed court has limita state conclude (F)(6) scope The factor. on the tions statutory attempted in terms State v. to define (1977), Knapp, 531, denied, 2d cert. 435 Ariz. 562 P. 704 “The court there stated: words ‘hei The U. S. 908 meanings depraved’ that are clear to a have nous, cruel or understanding.” intelligence person average then offered 2d, P. at 716. The court defi 543, 562 Ariz., at Third New International Dic from Webster’s culled nitions “hatefully shockingly tionary: or defined as “heinous” was pain esp. “disposed grossly to inflict in a bad”; “cruel” as evil: sadistic”; manner: and “de or vindictive wanton, insensate corruption, perversion praved” debasement, as “marked explained: “What our Ibid.16’ The court or deterioration.” Harris, holding Pulley 465 U. majority relies on our S. 15 The constitutionally proportionality is not re arguing that review Ante, misplaced. Pulley is quired. at 655-656. That reliance that, pro sentencing the initial long safeguards as other at so Court held discretion, the adequately limit Constitution does ceeding the sentencer’s protection appel proportionality review an require the additional S., Pulley simply when at is irrelevant court. See U. 44-54. late sentencing point initial at issue. adequacy of the is itself jury strikingly given to the instructions definitions are similar These jury term in which the Oklahoma was told “the ‘heinous’ Maynard, evil; outrageously extremely shockingly or ‘atrocious’ means wicked means vile; degree pitiless, high to inflict a designed ‘cruel’ means or wicked and to, of, sufferings enjoyment of others.” pain, indifference utter 1987). (CA10 majority Maynard, 822 F. Cartwright v. 2d obliquely, were unconstitu albeit that those instructions acknowledges, ante, tionally The Tenth Circuit’s assessment vague. See 652-653. jury applicable to the definitions used equally instructions the Oklahoma they clear when are de- suddenly terms do not become Knapp: “Vague 694 intended to include as an

legislature circum- a stance was wherein additional killing circumstances of the above set the nature enumerated crime from the apart usual Ibid. or the norm.” Gretzler, State v. 42, 135 Ariz. cert. 1, denied, 659 P. 2d

461 U. S. 971 the Arizona Court Supreme reviewed (F)(6) its decisions the prior factor. The construing court “cruelty involves the explained pain and distress visited victims, and that upon heinous and depraved go to the mental state attitude of the as perpetrator reflected his Ariz., 2d, words and actions.” 135 at 51, 659 P. at 10.17 The listed five that, court also factors cases, had prior sup a that a ported finding particular was hei killing especially (1) nous or These factors depraved. apparent were “the rel (2) killer,” of the murder ishing by the “the infliction of (3) violence on gratuitous victim,” “the needless mutila (4) victim,” tion of crime,” “the senselessness of the Id., 2d, “the of the victim.” at P. helplessness 52, 659 at 11. The court not disavow Knapp definitions; did the con it those trary, Ariz., cited definitions with 135 approval. at 51, 2d, at P. 10. Nor did court hold that a murder could be especially deemed heinous or depraved only when one of five Rather, these factors present. was the court stated: “Where no circumstances, such as the specificfactors above, discussed separate the crime ‘norm’ from the of first degree murders, we will reverse a that the crime finding was heinous, committed in ‘especially cruel, or man depraved added). Id., ner.’” at 53, 659 P. at 12 2d, (emphasis The Gretzler have failed to place announced in principles (F)(6) limitations on the meaningful application of the ag- Cartwright Maynard, vague fined to other reference terms.” v. 822 F. 2d, at 1489. 17The also concept cruelty court noted that “our only involves not physical pain, but also ‘mental. upon . . distress visited the victims.'" Ariz., Clark, 51, 2d, 10, 428, at P. State quoting at 126 Ariz. denied, 888, 896, P. 2d cert. 449 U. S. 1067 Gretzler, its circumstance. Since decision gravating new factors identify has continued heinous murder was particular support finding which heinous has held that court, example, depraved. victim, part age was shown depravity ness or Wallace, see State at 238 Ariz., 2d, 728 P. (“[T]he he children, killed two with whom fact that defendant him, who no posed danger had no admittedly dispute mind’”); evil state of ‘shockingly evidence his additional Zaragoza, (“The 22, State v. 63, 69, 659 P. 2d 28 Ariz. 135 old”), denied, 462 U. S. case cert. years in this was 78 victim elimi murder was committed to (1983); the fact the by 1124 Correll, State 481, 148 715 P. 468, see v. Ariz. witness, nate a Gillies, (1986); State v. 142 P. 564, 570, Ariz. 691 721, 2d 734 State denied, (1985); 470 U. 1059 (1984), S. 655, 2d 661 cert. Smith, 511-512, 1265, 687 P. 1266-1267 510, 141 Ariz. 2d v. killer, State fact had been kind to the the victim (1984); by Fisher, denied, 750, 775, P. 2d cert. 227, 252, 141 Ariz. 686 v. bul the fact the killer used (1984); “special 1066 by 469 U. S. State v. damage,” . . to inflict tissue designed greater lets . Rossi, 2d, 377, “intentionally P. at or Ariz., 365, 146 at 706 at weapon destructive a high-powered, fir[ed] and repeatedly Chaney, victim,” State 313, Ariz. P. 295, v. 141 686 2d an ex victim (1984); the fact “the was bound 1265, by 1283 necessary purpose than was achieve” greater tent far Villafuerte, State 323, 142 Ariz. v. her escape, of preventing 42, denied, cert. 469 U. S. 1230 331, (1984), P. 2d 50 life,” for human (1985); disregard the killer’s “total by or Correll, Ariz., 734. The 481, 2d, State at 715 P. at v. nec announce not purported Court has Supreme or depravity. for a of heinousness finding conditions essary cases have court “Our Instead, previous has observed: where the or conduct findings depraved heinous approved kill violence, acted relished with gratuitous perpetrator way some other or in his a acts acted such fashion ing murderers.” from of first degree him the ‘norm’ apart set 1050, Johnson, 395, 401, 147 Ariz. 710 P. 2d v. State added). (1985)(emphasis appear first-degree to be few murders

