The mandatory death sentence imposed upon petitioner pursuant to
a Louisiana statute for the first-degree murder of a police officer
engaged in the performance of his lawful duties held to violate the
Eighth and Fourteenth Amendments, since the statute allows for no
consideration of particularized mitigating factors in deciding
whether the death sentence should be imposed.
So. 2d 11
, reversed and remanded.
Petitioner Harry Roberts was indicted, tried, and convicted of
the first-degree murder of Police Officer Dennis McInerney, who at
the time of his death was engaged in the performance
Page 431 U. S. 634
of his lawful duties. As required by a Louisiana statute,
petitioner was sentenced to death. La.Rev.Stat. Ann § 14:30(2)
(1974). [Footnote 1
] On appeal,
the Supreme Court of Louisiana affirmed his conviction and
sentence. 331 So.
(1976). Roberts then filed a petition for a writ of
certiorari in this Court. The petition presented the question
whether Louisiana's mandatory death penalty could be imposed
pursuant to his conviction of first-degree murder as defined in
subparagraph (2) of § 14:30.
Shortly before that petition was filed, we held in another case
(involving a different petitioner named Roberts) that Louisiana
could not enforce its mandatory death penalty for a
Page 431 U. S. 635
conviction of first-degree murder as defined in subparagraph (1)
of § 14:30 of La.Rev.Stat.Ann. (1974). Roberts v.
Louisiana, 428 U. S. 325
(1976) (hereafter cited as Stanislaus Roberts
of clarity). In the plurality opinion in that case, the precise
question presented in this case was explicitly answered. [Footnote 2
This precise question was again answered by the Court in
Washington v. Louisiana,
428 U.S. 906 (1976). The
petitioner in the Washington
case had killed a policeman
and was tried and sentenced to death under the same provision of
the Louisiana statute as was the petitioner in the present case. We
vacated the death sentence, holding:
"Imposition and carrying out of the death penalty [in this case]
constitute cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments. Roberts v. Louisiana.
Ibid. See also Sparks v. North Carolina,
U.S. 905 (1976); Green v. Oklahoma,
428 U.S. 907
Page 431 U. S. 636
Recognizing that this Court had already decided that a mandatory
death sentence could not be imposed for the crime that Harry
Roberts committed, the Attorney General of Louisiana initially
"under this Court's decision in Stanislaus Roberts v.
No. 75-5844, [the sentence of death in the present
case] cannot be carried out unless, of course, this Court grants
Louisiana's Application for Rehearing and modifies its former
Brief in Opposition 2-3. The Court nevertheless granted
certiorari on November 8, 1976, 429 U.S. 938, and, on November 29,
limited the grant to the question
"[w]hether the imposition and carrying out of the sentence of
death for the crime of first-degree murder of a police officer
under the law of Louisiana violates the Eighth and Fourteenth
Amendments to the Constitution of the United States."
429 U.S. 975.
In Woodson v. North Carolina, 428 U.
, 428 U. S. 304
(1976), this Court held that
"the fundamental respect for humanity underlying the Eighth
Amendment . . . requires consideration of the character and record
of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of
inflicting the penalty of death."
In Stanislaus Roberts, supra,
we made clear that this
principle applies even where the crime of first-degree murder is
narrowly defined. See n
To be sure, the fact that the murder victim was a peace officer
performing his regular duties may be regarded as an aggravating
circumstance. There is a special interest in affording protection
to these public servants who regularly must risk their lives in
order to guard the safety of other persons and property. [Footnote 3
] But it is incorrect to
suppose that no mitigating
Page 431 U. S. 637
circumstances can exist when the victim is a police officer.
Circumstances such as the youth of the offender, the absence of any
prior conviction, the influence of drugs, alcohol, or extreme
emotional disturbance, and even the existence of circumstances
which the offender reasonably believed provided a moral
justification for his conduct are all examples of mitigating facts
which might attend the killing of a peace officer and which are
considered relevant in other jurisdictions. [Footnote 4
As we emphasized repeatedly in Stanislaus Roberts
its companion cases decided last Term, it is essential that the
capital sentencing decision allow for consideration of whatever
mitigating circumstances may be relevant to either the particular
offender or the particular offense. [Footnote 5
] Because the Louisiana statute does not allow
for consideration of particularized mitigating factors, it is
Page 431 U. S. 638
Accordingly, we hold that the death sentence imposed upon this
petitioner violates the Eighth and Fourteenth Amendments and must
be set aside. The judgment of the Supreme Court of Louisiana is
reversed insofar as it upholds the death sentence upon petitioner.
