| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 76-6997 |
| [3] | 1978.SCT.42391 <http://www.versuslaw.com>; 438
U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 |
| [4] | decided: July 3, 1978. |
| [5] | LOCKETT v. OHIO |
| [6] | CERTIORARI TO THE SUPREME COURT OF OHIO. |
| [7] | Anthony G. Amsterdam argued the cause for petitioner. With him on the
brief were Max Kravitz, Jack Greenberg, James M. Nabrit III, Joel Berger,
David E. Kendall, and Peggy C. Davis. |
| [8] | Carl M. Layman III argued the cause for respondent. With him on the
brief were Stephan M. Gabalac and James A. Rudgers. |
| [9] | Burger, C. J., announced the Court's judgment and delivered an opinion
of the Court with respect to Parts I and II, in which Stewart, White,
Blackmun, Powell, Rehnquist, and Stevens, JJ., joined, and an opinion with
respect to Part III, in which Stewart, Powell, and Stevens, JJ., joined.
Blackmun, J., filed an opinion concurring in part and concurring in the
judgment, post, p. 613. Marshall, J., filed an opinion concurring in the
judgment, post, p. 619. White, J., filed an opinion concurring in part,
concurring in the judgment, and dissenting in part, post, p. 621.
Rehnquist, J., filed an opinion concurring in part and dissenting in part,
post, p. 628. Brennan, J., took no part in the consideration or decision
of the case. |
| [10] | Author: Burger |
| [11] | MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with
respect to the constitutionality of petitioner's conviction (Parts I and
II), together with an opinion (Part III), in which MR. JUSTICE STEWART,
MR. JUSTICE POWELL, and MR. JUSTICE STEVENS joined, on the
constitutionality of the statute under which petitioner was sentenced to
death, and announced the judgment of the Court. |
| [12] | We granted certiorari in this case to consider, among other questions,
whether Ohio violated the Eighth and Fourteenth Amendments by sentencing
Sandra Lockett to death pursuant to a statute*fn1
that narrowly limits the sentencer's discretion to consider the
circumstances of the crime and the record and character of the offender as
mitigating factors. |
| [13] | I |
| [14] | Lockett was charged with aggravated murder with the
aggravating specifications (1) that the murder was "committed for the
purpose of escaping detection, apprehension, trial, or punishment" for
aggravated robbery, and (2) that the murder was "committed while . . .
committing, attempting to commit, or fleeing immediately after committing
or attempting to commit . . . aggravated robbery." That offense was
punishable by death in Ohio. See Ohio Rev. Code Ann. §§ 2929.03, 2929.04
(1975). She was also charged with aggravated robbery. The State's case
against her depended largely upon the testimony of a coparticipant, one Al
Parker, who gave the following account of her participation in the robbery
and murder. |
| [15] | Lockett became acquainted with Parker and Nathan Earl
Dew while she and a friend, Joanne Baxter, were in New Jersey. Parker and
Dew then accompanied Lockett, Baxter, and
Lockett's brother back to Akron, Ohio,
Lockett's hometown. After
they arrived in Akron, Parker and Dew needed money for the trip back to
New Jersey. Dew suggested that he pawn his ring. Lockett
overheard his suggestion, but felt that the ring was too beautiful to
pawn, and suggested instead that they could get some money by robbing a
grocery store and a furniture store in the area. She warned that the
grocery store's operator was a "big guy" who carried a "45" and that they
would have "to get him real quick." She also volunteered to get a gun from
her father's basement to aid in carrying out the robberies, but by that
time, the two stores had closed and it was too late to proceed with the
plan to rob them. |
| [16] | Someone, apparently Lockett's brother, suggested a plan
for robbing a pawnshop. He and Dew would enter the shop and pretend to
pawn a ring. Next Parker, who had some bullets, would enter the shop, ask
to see a gun, load it, and use it to rob the shop. No one planned to kill
the pawnshop operator in the course of the robbery. Because she knew the
owner, Lockett was not to be among those entering the
pawnshop, though she did guide the others to the shop that
night. |
| [17] | The next day Parker, Dew, Lockett, and her brother
gathered at Baxter's apartment. Lockett's brother asked if
they were "still going to do it," and everyone, including
Lockett, agreed to proceed. The four then drove by the
pawnshop several times and parked the car. Lockett's brother
and Dew entered the shop. Parker then left the car and told
Lockett to start it again in two minutes. The robbery
proceeded according to plan until the pawnbroker grabbed the gun when
Parker announced the "stickup." The gun went off with Parker's finger on
the trigger, firing a fatal shot into the pawnbroker. |
| [18] | Parker went back to the car where Lockett waited with
the engine running. While driving away from the pawnshop, Parker told
Lockett what had happened. She took the gun from the
pawnshop and put it into her purse. Lockett and Parker
drove to Lockett's aunt's house and called a taxicab.
Shortly thereafter, while riding away in a taxicab, they were stopped by
the police, but by this time Lockett had placed the gun
under the front seat. Lockett told the police that Parker
rented a room from her mother and lived with her family. After verifying
this story with Lockett's parents, the police released
Lockett and Parker. Lockett hid Dew and Parker
in the attic when the police arrived at the Lockett
household later that evening. |
| [19] | Parker was subsequently apprehended and charged with aggravated murder
with specifications, an offense punishable by death, and aggravated
robbery. Prior to trial, he pleaded guilty to the murder charge and agreed
to testify against Lockett, her brother, and Dew. In return,
the prosecutor dropped the aggravated robbery charge and the
specifications to the murder charge, thereby eliminating the possibility
that Parker could receive the death penalty. |
| [20] | Lockett's brother and Dew were later convicted of
aggravated murder with specifications. Lockett's brother was
sentenced to death, but Dew received a lesser penalty because it was
determined that his offense was "primarily the product of mental
deficiency," one of the three mitigating circumstances specified in the
Ohio death penalty statute. |
| [21] | Two weeks before Lockett's separate trial, the
prosecutor offered to permit her to plead guilty to voluntary manslaughter
and aggravated robbery (offenses which each carried a maximum penalty of
25 years' imprisonment and a maximum fine of $10,000, see Ohio Rev. Code
Ann. §§ 2903.03, 2911.01, 2929.11 (1975)) if she would cooperate with the
State, but she rejected the offer. Just prior to her trial, the prosecutor
offered to permit her to plead guilty to aggravated murder without
specifications, an offense carrying a mandatory life penalty, with the
understanding that the aggravated robbery charge and an outstanding
forgery charge would be dismissed. Again she rejected the offer. At
trial, the opening argument of Lockett's defense counsel
summarized what appears to have been Lockett's version of
the events leading to the killing. He asserted the evidence would show
that, as far as Lockett knew, Dew and her brother had
planned to pawn Dew's ring for $100 to obtain money for the trip back to
New Jersey. Lockett had not waited in the car while the men
went into the pawnshop but had gone to a restaurant for lunch and had
joined Parker, thinking the ring had been pawned, after she saw him
walking back to the car. Lockett's counsel asserted that the
evidence would show further that Parker had placed the gun under the seat
in the taxicab and that Lockett had voluntarily gone to the
police station when she learned that the police were looking for the
pawnbroker's killers. |
| [22] | Parker was the State's first witness. His testimony related his
version of the robbery and shooting, and he admitted to a prior criminal
record of breaking and entering, larceny, and receiving stolen goods, as
well as bond jumping. He also acknowledged that his plea to aggravated
murder had eliminated the possibility of the death penalty, and that he
had agreed to testify against Lockett, her brother, and Dew
as part of his plea agreement with the prosecutor. At the end of the major
portion of Parker's testimony, the prosecutor renewed his offer to permit
Lockett to plead guilty to aggravated murder without
specifications and to drop the other charges against her. For the third
time Lockett refused the option of pleading guilty to a
lesser offense. |
| [23] | Lockett called Dew and her brother as defense witnesses,
but they invoked their Fifth Amendment rights and refused to testify. In
the course of the defense presentation, Lockett's counsel
informed the court, in the presence of the jury, that he believed
Lockett was to be the next witness and requested a short
recess. After the recess, Lockett's counsel told the judge
that Lockett wished to testify but had decided to accept her
mother's advice to remain silent, despite her counsel's warning that, if
she followed that advice, she would have no defense
except the cross-examination of the State's witnesses. Thus, the defense
did not introduce any evidence to rebut the prosecutor's
case. |
| [24] | The court instructed the jury that, before it could find
Lockett guilty, it had to find that she purposely had killed
the pawnbroker while committing or attempting to commit aggravated
robbery. The jury was further charged that one who |
| [25] | "purposely aids, helps, associates himself or herself with another for
the purpose of committing a crime is regarded as if he or she were the
principal offender and is just as guilty as if the person performed every
act constituting the offense. . . ." |
| [26] | Regarding the intent requirement, the court instructed: |
| [27] | "A person engaged in a common design with others to rob by force and
violence an individual or individuals of their property is presumed to
acquiesce in whatever may reasonably be necessary to accomplish the object
of their enterprise. . . . |
| [28] | "If the conspired robbery and the manner of its accomplishment would
be reasonably likely to produce death, each plotter is equally guilty with
the principal offender as an aider and abettor in the homicide . . . . An
intent to kill by an aider and abettor may be found to exist beyond a
reasonable doubt under such circumstances." |
| [29] | The jury found Lockett guilty as charged. |
| [30] | Once a verdict of aggravated murder with specifications had been
returned, the Ohio death penalty statute required the trial judge to
impose a death sentence unless, after "considering the nature and
circumstances of the offense" and Lockett's "history,
character, and condition," he found by a preponderance of the evidence
that (1) the victim had induced or facilitated the offense, (2) it was
unlikely that Lockett would have committed the offense but
for the fact that she "was under duress, coercion, or strong provocation,"
or (3) the offense
was "primarily the product of [Lockett's] psychosis or
mental deficiency." Ohio Rev. Code §§ 2929.03-2929.04 (B)
(1975). |
| [31] | In accord with the Ohio statute, the trial judge requested a
presentence report as well as psychiatric and psychological reports. The
reports contained detailed information about Lockett's
intelligence, character, and background. The psychiatric and psychological
reports described her as a 21-year-old with low-average or average
intelligence, and not suffering from a mental deficiency. One of the
psychologists reported that "her prognosis for rehabilitation" if returned
to society was favorable. The presentence report showed that
Lockett had committed no major offenses although she had a
record of several minor ones as a juvenile and two minor offenses as an
adult. It also showed that she had once used heroin but was receiving
treatment at a drug abuse clinic and seemed to be "on the road to success"
as far as her drug problem was concerned. It concluded that
Lockett suffered no psychosis and was not mentally
deficient.*fn2 |
| [32] | After considering the reports and hearing argument on the penalty
issue, the trial judge concluded that the offense had not been primarily
the product of psychosis or mental deficiency. Without specifically
addressing the other two statutory mitigating factors, the judge said that
he had "no alternative, whether [he] [liked] the law or not" but to impose
the death penalty. He then sentenced Lockett to
death. |
| [33] | II |
| [34] | A |
| [35] | At the outset, we address Lockett's various challenges
to the validity of her conviction. Her first contention is that the prosecutor's
repeated references in his closing remarks to the State's evidence as
"unrefuted" and "uncontradicted" constituted a comment on her failure to
testify and violated her Fifth and Fourteenth Amendment rights. See
Griffin v. California, 380 U.S. 609, 615 (1965). We
conclude, however, that the prosecutor's closing comments in this case did
not violate constitutional prohibitions. Lockett's own
counsel had clearly focused the jury's attention on her silence, first, by
outlining her contemplated defense in his opening statement and, second,
by stating to the court and jury near the close of the case, that
Lockett would be the "next witness." When viewed against
this background, it seems clear that the prosecutor's closing remarks
added nothing to the impression that had already been created by
Lockett's refusal to testify after the jury had been
promised a defense by her lawyer and told that Lockett would
take the stand. |
| [36] | B |
| [37] | Lockett also contends that four prospective jurors were
excluded from the venire in violation of her Sixth and Fourteenth
Amendment rights under the principles established in Witherspoon v.