Indeed, there would espe the Arizona Court would define as which cially depraved those murders which do fall heinous —and likely aggravating are cov circumstance to be outside Thus, other factor. the court will some ered depravity “gratuitous vi on the basis of heinousness find necessary if more than to kill the murderer uses force olence” victim, Summerlin, 426, 436, see State v. 138Ariz. 675P. (1983); Ceja, 40, 126 Ariz. 612 P. 2d 686, 696 State 2d will be cruel if the 491, 496 but the murder deemed consequently killer uses insufficient force and the victim dies Chaney, lingering death, Ariz., a see State particular A that a murder 2d, P. at 1282. determination depravity; support finding will a a murder “senseless” but depraved, pecuni to eliminate witness is also ary gain a murder for separate aggravating circumstance,18 is covered showing evidence that the defendant killed out of hatred revenge may the victim or a desire for be used to buttress the court’s conclusion that the killer “relished” the crime. 13-703(F)(5) (1989). Indeed, §

18 SeeAriz. Rev. Stat. Ann. the Arizona particular com Supreme willing Court has been to find that a murder was unworthy purpose purpose both for an and for no at all. In State v. mitted (1981), Tison, 526, denied, Ariz. P. 459 882 129 633 2d 335 cert. U. S. Supreme aggravating circumstances: the Arizona Court found two (1) pecuniary gain, object of the the murders were committed for since the (2) automobile, id., 542, 2d, 351, killings was to obtain an at 633 P. at senseless, especially and de the murders were and therefore heinous part impeded in the theft of the praved, because the victims could not have id., killings plan, at car and the therefore did not further the defendants’ 479, 2d, Correll, 468, 543, v. 715 P. 633 P. at 352. See also 148Ariz. State 721, (pecuniary fact gain 2d 732 circumstance was established “very carefully accomplice the defendant executed the armed id., 481, robbery”); robbery, part the scheme of at and murders were ((F)(6) 2d, proved “depravity P. at is indicated 715 734 factor was because unnecessary in that the the senselessness of the murders murders were robbery”). accomplish the

697 See State v. Ariz. Jeffers, 404, 430, 1105, 1131, 661 P. 2d (1983).19 cert. denied, 464 U. S. In State v. Wallace, 151 Ariz., 368, 2d, 238, at 728P. at the court’s determination that (and the crime was “senseless” therefore heinous and de praved) part was based on the fact that the defendant “steadfastly justification maintains there was no reason or argued what he in a did”—this case where the defendant his remorse for the crime constituted a factor.

I Supreme must also conclude that the Arizona Court’s “cruelty” imposes construction of has become so broad that it meaningful no limits on the sentencer’s discretion. The Knapp, court in Ariz., State v. at 543, 562 P. 2d, 716, at ” “ “ dictionary regard ‘disposed used a definition to ‘cruel’ as pain esp. to inflict in wanton, insensate or vindictive man- might provided ner: starting point sadistic.’” This have limiting meaningfully for a construction that would have dis- tinguished egregious May- the most murders. This Court expressed apparent approval nard of a construction that would limit the circumstance to murders involv- ing physical S., “torture or serious 364; abuse.” 486 U. Godfrey Georgia, accord, (plurality opin- S., 446 U. at 431 ion). quarrel proposition And I have no with that a mur- preceded by der gratu- which is the deliberate infliction of suffering blameworthy itous is more than one which is not. 19 The particularly Court has identified repre other view, which, hensible support motives its will finding of heinousness or Martinez-Vlllaveal, depravity. See State Ariz. 702 P. 451. 2d (murder 670, 680 to demonstrate "manliness” reflects "a manifest disregard based"), principles upon for the fundamental nied, society which our cert. de (1985): 147, 162, 474 U. S. 975 State v. 139 Ariz. P. McCall. 2d (1983) (finding supported part by the fact that the mutilation of designed victims' bodies “was to be a 'message' to warn people"), other (1984). cert. S. 467 U. 1220 together, denied. Taken the state court's de indisputable cisions reflect the fact legitimate that there is no reason to murder, they commit provide principled but no basis for identifying the blameworthy killings. most 698 Supreme

The Arizona decisions, Court’s later however, “especially it clear that the made murder which is cruel” is exception. application the norm rather than the of this expanded any has been circumstance to cover murder experienced which the victim is shown to have fear or uncer tainty Supreme as to his ultimate fate.20"The Arizona Court required deliberately has not that the defendant must have delayed protracted killing purpose causing or anguish. required mental the victim Nor has court period uncertainty of fear or be of extended duration: The findings cruelty period court has made in cases where that explaining Indeed, was brief.21 the sorts of murder that especially would not be cruel, the Arizona repeatedly killings has referred to in which the victim was g., Beaty, conscious, see, e. Ariz., State v. 158 242, at 762 (“[T]o pain P. 2d, at 529 suffer distress, the victim must be conscious at the time the offense is committed. If the evi cruelty dence is inconclusive consciousness, on the factor of exist”), (1989),22 cannot cert. denied, 491 U. S. 910 and has explained “especially killing that the victim of an cruel” is “to instantly be contrasted with the individual who is killed with knowing happened.” out what Gillies, State v. 142 Ariz. (1984), 564, 570, 691 P. 655, 2d 661 denied, cert. 470 U. S. (1985). I 1059 do not believe that an factor 20See, g., Bracy, e. State v. 520, 464, 537, (1985), 145 Ariz. P. 703 2d 481 Carriger, denied, (1986); 142, 160, State v. 474 cert. U. S. 1110 143 Ariz. (1984), 991, (1985); denied, P. State 692 2d 1009 cert. 471 1111 U. S. v. Correll, Ariz., 480, 2d, 148 at 715 P. at 733. 21 Rossi, (“Before Ariz., See State 365, 2d, 706 P. at 377 defend shot, ant fired the fatal the victim against leaned his bedroom wall and defendant, me, pleaded with stating my money, you ‘You have shot what you more want?’ do This anguish”). evinces the victim’s mental Villafuerte, 22 See also State 323, 331, 42, 142 Ariz. 690 P. 2d denied, (1985); v. Harding, (1984), State 278, cert. 469 U. S. 137 Ariz. . (1984); denied, State 670 P. 2d cert. 465 U. S. v Zaragoza, 135 Ariz. denied, 63, 69, 22, 28, P. 2d cert. 462 U. S. 1124 requires only which that the victim be consciousand aware danger period killing his some measurable for before the oc provide “principled way distinguish curs can be said to to imposed, case, this many in which the death was from the Godfrey Georgia, it was cases which not.” (plurality opinion). entirely S.,U. at 433 And I am baffled by majority’s ag assertion that this construction of the gravating “virtually ante, circumstance is identical,” requirement physical to a of torture or serious abuse.23 majority asserting that, is correct in the absence of contrary, judge peti- evidence to the the trial who sentenced presumed tioner to death must be to have been aware of the statutory manner in which these terms had been construed Supreme judge’s familiarity the Arizona Court. That applicable precedents, possibly with the however, could not guide sentencing have to or channel served his discretion. body The entire of Arizona law, case like the bare words of principled provided way distinguish the statute, “no case” from other homicides where sentences were not imposed. Godfrey May- Under this Court’s decisions nard, the which standards the trial court sentenced Wal- constitutionally ton to death were deficient.

