| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 83-5596 |
| [3] | 1984.SCT.2606 <http://www.versuslaw.com>, 468
U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340, 52 U.S.L.W.
5030 |
| [4] | July 2, 1984 |
| [5] | SPAZIANO v. FLORIDA |
| [6] | CERTIORARI TO THE SUPREME COURT OF FLORIDA. |
| [7] | Craig S. Barnard argued the cause for petitioner. With him on the
brief were Richard L. Jorandby, Richard H. Burr III, and Richard B.
Greene. |
| [8] | Mark C. Menser, Assistant Attorney General of Florida, argued the
cause for respondent. With him on the brief was Jim Smith, Attorney
General.* |
| [9] | Blackmun, J., delivered the opinion of the Court, in which Burger, C.
J., and Powell and O'connor, JJ., joined; in all but a portion of page 456
in Part II of which White and Rehnquist, JJ., joined; and in Part II of
which Brennan, Marshall, and Stevens, JJ., joined. White, J., filed an
opinion Concurring in part and Concurring in the judgment, in which
Rehnquist, J., joined, post, p. 467. Stevens, J., filed an opinion
Concurring in part and Dissenting in part, in which Brennan and Marshall,
JJ., joined, post, p. 467. |
| [10] | The opinion of the court was delivered by: Blackmun |
| [11] | At petitioner's trial for first-degree murder, the Florida trial court
informed him that it would instruct the jury on lesser included,
non-capital offenses, if he would waive the statute of limitations, which
had expired as to those offenses. Petitioner refused to waive the statute,
and the jury was instructed solely on capital murder. After the jury
returned a verdict of guilty of first-degree murder, a sentencing hearing
was conducted before the same jury, a majority of which recommended life
imprisonment. Under Florida law, the jury's sentencing recommendation in a
capital case is only advisory, and the trial court must conduct its own
weighing of the aggravating and mitigating circumstances to determine the
proper sentence. If a death sentence is imposed, specified written
findings are required. In this case, the trial court imposed the death
sentence and entered its findings in support thereof. The Florida Supreme
Court affirmed the conviction, rejecting petitioner's contention that Beck
v. Alabama, 447 U.S. 625 -- which held that a statute prohibiting lesser
included offense instructions in capital cases was unconstitutional --
required reversal because of the trial court's failure to instruct the
jury on lesser included offenses absent a waiver of the statute of
limitations on those offenses. However, the Florida Supreme Court reversed
the death sentence because of the trial Judge's consideration of a
confidential portion of the presentence investigation report, neither
party having received a copy of the confidential portion. On remand, the
trial court again imposed the death penalty after a hearing to allow
petitioner to present evidence in response to a new presentence
investigation report. The Florida Supreme Court affirmed, holding, inter
alia, that there was no constitutional infirmity in the Florida procedure
whereby the Judge is allowed to override the jury's recommendation of life
imprisonment. |
| [12] | Held : |
| [13] | 1. On the facts, it was not error for the trial Judge to refuse to
instruct the jury on lesser included offenses. Beck v. Alabama, supra,
recognized the risk of an unwarranted conviction that is created when the
jury is deprived of the "third option" of convicting the defendant of a
lesser included offense. Petitioner's general premise that a criminal
defendant may not be required to waive a substantive right -- here the
right to a statute of limitations -- as a condition for receiving an
otherwise constitutionally fair trial does not apply to petitioner's
situation. In Beck, the element found to be essential to a fair trial was
not simply a lesser included offense instruction in the abstract, but the
enhanced rationality and reliability the existence of the instruction
introduced into the jury's deliberations. Where no lesser included offense
exists, a lesser included offense instruction detracts from, rather than
enhances, the rationality of the process. The defendant has the option of
waiving the expired statute of limitations on lesser included offenses in
order to have the jury instructed on those offenses, or of asserting the
statute of limitations. Pp. 454-457. |
| [14] | 2. There is no constitutional requirement that a jury's recommendation
of life imprisonment in a capital case be final so as to preclude the
trial Judge from overriding the jury's recommendation and imposing the
death sentence. The fundamental issue in a capital sentencing proceeding
is the determination of the appropriate punishment to be imposed on an
individual, and the Sixth Amendment does not guarantee a right to a jury
determination of that issue. Nothing in the safeguards against arbitrary
and discriminatory application of the death penalty necessitated by the
qualitative difference of the penalty requires that the sentence be
imposed by a jury. And the purposes of the death penalty are not
frustrated by, or inconsistent with, a scheme in which imposition of the
penalty is determined by a Judge. The fact that the majority of
jurisdictions with capital sentencing statutes give the life-or-death
decision to the jury does not establish that contemporary standards of
fairness and decency are offended by the jury override. The Eighth
Amendment is not violated every time a State reaches a Conclusion
different from a majority of its sisters over how best to administer its
s. Pp. 457-465. |
| [15] | 3. The determination that there is no constitutional imperative that a
jury have the responsibility of deciding whether the death penalty should
be imposed also disposes of petitioner's double jeopardy challenge to the
jury-override procedure. If the Judge is vested with sole responsibility
for imposing the penalty, the jury's advice does not become a judgment
simply because it comes from the jury. P. 465. |
| [16] | 4. Application of the Florida standards allowing a trial court to
override a jury's recommendation of a life sentence does not violate the
constitutional requirement of reliability in capital sentencing. There is
no indication that the application of the jury-override procedure has
resulted in arbitrary or discriminatory application of the death penalty,
either in general or in this particular case. The trial Judge here based
his decision on the presence of two statutory aggravating circumstances
and the absence of any mitigating circumstances. The Florida Supreme Court
reviewed petitioner's sentence and concluded that the death penalty was
properly imposed under state law. Whether or not "reasonable people" could
differ over the result, there is nothing irrational or arbitrary about the
imposition of petitioner's death penalty. Pp. 465-467. |
| [17] | JUSTICE BLACKMUN delivered the opinion of the Court. |
| [18] | This case presents questions regarding the administration of Florida's
capital sentencing statute. In particular, petitioner challenges the trial
court's failure to instruct the jury on lesser included offenses of
capital murder. He also challenges the court's imposition of a sentence of
death when the jury had recommended life. We conclude that on the facts of
this case, it was not error for the trial Judge to refuse to give the
lesser included offense instruction and that there is no constitutional
requirement that the jury's recommendation of life be final. We also
reject petitioner's argument that, as applied in this case, the Florida
standards for overriding a jury's sentencing recommendation are so broad
and vague as to violate the constitutional requirement of reliability in
capital sentencing. |
| [19] | I |
| [20] | Petitioner Joseph Robert Spaziano was indicted and tried for
first-degree murder. The indictment was brought two years and one month
after the alleged offense. Under the Florida statute of limitations in
effect at the time of the alleged offense, August 1973, the limitations
period for non-capital offenses was two years. Fla. Stat. § 932.465(2)
(1973). *fn1 There was no statute of
limitations for capital offenses, such as first-degree murder. §
932.465(1). |
| [21] | The primary evidence against petitioner was given by a witness who
testified that petitioner had taken him to a garbage dump in Seminole
County, Fla., where petitioner had pointed out the remains of two women he
claimed to have tortured and murdered. Petitioner challenged the
sufficiency of the witness' recall and perception because of a substantial
drug habit. The witness testified that he had not taken drugs on the day
of the visit to the garbage dump, and he had been able to direct the
police to the site. See Spaziano v. State, 393 So. 2d 1119, 1120 (Fla.
1981). |
| [22] | At the close of the evidence, the trial court informed petitioner that
it would instruct the jury on the lesser included, non-capital offenses of
attempted first-degree murder, second-degree murder, third-degree murder,
and manslaughter, if petitioner would waive the statute of limitations as
to those offenses. Tr. 751-755. Petitioner refused to waive the statute.
The court accordingly instructed the jury solely on capital
murder. |
| [23] | The jury deliberated somewhat more than six hours. It reported itself
deadlocked, and the trial court gave an additional instruction,
encouraging the jurors to resolve their differences and come to a common
Conclusion. *fn2 Shortly thereafter,
the jury returned a verdict of guilty of first-degree
murder. |
| [24] | The trial court then convened a sentencing hearing before the same
jury. Arguments were heard from both sides and evidence offered on
aggravating and mitigating circumstances. A majority of the jury
recommended life imprisonment. *fn3 In
Florida, the jury's sentencing recommendation in a capital case is only
advisory. The trial court is to conduct its own weighing of the
aggravating and mitigating circumstances and, " the recommendation of a
majority of the jury," is to enter a sentence of life imprisonment or
death; in the latter case, specified written findings are required. Fla.
Stat. § 921.141(3) (1983). *fn4 The
trial court concluded that, "notwithstanding the recommendation of the
jury, . . . sufficient aggravating circumstances existed to justify and
authorize a death sentence[;] . . . the mitigating circumstances were
insufficient to outweigh such aggravating circumstances and . . . a
sentence of death should be imposed in this case." App. 14. The two
aggravating circumstances found by the court were that the homicide was
especially heinous and atrocious and that the defendant had been convicted
previously of felonies involving the use or threat of violence to the
person. The trial court found no mitigating circumstance "except, perhaps,
the age [28] of the defendant." Id., at 14-15. |
| [25] | On appeal, the Supreme Court of Florida affirmed the conviction but
reversed the death sentence. Spaziano v. State, 393 So. 2d 1119 (1981). In
deciding whether to impose the death sentence, the trial Judge had
considered a confidential portion of the presentence investigation report
that contained information about petitioner's previous felony convictions
as well as other charges for which petitioner had not been convicted.
Neither party had received a copy of that confidential portion. Relying on
Gardner v. Florida, 430 U.S. 349 (1977), the court concluded that it was
error for the trial Judge to rely on the confidential information in the
presentence investigation report without first disclosing the information
to petitioner and giving him an opportunity to present evidence in
response. |
| [26] | In a memorandum of supplemental authority, petitioner also urged that
Beck v. Alabama, 447 U.S. 625 (1980), required reversal of his conviction
because of the trial court's failure to instruct the jury on the lesser
included offenses absent a waiver of the statute of limitations on those
offenses. The Supreme Court found Beck inapposite. Beck concerned an
express statutory prohibition on instructions for lesser included
offenses. The court found nothing in Beck requiring that the jury
determine the guilt or innocence of lesser included offenses for which the
defendant could not be convicted and adjudicated guilty. This Court denied
certiorari. 454 U.S. 1037 (1981). |
| [27] | On remand, the trial court ordered a new presentence investigation
report and scheduled a hearing to allow petitioner to present evidence in
response to the report. At the hearing, petitioner offered no evidence.