Illinois, 391 U.S. 510 (1968), and Taylor v.
Louisiana, 419 U.S. 522, 528 (1975). We do not
agree. |
| [38] | On voir dire, the prosecutor told the venire that there was a
possibility that the death penalty might be imposed, but that the judge
would make the final decision as to punishment. He then asked whether any
of the prospective jurors were so opposed to capital punishment that "they
could not sit, listen to the evidence, listen to the law, [and] make their
determination solely upon the evidence and the law without considering the
fact that capital punishment" might be imposed. Four of the venire
responded affirmatively. The trial judge then addressed the following
question to those four veniremen: |
| [39] | "[Do] you feel that you could take an oath to well and truely [sic]
try this case . . . and follow the law, or is your
conviction so strong that you cannot take an oath, knowing that a
possibility exists in regard to capital punishment?" |
| [40] | Each of the four specifically stated twice that he or she would not
"take the oath." They were excused. |
| [41] | In Witherspoon, persons generally opposed to capital punishment had
been excluded for cause from the jury that convicted and sentenced the
petitioner to death. We did not disturb the conviction but we held that "a
sentence of death cannot be carried out if the jury that imposed or
recommended it was chosen by excluding veniremen for cause simply because
they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction." 391
U.S., at 522. We specifically noted, however, that nothing in
our opinion prevented the execution of a death sentence when the veniremen
excluded for cause make it "unmistakably clear . . . that their attitude
toward the death penalty would prevent them from making an impartial
decision as to the defendant's guilt." Id., at 522-523, n.
21. |
| [42] | Each of the excluded veniremen in this case made it "unmistakably
clear" that they could not be trusted to "abide by existing law" and "to
follow conscientiously the instructions" of the trial judge. Boulden v.
Holman, 394 U.S. 478, 484 (1969). They were thus
properly excluded under Witherspoon, even assuming, arguendo, that
Witherspoon provides a basis for attacking the conviction as well as the
sentence in a capital case. |
| [43] | Nor was there any violation of the principles of Taylor v. Louisiana,
supra. In Taylor, the Court invalidated a jury selection system that
operated to exclude a "grossly disproportionate," 419 U.S., at
525, number of women from jury service thereby depriving the
petitioner of a jury chosen from a "fair cross-section" of the community,
id., at 530. Nothing in Taylor, however, suggests that the right to a
representative jury includes the right to be tried by jurors who have
explicitly indicated
an inability to follow the law and instructions of the trial
judge. |
| [44] | C |
| [45] | Lockett's final attack on her conviction, as
distinguished from her sentence, merits only brief attention. Specifically
she contends that the Ohio Supreme Court's interpretation of the
complicity provision of the statute under which she was convicted, Ohio
Rev. Code Ann. § 2923.03 (A) (1975), was so unexpected that it deprived
her of fair warning of the crime with which she was charged. The opinion
of the Ohio Supreme Court belies this claim. It shows clearly that the
construction given the statute by the Ohio court was consistent with both
prior Ohio law and with the legislative history of the statute.*fn3
In such circumstances, any claim of inadequate notice under the Due
Process Clause of the Fourteenth Amendment must be rejected. |
| [46] | III |
| [47] | Lockett challenges the constitutionality of Ohio's death
penalty statute on a number of grounds. We find it necessary to consider
only her contention that her death sentence is invalid because the statute
under which it was imposed did not permit the sentencing judge to
consider, as mitigating factors, her character, prior record, age, lack of
specific intent to cause death, and her relatively minor part in the
crime. To address her contention from the proper perspective, it is
helpful to review the developments in our recent cases where we have
applied the Eighth and Fourteenth Amendments to death penalty statutes. We
do not write on a "clean slate." |
| [48] | A |
| [49] | Prior to Furman v. Georgia, 408 U.S. 238 (1972),
every State that authorized capital punishment had abandoned mandatory
death penalties,*fn4
and instead permitted the jury unguided and unrestrained discretion
regarding the imposition of the death penalty in a particular capital
case.*fn5
Mandatory death penalties had proved unsatisfactory, as the plurality
noted in Woodson v. North Carolina, 428 U.S. 280, 293
(1976), in part because juries, "with some regularity, disregarded their
oaths and refused to convict defendants where a death sentence was the
automatic consequence of a guilty verdict." |
| [50] | This Court had never intimated prior to Furman that discretion in
sentencing offended the Constitution. See Pennsylvania ex rel. Sullivan v.
Ashe, 302 U.S. 51, 55 (1937); Williams v. New York, 337 U.S. 241, 247 (1949); Williams v. Oklahoma, 358 U.S. 576, 585 (1959). As recently as McGautha v.
California, 402 U.S. 183 (1971), the Court had
specifically rejected the contention that discretion in imposing the death
penalty violated the fundamental standards of fairness embodied in
Fourteenth Amendment due process, id., at 207-208, and had asserted that
States were entitled to assume that "jurors confronted with the truly
awesome responsibility of decreeing death for a fellow human [would] act
with due regard for the consequences of their decision." Id., at
208. |
| [51] | The constitutional status of discretionary sentencing in capital cases
changed abruptly, however, as a result of the separate opinions supporting
the judgment in Furman. The question in Furman was whether "the imposition
and carrying out of the death penalty [in the cases before the Court]
[constituted] cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments." 408 U.S., at 239. Two
Justices concluded that the Eighth Amendment prohibited the death penalty
altogether and on that ground voted to
reverse the judgments sustaining the death penalties. Id., at 305-306
(BRENNAN, J., concurring); id., at 370-371 (MARSHALL, J., concurring).
Three Justices were unwilling to hold the death penalty per se
unconstitutional under the Eighth and Fourteenth Amendments, but voted to
reverse the judgments on other grounds. In separate opinions, the three
concluded that discretionary sentencing, unguided by legislatively defined
standards, violated the Eighth Amendment because it was "pregnant with
discrimination," id., at 257 (Douglas, J., concurring), because it
permitted the death penalty to be "wantonly" and "freakishly" imposed,
id., at 310 (STEWART, J., concurring), and because it imposed the death
penalty with "great infrequency" and afforded "no meaningful basis for
distinguishing the few cases in which it [was] imposed from the many cases
in which it [was] not," id., at 313 (WHITE, J., concurring). Thus, what
had been approved under the Due Process Clause of the Fourteenth Amendment
in McGautha became impermissible under the Eighth and Fourteenth
Amendments by virtue of the judgment in Furman. See Gregg v. Georgia, 428 U.S. 153, 195-196, n. 47 (1976) (opinion of
STEWART, POWELL, and STEVENS, JJ.). |
| [52] | Predictably,*fn6
the variety of opinions supporting the judgment in Furman engendered
confusion as to what was required in order to impose the death penalty in
accord with the Eighth Amendment.*fn7
Some States responded to what was thought to be
the command of Furman by adopting mandatory death penalties for a limited
category of specific crimes thus eliminating all discretion from the
sentencing process in capital cases.*fn8
Other States attempted to continue the practice of individually assessing
the culpability of each individual defendant convicted of a capital
offense and, at the same time, to comply with Furman, by providing
standards to guide the sentencing decision.*fn9 |
| [53] | Four years after Furman, we considered Eighth Amendment issues
posed by five of the post- Furman death penalty statutes.*fn10
Four Justices took the position that all five statutes complied with the
Constitution; two Justices took the position that none of them complied.
Hence, the disposition of each case varied according to the votes of three
Justices who delivered a joint opinion in each of the five cases upholding
the constitutionality of the statutes of Georgia, Florida, and Texas, and
holding those of North Carolina and Louisiana
unconstitutional. |
| [54] | The joint opinion reasoned that, to comply with Furman, sentencing
procedures should not create "a substantial risk that the death penalty
[will] be inflicted in an arbitrary and capricious manner." Gregg v.