The case is remanded for further proceedings not inconsistent with
this opinion. [Footnote 7
It is so ordered.
That section provides in part:
"First degree murder
"First degree murder is the killing of a human being:"
"(1) When the offender has a specific intent to kill or to
inflict great bodily harm and is engaged in the perpetration or
attempted perpetration of aggravated kidnapping, aggravated rape or
armed robbery; or"
"(2) When the offender has a specific intent to kill, or to
inflict great bodily harm upon, a fireman or a peace officer who
was engaged in the performance of his lawful duties; or"
"(3) Where the offender has a specific intent to kill or to
inflict great. bodily harm and has previously been convicted of an
unrelated murder or is serving a life sentence; or"
"(4) When the offender has a specific intent to kill or to
inflict great bodily harm upon more than one person; [or]"
"(5) When the offender has specific intent to commit murder and
has been offered or has received anything of value for committing
"For the purposes of Paragraph (2) herein, the term peace
officer shall be defined [as] and include any constable, sheriff,
deputy sheriff, local or state policeman, game warden, federal law
enforcement officer, jail or prison guard, parole officer,
probation officer, judge, district attorney, assistant district
attorney or district attorneys' investigator."
"Whoever commits the crime of first degree murder shall be
punished by death."
In 1975, § 14:30(1) was amended to add the crime of aggravated
burglary as a predicate felony for first-degree murder. 1975
La.Acts, No. 327.
"The diversity of circumstances presented in cases falling
within the single category of killings during the commission of a
specified felony, as well as the variety of possible offenders
involved in such crimes, underscores the rigidity of Louisiana's
enactment and its similarity to the North Carolina statute. Even
the other more narrowly drawn categories of first-degree murder in
the Louisiana law [one of these being the willful, deliberate, and
premeditated homicide of a fireman or a police officer engaged in
the performance of his lawful duties] afford no meaningful
opportunity for consideration of mitigating factors presented by
the circumstances of the particular crime or by the attributes of
the individual offender."
428 U.S. at 428 U. S.
the third category of the Louisiana first-degree
murder statute, covering intentional killing by a person serving a
life sentence or by a person previously convicted of an unrelated
murder, defines the capital crime at least in significant part in
terms of the character or record of the individual offender.
Although even this narrow category does not permit the jury to
consider possible mitigating factors, a prisoner serving a life
sentence presents a unique problem that may justify such a law.
, 428 U. S. 186
v. North Carolina,
, 428 U. S. 287
428 U. S. 292
-293, n. 25
at 428 U. S. 334
n. 9 (emphasis added).
We recognize that the life of a police officer is a dangerous
one. Statistics show that the number of police officers killed in
the line of duty has more than doubled in the last 10 years. In
1966, 57 law enforcement officers were killed in the line of duty;
in 1975, 129 were killed. Federal Bureau of Investigation, Crime in
the United States 1975, Uniform Crime Reports 223 (1976).
the portion of the proposed standards of the
Model Penal Code quoted in Gregg v. Georgia, 428 U.
, 428 U. S.
-194, n. 44 (1976).
We reserve again the question whether or in what circumstances
mandatory death sentence statutes may be constitutionally applied
to prisoners serving life sentences. See n
quoting 428 U.S. at
428 U. S. 334
Indeed, our holding in Jurek v. Texas, 428 U.
(1976), that the Texas sentencing procedure was
constitutionally adequate rested squarely on the fact that
mitigating circumstances could be considered by the jury. In that
case, the joint opinion of JUSTICES STEWART POWELL, and STEVENS
"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,
[428 U.S.] 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.
(1976)]. 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 that directs the jury to consider any
mitigating factors, and in Proffitt v. Florida
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."
at 428 U. S.
-272 (footnote omitted).
