Lead Opinion
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III and IV, in which The Chief Justice, Justice O’Connor, and Justice Kennedy joined.
At issue in this case is the validity of the death sentence imposed by an Arizona trial court after a jury found petitioner Jeffrey Walton guilty of committing first-degree murder.
The Arizona statutes provide that a person commits first-degree murder if “[ijntending or knowing that his conduct will cause death, such person causes the death of another with premeditation” or if in the course of committing certain specified offenses and without any mental state other than what is required for the commission of such offenses, he causes the death of any person. Ariz. Rev. Stat. Ann.
I
Petitioner Walton and his two codefendants, Robert Hoover and Sharold Ramsey, went to a bar in Tucson, Arizona, on the night of March 2, 1986, intending to find and rob someone at random, steal his car, tie him up, and leave him in the desert while they fled the State in the car. In the bar’s parking lot, the trio encountered Thomas Powell, a young, off-duty Marine. The three robbed Powell at gunpoint and forced him into his car which they then drove out into the desert. While driving out of Tucson, the three asked Powell questions about where he lived and whether he had any more money. When the car stopped, Ramsey told a frightened Powell that he would not be hurt. Walton and Hoover then forced Powell out of the car and had him lie face down on the ground near the car while they debated what to do with him. Eventually, Walton instructed Hoover and Ramsey to sit in the car and turn the radio up loud. Walton then took a .22 caliber derringer and marched Powell off into the desert. After walking a short distance, Walton forced Powell to lie down on the ground, placed his foot on Powell’s neck, and shot Powell once in the head. Walton later told Hoover and Ramsey that he had shot Powell and that he had “never seen a man pee in his pants before.” Powell’s body was found approximately a week later, after Walton was arrested and led police to the murder site. A medical examiner determined that Powell had been blinded and rendered unconscious by the shot but was not immediately killed. Instead, Powell regained consciousness, apparently floundered about in the
A jury convicted Walton of first-degree murder after being given instructions on both premeditated and felony murder. See Ariz. Rev. Stat. Ann. § 13-1105 (1989). The trial judge then conducted the separate sentencing hearing required by §13-703(B). The State argued that two aggravating circumstances were present: (1) The murder was committed “in an especially heinous, cruel or depraved manner,” § 13-703(F)(6), and (2) the murder was committed for pecuniary gain. § 13-703(F)(5). In mitigation Walton presented testimony from a psychiatrist who opined that Walton had a long history of substance abuse which impaired his judgment, see § 13-703(G)(1), and that Walton may have been abused sexually as a child. Walton’s counsel also argued Walton’s age, 20 at the time of sentencing, as a mitigating circumstance. See § 13-703(G)(5). At the conclusion of the hearing, the trial court found “beyond any doubt” that Walton was the one who shot Powell. The court also found that the two aggravating circumstances pressed by the State were present. The court stated that it had considered Walton’s age and his capacity to appreciate the wrongfulness of his conduct, as well as all of the mitigating factors urged by defendant’s counsel. The court then concluded that that there were “no mitigating circumstances sufficiently substantial to call for leniency.” App. 61. See §13-703. The court sentenced Walton to death.
The Arizona Supreme Court affirmed Walton’s conviction and sentence.
Because the United States Court of Appeals for the Ninth Circuit has held the Arizona death penalty statute to be unconstitutional for the reasons submitted by Walton in this case, see Adamson v. Ricketts,
h-4 1 — 1
Walton’s first argument is that every finding of fact underlying the sentencing decision must be made by a jury, not by a judge, and that the Arizona scheme would be constitutional only if a jury decides what aggravating and mitigating circumstances are present in a given case and the trial judge then imposes sentence based on those findings. Contrary to Walton’s assertion, however: “Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.” Clemons v. Mississippi,
We repeatedly have rejected constitutional challenges to Florida’s death sentencing scheme, which provides for sentencing by the judge, not the jury. Hildwin v. Florida, 490
The distinctions Walton attempts to draw between the Florida and Arizona statutory schemes are not persuasive. It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge in Arizona.
Walton also suggests that in Florida aggravating factors are only sentencing “considerations” while in Arizona they are “elements of the offense.” But as we observed in Poland v. Arizona,
Our holding in Cabana v. Bidlock,
We thus conclude that the Arizona capital sentencing scheme does not violate the Sixth Amendment.
Ill
Also unpersuasive is Walton’s contention that the Arizona statute violates the Eighth and Fourteenth Amendments because it imposes on defendants the burden of establishing, by a preponderance of the evidence, the existence of mitigating circumstances sufficiently substantial to call for leniency. See Ariz. Rev. Stat. Ann. §§ 13-703(0 and 13-703(E) (1989). It is true that the Court has refused to countenance state-imposed restrictions on what mitigating circumstances may be considered in deciding whether to impose the death penalty. See, e. g., Lockett v. Ohio,
In Martin v. Ohio,
The basic principle of these cases controls the result in this case. So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency. Mullaney v. Wilbur,
Neither does Mills v. Maryland,
Furthermore, Mills did not suggest that it would be forbidden to require each individual juror, before weighing a claimed mitigating circumstance in the balance, to be convinced in his or her own mind that the mitigating circumstance has been proved by a preponderance of the evidence. To the contrary, the jury in that case was instructed that it had to find that any mitigating circumstances had been proved by a preponderance of the evidence. Id., at 387. Neither the petitioner in Mills nor the Court in its opinion hinted that there was any constitutional objection to that aspect of the instructions.
We therefore rеject Walton’s argument that Arizona’s allocation of the burdens of proof in a capital sentencing proceeding violates the Constitution.
