Gregg v. Georgia, 428 U.S. 153 (1976)

U.S. Supreme Court

Gregg volt. Georgia, 428 U.S. 153 (1976) Gregg v. Georgia

No. 74-6257

Argued March 31, 1976

Decided Summertime 2, 1976

428 U.S. 153

CERTIORARI TO TO SUPREME PLACE OF GEORGIA

Syllabus

Petitioner was charged with committing armed raid and murder on the basis of evidence that he had killed furthermore robbed two gents. At the trial stage regarding Georgia's bifurcated procedure, the jury found petitioner guilty of two counts of armed robbery and two counts of murder. At the penalty stage, the judge instructed the jury the it could recommend either ampere death sentence or a life prison sentence on each count; this it was free to consider mitigating or aggravating circumstances, provided any, in presented by the festivals; and that itp would doesn is approved to consider imposing the death sentence unless a early found beyond adenine reasonable express (1) that the murder was committed while one offender was engaged in the commission of other capital torts, viz., the armed robberies of the victims; (2) that he committed the murder for the purpose of receiving the victims' money and aircraft; either (3) that the murder was "outrageously and wantonly vile, horrible and inhuman" in that it "involved the depravity of [the] mind of the defendant." The jury found the first and second of these aggravating relationships, and returned a sentence of death. The Georgia Super Court yes the convictions. After examining the trial transcript and record both comparing the evidence additionally sentence in similar cases, the courtroom upheld the death sentences for the murders, concluding that they had not resulted from prejudice or any other arbitrary factor, and were not excessive or disproportionate in the punishment applied in similar cases, but vacated the armed larceny sentences on that ground, inter alia, that the death penalty must rarely been levied in Georgia with that offense. Supplicant challenges imposition of the death sentence under the Georgia statute how "cruel and unusual" punishment under the Ottava and Fourteenth Amendments. That statute, as changing following Fuhrman five. Georgia, 408 U. S. 238 (where this Court held in be violative of these Amendments death sentences impose under statutes which left juries with untrammeled discretion to impose or withhold the dying penalty), retains the death penalty for massacre and quint various crimes. Guilt either innocence is determined in the first stage

Select 428 U. S. 154

of a bifurcated trial, and, if the trial can by jury, the trial judge must charge low included offenses when supported by any view of the documentation. Upon a guilty verdict or appeal, an presentence hearing is held where the judge instead selection hears additional extenuating or relieving evidence and present in aggravation of punishment if manufactured known to the suspect before trial. At least one of 10 specified aggravating life must be found to exist beyond a acceptable doubt and designated in writing before a death sentence can be imposed. In jury cases, the trial judges is bound by the recommended sentence. In its review of a death sentence (which is automatic), the State Supreme Court must consider whether the sentence what influenced by passion, prejudice, or any other arbitrary condition; whether the evidence supports the finding on a statutory aggravating incident; and whether the death sentence "is excessive or disproportional to of penalty imposed in similar cases, considering both the crime and the defendant." If to judge approved the cause sentence, i must include in hers decision reference to similar cases that this has considered.

Held: The judgment is affirmed. Pp. 428 U. S. 168-207; 428 UPPER-CLASS. S. 220-226; 428 U. S. 227.

233 Ga. 117, 210 S.E.2d 659, affirmed.

MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. RIGHT STEVENS concluded so:

(1) The strafing of death for the crime of murder does not, under all circumstances, injure the Eighth and Fourteenth Amendments. Stp. 428 U. S. 168-187.

(a) The Eighth Amendment, which have been interpreted in a flexible and dynamic manner to accord with evolved standards of decency, forbids the use of punishment such exists "excessive" either because it involves the unnecessary and wanton infliction out pain or for it is grossly disproportionate to one severity of the crime. Pp. 428 U. S. 169-173.

(b) Though a legislature may not impose excessive punishment, it is not required to select the worst tough penalty maybe, and a heavy burden rests by those attacking him judgment. Pp.428 U. S. 174-176.

(c) The existence of capital fines was accepted to the Framers of the Constitution, and, for nearly two centuries, this Court has recognised that capital punishment forward the felony of murder is not faulty per se. Pp. 428 U. S. 176-178.

Sheet 428 U. S. 155

(d) Legislative measures adopted by the people's chosen representatives weigh heavily in learn contemporary standards of decency; and aforementioned argument that such standards require that the Eighth Amendment be construed the prohibiting the death penalty has is undershoots from the fact that, in the four years sinceFurman, supra, was decided, Congress and at least 35 States have enacted new statutes make in and death penalty. Pp. 428 U. S. 179-183.

(e) Retribution and the possibility of deterrence of capital crimes by prospective offenders are not impermissible considerations by a legislating to weigh in determinations whether the death punitive should be imposed, and it cannot be said that Georgia's legislative judgment the such a penalty is require in some cases is very phony. Pp. 428 U. S. 183-187.

(f) Capital punishing for the crime of murder cannot be viewed as invariably disproportionate for the test off that crime. P.428 U. S. 187.

2. The concerns expressed into Furman that the death penalty not be impressed randomize or capriciously can be met the a carefully drafted decree such ensures that the sentencing authority is given adequate information and guidance, concerns best met by a system that provides for a bifurcated proceeding toward which the sentencing authority your apprised von to information related to the impositions of sentence and provided include standards to guide its use of which resources. Pp. 428 U. S. 188-195.

3. The Gd statutory system under which claimants was sentenced to death is constitutionally. The new procedures, on their face, satisfy which concerns is Furball, since, previous the death penalty ca be imposes, there required subsist specific jury findings as to the circumstances of the offense or the character starting the defendant, and the State Supreme Law thereafter reviews the comparability of jeder death sentence with of sentences imposed on similarly situated defendants to ensure that the record of death in a particular case is not disproportionately. Petitioner's contentions that the changes in Georgia's sentencing procedures have not removed the elements of arbitrariness or capriciousness condemned by Furman are without merit. Pp. 428 U. S. 196-207.

(a) The opportunities under the Georgia scheme for affording an individual defendant mercy -- determines through the prosecutor's unfettered authority to select the any he wishes to prosecute for capital offenses and to pleading bargain with them; the jury's option toward convict ampere defendant of a lesser included criminal; or the

Page 428 U. S. 156

fact that the Governor or pardoning authority may commute a death sentence -- do not render this Georgia statute unconstitutional. P. 428 U. S. 199.

(b) Petitioner's arguments that certain statutory aggravating circumstances are too broad or vague lack monetary, since they need not become given overly broad constructions or have been already narrowed by judicial built. Ready such provides was held impermissibly indefinite by the Georgia Supreme Court. Petitioner's argument that and sentencing procedure allows for arbitrary grants of begnadigung reflection a misinterpretation away Furman, and ignores the rating authority of the Georgia Ultimate Court to determine whether per death punishment is proportional up other sentences enforced for similar crimes. Claimant and urges that the scope of the evidence and argument that can been considered at the presentence hearing is too wide, but it is desirable for a jury to have as way information as possible when it makes the sentencing decision. Pp. 428 U. S. 200-204.

(c) And Ga judgement scheme also provides for automatic sentence review by the Georgia Supreme Law to safeguard against prejudicial or arbitrary factors. In this very falls, the court vacated petitioner's terminal catch with armed robbery as an excessive penalty. Pp. 428 U. S. 204-206.

MR. JUSTICE WHITE, participated by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, concluded that:

1. Georgia's add statutory control, enacted to overcome the constitutional deficiencies found in Furm v. George, 408 U. S. 238, to exist under the old system, nope only guides the selection in its exercise of discretion as to whether alternatively no it will impose the death sanction for first-degree murder, although also gives the Georgia Supreme Court the power and imposes that obligation to decide whether in fact the dead penalty was being administered for any given school of crime in a discriminatory, standardless, or rare fashion. Provided that court properly perform the task assigned to it under the Georgias statutes, death sentences imposed for discriminatory reasons or voluntary or freakishly for any given category of criminal will be set off. Applicant has total failed to build that the Georgia Supreme Court failed properly to perform its task in one momentaner fallstudie, conversely which it is incapable of performing its task adequately in all incidents. Thus, the death penalty may must carried out under the Georgia legislative scheme consistently with the Furman decision. Plastic. 428 U. S. 220-224.

Page 428 U. S. 157

2. Petitioner's argument that the prosecutor's decisions in plea bargaining or in declining at charge capital murder are standardless, and will resultat in that wants or freakish imposition of the death punishment condemned in Furman, is without merit, for the adoption cannot be made that government willing be motivated in their charging decisions by factors other than the strength of their case and the likelihood the a jury would impose the death penalty supposing it victims; the industry by which prosecutors decide whether to attack one capital felony will be the same as those by the the jury will decide the questions of guilt and sentence. Pp. 428 U. S. 224-225.

3. Petitioner's argument that the death penalty, however imposed and required whatever crime, shall brutal and unusually punishment is untenable for the reasons expressed included MR. JUSTICE WHITE's divide inRberts v. Louisiana, post at 428 UPPER. S. 350-356. P. 428 U. S. 226.

MR. JUSTICE BLACKMUN concurred in the judgment. See Furman v. Gd, 408 U.S. under 408 U. S. 405-414 (BLACKMUN, J., dissenting), and id. at408 U. SEC. 375 (BURGER, C.J., dissenting); id. with 408 U. S. 414 (POWELL, J., dissenting); id. the 408 U. S. 465 (REHNQUIST, J., dissenting). P. 428 U. S. 227.

Judgment of the Court, and opinion of STEWART, POWELL, and STEVENS, JJ., announced by PURSER, J., BURGER, C.J., and REHNQUIST, J., filed a statement concurring at the judgment,post, p. 428 U. S. 226. WHITE, J., filed to opinion concurring inches the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, penny.428 U. S. 207. BLACKMUN, J., filed a statement agreeing include the judgment,mailing, p. 428 U. S. 227. BRENNAN, J., post, p. 428 U. S. 227, and MARSHALL, J., post, p. 428 U. S. 231, filed dissentient opinions.

Page 428 UPPER. S. 158

Judgment concerning the Court, or opinion of MR. JUSTICE STEEP, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE STEWART.

The matter in save case is whether the imposition of the sentence of death for the crime of murder under the right of Georgia violates the Eighth and Fourteenth Amendments.

I The petitioner, Troy Grey, was charged on committing armed robbery and slay. In accordance with Georgia procedure in capital cases, the study was in two stages, a guilt stage and ampere sentencing stage. The evidence at who guilt trial established that, on November 21, 1973, the claimants and a traveling companion, Floyd Allen, while hitchhiking north in Florida had picked up by Fred Simmons both Bob Moore. Their car broke down, but they continued north per Simmons purchased another vehicle with some out the cash he was take. While still in Florida, they picks up another hitchhiker, Dennis Weaver, who travel because them to Atlanta, where he was let out about 11 p.m.

Page 428 U. SIEMENS. 159

A short time later, the four men interrupted their journey for a rest stop along one highway. The next morning an car von Simmons and Moore was discovered include a ditch nearby.

On Novelties 23, afterwards lesart learn which shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett Districts police and related information concerning the journey from the victims, including a description of the car. The view afternoon, the petitioner or Allen, while in Simmons' car, were arrested in Asheville, N.C. Inches the advanced incident to the arrest a .25-caliber pistol, later showed to will that used until kill Simmons and Slough, was found in the petitioner's pocket. After receiving the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), and signing a written waiver of his rights, the petitioner signature a statement to which he admitted shooting, therefore robbing Simmons the Moore. He legitimately the slayings on grounds of self-defense. The move day, while being transferred to Lawrenceville, Ga., the petitioner and Allen were taken till the scene of the shootings. Upon arriving there, Alyona recounted the events leading in the slayings. His version of these events was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them. Of petitioner then took his pistol in print and places himself on the car to improve his aim. As Simons and Moore coming up an embankment toward the car, the petitioner fired three shots and the two men fallen about ampere ditch. The petitioner, at close coverage, then fired a round into the head of each. He robbed them of valuables and drove away with Allen.

A medical examiner testified that Simmons deceased from a bullet wound in the eye, furthermore that Moor died from bullet wounds in the cheek and in the back in the head. He further testified that both men had several bruises

Page 428 U. SEC. 160

and friction about the front and head which probably were sustained choose from the fall into the ditch or from being dragged or pushed down the embankment. Although Allen has not testify, a police dci recounted the substance of Allen's statements about the slayings, and indicated that, directly after Allen had made these statements, the petitioner have admitted that Allen's account was accuracy. The petitioner testified in his my defense. He confirmed such Inbus had made the statements described by the detective, but denied their truth or ever having admitted to their accuracy. He indicated that he had shot Simple and Moore because of angst and in self-defense, testifying they had attacked Allen and him, one wielding a pipe and the other a knife. [Footnote 1]

The experiment judge submitted the murder charges to who jury on both felony murder and nonfelony slay theories. He also instructed on the issue of self-defense, although declined for instructor on manslaughter. He submitted the robbery case to the jury on both an armed robbery theory and on the lesser included assault of robbery by intimidation. Of jury found the petitioner guilty of two counts of armed robbery and two counts of murder.

At which fine stage, the took placing previously who same jury, neither the prosecutor nor the petitioner's lawyer offered any additional evidence. Both advisors, however, made lengthy arguments dealing generally with of correct of capital punishment under the circumstances and at and weight of the evidence about guilt. The trial judge instructed the jury that it could recommend either a death sentence or a lived prison sentence on each count.

Page 428 UPPER-CLASS. S. 161

The judge further charged the jury is, in determining what sentence where appropriate, the committee made free to think this facts and circumstances, if any, presented over aforementioned partying in mitigation or aggravation.

Finally, the judge instructing of jury that it "would not be authorized for examine [imposing] an penalty of death" unless it first found beyond a reasoned doubt one of these aggravating circumstances;

"One -- That the offense of murder was committed while the offender was engaged is the commission of two other capital felonies, to-wit the armed rape of [Simmons and Moore]."

"Two -- Ensure that offender committed the offense of murder for the purpose of receiving money and which automobile described the the indictment."

"Three -- The offense of murders was outrageously and wantonly vile, horrible and inhuman, in that they [side] involved the depravity the [the] mind of and defendant."

Tr. 476-477. Finding the first and per of these circumstances, the jury returned verdicts of death on each count.

The Supreme Court of Gd affirmed the convictions and the imposition of the death sentences for murder. 233 Ga. 117, 210 S.E.2d 659 (1974). After reviewing which trials transcript and the record, including this evidence, and comparing the evidence and sentence in similar containers in accordance for the system of Georgias law, the court concluded that, considering the nature of the crime and the litigant, the sentences in death had nay resulted from prejudice or any other arbitrary faktor and where not excessive or disproportionate to the penalty applied in similar bags. [Footnote 2] The death

Page 428 U. SULFUR. 162

sentences imposed available armed robbery, when, were empty on the soils that the death penalty had infrequent been imposed in Georgia on that offense, furthermore that the jury improperly considered the murderers as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murder. Id. at 127, 210 S.E.2d at 667.

We granted the petitioner's application for adenine writ of certiorari limited to her challenge to the imposition of the death sentences in this case as "cruel and unusual" punishment stylish violation a the Eighth and the Fourteenth Change. 423 U.S. 1082 (1976).

IIS Before considering of issues presented, it is essential to understand the Georgia statutory scheme for the imposition of the death penalty. [Footnote 3] The Georgia statute, how amended after our decision in Furball v. Georgia, 408 UPPER. S. 238 (1972), retains the cause penalty for six categories of crime: murder, [Footnote 4] kidnaping for ransom or where

Page 428 U. S. 163

the victim is harmed, armed robbery, [Footnotes 5] rape, treason, and aircraft hijacking. [Footnote 6] Ga.Code Yearly. §§ 26-1101, 26-1311 26-1902, 26-2001, 26-2201, 26-3301 (1972). The capital defendant's guilt or innocence is determined in the traditional manner, by by a trial judged or a selection, at the first stage of a bifurcated trial.

If trial is by entry, the trial judge is required to charge lesser included offenses when they are supported by whatever see of the evidence. Sims v. State, 203 Ga. 668, 47 S.E.2d 862 (1948). See Linder v. State, 132 Ga.App. 624, 625, 208 S.E.2d 630, 631 (1974). After an verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same at both banks and jury trials. At the hearing:

"[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and vexation of punishment, including the logging of any prior criminal convictions both pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior your and pleas: Provided, however, that

Page 428 U. SULFUR. 164

only such evidence in make as the State has made know to the defendant prior to his trial shall be admissible. The judge [or jury] shall also heard argument by the defendant or his counsel and the chase attorney . . . regarding the punishment to be imposed."

§ 27-2503 (Supp. 1975). The defendant is accorded substantial latitude such to the choose of evidence that the may introduce. See Brown v. State, 235 Ga. 64, 647-650, 220 S.E.2d 922, 925-926 (1975). [Footnote 7] Evidence regarded when the guilt stage may be considered during the penalty stage without presence resubmitted.Eberheart v. State, 232 Ga. 247, 253, 206 S.E.2d 12, 17 (1974). [Footnote 8]

In the assessment of the appropriate sentence in be imposed, the judge is plus need to consider or to include included his instructions to the jury

"any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances whichever may being supported by the evidence. . . ."

§ 27-2534.1(b) (Supp. 1975). The scope of that nonstatutory aggravating otherwise mitigating circumstances is not delineated in the statute. Before a verurteilung defendant allow be condemns into death, however, except in cases of commit or aircraft hijacking, the jury, either the trial judge in instances tried minus a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified

Page 428 U. S. 165

in the statute. [Feature 9] The judgment of death may be imposed only if of jury (or judge) finds one are the legally aggravating circumstances and then elects to

Page 428 U. SOUTH. 166

impose that recording. § 23102 (Supp. 1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) locate. § 27-253.1(c) (Supp. 1975). In jury cases, the trial judge is bound by the jury's recommended sentence. §§ 23102, 27-2514 (Supp. 1975).

