Petitioner, who was convicted of murder and whose death sentence
was upheld on appeal, challenges the constitutionality of the Texas
procedures enacted after this Court's decision in
Furman v.
Georgia, 408 U. S. 238. The
new Texas Penal Code limits capital homicides to intentional and
knowing murders committed in five situations. Texas also adopted a
new capital sentencing procedure, which requires the jury to answer
the following three questions in a proceeding that takes place
after a verdict finding a person guilty of one of the specified
murder categories: (1) whether the conduct of the defendant causing
the death was committed deliberately and with the reasonable
expectation that the death would result; (2) whether it is probable
that the defendant would commit criminal acts of violence
constituting a continuing threat to society; and (3) if raised by
the evidence, whether the defendant's conduct was an unreasonable
response to the provocation, if any, by the deceased. If the jury
finds that the State has proved beyond a reasonable doubt that the
answer to each of the three questions is affirmative, the death
sentence is imposed; if it finds that the answer to any question is
negative, a sentence of life imprisonment results. The Texas Court
of Criminal Appeals in this case indicated that it will interpret
the "continuing threat to society" question to mean that the jury
could consider various mitigating factors.
Held: The judgment is affirmed. Pp.
428 U. S.
268-277;
428 U. S. 277;
428 U. S.
278-279;
428 U. S.
279.
522
S.W.2d 934, affirmed.
MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS
concluded that:
1. The imposition of the death penalty is not
per se
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments.
Gregg, ante at
428 U. S.
168-187. P.
428 U. S.
268.
2. The Texas capital sentencing procedures do not violate the
Eighth and Fourteenth Amendments. Texas' action in narrowing
capital offenses to five categories in essence requires the jury to
find the existence of a statutory aggravating circumstance
before
Page 428 U. S. 263
the death penalty may be imposed, thus requiring the sentencing
authority to focus on the particularized nature of the crime. And,
though the Texas statute does not explicitly speak of mitigating
circumstances, it has been construed to embrace the jury's
consideration of such circumstances. Thus, as in the cases of
Gregg v. Georgia, ante p.
428 U. S. 153, and
Proffitt v. Florida, ante p.
428 U. S. 242, the
Texas capital sentencing procedure guides and focuses the jury's
objective consideration of the particularized circumstances of the
individual offense and the individual offender before it can impose
a sentence of death. The Texas law has thus eliminated the
arbitrariness and caprice of the system invalidated in
Furman. Petitioner's contentions to the contrary are
without substance. Pp.
428 U. S.
268-276.
(a) His assertion that arbitrariness still pervades the entire
Texas criminal justice system fundamentally misinterprets
Furman. Gregg, ante at
428 U. S.
198-199. P.
428 U. S.
274.
(b) Petitioner's contention that the second statutory question
is unconstitutionally vague because it requires the prediction of
human behavior lacks merit. The jury's task in answering that
question is one that must commonly be performed throughout the
American criminal justice system, and Texas law clearly satisfies
the essential requirement that the jury have all possible relevant
information about the individual defendant. Pp.
428 U. S.
274-276.
THE CHIEF JUSTICE concurred in the judgment.
See Furman v.
Georgia, supra at
408 U. S. 375
(BURGER, C.J., dissenting). P.
428 U. S.
277.
MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST, concluded that, under the revised Texas law, the
substantive crime of murder is narrowly defined, and when murder
occurs in one of the five circumstances detailed in the statute,
the death penalty must be imposed if the jury makes the certain
additional findings against the defendant. Petitioner's contentions
that unconstitutionally arbitrary or discretionary statutory
features nevertheless remain are without substance,
Roberts v.
Louisiana, post at
428 U. S.
348-350 (WHITE, J., dissenting);
Gregg v. Georgia,
ante at
428 U. S.
224-225 (WHITE, J., concurring in judgment), as is his
assertion that the Eighth Amendment forbids the death penalty under
any and all circumstances.
Roberts v. Louisiana, post at
428 U. S.
350-356 (WHITE, J., dissenting). Pp.
428 U. S.
278-279.
MR. JUSTICE BLACKMUN concurred in the judgment.