IV
Walton insists that because § 13 — 703(E) provides that the court “shall” impose the death penalty if one or more aggravating circumstances are found and mitigating circumstances are held insufficient to call for leniency, the statute creates an unconstitutional presumption that death is the proper sentence. Our recent decisions in Blystone v. Pennsylvania,
Similarly, Boyde v. California, supra, upheld a pattern jury instruction which stated that “[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” See
V
Walton’s final contention is that the especially heinous, cruel, or depraved aggravating circumstance as interpreted by the Arizona courts fails to channel the sentencer’s discretion as required by the Eighth and Fourteenth Amendments. Walton contends that the Arizona factor fails to pass constitutional muster for the same reasons this Court found Oklahoma’s “especially heinous, atrocious, or cruel” ag
Maynard v. Cartwright and Godfrey v. Georgia, however, are distinguishable in two constitutionally significant respects. First, in both Maynard and Godfrey the defendant was sentenced by a jury and the jury either was instructed only in the bare terms of the relevant statute or in terms nearly as vague. See
When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge. Trial judges are presumed to know the law and to apply it in making their decisions. If the Arizona Supreme Court has narrowed the definition of the “especially heinous, cruel or depraved” aggravating circumstance, we presume that Arizona trial judges are applying the narrower definition. It is irrelevant that the statute itself may not narrow the construction of the factor. Moreover, even if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a
When a federal court is asked to review a state court’s application of an individual statutory aggravating or mitigating circumstance in a particular case, it must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer. If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient, /. e., whether they provide some guidance to the sentencer. In this case there is no serious argument that Arizona’s “especially heinous, cruel or depraved” aggravating factor is not facially vague. But the Arizona Supreme Court has sought to give substance to the operative terms, and we find that its construction meets constitutional requirements.
The Arizona Supreme Court stated that “a crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim’s death,” and that “[m]ental anguish includes a victim’s uncertainty as to his ultimate fate.”
In Maynard v. Cartwright, we expressed approval of a definition that would limit Oklahoma’s “especially heinous,
The Arizona Supreme Court’s construction also is similar to the construction of Florida’s “especially heinous, atrocious, or cruel” aggravating circumstance that we approved in Proffttt v. Florida,
Walton nevertheless contends that the heinous, cruel, or depraved factor has been applied in an arbitrary manner and, as applied, does not distinguish his case from cases in which the death sentence has not been imposed. In effect Walton challenges the proportionality review of the Arizona Supreme Court as erroneous and asks us to overturn it. This we decline to do, for we have just concluded that the challenged factor has been construed by the Arizona courts in a manner that furnishes sufficient guidance to the sentencer. This being so, proportionality review is not constitutionally required, and we “lawfully may presume that [Walton’s] death sentence was not ‘wantonly and freakishly’ imposed —
The judgment of the Arizona Supreme Court is affirmed.
It is so ordered.
Notes
Those factors are as follows:
“1. The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
“2. The defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.
“3. The defendant was legally accountable for the conduct of another under the provisions of § 13-303, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.
“4. The defendant could not reasonably have foreseen that his conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.
“5. The defendant’s age.” Ariz. Rev. Stat. Ann. § 13 — 703(G) (1989).
In the course of its opinion, the court also rejected Walton’s challenge, not repeated in this Court, that Hoover and not Walton actually shot Powell. The court pointed out that because the jury was instructed on both felony and premeditated murder but entered only a general verdict, the trial court was required under Arizona law to independently make the determination mandated by Enmund v. Florida,
The court argued that Powell must have realized as he was being driven out of Tucson into the desert that he might be harmed, and the court pointed out that Powell was obviously frightened enough that Ramsey tried to reassure him that he would not be harmed. Then, the court noted, Walton and Hoover forced Powell to lie on the ground while they argued over his fate, and eventually Walton marched Powell off into the desert with a gun but no rope, surely making Powell realize that he was not going to be tied up and left unharmed. The court further observed that Powell was so frightened that he urinated on himself. Id., at 586-587,
The court concluded that Walton’s reference to having “ ‘never seen a man pee in his pants before’ ” constituted evidence of “callous fascination
Concurrence Opinion
concurring in part and concurring in the judgment.
Today a petitioner before this Court says that a state sentencing court (1) had unconstitutionally broad discretion to sentence him to death instead of imprisonment, and (2) had unconstitutionally nairoio discretion to sentence him to imprisonment instead of death. An observer unacquainted with our death penalty jurisprudence (and in the habit of thinking logically) would probably say these positions cannot both be right. The ultimate choice in capital sentencing, he would point out, is a unitary one — the choice between death and imprisonment. One cannot have discretion whether to select the one yet lack discretion whether to select the other. Our imaginary observer would then be surprised to discover that, under this Court’s Eighth Amendment jurisprudence of the past 15 years, petitioner would have a strong chance of winning on both of these antagonistic claims, simultaneously — as evidenced by the facts that four Members of this Court think he should win on both, see post, at 677 (Blackmun, J., dissenting), and that an en banc panel of a Federal Court of Appeals so held in an essentially identical case, see Adamson v. Ricketts,
I
A
Over thecourse of the past 15 years, this Court has assumed the role of rulemaking body for the States’ administration of capital sentencing — effectively requiring capital sentencing proceedings separate from the adjudication of guilt, see, e. g., Woodson v. North Carolina,
In Furman, we overturned the sentences of two men convicted and sentenced to death in state courts for murder and one man so convicted and sentenced for rape, under statutes
The critical opinions, however, in light of the subsequent development of our jurisprudence, were those of Justices Stewart and White. They focused on the infrequency and seeming randomness with which, under the discretionary state systems, the death penalty was imposed. Justice Stewart wrote:
“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed .... [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique*659 penalty to be so wantonly and so freakishly imposed.” Id., at 309-310 (concurring opinion) (footnotes omitted).
Justice White took a similar view. In his opinion the death sentences under review violated the Eighth Amendment because “as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.” Id., at 313. “[Tjhere is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not,” ibid., so that it constitutes a “pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,” id., at 312. The opinions of both Justice Stewart and Justice White went out of the way to say that capital punishment was not in itself a cruel and unusual punishment, and that a mandatory system of capital sentencing, in which everyone convicted of a particular crime received that punishment, would “present quite different issues.” Id., at 310-311 (White, J., concurring); see also id., at 307-308 (Stewart, J., concurring).
Furman led at least 35 States to adopt new capital sentencing procedures that eliminated some of the discretion previously conferred to impose or withhold the death penalty. See Gregg v. Georgia, supra, at 179. In 1976, we upheld against Eighth Amendment challenge three “guided discretion” schemes representative of these measures, which, in varying forms, required the sentencer to consider certain specified aggravating and mitigating circumstances in reaching its decision. In the principal-case, Gregg v. Georgia, supra, the three-justice opinion announcing the judgment read Furman as “mandating] that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,” id., at 189 (joint opinion of Stewart, Powell, and Stevens,
Since the 1976 cases, we have routinely read Furman as standing for the proposition that “channelling and limiting . . . the sentencer’s discretion in imposing the death penalty” is a “fundamental constitutional requirement,” Maynard v. Cartwright,
B
Shortly after introducing our doctrine requiring constraints on the sentencer’s discretion to “impose” the death penalty, the Court began developing a doctrine forbidding constraints on the sentencer’s discretion to “decline to impose” it. McCleskey v. Kemp, supra, at 304 (emphasis deleted). This second doctrine — counterdoctrine would be a better word — has completely exploded whatever coherence the notion of “guided discretion” once had.