The State presented evidence that petitioner had been convicted previously
of forcible carnal knowledge and aggravated battery. Although the State
had attempted to introduce evidence of the prior conviction in
petitioner's initial sentencing hearing before the jury, the trial Judge
had excluded the evidence on the ground that the conviction was then on
appeal. By the time of the Gardner rehearing, the conviction was final and
the trial Judge agreed that it was a proper consideration. Accordingly, he
relied on that conviction in finding the aggravating circumstance that the
defendant had been convicted previously of a felony involving the use of
violence to the person. The Judge also reaffirmed his Conclusion that the
crime was especially heinous, atrocious, and cruel. He sentenced
petitioner to death. App. 25. |
| [28] | The Supreme Court of Florida affirmed. 433 So. 2d 508 (1983). It
rejected petitioner's argument that the trial court erred in allowing the
State to introduce evidence of a previous conviction not considered in the
original sentencing phase. The court noted that the information was in the
original presentence investigation report. The only reason it was not
considered was that the trial court mistakenly thought that under Florida
law it could not be considered, since the conviction was then on
appeal. |
| [29] | The Supreme Court also found no constitutional infirmity in the
procedure whereby the Judge is allowed to override the jury's
recommendation of life. The court found no double jeopardy problem with
the procedure, because the jury's function is only advisory. The court
added its understanding that allowing the jury's recommendation to be
binding would violate the requirements of Furman v. Georgia, 408 U.S. 238
(1972). |
| [30] | Finally, the court found that in this case the evidence suggesting
that the death sentence be imposed over the jury's recommendation of life
"meets the clear and convincing test to allow override of the jury's
recommendation in accordance with . . . Tedder v. State, 322 So. 2d 908
(Fla. 1975)." 433 So. 2d, at 511. One Judge Dissented, finding "no
compelling reason" to override the jury's recommendation of life. Id., at
512. |
| [31] | We granted certiorari, 464 U.S. 1038 (1984), and we now
affirm. |
| [32] | II |
| [33] | We turn first to the trial court's refusal to give an instruction on
lesser included offenses. In Beck v. Alabama, supra, the Court recognized
the risk of an unwarranted conviction that is created when the jury is
deprived of the "third option" of convicting the defendant of a lesser
included offense. Id., at 637. See also Keeble v. United States, 412 U.S.
205, 212-213 (1973). We concluded that " a risk cannot be tolerated in a
case in which the defendant's life is at stake" and that "if the
unavailability of a lesser included offense instruction enhances the risk
of an unwarranted conviction, [a State] is constitutionally prohibited
from withdrawing that option from the jury in a capital case." 447 U.S.,
at 637-638. The issue here is whether the defendant is entitled to the
benefit of both the lesser included offense instruction and an expired
period of limitations on those offenses. *fn5 |
| [34] | Petitioner urges that he should not be required to waive a substantive
right -- to a statute of limitations defense -- in order to receive a
constitutionally fair trial. Beck made clear that in a capital trial, a
lesser included offense instruction is a necessary element of a
constitutionally fair trial. Thus, petitioner claims, he is entitled to
the benefit of the Beck rule regardless of whether the statute of
limitations prevents him from actually being punished on a lesser included
offense. |
| [35] | We, of course, have no quarrel with petitioner's general premise that
a criminal defendant may not be required to waive a substantive right as a
condition for receiving an otherwise constitutionally fair trial. We do
not agree that the premise fairly applies to petitioner's situation.
Petitioner would have us divorce the Beck rule from the reasoning on which
it was based. The element the Court in Beck found essential to a fair
trial was not simply a lesser included offense instruction in the
abstract, but the enhanced rationality and reliability the existence of
the instruction introduced into the jury's deliberations. Where no lesser
included offense exists, a lesser included offense instruction detracts
from, rather than enhances, the rationality of the process. Beck does not
require that result. |
| [36] | The Court in Beck recognized that the jury's role in the criminal
process is essentially unreviewable and not always rational. The absence
of a lesser included offense instruction increases the risk that the jury
will convict, not because it is persuaded that the defendant is guilty of
capital murder, but simply to avoid setting the defendant free. In Beck,
the Court found that risk unacceptable and inconsistent with the
reliability this Court has demanded in capital proceedings. Id., at 643.
The goal of the Beck rule, in other words, is to eliminate the distortion
of the factfinding process that is created when the jury is forced into an
all-or-nothing choice between capital murder and innocence. Id., at
638-643. Requiring that the jury be instructed on lesser included offenses
for which the defendant may not be convicted, however, would simply
introduce another type of distortion into the factfinding
process. |
| [37] | We reaffirm our commitment to the demands of reliability in decisions
involving death and to the defendant's right to the benefit of a lesser
included offense instruction that may reduce the risk of unwarranted
capital convictions. But we are unwilling to close our eyes to the social
cost of petitioner's proposed rule. Beck does not require that the jury be
tricked into believing that it has a choice of crimes for which to find
the defendant guilty, if in reality there is no choice. Such a rule not
only would undermine the public's confidence in the criminal Justice
system, but it also would do a serious disservice to the goal of
rationality on which the Beck rule is based. |
| [38] | If the jury is not to be tricked into thinking that there is a range
of offenses for which the defendant may be held accountable, then the
question is whether Beck requires that a lesser included offense
instruction be given, with the defendant being forced to waive the expired
statute of limitations on those offenses, or whether the defendant should
be given a choice between having the benefit of the lesser included
offense instruction or asserting the statute of limitations on the lesser
included offenses. We think the better option is that the defendant be
given the choice. |
| [39] | As the Court in Beck recognized, the rule regarding a lesser included
offense instruction originally developed as an aid to the prosecution. If
the State failed to produce sufficient evidence to prove the crime
charged, it might still persuade the jury that the defendant was guilty of
something. Id., at 633. See also 3 C. Wright, Federal Practice and
Procedure § 515, p. 20, n. 2 (2d ed. 1982). Although the Beck rule rests
on the premise that a lesser included offense instruction in a capital
case is of benefit to the defendant, there may well be cases in which the
defendant will be confident enough that the State has not proved capital
murder that he will want to take his chances with the jury. If so, we see
little reason to require him not only to waive his statute of limitations
defense, but also to give the State what he perceives as an advantage --
an opportunity to convict him of a lesser offense if it fails to persuade
the jury that he is guilty of capital murder. In this case, petitioner was
given a choice whether to waive the statute of limitations on the lesser
offenses included in capital murder. He knowingly chose not to do so. *fn6 Under those circumstances, it was not
error for the trial Judge to refuse to instruct the jury on the lesser
included offenses. |
| [40] | III |
| [41] | Petitioner's second challenge concerns the trial Judge's imposition of
a sentence of death after the jury had recommended life imprisonment.
Petitioner urges that allowing a Judge to override a jury's recommendation
of life violates the Eighth Amendment's proscription against "cruel and
unusual punishments." Because the jury's verdict of life should be final,
petitioner argues, the practice also violates the Fifth Amendment's Double
Jeopardy Clause made applicable to the States through the Fourteenth
Amendment. See Benton v. Maryland, 395 U.S. 784, 793-796 (1969). Finally,
drawing on this Court's recognition of the value of the jury's role,
particularly in a capital proceeding, petitioner urges that the practice
violates the Sixth Amendment and the Due Process Clause of the Fourteenth
Amendment. |
| [42] | Petitioner points out that we need not decide whether jury sentencing
in all capital cases is required; this case presents only the question
whether, given a jury verdict of life, the Judge may override that verdict
and impose death. As counsel acknowledged at oral argument, however, his
fundamental premise is that the capital sentencing decision is one that,
in all cases, should be made by a jury. Tr. of Oral Arg. 16-17. We
therefore address that fundamental premise. Before doing so, however, it
is useful to clarify what is not at issue here. |
| [43] | Petitioner does not urge that capital sentencing is so much like a
trial on guilt or innocence that it is controlled by the Court's decision
in Duncan v. Louisiana, 391 U.S. 145 (1968). In Duncan, the Court found
that the right to jury trial guaranteed by the Sixth Amendment is so
"'basic in our system of jurisprudence,'" id., at 149, quoting In re
Oliver, 333 U.S. 257, 273 (1948), that it is also protected against state
action by the Fourteenth Amendment. |
| [44] | This Court, of course, has recognized that a capital proceeding in
many respects resembles a trial on the issue of guilt or innocence. See
Bullington v. Missouri, 451 U.S. 430, 444 (1981). Because the
"'embarrassment, expense and ordeal' . . . faced by a defendant at the
penalty phase of a . . . capital murder trial . . . are at least
equivalent to that faced by any defendant at the guilt phase of a criminal
trial," the Court has concluded that the Double Jeopardy Clause bars the
State from making repeated efforts to persuade a sentencer to impose the
death penalty. Id., at 445, quoting Green v. United States, 355 U.S. 184,
187 (1957); Arizona v. Rumsey, 467 U.S. 203 (1984). The fact that a
capital sentencing is like a trial in the respects significant to the
Double Jeopardy Clause, however, does not mean that it is like a trial in
respects significant to the Sixth Amendment's guarantee of a jury trial.
The Court's concern in Bullington was with the risk that the State, with
all its resources, would wear a defendant down, thereby leading to an
erroneously imposed death penalty. 451 U.S., at 445. There is no similar
danger involved in denying a defendant a jury trial on the sentencing
issue of life or death. The sentencer, whether Judge or jury, has a
constitutional obligation to evaluate the unique circumstances of the
individual defendant and the sentencer's decision for life is final.
Arizona v. Rumsey, supra. More important, despite its unique aspects, a
capital sentencing proceeding involves the same fundamental issue involved
in any other sentencing proceeding -- a determination of the appropriate
punishment to be imposed on an individual. See Lockett v. Ohio, 438 U.S.
586, 604-605 (1978) (plurality opinion); Woodson v. North Carolina, 428
U.S. 280, 304 (1976) (plurality opinion), citing Pennsylvania ex rel.
Sullivan v. Ashe, 302 U.S. 51, 55 (1937), and Williams v. New York, 337
U.S. 241, 247-249 (1949). The Sixth Amendment never has been thought to
guarantee a right to a jury determination of that issue. |
| [45] | Nor does petitioner urge that this Court's recognition of the
"qualitative difference" of the death penalty requires the benefit of a
jury. In Furman v. Georgia, 408 U.S., at 238, the Court struck down the
then-existing capital sentencing statutes of Georgia and Texas, in large
part because of its Conclusion that, under those statutes, the penalty was
applied arbitrarily and discriminatorily. See also Gregg v. Georgia, 428
U.S. 153, 188 (1976) (joint opinion of
Stewart, POWELL, and STEVENS, JJ.). Since then, the Court
has emphasized its pursuit of the "twin objectives" of "measured,
consistent application and fairness to the accused." Eddings v. Oklahoma,
455 U.S. 104, 110-111 (1982). *fn7 If a
State has determined that death should be an available penalty for certain
crimes, then it must administer that penalty in a way that can rationally
distinguish between those individuals for whom death is an appropriate
sanction and those for whom it is not. Zant v. Stephens, 462 U.S. 862,
873-880 (1983); Furman v. Georgia, 408 U.S., at 294 (BRENNAN, J.,
Concurring). It must also allow the sentencer to consider the individual
circumstances of the defendant, his background, and his crime. Lockett v.