In joining this opinion for the Court, MR. JUSTICE BRENNAN and
MR. JUSTICE MARSHALL agree that the plurality opinion in
Stanislaus Roberts, supra,
controls this case, but adhere
to their view that capital punishment is in all circumstances
prohibited as cruel and unusual punishment by the Eighth and
MR. CHIEF JUSTICE BURGER, dissenting.
I would sustain the Louisiana statute ,and I therefore dissent
on the basis of my dissenting statement in Roberts v.
Louisiana, 428 U. S. 325
428 U. S. 337
(1976), and that of MR. JUSTICE WHITE in Woodson v. North
Carolina, 428 U. S. 280
428 U. S. 306
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE and MR.
JUSTICE REHNQUIST join, dissenting.
The Court, feeling itself bound by the plurality opinion in
Roberts v. Louisiana, 428 U. S. 325
(1976) (hereafter Stanislaus Roberts)
, has painted itself
into a corner. I did not join that plurality opinion, and I decline
to be so confined. I therefore dissent from the Court's disposition
of the present
Page 431 U. S. 639
case and from its holding that the mandatory imposition of the
death penalty for killing a peace officer, engaged in the
performance of his lawful duties, constitutes cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments. I
would uphold the State's power to impose such a punishment under
La.Rev.Stat.Ann. § 14:30(2) (1974), and I would reject any
statements or intimations to the contrary in the Court's prior
The per curiam opinion asserts that "the precise question
presented in this case was explicitly answered" in Stanislaus
at 431 U. S. 635
It also relies on the summary disposition of Washington v.
428 U.S. 906 (1976), where a death sentence that
had been imposed under § 14:30(2) was vacated and where it was
stated that the imposition and carrying out of the death penalty
constituted cruel and unusual punishment. Ante
431 U. S. 635
Finally, the per curiam states that
"it is essential that the capital sentencing decision allow for
consideration of whatever mitigating circumstances may be relevant
to either the particular offender or the particular offense."
at 431 U. S. 637
Since § 14:30(2) does not allow for consideration of mitigating
factors, the per curiam strikes down the death sentence imposed on
In my view, the question of the constitutionality of Louisiana's
mandatory death penalty for killing a peace officer was not
answered in Stanislaus Roberts. Washington
said to be a summary ruling on the merits, but that case was
decided without the benefit of plenary consideration, and without
focusing on the identity and activity of the victim. I believe its
result to be incorrect as a constitutional matter, and I would
disapprove and withhold its further application.
Stanislaus Roberts was charged and convicted under a different
subsection, that is, § 14:30(1), of the Louisiana first-degree
murder statute. See
428 U.S. at 428 U. S. 327
See also ante
at 431 U. S.
-635. Subsection (1) provided a mandatory death
penalty in the case where the killer had a specific intent to kill
Page 431 U. S. 640
to inflict great bodily harm and was engaged in the perpetration
or attempted perpetration of aggravated kidnaping, aggravated rape,
or armed robbery. See ante
at 431 U. S. 634
n. 1. Subsection (2), in contrast, provides that first-degree
murder is committed when the killer has a specific intent to kill,
or to inflict great bodily harm upon, a fireman or a peace officer
who is engaged in the performance of his lawful duties.
The two subsections obviously should involve quite
different considerations with regard to the lawfulness of a
mandatory death penalty, even accepting the analysis set forth in
the joint opinions of last Term. *
Thus, to the
extent that the plurality in Stanislaus Roberts
subsections of the Louisiana law that were not before the Court,
those statements are nonbinding dicta. It is indisputable that
carefully focused consideration was not given to the special
problem of a mandatory death sentence for one who has intentionally
killed a police officer engaged in the performance of his lawful
duties. I therefore approach this case as a new one, not
predetermined and governed by the plurality in Stanislaus
may present a different problem. It did
decide the issue now before the Court, but it did so without the
benefit of full briefing and argument, and it was one of three
pending Louisiana cases treated as a cluster and routinely remanded
at the Term's end in the immediate wake of Stanislaus
Because an explicit finding was made that the death
penalty constituted cruel and unusual punishment, perhaps
is not to be treated in the same way as summary
affirmances were treated in Edelman v. Jordan,
415 U. S. 651
415 U. S.
-671 (1974). I would simply inquire, as to
whether its holding should not be
Page 431 U. S. 641
now that the Court has had the benefit of more careful and
complete consideration of the issue.