B Relying Mississippi, on Clemons 494 U. S. majority appellate may also contends that “a state court supports

itself determine whether evidence the existence properly circumstance as defined .... State, focusing uncertainty experienced by 23 The the fear on Powell prior shooting, to the “It without question asserts: that the victim suf death,” an excruciatingly fered and suggests ‘cruel’ that Powell's mental anguish equivalent Respondent was to “torture." Brief for 48-49. I do suffering, not minimize Thomas but noting Powell’s it bears that the State Jeffrey of Arizona penitentiary, seeks confine Walton its set date for execution, put his him to death. strange It seems State to sug gest that an individual been “tortured" contemplate has when he is made to prospect his own demise. sought give

[T]he Court has substance to operative we that its construction meets terms, and find requirements.” Ante, at 654. The Court constitutional sentencing procedure that, if even the trial-level thus holds satisfy Eighth Amendment, Walton’s the sentence to failed may appellate applying court, the stand because nevertheless satisfactory limiting independently construction, deter- especially the cruel. For three murder was inde- mined that accept pendent reasons, I conclusion. cannot (F)(6) prior decisions of the Ari If the factor and the guidance Supreme provide Court failed to sufficient zona judge, appellate the conclusionthat this court’s mur the trial within some narrow “cruel” not fell definition could der possibility balancing ag court, in the that the trial eliminate mitigating gravating circumstances, and had relied on factors lying this narrow definition. Affirmance of Walton’s outside only Supreme depends the on Arizona death sentence especially cruel, murder was determination this Court’s mitigating upon its conclusion factors but also that the did not aggravation. outweigh I view, those in adhere to the expressed separate opinion Clemons, in the in S.,U. at appellate joined, that an 756, which three other Justices incapable finding balancing aggravating and court is sufficiently mitigating in a that is factors manner reliable satisfy Eighth Indeed, the Amendment.-'24 Supreme hardly Court’s treatment of the record this case support provides for those of this Court—a Members bare majority would the task of now entrust sentenc —who ing appellate The state court’s tribunal. conclusion large especially part murder was based that the was cruel technically appellate reweighing Clemons dic 24Thediscussion vacated sentence but stated that re tum: The Court Clemons’ death on Mississippi Supreme reweigh might mand Court the valid limiting apply construction of circumstances or the chal lenged aggravating factor if it that under state law it concluded had S., at power to do so. U. 750-752. clearly

on its assertions that Powell “was so terrified they stopped [one assailants] time of tried to reas- they during sure him that would not hurt him” and that “begged final march into the desert the victim the defendant kill not to him.” 159Ariz., P. 2d, at 1033. The (which court’s discussion includes no citations to record support furnishes frail for the court’s characterization of the events), appears primarily misreading to be based on a appellate the State’s brief.25 Given the institutional limita- appellate generally, questionable tions of courts and the treatment of the facts the Arizona agree appellate sentencing I

case, cannot that the here was sufficiently Eighth reliable to meet the standards of the Amendment.26 Supreme The Arizona Court’s supported only first assertion is by the

following passage testimony from the Ramsey: of Sharold “Q. acting you pulled up pullout [Powell] How was after at the they and got out of the car?

“A. He was scared.

“Q. you How do know? I just

“A. don’t remember. I told him not to be scared because he App. wouldn’t hurt. . be . .” 24. The “begged statement that Powell the defendant not kill ap- him” pears entirely to be based on during taped Walton’s statement his interro- gation guy that “the told Rob accomplices], [one of Walton’s goes, he don’t ((inaudible)).” (Dec. me, anybody,

hurt I 15, don’t tell 1986, Tr. 82 p.m.). Court, In its Supreme asserted, brief to the Arizona the State without ride, “During record citation: Powell begged spare his abductors to him they keep money could his Appellee’s and car.” Answering Brief in 87-0022-AP, p. No. CR 50. That assertion was made more or less passing: argument cruelty the State’s on focused on Powell’s mental and physical suffering the shooting. Supreme opin- Arizona Court’s after begged ion asserts that Powell for his life when he and Walton were alone (rather beforehand). in during desert than the car ride There is not testimony one line supports the court’s statement. judge

