ZANT, WARDEN v. STEPHENS
No. 81-89
Supreme Court of the United States
Argued February 24, 1982-Question certified May 3, 1982-Decided June 22, 1983
462 U.S. 862
No. 81-89. Argued February 24, 1982-Question certified May 3, 1982-Decided June 22, 1983
After the Georgia Supreme Court‘s response to the certified question, supplemental briefs were filed by Michael J. Bowers, Attorney General of Georgia, William B. Hill, Jr., Senior Assistant Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Marion O. Gordon, First Assistant Attorney General, for petitioner, and by James C. Bonner, Jr., Jack Greenberg, James M. Nabrit III, Joel Berger, John Charles Boger, Deborah Fins, and Anthony G. Amsterdam for respondent.
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether respondent‘s death penalty must be vacated because one of the three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the Supreme Court of Georgia, although the other two aggravating circumstances were specifically upheld. The answer depends on the function of the jury‘s finding of an aggravating circumstance under Georgia‘s capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be invalid.
In January 1975 a jury in Bleckley County, Georgia, convicted respondent of the murder of Roy Asbell and sentenced him to death. The evidence received at the guilt phase of his trial, which included his confessions and the testimony of a number of witnesses, described these events: On August 19, 1974, while respondent was serving sentences for several burglary convictions and was also awaiting trial for escape, he again escaped from the Houston County Jail. In the next two days he committed two auto thefts, an armed robbery, and several burglaries. On August 21st, Roy Asbell interrupted respondent and an accomplice in the course of burglarizing the home of Asbell‘s son in Twiggs County. Re-
At the sentencing phase of the trial the State relied on the evidence adduced at the guilt phase and also established that respondent‘s prior criminal record included convictions on two counts of armed robbery, five counts of burglary, and one count of murder. Respondent testified that he was “sorry” and knew he deserved to be punished, that his accomplice actually shot Asbell, and that they had both been “pretty high” on drugs. The State requested the jury to impose the death penalty and argued that the evidence established the aggravating circumstances identified in subparagraphs (b)(1), (b)(7), and (b)(9) of the Georgia capital sentencing statute.1
The trial judge instructed the jury that under the law of Georgia “every person [found] guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case.” App. 18. He explained that the jury was authorized to consider all of the evidence
“You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death.”2
The jury followed the court‘s instruction and imposed the death penalty. It designated in writing that it had found the aggravating circumstances described as “One” and “Three” in the judge‘s instruction.3 It made no such finding with re-
In his direct appeal to the Supreme Court of Georgia respondent did not challenge the sufficiency of the evidence supporting the aggravating circumstances found by the jury. Nor did he argue that there was any infirmity in the statutory definition of those circumstances. While his appeal was pending, however, the Georgia Supreme Court held in Arnold v. State, 236 Ga. 534, 539-542, 224 S. E. 2d 386, 391-392 (1976), that the aggravating circumstance described in the second clause of (b)(1)-“a substantial history of serious assaultive criminal convictions“-was unconstitutionally vague.5 Because such a finding had been made by the jury in this case, the Georgia Supreme Court, on its own motion,
a person who has a substantial history of serious assaultive criminal convictions. (2) The offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer and place of lawful confinement.” App. 23.
After the Federal District Court had denied a petition for habeas corpus, the United States Court of Appeals for the Fifth Circuit considered two constitutional challenges to respondent‘s death sentence. 631 F. 2d 397 (1980). That court first rejected his contention that the jury was not adequately instructed that it was permitted to impose life imprisonment rather than the death penalty even if it found an aggravating circumstance.7 The court then held, however, that the death penalty was invalid because one of the aggravating circumstances found by the jury was later held unconstitutional.
The Court of Appeals gave two reasons for that conclusion. First, it read Stromberg v. California, 283 U. S. 359 (1931), as requiring that a jury verdict based on multiple grounds be set aside if the reviewing court cannot ascertain
“It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground.” 631 F. 2d, at 406.
Second, it believed that the presence of the invalid circumstance “made it possible for the jury to consider several prior convictions of [respondent] which otherwise would not have been before it.” Ibid.
In a petition for rehearing, the State pointed out that the evidence of respondent‘s prior convictions would have been admissible at the sentencing hearing even if it had not relied on the invalid circumstance.8 The Court of Appeals then modified its opinion by deleting its reference to the possibility that the jury had relied on inadmissible evidence. 648 F. 2d 446 (1981). It maintained, however, that the reference in the instructions to the invalid circumstance “may have unduly directed the jury‘s attention to his prior convictions.” Ibid. The court concluded: “It cannot be determined with the degree of certainty required in capital cases that the instruction did not make a critical difference in the jury‘s decision to impose the death penalty.” Ibid.
In its response to our certified question, the Georgia Supreme Court first distinguished Stromberg as a case in which the jury might have relied exclusively on a single invalid ground, noting that the jury in this case had expressly relied on valid and sufficient grounds for its verdict. The court then explained the state-law premises for its treatment of aggravating circumstances by analogizing the entire body of Georgia law governing homicides to a pyramid. It explained:
“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 to 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 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, preju-
dice, or any other arbitrary factor; whether the statutory aggravating circumstances are 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.
“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).
We are indebted to the Georgia Supreme Court for its helpful response to our certified question. That response makes it clear that we must confront three separate issues in order to decide this case. First, does the limited purpose served by the finding of a statutory aggravating circumstance in Georgia allow the jury a measure of discretion that is forbidden by Furman v. Georgia, 408 U. S. 238 (1972), and subsequent cases? Second, has the rule of Stromberg v. California, 283 U. S. 359 (1931), been violated? Third, in this case, even though respondent‘s prior criminal record was properly admitted, does the possibility that the reference to the invalid statutory aggravating circumstance in the judge‘s instruction affected the jury‘s deliberations require that the death sentence be set aside? We discuss these issues in turn.