See Furman
v. Georgia, 408 U. S. 238,
408 U. S.
405-414 (BLACKMUN, J., dissenting), and
id. at
408 U. S. 375,
408 U. S. 414,
and
408 U. S. 465.
P.
428 U. S.
279.
Page 428 U. S. 264
Judgment of the Court, and opinion of STEWART, POWELL, and
STEVENS, JJ., announced by STEVENS, J. BURGER, C.J., filed a
statement concurring in the judgment,
post, p.
428 U. S. 277.
WHITE, J., filed an opinion concurring in the judgment, in which
BURGER, C.J., and REHNQUIST, J., joined,
post, p.
428 U. S. 277.
BLACKMUN, J., filed a statement concurring in the judgment,
post, p.
428 U. S. 279.
BRENNAN, J.,
ante p.
428 U. S. 227,
and MARSHALL, J.,
ante p.
428 U. S. 231,
filed dissenting opinions.
Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR.
JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE
STEVENS.
The issue in this case is whether the imposition of the sentence
of death for the crime of murder under the law of Texas violates
the Eighth and Fourteenth Amendments to the Constitution.
I
The petitioner in this case, Jerry Lane Jurek, was charged by
indictment with the killing of Wendy Adams
Page 428 U. S. 265
"by choking and strangling her with his hands, and by drowning
her in water by throwing her into a river . . . in the course of
committing and attempting to commit kidnapping of and forcible rape
upon the said Wendy Adams. [
Footnote 1] "
Page 428 U. S. 266
The evidence at his trial consisted of incriminating statements
made by the petitioner, [
Footnote
2] the testimony of several people who saw the petitioner and
the deceased during the day she was killed, and certain technical
evidence. This evidence established that the petitioner, 22 years
old at the time, had been drinking beer in the afternoon. He and
two young friends later went driving together in his old pickup
truck. The petitioner expressed a desire for sexual relations with
some young girls they saw, but one of his companions said the girls
were too young. The petitioner then dropped his two friends off at
a pool hall. He was next seen talking to Wendy, who was 10 years
old, at a public swimming pool where her grandmother had left her
to swim. Other witnesses testified that they later observed a man
resembling the petitioner driving an old pickup truck through town
at a high rate of speed, with a young blond girl standing screaming
in the bed of the truck. The last witness who saw them heard the
girl crying "help me,
Page 428 U. S. 267
help me." The witness tried to follow them, but lost them in
traffic. According to the petitioner's statement, he took the girl
to the river, choked her, [
Footnote
3] and threw her unconscious body in the river. Her drowned
body was found downriver two days later.
At the conclusion of the trial, the jury returned a verdict of
guilty.
Texas law requires that, if a defendant has been convicted of a
capital offense, the trial court must conduct a separate sentencing
proceeding before the same jury that tried the issue of guilt. Any
relevant evidence may be introduced at this proceeding, and both
prosecution and defense may present argument for or against the
sentence of death. The jury is then presented with two (sometimes
three) questions, [
Footnote 4]
the answers to which determine whether a death sentence will be
imposed.
During the punishment phase of the petitioner's trial, several
witnesses for the State testified to the petitioner's bad
reputation in the community. The petitioner's father countered with
testimony that the petitioner had always been steadily employed
since he had left school, and that he contributed to his family's
support.
The jury then considered the two statutory questions relevant to
this case: (1) whether the evidence established beyond a reasonable
doubt that the murder of the deceased was committed deliberately
and with the reasonable expectation that the death of the deceased
or another would result, and (2) whether the evidence established
beyond a reasonable doubt that there was
Page 428 U. S. 268
a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society. The
jury unanimously answered "yes" to both questions, and the judge,
therefore, in accordance with the statute, sentenced the petitioner
to death. The Court of Criminal Appeals of Texas affirmed the
judgment.
522
S.W.2d 934 (1975).
We granted certiorari, 423 U.S. 1082, to consider whether the
imposition of the death penalty in this case violates the Eighth
and Fourteenth Amendments of the United States Constitution.
II
The petitioner argues that the imposition of the death penalty
under any circumstances is cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. We reject this
argument for the reasons stated today in
Gregg v. Georgia,
ante at
428 U. S.
168-187.
