Petitioner was convicted of first-degree murder in a Florida
court. After the required separate sentencing hearing, the jury
advised the court to impose a life sentence on the ground that the
statutory mitigating circumstances required to be taken into
account in imposing a sentence outweighed the aggravating
circumstances. But the trial judge, relying in part on a
presentence investigation report that he had ordered and portions
of which were not disclosed to or requested by counsel for the
parties, imposed the death sentence on the ground that a certain
aggravating circumstance justified it and that there was no
mitigating circumstance. The Florida Supreme Court affirmed the
death sentence without expressly discussing petitioner's contention
that the sentencing court had erred in considering the presentence
report, including the confidential portion, in deciding to impose
the death penalty, and without reviewing such confidential
portion.
Held: The judgment is vacated and the case is remanded.
Pp.
430 U. S.
355-364.
313 So. 2d
675, vacated and remanded.
MR. JUSTICE STEVENS joined by MR. JUSTICE STEWART and MR.
JUSTICE POWELL concluded that:
1. Petitioner was denied due process of law when the death
sentence was imposed, at least in part, on the basis of information
that he had no opportunity to deny or explain.
Williams v. New
York, 337 U. S. 241,
distinguished. Pp.
430 U. S.
355-362.
(a) In light of the constitutional developments whereby it is
now recognized that death is a different kind of punishment from
any other and that the sentencing process, as well as the trial
itself, must satisfy due process, the capital sentencing procedure
followed here is not warranted by any of the following
justifications offered by the State: (i) an assurance of
confidentiality is necessary to enable investigators to obtain
relevant but sensitive disclosures about a defendant's background
or character; (ii) full disclosure of a presentence report will
unnecessarily delay the proceeding; (iii) such full disclosure,
which often include psychiatric and psychological evaluations, will
occasionally disrupt the rehabilitation process; and (iv) trial
judges can be trusted to exercise
Page 430 U. S. 350
their sentencing discretion in a responsible manner, even though
their decisions may be based on secret information. Pp.
430 U. S.
357-360.
(b) Even if it were permissible upon finding good cause to
withhold a portion of a presentence report from the defendant, and
even from defense counsel, nevertheless the full report must be
made a part of the record to be reviewed on appeal. Since the State
must administer its capital sentencing procedures with an even
hand, that record must disclose to the reviewing court the
considerations motivating the death sentence in every case in which
it is imposed, since otherwise the capital sentencing procedure
would be subject to the defects that resulted in the holding of
unconstitutionality in
Furman v. Georgia, 408 U.
S. 238. Pp.
430 U. S.
360-361.
(c) Here defense counsel's failure to request access to the full
presentence report cannot justify the submission of a less complete
record to the reviewing court than the record on which the trial
judge based his decision to sentence petitioner to death, nor does
such omission by counsel constitute an effective waiver of the
constitutional error. Pp.
430 U. S.
361-362.
2. The proper disposition of the case is to vacate the death
sentence and remand the case to the Florida Supreme Court with
directions to order further proceedings at the trial court level
not inconsistent with this opinion, rather than, as the State
urges, merely remanding the case to the Florida Supreme Court with
directions to have the entire presentence report made a part of the
record to enable that court to complete its reviewing function,
since this latter procedure could not fully correct the error. P.
430 U.S. 362.
MR. JUSTICE WHITE concluded, on the basis of the Eighth
Amendment's ban on cruel and unusual punishments, that a procedure
for selecting defendants for the death penalty that permits
consideration of secret information in a presentence report
relevant to the defendant's character and record fails to meet the
"need for reliability in the determination that death is the
appropriate punishment,"
Woodson v. North Carolina,
428 U. S. 280,
428 U. S. 305.
Pp.
430 U.S. 362-364.
MR. JUSTICE BLACKMUN concurred in the judgment on the basis of
the judgments in
Woodson v. North Carolina, supra, and
Roberts v. Louisiana, 428 U. S. 325. P.
430 U. S.
364.
STEVENS, J., announced the Court's judgment and filed an
opinion, in which STEWART and POWELL JJ., joined. BURGER, C.J.,
concurred in the judgment. WHITE, J.,
post, p.
430 U.S. 362, and BLACKMUN,
J.,
post, p.
430 U. S. 364,
filed opinions concurring in the judgment. BRENNAN, J., filed a
separate
Page 430 U. S. 351
opinion,
post, p.
430 U. S. 364.
MARSHALL, J.,
post, p.
430 U. S. 365,
and REHNQUIST, J,
post, p.
430 U.S. 371, filed dissenting
opinions.
MR. JUSTICE STEVENS announced the judgment of the Court and
delivered an opinion, in which MR. JUSTICE STEWART and MR. JUSTICE
POWELL joined.
Petitioner was convicted of first-degree murder and sentenced to
death. When the trial judge imposed the death sentence, he stated
that he was relying in part on information in a presentence
investigation report. Portions of the report were not disclosed to
counsel for the parties. Without reviewing the confidential portion
of the presentence report, the Supreme Court of Florida, over the
dissent of two justices, affirmed the death sentence.