Some States responded to Furman by making death the mandatory punishment for certain categories of murder. We invalidated these statutes in Woodson v. North Carolina,
These decisions, of course, had no basis in Furman. One might have supposed that curtailing or eliminating discretion in the sentencing of capital defendants was not only consistent with Furman, but positively required by it — as many of the States, of course, did suppose. But in Woodson and Lockett, it emerged that uniform treatment of offenders guilty of the same capital crime was not only not required by the Eighth Amendment, but was all but prohibited. Announcing the proposition that “[cjentral to the application of the [Eighth] Amendment is a determination of contemporary standards regarding the infliction of punishment,” Woodson, supra, at 288, and pointing to the steady growth of discretionary sentencing systems over the previous 150 years (those very systems we had found unconstitutional in Fur-man), Woodson, supra, at 291-292, the pluralities in those cases determined that a defendant could not be sentenced to death unless the sentencer was convinced, by an unconstrained and unguided evaluation of offender and offense, that death was the appropriate punishment, id., at 304-305; Lockett, supra, at 604-605. In short, the practice which in Furman had been described as the discretiоn to sentence to death and pronounced constitutionally prohibited, was in Woodson and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required.
As elaborated in the years since, the Woodson-Lockett principle has prevented States from imposing all but the most minimal constraints on the sentencer’s discretion to decide that an offender eligible for the death penalty should nonetheless not receive it. We have, in the first place, repeatedly rebuffed States’ efforts to channel that discretion by
To acknowledge that “there perhaps is an inherent tension” between this line of cases and the line stemming from Furman, McCleskey v. Kemp,
The Court has attempted to explain the contradiction by saying that the two requirements serve different functions: The first serves to “narrow” according to rational criteria the class of offenders eligible for the death penalty, while the second guarantees that each offender who is death eligible is not actually sentenced to death without “an individualized assessment of the appropriateness of the death penalty.” Penry v. Lynaugh, supra, at 317; see also Zant v. Stephens,
C
The simultaneous pursuit of contradictory objectives necessarily produces confusion. As The Chief Justice has pointed out, in elaborating our doctrine “the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed.” Lockett v. Ohio, supra, at 629 (Rehnquist, J., dissenting). Repeatedly over the past 20 years state legislatures and courts have adopted discretion-reducing procedures to satisfy the Furma?i principle, only to be told years later that their measures have run afoul of the Lockett principle. Having said in Furman that unconstrained discretion in capital sentencing was unacceptable, see Furman v. Georgia,
In a jurisprudence containing the contradictory commands that discretion to impose the death penalty must be limited but discretion not to impose the death penalty must be virtually unconstrained, a vast number of procedures support a plausible claim in one direction or the other. Conscientious counsel are obliged to make those claims, and conscientious judges to consider them. There has thus arisen, in capital cases, a permanent floodtide of stay applications and petitions for certiorari to review adverse judgments at each round of direct and collateral review, alleging novel defects in sentencing procedure arising out of some permutation of either Furman or Lockett. State courts, attempting to give effect to the contradictory principles in our jurisprudence and reluctant to condemn an offender without virtual certainty that no error has been committed, often suspend the normal rules of procedural bar to give ear to each new claim that
In my view, it is time for us to reexamine our efforts in this area and to measure them against the text оf the constitutional provision on which they are purportedly based.
II
The Eighth Amendment, made applicable to the States by the Fourteenth Amendment, see Robinson v. California,
*670 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The requirement as to punishments stands in stark contrast to the requirement for bail and fines, which are invalid if they are “excessive.” When punishments other than fines are involved, the Amendment explicitly requires a court to consider not only whether the penalty is severe or harsh, but also whether it is “unusual.” If it is not, then the Eighth Amendment does not prohibit it, no matter how cruel a judge might think it to be. Moreover, the Eighth Amendment’s prohibition is directed against cruel and unusual punishments. It does not, by its terms, regulate the procedures of sentencing as opposed to the substance of punishment. As The Chief Justice has observed, “[t]he prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed.” Gardner v. Florida,
Our decision in Furman v. Georgia,
The Woodson-Lockett line of cases, however, is another matter. As far as I can discern, that bears no relation whatever to the text of the Eighth Amendment. The mandatory imposition of death — without sentencing discretion— for a crime which States have traditionally punished with death cannot possibly violate the Eighth Amendment, because it will not be “cruel” (neither absolutely nor for the particular crime) and it will not be “unusual” (neither in the sense of being a type of penalty that is not traditional nor in the sense of being rarely or “freakishly” imposed). It is quite immaterial that most States have abandoned the practice of automatically sentencing to death all offenders guilty of a capital crime, in favor of a separate procedure in which the sentencer is given the opportunity to consider the appropriateness of death in the individual case, see Woodson v. North Carolina,
I am awareof the argument, see id., at 302-303; Roberts v. Louisiana,
Despite the fact that I think Woodson and Lockett find no proper basis in the Constitution, they have some claim to my adherence because of the doctrine of stare decisis. I do not reject that claim lightly, but I must reject it here. My initial and my fundamental problem, as I have described it in detail above, is not that Woodson and Lockett are wrong,
The objectives of the doctrine of stare decisis are not furthered by adhering to Woodson-Lockett in any event. The doctrine exists for the purpose of introducing certainty and stability into the law and protecting the expectations of individuals and institutions that have acted in reliance on existing rules. As I have described, the Woodson-Lockett principle has frustrated this very purpose from the outset — contradicting the basic thrust of much of our death penalty jurisprudence, laying traps for unwary States, and generating a fundamental uncertainty in the law that shows no signs of ending or even diminishing.
I cannot adhere to a principle so lacking in support in constitutional text and so plainly unworthy of respect under stare decisis. Accordingly, I will not, in this case or in the future, vote to uphold an Eighth Amendment claim that the sentencer’s discretion has been unlawfully restricted.
Ill
I turn, finally, to petitioner’s Eighth Amendment claims in the present case.
