| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 74-6257 |
| [3] | 1976.SCT.42333 <http://www.versuslaw.com>; 428
U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 |
| [4] | July 2, 1976 |
| [5] | GREGG v. GEORGIA |
| [6] | CERTIORARI TO THE SUPREME COURT OF GEORGIA |
| [7] | G. Hughel Harrison, by appointment of the Court, 424 U.S.
941, argued the cause and filed a brief for
petitioner. |
| [8] | G. Thomas Davis, Senior Assistant Attorney General of Georgia, argued
the cause for respondent. With him on the brief were Arthur K. Bolton,
Attorney General, Robert S. Stubbs II, Chief Deputy Attorney General,
Richard L. Chambers, Deputy Attorney General, John B. Ballard, Jr.,
Assistant Attorney General, and Bryant Huff. |
| [9] | Solicitor General Bork argued the cause for the United States as
amicus curiae. With him on the brief was Deputy Solicitor General
Randolph. William E. James, Assistant Attorney General, argued the cause
for the State of California as amicus curiae. With him on the brief were
Evelle J. Younger, Attorney General, and Jack R. Winkler, Chief Assistant
Attorney General.*fn* |
| [10] | Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell,
Rehnquist, Stevens. |
| [11] | Author: Stewart |
| [12] | Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR. JUSTICE
POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE
STEWART. |
| [13] | The issue in this case is whether the imposition of the sentence of
death for the crime of murder under the law of Georgia violates the Eighth
and Fourteenth Amendments. |
| [14] | I |
| [15] | The petitioner, Troy Gregg, was charged with committing
armed robbery and murder. In accordance with Georgia procedure in capital
cases, the trial was in two stages, a guilt stage and a sentencing stage.
The evidence at the guilt trial established that on November 21, 1973, the
petitioner and a traveling companion, Floyd Allen, while hitchhiking north
in Florida were picked up by Fred Simmons and Bob Moore. Their car broke
down, but they continued north after Simmons purchased another vehicle
with some of the cash he was carrying. While still in Florida, they picked
up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where
he was let out about 11 p.m. A
short time later the four men interrupted their journey for a rest stop
along the highway. The next morning the bodies of Simmons and Moore were
discovered in a ditch nearby. |
| [16] | On November 23, after reading about the shootings in an Atlanta
newspaper, Weaver communicated with the Gwinnett County police and related
information concerning the journey with the victims, including a
description of the car. The next afternoon, the petitioner and Allen,
while in Simmons' car, were arrested in Asheville, N.C. In the search
incident to the arrest a.25-caliber pistol, later shown to be that used to
kill Simmons and Moore, was found in the petitioner's pocket. After
receiving the warnings required by Miranda v. Arizona, 384 U.S.
436 (1966), and signing a written waiver of his rights, the
petitioner signed a statement in which he admitted shooting, then robbing
Simmons and Moore. He justified the slayings on grounds of self-defense.
The next day, while being transferred to Lawrenceville, Ga., the
petitioner and Allen were taken to the scene of the shootings. Upon
arriving there, Allen recounted the events leading to the slayings. His
version of these events was as follows: After Simmons and Moore left the
car, the petitioner stated that he intended to rob them. The petitioner
then took his pistol in hand and positioned himself on the car to improve
his aim. As Simmons and Moore came up an embankment toward the car, the
petitioner fired three shots and the two men fell near a ditch. The
petitioner, at close range, then fired a shot into the head of each. He
robbed them of valuables and drove away with Allen. |
| [17] | A medical examiner testified that Simmons died from a bullet wound in
the eye and that Moore died from bullet wounds in the cheek and in the
back of the head. He further testified that both men had several bruises and
abrasions about the face and head which probably were sustained either
from the fall into the ditch or from being dragged or pushed along the
embankment. Although Allen did not testify, a police detective recounted
the substance of Allen's statements about the slayings and indicated that
directly after Allen had made these statements the petitioner had admitted
that Allen's account was accurate. The petitioner testified in his own
defense. He confirmed that Allen had made the statements described by the
detective, but denied their truth or ever having admitted to their
accuracy. He indicated that he had shot Simmons and Moore because of fear
and in self-defense, testifying they had attacked Allen and him, one
wielding a pipe and the other a knife.*fn1 |
| [18] | The trial judge submitted the murder charges to the jury on both
felony-murder and nonfelony-murder theories. He also instructed on the
issue of self-defense but declined to instruct on manslaughter. He
submitted the robbery case to the jury on both an armed-robbery theory and
on the lesser included offense of robbery by intimidation. The jury found
the petitioner guilty of two counts of armed robbery and two counts of
murder. |
| [19] | At the penalty stage, which took place before the same jury, neither
the prosecutor nor the petitioner's lawyer offered any additional
evidence. Both counsel, however, made lengthy arguments dealing generally
with the propriety of capital punishment under the circumstances and with
the weight of the evidence of guilt. The trial judge instructed the jury
that it could recommend either a death sentence or a life prison sentence
on each count. The
judge further charged the jury that in determining what sentence was
appropriate the jury was free to consider the facts and circumstances, if
any, presented by the parties in mitigation or aggravation. |
| [20] | Finally, the judge instructed the jury that it "would not be
authorized to consider [imposing] the penalty of death" unless it first
found beyond a reasonable doubt one of these aggravating circumstances:
S |
| [21] | "One - That the offense of murder was committed while the offender was
engaged in the commission of two other capital felonies, to-wit the armed
robbery of [Simmons and Moore]. |
| [22] | "Two -- That the offender committed the offense of murder for the
purpose of receiving money and the automobile described in the
indictment. |
| [23] | "Three -- The offense of murder was outrageously and wantonly vile,
horrible and inhuman, in that they [sic] involved the depravity of [the]
mind of the defendant." Tr. 476-477.I |
| [24] | Finding the first and second of these circumstances, the jury returned
verdicts of death on each count. |
| [25] | The Supreme Court of Georgia affirmed the convictions and the
imposition of the death sentences for murder. 233 Ga. 117, 210 S.E. 2d 659
(1974). After reviewing the trial transcript and the record, including the
evidence, and comparing the evidence and sentence in similar cases in
accordance with the requirements of Georgia law, the court concluded that,
considering the nature of the crime and the defendant, the sentences of
death had not resulted from prejudice or any other arbitrary factor and
were not excessive or disproportionate to the penalty applied in similar
cases.*fn2
The death sentences
imposed for armed robbery, however, were vacated on the grounds that the
death penalty had rarely been imposed in Georgia for that offense and that
the jury improperly considered the murders as aggravating circumstances
for the robberies after having considered the armed robberies as
aggravating circumstances for the murders. Id., at 127, 210 S.E. 2d, at
667. |
| [26] | We granted the petitioner's application for a writ of certiorari
limited to his challenge to the imposition of the death sentences in this
case as "cruel and unusual" punishment in violation of the Eighth and the
Fourteenth Amendments. 423 U.S. 1082
(1976). |
| [27] | II |
| [28] | Before considering the issues presented it is necessary to understand
the Georgia statutory scheme for the imposition of the death penalty.*fn3
The Georgia statute, as amended after our decision in Furman v. Georgia, 408 U.S. 238 (1972), retains the death penalty for
six categories of crime: murder,*fn4
kidnaping for ransom or where the
victim is harmed, armed robbery,*fn5
rape, treason, and aircraft hijacking.*fn6
Ga. Code Ann. §§ 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26-3301
(1972). The capital defendant's guilt or innocence is determined in the
traditional manner, either by a trial judge or a jury, in the first stage
of a bifurcated trial. |
| [29] | If trial is by jury, the trial judge is required to charge lesser
included offenses when they are supported by any view of the evidence.
Sims v. State, 203 Ga. 668, 47 S.E. 2d 862 (1948). See Linder v. State,
132 Ga. App. 624, 625, 208 S.E. 2d 630, 631 (1974). After a verdict,
finding, or plea of guilty to a capital crime, a presentence hearing is
conducted before whoever made the determination of guilt. The sentencing
procedures are essentially the same in both bench and jury trials. At the
hearing: S |
| [30] | "[T]he 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. The judge [or jury] shall also
hear argument by the defendant or his counsel and the prosecuting
attorney... regarding the punishment to be imposed." § 27-2503 (Supp.
1975).I |
| [31] | The defendant is accorded substantial latitude as to the types of
evidence that he may introduce. See Brown v. State, 235 Ga. 644, 647-650,
220 S.E. 2d 922, 925-926 (1975).*fn7
Evidence considered during the guilt stage may be considered during the
sentencing stage without being resubmitted. Eberheart v. State, 232 Ga.
247, 253, 206 S.E. 2d 12, 17 (1974).*fn8 |
| [32] | In the assessment of the appropriate sentence to be imposed the judge
is also required to consider or to include in his instructions to the jury
"any mitigating circumstances or aggravating circumstances otherwise
authorized by law and any of [10] statutory aggravating circumstances
which may be supported by the evidence...." § 27-2534.1(b) (Supp. 1975).
The scope of the non-statutory aggravating or mitigating circumstances is
not delineated in the statute. Before a convicted defendant may be
sentenced to death, however, except in cases of treason or aircraft
hijacking, the jury, or the trial judge in cases tried without a jury,
must find beyond a reasonable doubt one of the 10 aggravating
circumstances specified in
the statute.*fn9
The sentence of death may be imposed only if the jury (or judge) finds one
of the statutory aggravating circumstances and then elects to impose
that sentence. § 26-3102 (Supp. 1975). If the verdict is death, the jury
or judge must specify the aggravating circumstance(s) found. §
27-2534.1(c) (Supp. 1975). In jury cases, the trial judge is bound by the
jury's recommended sentence. §§ 26-3102, 27-2514 (Supp.
1975). |
| [33] | In addition to the conventional appellate process available in all
criminal cases, provision is made for special expedited direct review by
the Supreme Court of Georgia of the appropriateness of imposing the
sentence of death in the particular case. The court is directed to
consider "the punishment as well as any errors enumerated by way of
appeal," and to determine: S |
| [34] | "(1) Whether the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary factor,
and |
| [35] | "(2) Whether, in cases other than treason or aircraft hijacking, the
evidence supports the jury's or judge's finding of a statutory aggravating
circumstance as enumerated in section 27.2534.1 (b), and |
| [36] | "(3) Whether the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and the
defendant." § 27-2537 (Supp. 1975).I |
| [37] | If the court affirms a death sentence, it is required to include in
its decision reference to similar cases that it has taken into
consideration. § 27-2537 (e) (Supp. 1975).*fn10 |
| [38] | A transcript and complete record of the trial, as well as a separate
report by the trial judge, are transmitted to the court for its use in
reviewing the sentence. § 27-2537 (a) (Supp. 1975). The report is in the
form of a 6 1/2-page questionnaire, designed to elicit information about
the defendant, the crime, and the circumstances of the trial. It requires
the trial judge to characterize the trial in several ways designed to test
for arbitrariness and disproportionality of sentence. Included in the
report are responses to detailed questions concerning the quality of the
defendant's representation, whether race played a role in the trial, and,
whether, in the trial court's judgment, there was any doubt about the
defendant's guilt or the appropriateness of the sentence. A copy of the
report is served upon defense counsel. Under its special review authority,
the court may either affirm the death sentence or remand the case for
resentencing. In cases in which the death sentence is affirmed there
remains the possibility of executive clemency.*fn11 |
| [39] | III |
| [40] | We address initially the basic contention that the punishment of death
for the crime of murder is, under all circumstances, "cruel and unusual"
in violation of the Eighth and Fourteenth Amendments of the Constitution.
In Part IV of this opinion, we will consider the sentence of death imposed
under the Georgia statutes at issue in this case. |
| [41] | The Court on a number of occasions has both assumed and asserted the
constitutionality of capital punishment. In several cases that assumption
provided a necessary foundation for the decision, as the Court was asked
to decide whether a particular method of carrying out a capital sentence
would be allowed to stand under the Eighth Amendment.*fn12
But until Furman v. Georgia, 408 U.S. 238 (1972), the
Court never confronted squarely the fundamental claim that the punishment
of death always, regardless of the enormity of the offense or the
procedure followed in imposing the sentence, is cruel and unusual
punishment in violation of the Constitution. Although this issue was
presented and addressed in Furman, it was not resolved by the Court. Four
Justices would have held that capital punishment is not unconstitutional
per se;*fn13
two Justices would have reached the opposite conclusion;*fn14
and three Justices, while agreeing that the statutes then before the Court
were invalid as applied, left open the question whether such punishment
may ever be imposed.*fn15
We now hold that the punishment of death does not invariably violate the
Constitution. |
| [42] | A |
| [43] | The history of the prohibition of "cruel and unusual" punishment
already has been reviewed at length.*fn16
The phrase first appeared in the English Bill of Rights of 1689, which was
drafted by Parliament at the accession of William and Mary. See Granucci,
"Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57
Calif. L. Rev. 839, 852-853 (1969). The English version appears to have
been directed against punishments unauthorized by statute and beyond the
jurisdiction of the sentencing court, as well as those disproportionate to
the offense involved. Id., at 860. The American
draftsmen, who adopted the English phrasing in drafting the Eighth
Amendment, were primarily concerned, however, with proscribing "tortures"
and other "barbarous" methods of punishment." Id., at 842.*fn17 |
| [44] | In the earliest cases raising Eighth Amendment claims, the Court
focused on particular methods of execution to determine whether they were
too cruel to pass constitutional muster. The constitutionality of the
sentence of death itself was not at issue, and the criterion used to
evaluate the mode of execution was its similarity to "torture" and other
"barbarous" methods. See Wilkerson v. Utah, 99 U.S. 130, 136 (1879) ("[I]t is safe to affirm that punishments of
torture... and all others in the same line of unnecessary cruelty, are
forbidden by that amendment..."); In re Kemmler, 136 U.S. 436, 447 (1890) ("Punishments are cruel when they involve
torture or a lingering death..."). See also Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 464 (1947) (second attempt at
electrocution found not to violate Eighth
Amendment, since failure of initial execution attempt was "an
unforeseeable accident" and "[t]here [was] no purpose to inflict
unnecessary pain nor any unnecessary pain involved in the proposed
execution"). |
| [45] | But the Court has not confined the prohibition embodied in the Eighth
Amendment to "barbarous" methods that were generally outlawed in the 18th
century. Instead, the Amendment has been interpreted in a flexible and
dynamic manner. The Court early recognized that "a principle to be vital
must be capable of wider application than the mischief which gave it
birth." Weems v. United States, 217 U.S. 349, 373
(1910). Thus the Clause forbidding "cruel and unusual" punishments "is not
fastened to the obsolete but may acquire meaning as public opinion becomes
enlightened by a humane justice." Id., at 378. See also Furman v. Georgia,
408 U.S., at 429-430 (POWELL, J., dissenting); Trop v. Dulles,
356 U.S. 86, 100-101 (1958) (plurality
opinion). |
| [46] | In Weems the Court addressed the constitutionality of the Philippine
punishment of cadena temporal for the crime of falsifying an official
document. That punishment included imprisonment for at least 12 years and
one day, in chains, at hard and painful labor; the loss of many basic
civil rights; and subjection to lifetime surveillance. Although the Court
acknowledged the possibility that "the cruelty of pain" may be present in
the challenged punishment, 217 U.S., at 366, it did
not rely on that factor, for it rejected the proposition that the Eighth
Amendment reaches only punishments that are "inhuman and barbarous,
torture and the like." Id., at 368. Rather, the Court focused on the lack
of proportion between the crime and the offense: S |
| [47] | "Such penalties for such offenses amaze those who have formed their
conception of the relation of a state to even its offending citizens from
the practice of
the American commonwealths, and believe that it is a precept of justice
that punishment for crime should be graduated and proportioned to
offense." Id., at 366-367.*fn18 |
| [48] | Later, in Trop v. Dulles, supra, the Court reviewed the
constitutionality of the punishment of denationalization imposed upon a
soldier who escaped from an Army stockade and became a deserter for one
day. Although the concept of proportionality was not the basis of the
holding, the plurality observed in dicta that "[fines], imprisonment and
even execution may be imposed depending upon the enormity of the crime." 356 U.S., at 100. |
| [49] | The substantive limits imposed by the Eighth Amendment on what can be
made criminal and punished were discussed in Robinson v. California, 370 U.S. 660 (1962). The Court found unconstitutional
a state statute that made the status of being addicted to a narcotic drug
a criminal offense. It held, in effect, that it is "cruel and unusual" to
impose any punishment at all for the mere status of addiction. The cruelty
in the abstract of the actual sentence imposed was irrelevant: "Even one
day in prison would be a cruel and unusual punishment for the 'crime' of
having a common cold." Id., at 667. Most recently, in Furman v. Georgia,
supra, three Justices in separate concurring opinions found the Eighth
Amendment applicable to procedures employed to select convicted defendants
for the sentence of death. |
| [50] | It is clear from the foregoing precedents that the Eighth
Amendment has not been regarded as a static concept. As Mr. Chief Justice
Warren said, in an often-quoted phrase, "[t]he Amendment must draw its
meaning from the evolving standards of decency that mark the progress of a
maturing society." Trop v. Dulles, supra, at 101. See also Jackson v.