313 So. 2d 675
(1975). We conclude that this procedure does not satisfy the
constitutional command that no person shall be deprived of life
without due process of law.
I
On June 30, 1973, the petitioner assaulted his wife with a blunt
instrument, causing her death. On January 10, 1974, after a trial
in the Circuit Court of Citrus County, Fla., a jury found him
guilty of first-degree murder.
The separate sentencing hearing required by Florida law in
capital cases [
Footnote 1] was
held later on the same day. The State merely introduced two
photographs of the decedent, otherwise
Page 430 U. S. 352
relying on the trial testimony. That testimony, if credited, was
sufficient to support a finding of one of the statutory aggravating
circumstances, that the felony committed by petitioner "was
especially heinous, atrocious, or cruel." [
Footnote 2]
In mitigation petitioner testified that he had consumed a vast
quantity of alcohol during a day-long drinking spree which preceded
the crime, and professed to have almost no recollection of the
assault itself. His testimony, if credited, was sufficient to
support a finding of at least one of the statutory mitigating
circumstances. [
Footnote 3]
After hearing this evidence the jury was instructed to determine
by a majority vote (1) whether the State had proved one of the
aggravating circumstances defined by statute, (2) whether
mitigating circumstances outweighed any such aggravating
circumstance, and (3) based on that determination, whether the
defendant should be sentenced to life or death.
After the jury retired to deliberate, the judge announced that
he was going to order a presentence investigation of petitioner.
[
Footnote 4] Twenty-five
minutes later, the jury returned its advisory verdict. It expressly
found that the mitigating circumstances
Page 430 U. S. 353
outweighed the aggravating circumstances and advised the court
to impose a life sentence. App 131.
The presentence investigation report was completed by the
Florida Parole and Probation Commission on January 28, 1974. On
January 30, 1974, the trial judge entered findings of fact and a
judgment sentencing petitioner to death. His ultimate finding was
that the felony "was especially heinous, atrocious or cruel; and
that such aggravating circumstances outweighs the mitigating
circumstance, to-wit: none."
Id. at 138. As a preface to
that ultimate finding, he recited that his conclusion was based on
the evidence presented at both stages of the bifurcated proceeding,
the arguments of counsel, and his review of "the factual
information contained in said presentence investigation."
Ibid.
There is no dispute about the fact that the presentence
investigation report contained a confidential portion which was not
disclosed to defense counsel. Although the judge noted in his
findings of fact that the State and petitioner's counsel had been
given "a copy of that portion [of the report] to which they are
entitled,"
ibid., counsel made no request to examine the
full report or to be apprised of the contents of the confidential
portion. The trial judge did not comment on the contents of the
confidential portion. His findings do not indicate that there was
anything of special importance in the undisclosed portion, or that
there was any reason other than customary practice for not
disclosing the entire report to the parties.
On appeal to the Florida Supreme Court, petitioner argued that
the sentencing court had erred in considering the presentence
investigation report, including the confidential portion, in making
the decision to impose the death penalty. The per curiam opinion of
the Supreme Court did not specifically discuss this contention, but
merely recited the trial judge' finding, stated that the record had
been carefully reviewed, and concluded that the conviction and
sentence should be
Page 430 U. S. 354
affirmed. The record on appeal, however, did not include the
confidential portion of the presentence report.
Justice Erving and Justice Boyd dissented on several grounds.
They regarded the evidence as sufficient to establish a mitigating
circumstance as a matter of law, and also concluded that it was
fundamental error for the trial judge to rely on confidential
matter not provided to the parties. They stated, in part:
"Additionally, it appears from the record that there was a
'confidential' portion of the PSI report made available to the
trial judge
which was not provided to either Appellant or
Appellee. In fact, it is unclear from the record whether this
Court has been provided the 'confidential' portion thereof for our
review, a critical final step between conviction and imposition of
the death penalty -- one of the safeguards outlined in
Dixon. [
State v. Dixon, 283 So. 2d 1
(1973).] What evidence or opinion was contained in the
'confidential' portion of the report is purely conjectural and
absolutely unknown to, and therefore unrebuttable by, Appellant. We
have no means of determining on review what role such
'confidential' information played in the trial judge's sentence,
and thus I would overturn Appellant's death sentence on the basis
of this fundamental error alone."
313 So. 2d at 678 (emphasis in original).
Petitioner's execution was stayed pending determination of the
constitutionality of the Florida capital sentencing procedure.
Following the decision in
Proffitt v. Florida,
428 U. S. 242,
holding that the Florida procedure, on its face, avoids the
constitutional deficiencies identified in
Furman v.
Georgia, 408 U. S. 238, the
Court granted certiorari in this case, 428 U.S. 908, to consider
the constitutionality of the trial judge's use of a confidential
presentence report in this capital case. [
Footnote 5]
Page 430 U. S. 355
II
The State places its primary reliance on this Court's landmark
decision in
Williams v. New York, 337 U.