26 Thetrial in this case found that Walton rather than Hoover had fired the fatal shot —an issue on which the evidence was conflicting and on jury Ariz., which apparently was unable agree. 592-593, See 159 at 2d, 769 P. at 1038-1039 (concurring opinion). In its brief to the Arizona (2) that, this Court stated insofar as the Clemons, Fed- appellate may concerned, is a state court eral Constitution whether a for itself sentence warranted determine sentencing proceeding the trial-level has been tainted when by supreme error. Whether the court of a constitutional possesses power, particular however, is a matter State Supreme has taken law.27 The obvi- of state ously positions question whether inconsistent on the trial- capital sentencing remand, necessitates a level error may appellate be cured whether the error court’s inde- Compare pendent Wallace, 151 Ariz., review. State v. at (“As finding at 239 we 369, 2d, 728 P. have set aside pecuniary gain, must now we allow the trial court another opportunity sentencing reweigh its to exercise discretion and factors”); remaining aggravating State v. (“Because Rossi, Ariz., 2d, 706 P. at 380 we be- judge wrong determining used the lieve the trial standard for applying mitigating factors, we must vacate defendant’s resentencing”); death sentence and remand for State v. McMurtrey, 71, 73, 143 Ariz. 691 P. 2d (“Because judge imposed upon the trial the defendant a more proof determining onerous burden of existence of miti- gating circumstances, the matter be will have to remanded resentencing”); 500, 516, State v. Ariz. Gillies, 135 P. Court, argued finding the State be reviewed should def- erentially ground that “[a]s on the the trial court is better situated to evidence, impact assess the its decision should not be overturned Appellee’s Answering Brief in absent abuse of discretion.” No. 87- 0022-AP, p. purport 48. The Court did not make an independent point: only determination on this It stated that “we find sub- support judge’s finding stantial the trial that the evidence defendant 586, Ariz., 2d, 159 killed the victim.” 769 P. at 1032. 27 Clemons, S., opinion at 754 (“Nothing See 494 U. in this is intended to convey appellate impression required that state are to or courts neces sarily engage reweighing analysis when should harmless error errors capital sentencing holding only proceeding. have occurred in a is Our constitutionally procedures permissible”). such are

703 (1983) (court 1007, 2d 1023 remanded for after resentencing three of four aggravating circumstances found the trial State v. Rockwell, were judge invalidated on with appeal), 161 5, 15-16, Ariz. 775 1069, (1989) (court P. 2d 1079-1080 in validated two of three aggravating circumstances and con cluded that the evidence mitigating outweighed the remain ing aggravating factor); State v. Poland, 144 Ariz. 388, 407, (1985) (“The 183, P. 2d that the finding murders were committed an ‘especially heinous, cruel or man depraved ner’ aside, is set but the as findings to the other aggravating circumstances are affirmed. No mitigating circumstances substantial sufficiently to call for leniency have been shown”); State James, 141, 148, Ariz. 685 P. 2d (court struck down one aggravating factor but upheld “[tjhere death sentence on the ground ag [another] gravating circumstance and no mitigating circumstances suf cert, ficiently substantial to call for leniency”), denied, 469 U. S. 990 (1984); State v. Blazak, 131 Ariz. 598, 604, 643 P. (one 2d 694, 700 factor invalidated, but death sentence upheld because “[e]ven the absence of this ag gravating circumstance, there are still enough aggravating circumstances”), circumstances that cannot be overcome mitigating (1982).28 t. denied, 459 U. S. 882 It simply cer is not clear whether the Arizona Supreme Court it regards self as having power to uphold capital sentence on the basis of its own comparison aggravating and cir mitigating cumstances when the sentencing judge has relied part upon an invalid aggravating factor. case, as in all cases, the Arizona Supreme performed “independent review” of the trial-level Smith, 491, 504, See also State v. 146 Ariz. 707 P. 2d

(“Our elimination of some aggravating factors in the mitigating absence of circumstances does not mandate a remand to the trial court for resentenc- added) cases). ing”) (emphasis (citing Where factors are ab sent, affirmance of the death sentence require does not reweighing and is properly more analysis. characterized as harmless-error

704 The Arizona consist

sentencing process. Supreme Court has maintained: “Unlike review of ently appellate non-capital crimes, our on review death is conduct duty penalty independent examination of record to determine State v. was properly imposed.” whether Schad, 557, 573, 366, 129 Ariz. 633 P. 2d cert. de (1982). nied, 455 U. The review independent per S. cases, by the Arizona Court how Supreme formed is different from as ever, quite appellate that “reweighing” term is used Clemons. The Arizona court’s review does from the that errors in trial-level proceed premise can be cured sentencing process Supreme the State that Court’s determination death is the appropriate penalty. Rather, historically review has been as an ad explained ditional level of for the a means of en protection defendant, that a trial sentence suring judge’s of death is subjected Richmond, See State 114 Ariz. rigorous scrutiny. 186, (1976) (“The 560 P. 2d gravity of the death penalty that we requires examine the record to deter painstakingly mine whether it has been cert. erroneously de imposed”), nied, U. S. 915 Under the trial law, Arizona is the sentencer, court review appellate court’s intended to trial-level ensure functions were properly out. Indeed, carried the Arizona Court has re Supreme sisted between its own analogies review and the independent initial trial-level “While have an sentencing process: we inde duty review, of we pendent perform court, it as an appellate not as a trial . . hold, court. . We therefore, is not a procedure single indivisible but instead re hearing, sembles a trial on the issue of life or death followed . . . .” State utilization this court’s appellate process Rumsey, (1983).29 166, 173, Ariz. 665 P. 2d 48, 55 To-

29 affirming judgment ease, the Arizona in that availability review, this Court appellate including stated that “the re weighing circumstances, make the [does not] appellate process part single continuing sentencing proceeding.

day’s majority Supreme indicates, however, that the Arizona independent may Court’s review serve as a substitute for a constitutionally adequate sentencing proceeding, trial-level despite Supreme the fact that the State Court not did believe any regarded that trial-level error had occurred and itself as affirming sentencing the decision of the lower court. Supreme possesses