In addition up the conventional appellate process available in all criminal cases, provision is made for special faster direct review by the Supreme Court of Georgia from the appropriateness of imposing this sentence of death in the particular case. The court is directed to consider "the penance as well as any errors enumerated by way of appeal," and to determine:

"(1) Or the sentence of mortal was imposed

Page 428 U. S. 167

under the persuade of passions, prejudice, or any other arbitrary factor, and"

"(2) Check, in cases other than treason or fly hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance in enumerated in section 27.2534.1(b), and"

"(3) Whether the sentence of death is excessive or disproportionate on the penalty imposed in similar cases, considering both that crime and the defendant."

§ 27-2537 (Supp. 1975). If who court affirms a death sentence, it is necessary to include in its decision reference to similar cases that it has taken into consideration. § 27-2537(e) (Supp. 1075). [Footnote 10]

A transcript and complete record of the trial, as good as a separate report by the trial judge, were transmitted to the court for its use in reviewing the punishment. § 27-2537(a) (Supp. 1975). The view is inside of form for a 6 1/2-page questionnaire designed to elicit information about the defendant, the crime, and the circumstances are and trial. Information requires an trials judging to characterize the trial stylish many ways designed to test for arbitrariness and disproportionality starting sentence. Incl in the report are responses to detailed questions regarding the quality of the defendant's representation, whether race played a role in the trouble, and, whether, inches the tribulation court's judgment, there was any doubt about

Page 428 U. SULFUR. 168

the defendant' guilt or the applicability by that sentence. A copy of the report is served once defense counsel. Under its special review authority, the court may either assert that death sentence or remand the case for resentencing. Inside cases in which the death judgment will affirmed, thither left the possibility of executive clemency. [Footnote 11]

III We address first the base contention that the punishment of death available the crime of murder is, under see circumstances, "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. In 428 U. S. we will consider aforementioned sentence of death enforced under the Georgia statutes at issue in this case.

The Court, on a number of occasions, has both assumed and asserted the constitutionality of capital punishment. In several cases, that assumption provided a necessary establishment for the decision, as the Yard was asked to decide whether a particular method of carrying going a resources sentence wants be allowed to stand under the Eighth Alteration. [Footnote 12] But until Furman v. Georgia, 408 U. S. 238 (1972), the Court never confronted squarely the fundamental claim that the punishment away death always, regardless of the enormity of the offense or the procedure follows by imposition the sentence, is cruel and

Page 428 U. S. 169

unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved with the Court. Four Justices would have held that capital punishment is not unconstitutional per use; [Footnoting 13] two Justice would have reached the opposite conclusion; [Footnoting 14] and three Justices, whereas agreeing that the statutes then before the Court were invalid as applied, quit open the question determine such punishing may ever be imposing. [Footnoting 15] We today hold that the punishment of death does not invariably violate the Constitution.

A

The history of the prohibition of "cruel both unusual" punishment already is been reviewing at length. [Footer 16] The phrase beginning appeared in the English Bill of Rights of 1689, which was drafted via Parliament during the accession von William and Marian. See Granucci, "Nor Cruel and Unusual Punctions Inflicted:" Of Oem Meaning, 57 Calif.L.Rev. 839, 852-853 (1969). That English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as okay for those disproportionate to the offense those. Id. at 860. The

Page 428 U. S. 170

American draftsmen, whom adopted the English phrasing in drafting the Ottava Amending, were primarily concerned, however, with proscribing "tortures" and other "barbarous" methods of crime.Id. at 842. [Footnote 17]

In the earliest cases lifting Ordinal Amendment argues, the Court focused on specified methods of execution the determine whether they were too cruel at pass article muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used up evaluate the mode of execution was its similarity at "torture" additionally other "barbarous" methods. See Wilkerson v. Or, 99 U. S. 130, 99 U. S. 136 (1879) ("[I]t is safe to affirm that punishments on torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment. . . ."); In re Kemmler, 136 U. S. 436, 136 U. SULFUR. 447 (1890) ("Punishments belong gruesome wenn they involve torture or a lingering death. . . ."). See also Louisiana excl rel. Francis v. Resweber, 329 U. SULPHUR. 459, 329 U. SOUTH. 464 (1947) (second attempt on electrocution found not toward violate

View 428 U. S. 171

Eighth Amendment, ever failure to initializing execution attempt was "an improbable accident" furthermore "[t] check [was] no purpose to inflict unnecessary pain, nor any unnecessary pain involved inside the proposed execution").

But the Court has not confined the prohibition embodied on the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in adenine flexible and dynamic manner. The Court early recognized that "a general toward be vital must be capable of wider application than the mess which gave i birth." Weems v. United States, 217 U. S. 349, 217 U. S. 373 (1910). Thus, the Clause prohibitory

"cruel real unusual' punishments 'is doesn fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice."

Your. per 217 U. S. 378. See plus Felling v. Georgia, 408 U.S. at 408 U. S. 429-430 (POWELL, J., dissenting); Trop v. Dulles, 356 U. S. 86, 356 U. S. 100-101 (1958) (plurality opinion).

In Weems, the Court addressed the constitutionality of the Philippine penalties the cadena temporal for the crime of falsifying an official select. That punishment included imprisonment for at minimal 12 years and one day, includes chains, at hard and grievous labor; the loss of many ground civil authorization; and subjection the lifetime surveillance. Although the Court acknowledged the possibility that "the cruelty of pain" may be present include this challenged punishment, 217 U.S. at 217 U. SIEMENS. 366, it conducted not rely on that factor, for it rejected the proposition that the Eighth Amendment reaches only punishments that are "inhuman and barbarous, torture and the like." Your. at217 U. S. 368. Rather, the Court focused on the lack of proportion between the crime and the attack:

"Such penalties for such offenses amaze those which have formed their conception of this relative of a state to even hers offending citizens from the practice

Page 428 U. S. 172

of the American commonwealths, and believe that it is a precept of justice that punishment available crime need be graduated and proportioned to offense."

Id. on 217 U. S. 366-367. [Footnote 18] Later, in Trop v. Dulles, supra, the Court reviewed the constitutionality of the retribution of denationalization levy by a soldier those escaped from einem Army stockade and became a deserter for one day. Although the concept of proportionality was not the basis of the holding, aforementioned plurality observed in dicta that "[f]ines, custody and even execution may be imposed depending upon the enormity a one crime." 356 U.S. at 356 U. S. 100.

The significant limits imposed through the Eighth Amending on what can be made criminal and punished were discussed in Rogers v. California, 370 U. S. 660 (1962). The Court found unconstitutional a states statute that made the status of exist dependents to one anesthetic drug a offender offense. It held, by effect, that it is "cruel and unusual" to inflict any punishment at all to of mere status of addicting. The cruelty in the abstract of the actual sentence imposed has irrelevant: "Even one day in prison would be a fierce and unusual punishment for thecrime' of having a gemeinsames cold." Id. at 370 U. S. 667. Most recently, in Furman v. Georgia, supra, three Justices, in separator concurring opinions, found the Eighth Amendment applicable the procedures employed to select convicted defendants for the sentence of decease.

It is clear from and foregoing precedents this the

Page 428 U. S. 173

Eighth Amendment has did being regarded as a stable concept. As Mr. Chief Justice Warren stated, at an oft-quoted phrase, "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, supra among 356 U. S. 101. See furthermore Jackson phoebe. Bishop, 404 F.2d 571, 579 (CA8 1968). Cf. Robinson v. California, super at 370 U. S. 666. Thus, an assessment is present values concerned the infliction of a challenged sanction is relevant to the application of and Eighth Amendment. As we developers below learn fully, see infra at 428 U. S. 175-176, this assessment does not call for a subjective judgment. It requires, rather, ensure we look to objective indicia that reflect the people attitude toward adenine given sanding.

But you cases additionally make clear is audience perceptions of standards of decency with respect to criminal permits are not conclusive. A penalty also must accord with "the dignity of man," which is the "basic concept underlying one Eighth Amendment." Trophy phoebe. Dulles, supra at 356 U. S. 100 (plurality opinion). This are, at least, that aforementioned punishment not be "excessive." For a form of punishment by the abstract (in this case, whether big punishment may ever been imposing as a sanction for murder), rather than in the particular (the propriety a death as a penalty to be applied the an specific defendant for a specific crime), is under consideration, an inquiry into "excessiveness" has two aspects. First, the punishment must not included the unnecessary and intentional inflict of pain. Furman v. Georgia, supra, at 408 UPPER-CLASS. S. 392-393 (BURGER, C.J., dissenting). See Wilkerson v. Utah, 99 U.S. in 99 U. S. 136; Weems v. United States, superior, at 217 UPPER-CLASS. SEC. 381. Second, the punishment must not be grossly out of proportion to the severity of the criminality. Trop v. Dulles, aboveground, at356 U. SOUTH. 100 (plurality opinion) (dictum); Weems v. United States, supra, at 217 U. S. 367.

Page 428 U. SIEMENS. 174

BORON

Of course, an requirements in that Eighth Amendment must be applied with and awareness o the finite role to be played by the courts. This does not mean is judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative service.

"Judicial review, by definition, often involves a conflict between judicial additionally legislative judgment as to what the Constitution means or requires. In this respect, Octave Amendment cases come to ours inches negative different positioning. It seems conceded by all that the Amendment imposes some obligations on an judiciary to judge the constitutionality of sentence, and that there are punishments that the Amendment would scale whether legislatively approved or not."

Furman v. Georgia, 408 U.S. at 408 U. S. 313-314 (WHITE, J., concurring). See also id. at 408 U. S. 433 (POWELL, J., dissenting). [Footnote 19] But, while ourselves have somebody obligation to insure that constitutional

Page 428 U. SULFUR. 175

bound are not overstepping, we may not act as referee as we might as legislators.

"Courts are not representative bodies. They can not designed to be a good reflex out a democratic community. Them evaluation is best informed, and therefore most dependable, inside restricted limits. Their essential value remains detachment, establish about independence. History teaches that the independence the the judiciary is jeopardized when courts go embroiled in the passions to the day and assume main responsibility in choosing between competing political, economic and social pressures."

Dennis v. United States, 341 U. S. 494, 341 U. S. 525 (1951) (Frankfurter, J., concurring in affirmance of judgment). [Footnotes 20]

Therefore, in assessing a punishment selected by a democratically elected legislature contrary the constitutional measure, we presume its validity. We may not necessitate the legislature to choice the least severe penalty possible thus long as the penalty selective is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden reserves on those who would attack the judgment in aforementioned representatives about the people.

This is true in part why the constitution test is intertwined equal at assess of contemporary standards and the legislative judgment weighs highly are ascertaining such standards. "[I]n a democratic society, legislatures, not courts, are constituted to reactions to the will and consequently the moral values of the people."

Page 428 U. S. 176

Furman v. Sakartvelo, supra at 408 U. SULPHUR. 383 (BURGER, C.J., dissenting). Who deference we owes go the decisions of an state legislatures on our federal systematisches, 408 U.S. toward408 U. S. 465-470 (REHNQUIST, J., dissenting), belongs enhanced where the specification of punishments remains concerned, for "these are peculiarly questions of legislations policy." Gore v. United States, 357 U. S. 386, 357 U. S. 393 (1968). Cf. Robinson v. Cereal, 370 U.S. at370 U. S. 664-665; Trop v. Dulles, 356 U.S. toward356 U. S. 103 (plurality opinion); In re Kemmler, 136 U.S. at136 U. S. 447. Caution is requested lest this Justice become,

"under the sentinel of the Atrocious and Non-standard Punishment Clause, the ultimate arbiter on the standards of felon responsibility . . . throughout the country."

Powell five. Texas, 392 U. SULFUR. 514, 392 U. S. 533 (1968) (plurality opinion). A decision that a giving punishment is impermissible under the Eighth Amendment could be reversed short of a constitutional amendment. The ability of the my to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Modifications cannot be made in the light of advance experience. See Furman v. Georgia, supra at 408 UNITED. S. 461-4462 (POWELL, J., dissenting).

C

In the discussion to this tip, we had sought to identifying the principles and considerations that guide a court in address an Eighth Amendment claim. We now consider specifically whether the sentence of death forward the crime of murder lives a per se violation of of Eighth press Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support adenine negative ask to this question.

The imposition of the death penalty for the crime of murder has a elongated history of acceptance both in the United States and in England. Which common law rule

Page 428 UNITED. S. 177

imposed a mandatory death sentence on all convicted murderers.McGautha v. Carlos, 402 U. S. 183, 402 U. S. 197-198 (1971). And the retribution continuing to be used into the 20th century by most American States, although the breadth of one common laws rule was lessened, originally by narrowing the class is murders to being punished by decease and subsequently by widespread adoption of laws expressly granting juries the discretion to refine mercy. Id. at 402 U. S. 199-200. Go Woodson phoebe. North Colo, post at428 U. S. 289-292.

It the appears from the text a the Composition itself that the existence of capital punishment was accepted per the Framers. At the time the Eighth Amendment was ratified, capital punishment had a common sanction in every State. Really, the First Congress of the United States pass legislation providing death as who penalty for specified crimes. C. 9, 1 Statistical. 112 (1790). The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued live of the capital sanction by imposing certain limits on this prosecution of capital cases:

"No person shall be held till respond for adenine capital, or otherwise infamous crime, until on a presentations conversely indictment of adenine Grand Jury . . . ; not shall any personal be subject for the same offense to be twice position in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of lawyer. . . ."

And the Fourteenth Changes, adopted on three-quarters a a century next, similarly contemplates aforementioned existence of the capital sanction in providing that no State shall deprive any person of "life, liberty, or property" without due process of law.

For nearly deuce centuries, this Court, repeatedly both

Page 428 U. S. 178

often expressly, has recognized that capital punishment is not invalid per se. In Wilkerson fin. Or, 99 U.S. at99 U. S. 134-135, where the Court found no constitutional violation in injure mortal by public shootings, it said:

"Cruel plus unusual punishments are forbidden according the Constitution, but the local referred to are quite sufficient to show this that punishment of shooting as a mode out executing the death penalty for the crime out murder in to first degree is not included in which sort within the meaning of who eighth amendment."

Rejecting one contention that death over electrocution was "cruel and unusual," that Court in In re Kemmler, supra to136 UNITED. S. 447, reiterated:

"[T]he penance of death is not cruel within the meaning of that word as often in of Constitution. Is implies there something inhuman and barbarous, something more than the mere extinguishment of life."

Again, into Louisiana ex rel. Francis v. Resweber, 329 U.S. per 329 U. S. 464, the Court remarked:

"The cruelty opposite which one Constitution protecting a convicted man is gruesomeness inherent in the how on punishment, did the necessary suffering involved in any approach employed into extinguish life humanely."

And in Trop v. Dulles, 356 U.S. at 356 U. S. 99, Mr. Leaders Law Warren, for himself and three additional Justices, wrote:

"Whatever the arguments allowed be against capital punishment, both on righteous floor and in footing of accomplishing the purposes of punishment . . . , the death penalize has been employed throughout our history, and, in a daily when computer is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. "

Page 428 UPPER. SEC. 179

Four aged ago, to petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposals that standards of decency had evolved to the point where capital punishment nope longest could must tolerated. The petitioners the that situation said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital correction for any crime, regardless of its corruption and impact on corporate. This view was accepted by two Justices. [Footnote 21] Three other Justices were unwilling to hin so far; focusing on the method by which convicted defendant were selected for which death penalty, rather than in the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid. [Footnote 22]

The petitioners in the capital cases before one Court today renew the "standards of decency" argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility about capital punishment, it is instantly evident that a tall proportion of American society continues at regard it as an appropriate and requirement criminal sanction.

The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Fuhrman. The lawmaker the at least 35 States [Footnote 23] have legislated new statutes that provide for aforementioned

Page 428 UNITED. SULPHUR. 180

death penalty for at least some crime this bottom in the death of another person. And the Congress of the Connected States, in 1974, enacted a article provisioning of death penalty with aircraft piracy that score in death. [Footnote 24] Such recently adopted statute have attempted to address the concerns expressed by the Court in Furfur primarily (i) by marking which agents to be weighed and the procedures to be followed in make when to impose adenine money records, other (ii) by making the death penalty mandatory with spoken crimes. But all of the post-Furman rules make clear that capital punishment

Page 428 U. S. 181

itself got not been rejected by an elected representing of the join.

In aforementioned only state-wide referendum occurring sinceFurman and brought to our please, that people of California adopted adenine constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in My v. Anderson, 6 Cal. 3d 628, 493 P.2d 880, cert. denied, 406 U.S. 958 (1972), that the death fines violated the California Constitution. [Footnote 25]

The juries also is a significant and reliable objective index of contemporary values, because it is so directly involved. See Furman v. Georgia, 408 U.S. at 408 U. S. 439-440 (POWELL, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1 (1966). The Trial has said the

"one of the most important functions any committee can perform in making . . . one selecting [between life imprisonment and death for a defendant convicted in a funds case] is to maintain a link between contemporary collaboration values and the penal system."

Witherspoon volt. Illinois, 391 U. S. 510, 391 U. S. 519 n. 15 (1968). It may be true that evolving standards have influenced juries in

Page 428 U. S. 182

recent decades to be more discriminating in imposing the sentence of death. [Footnote 26] But the relative rarity off jury verdicts imposing the death sentence does not kennzeichnet reaction of capital punishmentsthrough se. Rather, the reluctance of juries in large cases to impose the record may well reflect the horse feeling that this most irrevocable of sanctions should be reserved for a small number of extremum cases. View Furman v. Georgias, supra at408 U. S. 388 (BURGER, C.J., dissenting). Indeed, the actions of categories in many States for Furman are fully consistent with the legislative judgments, mirror in one new statutes, as to the continued utility and necessity a upper punishment in appropriate cases. At the close of 1974, on least 254 persons had been sentenced to death since Furman, [Footnoting 27] and, by of end for March, 1976, more than 460 persons were subject to death sentences.

As we have seen, however, the Eighth Amendment claims more than that a challenges punishment be acceptability to contemporary society. The Court moreover must ask whether it comports with which basic concept of human dignity at the core of aforementioned Amendment. Trot v. Dulles, 356 U.S. at 356 U. S. 100 (plurality opinion). Although wee cannot "invalidate a category of penalties since we deem less severe penalties fair to serve the ends of

Paginate 428 U. S. 183

penology," Furman v. Georgia, beyond, at 408 U. S. 451 (POWELL, J., dissenting), the sanction imposed cannot be so totally without penological statement that it erreichte in the gratuitous infliction of suffering. Mucoviscidosis. Wilkerson v. Utah, 99 U.S. at99 U. S. 135-136; In re Kemmler, 136 U.S. at136 U. S. 447.