Georgia, supra, at 188. In the view of the three Justices, however, Furman
did not require that all sentencing discretion be eliminated, but only
that it be "directed and limited," 428 U.S., at 189,
so that the death penalty would be imposed in a more consistent and
rational manner and so that there would be a "meaningful basis for
distinguishing the . . . cases in which it is imposed from . . . the many
cases in which it is not." Id., at 188. The plurality concluded, in the
course of invalidating North Carolina's mandatory death penalty statute,
that the sentencing process must permit consideration of the "character
and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the process
of inflicting the penalty of death," Woodson v. North Carolina,
428 U.S., at 304, in order to ensure the reliability,
under Eighth Amendment standards, of the determination that "death is the
appropriate punishment in a specific case." Id., at 305; see Roberts
(Harry) v. Louisiana, 431 U.S. 633, 637 (1977); Jurek
v. Texas, 428 U.S. 262, 271-272 (1976). In
the last decade, many of the States have been obliged to revise their
death penalty statutes in response to the various opinions supporting the
judgments in Furman and Gregg and its companion cases. The signals from
this Court have not, however, always been easy to decipher. The States now
deserve the clearest guidance that the Court can provide; we have an
obligation to reconcile previously differing views in order to provide
that guidance. |
| [55] | B |
| [56] | With that obligation in mind we turn to Lockett's attack
on the Ohio statute. Essentially she contends that the Eighth and
Fourteenth Amendments require that the sentencer be given a full
opportunity to consider mitigating circumstances in capital cases and that
the Ohio statute does not comply with that requirement. She relies, in
large part, on the plurality opinions in Woodson, supra, at 303-305, and
Roberts (Stanislaus) v. Louisiana, 428 U.S. 325,
333-334 (1976), and the joint opinion in Jurek, supra, at 271-272, but she
goes beyond them. |
| [57] | We begin by recognizing that the concept of individualized sentencing
in criminal cases generally, although not constitutionally required, has
long been accepted in this country. See Williams v. New York,
337 U.S., at 247-248; Pennsylvania ex rel. Sullivan
v. Ashe, 302 U.S., at 55. Consistent with that
concept, sentencing judges traditionally have taken a wide range of
factors into account. That States have authority to make aiders and
abettors equally responsible, as a matter of law, with principals, or to
enact felony-murder statutes is beyond constitutional challenge. But the
definition of crimes generally has not been thought automatically to
dictate what should be the proper penalty. See ibid.; Williams v. New
York, supra, at 247-248; Williams v. Oklahoma, 358 U.S., at 585. And where sentencing discretion is granted, it generally has
been agreed that the sentencing judge's "possession of the fullest
information possible concerning the defendant's life and characteristics"
is "[highly] relevant -- if not essential -- [to the] selection of an
appropriate sentence . . . ." Williams v. New York, supra, at 247
(emphasis added). |
| [58] | The opinions of this Court going back many years in dealing with
sentencing in capital cases have noted the strength of the basis for
individualized sentencing. For example, Mr. Justice Black, writing for the
Court in Williams v. New York, supra, at 247-248 -- a capital case --
observed that the |
| [59] | "whole country has traveled far from the period in which the death
sentence was an automatic and commonplace result of convictions -- even
for offenses today deemed trivial." |
| [60] | Ten years later, in Williams v. Oklahoma, supra, at 585, another
capital case, the Court echoed Mr. Justice Black, stating
that |
| [61] | "[in] discharging his duty of imposing a proper sentence, the
sentencing judge is authorized, if not required, to consider all of the
mitigating and aggravating circumstances involved in the crime." (Emphasis
added.) |
| [62] | See also Furman v. Georgia, 408 U.S., at 245-246
(Douglas, J., concurring); id., at 297-298 (BRENNAN, J., concurring); id.,
at 339 (MARSHALL, J., concurring); id., at 402-403 (BURGER, C. J.,
dissenting); id., at 413 (BLACKMUN, J., dissenting); McGautha v.
California, 402 U.S., at 197-203. Most would agree
that "the 19th century movement away from mandatory death sentences marked
an enlightened introduction of flexibility into the sentencing process."
Furman v. Georgia, supra, at 402 (BURGER, C. J.,
dissenting). |
| [63] | Although legislatures remain free to decide how much discretion in
sentencing should be resposed in the judge or jury in non-capital cases,
the plurality opinion in Woodson, after reviewing
the historical repudiation of mandatory sentencing in capital cases, 428 U.S., at 289-298, concluded that |
| [64] | "in capital cases the fundamental respect for humanity underlying the
Eighth Amendment . . . requires consideration of the character and record
of the individual offender and the circumstances of the particular offense
as a constitutionally indispensable part of the process of inflicting the
penalty of death." Id., at 304. |
| [65] | That declaration rested "on the predicate that the penalty of death is
qualitatively different" from any other sentence. Id., at 305. We are
satisfied that this qualitative difference between death and other
penalties calls for a greater degree of reliability when the death
sentence is imposed. The mandatory death penalty statute in Woodson was
held invalid because it permitted no consideration of "relevant facets of
the character and record of the individual offender or the circumstances
of the particular offense." Id., at 304. The plurality did not attempt to
indicate, however, which facets of an offender or his offense it deemed
"relevant" in capital sentencing or what degree of consideration of
"relevant facets" it would require. |
| [66] | We are now faced with those questions and we conclude that the Eighth
and Fourteenth Amendments require that the sentencer, in all but the
rarest kind of capital case,*fn11
not be precluded from considering, as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than
death.*fn12
We recognize that, in non-capital cases,
the established practice of individualized sentences rests not on
constitutional commands, but on public policy enacted into statutes. The
considerations that account for the wide acceptance of individualization
of sentences in non-capital cases surely cannot be thought less important
in capital cases. Given that the imposition of death by public authority
is so profoundly different from all other penalties, we cannot avoid the
conclusion that an individualized decision is essential in capital cases.
The need for treating each defendant in a capital case with that degree of
respect due the uniqueness of the individual is far more important than in
non-capital cases. A variety of flexible techniques -- probation, parole,
work furloughs, to name a few -- and various post-conviction remedies may
be available to modify an initial sentence of confinement in non-capital
cases. The non-availability of corrective or modifying mechanisms with
respect to an executed capital sentence underscores the need for
individualized consideration as a constitutional requirement in imposing
the death sentence.*fn13 |
| [67] | There is no perfect procedure for deciding in which cases governmental
authority should be used to impose death. But a statute that prevents the
sentencer in all capital cases from giving independent mitigating weight
to aspects of the defendant's character and record and to circumstances of
the offense proffered in mitigation creates the risk that the death
penalty will be imposed in spite of factors which may call for a less
severe penalty. When the choice is between life and death, that risk is
unacceptable and incompatible with the commands of the Eighth and
Fourteenth Amendments. C |
| [68] | The Ohio death penalty statute does not permit the type of
individualized consideration of mitigating factors we now hold to be
required by the Eighth and Fourteenth Amendments in capital cases. Its
constitutional infirmities can best be understood by comparing it with the
statutes upheld in Gregg, Proffitt, and Jurek. |
| [69] | In upholding the Georgia statute in Gregg, JUSTICES STEWART, POWELL,
and STEVENS noted that the statute permitted the jury "to consider any
aggravating or mitigating circumstances," see Gregg, 428 U.S.,
at 206, and that the Georgia Supreme Court had approved "open
and far-ranging argument" in presentence hearings, id., at 203.*fn14
Although the Florida statute approved in Proffitt contained a list of
mitigating factors, six Members of this Court assumed, in approving the
statute, that the range of mitigating factors listed in the statute was
not exclusive.*fn15
Jurek involved a Texas statute which made no explicit reference to
mitigating factors. 428 U.S., at 272. Rather, the
jury was required to answer three questions
in the sentencing process, the second of which was "whether there is a
probability that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society." Tex. Code Crim. Proc.,
Art. 37.071 (b) (Supp. 1975-1976); see 428 U.S., at 269. The statute survived the petitioner's Eighth and
Fourteenth Amendment attack because three Justices concluded that the
Texas Court of Criminal Appeals had broadly interpreted the second
question -- despite its facial narrowness -- so as to permit the sentencer
to consider "whatever mitigating circumstances" the defendant might be
able to show. Id., at 272-273 (opinion of STEWART, POWELL, and STEVENS,
JJ.), citing and quoting, Jurek v. State, 522 S. W. 2d 934, 939-940 (Tex.
Crim. App. 1975). None of the statutes we sustained in Gregg and the
companion cases clearly operated at that time to prevent the sentencer
from considering any aspect of the defendant's character and record or any
circumstances of his offense as an independently mitigating
factor. |
| [70] | In this regard the statute now before us is significantly different.
Once a defendant is found guilty of aggravated murder with at least one of
seven specified aggravating circumstances, the death penalty must be
imposed unless, considering "the nature and circumstances of the offense
and the history, character, and condition of the offender," the sentencing
judge determines that at least one of the following mitigating
circumstances is established by a preponderance of the
evidence: |
| [71] | "(1) The victim of the offense induced or facilitated
it. |
| [72] | "(2) It is unlikely that the offense would have been committed, but
for the fact that the offender was under duress, coercion, or strong
provocation. |
| [73] | "(3) The offense was primarily the product of the offender's psychosis
or mental deficiency, though such condition is insufficient to establish
the defense of insanity." Ohio Rev. Code Ann. § 2929.04 (B) (1975). The
Ohio Supreme Court has concluded that there is no constitutional
distinction between the statute approved in Proffitt and Ohio's statute,
see State v. Bayless, 48 Ohio St. 2d 73, 86-87, 357 N. E. 2d 1035,
1045-1046 (1976), because the mitigating circumstances in Ohio's statute
are "liberally construed in favor of the accused," State v. Bell, 48 Ohio
St. 2d 270, 281, 358 N. E. 2d 556, 564 (1976); see State v. Bayless,
supra, at 86, 357 N. E. 2d, at 1046, and because the sentencing judge or
judges may consider factors such as the age and criminal record of the
defendant in determining whether any of the mitigating circumstances is
established, State v. Bell, supra, at 281, 358 N. E. 2d, at 564. But even
under the Ohio court's construction of the statute, only the three factors
specified in the statute can be considered in mitigation of the
defendant's sentence. See, 48 Ohio St. 2d, at 281-282, 358 N. E. 2d, at
564-565; State v. Bayless, supra, at 87 n. 2, 357 N. E. 2d, at 1046 n. 2.
We see, therefore, that once it is determined that the victim did not
induce or facilitate the offense, that the defendant did not act under
duress or coercion, and that the offense was not primarily the product of
the defendant's mental deficiency, the Ohio statute mandates the sentence
of death. The absence of direct proof that the defendant intended to cause
the death of the victim is relevant for mitigating purposes only if it is
determined that it sheds some light on one of the three statutory
mitigating factors. Similarly, consideration of a defendant's
comparatively minor role in the offense, or age, would generally not be
permitted, as such, to affect the sentencing decision. |
| [74] | The limited range of mitigating circumstances which may be considered
by the sentencer under the Ohio statute is incompatible with the Eighth
and Fourteenth Amendments. To meet constitutional requirements, a death
penalty statute must not preclude consideration of relevant mitigating
factors. |
| [75] | Accordingly, the judgment under review is reversed to the extent
that it sustains the imposition of the death penalty, and the case is
remanded for further proceedings.*fn16 |
| [76] | So ordered. |
| [77] | MR. JUSTICE BRENNAN took no part in the consideration or decision of
this case. |
| [78] | APPENDIX TO OPINION OF THE COURT |
| [79] | The pertinent provisions of the Ohio death penalty statute, Ohio Rev.