Ohio, supra. |
| [46] | Nothing in those twin objectives suggests that the sentence must or
should be imposed by a jury. While it is to be hoped that current
procedures have greatly reduced the risk that jury sentencing will result
in arbitrary or discriminatory application of the death penalty, see Gregg
v. Georgia, 428 U.S., at 190-195 (joint opinion), there certainly is
nothing in the safeguards necessitated by the Court's recognition of the
qualitative difference of the death penalty that requires that the
sentence be imposed by a jury. |
| [47] | Petitioner's primary argument is that the laws and practice in most of
the States indicate a nearly unanimous recognition that juries, not
Judges, are better equipped to make reliable capital sentencing decisions
and that a jury's decision for life should be inviolate. The reason for
that recognition, petitioner urges, is that the nature of the decision
whether a defendant should live or die sets capital sentencing apart and
requires that a jury have the ultimate word. Non-capital sentences are
imposed for various reasons, including rehabilitation, incapacitation, and
deterrence. In contrast, the primary justification for the death penalty
is retribution. As has been recognized, "the decision that capital
punishment may be the appropriate sanction in extreme cases is an
expression of the community's belief that certain crimes are themselves so
grievous an affront to humanity that the only adequate response may be the
penalty of death." Id., at 184. The imposition of the death penalty, in
other words, is an expression of community outrage. Since the jury serves
as the voice of the community, the jury is in the best position to decide
whether a particular crime is so heinous that the community's response
must be death. If the answer is no, that decision should be
final. |
| [48] | Petitioner's argument obviously has some appeal. But it has two
fundamental flaws. First, the distinctions between capital and non-capital
sentences are not so clear as petitioner suggests. Petitioner
acknowledges, for example, that deterrence may be a justification for
capital as well as for non-capital sentences. He suggests only that
deterrence is not a proper consideration for particular sentencers who are
deciding whether the penalty should be imposed in a given case. The same
is true, however, in non-capital cases. Whatever the sentence, its
deterrent function is primarily a consideration for the legislature. Gregg
v. Georgia, 428 U.S., at 186 (joint opinion). Similar points can be made
about the other purposes of capital and non-capital punishment. Although
incapacitation has never been embraced as a sufficient justification for
the death penalty, it is a legitimate consideration in a capital
sentencing proceeding. Id., at 183, n. 28; Jurek v. Texas, 428 U.S. 262
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).
While retribution clearly plays a more prominent role in a capital case,
retribution is an element of all punishments society imposes, and there is
no suggestion as to any of these that the sentence may not be imposed by a
Judge. |
| [49] | Second, even accepting petitioner's premise that the retributive
purpose behind the death penalty is the element that sets the penalty
apart, it does not follow that the sentence must be imposed by a jury.
Imposing the sentence in individual cases is not the sole or even the
primary vehicle through which the community's voice can be expressed. This
Court's decisions indicate that the discretion of the sentencing
authority, whether Judge or jury, must be limited and reviewable. See, e.
g., Gregg v. Georgia, supra; Woodson v. North Carolina, 428 U.S., at
302-303; Zant v. Stephens, 462 U.S., at 879-880. The sentencer is
responsible for weighing the specific aggravating and mitigating
circumstances the legislature has determined are necessary touchstones in
determining whether death is the appropriate penalty. Thus, even if it is
a jury that imposes the sentence, the "community's voice" is not given
free rein. The community's voice is heard at least as clearly in the
legislature when the death penalty is authorized and the particular
circumstances in which death is appropriate are defined. See Gregg v.
Georgia, 428 U.S., at 183-184 (joint opinion); Furman v. Georgia, 408
U.S., at 394-395 (BURGER, C. J., Dissenting); id., at 452-454 (POWELL, J.,
Dissenting). |
| [50] | We do not denigrate the significance of the jury's role as a link
between the community and the penal system and as a bulwark between the
accused and the State. See Gregg v. Georgia, 428 U.S., at 181 (joint
opinion); Williams v. Florida, 399 U.S. 78, 100 (1970); Duncan v.
Louisiana, 391 U.S., at 156; Witherspoon v. Illinois, 391 U.S. 510, 519,
n. 15 (1968). The point is simply that the purpose of the death penalty is
not frustrated by, or inconsistent with, a scheme in which the imposition
of the penalty in individual cases is determined by a Judge. *fn8 |
| [51] | We also acknowledge the presence of the majority view that capital
sentencing, unlike other sentencing, should be performed by a jury. As
petitioner points out, 30 out of 37 jurisdictions with a capital
sentencing statute give the life-or-death decision to the jury, with only
3 of the remaining 7 allowing a Judge to override a jury's recommendation
of life. *fn9 The fact that a majority
of jurisdictions have adopted a different practice, however, does not
establish that contemporary standards of decency are offended by the jury
override. The Eighth Amendment is not violated every time a State reaches
a Conclusion different from a majority of its sisters over how best to
administer its s. "Although the judgments of legislatures, juries, and
prosecutors weigh heavily in the balance, it is for us ultimately to Judge
whether the Eighth Amendment" is violated by a challenged practice. See
Enmund v. Florida, 458 U.S. 782, 797 (1982); Coker v. Georgia, 433 U.S.
584, 597 (1977) (plurality opinion). In light of the facts that the Sixth
Amendment does not require jury sentencing, that the demands of fairness
and reliability in capital cases do not require it, and that neither the
nature of, nor the purpose behind, the death penalty requires jury
sentencing, we cannot conclude that placing responsibility on the trial
Judge to impose the sentence in a capital case is
unconstitutional. |
| [52] | As the Court several times has made clear, we are unwilling to say
that there is any one right way for a State to set up its capital
sentencing scheme. See Pulley v. Harris, 465 U.S. 37 (1984); Zant v.
Stephens, 462 U.S., at 884; Gregg v. Georgia, 428 U.S., at 195 (joint
opinion). The Court twice has concluded that Florida has struck a
reasonable balance between sensitivity to the individual and his
circumstances and ensuring that the penalty is not imposed arbitrarily or
discriminatorily. Barclay v. Florida, 463 U.S. 939 (1983); Proffitt v.
Florida, 428 U.S. 242, 252 (1976) (joint opinion of Stewart,
POWELL, and STEVENS, JJ.). We are not persuaded that placing the
responsibility on a trial Judge to impose the sentence in a capital case
is so fundamentally at odds with contemporary standards of fairness and
decency that Florida must be required to alter its scheme and give final
authority to the jury to make the life-or-death decision. |
| [53] | IV |
| [54] | Our determination that there is no constitutional imperative that a
jury have the responsibility of deciding whether the death penalty should
be imposed also disposes of petitioner's double jeopardy challenge to the
jury-override procedure. If a Judge may be vested with sole responsibility
for imposing the penalty, then there is nothing constitutionally wrong
with the Judge's exercising that responsibility after receiving the advice
of the jury. The advice does not become a judgment simply because it comes
from the jury. |
| [55] | V |
| [56] | Petitioner's final challenge is to the application of the standard the
Florida Supreme Court has announced for allowing a trial court to override
a jury's recommendation of life. See Tedder v. State, 322 So. 2d 908, 910
(1975). This Court already has recognized the significant safeguard the
Tedder standard affords a capital defendant in Florida. See Dobbert v.
Florida, 432 U.S. 282, 294-295 (1977). See also Proffitt, 428 U.S., at 249
(joint opinion). We are satisfied that the Florida Supreme Court takes
that standard seriously and has not hesitated to reverse a trial court if
it derogates the jury's role. See Richardson v. State, 437 So. 2d 1091,
1095 (Fla. 1983); Miller v. State, 332 So. 2d 65 (Fla. 1976). Our
responsibility, however, is not to second-guess the deference accorded the
jury's recommendation in a particular case, but to ensure that the result
of the process is not arbitrary or discriminatory. |
| [57] | We see nothing that suggests that the application of the jury-override
procedure has resulted in arbitrary or discriminatory application of the
death penalty, either in general or in this particular case. Regardless of
the jury's recommendation, the trial Judge is required to conduct an
independent review of the evidence and to make his own findings regarding
aggravating and mitigating circumstances. If the Judge imposes a sentence
of death, he must set forth in writing the findings on which the sentence
is based. Fla. Stat. § 921.141(3) (1983). The Florida Supreme Court must
review every capital sentence to ensure that the penalty has not been
imposed arbitrarily or capriciously. § 921.141(4). As JUSTICE STEVENS
noted in Barclay, there is no evidence that the Florida Supreme Court has
failed in its responsibility to perform meaningful appellate review of
each death sentence, either in cases in which both the jury and the trial
court have concluded that death is the appropriate penalty or in cases
when the jury has recommended life and the trial court has overridden the
jury's recommendation and sentenced the defendant to death. See Barclay v.
Florida, 463 U.S., at 971-972, and n. 23 (opinion Concurring in
judgment). |
| [58] | In this case, the trial Judge based his decision on the presence of
two statutory aggravating circumstances. The first, that the defendant had
previously been convicted of another capital felony or of a felony
involving the use or threat of violence to the person, § 921.141(5), was
based on evidence not available to the advisory jury but, under Florida
law, was properly considered by the trial Judge. See White v. State, 403
So. 2d 331, 339-340 (1981). Petitioner's prior conviction was for rape and
aggravated battery. The trial Judge also found that the murder in this
case was heinous, atrocious, and cruel. The witness who accompanied
petitioner to the dump site where the victim's body was found testified
that the body was covered with blood and that there were cuts on the
breasts, stomach, and chest. The witness also testified that petitioner
had recounted his torture of the victim while she was still living. The
trial Judge found no mitigating circumstances. |
| [59] | The Florida Supreme Court reviewed petitioner's sentence and concluded
that the death penalty was properly imposed under state law. It is not our
function to decide whether we agree with the majority of the advisory jury
or with the trial Judge and the Florida Supreme Court. See Barclay v.
Florida, 463 U.S., at 968 (STEVENS, J., Concurring in judgment). Whether
or not "reasonable people" could differ over the result here, we see
nothing irrational or arbitrary about the imposition of the death penalty
in this case. |
| [60] | The judgment of the Supreme Court of Florida is
affirmed. |
| [61] | It is so ordered. |
| [62] | JUSTICE WHITE, with whom JUSTICE REHNQUIST joins, Concurring in part
and Concurring in the judgment. |
| [63] | I join the Court's opinion and judgment except for the dictum on page
456 of the opinion indicating that Beck v. Alabama, 447 U.S. 625 (1980),
requires a state court in the trial of a capital case to permit the
defendant to waive the statute of limitations and to give a
lesser-included-offense instruction as to an offense that would otherwise
be barred. |
| [64] | JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join,
Concurring in part and Dissenting in part. |
| [65] | In this case, as in 82 others arising under the capital punishment
statute enacted by Florida in 1972, the trial Judge sentenced the
defendant to death after a jury had recommended a sentence of life
imprisonment. The question presented is whether the Constitution of the
United States permits petitioner's execution when the prosecution has been
unable to persuade a jury of his peers that the death penalty is the
appropriate punishment for his crime. |
| [66] | The Fourteenth Amendment provides that no State may "deprive any
person of life, liberty, or property without due process of law." The
concept of due process permits no such deprivation -- whether of life,
liberty, or property -- to occur if it is grossly excessive in the
particular case -- if it is "cruel and unusual punishment" proscribed by
the Eighth Amendment. *fn1 The
differences between the three categories, however, are not mere matters of
degree. For although we look to state law as the source of the right to
property, "it is not the source of liberty, and surely not the exclusive
source." Meachum v. Fano, 427 U.S. 215, 230 (1976) (STEVENS, J.,
Dissenting). See Board of Regents v. Roth, 408 U.S. 564, 572, 577 (1972).