Whether not the Arizona Court the power “reweigh” to in evidence order to cure trial-level purport error, it clear is that the court not did to exercise power suggest that in this case. The court did not that the (F)(6) judge’s finding trial circumstance was constitu- tionally suspect. Supreme The Arizona Court inde- made pendent determinations as to findings plainly

circumstances, but these were intended supplement replace findings rather than to the of the trial court. That this is a a distinction with difference should be present majority opinion

clear to the from this Court’s Mississippi, Caldwell v. 472 U. S. 320 In Caldwell by imposed jury we invalidated a sentence a which incorrectly only had been informed that its verdict was a ” constitutionally “recommendation. We stated that “it is im- permissible to rest death sentence aon determination made respon- a sentencer who has been led to believe that sibility determining appropriateness of the defend- ant’s death Id., rests elsewhere.” at 328-329. The same reasoning apply jury’s should here. Just as a sentence of may jury merely not if stand believed that it was recommending capital punishment, Supreme the Arizona independent appropriate Court’s determination that death is appellate cannot cure trial-level error if the court in- believed Supreme Court Arizona noted that its strictly appellate role is that anof court, Indeed, not a trial court. appeal no imprison- need be taken if life imposed, appellate ment is and the reweighing can only work to the defend- advantage." ant’s Arizona Rumsey, (empha- U. S. added). sis We also judge referred the trial as “the sole decisionmaker Id., proceeding.” at 211. affirming constitutionally correctly simply valid that it was judge. imposed the trial sentence accept majority’s if I that even could conclusion

Thus, resentencing appellate can cure constitutional defects agree procedure, I not the Arizona could that trial-level power purported has here. exercise despite may stand, death sentence Walton’s To conclude sentencing process, trial-level it defects constitutional say enough majority to the Constitution for the appellate reweigh permits court to valid a state majority prepared be factors. The must also assurance that the Arizona Su- assert with reasonable to preme would have chosen to affirm the death sen- Court recognized reweighing own if it had on the basis its tence procedure the trial-level was defective. Given Ari- that the reweighing issue, appellate inconsistent treatment the zona court’s possible. holding is the assertion that no such independent if can save the sentence even the court’s review guidance, majority judge af- trial received insufficient the Supreme that never firms a decision the Court made. appellate resentencing if I that could Even believed Supreme error, trial-level and that the Arizona cure properly regarded case, be as the I can sentencer petitioner’s be conclude that sentence must va- would still (F)(6) by aggravating factor, The as construed the cated. sweeps broadly that it Court, so includes State every appellate virtually its reach homicide. within statutory provides language simply application of the court’s meaningful as Walton can basis on which defendant such no singled out for death. be by my imposed that the the

Indeed, conclusion sentence necessarily my appellate is almost from court invalid follows sentencing constitutionally that the trial-level was belief The defective nature trial court’s sentence flawed.30 judge only that the murder The one difference is that the trial found heinous, manner,” extremely depraved “in an was committed cruel or from did not stem the failure to abide judge’s limitations announced Arizona Supreme Court. Rather, trial-level sentencing procedure was defective because, even trial assuming judge correctly applied the relevant those precedents, decisions failed to had articulate a constitu- sufficient tionally construction of the narrowing statutory In the two language. years between the trial court’s imposi- tion of sentence and its affirmance, own the Arizona Supreme (F)(6) Court did purport to narrow the scope of the ag- factor. It gravating is therefore difficult to how any see trial-level error could have been cured by the appellate of the same court’s rules application legal trial judge is to have presumed followed. concedes,

The majority must, as it that the lan- statutory guage under Godfrey May- unconstitutionally vague nard. The majority therefore recognizes validity (F)(6) factor depends upon given construction it by the Arizona Supreme Court. I do not see how the adequacy of that construction can be other determined than through — examination of the body of state-court precedents exami- nation that the majority declines conspicuously to undertake.

Because Arizona the Court has Supreme utterly failed to place meaningful limits on of application the this aggravating (F)(6) factor, a sentence based in the part upon circumstance should not stand.31 ” appellate specified

while the court the If that was “cruel. the Ar- murder Supreme prior placed izona Court’s had meaningful decisions limits on the “cruelty,” fact, concept might significant. of that be In difference how- ever, “cruelty” the state court’s placed significant construction of has no the constraints on sentencer’s discretion —whether the sentencer is the judge Supreme trial Arizona or the itself. (F)(6) of the particularly breadth circumstance unfortunate in statutory defendant, light requirement to avoid the order penalty, must “sufficiently demonstrate factors substan leniency.” tial to call for The presumption triggered of death is whenever found; an aggravating circumstance is expan- Court's

HH t—I I—I majority very this Court se- same of Earlier this Term corpus regime verely of federal habeas restricted the safeguard rights previously helped the constitutional had including capital those accused of defendants, criminal (1990); McKellar, 494 U. S. 407 crimes. See Butler Saffle (1990). Today majority serves Parks, 494 U. S. 484 longer expect capital no should from notice that defendants of their a considered examination this Court on direct review adjudicating that will mean claims constitutional claims. elsewhere, inmates Arizona and life or death for convicted majority perfunctory only to recon- the most effort makes prior Eighth ju- holding its Amendment cile with this Court’s majority any recognition risprudence. display Nor does the constitutionality concerning decision of State’s may require understanding capital punishment scheme actually operates. the manner that scheme which Perhaps majority grown weary explicat- has current ing hyper- regard what some no doubt choose to as Members currently govern technical rules that the administration of penalty. Certainly hoped the death it is to be that States scrupulously protect rights will constitutional prospect meaningful defendants even without the oversight. federal wishes, however, Good are no for this substitute Today’s careful Court’s review. decision is either an abdica- repudia- role, tion of the Court’s constitutional it is a silent previously legal principles. tion of settled I dissent.

Justice Stevens, dissenting. join sepa-

IWhile I write dissent, Blackmun’s Justice rately holding to dissent from the Court’s in Part II and to opinion. comment on Justice Scalia’s (F)(6) aggravating factor ensures circum-

sive construction of the that an virtually plausibly any stance can be discovered murder.

709 H person opinion II a is its Part The holds Court jury must be es- of facts that to a determination not entitled penalty may imposed. I am be the death tablished before opposite requires the Amendment that the Sixth convinced conclusion. 13-1105(0 (1989) § provides that Ann. Rev.