Code Ann. (1975), are as follows: |
| [80] | § 2929.03 Imposing sentence for a capital offense. |
| [81] | (A) If the indictment or count in the indictment charging aggravated
murder contains no specification of an aggravating circumstance listed in
division (A) of section 2929.04 of the Revised Code, then, following a
verdict of guilty of the charge, the trial court shall impose sentence of
life imprisonment on the offender. |
| [82] | (B) If the indictment or count in the indictment charging aggravated
murder contains one or more specifications of aggravating circumstances
listed in division (A) of section 2929.04 of the Revised Code, the verdict
shall separately state whether the accused is found guilty or not guilty
of the principal charge and, if guilty of the principal charge, whether
the offender is guilty or not guilty
of each specification. The jury shall be instructed on its duties in this
regard, which shall include an instruction that a specification must be
proved beyond a reasonable doubt in order to support a guilty verdict on
such specification, but such instruction shall not mention the penalty
which may be the consequence of a guilty or not guilty verdict on any
charge or specification. |
| [83] | (C) If the indictment or count in the indictment charging aggravated
murder contains one or more specifications of aggravating circumstances
listed in division (A) of section 2929.04 of the Revised Code, then,
following a verdict of guilty of the charge but not guilty of each of the
specifications, the trial court shall impose sentence of life imprisonment
on the offender. If the indictment contains one or more specifications
listed in division (A) of such section, then, following a verdict of
guilty of both the charge and one or more of the specifications, the
penalty to be imposed on the offender shall be determined: |
| [84] | (1) By the panel of three judges which tried the offender upon his
waiver of the right to trial by jury; |
| [85] | (2) By the trial judge, if the offender was tried by
jury. |
| [86] | (D) When death may be imposed as a penalty for aggravated murder, the
court shall require a pre-sentence investigation and a psychiatric
examination to be made, and reports submitted to the court, pursuant to
section 2947.06 of the Revised Code. Copies of the reports shall be
furnished to the prosecutor and to the offender or his counsel. The court
shall hear testimony and other evidence, the statement, if any, of the
offender, and the arguments, if any, of counsel for the defense and
prosecution, relevant to the penalty which should be imposed on the
offender. If the offender chooses to make a statement, he
is subject to cross-examination only if he consents to make such statement
under oath or affirmation. |
| [87] | (E) Upon consideration of the reports, testimony, other evidence,
statement of the offender, and arguments of counsel submitted to the court
pursuant to division (D) of this section, if the court finds, or if the
panel of three judges unanimously finds that none of the mitigating
circumstances listed in division (B) of section 2929.04 of the Revised
Code is established by a preponderance of the evidence, it shall impose
sentence of death on the offender. Otherwise, it shall impose sentence of
life imprisonment on the offender. |
| [88] | § 2929.04 Criteria for imposing death or imprisonment for a capital
offense. |
| [89] | (A) Imposition of the death penalty for aggravated murder is
precluded, unless one or more of the following is specified in the
indictment or count in the indictment pursuant to section 2941.14 of the
Revised Code, and is proved beyond a reasonable doubt: |
| [90] | (1) The offense was the assassination of the president of the United
States or person in line of succession to the presidency, or of the
governor or lieutenant governor of this state, or of the president-elect
or vice president-elect of the United States, or of the governor-elect or
lieutenant governor-elect of this state, or of a candidate for any of the
foregoing offices. For purposes of this division, a person is a candidate
if he has been nominated for election according to law, or if he has filed
a petition or petitions according to law to have his name placed on the
ballot in a primary or general election, or if he campaigns as a write-in
candidate in a primary or general election. |
| [91] | (2) The offense was committed for hire. |
| [92] | (3) The offense was committed for the purpose of escaping detection,
apprehension, trial, or punishment for another offense committed by the
offender. (4)
The offense was committed while the offender was a prisoner in a detention
facility as defined in section 2921.01 of the Revised Code. |
| [93] | (5) The offender has previously been convicted of an offense of which
the gist was the purposeful killing of or attempt to kill another,
committed prior to the offense at bar, or the offense at bar was part of a
course of conduct involving the purposeful killing of or attempt to kill
two or more persons by the offender. |
| [94] | (6) The victim of the offense was a law enforcement officer whom the
offender knew to be such, and either the victim was engaged in his duties
at the time of the offense, or it was the offender's specific purpose to
kill a law enforcement officer. |
| [95] | (7) The offense was committed while the offender was committing,
attempting to commit, or fleeing immediately after committing or
attempting to commit kidnapping, rape, aggravated arson, aggravated
robbery, or aggravated burglary. |
| [96] | (B) Regardless of whether one or more of the aggravating circumstances
listed in division (A) of this section is specified in the indictment and
proved beyond a reasonable doubt, the death penalty for aggravated murder
is precluded when, considering the nature and circumstances of the offense
and the history, character, and condition of the offender, one or more of
the following is established by a prepondence [preponderance] of the
evidence: |
| [97] | (1) The victim of the offense induced or facilitated it. |
| [98] | (2) It is unlikely that the offense would have been committed, but for
the fact that the offender was under duress, coercion, or strong
provocation. |
| [99] | (3) The offense was primarily the product of the offender's psychosis
or mental deficiency, though such condition
is insufficient to establish the defense of insanity. |
| [100] | Disposition |
| [101] | 49 Ohio St. 2d 48, 358 N. E. 2d 1062, reversed in part and
remanded. |
| [102] | MR. JUSTICE BLACKMUN, concurring in part and concurring in the
judgment. |
| [103] | I join the Court's judgment, but only Parts I and II of its opinion.
I, too, would reverse the judgment of the Supreme Court of Ohio insofar as
it upheld the imposition of the death penalty on petitioner Sandra
Lockett, but I would do so for a reason more limited than
that which the plurality espouses, and for an additional reason not relied
upon by the plurality. |
| [104] | I |
| [105] | The first reason is that, in my view, the Ohio judgment in this case
improperly provided the death sentence for a defendant who only aided and
abetted a murder, without permitting any consideration by the sentencing
authority of the extent of her involvement, or the degree of her means
rea, in the commission of the homicide. The Ohio capital penalty statute,
together with that State's aiding-and-abetting statute, and its statutory
definition of "purposefulness" as including reckless endangerment, allows
for a particularly harsh application of the death penalty to any defendant
who has aided or abetted the commission of an armed robbery in the course
of which a person is killed, even though accidentally.*fn1
It might be that to
inflict the death penalty in some such situations would skirt the limits
of the Eighth Amendment proscription, incorporated in the Fourteenth
Amendment, against gross disproportionality, but I doubt that the Court,
in regard to murder, could easily define a convincing bright-line rule
such as was used in regard to rape, Coker v. Georgia, 433 U.S.
584 (1977), to make workable a disproportionality approach.*fn2
The
more manageable alternative, in my view, is to follow a proceduralist
tack, and require, as Ohio does not, in the case of a nontriggerman such
as Lockett, that the sentencing authority have
discretion to consider the degree of the defendant's participation in the
acts leading to the homicide and the character of the defendant's mens
rea. That approach does not interfere with the States' individual
statutory categories for assessing legal guilt, but merely requires that
the sentencing authority be permitted to weigh any available evidence,
adduced at trial or at the sentencing hearing, concerning the defendant's
degree of participation in the homicide and the nature of his mens rea in
regard to the commission of the homicidal act. A defendant would be
permitted to adduce evidence, if any be available, that he had little or
no reason to anticipate that a gun would be fired, or that he played only
a minor part in the course of events leading to the use of fatal force.
Though heretofore I have been unwilling to interfere with the legislative
judgment of the States in regard to capital-sentencing procedures, see
Furman v. Georgia, 408 U.S. 238, 405 (1972)
(dissenting opinion), adhered to in the 1976 cases, see my opinions in
Gregg v. Georgia, 428 U.S. 153, 227; Proffitt v.
Florida, 428 U.S. 242, 261; Jurek v. Texas, 428 U.S. 262, 279; Woodson v. North Carolina, 428 U.S. 280, 307; Roberts v. Louisiana,
428 U.S. 325, 363, this Court's judgment as to
disproportionality in Coker, supra, in which I joined, and the unusual
degree to which Ohio requires capital punishment of a mere aider and
abettor in an armed felony resulting in a fatality even where no
participant specifically intended the fatal use of a weapon, see n. 1,
supra, provides a significant occasion for setting some limit to the
method by which the States assess punishment for actions less immediately
connected to the deliberate taking of human life. |
| [106] | This approach is not too far off the mark already used by many States
in assessing the death penalty. Of 34 States that now have capital
statutes, 18 specify that a minor degree of participation in a homicide
may be considered by the sentencing authority,
and, of the remaining 16 States, 9 allow consideration of any mitigating
factor.*fn3 |
| [107] | II |
| [108] | The second ground on which reversal is required, in my view, is a
Jackson issue. Although the plurality does not reach this issue, it is
raised by petitioner, and I mention it against the possibility that any
further revision of the Ohio death penalty statutes, prompted by the
Court's decision today, contemplate as well, and cure, the Jackson
deficiency. |
| [109] | In United States v. Jackson, 390 U.S. 570 (1968),
the Court held that the capital-sentencing provision of the Federal
Kidnaping Act was unconstitutional in that it needlessly burdened the
defendant's exercise of the Sixth Amendment right
to trial by jury and the Fifth Amendment right to plead not guilty. The
Act, 18 U. S. C. § 1201 (a) (1964 ed.), had provided that the death
penalty could be imposed only "if the verdict of the jury shall so
recommend," thus peculiarly insuring that any defendant who pleaded
guilty, or who waived a jury trial in favor of a bench trial, could not be
sentenced to death, and imposing the risk of death only on those who
insisted on trial by jury. |
| [110] | The holding of Jackson, prohibiting imposition of the death penalty on
a defendant who insists upon a jury trial, was thereafter limited to an
extent by Brady v. United States, 397 U.S. 742
(1970), where the Court held that a pre- Jackson defendant who had pleaded
guilty rather than go to trial was not entitled to withdraw his plea on
grounds of involuntariness or coercion even if the plea had been
encouraged by fear of the death penalty in a jury trial. Here, of course,
petitioner insisted on her right to a jury trial, and thus falls on the
Jackson side of any Jackson-Brady dichotomy. |
| [111] | Under Ohio Rule Crim. Proc. 11 (C)(3), the sentencing court has full
discretion to prevent imposition of a capital sentence "in the interests
of justice" if a defendant pleads guilty or no contest, but wholly lacks
such discretion if the defendant goes to trial. The Rule states that if
"the indictment contains one or more specifications [of aggravating
circumstances], and a plea of guilty or no contest to the charge [of
aggravated murder with specifications] is accepted, the court may dismiss
the specifications and impose sentence [of life imprisonment] accordingly,
in the interests of justice." Such a dismissal of aggravating
specifications absolutely precludes imposition of the death penalty. There
is no provision similar to Rule 11 (C)(4) permitting the trial court to
dismiss aggravating specifications "in the interests of justice" where the
defendant insists on his right to trial. Instead, as the Ohio Supreme
Court noted in State v. Weind, 50 Ohio St. 2d 224, 227, 364 N. E. 2d 224,
228 (1977), vacated in part and remanded, post, p. 911, a defendant who
pleads not guilty "must
rely on the court finding the presence of one of the [statutory]
mitigating circumstances . . . to avoid the death sentence." |
| [112] | While it is true, as the Ohio Court noted in Weind, 50 Ohio St. 2d, at
229, 364 N. E. 2d, at 229, that there is always a possibility of a death
sentence whether or not one pleads guilty, this does not change the fact
that a defendant can plead not guilty only by enduring a semimandatory,
rather than a purely discretionary, capital-sentencing provision. This
disparity between a defendant's prospects under the two sentencing
alternative is, in my view, too great to survive under Jackson, and
petitioner's death sentence thus should be vacated on that ground as
well. |
| [113] | MR. JUSTICE MARSHALL, concurring in the judgment. |
| [114] | I continue to adhere to my view that the death penalty is, under all
circumstances, a cruel and unusual punishment prohibited by the Eighth
Amendment. See Furman v. Georgia, 408 U.S. 238,
314-374 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428
U.S. 153, 231-241 (1976) (MARSHALL, J., dissenting). The cases
that have come to this Court since its 1976 decisions permitting
imposition of the death penalty have only persuaded me further of that
conclusion. See, e. g., Gardner v. Florida, 430 U.S. 349, 365 (1977) (MARSHALL, J., dissenting); Coker v. Georgia, 433 U.S. 584, 600-601 (1977) (MARSHALL, J.,
concurring in judgment); Alford v. Florida, 436 U.S. 935 (1978) (MARSHALL, J., dissenting from denial of
certiorari). This case, as well, serves to reinforce my
view. |
| [115] | When a death sentence is imposed under the circumstances presented
here, I fail to understand how any of my Brethren -- even those who
believe that the death penalty is not wholly inconsistent with the
Constitution -- can disagree that it must be vacated. Under the Ohio death
penalty statute, this 21-year-old Negro woman was sentenced to death for a
killing that she did not actually commit or intend to commit. She was
convicted under a theory of vicarious liability. The imposition of
the death penalty for this crime totally violates the principle of
proportionality embodied in the Eighth Amendment's prohibition, Weems v.