S. 241. In that case, as in this, the trial judge
rejected the jury's recommendation of mercy and imposed the death
sentence in reliance, at least in part, on material contained in a
report prepared by the court's probation department. The New York
Court of Appeals had affirmed the sentence, rejecting the
contention that it was a denial of due process to rely on
information supplied by witnesses whom the accused could neither
confront nor cross-examine.
This Court referred to appellant's claim as a "narrow
contention,"
id. at
337 U. S. 243,
and characterized the case as one which
"presents a serious and difficult question . . . relat[ing] to
the rules of evidence applicable to the manner in which a judge may
obtain information to guide him in the imposition of sentence upon
an already convicted defendant."
Id. at
337 U. S. 244.
The conviction and sentence were affirmed over the dissent of two
Justices.
Mr. Justice Black's opinion for the Court persuasively reasons
why material developed in a presentence investigation may be useful
to a sentencing judge, and why it may not be
Page 430 U. S. 356
unfair to a defendant to rely on such information even if it
would not be admissible in a normal adversary proceeding in open
court. We consider the relevance of that reasoning to this case in
430 U. S.
Preliminarily, however, we note two comments by Mr. Justice Black
that make it clear that the
holding of
Williams
is not directly applicable to this case.
It is first significant that, in
Williams, the material
facts concerning the defendant's background which were contained in
the presentence report were described in detail by the trial judge
in open court. Referring to this material, Mr. Justice Black
noted:
"The accuracy of the statements made by the judge as to
appellant's background and past practices was not challenged by
appellant or his counsel, nor was the judge asked to disregard any
of them or to afford appellant a chance to refute or discredit any
of them by cross-examination or otherwise."
Ibid. In contrast, in the case before us, the trial
judge did not state on the record the substance of any information
in the confidential portion of the presentence report that he might
have considered material. [
Footnote
6] There was, accordingly, no similar opportunity for
petitioner's counsel to challenge the accuracy or materiality of
any such information.
It is also significant that Mr. Justice Black's opinion
recognized that the passage of time justifies a reexamination of
capital sentencing procedures. As he pointed out:
"This whole country has traveled far from the period in which
the death sentence was an automatic and commonplace
Page 430 U. S. 357
result of convictions -- even for offenses today deemed
trivial."
Id. at
337 U. S.
247-248. Since that sentence was written almost 30 years
ago, this Court has acknowledged its obligation to reexamine
capital sentencing procedures against evolving standards of
procedural fairness in a civilized society. [
Footnote 7]
III
In 1949, when the
Williams case was decided, no
significant constitutional difference between the death penalty and
lesser punishments for crime had been expressly recognized by this
Court. At that time, the Court assumed that, after a defendant was
convicted of a capital offense, like any other offense, a trial
judge had complete discretion to impose any sentence within the
limits prescribed by the legislature. [
Footnote 8] As long as the judge stayed within those
limits, his sentencing discretion was essentially unreviewable, and
the possibility of error was remote, if indeed it existed at all.
In the intervening years, there have been two constitutional
developments which require us to scrutinize a State's capital
sentencing procedures more closely than was necessary in 1949.
First, five Members of the Court have now expressly recognized
that death is a different kind of punishment from any other which
may be imposed in this country.
Gregg v. Georgia,
428 U. S. 153,
428 U. S.
181-188 (opinion of STEWART, POWELL, and STEVENS, JJ.);
see id. at
428 U. S.
231-241 (MARSHALL, J., dissenting);
Furman v.
Georgia, 408 U.S. at
408 U. S.
286-291 (BRENNAN, J., concurring),
408 U. S.
306-310 (STEWART, J., concurring);
see id. at
408 U. S.
314-371 (MARSHALL, J., concurring). From the point of
view of the defendant, it is different in both its severity and its
finality. From the point of view of society, the action of the
Page 430 U. S. 358
sovereign in taking the life of one of its citizens also differs
dramatically from any other legitimate state action. It is of vital
importance to the defendant and to the community that any decision
to impose the death sentence be, and appear to be, based on reason,
rather than caprice or emotion.
Second, it is now clear that the sentencing process, as well as
the trial itself, must satisfy the requirements of the Due Process
Clause. Even though the defendant has no substantive right to a
particular sentence within the range authorized by statute, the
sentencing is a critical stage of the criminal proceeding at which
he is entitled to the effective assistance of counsel.
Mempa v.
Rhay, 389 U. S. 128;
Specht v. Patterson, 386 U. S. 605. The
defendant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence even if he may
have no right to object to a particular result of the sentencing
process.
See Witherspoon v. Illinois, 391 U.
S. 510,
391 U. S.
521-523. [
Footnote
9]
In the light of these developments, we consider the
justifications offered by the State for a capital sentencing
procedure which permits a trial judge to impose the death sentence
on the basis of confidential information which is not disclosed to
the defendant or his counsel.