Arizona Stat. premeditated first-degree mur includes both murder, which by impris felony “punishable life death or murder, is der 13-703(B) §13-703.” by provided re Section as onment first-degree guilt quires, established, is murder after any statutory ag hearing judge if to determine conduct a mitigating gravating exist. State circumstances or aggravating any proving the existence of bears the burden under the Arizona admissible evidence circumstance 13-703(E) 13-703(C). § then Section Rules of Evidence. explained: provides, has as the Arizona statutory aggravating are circumstances “Where none penalty. prohibits present, the death our statute be found to statutory aggravating is circumstance or more one Where requires mitigation the statute exists, no found, and aggravating penalty. cir both Where judge, given the trial case, in a are found cumstances miti whether review, must determine court on then this ‘sufficiently to call gating substantial are circumstances Gretzler, 659 P. 2d leniency.’” 42, 55, 135 Ariz. State v. (citations omitted), denied, U. S. cert. highest by Arizona’s law, as construed Thus, under punishable sen first-degree a death is murder court, statutory circumstance one tence until least proved.1 has been “separate penal are not aggravating circumstances Arizona’s Although (1986) (double Arizona, offenses,” 476 U. Poland S. ties capital mur statutory they as “elements” of challenge), operate

jeopardy absence, sentence unavail because their under Arizona law der Pennsylvania, and 13-703. Cf. McMillan §§ 13-1105 able under 710 sentencing judge aggravating case, found two petitioner

circumstances: that committed the offense “as con- receipt, expectation receipt, sideration for the or in of the anything pecuniary value” and that he committed it especially depraved “in heinous, cruel or manner.” Ariz. (F)(6) (1989).2 §§13-703(F)(5), Rev. Stat. Ann. At issue is question findings petition- the narrow whether these about er’s commission of the are, offense under law, ele- capital a ments of crime and therefore must be determined jury. a question posed

If this had been in 1791, when the Sixth Amendment law, became the answer would have been clear. By time, English jury’s determining

“the role critical facts in jury homicide cases was entrenched. fact-finder, As power only had the to determine not whether the de- guilty degree fendant was of homicide but also the of the (1986) 79, (5-year U. S. required upon minimum term finding by sen- tencing court “awas within range already available to it with- special finding”); Bullock, (1986) out the 376, (re- Cabana v. 474 U. S. quiring finding a comply of intent to Eighth with the Amendment does not any offense). establish new element of the State’s capital of a definition 2This long distinguished Court has jury’s a determination of “whether guilty having defendant is engaged in certain criminal conduct” from a sentencing judge’s consideration of “the possible fullest information con cerning the defendant’s life York, and characteristics.” Williams New 241, 337 U. S. 246-247 aggravating Both of the circumstances in itself, this case concern the offense Indeed, not the offender. the Arizona findings courts’ aggravation entirely rested on evidence that had been presented jury to the during guilt phase trial; the Arizona Su preme disregarded only testimony aggravation about offered at (Jan. the sentencing hearing 1987); as 26-27, irrelevant. Tr. 159 Ariz. 571, (1989) 587, 1017, 769 P. 2d (testimony about victim shooting after did not cruelty). Florida, bear on Spaziano Cf. 468 U. S. (1984) (after jury a Florida life, sentencing recommended judge found de felony fendant’s factor); record was an aggravating Florida, Hildwin v. curiam) (after 490 U. S. (per jury a Florida recommended death, sentencing judge felony found defendant’s record and status as a prisoner factors). at the time of the crime were finding jury’s role Moreover,

offense. facts eligibility would homicide determine defendant’s particularly punishment was well established. jury history, Throughout determined which homi- its subject punishment be to cide defendants would many by making related of which determinations, factual the state of mind. to of defendant’s difficult assessments adopted, jury’s By Rights the Bill of was the time the unquestioned.”3 right was to make these determinations question Similarly, had in this if arisen when this by jury prosecu- guarantee in criminal of trial Court held the petitioner binding I States, do not doubt tions on the eloquent again prevailed. would have Justice White’s opinion Louisiana, in S. for Duncan U. the Court history meaning of the Sixth to the and was faithful Amendment: history by jury in has been of trial criminal cases

“The present purposes frequently to It sufficient for told. is jury say by written, Constitution was the time our England in in had been existence trial in criminal cases impressive credentials and carried for several centuries preservation by many Magna Its and Carta. traced arbitrary protection against proper operation rule as a revolutionary objectives major among were the expressed and in the Declaration which was settlement 3 White, Scope Capital Penalty: and Death The of Fact-Finding Trial, Jury L. Rev. 10-11 65 Notre Dame Right Defendant’s added). (footnote omitted; right jury The trial in criminal emphasis difficulty and because “‘in times of strongly guarded matters was most partiality and of apprehended from the violence danger, more is to be Crown, subject, king and appointed judges by the suits between ” Id., (quoting disputes one and at 10 than between individual another.’ (1769)). Blackstone, prac For a view earlier 4 W. Commentaries Homicide, tices, Green, Jury Law of generally English and the see 1200-1600, L. Rev. 413 74 Mich. Rights century Bill of 18th 1689. Blackstone could write: wisely placed strong law has

“‘Our therefore this and presentment by jury, barrier, two-fold of a and a trial people prerogative between liberties of the and the necessary, preserving the crown. It was the ad- mirable balance constitution, of our to vest the executive power yet prince: power might laws dangerous very be destructive to if constitution, by justices oyer exerted without control, check or occasionally might terminer the crown; named who Turkey, imprison, dispatch, then, as France or any government, man exile that was obnoxious to the pleas- an instant declaration that such their will and English ure. But the founders of the have, law with excellent every forecast, . contrived that. . the truth of preferred shape accusation, whether in the of indict- appeal, ment, information, or should afterwards be con- suffrage firmed the equals unanimous of twelve of his neighbors, indifferently superior and chosen and all suspicion.’