United States, 217 U.S. 349 (1910); it makes no
distinction between a willful and malicious murderer and an accomplice to
an armed robbery in which a killing unintentionally occurs. See 49 Ohio
St. 2d 48, 67, 358 N. E. 2d 1062, 1075 (1976) (dissenting
opinion). |
| [116] | Permitting imposition of the death penalty solely on proof of felony
murder, moreover, necessarily leads to the kind of "lightning bolt,"
"freakish," and "wanton" executions that persuaded other Members of the
Court to join MR. JUSTICE BRENNAN and myself in Furman v. Georgia, supra,
in holding Georgia's death penalty statute unconstitutional. Whether a
death results in the course of a felony (thus giving rise to felony-murder
liability) turns on fortuitous events that do not distinguish the
intention or moral culpability of the defendants. That the State of Ohio
chose to permit imposition of the death penalty under a purely vicarious
theory of liability seems to belie the notion that the Court can discern
the "evolving standards of decency," Trop v. Dulles, 356 U.S.
86, 101 (1958) (plurality opinion), embodied in the Eighth
Amendment, by reference to state "legislative judgment," see Gregg v.
Georgia, supra, at 175 (opinion of STEWART, POWELL, and STEVENS,
JJ.). |
| [117] | As the plurality points out, petitioner was sentenced to death under a
statutory scheme that precluded any effective consideration of her degree
of involvement in the crime, her age, or her prospects for rehabilitation.
Achieving the proper balance between clear guidelines that assure relative
equality of treatment, and discretion to consider individual factors whose
weight cannot always be preassigned, is no easy task in any sentencing
system. Where life itself is what hangs in the balance, a fine precision
in the process must be insisted upon. The Ohio statute, with its
blunderbuss, virtually mandatory approach to imposition of the death
penalty for certain crimes, wholly
fails to recognize the unique individuality of every criminal defendant
who comes before its courts. See Roberts (Harry) v. Louisiana,
431 U.S. 633, 637 (1977) (per curiam); Woodson v.
North Carolina, 428 U.S. 280, 304
(1976). |
| [118] | The opinions announcing the judgment of the Court in Gregg v. Georgia,
428 U.S., at 188-198 (opinion of STEWART, POWELL, and
STEVENS, JJ.), Jurek v. Texas, 428 U.S. 262, 271-276
(1976) (opinion of STEWART, POWELL, and STEVENS, JJ.), and Proffitt v.
Florida, 428 U.S. 242, 259-260 (1976) (opinion of
STEWART, POWELL, and STEVENS, JJ.), upheld the constitutionality of the
death penalty, in the belief that a system providing sufficient guidance
for the sentencing decisionmaker and adequate appellate review would
assure "rationality," "consistency," and "proportionality" in the
imposition of the death sentence. Gregg v. Georgia, supra, at 203;
Proffitt v. Florida, supra, at 259; Jurek v. Texas, supra, at 276. That an
Ohio trial court could impose the death penalty on petitioner under these
facts, and that the Ohio Supreme Court on review could sustain it, cast
strong doubt on the plurality's premise that appellate review in state
systems is sufficient to avoid the wrongful and unfair imposition of this
irrevocable penalty. |
| [119] | Accordingly, I join in the Court's judgment insofar as it affirms
petitioner's conviction and vacates her death sentence. I do not, however,
join in the Court's assumption that the death penalty may ever be imposed
without violating the command of the Eighth Amendment that no "cruel and
unusual punishments" be imposed. |
| [120] | MR. JUSTICE WHITE, concurring in part, dissenting in part, and
concurring in the judgments of the Court.*fn* |
| [121] | I concur in Parts I and II of the Court's opinion in
Lockett v. Ohio, and Part I of the Court's opinion in Bell
v. Ohio, post, p. 637 and in the judgments. I cannot, however, agree with Part
III of the plurality opinion in Lockett and Part II of the
plurality opinion in Bell and to that extent respectfully
dissent. |
| [122] | I |
| [123] | The Court has now completed its about-face since Furman v. Georgia, 408 U.S. 238 (1972). Furman held that as a result of
permitting the sentencer to exercise unfettered discretion to impose or
not to impose the death penalty for murder, the penalty was then being
imposed discriminatorily,*fn1
wantonly and freakishly,*fn2
and so infrequently*fn3
that any given death sentence was cruel and unusual. The Court began its
retreat in Woodson v. North Carolina, 428 U.S. 280
(1976), and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976), where a plurality held that statutes which imposed
mandatory death sentences even for first-degree murders were
constitutionally invalid because the Eighth Amendment required that
consideration be given by the sentencer to aspects of character of the
individual offender and the circumstances of the particular offense in
deciding whether to impose the punishment of death.*fn4
Today it is held, again through a plurality, that the sentencer may
constitutionally impose the death penalty only as an exercise of his
unguided discretion after being presented with all circumstances which the
defendant might believe to be conceivably relevant to the appropriateness
of the penalty for the individual offender.*fn5
With
all due respect, I dissent. I continue to be of the view, for the reasons
set forth in my dissenting opinion in Roberts, supra, at 337, that it does
not violate the Eighth Amendment for a State to impose the death penalty
on a mandatory basis when the defendant has been found guilty beyond a
reasonable doubt of committing a deliberate, unjustified killing.
Moreover, I greatly fear that the effect of the Court's decision today
will be to compel constitutionally a restoration of the state of affairs
at the time Furman was decided, where the death penalty is imposed so
erratically and the threat of execution is so attenuated for even the most
atrocious murders that "its imposition would then be the pointless and
needless extinction of life with only marginal contributions to any
discernible social or public purposes." Furman v. Georgia, supra, at 312
(WHITE, J., concurring). By requiring as a matter of constitutional law
that sentencing authorities be permitted to consider and in their
discretion to act upon any and all mitigating circumstances, the Court
permits them to refuse to impose the death penalty no matter what the
circumstances of the crime. This invites a return to the pre- Furman days
when the death penalty was generally reserved for those very few for whom
society has least consideration. I decline to extend Woodson and Roberts
in this respect. |
| [124] | It also seems to me that the plurality strains very hard and
unsuccessfully to avoid eviscerating the handiwork in Proffitt v. Florida,
428 U.S. 242 (1976), and Jurek v. Texas,
428 U.S. 262 (1976); and surely it calls into
question any other death penalty statute that permits only a limited number
of mitigating circumstances to be placed before the sentencing authority
or to be used in its deliberations. |
| [125] | II |
| [126] | I nevertheless concur in the judgments of the Court reversing the
imposition of the death sentences because I agree with the contention of
the petitioners, ignored by the plurality, that it violates the Eighth
Amendment to impose the penalty of death without a finding that the
defendant possessed a purpose to cause the death of the
victim. |
| [127] | It is now established that a penalty constitutes cruel and unusual
punishment if it is excessive in relation to the crime for which it is
imposed. A punishment is disproportionate "if it (1) makes no measurable
contribution to acceptable goals of punishment and hence is nothing more
than the purposeless and needless imposition of pain and suffering; or (2)
is grossly out of proportion to the severity of the crime. A punishment
might fail the test on either ground." Coker v. Georgia, 433
U.S. 584, 592 (1977) (opinion of WHITE, J.). Because it has
been extremely rare that the death penalty has been imposed upon those who
were not found to have intended the death of the victim, the punishment of
death violates both tests under the circumstances present
here. |
| [128] | According to the factual submissions before this Court, out of 363
reported executions for homicide since 1954 for which facts are available
only eight clearly involved individuals who did not personally commit the
murder.*fn6
Moreover, at least some of these eight executions involved individuals who
intended to
cause the death of the victim.*fn7
Furthermore, the last such execution occurred in 1955. In contrast, there
have been 72 executions for rape in the United States since 1954.*fn8 |
| [129] | I recognize that approximately half of the States have not
legislatively foreclosed the possibility of imposing the death penalty
upon those who do not intend to cause death. The ultimate judgment of the
American people concerning the imposition of the death penalty upon such
defendants, however, is revealed not only by the content of statutes and
by the imposition of capital sentences but also by the frequency with
which society is prepared actually to inflict the punishment of death. See
Furman v. Georgia, 408 U.S. 238 (1972). It is clear
from recent history that the infliction of death under circumstances where
there is no purpose to take life has been widely rejected as grossly out
of proportion to the seriousness of the crime. |
| [130] | The value of capital punishment as a deterrent to those lacking a
purpose to kill is extremely attenuated. Whatever questions may be raised
concerning the efficacy of the death penalty as a deterrent to intentional
murders -- and that debate rages on -- its function in deterring
individuals from becoming involved in ventures in which death may
unintentionally result is even more doubtful. Moreover, whatever
legitimate purposes the imposition of death upon those who do not intend
to cause death might serve if inflicted with any regularity is surely
dissipated by society's apparent unwillingness to impose it upon other
than an occasional and erratic basis. See id., at 310 (WHITE, J.,
concurring). Under
those circumstances the conclusion is unavoidable that the infliction of
death upon those who had no intent to bring about the death of the victim
is not only grossly out of proportion to the severity of the crime but
also fails to contribute significantly to acceptable or, indeed, any
perceptible goals of punishment. |
| [131] | This is not to question, of course, that those who engage in serious
criminal conduct which poses a substantial risk of violence, as did the
present petitioners, deserve serious punishment regardless of whether or
not they possess a purpose to take life. And the fact that death results,
even unintentionally, from a criminal venture need not and frequently is
not regarded by society as irrelevant to the appropriate degree of
punishment. But society has made a judgment, which has deep roots in the
history of the criminal law, see United States v. United States Gypsum
Co., ante, p. 422, distinguishing at least for purpose of the imposition
of the death penalty between the culpability of those who acted with and
those who acted without a purpose to destroy human life. |
| [132] | Both of these petitioners were sentenced to death without a finding at
any stage of the proceeding that they intended the death of those who were
killed as a result of their criminal conduct. In Lockett v.