On the merits, for reasons I have expressed before, I would not
find § 14:30(2) constitutionally defective. See Furman v.
Georgia, 408 U. S. 238
408 U. S.
-414 (1972) (dissenting opinion). See also
428 U.S. at 428 U. S.
-363 (WHITE, J., dissenting). Furthermore, even under
the opinions of last Term, I would conclude that § 14:30(2) falls
within that narrow category of homicide for which a mandatory death
sentence is constitutional. See Gregg v. Georgia,
428 U. S. 153
428 U. S. 186
(1976); Woodson v. North Carolina, 428 U.
, 428 U. S. 287
n. 7, 428 U. S.
-293, n. 25 (1976); Stanislaus Roberts,
U.S. at 428 U. S. 334
n. 9. Since the decision in Washington
with this view, I would overrule it.
I should note that I do not read the per curiam opinion today as
one deciding the issue of the constitutionality of a mandatory
death sentence for a killer of a peace officer for all cases and
all times. Reference to the plurality opinion in Stanislaus
reveals that the Louisiana statute contained what that
opinion regarded as two fatal defects: lack of an opportunity to
consider mitigating factors and standardless jury discretion
inherent in the Louisiana responsive verdict system. Without the
latter, as here, a different case surely is presented. Furthermore,
it is evident, despite the per curiam's general statement to the
contrary, that mitigating factors need not be considered in every
case; even the per curiam continues to reserve the issue of a
mandatory death sentence for murder by a prisoner already serving a
life sentence. Ante
at 431 U. S. 637
n. 5. Finally, it is possible that a state statute that required
the jury to consider, during the guilt phase of the trial, both the
aggravating circumstance of killing a peace officer and relevant
mitigating circumstances would pass the plurality's test. Cf.
Jurek v. Texas, 428 U. S. 262
428 U. S.
-271 (1976). For me, therefore, today's decision must
be viewed in the context of the Court's previous criticism of the
Page 431 U. S. 642
it need not freeze the Court into a position that condemns every
statute with a mandatory death penalty for the intentional killing
of a peace officer.
* Gregg v Georgia, 428 U. S. 153
(1976); Proffitt v. Florida, 428 U.
(1976); Jurek v. Texas, 428 U.
(1976); Woodson v. North Carolina,
428 U. S. 280
(1976); and Stanislaus Roberts, 428 U.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins,
The Court today holds that the State of Louisiana is not
entitled to vindicate its substantial interests in protecting the
foot soldiers of an ordered society by mandatorily sentencing their
murderers to death. This is so even though the State has
demonstrated to a jury in a fair trial, beyond a reasonable doubt,
that a particular defendant was the murderer, and that he committed
the act while possessing "a specific intent to kill, or to inflict
great bodily harm upon, . . . a peace officer who was engaged in
the performance of his lawful duties. . . ." La.Rev.Stat.Ann. §
14:30(2) (1974). That holding would have shocked those who drafted
the Bill of Rights on which it purports to rest, and would commend
itself only to the most imaginative observer as being required by
today's "evolving standards of decency."
I am unable to agree that a mandatory death sentence under such
circumstances violates the Eighth Amendment's proscription against
"cruel and unusual punishments." I am equally unable to see how
this limited application of the mandatory death statute violates
even the scope of the Eighth Amendment as seen through the eyes of
last Term's plurality in Roberts v. Louisiana,
428 U. S. 325
(1976) (hereafter Stanislaus Roberts
). Nor does the brief
per curiam opinion issued today demonstrate why the application of
a mandatory death sentence to the criminal who intentionally
murders a peace officer performing his official duties should be
considered "cruel and unusual punishment" in light of either the
view of society when the Eighth Amendment was passed, Gregg v.