The State first argues that an assurance of confidentiality to
potential sources of information is essential to enable
investigators to obtain relevant but sensitive disclosures from
persons unwilling to comment publicly about a defendant's
Page 430 U. S. 359
background or character. The availability of such information,
it is argued, provides the person who prepares the report with
greater detail on which to base a sentencing recommendation and, in
turn, provides the judge with a better basis for his sentencing
decision. But consideration must be given to the quality, as well
as the quantity, of the information on which the sentencing judge
may rely. Assurances of secrecy are conducive to the transmission
of confidences which may bear no closer relation to fact than the
average rumor or item of gossip, and may imply a pledge not to
attempt independent verification of the information received. The
risk that some of the information accepted in confidence may be
erroneous, or may be misinterpreted, by the investigator or by the
sentencing judge, is manifest.
If, as the State argues, it is important to use such information
in the sentencing process, we must assume that, in some cases, it
will be decisive in the judge's choice between a life sentence and
a death sentence. If it tends to tip the scales in favor of life,
presumably the information would be favorable, and there would be
no reason why it should not be disclosed. On the other hand, if it
is the basis for a death sentence, the interest in reliability
plainly outweighs the State's interest in preserving the
availability of comparable information in other cases.
The State also suggests that full disclosure of the presentence
report will unnecessarily delay the proceeding. We think the
likelihood of significant delay is overstated, because we must
presume that reports prepared by professional probation officers,
as the Florida procedure requires, are generally reliable.
[
Footnote 10] In those cases
in which the accuracy of a report is contested, the trial judge can
avoid delay by disregarding
Page 430 U. S. 360
the disputed material. Or if the disputed matter is of critical
importance, the time invested in ascertaining the truth would
surely be well spent if it makes the difference between life and
death.
The State further urges that full disclosure of presentence
reports, which often include psychiatric and psychological
evaluations, will occasionally disrupt the process of
rehabilitation. The argument, if valid, would hardly justify
withholding the report from defense counsel. Moreover, whatever
force that argument may have in noncapital cases, it has absolutely
no merit in a case in which the judge has decided to sentence the
defendant to death. Indeed, the extinction of all possibility of
rehabilitation is one of the aspects of the death sentence that
makes it different in kind from any other sentence a State may
legitimately impose.
Finally, Florida argues that trial judges can be trusted to
exercise their discretion in a responsible manner, even though they
may base their decisions on secret information. However acceptable
that argument might have been before
Furman v. Georgia, it
is now clearly foreclosed. [
Footnote 11] Moreover, the argument rests on the
erroneous premise that the participation of counsel is superfluous
to the process of evaluating the relevance and significance of
aggravating and mitigating facts. Our belief that debate between
adversaries is often essential to the truth-seeking function of
trials requires us also to recognize the importance of giving
counsel an opportunity to comment on facts which may influence the
sentencing decision in capital cases.
Even if it were permissible to withhold a portion of the report
from a defendant, and even from defense counsel, pursuant to an
express finding of good cause for nondisclosure, it
Page 430 U. S. 361
would nevertheless be necessary to make the full report a part
of the record to be reviewed on appeal. Since the State must
administer its capital sentencing procedures with a even hand,
see Proffitt v. Florida, 428 U.S. at
428 U. S.
250-253, it is important that the record on appeal
disclose to the reviewing court the considerations which motivated
the death sentence in every case in which it is imposed. Without
full disclosure of the basis for the death sentence, the Florida
capital sentencing procedure would be subject to the defects which
resulted in the holding of unconstitutionality in
Furman v.
Georgia. [
Footnote 12]
In this particular case, the only explanation for the lack of
disclosure is the failure of defense counsel to request access to
the full report. That failure cannot justify the submission of a
less complete record to the reviewing court than the record on
which the trial judge based his decision to sentence petitioner to
death.
Nor do we regard this omission by counsel as an effective waiver
of the constitutional error in the record. There are five reasons
for this conclusion. First, the State does not urge that the
objection has been waived. Second, the Florida Supreme Court has
held that it has a duty to consider "the total record,"
Swan v.
State, 322 So. 2d
485, 489 (1975), when it reviews a death sentence. Third, since
two members of that court expressly considered this point on the
appeal in this case, we presume that the entire court passed on the
question.
Cf. Boykin v. Alabama, 395 U.
S. 238,
395 U. S.
240-242, and n. 3. Fourth, there is no basis for
presuming that the defendant himself made a knowing and intelligent
waiver, or that counsel could possibly have made a tactical
decision not to examine the full report.
Cf. 425 U.
S. Williams, 425 U.S.
Page 430 U. S. 362
501,
425 U. S.
507-508. Fifth, since the judge found, in disagreement
with the jury, that the evidence did not establish any mitigating
circumstance, and since the presentence report was the only item
considered by the judge but not by the jury, the full review of the
factual basis for the judge's rejection of the advisory verdict is
plainly required. For if the jury, rather than the judge, correctly
assessed the petitioner's veracity, the death sentence rests on an
erroneous factual predicate.
We conclude that petitioner was denied due process of law when
the death sentence was imposed, at least in part, on the basis of
information which he had no opportunity to deny or explain.