III
A
After this Court held Texas' system for imposing capital
punishment unconstitutional in
Branch v. Texas, decided
with
Furman v. Georgia, 408 U. S. 238
(1972), the Texas Legislature narrowed the scope of its laws
relating to capital punishment. The new Texas Penal Code limits
capital homicides to intentional and knowing murders committed in
five situations: murder of a peace officer or fireman; murder
committed in the course of kidnaping, burglary, robbery, forcible
rape, or arson; murder committed for remuneration; murder committed
while escaping or attempting to escape from a penal institution;
and murder committed by a prison inmate when the victim is a prison
employee.
See Tex.Penal Code § 19.03 (1974).
Page 428 U. S. 269
In addition, Texas adopted a new capital sentencing procedure.
See Tex.Code Crim.Proc., Art. 37.071 (Supp. 1971976). That
procedure requires the jury to answer three questions in a
proceeding that takes place subsequent to the return of a verdict
finding a person guilty of one of the above categories of murder.
The questions the jury must answer are these:
"(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;"
"(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and"
"(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased."
Art. 37.071(b) (Supp. 1975-1976).
If the jury finds that the State has proved beyond a reasonable
doubt that the answer to each of the three questions is yes, then
the death sentence is imposed. If the jury finds that the answer to
any question is no, then a sentence of life imprisonment results.
Arts. 37.071(c), (e) (Supp. 1975-1976). [
Footnote 5] The law also provides for an expedited
review by the Texas Court of Criminal Appeals.
See Art.
37.071(f) (Supp. 1975-1976).
Page 428 U. S. 270
The Texas Court of Criminal Appeals has thus far affirmed only
two judgments imposing death sentences under its
post-
Furman law -- in this case and in
Smith v.
State, No. 49,809 (Feb. 18, 1976) (rehearing pending;
initially reported in advance sheet for 534 S.W.2d but subsequently
withdrawn from bound volume). In the present case, the state
appellate court noted that its law
"limits the circumstances under which the State may seek the
death penalty to a small group of narrowly defined and particularly
brutal offenses. This insures that the death penalty will only be
imposed for the most serious crimes, [and] . . . that [it] will
only be imposed for the same type of offenses which occur under the
same types of circumstances."
522 S.W.2d at 939.
While Texas has not adopted a list of statutory aggravating
circumstances the existence of which can justify the imposition of
the death penalty, as have Georgia and Florida, its action in
narrowing the categories of murders for which a death sentence may
ever be imposed serves much the same purpose.
See McGautha v.
California, 402 U. S. 183,
402 U. S. 206
n. 16 (1971); Model Penal Code § 201.6, Comment 3, pp. 71-72
(Tent.Draft No. 9, 1959). In fact, each of the five classes of
murders made capital by the Texas statute is encompassed in Georgia
and Florida by one or more of their statutory aggravating
circumstances. For example, the Texas statute requires the jury at
the guilt-determining stage to consider whether the crime was
committed in the course of a particular felony, whether it was
committed for hire, or whether the defendant was an inmate of a
penal institution at the time of its commission.
Cf. Gregg v.
Georgia, ante at
428 U. S.
165-166, n. 9;
Proffitt v. Florida, ante at
428 U. S.
248-249, n. 6. Thus, in essence, the Texas statute
requires that the jury find the existence of a statutory
aggravating circumstance before the death penalty may be
imposed.
Page 428 U. S. 271
So far as consideration of aggravating circumstances is
concerned, therefore, the principal difference between Texas and
the other two States is that the death penalty is an available
sentencing option -- even potentially -- for a smaller class of
murders in Texas. Otherwise, the statutes are similar. Each
requires the sentencing authority to focus on the particularized
nature of the crime.
But a sentencing system that allowed the jury to consider only
aggravating circumstances would almost certainly fall short of
providing the individualized sentencing determination that we today
have held in
Woodson v. North Carolina, post at
428 U. S.
303-305, to be required by the Eighth and Fourteenth
Amendments. For such a system would approach the mandatory laws
that we today hold unconstitutional in
Woodson and
Roberts v. Louisiana, post, p.