Georgia, 428 U. S. 153
428 U. S.
-177 (1976); the "objective indicia that reflect the
public attitude" today, id.
at 428 U. S. 173
or even the more
Page 431 U. S. 643
generalized "basic concept of human dignity" test relied upon
last Term in striking down several more general mandatory
While the arguments weighing in favor of individualized
consideration for the convicted defendant are much the same here as
they are for one accused of any homicide, the arguments weighing in
favor of society's determination to impose a mandatory sentence for
the murder of a police officer in the line of duty are far stronger
than in the case of an ordinary homicide. Thus, the Court's
intimation that this particular issue was considered
last Term in Stanislaus Roberts, supra,
simply does not wash. A footnoted dictum in Stanislaus
discussing a different section of the Louisiana law
from the one now before us scarcely rises to the level of plenary,
deliberate consideration which has traditionally preceded a
declaration of unconstitutionality.
Such a meager basis for stare decisis
would be less
offensive were we not dealing with large questions of how men shall
be governed, and how liberty and order should be balanced in a
civilized society. But authority which might suffice to determine
whether the rule against perpetuities applies to a particular
devise in a will does not suffice when making a constitutional
adjudication that a punishment imposed by properly enacted state
law is "cruel and unusual." Mr. Justice Frankfurter wisely noted
that a "footnote hardly seems to be an appropriate way of
announcing a new constitutional doctrine," Kovacs v.
Cooper, 336 U. S. 77
336 U. S. 90
(1949); it is hardly a more appropriate device by which to
anticipate a constitutional issue not presented by the case in
which it appears. This seemingly heedless wielding of our power is
least acceptable when we engage in what Mr. Justice Holmes
described as "the gravest and most delicate duty that this Court is
called upon to perform." Blodgett v. Holden, 275 U.
, 275 U. S.
-148 (1927) (separate opinion).
Page 431 U. S. 644
Five Terms ago, in Furman v. Georgia, 408 U.
(1972), this Court invalidated the then-current
system of capital punishments, condemning jury discretion as
resulting in "freakish" punishment. The Louisiana Legislature has
conscientiously determined, in an effort to respond to that
holding, that the death sentence would be made mandatory upon the
conviction of particular types of offenses, including, as in the
case before us, the intentional killing of a peace officer while in
the performance of his duties. For the reasons stated by MR.
JUSTICE WHITE for himself, THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN,
and me in his dissent in Stanislaus Roberts, supra,
me in my dissent in Woodson v. North Carolina,
428 U. S. 280
428 U. S. 308
(1976), I am no more persuaded now than I was then that a mandatory
death sentence for all, let alone for a limited class of, persons
who commit premeditated murder constitutes "cruel and unusual
punishment" under the Eighth and Fourteenth Amendments.
But even were I now persuaded otherwise by the plurality's
analysis last Term, and were I able to conclude that the mandatory
death penalty constituted "cruel and unusual punishment" when
applied generally to all those convicted of first-degree murder, I
would nonetheless disagree with today's opinion. Louisiana's
decision to impose a mandatory death sentence upon one convicted of
the particular offense of premeditated murder of a peace officer
engaged in the performance of his lawful duties is clearly not
governed by the holding of Stanislaus Roberts,
and I do
not believe that it is controlled by the reasoning of the
plurality's opinion in that case. Today's opinion assumes, without
analysis, that the faults of the generalized mandatory death
sentence under review in Stanislaus Roberts
necessarily inhere in such a sentence imposed on those who commit
this much more carefully limited and far more serious crime.
