At petitioner's trial for first-degree murder, the Florida trial
court informed him that it would instruct the jury on lesser
included, noncapital offenses if he would waive the statute of
limitations, which had expired as to those offenses. Petitioner
refused to waive the statute, and the jury was instructed solely on
capital murder. After the jury returned a verdict of guilty of
first-degree murder, a sentencing hearing was conducted before the
same jury, a majority of which recommended life imprisonment. Under
Florida law, the jury's sentencing recommendation in a capital case
is only advisory, and the trial court must conduct its own weighing
of the aggravating and mitigating circumstances to determine the
proper sentence. If a death sentence is imposed, specified written
findings are required. In this case, the trial court imposed the
death sentence and entered its findings in support thereof. The
Florida Supreme Court affirmed the conviction, rejecting
petitioner's contention that
Beck v. Alabama, 447 U.
S. 625 -- which held that a statute prohibiting lesser
included offense instructions in capital cases was unconstitutional
-- required reversal because of the trial court's failure to
instruct the jury on lesser included offenses absent a waiver of
the statute of limitations on those offenses. However, the Florida
Supreme Court reversed the death sentence because of the trial
judge's consideration of a confidential portion of the presentence
investigation report, neither party having received a copy of the
confidential portion. On remand, the trial court again imposed the
death penalty after a hearing to allow petitioner to present
evidence in response to a new presentence investigation report. The
Florida Supreme Court affirmed, holding,
inter alia, that
there was no constitutional infirmity in the Florida procedure
whereby the judge is allowed to override the jury's recommendation
of life imprisonment.
Held:
1. On the facts, it was not error for the trial judge to refuse
to instruct the jury on lesser included offenses.
Beck v.
Alabama, supra, recognized the risk of an unwarranted
conviction that is created when the jury is deprived of the "third
option" of convicting the defendant of a lesser included offense.
Petitioner's general premise that a criminal defendant may not be
required to waive a substantive right -- here the right to a
statute of limitations -- as a condition for receiving an otherwise
constitutionally
Page 468 U. S. 448
fair trial does not apply to petitioner's situation. In
Beck, the element found to be essential to a fair trial
was not simply a lesser included offense instruction in the
abstract, but the enhanced rationality and reliability the
existence of the instruction introduced into the jury's
deliberations. Where no lesser included offense exists, a lesser
included offense instruction detracts from, rather than enhances,
the rationality of the process. The defendant has the option of
waiving the expired statute of limitations on lesser included
offenses in order to have the jury instructed on those offenses, or
of asserting the statute of limitations. Pp.
468 U. S.
454-457.
2. There is no constitutional requirement that a jury's
recommendation of life imprisonment in a capital case be final, so
as to preclude the trial judge from overriding the jury's
recommendation and imposing the death sentence. The fundamental
issue in a capital sentencing proceeding is the determination of
the appropriate punishment to be imposed on an individual, and the
Sixth Amendment does not guarantee a right to a jury determination
of that issue. Nothing in the safeguards against arbitrary and
discriminatory application of the death penalty necessitated by the
qualitative difference of the penalty requires that the sentence be
imposed by a jury. And the purposes of the death penalty are not
frustrated by, or inconsistent with, a scheme in which imposition
of the penalty is determined by a judge. The fact that the majority
of jurisdictions with capital sentencing statutes give the
life-or-death decision to the jury does not establish that
contemporary standards of fairness and decency are offended by the
jury override. The Eighth Amendment is not violated every time a
State reaches a conclusion different from a majority of its sisters
over how best to administer its criminal laws. Pp.
468 U. S.
457-465.
3. The determination that there is no constitutional imperative
that a jury have the responsibility of deciding whether the death
penalty should be imposed also disposes of petitioner's double
jeopardy challenge to the jury-override procedure. If the judge is
vested with sole responsibility for imposing the penalty, the
jury's advice does not become a judgment simply because it comes
from the jury. P.
468 U.S.
465.
4. Application of the Florida standards allowing a trial court
to override a jury's recommendation of a life sentence does not
violate the constitutional requirement of reliability in capital
sentencing. There is no indication that the application of the
jury-override procedure has resulted in arbitrary or discriminatory
application of the death penalty, either in general or in this
particular case. The trial judge here based his decision on the
presence of two statutory aggravating circumstances and the absence
of any mitigating circumstances. The Florida Supreme Court reviewed
petitioner's sentence and concluded that the death penalty
Page 468 U. S. 449
was properly imposed under state law. Whether or not "reasonable
people" could differ over the result, there is nothing irrational
or arbitrary about the imposition of petitioner's death penalty.
Pp.
468 U.S. 465-467.
433 So. 2d
508, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and POWELL and O'CONNOR, JJ., joined; in all but a
portion of page 456 in Part II of which WHITE and REHNQUIST, JJ.,
joined; and in Part II of which BRENNAN, MARSHALL, and STEVENS,
JJ., joined. WHITE, J., filed an opinion concurring in part and
concurring in the judgment, in which REHNQUIST, J., joined,
post, p.
468 U. S. 467.
STEVENS, J., filed an opinion concurring in part and dissenting in
part, in which BRENNAN and MARSHALL, JJ., joined,
post, p.
468 U. S.
467.
JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents questions regarding the administration of
Florida's capital sentencing statute. In particular, petitioner
challenges the trial court's failure to instruct the jury on lesser
included offenses of capital murder. He also challenges the court's
imposition of a sentence of death when the jury had recommended
life. We conclude that, on the facts of this case, it was not error
for the trial judge to refuse to give the lesser included offense
instruction, and that there is no constitutional requirement that
the jury's recommendation of life be final. We also reject
petitioner's argument that, as applied in this case, the Florida
standards for overriding a jury's sentencing recommendation are so
broad and vague as to violate the constitutional requirement of
reliability in capital sentencing.
Page 468 U. S. 450
I
Petitioner Joseph Robert Spaziano was indicted and tried for
first-degree murder. The indictment was brought two years and one
month after the alleged offense. Under the Florida statute of
limitations in effect at the time of the alleged offense, August,
1973, the limitations period for noncapital offenses was two years.
Fla.Stat. § 932.465(2) (1973). [
Footnote 1] There was no statute of limitations for
capital offenses, such as first-degree murder. § 932.465(1).
The primary evidence against petitioner was given by a witness
who testified that petitioner had taken him to a garbage dump in
Seminole County, Fla., where petitioner had pointed out the remains
of two women he claimed to have tortured and murdered. Petitioner
challenged the sufficiency of the witness' recall and perception
because of a substantial drug habit. The witness testified that he
had not taken drugs on the day of the visit to the garbage dump,
and he had been able to direct the police to the site.
See
Spaziano v. State, 393 So. 2d
1119, 1120 (Fla.1981).
At the close of the evidence, the trial court informed
petitioner that it would instruct the jury on the lesser included,
noncapital offenses of attempted first-degree murder, second-degree
murder, third-degree murder, and manslaughter, if petitioner would
waive the statute of limitations as to those offenses. Tr. 751-755.
Petitioner refused to waive the statute. The court accordingly
instructed the jury solely on capital murder.
The jury deliberated somewhat more than six hours. It reported
itself deadlocked, and the trial court gave an additional
instruction, encouraging the jurors to resolve their
differences
Page 468 U. S. 451
and come to a common conclusion. [
Footnote 2] Shortly thereafter, the jury returned a
verdict of guilty of first-degree murder.
The trial court then convened a sentencing hearing before the
same jury. Arguments were heard from both sides, and evidence
offered on aggravating and mitigating circumstances. A majority of
the jury recommended life imprisonment. [
Footnote 3] In Florida, the jury's sentencing
recommendation in a capital case is only advisory. The trial court
is to conduct its own weighing of the aggravating and mitigating
circumstances and, "[n]otwithstanding the recommendation of a
majority of the jury," is to enter a sentence of life imprisonment
or death; in the latter case, specified written findings are
required. Fla.Stat. § 921.141(3) (1983). [
Footnote 4] The trial court
Page 468 U. S. 452
concluded that,
"notwithstanding the recommendation of the jury, . . .
sufficient aggravating circumstances existed to justify and
authorize a death sentence[;] . . . the mitigating circumstances
were insufficient to outweigh such aggravating circumstances, and .
. . a sentence of death should be imposed in this case."
App. 14. The two aggravating circumstances found by the court
were that the homicide was especially heinous and atrocious and
that the defendant had been convicted previously of felonies
involving the use or threat of violence to the person. The trial
court found no mitigating circumstance "except, perhaps, the age
[28] of the defendant."
Id. at 14-15.
On appeal, the Supreme Court of Florida affirmed the conviction,
but reversed the death sentence.
Spaziano v.
State, 393 So. 2d
1119 (1981). In deciding whether to impose the death sentence,
the trial judge had considered a confidential portion of the
presentence investigation report that contained information about
petitioner's previous felony convictions as well as other charges
for which petitioner had not been convicted. Neither party had
received a copy of that confidential portion. Relying on
Gardner v. Florida, 430 U. S. 349
(1977), the court concluded that it was error for the trial judge
to rely on the confidential information in the presentence
investigation report without first disclosing the information to
petitioner and giving him an opportunity to present evidence in
response.
In a memorandum of supplemental authority, petitioner also urged
that
Beck v. Alabama, 447 U. S. 625
(1980), required reversal of his conviction because of the trial
court's failure to instruct the jury on the lesser included
offenses absent a waiver of the statute of limitations on those
offenses. The Supreme Court found
Beck inapposite.
Beck concerned an express statutory prohibition on
instructions for lesser included offenses. The court found nothing
in
Beck requiring
Page 468 U. S. 453
that the jury determine the guilt or innocence of lesser
included offenses for which the defendant could not be convicted
and adjudicated guilty. This Court denied certiorari.
454 U.
S. 1037(1981).
On remand, the trial court ordered a new presentence
investigation report and scheduled a hearing to allow petitioner to
present evidence in response to the report. At the hearing,
petitioner offered no evidence. The State presented evidence that
petitioner had been convicted previously of forcible carnal
knowledge and aggravated battery. Although the State had attempted
to introduce evidence of the prior conviction in petitioner's
initial sentencing hearing before the jury, the trial judge had
excluded the evidence on the ground that the conviction was then on
appeal. By the time of the
Gardner rehearing, the
conviction was final, and the trial judge agreed that it was a
proper consideration. Accordingly, he relied on that conviction in
finding the aggravating circumstance that the defendant had been
convicted previously of a felony involving the use of violence to
the person. The judge also reaffirmed his conclusion that the crime
was especially heinous, atrocious, and cruel. He sentenced
petitioner to death. App. 25.
The Supreme Court of Florida affirmed.
433 So. 2d
508 (1983). It rejected petitioner's argument that the trial
court erred in allowing the State to introduce evidence of a
previous conviction not considered in the original sentencing
phase. The court noted that the information was in the original
presentence investigation report. The only reason it was not
considered was that the trial court mistakenly thought that, under
Florida law, it could not be considered, since the conviction was
then on appeal.
The Supreme Court also found no constitutional infirmity in the
procedure whereby the judge is allowed to override the jury's
recommendation of life. The court found no double jeopardy problem
with the procedure, because the jury's function is only advisory.
The court added its understanding that allowing the jury's
recommendation to be binding would
Page 468 U. S. 454
violate the requirements of
Furman v. Georgia,
408 U. S. 238
(1972).