428 U. S. 325.
[
Footnote 6] A jury must be
allowed to consider on the basis of all relevant evidence not only
why a death sentence should be imposed, but also why it should not
be imposed.
Thus, in order to meet the requirement of the Eighth and
Fourteenth Amendments, a capital sentencing system must allow the
sentencing authority to consider mitigating circumstances. In
Gregg v. Georgia, we today hold constitutionally valid a
capital sentencing system
Page 428 U. S. 272
that directs the jury to consider any mitigating factors, and,
in
Proffitt v. Florida, we likewise hold constitutional a
system that directs the judge and advisory jury to consider certain
enumerated mitigating circumstances. The Texas statute does not
explicitly speak of mitigating circumstances; it directs only that
the jury answer three questions. Thus, the constitutionality of the
Texas procedures turns on whether the enumerated questions allow
consideration of particularized mitigating factors.
The second Texas statutory question [
Footnote 7] asks the jury to determine "whether there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society" if
he were not sentenced to death. The Texas Court of Criminal Appeals
has yet to define precisely the meanings of such terms as "criminal
acts of violence" or "continuing threat to society." In the present
case, however, it indicated that it will interpret this second
question so as to allow a defendant to bring to the jury's
attention whatever mitigating circumstances he may be able to
show:
"In determining the likelihood that the defendant would be a
continuing threat to society, the jury
Page 428 U. S. 273
could consider whether the defendant had a significant criminal
record. It could consider the range and severity of his prior
criminal conduct. It could further look to the age of the defendant
and whether or not, at the time of the commission of the offense,
he was acting under duress or under the domination of another. It
could also consider whether the defendant was under an extreme form
of mental or emotional pressure, something less, perhaps, than
insanity, but more than the emotions of the average man, however
inflamed, could withstand."
522 S.W.2d at 939-940.
In the only other case in which the Texas Court of Criminal
Appeals has upheld a death sentence, it focused on the question of
whether any mitigating factors were present in the case.
See
Smith v. State, No. 49,809 (Feb. 18, 1976). In that case, the
state appellate court examined the sufficiency of the evidence to
see if a "yes" answer to question 2 should be sustained. In doing
so, it examined the defendant's prior conviction on narcotics
charges, his subsequent failure to attempt to rehabilitate himself
or obtain employment, the fact that he had not acted under duress
or as a result of mental or emotional pressure, his apparent
willingness to kill, his lack of remorse after the killing, and the
conclusion of a psychiatrist that he had a sociopathic personality
and that his patterns of conduct would be the same in the future as
they had been in the past.
Thus, Texas law essentially requires that one of five
aggravating circumstances be found before a defendant can be found
guilty of capital murder, and that, in considering whether to
impose a death sentence, the jury may be asked to consider whatever
evidence of mitigating circumstances the defense can bring before
it. It thus appears that, as in Georgia and Florida, the Texas
Page 428 U. S. 274
capital sentencing procedure guides and focuses the jury's
objective consideration of the particularized circumstances of the
individual offense and the individual offender before it can impose
a sentence of death.
B
As in the Georgia and Florida cases, however, the petitioner
contends that the substantial legislative changes that Texas made
in response to this Court's
Furman decision are no more
than cosmetic in nature, and have, in fact, not eliminated the
arbitrariness and caprice of the system held in
Furman to
violate the Eighth and Fourteenth Amendments. [
Footnote 8]
(1)
The petitioner first asserts that arbitrariness still pervades
the entire criminal justice system of Texas -- from the
prosecutor's decision whether to charge a capital offense in the
first place and then whether to engage in plea bargaining, through
the jury's consideration of lesser included offenses, to the
Governor's ultimate power to commute death sentences. This
contention fundamentally misinterprets the
Furman
decision, and we reject it for the reasons set out in our opinion
today in
Gregg v. Georgia, ante at
428 U. S.
199.
(2)
Focusing on the second statutory question that Texas requires a
jury to answer in considering whether to impose a death sentence,
the petitioner argues that it is impossible to predict future
behavior, and that the question is so vague as to be meaningless.