I
In Georgia, unlike some other States,12 the jury is not instructed to give any special weight to any aggravating cir-
A fair statement of the consensus expressed by the Court in Furman is 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.” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). After thus summarizing the central mandate of Furman, the joint opinion in Gregg set forth a general exposition of sentencing procedures that would satisfy the concerns of Furman. 428 U. S., at 189-195. But it expressly stated: “We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these
; State v. Moore, 614 S. W. 2d 348, 351-352 (Tenn. 1981); Hopkinson v. State, 632 P. 2d 79, 90, n. 1, 171-172 (Wyo. 1981). In each of these cases, the State Supreme Court set aside a death sentence based on both valid and invalid aggravating circumstances. Respondent advances these cases in support of his contention that a similar result is required here. However, examination of the relevant state statutes shows that in each of these States, not only must the jury find at least one aggravating circumstance in order to have the power to impose the death sentence; in addition, the law requires the jury to weigh the aggravating circumstances against the mitigating circumstances when it decides whether or not the death penalty should be imposed. See
Georgia‘s scheme includes two important features which the joint opinion described in its general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia has a bifurcated procedure, see id., at 190-191, and its statute also mandates meaningful appellate review of every death sentence, see id., at 195. The statute does not, however, follow the Model Penal Code‘s recommendation that the jury‘s discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. See id., at 193. Instead, as the Georgia Supreme Court has unambiguously advised us, the aggravating circumstance merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty.
Respondent argues that the mandate of Furman is violated by a scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute. But that argument could not be accepted without overruling our specific holding in Gregg. For the Court approved Georgia‘s capital sentencing statute even though it clearly did not channel the jury‘s discretion by enunciating specific standards to guide the jury‘s consideration of aggravating and mitigating circumstances.13
thorized to consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1(b) (Supp. 1975). The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp. 1975), but it must find a statutory aggravating circumstance before recommending a sentence of death.” 428 U. S., at 196-197; see also id., at 161, 165, 206-207. Cf. id., at 208, 218, 222 (opinion of WHITE, J., concurring in judgment).
The joint opinion issued the same day in Jurek v. Texas, 428 U. S. 262 (1976), makes clear that specific standards for balancing aggravating against mitigating circumstances are not constitutionally required. In Jurek we held that the State‘s action in “narrowing the categories of murders for which a death sentence may ever be imposed” served much the same purpose as the lists of statutory aggravating circumstances that Georgia and Florida had adopted. Id., at 270. We also held that one of the three questions presented to the sentencing jury permitted the defendant to bring mitigating circumstances to the jury‘s attention. Id., at 273-274. Thus, in Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution and certainly were not explicitly balanced against each other.
Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.17
The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. We therefore remain convinced, as we were in 1976, that the structure of the statute is constitutional. Moreover, the narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court-that respondent had escaped from lawful confinement, and that he had a prior record of conviction for a capital felony. These two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed. Moreover, the Georgia Supreme Court in this case reviewed the death sentence to determine whether it was arbitrary, excessive, or dispropor-
supra, at 192-195, sets forth lists of aggravating and mitigating circumstances but also provides that the sentencer “shall take into account ... any other facts that it deems relevant ....” ALI, Model Penal Code § 201.6 (Prop. Off. Draft, 1962).
A State is, of course, free to decide as a matter of state law to limit the evidence of aggravating factors that the prosecution may offer at the sentencing hearing. A number of States do not permit the sentencer to consider aggravating circumstances other than those enumerated in the statute. See Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 101-119 (1980); see, e. g.,
II
Respondent contends that under the rule of Stromberg v. California, 283 U. S. 359 (1931), and subsequent cases, the invalidity of one of the statutory aggravating circumstances underlying the jury‘s sentencing verdict requires that its entire death sentence be set aside. In order to evaluate this contention, it is necessary to identify two related but different rules that have their source in the Stromberg case.
In Stromberg, a member of the Communist Party was convicted of displaying a red flag in violation of the California Penal Code. The California statute prohibited such a display (1) as a “sign, symbol or emblem” of opposition to organized government; (2) as an invitation or stimulus to anarchistic action; or (3) as an aid to seditious propaganda. This Court held that the first clause of the statute was repugnant to the Federal Constitution and found it unnecessary to pass on the validity of the other two clauses because the jury‘s guilty verdict might have rested exclusively on a conclusion that Stromberg had violated the first. The Court explained:
“The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause.” Id., at 367-368.
“The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” Id., at 369-370.
One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. The cases in which this rule has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jury‘s decision rested. See, e. g., Williams v. North Carolina, 317 U. S. 287, 292 (1942); Cramer v. United States, 325 U. S. 1, 36, n. 45 (1945); Terminiello v. Chicago, 337 U. S. 1, 5-6 (1949); Yates v. United States, 354 U. S. 298, 311-312 (1957). This rule does not require that respondent‘s death sentence be vacated, because the jury did not merely return a general verdict stating that it had found at least one aggravating circumstance. The jury expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty.
The second rule derived from the Stromberg case is illustrated by Thomas v. Collins, 323 U. S. 516, 528-529 (1945), and Street v. New York, 394 U. S. 576, 586-590 (1969). In
The Court‘s opinion in Street explained:
“We take the rationale of Thomas to be that when a single-count indictment or information charges the commission of a crime by virtue of the defendant‘s having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as ‘intertwined’ and have rested the conviction on both together. See 323 U. S., at 528-529, 540-541. There is no com
parable hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of these counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others.” Ibid. (footnote omitted).