IV
There remains only the question of what disposition is now
proper. Petitioner's conviction, of course, is not tainted by the
error in the sentencing procedure. The State argues that we should
merely remand the case to the Florida Supreme Court with directions
to have the entire presentence report made a part of the record to
enable that court to complete its reviewing function. That
procedure, however, could not fully correct the error. For it is
possible that full disclosure, followed by explanation or argument
by defense counsel, would have caused the trial judge to accept the
jury's advisory verdict. Accordingly, the death sentence is
vacated, and the case is remanded to the Florida Supreme Court with
directions to order further proceedings at the trial court level
not inconsistent with this opinion.
Vacated and remanded.
THE CHIEF JUSTICE concurs in the judgment.
[
Footnote 1]
Fla.Stat.Ann. § 921.141 (Supp. 1976). This Court upheld the
constitutionality of the statute in
Proffitt v. Florida,
428 U. S. 242.
[
Footnote 2]
Fla.Stat.Ann. § 921.141(5)(h) (Supp. 1976).
[
Footnote 3]
The statute provides, in part:
"(6) Mitigating circumstances. -- Mitigating circumstance shall
be the following:"
"
* * * *"
"(b) The capital felony was committed while the defendant was
under the influence of extreme mental or emotional
disturbance."
"
* * * *"
"(f) The capacity of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the requirements of law
was substantially impaired."
Fla.Stat.Ann. §§ 921.141(6)(b), (f) (Supp. 1976).
[
Footnote 4]
Florida Rules Crim.Proc. 3.713.713 authorize the presentence
investigation. The Rules apply to all cases in which the trial
court has discretion in sentencing, and make no reference to the
special capital sentencing procedure at issue here.
[
Footnote 5]
In an appendix to its brief in this Court, the State has printed
a copy of the confidential portion of the presentence report.
Petitioner contests its authenticity. He also argues,
alternatively, that we should not review its contents, because it
was not made a part of the certified record in the state courts or
in this Court; that consideration of the contents of the report in
the first instance in this Court flouts the procedural regularity
mandated for capital sentencing by
Furman v. Georgia,
408 U. S. 238, and
Proffitt v. Florida; or that, not having had an
opportunity to present evidence to rebut the confidential portion
of the report, it would be unfair and improper to require him to
address its contents in this Court. Reply Brief for Petitioner
2-3.
It is not a function of this Court to evaluate in the first
instance the possibly prejudicial impact of facts and opinions
appearing in a presentence report. We therefore do not consider the
contents of the appendix to the State's brief.
[
Footnote 6]
In fact, the only reference in the record to the confidential
portion was the inference to be drawn from the ambiguous mention of
the "
portion . . . to which they are entitled,'" supra
at 430 U. S. 353,
in the judge's written findings of fact issued on the day sentence
was announced.
[
Footnote 7]
Gregg v. Georgia, 428 U. S. 153,
428 U. S.
171-173,
428 U. S.
179-181;
Furman v. Georgia, supra at
408 U. S.
299-300 (BRENNAN, J., concurring);
McGautha v.
California, 402 U. S. 183,
402 U. S.
197-203;
Witherspoon v. Illinois, 391 U.
S. 510,
391 U. S. 519
n. 15.
[
Footnote 8]
See Williams v. New York, 337 U.
S. 241,
337 U. S.
251-252.
[
Footnote 9]
The fact that due process applies does not, of course, implicate
the entire panoply of criminal trial procedural rights.
"Once it is determined that due process applies, the question
remains what process is due. It has been said so often by this
Court and others as not to require citation of authority that due
process is flexible, and calls for such procedural protections as
the particular situation demands. . . . Its flexibility is in its
scope once it has been determined that some process is due; it is a
recognition that not all situations calling for procedural
safeguards call for the same kind of procedure."
Morrissey v. Brewer, 408 U. S. 471,
408 U. S.
481.
[
Footnote 10]
Our presumption that the reports are normally reliable is, of
course, not inconsistent with our concern about the possibility
that critical unverified information may be inaccurate and
determinative in a particular case.
[
Footnote 11]
Furman v. Georgia, 408 U.S. at
408 U. S.
313-314 (WHITE, J., concurring). This argument is
inconsistent with the basis upon which the Florida capital
sentencing procedure was upheld,
Proffitt v. Florida, 428
U.S. at
428 U. S.
254.
[
Footnote 12]
The Supreme Court of Florida decided petitioner's case before
our decision in
Proffitt v. Florida, supra, and before its
own consideration of
Proffitt, 315 So. 2d 461
(1975), or of
Tedder v. State, 322 So. 2d 908
(1975). Therefore, we cannot join MR. JUSTICE MARSHALL's criticism
of the Florida courts for their failure to follow the teaching of
those cases.
MR. JUSTICE WHITE, concurring in the judgment.
In
Woodson v. North Carolina, 428 U.
S. 280 (1976), the Court addressed the question whether
the mandatory death penalty imposed under the statute involved in
that case was
Page 430 U. S. 363
consistent with the
Eighth Amendment's prohibition
against cruel and unusual punishments. The plurality opinion
stated:
"The issue, like that explored in
Furman, involves the
procedure employed by the State to select persons for the
unique and irreversible penalty of death."
Id. at
428 U. S. 287.
(Emphasis added.)