Bishop, 404 F.2d 571, 579 (CA8 1968). Cf. Robinson v.
California, supra, at 666. Thus, an assessment of contemporary values
concerning the infliction of a challenged sanction is relevant to the
application of the Eighth Amendment. As we develop below more fully, see
infra, at 175-176, this assessment does not call for a subjective
judgment. It requires, rather, that we look to objective indicia that
reflect the public attitude toward a given sanction. |
| [51] | But our cases also make clear that public perceptions of standards of
decency with respect to criminal sanctions are not conclusive. A penalty
also must accord with "the dignity of man," which is the "basic concept
underlying the Eighth Amendment." Trop v. Dulles, supra, at 100 (plurality
opinion). This means, at least, that the punishment not be "excessive."
When a form of punishment in the abstract (in this case, whether capital
punishment may ever be imposed as a sanction for murder) rather than in
the particular (the propriety of death as a penalty to be applied to a
specific defendant for a specific crime) is under consideration, the
inquiry into "excessiveness" has two aspects. First, the punishment must
not involve the unnecessary and wanton infliction of pain. Furman v.
Georgia, supra, at 392-393 (BURGER, C.J., dissenting). See Wilkerson v.
Utah, 99 U.S., at 136; Weems v. United States, supra,
at 381. Second, the punishment must not be grossly out of proportion to
the severity of the crime. Trop v. Dulles, supra, at 100 (plurality
opinion) (dictum); Weems v. United States, supra, at 367. B |
| [52] | Of course, the requirements of the Eighth Amendment must be applied
with an awareness of the limited role to be played by the courts. This
does not mean that judges have no role to play, for the Eighth Amendment
is a restraint upon the exercise of legislative power. S |
| [53] | "Judicial review, by definition, often involves a conflict between
judicial and legislative judgment as to what the Constitution means or
requires. In this respect, Eighth Amendment cases come to us in no
different posture. It seems conceded by all that the Amendment imposes
some obligations on the judiciary to judge the constitutionality of
punishment and that there are punishments that the Amendment would bar
whether legislatively approved or not." Furman v. Georgia, 408
U.S., at 313-314 (WHITE, J., concurring).I |
| [54] | See also id., at 433 (POWELL, J., dissenting).*fn19 |
| [55] | But, while we have an obligation to insure that constitutional bounds
are not overreached, we may not act as judges as we might as legislators.
S |
| [56] | "Courts are not representative bodies. They are not designed to be a
good reflex of a democratic society. Their judgment is best informed, and
therefore most dependable, within narrow limits. Their essential quality
is detachment, founded on independence. History teaches that the
independence of the judiciary is jeopardized when courts become embroiled
in the passions of the day and assume primary responsibility in choosing
between competing political, economic and social pressures." Dennis v.
United States, 341 U.S. 494, 525 (1951) (Frankfurter,
J., concurring in affirmance of judgment).*fn20 |
| [57] | Therefore, in assessing a punishment selected by a democratically
elected legislature against the constitutional measure, we presume its
validity. We may not require the legislature to select the least severe
penalty possible so long as the penalty selected is not cruelly inhumane
or disproportionate to the crime involved. And a heavy burden rests on
those who would attack the judgment of the representatives of the
people. |
| [58] | This is true in part because the constitutional test is intertwined
with an assessment of contemporary standards and the legislative judgment
weighs heavily in ascertaining such standards. "[I]n a democratic society
legislatures, not courts, are constituted to respond to the will and
consequently the moral values of the people." imposed
a mandatory death sentence on all convicted murderers. McGautha v.
California, 402 U.S. 183, 197-198 (1971). And the
penalty continued to be used into the 20th century by most American
States, although the breadth of the common-law rule was diminished,
initially by narrowing the class of murders to be punished by death and
subsequently by widespread adoption of laws expressly granting juries the
discretion to recommend mercy. Id., at 199-200. See Woodson v. North
Carolina, post, at 289-292. |
| [59] | It is apparent from the text of the Constitution itself that the
existence of capital punishment was accepted by the Framers. At the time
the Eighth Amendment was ratified, capital punishment was a common
sanction in every State. Indeed, the First Congress of the United States
enacted legislation providing death as the penalty for specified crimes.
C. 9, 1 Stat. 112 (1790). The Fifth Amendment, adopted at the same time as
the Eighth, contemplated the continued existence of the capital sanction
by imposing certain limits on the prosecution of capital cases:
S |
| [60] | "No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury...;
nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb;... nor be deprived of life, liberty, or
property, without due process of law...."I |
| [61] | And the Fourteenth Amendment, adopted over three-quarters of a century
later, similarly contemplates the existence of the capital sanction in
providing that no State shall deprive any person of "life, liberty, or
property" without due process of law. |
| [62] | For nearly two centuries, this Court, repeatedly and often
expressly, has recognized that capital punishment is not invalid per se.
In Wilkerson v. Utah, 99 U.S., at 134-135, where the
Court found no constitutional violation in inflicting death by public
shooting, it said: S |
| [63] | "Cruel and unusual punishments are forbidden by the Constitution, but
the authorities referred to are quite sufficient to show that the
punishment of shooting as a mode of executing the death penalty for the
crime of murder in the first degree is not included in that category,
within the meaning of the eighth amendment."I |
| [64] | Rejecting the contention that death by electrocution was "cruel and
unusual," the Court in In re Kemmler, supra, at 447, reiterated:
S |
| [65] | "[T]he punishment of death is not cruel, within the meaning of that
word as used in the Constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of
life."I |
| [66] | Again, in Louisiana ex rel. Francis v. Resweber, 329 U.S.,
at 464, the Court remarked: "The cruelty against which the
Constitution protects a convicted man is cruelty inherent in the method of
punishment, not the necessary suffering involved in any method employed to
extinguish life humanely." And in Trop v. Dulles, 356 U.S., at
99, Mr. Chief Justice Warren, for himself and three other
Justices, wrote: S |
| [67] | "Whatever the arguments may be against capital punishment, both on
moral grounds and in terms of accomplishing the purposes of punishment...
the death penalty has been employed throughout our history, and, in a day
when it is still widely accepted, it cannot be said to violate the
constitutional concept of cruelty."I Four
years ago, the petitioners in Furman and its companion cases predicated
their argument primarily upon the asserted proposition that standards of
decency had evolved to the point where capital punishment no longer could
be tolerated. The petitioners in those cases said, in effect, that the
evolutionary process had come to an end, and that standards of decency
required that the Eighth Amendment be construed finally as prohibiting
capital punishment for any crime regardless of its depravity and impact on
society. This view was accepted by two Justices.*fn21
Three other Justices were unwilling to go so far; focusing on the
procedures by which convicted defendants were selected for the death
penalty rather than on the actual punishment inflicted, they joined in the
conclusion that the statutes before the Court were constitutionally
invalid.*fn22 |
| [68] | The petitioners in the capital cases before the Court today renew the
"standards of decency" argument, but developments during the four years
since Furman have undercut substantially the assumptions upon which their
argument rested. Despite the continuing debate, dating back to the 19th
century, over the morality and utility of capital punishment, it is now
evident that a large proportion of American society continues to regard it
as an appropriate and necessary criminal sanction. |
| [69] | The most marked indication of society's endorsement of the death
penalty for murder is the legislative response to Furman. The legislatures
of at least 35 States*fn23
have enacted new statutes that provide for the death
penalty for at least some crimes that result in the death of another
person. And the Congress of the United States, in 1974, enacted a statute
providing the death penalty for aircraft piracy that results in death.*fn24
These recently adopted statutes have attempted to address the concerns
expressed by the Court in Furman primarily (i) by specifying the factors
to be weighed and the procedures to be followed in deciding when to impose
a capital sentence, or (ii) by making the death penalty mandatory for
specified crimes. But all of the post- Furman statutes make clear that
capital punishment itself
has not been rejected by the elected representatives of the
people. |
| [70] | In the only statewide referendum occurring since Furman and brought to
our attention, the people of California adopted a constitutional amendment
that authorized capital punishment, in effect negating a prior ruling by
the Supreme Court of California in People v. Anderson, 6 Cal. 3d 628, 493
P. 2d 880, cert. denied, 406 U.S. 958 (1972), that
the death penalty violated the California Constitution.*fn25 |
| [71] | The jury also is a significant and reliable objective index of
contemporary values because it is so directly involved. See Furman v.
Georgia, 408 U.S., at 439-440 (POWELL, J., dissenting). See generally
Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1 (1966). The
Court has said that "one of the most important functions any jury can
perform in making... a selection [between life imprisonment and death for
a defendant convicted in a capital case] is to maintain a link between
contemporary community values and the penal system." Witherspoon v.
Illinois, 391 U.S. 510, 519 n. 15 (1968). It may be
true that evolving standards have influenced juries in recent
decades to be more discriminating in imposing the sentence of death.*fn26
But the relative infrequency of jury verdicts imposing the death sentence
does not indicate rejection of capital punishment per se. Rather, the
reluctance of juries in many cases to impose the sentence may well reflect
the humane feeling that this most irrevocable of sanctions should be
reserved for a small number of extreme cases. See Furman v. Georgia,
supra, at 388 (BURGER, C.J., dissenting). Indeed, the actions of juries in
many States since Furman are fully compatible with the legislative
judgments, reflected in the new statutes, as to the continued utility and
necessity of capital punishment in appropriate cases. At the close of 1974
at least 254 persons had been sentenced to death since Furman,*fn27
and by the end of March 1976, more than 460 persons were subject to death
sentences. |
| [72] | As we have seen, however, the Eighth Amendment demands more than that
a challenged punishment be acceptable to contemporary society. The Court
also must ask whether it comports with the basic concept of human dignity
at the core of the Amendment. Trop v. Dulles, 356 U.S., at 100 plurality opinion. Although we cannot "invalidate a
category of penalties because we deem less severe penalties adequate to
serve the ends of penology,"
Furman v. Georgia, supra, at 451 (POWELL, J., dissenting), the sanction
imposed cannot be so totally without penological justification that it
results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U.S., at 135-136; In re Kemmler, 136
U.S., at 447. |
| [73] | The death penalty is said to serve two principal social purposes:
retribution and deterrence of capital crimes by prospective offenders.*fn28 |
| [74] | In part, capital punishment is an expression of society's moral
outrage at particularly offensive conduct.*fn29
This function may be unappealing to many, but it is essential in an
ordered society that asks its citizens to rely on legal processes rather
than self-help to vindicate their wrongs. S |
| [75] | "The instinct for retribution is part of the nature of man, and
channeling that instinct in the administration of criminal justice serves
an important purpose in promoting the stability of a society governed by
law. When people begin to believe that organized society is unwilling or
unable to impose upon criminal offenders the punishment they 'deserve,'
then there are sown the seeds of anarchy -- of self-help, vigilante
justice, and lynch law." Furman v. Georgia, supra, at 308 (STEWART, J.,
concurring).I |
| [76] | Retribution is no longer the dominant objective of the criminal law,"
Williams v. New York, 337 U.S. 241, 248 (1949), but
neither is it a forbidden objective nor one inconsistent with our respect
for the dignity of men. simply
have been inconclusive. As one opponent of capital punishment has said:
S |
| [77] | "[A]fter all possible inquiry, including the probing of all possible
methods of inquiry, we do not know, and for systematic and easily visible
reasons cannot know, what the truth about this 'deterrent' effect may
be.... |
| [78] | "The inescapable flaw is... that social conditions in any state are
not constant through time, and that social conditions are not the same in
any two states. If an effect were observed (and the observed effects, one
way or another, are not large) then one could not at all tell whether any
of this effect is attributable to the presence or absence of capital
punishment. A 'scientific' -- that is to say, a soundly based --
conclusion is simply impossible, and no methodological path out of this
tangle suggests itself." C. Black, Capital Punishment: The Inevitability
of Caprice and Mistake 25-26 (1974).I |
| [79] | Although some of the studies suggest that the death penalty may not
function as a significantly greater deterrent than lesser penalties,*fn32
there is no convincing empirical evidence either supporting or refuting
this view. We may nevertheless assume safely that there are murderers,
such as those who act in passion, for whom the threat of death has little
or no deterrent effect. But for many others, the death penalty undoubtedly
is a significant deterrent.
There are carefully contemplated murders, such as murder for hire, where
the possible penalty of death may well enter into the cold calculus that
precedes the decision to act.*fn33
And there are some categories of murder, such as murder by a life
prisoner, where other sanctions may not be adequate.*fn34 |
| [80] | The value of capital punishment as a deterrent of crime is a complex
factual issue the resolution of which properly rests with the
legislatures, which can evaluate the results of statistical studies in
terms of their own local conditions and with a flexibility of approach
that is not available to the courts. Furman v. Georgia, supra, at 403-405
(BURGER, C.J., dissenting). Indeed, many of the post- Furman statutes
reflect just such a responsible effort to define those crimes and those
criminals for which capital punishment is most probably an effective
deterrent. |
| [81] | In sum, we cannot say that the judgment of the Georgia Legislature
that capital punishment may be necessary in some cases is clearly wrong.
Considerations of federalism, as well as respect for the ability of a
legislature to
evaluate, in terms of its particular State, the moral consensus concerning
the death penalty and its social utility as a sanction, require us to
conclude, in the absence of more convincing evidence, that the infliction
of death as a punishment for murder is not without justification and thus
is not unconstitutionally severe. |
| [82] | Finally, we must consider whether the punishment of death is
disproportionate in relation to the crime for which it is imposed. There
is no question that death as a punishment is unique in its severity and
irrevocability. Furman v. Georgia, 408 U.S., at 286-291 (BRENNAN, J., concurring); id., at 306 (STEWART, J.,
concurring). When a defendant's life is at stake, the Court has been
particularly sensitive to insure that every safeguard is observed. Powell
v. Alabama, 287 U.S. 45, 71 (1932); Reid v. Covert, 354 U.S. 1, 77 (1957) (Harlan, J., concurring in
result). But we are concerned here only with the imposition of capital
punishment for the crime of murder, and when a life has been taken
deliberately by the offender,*fn35
we cannot say that the punishment is invariably disproportionate to the
crime. It is an extreme sanction, suitable to the most extreme of
crimes. |
| [83] | We hold that the death penalty is not a form of punishment that may
never be imposed, regardless of the circumstances of the offense,
regardless of the character of the offender, and regardless of the
procedure followed in reaching the decision to impose it. |
| [84] | IV |
| [85] | We now consider whether Georgia may impose the death penalty on the
petitioner in this case. A |
| [86] | While Furman did not hold that the infliction of the death penalty per
se violates the Constitution's ban on cruel and unusual punishments, it
did recognize that the penalty of death is different in kind from any
other punishment imposed under our system of criminal justice. Because of
the uniqueness of the death penalty, Furman held that it could not be
imposed under sentencing procedures that created a substantial risk that
it would be inflicted in an arbitrary and capricious manner. MR. JUSTICE
WHITE concluded that "the death penalty is exacted with great infrequency
even for the most atrocious crimes and... there is no meaningful basis for
distinguishing the few cases in which it is imposed from the many cases in
which it is not." 408 U.S., at 313 (concurring).
Indeed, the death sentences examined by the Court in Furman were "cruel
and unusual in the same way that being struck by lightning is cruel and
unusual. For, of all the people convicted of [capital crimes], many just
as reprehensible as these, the petitioners [in Furman were] 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 penalty to be so wantonly and so freakishly imposed."