Finally, the court found that, in this case, the evidence
suggesting that the death sentence be imposed over the jury's
recommendation of life
"meets the clear and convincing test to allow override of the
jury's recommendation in accordance with . . .
Tedder v.
State, 322 So. 2d 908
(Fla.1975)."
433 So. 2d at 511. One judge dissented, finding "no compelling
reason" to override the jury's recommendation of life.
Id.
at 512.
We granted certiorari, 464 U.S. 1038 (1984), and we now
affirm.
II
We turn first to the trial court's refusal to give an
instruction on lesser included offenses. In
Beck v. Alabama,
supra, the Court recognized the risk of an unwarranted
conviction that is created when the jury is deprived of the "third
option" of convicting the defendant of a lesser included offense.
Id. at
447 U. S. 637.
See also Keeble v. United States, 412 U.
S. 205,
412 U. S.
212-213 (1973). We concluded that "[s]uch a risk cannot
be tolerated in a case in which the defendant's life is at stake,"
and that,
"if the unavailability of a lesser included offense instruction
enhances the risk of an unwarranted conviction, [a State] is
constitutionally prohibited from withdrawing that option from the
jury in a capital case."
447 U.S. at
447 U. S.
637-638. The issue here is whether the defendant is
entitled to the benefit of both the lesser included offense
instruction and an expired period of limitations on those offenses.
[
Footnote 5]
Page 468 U. S. 455
Petitioner urges that he should not be required to waive a
substantive right -- to a statute of limitations defense -- in
order to receive a constitutionally fair trial.
Beck made
clear that, in a capital trial, a lesser included offense
instruction is a necessary element of a constitutionally fair
trial. Thus, petitioner claims, he is entitled to the benefit of
the
Beck rule regardless of whether the statute of
limitations prevents him from actually being punished on a lesser
included offense.
We, of course, have no quarrel with petitioner's general premise
that a criminal defendant may not be required to waive a
substantive right as a condition for receiving an otherwise
constitutionally fair trial. We do not agree that the premise
fairly applies to petitioner's situation. Petitioner would have us
divorce the
Beck rule from the reasoning on which it was
based. The element the Court in
Beck found essential to a
fair trial was not simply a lesser included offense instruction in
the abstract, but the enhanced rationality and reliability the
existence of the instruction introduced into the jury's
deliberations. Where no lesser included offense exists, a lesser
included offense instruction detracts from, rather than enhances,
the rationality of the process.
Beck does not require that
result.
The Court in
Beck recognized that the jury's role in
the criminal process is essentially unreviewable, and not always
rational. The absence of a lesser included offense instruction
increases the risk that the jury will convict not because it is
persuaded that the defendant is guilty of capital murder, but
simply to avoid setting the defendant free. In
Beck, the
Court found that risk unacceptable and inconsistent with the
reliability this Court has demanded in capital proceedings.
Id. at
447 U. S. 643.
The goal of the
Beck rule, in other words, is to eliminate
the distortion of the factfinding process that is created when the
jury is forced into an all-or-nothing choice between capital murder
and innocence.
Id. at
443 U. S.
638-643. Requiring that the jury be instructed on lesser
included offenses for which the defendant may not be convicted,
however,
Page 468 U. S. 456
would simply introduce another type of distortion into the
factfinding process.
We reaffirm our commitment to the demands of reliability in
decisions involving death and to the defendant's right to the
benefit of a lesser included offense instruction that may reduce
the risk of unwarranted capital convictions. But we are unwilling
to close our eyes to the social cost of petitioner's proposed rule.
Beck does not require that the jury be tricked into
believing that it has a choice of crimes for which to find the
defendant guilty if, in reality, there is no choice. Such a rule
not only would undermine the public's confidence in the criminal
justice system, but it also would do a serious disservice to the
goal of rationality on which the
Beck rule is based.
If the jury is not to be tricked into thinking that there is a
range of offenses for which the defendant may be held accountable,
then the question is whether
Beck requires that a lesser
included offense instruction be given, with the defendant being
forced to waive the expired statute of limitations on those
offenses, or whether the defendant should be given a choice between
having the benefit of the lesser included offense instruction or
asserting the statute of limitations on the lesser included
offenses. We think the better option is that the defendant be given
the choice.
As the Court in
Beck recognized, the rule regarding a
lesser included offense instruction originally developed as an aid
to the prosecution. If the State failed to produce sufficient
evidence to prove the crime charged, it might still persuade the
jury that the defendant was guilty of something.
Id. at
447 U. S. 633.
See also 3 C. Wright, Federal Practice and Procedure §
515, p. 20, n. 2 (2d ed.1982). Although the
Beck rule
rests on the premise that a lesser included offense instruction in
a capital case is of benefit to the defendant, there may well be
cases in which the defendant will be confident enough that the
State has not proved capital murder that he will want to take his
chances with the jury. If so, we see
Page 468 U. S. 457
little reason to require him not only to waive his statute of
limitations defense but also to give the State what he perceives as
an advantage -- an opportunity to convict him of a lesser offense
if it fails to persuade the jury that he is guilty of capital
murder. In this case, petitioner was given a choice whether to
waive the statute of limitations on the lesser offenses included in
capital murder. He knowingly chose not to do so. [
Footnote 6] Under those circumstances, it was
not error for the trial judge to refuse to instruct the jury on the
lesser included offenses.
III
Petitioner's second challenge concerns the trial judge's
imposition of a sentence of death after the jury had recommended
life imprisonment. Petitioner urges that allowing a judge to
override a jury's recommendation of life violates the Eighth
Amendment's proscription against "cruel and unusual punishments."
Because the jury's verdict of life should be final, petitioner
argues, the practice also violates the Fifth
Page 468 U. S. 458
Amendment's Double Jeopardy Clause made applicable to the States
through the Fourteenth Amendment.
See Benton v. Maryland,
395 U. S. 784,
395 U. S.
793-796 (1969). Finally, drawing on this Court's
recognition of the value of the jury's role, particularly in a
capital proceeding, petitioner urges that the practice violates the
Sixth Amendment and the Due Process Clause of the Fourteenth
Amendment.
Petitioner points out that we need not decide whether jury
sentencing in all capital cases is required; this case presents
only the question whether, given a jury verdict of life, the judge
may override that verdict and impose death. As counsel acknowledged
at oral argument, however, his fundamental premise is that the
capital sentencing decision is one that, in all cases, should be
made by a jury. Tr. of Oral Arg. 16-17. We therefore address that
fundamental premise. Before doing so, however, it is useful to
clarify what is not at issue here.
Petitioner does not urge that capital sentencing is so much like
a trial on guilt or innocence that it is controlled by the Court's
decision in
Duncan v. Louisiana, 391 U.
S. 145 (1968). In
Duncan, the Court found that
the right to jury trial guaranteed by the Sixth Amendment is so
"
basic in our system of jurisprudence,'" id. at
391 U. S. 149,
quoting In re Oliver, 333 U. S. 257,
333 U. S. 273
(1948), that it is also protected against state action by the
Fourteenth Amendment.
This Court, of course, has recognized that a capital proceeding
in many respects resembles a trial on the issue of guilt or
innocence.
See Bullington v. Missouri, 451 U.
S. 430,
451 U. S. 444
(1981). Because the
"'embarrassment, expense and ordeal' . . . faced by a defendant
at the penalty phase of a . . . capital murder trial . . . are at
least equivalent to that faced by any defendant at the guilt phase
of a criminal trial,"
the Court has concluded that the Double Jeopardy Clause bars the
State from making repeated efforts to persuade a sentencer to
impose the death penalty.
Id. at
451 U. S. 445,
quoting
Green v. United States, 355 U.
S. 184,
355 U. S. 187
(1957);
Arizona
v.
Page 468 U. S. 459
Rumsey, 467 U. S. 203
(1984). The fact that a capital sentencing is like a trial in the
respects significant to the Double Jeopardy Clause, however, does
not mean that it is like a trial in respects significant to the
Sixth Amendment's guarantee of a jury trial. The Court's concern in
Bullington was with the risk that the State, with all its
resources, would wear a defendant down, thereby leading to an
erroneously imposed death penalty. 451 U.S. at
451 U. S. 445.
There is no similar danger involved in denying a defendant a jury
trial on the sentencing issue of life or death. The sentencer,
whether judge or jury, has a constitutional obligation to evaluate
the unique circumstances of the individual defendant and the
sentencer's decision for life is final.
Arizona v. Rumsey,
supra. More important, despite its unique aspects, a capital
sentencing proceeding involves the same fundamental issue involved
in any other sentencing proceeding -- a determination of the
appropriate punishment to be imposed on an individual.
See
Lockett v. Ohio, 438 U. S. 586,
438 U. S.
604-605 (1978) (plurality opinion);
Woodson v. North
Carolina, 428 U. S. 280,
428 U. S. 304
(1976) (plurality opinion), citing
Pennsylvania ex rel.
Sullivan v. Ashe, 302 U. S. 51,
302 U. S. 55
(1937), and
Williams v. New York, 337 U.
S. 241,
337 U. S.
247-249 (1949). The Sixth Amendment never has been
thought to guarantee a right to a jury determination of that
issue.
Nor does petitioner urge that this Court's recognition of the
"qualitative difference" of the death penalty requires the benefit
of a jury. In
Furman v. Georgia, 408 U.S. at
408 U. S. 238, the
Court struck down the then-existing capital sentencing statutes of
Georgia and Texas, in large part because of its conclusion that,
under those statutes, the penalty was applied arbitrarily and
discriminatorily.
See also Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 188
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). Since
then, the Court has emphasized its pursuit of the "twin objectives"
of "measured, consistent application and fairness to the accused."
Eddings
Page 468 U. S. 460
v. Oklahoma, 455 U. S. 104,
455 U. S.
110-111 (1982). [
Footnote 7] If a State has determined that death should be
an available penalty for certain crimes, then it must administer
that penalty in a way that can rationally distinguish between those
individuals for whom death is an appropriate sanction and those for
whom it is not.
Zant v. Stephens, 462 U.
S. 862,
462 U. S.
873-880 (1983);
Furman v. Georgia, 408 U.S. at
408 U. S. 294
(BRENNAN, J., concurring). It must also allow the sentencer to
consider the individual circumstances of the defendant, his
background, and his crime.
Lockett v. Ohio, supra.
Nothing in those twin objectives suggests that the sentence must
or should be imposed by a jury. While it is to be hoped that
current procedures have greatly reduced the risk that jury
sentencing will result in arbitrary or discriminatory application
of the death penalty,
see Gregg v. Georgia, 428 U.S. at
428 U. S.
190-195 (joint opinion), there certainly is nothing in
the safeguards necessitated by the Court's recognition of the
qualitative difference of the death penalty that requires that the
sentence be imposed by a jury.
Page 468 U. S. 461
Petitioner's primary argument is that the laws and practice in
most of the States indicate a nearly unanimous recognition that
juries, not judges, are better equipped to make reliable capital
sentencing decisions, and that a jury's decision for life should be
inviolate. The reason for that recognition, petitioner urges, is
that the nature of the decision whether a defendant should live or
die sets capital sentencing apart, and requires that a jury have
the ultimate word. Noncapital sentences are imposed for various
reasons, including rehabilitation, incapacitation, and deterrence.
In contrast, the primary justification for the death penalty is
retribution. As has been recognized,
"the decision that capital punishment may be the appropriate
sanction in extreme cases is an expression of the community's
belief that certain crimes are themselves so grievous an affront to
humanity that the only adequate response may be the penalty of
death."