In holding that the failure to conduct the sort of post-trial
sentencing proceeding which Florida law requires, and which was
conducted in this case, rendered North Carolina's mandatory death
penalty statute unconstitutional, the plurality said:
"[W]e believe that, in
capital cases, the fundamental
respect for humanity underlying the
Eighth Amendment, see
356 U.
S. Dulles, 356 U.S. [86,]
356 U. S.
100 (plurality opinion), requires consideration of the
character and record of the individual offender and the
circumstances of the particular offense as a constitutionally
indispensable part of the
process of inflicting the
penalty of death."
"This conclusion rests squarely on the predicate that the
penalty of death is qualitatively different from a sentence of
imprisonment, however long. Death, in its finality, differs more
from life imprisonment than a 100-year prison term differs from one
of only a year or two. Because of that qualitative difference,
there is a corresponding difference
in the need for reliability
in the determination that death is the appropriate punishment in a
specific case."
Id. at
428 U. S.
304-305. (Emphasis added.)
The issue in this case, like the issue in
Woodson v. North
Carolina, supra, "involves the procedure" employed by the
State in selecting persons who will receive the death penalty.
Here, the sentencing judge indicated that he selected petitioner
Gardner for the death penalty in part because of information
contained in a presentence report which information was not
Page 430 U. S. 364
disclosed to petitioner or to his counsel and to which
petitioner had no opportunity to respond. A procedure for selecting
people for the death penalty which permits consideration of such
secret information relevant to the "character and record of the
individual offender,"
id. at
428 U. S. 304,
fails to meet the "need for reliability in the determination that
death is the appropriate punishment" which the Court indicated was
required in
Woodson, supra at
428 U. S. 305.
This conclusion stems solely from the Eighth Amendment's ban on
cruel and unusual punishments on which the
Woodson
decision expressly rested, and my conclusion is limited, as was
Woodson, to cases in which the death penalty is imposed. I
thus see no reason to address in this case the possible application
to sentencing proceedings -- in death or other cases -- of the Due
Process Clause, other than as the vehicle by which the strictures
of the Eighth Amendment are triggered in this case. For these
reasons, I do not join the plurality opinion, but concur in the
judgment.
MR. JUSTICE BLACKMUN, concurring in the judgment.
Given the judgments of the Court in
Woodson v. North
Carolina, 428 U. S. 280
(1976), and in
Roberts v. Louisiana, 428 U.
S. 325 (1976),
* each attained by
a plurality opinion of JUSTICES STEWART, POWELL, and STEVENS, in
combination with respective concurrences in the judgment by
JUSTICES BRENNAN and MARSHALL, I concur in the judgment the Court
reaches in the present case.
*
See also Proffitt v. Florida, 428 U.
S. 242 (1976);
Jurek v. Texas, 428 U.
S. 262 (1976); and
Gregg v. Georgia,
428 U. S. 153
(1976).
MR. JUSTICE BRENNAN.
I agree for the reasons stated in the plurality opinion that the
Due Process Clause of the Fourteenth Amendment is violated when a
defendant facing a death sentence is not informed of the contents
of a presentence investigation report made to the sentencing judge.
However, I adhere to my
Page 430 U. S. 365
view that the death penalty is in all circumstances cruel and
unusual punishment prohibited by the Eighth and Fourteenth
Amendments,
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 227
(1976) (BRENNAN, J., dissenting). I therefore would vacate the
death sentence, and I dissent from the Court's judgment insofar as
it remands for further proceedings that could lead to its
imposition.
MR. JUSTICE MARSHALL dissenting.
Last Term, this Court carefully scrutinized the Florida
procedures for imposing the death penalty and concluded that there
were sufficient safeguards to insure that the death sentence would
not be "wantonly" and "freakishly" imposed.
Proffitt v.
Florida, 428 U. S. 242
(1976). This case, however, belies that hope. While I continue to
believe that the death penalty is unconstitutional in all
circumstances,
see Furman v. Georgia, 408 U.
S. 238,
408 U. S. 314
(1972) (MARSHALL, J., concurring);
Gregg v. Georgia,
428 U. S. 153,
428 U. S. 231
(1976) (MARSHALL, J., dissenting), and therefore would remand this
case for resentencing to a term of life, nevertheless, now that
Florida may legally take a life, we must insist that it be in
accordance with the standards enunciated by this Court. In this
case, I am appalled at the extent to which Florida has deviated
from the procedures upon which this Court expressly relied. It is
not simply that the trial judge, in overriding the jury's
recommendation of life imprisonment, relied on undisclosed portions
of the presentence report. Nor is it merely that the Florida
Supreme Court affirmed the sentence without discussing the omission
and without concern that it did not even have the entire report
before it. Obviously that alone is enough to deny due process, and
require that the death sentence be vacated, as the Court now holds.
But the blatant disregard exhibited by the courts below for the
standards devised to regulate imposition of the death penalty calls
into question the very basis for this Court's approval of that
system in
Proffitt.