Id., at 309-310 (STEWART, J., concurring).*fn36
The
cited studies assumed that the trial judge would be the sentencing
authority. If an experienced trial judge, who daily faces the difficult
task of imposing sentences, has a vital need for accurate information
about a defendant and the crime he committed in order to be able to impose
a rational sentence in the typical criminal case, then accurate sentencing
information is an indispensable prerequisite to a reasoned determination
of whether a defendant shall live or die by a jury of people who may never
before have made a sentencing decision. |
| [87] | Jury sentencing has been considered desirable in capital cases in
order "to maintain a link between contemporary community values and the
penal system - a link without which the determination of punishment could
hardly reflect 'the evolving standards of decency that mark the progress
of a maturing society.'"*fn39
But it creates special problems. Much of the information that is relevant
to the sentencing decision may have no relevance to the question of guilt,
or may even be extremely prejudicial to a fair determination of that
question.*fn40
This problem, however, is scarcely insurmountable. Those who have studied
the question suggest that a bifurcated procedure -- one in which the question
of sentence is not considered until the determination of guilt has been
made - is the best answer. The drafters of the Model Penal Code concluded:
S |
| [88] | "If a unitary proceeding is used the determination of the punishment
must be based on less than all the evidence that has a bearing on that
issue, such for example as a previous criminal record of the accused, or
evidence must be admitted on the ground that it is relevant to sentence,
though it would be excluded as irrelevant or prejudicial with respect to
guilt or innocence alone. Trial lawyers understandably have little
confidence in a solution that admits the evidence and trusts to an
instruction to the jury that it should be considered only in determining
the penalty and disregarded in assessing guilt. |
| [89] | "... The obvious solution... is to bifurcate the proceeding, abiding
strictly by the rules of evidence until and unless there is a conviction,
but once guilt has been determined opening the record to the further
information that is relevant to sentence. This is the analogue of the
procedure in the ordinary case when capital punishment is not in issue;
the court conducts a separate inquiry before imposing sentence." ALI,
Model Penal Code § 201.6, Comment 5, pp. 74-75 (Tent. Draft No. 9,
1959).I |
| [90] | See also Spencer v. Texas, 385 U.S. 554, 567-569
(1967); Report of the Royal Commission on Capital Punishment, 1949-1953,
Cmd. 8932, [*] [*] 555, 574; Knowlton, Problems of Jury Discretion in
Capital Cases, 101 U. Pa. L. Rev. 1099, 1135-1136 (1953). When a human
life is at stake and when the jury must have information prejudicial to
the question of guilt but relevant to the question of penalty in order to
impose a rational sentence, a system
is more likely to ensure elimination of the constitutional deficiencies
identified in Furman.*fn41 |
| [91] | But the provision of relevant information under fair procedural rules
is not alone sufficient to guarantee that the information will be properly
used in the imposition of punishment, especially if sentencing is
performed by a jury. Since the members of a jury will have had little, if
any, previous experience in sentencing, they are unlikely to be skilled in
dealing with the information they are given. See American Bar Association
Project on Standards for Criminal Justice, Sentencing Alternatives and
Procedures, § 1.1(b), Commentary, pp. 46-47 (Approved Draft 1968);
President's Commission on Law Enforcement and Administration of Justice:
The Challenge of Crime in a Free Society, Task Force Report: The Courts 26
(1967). To the extent that this problem is inherent in jury sentencing, it
may not be totally correctable. It seems clear, however, that the problem
will be alleviated if the jury is given guidance regarding the factors
about the crime and the defendant that the State, representing organized
society, deems particularly relevant to the sentencing
decision. |
| [92] | The idea that a jury should be given guidance in its decisionmaking
is also hardly a novel proposition. Juries are invariably given careful
instructions on the law and how to apply it before they are authorized to
decide the merits of a lawsuit. It would be virtually unthinkable to
follow any other course in a legal system that has traditionally operated
by following prior precedents and fixed rules of law.*fn42
See Gasoline Products Co. v. Champlin Refining Co., 283 U.S.
494, 498 (1931); Fed. Rule Civ. Proc. 51. When erroneous
instructions are given, retrial is often required. It is quite simply a
hallmark of our legal system that juries be carefully and adequately
guided in their deliberations. |
| [93] | While some have suggested that standards to guide a capital jury's
sentencing deliberations are impossible to formulate,*fn43
the fact is that such standards have been developed. When the drafters of
the Model Penal Code faced this problem, they concluded "that it is within
the realm of possibility to point to the main circumstances of aggravation
and of mitigation that should be weighed and weighed against each other
when they are presented in a concrete case." ALI, Model Penal Code §
201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in
original).*fn44
While such standards are by necessity
somewhat general, they do provide guidance to the sentencing authority and
thereby reduce the likelihood that it will impose a sentence that fairly
can be called
capricious or arbitrary.*fn45
Where the sentencing authority is required to specify the factors it
relied upon in reaching its decision, the further safeguard of meaningful
appellate review is available to ensure that death sentences are not
imposed capriciously or in a freakish manner. |
| [94] | In summary, the concerns expressed in Furman that the penalty of death
not be imposed in an arbitrary or capricious manner can be met by a
carefully drafted statute that ensures that the sentencing authority is
given adequate information and guidance. As a general proposition these
concerns are best met by a system that provides for a bifurcated
proceeding at which the sentencing authority is apprised of the
information relevant to the imposition of sentence and provided with
standards to guide its use of the information. |
| [95] | 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 general lines would inevitably satisfy the
concerns of Furman,*fn46
for each distinct system must be examined on an individual basis. Rather,
we have embarked upon this general exposition to make clear that it is
possible to construct capital-sentencing systems capable of meeting
Furman' s constitutional concerns.*fn47
B |
| [96] | We now turn to consideration of the constitutionality of Georgia's
capital-sentencing procedures. In the wake of Furman, Georgia amended its
capital punishment statute, but chose not to narrow the scope of its
murder provisions. See Part II, supra. Thus, now as before Furman, in
Georgia "[a] person commits murder when he unlawfully and with malice
aforethought, either express or implied, causes the death of another human
being." Ga. Code Ann., § 26-1101(a) (1972). All persons convicted of
murder "shall be punished by death or by imprisonment for life." §
26-1101(c) (1972). |
| [97] | 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.*fn48
In addition, the jury is authorized 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. |
| [98] | 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 (e.g., his youth, the extent
of his cooperation with the police, his emotional state at the time of the
crime).*fn49
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." Coley v. State, 231 Ga. 829, 834, 204
S.E. 2d 612, 615 (1974). |
| [99] | As an important additional safeguard against arbitrariness and
caprice, the Georgia statutory scheme provides for automatic appeal of all
death sentences to the State's Supreme Court. That court is required by
statute to review each sentence of death and determine whether it was
imposed under the influence of passion or prejudice, whether the evidence
supports the jury's finding of a statutory aggravating circumstance, and
whether the sentence is disproportionate compared to those sentences
imposed in similar cases. § 27-2537 (c) (Supp. 1975). |
| [100] | In short, Georgia's new sentencing procedures require as a
prerequisite to the imposition of the death penalty, specific jury
findings as to the circumstances of the crime or the character of the
defendant. Moreover, to guard further against a situation comparable to
that presented in Furman, the Supreme Court of Georgia compares each death
sentence with the sentences imposed on similarly situated defendants to
ensure that the sentence of death in a particular case is not
disproportionate. On their face these procedures seem to satisfy the
concerns of Furman. No longer should there be "no meaningful basis for
distinguishing the few cases in which [the death penalty] is imposed from
the many cases in which it is not." 408 U.S., at 313
(WHITE, J., concurring). |
| [101] | The petitioner contends, however, that the changes in the Georgia
sentencing procedures are only cosmetic, that the arbitrariness and
capriciousness condemned by Furman continue to exist in Georgia -- both in
traditional practices that still remain and in the new sentencing
procedures adopted in response to Furman. |
| [102] | First, the petitioner focuses on the opportunities for discretionary
action that are inherent in the processing of any murder case under
Georgia law. He notes that the state prosecutor has unfettered authority
to select those persons whom he wishes to prosecute for a capital offense
and to plea bargain with them. Further, at the trial the jury may choose
to convict a defendant of a lesser included offense rather than find him
guilty of a crime punishable by death, even if the evidence would support
a capital verdict. And finally, a defendant who is convicted and sentenced
to die may have his sentence commuted by the Governor of the State and the
Georgia Board of Pardons and Paroles. |
| [103] | The existence of these discretionary stages is not determinative of
the issues before us. At each of these stages an actor in the criminal
justice system makes a decision which may remove a defendant from
consideration as a candidate for the death penalty. Furman, in contrast,
dealt with the decision to impose the death sentence on a specific
individual who had been convicted of a capital offense. Nothing in any of
our cases suggests that the decision to afford an individual defendant
mercy violates the Constitution. Furman held only that, in order to
minimize the risk that the death penalty would be imposed on a
capriciously selected group of offenders, the decision to impose it had to
be guided by standards so that the sentencing authority would focus on the
particularized circumstances of the crime and the defendant.*fn50
|
| [104] | The petitioner further contends that the capital sentencing procedures
adopted by Georgia in response to Furman do not eliminate the dangers of
arbitrariness and caprice in jury sentencing that were held in Furman to
be violative of the Eighth and Fourteenth Amendments. He claims that the
statute is so broad and vague as to leave juries free to act as
arbitrarily and capriciously as they wish in deciding whether to impose
the death penalty. While there is no claim that the jury in this case
relied upon a vague or overbroad provision to establish the existence of a
statutory aggravating circumstance, the petitioner looks to the sentencing
system as a whole (as the Court did in Furman and we do today) and argues
that it fails to reduce sufficiently the risk of arbitrary infliction of
death sentences. Specifically, Gregg urges that the
statutory aggravating circumstances are too broad and too vague, that the
sentencing procedure allows for arbitrary grants of mercy, and that the
scope of the evidence and argument that can be considered at the
presentence hearing is too wide. The
petitioner attacks the seventh statutory aggravating circumstance, which
authorizes imposition of the death penalty if the murder was "outrageously
or wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim," contending
that it is so broad that capital punishment could be imposed in any murder
case.*fn51
It is, of course, arguable that any murder involves depravity of mind or
an aggravated battery. But this language need not be construed in this
way, and there is no reason to assume that the Supreme Court of Georgia
will adopt such an open-ended construction.*fn52
In only one case has it upheld a jury's decision to sentence a defendant
to death when the only statutory aggravating circumstance found was that
of the seventh, see McCorquodale v. State, 233 Ga. 369, 211 S.E. 2d 577
(1974), and that homicide was a horrifying torture-murder.*fn53
The
petitioner also argues that two of the statutory aggravating circumstances
are vague and therefore susceptible of widely differing interpretations,
thus creating a substantial risk that the death penalty will be
arbitrarily inflicted by Georgia juries.*fn54
In light of the decisions of the Supreme Court of Georgia we must
disagree. First, the petitioner attacks that part of § 27-2534.1 (b)(1)
that authorizes a jury to consider whether a defendant has a "substantial
history of serious assaultive criminal convictions." The Supreme Court of
Georgia, however, has demonstrated a concern that the new sentencing
procedures provide guidance to juries. It held this provision to be
impermissibly vague in Arnold v. State, 236 Ga. 534, 540, 224 S.E. 2d 386,
391 (1976), because it did not provide the jury with "sufficiently 'clear
and objective standards.'" Second, the petitioner points to § 27-2534.1
(b)(3) which speaks of creating a "great risk of death to more than one
person." While such a phrase might be susceptible of an overly broad
interpretation, the Supreme Court of Georgia has not so construed it. The
only case in which the court upheld a conviction in reliance on this
aggravating circumstance involved a man who stood up in a church and fired
a gun indiscriminately into the audience. See 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. See supra, at
189-190. |
| [105] | 3 |
| [106] | Finally, the Georgia statute has an additional provision designed to
assure that the death penalty will not be imposed on a capriciously
selected group of convicted defendants. The new sentencing procedures
require that the State Supreme Court review every death sentence to
determine whether it was imposed under the influence of passion,
prejudice, or any other arbitrary factor, whether the evidence supports
the findings of a statutory aggravating circumstance, and "[w]hether the
sentence of death is excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant. " §
27-2537 (c)(3) (Supp. 1975).*fn56
In performing its
sentence-review function, the Georgia court has held that "if the death
penalty is only rarely imposed for an act or it is substantially out of
line with sentences imposed for other acts it will be set aside as
excessive." Coley v. State, 231 Ga., at 834, 204 S.E. 2d, at 616. The
court on another occasion stated that "we view it to be our duty under the
similarity standard to assure that no death sentence is affirmed unless in
similar cases throughout the state the death penalty has been imposed
generally...." Moore v. State, 233 Ga. 861, 864, 213 S.E. 2d 829, 832
(1975). See also Jarrell v. State, supra, at 425, 216 S.E. 2d, at 270
(standard is whether "juries generally throughout the state have imposed
the death penalty"); Smith v. State, 236 Ga. 12, 24, 222 S.E. 2d 308, 318
(1976) (found "a clear pattern" of jury behavior). |
| [107] | It is apparent that the Supreme Court of Georgia has taken its review
responsibilities seriously. In Coley, it held that "[the] prior cases
indicate that the past practice among juries faced with similar factual
situations and like aggravating circumstances has been to impose only the
sentence of life imprisonment for the offense of rape, rather than death."
231 Ga., at 835, 204 S.E. 2d, at 617. It thereupon reduced Coley's
sentence from death to life imprisonment. Similarly, although armed
robbery is a capital offense under Georgia law, § 26-1902 (1972), the
Georgia court concluded that the death sentences imposed in this case for
that crime were "unusual in that they are rarely imposed for [armed
robbery]. Thus, under the test provided by statute,... they must be
considered to be excessive or disproportionate to the penalties imposed in
similar cases." 233 Ga.,
at 127, 210 S.E. 2d, at 667. The court therefore vacated
Gregg's death sentences for armed robbery and has followed a
similar course in every other armed robbery death penalty case to come
before it. See Floyd v. State, 233 Ga. 280, 285, 210 S.E. 2d 810, 814
(1974); Jarrell v. State, 234 Ga., at 424-425, 216 S.E. 2d, at 270. See
Dorsey v. State, 236 Ga. 591, 225 S.E. 2d 418 (1976). |
| [108] | The provision for appellate review in the Georgia capital-sentencing
system serves as a check against the random or arbitrary imposition of the
death penalty. In particular, the proportionality review substantially
eliminates the possibility that a person will be sentenced to die by the
action of an aberrant jury. If a time comes when juries generally do not
impose the death sentence in a certain kind of murder case, the appellate
review procedures assure that no defendant convicted under such
circumstances will suffer a sentence of death. |
| [109] | V |
| [110] | The basic concern of Furman centered on those defendants who were
being condemned to death capriciously and arbitrarily. Under the
procedures before the Court in that case, sentencing authorities were not
directed to give attention to the nature or circumstances of the crime
committed or to the character or record of the defendant. Left unguided,
juries imposed the death sentence in a way that could only be called
freakish. The new Georgia sentencing procedures, by contrast, focus the
jury's attention on the particularized nature of the crime and the
particularized characteristics of the individual defendant. While the jury
is permitted to consider any aggravating or mitigating circumstances, it
must find and identify at least one statutory aggravating factor before it
may impose a penalty of death. In this way the jury's discretion is
channeled. No longer can
a jury wantonly and freakishly impose the death sentence; it is always
circumscribed by the legislative guidelines. In addition, the review
function of the Supreme Court of Georgia affords additional assurance that
the concerns that prompted our decision in Furman are not present to any
significant degree in the Georgia procedure applied here. |
| [111] | For the reasons expressed in this opinion, we hold that the statutory
system under which Gregg was sentenced to death does not
violate the Constitution. Accordingly, the judgment of the Georgia Supreme
Court is affirmed. |
| [112] | It is so ordered. |
| [113] | MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring in the judgment. |
| [114] | In Furman v. Georgia, 408 U.S. 238 (1972), this
Court held the death penalty as then administered in Georgia to be
unconstitutional. That same year the Georgia Legislature enacted a new
statutory scheme under which the death penalty may be imposed for several
offenses, including murder. The issue in this case is whether the death
penalty imposed for murder on petitioner Gregg under the new
Georgia statutory scheme may constitutionally be carried out. I agree that
it may. |
| [115] | I |
| [116] | Under the new Georgia statutory scheme a person convicted of murder
may receive a sentence either of death or of life imprisonment. Ga. Code
Ann. § 26-1101 (1972).*fn1
Under Georgia Code Ann. § 26-3102 (Supp. ),
the sentence will be life imprisonment unless the jury at a separate
evidentiary proceeding immediately following the verdict finds unanimously
and beyond a reasonable doubt at least one statutorily defined
"aggravating circumstance."*fn2
The aggravating circumstances are: S |
| [117] | " (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. |
| [118] | "(2) The offense of murder, rape, armed robbery, or kidnapping was
committed while the offender was engaged in the commission of another
capital felony or aggravated battery, or the offense of murder was
committed while the offender was engaged in the commission of burglary or
arson in the first degree. |
| [119] | "(3) The offender by his act of murder, armed robbery, or kidnapping
knowingly created a great risk of death to more than one person in a
public place by means of a weapon or device which would normally be
hazardous to the lives of more than one person. |
| [120] | "(4) The offender committed the offense of murder for himself or
another, for the purpose of receiving money or any other thing of monetary
value. |
| [121] | "(5) The murder of a judicial officer, former judicial officer,
district attorney or solicitor or former district attorney or solicitor
during or because of the exercise of his official duty. |
| [122] | "(6) The offender caused or directed another to commit murder or
committed murder as an agent or employee of another person. |
| [123] | "(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. |
| [124] | "(8) The offense of murder was committed against any peace officer,
corrections employee or fireman while engaged in the performance of his
official duties. "(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. |
| [125] | "(10) The murder was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or custody in a place of
lawful confinement, of himself or another." § 27-2534.1 (b) (Supp.