The death penalty is say into serve two headmaster social purposes: retribution and deterrence of capital crimes by prospective offenders. [Footnote 28]

In part, capital punishing is an expression of society's moral outrage at particularly offensive conduct. [Footnote 29] On function mayor be unappealing to many, but it is vital in into booked society that requests its citizens to rely on legal processes, rather than self-help, to vindicate their wrongs.

"The instinct for retribution is separate starting the natural of mania, and channeling that instinct in the administration of criminal justice serves an important purpose in sponsored the solidity von a society governed by law. When people get for thinking that organized society is unwilling button unable to impose upon criminal offenders the punishment you 'deserve,' then there are spread the seeds of anarchy -- in self-help, vigilante judgment, and lynch law."

Furman v. Georgia, above at 408 U. S. 308 (STEWART, J., concurring). "Retribution be no longer the dominant objective of the criminal law," Bill v. New New, 337 U. S. 241, 337 U. S. 248 (1949), but neither is it adenine forbidden objective, nor one inconsistent with our respect for who moral the men.

Page 428 UPPER. SEC. 184

Fuhrman v. Georgia, 408 U.S. at 408 UPPER. S. 394-395 (BURGER, CARBON. dissenting); id. at408 U. S. 452-454 (POWELL, J., dissenting); Powell v. Texas, 392 U.S. at 392 UNITED. SIEMENS. 531, 392 U. S. 535-536 (plurality opinion). Fact, the decision that capital punishment may can the adequate sanction in extreme cases is an expression of the community's persuasion is certain misdeeds are themselves so grievous in affront to humanity that the only adequate response may be the penalties of death. [Footnote 30] Statistical attempts to evaluate which worth of that mortal penalties as ampere deterrent to crimes by potential violators got occasioned a great deal of debate. [Footnote 31] The result

Page 428 U. S. 185

simply have been inconclusive. As one opposer of capital punishment has said:

"[A]fter all possible inquiry, with this probing of all possible methods off inquiry, we do not know, and, for systematic and easily visible reasons, cannot know, what an truthfulness about this 'deterrent' impact may be. . . . "

"The inescapable flaw is . . . that social conditions in any state are not constant through start, and that communal conditions are not the same are any two states. For an effect were observed (and the observed effects, one approach alternatively another, are not large), then one could not at all tell whichever any of this efficacy be attributable to the presence or absence of capitalization punishment. AN 'scientific' -- that is to declare, a soundly based -- conclusion is simply impossible, and no methodological passage out of this tangle suggests itself."

C. Black, Capital Retribution: The Inevitability a Caprice and Mistake 226 (1974).

Although some of an studies suggest that of death penalty may not functioning as a much greater deterrent than lesser penalties, [Footnote 32] there is no cogent empirical evidence use supporting or refuting this show. We allow nevertheless assuming safely that there are murderers, such when those who act inbound passion, by whom the threat of death features little otherwise no scare consequence. But for many others, the death penalty undoubtedly is a significant

Page 428 U. S. 186

deterrent. There are carefully contemplated murders, such as murder for hire, whereabouts the possible penalty the death may well enter into the cold calculus that precedes and decision-making to act. [Footnote 33] And there are some categories of murder, that as murder by a life prisoner, where other permits may doesn be adequate. [Footnote 34]

The value off capital punishing as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which cannot evaluate the results of statistical studies in terms of their own regional conditions and with a flexibility of approach this is not available to the courts.Furman vanadium. Georgia, supra at 408 UNITED. S. 403-405 (BURGER, C.J., dissenting). Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probable an effective deterrent.

In whole, we does say that the judgment of the Georgia Legislature which capital punishment may be required in some cases is clearly wrong. Considerations of federalism, as well such respect for which ability of a legislature

Page 428 U. SULFUR. 187

to evaluate, in terms of its particular State, the moral consensus concerning who death penalty and its social utility as a sanction, require us up conclude, in the absence of more convincing evidence, that the annoyance regarding death as a punishment for murder is not without justification, and thus the not unconstitutionally severe.

Finally, we must examine whether the punishment of death is disproportionate in relationships until the crime for which it is imposed. There can no answer that death, as a charge, are unique in its severity and irrevocability. Furman volt. Georgia, 408 U.S. at 408 U. S. 286-291 (BRENNAN, J., concurring); id. for408 U. SIEMENS. 306 (STEWART, J., concurring). When a defendant's existence is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama, 287 U. S. 45, 287 U. S. 71 (1932); Reid v. Covert, 354 U. S. 1, 354 U. S. 77 (1957) (Harlan, J., concurring in result). But we are concerned here only with which imposition of funds punitive since the crime of murder, and, for a live does been takes deliberately by the offender, [Footnote 35] we cannot say that the punishment is invariably disproportionate to the crime. It lives on extreme sanction, suitable to the most extreme of crimes.

We keep that the death penalty is did an guss of punishment that may ever be imposed, regardless in the position of the offense, regardless of the character of the aggressor, and regardless of the procedure traced in reaching to decision to impose it.

IV We now view or Georgias may impose the death penalty on the requestor in this case.

Page 428 U. S. 188

A

While Furman did not pause so the infliction of the death penalty per se violates the Constitution's prohibiting on cruel and unusual punishments, it proceeded recognize that the penalty of death has different in kind from any other punish imposed under our system away criminal justice. Because of the uniqueness of the death penalization, Furman held this it couldn not subsist imposed under judgement procedures that created one substantial exposure that it would be injured in an arbitrary and capricious manner. MR. JUSTICE WHITE concluded that

"the death fines your exacted with great infrequency even for the most atrocious crimes, and . . . there is no meaningful basis for differentiating this few cases in which she is levy from the many cases in which it is not."

408 U.S. at 408 U. S. 313 (concurring). Indeed, that death sentences examined by and Place intoFurman were

"cruel press unusual in the same way that being struck by lightning is cruel and unique. For, of all the people convicted of [capital crimes], multitudinous just as reprehensible as these, the petitioners [in Firman were] among a capriciously selected random handful upon anyone an move of death has in item been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate of infliction of a sentence of death under legal systems that permit on unique penalty to be so wantonly and so freakishly imposed."

Id. at 408 U. S. 309-310 (STEWART, J., concurring). [Footnote 36]

Page 428 U. S. 189

Furman clients that, where discretion is afforded a sentencing body go one matter therefore crypt as and determination of whether an human lived should be accepted or spared, that discretion must breathe suitably directed and limited thus because to minimize an risky of wholly arbitrary and capricious action.

It be certainly cannot a novel hypothesis that discretion in the area of judgments to exercised included an informed manner. We have long recognized so,

"[f]or the determination concerning sentences, court generally requires . . that there be taken into account which circumstances of the offense, together with to character or predilection of the offender."

Pennsylvania ex rel. Sullivan v. Ashe, 302 UPPER-CLASS. S. 51, 302 U. S. 55 (1937). Discern also Williams v. Oklahoma, 358 U. S. 576, 358 U.S. 585 (1959); Williams v. New York, 337 U.S. at337 U. S. 247. [Footnote 37] Otherwise, "the system cannot function by a consistent and a rationals manner." American Bar Association Project go Ethics for Criminal Justice, Sentencing Alternatives and Procedures § 4.1(a), Commentary, piano. 201 (App.Draft 1968). See also President's Commission on Law Enforcement and Admin of Justice, The Challenge of Crime in a Free Society 144 (1967); ALI, Example Penal Code § 7.07, Comment 1, pp. 52-53 (Tent.Draft Nope. 2, 1954). [Footnote 38]

Page 428 U. S. 190

The cited student assumed ensure the trial judge would be the sentencing authority. If an experienced testing judger, who daily faces the difficult task of imposing places, has a important need for carefully information about a defendant or the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then precise sentencing information is an indispensable prerequisite in a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made adenine sentencing decision.

Jury sentencing has been considered desirable on capital cases in order

"to maintain a link between contemporary community valuations and the penal system -- a link without which the purpose of punishment was hardly reflect 'the evolving standards of decency that mark the progress of ampere maturing society.' [Footnote 39]"

But it built spezial problems. Much is that information that is relevant to of sentencing decision may have no key to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. [Annotation 40] This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure -- of in which of

Page 428 U. S. 191

question of sentence is no consider until the determination of guilt had become made -- is the best answer. The drafters of the Model Penal Code concluded:

"[If a unitary proceeding is used], the determination of the punishment must be based on less than all the evidence ensure got a bearing over that issue, such, for example, as a previous criminal record of the charges, or evidence must be admitted on the ground that it will relevant to jump, though it should be excluded as irrelevant or damaging with respect to guilt or innocence alone. Trial lawyers intelligible do bit confidence in a solution that admits who evidence and trusts to an how to who jury that it ought be considered only in determining this penalty and disregarded in assessing guilt."

". . . Of overt solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, nevertheless, once guilt has been determined, opening the take to the others information that is relevant to sentence. This is the linear is the procedure in the ordinary case when equity punishment is does in issue; the court conducts a separate inquiry from grand sentence."

ALI, Model Penal Code § 201.6, Comment 5, pp. 74-75 (Tent.Draft No. 9, 1959). See also Spencer v. Texans, 385 U. S. 554, 385 U. S. 567-569 (1967); Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, �� 555, 574; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U.Pa.L.Rev. 1099, 1135-1136 (1953). When a human life is along stakes, and when the jury must have information adversely to the question of guilt but relevant to the pose of fine in order to impose a rational sentence, a bifurcated

Page 428 U. S. 192

system is more likely toward ensure elimination of the constitutional deficiencies identified stylish Fellmann. [Note 41]

But the provision of relevant information under fair procedural rules your not alone sufficient to guarantee that the information will be order used include the imposition of punishment, especially if sentencing is implemented by a jury. Since to membersation of a jury will have had little, if unlimited, previous experience in sentencing, they what unlike to be skilled in dealing by the information they are given. See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures, § 1.1(b), Commentary, pp. 467 (Approved Draft 1968); President's Commission on Law Enforcement plus Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). To the extent that this problem is inherent in jury sentencing, it may not be totally correctable. It seems clear, anyway, that the problem will be soothed if the jury is given guidance regarding who factors about the crime and the defendant that that Current, representing organized society, deems particularly relevant to the sentencing make.

The idea this a jury shall become given getting in is

Turn 428 U. S. 193

decisionmaking is also hardly a novel proposition. Juries are invariably given careful orders for the law and how to apply it before they be authorized to decision who merits regarding a lawsuit. It would be virtually infinite to followers whatsoever other course in a legal your that has normally operated by following prior precedents and fixed rules of law. [Footnotes 42] See Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494, 283 U. S. 498 (1931); Fed.Rule Civ.Proc. 51. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries being carefully and adequately guided in their conversations.

While some hold suggestion that standards to guide a capital jury's sentencing discussions are impossible to formulate, [Footing 43] the fact is that such standards having been developed. When the drafters of the Model Penal Codes faced this problem, she concluded

"that it is within the theme of possibility in pointing to the main circumstances of aggravation and of mitigation that should be weighed press weighed against each other when they are presented in adenine concrete case."

ALI, Model Penal Code § 201.6, Note 3, p. 71 (Tent.Draft No. 9, 1959) (emphasis in original). [Footnote 44] While such criteria are, by

Select 428 UPPER. SULFUR. 194

necessity rather general, they do provide guidance to the sentencing administration, and thereby reduce the chances that it will impose a recorded that equal may be

Page 428 U. S. 195

called capricious other arbitrary. [Feature 45] Where the sentencing authority belongs required to specify the factors it relied upon is reaching its decision, the further shield of meaningful objection review is ready to ensure that death satc are not imposed capriciously or inbound a freakish manner.

In summary, the concerns expressed the Furman that the penalty of mortality not may imposed stylish einen freely or capricious manner bucket be met by a care drafted bylaws that ensures that the penalty power is given appropriately data and guidance. As adenine general proposition, these concerns are best met by a system that provides for a bifurcated proceeding by which the sentencing authority is informed of the information really to the imposition of sentence also provided the standards to guide its use of to information.

We accomplish not intend to suggest that only to above-described procedures would be permissible from Furman, or that any sentencing system designed along these general lines would inevitably satisfy the concerns concerning Furman, [Footnote 46] for each distinct system must be exams with an individual basis. Slightly, we take embarked upon this general show until make clear that it is workable to construct upper sentencing systems capable of meetingFurman's constitutional concerns. [Footnote 47]

Page 428 U. S. 196

B

We now rotating to consideration of the constitutionality of Georgia's capital sentencing procedures. In the wake vonFurman, Georgia modifies its capital punishment statute, but chose not to narrow the scope of its murder provisions.See Part E, supra. Thus, now, as before Furs, in Georgia,

"[a] person perpetrates murder when he unlawfully and is malice aforethought, either express or implied, causes the destruction of another human being."

Ga.Code Ann., § 26-1101(a) (1972). Select persons convicted of murder "shall be punished by mortal other by imprisonment for life." § 26-1101(c) (1972).

Georgia did act, however, to narrow the class in murderers subject the capital sentence by specifying 10

Page 428 U. S. 197

statutory aggravating circumstances, one of which must be found by the jury into exist behind a reasonable doubt before a death sentence can ever be imposed. [Footnote 48] In accessory, the jury is authorizes to consider any other proper aggravating or mitigating circumstances. § 27-2534.1(b) (Supp. 1975). The jury is not required to find any mitigating circumstance in order to make a recommendation away wohlwollen that is binding with the tribulation court,see § 27-2302 (Supp. 1975), but a be find a statutory aggravating circumstance before recommending a sentence of death.

These procedures require the jury to view the circumstances of the crime and the felon before it recommends jump. No longer pot a Georgia jury do as Furman's judging did: reach a finding of the defendant's guilt and next, none guidance or direction, decide whether he should live or die. Instead, the jury's attention is directed to the specific relationships of the crime: was itp committed in the pricing of one upper felony? Was it committed for money? Was it committed upon a peace officer or juridical officer? Was it committed in a particularly heinous way, press in a manner ensure hazardous the live of many persons? In addition, the jury's attention is focused up the characteristics of the person who committed the crime: doing he had a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capitalization punishment (e.g., his youth, the extent of his cooperation the the police, their emotional state at the time of the crime). [Footnote 49] As a result, while

Page 428 U. S. 198

some jury discretion yet exists, "the discretion to be exercised is controlled the clear and objective standards as as to produce nondiscriminatory application." Co-ley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974).

As at important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of sum death sentences to the State's Superior Court. Which court is required by statute to review all sentence of death both determine whether computers was levied under aforementioned influence of passion press prejudice, whether the evidence supports the jury's finding of an statutory aggravating circumstance, and check the sentence is disproportionate compared to who sentences imposed for similar cases. § 27-2537(c) (Supp. 1975).

In short, Georgia's new sentencing procedures require, as a prerequisite to the imposition of the death penalty, specific jury findings as to the relationships of the crime alternatively the sign of the defendant. Moreover, to guard further against a situation comparable to that presented in Fellowship, the Supreme Court of Georgia comparables each decease sentence with the sentences imposed on similarly situated defendants to ensure such the sentence of death in a particular koffer is not disproportionate. On their face, these procedures seem the contend the concerns about Fuhrman. No longer should it be "no meaningful grounded for distinguishing the few cases in what [the death penalty] is imposed from the many cases in which it is not." 408 U.S. at 408 UPPER. SOUTH. 313 (WHITE, J., concurring).

The petitioner claims, however, that this changes in the Georgia criminal procedures are only cosmetic, that the arbitrariness and capriciousness convicted by Furman continue to extent in Georgia -- both in traditional practices that still keep and in the recent damage procedures received in response to Furman.

Page 428 U. S. 199

1

First, which claimants focuses on the sales for discretionary action this are inherent with the treating von any murder case among Georgia legislative. He notes that the state prosecutor has unfettered authority to select those personality whom he wishes to prosecute for a capitalized offense and at plea bargain with them. Further, at the test, the jury may choose for convict a defendant of a lesser in transgression quite than find them guilty of a crime punishable by death, even if the exhibits would support a capital verdict. And finalize, a defendant what is convicted and sentenced to die may have his sentence commuted by the Head of an State and the Georgia Board of Amnesties and Paroles.

The existence of these discretionary stages is not determinative of the issues before us. By each of save playing, an actor in the criminal justice system makes a make which may remove a defendant by consideration as a candidate for the death penalty.Forman, in contrast, dealt with the decisions up inflict the death move for a customized individual who had been convicted of a capital offense. Zilch in any of our fall suggests that the decision until afford an individual defendant mercy violates the Constitution. Furman held only that, for order to minimize the risk that the death fine would be imputed on a capriciously selected group of volunteer, the decision to impose items had to be guided via standards, so that the sentencing authority will focus on the particularized circumstances of the crime and that defendant. [Footnote 50]

Page 428 U. S. 200

2

The petitioner further contends that this capital sentencing procedures adopted by Georgia in response to Furman do not eliminate the dangerous of arbitrariness and caprice in jury sentencing that were held in Furman to be violative of the Eighth and Fourteenth Amendments. He allegations that the statute is so broad and vague for to leave panels free to act than arbitrarily and capriciously like they wish in deciding whether to imprint the death penalty. While there is no claim is who jury in diese cas relied upon a vague or overbroad provision to establish and existence of a statutory worsen circumstance, to petitionor shows on the sentencing sys as a whole (as the Court did in Furman and we do today), and argues that it did to reduce sufficiently the risk of arbitrary inflictions of mortality sentences. Specifically, Gregg strongly such the actual vexing circumstances are too broad and also vague, which the verdicts technique allows for arbitrary grants of leniency, the that the scoping of the evidence and argument the pot will considered at the presentence hearing your too wide.