The rationale of Thomas and Street applies to cases in which there is no uncertainty about the multiple grounds on which a general verdict rests. If, under the instructions to the jury, one way of committing the offense charged is to perform an act protected by the
In Stromberg, Thomas, and Street, the trial courts’ judgments rested, in part, on the fact that the defendant had been found guilty of expressive activity protected by the
III
Two themes have been reiterated in our opinions discussing the procedures required by the
Respondent contends that the death sentence was impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a “substantial history of serious assaultive criminal convictions,” for these instructions may have affected the jury‘s deliberations. In analyzing this contention it is essential to keep in mind the sense in which that aggravating circumstance is “invalid.” It is not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. Georgia has not, for example, sought to characterize the display of a red flag, cf. Stromberg v. California, the expression of unpopular political views, cf. Terminiello v. Chicago, 337 U. S. 1 (1949), or the request for trial by jury, cf. United States v. Jackson, 390 U. S. 570 (1968), as an aggravating circumstance. Nor has Georgia attached the “aggravating” label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant, cf. Herndon v. Lowry, 301 U. S. 242 (1937), or to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant‘s mental illness. Cf. Miller v. Florida, 373 So. 2d 882, 885-886 (Fla. 1979). If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury‘s decision to impose death be set aside.
But the invalid aggravating circumstance found by the jury in this case was struck down in Arnold because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. See nn. 5 and 16, supra. The underlying evidence is nevertheless fully admissible at the sentencing phase. As we noted in Gregg, 428 U. S., at 163, the Georgia statute provides that, at the sentencing hearing, the judge or jury
“‘shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible.‘”
Ga. Code § 27-2503 (1975) (emphasis supplied).22
We expressly rejected petitioner‘s objection to the wide scope of evidence and argument allowed at presentence hearings.
“We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument . . . . So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible
when it makes the sentencing decision.” 428 U. S., at 203-204.
See id., at 206-207; see also n. 17, supra.
Thus, any evidence on which the jury might have relied in this case to find that respondent had previously been convicted of a substantial number of serious assaultive offenses, as he concedes he had been, was properly adduced at the sentencing hearing and was fully subject to explanation by the defendant.23 Cf. Gardner v. Florida, supra (requiring that the defendant have the opportunity to rebut evidence and State‘s theory in sentencing proceeding); Presnell v. Georgia, 439 U. S. 14, 16, n. 3 (1978) (same).24 This case involves a statutory aggravating circumstance, invalidated by the State Supreme Court on grounds of vagueness, whose terms plausibly described aspects of the defendant‘s background that were properly before the jury and whose accuracy was unchallenged. Hence the erroneous instruction does not im
Although the Court of Appeals acknowledged on rehearing that the evidence was admissible, it expressed the concern that the trial court‘s instructions “may have unduly directed the jury‘s attention to his prior conviction.” 648 F. 2d, at 446. But, assuming that the instruction did induce the jury to place greater emphasis upon the respondent‘s prior criminal record than it would otherwise have done, the question remains whether that emphasis violated any constitutional right. In answering this question, it is appropriate to compare the instruction that was actually given, see supra, at 866, with an instruction on the same subject that would have been unobjectionable. Cf. Henderson v. Kibbe, 431 U. S. 145, 154-157 (1977). Nothing in the
The effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label “aggravating circumstance.” That label arguably might have caused the jury to give somewhat greater weight to respondent‘s prior criminal record than it otherwise would have given. But we do not think the Georgia Supreme
Our decision in this case depends in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality.26 We accept that court‘s view that the subsequent invalidation of one of several statutory aggravating circumstances does not automatically require reversal of the death penalty, having been assured that a death sentence will be set aside if the invalidation of an aggravating circumstance makes the penalty arbitrary or capricious. 250 Ga., at 101, 297 S. E. 2d, at 4. The Georgia Supreme Court, in its response to our certified question, expressly stated: “A different result might be reached in a case where evidence was submitted in support of a statutory aggravating circumstance which was not otherwise admissible, and thereafter the circumstance failed.” Ibid. As we noted in Gregg, 428 U. S., at 204-205, we have also been assured that a death sentence will be vacated if it is excessive or substantially disproportionate to the penalties that have been imposed under similar circumstances.
Finally, we note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is “invalid” under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty. See n. 12, supra. As we have discussed, see supra, at 873-880, the
The judgment of the Court of Appeals is
Reversed.
JUSTICE WHITE, concurring in part and concurring in the judgment.
In Claassen v. United States, 142 U. S. 140 (1891), the defendant in a criminal case was found guilty on 5 of 11 counts on which the jury was instructed. The verdict was a general one and one 6-year sentence was imposed. On writ of error, this Court affirmed the conviction and sentence, saying that the first “count and the verdict of guilty returned upon it being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered.” Id., at 146. Similarly, in Barenblatt v. United States, 360 U. S. 109 (1959), a defendant was convicted on each of five counts, and a general sentence was imposed. The Court said, id., at 115: “Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable” (footnote omitted). Pinkerton v. United States, 328 U. S. 640, 641, n. 1 (1946); Whitfield v. Ohio, 297 U. S. 431, 438 (1936); Abrams v. United States, 250 U. S. 616, 619 (1919); and Evans v. United States, 153 U. S. 584, 595 (1894), were similar holdings. It is therefore clear that in cases such as Claassen and Barenblatt, there is no Stromberg, Thomas, or Street problem.