As to petitioner’s claim that in two respects the Arizona procedure deprived the sentencer of discretion to consider all mitigating circumstances: For the reasons stated above I do not believe that claim, if correct, states an Eighth Amendment violation.
I therefore concur in part and concur in the judgment.
Justice Stevens contends that the purpose of Furman is merely to narrow the group of crimes (to which the sentencer’s unconstrained discretion is then applied) to some undefined point near the “tip of the pyramid” of murder — the base of that pyramid consisting of all murders, and the apex consisting of a particular type crime of murder defined in minute detail. Post, at 715-718 (dissenting opinion). There is, however, no hint in our Furman jurisprudence of an attempt to determine what constitutes the critical line below the “tip of the pyramid,” and to assess whether either the elements of the crime are alone sufficient to bring the statute above that line (in which case no aggravating factors whatever need be specified) or whether the aggravating factors are sufficient for that purpose. I read the cases (and the States, in enacting their post-Furman statutes, have certainly read them) as requiring aggravating factors to be specified whenever the sentencer is given discretion. It is a means of confining the sentencers’ discretion — giving them something specific to look for rather than leaving them to wander at large among all aggravating circumstances. That produces a consistency of result which is unachievable — no matter how narrowly the crime is defined — if they are left to take into account any aggravating factor at all. We have, to be sure, held that the discretion-limiting aggravating factor can duplicate a factor already required by the definition of the crime, see Lowenfield v. Phelps,
Dissenting Opinion
with whom Justice Marshall joins, dissenting.
The Court’s most cavalier application today of longstanding Eighth Amendment doctrines developed over the course of two decades of careful and sustained inquiry, when added to the host of other recent examples of crabbed application of doctrine in the death penalty context, see, e. g., Blystone v. Pennsylvania,
“The fatal constitutional infirmity in the punishment of death is that it treats ‘members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the [Cruel and Unusual Punishments] Clause that even the vilest criminal remains a human being possessed of common human dignity.’ As such it is a penalty that ‘subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause].’ I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. ‘Justice of this kind is obviously no less shocking than the crime itself, and the new “official” murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.’” Gregg v. Georgia,428 U. S. 153 , 230-231 (1976) (dissenting opinion) (citations and footnote omitted).
See also Furman v. Georgia,
Even if I did not believe that the death penalty is wholly inconsistent with the constitutional principle of human dignity, I would agree that the concern for human dignity lying at the core of the Eighth Amendment requires that a decision to impose the death penalty be made only after an assessment of its propriety in each individual case.
“A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons conviсted, of a designated offense not as uniquely individual human beings, but as members of*676 a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.” Woodson v. North Carolina,428 U. S. 280 , 304 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).
Thus “a system of capital punishment at once [must be] consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma,
In the past, “this Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” Id., at 118 (O’Connor, J., concurring). But today’s decisions reflect, if anything, the opposing concern that States ought to be able to execute pris
[This opinion applies also to No. 89-189, Lewis v. Jeffers, post, p. 764.]
Justice Scalia’s separate opinion dismissing the settled principle underlying Lockett v. Ohio,
Dissenting Opinion
with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.
In my view, two Arizona statutory provisions, pertinent here, run afoul of the established Eighth Amendment principle that a capital defendant is entitled to an individualized sentencing determination which involves the consideration of all relevant mitigating evidence. The first is the requirement that the sentencer may consider only those mitigating circumstances proved by a preponderance of the evidence. The second is the provision that the defendant bears the burden of establishing mitigating circumstances “sufficiently substantial to call for leniency.” I also conclude that Arizona’s “heinous, cruel or depraved” aggravating circumstance, as construed by the Arizona Supreme Court, provides no meaningful guidance to the sentencing authority and, as a consequence, is unconstitutional.
I therefore dissent from the Court’s affirmance of Jeffrey Alan Walton’s sentence of death.
I
During the past 15 years, this Court’s death penalty jurisprudence consistently has stressed the importance of an individualized-sentencing process, one that permits “the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.” Woodson v. North Carolina,
From those holdings two closely related principles emerge. The first is that the “qualitative difference” between death and all other penalties necessitates a greater degree of “reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina,
The Court today upholds an Arizona statute which (a) excludes from the sentencer’s consideration all mitigating circumstances that the defendant has failed to prove by a preponderance of the evidence, and (b) places upon the capital defendant the burden of demonstrating that the mitigating circumstances so proved are “sufficiently substantiаl to call for leniency.” The plurality makes no effort to explain how these provisions are consistent with the Eighth Amendment principles announced in Woodson, Lockett, and their progeny.
A
The Arizona capital sentencing statute flatly provides: “[T]he burden of establishing the existence of the [mitigating] circumstances included in subsection G of this section is on the defendant.” Ariz. Rev. Stat. Ann. §13-703(0 (1989). The Arizona Supreme Court has construed the statute to require that any mitigating circumstances must be proved by a preponderance of the evidence. See, e. g., State v. McMurtrey,
The plurality does not analyze this case within the framework established by our Eighth Amendment decisions. Rather, the plurality relies almost exclusively on noncapital cases upholding the State’s right to place upon the defendant the burden of proving an affirmative defense. See ante, at 650. Reliance on these cases is misplaced, however, since those decisions rest upon a premise that is wholly inapplicable in the capital sentencing context. In Patterson v. New York,
“The Due Process Clause, as we see it, does not put New York to the choice of abandoning those defenses or un*681 dertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.
. . [I]n each instance of a murder conviction under the present law, New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.” Id., at 207-209 (emphasis added).
The Court’s decision thus rested upon an argument that “the greater power includes the lesser”: since the State constitutionally could decline to recognize the defense at all, it could take the lesser step of placing the burden of proof upon the defendant. That reasoning is simply inapposite when a capital defendant introduces mitigating evidence, since the State lacks the greater power to exclude the evidence entirely.