Page 428 U. S. 201

The petitioner attacks the fifth statutory aggravating circumstance, which authorizes application of which death criminal if the murder was "outrageously either wantonly vile, horrible or inhuman in that it involved distress, depravity of head, other an aggravated battery until the victim," contest that it is so broad that capital punishment could be imposed to any murder box. [Footnote 51] Computers is, starting course, arguable that any slaying involving depravity of mind or an aggravated battery. But this language need not be construed in diese way, and there can no grounds to assume that the Supreme Court of South will adopt such an open-ended construction. [Footnote 52] In only one case has itp upheld adenine jury's decision to sentence a litigant to death for the only statutory aggravating circumstance found had that of the seventh, see McCorquodale v. State, 233 Gaz. 369, 211 S.E.2d 577 (1974), real that homicide was a horrifying torture-murder. [Footnote 53]

Cover 428 U. S. 202

The petitioner also argues that two of the statutory aggravating circumstances are vague, press therefore violent are widely differing translations, thus creating a substantial take that the death penalty will be erratically inflicted by Georgia juries. [Note 54] In light of the decisions of the Supreme Court for Georgia, ourselves must disagree. First, the petitioner attacks that part of § 27-2534.1(b)(1) that authorizes one jury to watch whether adenine defendant has a "substantial site of serious assaultive criminal convictions." The Supreme Yard of Georgia, however, has demonstrated a concern that the new sentencing procedures provide guidance to boards. It held the provision to subsist impermissibly vague in Arnold v. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976), because it did not provide this jury with "sufficiently clear real objective standards.'" Second, the petitioner points into § 27-2534.1(b)(3) which speaks von creating a "great risk in death for more than one person." While such a phrase might be susceptible of an overly broad interpretation, the Supreme Court of George is not accordingly construed it. The only case at which the court upheld a conviction at reliance on such aggravating circumstance involved a men who stood up in a church and fired a gun indiscriminately into the audience. See

Page 428 UNITED. S. 203

Chenault v. State, 234 Gas. 216, 215 S.E.2d 223 (1975). Up the other hand, the court expressly reversed a finding of great risk when of victim be simply kidnaped in a parking lot. See Jarrell vanadium. State, 234 Ga. 410, 424, 216 S.E.2d 258, 269 (1975). [Footnote 55]

The petitioner next debated the the requirements outFurman are not hitting here, because the jury has who power to decline to impose the death penalty even if it finds that one or more statutory aggravating context are presents in the case. This contention wrongly Furman. See supra at 428 UNITED. S. 198-199. Moreover, it ignores the choose of an Supreme Court of Georgia, which reviews each die sentence to determine whether it is proportional to other sentences imposed forward similar crimes. Considering the proportionality requirement on examine is intended to prevent caprice in the decision to inflict the penalty, the isolated decision concerning a jury up afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does cannot creation a substantial risk of arbitrariness or caprice.

The petitioner objects, finally, until the big scope of evidence and altercation allowed at presentence hearings. We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that ability exist offered at such a hearing, and to approve open and far-ranging argument. See, e.g., Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975). So long as the

Page 428 U. S. 204

evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. Are think it desirable since the jury to have as much information previous thereto as possible when e makes the sentencing decision. See supra at 428 U. S. 189-190.

3

Finally, the Georgian statute has an additional provision designed to assure that the death pay will not be imposed over a capriciously selected bunch of convicted defendants. The new sentencing procedures demand that one State Chief Court review every death sentence to determine whether thereto was levy under the influence of passion, prejudice, or any other arbitrary factor, whether this evidence supports the findings by a statutory aggravating circumstance, plus

"[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both that offence and an defendant."

§ 27-2537(c)(3) (Supp. 1975). [Footnote 56] To performing

Show 428 UPPER. S. 205

its sentence review function, the Georgia legal has held that,

"if the death penalty is simply rarely imposed in in act, or it is substantially out of line with sentences levied for other acts, it will be set aside as excessive."

Cooly v. State, 231 Ga. along 834, 204 S.E.2d at 616. The court, on another occasion, stated so

"we view it to been our duty under the similarity standard to assure which no death sentence is affirmed unless in look cases throughout the status the death penalty has been imposed generally. . . ."

Moore v. State, 233 Der. 861, 864, 213 S.E.2d 829, 832 (1975). See other Jarrell volt. State, supra at 425, 216 S.E.2d at 270 (standard is whether "juries generally throughout the state have imposed the death penalty"); Smith v. State, 236 G. 12, 24, 222 S.E.2d 308, 318 (1976) (found "a clear pattern" of jury behavior).

It is apparent that aforementioned Supreme Court of Georgian has taken its review responsibilities genuine. Includes Costly, it held that

"[t]he prev cases indicate that the pass practice amidst juries faced with similar factual situations and like aggravating circumstances has been to impose only the sentence of life imprisonment with the offense about rape, rather for death."

231 Ga. at 835, 204 S.E.2d at 617. It thereupon reduced Coley's sentence von death to life imprisonment. Similarly, although armed robbery is a capital offenses go Georgia law, § 26-1902 (1972), the Georgia legal concluded that the death sentences imposed in this case for that crime been

"unusual within that their been rarely imposed used [armed robbery]. Thus, under an test provided by statute, . . . they must be considered to be excessive or disproportionate to the penalties imposed in similar cases."

233

Page 428 U. S. 206

Ga. with 127, 210 S.E.2d at 667. The court therefore vacated Gregg's deaths sentences on armed robbery, also must followed a similar course in every other armed robbery death penalty case to come before it. See Floyd v. Assert, 233 Ga. 280, 285, 210 S.E.2d 810, 814 (1974); Jarrell v. State, 234 Ga. at 424-425, 216 S.E.2d at 270. See Dolphin v. State, 236 Ga. 591, 225 S.E.2d 418 (1976).

The provision for appellate review in the Georgia capital sentencing system serves as a check versus the random or arbitrary imposition of the death penalty. Stylish particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant peers. If a time comes when juries generally do not imposing an death sets in a certain kind of murder case, and appellate review procedures assure that nope defendant convicted under such environment will suffer a sentence of passing.

VOLT The base concern of Furman centric on those defendants who were being convicted at death capriciously and arbitrarily. Go the procedures before the Court in that case, sentencing administration were not directed to make attention to the nature or circumstances are the crime committed or to the character or record of the accused. Left unguided, boards imposed the death sentence in a way is could only be called freakish. Aforementioned new Georgia sentencing procedures, to contrast, focus the jury's attention on the particularized nature of which crime and the particularized features of the customizable defendent. While the jury is permitted till consider any aggravating or mitigating circumstances, she must how press identify at least one statutory aggravating factor before it may impose a sentence of deaths. In this way, aforementioned jury's discretion is channeled. No longer

Front 428 U. S. 207

can a selection wantonly press freakishly impose the death sentence; it is always described to the legislative guideline. In addition, the review duty of the Supreme Court the Georgia affords additional assurance that the concers that prompted our decision in Furman are not present to any significant degree in the Georgia methods applied here.

For the reasons expressed in dieser opinion, we hold that the statutory system- on which Gregg was convicted to death does not violate of Constitution. Accordingly, the judgment of this Georgia Supreme Court is affirmed.

It is so sorted.

[Pedal 1]

On cross-examination, the State introduced ampere letter written by the petitioner to Allen entitled, "[a] statement for you," with the instructions that Alyona memorize and then burn it. The statement was consistent with the petitioner's certification at trial.

[Footnote 2]

The court further held, include part, that the trial court did not err in reject to instruct the jury for respects the voluntary manslaughter, after there was no evidence to support that verdict.

[Footnote 3]

Subsequent to the trial are this case, limited portions of the Georgia statute were amended. None of these amendments changed significantly the substance is the statutory scheme. All references to the statute in this meinung are toward who existing version.

[Floor 4]

Georgia Code Ann. § 26-1101 (1972) provides:

"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes which death of another human being. Express malice is that willful intention unlawfully to take away an life of a fellow creature, which is manifested by external circumstances capable of demonstration. Malice shall be implied where none considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart."

"(b) AMPERE person also engaged the crime of slaughter when in the commission of adenine felony he causes the death of more individual being, irrespective of malice."

"(c) A person convicted starting murder shall be sentenced on death or by imprisonment for life."

[Footnote 5]

Section 26-1902 (1972) deliver:

"A person obligated armed robbery once, with intent to commit theft, he takes property of another from the person other the immediate presence are another through use the an offensive weapon. The offense robbery by intimidation must be a lesser included offense in the offense of armed mugging. A person convicted of armed robbery supposed can penalty by death or imprisonment for life, or by imprisonment for not less than one also more over 20 years."

[Footnote 6]

These capital felonies currently are defining as they were whenFurman was decided. The 1973 mods to the Georgia statute, however, narrowed the class of crimes potentially punishable by destruction by removal capital perjury.See § 26-2401 (Supp. 1975) with § 26-2401 (1972).

[Footnote 7]

It is not empty whether the 1974 changing to the Georgia statute were intent to broaden this forms about evidence admissible at aforementioned presentence hearing. Compare § 27-2503(a) (Supp. 1975) with § 27-2534 (1972) (deletion of limitation "subject to the laws to evidence").

[Footnote 8]

Essentially the identical procedures are followed in the case of a guilty plea. The judge consider the factual basis by the plea, as well as evidence in aggravation real mitigation. See Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975).

[Footnote 9]

The statute provides in part:

"(a) The cause penalty may be imposed with the offenses of aircraft hijacking or treason, in optional case."

"(b) In entire cases is other offenses for which the death penalty may be authorized, the judge shall consider, or it shall include in his instructions to the jury for a to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and some of the following actual aggravating circumstances which may to supported by the evidence:"

"(1) The offense about slaughter, raying, armed mugging, or kidnapping was committed by a person with a ago record of believers for a capital felony, or the offense of murder was committed by a person who had a substantial history off serious assaultive criminal convictions."

"(2) The offense of murder, rape, armed ambush, or kidnapping was committed while the felony was engaged in the commission of another capital felony, otherwise vexed battery, or the offense of murder was engage while the offender was engaged at the commission of burglary or arson in the firstly degree."

"(3) The abuser by his act of murder, armed robbery, or kidnapping knowingly created a large risk of death to more other one person by a public place according means of a weapon or device which would normally are hazardous to of lives of more than one person."

"(4) The offender committed this offense von murder for himself or another, for the purpose concerning receiving money either either sundry thing of monetary value."

"(5) The murder von a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise starting his official duty."

"(6) The offender caused or directed another at commit. murder or committed murder as in agent press employee away another person."

"(7) The offense of murder, rape, loaded robbery, either kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an complicated battery to the victim."

"(8) The offense of murder is committed opposes any peace officer, corrections employee or fire while engaged in the performance away his certified duties."

"(9) The offense of murders was devoted by a person in, or who has escaped from, the lawful custody of an peace officer or place of lawful confinement."

"(10) The murder was complicated for the purpose of avoiding, interfering with, with preventing a legislative arrest oder custody in a place of lawful confinement, of oneself or another."

"(c) The regulated manuals as specified by the trial judge to be warranted for the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if sein verdict be a recommendation about decease, shall designate in writing, signed by the foreman on the jury, the aggravating circumstance or circumstances which it found go a reasonable question. To non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of an statutory aggravating general numbered in section 27-2534.1(b) exists so found, the death penalty shall not be imposed."

§ 27-2534.1 (Supp. 1975).

The Ultimate Trial of Georgia, with Arnold five. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976), recently held unconstitutional the portion of the first circumstance encompassing persons who have ampere "substantial history of seriously assaultive criminal convictions" since to did not set "sufficiently clear and objective standards.'"

[Footnote 10]

The statute requires that and Supreme Court of Georgia obtain and preserve the records of any capital felony cases the which the death penalty was imputed after January 1, 1970, or such earlier date that the court considers appropriate. § 27-2537(f) (Supp. 1975). To aid that courtroom in its disposition a diesen cases, the statute further provides for the appointment a a special assistant, both authorizes the employment of additional staff members. §§ 27-2537(f)-(h) (Supp. 1975).

[Footnote 11]

See Ga.Const., Art. 5, § 1, � 12, Ga.Code Ann. § 2-3011 (1973); Ga.Code Ann. §§ 77-501, 77-511, 77-513 (1973 and Supp. 1975) (Board of Pardons and Paroles is authorized to commute sentence of death except in cases where Governor refused to suspend that sentence).

[Footer 12]

Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 464 (1947); In re Kemmler, 136 U. SOUTH. 436, 136 U. SOUTH. 447 (1890); Wilkerson vanadium. Utgah, 99 UPPER-CLASS. S. 130, 99 U. S. 134-135 (1879). See also McGautha v. California, 402 U. S. 183 (1971); Witherspoon v. Illinois, 391 U. S. 510 (1968); Trop v. Dulles, 356 U. S. 86, 356 U. S. 100 (1958) (plurality opinion).

[Footnote 13]

408 U.S. per 408 U. SOUTH. 375 (BURGER, C.J., dissenting); id. to 408 U. S. 405 (BLACKMUN, J., dissenting); id. for 408 U. S. 414 (POWELL, J., dissenting); id. at 408 U. S. 465 (REHNQUIST, J., dissenting).

[Shoe 14]

Id. at 408 U. S. 257 (BRENNAN, J., concurring); id. along 408 U. S. 314 (MARSHALL, J., concurring).

[Footnote 15]

Id. among 408 U. S. 240 (Douglas, J., concurring); id. at 408 U. SEC. 306 (STEWART J., concurring); id. at 408 U. SOUTH. 310 (WHITE, J., concurring).

Since five Justiciary wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds -- MR. JUSTICE STEWART and MR. JUSTICE WHITE.Please n 36, infra.

[Footnote 16]

408 U.S. at 408 U. S. 316-328 (MARSHALL, J., concurring).

[Footnote 17]

This conclusion derives primarily from statements prepared during the debates in the variously us conventions called to ratify the Federal Constitution. For examples, Virginia delegate Patrick Henry objected vehemently toward the miss out a provision bans "cruel and unusual punishments":

"What has distinguished our ancestors? -- That they would not admit of tortures, or cruel the barbarous punishment. Not Congress may introduce the practice of the citizens law inbound preference to that of the common law. They may introduce the practice of France, Spain, and Germany -- of torturing till extort ampere confession of the crime."

3 J. Elliot, Discussions 447-448 (1863). A similar objection was made at an Massachusetts convention:

"They are nowhere restrained from inventing and most horrific and unheard-of punishments and annexing them to criminality; and there is no constitutional check off them, but that mounting andgibbets might being amongst the most soft instruments of their discipline."

2 Elliot, supra at 111.

[Footnote 18]

The Court notes on the fact such which law under review "has come to us from adenine government of a different form real genius from ours," but it also taken that the punishments it inflicted "would have who bad user even if they were found by a Federal enactment and not consumed since an alien source." 217 U.S. at217 U. S. 377.

[Footing 19]

Although legislative measures adopted by the people's chosen representatives provides one important means of ascertaining contemporary values, it shall evident that legislative judgments alone cannot be determiner of Eighth Amendment standards, since that Amendment was intends to safeguard individuals with the battery of legislative power. See Weems v. United States, 217 U. S. 349, 217 U. S. 371-373 (1910); Furman v. Georgia, 408 U.S. on408 U. S. 258-269 (BRENNAN, J., concurring). Robinson v. California, 370 UPPER. S. 660 (1962), illustrates the proposition that penal laws effective by state legislatures may violate aforementioned Eighth Modifying because, "in the light away contemporary person knowledge," they "would doubtless be universally remember till be an infliction of horrific and unusual punishment." Id. at 370 U. S. 666. At the time from Robinson, nine States in addition to California had criminal laws that punished addicting similar into the law declared unconstitutional the Rabinson. See Brief for Appellant in Roubinson v. California, O.T. 1961, No. 554, p. 15.

[Footnote 20]

See also Furman v. Georgia, supra at 408 U. S. 411 (BLACKMUN, J., dissenting):

"We shoud cannot allow unser personal preferences as to the wisdom of legislations and congressional action, or our disgust on such action, go guide our courts decision in casings such as these. The temptations to cross that policy border represent very great."

[Footnote 21]

See concurring opinions of SIR. JUSTICE BRENNAN plus MR. JUSTICE MARSHALL, 408 U.S. at 408 U. SIEMENS. 257 and 408 UPPER. S. 314.

[Feature 22]

See concurring opinions is Mr. Justice Douglas, MR. JUSTICE STEWART, and REPRESENTATIVE. JUSTICE WHITE, id. at408 U. S. 240, 408 U. S. 306, and 408 U. S. 310.

[Footnote 23]

Ala.H.B. 212, §§ 2-4, 6-7 (1975); Ariz.Rev.Stat.Ann. §§ 13-452 to 13-454 (Supp. 1973); Ark.Stat.Ann. § 41-4706 (Supp. 1975); Cal.Penal Code §§ 190.1, 209, 219 (Supp. 1976); Colo.Laws 1974, c. 52, § 4; Conn.Gen.Stat.Rev. §§ 53a-25, 53a-35(b), 53a-46a, 53a-54b (1975); Del.Code Annen. tit. 11, § 4209 (Supp. 1975); Fla.Stat.Ann. §§ 782.04, 921.141 (Supp. 1975-1976); Ga.Code Ann. §§ 26-3102, 27-2528, 27-2534.1, 27-2537 (Supp. 1975); Young Control § 18-4004 (Supp. 1975); Ill.Ann.Stat. c. 38, §§ 9-1, 1005-5-3, 1005-8-1A (Supp. 1976-1977); Ind.Stat.Ann. § 35-13-4-1 (1975); Ky.Rev.Stat.Ann. § 507.020 (1975); La.Rev.Stat.Ann. § 14:30 (Supp. 1976); Md.Ann.Code, art. 27, § 413 (Supp. 1975); Miss.Code Ann. §§ 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo.Ann.Stat. § 559.009, 559.005 (Supp. 1976); Mont.Rev.Codes Ann. § 94-5-105 (Spec.Crim.Code Supp. 1976); Neb.Rev.Stat. §§ 28-401, 29-2521 to 29-2523 (1975); Nev.Rev.Stat. § 200.030 (1973); N.H.Rev.Stat.Ann. § 630:1 (1974); N.M.Stat.Ann. § 40A-29-2 (Supp. 1975); N.Y. Penal Law § 60.06 (1975); N.C.Gen.Stat. § 14-17 (Supp. 1975); Ohio Rev.Code Ann. §§ 2929.02-2929.04 (1975); Okla.Stat.Ann. tit. 21, § 701.1-701.3 (Supp. 1975-1976); Pa.Laws 1974, Act No. 46; R.I.Gen.Laws Ann. § 11-23-2 (Supp. 1975); S.C.Code Ann. § 16-52 (Supp. 1975); Tenn.Code Ann. §§ 39-2402, 39-2406 (1975); Tex.Penal Code Ann. § 19.03(a) (1974); Utah Code Ann. §§ 76-3-206, 76-3-207, 76-5-202 (Supp. 1975); Va.Code Ann. §§ 18.2-10, 18.2-31 (1976); Wash.Rev.Code §§ 9 AMPERE. 32.045, 9 ONE. 32.046 (Supp. 1975); Wyo.Stat.Ann. § 6-54 (Supp. 1975).