Here, the jury imposing the sentence found three aggravating circumstances and based on all the evidence imposed the death sentence. One of the aggravating circumstances was found invalid on an intervening appeal in another case, and the claim is that under Stromberg, Thomas, and Street, the death sentence must be set aside. I agree with the Court that there is no such problem since the evidence supporting the invalid aggravating circumstance was properly before the jury. The Court, however, suggests that if the evidence had been inadmissible under the Federal
Thus in my view there would be no Stromberg-Thomas-Street problem, as such, if the invalid count had rested on constitutionally inadmissible evidence. But since the jury is instructed to take into account all the evidence, there would remain the question whether the inadmissible evidence invalidates the sentence. Perhaps it would, but at least there
Except for the foregoing, I join the Court‘s opinion and its judgment as well.
JUSTICE REHNQUIST, concurring in the judgment.
While agreeing with the Court‘s judgment, I write separately to make clear my understanding of the application of the
I
The Georgia death sentencing procedure is comprehensively detailed in the statutes of the State, decisions of the Georgia courts, the opinion issued by the Georgia Supreme Court in response to the question certified by this Court, Zant v. Stephens, 456 U. S. 410 (1982), and the jury instructions in this case. As these materials reveal, two separate proceedings are necessary to imposition of the death sentence in Georgia. The first stage is simply a traditional criminal trial on the question of guilt or innocence. If the defendant is found guilty of a capital offense, a separate sentencing proceeding is then conducted.
At this second proceeding, the State and the defendant are permitted to introduce a wide range of evidence in “extenuation, mitigation, and aggravation of punishment.”
Respondent challenges the Georgia death sentencing system as violative of the
Except in minor detail, Georgia‘s current system is identical to the sentencing procedure we held constitutional in Gregg v. Georgia, 428 U. S. 153 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); id., at 207 (WHITE, J., concurring in judgment). The joint opinion in Gregg fully recognized that the Georgia scheme did not direct the sentencing body that statutory aggravating and mitigating circumstances were to be weighed against each other in any formal sense. This is evident from its careful description of the Georgia scheme, id., at 196-197, and its treatment of the
II
Respondent next contends that Stromberg v. California, 283 U. S. 359 (1931), requires that his death sentence be set aside. Respondent‘s argument rests on the fact that one of the three aggravating circumstances specified by the jury in
Careful examination of Stromberg, cases following that decision, and the role of aggravating circumstances in a jury‘s imposition of the death penalty compels rejection of respondent‘s claim. Stromberg presented a straightforward case. The defendant was convicted for violating a California statute prohibiting the display of a red flag for any of three separate purposes. At trial the jury was instructed that the defendant should be convicted if he acted with any one of the proscribed purposes; it returned a general verdict of guilty without indicating which purpose it believed motivated the defendant. This Court concluded that the first of the clauses of the statute detailing impermissible purposes was unconstitutional, and held that it was unnecessary to decide the validity of the remaining two clauses. The Court observed that the prosecutor had “emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses.” 283 U. S., at 368. It concluded that it was “impossible to say under which clause of the statute the conviction was obtained,” ibid., and that, given this complete uncertainty, the conviction could not stand. See also Williams v. North Carolina, 317 U. S. 287, 292 (1942); Cramer v. United States, 325 U. S. 1, 36, n. 45 (1945); Terminiello v. Chicago, 337 U. S. 1, 5-6 (1949); Yates v. United States, 354 U. S. 298, 311-312 (1957). Of course, if the jury does indicate which statutory elements supported its verdict, and if these are valid, then Stromberg is inapplicable.
As the Court points out, the Stromberg doctrine subsequently was extended—albeit without lengthy analysis. In Street v. New York, 394 U. S. 576, 586-590 (1969), the Court vacated a conviction, based on a single-count indictment, for casting contempt on the United States flag. The statute under which petitioner was convicted criminalized casting contempt upon the flag by “words or act.” Id., at 578. The information filed against petitioner alleged that he violated this statute because he both burned the flag and shouted derogatory statements about it. Likewise, the State introduced evidence at the bench trial of both the petitioner‘s act and his speech. The Court concluded that petitioner‘s constitutional rights would have been violated had he been punished for his speech. It thought, moreover, that the trial judge might have rested his finding solely on petitioner‘s speech, which presented a situation similar to that in Stromberg.
In addition, however, the Court believed that, on the record of the case, there was an “unacceptable danger that the trier of fact . . . regarded the two acts as ‘intertwined’ and . . . rested the conviction on both together.” 394 U. S., at 588. In short, when an element of a crime is defined to include constitutionally protected actions, and when the State alleges, argues, and offers proof that the defendant‘s protected conduct satisfied the element, then a general verdict of guilty must be set aside, even if the State also alleged and proved another course of conduct that could have satisfied the element. As in Stromberg, however, the Court also noted that when the record indicates that the jury‘s verdict did not rest on an “intertwined” combination of protected and
Neither the Stromberg line of cases nor Street provides respondent with appreciable support. I agree with the Court that the Stromberg rule is plainly distinguishable, since the jury explicitly returned two concededly valid aggravating circumstances, thereby conclusively negating the inference that it rested solely on the invalid circumstance. Likewise, I conclude that the analysis in Street is inapposite.3 It is helpful in explaining why this is the case to discuss separately the two decisions made by the sentencing body during the Georgia death penalty proceedings. I initially consider the applicability of Street to the jury‘s first decision, that is, the finding of statutory aggravating circumstances.