Id. at
428 U. S. 184.
The imposition of the death penalty, in other words, is an
expression of community outrage. Since the jury serves as the voice
of the community, the jury is in the best position to decide
whether a particular crime is so heinous that the community's
response must be death. If the answer is no, that decision should
be final.
Petitioner's argument obviously has some appeal. But it has two
fundamental flaws. First, the distinctions between capital and
noncapital sentences are not so clear as petitioner suggests.
Petitioner acknowledges, for example, that deterrence may be a
justification for capital as well as for noncapital sentences. He
suggests only that deterrence is not a proper consideration for
particular sentencers who are deciding whether the penalty should
be imposed in a given case. The same is true, however, in
noncapital cases. Whatever the sentence, its deterrent function is
primarily a consideration for the legislature.
Gregg v.
Georgia, 428 U.S. at
428 U. S. 186
(joint opinion). Similar points can be made about the other
purposes of capital and noncapital punishment. Although
incapacitation has never been embraced as a sufficient
justification for the death penalty, it is a legitimate
consideration
Page 468 U. S. 462
in a capital sentencing proceeding.
Id. at
428 U. S. 183,
n. 28;
Jurek v. Texas, 428 U. S. 262
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). While
retribution clearly plays a more prominent role in a capital case,
retribution is an element of all punishments society imposes, and
there is no suggestion as to any of these that the sentence may not
be imposed by a judge.
Second, even accepting petitioner's premise that the retributive
purpose behind the death penalty is the element that sets the
penalty apart, it does not follow that the sentence must be imposed
by a jury. Imposing the sentence in individual cases is not the
sole or even the primary vehicle through which the community's
voice can be expressed. This Court's decisions indicate that the
discretion of the sentencing authority, whether judge or jury, must
be limited and reviewable.
See, e.g., Gregg v. Georgia, supra;
Woodson v. North Carolina, 428 U.S. at
428 U. S.
302-303;
Zant v. Stephens, 462 U.S. at
462 U. S.
879-880. The sentencer is responsible for weighing the
specific aggravating and mitigating circumstances the legislature
has determined are necessary touchstones in determining whether
death is the appropriate penalty. Thus, even if it is a jury that
imposes the sentence, the "community's voice" is not given free
rein. The community's voice is heard at least as clearly in the
legislature when the death penalty is authorized and the particular
circumstances in which death is appropriate are defined.
See
Gregg v. Georgia, 428 U.S. at
428 U. S.
183-184 (joint opinion);
Furman v. Georgia, 408
U.S. at
408 U. S.
394-395 (BURGER, C.J., dissenting);
id. at
408 U. S.
452-454 (POWELL, J., dissenting).
We do not denigrate the significance of the jury's role as a
link between the community and the penal system and as a bulwark
between the accused and the State.
See Gregg v. Georgia,
428 U.S. at
428 U. S. 181
(joint opinion);
Williams v. Florida, 399 U. S.
78,
399 U. S. 100
(1970);
Duncan v. Louisiana, 391 U.S. at
391 U. S. 156;
Witherspoon v. Illinois, 391 U. S. 510,
391 U. S. 519,
n. 15 (1968). The point is simply that the purpose of the
Page 468 U. S. 463
death penalty is not frustrated by, or inconsistent with, a
scheme in which the imposition of the penalty in individual cases
is determined by a judge. [
Footnote
8]
We also acknowledge the presence of the majority view that
capital sentencing, unlike other sentencing, should be performed by
a jury. As petitioner points out, 30 out of 37 jurisdictions with a
capital sentencing statute give the life-or-death decision to the
jury, with only 3 of the remaining 7 allowing a judge to override a
jury's recommendation of life. [
Footnote 9]
Page 468 U. S. 464
The fact that a majority of jurisdictions have adopted a
different practice, however, does not establish that contemporary
standards of decency are offended by the jury override. The Eighth
Amendment is not violated every time a State reaches a conclusion
different from a majority of its sisters over how best to
administer its criminal laws.
"Although the judgments of legislatures, juries, and prosecutors
weigh heavily in the balance, it is for us ultimately to judge
whether the Eighth Amendment"
is violated by a challenged practice.
See Enmund v.
Florida, 458 U. S. 782,
458 U. S. 797
(1982);
Coker v. Georgia, 433 U.
S. 584,
433 U. S. 597
(1977) (plurality opinion). In light of the facts that the Sixth
Amendment does not require jury sentencing, that the demands of
fairness and reliability in capital cases do not require it, and
that neither the nature of, nor the purpose behind, the death
penalty requires jury sentencing, we cannot conclude that placing
responsibility on the trial judge to impose the sentence in a
capital case is unconstitutional.
As the Court several times has made clear, we are unwilling to
say that there is any one right way for a State to set up its
capital sentencing scheme.
See Pulley v. Harris,
465 U. S. 37
(1984);
Zant v. Stephens, 462 U.S. at
462 U. S. 884;
Gregg v. Georgia, 428 U.S. at
428 U. S. 195
(joint opinion). The Court twice has concluded that Florida has
struck a reasonable balance between sensitivity to the individual
and his circumstances and ensuring that the penalty is not imposed
arbitrarily or discriminatorily.
Barclay
v. Florida, 463
Page 468 U. S. 465
U.S. 939 (1983);
Proffitt v. Florida, 428 U.
S. 242,
428 U. S. 252
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). We are
not persuaded that placing the responsibility on a trial judge to
impose the sentence in a capital case is so fundamentally at odds
with contemporary standards of fairness and decency that Florida
must be required to alter its scheme and give final authority to
the jury to make the life-or-death decision.
IV
Our determination that there is no constitutional imperative
that a jury have the responsibility of deciding whether the death
penalty should be imposed also disposes of petitioner's double
jeopardy challenge to the jury-override procedure. If a judge may
be vested with sole responsibility for imposing the penalty, then
there is nothing constitutionally wrong with the judge's exercising
that responsibility after receiving the advice of the jury. The
advice does not become a judgment simply because it comes from the
jury.
V
Petitioner's final challenge is to the application of the
standard the Florida Supreme Court has announced for allowing a
trial court to override a jury's recommendation of life.
See
Tedder v. State, 322 So. 2d
908, 910 (1975). This Court already has recognized the
significant safeguard the
Tedder standard affords a
capital defendant in Florida.
See Dobbert v. Florida,
432 U. S. 282,
432 U. S.
294-295 (1977).
See also Proffitt, 428 U.S. at
428 U. S. 249
(joint opinion). We are satisfied that the Florida Supreme Court
takes that standard seriously, and has not hesitated to reverse a
trial court if it derogates the jury's role.
See Richardson v.
State, 437 So. 2d
1091,
1095
(Fla.1983);
Miller v. State, 332 So. 2d
65 (Fla.1976). Our responsibility, however, is not to
second-guess the deference accorded the jury's recommendation in a
particular case, but to ensure that the result of the process is
not arbitrary or discriminatory.
Page 468 U. S. 466
We see nothing that suggests that the application of the
jury-override procedure has resulted in arbitrary or discriminatory
application of the death penalty, either in general or in this
particular case. Regardless of the jury's recommendation, the trial
judge is required to conduct an independent review of the evidence
and to make his own findings regarding aggravating and mitigating
circumstances. If the judge imposes a sentence of death, he must
set forth in writing the findings on which the sentence is based.
Fla.Stat. § 921.141(3) (1983). The Florida Supreme Court must
review every capital sentence to ensure that the penalty has not
been imposed arbitrarily or capriciously. § 921.141(4). As JUSTICE
STEVENS noted in
Barclay, there is no evidence that the
Florida Supreme Court has failed in its responsibility to perform
meaningful appellate review of each death sentence, either in cases
in which both the jury and the trial court have concluded that
death is the appropriate penalty or in cases when the jury has
recommended life and the trial court has overridden the jury's
recommendation and sentenced the defendant to death.
See
Barclay v. Florida, 463 U.S. at
463 U. S.
971-972, and n. 23 (opinion concurring in judgment).
In this case, the trial judge based his decision on the presence
of two statutory aggravating circumstances. The first, that the
defendant had previously been convicted of another capital felony
or of a felony involving the use or threat of violence to the
person, § 921.141(5), was based on evidence not available to the
advisory jury but, under Florida law, was properly considered by
the trial judge.
See White v. State, 403 So. 2d
331, 339-340 (1981). Petitioner's prior conviction was for rape
and aggravated battery. The trial judge also found that the murder
in this case was heinous, atrocious, and cruel. The witness who
accompanied petitioner to the dump site where the victim's body was
found testified that the body was covered with blood and that there
were cuts on the breasts, stomach, and chest. The witness also
testified that petitioner had recounted his torture of the victim
while
Page 468 U. S. 467
she was still living. The trial judge found no mitigating
circumstances.
The Florida Supreme Court reviewed petitioner's sentence and
concluded that the death penalty was properly imposed under state
law. It is not our function to decide whether we agree with the
majority of the advisory jury or with the trial judge and the
Florida Supreme Court.
See Barclay v. Florida, 463 U.S. at
463 U. S. 968
(STEVENS, J., concurring in judgment). Whether or not "reasonable
people" could differ over the result here, we see nothing
irrational or arbitrary about the imposition of the death penalty
in this case.
The judgment of the Supreme Court of Florida is affirmed.
It is so ordered.
[
Footnote 1]
Under the current Florida statute, there is no limitation period
on capital and life felonies. There are, however, a 4-year
limitation period on first-degree felonies, and a 3-year limit on
prosecutions for all other felonies. Fla.Stat. § 775.15 (1983).
Under Florida law, the statute of limitations in effect at the time
of the alleged offense governs.
Florida ex rel. Manucy v.
Wadsworth, 293 So. 2d
345, 347 (Fla.1974).
[
Footnote 2]
The court instructed the jury as follows:
"Ladies and gentlemen, it is your duty to agree upon a verdict
if you can do so without violating conscientiously held convictions
that are based on the evidence or lack of evidence. No juror, from
mere pride or opinion hastily formed or expressed, should refuse to
agree. Yet, no juror, simply for the purpose of terminating a case,
should acquiesce in a conclusion that is contrary to his own
conscientiously held view of the evidence. You should listen to
each other's views, talk over your differences of opinion in a
spirit of fairness and candor, and, if possible, resolve your
differences and come to a common conclusion, so that a verdict may
be reached and that this case may be disposed of."
Tr. 817-818.
This instruction is commonly referred to as an
Allen or
"hammer" charge.
See Allen v. United States, 164 U.
S. 492 (1896).
[
Footnote 3]
By agreement of the parties, the jury was not polled. Sentencing
Tr. 28-29 (Jan. 26, 1976).
[
Footnote 4]
The Florida capital sentencing statute in effect at the time of
petitioner's trial, January, 1976, is not identical to that
currently in effect. In 1976, the statute directed the sentencer to
determine whether statutory aggravating circumstances were
outweighed by statutory mitigating circumstances.
See 1972
Fla. Laws, ch. 72-724. The current statute directs the sentencer to
determine whether statutory aggravating circumstances are
outweighed by any mitigating circumstances. §§ 921.141(2)(b),
(3)(b) (1983), as amended by 1979 Fla. Laws, ch. 79-353. There is
no suggestion in this case that either the jury or the trial judge
was precluded from considering any nonstatutory mitigating
evidence.
Cf. Barclay v. Florida, 463 U.
S. 939,
463 U. S. 947,
n. 2 (1983) (STEVENS, J., concurring in judgment).