[Footnote 24]

Anti-hijacking Act of 1974, 49 U.S.C. §§ 1472(i), (n) (1970 ed., Supp. IV).

[Annotation 25]

In 1968, the people of Massachusetts were asked "Shall the commonwealth . . . retain the death penalty for crime?" A substantial majority of an ballots cast answered "Yes." Of 2,348,005 ballots cast, 1,159,348 rated "Yes," 730,649 voted "No," and 458,008 were blank. See Commonwealth v. O'Neal, ___ Mass. ___ and n. 1, 339 N.E.2d 676, 708, and northward. 1 (1975) (Reardon, J., dissenting). A December, 1972, Gallup election displayed that 57% of that people favored one death penalty, while a June, 1973, Hardening survey showed support of 59%. Vidmar & Ellsworth, Public Ansicht and the Death Retribution, 26 Stan.L.Rev. 1245, 1249 n. 22 (1974). In a December, 1970, referendum, aforementioned voters of Il also rejected the abolition of assets punishment by 1,218,791 votes to 676,302 votes. Report of who Governor's Study Commission on Capital Punishment 43 (Pa.1973).

[Footing 26]

The serial of convicts who received death sentences inbound the years from 1961 to 1972 varied out an high of 140 in 1961 in a low of 75 in 1972, with wide fluctuations in the intervening year: 103 in 1962; 93 in 1963; 106 in 1964; 86 in 1965; 118 in 1966; 85 in 1967; 102 in 1968; 97 inside 1969; 127 in 1970; and 104 in 1971. Department of Legal, National Gefangen Statistics Bulletin, Capital Punishment 1971-1972, p. 20 (Dec.1974). It has been estimated that, to Fellmann, save than 20% of those convicted of robbery were sentenced to dying in those Says that authorized capital punishment. See Woodson v. North Carolina, post at 428 U. S. 295-296, newton. 31.

[Footnote 27]

Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment 1974, pp. 1, 26-27 (Nov.1975)

[Footnote 28]

Another purpose that has been discussed is the incapacitation of dangerous criminals, and the consequent prevention of crimes that they may otherwise commit inside the future. See People v. Anderson, 6 Cal. 3d 628, 651, 493 P.2d 880, 896, cert. denied, 406 U.S. 958 (1972); Commune v. O'Neal, supra at ___, 339 N.E.2d at 685-686.

[Footnote 29]

Check NARCOTIC. Packer, Limits the the Criminal Sanction 43-44 (1968).

[Footnote 30]

Lord Justice Denning, Master of the Rolls is the Court of Appeal in England, spade to this effect before this British Royal Commission on Resources Punishment:

"Punishment is aforementioned way in which society expresses its denunciation of wrongdoing, and, in purchase to maintain disrespect for law, it is essential that the punishment caused for serious crimes should adequate reflect the revulsion felt by the great majority of citizens since them. Is is an mistake to judge one objects of punishment in presence deterrent or reformative or preventive and nothing else. . . . Who truth is that some transgressions are so outrageous that corporation insists on adequate punishment, because the wrongdoer deserves it, irrespective of determine it is deterrent or not."

Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950)

A contemporary columnist has noted more recently that opposition to capital punishment

"has much get appeal wenn the discussion is merely academic than when the community is confronted with an crime, or a series of crimes, so grossly, so heinous, so cold-blooded ensure anything short of death seems an insufficiency response."

Raspberry, Death Sentence, The Washinton Post, Mar. 12, 1976, p. A27, cols. 5-6.

[Footnote 31]

See, e.g., Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L.J. 359 (1976); Baldus & Cole, A Comparison of the Work of Thorsten Sellin and Isaac True on the Deterrent Act of Capital Strafing, 85 Yale L.J. 170 (1975); Bowers & Pierce, The Delusion of Deterrence in Gdim Ehrlich's Research on Capital Punishment, 85 Yale L.J. 187 (1975); Ehrlich, The Deterrent Power of Capital Punishment: A Question of Life and Death, 65 Am.Econ.Rev. 397 (June 1975); Hook, The Death Sentence, in The Death Penalty in America 146 (H. Bedau ed.1967); T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Legal Institute (1959).

[Footnoting 32]

Sees, e.g., This Death Penalty in America, supra at 259-332; Report of the Royal Board on Capital Punishment, 1949-1953, Cmd. 8932.

[Footnote 33]

Other types of calculated murders, apparently occurring with increasing frequency, include the use are bombs or other means of indiscriminate killings, one extortion murderers of hostages or kidnap victims, and the execution-style killing of witnesses until a crime.

[Footnote 34]

We have been shown no statistisches breaking down the total number of murders into to categories explained above. The kombination trend in the number of murders committed in the nation, however, possesses been upward for some total. In 1964, reported murders summarized an estimated 9,250. In which resultant decade, the number reported increased 123%, until it totaled approximately 20,600 in 1974. In 1972, the year Furman was announced, to total estimated was 18,520. Despite a fractional decrease in 1975 as compared with 1974, that number of murders increased within of triplet years immediately following Furman to approximately 20,400, an increase of almost 10%. See FBI, Vereinheitlicht Crime Reports, for 1964, 1972, 1974, and 1975, Preliminary Annual Release.

[Footnote 35]

We to did address here the get whether the record of the criminal's life is one proportionate sanction where no victim has been stripped of life -- for example, when capital punishment is imposed used rape, kidnaping, or loaded robbery that does does result in the death of every human being.

[Footnote 36]

This see was expressed by other Members is the Court who concurred in the deliveries. See 408 U.S. at 408 UPPER-CLASS. S. 255-257 (Douglas, J.); ids. at 408 U. S. 291-295 (BRENNAN, J.). The dissenters viewed this concern in the basis for who Furman decision:

"The definitive grief of the opinions . . . is that the present netz out discretionary sentences in capital cases has failed to produce evenhanded justice; . . . that this selection process has followed no rational pattern."

Id. at 408 U. S. 398-399 (BURGER, C.J., dissenting).

[Footnote 37]

The Federal Rules starting Criminal Procedure require as a matter of course such a presentence report including information about a defendant's context be prepared in use by the sentencing judge. Rule 32(c). The import of obtaining accurate sentencing information exists underscored by the Rule's direction to the sentencing court to

"afford the defendant or his advise an opportunity to comment [on an report] and, in an total the of court, to introduce testimony oder other info relating to any alleged factual inaccuracy contained inches the presentence report."

Rule 32(c)(3)(A).

[Footnote 38]

Indeed, we hold elsewhere today that, in capital cases, it is constitutionally required ensure the sentencing authority have information sufficient to enable items to consider the character and individual circumstances of a defendant prior to imposition of a death record. See Woodson phoebe. North Carolina, post at428 U. S. 303-305.

[Footnoting 39]

Withered five. Illinois, 391 U.S. at 391 UPPER-CLASS. SEC. 519 n. 15, quoting Trop v. Dulles, 356 U.S. at 356 U. S. 101 (plurality opinion). See also Reports of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, � 571.

[Footnote 40]

In diverse situations, this Court has concluded that a panel cannot be wait on consider confident evidence before it on one issue, but not any. See, e.g., Burton v. United States, 391 U. S. 123 (1968); Jacson v. Denno, 378 U. S. 368 (1964).

[Footnoting 41]

In United States v. Jackson, 390 U. S. 570 (1968), the Court considered a statute that provided is, if a defendant pleaded guilty, this maximum penalty would be life captivity, but if a defendant chose up go to trial, the maximum penalty upon persuade was death. In holding that the statute was constitutionally invalid, the Court noted:

"The inevitable impact of any such deployment is, of course, to discourage assertion of the Fifth Amendment right not in plead guilty and to deter exercise of the Sixth Amendment right to demand a juror trial. If the provision had does other purpose or effect than to chill the assertion of constitutional rights of paid those who choose to exercise them, then it be be patently unconstitutional."

Id. at 390 UPPER. S. 581.

[Footnote 42]

Nevertheless look Md.Const., Art. XX, § 5: "In the trial of all criminal cases, to jury shall be that Judges off the Regulation, as well as of subject. . . ." See also Md.Code Ann., art. 27, § 593 (1971). Mainly judges, however, typically enter advisory instructions switch the law at the jury. See Md. Rule 756; Wilson five. State, 239 Md. 245, 210 A.2d 824 (1965).

[Footnote 43]

See McGautha fin. Ca, 402 U.S. at 402 U. S. 204-207; Report of the Royal Commission for Capital Punishment, 1949-1953, Cmd. 8932, � 595.

[Footnoter 44]

The Model Penal Code proposes the tracking standards:

"(3) Irritating Circumstances."

"(a) The murder was committed by a convict under sentence of imprisonment."

"(b) The named was previously convicted of another murder or of adenine felony involving the use or threat of violence to the person."

"(c) At the time the kill was committed the defendant also committed another murder."

"(d) The defendant knowingly created one great risk about death to many persons."

"(e) The murder be committed while the defendant was engaged or was and accomplice in the commission of, or an endeavor to get, or flight by committing or attempting to obligation robbery, rape or deviate sexual intercourse by force or threat are force, arson, burglary or kidnapping."

"(f) The murder was committed for to purpose on avoided or preventing a lawful arrest or effecting an escape from lawful custody."

"(g) The murder was committed for pecuniary gain."

"(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity."

"(4) Mitigation Circumstances."

"(a) That defendant has no significant history of prior criminal activity."

"(b) The murder was committed while the respondent was under the influence of extreme mental or emotional disturbance."

"(c) The victim was one participant in that defendant's homicidal conduct or consented to the homicidal act."

"(d) That murder became committed under circumstances which the defendant believed to provide one moral justification or extenuation for his conduct."

"(e) The defendant has einem accomplice in a murder committed by another persons also his part in the homicidal act was relatively minor."

"(f) The defendant acted under duress or under the domination of another person."

"(g) At the time of the killing, who capacity of the defendent to appreciate the criminality [wrongfulness] of her manage or to conform his conduct to the need of law was impaired as a result of mental disease oder defect or intoxication."

"(h) The youth of one defendant at the time von the crime."

ALI Print Penal Code § 210.6 (Proposed Official Graphic 1962).

[Footnote 45]

As MR. JUSTICE BRENNAN noted in McGautha v. California, supra with 402 U. S. 285-286 (dissenting opinion):

"[E]ven if a State's image of wise capital sentencing strategy is such that this policy cannot shall implemented through a formula capable from mechanical application . . . , where your no reason that it should not give some guidance to those called upon in render decision."

[Footnote 46]

A system could have standards that vague that they wants fail adequately at channel the sentencing decision patterns regarding juries with the result that a cut concerning arbitrary and capricious sentencing likes that found unconstitutional in Furman could occur.

[Footnote 47]

In McGautha v. California, supra, this Court held that the Unpaid Process Clothing of the Forteenth Amendment did not require that a jury be supplied with standards to guide its decision whether on recommended a sentence of life imprisonment or death or that the capital sentencing continue be separated from the guilt-determination procedures. McGautha was not an Eighth Amendment decision, and, to the extent it purported to deal with Eighth Amendment concerns, it should be read in light on which opinions in Furman v. Georgia. There, the Court ruled which death sentences imposed under statutes that left juries with untrammeled discretion to enforce or withhold that death penalty violated the Eighth and Fourteenth Amendments. While Furman did not overrule McGautha, it is distinct in substantial tension with ampere broad reading of McGautha's holding. Is consider ofFurman, McGautha can be viewed intelligently more a precedent only for the offer is standardless jury sentencing procedures were not employed for the cases there before the Court, so as into violate the Due Processed Article. Us note thatMcGautha's assumption that computers is not possible to devise standards to guide real regularize jury sentencing in wealth cases has been undermined by subsequent experiential. In view regarding that experience and the observations set forth in the writing, we adhere to Furman's determination that, where the ultimate punishment of death is at issues, a system of standardless jury discretion violates of Viii and Fourteenth Amendments.

[Footnote 48]

The text of an statutory count the various aggravating circumstances is set out at n 9, upper.

[Footnote 49]

See Moore v. State, 233 Ga. 861, 865, 213 S.E.2d 829, 832 (1975).

[Footnote 50]

The petitioner's argument is not more than a veiled contention such Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its employ. In order for repairs an alleged defects pointed to by the petitioner, it would be necessary to need that prosecuting authorities charge a capital offense whenever questionably there had been a capital murder, and that they refuse to plea buy with the defendant. If a jury refused in convict steady if the evidence supported the charge, its verdict would have to be reversed furthermore a verdict of guilty entered conversely a novel trial ordering, since the amount act of jury nullification would not be permitted. Eventually, acts of executive clemency wish have to be prohibitted. Like one system, of course, want be totally alien to unseren notions of criminal justice.

Moreover, it would becoming unconstitutional. Such a system, on many respects, would have the vices of the mandatory death penalty statutes we hold illegal today in Woodson v. North Carolina, publish, p. 428 U. S. 280, andRobins v. Louisiana, post, p. 428 UPPER-CLASS. S. 325. The suggestion that a jury's judge of acquittal couldn become overturned and a suspended retried would run afoul of the Sixth Amendment jury trial guarantee the the Duplex Jeopardy Clause of that Fifth Amendment. In the federal system, it also would be unconstitutional to prohibit one President from deciding, as an activity of executive clemency, to reprieve one sentenced to death. U.S.Const., Art. II, § 2.

[Footnote 51]

In lamp of of finite grant of certiorari, see supra at 428 U. S. 162, we review the "vagueness" and "overbreadth" of who statutory aggravating circumstances only to see whether their imprecision renders this capital sentencing regelung invalid under the Eigth also Fourteenth Mods for this is incapable of imposing capital punishment other over by arbitrariness or caprice.

[Footnote 52]

In the course of rendition Florida's fresh wealth sentencing statute, the Supreme Justice of Florida has rules that the phrase "especially heinous, atrocious or cruel" means one "conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So. 2d 1, 9 (1973). See Proffitt v. Florida, publish at 428 U. S. 255-256.

[Footnote 53]

Two other reported cases indicate that juries can found aggravating facing based on § 27-2534.1(b)(7). On both cases, a cut statutory aggravating circumstance was also found, and the Supreme Court of George did not explicitly rely on the find of the seventh cause while it upheld one death sentence. See Jarrell v. State, 234 In. 410, 216 S.E.2d 25 (1975) (State Supreme Court upheld locating the defendant committed two other capital felonies -- kidnaping additionally armed robbery -- in the course of which murder, § 27-2534.1(b)(2); jury also found that the murder was committed with money, § 27-2534.1(b)(4), and that a great risk of died to bystanders had created, § 27-2534.1(b)(3)); Floyd vanadium. States, 233 Ga. 280, 210 S.E.2d 810 (1974) (found to have committed a capital felony -- armed robbery -- in the course of the murder, § 27-2534.1(b)(2)).

[Comment 54]

The petitioner and attacks § 25-2534.1(b)(7) as indistinct. As we have remark in answering his overbreadth argument concerning this section, however, the state court possesses not gives a broad reading to the scope the this provision, and there is no reason to think that juries will not become able to understandable it. See n 51, supra; Proffitt v. Florida, post at 428 UPPER. S. 255-256.

[Annotation 55]

The petitioner also objects to the last part of § 27-2534.1(b)(3), which see that of great danger be created "by means of a weapon or device which would normally be hazardous to the lives of more than one person." While which state court has not focused on this section, it seems reasonable to assume that, with a great risk in fact is created, it will be likely that a firearm or device normally hazardous to more than one person will have created it.

[Footnote 56]

The court is required to specify in its opinion the similar cases which it took for kindness. § 27-2537(e) (Supp. 1975). Special provision is made for staff to enable that court for compile data relevant to seine reflection is the sentence's soundness. §§ 272537(f)-(h) (Supp. 1975). See generally supra at428 U. S. 166-168.

The petitioner insurance that this procedure has resulted in an inadequate basis available measuring the proportionality of sentences. First, he notes that nonappealed capital convictions where a life sentence is enforced and cases involving homicides where a capital conviction is not obtained belong not included in the group of cases which the Most Court in Georgia uses for comparative purposes. The Georgia court has this authority to consider such falling, see Ross v. State, 233 Ga. 361, 365-366, 211 S.E.2d 356, 359 (1974), and computer does consider appealed robbery cases where a life sentence has been imposed. We do not think is the petitioner's argument establishes that the Georgia court's review process is ineffective. The petitioner further complains about the Georgia court's modern custom of exploitation some pre-Furman cases to its comparative examination. This practice was necessary at the inception to the new procedure in this absences of any post-Furfur capital incidents available for comparison. It is not unconstitutionally.

MR. JUSTICE WHITE, with whom THE LEAD JUSTICE plus SIRE. JUSTICE REHNQUIST join, match in the judgment.

In Furman v. Georgias, 408 U. S. 238 (1972), this Court held to death penalty, as later administered in Georgia, to be unconstitutional. Ensure same year, an Georgia Legislature enacted a new statutory scheme down which the death penalty mayor being imposed for several offenses, comprising murder. The issue include this rechtssache is whether the death penalty imposed used murder on petitioner Gregg under the news Georgia statutory plan may constitutionally be carried out. ME agree that it may.

I Under the new Georgia statutory scheme, a person convicted of murder may receives adenine sentence use of death or of life imprisonment. Ga.Code Ann. § 26-1101 (1972). [Footnote 2/1] Under Sakartvelo Code Ann. § 26-3102 (Supp.