Page 430 U. S. 366
In
Proffitt v. Florida, supra, this Court gave its
approval to the new death penalty statute of Florida, but very
carefully spelled out its reasons for doing so. The joint opinion
of JUSTICES STEWART POWELL, and STEVENS (hereafter joint opinion)
noted in particular that
"[t]he Florida Supreme Court has stated . . . that, '[i]n order
to sustain a sentence of death following a jury recommendation of
life, the facts suggesting a sentence of death should be so clear
and convincing that virtually no reasonable person could differ,'
Tedder v. State, 322 So. 2d
908, 910 (1975),"
428 U.S. at
428 U. S. 249,
and that the Florida
"statute requires that, if the trial court imposes a sentence of
death, 'it shall set forth in writing its findings upon which the
sentence of death is based as to the facts: (a) [t]hat sufficient
[statutory] aggravating circumstances exist . . . and (b) [t]hat
there are insufficient [statutory] mitigating circumstances . . .
to outweigh the aggravating circumstances.' [Fla.Stat.Ann.] §
921.141(3) (Supp. 1976-1977)."
Id. at
428 U. S. 250.
In addition, the joint opinion, concerned that Florida provided no
"specific form of review," found assurance in the fact that,
"[s]ince, however, the trial judge must justify the imposition
of death sentence with written findings, meaningful appellate
review of each such sentence is made possible, and the Supreme
Court of Florida, like its Georgia counterpart, considers its
function to be to '[guarantee] that the
[aggravating and
mitigating] reasons present in one case will reach a similar result
to that reached under similar circumstances in another case. .
. . If a defendant is sentenced to die, this Court can review that
case in light of the other decisions and determine whether or not
the punishment is too great.'
State v.
Dixon, 283 So. 2d 1,
10 (1973)."
Id. at
428 U. S. 251.
(Emphasis added.) After studying the performance of the Florida
Supreme Court in reviewing death cases, this Court satisfied itself
that these guarantees were genuine, and that
"the Florida court has undertaken
Page 430 U. S. 367
responsibly to perform its function of death sentence review
with a maximum of rationality and consistency,"
id. at
428 U. S.
258-259, and "has in effect adopted the type of
proportionality review mandated by the Georgia statute" upheld in
Gregg v. Georgia, supra. 428 U.S. at
428 U. S. 259.
The joint opinion placed great emphasis on this factor, reasoning
that,
"because of its statewide jurisdiction, [the Florida Supreme
Court] can assure consistency, fairness, and rationality in the
evenhanded operation of the state law."
Id. at
428 U. S.
259-260.
In the present case, however, the Florida Supreme Court engaged
in precisely the "cursory or rubber stamp review" that the joint
opinion in
Proffitt trusted would not occur.
Id.
at
428 U. S. 259.
The jury, after considering the evidence, recommended a life
sentence:
"We, the Jury, have heard evidence, under the sentencing
procedure in the above cause, as to whether aggravating
circumstances which were so defined in the Court's charge, existed
in the capital offense here involved, and whether sufficient
mitigating circumstances are defined in the Court's charge to
outweigh such aggravating circumstances, do find and advise that
the mitigating circumstances do outweigh the aggravating
circumstances."
"We therefore advise the Court that
a life sentence
should be imposed herein upon the defendant by the Court."
App. 131. The judge, however, ignored the jury's findings. His
statutorily required written findings consisted of:
"[T]he undersigned concludes and determines that aggravating
circumstances exist, to-wit: the capital felony was especially
heinous, atrocious or cruel; and that such aggravating
circumstances outweighs [
sic] the mitigating circumstance,
to-wit: none; and, based upon the records of such trial and
sentencing proceedings, makes the following findings of facts,
to-wit: "
Page 430 U. S. 368
"1. That the victim died as a result of especially heinous,
atrocious and cruel acts committed by the defendant, the nature and
extent of which are reflected by the testimony of Dr. William H.
Shutze, District Medical Examiner of the Fifth Judicial Circuit of
the State of Florida, as follows: [followed by a list of 11
injuries to the deceased]."
Id. at 138-139. The Florida Supreme Court affirmed.
with two justices dissenting. The per curiam consisted of a
statement of the facts of the murder, a verbatim copy of the trial
judge's "findings," a conclusion that no new trial was warranted,
and the following "analysis":
"Upon considering all the mitigating and aggravating
circumstances and careful review of the entire record in the cause,
the trial court imposed the death penalty for the commission of the
afore-described atrocious and heinous crime."
"Accordingly, the judgment and sentence of the Circuit Court are
hereby affirmed."
"It is so ordered."
313 So. 2d 675
(1975).
From this quotation, which includes the entire legal analysis of
the opinion, it is apparent that the State Supreme Court undertook
none of the analysis it had previously proclaimed to be its duty.
The opinion does not say that the Supreme Court evaluated the
propriety of the death sentence. It merely says the trial judge did
so. Despite its professed obligation to do so, the Supreme Court
thus failed "to determine independently" whether death was the
appropriate penalty. The Supreme Court also appears to have done
nothing "to guarantee" consistency with other death sentences. Its
opinion makes no comparison with the facts in other similar case.