Ohio, the trial judge instructed the jury as follows: |
| [133] | "A person engaged in a common design with others to rob by force and
violence an individual or individuals of their property is presumed to
acquiesce in whatever may reasonably be necessary to accomplish the object
of their enterprise. . . . |
| [134] | "If the conspired robbery and the manner of its accomplishment would
be reasonably likely to produce death, each plotter is equally guilty with
the principal offender as an aider and abettor in the homicide . . . . An
intent to kill by an aider and abettor may be found
to exist beyond a reasonable doubt under such
circumstances." |
| [135] | On appeal, the Ohio Supreme Court held that where "it might be
reasonably expected by all the participants that the victim's life would
be endangered by the manner and means of performing the act conspired . .
. participants [are] bound by all the consequences naturally and probably
arising from the furtherance of the conspiracy to commit the robbery." 49
Ohio St. 2d 48, 62, 358 N. E. 2d 1062, 1072 (1976). It is thus clear that
under Ohio law a defendant may be convicted of aggravated murder with
aggravating specifications and sentenced to death without a finding that
he intended death to result but only that he engaged in criminal conduct
which posed a substantial risk of death to others. Moreover, it appears
that nowhere during either the trial or sentencing process was any finding
made that Lockett intended that death be inflicted in
connection with the robbery. The petitioner in Bell v. Ohio, post, p. 637,
was tried before a three-judge panel. Again, however, no findings were
made either during the trial or sentencing stage of the process that Bell
intended the death of the victim which resulted from the criminal conduct
in which he was engaged. |
| [136] | Of course, the facts of both of these cases might well permit the
inference that the petitioners did in fact intend the death of the
victims. But there is a vast difference between permitting a factfinder to
consider a defendant's willingness to engage in criminal conduct which
poses a substantial risk of death in deciding whether to infer that he
acted with a purpose to take life, and defining such conduct as an
ultimate fact equivalent to possessing a purpose to kill as Ohio has done.
See United States v. United States Gypsum Co., ante, p. 422. Indeed, the
type of conduct which Ohio would punish by death requires at most the
degree of means rea defined by the ALI Model Penal Code (1962) as
recklessness: conduct undertaken with knowledge that death is likely to follow.*fn9
Since I would hold that death may not be inflicted for killings consistent
with the Eighth Amendment without a finding that the defendant engaged in
conduct with the conscious purpose of producing death, these sentences
must be set aside.*fn10 |
| [137] | MR. JUSTICE REHNQUIST, concurring in part and dissenting in
part. |
| [138] | I join Parts I and II of THE CHIEF JUSTICE's opinion for the Court,
but am unable to join Part III of his opinion or in the judgment of
reversal. |
| [139] | I |
| [140] | Whether out of a sense of judicial responsibility or a less altruistic
sense of futility, there are undoubtedly circumstances which require a
Member of this Court "to bow to the authority" of an earlier case despite
his "original and continuing belief that the decision was constitutionally
wrong." Burns v. Richardson, 384 U.S. 73, 98 (1966)
(Harlan, J., concurring in result). See also id., at 99 (STEWART, J.,
concurring in judgment). The Court has most assuredly not adopted the
dissenting views which I expressed in the previous capital punishment
cases, see Woodson v. North Carolina, 428 U.S. 280,
308 (1976), and Furman v. Georgia, 408 U.S. 238, 465
(1972). It has just as surely not cloven to a principled doctrine either
holding the infliction of the death penalty to be unconstitutional per se
or clearly and understandably stating the terms under which the Eighth and
Fourteenth Amendments permit the death penalty to be imposed. Instead, as
I believe both the opinion of THE CHIEF JUSTICE and the opinion of my
Brother WHITE seem to concede, the Court has gone from pillar to post,
with the result that the sort of reasonable predictability upon which
legislatures, trial courts, and appellate courts must of necessity rely
has been all but completely sacrificed. |
| [141] | THE CHIEF JUSTICE states: "We do not write on a 'clean slate,'" ante,
at 597. But it can scarcely be maintained that today's decision is the
logical application of a coherent doctrine first espoused by the opinions
leading to the Court's judgment in Furman, and later elaborated in the
Woodson series of cases decided two Terms ago. Indeed, it cannot even be
responsibly maintained that it is a principled application of the
plurality and lead opinions in the Woodson series of cases, without regard
to Furman. The opinion strives manfully to appear as a logical exegesis of
those opinions, but I believe that it fails in the effort. We are now
told, in effect, that in order to impose a death sentence the judge or
jury must receive in evidence whatever the defense attorney wishes them to
hear. I do not think THE CHIEF JUSTICE's effort to trace this quite novel
constitutional principle back to the plurality and lead opinions in the
Woodson cases succeeds. |
| [142] | As the opinion admits, ante, at 606 n. 14, the statute upheld in Gregg
v. Georgia, 428 U.S. 153 (1976), permitted the
sentencing authority to consider only those mitigating circumstances
"'authorized by law.'" Id., at 164 (opinion of STEWART, POWELL, and
STEVENS, JJ.) (citation omitted). Today's opinion goes on to say:
"Although the Florida statute approved
in Proffitt [v. Florida, 428 U.S. 242 (1976)]
contained a list of mitigating factors, six Members of this Court assumed
. . . that the range of mitigating factors listed in the statute was not
exclusive." Ante, at 606, and n. 15, citing Proffitt, supra, at 250 n. 8,
260. The footnote referred to discussed whether the Florida court would
uphold a death sentence that rested entirely on non-statutory aggravating
circumstances. The reference to the absence of limiting language with
respect to the list of statutory mitigating factors was employed to
emphasize the different statutory treatment of aggravating circumstances.
Indeed, only one page later the joint opinion stated: "The sentencing
authority in Florida, the trial judge, is directed to weigh eight
aggravating factors against seven mitigating factors to determine whether
the death penalty shall be imposed." 428 U.S., at 251. The other Proffitt opinion referred to in today's opinion,
the dissenting opinion of MR. JUSTICE WHITE, id., at 260, said of
mitigating circumstances: "[Although] the statutory aggravating and
mitigating circumstances are not susceptible of mechanical application,
they are by no means so vague and overbroad as to leave the discretion of
the sentencing authority unfettered." |
| [143] | The opinion's effort to find support for today's rule in our opinions
in Jurek v. Texas, 428 U.S. 262 (1976), is equally
strained. The lead opinion there read the opinion of the Texas Court of
Criminal Appeals to interpret the statute "so as to allow a defendant to
bring to the jury's attention whatever mitigating circumstances he may be
able to show," id., at 272, and went on to quote several specified types
of mitigating circumstances which were mentioned in the Texas court's
opinion. I think it clear from this context that the term "mitigating
circumstances" was not so broad as to encompass any evidence which the
defense attorney saw fit to present to a judge or jury. |
| [144] | It seems to me indisputably clear from today's opinion that, while
we may not be writing on a clean slate, the Court is scarcely faithful to
what has been written before. Rather, it makes a third distinct effort to
address the same question, an effort which derives little support from any
of the various opinions in Furman or from the prevailing opinions in the
Woodson cases. As a practical matter, I doubt that today's opinion will
make a great deal of difference in the manner in which trials in capital
cases are conducted, since I would suspect that it has been the practice
of most trial judges to permit a defendant to offer virtually any sort of
evidence in his own defense as he wished. But as my Brother WHITE points
out in his dissent, the theme of today's opinion, far from supporting
those views expressed in Furman which did appear to be carried over to the
Woodson cases, tends to undercut those views. If a defendant as a matter
of constitutional law is to be permitted to offer as evidence in the
sentencing hearing any fact, however bizarre, which he wishes, even though
the most sympathetically disposed trial judge could conceive of no basis
upon which the jury might take it into account in imposing a sentence, the
new constitutional doctrine will not eliminate arbitrariness or
freakishness in the imposition of sentences, but will codify and
institutionalize it. By encouraging defendants in capital cases, and
presumably sentencing judges and juries, to take into consideration
anything under the sun as a "mitigating circumstance," it will not guide
sentencing discretion but will totally unleash it. It thus appears that
the evil described by the Woodson plurality -- that mandatory capital
sentencing "papered over the problem of unguided and unchecked jury
discretion," 428 U.S., at 302 -- was in truth not the
unchecked discretion, but a system which "papered over" its exercise
rather than spreading it on the record. |
| [145] | I did not, either at the time of the Furman decision or the decision
in the Woodson cases, agree with the views expressed in Furman which I
thought the lead opinions in the Woodson cases
sought to carry over into those opinions. I do, however, agree with the
statements as to institutional responsibility contained in the separate
opinions in Burns v. Richardson, 384 U.S. 73 (1966),
and I trust that I am not insensitive to THE CHIEF JUSTICE's expressed
concern in his opinion that "[the] States now deserve the clearest
guidance that the Court can provide" on capital punishment. Ante, at 602.
Given the posture of my colleagues in this case, however, there does not
seem to me to be any way in which I can assist in the discharge of that
obligation. I am frank to say that I am uncertain whether today's opinion
represents the seminal case in the exposition by this Court of the Eighth
and Fourteenth Amendments as they apply to capital punishment, or whether
instead it represents the third false start in this direction within the
past six years. |
| [146] | A majority of the Court has yet to endorse the course taken by today's
plurality in using the Eighth Amendment as a device for importing into the
trial of capital cases extremely stringent procedural restraints. The last
opinion on that subject to command a majority of this Court was that of
Mr. Justice Harlan in McGautha v. California, 402 U.S. 183 (1971), in which he spoke for the Court in these
words: |
| [147] | "It may well be, as the American Law Institute and the National
Commission on Reform of Federal Criminal Laws have concluded, that
bifurcated trials and criteria for jury sentencing discretion are superior
means of dealing with capital cases if the death penalty is to be retained
at all. But the Federal Constitution, which marks the limits of our
authority in these cases, does not guarantee trial procedures that are the
best of all worlds, or that accord with the most enlightened ideas of
students of the infant science of criminology, or even those that measure
up to the individual predilections of members of this Court. See Spencer
v. Texas, 385 U.S. 554 (1967). The Constitution
requires no more than that trials be fairly
conducted and that guaranteed rights of defendants be scrupulously
respected." Id., at 221. |
| [148] | I continue to view McGautha as a correct exposition of the limits of
our authority to revise state criminal procedures in capital cases under
the Eighth and Fourteenth Amendments. Sandra Lockett was
fairly tried, and was found guilty of aggravated murder. I do not think
Ohio was required to receive any sort of mitigating evidence which an
accused or his lawyer wishes to offer, and therefore I disagree with Part
III of the plurality's opinion. |
| [149] | II |
| [150] | Because I reject the primary contentions offered by petitioner, I must
also address her other arguments, with which the Court does not wish to
deal, in order to conclude that the State may impose the death penalty.