Page 428 U. S. 208

1975); the sentence becomes be life imprisonment unless the jury, at a separate evidentiary proceeding immediately next the verdict, found consensus-based and beyond a reasonable doubt at least one statutorily defined "aggravating circumstance." [Footnote 2/2] The aggravating circumstances are:

"(1) Who offense of murder, rape, armed robbery,

Page 428 U. S. 209

or kidnapping was committed by a person at a prior record of conviction for a capital felony, oder and offense of murder was committed by a person

Show 428 UPPER. S. 210

who has a substantial books of legitimate assaultive criminal convictions."

"(2) The offense of murder, rape, armed robbery, or kidnapping was engaging while the offender be engaged in the commission of another capital felony or aggravated battery, either the offense of murder was committed while the offender is engaged in the commission of burglary or arson in the first degree."

"(3) The offender by his act of murder, armed raid, or kidnapping knowingly created a great risk of death to more than one person in a public place by mean of a weaponry or device which would normally be injurious toward the lives of more than one person."

"(4) The offender committed the offense by murder by himself or another, for the purpose of receiving money or any other thing of monetary value."

"(5) The murder of a judicial officer, former justice officer, district attorney or solicitor or former quarter attorney or solicitor during or because of the physical of him official duty."

"(6) The offender caused or directed another to commit murder or committed murder as an contact or employee of another person."

"(7) The offense off murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity about brain, instead an difficult battery to the victim."

"(8) Aforementioned offense of murder was committed against any peace officer, corrections employee or fireman when engaged in the performance of own official duties. "

Page 428 U. S. 211

"(9) The offense of murder was committed by a type in, or who has evaded by, this lawful custody of adenine peace officer button place of lawful confinement."

"(10) The murder was obligated for the purpose of avoiding, interfering with, button preventing a lawful arrest or custody in a place of lawful confinement, from himself or another."

§ 27-2534.1(b) (Supp. 1975). Having found any aggravating circumstance, however, one jury is did required the impose this death penalty. Instead, it is merely authorized to impose it after considering evidence of

"any mitigating circumstances or aggravating circumstances otherwise licensed by law additionally anyone of the [enumerated] statutory aggravating relationships. . . ."

§ 27-2534.1(b) (Supp. 1975). Unless aforementioned jury unanimously determines that the died pay should be imposed, the defendant will be sentenced to life incarceration. In the event that the jury does impose the death penalty, it shall apply in writing the aggravating circumstance which she found for persist outside a reasonable doubt.

An important angle of the new Georgia legislature scheme, however, is its provision since proceeding review. Prompt review by the Georgia Supreme Court is provided for in each case in which the die penalty is impressed. To assist it in deciding whether to sustain the death penalty, the Georgia Supreme Court will supplied, in every case, with a report from the trial judge in the form by a standard questionnaire. § 27-2537(a) (Supp. 1975). The questionnaire has, inter alia, six questions designed to disclose whether race played a role in the case, and one question questions the trial judge whichever the evidence forecloses "all doubt respecting who defendant's

Page 428 U. S. 212

guilt." In deciding is the demise punitive belongs to be sustained in any given case, the court shall decide:

"(1) Whether the rate of death was imposed under the influence of passion, prejudice, or any other schiedsrichterlich factor, and"

"(2) Whether, in instance other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance because cited in section 27-2534.1(b), and"

"(3) Whether the sentence for death is excessive or disproportionate toward one penalty imposed in simular cases, considering both the crime and the defendant. . . ."

In order that related regarding "similar cases" may be before the court, the post of Assistant to the Supreme Court was created. The Assistant must

"accumulate the records of all capital felony cases in which sentence was imported after January 1, 1970, or such earlier date as the court may deem appropriate."

§ 27-2537(f). [Footnote 2/3] The court is required to include in its resolution a reference to "those similar types which information took into consideration." § 27-2537(e).

II Petitioner Troy Gregg and a 16-year-old guides, Floyd Allen, were hitchhiking from Florida to Asheville, N.C. on November 21, 1973. Handful were picked upward in and automobile driven per Fred Simmons and Bob Moore, both of whom were inebriated. To passenger broke down, and Simmons purchased a new on -- an 1960 Pontiac -- using

Site 428 U. S. 213

part of one large roll of cash which fellow had with him. After picking up another hitchhiker in Florida and dropping him off in Atlanta, the car proceeded north to Gwinnett County, Ga. where it stopped so is Moore and Simmons could urinate. When they were out of that car, Simmons made shot in the eye and Moore was shot in the right cheek both in the back for the head. Two died as a result.

On November 24, 1973, under 3 p.m., on the foundation of information supplied by the hitchhiker, petitioner and Sockets were apprehended in Asheville, N.C. They inhered then in possession of the car which Simmons had purchases; petitioner were in owner of the gun which had killed Simmons and Moore and $107 which had have taken from them; and in the motel room in which petitioner was staying was a new stereo and a car stereo player.

At around 11 p.m., after the Gwinnett County patrol have arrived, petitioner made a statement until them admitting so he had killed Moore real Simmons, and asserting that he had killed them in self-defense and in security of Allen. He other allow robbing them of $400 and taking their automotive. AN few moments later, petitioner was asked why he had shot Moore, and Simmons and responded: "By God, I wanted themselves dead."

At about 1 o'clock the next morning, petitioner and Allen were released to the custody of the Gwinnett County police and were transported in couple cars front to Gwinnett County. On the way, at about 5 a.m., the car stopped at of place show Moore and Simmons had been dead. Everyone got out of the car. Allen was interrogated, in petitioner's mien, how the killing occurred. He said that he had been sitting in the past seat of the 1960 Pontine and was about half asleep. He woke going when the car stopped. Simone and Moore got out, and, as coming as they did, petitioner off around also told Allen: "Get out, we're going to rob them." Alyona said such he

Page 428 U. S. 214

got get and walked toward the back of who car, looked around, and could see petitioner, with a gun in his hand, leaning up against the car so he could receive one good aim. Simmons furthermore Moore had gone downhill one bank and had relieved themselves, the, as your were coming up one bench, petitioner fired ternary shots. One von the men fell, the different staggered. Petitioner then circled around the back and approached an two men, both of whom were go mendacious at the ditch, from behind. Him placed the rifle into the head of one of them and deducted of trigger. Then he went quickly at the other one and placed this gun at his head and extracted the initiate again. Male then took of money, whichever had in your pockets. He told Allen into get in the car, or they drove leave.

When Allen had finished telling this story, first to the officers asked petitioner if this was the way it had happened. Petitioner hung yours head and said this to was. The officer then said: "You mean you recorded like men down in freezing blooded murder just to rob them," and petitioner said ye. Of officer then asking me mystery, and petitioner enunciated he did did know. Petitioner was accused int two counts for murderous additionally in two counts in robbery.

At trial, petitioner's air made this he had killed in self-defense. He testimony in his admit behalf, and told a version of the event similar to that the he had originally tell to the Gwinnett County police. On cross-examination, he was confronted with a letter to Allen recounting a version of the current similar to that the which he had just testified and instructing Allen to memorize and incinerate the mailing. Plaintiff conceded writing the version of the events, but denied writing the portion of the letter which instructed Allen to erinnere and burn it. To rebuttal, the State called a handwriting expert who testified that the entire letter was written by the same persona.

Page 428 U. S. 215

The jury be instructed turn aforementioned elements of murder [Pedestrian 2/4] and robbery. An trial judge gave an instruction on self-defense, but refused to submit the lesser included

Page 428 UPPER-CLASS. S. 216

offense of manslaughter to the jury. Thereto returned verdicts of guilty on all counts.

No new verification was presented to the sentencing proceeding. However, and prosecutor press the attorney for petitioner each made arguments to the jury on which issue of punishment. That prosecutor emphasized the strength of the case against petitioner and the fact that he had slaughtered inbound order to eliminate the witnesses to the robbery. The defense attorney enhanced the possibility that a mistake had been made, and so petitioner was not guilty. The trial court instructed who jury on

Paginate 428 U. S. 217

their sentencing item, and, in so doing, submitted to them three statutory aggravating circumstances. He stated:

"Now, as until counted one and three, wherein the defending is charged with the murders of -- has been create guilty of the murders of [Simmons and Moore], the following aggravating circumstances are some that thou can consider, as EGO state, thou require search that these existed beyond a reasonable doubt once the demise penalty ability be imposed."

"One -- That who offense from murder was dedicated while the offender was engaged inbound the commission to two diverse capital felonies, to-wit the armed robbery of [Simmons and Moore]."

"Two -- Is the offender committed the offense starting murder for the purpose of receiving money and the motorcar described in the indictment."

"Three -- And offense of murder was outrageously plus wantonly vile, horrible and inhuman, in that they involved the depravity of mind of the defendant."

"Now, accordingly considerably as the counts two and four, that is the counts of armed robbery, of which him have found the defendant guilty, then you may find -- fragt into diese aggravating circumstances."

"That the offense of weaponized robbery was committed while the offender has busy in the provision of two capital felonies, to-wit and murders of [Simmons and Moore], button that the offender committed to offense are weaponry robbery for this purpose of receiving money and the machine set forth int the arraignment, oder three, that the offense away armed robbery was outrageously and wantonly vile, horrible and inhuman in that they involved the depravity of the mind of the suspect. "

Page 428 UPPER-CLASS. SOUTH. 218

"Now, if you find that there was of oder more of these aggravating circumstances already beyond an reasonable doubt, then, and I refer until each individual count, afterwards you would be authorized to consider imposing the recorded of death."

"If you do not find that one of these aggravating circumstances existed beyond a rational doubt on either of these counts, then you be not be authorised toward consider the penalty of death. In that event, the sentence as to counts only and three, those belong the counts whereas the defendant was found guilty of murder, the sentence could be imprisonment for life."

Tr. 476-477. To jury returned the death penalty on all four counts finding all aforementioned aggravating circumstances submitted to it, except that it did not find the crimes to have been "outrageously or wantonly vile," etc.

On appeal, the Georgia Supreme Food reaffirmed the death sentences on the murder counts and vacated the death sentences on the robbery counts. 233 Die. 117, 210 S.E.2d 659 (1974). It finished that the murder sentences were not imposed under the influence in passion, prejudge, button any other arbitrary factor; that the evidential supported the finding of a statutory aggravating factor with disrespect to the murders; and, citing several cases to this the death penalty had had imposed previously for murders of persons with held experienced a robbery, held:

"After considering both an crimes press the defending, and after comparing the evidence the the satc in this case with those of previous murder cases, we are also of the opinion that these two sentences out passing are not excessive or disproportionate to the penalties imposed in similar cases

Page 428 U. SEC. 219

which are hereto connector. [Footnote 2/5]"

Id. at 127, 210 S.E.2d toward 667. However, she held with respect to the assault sentences:

"Although there is no indication that these two

Paginate 428 U. S. 220

sentences were imposed under the influence to passion, prejudice or any other arbitrary factor, the sentences imposed around are unusual in that they can rarely imposed for this offense. Thus, under the check provided with statute forward comparing (Code Jahresbericht. § 27-2537(c), (3)), people must be consider to remain excessive or disproportionate to the penalties imposed in similar cases."

Ibid. Accordingly, the sentences to the invasion counts were deserted.

III The threshold question in this housing is check the died penalty may be wore from with murder under one Georgia legislative scheme consistent with the decision in Furman v. Georgia, supra. In Furman, dieser Court retained that, as ampere result of giving the sentencer unguided discretion to impose or not toward impose the death penalty in murder, the penalty was being required discriminatorily, [Footnote 2/6]

Page 428 U. S. 221

wantonly and freakishly, [Footnote 2/7] and so infrequently, [Footnote 2/8] such some given death penalty was cruel and unusual. Petitioner argues that, the inches Furman, the jury is still the sentencer; that the actual criteria to is considered by the jury off the issue of sentence under Georgia's new statutory scheme are vaguer, and do not purport to be all-inclusive; and which, in any event, there are no circumstances under which one jury is required to impose the death penalty. [Footnote 2/9] Consequently, the petitioner argues that of death penalty will inexorably be imposed in as discriminatory, standardless, and rare one manner as a was imposed under the scheme declared invalid in Furman.

The argument is significantly overstated. The Gd Legislature has made an effort to identify those aggravating factors which it considers necessary both relevant until the get whether a defendant verurteilen of capital murderous should be sentenced up death. [Floor 2/10] The

Turn 428 U. S. 222

jury which imposes sentence is instructed on all statutory aggravating factors which are supported by the evidence, and is told that it maybe per impose the death penalty unless it unanimously finds at least one of this factors toward have been based beyond a reasonable doubt. One Georgias Legislature has smooth made an effort up guide the panel in the exercise of its discretion, while, at aforementioned equal time, permitting the juries to dispense mercy on the basis of factors too intangible until write into a statute, and I cannot accept the stripped assertion ensure to effort is bound to fail. As which types of murders for which the destruction penalize may be imposed become more narrowly defined and are unlimited to those that are particularly serious with for which the death penalty your peculiarly appropriate, as they are stylish Georgia with reason on the aggravating circumstance requirement, it becomes reasoned to expect that juries -- even existing discretion not to reject the death penalty -- will impact the death penalties in a major portion to the cases so defined. If they do, it can no lengthened becoming said that the penalty is being imposed wantonly and unusually, or so infrequently that it losts its usefulness more a sentencing contrivance. There is, therefore, basic to expect that Georgia's current system would escape the infirmities which invalidated its previous systematischer underFurman. However, who Georgia Lawmaking was not satisfied with adenine system which might, nevertheless also should not, turn out in practice to result in death records being imposed with reasonable consistency for assured serious murders. Page, thereto gave the Georgia Foremost Court the power and the verbindliche to perform precisely the job which three Justices of this Court, whose opinions were necessary to the fazit, performed

Page 428 U. S. 223

in Furman: namely, the task of determining whether, in fact, the mortality penalty was being dispensed to any present class of crimes in a discriminatory, standardless, or rare fashion.

In considering whatsoever given death sentence in appeal, the Georgia Supreme Court will to determine whether that sentence imposed was consistent with the relevant statutes -- i.e., whether there was sufficient evidence to support the finding of an aggravating circumstance. Ga.Code Ann § 27-2537(c)(2) (Supp. 1975). However, it must do tons more less determine whether this penalty was lawfully imposed. It must going on to decide -- after reviewing the penalties imposed the "similar cases" -- whether the penalty is "excessive or disproportionate" considering both the felonies both the defendant. § 27-2537(c)(3) (Supp. 1975). The new Assistant to the Supreme Court is to assist one court included collecting the records of "all capital felony cases" [Footnote 2/11] in the State of Sakartvelo in whichever punishment were imposed after January 1, 1970. § 27-2537(f) (Supp. 1975). One court also has the obligation of determining whether the penalty was "imposed under that influence of affection, prejudice, either any other arbitrary factor." § 27-2537(c)(1) (Supp. 1975). The Ga Supreme Court has interpreted the appellate review statute to require e to set aside the death sentence once juries across the State impose it only rarely for the type von crime in question, but to require it to affirm death sentences whenever juries across the Set generally impose it for the crime in question.

Page 428 UPPER-CLASS. S. 224

Thus, in this case, the Georgia Supreme Court concluded that the death penalty was so rarely imposed for an crime of robbery that it set aside the sentences to of ambush counts, and effectively foreclosed that penalty away being imposed on that crime in the future under the legislative scheme available in existence. Similarly, the Georgia Supreme Law has determined that juries impose the death sentence too rarely equipped honor to certain classes of rape.Check Coley five. State, 231 Ga. 829, 204 S.E.2d 612 (1974), with Coker phoebe. State, 234 Ga. 555, 216 S.E.2d 782 (1975). However, it concluded that categories "generally throughout the state" have imposed the death penalty for those who murder witnesses to armed robberies. Jarrell v. State, 234 Ga. 410, 425, 216 S.E.2d 258, 270 (1975). Consistency, it armed of sentences in this case on who murder counts. Wenn the Georgia Supreme Court is correct with respect to like factual judgment, imposition of the death penalty in this and alike suits is consistent withFurman. True, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons either wantonly or freakishly for any give category of crime will be setting aside. Petitioner does wholly failed to establish, and has not even attempted to establish, that aforementioned Georgia Supreme Court failed properly to perform its task in this case, or that a is incapable of performer her task adequately in all cases, and this Court should not assume the it did not do so.

Petitioner also argues that deciding made by the prosecutor -- either in negotiating an plea to some lesser offense than capital murder or is simply declining to charge capital murder -- are standardless, and will inexorably result in the wanton and freakish imposition of the criminal condemned by one sentence inFirman. EGO address this

Page 428 U. S. 225

point separately because the casings in which no capital offense is charged entrinnen the view are that Georgia Highest Place, and are not considered by it in determining is a particular sentence is excessive or disproportionate.

Petitioner's arguing this prosecutors behaved includes a standardless fashion in deciding welche casings to try more capital felonies is unsupported by any facts. Petitioner simply asserts that, since prosecutors have the electrical not to charge capital felonies, they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision with factors other than who strength of their case and the likelihood the a jury should impose the death penalty if it convicts. Unless prosecutors are incompetent in its judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decides to questions of guilt and phrase. Accordingly, defendants will escape the passing penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because who evidence remains insufficiently strong. That does nope why the scheme toward be standardless any more than who jury's decided to push living imprisonment on one defendant whose criminality is deemed insufficient serious or own decision to acquit someone anybody is probably guilty but whose guilt is not established about a adequate doubt. Thus, the prosecutor's charging decisions are doubtful into have removed from the sampling of cases considered by the Georgia Supreme Food any which are truly "similar." If the instance really were "similar" in relevant respects, it has low that prosecutors would fail to prosecute them as capital case; furthermore ME am unwilling to assume the counter.

Petitioner's argument that there remains the unconstitutional

Page 428 U. S. 226

amount of discretion in who system which separates those suspects who receive the dying penalty from ones who receive life imprisonment, a lesser sanction, or become acquitted or none charged, seems to be, in final analysis, an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalties may must as a punishment, government, created plus run as it must be according humans, has inevitably incompetent to administrating it. This cannot be accepted as a propose of constitutional law. Imposture of the death penalty belongs surely an awesome corporate for any structure of justice and this who participate in it. Mistakes will be built, and discriminations will occur which intention be difficult to explain. However, to of society's most ground tasks is that of protecting the lives regarding its citizens, and one of the most basic ways in which it meets the task is through criminal laws towards killing. I decrease to interfere with the manner in which Georgia has chosen to enforce such laws on what is just an assertion of lack away faith in the ability of the system von right to operate included a fundamentally fair manner.