Because a deprivation of liberty is qualitatively different from a
deprivation of property, heightened procedural safeguards are a hallmark
of Anglo-American criminal jurisprudence. But that jurisprudence has also
unequivocally established that a State's deprivation of a person's life is
also qualitatively different from any lesser intrusion on
liberty. |
| [67] | In the 12 years since Furman v. Georgia, 408 U.S. 238 (1972), every
Member of this Court has written or joined at least one opinion endorsing
the proposition that because of its severity and irrevocability, the death
penalty is qualitatively different from any other punishment, and hence
must be accompanied by unique safeguards to ensure that it is a justified
response to a given offense. *fn2
Because it is the one punishment that cannot be prescribed by a rule of
law as Judges normally understand such rules, but rather is ultimately
understood only as an expression of the community's outrage -- its sense
that an individual has lost his moral entitlement to live *fn3 -- I am convinced that the danger of an excessive
response can only be avoided if the decision to impose the death penalty
is made by a jury rather than by a single governmental official. This
conviction is consistent with the judgment of history and the current
consensus of opinion that juries are better equipped than Judges to make
capital sentencing decisions. The basic explanation for that consensus
lies in the fact that the question whether a sentence of death is
excessive in the particular circumstances of any case is one that must be
answered by the decisionmaker that is best able to "express the conscience
of the community on the ultimate question of life or death." Witherspoon
v. Illinois, 391 U.S. 510, 519 (1968) (footnote omitted). |
| [68] | I |
| [69] | Florida has adopted an unusual "trifurcated" procedure for identifying
the persons convicted of a capital felony who shall be sentenced to death.
It consists of a determination of guilt or innocence by the jury, an
advisory sentence by the jury, and an actual sentence imposed by the trial
Judge. Proffitt v. Florida, 428 U.S. 242, 248-250 (1976) (opinion of
Stewart, POWELL, and STEVENS, JJ.). *fn4 The Judge's determination is then reviewed by the
Florida Supreme Court to determine whether the aggravating and mitigating
circumstances found by the trial Judge are supported by the evidence and
justify a sentence of death. Id., at 250-251, 253. |
| [70] | Because this procedure was adopted by a democratically elected
legislature, "we presume its validity," Gregg v. Georgia, 428 U.S. 153,
175 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
Nevertheless, this presumption could not be conclusive, or the Eighth
Amendment would be effectively read out of the Constitution. The Eighth
Amendment is based on the recognition that there are occasions on which
the State or Federal Governments will undertake to punish in a manner
inconsistent with a fundamental value that the Framers wished to secure
against legislative majorities. Thus, the Court correctly states:
"'Although the judgments of legislatures, juries, and prosecutors weigh
heavily in the balance, it is ultimately for us to Judge whether the
Eighth Amendment' is violated by a challenged practice." Ante, at 464
(quoting Enmund v. Florida, 458 U.S. 782, 797 (1982)). Our cases have
established the appropriate mode of analysis -- there must be "an
assessment of contemporary values concerning the infliction of a
challenged sanction," to determine whether punishment has been imposed in
a way that offends an "[evolving standard] of decency," Gregg, 428 U.S.,
at 173 (opinion of Stewart, POWELL, and STEVENS, JJ.). *fn5 |
| [71] | II |
| [72] | Inquiry into the practices adopted by the majority of legislatures
provides a logical starting point for determining whether the practice at
issue here comports with the Eighth Amendment: " measures adopted by the
people's chosen representatives weigh heavily in ascertaining contemporary
standards of decency." Woodson v. North Carolina, 428 U.S. 280, 294-295
(1976) (plurality opinion). *fn6 |
| [73] | The judgment of the people's representatives firmly supports the
Conclusion that the jury ought to make the life-or-death decision
necessary in capital cases. "Except for four States that entirely
abolished capital punishment in the middle of the last century, every
American jurisdiction has at some time authorized jury sentencing in
capital cases." McGautha v. California, 402 U.S. 183, 200, n. 11 (1971).
For example, of 42 jurisdictions that employed discretionary capital
sentencing in 1948, only 3 did not require its imposition through jury
determinations which the trial Judge could not disregard. *fn7 At the time of Furman, only 2 jurisdictions of the
41 which employed discretionary capital punishment permitted a death
sentence to be imposed without the consent of a jury. *fn8 Currently, as the Court explains, ante, at 463, 30
of the 37 jurisdictions with capital punishment statutes require that the
decision to impose the death penalty be made with the consent of a jury,
and only 3 jurisdictions permit an override of a jury's recommendation of
leniency. |
| [74] | In Enmund v. Florida, 458 U.S. 782 (1982), we relied on the fact that
only one-third of the jurisdictions with capital statutes permitted the
imposition of the death penalty on a defendant who had not intended the
death of his victim as strong support for our Conclusion that in such
cases the imposition of capital punishment offends contemporary standards
of decency and therefore violates the Eighth Amendment. See id., at 792.
Here the level of consensus is even greater, thereby demonstrating a
strong community feeling that it is only decent and fair to leave the
life-or-death decision to the authentic voice of the community -- the jury
-- rather than to a single governmental official. Examination of the
historical and contemporary evidence thus unequivocally supports the
Conclusion reached by the Royal Commission on Capital Punishment three
decades ago: |
| [75] | "For our part, we have no hesitation in agreeing with the many
witnesses who considered that, in this country at least, the
responsibility of deciding whether a person convicted of murder should be
sentenced to death or to a lesser punishment is too heavy a burden to
impose on any single individual. The sentence of death differs absolutely,
not in degree, from any other sentence; and it would be wholly
inconsistent with our traditional approach to such issues to lay on the
shoulders of the Judge a responsibility so grave and invidious. It is more
in accord with the instinct of our people to entrust to the men and women
of the jury a joint responsibility for decisions which will affect the
life of the accused." Royal Commission on Capital Punishment, 1949-1953,
Report 193-194 (1953). *fn9 |
| [76] | III |
| [77] | Florida is one of only a few States that permits the imposition of a
sentence of death without the consent of a jury. Examination of the
reasons for Florida's decision illuminates the extent to which this
statute can be considered consistent with contemporary standards of
fairness and decency. |
| [78] | During the century between 1872 and 1972 Florida law required the jury
to make the capital sentencing decision. The change in the decisionmaking
process that occurred in 1972 was not motivated by any identifiable change
in the legislature's assessment of community values; rather, it was a
response to this Court's decision in Furman. In Furman a plurality of the
Court had condemned the arbitrary pattern of results under the
then-existing capital punishment statutes. *fn10 A number of States responded to Furman by
reducing the discretion granted to juries not because of some deeply
rooted communal value, but rather in an attempt to comply with the several
opinions in that case. *fn11 In
Dobbert v. Florida, 432 U.S. 282 (1977), we specifically noted that the
Florida jury override now under challenge was adopted in an attempt to
comply with Furman, see 432 U.S., at 294-297. *fn12 We have subsequently made it clear that jury
sentencing is not inconsistent with Furman, *fn13 thereby undermining the basis for the legislative
judgment challenged here. A legislative choice that is predicated on this
sort of misunderstanding is not entitled to the same presumption of
validity as one that rests wholly on a legislative assessment of sound
policy and community sentiment. *fn14 |
| [79] | Even apart from its history, there is reason to question whether the
Florida statute can be viewed as representing a judgment that judicial
sentencing is consistent with contemporary standards. The administration
of the statute actually reflects a deeply rooted impulse to legitimate the
process through involvement of the jury. That is made evident not only
through the use of an advisory jury, *fn15 but also by the fact that the statute has been
construed to forbid a trial Judge to reject the jury's decision unless he
finds that the evidence favoring a sentence of death is so clear and
convincing that virtually no reasonable person could impose a lesser
sentence. *fn16 Thus, the Florida
experience actually lends support to the Conclusion that American
jurisprudence has considered the use of the jury to be important to the
fairness and legitimacy of capital punishment. |
| [80] | IV |
| [81] | The Court correctly notes that sentencing has traditionally been a
question with which the jury is not concerned. Ante, at 459. Deciding upon
the appropriate sentence for a person who has been convicted of a crime is
the routine work of Judges. By reason of this experience, as well as their
training, Judges presumably perform this function well. But, precisely
because the death penalty is unique, the normal presumption that a Judge
is the appropriate sentencing authority does not apply in the capital
context. The decision whether or not an individual must die is not one
that has traditionally been entrusted to Judges. This tradition, which has
marked a sharp distinction between the usual evaluations of judicial
competence with respect to capital and non-capital sentencing, not only
eliminates the general presumption that judicial sentencing is appropriate
in the capital context, but also in itself provides reason to question
whether assigning this role to governmental officials and not juries is
consistent with the community's moral sense. *fn17 |
| [82] | While tradition and contemporary practice in most American
jurisdictions indicate that capital sentencing by Judges offends a moral
sense that this unique kind of judgment must be made by a more authentic
voice of the community, nevertheless the Court is correct to insist that
these factors cannot be conclusive, or the Eighth Amendment would prevent
any innovation or variation in the administration of the . Ante, at 464.
Therefore, a more focused inquiry into the Eighth Amendment implications
of the decision to put an accused to death, and the jury's relationship to
those implications, is essential. |
| [83] | V |
| [84] | Punishment may be "cruel and unusual" because of its barbarity or
because it is "excessive" or "disproportionate" to the offense. *fn18 In order to evaluate a claim that
a punishment is excessive, one must first identify the reasons for
imposing it. In general, punishment may rationally be imposed for four
reasons: (1) to rehabilitate the offender; (2) to incapacitate him from
committing offenses in the future; (3) to deter others from committing
offenses; or (4) to assuage the victim's or the community's desire for
revenge or retribution. The first of these purposes is obviously
inapplicable to the death sentence. The second would be served by
execution, but in view of the availability of imprisonment as an
alternative means of preventing the defendant from violating the law in
the future, the death sentence would clearly be an excessive response to
this concern. *fn19 We are thus left
with deterrence and retribution as the justifications for capital
punishment. *fn20 |
| [85] | A majority of the Court has concluded that the general deterrence
rationale adequately justifies the imposition of capital punishment at
least for certain classes of offenses for which the legislature may
reasonably conclude that the death penalty has a deterrent effect.