But it makes no sense to analyze petitioner’s claim of Lockett error by drawing on “analogous” cases outside the sphere of capital sentencing. In developing the requirement
Application of the preponderance standard in this context is especially problematic in light of the fact that the “existence” of a mitigating factor frequently is not a factual issue to which a “yes” or “no” answer can be given. See Stebbing v. Maryland,
Indeed, it appears that the Arizona Supreme Court has applied the statute in just this fashion. See, e. g., State v. Wallace,
Even when the trial judge’s rejection of a particular mitigating circumstance is based on credibility determinations, application of the preponderance standard is unwarranted. Mitigating evidence that fails to meet this standard is not so unreliable that it has no proper place in the sentencing decision: Decisions as to punishment, like decisions as to guilt or innocence, will often be based on the cumulative effect of several pieces of evidence, no one of which by itself is fully persuasive. The problems with the preponderance standard are compounded when the defendant presents several possible mitigating factors. A trial judge might be 49% convinced as to each of 10 mitigating circumstances; yet he would be forced to conclude, as a matter of law, that there was no mitigation to weigh against the aggravating factors.
The Arizona Supreme Court has articulated two closely related justifications for placing upon the capital defendant the burden of proving that a mitigating circumstance exists. The court has asserted that “[f ]acts which would tend to show mitigation are peculiarly within the knowledge of a defendant,” State v. Smith,
The State’s justifications are not without force when a criminal defendant offers an affirmative defense in a trial to determine guilt or innocence. A jury’s decision as to an affirmative defense is a binary choice: either the defense is accepted or it is not. Since the jury’s acceptance of the defense automatically results in an acquittal (or in conviction on a lesser charge), the State may suffer real prejudice if the defense is established on the basis of minimally persuasive evidence which the State has no practical opportunity to rebut — especially if it is difficult to anticipate the defenses that a particular individual may offer. In contrast, if a capital sentencer believes that certain mitigating evidence has some persuasive value, but does not meet the preponderance standard, the sentencer simply may give that evidence reduced weight — weight proportional to its persuasiveness — at the final balancing stage.
The Arizona rule at issue here falls well within the prohibition announced in Lockett and its progeny. The statute defines a wide range of relevant mitigating evidence — evidence with some degree of persuasiveness which has not been proved by a preponderance — that cannot be given effect by the capital sentencer. That rule finds no support in this Court’s precedents, and it serves no legitimate governmental interest. I therefore conclude that the Arizona death penalty statute, as construed by the Supreme Court of Arizona, impermissibly limits the sentencer’s consideration of relevant mitigating evidence, and thereby violates the Eighth Amendment.
B
I also believe that the Constitution forbids the State of Arizona to place upon the capital defendant the burden of proving mitigating circumstances that are “sufficiently substantial to call for leniency.” Ariz. Rev. Stat. Ann. § 13-703(E) (1989). Once an aggravating circumstance has been established, the Arizona statute mandates that death is to be deemed the appropriate penalty unless the defendant proves otherwise. That statutory provision, in my view, establishes a “presumption of death”
The plurality takes a hard-line approach and makes little effort to ground its holding on our Eighth Amendment jurisprudence. In support of its position, the plurality cites only two very recent capital cases, Blystone v. Pennsylvania,
The plurality does not attempt to explain why Arizona may require a capital sentence in a case where aggravating and mitigating circumstances are evenly balanced.
Like the plurality’s analysis of the requirement that mitigating circumstances be proved by a preponderance of the evidence, its approval of this provision appears to rest upon an analogy between mitigating evidence in capital sentencing and affirmative defenses in noncapital cases. In noncapital cases, of course, the States are given broad latitude to sacrifice precision for predictability by imposing determinate sentences and restricting the defendant’s ability to present evidence in mitigation or excuse. If the States were similarly free to make capital punishment mandatory for specified crimes, and to prohibit the introduction of mitigating evidence or declare such evidence to be irrelevant, the plurality’s reasoning today would be unassailable. There then could be no objеction to a sentencing scheme which permitted a defendant to argue that the death penalty was inappropriate in his case, but placed upon his shoulders the burden of persuading the sentencer. This Court, however, repeatedly has recognized that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed,” Lockett v. Ohio,
II
In Godfrey v. Georgia,
The Arizona statute at issue today lists as an aggravating circumstance the conclusion that “[t]he defendant committed the offense in an especially heinous, cruel or depraved manner.” Ariz. Rev. Stat. Ann. § 13-703(F)(6) (1989) (the (F)(6) circumstance). The Arizona Supreme Court consistently has held that “[t]hese terms are considered disjunctive; the presence of any one of three factors is an aggravating circumstance.” State v. Beaty,
In sustaining Walton’s sentence of death, the majority offers two principal grounds upon which, it says, Godfrey and Maynard may be distinguished. First, the majority points out that capital sentencing in Arizona is conducted by a trial judge who is presumed to be aware of any limiting construction announced by the State Supreme Court. Ante, at 653. Second, the majority notes that the Arizona Supreme Court itself “purport[ed] to affirm the death sentence by applying a limiting definition of the aggravating circumstance to the facts presented.” Ibid. In my view, neither of these factors supports the Court’s decision to affirm petitioner’s death sentence.
Unlike a jury, a sentencing judge is presumed to know the law as stated in the controlling opinions of the State Supreme Court. Even if the aggravating circumstance is vague on its face, the sentence will be valid if the judge’s discretion has been suitably channeled by the “instructions” provided by the appellate court’s construction of the statute. The trial judge’s familiarity with the State Supreme Court’s opinions, however, will serve to narrow his discretion only if that body of case law articulates a construction of the aggravating circumstance that is coherent and consistent, and that meaningfully limits the range of homicides to which the aggravating factor will apply.
Had the majority examined the Arizona Supreme Court’s application of the “especially heinous, cruel or depraved” aggravating circumstance, it would have been hard pressed to conclude that the state court has placed meaningful limitations on the scope of the (F)(6) factor. The Arizona Supreme Court attempted to define the statutory terms in State v. Knapp,
In State v. Gretzler,
The principles announced in Gretzler have failed to place meaningful limitations on the application of the (F)(6) ag
Indeed, there would appear to be few first-degree murders which the Arizona Supreme Court would not define as especially heinous or depraved — and those murders which do fall outside this aggravating circumstance are likely to be covered by some other aggravating factor. Thus, the court will find heinousness and depravity on the basis of “gratuitous violence” if the murderer uses more force than necessary to kill the victim, see State v. Summerlin,
I must also conclude that the Arizona Supreme Court’s construction of “cruelty” has become so broad that it imposes no meaningful limits on the sentencer’s discretion. The court in State v. Knapp,
The majority is correct in asserting that, in the absence of evidence to the contrary, the trial judge who sentenced petitioner to death must be presumed to have been aware of the manner in which these statutory terms had been construed by the Arizona Supreme Court. That judge’s familiarity with the applicable precedents, however, could not possibly have served to guide or channel his sentencing discretion. The entire body of Arizona case law, like the bare words of the statute, provided “no principled way to distinguish this case” from other homicides where capital sentences were not imposed. Under this Court’s decisions in Godfrey and Maynard, the standards by which the trial court sentenced Walton to death were constitutionally deficient.