1975).I |
| [126] | Having found an aggravating circumstance, however, the jury is not
required to impose the death penalty. Instead, it is merely authorized to
impose it after considering evidence of "any mitigating circumstances or
aggravating circumstances otherwise authorized by law and any of the
[enumerated] statutory aggravating circumstances...." § 27-2534.1 (b)
(Supp. 1975). Unless the jury unanimously determines that the death
penalty should be imposed, the defendant will be sentenced to life
imprisonment. In the event that the jury does impose the death penalty, it
must designate in writing the aggravating circumstance which it found to
exist beyond a reasonable doubt. |
| [127] | An important aspect of the new Georgia legislative scheme, however, is
its provision for appellate review. Prompt review by the Georgia Supreme
Court is provided for in every case in which the death penalty is imposed.
To assist it in deciding whether to sustain the death penalty, the Georgia
Supreme Court is supplied, in every case, with a report from the trial
judge in the form of a standard questionnaire. § 27-2537 (a) (Supp. 1975).
The questionnaire contains, inter alia, six questions designed to disclose
whether race played a role in the case and one question asking the trial
judge whether the evidence forecloses "all doubt respecting the
defendant's guilt."
In deciding whether the death penalty is to be sustained in any given
case, the court shall determine: S |
| [128] | "(1) Whether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor, and |
| [129] | "(2) Whether, in cases other than treason or aircraft hijacking, the
evidence supports the jury's or judge's finding of a statutory aggravating
circumstance as enumerated in section 27-2534.1 (b), and |
| [130] | "(3) Whether the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and the
defendant...."I |
| [131] | In order that information regarding "similar cases" may be before the
court, the post of Assistant to the Supreme Court was created. The
Assistant must "accumulate the records of all capital felony cases in
which sentence was imposed after January 1, 1970, or such earlier date as
the court may deem appropriate." § 27-2537 (f).*fn3
The court is required to include in its decision a reference to "those
similar cases which it took into consideration." § 27-2537
(e). |
| [132] | II |
| [133] | Petitioner Troy Gregg and a 16-year-old companion, Floyd
Allen, were hitchhiking from Florida to Asheville, N.C., on November 21,
1973. They were picked up in an automobile driven by Fred Simmons and Bob
Moore, both of whom were drunk. The car broke down and Simmons purchased a
new one -- a 1960 Pontiac -- using part
of a large roll of cash which he had with him. After picking up another
hitchhiker in Florida and dropping him off in Atlanta, the car proceeded
north to Gwinnett County, Ga., where it stopped so that Moore and Simmons
could urinate. While they were out of the car Simmons was shot in the eye
and Moore was shot in the right cheek and in the back of the head. Both
died as a result. |
| [134] | On November 24, 1973, at 3 p.m., on the basis of information supplied
by the hitchhiker, petitioner and Allen were arrested in Asheville, N.C.
They were then in possession of the car which Simmons had purchased;
petitioner was in possession of the gun which had killed Simmons and Moore
and $107 which had been taken from them; and in the motel room in which
petitioner was staying was a new stereo and a car stereo
player. |
| [135] | At about 11 p.m., after the Gwinnett County police had arrived,
petitioner made a statement to them admitting that he had killed Moore and
Simmons, but asserting that he had killed them in self-defense and in
defense of Allen. He also admitted robbing them of $400 and taking their
car. A few moments later petitioner was asked why he had shot Moore and
Simmons and responded: "By God, I wanted them dead." |
| [136] | At about 1 o'clock the next morning, petitioner and Allen were
released to the custody of the Gwinnett County police and were transported
in two cars back to Gwinnett County. On the way, at about 5 a.m., the car
stopped at the place where Moore and Simmons had been killed. Everyone got
out of the car. Allen was asked, in petitioner's presence, how the killing
occurred. He said that he had been sitting in the back seat of the 1960
Pontiac and was about half asleep. He woke up when the car stopped.
Simmons and Moore got out, and as soon as they did petitioner turned
around and told Allen: "Get out, we're going to rob them." Allen said that
he got
out and walked toward the back of the car, looked around and could see
petitioner, with a gun in his hand, leaning up against the car so he could
get a good aim. Simmons and Moore had gone down the bank and had relieved
themselves and as they were coming up the bank petitioner fired three
shots. One of the men fell, the other staggered. Petitioner then circled
around the back and approached the two men, both of whom were now lying in
the ditch, from behind. He placed the gun to the head of one of them and
pulled the trigger. Then he went quickly to the other one and placed the
gun to his head and pulled the trigger again. He then took the money,
whatever was in their pockets. He told Allen to get in the car and they
drove away. |
| [137] | When Allen had finished telling this story, one of the officers asked
petitioner if this was the way it had happened. Petitioner hung his head
and said that it was. The officer then said: "You mean you shot these men
down in cold blooded murder just to rob them," and petitioner said yes.
The officer then asked him why and petitioner said he did not know.
Petitioner was indicted in two counts for murder and in two counts for
robbery. |
| [138] | At trial, petitioner's defense was that he had killed in self-defense.
He testified in his own behalf and told a version of the events similar to
that which he had originally told to the Gwinnett County police. On
cross-examination, he was confronted with a letter to Allen recounting a
version of the events similar to that to which he had just testified and
instructing Allen to memorize and burn the letter. Petitioner conceded
writing the version of the events, but denied writing the portion of the
letter which instructed Allen to memorize and burn it. In rebuttal, the
State called a handwriting expert who testified that the entire letter was
written by the same person. The
jury was instructed on the elements of murder*fn4
and robbery. The trial judge gave an instruction on self-defense, but
refused to submit the lesser included offense
of manslaughter to the jury. It returned verdicts of guilty on all
counts. |
| [139] | No new evidence was presented at the sentencing proceeding. However,
the prosecutor and the attorney for petitioner each made arguments to the
jury on the issue of punishment. The prosecutor emphasized the strength of
the case against petitioner and the fact that he had murdered in order to
eliminate the witnesses to the robbery. The defense attorney emphasized
the possibility that a mistake had been made and that petitioner was not
guilty. The trial judge instructed the jury on their
sentencing function and in so doing submitted to them three statutory
aggravating circumstances. He stated: S |
| [140] | "Now, as to counts one and three, wherein the defendant is charged
with the murders of -- has been found guilty of the murders of [Simmons
and Moore], the following aggravating circumstances are some that you can
consider, as I say, you must find that these existed beyond a reasonable
doubt before the death penalty can be imposed. "One -- That the offense of
murder was committed while the offender was engaged in the commission of
two other capital felonies, to-wit the armed robbery of [Simmons and
Moore]. "Two -- That the offender committed the offense of murder for the
purpose of receiving money and the automobile described in the indictment.
"Three -- The offense of murder was outrageously and wantonly vile,
horrible and inhuman, in that they involved the depravity of mind of the
defendant. "Now, so far as the counts two and four, that is the counts of
armed robbery, of which you have found the defendant guilty, then you may
find -- inquire into these aggravating circumstances. "That the offense of
armed robbery was committed while the offender was engaged in the
commission of two capital felonies, to-wit the murders of [Simmons and
Moore] or that the offender committed the offense of armed robbery for the
purpose of receiving money and the automobile set forth in the indictment,
or three, that the offense of armed robbery was outrageously and wantonly
vile, horrible and inhuman in that they involved the depravity of the mind
of the defendant. "Now,
if you find that there was one or more of these aggravating circumstances
existed beyond a reasonable doubt, then and I refer to each individual
count, then you would be authorized to consider imposing the sentence of
death. "If you do not find that one of these aggravating circumstances
existed beyond a reasonable doubt, in either of these counts, then you
would not be authorized to consider the penalty of death. In that event,
the sentence as to counts one and three, those are the counts wherein the
defendant was found guilty of murder, the sentence could be imprisonment
for life." Tr. 476-477.I |
| [141] | The jury returned the death penalty on all four counts finding all the
aggravating circumstances submitted to it, except that it did not find the
crimes to have been "outrageously or wantonly vile," etc. |
| [142] | On appeal the Georgia Supreme Court affirmed the death sentences on
the murder counts and vacated the death sentences on the robbery counts.
233 Ga. 117, 210 S.E.2d 659 (1974). It concluded that the murder sentences
were not imposed under the influence of passion, prejudice, or any other
arbitrary factor; that the evidence supported the finding of a statutory
aggravating factor with respect to the murders; and, citing several cases
in which the death penalty had been imposed previously for murders of
persons who had witnessed a robbery, held: S |
| [143] | " After considering both the crimes and the defendant and after
comparing the evidence and the sentences in this case with those of
previous murder cases, we are also of the opinion that these two sentences
of death are not excessive or disproportionate to the penalties imposed in
similar cases which
are hereto attached."*fn5
Id., at 127, 210 S.E.2d, at 667.I |
| [144] | However, it held with respect to the robbery sentences:
S |
| [145] | "Although there is no indication that these two sentences
were imposed under the influence of passion, prejudice or any other
arbitrary factor, the sentences imposed here are unusual in that they are
rarely imposed for this offense. Thus, under the test provided by statute
for comparison (Code Ann. § 27-2537 (c), (3)), they must be considered to
be excessive or disproportionate to the penalties imposed in similar
cases." Ibid.I |
| [146] | Accordingly, the sentences on the robbery counts were
vacated. |
| [147] | III |
| [148] | TThe threshold question in this case is whether the death penalty may
be carried out for murder under the Georgia legislative scheme consistent
with the decision in Furman v. Georgia, supra. In Furman, this Court held
that as a result of giving the sentencer unguided discretion to impose or
not to impose the death penalty for murder, the penalty was being imposed
discriminatorily, *fn6
wantonly and freakishly,*fn7
and so infrequently*fn8
that any given death sentence was cruel and unusual. Petitioner argues
that, as in Furman, the jury is still the sentencer; that the statutory
criteria to be considered by the jury on the issue of sentence under
Georgia's new statutory scheme are vague and do not purport to be
all-inclusive; and that, in any event, there are no circumstances under
which the jury is required to impose the death penalty.*fn9
Consequently, the petitioner argues that the death penalty will inexorably
be imposed in as discriminatory, standardless, and rare a manner as it was
imposed under the scheme declared invalid in Furman. |
| [149] | The argument is considerably overstated. The Georgia Legislature has
made an effort to identify those aggravating factors which it considers
necessary and relevant to the question whether a defendant convicted of
capital murder should be sentenced to death.*fn10
The jury
which imposes sentence is instructed on all statutory aggravating factors
which are supported by the evidence, and is told that it may not impose
the death penalty unless it unanimously finds at least one of those
factors to have been established beyond a reasonable doubt. The Georgia
Legislature has plainly made an effort to guide the jury in the exercise
of its discretion, while at the same time permitting the jury to dispense
mercy on the basis of factors too intangible to write into a statute, and
I cannot accept the naked assertion that the effort is bound to fail. As
the types of murders for which the death penalty may be imposed become
more narrowly defined and are limited to those which are particularly
serious or for which the death penalty is peculiarly appropriate as they
are in Georgia by reason of the aggravating-circumstance requirement, it
becomes reasonable to expect that juries -- even given discretion not to
impose the death penalty -- will impose the death penalty in a substantial
portion of the cases so defined. If they do, it can no longer be said that
the penalty is being imposed wantonly and freakishly or so infrequently
that it loses its usefulness as a sentencing device. There is, therefore,
reason to expect that Georgia's current system would escape the
infirmities which invalidated its previous system under Furman. However,
the Georgia Legislature was not satisfied with a system which might, but
also might not, turn out in practice to result in death sentences being
imposed with reasonable consistency for certain serious murders. Instead,
it gave the Georgia Supreme Court the power and the obligation to perform
precisely the task which three Justices of this Court, whose opinions were
necessary to the result, performed in
Furman: namely, the task of deciding whether in fact the death penalty was
being administered for any given class of crime in a discriminatory,
standardless, or rare fashion. |
| [150] | In considering any given death sentence on appeal, the Georgia Supreme
Court is to determine whether the sentence imposed was consistent with the
relevant statutes - i.e., wh consistent with the relevant support the
finding of an aggravating circumstance. Ga. Code Ann. § 27-2537 (c)(2)
(Supp. 1975). However, it must do much more than determine whether the
penalty was lawfully imposed. It must go on to decide -- after reviewing
the penalties imposed in "similar cases" -- whether the penalty is
"excessive or disproportionate" considering both the crime and the
defendant. § 27-2537 (c)(3) (Supp. 1975). The new Assistant to the Supreme
Court is to assist the court in collecting the records of "all capital
felony cases"*fn11
in the State of Georgia in which sentence was imposed after January 1,
1970. § 27-2537 (f) (Supp. 1975). The court also has the obligation of
determining whether the penalty was "imposed under the influence of
passion, prejudice, or any other arbitrary factor." § 27-2537 (c) (1)
(Supp. 1975). The Georgia Supreme Court has interpreted the appellate
review statute to require it to set aside the death sentence whenever
juries across the State impose it only rarely for the type of crime in
question; but to require it to affirm death sentences whenever juries
across the State generally impose it for the crime in question. Thus,
in this case the Georgia Supreme Court concluded that the death penalty
was so rarely imposed for the crime of robbery that it set aside the
sentences on the robbery counts, and effectively foreclosed that penalty
from being imposed for that crime in the future under the legislative
scheme now in existence. Similarly, the Georgia Supreme Court has
determined that juries impose the death sentence too rarely with respect
to certain classes of rape. Compare Coley v. State, 231 Ga. 829, 204 S.E.
2d 612 (1974), with Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975).
However, it concluded that juries "generally throughout the state" have
imposed the death penalty for those who murder witnesses to armed
robberies. Jarrell v. State, 234 Ga. 410, 425, 216 S.E. 2d 258, 270
(1975). Consequently, it affirmed the sentences in this case on the murder
counts. If the Georgia Supreme Court is correct with respect to this
factual judgment, imposition of the death penalty in this and similar
cases is consistent with Furman. Indeed, if the Georgia Supreme Court
properly performs the task assigned to it under the Georgia statutes,
death sentences imposed for discriminatory reasons or wantonly or
freakishly for any given category of crime will be set aside. Petitioner
has wholly failed to establish, and has not even attempted to establish,
that the Georgia Supreme Court failed properly to perform its task in this
case or that it is incapable of performing its task adequately in all
cases; and this Court should not assume that it did not do
so. |
| [151] | Petitioner also argues that decisions made by the prosecutor - either
in negotiating a plea to some lesser offense than capital murder or in
simply declining to charge capital murder -- are standardless and will
inexorably result in the wanton and freakish imposition of the penalty
condemned by the judgment in Furman. I address this point
separately because the cases in which no capital offense is charged escape
the view of the Georgia Supreme Court and are not considered by it in
determining whether a particular sentence is excessive or
disproportionate. |
| [152] | Petitioner's argument that prosecutors behave in a standardless
fashion in deciding which cases to try as capital felonies is unsupported
by any facts. Petitioner simply asserts that since prosecutors have the
power not to charge capital felonies they will exercise that power in a
standardless fashion. This is untenable. Absent facts to the contrary, it
cannot be assumed that prosecutors will be motivated in their charging
decision by factors other than the strength of their case and the
likelihood that a jury would impose the death penalty if it convicts.