However, in reaching this Conclusion we have stated that this is a
judgment peculiarly within the competence of legislatures and not the
judiciary. *fn21 Thus, the deterrence
rationale cannot be used to support the use of judicial as opposed to jury
discretion in capital sentencing, at least absent some finding, which the
Florida Legislature has not purported to make, that Judges are better at
gauging the general deterrent effect of a capital sentence than are
juries. |
| [86] | Moreover, the deterrence rationale in itself argues only for ensuring
that the death sentence be imposed in a significant number of cases and
remain as a potential social response to the defined conduct. Since the
decision whether to employ jury sentencing does not change the number of
cases for which death is a possible punishment, the use of judicial
sentencing cannot have significant impact on the deterrent effect of the
statute to justify its use; *fn22 a
murderer's calculus will not be affected by whether the death penalty is
imposed by a Judge or jury. *fn23 |
| [87] | Finally, even though the deterrence rationale may provide a basis for
identifying the defendants eligible for the death penalty, our cases
establish that the decision whether to condemn a man to death in a given
case may not be the product of deterrence considerations alone. Despite
the fact that a legislature may rationally conclude that mandatory capital
punishment will have a deterrent effect for a given class of aggravated
crimes significantly greater than would discretionary capital sentencing,
we have invalidated mandatory capital punishment statutes, as well as
statutes that do not permit the trier of fact to consider any mitigating
circumstance, even if unrelated to or perhaps inconsistent with the
deterrent purposes of the penalty. It is now well settled that the trier
of fact in a capital case must be permitted to weigh any consideration --
indeed any aspect of the defendant's crime or character -- relevant to the
question whether death is an excessive punishment for the offense. *fn24 Thus, particular capital
sentencing decisions cannot rest entirely on deterrent
considerations. |
| [88] | In the context of capital felony cases, therefore, the question
whether the death sentence is an appropriate, non-excessive response to
the particular facts of the case will depend on the retribution
justification. The nature of that justification was described in Gregg
: |
| [89] | "In part, capital punishment is an expression of society's moral
outrage at particularly offensive conduct. This function may be
unappealing to many, but it is essential in an ordered society that asks
its citizens to rely on legal processes rather than self-help to vindicate
their wrongs." 428 U.S., at 183-184 (opinion of Stewart,
POWELL, and STEVENS, JJ.) (footnote omitted). *fn25 |
| [90] | Thus, in the final analysis, capital punishment rests on not a legal
but an ethical judgment -- an assessment of what we called in Enmund the
"moral guilt" of the defendant. 458 U.S., at 800-801. And if the decision
that capital punishment is the appropriate sanction in extreme cases is
justified because it expresses the community's moral sensibility -- its
demand that a given affront to humanity requires retribution -- it
follows, I believe, that a representative cross section of the community
must be given the responsibility for making that decision. In no other way
can an unjustifiable risk of an excessive response be
avoided. |
| [91] | VI |
| [92] | The authors of our federal and state constitutional guarantees
uniformly recognized the special function of the jury in any exercise of
plenary power over the life and liberty of the citizen. In our
jurisprudence, the jury has always played an essential role in
legitimating the system of criminal Justice. |
| [93] | "The guarantees of jury trial in the Federal and State Constitutions
reflect a profound judgment about the way in which law should be enforced
and Justice administered. A right to jury trial is granted to criminal
defendants in order to prevent oppression by the Government. Those who
wrote our constitutions knew from history and experience that it was
necessary to protect against unfounded criminal charges brought to
eliminate enemies and against Judges too responsive to the voice of higher
authority. The framers of the constitutions strove to create an
independent judiciary but insisted upon further protection against
arbitrary action. Providing an accused with the right to be tried by a
jury of his peers gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or eccentric
Judge. If the defendant preferred the common-sense judgment of a jury to
the more tutored but perhaps less sympathetic reaction of the single
Judge, he was to have it. Beyond this, the jury trial provisions in the
Federal and State Constitutions reflect a fundamental decision about the
exercise of official power -- a reluctance to entrust plenary powers over
the life and liberty of the citizen to one Judge or to a group of Judges.
Fear of unchecked power, so typical of our State and Federal Governments
in other respects, found expression in the in this insistence upon
community participation in the determination of guilt or innocence."
Duncan v. Louisiana, 391 U.S. 145, 155-156 (1968) (footnote omitted). *fn26 |
| [94] | Thus, the jury serves to ensure that the criminal process is not
subject to the unchecked assertion of arbitrary governmental power;
community participation is "critical to public confidence in the fairness
of the criminal Justice system." Taylor v. Louisiana, 419 U.S. 522, 530
(1975). *fn27 |
| [95] | The same consideration that supports a constitutional entitlement to a
trial by a jury rather than a Judge at the guilt or innocence stage -- the
right to have an authentic representative of the community apply its lay
perspective to the determination that must precede a deprivation of
liberty -- applies with special force to the determination that must
precede a deprivation of life. In many respects capital sentencing
resembles a trial on the question of guilt, involving as it does a
prescribed burden of proof of given elements through the adversarial
process. *fn28 But more important
than its procedural aspects, the life-or-death decision in capital cases
depends upon its link to community values for its moral and constitutional
legitimacy. In Witherspoon v. Illinois, 391 U.S. 510 (1968), after
observing that "a jury that must choose between life imprisonment and
capital punishment can do little more -- and must do nothing less -- than
express the conscience of the community on the ultimate question of life
or death," id., at 519 (footnote omitted), the Court added: |
| [96] | " of the most important functions any jury can perform in making such
a selection is to maintain a link between contemporary community values
and the penal system -- a line without which the determination of
punishment could hardly reflect 'the evolving standards of decency that
mark the progress of a maturing society.'" Id., at 519, n. 15 (quoting
Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). *fn29 |
| [97] | That the jury is central to the link between capital punishment and
the standards of decency contained in the Eighth Amendment is amply
demonstrated by history. Under the common law capital punishment was
mandatory for all felonies, and even through the last century it was
mandatory for large categories of offenses. " of the most significant
developments in our society's treatment of capital punishment has been the
rejection of the common-law practice of inexorably imposing a death
sentence upon every person convicted of a specified offense." Woodson, 428
U.S., at 301 (plurality opinion). The jury played a critical role in this
process. Juries refused to convict in cases in which they felt the death
penalty to be morally unjustified. This forced the adoption of more
enlightened capital punishment statutes that were more in accord with the
community's moral sensibilities: |
| [98] | "At least since the Revolution, American jurors have, with some
regularity, disregarded their oaths and refused to convict defendants
where a death sentence was the automatic consequence of a guilty verdict.
As we have seen, the initial movement to reduce the number of capital
offenses and to separate murder into degrees was prompted in part by the
reaction of jurors as well as by reformers who objected to the imposition
of death as the penalty for any crime. Nineteenth century journalists,
statesmen, and jurists repeatedly observed that jurors were often deterred
from convicting palpably guilty men of first-degree murder under mandatory
statutes. Thereafter, continuing evidence of jury reluctance to convict
persons of capital offenses in mandatory death penalty jurisdictions
resulted in legislative authorization of discretionary jury sentencing. .
. ." Id., at 293 (footnote omitted). *fn30 |
| [99] | Thus the lesson history teaches is that the jury -- and in particular
jury sentencing -- has played a critical role in ensuring that capital
punishment is imposed in a manner consistent with evolving standards of
decency. This is a lesson of constitutional magnitude, and one that was
forgotten during the enactment of the Florida statute. |
| [100] | VII |
| [101] | The importance of the jury to the legitimacy of the capital sentencing
decision has been a consistent theme in our evaluation of post- Furman
capital punishment statutes. In Gregg, we reaffirmed the link between
evolving standards of decency and the imposition of capital punishment
provided by the jury, as well as the traditional function of the jury in
ensuring that the death penalty is assessed only in cases where its
imposition is consistent with Eighth Amendment standards: |
| [102] | "The jury also is a significant and reliable objective index of
contemporary values because it is so directly involved. The Court has said
that 'one of the most important functions any jury can perform in making .
. . a selection [between life imprisonment and death for a defendant
convicted in a capital case] is to maintain a link between contemporary
community values and the penal system.' It may be true that evolving
standards have influenced juries in recent decades to be more
discriminating in imposing the sentence of death. But the relative
infrequency of jury verdicts imposing the death sentence does not indicate
rejection of capital punishment per se. Rather, the reluctance of juries
in many cases to impose the sentence may well reflect the humane feeling
that this most irrevocable of sanctions should be reserved for a small
number of extreme cases." 428 U.S., at 181-182 (opinion of
Stewart, POWELL, and STEVENS, JJ.) (footnote and citations
omitted) (quoting Witherspoon, 391 U.S., at 519, n. 15). *fn31 |
| [103] | Highly relevant to the present inquiry is the invalidation of post-
Furman statutes requiring mandatory death sentences because they broke the
critical link provided by the jury between the death penalty and community
standards: |
| [104] | " of the incompatibility of mandatory death penalties with
contemporary values is provided by the results of jury sentencing under
discretionary statutes. In Witherspoon v. Illinois, 391 U.S. 510 (1968),
the Court observed that 'one of the most important functions any jury can
perform' in exercising its discretion to choose 'between life imprisonment
and capital punishment' is 'to maintain a link between contemporary
community values and the penal system.' Id., at 519, and n. 15. Various
studies indicate that even in first-degree murder cases juries with
sentencing discretion do not impose the death penalty 'with any great
frequency.'" Woodson, 428 U.S., at 295 (plurality opinion) (footnote
omitted) (quoting H. Kalven & H. Zeisel, The American Jury 436
(1966)). |
| [105] | We therefore concluded that "North Carolina's mandatory death penalty
statute for first-degree murder departs markedly from contemporary
standards respecting the imposition of the punishment of death and thus
cannot be applied consistently with the Eighth and Fourteenth Amendments'
requirement that the State's power to punish 'be exercised within the
limits of civilized standards.'" 428 U.S., at 301 (footnote omitted)
(quoting Trop v. Dulles, 356 U.S., at 100 (plurality
opinion)). |
| [106] | That the jury provides a better link to community values than does a
single Judge is supported not only by our cases, but also by common sense.