[
Footnote 5]
We note that, although the Court has not specifically addressed
the question presented here, it has assumed that, if a defendant is
constitutionally entitled to a lesser included offense instruction,
the trial court has authority to convict him of the lesser included
offense.
See Keeble v. United States, 412 U.
S. 205 (1973);
id. at
412 U. S.
215-217 (Stewart, J., dissenting on the ground that the
Court's decision improperly conferred jurisdiction in t.he federal
district court over crimes not enumerated in the Major Crimes Act,
18 U.S.C. §§ 1153, 3242).
[
Footnote 6]
There is no doubt about petitioner's understanding of the
implications of his refusal to waive the statute of limitations.
The following colloquy occurred in open court:
"THE COURT: Do you understand that, while the statute of
limitations has run on the Court submitting to the jury lesser
included verdicts representing the charges of second-degree murder
and third-degree murder, manslaughter, that you who has the benefit
of the statute of limitations can waive that benefit and, of course
-- and then have the Court submit the case to the jury on the
first-degree, second-degree, third-degree and manslaughter."
"If you don't waive the statute of limitations, then the Court
would submit to the jury only on the one charge, the main charge,
which is murder in the first degree, and the sentencing
alternatives are as [defense counsel] stated them. Do you
understand that?"
"MR. SPAZIANO: Yes, your Honor."
"THE COURT: Are you sure?"
"MR. SPAZIANO: I understand what I'm waiving. I was brought here
on first-degree murder, and I figure if I'm guilty of this, I
should be killed."
Tr. 753-754.
[
Footnote 7]
Because the death sentence is unique in its severity and in its
irrevocability,
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 187
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.),
Furman v. Georgia, 408 U. S. 238,
408 U. S.
286-291 (1972) (BRENNAN, J., concurring), the Court has
carefully scrutinized the States' capital sentencing schemes to
minimize the risk that the penalty will be imposed in error or in
an arbitrary and capricious manner. There must be a valid
penological reason for choosing from among the many criminal
defendants the few who are sentenced to death.
Zant v.
Stephens, 462 U. S. 862,
462 U. S.
876-877 (1983);
Enmund v. Florida, 458 U.
S. 782,
458 U. S.
788-789 (1982);
Godfrey v. Georgia,
446 U. S. 420,
446 U. S.
428-429 (1980);
Gardner v. Florida,
430 U. S. 349,
430 U. S.
360-361 (1977) (plurality opinion);
Proffitt v.
Florida, 428 U. S. 242,
428 U. S.
254-260 (1976) (joint opinion of Stewart, POWELL, and
STEVENS, JJ.);
Gregg v. Georgia, 428 U.S. at
428 U. S.
196-207;
Furman v. Georgia, supra. At the same
time, the Court has insisted that the sentencing decision be based
on the facts and circumstances of the individual and his crime.
Zant v. Stephens, 462 U.S. at
462 U. S. 879;
Eddings v. Oklahoma, 455 U.S. at
455 U. S.
110-112;
Lockett v. Ohio, 438 U.
S. 586,
438 U. S.
601-605 (1978) (plurality opinion);
Gregg v.
Georgia, 428 U.S. at
428 U. S. 197;
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S.
303-304 (1976) (plurality opinion) .
[
Footnote 8]
Petitioner's efforts to distinguish the considerations relevant
to imposition of a capital or a noncapital sentence bear more on
the jury's ability to function as the sentencer in a capital case
than on the constitutionality of the judge's doing so. We have no
particular quarrel with the proposition that juries, perhaps, are
more capable of making the life-or-death decision in a capital case
than of choosing among the various sentencing options available in
a noncapital case.
See ABA Standards for Criminal Justice
18-1.1, Commentary, pp. 18 21-18 22 (2d ed.1980) (reserving capital
sentencing from general disapproval of jury involvement in
sentencing). Sentencing by the trial judge certainly is not
required by
Furman v. Georgia, supra. See Gregg v.
Georgia, 428 U.S. at
428 U. S.
188-195 (joint opinion). What we do not accept is that,
because juries may sentence, they constitutionally must do so.
[
Footnote 9]
Twenty-nine jurisdictions allow a death sentence only if the
jury recommends death, unless the defendant has requested trial or
sentencing by the court.
See Ark.Stat.Ann. § 41-1301
(1977); Cal.Penal Code Ann. § 190.3 (West Supp.1984);
Colo.Rev.Stat. § 16-11-103 (1978 and Supp.1983); Conn.Gen.Stat. §
53a-46a (1983); Del. Code Ann., Tit. 11, § 11-4209 (1979 and
Supp.1982); Ga.Code Ann. §§ 17-10-30 to 17-10-32 (1982);
Ill.Rev.Stat., ch. 38, � 9-1 (Supp.1984); Ky.Rev.Stat. §
532.025(1)(b) (Supp.1982), La.Code Crim.Proc.Ann., Art. 905.8 (West
Supp.1984); Md.Ann.Code, Art. 27, § 413 (Supp.1983); Mass.Gen.Laws
Ann., ch. 279, §§ 68, 70 (West Supp.1984); Miss.Code Ann. §
99-19-101 (Supp.1983); Mo.Rev.Stat. § 565.006 (Supp.1982);
N.H.Rev.Stat.Ann. § 630.5 (Supp.1983); N.J.Stat.Ann. § 2C:11-3(c)
(West 1982); N.M.Stat.Ann. § 31-20A-3 (1981); N.C.Gen.Stat. §
15A-2000 (1983); Ohio Rev.Code Ann. § 2929.03 (1982), Okla.Stat.,
Tit. 21, § 701.11 (1981); 42 Pa.Cons.Stat. § 9711(f) (1982),
S.C.Code § 16-3-20 (Supp.1983); S.D. Comp. Laws Ann. § 23A-27A-4
(1979); Tenn.Code Ann. § 39-2-203 (1982); Tex.Code Crim.Proc. Ann.,
Art. 37.071 (Vernon 1981 and Supp.1984), Utah Code Ann. § 76-3-207
(Supp.1983); Va.Code § 19.2-264.4 (1983); Wash.Rev.Code § 10.95.030
(1983); Wyo.Stat. § 6-2-102 (1983); 49 U.S.C.App. § 1473(c). In
Nevada, the jury is given responsibility for imposing the sentence
in a capital case, but if the jury cannot agree, a panel of three
judges may impose the sentence. Nev.Rev.Stat. §§ 175.554, 175.556
(1981). In Arizona, Idaho, Montana, and Nebraska, the court alone
imposes the sentence. Ariz.Rev.Stat.Ann. § 13-703 (Supp.1983-1984);
Idaho Code § 19-2515 (1979); Mont.Code Ann. § 46-18-301 (1983);
Neb.Rev.Stat. § 29-2520 (1979). Besides Florida, the only States
that allow a judge to override a jury's recommendation of life are
Alabama and Indiana. Ala.Code § 13A-5-46 (1982); Ind.Code §
35-50-2-9 (Supp.1984).
JUSTICE WHITE, with whom JUSTICE REHNQUIST joins, concurring in
part and concurring in the judgment.
I join the Court's opinion and judgment except for the dictum on
page
468 U. S. 456
of the opinion indicating that
Beck v. Alabama,
447 U. S. 625
(1980), requires a state court in the trial of a capital case to
permit the defendant to waive the statute of limitations and to
give a lesser-included-offense instruction as to an offense that
would otherwise be barred.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, concurring in part and dissenting in part.
In this case, as in 82 others arising under the capital
punishment statute enacted by Florida in 1972, the trial judge
sentenced the defendant to death after a jury had recommended a
sentence of life imprisonment. The question presented is whether
the Constitution of the United States permits petitioner's
execution when the prosecution has been unable to persuade a jury
of his peers that the death penalty is the appropriate punishment
for his crime.
The Fourteenth Amendment provides that no State may "deprive any
person of life, liberty, or property without due
Page 468 U. S. 468
process of law." The concept of due process permits no such
deprivation -- whether of life, liberty, or property -- to occur if
it is grossly excessive in the particular case -- if it is "cruel
and unusual punishment" proscribed by the Eighth Amendment.
[
Footnote 2/1] The differences
between the three categories, however, are not mere matters of
degree. For although we look to state law as the source of the
right to property, "it is not the source of liberty, and surely not
the exclusive source."
Meachum v. Fano, 427 U.
S. 215,
427 U. S. 230
(1976) (STEVENS, J., dissenting).
See Board of Regents v.
Roth, 408 U. S. 564,
408 U. S. 572,
408 U. S. 577
(1972). Because a deprivation of liberty is qualitatively different
from a deprivation of property, heightened procedural safeguards
are a hallmark of Anglo-American criminal jurisprudence. But that
jurisprudence has also unequivocally established that a State's
deprivation of a person's life is also qualitatively different from
any lesser intrusion on liberty.
In the 12 years since
Furman v. Georgia, 408 U.
S. 238 (1972), every Member of this Court has written or
joined at least one opinion endorsing the proposition that, because
of its severity and irrevocability, the death penalty is
qualitatively different from any other punishment, and hence must
be accompanied by unique safeguards to ensure that it is a
justified response to a given offense. [
Footnote 2/2] Because it is the one punishment
Page 468 U. S. 469
that cannot be prescribed by a rule of law as judges normally
understand such rules, but rather is ultimately understood only as
an expression of the community's outrage -- its sense that an
individual has lost his moral entitlement to live [
Footnote 2/3] -- I am convinced that the danger of
an excessive response can only be avoided if the decision to impose
the death penalty is made by a jury, rather than by a single
governmental official. This conviction is consistent with the
judgment
Page 468 U. S. 470
of history and the current consensus of opinion that juries are
better equipped than judges to make capital sentencing decisions.
The basic explanation for that consensus lies in the fact that the
question whether a sentence of death is excessive in the particular
circumstances of any case is one that must be answered by the
decisionmaker that is best able to "express the conscience of the
community on the ultimate question of life or death."
Witherspoon v. Illinois, 391 U. S. 510,
391 U. S. 519
(1968) (footnote omitted).
I
Florida has adopted an unusual "trifurcated" procedure for
identifying the persons convicted of a capital felony who shall be
sentenced to death. It consists of a determination of guilt or
innocence by the jury, an advisory sentence by the jury, and an
actual sentence imposed by the trial judge.
Proffitt v.
Florida, 428 U. S. 242,
428 U. S.
248-250 (1976) (opinion of Stewart, POWELL, and STEVENS,
JJ.). [
Footnote 2/4] The judge's
determination is then reviewed by the Florida Supreme Court to
determine whether the aggravating and mitigating circumstances
found
Page 468 U. S. 471
by the trial judge are supported by the evidence and justify a
sentence of death.
Id. at
428 U. S.
250-251,
428 U. S.
253.
Because this procedure was adopted by a democratically elected
legislature, "we presume its validity,"
Gregg v. Georgia,
428 U. S. 153,
428 U. S. 175
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
Nevertheless, this presumption could not be conclusive, or the
Eighth Amendment would be effectively read out of the Constitution.
The Eighth Amendment is based on the recognition that there are
occasions on which the State or Federal Governments will undertake
to punish in a manner inconsistent with a fundamental value that
the Framers wished to secure against legislative majorities. Thus,
the Court correctly states:
"'Although the judgments of legislatures, juries, and
prosecutors weigh heavily in the balance, it is ultimately for us
to judge whether the Eighth Amendment' is violated by a challenged
practice."
Ante at
468 U. S. 464
(quoting
Enmund v. Florida, 458 U.