Unless prosecutors are incompetent in their judgments, the standards by
which they decide whether to charge a capital felony will be the same as
those by which the jury will decide the questions of guilt and sentence.
Thus defendants will escape the death penalty through prosecutorial
charging decisions only because the offense is not sufficiently serious;
or because the proof is insufficiently strong. This does not cause the
system to be standardless any more than the jury's decision to impose life
imprisonment on a defendant whose crime is deemed insufficiently serious
or its decision to acquit someone who is probably guilty but whose guilt
is not established beyond a reasonable doubt. Thus the prosecutor's
charging decisions are unlikely to have removed from the sample of cases
considered by the Georgia Supreme Court any which are truly "similar." If
the cases really were "similar" in relevant respects, it is unlikely that
prosecutors would fail to prosecute them as capital cases; and I am
unwilling to assume the contrary. |
| [153] | Petitioner's argument that there is an unconstitutional amount
of discretion in the system which separates those suspects who receive the
death penalty from those who receive life imprisonment, a lesser penalty,
or are acquitted or never charged, seems to be in final analysis an
indictment of our entire system of justice. Petitioner has argued, in
effect, that no matter how effective the death penalty may be as a
punishment, government, created and run as it must be by humans, is
inevitably incompetent to administer it. This cannot be accepted as a
proposition of constitutional law. Imposition of the death penalty is
surely an awesome responsibility for any system of justice and those who
participate in it. Mistakes will be made and discriminations will occur
which will be difficult to explain. However, one of society's most basic
tasks is that of protecting the lives of its citizens and one of the most
basic ways in which it achieves the task is through criminal laws against
murder. I decline to interfere with the manner in which Georgia has chosen
to enforce such laws on what is simply an assertion of lack of faith in
the ability of the system of justice to operate in a fundamentally fair
manner. |
| [154] | IV |
| [155] | For the reasons stated in dissent in Roberts v. Louisiana, post, at
350-356, neither can I agree with the petitioner's other basic argument
that the death penalty, however imposed and for whatever crime, is cruel
and unusual punishment. |
| [156] | I therefore concur in the judgment of affirmance. |
| [157] | Statement of THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST: |
| [158] | We concur in the judgment and join the opinion of MR. JUSTICE WHITE,
agreeing with its analysis that Georgia's system of capital punishment
comports with the
Court's holding in Furman v. Georgia, 408 U.S. 238
(1972). |
| [159] | MR. JUSTICE BLACKMUN, concurring in the judgment. |
| [160] | I concur in the judgment. See Furman v. Georgia, 408 U.S.
238, 405-414 (1972) (BLACKMUN, J., dissenting), and id., at 375
(BURGER, C.J., dissenting); id., at 414 POWELL, J., dissenting); id., at
465 (REHNQUIST, J., dissenting). |
| [161] | MR. JUSTICE BRENNAN, dissenting.*fn* |
| [162] | The Cruel and Unusual Punishments Clause "must draw its meaning from
the evolving standards of decency that mark the progress of a maturing
society."*fn1
The opinions of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE
STEVENS today hold that "evolving standards of decency" require focus not
on the essence of the death penalty itself but primarily upon the
procedures employed by the State to single out persons to suffer the
penalty of death. Those opinions hold further that, so viewed, the Clause
invalidates the mandatory infliction of the death penalty but not its
infliction under sentencing procedures that MR. JUSTICE STEWART, MR.
JUSTICE POWELL, and MR. JUSTICE STEVENS conclude adequately safeguard
against the risk that the death penalty was imposed in an arbitrary and
capricious manner. |
| [163] | In Furman v. Georgia, 408 U.S. 238, 257 (1972)
(concurring opinion), I read "evolving standards of decency" as requiring
focus upon the essence of the death penalty itself and not primarily or
solely upon the procedures under
which the determination to inflict the penalty upon a particular person
was made. I there said: S |
| [164] | "From the beginning of our Nation, the punishment of death has stirred
acute public controversy. Although pragmatic arguments for and against the
punishment have been frequently advanced, this long-standing and heated
controversy cannot be explained solely as the result of differences over
the practical wisdom of a particular government policy. At bottom, the
battle has been waged on moral grounds. The country has debated whether a
society for which the dignity of the individual is the supreme value can,
without a fundamental inconsistency, follow the practice of deliberately
putting some of its members to death. In the United States, as in other
nations of the western world, 'the struggle about this punishment has been
one between ancient and deeply rooted beliefs in retribution atonement or
vengeance on the one hand, and, on the other, beliefs in the personal
value and dignity of the common man that were born of the democratic
movement of the eighteenth century, as well as beliefs in the scientific
approach to an understanding of the motive forces of human conduct, which
are the result of the growth of the sciences of behavior during the
nineteenth and twentieth centuries.' It is this essentially moral conflict
that forms the backdrop for the past changes in and the present operation
of our system of imposing death as a punishment for crime." Id., at 296.*fn2 |
| [165] | That continues to be my view. For the Clause forbidding cruel and
unusual punishments under our constitutional system
of government embodies in unique degree moral principles restraining the
punishments that our civilized society may impose on those persons who
transgress its laws. Thus, I too say: "For myself, I do not hesitate to
assert the proposition that the only way the law has progressed from the
days of the rack, the screw and the wheel is the development of moral
concepts, or, as stated by the Supreme Court... the application of
'evolving standards of decency'...."*fn3 |
| [166] | This Court inescapably has the duty, as the ultimate arbiter of the
meaning of our Constitution, to say whether, when individuals condemned to
death stand before our Bar, "moral concepts" require us to hold that the
law has progressed to the point where we should declare that the
punishment of death, like punishments on the rack, the screw, and the
wheel, is no longer morally tolerable in our civilized society.*fn4
My opinion in Furman v. Georgia concluded that our civilization and the
law had progressed to this point and that therefore the punishment of
death, for whatever crime and under all circumstances, is "cruel and
unusual" in violation of the Eighth and Fourteenth Amendments of the
Constitution. I shall not again canvass the reasons that led to that
conclusion. I emphasize only that foremost among the "moral concepts"
recognized in our cases and inherent in the Clause is the primary moral
principle that the State, even as it punishes, must treat its citizens in
a manner consistent with their intrinsic worth as human beings - a
punishment must not be so severe as to be degrading to human dignity. A
judicial determination whether
the punishment of death comports with human dignity is therefore not only
permitted but compelled by the Clause. 408 U.S., at 270. |
| [167] | I do not understand that the Court disagrees that "[i]n comparison to
all other punishments today... the deliberate extinguishment of human life
by the State is uniquely degrading to human dignity." Id., at 291. For
three of my Brethren hold today that mandatory infliction of the death
penalty constitutes the penalty cruel and unusual punishment. I perceive
no principled basis for this limitation. Death for whatever crime and
under all circumstances "is truly an awesome punishment. The calculated
killing of a human being by the State involves, by its very nature, a
denial of the executed person's humanity.... An executed person has indeed
'lost the right to have rights.'" Id., at 290. Death is not only an
unusually severe punishment, unusual in its pain, in its finality, and in
its enormity, but it serves no penal purpose more effectively than a less
severe punishment; therefore the principle inherent in the Clause that
prohibits pointless infliction of excessive punishment when less severe
punishment can adequately achieve the same purposes invalidates the
punishment. Id., at 279. |
| [168] | 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 Clause that even the vilest criminal remains a human being
possessed of common human dignity." Id., at 273. As such it is a penalty
that "subjects the individual to a fate forbidden by the principle of
civilized treatment guaranteed by the [Clause]."*fn5
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."*fn6 |
| [169] | I dissent from the judgments in No. 74-6257, Gregg v.
Georgia, No. 75-5706, Proffitt v. Florida, and No. 75-5394, Jurek v.
Texas, insofar as each upholds the death sentences challenged in those
cases. I would set aside the death sentences imposed in those cases as
violative of the Eighth and Fourteenth Amendments. |
| [170] | MR. JUSTICE MARSHALL, dissenting.*fn* |
| [171] | In Furman v. Georgia, 408 U.S. 238, 314 (1972)
(concurring opinion), I set forth at some length my views on the basic
issue presented to the Court in these cases. The death penalty, I
concluded, is a cruel and unusual punishment prohibited by the Eighth and
Fourteenth Amendments. That continues to be my view. |
| [172] | I have no intention of retracing the "long and tedious journey," id.,
at 370, that led to my conclusion in Furman. My sole purposes here are to
consider the suggestion that my conclusion in Furman has been undercut by
developments since then, and briefly to evaluate the basis for my
Brethren's holding that the extinction of life is a permissible form of
punishment under the Cruel and Unusual Punishments Clause. |
| [173] | In Furman I concluded that the death penalty is constitutionally
invalid for two reasons. First, the death penalty is excessive. Id., at
331-332; 342-359. And second,
the American people, fully informed as to the purposes of the death
penalty and its liabilities, would in my view reject it as morally
unacceptable. Id., at 360-369. |
| [174] | Since the decision in Furman, the legislatures of 35 States have
enacted new statutes authorizing the imposition of the death sentence for
certain crimes, and Congress has enacted a law providing the death penalty
for air piracy resulting in death. 49 U.S.C. §§ 1472(i), (n) (1970 ed.,
Supp. IV). I would be less than candid if I did not acknowledge that these
developments have a significant bearing on a realistic assessment of the
moral acceptability of the death penalty to the American people. But if
the constitutionality of the death penalty turns, as I have urged, on the
opinion of an informed citizenry, then even the enactment of new death
statutes cannot be viewed as conclusive. In Furman, I observed that the
American people are largely unaware of the information critical to a
judgment on the morality of the death penalty, and concluded that if they
were better informed they would consider it shocking, unjust, and
unacceptable. 408 U.S., at 360-369. A recent study, conducted after the
enactment of the post- Furman statutes, has confirmed that the American
people know little about the death penalty, and that the opinions of an
informed public would differ significantly from those of a public unaware
of the consequences and effects of the death penalty.*fn1a |
| [175] | Even assuming, however, that the post- Furman enactment of statutes
authorizing the death penalty renders the prediction of the views of an
informed citizenry an uncertain
basis for a constitutional decision, the enactment of those statutes has
no bearing whatsoever on the conclusion that the death penalty is
unconstitutional because it is excessive. An excessive penalty is invalid
under the Cruel and Unusual Punishments Clause "even though popular
sentiment may favor" it. Id., at 331; ante, at 173, 182-183 (opinion of
STEWART, POWELL, and STEVENS, JJ.); Roberts v. Louisiana, post, at 353-354
(WHITE, J., dissenting). The inquiry here, then, is simply whether the
death penalty is necessary to accomplish the legitimate legislative
purposes in punishment, or whether a less severe penalty -- life
imprisonment -- would do as well. Furman, supra, at 342 (MARSHALL, J.,
concurring). |
| [176] | The two purposes that sustain the death penalty as nonexcessive in the
Court's view are general deterrence and retribution. In Furman, I
canvassed the relevant data on the deterrent effect of capital punishment.
408 U.S., at 347-354.*fn2a
The state of knowledge at that point, after literally centuries of debate,
was summarized as follows by a United Nations Committee: S |
| [177] | "It is generally agreed between the retentionists and abolitionists,
whatever their opinions about the validity of comparative studies of
deterrence, that the data which now exist show no correlation between the
existence of capital punishment and lower rates of capital crime."*fn3a |
| [178] | The available evidence, I concluded in Furman, was convincing that
"capital punishment is not necessary as a deterrent to crime in our
society." Id., at 353. |
| [179] | The Solicitor General in his amicus brief in these cases relies
heavily on a study by Isaac Ehrlich,*fn4a
reported a year after Furman, to support the contention that the death
penalty does deter murder. Since the Ehrlich study was not available at
the time of Furman and since it is the first scientific study to suggest
that the death penalty may have a deterrent effect, I will briefly
consider its import. |
| [180] | The Ehrlich study focused on the relationship in the Nation as a whole
between the homicide rate and "execution risk" -- the fraction of persons
convicted of murder who were actually executed. Comparing the differences
in homicide rate and execution risk for the years 1933 to 1969, Ehrlich
found that increases in execution risk were associated with increases in
the homicide rate.*fn5a
But when he employed the statistical technique of multiple regression
analysis to control for the influence of other variables posited to have
an impact on the homicide rate,*fn6a
Ehrlich found a negative correlation between changes in the homicide rate
and changes in execution risk. His tentative conclusion was that for the
period from 1933 to 1967 each additional execution in the United States
might have saved eight lives.*fn7 |
| [181] | The methods and conclusions of the Ehrlich study have
been severely criticized on a number of grounds.*fn8
It has been suggested, for example, that the study is defective because it
compares execution and homicide rates on a nationwide, rather than a
state-by-state, basis. The aggregation of data from all States --
including those that have abolished the death penalty -- obscures the
relationship between murder and execution rates. Under Ehrlich's
methodology, a decrease in the execution risk in one State combined with
an increase in the murder rate in another State would, all other things
being equal, suggest a deterrent effect that quite obviously would not
exist. Indeed, a deterrent effect would be suggested if, once again all
other things being equal, one State abolished the death penalty and
experienced no change in the murder rate, while another State experienced
an increase in the murder rate.*fn9 |
| [182] | The most compelling criticism of the Ehrlich study is that
its conclusions are extremely sensitive to the choice of the time period
included in the regression analysis. Analysis of Ehrlich's data reveals
that all empirical support for the deterrent effect of capital punishment
disappears when the five most recent years are removed from his time
series -- that is to say, whether a decrease in the execution risk
corresponds to an increase or a decrease in the murder rate depends on the
ending point of the sample period.*fn10
This finding has cast severe doubts on the reliability of Ehrlich's
tentative conclusions.*fn11
Indeed, a recent regression study, based on Ehrlich's theoretical model
but using cross-section state data for the years 1950 and 1960, found no
support for the conclusion that executions act as a deterrent.*fn12 |
| [183] | The Ehrlich study, in short, is of little, if any, assistance in
assessing the deterrent impact of the death penalty. Accord, Commonwealth
v. O'Neal, -- Mass. -- , -- , 339 N.E. 2d 676, 684 (1975). The evidence I
reviewed in Furman*fn13
remains convincing, in my view, that "capital punishment is not necessary
as a deterrent to crime in our society." 408 U.S., at 353. The
justification for the death penalty must be found elsewhere. |
| [184] | The other principal purpose said to be served by the death penalty is
retribution.*fn14
The notion that retribution can
serve as a moral justification for the sanction of death finds credence in
the opinion of my Brothers STEWART, POWELL, and STEVENS, and that of my
Brother WHITE in Roberts v. Louisiana, post, p. 337. See also Furman v.
Georgia, 408 U.S., at 394-395 (BURGER, C.J., dissenting). It is this
notion that I find to be the most disturbing aspect of today's unfortunate
decisions. |
| [185] | The concept of retribution is a multifaceted one, and any discussion
of its role in the criminal law must be undertaken with caution. On one
level, it can be said that the notion of retribution or reprobation is the
basis of our insistence that only those who have broken the law be
punished, and in this sense the notion is quite obviously central to a
just system of criminal sanctions. But our recognition that retribution
plays a crucial role in determining who may be punished by no means
requires approval of retribution as a general justification for
punishment.*fn15
It is the question whether retribution can provide a moral justification
for punishment - in particular, capital punishment -- that we must
consider. |
| [186] | My Brothers STEWART, POWELL, and STEVENS offer the following
explanation of the retributive justification for capital punishment:
S |
| [187] | "'The instinct for retribution is part of the nature of man, and
channeling that instinct in the administration of criminal justice serves
an important purpose in promoting the stability of a society governed by
law. When people begin to believe that organized society is unwilling or
unable to impose upon criminal offenders the punishment they 'deserve,'
then there are sown the seeds of anarchy -- of self-help, vigilante
justice, and lynch law.'" Ante, at 183, quoting from Furman v. Georgia,
supra, at 308 (STEWART, J., concurring).I |
| [188] | This statement is wholly inadequate to justify the death penalty. As
my Brother BRENNAN stated in Furman, "[t]here is no evidence whatever that
utilization of imprisonment rather than death encourages private blood
feuds and other disorders." 408 U.S., at 303
(concurring opinion).*fn16
It simply defies belief to suggest that the death penalty is necessary to
prevent the American people from taking the law into their own
hands. |
| [189] | In a related vein, it may be suggested that the expression of moral
outrage through the imposition of the death penalty serves to reinforce
basic moral values -- that it marks some crimes as particularly offensive
and therefore to be avoided. The argument is akin to a deterrence
argument, but differs in that it contemplates the individual's shrinking
from antisocial conduct, not because he fears punishment, but because he
has been told in the strongest possible way that the conduct is wrong.