As indicated above, Street explicitly stated that its rule regarding the treatment of aggravating circumstances is inapplicable “when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of those counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others.” 394 U. S., at 588 (footnote omitted). This exception to the Street rule extends to the jury‘s determination in this case that certain specified aggravating circumstances existed. The jury received separate instructions as to each of several aggravating circumstances, and returned a verdict form separately listing three circumstances. The fact that one of these subsequently proved to be invalid does not affect the validity of the remaining two jury findings, just as the reversal on appeal of one of several convictions returned to sepa
Street‘s logic is even less applicable to a Georgia death jury‘s second decision, namely, that the defendant deserved the death sentence. Under respondent‘s theory, the jury‘s verdict of death was based in part on an aggravating circumstance that later proved invalid, and which, according to respondent must thus fall under the rule of Street. Whatever its proper application elsewhere, Street‘s rule cannot fairly be extended to the sentencing context. As discussed below, the significant differences between the role of aggravating circumstances in the jury‘s decision to impose the death sentence and the role played by instructions or allegations in a jury‘s determination of guilt preclude applying Street to the sentencing context.
The rule relied upon by respondent was developed in a situation where a factfinder returns a verdict of guilty on a specific criminal charge. In returning this verdict, the jury decides whether the defendant committed a specific set of defined acts with a particular mental state. These elements, each of which is necessary to the verdict of guilty, are specifically and carefully enumerated and defined in the indictment or information and the instructions to the jury. Only evidence relevant to the particular elements alleged by the State is admissible, and, even then, subject to exclusion of prejudicial evidence which might distract the jury from the specific factfinding task it performs. Based on this evidence the jury decides whether each of the elements constituting the offense was proved beyond a reasonable doubt. The Court‘s observation in Williams v. New York, 337 U. S. 241, 246-247 (1949), accurately captures the character of the pro
The decision by a Georgia death jury at the final stage of its deliberations to impose death is a significantly different decision from the model just described. A wide range of evidence is admissible on literally countless subjects: “We have long recognized that ‘[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.‘” Gregg, 428 U. S., at 189 (emphasis added). In considering this evidence, the jury does not attempt to decide whether particular elements have been proved, but instead makes a unique, individualized judgment regarding the punishment that a particular person deserves. See Lockett v. Ohio, 438 U. S. 586, 602-605 (1978).
The role of aggravating circumstances in making this judgment is substantially more limited than the role played by jury instructions or allegations in an indictment in an ordinary trial. In Georgia, aggravating circumstances serve principally to restrict the class of defendants subject to the death sentence; once a single aggravating circumstance is specified, the jury then considers all the evidence in aggravation-mitigation in deciding whether to impose the death penalty, see Part I, supra. An aggravating circumstance in this latter stage is simply one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant.
If an aggravating circumstance is revealed to be invalid, the probable effect of this fact alone on the jury‘s second decision—whether the death sentence is appropriate—is minimal. If one of the few theories of guilt presented to the jury
III
Respondent contends next that, even if Street is inapplicable, the erroneous submission to the jury of an instruction which we are bound to regard as unconstitutionally vague, see n. 3, supra, must have had sufficient effect on the jury‘s deliberations to require vacating its verdict. Although our prior decisions are not completely consistent regarding the effect of constitutional error in sentencing proceedings on the sentence imposed on the defendant, in general sentencing decisions are accorded far greater finality than convictions.
Ordinarily, a sentence within statutory limits is beyond appellate review. Gore v. United States, 357 U. S. 386, 393 (1958). In Street, 394 U. S., at 588, n. 9, we cited with approval to several of a long line of sentencing decisions. In Claassen v. United States, 142 U. S. 140 (1891); Pinkerton v. United States, 328 U. S. 640 (1946); and Barenblatt v. United States, 360 U. S. 109 (1959), defendants were convicted on several separate counts and received “general sentences,”
The practical basis for the rules articulated in Gore and the Claassen line of cases is clear. As indicated above, sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does. The fact that one of the countless considerations that the sentencer would have taken into account was erroneous, misleading, or otherwise improperly before him, ordinarily can be assumed not to have been a necessary basis for his decision. Nonetheless, in limited cases, noncapital sentencing decisions are vacated for resentencing.
In United States v. Tucker, 404 U. S. 443 (1972), two uncounseled—and therefore unconstitutionally obtained—convictions were introduced against the defendant in the sentencing proceeding. The Court observed that the sentencing judge gave “explicit” and “specific” attention, id., at 444, 447, to these convictions. Moreover, it noted that the defendant would have “appeared in a dramatically different light” had the true character of the unconstitutional convictions been known: the judge would have been dealing with a
Similarly, in Townsend v. Burke, 334 U. S. 736 (1948), an uncounseled defendant was sentenced following a proceeding in which the trial judge explicitly and repeatedly relied upon the incorrect assumption that the defendant had been convicted of several crimes. The Court observed that “[i]t is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.” Id., at 741.
The approach taken in Tucker, Townsend, and the Claassen line of cases begins with the presumption that, since the sentencer‘s judgment rested on countless variables, an error made in one portion of the sentencing proceeding ordinarily should not affect the sentence. This presumption is most plainly revealed by the Claassen line of cases, where a sentence will stand even if it turns out that the crimes for which the defendant was sentenced had not all been committed. Nonetheless, the defendant may adduce evidence that the sentencing body likely would have acted differently had the error not occurred. In order to prevail on such a claim, however, we have required a convincing showing that the introduction of specific constitutionally infirm evidence had an ascertainable and “dramatic” impact on the sentencing authority. See United States v. Tucker, supra; Townsend v. Burke, supra. Of course, a more careful application of this standard is appropriate in capital cases.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.
Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I could scarcely join in upholding a death sentence based in part upon a statutory aggravating circumstance so vague that its application turns solely on the “whim” of the jury. Arnold v. State, 236 Ga. 534, 541, 224 S. E. 2d 386, 391 (1976).