S. 782,
458 U. S. 797
(1982)). Our cases have established the appropriate mode of
analysis -- there must be "an assessment of contemporary values
concerning the infliction of a challenged sanction," to determine
whether punishment has been imposed in a way that offends an
"evolving standar[d] of decency,"
Gregg, 428 U.S. at
428 U. S. 173
(opinion of Stewart, POWELL, and STEVENS, JJ.). [
Footnote 2/5]
Page 468 U. S. 472
II
Inquiry into the practices adopted by the majority of
legislatures provides a logical starting point for determining
whether the practice at issue here comports with the Eighth
Amendment:
"[L]egislative measures adopted by the people's chosen
representatives weigh heavily in ascertaining contemporary
standards of decency."
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S.
294-295 (1976) (plurality opinion). [
Footnote 2/6]
The judgment of the people's representatives firmly supports the
conclusion that the jury ought to make the life-or-death decision
necessary in capital cases.
"Except for four States that entirely abolished capital
punishment in the middle of the last century, every American
jurisdiction has at some time authorized jury sentencing in capital
cases."
McGautha v. California, 402 U.
S. 183,
402 U. S. 200,
n. 11 (1971). For example, of 42 jurisdictions that employed
discretionary capital sentencing in 1948, only 3 did not require
its imposition through jury determinations which the trial judge
could not disregard. [
Footnote 2/7]
At the time of
Furman, only 2 jurisdictions of the 41
which employed discretionary capital punishment permitted a death
sentence to be imposed without the consent of a jury. [
Footnote 2/8] Currently, as the Court
explains,
ante at
468 U. S. 463, 30 of the 37 jurisdictions with capital
punishment statutes require that the decision to impose the death
penalty be made with the consent of a jury, and only 3
jurisdictions permit an override of a jury's recommendation of
leniency.
Page 468 U. S. 473
In
Enmund v. Florida, 458 U. S. 782
(1982), we relied on the fact that only one-third of the
jurisdictions with capital statutes permitted the imposition of the
death penalty on a defendant who had not intended the death of his
victim as strong support for our conclusion that in such cases the
imposition of capital punishment offends contemporary standards of
decency, and therefore violates the Eighth Amendment.
See
id. at
458 U. S. 792.
Here the level of consensus is even greater, thereby demonstrating
a strong community feeling that it is only decent and fair to leave
the life-or-death decision to the authentic voice of the community
-- the jury -- rather than to a single governmental official.
Examination of the historical and contemporary evidence thus
unequivocally supports the conclusion reached by the Royal
Commission on Capital Punishment three decades ago:
"For our part, we have no hesitation in agreeing with the many
witnesses who considered that, in this country at least, the
responsibility of deciding whether a person convicted of murder
should be sentenced to death or to a lesser punishment is too heavy
a burden to impose on any single individual. The sentence of death
differs absolutely, not in degree, from any other sentence; and it
would be wholly inconsistent with our traditional approach to such
issues to lay on the shoulders of the Judge a responsibility so
grave and invidious. It is more in accord with the instinct of our
people to entrust to the men and women of the jury a joint
responsibility for decisions which will affect the life of the
accused."
Royal Commission on Capital Punishment, 1949-1953, Report
193-194 (1953). [
Footnote 2/9]
Page 468 U. S. 474
III
Florida is one of only a few States that permits the imposition
of a sentence of death without the consent of a jury. Examination
of the reasons for Florida's decision illuminates the extent to
which this statute can be considered consistent with contemporary
standards of fairness and decency.
During the century between 1872 and 1972, Florida law required
the jury to make the capital sentencing decision. The change in the
decisionmaking process that occurred in 1972 was not motivated by
any identifiable change in the legislature's assessment of
community values; rather, it was a response to this Court's
decision in
Furman. In
Furman, a plurality of the
Court had condemned the arbitrary pattern of results under the
then-existing capital punishment statutes. [
Footnote 2/10] A number of States responded to
Furman by reducing the discretion granted to juries not
because of some deeply rooted communal value, but rather in an
attempt to comply with the several opinions in that case. [
Footnote 2/11] In
Dobbert v.
Florida, 432 U. S. 282
(1977), we specifically noted that the Florida jury override now
under challenge was adopted in an attempt to comply with
Furman, see 432 U.S. at
432 U. S.
294-297. [
Footnote
2/12] We have subsequently made it clear that jury sentencing
is not inconsistent
Page 468 U. S. 475
with
Furman, [
Footnote
2/13] thereby undermining the basis for the legislative
judgment challenged here. A legislative choice that is predicated
on this sort of misunderstanding is not entitled to the same
presumption of validity as one that rests wholly on a legislative
assessment of sound policy and community sentiment. [
Footnote 2/14]
Even apart from its history, there is reason to question whether
the Florida statute can be viewed as representing a judgment that
judicial sentencing is consistent with contemporary standards. The
administration of the statute actually reflects a deeply rooted
impulse to legitimate the process through involvement of the jury.
That is made evident not only through the use of an advisory jury,
[
Footnote 2/15] but also by the
fact
Page 468 U. S. 476
that the statute has been construed to forbid a trial judge to
reject the jury's decision unless he finds that the evidence
favoring a sentence of death is so clear and convincing that
virtually no reasonable person could impose a lesser sentence.
[
Footnote 2/16] Thus, the Florida
experience actually lends support to the conclusion that American
jurisprudence has considered the use of the jury to be important to
the fairness and legitimacy of capital punishment.
IV
The Court correctly notes that sentencing has traditionally been
a question with which the jury is not concerned.
Ante at
468 U. S. 459.
Deciding upon the appropriate sentence for a person who has been
convicted of a crime is the routine work of judges. By reason of
this experience, as well as their training, judges presumably
perform this function well. But, precisely because the death
penalty is unique, the normal presumption that a judge is the
appropriate sentencing authority does not apply in the capital
context. The decision whether or not an individual must die is not
one that has traditionally been entrusted to judges. This
tradition, which has marked a sharp distinction between the usual
evaluations of judicial competence with respect to capital and
noncapital sentencing, not only eliminates the general presumption
that judicial sentencing is appropriate in the capital context, but
also in itself provides reason to question whether assigning this
role to governmental officials, and not juries, is consistent with
the community's moral sense. [
Footnote 2/17]
Page 468 U. S. 477
While tradition and contemporary practice in most American
jurisdictions indicate that capital sentencing by judges offends a
moral sense that this unique kind of judgment must be made by a
more authentic voice of the community, nevertheless the Court is
correct to insist that these factors cannot be conclusive, or the
Eighth Amendment would prevent any innovation or variation in the
administration of the criminal law.
Ante at
468 U. S. 464.
Therefore, a more focused inquiry into the Eighth Amendment
implications of the decision to put an accused to death, and the
jury's relationship to those implications, is essential.
V
Punishment may be "cruel and unusual" because of its barbarity
or because it is "excessive" or "disproportionate" to the offense.
[
Footnote 2/18] In order to
evaluate a claim that a punishment is excessive, one must first
identify the reasons for imposing it. In general, punishment may
rationally be imposed for four reasons: (1) to rehabilitate the
offender; (2) to incapacitate him from committing offenses in the
future; (3) to deter
Page 468 U. S. 478
others from committing offenses; or (4) to assuage the victim's
or the community's desire for revenge or retribution. The first of
these purposes is obviously inapplicable to the death sentence. The
second would be served by execution, but in view of the
availability of imprisonment as an alternative means of preventing
the defendant from violating the law in the future, the death
sentence would clearly be an excessive response to this concern.
[
Footnote 2/19] We are thus left
with deterrence and retribution as the justifications for capital
punishment. [
Footnote 2/20]
A majority of the Court has concluded that the general
deterrence rationale adequately justifies the imposition of capital
punishment at least for certain classes of offenses for which the
legislature may reasonably conclude that the death penalty has a
deterrent effect. However, in reaching this conclusion, we have
stated that this is a judgment peculiarly within the competence of
legislatures, and not the judiciary. [
Footnote 2/21]
Page 468 U. S. 479
Thus, the deterrence rationale cannot be used to support the use
of judicial, as opposed to jury, discretion in capital sentencing,
at least absent some finding, which the Florida Legislature has not
purported to make, that judges are better at gauging the general
deterrent effect of a capital sentence than are juries.
Moreover, the deterrence rationale, in itself, argues only for
ensuring that the death sentence be imposed in a significant number
of cases and remain as a potential social response to the defined
conduct. Since the decision whether to employ jury sentencing does
not change the number of cases for which death is a possible
punishment, the use of judicial sentencing cannot have sufficient
impact on the deterrent effect of the statute to justify its use;
[
Footnote 2/22] a murderer's
calculus will not be affected by whether the death penalty is
imposed by a judge or jury. [
Footnote
2/23]
Page 468 U. S. 480
Finally, even though the deterrence rationale may provide a
basis for identifying the defendants eligible for the death
penalty, our cases establish that the decision whether to condemn a
man to death in a given case may not be the product of deterrence
considerations alone. Despite the fact that a legislature may
rationally conclude that mandatory capital punishment will have a
deterrent effect for a given class of aggravated crimes
significantly greater than would discretionary capital sentencing,
we have invalidated mandatory capital punishment statutes, as well
as statutes that do not permit the trier of fact to consider any
mitigating circumstance, even if unrelated to or perhaps
inconsistent with the deterrent purposes of the penalty. It is now
well settled that the trier of fact in a capital case must be
permitted to weigh any consideration -- indeed any aspect of the
defendant's crime or character -- relevant to the question whether
death is an excessive punishment for the offense. [
Footnote 2/24] Thus, particular capital sentencing
decisions cannot rest entirely on deterrent considerations.
In the context of capital felony cases, therefore, the question
whether the death sentence is an appropriate, nonexcessive response
to the particular facts of the case will depend on the retribution
justification. The nature of that justification was described in
Gregg:
"In part, capital punishment is an expression of society's moral
outrage at particularly offensive conduct. This function may be
unappealing to many, but it is essential in an ordered society that
asks its citizens to rely
Page 468 U. S. 481
on legal processes, rather than self-help to vindicate their
wrongs."
428 U.S. at
428 U. S.
183-184 (opinion of Stewart, POWELL, and STEVENS, JJ.)
(footnote omitted). [
Footnote
2/25]
Thus, in the final analysis, capital punishment rests on not a
legal, but an ethical, judgment -- an assessment of what we called
in
Enmund the "moral guilt" of the defendant. 458 U.S. at
458 U. S.
800-801. And if the decision that capital punishment is
the appropriate sanction in extreme cases is justified because it
expresses the community's moral sensibility -- its demand that a
given affront to humanity requires retribution -- it follows, I
believe, that a representative cross-section of the community must
be given the responsibility for making that decision. In no other
way can an unjustifiable risk of an excessive response be
avoided.
VI
The authors of our federal and state constitutional guarantees
uniformly recognized the special function of the jury in any
exercise of plenary power over the life and liberty of the citizen.
In our jurisprudence, the jury has always played an essential role
in legitimating the system of criminal justice.