This contention, like the previous one, provides no support for the death
penalty. It is inconceivable that any individual concerned about
conforming his conduct to what society says is "right" would fail to
realize that murder is "wrong" if the penalty were simply life
imprisonment. |
| [190] | The foregoing contentions -- that society's expression of moral
outrage through the imposition of the death penalty pre-empts the
citizenry from taking the law into its own
hands and reinforces moral values -- are not retributive in the purest
sense. They are essentially utilitarian in that they portray the death
penalty as valuable because of its beneficial results. These
justifications for the death penalty are inadequate because the penalty
is, quite clearly I think, not necessary to the accomplishment of those
results. |
| [191] | There remains for consideration, however, what might be termed the
purely retributive justification for the death penalty - that the death
penalty is appropriate, not because of its beneficial effect on society,
but because the taking of the murderer's life is itself morally good.*fn17
Some of the language of the opinion of my Brothers STEWART, POWELL, and
STEVENS in No. 74-6257 appears positively to embrace this notion of
retribution for its own sake as a justification for capital punishment.*fn18
They state: |
| [192] | "[The] 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." Ante, at 184
(footnote omitted). They
then quote with approval from Lord Justice Denning's remarks before the
British Royal Commission on Capital Punishment: |
| [193] | "'The truth is that some crimes are so outrageous that society insists
on adequate punishment, because the wrong-doer deserves it, irrespective
of whether it is a deterrent or not.'" Ante, at 184 n. 30. |
| [194] | Of course, it may be that these statements are intended as no more
than observations as to the popular demands that it is thought must be
responded to in order to prevent anarchy. But the implication of the
statements appears to me to be quite different -- namely, that society's
judgment that the murderer "deserves" death must be respected not simply
because the preservation of order requires it, but because it is
appropriate that society make the judgment and carry it out. It is this
latter notion, in particular, that I consider to be fundamentally at odds
with the Eighth Amendment. See Furman v. Georgia, 408 U.S., at 343-345
(MARSHALL, J., concurring). The mere fact that the community demands the
murderer's life in return for the evil he has done cannot sustain the
death penalty, for as Justice Stewart, Powell, and Stevens remind us, "the
Eighth Amendment demands more than that a challenged punishment be
acceptable to contemporary society." Ante, at 182. To be sustained under
the Eighth Amendment, the death penalty must "compor[t] with the basic
concept of human dignity at the core of the Amendment," ibid.; the
objective in imposing it must be "[consistent] with our respect for the
dignity of [other] men." Ante, at 183. See Trop v. Dulles, 356
U.S. 86, 100 (1958) (plurality opinion). Under these standards,
the taking of life "because the wrongdoer deserves it" surely must fall,
for such a punishment has as its very basis the total denial of the
wrongdoer's dignity and worth.*fn19 |
| [195] | The death penalty, unnecessary to promote the goal of deterrence or to
further any legitimate notion of retribution, is an excessive penalty
forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent
from the Court's judgment upholding the sentences of death imposed upon
the petitioners in these cases. |
| [196] | Counsel FOOTNOTES |
| [197] | * Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and Anthony G.
Amsterdam filed a brief for the N.A.A.C.P. Legal Defense and Educational
Fund, Inc., as amicus curiae urging reversal. |
| [198] | Arthur M. Michaelson filed a brief for Amnesty International as amicus
curiae. |
|
| |
| Opinion Footnotes | |
|
| |
| [199] | *fn1
On cross-examination the State introduced a letter written by the
petitioner to Allen entitled, "[a] statement for you," with the
instructions that Allen memorize and then burn it. The statement was
consistent with the petitioner's testimony at trial. |
| [200] | *fn2
The court further held, in part, that the trial court did not err in
refusing to instruct the jury with respect to voluntary manslaughter since
there was no evidence to support that verdict. |
| [201] | *fn3
Subsequent to the trial in this case limited portions of the Georgia
statute were amended. None of these amendments changed significantly the
substance of the statutory scheme. All references to the statute in this
opinion are to the current version. |
| [202] | *fn4
Georgia Code Ann. § 26-1101 (1972) provides:
"(a) A person commits murder when he unlawfully and with malice
aforethought, either express or implied, causes the death of another human
being. Express malice is that deliberate intention unlawfully to take away
the life of a fellow creature, which is manifested by external
circumstances capable of proof. Malice shall be implied where no
considerable provocation appears, and where all the circumstances of the
killing show an abandoned and malignant heart. "(b) A person also commits
the crime of murder when in the commission of a felony he causes the death
of another human being, irrespective of malice. "(c) A person convicted of
murder shall be punished by death or by imprisonment for
life." |
| [203] | *fn5
Section 26-1902 (1972) provides:
"A person commits armed robbery when, with intent to commit theft, he
takes property of another from the person or the immediate presence of
another by use of an offensive weapon. The offense robbery by intimidation
shall be a lesser included offense in the offense of armed robbery. A
person convicted of armed robbery shall be punished by death or
imprisonment for life, or by imprisonment for not less than one nor more
than 20 years." |
| [204] | *fn6
These capital felonies currently are defined as they were when Furman was
decided. The 1973 amendments to the Georgia statute, however, narrowed the
class of crimes potentially punishable by death by eliminating capital
perjury. Compare § 26-2401 (Supp. 1975) with § 26-2401
(1972). |
| [205] | *fn7
It is not clear whether the 1974 amendments to the Georgia statute were
intended to broaden the types of evidence admissible at the presentence
hearing. Compare § 27-2503(a) (Supp. 1975) with § 27-2534 (1972) (deletion
of limitation "subject to the laws of evidence"). |
| [206] | *fn8
Essentially the same procedures are followed in the case of a guilty plea.
The judge considers the factual basis of the plea, as well as evidence in
aggravation and mitigation. See Mitchell v. State, 234 Ga. 160, 214 S.E.
2d 900 (1975). |
| [207] | *fn9
The statute provides in part:
"(a) The death penalty may be imposed for the offenses of aircraft
hijacking or treason, in any case. "(b) 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. "(2) The offense of murder, rape, armed robbery, or
kidnapping was committed while the offender was engaged in the commission
of another capital felony, or aggravated battery, or the offense of murder
was committed while the offender was engaged in the commission of burglary
or arson in the first degree. "(3) The offender by his act of murder,
armed robbery, or kidnapping knowingly created a great risk of death to
more than one person in a public place by means of a weapon or device
which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another,
for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district
attorney or solicitor or former district attorney or solicitor during or
because of the exercise of his official duty. "(6) The offender caused or
directed another to commit murder or committed murder as an agent or
employee of another person. "(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. "(8) The offense of murder was committed against
any peace officer, corrections employee or fireman while engaged in the
performance of his official duties. "(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. "(10) The murder was
committed for the purpose of avoiding, interfering with, or preventing a
lawful arrest or custody in a place of lawful confinement, of himself or
another. "(c) The statutory instructions as determined by the trial judge
to be warranted by the evidence shall be given in charge and in writing to
the jury for its deliberation. The jury, if its verdict be a
recommendation of death, shall designate in writing, signed by the foreman
of the jury, the aggravating circumstance or circumstances which it found
beyond a reasonable doubt. In non-jury cases the judge shall make such
designation. Except in cases of treason or aircraft hijacking, unless at
least one of the statutory aggravating circumstances enumerated in section
27-2534.1(b) is so found, the death penalty shall not be imposed." §
27-2534.1 (Supp. 1975). The Supreme Court of Georgia, in Arnold v. State,
236 Ga. 534, 540, 224 S.E. 2d 386, 391 (1976), recently held
unconstitutional the portion of the first circumstance encompassing
persons who have a "substantial history of serious assaultive criminal
convictions" because it did not set "sufficiently 'clear and objective
standards.'" |
| [208] | *fn10
The statute requires that the Supreme Court of Georgia obtain and preserve
the records of all capital felony cases in which the death penalty was
imposed after January 1, 1970, or such earlier date that the court
considers appropriate. § 27-2537 (f) (Supp. 1975). To aid the court in its
disposition of these cases the statute further provides for the
appointment of a special assistant and authorizes the employment of
additional staff members. §§ 27-2537 (f)-(h) (Supp. 1975). |
| [209] | *fn11
See Ga. Const., Art. 5, § 1, [*] 12, Ga. Code Ann. § 2-3011 (1973); Ga.
Code Ann. §§ 77-501, 77-511, 77-513 (1973 and Supp. 1975) (Board of
Pardons and Paroles is authorized to commute sentence of death except in
cases where Governor refuses to suspend that sentence). |
| [210] | *fn12
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459,
464 (1947); In re Kemmler, 136 U.S. 436, 447 (1890);
Wilkerson v. Utah, 99 U.S. 130, 134-135 (1879). See
also McGautha v. California, 402 U.S. 183 (1971);
Witherspoon v. Illinois, 391 U.S. 510 (1968); Trop v.
Dulles, 356 U.S. 86, 100 (1958) (plurality
opinion). |
| [211] | *fn13
408 U.S., at 375 (BURGER, C.J., dissenting); id., at 405 (BLACKMUN, J.,
dissenting); id., at 414 (POWELL, J., dissenting); id., at 465 (REHNQUIST,
J., dissenting). |
| [212] | *fn14
Id., at 257 (BRENNAN, J., concurring); id., at 314 (MARSHALL, J.,
concurring). |
| [213] | *fn15
Id., at 240 (Douglas, J., concurring); id., at 306 (STEWART, J.,
concurring); id., at 310 (WHITE, J., concurring).
Since five Justices wrote separately in support of the judgments in
Furman, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds -
MR. JUSTICE STEWART and MR. JUSTICE WHITE. See n. 36,
infra. |
| [214] | *fn16
408 U.S., at 316-328 (MARSHALL, J.,
concurring). |
| [215] | *fn17
This conclusion derives primarily from statements made during the debates
in the various state conventions called to ratify the Federal
Constitution. For example, Virginia delegate Patrick Henry objected
vehemently to the lack of a provision banning "cruel and unusual
punishments":
"What has distinguished our ancestors? -- That they would not admit of
tortures, or cruel and barbarous punishment. But Congress may introduce
the practice of the civil law, in preference to that of the common law.
They may introduce the practice of France, Spain, and Germany - of
torturing, to extort a confession of the crime." 3 J. Elliot, Debates
447-448 (1863). A similar objection was made in the Massachusetts
convention: "They are nowhere restrained from inventing the most cruel and
unheard-of punishments and annexing them to crimes; and there is no
constitutional check on them, but that racks and gibbets may be amongst
the most mild instruments of their discipline." 2 Elliot, supra, at
111. |
| [216] | *fn18
The Court remarked on the fact that the law under review "has come to us
from a government of a different form and genius from ours," but it also
noted that the punishments it inflicted "would have those bad attributes
even if they were found in a Federal enactment and not taken from an alien
source." 217 U.S., at 377. |
| [217] | *fn19
Although legislative measures adopted by the people's chosen
representatives provide one important means of ascertaining contemporary
values, it is evident that legislative judgments alone cannot be
determinative of Eighth Amendment standards since that Amendment was
intended to safeguard individuals from the abuse of legislative power. See
Weems v. United States, 217 U.S. 349, 371-373 (1910);
Furman v. Georgia, 408 U.S., at 258-269 (BRENNAN, J.,
concurring). Robinson v. California, 370 U.S. 660
(1962), illustrates the proposition that penal laws enacted by state
legislatures may violate the Eighth Amendment because "in the light of
contemporary human knowledge" they "would doubtless be universally thought
to be an infliction of cruel and unusual punishment." Id., at 666. At the
time of Robinson nine States in addition to California had criminal laws
that punished addiction similar to the law declared unconstitutional in
Robinson. See Brief for Appellant in Robinson v. California, O.T. 1961,
No. 554, p. 15. |
| [218] | *fn20
See also Furman v. Georgia, supra, at 411 (BLACKMUN, J., dissenting):
"We should not allow our personal preferences as to the wisdom of
legislative and congressional action, or our distaste for such action, to
guide our judicial decision in cases such as these. The temptations to
cross that policy line are very great." |
| [219] | *fn21
See concurring opinions of MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, 408 U.S., at 257 and 314. |
| [220] | *fn22
See concurring opinions of Mr. Justice Douglas, MR. JUSTICE STEWART, and
MR. JUSTICE WHITE, id., at 240, 306, and 310. |
| [221] | *fn23
Ala. H.B. 212, §§ 2-4, 6-7 (1975); Ariz. Rev. Stat. Ann. §§ 13-452 to
13-454 (Supp. 1973); Ark. Stat. Ann. § 41-4706 (Supp. 1975); Cal. Penal
Code §§ 190.1, 209, 219 (Supp. 1976); Colo. Laws 1974, c. 52, § 4; Conn.
Gen. Stat. Rev. §§ 53a-25, 53a-35(b), 53a-46a, 53a-54b (1975); Del. Code
Ann. tit. 11, § 4209 (Supp. 1975); Fla. Stat. Ann. §§ 782.04, 921.141
(Supp. 1975-1976); Ga. Code Ann. §§ 26-3102, 27-2528, 27-2534.1, 27-2537
(Supp. 1975); Idaho Code § 18-4004 (Supp. 1975); Ill. Ann. Stat. c. 38, §§
9-1, 1005-5-3, 1005-8-1A (Supp. 1976-1977); Ind. Stat. Ann. § 35-13-4-1
(1975); Ky. Rev. Stat. Ann. § 507.020 (1975); La. Rev. Stat. Ann. § 14:30
(Supp. 1976); Md. Ann. Code, art. 27, § 413 (Supp. 1975); Miss. Code Ann.
§§ 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo. Ann. Stat. §
559.009, 559.005 (Supp. 1976); Mont. Rev. Codes Ann. § 94-5-105 (Spec.
Crim. Code Supp. 1976); Neb. Rev. Stat. §§ 28-401, 29-2521 to 29-2523
(1975); Nev. Rev. Stat. § 200.030 (1973); N.H. Rev. Stat. Ann. § 630:1
(1974); N.M. Stat. Ann. § 40A-29-2 (Supp. 1975); N.Y. Penal Law § 60.06
(1975); N.C. Gen. Stat. § 14-17 (Supp. 1975); Ohio Rev. Code Ann. §§
2929.02-2929.04 (1975); Okla. Stat. Ann. tit. 21, § 701.1-701.3 (Supp.
1975-1976); Pa. Laws 1974, Act. No. 46; R.I. Gen. Laws Ann. § 11-23-2
(Supp. 1975); S.C. Code Ann. § 16-52 (Supp. 1975); Tenn. Code Ann. §§
39-2402, 39-2406 (1975); Tex. Penal Code Ann. § 19.03(a) (1974); Utah Code
Ann. §§ 76-3-206, 76-3-207, 76-5-202 (Supp. 1975); Va. Code Ann. §§
18.2-10, 18.2-31 (1976); Wash. Rev. Code §§ 9A.32.045, 9A.-32.046 (Supp.
1975); Wyo. Stat. Ann. § 6-54 (Supp. 1975). |
| [222] | *fn24
Antihijacking Act of 1974, 49 U.S.C. §§ 1472(i), (n) (1970 ed., Supp.