It is, of course, not easy to predict future behavior. The fact
that such a determination is difficult, however, does not
Page 428 U. S. 275
mean that it cannot be made. Indeed, prediction of future
criminal conduct is an essential element in many of the decisions
rendered throughout our criminal justice system. The decision
whether to admit a defendant to bail, for instance, must often turn
on a judge's prediction of the defendant's future conduct.
[
Footnote 9] And any sentencing
authority must predict a convicted person's probable future conduct
when it engages in the process of determining what punishment to
impose. [
Footnote 10] For
those sentenced to prison, these same predictions must be made by
parole authorities. [
Footnote
11] The task that a Texas jury
Page 428 U. S. 276
must perform in answering the statutory question in issue is
thus basically no different from the task performed countless times
each day throughout the American system of criminal justice. What
is essential is that the jury have before it all possible relevant
information about the individual defendant whose fate it must
determine. Texas law clearly assures that all such evidence will be
adduced.
IV
We conclude that Texas' capital sentencing procedures, like
those of Georgia and Florida, do not violate the Eighth and
Fourteenth Amendments. By narrowing its definition of capital
murder, Texas has essentially said that there must be at least one
statutory aggravating circumstance in a first-degree murder case
before a death sentence may even be considered. By authorizing the
defense to bring before the jury at the separate sentencing hearing
whatever mitigating circumstances relating to the individual
defendant can be adduced, Texas has ensured that the sentencing
jury will have adequate guidance to enable it to perform its
sentencing function. By providing prompt judicial review of the
jury's decision in a court with statewide jurisdiction, Texas has
provided a means to promote the evenhanded, rational, and
consistent imposition of death sentences under law. Because this
system serves to assure that sentences of death will not be
"wantonly" or "freakishly" imposed, it does not violate the
Constitution.
Furman v. Georgia, 408 U.S. at
408 U. S. 310
(STEWART, J., concurring).
Page 428 U. S. 277
Accordingly, the judgment of the Texas Court of Criminal Appeals
is affirmed.
It is so ordered.
[For dissenting opinion of MR. JUSTICE BRENNAN,
see
ante p.
428 U. S.
227.]
[For dissenting opinion of MR. JUSTICE MARSHALL,
see
ante p.
428 U. S.
231.]
[
Footnote 1]
At the time of the charged offense, Texas law provided:
"Whoever shall voluntarily kill any person within this State
shall be guilty of murder. Murder shall be distinguished from every
other species of homicide by the absence of circumstances which
reduce the offense to negligent homicide or which excuse or justify
the killing."
Tex.Penal Code, Art. 1256 (1973).
Under the new Texas Penal Code (effective Jan. 1, 1974), murder
is now defined by § 19.02(a):
"A person commits an offense if he:"
"(1) intentionally or knowingly causes the death of an
individual;"
"(2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an
individual; or"
"(3) commits or attempts to commit a felony, other than
voluntary or involuntary manslaughter, and in the course of and in
furtherance of the commission or attempt, or in immediate flight
from the commission or attempt, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of an
individual."
Texas law prescribed the punishment for murder as follows:
"(a) Except as provided in subsection (b) of this Article, the
punishment for murder shall be confinement in the penitentiary for
life or for any term of years not less than two."
"(b) The punishment for murder with malice aforethought shall be
death or imprisonment for life if:"
"(1) the person murdered a peace officer or fireman who was
acting in the lawful discharge of an official duty and who the
defendant knew was a peace officer or fireman;"
"(2) the person intentionally committed the murder in the course
of committing or attempting to commit kidnapping, burglary,
robbery, forcible rape, or arson;"
"(3) the person committed the murder for remuneration or the
promise of remuneration or employed another to commit the murder
for remuneration or the promise of remuneration;"
"(4) the person committed the murder while escaping or
attempting to escape from a penal institution;"
"(5) the person, while incarcerated in a penal institution,
murdered another who was employed in the operation of the penal
institution."
"(c) If the jury does not find beyond a reasonable doubt that
the murder was committed under one of the circumstances or
conditions enumerated in Subsection (b) of this Article, the
defendant may be convicted of murder, with or without malice, under
Subsection (a) of this Article or of any other lesser included
offense."
Tex.Penal Code, Art. 1257 (1973). Article 1257 has been
superseded by § 19.03 of the new Texas Penal Code, which is
substantially similar to Art. 1257.