B
Relying on Clemons v. Mississippi,
(1) If the (F)(6) factor and the prior decisions of the Arizona Supreme Court failed to provide sufficient guidance to the trial judge, the appellate court’s conclusion that this murder fell within some narrow definition of “cruel” could not eliminate the possibility that the trial court, in balancing aggravating and mitigating circumstances, had relied on factors lying outside this narrow definition. Affirmance of Walton’s death sentence depends not only on the Arizona Supreme Court’s determination that this murder was especially cruel, but also upon its conclusion that the mitigating factors did not outweigh those in aggravation. I adhere to the viеw, expressed in the separate opinion in Clemons,
In this case, as in all capital cases, the Arizona Supreme Court performed an “independent review” of the trial-level
Whether or not the Arizona Supreme Court possesses the power to “reweigh” evidence in order to cure trial-level error, it is clear that the court did not purport to exercise that power in this case. The court did not suggest that the trial judge’s finding of the (F)(6) circumstance was constitutionally suspect. The Arizona Supreme Court made independent determinations as to aggravating and mitigating circumstances, but these findings were plainly intended to supplement rather than to replace the findings of the trial court. That this is a distinction with a difference should be clear to the present majority from this Court’s opinion in Caldwell v. Mississippi,
Thus, even if I could accept the majority’s conclusion that appellate resentencing can cure constitutional defects in the trial-level procedure, I could not agree that the Arizona Supreme Court has purported to exercise that power here. To conclude that Walton’s death sentence may stand, despite constitutional defects in the trial-level sentencing process, it is not enough for the majority to say that the Constitution permits a state appellate court to reweigh valid aggravating and mitigating factors. The majority must also be prepared to assert with reasonable assurance that the Arizona Supreme Court would have chosen to affirm the death sentence on the basis of its own reweighing if it had recognized that the trial-level procedure was defective. Given the Arizona court’s inconsistent treatment of the reweighing issue, no such assertion is possible. In holding that the appellate court’s independent review can save the sentence even if the trial judge received insufficient guidance, the majority affirms a decision that the Arizona Supreme Court never made.
(3) Even if I believed that appellate resentencing could cure trial-level error, and that the Arizona Supreme Court can properly be regarded as the sentencer in this case, I would still conclude that petitioner’s sentence must be vacated. The (F)(6) aggravating factor, as construed by the State Supreme Court, sweeps so broadly that it includes within its reach virtually every homicide. The appellate court’s application of the statutory language simply provides no meaningful basis on which a defendant such as Walton can be singled out for death.
Indeed, my conclusion that the sentence imposed by the appellate court is invalid follows almost necessarily from my belief that the trial-level sentencing was constitutionally flawed.
The majority concedes, as it must, that the statutory language is unconstitutionally vague under Godfrey and Maynard. The majority therefore recognizes that the validity of the (F)(6) factor depends upon the construction given it by the Arizona Supreme Court. I do not see how the adequacy of that construction can be determined other than through examination of the body of state-court precedents — an examination that the majority conspicuously declines to undertake. Because the Arizona Supreme Court has utterly failed to place meaningful limits on the application of this aggravating factor, a sentence based in part upon the (F)(6) circumstance should not stand.
Earlier this Term the very same majority of this Court severely restricted the regime of federal habeas corpus that had previously helped to safeguard the constitutional rights of criminal defendants, including those accused of capital crimes. See Butler v. McKellar,
Perhaps the current majority has grown weary of explicating what some Members no doubt choose to regard as hyper-technical rules that currently govern the administration of the death penalty. Certainly it is to be hoped that States will scrupulously protect the constitutional rights of capital defendants even without the prospect of meaningful federal oversight. Good wishes, however, are no substitute for this Court’s careful review. Today’s decision is either an abdication of the Court’s constitutional role, or it is a silent repudiation of previously settled legal principles.
I dissent.
The Court in Eddings further instructed that on remand “the state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances.”
The plurality does assert, however, that its analysis is consistent with Lockett and its progeny. See ante, at 649-650. In contrast, Justice Scalia, who provides the fifth vote for affirmance, expresses no view on the question whether the Arizona statute comports with the standards announced in the Court’s prior decisions. He argues, instead, that any violation of Lockett is immaterial because Lockett should be overruled. Eight Members of the Court agree that Lockett remains good law, and I shall not attempt today a detailed exposition of this Court’s Eighth Amendment jurisprudence. I do wish, however, to make two brief observations:
First, Justice Scalia’s argument is not new — as his citation to then-Justice Rehnquist’s dissent in Lockett demonstrates. See ante, at 667. The rule that a capital sentencer must be allowed to consider all relevant mitigating evidence has been vigorously opposed, intensely debated, and eventually accepted by all Members of this Court as a common starting point for analysis in individual cases. See, e. g., Hitchcock v. Dugger,
My second observation relates to the integrity of this Court's adjudicative process. The validity of Lockett has been presumed throughout this case, and the arguments raised by Justice Scalia have not been addressed in petitioner's brief or argument. It is disturbing that the decisive vote in a capital case should turn on a single Justice's rejection of a line of authority that both parties to this controversy, and eight Members of this Court, have accepted.
This is not the first time a Member of this Court has recognized the connection between the State's greater power to eliminate all consideration of mitigating evidence and its lesser power to place the burden of proof on the defendant. See Lockett v. Ohio,
The plurality in Lockett stated: “We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. . . . Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases.” Id., at 604-605.