Juries -- comprised as they are of a fair cross section of the community
*fn32 -- are more representative
institutions than is the judiciary; they reflect more accurately the
composition and experiences of the community as a whole, and inevitably
make decisions based on community values more reliably, than can that
segment of the community that is selected for service on the bench. *fn33 Indeed, as the preceding
Discussion demonstrates, the belief that juries more accurately reflect
the conscience of the community than can a single Judge is the central
reason that the jury right has been recognized at the guilt stage in our
jurisprudence. This same belief firmly supports the use of juries in
capital sentencing, in order to address the Eighth Amendment's concern
that capital punishment be administered consistently with community
values. In fact, the available empirical evidence indicates that Judges
and juries do make sentencing decisions in capital cases in significantly
different ways, *fn34 thus supporting
the Conclusion that entrusting the capital decision to a single Judge
creates an unacceptable risk that the decision will not be consistent with
community values. |
| [107] | Thus, the legitimacy of capital punishment in light of the Eighth
Amendment's mandate concerning the proportionality of punishment
critically depends upon whether its imposition in a particular case is
consistent with the community's sense of values. Juries have historically
been, and continue to be, a much better indicator as to whether the death
penalty is a disproportionate punishment for a given offense in light of
community values than is a single Judge. If the prosecutor cannot convince
a jury that the defendant deserves to die, there is an unjustifiable risk
that the imposition of that punishment will not reflect the community's
sense of the defendant's "moral guilt." The Florida statute is thus
inconsistent with "the need for reliability in the determination that
death is the appropriate punishment in a specific case," Woodson, 428
U.S., at 305 (plurality opinion); it "]introduces] a level of uncertainty
and unreliability into the factfinding process that cannot be tolerated in
a capital case." Beck v. Alabama, 447 U.S. 625, 643 (1980). As a result,
the statute "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." Lockett v. Ohio,
438 U.S. 586, 605 (1978) (plurality opinion). Once a State, through
specification of aggravating circumstances and meaningful appellate review
of jury verdicts, develops a capital sentencing process which in the
aggregate distinguishes between those who may live and those who will die
in some acceptably non-arbitrary way, *fn35 Furman and its progeny provide no warrant for --
indeed do not tolerate -- the exclusion from the capital sentencing
process of the jury and the critical contribution only it can make toward
linking the administration of capital punishment to community
values. |
| [108] | VIII |
| [109] | History, tradition, and the basic structure and purpose of the jury
system persuade me that jury sentencing is essential if the administration
of capital punishment is to be governed by the community's evolving
standards of decency. The constitutional legitimacy of capital punishment
depends upon the extent to which the process is able to produce results
which reflect the community's moral sensibilities. Judges simply cannot
acceptably mirror those sensibilities -- the very notion of a right to
jury trial is premised on that realization. Judicial sentencing in capital
cases cannot provide the type of community participation in the process
upon which its legitimacy depends. |
| [110] | If the State wishes to execute a citizen, it must persuade a jury of
his peers that death is an appropriate punishment for his offense. If it
cannot do so, then I do not believe it can be said with an acceptable
degree of assurance that imposition of the death penalty would be
consistent with the community's sense of proportionality. Thus, in this
case Florida has authorized the imposition of disproportionate punishment
in violation of the Eighth and Fourteenth Amendments. Accordingly, while I
join Part II of the opinion of the Court, with respect to the remainder of
the Court's opinion and its judgment, I respectfully
Dissent. |
|
| |
| Opinion Footnotes | |
|
| |
| [111] | * Ramsey Clark, Richard W. Ervin, and Thomas A. Horkan, Jr., filed a
brief pro se as amici curiae. |
| [112] | *fn1 Under the current Florida
statute, there is no limitation period on capital and life felonies. There
are, however, a 4-year limitation period on first-degree felonies, and a
3-year limit on prosecutions for all other felonies. Fla. Stat. § 775.15
(1983). Under Florida law, the statute of limitations in effect at the
time of the alleged offense governs. Florida ex rel. Manucy v. Wadsworth,
293 So. 2d 345, 347 (Fla. 1974). |
| [113] | *fn2 The court instructed the jury
as follows: |
| [114] | "Ladies and gentlemen, it is your duty to agree upon a verdict if you
can do so without violating conscientiously held convictions that are
based on the evidence or lack of evidence. No juror, from mere pride or
opinion hastily formed or expressed, should refuse to agree. Yet, no
juror, simply for the purpose of terminating a case, should acquiesce in a
Conclusion that is contrary to his own conscientiously held view of the
evidence. You should listen to each other's views, talk over your
differences of opinion in a spirit of fairness and candor and, if
possible, resolve your differences and come to a common Conclusion, so
that a verdict may be reached and that this case may be disposed of." Tr.
817-818. |
| [115] | This instruction is commonly referred to as an Allen or "hammer"
charge. See Allen v. United States, 164 U.S. 492 (1896). |
| [116] | *fn3 By agreement of the parties,
the jury was not polled. Sentencing Tr. 28-29 (Jan. 26,
1976). |
| [117] | *fn4 The Florida capital sentencing
statute in effect at the time of petitioner's trial, January 1976, is not
identical to that currently in effect. In 1976, the statute directed the
sentencer to determine whether statutory aggravating circumstances were
outweighed by statutory mitigating circumstances. See 1972 Fla. Laws, ch.
72-724. The current statute directs the sentencer to determine whether
statutory aggravating circumstances are outweighed by any mitigating
circumstances. §§ 921.141(2)(b), (3)(b) (1983), as amended by 1979 Fla.
Laws, ch. 79-353. There is no suggestion in this case that either the jury
or the trial Judge was precluded from considering any non-statutory
mitigating evidence. Cf. Barclay v. Florida, 463 U.S. 939, 947, n. 2
(1983) (STEVENS, J., Concurring in judgment). |
| [118] | *fn5 We note that although the
Court has not specifically addressed the question presented here, it has
assumed that if a defendant is constitutionally entitled to a lesser
included offense instruction, the trial court has authority to convict him
of the lesser included offense. See Keeble v. United States, 412 U.S. 205
(1973); id., at 215-217 (Stewart, J., Dissenting on the
ground that the Court's decision improperly conferred jurisdiction in the
federal district court over crimes not enumerated in the Major Crimes Act,
18 U. S. C. §§ 1153, 3242). |
| [119] | *fn6 There is no doubt about
petitioner's understanding of the implications of his refusal to waive the
statute of limitations. The following colloquy occurred in open
court: |
| [120] | "THE COURT: Do you understand that while the statute of limitations
has run on the Court submitting to the jury lesser included verdicts
representing the charges of second-degree murder and third-degree murder,
manslaughter, that you who has the benefit of the statute of limitations
can waive that benefit and, of course -- and then have the Court submit
the case to the jury on the first-degree, second-degree, third-degree and
manslaughter. |
| [121] | "If you don't waive the statute of limitations, then the Court would
submit to the jury only on the one charge, the main charge, which is
murder in the first degree, and the sentencing alternatives are as
[defense counsel] stated them. Do you understand that? |
| [122] | "MR. SPAZIANO: Yes, your Honor. |
| [123] | "THE COURT: Are you sure? |
| [124] | "MR. SPAZIANO: I understand what I'm waiving. I was brought here on
first-degree murder, and I figure if I'm guilty of this, I should be
killed." Tr. 753-754. |
| [125] | *fn7 Because the death sentence is
unique in its severity and in its irrevocability, Gregg v. Georgia, 428
U.S. 153, 187 (1976) (joint opinion of Stewart, POWELL, and
STEVENS, JJ.); Furman v. Georgia, 408 U.S. 238, 286-291 (1972) (BRENNAN,
J., Concurring), the Court has carefully scrutinized the States' capital
sentencing schemes to minimize the risk that the penalty will be imposed
in error or in an arbitrary and capricious manner. There must be a valid
penological reason for choosing from among the many criminal defendants
the few who are sentenced to death. Zant v. Stephens, 462 U.S. 862,
876-877 (1983); Enmund v. Florida, 458 U.S. 782, 788-789 (1982); Godfrey
v. Georgia, 446 U.S. 420, 428-429 (1980); Gardner v. Florida, 430 U.S.
349, 360-361 (1977) (plurality opinion); Proffitt v. Florida, 428 U.S.
242, 254-260 (1976) (joint opinion of Stewart, POWELL, and
STEVENS, JJ.); Gregg v. Georgia, 428 U.S., at 196-207; Furman v. Georgia,
supra. At the same time, the Court has insisted that the sentencing
decision be based on the facts and circumstances of the individual and his
crime. Zant v. Stephens, 462 U.S., at 879; Eddings v. Oklahoma, 455 U.S.,
at 110-112; Lockett v. Ohio, 438 U.S. 586, 601-605 (1978) (plurality
opinion); Gregg v. Georgia, 428 U.S., at 197; Woodson v. North Carolina,
428 U.S. 280, 303-304 (1976) (plurality opinion). |
| [126] | *fn8 Petitioner's efforts to
distinguish the considerations relevant to imposition of a capital or a
non-capital sentence bear more on the jury's ability to function as the
sentencer in a capital case than on the constitutionality of the Judge's
doing so. We have no particular quarrel with the proposition that juries,
perhaps, are more capable of making the life-or-death decision in a
capital case than of choosing among the various sentencing options
available in a non-capital case. See ABA Standards for Criminal Justice
18-1.1, Commentary, pp. 18.21-18.22 (2d ed. 1980) (reserving capital
sentencing from general disapproval of jury involvement in sentencing).
Sentencing by the trial Judge certainly is not required by Furman v.
Georgia, supra. See Gregg v. Georgia, 428 U.S., at 188-195 (joint
opinion). What we do not accept is that, because juries may sentence, they
constitutionally must do so. |
| [127] | *fn9 Twenty-nine jurisdictions
allow a death sentence only if the jury recommends death, unless the
defendant has requested trial or sentencing by the court. See Ark. Stat.
Ann. § 41-1301 (1977); Cal. Penal Code Ann. § 190.3 (West Supp. 1984);
Colo. Rev. Stat. § 16-11-103 (1978 and Supp. 1983); Conn. Gen. Stat. §
53a-46a (1983); Del. Code Ann., Tit. 11, § 11-4209 (1979 and Supp. 1982);
Ga. Code Ann. §§ 17-10-30 to 17-10-32 (1982); Ill. Rev. Stat., ch. 38,
para. 9-1 (Supp. 1984); Ky. Rev. Stat. § 532.025(1)(b) (Supp. 1982); La.
Code Crim. Proc. Ann., Art. 905.8 (West Supp. 1984); Md. Ann. Code, Art.
27, § 413 (Supp. 1983); Mass. Gen. Laws Ann., ch. 279, §§ 68, 70 (West
Supp. 1984); Miss. Code Ann. § 99-19-101 (Supp. 1983); Mo. Rev. Stat. §
565.006 (Supp. 1982); N. H. Rev. Stat. Ann. § 630.5 (Supp. 1983); N. J.
Stat. Ann. § 2C:11-3(c) (West 1982); N. M. Stat. Ann. § 31-20A-3 (1981);
N. C. Gen. Stat. § 15A-2000 (1983); Ohio Rev. Code Ann. § 2929.03 (1982);
Okla. Stat., Tit. 21, § 701.11 (1981); 42 Pa. Cons. Stat. § 9711(f)
(1982); S. C. Code § 16-3-20 (Supp. 1983); S. D. Comp. Laws Ann. §
23A-27A-4 (1979); Tenn. Code Ann. § 39-2-203 (1982); Tex. Code Crim. Proc.