[
Footnote 2]
The court held a separate hearing to determine whether these
statements were given voluntarily, and concluded that they were.
The question of the voluntariness of the confessions was also
submitted to the jury. The Court of Criminal Appeals affirmed the
admissibility of the statements.
522
S.W.2d 934, 943 (1975).
[
Footnote 3]
The petitioner originally stated that he started choking Wendy
when she angered him by criticizing him and his brother for their
drinking. In a later statement, he said that he choked her after
she refused to have sexual relations with him and started
screaming.
[
Footnote 4]
See infra at
428 U. S.
269.
[
Footnote 5]
The jury can answer "yes" only if all members agree; it can
answer "no" if 10 of 12 members agree. Art. 37.071(d) (Supp.
1971976). Texas law is unclear as to the procedure to be followed
in the event that the jury is unable to answer the questions.
See Vernon's Texas Codes Ann. -- Penal § 19.03, Practice
Commentary, p. 107 (1974).
[
Footnote 6]
When the drafters of the Model Penal Code considered a proposal
that would have simply listed aggravating factors as sufficient
reasons for imposition of the death penalty, they found the
proposal unsatisfactory:
"Such an approach has the disadvantage, however, of according
disproportionate significance to the enumeration of aggravating
circumstances when what is rationally necessary is . . . the
balancing of any aggravations against any mitigations that appear.
The object sought is better attained, in our view, by requiring a
finding that an aggravating circumstance has been established
and a finding that there are no substantial mitigating
circumstances."
Model Penal Code § 201.6, Comment 3, p. 72 (Tent.Draft No. 9,
1959) (emphasis in original).
[
Footnote 7]
The Texas Court of Criminal Appeals has not yet construed the
first and third questions (which are set out in the text,
supra at
428 U. S.
269); thus, it is as yet undetermined whether or not the
jury's consideration of those questions would properly include
consideration of mitigating circumstances. In at least some
situations, the questions could, however, comprehend such an
inquiry. For example, the third question asks whether the conduct
of the defendant was unreasonable in response to any provocation by
the deceased. This might be construed to allow the jury to consider
circumstances which, though not sufficient as a defense to the
crime itself, might nevertheless have enough mitigating force to
avoid the death penalty -- a claim, for example, that a woman who
hired an assassin to kill her husband was driven to it by his
continued cruelty to her. We cannot, however, construe the statute;
that power is reserved to the Texas courts.
[
Footnote 8]
See Branch v. Texas, decided with
Furman v.
Georgia, 408 U. S. 238
(1972).
[
Footnote 9]
See, e.g., American Bar Association Project on
Standards for Criminal Justice, Pretrial Release § 5.1(a) (Approved
Draft 1968):
"It should be presumed that the defendant is entitled to be
released on order to appear or on his own recognizance. The
presumption may be overcome by a finding that there is substantial
risk of nonappearance. . . . In capital cases, the defendant may be
detained pending trial if the facts support a finding that the
defendant is likely to commit a serious crime, intimidate witnesses
or otherwise interfere with the administration of justice, or will
flee if released."
[
Footnote 10]
See, e.g., id., Sentencing Alternatives and Procedures
§ 2.5(c):
"A sentence not involving total confinement is to be preferred
in the absence of affirmative reasons to the contrary. Examples of
legitimate reasons for the selection of total confinement in a
given case are:"
"(i) Confinement is necessary in order to protect the public
from further criminal activity by the defendant. . . ."
A similar conclusion was reached by the drafters of the Model
Penal Code:
"The Court shall deal with a person who has been convicted of a
crime without imposing sentence of imprisonment unless, having
regard to the nature and circumstances of the crime and the
history, character and condition of the defendant, it is of the
opinion that his imprisonment is necessary for protection of the
public because:"
"(a) there is undue risk that during the period of a suspended
sentence or probation the defendant will commit another crime."
Model Penal Code § 7.01(1) (Proposed Official Draft 1962).