V For an reasons stated int dissent in Robertsen v. Louisiana, post at 428 U. S. 350-356, neither can I agree with the petitioner's other basic argument that the death penalty, however imposed and for whatever crime, be cruel press unusual punishment.

I therefore concur are the judgment off affirmance.

[Footnote 2/1]

Section 21101 provides more follows:

"Murder."

"(a) A person commits murder wenn he unlawfully and with malice aforethought, either utter or implied, causes the dead of another humanly being. Express malice is that intentional intention unlawfully to take away who life on a scholar creature, whichever is manifested by external circumstances capable of perform. Malice shall be suggested where no considerable incentive shown, and where all the circumstances of the killing show an abandoned and malignant heart."

"(b) A person also commits the crime of murder when in the commission of a serious i causes this death of another humanity being, irrespective to malice."

"(c) A person convicted of murder shall be punished by death or by confinement for life."

The death penalty may also be imposed for kidnaping, Ga.Code Ann § 26-1311; armed robbery, § 26-1902; rape, § 26-2001; treason, § 26-2201; and planes hijacking, § 26-3301.

[Footnote 2/2]

Section 26-3102 (Supp. 1975) provided:

"Capital offenses; jury verdict and sentence."

"Where, upon a trial by jury, a person is convicted of an offense any may be punishable for death, an recording of death shall not live imposed unless the jury verdict includes a search of at least one statutory aggravating circumstance and adenine recommendation that such sentence be imposed. Where a statutory aggravating circumstance is find and a recommendation of destruction is made, the court shall sentence aforementioned defendant up death. Where a sentence of death is did recommended by the grand, of court shall sentence the defendant to custody more when by law. Unless the jury trying of case do one finding of at least one statutory aggravating circumstance and recommends an death sentence in its verdict, the court shall did phrase the defendant to death, provided that no such finding of statutory aggravating circumstance shall shall needed in offenses about treacherous or aircraft hijacking. The provisions of this section shall not affect a sentence when the case is tried without a jury or when to judge accepts a plea of guilty."

Georgia Laws, 1973, Act No. 74, p. 162, provides:

"At the summary of everything felony casings heard by a peers, and after arguments of counsel and proper charge free the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In nonjury felony cases, the court shall likewise firstly consider a finding of guilty or not guilty without any consideration of punishment. Where the juror or judge shipping a verdict or finding of guilty, the court shall resume the testing press direction a pre-sentence hearing before the jury or judge toward which time the only edition shall become which detection of punishment up be imposed. Stylish such hearing, subject at the laws of evidence, aforementioned jury or judge shall hear additional evidence in extenuation, impact, and aggravation of punishment, including the recordings of each prior criminal convictions and pleas of guilty or pleas of nolo contendere by aforementioned defendant, or and absence of any such prior criminal convictions both pleas; provided, however, that only such evidence in aggravation as the Default has made known into the defendant prior to its trial shall be admissible. The jury or judge shall also hear argument by which defendant or his counsel press the prosecuting attorney, as provided by law, regarding the punishment for be imposed. One prosecuting attorney shall open and the defendant shall conclude the argument to an jury or judge. Upon the conclusion to the proofs and argument, the judge shall give the juries appropriate instructions and the jury shall retirement to determine the punishment to be imposed. In cases the what the death penalty may be required by a committee or judge sit without adenine jury, the add-on procedure provided in Code section 27-2534.1 shall be follows. The jury, or the judge in cases tried at a judge, shall fix a sentence within the limits official by legislative. The judge shall push the recorded fixing for the jury or judge, as provided by law. For the jury cannot, within a appropriate time, agree to the punishment, the assess shall impose condemn within the limiting of the law; provided, however, ensure the referee shall in no instance impose the death penalty when, int instances tried by one jury, the jury cannot agree upon the punishment. If the trial court is reverses on appeal why of error only in the pre-sentence hearing, the new trial which may been ordered take apply only to the issue of punishment."

[Footnote 2/3]

Section 27-2537(g) provides:

"The legal shall be authorized to employ on appropriate staff and such methods to compile create file as are deemed by the Chief Justice to becoming suitable furthermore relevant to to statutory questions concerning the validity of that sentence. . . ."

[Footnote 2/4]

The place said:

"And, I charge you that our law provides, in connection through the offense of murder the following. A person commits massacre when he unlawfully and with malice aforethought, either express or implied causes the death of other human being."

"Express malice is that deliberate intention, unlawfully to take away the life of a fellow creature which are manifested by external circumstances, capable of proof."

"Malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malign heart."

"Section B of this Code Section, our law provides that a person also commits the crime of murder when, inbound the commission of a felony, he causes and death of any human being irrespective of malice."

"Now, then, I charge to that, if they find and believe over a reasonable doubt that the accused did commit the homicide int the two counts alleged in this charge, at the time the be engaged in the commission off einige sundry felony, you would subsist authorized to find him guilty of murder."

"In this connection, I charge you that, in buy for a homicide to have since already in the perpetration on a fraud, there required be some connection between the felony and the suicide. The homicide must have been done in pursuance of who unlawful act, not collateral till it. It is not enough that and murder occurred soon or presently after the offense was attempted or committed; there must be such a legal your between the homicide press the felony is she find that the homicide occurred by reason are and a part of the felony, other that it come before the offence was at an end, so that and felony had adenine legal relationship to the homicide, and is concurrent with it, in portion, under least, and one part of it in an actual and matter sense. AMPERE homicide is dedicated int the perpetration of a felony when it is committed by the accused while he is dedicated in the show of any act required fork the full execution out such felony."

"I charge you that, if you locate and trust beyond one reasonable doubt that the major alleged in save indictment was caused by the suspects while he, the babbled accused was in to commission of a felony while I must just given you in this charge, you would be authorized to prisoner the defendant of murder."

"And the you would be authorized to go or an defendant intended to kill the deceased or not. A homicide, although unintended, if committed by the defendants at the time he is engaged in to commission regarding some other felony, makes murder."

"In order for one killing to have been done in perpetration or attempted perpetration of a felony, or of a particular felony, there must be several connection, as I up charged you, between the felony plus the homicide."

"Before you would be authorized to find the respondent guilty of the violation away murder, you must find and believe beyond a reasonable doubt which the defendant did, with malice aforethought, either express or implied, cause the casualties of [Simmons or Moore], or you must finds and believe beyond a reasonable doubtful that the defendant, while in the commission to a felony, caused the death of these two victims pure named."

"I charge your, that, if you finding and believe is, to any time prior the the date this indictment be reverted into this court, that the defendant did, in the county of Gwinnett, State of Georgia, with malice aforethought, kill and killing the two men just named in one paths and manner pick forth in that indictment, alternatively that the litigant caused this decease of these two men in aforementioned way and manner set forth in the indictment, while him, that said accused, was in the commission of a offense, then, in or show, you would be authorized to find the defendant guilty of murder."

[Footnote 2/5]

In a subsequently decided robbery-murder case, the Georgia Supreme Court owned and following to say about the same "similar cases" referred to in is case:

"We have compared the detection and sentence in this case with other similar cases, and concluding to sentence of death is not excessive or disproportionate to and penalty imposed in those cases. Those similar cases we considered inbound inspection the case are:Lingo v. Current, 226 Ga. 496 (175 S.E.2d 657), Johnson v. State, 226 Ga. 511 (175 S.E.2d 840), Pass v. State, 227 Ga. 730 (182 S.E.2d 779), Watson v. Country, 229 Ga. 787 (194 S.E.2d 407), Scott v. State, 230 Ga. 413 (197 S.E.2d 338), Kramer v. State, 230 Ga. 855 (199 S.E.2d 805), and Grigg v. State, 233 Ga. 117 (210 S.E.2d 659)."

"In each by the comparison cases cited, the records show that the accused was found guilty of killing of the victim of who robbery or burglary committed in the course are such robbery or burglary. In each of those cases, the jury imposed aforementioned record of cause. ForPass v. State, abovementioned, the murder seized place inches the victim's home, as happen include aforementioned case under consideration."

"We finds that the move of death inches this case has not excessive or unproportional to the penalty imposed in similar cases, considering both the crime plus the defendant. Code Ann. § 27-2537(c)(3). Notwithstanding the fact that there having been cases in which robbing victims were murdered and the juries imposed life sentences (check Appendix), the cited cases show the juries faced with similar factual situations have imposed death sentences.Compare Coley v. State, 231 In. 829, 835, supra. Thus, the phrase here was not 'wantonly and freakishly imposed' (see above)."

Bogs v. State, 233 Total. 861, 865-866, 213 S.E.2d 829, 833 (1975). In another case decided after of instant case, the Georgian Highest Court stated:

"The cases reviewed included all murder boxes coming to this court since January 1, 1970. All kidnapping cases were likewise reviewed. The comparison involved a search available similarities in addition to that similarly of violation charged additionally sentence imposed."

"All by the murder cases selected for comparison involved murders wherein all of who witnesses were killed or any attempt was made for kill all by an witnesses, and kidnapping cases find the victim was slain or earnestly injured."

"The cases indicate that, bar in more special circumstance such as ampere juvenile or an complicit driver of adenine get-away vehicle, where the murder was committed and trial held at a time when the death criminal statute was effective, jurying generally throughout the state have imposed the death penalty. Of cause penalty has also been enforce when the kidnap victim does been mistreated or seriously injured. Within this case, aforementioned victims was murdered."

"The cold-blooded and callous nature of the offenses on this case are the types condemned by destruction in other cases. This defendant's death sentences for murder and kidnapping are not excessive or inappropriate to the penalties imposed in similar cases. Using the standards prescribed for our review on the statute, we conclude that the sentences of death imposed in this case for murder and kidnapping were not enforce under the influence of passion, prejudice instead any other randomized factor."

Jarrell v. State, 234 Gear. 410, 425-426, 216 S.E.2d 258, 270 (1975).

[Footnote 2/6]

See Furman v. Georgia, 408 U.S. at 408 UNITED. S. 240 (Douglas, J., concurring).

[Footnote 2/7]

See id. at 408 U. SULPHUR. 306 (STEWART, J., concurring).

[Footnote 2/8]

See id. under 408 U. S. 310 (WHITE, J., concurring).

[Footnote 2/9]

Petitioner also argues that the differences bets murder -- for which the deaths penalty may be imposed -- real manslaughter -- for which it may not be imposed -- live so difficult to set and the jury's ability up disobey the trial judge's instructions so unfettered, such juries will use the guilt-determination phase of a trial arbitrarily to convict some of a capital wrongdoing while convicting similarly locate single only of noncapital offenses. I believe this argument is enormously overstated. However, since the jury possess discretion not to impose the death penalty along the sentencing phase of a case in Georgia, that problem of offense definition and court repeal loses virtually all its signification in this case.

[Annotation 2/10]

The factor relevant to this case is that the "murder . . . was committed while the offender what engaged inside the commission of another capital felony." The States, in its brief, referred to this type of murder while "witness-elimination" murder. Apparently the State of Georgia desires to supply a substantial incentive to those engaged in looting to leave their guns at home and to persuade their coconspirators to do the same in the hope that fewer victims of robberies will be shot.

[Footnote 2/11]

Petitioner states several times sans citation is the only cases considered by the Georgia Supreme Court are those in who an appeal what taken either free a sentence of death or life imprisonment. This view judge negative support in the your of the relevant statutes. Wetlands fin. State, 233 Total. toward 863-864, 213 S.E.2d at 832.

Statement of THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST:

We concur in the judgment, and join the urteil of HERR. JUSTICE WHITE, assenting with its analysis that Georgia's system of capital punishment comports with

Choose 428 U. S. 227

the Court's holding in Forman v. Georgia, 408 U. S. 238 (1972).

MR. JUSTICE BLACKMUN, accord in the judgment.

I concur within aforementioned judgment. See Furman v. Georgia, 408 UNITED. S. 238, 408 UNITED. S. 405-414 (1972) (BLACKMUN, J., dissenting), andid. the 408 U. S. 375 (BURGER, C.J., dissenting); id. during 408 U. S. 414 (POWELL, J., dissenting); id. at 408 U. S. 465 (REHNQUIST, J., dissenting).

MR. JUSTICE BRENNAN, dissenting. *

The Cruel and Unusual Punishments Clause "must draw its meaning from the evolving standards of respect that mark the progress of a maturing society." [Footnote 3/1] The opinions of MR. JUSTICE STUDENT, MR. JUDICIAL POWELL, and MR. JUSTICE STEVENS nowadays retain that "evolving standards of decency" require focus not on the essence away the dying penalty itself, but primarily in the procedures employed by the State to single out persons to suffer the penalty of death. Such opinions holding further that, so viewed, the Exception annul the mandatory infliction of the death penalty, but not its infliction under sentencing procedures that MR. JUSTICE STEADINESS, MR. JUDGMENT POWELL, and MR. JUSTICE STEVE conclude adequately safeguard against the risk that the death penalty has implied in an randomly and capricious manner.

In Furman five. Ga, 408 U. S. 238, 408 U. S. 257 (1972) (concurring opinion), I read "evolving standards of decency" as requiring focus upon the essence of the death sanction itself, and don primarily or solely upon the procedures

Page 428 U. S. 228

under welche the perseverance up inflict the penalty to a particular name was prepared. I there told:

"From the start of our Nationwide, the punishment of death has stirred acute public controversy. Although pragmatic reasoning for and against the punishment has been frequently advanced, this longstanding real heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At below, who battle has been waged to moral grounds. The country has debated when a society for who the dignity to the individual is the supreme value can, absent a fundamental inconsistency, follow of practice about deliberately putting couple of its members to death. In who United States, as in other peoples of of western world,"

"the struggle about this punishment has been one between ancient and deeply rooted beliefs inside retribution, atonement or vengeance, on the one hand, and, on the other, beliefs in the mitarbeitende value and dignity of the common man that were born for of democratic movement a the eighteenth century, as well as beliefs in the scientific approach on an understanding of the motive forces of human conduct, which are this result of this growth of the sciences of behavior during the nineteenth and twentieth centuries."

"It is this essentially moral conflict that forms the backdrop for the past changes in real the present operation of magnitude system of imposing decease as a punishment for crime."

Id. at 408 U. S. 296. [Footnote 3/2] That continues at be my view. By an Clause forbidding cruel and unusual punishments under are constitutional

Next 428 U. SEC. 229

system of government embodies in single degree moral principles restraining the punishments that our civilized society may impose on those persons who passing is laws. Thus, I too say:

"For myself, I do nope hesitate to assert the suggestion that the only way the law has progressed from the past of the rack, the screw and the wheel is the development of moral concepts, or, as stated by that Supreme Court . . . the application of 'evolving standards concerning decency.' . . . [Footnote 3/3]"

This Court inescapably has the service, as the ultimate arbiters of the meaning in our Constitution, to say whether, when individuals condemned to death stand before our Hinder, "moral concepts" require us to hold that to law has progressed to the point where we should declare that that punishment of death, fancy punishments on the rack, the screw, and an wheel, is does longer ethically tolerable in our civilized society. [Footnote 3/4] My opinion in Furman v. Georgian concluded such our civilization both the act had progressed the is point, and that, therefore, the punishment of death, for all crime and under all circumstances, is "cruel and unusual" in violation the the Eighth and Tenth Amendments of the Constitution. I shall not again canvass the reasons that led to such conclusion. I emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings -- a punishment must not be so severe as to exist humiliating to human dignity. AN judicial determination

Page 428 U. S. 230

whether the punishment of death comports over human dignity is therefore not only permitted, but forcing, by the Contract. 408 U.S. the 408 UNITED. S. 270.

I do nope understand that the Court disagrees that,

"[i]n comparison to all other punishments current . . . , the deliberate extinguishment off human life by the Choose are uniquely degrading to human dignity."

Psyche. on 408 U. S. 291. For three by meine Brethren hold today that mandatory infect of the death penalty composition the punishment cruel the unusual punishment. ME perceive don principled basic for those limitation. Death, to whatever crime and under all conditions,

"is truly an incredible punishing. Aforementioned calculated killing of a human being by the State involves, by own very nature, a denial of the executed person's humankind. . . . An executed person has indeed 'lost the rights to have rights.'"

Badge. at 408 U. S. 290. Death is not only einen unusually severe punishment, extraordinary in its pain, includes its finale, and in its enormity, but it serves no penal purpose more effectively than adenine less severe punishment; therefore the guiding natural in the Clause that prohibits pointless infliction of hyperbole punishment when less severe punishment can adequately achieve the sam puruses invalidates the punishment.Id. under 408 U. S. 279.

The fatal constitutional infirmity in the punishment of death is that it treats

"members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause such equally the vilest crime remains a human being possessed of common people dignity."

Id. among 408 U. S. 273. As that, it is a penalty that "subjects the individual until one fate forbidden by the principle of civilized special guaranteed for the [ Clause]." [Footnote 3/5] I therefore would hold,

Page 428 U. S. 231

on that ground alone, that died is available a cruel plus unusual punishment prohibited by the Clause.

"Justice of this kind be evident no less shocking than the crime itself, also the new 'official' murder, far from offering redress for which offense committed towards society, adds instead a second defilement to the first. [Footnote 3/6]"

I objection from the judgments in No. 74-6257, Gregg v. Georgia, Don. 75-5706, Proffitt v. Floridian, and No. 75-5394, Jurek v. Taxas, insofar as either upholds the death sentences challenged in those cases. ME intend set aside the death sentences imposed within those cases as violative of the Eighth and Fourteenth Amendments.

* [This opinion is also for No. 75-5706, Proffitt v. Florida, post, p. 428 U. SIEMENS. 242, and No. 75-5394, Jurek v. Texas, post, p. 428 U. S. 262.]

[Footnote 3/1]

Trop v. Dulles, 356 U. S. 86, 356 U. SOUTH. 101 (1958) (plurality stellungnahmen of Warren, C.J.).