] In words that would
Page 431 U. S. 645
equally appropriate today, MR. JUSTICE WHITE noted last Term,
428 U.S. at 428 U. S.
"Even if the character of the accused mus be considered under
the Eighth Amendment, surely a State is not constitutionally
forbidden to provide that the commission of certain crimes
conclusively establishes that the criminal's character is such that
he deserves death. Moreover, quite apart from the character of a
criminal, a State should constitutionally be able to conclude that
the need to deter some crimes and that the likelihood that the
death penalty will succeed in deterring these crimes is such that
the death penalty may be made mandatory for all people who commit
them. Nothing resembling a reasoned basis for the rejection of
these propositions is to be found in the plurality opinion. "
Page 431 U. S. 646
Under the analysis of last Term's plurality opinion, a State,
before it is constitutionally entitled to put a murderer to death,
must consider aggravating and mitigating circumstances. It is
possible to agree with the plurality in the general case without at
all conceding that it follows that a mandatory death sentence is
impermissible in the specific case we have before us: the
deliberate killing of a peace officer. The opinion today is willing
to concede that "the fact that the murder victim was a peace
officer performing his regular duties may be regarded as an
aggravating circumstance." Ante
at 431 U. S. 636
But it seems to me that the factors which entitle a State to
consider it as an aggravating circumstance also entitle the State
to consider it so grave an aggravating circumstance that no
permutation of mitigating factors exists which would disable it
from constitutionally sentencing the murderer to death. If the
State would be constitutionally entitled, due to the nature of the
offense, to sentence the murderer to death after going through such
a limited version of the plurality's "balancing" approach, I see no
constitutional reason why the "Cruel and Unusual Punishments"
Clause precludes the State from doing so without engaging in that
The elements that differentiate this case from the
case are easy to state. In both cases,
the factors weighing on the defendant's side of the scale are
constant. It is consideration of these factors alone that the
opinion today apparently relies on for its holding. But this
ignores the significantly different factors which weigh on the
State's side of the scale. In all murder cases, and of course this
one, the State has an interest in protecting its citizens from such
ultimate attacks; this surely is at the core of the Lockean "social
contract" idea. But other, and important, state interests exist
where the victim was a peace officer performing his lawful duties.
Policemen on the beat are exposed, in the service of society, to
all the risks which the constant effort to prevent crime and
apprehend criminals entails: because these people
Page 431 U. S. 647
are literally the foot soldiers of society's defense of ordered
liberty, the State has an especial interest in their protection. We
are dealing here not merely with the State's determination as to
whether particular conduct on the part of an individual should be
punished, and in what manner, but also with what sanctions the
State is entitled to bring into play to assure that there will be a
police force to see that the criminal laws are enforced at all. It
is no service to individual rights, or to individual liberty, to
undermine what is surely the fundamental right and responsibility
of any civilized government: the maintenance of order so that all
may enjoy liberty and security. Learned Hand surely had it right
when he observed:
"And what is this liberty which must lie in the hearts of men
and women? It is not the ruthless, the unbridled will; it is not
freedom to do as one likes. That is the denial of liberty, and
leads straight to its overthrow. A society in which men recognize
no check upon their freedom soon becomes a society where freedom is
the possession of only a savage few; as we have learned to our
The Spirit of Liberty 190 (3d ed., 1960). Policemen are both
symbols and outriders of our ordered society, and they literally
risk their lives in an effort to preserve it. To a degree unequaled
in the ordinary first-degree murder presented in the Stanislaus
case, the State therefore has an interest in making
unmistakably clear that those who are convicted of deliberately
killing police officers acting in the line of duty be forewarned
that punishment, in the form of death, will be inexorable.
Page 431 U. S. 648
This interest of the State, I think, entitled the Louisiana
Legislature, in its considered judgment, to make the death penalty
mandatory for those convicted of the intentional murder of a police
officer. I had thought JUSTICES STEWART, POWELL, and STEVENS had
conceded that this response -- this need for a mandatory penalty --
could be permissible when, focusing on the crime, not the criminal,
they wrote last Term in Gregg,
428 U.S. at 428 U. S. 184
"the decision that capital punishment may be the appropriate
sanction in extreme cases is an expression of the community's
belief that certain crimes
are themselves so grievous an
affront to humanity that the only adequate response may be the
penalty of death."
I am quite unable to decipher why the Court today concludes that
the intentional murder of a police officer is not one of these
"certain crimes." The Court's answer appears to lie in its
observation that "it is incorrect to suppose that no mitigating
circumstances can exist when the victim is a police officer."
at 431 U. S.
-637. The Court, however, has asked the wrong
question. The question is not whether mitigating
Page 431 U. S. 649
factors might exist, but, rather, whether whatever "mitigating"
factors that might exist are of sufficient force so as to
constitutionally require their consideration as counterweights to
the admitted aggravating circumstance. Like MR. JUSTICE WHITE, I am
unable to believe that a State is not entitled to determine that
the premeditated murder of a peace officer is so heinous and
intolerable a crime that no combination of mitigating factors can
overcome the demonstration "that the criminal's character is such
that he deserves death." 428 U.S. at 428 U. S.