Two of petitioner's objections can be dismissed with little comment.
First, she complains that the Ohio procedure does not permit jury
participation in the sentencing process. As the lead opinion pointed out
in Proffitt, 428 U.S., at 252, this Court "has never
suggested that jury sentencing is constitutionally required." No majority
of this Court has ever reached a contrary conclusion, and I would not do
so today. Second, she contends that the State should be required to prove
the absence of mitigating factors beyond a reasonable doubt. Because I
continue to believe that the Constitution is not offended by the State's
refusal to consider mitigating factors at all, there can be no infirmity
in shifting the burden of persuasion to the defendant when it chooses to
consider them. |
| [151] | Petitioner also presents two arguments based on United States v.
Jackson, 390 U.S. 570 (1968), in which the Court held
that the imposition of the death penalty under the Federal Kidnaping Act,
18 U. S. C. § 1201 (a) (1964 ed.), was unconstitutional because it could
only be imposed where the defendant exercised his right to trial by jury.
First, petitioner attacks
the provision of the statute requiring three judges, rather than one, to
hear the case when a defendant chooses to be tried by the court rather
than the jury. She contends that the three judges are less likely to
impose the death penalty than would be the single judge who determines
sentence in the case of a jury trial. To that extent, she argues, the
exercise of the right to a jury trial is discouraged because of a fear of
a higher probability of the imposition of the death penalty. This argument
cannot be supported. There is simply no reason to conclude that three
judges are less likely than one to impose the death sentence on a
convicted murderer. At the same time, it is at least equally plausible
that the three judges would be less likely than a jury to convict in the
first instance. Thus, at the time when an accused defendant must choose
between a trial before the jury and a trial to the court, it simply cannot
be said which is more likely to result in the imposition of death. Since
both procedures are sufficiently fair to satisfy the Constitution, I see
no infirmity in requiring petitioner to choose which she
prefers. |
| [152] | Second, petitioner complains that the trial court has the authority to
dismiss the specifications of aggravating circumstances, thus precluding
the imposition of the death penalty, only when a defendant pleads guilty
or no contest. She contends that this limitation upon the availability of
judicial mercy unfairly penalizes her right to plead not guilty. While
Jackson may offer some support for this contention, it certainly does not
compel its acceptance. In Jackson, the defendant could have been executed
if he exercised his right to a jury trial, but could not have been
executed if he waived it. In Ohio, a defendant is subject to possible
execution whether or not he pleads guilty. Furthermore, if he chooses to
plead guilty, he is not subject to possible acquittal. Under such
circumstances, it is difficult to imagine that any defendant will be
deterred from exercising his right to go to trial. Indeed, petitioner was
not so deterred, and respondent reports that no
one in petitioner's county has ever pleaded guilty to capital murder.
Brief for Respondent 36. The mere fact that petitioner was required to
choose hardly amounts to a constitutional violation. In McGautha, supra,
at 212-213, the Court explained an earlier decision, Simmons v. United
States, 390 U.S. 377 (1968), in which it had
invalidated a conviction because the defendant had been required to forgo
his Fifth Amendment privilege against self-incrimination to protect a
Fourth Amendment claim. Here, petitioner's assertion of her right to go to
trial would have deprived her only of a statutory possibility of mercy,
not of constitutional dimensions, enjoyed by other defendants in Ohio.
Nothing in Jackson suggests that such a choice is forbidden by the
Fourteenth Amendment. |
| [153] | I finally reject the proposition urged by my Brother WHITE in his
separate opinion, which the plurality finds it unnecessary to reach. That
claim is that the death penalty, as applied to one who participated in
this murder as Lockett did, is "disproportionate" and
therefore violative of the Eighth and Fourteenth Amendments. I know of no
principle embodied in those Amendments, other than perhaps one's personal
notion of what is a fitting punishment for a crime, which would allow this
Court to hold the death penalty imposed upon her unconstitutional because
under the judge's charge to the jury the latter were not required to find
that she intended to cause the death of her victim. As my Brother WHITE
concedes, approximately half of the States "have not legislatively
foreclosed the possibility of imposing the death penalty upon those who do
not intend to cause death." Ante, at 625. Centuries of common-law doctrine
establishing the felony-murder doctrine, dealing with the relationship
between aiders and abettors and principals, would have to be rejected to
adopt this view. Just as surely as many thoughtful moralists and
penologists would reject the Biblical notion of "an eye for an eye, a
tooth for a tooth," as a guide for minimum sentencing, there is nothing in
the prohibition against cruel
and unusual punishments contained in the Eighth Amendment which sets that
injunction as a limitation on the maximum sentence which society may
impose. |
| [154] | Since all of petitioner's claims appear to me to be without merit, I
would affirm the judgment of the Supreme Court of Ohio. |
|
| |
| Opinion Footnotes | |
|
| |
| [155] | *fn1
The pertinent provisions of the Ohio death penalty statute appear as an
appendix to this opinion. |
| [156] | *fn2
The presentence report also contained information about the robbery. It
indicated that Dew had told the police that he, Parker, and
Lockett's brother had planned the holdup. It also indicated
that Parker had told the police that Lockett had not
followed his order to keep the car running during the robbery and instead
had gone to get something to eat. |
| [157] | *fn3
See 49 Ohio St. 2d 48, 58-62, 358 N. E. 2d 1062, 1070-1072 (1976); id., at
69-70, 358 N. E. 2d, at 1076 (Stern, J., dissenting). |
| [158] | *fn4
See Woodson v. North Carolina, 428 U.S. 280, 291-292,
and n. 25 (1976) (opinion of STEWART, POWELL, and STEVENS,
JJ.). |
| [159] | *fn5
See id., at 291-292; McGautha v. California, 402 U.S. 183, 200 n. 11 (1971). |
| [160] | *fn6
See Furman v. Georgia, 408 U.S. 238, 403 (1972)
(BURGER, C. J., dissenting). |
| [161] | *fn7
The limits on the consideration of mitigating factors in Ohio's death
penalty statute which Lockett now attacks appear to have
been a direct response to Furman. Prior to Furman, Ohio had begun to
revise its system of capital sentencing. The Ohio House of Representatives
had passed a bill abandoning the practice of unbridled sentencing
discretion and instructing the sentencer to consider a list of aggravating
and mitigating circumstances in determining whether to impose the death
penalty. The list of mitigating circumstances permitted consideration of
any circumstance "tending to mitigate the offense, though failing to
establish a defense." See Sub. House Bill 511, 109th Ohio General Assembly
§ 2929.03 (C)(3), passed by the Ohio House on March 22, 1972; Lehman &
Norris, Some Legislative History and Comments on Ohio's New Criminal Code,
23 Cleve. St. L. Rev. 8, 10, 16 (1974).
Furman was announced during the Ohio Senate Judiciary Committee's
consideration of the Ohio House bill. After Furman, the Committee decided
to retain the death penalty but to eliminate much of the sentencing
discretion permitted by the House bill. As a result, the Ohio Senate
developed the current sentencing procedure which requires the imposition
of the death penalty if one of seven specific aggravating circumstances
and none of three specific mitigating circumstances is found to exist.
Confronted with what reasonably would have appeared to be the questionable
constitutionality of permitting discretionary weighing of mitigating
factors after Furman, the sponsors of the Ohio House bill were not in a
position to mount a strong opposition to the Senate's amendments, see
Lehman & Norris, supra, at 18-22, and the statute under which
Lockett was sentenced was enacted. |
| [162] | *fn8
See, e. g., Woodson, supra, at 300 (opinion of STEWART, POWELL, and
STEVENS, JJ.); Rockwell v. Superior Court, 18 Cal. 3d 420, 446-448, 556 P.
2d 1101, 1116-1118 (1976) (Clark, J., concurring) (account of how
California and other States enacted unconstitutional mandatory death
penalties in response to Furman); State v. Spence, 367 A. 2d 983, 985-986
(Del. 1976) (Delaware Legislature and court interpreted Furman as
requiring elimination of all sentencing discretion resulting in an
unconstitutional statute); Liebman & Shepard, Guiding Capital
Sentencing Discretion Beyond the "Boiler Plate": Mental Disorder as a
Mitigating Factor, 66 Geo. L. J. 757, 765 n. 43 (1978). |
| [163] | *fn9
See Note, Discretion and the Constitutionality of the New Death Penalty
Statutes, 87 Harv. L. Rev. 1690, 1690-1710 (1974). |
| [164] | *fn10
Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, supra
; and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325
(1976). |
| [165] | *fn11
We express no opinion as to whether the need to deter certain kinds of
homicide would justify a mandatory death sentence as, for example, when a
prisoner -- or escapee -- under a life sentence is found guilty of murder.
See Roberts (Harry) v. Louisiana, 431 U.S. 633, 637
n. 5 (1977). |
| [166] | *fn12
Nothing in this opinion limits the traditional authority of a court to
exclude, as irrelevant, evidence not bearing on the defendant's character,
prior record, or the circumstances of his offense. |
| [167] | *fn13
Sentencing in non-capital cases presents no comparable problems. We
emphasize that in dealing with standards for imposition of the death
sentence we intimate no view regarding the authority of a State or of the
Congress to fix mandatory, minimum sentences for non-capital
crimes. |
| [168] | *fn14
The statute provided that, in sentencing, the jury should consider "any
mitigating circumstances or aggravating circumstances otherwise authorized
by law" in addition to 10 specified aggravating circumstances. See Ga.
Code Ann. § 27.2534.1 (b) (Supp. 1975). MR. JUSTICE WHITE, who also voted
to uphold the statute in an opinion joined by THE CHIEF JUSTICE and MR.