IV). |
| [223] | *fn25
In 1968, the people of Massachusetts were asked "Shall the commonwealth...
retain the death penalty for crime?" A substantial majority of the ballots
cast answered "Yes." Of 2,348,005 ballots cast, 1,159,348 voted "Yes,"
730,649 voted "No," and 458,008 were blank. See Commonwealth v. O'Neal, --
Mass. -- , -- , and n. 1, 339 N.E. 2d 676, 708, and n. 1 (1975) (Reardon,
J., dissenting). A December 1972 Gallup poll indicated that 57% of the
people favored the death penalty, while a June 1973 Harris survey showed
support of 59%. Vidmar & Ellsworth, Public Opinion and the Death
Penalty, 26 Stan. L. Rev. 1245, 1249 n. 22 (1974). In a December 1970
referendum, the voters of Illinois also rejected the abolition of capital
punishment by 1,218,791 votes to 676,302 votes. Report of the Governor's
Study Commission on Capital Punishment 43 (Pa. 1973). |
| [224] | *fn26
The number of prisoners who received death sentences in the years from
1961 to 1972 varied from a high of 140 in 1961 to a low of 75 in 1972,
with wide fluctuations in the intervening years: 103 in 1962; 93 in 1963;
106 in 1964; 86 in 1965; 118 in 1966; 85 in 1967; 102 in 1968; 97 in 1969;
127 in 1970; and 104 in 1971. Department of Justice, National Prisoner
Statistics Bulletin, Capital Punishment 1971-1972, p. 20 (Dec. 1974). It
has been estimated that before Furman less than 20% of those convicted of
murder were sentenced to death in those States that authorized capital
punishment. See Woodson v. North Carolina, post, at 295-296, n.
31. |
| [225] | *fn27
Department of Justice, National Prisoner Statistics Bulletin, Capital
Punishment 1974, pp. 1, 26-27 (Nov. 1975). |
| [226] | *fn28
Another purpose that has been discussed is the incapacitation of dangerous
criminals and the consequent prevention of crimes that they may otherwise
commit in the future. See People v. Anderson, 6 Cal. 3d 628, 651, 493 P.
2d 880, 896, cert. denied, 406 U.S. 958 (1972);
Commonwealth v. O'Neal, supra, at , 339 N.E. 2d, at 685-686. |
| [227] | *fn29
See H. Packer, limits of the Criminal Sanction 43-44 (1968). |
| [228] | *fn30
Lord Justice Denning, Master of the Rolls of the Court of Appeal in
England, spoke to this effect before the British Royal Commission on
Capital Punishment:
"Punishment is the way in which society expresses its denunciation of
wrong doing: and, in order to maintain respect for law, it is essential
that the punishment inflicted for grave crimes should adequately reflect
the revulsion felt by the great majority of citizens for them. It is a
mistake to consider the objects of punishment as being deterrent or
reformative or preventive and nothing else.... The truth is that some
crimes are so outrageous that society insists on adequate punishment,
because the wrong-doer deserves it, irrespective of whether it is a
deterrent or not." Royal Commission on Capital Punishment, Minutes of
Evidence, Dec. 1, 1949, p. 207 (1950). A contemporary writer has noted
more recently that opposition to capital punishment "has much more appeal
when the discussion is merely academic than when the community is
confronted with a crime, or a series of crimes, so gross, so heinous, so
cold-blooded that anything short of death seems an inadequate response."
Raspberry, Death Sentence, The Washington Post, Mar. 12, 1976, p. A27,
cols. 5-6. |
| [229] | *fn31
See, e.g., Peck, The Deterrent Effect of Capital Punishment: Ehrlich and
His Critics, 85 Yale L.J. 359 (1976); Baldus & Cole, A Comparison of
the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of
Capital Punishment, 85 Yale L.J. 170 (1975); Bowers & Pierce, The
Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment,
85 Yale L.J. 187 (1975); Ehrlich, The Deterrent Effect of Capital
Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397 (June
1975); Hook, The Death Sentence, in The Death Penalty in America 146 (H.
Bedau ed. 1967); T. Sellin, The Death Penalty, A Report for the Model
Penal Code Project of the American Law Institute (1959). |
| [230] | *fn32
See, e.g., The Death Penalty in America, supra, at 258-332; Report of the
Royal Commission on Capital Punishment, 1949-1953, Cmd.
8932. |
| [231] | *fn33
Other types of calculated murders, apparently occurring with increasing
frequency, include the use of bombs or other means of indiscriminate
killings, the extortion murder of hostages or kidnap victims, and the
execution-style killing of witnesses to a crime. |
| [232] | *fn34
We have been shown no statistics breaking down the total number of murders
into the categories described above. The overall trend in the number of
murders committed in the nation, however, has been upward for some time.
In 1964, reported murders totaled an estimated 9,250. During the ensuing
decade, the number reported increased 123%, until it totaled approximately
20,600 in 1974. In 1972, the year Furman was announced, the total
estimated was 18,520. Despite a fractional decrease in 1975 as compared
with 1974, the number of murders increased in the three years immediately
following Furman to approximately 20,400, an increase of almost 10%. See
FBI, Uniform Crime Reports, for 1964, 1972, 1974, and 1975, Preliminary
Annual Release. |
| [233] | *fn35
We do not address here the question whether the taking of the criminal's
life is a proportionate sanction where no victim has been deprived of life
-- for example, when capital punishment is imposed for rape, kidnaping, or
armed robbery that does not result in the death of any human
being. |
| [234] | *fn36
This view was expressed by other Members of the Court who concurred in the
judgments. See 408 U.S., at 255-257 (Douglas, J.);
id., at 291-295 (BRENNAN, J.). The dissenters viewed this concern as the
basis for the Furman decision: "The decisive grievance of the opinions...
is that the present system of discretionary sentencing in capital cases
has failed to produce evenhanded justice;... that the selection process
has followed no rational pattern." Id., at 398-399 (BURGER, C.J.,
dissenting). |
| [235] | *fn37
The Federal Rules of Criminal Procedure require as a matter of course that
a presentence report containing information about a defendant's background
be prepared for use by the sentencing judge. Rule 32(c). The importance of
obtaining accurate sentencing information is underscored by the Rule's
direction to the sentencing court to "afford the defendant or his counsel
an opportunity to comment [on the report] and, at the discretion of the
court, to introduce testimony or other information relating to any alleged
factual inaccuracy contained in the presentence report." Rule
32(c)(3)(A). |
| [236] | *fn38
Indeed, we hold elsewhere today that in capital cases it is
constitutionally required that the sentencing authority have information
sufficient to enable it to consider the character and individual
circumstances of a defendant prior to imposition of a death sentence. See
Woodson v. North Carolina, post, at 303-305. |
| [237] | *fn39
Witherspoon v. Illinois, 391 U.S., at 519 n. 15,
quoting Trop v. Dulles, 356 U.S., at 101 (plurality
opinion). See also Report of the Royal Commission on Capital Punishment,
1949-1953, Cmd. 8932, [*] 571. |
| [238] | *fn40
In other situations this Court has concluded that a jury cannot be
expected to consider certain evidence before it on one issue, but not
another. See, e.g., Bruton v. United States, 391 U.S. 123 (1968); Jackson v. Denna, 378 U.S. 368
(1964). |
| [239] | *fn41
In United States v. Jackson, 390 U.S. 570 (1968), the
Court considered a statute that provided that if a defendant pleaded
guilty, the maximum penalty would be life imprisonment, but if a defendant
chose to go to trial, the maximum penalty upon conviction was death. In
holding that the statute was constitutionally invalid, the Court noted:
"The inevitable effect of any such provision is, of course, to
discourage assertion of the Fifth Amendment right not to plead guilty and
to deter exercise of the Sixth Amendment right to demand a jury trial. If
the provision had no other purpose or effect than to chill the assertion
of constitutional rights by penalizing those who choose to exercise them,
then it would be patently unconstitutional." Id., at
581. |
| [240] | *fn42
But see Md. Const., Art. XV, § 5: "In the trial of all criminal cases, the
jury shall be the Judges of the Law, as well as of fact...." See also Md.
Code Ann., art. 27, § 593 (1971). Maryland judges, however, typically give
advisory instructions on the law to the jury. See Md. Rule 756; Wilson v.
State, 239 Md. 245, 210 A.2d 824 (1965). |
| [241] | *fn43
See McGautha v. California, 402 U.S., at 204-207;
Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd.
8932, [*] 595. |
| [242] | *fn44
The Model Penal Code proposes the following standards:
"(3) Aggravating Circumstances. "(a) The murder was committed by a
convict under sentence of imprisonment. "(b) The defendant was previously
convicted of another murder or of a felony involving the use or threat of
violence to the person. "(c) At the time the murder was committed the
defendant also committed another murder. "(d) The defendant knowingly
created a great risk of death to many persons. "(e) The murder was
committed while the defendant was engaged or was an accomplice in the
commission of, or an attempt to commit, or flight after committing or
attempting to commit robbery, rape or deviate sexual intercourse by force
or threat of force, arson, burglary or kidnapping. "(f) The murder was
committed for the purpose of avoiding or preventing a lawful arrest or
effecting an escape from lawful custody. "(g) The murder was committed for
pecuniary gain. "(h) The murder was especially heinous, atrocious or
cruel, manifesting exceptional depravity. "(4) Mitigating Circumstances.
"(a) The defendant has no significant history of prior criminal activity.
"(b) The murder was committed while the defendant was under the influence
of extreme mental or emotional disturbance. "(c) The victim was a
participant in the defendant's homicidal conduct or consented to the
homicidal act. "(d) The murder was committed under circumstances which the
defendant believed to provide a moral justification or extenuation for his
conduct. "(e) The defendant was an accomplice in a murder committed by
another person and his participation in the homicidal act was relatively
minor. "(f) The defendant acted under duress or under the domination of
another person. "(g) At the time of the murder, the capacity of the
defendant to appreciate the criminality [wrongfulness] of his conduct or
to conform his conduct to the requirements of law was impaired as a result
of mental disease or defect or intoxication. "(h) The youth of the
defendant at the time of the crime." ALI Model Penal Code § 210.6
(Proposed Official Draft 1962). |
| [243] | *fn45
As MR. JUSTICE BRENNAN noted in McGautha v. California, supra, at 285-286
(dissenting opinion):
"[E]ven if a State's notion of wise capital sentencing policy is such
that the policy cannot be implemented through a formula capable of
mechanical application... there is no reason that it should not give some
guidance to those called upon to render decision." |
| [244] | *fn46
A system could have standards so vague that they would fail adequately to
channel the sentencing decision patterns of juries with the result that a
pattern of arbitrary and capricious sentencing like that found
unconstitutional in Furman could occur. |
| [245] | *fn47
In McGautha v. California, supra, this Court held that the Due Process
Clause of the Fourteenth Amendment did not require that a jury be provided
with standards to guide its decision whether to recommend a sentence of
life imprisonment or death or that the capital-sentencing proceeding be
separated from the guilt-determination process. McGautha was not an Eighth
Amendment decision, and to the extent it purported to deal with Eighth
Amendment concerns, it must be read in light of the opinions in Furman v.
Georgia. There the Court ruled that death sentences imposed under statutes
that left juries with untrammeled discretion to impose or withhold the
death penalty violated the Eighth and Fourteenth Amendments. While Furman
did not overrule McGautha, it is clearly in substantial tension with a
broad reading of McGautha 's holding. In view of Furman, McGautha can be
viewed rationally as a precedent only for the proposition that
standardless jury sentencing procedures were not employed in the cases
there before the Court so as to violate the Due Process Clause. We note
that McGautha 's assumption that it is not possible to devise standards to
guide and regularize jury sentencing in capital cases has been undermined
by subsequent experience. In view of that experience and the
considerations set forth in the text, we adhere to Furman 's determination
that where the ultimate punishment of death is at issue a system of
standardless jury discretion violates the Eighth and Fourteenth
Amendments. |
| [246] | *fn48
The text of the statute enumerating the various aggravating circumstances
is set out at n.9, supra. |
| [247] | *fn49
See Moore v. State, 233 Ga. 861, 865, 213 S.E. 2d 829, 832
(1975). |
| [248] | *fn50
The petitioner's argument is nothing more than a veiled contention that
Furman indirectly outlawed capital punishment by placing totally
unrealistic conditions on its use. In order to repair the alleged defects
pointed to by the petitioner, it would be necessary to require that
prosecuting authorities charge a capital offense whenever arguably there
had been a capital murder and that they refuse to plea bargain with the
defendant. If a jury refused to convict even though the evidence supported
the charge, its verdict would have to be reversed and a verdict of guilty
entered or a new trial ordered, since the discretionary act of jury
nullification would not be permitted. Finally, acts of executive clemency
would have to be prohibited. Such a system, of course, would be totally
alien to our notions of criminal justice.
Moreover, it would be unconstitutional. Such a system in many respects
would have the vices of the mandatory death penalty statutes we hold
unconstitutional today in Woodson v. North Carolina, post, p. 280, and
Roberts v. Louisiana, post, p. 325. The suggestion that a jury's verdict
of acquittal could be overturned and a defendant retried would run afoul
of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause
of the Fifth Amendment. In the federal system it also would be
unconstitutional to prohibit a President from deciding, as an act of
executive clemency, to reprieve one sentenced to death. U.S. Const., Art.
II, § 2. |
| [249] | *fn51
In light of the limited grant of certiorari, see supra, at 162, we review
the "vagueness" and "overbreadth" of the statutory aggravating
circumstances only to consider whether their imprecision renders this
capital-sentencing system invalid under the Eighth and Fourteenth
Amendments because it is incapable of imposing capital punishment other
than by arbitrariness or caprice. |
| [250] | *fn52
In the course of interpreting Florida's new capital-sentencing statute,
the Supreme Court of Florida has ruled that the phrase "especially
heinous, atrocious or cruel" means a "conscienceless or pitiless crime
which is unnecessarily torturous to the victim." State v. Dixon, 283 So.
2d 1, 9 (1973). See Proffitt v. Florida, post, at 255-256. |
| [251] | *fn53
Two other reported cases indicate that juries have found aggravating
circumstances based on § 27-2534.1 (b)(7). In both cases a separate
statutory aggravating circumstance was also found, and the Supreme Court
of Georgia did not explicitly rely on the finding of the seventh
circumstance when it upheld the death sentence. See Jarrell v. State, 234
Ga. 410, 216 S.E. 2d 258 (1975) (State Supreme Court upheld finding that
defendant committed two other capital felonies -- kidnaping and armed
robbery -- in the course of the murder, § 27-2534.1 (b)(2); jury also
found that the murder was committed for money, § 27-2534.1 (b)(4), and
that a great risk of death to bystanders was created, § 27-2534.1 (b)(3));
Floyd v. State, 233 Ga. 280, 210 S.E. 2d 810 (1974) (found to have
committed a capital felony -- armed robbery -- in the course of the
murder, § 27-2534.1 (b)(2)). |
| [252] | *fn54
The petitioner also attacks § 25-2534.1 (b)(7) as vague. As we have noted
in answering his overbreadth argument concerning this section, however,
the state court has not given a broad reading to the scope of this
provision, and there is no reason to think that juries will not be able to
understand it. See n. 51, supra; Proffitt v. Florida, post, at
255-256. |
| [253] | *fn55
The petitioner also objects to the last part of § 27-2534.1 (b)(3) which
requires that the great risk be created "by means of a weapon or device
which would normally be hazardous to the lives of more than one person."
While the state court has not focused on this section, it seems reasonable
to assume that if a great risk in fact is created, it will be likely that
a weapon or device normally hazardous to more than one person will have
created it. |
| [254] | *fn56
The court is required to specify in its opinion the similar cases which it
took into consideration. § 27-2537 (e) (Supp. 1975). Special provision is
made for staff to enable the court to compile data relevant to its
consideration of the sentence's validity. §§ 27-2537 (f)-(h) (Supp. 1975).
See generally supra, at 166-168.
The petitioner claims that this procedure has resulted in an inadequate
basis for measuring the proportionality of sentences. First, he notes that
nonappealed capital convictions where a life sentence is imposed and cases
involving homicides where a capital conviction is not obtained are not
included in the group of cases which the Supreme Court of Georgia uses for
comparative purposes. The Georgia court has the authority to consider such
cases, see Ross v. State, 233 Ga. 361, 365-366, 211 S.E. 2d 356, 359
(1974), and it does consider appealed murder cases where a life sentence
has been imposed. We do not think that the petitioner's argument
establishes that the Georgia court's review process is ineffective. The
petitioner further complains about the Georgia court's current practice of
using some pre- Furman cases in its comparative examination. This practice
was necessary at the inception of the new procedure in the absence of any
post- Furman capital cases available for comparison. It is not
unconstitutional. |
|
| |
| Concurrence Footnotes | |
|
| |
| [255] | *fn1
Section 26-1101 provides as follows:
"Murder. "(a) A person commits murder when he unlawfully and with
malice aforethought, either express or implied, causes the death of
another human being. Express malice is that deliberate intention
unlawfully to take away the life of a fellow creature, which is manifested
by external circumstances capable of proof. Malice shall be implied where
no considerable provocation appears, and where all the circumstances of
the killing show an abandoned and malignant heart. "(b) A person also
commits the crime of murder when in the commission of a felony he causes
the death of another human being, irrespective of malice. "(c) A person
convicted of murder shall be punished by death or by imprisonment for
life." The death penalty may also be imposed for kidnaping, Ga. Code Ann.