"The guarantees of jury trial in the Federal and State
Constitutions reflect a profound judgment about the way in which
law should be enforced and justice administered. A right to jury
trial is granted to criminal defendants in order to prevent
oppression by the Government. Those who wrote our constitutions
knew from history and experience that it was necessary to protect
against unfounded criminal charges brought to eliminate enemies and
against judges too responsive to the voice of higher authority. The
framers of the constitutions
Page 468 U. S. 482
strove to create an independent judiciary, but insisted upon
further protection against arbitrary action. Providing an accused
with the right to be tried by a jury of his peers gave him an
inestimable safeguard against the corrupt or overzealous prosecutor
and against the compliant, biased, or eccentric judge. If the
defendant preferred the common sense judgment of a jury to the more
tutored but perhaps less sympathetic reaction of the single judge,
he was to have it. Beyond this, the jury trial provisions in the
Federal and State Constitutions reflect a fundamental decision
about the exercise of official power -- a reluctance to entrust
plenary powers over the life and liberty of the citizen to one
judge or to a group of judges. Fear of unchecked power, so typical
of our State and Federal Governments in other respects, found
expression in the criminal law in this insistence upon community
participation in the determination of guilt or innocence."
Duncan v. Louisiana, 391 U. S. 145,
391 U. S.
155-156 (1968) (footnote omitted). [
Footnote 2/26]
Thus, the jury serves to ensure that the criminal process is not
subject to the unchecked assertion of arbitrary governmental power;
community participation is "critical to public confidence in the
fairness of the criminal justice system."
Taylor v.
Louisiana, 419 U. S. 522,
419 U. S. 530
(1975). [
Footnote 2/27]
The same consideration that supports a constitutional
entitlement to a trial by a jury, rather than a judge, at the guilt
or innocence stage -- the right to have an authentic representative
of the community apply its lay perspective to the determination
that must precede a deprivation of liberty -- applies with special
force to the determination that must precede
Page 468 U. S. 483
a deprivation of life. In many respects, capital sentencing
resembles a trial on the question of guilt, involving as it does a
prescribed burden of proof of given elements through the
adversarial process. [
Footnote
2/28] But more important than its procedural aspects, the
life-or-death decision in capital cases depends upon its link to
community values for its moral and constitutional legitimacy. In
Witherspoon v. Illinois, 391 U. S. 510
(1968), after observing that
"a jury that must choose between life imprisonment and capital
punishment can do little more -- and must do nothing less -- than
express the conscience of the community on the ultimate question of
life or death,"
id. at
391 U. S. 519
(footnote omitted), the Court added:
"[O]ne of the most important functions any jury can perform in
making such a selection is to maintain a link between contemporary
community values and the penal system -- a line without which the
determination of punishment could hardly reflect 'the evolving
standards of decency that mark the progress of a maturing
society.'"
Id. at
391 U. S. 519,
n. 15 (quoting
Trop v. Dulles, 356 U. S.
86,
356 U. S. 101
(1958) (plurality opinion)). [
Footnote 2/29]
That the jury is central to the link between capital punishment
and the standards of decency contained in the Eighth Amendment is
amply demonstrated by history. Under the common law, capital
punishment was mandatory for all felonies, and even through the
last century, it was mandatory for large categories of
offenses.
"[O]ne of the most significant developments in our society's
treatment of capital punishment has been the rejection of the
common law practice of inexorably imposing a death sentence upon
every person
Page 468 U. S. 484
convicted of a specified offense."
Woodson, 428 U.S. at
428 U. S. 301
(plurality opinion). The jury played a critical role in this
process. Juries refused to convict in cases in which they felt the
death penalty to be morally unjustified. This forced the adoption
of more enlightened capital punishment statutes that were more in
accord with the community's moral sensibilities:
"At least since the Revolution, American jurors have, with some
regularity, disregarded their oaths and refused to convict
defendants where a death sentence was the automatic consequence of
a guilty verdict. As we have seen, the initial movement to reduce
the number of capital offenses and to separate murder into degrees
was prompted in part by the reaction of jurors as well as by
reformers who objected to the imposition of death as the penalty
for any crime. Nineteenth century journalists, statesmen, and
jurists repeatedly observed that jurors were often deterred from
convicting palpably guilty men of first-degree murder under
mandatory statutes. Thereafter, continuing evidence of jury
reluctance to convict persons of capital offenses in mandatory
death penalty jurisdictions resulted in legislative authorization
of discretionary jury sentencing. . . ."
Id. at
428 U. S. 293
(footnote omitted). [
Footnote
2/30]
Thus, the lesson history teaches is that the jury -- and in
particular jury sentencing -- has played a critical role in
ensuring that capital punishment is imposed in a manner consistent
with evolving standards of decency. This is a lesson of
constitutional magnitude, and one that was forgotten during the
enactment of the Florida statute.
Page 468 U. S. 485
VII
The importance of the jury to the legitimacy of the capital
sentencing decision has been a consistent theme in our evaluation
of post-
Furman capital punishment statutes. In
Gregg, we reaffirmed the link between evolving standards
of decency and the imposition of capital punishment provided by the
jury, as well as the traditional function of the jury in ensuring
that the death penalty is assessed only in cases where its
imposition is consistent with Eighth Amendment standards:
"The jury also is a significant and reliable objective index of
contemporary values because it is so directly involved. The Court
has said that"
"one of the most important functions any jury can perform in
making . . . a selection [between life imprisonment and death for a
defendant convicted in a capital case] is to maintain a link
between contemporary community values and the penal system."
"It may be true that evolving standards have influenced juries
in recent decades to be more discriminating in imposing the
sentence of death. But the relative infrequency of jury verdicts
imposing the death sentence does not indicate rejection of capital
punishment
per se. Rather, the reluctance of juries in
many cases to impose the sentence may well reflect the humane
feeling that this most irrevocable of sanctions should be reserved
for a small number of extreme cases."
428 U.S. at
428 U. S.
181-182 (opinion of Stewart, POWELL, and STEVENS, JJ.)
(footnote and citations omitted) (quoting
Witherspoon, 391
U.S. at
391 U. S. 519,
n. 15). [
Footnote 2/31]
Highly relevant to the present inquiry is the invalidation of
post-
Furman statutes requiring mandatory death
sentences
Page 468 U. S. 486
because they broke the critical link provided by the jury
between the death penalty and community standards:
"[E]vidence of the incompatibility of mandatory death penalties
with contemporary values is provided by the results of jury
sentencing under discretionary statutes. In
Witherspoon v.
Illinois, 391 U. S. 510 (1968), the Court
observed that 'one of the most important functions any jury can
perform' in exercising its discretion to choose 'between life
imprisonment and capital punishment' is 'to maintain a link between
contemporary community values and the penal system.'
Id.
at
391 U. S. 519, and n. 15.
Various studies indicate that, even in first-degree murder cases,
juries with sentencing discretion do not impose the death penalty
'with any great frequency.'"
Woodson, 428 U.S. at
428 U. S. 295
(plurality opinion) (footnote omitted) (quoting H. Kalven & H.
Zeisel, The American Jury 436 (1966)). We therefore concluded
that
"North Carolina's mandatory death penalty statute for
first-degree murder departs markedly from contemporary standards
respecting the imposition of the punishment of death, and thus
cannot be applied consistently with the Eighth and Fourteenth
Amendments' requirement that the State's power to punish 'be
exercised within the limits of civilized standards.'"
428 U.S. at
428 U. S. 301
(footnote omitted) (quoting
Trop v. Dulles, 356 U.S. at
356 U. S. 100
(plurality opinion)).
That the jury provides a better link to community values than
does a single judge is supported not only by our cases, but also by
common sense. Juries -- comprised as they are of a fair
cross-section of the community [
Footnote 2/32] -- are more representative institutions
than is the judiciary; they reflect more accurately the composition
and experiences of the community as a whole, and inevitably make
decisions based on community values more reliably, than can that
segment of the community
Page 468 U. S. 487
that is selected for service on the bench. [
Footnote 2/33] Indeed, as the preceding discussion
demonstrates, the belief that juries more accurately reflect the
conscience of the community than can a single judge is the central
reason that the jury right has been recognized at the guilt stage
in our jurisprudence. This same belief firmly supports the use of
juries in capital sentencing, in order to address the Eighth
Amendment's
Page 468 U. S. 488
concern that capital punishment be administered consistently
with community values. In fact, the available empirical evidence
indicates that judges and juries do make sentencing decisions in
capital cases in significantly different ways, [
Footnote 2/34] thus supporting the conclusion that
entrusting the capital decision
Page 468 U. S. 489
to a single judge creates an unacceptable risk that the decision
will not be consistent with community values.
Thus, the legitimacy of capital punishment in light of the
Eighth Amendment's mandate concerning the proportionality of
punishment critically depends upon whether its imposition in a
particular case is consistent with the community's sense of values.
Juries have historically been, and continue to be, a much better
indicator as to whether the death penalty is a disproportionate
punishment for a given offense in light of community values than is
a single judge. If the prosecutor cannot convince a jury that the
defendant deserves to die, there is an unjustifiable risk that the
imposition of that punishment will not reflect the community's
sense of the defendant's "moral guilt." The Florida statute is thus
inconsistent with "the need for reliability in the determination
that death is the appropriate punishment in a specific case,"
Woodson, 428 U.S. at
428 U. S. 305
(plurality opinion); it "introduce[s] a level of uncertainty and
unreliability into the factfinding process that cannot be tolerated
in a capital case."
Beck v. Alabama, 447 U.
S. 625,
447 U. S. 643
(1980). As a result, the statute
"creates the risk that the death penalty will be imposed in
spite of factors which may call for a less severe penalty. When the
choice is between life and death, that risk is unacceptable and
incompatible with the commands of the Eighth and Fourteenth
Amendments."
Lockett v. Ohio, 438 U. S. 586,
438 U. S. 605
(1978) (plurality opinion). Once a State, through specification of
aggravating circumstances and meaningful appellate review of jury
verdicts, develops a capital sentencing process which, in the
aggregate, distinguishes between those who may live and those who
will die in some acceptably nonarbitrary way, [
Footnote 2/35]
Furman and its progeny
provide no warrant
Page 468 U. S. 490
for -- indeed do not tolerate -- the exclusion from the capital
sentencing process of the jury and the critical contribution only
it can make toward linking the administration of capital punishment
to community values.
VIII
History, tradition, and the basic structure and purpose of the
jury system persuade me that jury sentencing is essential if the
administration of capital punishment is to be governed by the
community's evolving standards of decency. The constitutional
legitimacy of capital punishment depends upon the extent to which
the process is able to produce results which reflect the
community's moral sensibilities. Judges simply cannot acceptably
mirror those sensibilities -- the very notion of a right to jury
trial is premised on that realization. Judicial sentencing in
capital cases cannot provide the type of community participation in
the process upon which its legitimacy depends.
If the State wishes to execute a citizen, it must persuade a
jury of his peers that death is an appropriate punishment for his
offense. If it cannot do so, then I do not believe it can be said
with an acceptable degree of assurance that imposition of the death
penalty would be consistent with the community's sense of
proportionality. Thus, in this case, Florida has authorized the
imposition of disproportionate punishment in violation of the
Eighth and Fourteenth Amendments. Accordingly, while I join Part II
of the opinion of the Court, with respect to the remainder of the
Court's opinion and its judgment, I respectfully dissent.
[
Footnote 2/1]
See Solem v. Helm, 463 U. S. 277,
463 U. S.
288-290 (1983). The Eighth Amendment provides:
"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted." The Eighth Amendment
is incorporated in the Due Process Clause of the Fourteenth
Amendment.
E.g., Robinson v. California, 370 U.
S. 660,
370 U. S. 666
(1962);
Louisiana ex rel. Francis v. Resweber,
329 U. S. 459,
329 U. S. 463
(1947) (plurality opinion).