Ann., Art. 37.071 (Vernon 1981 and Supp. 1984); Utah Code Ann. § 76-3-207
(Supp. 1983); Va. Code § 19.2-264.4 (1983); Wash. Rev. Code § 10.95.030
(1983); Wyo. Stat. § 6-2-102 (1983); 49 U. S. C. App. § 1473(c). In
Nevada, the jury is given responsibility for imposing the sentence in a
capital case, but if the jury cannot agree, a panel of three Judges may
impose the sentence. Nev. Rev. Stat. §§ 175.554, 175.556 (1981). In
Arizona, Idaho, Montana, and Nebraska, the court alone imposes the
sentence. Ariz. Rev. Stat. Ann. § 13-703 (Supp. 1983-1984); Idaho Code §
19-2515 (1979); Mont. Code Ann. § 46-18-301 (1983); Neb. Rev. Stat. §
29-2520 (1979). Besides Florida, the only States that allow a Judge to
override a jury's recommendation of life are Alabama and Indiana. Ala.
Code § 13A-5-46 (1982); Ind. Code § 35-50-2-9 (Supp. 1984). |
| [128] | 1 See Solem v. Helm, 463 U.S. 277, 288-290 (1983). The Eighth
Amendment provides: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted." The Eighth
Amendment is incorporated in the Due Process Clause of the Fourteenth
Amendment. E. g., Robinson v. California, 370 U.S. 660, 666 (1962);
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (plurality
opinion). |
| [129] | 2 See Solem v. Helm, 463 U.S., at 289; id., at 306 (BURGER, C. J.,
Dissenting); Enmund v. Florida, 458 U.S. 782, 797 (1982); Beck v. Alabama,
447 U.S. 625, 637-638 (1980); Rummel v. Estelle, 445 U.S. 263, 272 (1980);
Lockett v. Ohio, 438 U.S. 586, 604-605 (1978) (plurality opinion); Coker
v. Georgia, 433 U.S. 584, 598 (1977) (plurality opinion); Gardner v.
Florida, 430 U.S. 349, 357-358 (1977) (plurality opinion); Gregg v.
Georgia, 428 U.S. 153, 188 (1976) (opinion of Stewart,
POWELL, and STEVENS, JJ.). |
| [130] | 3 "Death is truly an awesome punishment. The calculated killing of a
human being by the State involves, by its very nature, a denial of the
executed person's humanity. The contrast with the plight of a person
punished by imprisonment is evident. An individual in prison does not lose
'the right to have rights.' A prisoner retains, for example, the
constitutional rights to the free exercise of religion, to be free of
cruel and unusual punishments, and to treatment as a 'person' for purposes
of due process of law and the equal protection of the laws. A prisoner
remains a member of the human family. Moreover, he retains the right of
access to the courts. His punishment is not irrevocable. Apart from the
common charge, grounded upon the recognition of human fallibility, that
the punishment of death must inevitably be inflicted upon innocent men, we
know that death has been the lot of men whose convictions were
unconstitutionally secured in view of later, retroactively applied,
holdings of this Court. The punishment itself may have been
unconstitutionally inflicted, yet the finality of death precludes relief.
An executed person has indeed 'lost the right to have rights.' As one 19th
century proponent of punishing criminals by death declared, 'When a man is
hung, there is an end of our relations with him. His execution is a way of
saying, "You are not fit for this world, take your chance elsewhere."'"
Furman, 408 U.S., at 290 (BRENNAN, J., Concurring) (citation omitted)
(quoting Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763
(1864)). See also 408 U.S., at 306 (Stewart, J., Concurring)
("The penalty of death differs from all other forms of criminal
punishment, not in degree but in kind. It is unique in its total
irrevocability. It is unique in its rejection of rehabilitation of the
convict as a basic purpose of criminal Justice. And it is unique, finally,
in its absolute renunciation of all that is embodied in our concept of
humanity"). |
| [131] | 4 The Court correctly treats the question whether this procedure is
constitutional as an open one. The question has been explicitly reserved
for decision by the Court in the past. See Bell v. Ohio, 438 U.S. 637,
642-643, n. (1978) (plurality opinion); Lockett v. Ohio, 438 U.S., at 609,
n. 16 (plurality opinion). In Proffitt, in which we considered a number of
aspects of this statute, this precise issue did not arise since the
advisory jury had recommended that Proffitt be sentenced to death. 428
U.S., at 246 (opinion of Stewart, POWELL, and STEVENS, JJ.).
Thus, my description of Proffitt as containing a holding on this point in
Barclay v. Florida, 463 U.S. 939, 971 (1983) (STEVENS, J., Concurring in
judgment), was incorrect. Death sentences based on the trial Judge's
rejection of a jury's recommendation were vacated without considering this
question in Gardner v. Florida, 430 U.S. 349 (1977), and Arizona v.
Rumsey, 467 U.S. 203 (1984). A death sentence in a case in which the
advisory jury had recommended life imprisonment was upheld in Dobbert v.
Florida, 432 U.S. 282 (1977), but there certiorari was granted only to
consider the permissibility of the sentence under the Ex Post Facto
Clause, see id., at 284. Such a sentence was also upheld in Barclay, but
this issue was neither raised nor decided. |
| [132] | 5 See Enmund v. Florida, 458 U.S., at 813 (O'CONNOR, J., Dissenting);
Coker v. Georgia, 433 U.S., at 603-604 (POWELL, J., Concurring in judgment
in part and Dissenting in part); Woodson v. North Carolina, 428 U.S. 280,
288 (1976) (plurality opinion). There is another aspect to Eighth
Amendment analysis unrelated to contemporary standards of decency: "
Eighth Amendment demands more than that a challenged punishment be
acceptable to contemporary society. The Court also must ask whether it
comports with the basic concept of human dignity at the core of the
Amendment. . . . sanction imposed cannot be so totally without penological
justification that it results in the gratuitous infliction of suffering."
Gregg, 428 U.S., at 182-183 (opinion of Stewart, POWELL, and
STEVENS, JJ.) (citation omitted). See also Rhodes v. Chapman, 452 U.S.
337, 346 (1981); Estelle v. Gamble, 429 U.S. 97, 103 (1976). No one
contends, however, that judicial sentencing in capital cases results in
the gratuitous infliction of suffering so as to violate this aspect of the
Eighth Amendment. |
| [133] | 6 See also Solem v. Helm, 463 U.S., at 291-292; Enmund v. Florida, 458
U.S., at 789-793; Coker v. Georgia, 433 U.S., at 592-596 (plurality
opinion); Roberts v. Louisiana, 428 U.S. 325, 352-354 (1976) (WHITE, J.,
Dissenting); Gregg, 428 U.S., at 179-181 (opinion of
Stewart, POWELL, and STEVENS, JJ.). |
| [134] | 7 See Andres v. United States, 333 U.S. 740, 767-770 (1948)
(Frankfurter, J., Concurring). |
| [135] | 8 See Witherspoon v. Illinois, 391 U.S. 510, 525-527, and nn. 2-8
(1968) (opinion of Douglas, J.); Brief for United States as Amicus Curiae
in McGautha v. California, O. T. 1970, No. 203, and Crampton v. Ohio, O.
T. 1970, No. 204, pp. 36, 132-137. |
| [136] | 9 The British experience is particularly relevant since the Eighth
Amendment was derived from the Magna Carta and the English Declaration of
Rights. See Solem v. Helm, 463 U.S., at 284-285; Gregg, 428 U.S., at
169-170 (opinion of Stewart, POWELL, and STEVENS, JJ.);
Furman v. Georgia, 408 U.S. 238, 316-322 (1972) (MARSHALL, J.,
Concurring); Trop v. Dulles, 356 U.S. 86, 99-101 (1958) (plurality
opinion). |
| [137] | *fn10 See 408 U.S., at 249-257
(Douglas, J., Concurring); id., at 291-295 (BRENNAN, J., Concurring); id.,
at 309-310 (Stewart, J., Concurring); id., at 314 (WHITE,
J., Concurring). See also id., at 364-366 (MARSHALL, J.,
Concurring). |
| [138] | *fn11 See Lockett v. Ohio, 438
U.S., at 599-600 (plurality opinion); Woodson, 428 U.S., at 298-299
(plurality opinion). |
| [139] | *fn12 See also Ehrhardt &
Levinson, Florida's Legislative Response to Furman: An Exercise in
Futility?, 64 J. Crim. L. & C. 10 (1973). In this very case the
Florida Supreme Court said that "allowing the jury's recommendation to be
binding would violate Furman," 433 So. 2d 508, 512 (1983). See also
Johnson v. State, 393 So. 2d 1069, 1074 (Fla.) (per curiam), cert. denied,
454 U.S. 882 (1981); Douglas v. State, 373 So. 2d 895, 897 (Fla. 1979)
(per curiam). |
| [140] | *fn13 See Zant v. Stephens, 462
U.S. 862, 874-875 (1983); Gregg, 428 U.S., at 190-195 (opinion of
Stewart, POWELL, and STEVENS, JJ.); id., at 221-224 (WHITE,
J., Concurring in judgment). |
| [141] | *fn14 A separate reason for
discounting the normal presumption of validity is that the statute has not
worked as intended to protect the rights of the defendant. Although
technically only the Judge may impose a death sentence, in a practical
sense the accused confronts the jeopardy of a death sentence twice. If the
jury recommends death, an elected Florida Judge sensitive to community
sentiment would have an additional reason to follow that recommendation.