“Jury English trial came to America with colonists, strong support and received from them. guarantees jury

“The of trial in the Federal and State profound judgment way Constitutions reflect a about the justice in which law should be enforced and adminis- right jury granted A tered. trial is to criminal de- prevent oppression by fendants order to the Govern- ment. Those who wrote our constitutions knew from history experience necessary protect that it was against charges brought unfounded criminal to eliminate against judges responsive enemies and too to the voice higher authority. The framers of the constitutions independent judiciary strove to create an but insisted upon protection against arbitrary further action. Pro- viding right accused with the jury to be tried peers gave safeguard his him against an inestimable corrupt prosecutor against or overzealous compliant, judge. biased, or eccentric If the defendant preferred judgment jury common-sense of a to the perhaps sympathetic more tutored but less reaction of single judge, Beyond he was to have it. this, the jury provisions trial in the Federal and State Constitu- tions reflect a fundamental decision about the exercise of power plenary official powers reluctance to entrust —a liberty over the life judge of the citizen to one or to group (footnotes judges.” a omitted). Id., at 151-152, 155-156 Duncan, Since this Court has held that a death sentence may imposed by under judge, Florida law be rather than a jury, Spaziano Florida, 468 U. S. 447 and has held judge may that a make a factual determination that mandates imposition of a range minimum sentence within the noncapital certain Pennsylvania, offenses, McMillan v. (1986). By stretching

U. S. 79 sentencing the limits of by judges exposed determinations that are made to “the higher authority,” voice of these decisions have encroached upon factfinding long function that has so been entrusted jury.4 distorting to sentencing Further function to Louisiana, Duncan v. 391 U. S. Although the 18th- century English longer upon ruler no bears judges, today our the “voice higher authority” to which judges elected appear too often to listen is that of many generally voters who capital punishment favor but who have far particular less information about a jurors trial than the who have patiently sifted through the details of the relevant and admissible evi dence. How else do we account for the disturbing propensity of elected judges impose the death sentence time notwithstanding after time a jury’s Florida, I recommendation of life? have been that in advised where jury provides advisory imposes sentence before judge sentence in capital case, (1989), a §921.141 Fla. Stat. judges imposed death over a jury recommendation of life in 125 of the 617 death sentences entered be Radelet, tween December 1972 and December 1989. See Rejecting also 714

encompass findings necessary of factual elements to establish product capital unhappy gradual offense is the of the “in- a spread” precedents, “to and these the utter disuse crease questions juries in of the most momentous concern.”5 Spaziano in if the unfortunate and Even decisions McMillan step just today, one short of the stride the fell Court takes it change too late to our course and follow is not the wise and spoke inspiring voice that for the in Duncan v. Louisiana.

II separate opinion in Scalia Justice announces regard he will not v. henceforth Woodson North Carolina, Louisiana, Roberts v. S. 280 (1976), 428 U. 428 S.U. Godfrey Lockett Ohio, U. (1978), S. 586

Georgia, adopting and other cases their 446 U. 420 (1980), S. reasoning binding precedent. major premise as The for this rejection sentencing jurisprudence pro of our his inability to fessed ing reconcile those cases with the central hold (1972).6 Georgia, Although in Furman v. 408 U. S. 238 Imposition Florida, Jury: Penalty of the Death 18 C. D. L. U. (1985)(judges likely Rev. juries imposition are more than to favor sentence). of a death subsist, the liberties of England “So that cannot but long so as this palladium inviolate, only remains sacred and from open 'attacks, all (which make) hardy none will be so as to but from all also secret machina tions, may sap it; by introducing which and undermine new arbitrary trial, by justices peace, revenue, methods of the commissioners of the and courts conscience. And may appear however convenient these (as first, executed, arbitrary powers, doubtless all well are the most con venient) yet again remembered, delays, let it be inconve little justice, price in the forms of niences are the that all free pay nations must liberty matters; for their more upon substantial that these inroads sacred nation fundamentally opposite bulwark are spirit to the of our constitution; that, though trifles, precedent begun may gradu ally spread, juries increase and questions the utter disuse of Blackstone, most concern.” momentous W. 343-344 Commentaries has Furman been mandating characterized as that “where discretion is body sentencing on grave afforded a matter so as the determination of opinion,7it is at in Justice Scalia’s there are other flaws simply why major premise explain appropriate his least wrong. rejects today categorically cases that Justice Scalia theory in of arbitrariness condemned that the risk

rest on the per- of the class of convicted of the size Furman is a function penalty. eligible When Furman for the death are sons who virtually Georgia con- included all defendants decided, was robbery, kidnaping, rape, and first- armed victed of forcible opinions degree in Furman ob- in that class. As murder large race and other irrelevant class of cases served, unacceptable played unquestionably in deter- role factors mining die and which would live. would which defendants spared, that must be be taken or discretion whether a human life should arbitrary wholly as to minimize the risk of suitably and limited so directed (joint Georgia, 428 S. capricious Gregg v. U. action.” JJ.). Stevens, Stewart, Powell, and opinion of Scalia incorrectly holdings that our Justice example, assumes For Carolina, (1976), v. Louisi and Roberts 428 U. S. Woodson North mandatory ana, entirely death rest on the view 428 U. S. 325 supported the pose risk of arbitrariness that penalty the same statutes ante, See at Georgia, in Furman v. 408 U. S. decision Court’s fact, only grounds three for was one of the 671-672. that consideration mandatory statutes. See and Louisiana invalidating the North Carolina Scalia ironi Justice S., (plurality opinion). Woodson, at 288-305 428 U. supporting our conclusion cally a more traditional reason overlooks Woodson, mandatory imposition of against consensus growing societal penalty: the death States history mandatory penalty statutes the United “The persons convicted practice sentencing to death all that the

thus reveals unworkably unduly rejected as harsh and particular has been offense decency respect- evolving standards of crucial indicators of rigid. The two society jury punishment in our determinations imposition of ing the — point conclusively repudiation to the auto- legislative enactments —both Id., at 292-293. matic death sentences." humanity underlying respect “fundamental held that the We further requires of the character . . . consideration Eighth Amendment particular of the and the circumstances the individual offender record of inflicting indispensable part process constitutionally as a offense Id., 304. of death." may However, the size of the class be narrowed to reduce sufficiently jury that risk of arbitrariness, if even is then given complete mercy evaluating discretion to show when individual characteristics of the few individuals who have eligible. been found death empirical study