[
Footnote 2/2]
See Solem v. Helm, 463 U.S. at
463 U. S. 289;
id. at
463 U. S. 306
(BURGER, C.J. dissenting);
Enmund v. Florida, 458 U.
S. 782,
458 U. S. 797
(1982);
Beck v. Alabama, 447 U. S. 625,
447 U. S.
637-638 (1980);
Rummel v. Estelle, 445 U.
S. 263,
445 U. S. 272
(1980);
Lockett v. Ohio, 438 U. S. 586,
438 U. S.
604-605 (1978) (plurality opinion);
Coker v.
Georgia, 433 U. S. 584,
433 U. S. 598
(1977) (plurality opinion);
Gardner v. Florida,
430 U. S. 349,
430 U. S.
357-358 (1977) (plurality opinion);
Gregg v.
Georgia, 428 U. S. 153,
428 U. S. 188
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
[
Footnote 2/3]
"Death is truly an awesome punishment. The calculated killing of
a human being by the State involves, by its very nature, a denial
of the executed person's humanity. The contrast with the plight of
a person punished by imprisonment is evident. An individual in
prison does not lose 'the right to have rights.' A prisoner
retains, for example, the constitutional rights to the free
exercise of religion, to be free of cruel and unusual punishments,
and to treatment as a 'person' for purposes of due process of law
and the equal protection of the laws. A prisoner remains a member
of the human family. Moreover, he retains the right of access to
the courts. His punishment is not irrevocable. Apart from the
common charge, grounded upon the recognition of human fallibility,
that the punishment of death must inevitably be inflicted upon
innocent men, we know that death has been the lot of men whose
convictions were unconstitutionally secured in view of later,
retroactively applied, holdings of this Court. The punishment
itself may have been unconstitutionally inflicted, yet the finality
of death precludes relief. An executed person has indeed 'lost the
right to have rights.' As one 19th century proponent of punishing
criminals by death declared,"
"When a man is hung, there is an end of our relations with him.
His execution is a way of saying, 'You are not fit for this world,
take your chance elsewhere.'"
Furman, 408 U.S. at
408 U. S. 290
(BRENNAN, J., concurring) (citation omitted) (quoting Stephen,
Capital Punishments, 69 Fraser's Magazine 753, 763 (1864)).
See
also 408 U.S. at
408 U. S. 306
(Stewart, J., concurring) ("The penalty of death differs from all
other forms of criminal punishment, not in degree, but in kind. It
is unique in its total irrevocability. It is unique in its
rejection of rehabilitation of the convict as a basic purpose of
criminal justice. And it is unique, finally, in its absolute
renunciation of all that is embodied in our concept of
humanity").
[
Footnote 2/4]
The Court correctly treats the question whether this procedure
is constitutional as an open one. The question has been explicitly
reserved for decision by the Court in the past.
See Bell v.
Ohio, 438 U. S. 637,
438 U. S.
642-643, n. (1978) (plurality opinion);
Lockett v.
Ohio, 438 U.S. at
438 U. S. 609,
n. 16 (plurality opinion). In
Proffitt, in which we
considered a number of aspects of this statute, this precise issue
did not arise since the advisory jury had recommended that Proffitt
be sentenced to death. 428 U.S. at
428 U. S. 246
(opinion of Stewart, POWELL, and STEVENS, JJ.). Thus, my
description of
Proffitt as containing a holding on this
point in
Barclay v. Florida, 463 U.
S. 939,
463 U. S. 971
(1983) (STEVENS, J., concurring in judgment), was incorrect. Death
sentences based on the trial judge's rejection of a jury's
recommendation were vacated without considering this question in
Gardner v. Florida, 430 U. S. 349
(1977), and
Arizona v. Rumsey, 467 U.
S. 203 (1984). A death sentence in a case in which the
advisory jury had recommended life imprisonment was upheld in
Dobbert v. Florida, 432 U. S. 282
(1977), but there certiorari was granted only to consider the
permissibility of the sentence under the Ex Post Facto Clause,
see id. at
432 U. S. 284.
Such a sentence was also upheld in
Barclay, but this issue
was neither raised nor decided.
[
Footnote 2/5]
See Enmund v. Florida, 458 U.S. at
458 U. S. 813
(O'CONNOR, J., dissenting);
Coker v. Georgia, 433 U.S. at
433 U. S.
603-604 (POWELL, J., concurring in judgment in part and
dissenting in part);
Woodson v. North Carolina,
428 U. S. 280,
428 U. S. 288
(1976) (plurality opinion). There is another aspect to Eighth
Amendment analysis unrelated to contemporary standards of
decency:
"[T]he Eighth Amendment demands more than that a challenged
punishment be acceptable to contemporary society. The Court also
must ask whether it comports with the basic concept of human
dignity at the core of the Amendment. . . . [T]he sanction imposed
cannot be so totally without penological justification that it
results in the gratuitous infliction of suffering."
Gregg, 428 U.S. at
428 U. S.
182-183 (opinion of Stewart, POWELL, and STEVENS, JJ.)
(citation omitted).
See also Rhodes v. Chapman,
452 U. S. 337,
452 U.S. 346 (1981);
Estelle v. Gamble, 429 U. S. 97,
429 U. S. 103
(1976). No one contends, however, that judicial sentencing in
capital cases results in the gratuitous infliction of suffering so
as to violate this aspect of the Eighth Amendment.
[
Footnote 2/6]
See also Solem v. Helm, 463 U.S. at
463 U. S.
291-292;
Enmund v. Florida, 458 U.S. at
458 U. S.
789-793;
Coker v. Georgia, 433 U.S. at
433 U. S.
592-596 (plurality opinion);
Roberts v.
Louisiana, 428 U. S. 325,
428 U. S.
352-354 (1976) (WHITE, J., dissenting);
Gregg,
428 U.S. at
428 U. S.
179-181 (opinion of Stewart, POWELL, and STEVENS,
JJ.).
[
Footnote 2/7]
See Andres v. United States, 333 U.
S. 740,
333 U. S.
767-770 (1948) (Frankfurter, J., concurring).
[
Footnote 2/8]
See Witherspoon v. Illinois, 391 U.
S. 510,
391 U. S.
525-527, and nn. 2-8 (1968) (opinion of Douglas, J.);
Brief for United States as
Amicus Curiae in
McGautha
v. California, O.T. 1970, No. 203, and
Crampton v.
Ohio, O.T. 1970, No. 204, PP. 36, 132-137.
[
Footnote 2/9]
The British experience is particularly relevant, since the
Eighth Amendment was derived from the Magna Carta and the English
Declaration of Rights.
See Solem v. Helm, 463 U.S. at
463 U. S.
284-285;
Gregg, 428 U.S. at
428 U. S.
169-170 (opinion of Stewart, POWELL, and STEVENS, JJ.);
Furman v. Georgia, 408 U. S. 238,
408 U. S.
316-322 (1972) (MARSHALL, J., concurring);
Trop v.
Dulles, 356 U. S. 86,
356 U. S. 99-101
(1958) (plurality opinion).
[
Footnote 2/10]
See 408 U.S. at
408 U. S.
249-257 (Douglas, J., concurring);
id. at
408 U. S.
291-295 (BRENNAN, J., concurring);
id. at
408 U. S.
309-310 (Stewart, J., concurring);
id. at
408 U. S. 314
(WHITE, J., concurring).
See also id. at
408 U. S.
364-366 (MARSHALL, J., concurring).
[
Footnote 2/11]
See Lockett v. Ohio, 438 U.S. at
438 U. S.
599-600 (plurality opinion);
Woodson, 428 U.S.
at
428 U. S.
298-299 (plurality opinion).
[
Footnote 2/12]
See also Ehrhardt & Levinson, Florida's Legislative
Response to Furman: An Exercise in Futility?, 64 J.Crim.L. & C.
10 (1973). In this very case, the Florida Supreme Court said that
"allowing the jury's recommendation to be binding would violate
Furman,"
433 So. 2d
508, 512 (1983).
See also Johnson v.
State, 393 So. 2d
1069, 1074 (Fla.) (per curiam),
cert. denied, 454 U.S.
882 (1981);
Douglas v. State, 373 So. 2d
895, 897 (Fla.1979) (per curiam).
[
Footnote 2/13]
See Zant v. Stephens, 462 U. S. 862,
462 U. S.
874-875 (1983);
Gregg, 428 U.S. at
428 U. S.
190-195 (opinion of Stewart, POWELL, and STEVENS, JJ.);
id. at
428 U. S.
221-224 (WHITE, J., concurring in judgment).
[
Footnote 2/14]
A separate reason for discounting the normal presumption of
validity is that the statute has not worked as intended to protect
the rights of the defendant. Although technically only the judge
may impose a death sentence, in a practical sense, the accused
confronts the jeopardy of a death sentence twice. If the jury
recommends death, an elected Florida judge sensitive to community
sentiment would have an additional reason to follow that
recommendation. If there are any cases in which the jury override
procedure has worked to the defendant's advantage because the trial
judge rejected a jury's recommendation of death, they have not been
brought to our attention by the Attorney General of Florida, who
would presumably be aware of any such cases. On the other hand, the
fact that more persons identify with victims of crime than with
capital defendants inevitably encourages judges who must face
election to reject a recommendation of leniency. The fact that 83
defendants persuaded juries to recommend mercy but were thereafter
sentenced to death under the Florida statute lends support to the
thesis that, as a practical matter, the prosecution is given two
chances to obtain a death sentence under the statute.
[
Footnote 2/15]
In all capital cases, even those in which the defendant pleaded
guilty or waived a jury on the issue of guilt or innocence, the
Florida statute requires the enpanelment of an advisory jury and
that it render a sentence unless the advisory jury is separately
waived by the defendant.
See Fla.Stat. §§ 921.141(1) and
(2) (1983).
[
Footnote 2/16]
See Dobbert, 432 U.S. at
432 U. S.
295-296 (citing
Tedder v. State, 322 So. 2d
908, 910 (Fla.1975));
Proffitt v. Florida,
428 U. S. 242,
428 U. S.
248-249 (1976) (opinion of Stewart, POWELL, and STEVENS,
JJ.) (same).
[
Footnote 2/17]
In
Proffitt, the joint opinion stated:
"[I]t would appear that judicial sentencing should lead, if
anything, to even greater consistency in the imposition at the
trial court level of capital punishment, since a trial judge is
more experienced in sentencing than a jury, and is therefore better
able to impose sentences similar to those imposed in analogous
cases."
Id. at
428 U. S. 252
(opinion of Stewart, POWELL, and STEVENS, JJ.). Of course, since
Proffitt was not challenging judicial sentencing in that case,
see 468
U.S. 447fn2/4|>n. 4,
supra, this statement was
directed only at the risk of arbitrariness that had been identified
by the plurality in
Furman, and was not concerned with the
claim made here that jury sentencing is more consistent with
community values. Moreover, experience under the Florida statute
indicates that this prediction concerning judicial sentencing has
not been borne out. Not only has the Florida Supreme Court proved
much more likely to reverse in a jury override case than in any
other type of capital case,
see Radelet & Vandiver,
The Florida Supreme Court and Death Penalty Appeals, 74 J.Crim.L.
& C. 913 (1983), but also the clear majority of override cases
ultimately result in sentences of life imprisonment, rather than
death.
See App. B to Brief for Petitioner. Thus, it is
doubtful that judicial sentencing has worked to reduce the level of
capital sentencing disparity; if anything, the evidence in override
cases suggests that the jury reaches the appropriate result more
often than does the judge.