Nor did it consider whether the trial judge was correct in
overriding the jury's recommendation. There was no attempt to
ascertain whether the evidence sustaining death was "so clear and
convincing that virtually no
Page 430 U. S. 369
reasonable person could differ,"
supra at
430 U. S. 366.
Indeed, it is impossible for me to believe that that standard can
be met in this case.
As the plurality notes,
ante at
430 U. S. 352,
there are two mitigating factors that could apply to this case and
apparently were found applicable by the jury: "the capital felony
was committed while the defendant was under the influence of
extreme mental or emotional disturbance" and
"[t]he capacity of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the requirements of law
was substantially impaired."
Fla.Stat.Ann. §§ 921.141(6)(b) and (f) (Supp. 1976). The purpose
of these two categories is, as Justice Erving observed in dissent
below,
"'to protect that person who, while legally answerable for his
actions, may be deserving of some mitigation of sentence because of
his mental state.' [
State v. Dixon, 283 So. 2d 1,
10 (1973)]."
313 So. 2d at 679.
I agree with Justice Erving that petitioner is such a person. It
is undisputed that he had been drinking virtually the entire day
and night prior to the killing. Both court-appointed psychiatrists
found that petitioner was an alcoholic, and that,
"had he not been under the influence of alcohol at the time of
the alleged crime, he would have been competent, knowing right from
wrong and being capable of adhering to the right."
App. 11, 19. Furthermore, his actions after the murder --
falling asleep with his wife's dead body, seeking his
mother-in-law's help the next morning because his wife did not
appear to be breathing properly, weeping when he realized she might
be dead, and waiting for the police to come with no attempt to
escape -- are consistent with his being temporarily mentally
impaired at the time of the crime. In light of these facts, it is
not surprising that the jury found that the mitigating
circumstances outweighed the aggravating.
Clearly, this is not a case where the evidence suggesting death
is "so clear and convincing that virtually no reasonable person
could differ." Had the Florida Supreme Court examined
Page 430 U. S. 370
the evidence in the manner this Court trusted it would, I have
no doubt that the jury recommendation of life imprisonment would
have been reinstated. As Justice Erving observed:
"This was a crime of passion in a marital setting in which the
excessive use of alcohol was a material factor resulting in the
homicide. As I read our statutes, this type of crime does not merit
the death penalty because the discretion exercised to impose that
penalty here extends beyond the discretion the statutes repose in
governmental officials for such purpose. I do not believe that the
statutes contemplate that a crime of this nature is intended to be
included in the heinous category warranting the death penalty. A
drunken spree in which one of the spouses is killed traditionally
has not resulted in the death penalty in this state."
313 So. 2d at 679.
In
Proffitt, a majority of this Court was led to
believe that Florida had established capital sentencing procedures
that would "assure that the death penalty will not be imposed in an
arbitrary or capricious manner." 428 U.S. at
428 U. S. 253.
This case belies that promise, and suggests the need to reconsider
that assessment.*
Page 430 U. S. 371
* The plurality responds,
ante at
430 U. S. 361
n. 12, that it cannot criticize the Florida courts because the
decision in petitioner's case preceded both our decision in
Proffitt and the Florida Supreme Court's decision in
Proffitt and
Tedder. It conveniently ignores the
fact that petitioner's case came after several key Florida death
penalty cases, most notably
State v. Dixon, 283 So. 2d 1
(1973), in which the Florida Supreme Court "guaranteed" that its
review would insure similar results in similar cases.
Proffitt
v. Florida, 428 U. S. 242,
428 U. S. 251
(1976), quoting
State v. Dixon, supra at 10.
More significantly, however, the plurality does not so much as
question the procedure followed here, and does nothing to insure
that Florida will not again condemn this man to die in blatant
disregard of its own rules. Compliance with
Proffitt
requires that on remand the trial judge give full consideration to
the mitigating circumstances in the case and, if he again rejects
the jury's recommendation of life imprisonment, his reasons "
be
so clear and convincing that virtually no reasonable person could
differ.'" 428 U.S. at 428 U. S. 249.
On review, the Florida Supreme Court must evaluate the facts itself
and perform the comparative analysis it failed to do previously. It
may be that my Brothers in the majority believe these requirements
to be so obvious as not to need mention. Nevertheless, where a
man's life is at stake, such blind faith is just not enough even
after the decision in Proffitt.
MR. JUSTICE REHNQUIST, dissenting.
Had I joined the plurality opinion in last Term's
Woodson v.
North Carolina, 428 U. S. 280
(1976), I would join the concurring opinion of my Brother WHITE in
this case. But if capital punishment is not cruel and unusual under
the Eighth and Fourteenth Amendments, as the Court held in that
case, the use of particular sentencing procedures, never previously
held unfair under the Due Process Clause, in a case where the death
sentence is imposed cannot convert that sentence into a cruel and
unusual punishment. The prohibition of the Eighth Amendment relates
to the character of the punishment, and not to the process by which
it is imposed. I would therefore affirm the judgment of the Supreme
Court of Florida.