One might ask what would happen if the defendant argued that he had proved the mitigating circumstance of “moderate impairment.” Presumably the Arizona Supreme Court would respond that no such mitigating factor is recognized under Arizona law. In prior decisions indicating that certain proffered evidence of impairment or duress would not constitute a mitigating factor, that court has relied on the language of the Arizona statute, which requires that impairment be “significant” and duress “substantial.” See, e. g., State v. Rossi,
See Eddings v. Oklahoma,
As the Arizona Supreme Court has recognized, the determination that an aggravating or mitigating factor exists does not require that the factor be given any particular weight. “The statute does not require that the number of aggravating circumstances be weighed against the number of mitigating circumstances. One mitigating circumstance, for example, may be ‘sufficiently substantial’ to outweigh two aggravating circumstances. The converse is also true — one aggravating circumstance could be so substantial that two or more mitigating circumstances would not be ‘sufficiently substantial to call for leniency. A. R. S. § 13-454(D).”' State v. Brookover,
Nor is Arizona’s decision to place the burden of proving mitigation on the defendant saved by the fact that the State is required to prove aggravating circumstances beyond a reasonable doubt. See McCleskeg v. Kemp,
See Adamson v. Ricketts,
See, e. g., State v. McCall,
The State’s asserted interest in ensuring that only “reliable" evidence is considered at the final balancing stage of course provides no basis for a requirement that death be imposed whenever the mitigating evidence found to be reliable evenly balances the aggravating circumstances.
The fact that the presumption of death is triggered only by the finding of an aggravating circumstance does not save the statute. See Sumner v. Shuman,
See Penry v. Lynaugh,
Defense counsel objected to the introduction of this testimony on the ground that Walton could not have foreseen Powell’s suffering after the shooting, since Walton reasonably believed that Powell was dead. The trial judge overruled the objection on the ground that “the testimony that I understand he's going to testify to certainly goes to cruelty. ..." Tr. 233 (Jan. 26, 1987).
The Arizona Supreme Court stated: “[T]he trial court’s finding of cruelty is supported by the mental torment of the victim prior to the shooting rather than the events which took place afterwards.”
The majority relies on our holding in Pulley v. Harris,
These definitions are strikingly similar to the jury instructions given in Maynard, in which the Oklahoma jury was told that “the term ‘heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked and vile; ‘cruel’ means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.” Cartwright v. Maynard,
The court also noted that “our concept of cruelty involves not only physical pain, but also ‘mental. . . distress visited upon the victims.'"
See Ariz. Rev. Stat. Ann. § 13-703(F)(5) (1989). Indeed, the Arizona Supreme Court has been willing to find that a particular murder was committed both for an unworthy purpose and for no purpose at all. In State v. Tison,
The Arizona Supreme Court has identified other particularly reprehensible motives which, in its view, will support a finding of heinousness or depravity. See State v. Martinez-Vlllaveal,
See, e. g., State v. Bracy,
See State v. Rossi,
See also State v. Villafuerte,
The State, focusing on the fear and uncertainty experienced by Powell prior to the shooting, asserts: “It is without question that the victim suffered an excruciatingly ‘cruel’ death,” and suggests that Powell's mental anguish was equivalent to “torture." Brief for Respondent 48-49. I do not minimize Thomas Powell’s suffering, but it bears noting that the State of Arizona seeks to confine Jeffrey Walton in its penitentiary, set a date for his execution, and put him to death. It seems strange for the State to suggest that an individual has been “tortured" when he is made to contemplate the prospect of his own demise.
The discussion of appellate reweighing in Clemons technically is dictum: The Court vacated Clemons’ death sentence but stated that on remand the Mississippi Supreme Court might reweigh the valid aggravating and mitigating circumstances or apply a limiting construction of the challenged aggravating factor if it concluded that under state law it had the power to do so.
The Arizona Supreme Court’s first assertion is supported only by the following passage from the testimony of Sharold Ramsey:
“Q. How was [Powell] acting after you pulled up at the pullout and they got out of the car?
“A. He was scared.
“Q. How do you know?
“A. I don’t remember. I just told him not to be scared because he wouldn’t be hurt. . . .” App. 24.
The statement that Powell “begged the defendant not to kill him” appears to be based entirely on Walton’s statement during his taped interrogation that “the guy told Rob [one of Walton’s accomplices], he goes, don’t hurt me, I don’t tell anybody, ((inaudible)).” Tr. 82 (Dec. 15, 1986, p.m.).
In its brief to the Arizona Supreme Court, the State asserted, without record citation: “During the ride, Powell begged his abductors to spare him and they could keep his money and car.” Appellee’s Answering Brief in No. CR 87-0022-AP, p. 50. That assertion was made more or less in passing: the State’s argument on cruelty fоcused on Powell’s mental and physical suffering after the shooting. The Arizona Supreme Court’s opinion asserts that Powell begged for his life when he and Walton were alone in the desert (rather than during the car ride beforehand). There is not one line of testimony that supports the court’s statement.
The trial judge in this case found that Walton rather than Hoover had fired the fatal shot — an issue on which the evidence was conflicting and on which the jury was apparently unable to agree. See
See Clemons,
See also State v. Smith,
In affirming the judgment of the Arizona Supreme Court in that ease, this Court stated that “the availability of appellate review, including reweighing of aggravating and mitigating circumstances, [does not] make the appellate process part of a single continuing sentencing proceeding. The
The one difference is that the trial judge found only that the murder was committed “in an extremely heinous, cruel or depraved manner,”
The breadth of the (F)(6) circumstance is particularly unfortunate in light of the statutory requirement that the defendant, in order to avoid thе death penalty, must demonstrate mitigating factors “sufficiently substantial to call for leniency.” The presumption of death is triggered whenever an aggravating circumstance is found; the Arizona Supreme Court's expan
Dissenting Opinion
dissenting.
While I join Justice Blackmun’s dissent, I write separately to dissent from the Court’s holding in Part II and to comment on Justice Scalia’s opinion.
The Court holds in Part II of its opinion that a person is not entitled to a jury determination of facts that must be established before the death penalty may be imposed. I am convinced that the Sixth Amendment requires the opposite conclusion.