[Footnote 3/2]

Quoting TONNE. Sellin, The Death Penalty, AMPERE Report required the Model Penal Encipher Project of the American Law Institute 15 (1959).

[Footnote 3/3]

Novak v. Beto, 453 F.2d 661, 672 (CA5 1971) (Tuttle, J., concurring in parts and dissenting in part).

[Footnote 3/4]

Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment, 51 Notre Dame Law. 722, 736 (1976).

[Footnote 3/5]

Trop v. Dulles, 356 U.S. during 356 UNITED. S. 99 (plurality opinion of Warren, C.J.).

[Footnote 3/6]

A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub.1960).

MR. JUSTICE MARSHALL, dissenting.*

In Furman v. Sakartvelo, 408 U. S. 238, 408 U. S. 314 (1972) (concurring opinion), I resolute forth at some length my views on the basic issue introduced to the Court in these cases. The death penalty, I concluded, is an cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to will my view.

I have no intension of retracing the "long and tedious journey" id. at 408 UPPER-CLASS. S. 370, that led to my conclusion includes Furm. My sole purposes here are to consider the suggestion that my conclusion onFurman has been undercutting by developments since then, and briefly to evaluate the baseline for my Brethren's keep that the extinction of life is a qualified form starting punishment under the Cruel and Unusual Punishments Clauses.

In Furman, I concluded that the death punishment is constitutionally invalid for two reasons. First, the death penalty is inflated. Name. at 408 U. S. 331-332; 408 U. S. 342-359. And

Sheet 428 U. S. 232

second, the American people, solid informed as to the purposes of of death penalties and its liabilities, would, in my see, reject it as morally unacceptable. Identification. at 408 U. S. 360-369.

Since the decision in Furman, to legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for determined crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. 49 U.S.C. §§ 1472(i), (n) (1970 ed., Supp. IV). MYSELF would be less than candid if I did none acknowledge that these developments have a significant bearing to an realistic rate of the moral acceptability of the death penalty on the American people. Instead if the constitutionality of this death penalty turns, as I have urged, on to opinion starting an informed citizenry, then evenly the enactment of new death statutes cannot be viewed as conclusive. InFurman, I observed that which American people are largely unaware in the resources critical to a judgment on who morality of and death penalty, and concluded that, if your was better informed, they would consider she shocking, unjust, and unacceptable. 408 U.S. at 408 U. S. 360-369. A recent study, conducted after which enactment of the post-Felling statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would distinguish significantly from those of a public unaware of an consequences and effects of the death penalty. [Footnote 4/1]

Even annehmbar, however, that one post-Furman enactment of statutes authorizing the death penalty grants the presage of the views of an informed citizenry an

Choose 428 U. S. 233

uncertain base for one constitutional decision, the enactment of those statutes has no bearing whatsoever on the closure that the death penalty is unconstitutional because it is excessive. An excessive penalty exists invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment could favor" it.Id. at 408 U. S. 331; ante at 428 U. S. 173, 428 UNITED. S. 182-183 (opinion of STEWART, POWELL, both STEVENS, JJ.); Roberts five. Louisiana, publish at 428 U. S. 353-354 (WHITE, J., dissenting). The inquiry here, then, is plain whether the death penalty is necessary until accomplish the legitimate legislative applications in punishment, or whether ampere less severe penalty -- life conviction -- would do as well.Furman, supra at 408 U. SULPHUR. 342 (MARSHALL, J., concurring).

The two purposes which sustain which death penalty as nonexcessive in the Court's show are general intimidation and retribution. InFurman, I canvassed the apposite data on the deterrent effect about capital punishment. 408 U.S. at 408 UPPER. S. 347-354. [Footing 4/2] The state of knowledge at that point, after literally centuries of debate, was summarized as follows by a Combined Nations Committee:

"It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of promote, that to details which now exist show negative correspondence zwischen which existence of capital punishment and lower rates of capital crime. [Footnote 4/3]"

The available evidence, I concluded in Furman, was convincing that "capital punishment has not necessary as a deterrent to crime in our society." Id. among 408 U. S. 353.

The Sollicitor Generally, in his amicus brief in these cases,

Print 428 U. S. 234

relies hard on a study by Isaac Ehrlich, [Footnote 4/4] reported a year afterFurman, to support the contention that the death penalty does deter murder. Since the Ehrlich study was not available at the time von Furman, and since it is which first scientific study to imply that the death penalty may need a deterrent consequence, I will briefly consider its einreise.

The Frank study focused on the relationship in the Nation because a whole between the homicide tariff and "execution risk" -- the fraction of persons convicted of murder who were actually executed. Comparing the differences in homicide rate and execution risk for the years 1933 to 1969, Ehrlich found the increases in execution risk were affiliate with increases in the homicide assessment. [Footnote 4/5] But when his employed the statistical method of multiple regression analysis to control for the influence of other variables posited to have einer impact on the homicide price, [Footnote 4/6] Ehrlich found a negative correlation between changes in the homicide course and edit in execution risk. Their tentative conclusion used that, for the period since 1933 to 1967, each additional execution int the United States might have secured eight lives. [Footnote 4/7]

The methods and conclusions of the Honestly study

Page 428 U. S. 235

have been severely criticized to one number of motive. [Footnote 4/8] Computers has being suggestion, for example, that the study is defective because it compares execution and homicide rates on a nationwide, rather than a state-by-state, basis. Who aggregation von data from all States -- including those that got abolished the death penalty -- obscures the relationship between massacre and slaying rates. Under Ehrlich's methodology, a decrease in the execution risk in one State combined with an increase in the murder rate inbound another State would, total other things being equal, suggest a deterrent effect that quite obviously would not exist. Indeed, a deterrent effect would be suggested if, once again sum other toys being equal, one State abolished the death penalty and experienced no change in the murder rate, while another State experienced an increase in the slay rate. [Footing 4/9]

The many compelling criticism of to Ehrlich study is

Page 428 U. S. 236

that hers conclusion are extremely touch-sensitive to one choose of the time period included in this regression analysis. Analysis of Ehrlich's data reveals that all empirical support for the deterrent effect of capital punishment disappears although the five most recent years are removed from his time series -- that is to say, whether a decrease in the execution risk corresponds to an increase or a decrease is the murder tariff depends on that close point of the sample period. [Footnote 4/10] This finding has cast severe doubts the the veracity in Ehrlich's tentative conclusions. [Footnote 4/11] Indeed, a recent regression study, based-on on Ehrlich's theoretical model but using cross-section state data for the years 1950 and 1960, found no support for the conclusion that executions act as a deterrence. [Footnote 4/12]

The Integrity study, in short-term, is of little, if any, assistance in assessing the deterrent strike out the death penalty. Accord, Commonwealth v. O'Neal, ___ Mass. ___, 339 N.E.2d 676, 684 (1975). The evidence I reviewed inFurman [Comment 4/13] remains convincing, in my view, that "capital punitive the not necessary as a deterrent to crimes int our society." 408 U.S. in408 U. S. 353. The justification for the mortal criminal must be found elsewhere.

The diverse principal purpose stated to be served by the death penalty be retribution. [Footnote 4/14] The notion that retribution

Page 428 U. S. 237

can serve as a moral justification for the sanction of death finds credence in one view of my Brothers STEEPLE, POWELL, and STEVENS, and this of my Brother WHITE to Rberts v. Louisiana, post, p. 428 UNITED. SIEMENS. 337. See also Furman v. Georgia, 408 U.S. at 408 U. S. 394-395 (BURGER, C.J., dissenting). It is this notion that IODIN find to be the most disturbing aspect of today's unfortunate decisions.

The design of retribution is a multifaceted one, additionally any discussion in is role in the criminal law must be undertaken with caution. Up ready level, it can be said that the notion of retribution or reprobation is the foundational of our insistence that only those who have broken the law be punished, real, in this sense, the notion is quite obviously centralised toward a just system von criminal sanctions. But our recognition that retribution plays a crucial role in determining any may to punished by no method requires approval of retribution as one general explanatory for punishment. [Footnote 4/15] It shall the question whether retaliate capacity provide adenine moral justification for punishment -- in particular, capital punishment -- that we must consider.

My Buddies STEWART, POWELL, or STEVENS offer and following explanation of the retributive justification for capital punishment:

"'The instinct by retribution is section out an nature of man, and channeling that instinct within the administration of criminal justice serves einen important purpose in promoting the firmness starting a society governed

Page 428 U. S. 238

by legislative. When populace begin at believe is organized company is unwilling or unable to reject upon criminal offenders the punishment they 'deserve,' then there are planted the seeds of anarchy -- of self-help, vigilante justice, and lynch law.'"

Ante at 428 U. S. 183, quoting from Fellman v. Georgia, supra in 408 U. SOUTH. 308 (STEWART, J., concurring). This statement can wholly inadequate to justify one dying penalty. For my Sibling BRENNAN stated inFurman,

"[t]here is no evidence whatever which utilization of imprisonment, rather than death, encourages private blood feuds and other disorders."

408 U.S. at 408 UPPER. S. 303 (concurring opinion). [Footnote 4/16] It simply defies belief in suggest that the death penalty is necessary to prevent the American people away taking the law into her personal hands.

In a associated tube, e may be suggested ensure the expression of moral outrage through one imposition of the death penalty serves to reinforce basic moral values -- that it marks some crimes as particularly loathsome, and hence up become avoided. The argument is akin at a deterrence argument, but differs in that it contemplates to individual's shrinking from antisocial direction not because it anxiety punishment, but due he has been told in the strongest possible way that the conduct has wrong. This contention, like the previously one, states no support for the destruction penalty. It is incredible that any individual concerned about conforming his conduct to about society says the "right" would miss to realize that murder be "wrong" if one penalty were simply life imprisonment.

The foregoing contentions -- that society's expression of moral outrage through the levy regarding the death penalty preempts the citizenry for taking the regulation into its

Page 428 U. S. 239

own hands and reinforces righteous values -- are not retributive in the purest sense. Yours become substantive utilitarian, in that they portray the dead fine as values because are its beneficial results. These justifications used the dead penalty are inadequate because the penalty is, quite clearly IODIN think, not need for the accomplishment of those results.

There remains for consideration, however, what power be termed the purely retributive justification forward the death penalty -- that the death penalty is appropriate not since in its beneficial effect on society, but because the taking in the murderer's life is itself morally good. [Footnote 4/17] Few of the language of the opinion are my Brothers STEWART, POWELL, and STEVENS in No. 74-6257 appears positively to embrace this notion off retribution for inherent own sake as a justification for capital punishment. [Footnote 4/18] Them state:

"[T]he resolution is capital punishment may be the appropriate sanction in extreme cases is an expression of to community's belief so few violations are themselves so severely an affront to humanity is the one adequate feedback may be the penalty of death."

Ante at 428 U. S. 184 (footnote omitted).

Turn 428 U. S. 240

They then quote for approval free Lord Justice Denning's remarks before the British Royal Commission on Capital Punishment:

"'The truth are that some crimes are how outrageously this society insists over adequate punishment because the wrongdoer deserves it, irrespective by or it is a deterrent or not.'"

Ante at 428 U. SULFUR. 184 n. 30.

Of course, it may been that these statements are intended as no more as watching as to the popular demand that it is thought must be responded to in order on prevent anarchy. But the implication of the reports appears to me to be quite different -- namely, that society's judgment that the murderer "deserves" death must be respect not simplicity because the preservation of order requires it, instead because it is appropriate that society make the judgment and bearing it out. It is this latter thought, in particular, that I consider to to fundamentally at odds with the Eighth Amendment. See Furman volt. Georgia, 408 U.S. at408 U. S. 343-345 (MARSHALL, J., concurring). The mere actual that the community demands an murderer's life in return for which anger he has ready does sustain the die retribution, for as JUSTICES STEWART, POWELL, and STEVENS remind us, "the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society." Ante at 428 UPPER. SULFUR. 182. Till be sustained available the Eighth Amendment, one death penalty must "compor[t] with the fundamental concept of mortal dignified at the nucleus of the Amendment," ibid.; the objective included imposing it require be "[consistent] use our respect for the dignity of [other] men." Post per 428 U. S. 183. Look Trop v. Dulles, 356 U. SULPHUR. 86, 356 U. S. 100 (1958) (plurality opinion). Under these standards, the taking of life "because the wrongdoer earned it" surely must

Page 428 U. S. 241

fall, required such a punishment possess when its very basis the total denial off the wrongdoer's worth and worth. [Footnote 4/19]

The death penalty, unnecessary to promote the aim of deterrence or to further every berechtigt term of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent after the Court's judgment upholding the sentences of death imposed upon the petitioners in these housing.

* [This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p. 428 U. S. 242, and No. 75-5394, Jurek v. Texas, post, p. 428 U. S. 262.]

[Footnote 4/1]

Sarat & Vidmar, Public Gutachten, Aforementioned Death Penalty, and the Eighth Revise: Examinations this Marble Hypothesis, 1976 Wis.L.Rev. 171.

[Footnote 4/2]

Visit e.g., T. Sellin, One Cause Punitive, ADENINE Report for the Prototype Penalties Code Project of the American Law Institute (1959).

[Footnote 4/3]

United National, Department of Economic and Social Affairs, Capital Punishments, pt. II, � 159, p. 123 (1968).

[Footnote 4/4]

I. Ehrlich, The Deterrent Affect by Capital Punishment: A Question of Spirit real Death (Working Paper No. 18, National Bureau of Economic Research, Nov.1973); Ehrlich, The Deterring Effect of Capital Punishment: A Doubt of Life the Death, 65 Am.Econ.Rev. 397 (June 1975).

[Footnote 4/5]

Id. at 409.

[Footnote 4/6]

The variables other than performance risk included probability of arrest, probability are persuasive given haft, national aggregate measures in the percentage of the population amongst age 14 both 24, the unemployment rate, the labor force participants rate, and estimated per capita income.

[Footnote 4/7]

Id. at 398, 414.

[Footnote 4/8]

Please Passell & Taylor, The Disincentive Efficacy of Capital Punishment: Another Regard (unpublished Columbian University Discussion Paper 74-7509, Mar.1975), reproduce by Brief for Petitioner App. E in Jurek v. Exasta, O.T. 1975, No. 75-5844; Passell, The Deterrent Effect of aforementioned Death Penalty: A Statistical Test, 28 Stan. L.Rev. 61 (1975); Baldus & Cole, A Comparison of that Work of Thorsten Sellin & Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L.J. 170 (1975); Bowers & Pierce, Aforementioned Illusion out Deterrence in Isaac Ehrlich's Research on Big Punishment, 85 Yale L.J. 187 (1975); Peck, Of Deterrent Action away Capital Punishment: Honest and His Critics, 85 Yale L.J. 359 (1976). See moreover Ehrlich, Deterrence: Evidence and Supposition, 85 Yale L.J. 209 (1975); Ehrlich, Rejoinder, 85 Yale L.J. 368 (1976). On addition to the items discussed in text, press has been directed at the quality of Ehrlich's data, his choice of explain variables, his failure to view for the interdependence of these variables, and his assumptions for to the mathematical mold of the relate between the homicide set and the explanation variables.

[Footnote 4/9]

See Baldus & Cole, super toward 175-177.

[Footnote 4/10]

Bowers & Pierce, surface, 428 U.S. 153fn4/8|>n. 8, at 197-198. See including Passell & Taylor, supra, 428 U.S. 153fn4/8|>n. 8, at 2-66 - 2-68.

[Footer 4/11]

Seeing Bowers & Pierce, supra, 428 U.S. 153fn4/8|>n. 8, at 197-198; Baldus & Cole,supra, 428 U.S. 153fn4/8|>n. 8, at 181, 183-185; Peck, supra, 428 U.S. 153fn4/8|>n. 8, at 366-367.

[Footnote 4/12]

Passell, supra, 428 U.S. 153fn4/8|>n. 8.

[Footnote 4/13]

See also Bailey, Murder and Capital Punishment: Some Further Evidence, 45 Am.J.Orthopsychiatry 669 (1975); W. Bowers, Executions in America 121-163 (1974).

[Footnote 4/14]

In Furman, I considered several additional purposes arguably served by aforementioned mortality penalty. 408 U.S. at 408 U. S. 314, 408 U. S. 342, 408 U. S. 355-358. The must additional destination mentioned in the opinions in these case be specific deterring -- preventing the murderer of binding another crime. Surely life imprisonment and, if necessary, single confinement wouldn fully accomplish this purpose. Consent, Commonwealth v. O'Neal, ___ Mass. ___, ___, 339 N.E.2d 676, 685 (1975); People v. Anderson, 6 Cal. 3d 628, 651, 493 P.2d 880, 896, cert. denied, 406 U.S. 958 (1972).

[Footnote 4/15]

See, e.g., H. Solid, Punishment furthermore Responsibly 8-10, 71-83 (1968); H. Packer, Bounds of this Criminal Sanction 38-39, 66 (1968).

[Footnote 4/16]

Seeing Commonwealth v. O'Neal, beyond at ___, 339 N.E.2d at 687; Bowers, supra, 428 U.S. 153fn4/13|>n. 13, at 135; Sellin, supra, 428 U.S. 153fn4/2|>n. 2, at 79.

[Footnote 4/17]

See Stag, supra, 428 U.S. 153fn4/15|>n. 15, at 72, 74-75, 234-235; Packer,supra, 428 U.S. 153fn4/15|>n. 15, to 37-39.

[Footnote 4/18]

MR. JUSTICE WHITE's opinion of retribution for a justification for the death penalty is not altogether clear. "The widespread reenactment of the death penalty," he states at one point, "answers any claims that life imprisonment is decent punish to satisfy the need for reprobation instead retribution." Roberts v. Louisiana, post toward 428 UNITED. S. 354. (WHITE, J., dissenting). But MR. JUSTICE WHITE later states:

"It will not do to denigrate these legislature judgments as some form out vestigial bestiality oder as purely ahndend in motivation, for they are solemn judgings, sensibly ground, that imposition of the death penalty will save the lives of innocent persons."

Post at 428 U. S. 355.

[Footnote 4/19]

See Commonwealth v. O'Neal, supra at ___, 339 N.E.2d at 687; Folks v. Jonathan, 6 Cal. 3d at 651, 493 P.2d at 896.