The elaborate administration of Georgia’s capital sentencing statute that the Court consid McCleskey Kemp, (1987), ered 481 U. S. 279 il further validity theory. my opinion lustrates the of this In in that case I observed: study

“One of the lessons of the Baldus is that there exist categories extremely certain serious crimes for which prosecutors consistently juries consistently seek, and impose, penalty regard the death without to the race of the victim or the Georgia race of the offender. If were death-eligible to narrow the class of defendants to those categories, danger arbitrary discriminatory imposition penalty of the death significantly would be if decreased, (dissenting eradicated.” Id., opinion). Georgia Supreme

The concept Court itself understood the apparently that Justice has missed. In Zant v. Ste- Scalia phens, quoted following 462 U. S. 862 excerpt we opinion analogizing governing from its the law homicides Georgia pyramid: to a

“ every ‘All category cases of homicide are contained pyramid. consequences within flowing to the perpetrator severity proceed increase in as the cases apex, penalty from the base of the apply- with the death ing only to those few cases which are contained in the space just apex. category beneath the To reach that pass through planes case must three of division between apex. the base and the “ plane ‘The separates first of division above the base from all category homicide cases those which fall into the plane legislature of murder. This is established defining voluntary terms murder, statutes such as involuntary justifiable manslaughter, manslaughter, and deciding given whether a homicide. case falls above plane, below this function of the trier of facts is finding plane limited to facts. The remains fixed unless by legislative act. moved separates plane

“‘The second from all murder cases possible punish- those which the of death is a plane by statutory ment. This is established definitions circumstances. The function of the again making factfinder is limited to a determination of Except whether certain facts have been established. hijacking, given treason or where there is aircraft case may plane not move above this at second unless least one statutory aggravating circumstance Code Ann. exists. §27-2534.1(c). “ separates, plane in ‘The third from all cases which a penalty may imposed, in of death be cases which it those imposed. shall There be is an absolute discretion the any place given plane the factfinder to case below and impose plane not death. itself established the is establishing plane, In the factfinder. the factfinder con- mitigation ag- siders all evidence and extenuation, §27-2503 gravation punishment. Code Ann.

§ imposition There is a final the 27-2534.1. limitation on penalty resting appeal pro- the death the automatic penalty cedure: This court determines whether the imposed passion, preju- under the death was influence of any arbitrary dice, factor; other the statu- whether tory supported circumstances are the ev- whether the sentence is excessive or idence; of death penalty disproportionate imposed to the in similar cases. § may Code Ann. 27-2537. Performance this function penalty to remove a death cause this court case from the category opposite can never have result. but the purpose statutory aggravating

“‘The circum- large degree, completely, is to stances limit but not factfinder’s at discretion. least one the Unless ten statutory aggravating exists, circumstances the death may penalty imposed any not be event. If there exists statutory aggravating least one at circumstance, may penalty imposed be but factfinder has a giving any to decline discretion to do so without reason. (1981); State, 248 Ga. E. 355, Waters 283 S. 2d 369, (1977); State, 327, Hawes Ga. 240 S. E. 2d Fleming v. State, Ga. 240 S. E. 2d 37 making penalty, the decision as to the the factfinder takes into consideration all circumstances before it from both guilt-innocence phases and the sentence of the trial. These circumstances relate both to offense defendant. “ may pass plane ‘A case the second into that area in which the death is authorized unless least statutory aggravating one circumstance is found. How- plane passed regardless ever, this of the number of statutory aggravating long found, circumstances so as plane, beyond is at least there one. Once the case the area enters in discretion, factfinder’s which all facts and determine, circumstances of the case in metaphor, passes of our terms whether not the case plane pen- third and into which the area in the death imposed.’ alty 99-100, Ga. 2d 1, S. E. 3-4 (1982).” Id., at 870-872. ignores the difference between the base of

Justice Scalia pyramid apex. unguided and its A rule that forbids dis- completely at the base is cretion with consistent one that re- quires apex. narrowing at the discretion After the class of tip pyramid, appropriate cases those it is then mercy to allow sentencer discretion to show on in- based dividual circumstances in the cases that remain. Perhaps specific particular a rule that allows the facts of cases to make the difference between life and death—a rule case-by- that is consistent with the common-law tradition adjudication provides certainty legislative case less than — guidelines speci- mandate the death whenever guidelines nicely fied conditions are met. Such would fit in a Napoleonic ap- drafted in Code accord with continental proach legal to the formulation of rules. However, this Na- long experience mandatory tion’s with death sentences—a history length opinion recounted at in our Woodsonand en- tirely ignored by today reject us led Justice Scalia —has approach such I adopted rules. remain convinced that the by this Court Weems v. States, United 217 U. S. 349 (1910), Trop Dulles, 356 U. S. 86 followed myself Stewart, Justice Powell, Justice repeatedly only thereafter endorsed Court, is not just, reactionary wiser, position but far more than the es- poused by today. Justice Scalia notes inadequate guidance to a death sentence because validated Godfrey, Maynard, supra, at sentencer, see 362-364; repeatedly supra, incanted the have but we 428-429, 433, unacceptable, Penry principle that “unbridled discretion” Lynaugh, (1989), sentenc- 492 U. S. v. 302, guide ing procedures dis- must sentencer’s constrain penalty meted out ar- “that the death is not to ensure cretion bitrarily capriciously,” Ramos, v. 463 U. S. California rational crite- must establish that “the State (1983), 992, McCleskey judgment,” that narrow the decisionmaker’s ria penalty Kemp, (1987), that “death stat- v. 481 U. S. penalty prevent [must] from be structured so as to utes arbitrary unpredictable being fash- in an administered that our Brown, S. ion,” U. California require “procedural protections that the ... to ensure cases imposed consistent, man- in a rational will be Barclay Florida, 463 U. S. (1983) (Ste- ner,” 939,

Notes

notes “purport[ed] itself

Case Details

Case Name: Walton v. Arizona

Court Name: Supreme Court of the United States

Date Published: Aug 30, 1990

Citation: 497 U.S. 639

Docket Number: 88-7351

Court Abbreviation: SCOTUS