Arizona Rev. Stat. Ann. § 13-1105(0 (1989) provides that first-degree murder, which includes both premeditated murder and felony murder, is “punishable by death or life imprisonment as provided by §13-703.” Section 13-703(B) requires, after guilt of first-degree murder is established, that a judge conduct a hearing to determine if any statutory aggravating or mitigating circumstances exist. The State bears the burden of proving the existence of any aggravating circumstance by evidence admissible under the Arizona Rules of Evidence. § 13-703(C). Section 13-703(E) then provides, as the Arizona Supreme Court has explained: “Where none of the statutory aggravating circumstances are found to be present, our statute prohibits the death penalty. Where one or more statutory aggravating circumstance is found, and no mitigation exists, the statute requires the death penalty. Where both aggravating and mitigating circumstances are found in a given case, the trial judge, and then this court on review, must determine whether the mitigating circumstances are ‘sufficiently substantial to call for leniency.’” State v. Gretzler, 135 Ariz. 42, 55,
If this question had been posed in 1791, when the Sixth Amendment became law, the answer would have been clear. By that time,
“the English jury’s role in determining critical facts in homicide cases was entrenched. As fact-finder, the jury had the power to determine not only whether the defendant was guilty of homicide but also the degree of the*711 offense. Moreover, the jury’s role in finding facts that would determine a homicide defendant’s eligibility for capital punishment was particularly well established. Throughout its history, the jury determined which homicide defendants would be subjeсt to capital punishment by making factual determinations, many of which related to difficult assessments of the defendant’s state of mind. By the time the Bill of Rights was adopted, the jury’s right to make these determinations was unquestioned.”3
Similarly, if this question had arisen in 1968, when this Court held the guarantee of trial by jury in criminal prosecutions binding on the States, I do not doubt that petitioner again would have prevailed. Justice White’s eloquent opinion for the Court in Duncan v. Louisiana,
“The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and*712 Bill of Rights of 1689. In the 18th century Blackstone could write:
“‘Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that. . . the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion.’
“Jury trial came to America with English colonists, and received strong support from them.
“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Pro*713 viding an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or ecсentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” Id., at 151-152, 155-156 (footnotes omitted).
Since Duncan, this Court has held that a death sentence under Florida law may be imposed by a judge, rather than a jury, Spaziano v. Florida,
II
Justice Scalia announces in a separate opinion that henceforth he will not regard Woodson v. North Carolina,
The cases that Justice Scalia categorically rejects today rest on the theory that the risk of arbitrariness condemned in Furman is a function of the size of the class of convicted persons who are eligible for the death penalty. When Furman was decided, Georgia included virtually all defendants convicted of forcible rape, armed robbery, kidnaping, and first-degree murder in that class. As the opinions in Furman observed, in that large class of cases race and other irrelevant factors unquestionably played an unacceptable role in determining which defendants would die and which would live.
The elaborate empirical study of the administration of Georgia’s capital sentencing statute that the Court considered in McCleskey v. Kemp,
“One of the lessons of the Baldus study is that there exist certаin categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated.” Id., at 367 (dissenting opinion).
The Georgia Supreme Court itself understood the concept that Justice Scalia apparently has missed. In Zant v. Stephens,
“ ‘All cases of homicide of every category are contained within the pyramid. The consequences flowing to the perpetrator increase in severity as the cases proceed from the base of the apex, with the death penalty applying only to those few cases which are contained in the space just beneath the apex. To reach that category a case must pass through three planes of division between the base and the apex.
“ ‘The first plane of division above the base separates from all homicide cases those which fall into the category*717 of murder. This plane is established by the legislature in statutes defining terms such as murder, voluntary manslaughter, involuntary manslaughter, and justifiable homicide. In deciding whether a given case falls above or below this plane, the function of the trier of facts is limited to finding facts. The plane remains fixed unless moved by legislative act.
“‘The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances. The function of the factfinder is again limited to making a determination of whether certain facts have been established. Except where there is treason or aircraft hijacking, a given case may not move above this second plane unless at least one statutory aggravating circumstance exists. Code Ann. §27-2534.1(c).
“ ‘The third plane separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed. There is an absolute discretion in the factfinder to place any given case below the plane and not impose death. The plane itself is established by the factfinder. In establishing the plane, the factfinder considers all evidence in extenuation, mitigation and aggravation of punishment. Code Ann. §27-2503 and § 27-2534.1. There is a final limitation on the imposition of the death penalty resting in the automatic appeal procedure: This court determines whether the penalty of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the statutory aggravating circumstances аre supported by the evidence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Code Ann. § 27-2537. Performance of this function may cause this court to remove a case from the death penalty category but can never have the opposite result.
*718 “‘The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder’s discretion. Unless at least one of the ten statutory aggravating circumstances exists, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason. Waters v. State,248 Ga. 355 , 369,283 S. E. 2d 238 (1981); Hawes v. State,240 Ga. 327 , 334,240 S. E. 2d 833 (1977); Fleming v. State,240 Ga. 142 ,240 S. E. 2d 37 (1977). In making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant.
“ ‘A case may not pass the second plane into that area in which the death penalty is authorized unless at least one statutory aggravating circumstance is found. However, this plane is passed regardless of the number of statutory aggravating circumstances found, so long as there is at least one. Once beyond this plane, the case enters the area of the factfinder’s discretion, in which all the facts and circumstances of the case determine, in terms of our metaphor, whether or not the case passes the third plane and into the area in which the death penalty is imposed.’250 Ga. 97 , 99-100,297 S. E. 2d 1 , 3-4 (1982).” Id., at 870-872.
Justice Scalia ignores the difference between the base of the pyramid and its apex. A rule that forbids unguided discretion at the base is completely consistent with one that requires discretion at the apex. After narrowing the class of cases to those at the tip of the pyramid, it is then appropriate to allow the sentencer discretion to show mercy based on individual mitigating circumstances in the cases that remain.
Although Arizona’s aggravating circumstances are not “separate penalties or offenses,” Poland v. Arizona,
This Court has long distinguished a jury’s determination of “whether a defendant is guilty of having engaged in certain criminal conduct” from a sentencing judge’s consideration of “the fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York,
White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendant’s Right to Jury Trial, 65 Notre Dame L. Rev. 1, 10-11 (1989) (footnote omitted; emphasis added). The right to a jury trial in criminal matters was most strongly guarded because “‘in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the Crown, in suits between the king and the subject, than in disputes between one individual and another.’ ” Id., at 10 (quoting 4 W. Blackstone, Commentaries 343 (1769)). For a view of earlier practices, see generally Green, The Jury and the English Law of Homicide, 1200-1600, 74 Mich. L. Rev. 413 (1976).
Duncan v. Louisiana,
“So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate, not only from all open 'attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.” 4 W. Blackstone, Commentaries 343-344 (1769).
Furman has been characterized as mandating that “where discretion is afforded a sentencing body on a matter so grave as the determination of
For example, Justice Scalia incorrectly assumes that our holdings in Woodson v. North Carolina,
“The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society — jury determinations and legislative enactments — both point conclusively to the repudiation of automatic death sentences." Id., at 292-293.
We further held that the “fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304.