JUSTICE REHNQUIST, noted that the Georgia Legislature had decided to
permit "the jury to dispense mercy on the basis of factors too intangible
to write into a statute." Gregg, 428 U.S., at
222. |
| [169] | *fn15
The opinion of JUSTICES STEWART, POWELL, and STEVENS in Proffitt noted
that the Florida statute "provides that '[aggravating] circumstances shall
be limited to . . . [eight specified factors]'" and that there was "no
such limiting language introducing the list of statutory mitigating
factors." 428 U.S., at 250 n. 8. MR. JUSTICE WHITE,
joined by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, accepted the
interpretation of the statute contained in the opinion of JUSTICES
STEWART, POWELL, and STEVENS. See id., at 260. |
| [170] | *fn16
In view of our holding that Lockett was not sentenced in
accord with the Eighth Amendment, we need not address her contention that
the death penalty is constitutionally disproportionate for one who has not
been proved to have taken life, to have attempted to take life, or to have
intended to take life, or her contention that the death penalty is
disproportionate as applied to her in this case. Nor do we address her
contentions that the Constitution requires that the death sentence be
imposed by a jury; that the Ohio statutory procedures impermissibly burden
the defendant's exercise of his rights to plead not guilty and to be tried
by a jury; and that it violates the Constitution to require defendants to
bear the risk of nonpersuasion as to the existence of mitigating
circumstances in capital cases. |
|
| |
| Concurrence Footnotes | |
|
| |
| [171] | *fn1
Ohio Rev. Code Ann. § 2903.01 (B) (1975) provides that "[no] person shall
purposely cause the death of another while committing or attempting to
commit, or while fleeing immediately after committing or attempting to
commit . . . aggravated robbery," and § 2903.01 (C) states that one doing
so is guilty of aggravated murder. Under § 2929.04 (A) (7), the commission
of the same armed robbery serves as an aggravating specification to the
murder and requires the imposition of the death penalty upon the principal
offender unless the existence of one of the three permitted mitigating
circumstances is established by a preponderance of the evidence. Sections
2923.03 (A) and (F) provide that an aider or abettor who acts "with the
kind of culpability required for the commission of [the principal]
offense" shall be "prosecuted and punished as if he were a principal
offender." The finishing stroke is then delivered by Ohio's statutory
definition of "purpose." Under § 2901.22 (A), "[a] person acts purposely
when it is his specific intention to cause a certain result, or, when the
gist of the offense is a prohibition against conduct of a certain nature,
regardless of what the offender intends to accomplish thereby, it is his
specific intention to engage in conduct of that nature." (Emphasis added.)
In this case, as the three dissenting justices of the Ohio Supreme
Court noted, 49 Ohio St. 2d 48, 68, 358 N. E. 2d 1062, 1075 (1976), the
jury was instructed that Lockett could be found to have
"purposely" aided a murder merely by taking part in a robbery in which the
threat of force was to be employed. The jury was instructed: "If the
conspired robbery and the manner of its accomplishment would be reasonably
likely to produce death, each plotter is equally guilty with the principal
offender as an aider and abettor in the homicide, even though the aider
and abettor was not aware of the particular weapon used to accomplish the
killing." The State presented no testimony indicating any prior plan
actually to fire the gun in the course of the robbery. The triggerman,
Parker, testified that the gun discharged accidentally when the proprietor
of the pawnshop grabbed at it. App. 50-51, 53. |
| [172] | *fn2
I do not find entirely convincing the disproportionality rule embraced by
my Brother WHITE. The rule that a defendant must have had actual intent to
kill, in order to be capitally sentenced, does not explain why such intent
is the sole criterion of culpability for Eighth Amendment purposes. What
if a defendant personally commits the act proximately causing death by
pointing a loaded gun at the robbery victim, verbally threatens to use
fatal force, admittedly does not intend to cause a death, yet knowingly
creates a high probability that the gun will discharge accidentally? What
if a robbery participant, in order to avoid capture or even for wanton
sport, personally and deliberately uses grave physical force with
conscious intent to inflict serious bodily harm, but not to kill, and a
death results? May we as judges say that for Eighth Amendment purposes the
absence of a "conscious purpose of producing death," post, at 628,
transforms the culpability of those defendants' actions?
Applying a requirement of actual intent to kill to defendants not
immediately involved in the physical act causing death, moreover, would
run aground on intricate definitional problems attending a felony murder.
What intention may a State attribute to a robbery participant who sits in
the getaway car, knows that a loaded gun will be brandished by his
companion in the robbery inside the store, is willing to have the gun
fired if necessary to make an escape but not to accomplish the robbery,
when the victim is shot by the companion even though not necessary for
escape? What if the unarmed participant stands immediately inside the
store as a lookout, intends that a loaded gun merely be brandished, but
never bothered to discuss with the triggerman what limitations were
appropriate for the firing of the gun? What if the same lookout personally
intended that the gun never be fired, but, after his companion fires a
fatal shot to prevent the victim from sounding an alarm, approves and
takes off? The requirement of actual intent to kill in order to inflict
the death penalty would require this Court to impose upon the States an
elaborate "constitutionalized" definition of the requisite mens rea,
involving myriad problems of line drawing that normally are left to jury
discretion but that, in disproportionality analysis, have to be decided as
issues of law, and interfering with the substantive categories of the
States' criminal law. And such a rule, even if workable, is an incomplete
method of ascertaining culpability for Eighth Amendment purposes, which
necessarily is a more subtle mixture of action, inaction, and degrees of
mens rea. Finally, I must question the data relied upon by my Brother
WHITE in concluding, post, at 624, that only "extremely [rarely]" has the
death penalty been used when a defendant did not specifically intend the
death of the victim. The representation made by petitioner
Lockett, even if accepted uncritically, was merely that of
363 reported cases involving executions from 1954 to 1976, in 347 the
defendant "personally committed a homicidal assault" -- not that the
defendant had actual intention to kill. App. to Brief for Petitioner 1b.
Of contemporary death penalty statutes, my Brother WHITE concedes that
approximately half permit the execution of persons who did not actually
intend to cause death. |
| [173] | *fn3
The 18 state statutes specifically permitting consideration of a
defendant's minor degree of involvement are Ala. Code, Tit. 13, § 13-11-7
(4) (1975); Ariz. Rev. Stat. Ann. § 13-454 (F)(3) (Supp. 1977); Ark. Stat.
Ann. § 41-1304 (5) (1977); Cal. Penal Code Ann. § 190.3 (i) (West Supp.
1978); Fla. Stat. § 921.141 (6)(d) (Supp. 1978); Ind. Code § 35-50-2-9
(c)(4) (Supp. 1977); Ky. Rev. Stat. § 532.025 (2)(b)(5) (Supp. 1977); La.
Code Crim. Proc., Art. 905.5 (g) (West Supp. 1978); Mo. Rev. Stat. §
565.012.3 (4) (Supp. 1978); Mont. Rev. Codes Ann. § 95-2206.9 (6) (Supp.
1977); Neb. Rev. Stat. § 29-2523 (2) (e) (1975); Nev. Rev. Stat. § 200.035
(4) (1977); N. C. Gen. Stat. § 15A-2000 (f)(4) (Supp. 1977), added by 1977
N. C. Sess. Laws, ch. 406; S. C. Code § 16-3-20 (C)(b)(4) (Supp. 1978);
Tenn. Code Ann. § 39-2404 (j)(5) (Supp. 1977); Utah Code Ann. § 76-3-207
(1)(f) (Supp. 1977); Wash. Rev. Code § 9A.32.045 (2)(d) (Supp. 1977); Wyo.
Stat. §§ 6-54.2 (c), (d), and (j)(iv) (Supp. 1977), added by 1977 Wyo.
Sess. Laws, ch. 122.
The nine state statutes allowing consideration of any mitigating
circumstance are Del. Code Ann., Tit. 11, § 4209 (c) (Supp. 1977); Ga.
Code § 27-2534.1 (b) (1975); Idaho Code § 19-2515 (c) (Supp. 1977); Ill.
Rev. Stat., ch. 38, § 9-1 (c) (Supp. 1978); Miss. Code Ann. § 97-3-21
(Supp. 1977), see Jackson v. State, 337 So. 2d 1242, 1254 (Miss. 1976); N.
H. Rev. Stat. Ann. § 630:5 (II) (Supp. 1977); Okla. Stat., Tit. 21, §
701.10 (Supp. 1977); Tex. Code Crim. Proc. Ann., Art. 37.071 (b)(2)
(Vernon Supp. 1978), see Jurek v. Texas, 428 U.S. 262, 272-273 (1976); Va. Code § 19.2-264.4 (B) (Supp.
1977). |
|
| |
| Dissent Footnotes | |
|
| |
| [174] | *fn1
See Furman v. Georgia, 408 U.S., at 240 (Douglas, J.,
concurring). |
| [175] | *fn2
See id., at 306 (STEWART, J., concurring). |
| [176] | *fn3
See id., at 310 (WHITE, J., concurring). |
| [177] | *fn4
The Court took a further step along this path in Roberts (Harry) v.
Louisiana, 431 U.S. 633 (1977), which held that the
imposition of a mandatory death sentence even upon one convicted of the
first-degree murder of a police officer engaged in the performance of his
duties constituted cruel and unusual punishment. |
| [178] | *fn5
The plurality's general endorsement of individualized sentencing as
representing enlightened public policy even apart from the Eighth
Amendment context, ante, at 602-603, is not only questionable but also
highly inappropriate in light of the fact that Congress, after detailed
study of the matter, is currently giving serious consideration to
legislation adopting the view that the goals of the criminal law are best
achieved by a system of sentencing which narrowly limits the discretion of
the sentencer. See S. 1437, 95th Cong., 2d Sess. (approved by the Senate
on Jan. 30, 1978). |
| [179] | *fn6
The study is based upon reported appellate opinions. There were eight
additional cases in which the facts were not reported in sufficient detail
to permit a determination as to the status of the executed person. I
recognize that because of the absence of reported appellate opinions for
some cases this study does not include all executions within the relevant
time period. There is no reason whatsoever to suppose, however, that the
statistics relevant to these executions would alter the conclusions to be
drawn from those included in the study. |
| [180] | *fn7
In two of these cases the executed person arranged for another to commit
the murder for him. I realize that it may be conceivable that a few of the
"triggermen" actually executed lacked an intent to kill. But such cases
will of necessity be rare. |
| [181] | *fn8
U.S. Department of Justice, Law Enforcement Assistance Administration,
National Prisoner Statistics Bulletin No. SD-NPS-CP-3, Capital Punishment
1974, pp. 16-17 (Nov. 1975). |
| [182] | *fn9
Section 2.02 (2)(c) provides:
"A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and unjustifiable
risk that the material element exists or will result from his conduct. The
risk must be of such a nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a
law-abiding person would observe in the actor's situation." In contrast, §
2.02 (2)(a) provides: "A person acts purposely with respect to a material
element of an offense when: "(i) if the element involves the nature of his
conduct or a result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result . . .
." |
| [183] | *fn10
I find it unnecessary to address other constitutional challenges to the
death sentences imposed in these cases. |
| [184] | *fn*
[This opinion applies also to No. 76-6513, Bell v. Ohio, post, p.
637.] |