[
Footnote 11]
See, e.g., id. § 305.9(1):
"Whenever the Board of Parole considers the first release of a
prisoner who is eligible for release on parole, it shall be the
policy of the Board to order his release unless the Board is of the
opinion that his release should be deferred because:"
"(a) there is substantial risk that he will not conform to the
conditions of parole. . . . "
MR. CHIEF JUSTICE BURGER, concurring in judgment.
I concur in the judgment.
See Furman v. Georgia,
408 U. S. 238,
408 U. S. 375
(1972) (BURGER, C.J., dissenting).
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring in the judgment.
Following the invalidation of the Texas capital punishment
statute in
Branch v. Texas, decided with
Furman v.
Georgia, 408 U. S. 238
(1972), the Texas Legislature reenacted the death penalty for five
types of murder, including murders committed in the course of
certain felonies and required that it be imposed providing that,
after returning a guilty verdict in such murder cases and after a
sentencing proceeding at which all relevant evidence is admissible,
the jury answers two questions in the affirmative and a third if
raised by the evidence:
"(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;"
"(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and"
"(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable
Page 428 U. S. 278
in response to the provocation, if any, by the deceased."
Tex.Code Crim.Proc., Art. 37.071(b) (Supp. 1975-1976). The
question in this case is whether the death penalty imposed on Jerry
Lane Jurek for the crime of felony murder may be carried out
consistently with the Eighth and Fourteenth Amendments.
The opinion of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR.
JUSTICE STEVENS describes, and I shall not repeat, the facts of the
crime and proceedings leading to the imposition of the death
penalty when the jury unanimously gave its affirmative answers to
the relevant questions posed in the judge's post-verdict
instructions. I also agree with that opinion that the judgment of
the Texas Court of Criminal Appeals, which affirmed the conviction
and judgment, must be affirmed here.
522
S.W.2d 934 (1975).
For the reasons stated in my dissent in
Roberts v.
Louisiana, post at
428 U. S.
350-356, I cannot conclude that the Eighth Amendment
forbids the death penalty under any and all circumstances. I also
cannot agree with petitioner's other major contention that, under
the new Texas statute and the State's criminal justice system in
general, the criminal jury and other law enforcement officers
exercise such a range of discretion that the death penalty will be
imposed so seldom, so arbitrarily, and so freakishly that the new
statute suffers from the infirmities which
Branch v. Texas
found in its predecessor. Under the revised law, the substantive
crime of murder is defined, and, when a murder occurs in one of the
five circumstances set out in the statute, the death penalty must
be imposed if the jury also makes the certain additional findings
against the defendant. Petitioner claims that the additional
questions upon which the death sentence depends are so vague that,
in essence, the
Page 428 U. S. 279
jury possesses standardless sentencing power; but I agree with
JUSTICES STEWART, POWELL, and STEVENS that the issues posed in the
sentencing proceeding have a common sense core of meaning, and that
criminal juries should be capable of understanding them. The
statute does not extend to juries discretionary power to dispense
mercy, and it should not be assumed that juries will disobey or
nullify their instructions. As of February of this year, 33
persons, including petitioner, had been sentenced to death under
the Texas murder statute. I cannot conclude at this juncture that
the death penalty under this system will be imposed so seldom and
arbitrarily as to serve no useful penological function, and hence
fall within reach of the decision announced by five Members of the
Court in
Furman v. Georgia.
Nor, for the reasons I have set out in
Roberts, post at
428 U. S.
348-350, and
Gregg, ante at
428 U. S.
224-225, am I convinced that this conclusion should be
modified because of the alleged discretion which is exercisable by
other major functionaries in the State's criminal justice system.
Furthermore, as JUSTICES STEWART, POWELL, and STEVENS state and as
the Texas Court of Criminal Appeals has noted, the Texas capital
punishment statute limits the imposition of the death penalty to a
narrowly defined group of the most brutal crimes, and aims at
limiting its imposition to similar offenses occurring under similar
circumstances. 522 S.W.2d at 939.
I concur in the judgment of affirmance.
MR. JUSTICE BLACKMUN, concurring in the judgment.
I concur in the judgment.
See Furman v. Georgia,
408 U. S. 238,
408 U. S.
405-414 (1972) (BLACKMUN J., dissenting), and
id. at
408 U. S. 375,
408 U. S. 414,
and
408 U. S.
465.