If there are any cases in which the jury override procedure has worked to
the defendant's advantage because the trial Judge rejected a jury's
recommendation of death, they have not been brought to our attention by
the Attorney General of Florida, who would presumably be aware of any such
cases. On the other hand, the fact that more persons identify with victims
of crime than with capital defendants inevitably encourages Judges who
must face election to reject a recommendation of leniency. The fact that
83 defendants persuaded juries to recommend mercy but were thereafter
sentenced to death under the Florida statute lends support to the thesis
that as a practical matter the prosecution is given two chances to obtain
a death sentence under the statute. |
| [142] | *fn15 In all capital cases, even
those in which the defendant pleaded guilty or waived a jury on the issue
of guilt or innocence, the Florida statute requires the enpanelment of an
advisory jury and that it render a sentence unless the advisory jury is
separately waived by the defendant. See Fla. Stat. §§ 921.141(1) and (2)
(1983). |
| [143] | *fn16 See Dobbert, 432 U.S., at
295-296 (citing Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975));
Proffitt v. Florida, 428 U.S. 242, 248-249 (1976) (opinion of Stewart,
POWELL, and STEVENS, JJ.) (same). |
| [144] | *fn17 In Proffitt, the joint
opinion stated: " would appear that judicial sentencing should lead, if
anything, to even greater consistency in the imposition at the trial court
level of capital punishment, since a trial Judge is more experienced in
sentencing than a jury, and is therefore better able to impose sentences
similar to those imposed in analogous cases." Id., at 252 (opinion of
Stewart, POWELL, and STEVENS, JJ.). Of course, since
Proffitt was not challenging judicial sentencing in that case, see n. 4,
(supra) , this statement was directed only at the risk of arbitrariness
that had been identified by the plurality in Furman, and was not concerned
with the claim made here that jury sentencing is more consistent with
community values. Moreover, experience under the Florida statute indicates
that this prediction concerning judicial sentencing has not been borne
out. Not only has the Florida Supreme Court proved much more likely to
reverse in a jury override case than in any other type of capital case,
see Radelet & Vandiver, The Florida Supreme Court and Death Penalty
Appeals, 74 J. Crim. L. & C. 913 (1983), but also the clear majority
of override cases ultimately result in sentences of life imprisonment
rather than death. See App. B to Brief for Petitioner. Thus, it is
doubtful that judicial sentencing has worked to reduce the level of
capital sentencing disparity; if anything, the evidence in override cases
suggests that the jury reaches the appropriate result more often than does
the Judge. |
| [145] | *fn18 See Solem v. Helm, 463
U.S., at 284; Enmund, 458 U.S., at 788; Rhodes v. Chapman, 452 U.S., at
346; Coker v. Georgia, 433 U.S., at 591-592 (plurality opinion); Estelle
v. Gamble, 429 U.S., at 102-103; Gregg, 428 U.S., at 171-173 (opinion of
Stewart, POWELL, and STEVENS, JJ.); Weems v. United States,
217 U.S. 349, 371 (1910). |
| [146] | *fn19 Although incapacitation was
identified as one rationale that had been advanced for the death penalty
in Gregg, 428 U.S., at 183, n. 28 (opinion of Stewart,
POWELL, and STEVENS, JJ.), we placed no reliance upon this rationale in
upholding the imposition of capital punishment under the Eighth Amendment,
and this ground was not mentioned at all by four of the seven Justices who
voted to uphold the death penalty in Gregg and its companion cases, see
Roberts v. Louisiana, 428 U.S., at 350-356 (WHITE, J., Dissenting, joined
by BURGER, C. J., and BLACKMUN and REHNQUIST, JJ.). In any event,
incapacitation alone could not justify the imposition of capital
punishment, for if it did mandatory death penalty statutes would be
constitutional, and, as we have held, they are not. See ante, at
461-462. |
| [147] | *fn20 See Roberts v. Louisiana,
428 U.S., at 354-355 (WHITE, J., Dissenting); Gregg, 428 U.S., at 183-186
(opinion of Stewart, POWELL, and STEVENS, JJ.). See also
id., at 233 (MARSHALL, J., Dissenting). |
| [148] | *fn21 In Gregg, Justice
Stewart, JUSTICE POWELL, and I wrote: |
| [149] | "Although some of the studies suggest that the death penalty may not
function as a significantly greater deterrent than lesser penalties, there
is no convincing empirical evidence either supporting or refuting this
view. We may nevertheless assume safely that there are murderers, such as
those who act in passion, for whom the threat of death has little or no
deterrent effect. But for many others, the death penalty undoubtedly is a
significant deterrent. There are carefully contemplated murders, such as
murder for hire, where the possible penalty of death may well enter into
the cold calculus that precedes the decision to act. And there are some
categories of murder, such as murder by a life prisoner, where other
sanctions may not be adequate. |
| [150] | "The value of capital punishment as a deterrent of crime is a complex
factual issue the resolution of which properly rests with legislatures,
which can evaluate the results of statistical studies in terms of their
own local conditions and with a flexibility of approach that is not
available to the courts. Indeed, many of the post- Furman statutes reflect
just such a responsible effort to define those crimes and those criminals
for which capital punishment is most probably an effective deterrent."
Id., at 185-186 (footnotes and citation omitted). |
| [151] | See also Roberts v. Louisiana, 428 U.S., at 354-355 (WHITE, J.,
Dissenting). The Court takes this same approach today, ante, at
461. |
| [152] | *fn22 Cf. Enmund, 458 U.S., at
798-800 (imposition of death penalty on those lacking an intent to kill
has too attenuated a deterrent effect to be justified by deterrence);
Lockett v. Ohio, 438 U.S., at 625 (WHITE, J., Concurring in part and
Dissenting in part) (same). |
| [153] | *fn23 The Florida Legislature did
not purport to make a contrary finding, nor does the Court advance an
enhanced deterrent effect as a justification for judicial sentencing.
Indeed, such an argument would be especially anomalous in this case in
light of the deference generally given jury determinations under the
Florida statute. |
| [154] | *fn24 See Eddings v. Oklahoma,
455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S., at 604-608 (plurality
opinion); Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) ; Roberts
v. Louisiana, 428 U.S., at 333-334 (plurality opinion); Woodson, 428 U.S.,
at 303-305 (plurality opinion); Jurek v. Texas, 428 U.S. 262, 271-272
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). See
also California v. Ramos, 463 U.S. 992, 1006 (1983); Enmund, 458 U.S., at
798. |
| [155] | *fn25 See also Furman, 408 U.S.,
at 308 (Stewart, J., Concurring); id., at 452-454 (POWELL,
J., Dissenting). |
| [156] | *fn26 See also Brown v.
Louisiana, 447 U.S. 323, 330 (1980) (plurality opinion); Burch v.
Louisiana, 441 U.S. 130, 135 (1979); Ballew v. Georgia, 435 U.S. 223,
229-230 (1978) (opinion of BLACKMUN, J.); Apodaca v. Oregon, 406 U.S. 404,
410 (1972) (plurality opinion); Williams v. Florida, 399 U.S. 78, 100
(1970). |
| [157] | *fn27 See also Humphrey v. Cady,
405 U.S. 504, 509 (1972). |
| [158] | *fn28 See Bullington v. Missouri,
451 U.S. 430, 438 (1981). See also Arizona v. Rumsey, 467 U.S., at
209-210. |
| [159] | *fn29 Accord, McGautha v.
California, 402 U.S. 183, 201-202 (1971); Furman, 408 U.S., at 388-389
(BURGER, C. J., Dissenting); id., at 439-441 (POWELL, J., Dissenting). See
generally Note, The Death Penalty and Federalism: Eighth Amendment
Constraints on the Allocation of State Decisionmaking Power, 35 Stan. L.
Rev. 787, 810-820 (1983). |
| [160] | *fn30 See also Eddings v.
Oklahoma, 455 U.S., at 110-111; Lockett v. Ohio, 438 U.S., at 597-598
(plurality opinion); Furman, 408 U.S., at 245-247 (Douglas, J.,
Concurring); id., at 297-299 (BRENNAN, J., Concurring); id., at 339
(MARSHALL, J., Concurring); McGautha, 402 U.S., at 197-202; Andres v.
United States, 333 U.S., at 753 (Frankfurter, J.,
Concurring). |
| [161] | *fn31 See also Enmund, 458 U.S.,
at 794-796; Coker v. Georgia, 433 U.S., at 596-597 (plurality
opinion). |
| [162] | *fn32 See, e. g., Duren v.
Missouri, 439 U.S. 357 (1979). |
| [163] | *fn33 In his valuable article,
Professor Gillers has written: |
| [164] | "Intuitively, juries, chosen in accordance with rules calculated to
assure that they reflect a 'fair cross-section of the community,' are more
likely to accurately express community values than are individual state
trial Judges. This is true because twelve people are more likely than one
person to reflect public sentiment, because jurors are selected in a
manner enhancing that likelihood, and because trial Judges collectively do
not represent -- by race, sex, or economic or social class -- the
communities from which they come. The response of a representative jury of
acceptable size is consequently taken to be the community response. The
jury does not try to determine what the community would say, but in giving
its Conclusion, speaks for the community. The Judge, on the other hand,
must assess the community's 'belief' or 'conscience' and impose it or must
impose his own and assume it is the community's. Whichever the Judge does,
the representative jury would seem to have a substantially better chance
of identifying the community view simply by speaking its
mind. |
| [165] | "The intuitive expectation that a representative jury of adequate size
will convey community values more reliably than will a single Judge finds
support in cases treating jury composition at culpability trials. In this
related area, the Court has stressed the importance of a representative
jury as an aid in assuring 'meaningful community participation,' and has
accepted the idea that different segments of the community will bring to
the representative jury 'perspectives and values that influence both jury
deliberation and result.' In addition, the Court has said that juries of
decreasing size have a reduced chance of reflecting minority viewpoints.
The Court's Conclusions that the size and representativeness of juries
influence their ability to reflect community values support an inference
that a representative jury of adequate size is also more likely than a
single Judge to reflect the community's retributive sentiment. Indeed,
since capital sentencing involves application of community values, whereas
guilt-determination predominantly demands factfinding, the Court's
Conclusions would seem to apply with even greater force in the capital
sentencing area." Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 63-65
(1980) (footnotes omitted). |
| [166] | *fn34 A respected study of the
matter found that Judges and juries disagree as to the imposition of the
death penalty in 59 percent of the cases, with juries being much more
likely to show mercy than Judges. See H. Zeisel, Some Data on Juror
Attitudes Toward Capital Punishment 37-50 (1968). This study must be
viewed with some caution, because it was based on pre- Furman sentencing,
when juries were given no guidance concerning the standards for decision.
See Zeisel, supra, at 37-38, and n. 29. But then there were no standards
for Judges to follow either, and the wide disparity between Judge and jury
sentencing in an era in which all the sentencer could do was express its
sense of proportionality, see Witherspoon, 391 U.S., at 519, and n. 15,
suggests that judicial sentencing does not reflect the same moral
sensibility as does jury sentencing. That there has been such a large
number of jury overrides under the Florida statute tends to indicate that
the disparity between Judge and jury has continued in the post- Furman
era. Indeed, the facts of this very case illustrate the point. While the
crime for which petitioner was convicted was quite horrible, the case
against him was rather weak, resting as it did on the largely
uncorroborated testimony of a drug addict who said that petitioner had
bragged to him of having killed a number of women, and had led him to the
victim's body. It may well be that the jury was sufficiently convinced of
petitioner's guilt to convict him, but nevertheless also sufficiently
troubled by the possibility that an irrevocable mistake might be made,
coupled with evidence indicating that petitioner had suffered serious head
injuries when he was 20 years old which had induced a personality change,
App. 35, see also 433 So. 2d, at 512 (McDonald, J., Dissenting), that the
jury concluded that a sentence of death could not be morally justified in
this case. A Judge trained to distinguish proof of guilt from questions
concerning sentencing might react quite differently to this case than
would a jury. See H. Melville, Billy Budd 72 (Pocket Books 1972) ("For the
compassion how can I otherwise than share it. But, mindful of paramount
obligations I strive against scruples that may tend to enervate decision.
Not, gentlemen, that I hide from myself that this case is an exceptional
one. Speculatively regarded, it well might be referred to a jury of
casuists. But for us here acting not as casuists or moralists, in a case
practical, and under martial law practically to be dealt
with"). |
| [167] | *fn35 See Pulley v. Harris, 465
U.S. 37 (1984); id., at 54 (STEVENS, J., Concurring in part and Concurring
in judgment); Zant v. Stephens, 462 U.S., at 878-879; Gregg, 428 U.S., at
196-198, 200-204 (opinion of Stewart, POWELL, and STEVENS,
JJ.); id., at 221-224 (WHITE, J., Concurring in
judgment). |