The submission of the unconstitutional statutory aggravating circumstance to the jury cannot be deemed harmless error on the theory that “in Georgia, the finding of an ag-
In any event, the jury that sentenced respondent to death was never informed of this “threshold” theory, which was invented for the first time by the Georgia Supreme Court more than seven years later. Under the instructions actually given, a juror might reasonably have concluded, as has this Court in construing essentially identical instructions, that any aggravating circumstances, including statutory aggravating circumstances, should be balanced against any mitigating circumstances in the determination of the defendant‘s sentence. There is no way of knowing whether the jury would have sentenced respondent to death if its attention had not been drawn to the unconstitutional statutory factor.
I
I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the
Today the Court upholds a death sentence that was based in part on a statutory aggravating circumstance which the State concedes was so amorphous that it invited “subjective decision-making without . . . minimal, objective guidelines for its application.” Arnold v. State, supra, at 541, 224 S. E. 2d, at 391. In order to reach this surprising result, the Court embraces the theory, which it infers from the Georgia Supreme Court‘s response to this Court‘s certified question,1 that the only function of statutory aggravating circumstances in Georgia is to screen out at the threshold defendants to whom none of the 10 circumstances applies. According to this theory, once 1 of the 10 statutory factors has been found, they drop out of the picture entirely and play no part in the jury‘s decision whether to sentence the defendant to death. Relying on this “threshold” theory, the Court concludes that
If the jury instructions given some eight years ago were consistent with this new theory, we could assume that the jury did not focus on the vague statutory aggravating circumstance in making its actual sentencing decision. But if the jury had been so instructed, the instructions would have been constitutionally defective for a more basic reason, since they would have left the jury totally without guidance once it found a single statutory aggravating circumstance.
A
Until this Court‘s decision in Furman v. Georgia in 1972, the capital sentencing procedures in most States delegated to judges and juries plenary authority to decide when a death sentence should be imposed. The sentencer was given “practically untrammeled discretion to let an accused live or insist that he die.” Furman v. Georgia, supra, at 248 (Douglas, J., concurring) (footnote omitted).
In Furman this Court held that the system of capital punishment then in existence in this country was incompatible with the
Four years after Furman was decided, this Court upheld the capital sentencing statutes of Georgia, Florida, and Texas against constitutional attack, concluding that those statutes contained safeguards that promised to eliminate the constitutional deficiencies found in Furman. See Gregg v. Georgia; Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976). The Court‘s conclusion was based on the premise that the statutes ensured that sentencers would be “given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Gregg v. Georgia, 428 U. S., at 192 (opinion of Stewart, POWELL, and STEVENS, JJ.).3 The Court assumed that the iden-
“These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman‘s jury did: reach a finding of the defendant‘s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury‘s attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury‘s attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment . . . . As a result, while some jury discretion still exists, ‘the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.‘” Id., at 197-198 (opinion of Stewart, POWELL, and STEVENS, JJ.) (emphasis added; footnote and citation omitted).
In Godfrey v. Georgia, 446 U. S. 420 (1980), the Court reiterated that a State “must channel the sentencer‘s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance.‘” Id., at 428 (plurality opinion) (citations omitted).
B
Today we learn for the first time that the Court did not mean what it said in Gregg v. Georgia. We now learn that the actual decision whether a defendant lives or dies may still be left to the unfettered discretion of the jury. Although we were assured in Gregg that sentencing discretion was “to be exercised . . . by clear and objective standards,” 428 U. S., at 198 (opinion of Stewart, POWELL, and STEVENS, JJ.), we are now told that the State need do nothing whatsoever to guide the jury‘s ultimate decision whether to sentence a defendant to death or spare his life.
Under today‘s decision all the State has to do is require the jury to make some threshold finding. Once that finding is made, the jurors can be left completely at large, with nothing to guide them but their whims and prejudices. They need not even consider any statutory aggravating circumstances that they have found to be applicable. Their sentencing decision is to be the product of their discretion and of nothing else.
If this is not a scheme based on “standardless jury discretion,” Gregg v. Georgia, 428 U. S., at 195, n. 47 (opinion of Stewart, POWELL, and STEVENS, JJ.), I do not know what is. Today‘s decision makes an absolute mockery of this Court‘s precedents concerning capital sentencing procedures. There is no point in requiring state legislatures to identify specific aggravating circumstances if sentencers are to be left free to ignore them in deciding which defendants are to die. If this is all Gregg v. Georgia stands for, the States may as well be
The system of discretionary sentencing that the Court approves today differs only in form from the capital sentencing procedures that this Court held unconstitutional more than a decade ago. The only difference between Georgia‘s pre-Furman capital sentencing scheme and the “threshold” theory that the Court embraces today is that the unchecked discretion previously conferred in all cases of murder is now conferred in cases of murder with one statutory aggravating circumstance. But merely circumscribing the category of cases eligible for the death penalty cannot remove from constitutional scrutiny the procedure by which those actually sentenced to death are selected.
More than a decade ago this Court struck down an Ohio statute that permitted a death sentence only if the jury found that the victim of the murder was a police officer, but gave the jury unbridled discretion once that aggravating factor was found. Duling v. Ohio, 408 U. S. 936 (1972), summarily rev‘g 21 Ohio St. 2d 13, 254 N. E. 2d 670 (1970). See
lar preliminary finding was made at the guilt phase of the trial or at the sentencing phase is irrelevant; a requirement that the finding be made at the sentencing phase in no way channels the sentencer‘s discretion once that finding has been made.5 If the Constitution forbids one form of standardless discretion, it must forbid the other as well.