[
Footnote 2/18]
See Solem v. Helm, 463 U.S. at
463 U. S. 284;
Enmund, 458 U.S. at
458 U. S. 788;
Rhodes v. Chapman, 452 U.S. at
452 U.S. 346;
Coker v.
Georgia, 433 U.S. at
433 U. S.
591-592 (plurality opinion);
Estelle v. Gamble,
429 U.S. at
429 U. S.
102-103;
Gregg, 428 U.S. at
428 U. S.
171-173 (opinion of Stewart, POWELL, and STEVENS, JJ.);
Weems v. United States, 217 U. S. 349,
217 U. S. 371
(1910).
[
Footnote 2/19]
Although incapacitation was identified as one rationale that had
been advanced for the death penalty in
Gregg, 428 U.S. at
428 U. S. 183,
n. 28 (opinion of Stewart, POWELL, and STEVENS, JJ.), we placed no
reliance upon this rationale in upholding the imposition of capital
punishment under the Eighth Amendment, and this ground was not
mentioned at all by four of the seven Justices who voted to uphold
the death penalty in
Gregg and its companion cases,
see Roberts v. Louisiana, 428 U.S. at
428 U. S.
350-356 (WHITE, J., dissenting, joined by BURGER, C.J.,
and BLACKMUN and REHNQUIST, JJ.). In any event, incapacitation
alone could not justify the imposition of capital punishment, for
if it did, mandatory death penalty statutes would be
constitutional, and, as we have held, they are not.
See
ante at
468 U. S.
461-462.
[
Footnote 2/20]
See Roberts v. Louisiana, 428 U.S. at
428 U. S.
354-355 (WHITE, J., dissenting);
Gregg, 428
U.S. at
428 U. S.
183-186 (opinion of Stewart, POWELL, and STEVENS, JJ.).
See also id. at
428 U. S. 233
(MARSHALL, J., dissenting).
[
Footnote 2/21]
In
Gregg, Justice Stewart, JUSTICE POWELL, and I
wrote:
"Although some of the studies suggest that the death penalty may
not function as a significantly greater deterrent than lesser
penalties, there is no convincing empirical evidence either
supporting or refuting this view. We may nevertheless assume safely
that there are murderers, such as those who act in passion, for
whom the threat of death has little or no deterrent effect. But for
many others, the death penalty undoubtedly is a significant
deterrent. There are carefully contemplated murders, such as murder
for hire, where the possible penalty of death may well enter into
the cold calculus that precedes the decision to act. And there are
some categories of murder, such as murder by a life prisoner, where
other sanctions may not be adequate."
"The value of capital punishment as a deterrent of crime is a
complex factual issue, the resolution of which properly rests with
legislatures, which can evaluate the results of statistical studies
in terms of their own local conditions and with a flexibility of
approach that is not available to the courts. Indeed, many of the
post-
Furman statutes reflect just such a responsible
effort to define those crimes and those criminals for which capital
punishment is most probably an effective deterrent."
Id. at
428 U. S.
185-186 (footnotes and citation omitted).
See also
Roberts v. Louisiana, 428 U.S. at
428 U. S.
354-355 (WHITE, J., dissenting). The Court takes this
same approach today,
ante at
468 U. S.
461.
[
Footnote 2/22]
Cf. Enmund, 458 U.S. at
458 U. S.
798-800 (imposition of death penalty on those lacking an
intent to kill has too attenuated a deterrent effect to be
justified by deterrence);
Lockett v. Ohio, 438 U.S. at
438 U. S. 625
(WHITE, J., concurring in part and dissenting in part) (same).
[
Footnote 2/23]
The Florida Legislature did not purport to make a contrary
finding, nor does the Court advance an enhanced deterrent effect as
a justification for judicial sentencing. Indeed, such an argument
would be especially anomalous in this case in light of the
deference generally given jury determinations under the Florida
statute.
[
Footnote 2/24]
See Eddings v. Oklahoma, 455 U.
S. 104 (1982);
Lockett v. Ohio, 438 U.S. at
438 U. S.
604-608 (plurality opinion);
Roberts v.
Louisiana, 431 U. S. 633
(1977) (per curiam);
Roberts v. Louisiana, 428 U.S. at
428 U. S.
333-334 (plurality opinion);
Woodson, 428 U.S.
at
428 U. S.
303-305 (plurality opinion);
Jurek v. Texas,
428 U. S. 262,
428 U. S.
271-272 (1976) (opinion of Stewart, POWELL, and STEVENS,
JJ.).
See also California v. Ramos, 463 U.
S. 992,
463 U. S.
1006 (1983);
Enmund, 458 U.S. at
458 U. S.
798.
[
Footnote 2/25]
See also Furman, 408 U.S. at
408 U. S. 308
(Stewart, J., concurring),
id. at
408 U. S.
452-454 (POWELL, J., dissenting).
[
Footnote 2/26]
See also Brown v. Louisiana, 447 U.
S. 323,
447 U. S. 330
(1980) (plurality opinion);
Burch v. Louisiana,
441 U. S. 130,
441 U. S. 135
(1979);
Ballew v. Georgia, 435 U.
S. 223,
435 U. S.
229-230 (1978) (opinion of BLACKMUN, J.),
Apodaca v.
Oregon, 406 U. S. 404,
406 U. S. 410
(1972) (plurality opinion);
Williams v. Florida,
399 U. S. 78,
399 U. S.
100(1970).
[
Footnote 2/27]
See also Humphrey v. Cady, 405 U.
S. 504,
405 U. S. 509
(1972).
[
Footnote 2/28]
See Bullington v. Missouri, 451 U.
S. 430,
451 U. S. 438
(1981).
See also Arizona v. Rumsey, 467 U.S. at
467 U. S.
209-210.
[
Footnote 2/29]
Accord, McGautha v. California, 402 U.
S. 183,
402 U. S.
201-202 (1971);
Furman, 408 U.S. at
408 U. S.
388-389 (BURGER, C.J., dissenting);
id. at
428 U. S.
439-441 (POWELL, J., dissenting).
See generally
Note, The Death Penalty and Federalism: Eighth Amendment
Constraints on the Allocation of State Decisionmaking Power, 35
Stan.L.Rev. 787, 810-820 (1983).
[
Footnote 2/30]
See also Eddings v. Oklahoma, 455 U.S. at
455 U. S.
110-111;
Lockett v. Ohio, 438 U.S. at
438 U. S.
597-598 (plurality opinion);
Furman, 408 U.S.
at
408 U. S.
245-247 (Douglas, J., concurring);
id. at
408 U. S.
297-299 (BRENNAN, J., concurring);
id. at
408 U. S. 339
(MARSHALL, J., concurring);
McGautha, 402 U.S. at
402 U. S.
197-202;
Andres v. United States, 333 U.S. at
333 U. S. 753
(Frankfurter, J., concurring).
[
Footnote 2/31]
See also Enmund, 458 U.S. at
458 U. S.
794-796;
Coker v. Georgia, 433 U.S. at
433 U. S.
596-597 (plurality opinion).
[
Footnote 2/32]
See, e.g., Duren v. Missouri, 439 U.
S. 357 (1979).
[
Footnote 2/33]
In his valuable article, Professor Gillers has written:
"Intuitively, juries, chosen in accordance with rules calculated
to assure that they reflect a 'fair cross-section of the
community,' are more likely to accurately express community values
than are individual state trial judges. This is true because twelve
people are more likely than one person to reflect public sentiment,
because jurors are selected in a manner enhancing that likelihood,
and because trial judges collectively do not represent -- by race,
sex, or economic or social class -- the communities from which they
come. The response of a representative jury of acceptable size is
consequently taken to be the community response. The jury does not
try to determine what the community would say, but, in giving its
conclusion, speaks for the community. The judge, on the other hand,
must assess the community's 'belief' or 'conscience' and impose it,
or must impose his own and assume it is the community's. Whichever
the judge does, the representative jury would seem to have a
substantially better chance of identifying the community view
simply by speaking its mind."
"The intuitive expectation that a representative jury of
adequate size will convey community values more reliably than will
a single judge finds support in cases treating jury composition at
culpability trials. In this related area, the Court has stressed
the importance of a representative jury as an aid in assuring
'meaningful community participation,' and has accepted the idea
that different segments of the community will bring to the
representative jury 'perspectives and values that influence both
jury deliberation and result.' In addition, the Court has said that
juries of decreasing size have a reduced chance of reflecting
minority viewpoints. The Court's conclusions that the size and
representativeness of juries influence their ability to reflect
community values support an inference that a representative jury of
adequate size is also more likely than a single judge to reflect
the community's retributive sentiment. Indeed, since capital
sentencing involves application of community values, whereas guilt
determination predominantly demands factfinding, the Court's
conclusions would seem to apply with even greater force in the
capital sentencing area."
Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1, 63-65 (1980)
(footnotes omitted).
[
Footnote 2/34]
A respected study of the matter found that judges and juries
disagree as to the imposition of the death penalty in 59 percent of
the cases, with juries being much more likely to show mercy than
judges.
See H. Zeisel, Some Data on Juror Attitudes Toward
Capital Punishment 37-50 (1968). This study must be viewed with
some caution, because it was based on pre-
Furman
sentencing, when juries were given no guidance concerning the
standards for decision.
See Zeisel,
supra, at
37-38, and n. 29. But then there were no standards for judges to
follow either, and the wide disparity between judge and jury
sentencing in an era in which all the sentencer could do was
express its sense of proportionality,
see Witherspoon, 391
U.S. at
391 U. S. 519,
and n. 15, suggests that judicial sentencing does not reflect the
same moral sensibility as does jury sentencing. That there has been
such a large number of jury overrides under the Florida statute
tends to indicate that the disparity between judge and jury has
continued in the post-
Furman era. Indeed, the facts of
this very case illustrate the point. While the crime for which
petitioner was convicted was quite horrible, the case against him
was rather weak, resting as it did on the largely uncorroborated
testimony of a drug addict who said that petitioner had bragged to
him of having killed a number of women, and had led him to the
victim's body. It may well be that the jury was sufficiently
convinced of petitioner's guilt to convict him, but nevertheless
also sufficiently troubled by the possibility that an irrevocable
mistake might be made, coupled with evidence indicating that
petitioner had suffered serious head injuries when he was 20 years
old which had induced a personality change, App. 35,
see
also 433 So. 2d at 512 (McDonald, J., dissenting), that the
jury concluded that a sentence of death could not be morally
justified in this case. A judge trained to distinguish proof of
guilt from questions concerning sentencing might react quite
differently to this case than would a jury.
See H.
Melville, Billy Budd 72 (Pocket Books 1972) ("For the compassion,
how can I otherwise than share it. But, mindful of paramount
obligations, I strive against scruples that may tend to enervate
decision. Not, gentlemen, that I hide from myself that this case is
an exceptional one. Speculatively regarded, it well might be
referred to a jury of casuists. But for us here, acting not as
casuists or moralists, in a case practical, and under martial law
practically to be dealt with").
[
Footnote 2/35]
See Pulley v. Harris, 465 U. S. 37
(1984);
id. at
465 U. S. 54
(STEVENS, J., concurring in part and concurring in judgment);
Zant v. Stephens, 462 U.S. at
462 U. S.
878-879;
Gregg, 428 U.S. at
428 U. S.
196-198,
428 U. S.
200-204 (opinion of Stewart, POWELL, and STEVENS, JJ.);
id. at
428 U. S.
221-224 (WHITE, J., concurring in judgment).