§ 26-1311; armed robbery, § 26-1902; rape, § 26-2001; treason, § 26-2201;
and aircraft hijacking, § 26-3301. |
| [256] | *fn2
Section 26-3102 (Supp. 1975) provides:
"Capital offenses; jury verdict and sentence. "Where, upon a trial by
jury, a person is convicted of an offense which may be punishable by
death, a sentence of death shall not be imposed unless the jury verdict
includes a finding of at least one statutory aggravating circumstance and
a recommendation that such sentence be imposed. Where a statutory
aggravating circumstance is found and a recommendation of death is made,
the court shall sentence the defendant to death. Where a sentence of death
is not recommended by the jury, the court shall sentence the defendant to
imprisonment as provided by law. Unless the jury trying the case makes a
finding of at least one statutory aggravating circumstance and recommends
the death sentence in its verdict, the court shall not sentence the
defendant to death, provided that no such finding of statutory aggravating
circumstance shall be necessary in offenses of treason or aircraft
hijacking. The provisions of this section shall not affect a sentence when
the case is tried without a jury or when the judge accepts a plea of
guilty." Georgia Laws, 1973, Act No. 74, p. 162, provides: "At the
conclusion of all felony cases heard by a jury, and after argument of
counsel and proper charge from the court, the jury shall retire to
consider a verdict of guilty or not guilty without any consideration of
punishment. In non-jury felony cases, the judge shall likewise first
consider a finding of guilty or not guilty without any consideration of
punishment. Where the jury or judge returns a verdict or finding of
guilty, the court shall resume the trial and conduct a pre-sentence
hearing before the jury or judge at which time the only issue shall be the
determination of punishment to be imposed. In such hearing, subject to the
laws of evidence, the jury or judge 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 such prior
criminal convictions 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. The jury or judge shall also hear argument by
the defendant or his counsel and the prosecuting attorney, as provided by
law, regarding the punishment to be imposed. The prosecuting attorney
shall open and the defendant shall conclude the argument to the jury or
judge. Upon the conclusion of the evidence and arguments, the judge shall
give the jury appropriate instructions and the jury shall retire to
determine the punishment to be imposed. In cases in which the death
penalty may be imposed by a jury or judge sitting without a jury, the
additional procedure provided in Code section 27-2534.1 shall be followed.
The jury, or the judge in cases tried by a judge, shall fix a sentence
within the limits prescribed by law. The judge shall impose the sentence
fixed by the jury or judge, as provided by law. If the jury cannot, within
a reasonable time, agree to the punishment, the judge shall impose
sentence within the limits of the law; provided, however, that the judge
shall in no instance impose the death penalty when, in cases tried by a
jury, the jury cannot agree upon the punishment. If the trial court is
reversed on appeal because of error only in the pre-sentence hearing, the
new trial which may be ordered shall apply only to the issue of
punishment." |
| [257] | *fn3
Section 27-2537 (g) provides:
"The court shall be authorized to employ an appropriate staff and such
methods to compile such data as are deemed by the Chief Justice to be
appropriate and relevant to the statutory questions concerning the
validity of the sentence...." |
| [258] | *fn4
The court said:
"And, I charge you that our law provides, in connection with the
offense of murder the following. A person commits murder when he
unlawfully and with malice aforethought, either express or implied causes
the death of another human being. "Express malice is that deliberate
intention, unlawfully to take away the life of a fellow creature which is
manifested by external circumstances, capable of proof. "Malice shall be
implied where no considerable provacation appears and where all of the
circumstances of the killing show an abandoned and malignant heart.
"Section B of this Code Section, our law provides that a person also
commits the crime of murder when in the commission of a felony he causes
the death of another human being irrespective of malice. "Now, then, I
charge you that if you find and believe beyond a reasonable doubt that the
defendant did commit the homicide in the two counts alleged in this
indictment, at the time he was engaged in the commission of some other
felony, you would be authorized to find him guilty of murder. "In this
connection, I charge you that in order for a homicide to have been done in
the perpetration of a felony, there must be some connection between the
felony and the homicide. The homicide must have been done in pursuance of
the unlawful act not collateral to it. It is not enough that the homicide
occurred soon or presently after the felony was attempted or committed,
there must be such a legal relationship between the homicide and the
felony that you find that the homicide occurred by reason of and a part of
the felony or that it occurred before the felony was at an end, so that
the felony had a legal relationship to the homicide and was concurrent
with it in part at least, and a part of it in an actual and material
sense. A homicide is committed in the perpetration of a felony when it is
committed by the accused while he is engaged in the performance of any act
required for the full execution of such felony. "I charge you that if you
find and believe beyond a reasonable doubt that the homicide alleged in
this indictment was caused by the defendant while he, the said accused was
in the commission of a felony as I have just given you in this charge, you
would be authorized to convict the defendant of murder. "And this you
would be authorized to do whether the defendant intended to kill the
deceased or not. A homicide, although unintended, if committed by the
accused at the time he is engaged in the commission of some other felony
constitutes murder. "In order for a killing to have been done in
perpetration or attempted perpetration of a felony, or of a particular
felony, there must be some connection as I previously charged you between
the felony and the homicide. "Before you would be authorized to find the
defendant guilty of the offense of murder, you must find and believe
beyond a reasonable doubt, that the defendant did, with malice
aforethought either express or implied cause the deaths of [Simmons or
Moore] or you must find and believe beyond a reasonable doubt that the
defendant, while in the commission of a felony caused the death of these
two victims just named. "I charge you, that if you find and believe that,
at any time prior to the date this indictment was returned into this court
that the defendant did, in the county of Gwinnett, State of Georgia, with
malice aforethought kill and murder the two men just named in the way and
manner set forth in the indictment or that the defendant caused the deaths
of these two men in the way and manner set forth in the indictment, while
he, the said accused was in the commission of a felony, then in either
event, you would be authorized to find the defendant guilty of
murder." |
| [259] | *fn5
In a subsequently decided robbery-murder case, the Georgia Supreme Court
had the following to say about the same "similar cases" referred to in
this case:
"We have compared the evidence and sentence in this case with other
similar cases and conclude the sentence of death is not excessive or
disproportionate to the penalty imposed in those cases. Those similar
cases we considered in reviewing the case are: Lingo v. State, 226 Ga. 496
(175 SE2d 657), Johnson v. State, 226 Ga. 511 (175 SE2d 840), Pass v.
State, 227 Ga. 730 (182 SE2d 779), Watson v. State, 229 Ga. 787 (194 SE2d
407), Scott v. State, 230 Ga. 413 (197 SE2d 338), Kramer v. State, 230 Ga.
855 (199 SE2d 805), and Gregg v. State, 233 Ga. 117 (210
SE2d 659). "In each of the comparison cases cited, the records show that
the accused was found guilty of murder of the victim of the robbery or
burglary committed in the course of such robbery or burglary. In each of
those cases, the jury imposed the sentence of death. In Pass v. State,
supra, the murder took place in the victim home, as occurred in the case
under consideration. "We find that the sentence of death in this case is
not excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. Code Ann. § 27-2537 (c) (3).
Notwithstanding the fact that there have been cases in which robbery
victims were murdered and the juries imposed life sentences (see
Appendix), the cited cases show that juries faced with similar factual
situations have imposed death sentences. Compare Coley v. State, 231 Ga.
829, 835, supra. Thus the sentence here was not 'wantonly and freakishly
imposed' (see above)." Moore v. State, 233 Ga. 861, 865-866, 213 S.E.2d
829, 833 (1975). In another case decided after the instant case the
Georgia Supreme Court stated: "The cases reviewed included all murder
cases coming to this court since January 1, 1970. All kidnapping cases
were likewise reviewed. The comparison involved a search for similarities
in addition to the similarity of offense charged and sentence imposed.
"All of the murder cases selected for comparison involved murders wherein
all of the witnesses were killed or an attempt was made to kill all of the
witnesses, and kidnapping cases where the victim was killed or seriously
injured. "The cases indicate that, except in some special circumstance
such as a juvenile or an accomplice driver of a get-away vehicle, where
the murder was committed and trial held at a time when the death penalty
statute was effective, juries generally throughout the state have imposed
the death penalty. The death penalty has also been imposed when the kidnap
victim has been mistreated or seriously injured. In this case the victim
was murdered. "The cold blooded and callous nature of the offenses in this
case are the types condemned by death in other cases. This defendant's
death sentences for murder and kidnapping are not excessive or
disproportionate to the penalty imposed in similar cases. Using the
standards prescribed for our review by the statute, we conclude that the
sentences of death imposed in this case for murder and kidnapping were not
imposed under the influence of passion, prejudice or any other arbitrary
factor." Jarrell v. State, 234 Ga. 410, 425-426, 216 S.E. 2d 258, 270
(1975). |
| [260] | *fn6
See Furman v. Georgia, 408 U.S., at 240 (Douglas, J.,
concurring). |
| [261] | *fn7
See id., at 306 (STEWART, J., concurring). |
| [262] | *fn8
See id., at 310 (WHITE, J., concurring). |
| [263] | *fn9
Petitioner also argues that the differences between murder -- for which
the death penalty may be imposed -- and manslaughter -- for which it may
not be imposed -- are so difficult to define and the jury's ability to
disobey the trial judge's instructions so unfettered that juries will use
the guilt-determination phase of a trial arbitrarily to convict some of a
capital offense while convicting similarly situated individuals only of
non-capital offenses. I believe this argument is enormously overstated.
However, since the jury has discretion not to impose the death penalty at
the sentencing phase of a case in Georgia, the problem of offense
definition and jury nullification loses virtually all its significance in
this case. |
| [264] | *fn10
The factor relevant to this case is that the "murder... was committed
while the offender was engaged in the commission of another capital
felony." The State in its brief refers to this type of murder as
"witness-elimination" murder. Apparently the State of Georgia wishes to
supply a substantial incentive to those engaged in robbery to leave their
guns at home and to persuade their coconspirators to do the same in the
hope that fewer victims of robberies will be killed. |
| [265] | *fn11
Petitioner states several times without citation that the only cases
considered by the Georgia Supreme Court are those in which an appeal was
taken either from a sentence of death or life imprisonment. This view
finds no support in the language of the relevant statutes. Moore v. State,
233 Ga., at 863-864, 213 S.E. 2d, at 832. |
|
| |
| Dissent Footnotes | |
|
| |
| [266] | *fn1
Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality
opinion of Warren, C.J.). |
| [267] | *fn2
Quoting T. Sellin, The Death Penalty, A Report for the Model Penal Code
Project of the American Law Institute 15 (1959). |
| [268] | *fn3
Novak v. Beto, 453 F.2d 611, 672 (CA5 1971) (Tuttle, J., concurring in
part and dissenting in part). |
| [269] | *fn4
Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on
Capital Punishment, 51 Notre Dame Law. 722, 736 (1976). |
| [270] | *fn5
Trop v. Dulles, 356 U.S., at 99 (plurality opinion of
Warren, C.J.). |
| [271] | *fn6
A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub. 1960).
1a Sarat & Vidmar, Public Opinion, The Death Penalty, and the
Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wis. L. Rev. 171.
2a See e.g., T. Sellin, The Death Penalty, A Report for the Model Penal
Code Project of the American Law Institute (1959). 3a United Nations,
Department of Economic and Social Affairs, Capital Punishment, pt. II, [*]
159, p. 123 (1968). 4a I. Ehrlich, The Deterrent Effect of Capital
Punishment: A Question of Life and Death (Working Paper No. 18, National
Bureau of Economic Research, Nov. 1973); Ehrlich, The Deterrent Effect of
Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397
(June 1975). 5a Id., at 409. 6a The variables other than execution risk
included probability of arrest, probability of conviction given arrest,
national aggregate measures of the percentage of the population between
age 14 and 24, the unemployment rate, the labor force participation rate,
and estimated per capita income. |
| [272] | *fn7
Id., at 398, 414. |
| [273] | *fn8
See Passell & Taylor, The Deterrent Effect of Capital Punishment:
Another View (unpublished Columbia University Discussion Paper 74-7509,
Mar. 1975), reproduced in Brief for Petitioner App. E in Jurek v. Texas,
O.T. 1975; No. 75-5844; Passell, The Deterrent Effect of the Death
Penalty: A Statistical Test, 28 Stan. L. Rev. 61 (1975); Baldus &
Cole, A Comparison of the Work of Thorsten Sellin & Isaac Ehrlich on
the Deterrent Effect of Capital Punishment, 85 Yale L.J. 170 (1975);
Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich's
Research on Capital Punishment, 85 Yale L.J. 187 (1975); Peck, The
Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale
L.J. 359 (1976). See also Ehrlich, Deterrence: Evidence and Inference, 85
Yale L.J. 209 (1975); Ehrlich, Rejoinder, 85 Yale L.J. 368 (1976). In
addition to the items discussed in text, criticism has been directed at
the quality of Ehrlich's data, his choice of explanatory variables, his
failure to account for the interdependence of those variables, and his
assumptions as to the mathematical form of the relationship between the
homicide rate and the explanatory variables. |
| [274] | *fn9
See Baldus & Cole, supra, at 175-177. |
| [275] | *fn10
Bowers & Pierce, supra, n. 8, at 197-198. See also Passell &
Taylor, supra, n. 8, at 2-66 - 2-68. |
| [276] | *fn11
See Bowers & Pierce, supra, n. 8, at 197-198; Baldus & Cole,
supra, n. 8, at 181, 183-185; Peck, supra, n. 8, at 366-367. |
| [277] | *fn12
Passell, supra, n. 8. |
| [278] | *fn13
See also Bailey, Murder and Capital Punishment: Some Further Evidence, 45
Am. J. Orthopsychiatry 669 (1975); W. Bowers, Executions in America
121-163 (1974). |
| [279] | *fn14
In Furman, I considered several additional purposes arguably served by the
death penalty. 408 U.S., at 314, 342, 355-358. The
only additional purpose mentioned in the opinions in these cases is
specific deterrence -- preventing the murderer from committing another
crime. Surely life imprisonment and, if necessary, solitary confinement
would fully accomplish this purpose. Accord, Commonwealth v. O'Neal, --
Mass. -- , -- , 339 N.E. 2d 676, 685 (1975); People v. Anderson, 6 Cal. 3d
628, 651, 493 P. 2d 880, 896, cert. denied, 406 U.S. 958 (1972). |
| [280] | *fn15
See, e.g., H. Hart, Punishment and Responsibility 8-10, 71-83 (1968); H.
Packer, Limits of the Criminal Sanction 38-39, 66 (1968). |
| [281] | *fn16
See Commonwealth v. O'Neal, supra, at -- , 339 N.E. 2d, at 687; Bowers,
supra, n. 13, at 135; Sellin, supra, n. 2, at 79. |
| [282] | *fn17
See Hart, supra, n. 15, at 72, 74-75, 234-235; Packer, supra, n. 15, at
37-39. |
| [283] | *fn18
MR. JUSTICE WHITE'S view of retribution as a justification for the death
penalty is not altogether clear. "The widespread reenactment of the death
penalty," he states at one point, "answers any claims that life
imprisonment is adequate punishment to satisfy the need for reprobation or
retribution." Roberts v. Louisiana, post, at 354. (WHITE, J., dissenting).
But MR. JUSTICE WHITE later states: "It will not do to denigrate these
legislative judgments as some form of vestigial savagery or as purely
retributive in motivation; for they are solemn judgments, reasonably
based, that imposition of the death penalty will save the lives of
innocent persons." Post, at 355. |
| [284] | *fn19
See Commonwealth v. O'Neal, supra, at 236, 339 N.E. 2d, at 687; People v.
Anderson, 6 Cal. 3d, at 651, 493 P. 2d, at 896. |
| [285] | *fn*
[This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p.
242, and No. 75-5394, Jurek v. Texas, post, p.
262.] |