III
A
In any event, the jury that sentenced respondent to death was never apprised of the “threshold” theory relied upon by the Court. There is no basis for the Court‘s assumption,
“everything about the judge‘s charge highlighted the importance of the aggravating circumstances. Not only were the circumstances submitted to the jury in writing, but also the jury was in turn required to write down each and every aggravating circumstance that it found to be established beyond a reasonable doubt . . . . The jury instructions provide absolutely no indication that, after carefully considering each of the statutory aggravating circumstances submitted by the trial judge, the jury should, or even could, discard the list of officially sanctioned grounds for imposing the death penalty in deciding whether to actually sentence respondent to death.” Zant v. Stephens, 456 U. S. 410, 427 (1982) (MARSHALL, J., dissenting).
In deciding whether respondent deserved to die, the jurors might well have deemed his prior assaults unimportant if the judge had not specifically focused on them in his charge.
Second, the Court‘s assertion that “in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion,” ante, at 874, is flatly inconsistent with this Court‘s own previous characterizations of the function of statutory aggravating circumstances in the Georgia scheme. In Gregg v. Georgia, where the jury instructions were essentially identical to those given here,6 the joint opinion of Justices Stewart,
The Court‘s assumption that respondent‘s jury did not balance aggravating circumstances against mitigating circumstances is also inconsistent with this Court‘s characterization of the almost identical instructions given in Coker v. Georgia, 433 U. S. 584 (1977) (plurality opinion). See App. in Coker v. Georgia, O. T. 1976, No. 75-5444, pp. 298-302. In Coker, as in this case, the jury was not expressly instructed to weigh aggravating against mitigating circumstances, but the plurality opinion sensibly recognized that such a weighing is inherent in any determination of whether mitigating circumstances warrant a life sentence notwithstanding the existence of aggravating circumstances:
“The jury was instructed that it could consider as aggravating circumstances whether the rape had been committed by a person with a prior record of conviction
for a capital felony and whether the rape had been committed in the course of committing another capital felony, namely, the armed robbery of Allen Carver. The court also instructed, pursuant to statute, that even if aggravating circumstances were present, the death penalty need not be imposed if the jury found they were outweighed by mitigating circumstances . . . .” 433 U. S., at 587-590 (emphasis added).
I would like to know how the jury that sentenced respondent to death in 1975 could have known that statutory aggravating circumstances were to play only a threshold role in their deliberations, when this Court itself has interpreted essentially identical instructions to require a weighing of aggravating and mitigating circumstances and as recently as last Term found it necessary to ask the Georgia Supreme Court to clarify what the instructions in this case meant. We are presented with “different and conflicting theories regarding a charge designed to guide the jury . . . , and yet we are asked to sustain the [death sentence] on the assumption that the jury was properly guided.” Bollenbach v. United States, 326 U. S. 607, 613 (1946). For my part, I believe that a death sentence “ought not to rest on an equivocal direction to the jury on a basic issue.” Ibid. It is patently unfair to assume that the jury that sentenced respondent somehow understood that statutory aggravating circumstances were to receive no special weight and were not to be balanced against mitigating circumstances. Respondent is “entitled to have the validity of [his sentence] appraised on consideration of the case as it was tried and as the issues were determined in the trial court,” Cole v. Arkansas, 333 U. S. 196, 202 (1948); see Presnell v. Georgia, 439 U. S. 14, 16 (1978), not on a theory that has been adopted for the first time after the fact.
B
Once it is recognized that respondent‘s jury may well have assumed that statutory aggravating circumstances deserve
There is simply no way for this Court to know whether the jury would have sentenced respondent to death if the unconstitutional statutory aggravating circumstance had not been included in the judge‘s charge. If it is important for the State to authorize and for the prosecution to request the submission of a particular statutory aggravating circumstance to the jury, “we must assume that in some cases [that circumstance] will be decisive in the [jury‘s] choice between a life sentence and a death sentence.” Gardner v. Florida, 430 U. S. 349, 359 (1977) (opinion of STEVENS, J.).
As Justice Stewart pointed out in a similar case, “under Georgia‘s capital punishment scheme, only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death.” Drake v. Zant, 449 U. S. 999, 1001 (1980) (dissenting from denial of certiorari) (emphasis added). Although the Court labors mightily in an effort to demonstrate that submission of the unconstitutional statutory aggravating circumstance did not affect the jury‘s verdict, there is no escape from the conclusion—reached by JUSTICE POWELL only last Term—that respondent was sentenced to death “under instructions that could have misled the jury.” Zant v. Stephens, 456 U. S., at 429 (POWELL, J., dissenting).7 Where a man‘s life is at stake, this inconvenient fact should not be simply swept under the rug.
As I read the Court‘s opinion, the Court does not deny that respondent might have received only a life sentence if the unconstitutional aggravating circumstance had not been submitted to the jury. Rather, the Court assumes that “the instruction did induce the jury to place greater emphasis upon the respondent‘s prior criminal record than it would otherwise have done.” Ante, at 888. The Court concludes, however, that the submission of this unconstitutional statutory factor does not amount to “a constitutional defect in the sentencing process,” ante, at 889, because the jury could properly have been instructed to decide whether either of the other two statutory factors applied and told in addition that “in deciding whether or not [a death] sentence is appropriate you may consider the remainder of [the defendant‘s] prior criminal record,” ante, at 888. The Court finds no constitutional difference between this charge and the charge actually given.