As an example of a mitigating factor which, presumably, may
"overcome" the aggravating factor inherent in the murder of a peace
officer, the Court today gives us the astonishing suggestion of
"the existence of circumstances which the offender reasonably
believed provided a moral justification for his conduct. . . ."
at 431 U. S. 637
I cannot believe that States are constitutionally required to allow
a defense, even at the sentencing stage, which depends on nothing
more than the convict's moral belief that he was entitled to kill a
peace officer in cold blood. John Wilkes Booth may well have
thought he was morally justified in murdering Abraham Lincoln,
whom, while fleeing from the stage of Ford's Theater, he
characterized as a "tyrant"; I am appalled to believe that the
Constitution would have required the Government to allow him to
argue that as a "mitigating factor" before it could sentence him to
death if he were found guilty. I am equally appalled that a State
should be required to instruct a jury that such individual beliefs
must or should be considered as a possible balancing factor against
the admittedly proper aggravating factor.
The historical and legal content of the "Cruel and Unusual
Punishments" Clause was stretched to the breaking point by the
plurality's opinion in the Stanislaus Roberts
Term. Today this judicially created superstructure, designed and
erected more than 180 years after the Bill of Rights was
Page 431 U. S. 650
adopted, is tortured beyond permissible limits of judicial
review. There is nothing in the Constitution's prohibition against
cruel and unusual punishment which disables a legislature from
imposing a mandatory death sentence on a defendant convicted after
a fair trial of deliberately murdering a police officer.
the plurality noted that a public opinion
poll "revealed that a substantial majority' of persons opposed
mandatory capital punishment." 428 U.S. at 428 U. S.
298-299, n. 34. It does not follow, even accepting that
poll, that a "substantial majority" oppose mandatory capital
punishment for the murderers of police officers. What meager
statistics there are indicate that public opinion is, at best,
pretty evenly divided on the subject. In a June. 1973. Harris
Survey, 41% of the people surveyed thought that "all" persons
convicted of killing a policeman or a prison guard should get the
death penalty, as opposed to 28% for the more general crime of
first-degree murder. Vidmar & Ellsworth, Public Opinion and the
Death Penalty, 26 Stan.L.Rev. 1245, 1252 (1974). A May, 1973, poll
in Minnesota revealed that 49% of the sample favored "automatic"
capital punishment for "`murder of a law enforcement officer.'"
Id. at 1251. With such substantial public support, one
would have thought that the determination as to whether a mandatory
death penalty should exist was for the legislature, not for the
judiciary through some newfound construction of the term "cruel and
unusual punishments." Yet, while the plurality observes that
"[c]entral to the application of the Amendment is a determination
of contemporary standards regarding the infliction of punishment,"
428 U.S. at 428 U. S. 288,
the opinion today makes absolutely no attempt to discuss
"contemporary standards" with respect to the particular category
now before us. The reason, of course, is not hard to deduce: the
plurality's separation of "standards of decency" from "the dignity
of man" indicates that, with respect to the latter, the plurality
itself, and not society, is to be the arbiter.
4 W. Blackstone, Commentaries *82:
"To resist the king's forces by defending a castle against them
is a levying of war. . . . But a tumult, with a view to pull down a
particular house or lay open a particular inclosure, amounts at
most to a riot, this being no general defiance of public
As recently noted by Chief Justice Laskin of the Canadian
Supreme Court, Miller and Cockriell v. The Queen,
D.L.R.3d 324, 337,  5 W.W.R. 711, 735 (1976), in discussing
whether a mandatory death sentence constituted "cruel and unusual
punishment" within the meaning of § 2(b) of the Canadian Bill of
"I do not think, however, that it can be said that Parliament,
in limiting the mandatory death penalty to the murder of policemen
and prison guards, had only vengeance in view. There was obviously
the consideration that persons in such special positions would have
a sense of protection by reason of the grave penalty that would
follow their murder. . . . It was open to Parliament to act on
these additional considerations in limiting the mandatory death
penalty as it did, and I am unable to say that they were not acted
upon. On this view, I cannot find that there was no social purpose
served by the mandatory death penalty so as to make it offensive to