Even assuming that it is proper to sustain a death sentence by reference to a hypothetical instruction that might have been given but was not, the Court errs in assuming that the hypothetical instruction would satisfy the Constitution. As elaborated in Part II above, this Court‘s decisions establish that the actual determination whether a defendant shall live or die—and not merely the threshold decision whether he is eligible for a death sentence—must be guided by clear and objective standards. The focus of the sentencer‘s attention must be directed to specific factors whose existence or nonexistence can be determined with reasonable certainty. Since the hypothetical instruction would fail to channel the
IV
For the foregoing reasons, I would vacate respondent‘s death sentence.
Notes
“In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
“(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
“(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
“(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.”
In Jurek v. Texas, 428 U. S. 262 (1976), we approved a death penalty statute providing even less explicitly for the type of “weighing” that respondent claims is necessary. In Texas, persons convicted of five types of homicide faced a second proceeding in which the jury was required to answer three questions—whether the defendant‘s acts were committed deliberately and with the reasonable expectation that they would result in death; whether there was a probability that the defendant would commit violent acts constituting a continuing threat to society; and whether the defendant‘s acts were in response to some sort of provocation. As the joint opinion recognized, the sole function of the “aggravating circumstances” in the Texas system was to “narro[w] the categories of murders for which a death sentence may ever be imposed,” id., at 270. Since these “aggravating circumstances” were only considered at the guilt determination phase of trial, not at sentencing, the system could not contain a requirement that the jury “balance” these circumstances against mitigating circumstances—as respondent contends is constitutionally required in this case. Although the Court asserts that “the Georgia Supreme Court has unambiguously advised us” that the finding of one or more of the statutory aggravating circumstances “merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty” and serves no other function, ante, at 875, the Georgia Supreme Court‘s answer to our certified question is in fact far from clear. The answer states only that the threshold “is passed regardless of the number of statutory aggravating circumstances found, so long as there is at least one,” and that thereafter the sentencer may consider “all the facts and circumstances of the case.” 250 Ga. 97, 100, 297 S. E. 2d 1, 4 (1982). To say that all aggravating circumstances, statutory and nonstatutory, may be considered once one statutory circumstance has been found, is not to say that “the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.” Ante, at 874 (emphasis added). There is nothing in the Georgia Supreme Court‘s opinion to suggest that jurors are not to give special attention to statutory aggravating circumstances throughout their deliberations, rather than simply in making the threshold determination whether any such circumstances apply.Nonetheless, for the purposes of this opinion I will assume that the majority has correctly characterized the Georgia Supreme Court‘s explanation of the Georgia capital sentencing procedure.
“(1) The offense of Murder was committed by a person with a prior record of conviction for a capital felony. The offense of Murder was committed by
As the Court points out, Street properly has been confined to situations where there is a substantial risk that the jury has imposed criminal punishment because of activity protected by theNor is mandatory appellate review a substitute for legislatively defined criteria to guide the jury in imposing sentence. Ante, at 890. Although appellate review may serve to reduce arbitrariness and caprice “[w]here the sentencing authority is required to specify the factors it relied upon in reaching its decision,” Gregg v. Georgia, supra, at 195 (opinion of Stewart, POWELL, and STEVENS, JJ.), appellate review cannot serve this function where statutory aggravating circumstances play only a threshold role and an appellate court therefore has no means of ascertaining the factors underlying the jury‘s ultimate sentencing decision.
It is one thing to bring to the jury‘s attention a readily identifiable factor such as the defendant‘s prior criminal record, and leave it to the jury to decide what weight that factor should receive. It is quite another thing to ask the jury to determine the applicability of a statutory factor that no group of individuals of ordinary intelligence can be expected to apply in any objective way, and then, if the issue is resolved against the defendant, to take that factor into account in imposing sentence. Both instructions invite the exercise of discretion as to the weight to be given to the statutory factor, but the instruction given here has the further vice of requiring an arbitrary determination that can only be made in a haphazard way. It is as if the jurors were asked to flip a coin and weigh the result in their sentencing decision. Even if the hypothetical charge cited by the Court were proper, the charge given in this case would still be impermissible because it injected an arbitrary determination into the sentencing process.
“What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury?” 456 U. S., at 416-417.
“Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. In addition, the jury is au-
In Gregg, the joint opinion again recognized the need for legislative criteria to limit the death penalty to certain crimes: “[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community‘s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” 428 U. S., at 184. The opinion also noted with approval the efforts of legislatures to “define those crimes and those criminals for which capital punishment is most probably an effective deterrent.” Id., at 186. The opinion of JUSTICE WHITE concurring in the judgment in Gregg asserted that, over time, as the aggravating circumstance requirement was applied, “the types of murders for which the death penalty may be imposed [would] become more narrowly defined and [would be] limited to those which are particularly serious or for which the death penalty is peculiarly appropriate.” Id., at 222. Cf. Roberts (Harry) v. Louisiana, 431 U. S. 633, 636 (1977) (the State may consider as an aggravating circumstance the fact that the murder victim was a peace officer performing his regular duties, because there is “a special interest in affording protection to those public servants who regularly must risk their lives in order to guard the safety of other persons and property“).
“In performing the sentence comparison required by Code Ann. § 27-2537(c)(3), this court uses for comparison purposes not only similar cases in which death was imposed, but similar cases in which death was not imposed.” 237 Ga., at 262, 227 S. E. 2d, at 263.
As an appendix to the opinion it provided a list of the similar cases it had considered, as the statute requires. Id., at 263, 227 S. E. 2d, at 264. See also Ross v. State, 233 Ga. 361, 364-367, 211 S. E. 2d 356, 358-360 (1974); Tucker v. State, 245 Ga. 68, 74, 263 S. E. 2d 109, 113 (1980).