Trials for capital offenses in Texas are conducted in two
phases. First, the jury considers the question of the defendant's
guilt or innocence. If the jury finds the defendant guilty, the
trial court holds a separate sentencing proceeding at which
additional evidence in mitigation or aggravation is admissible. The
jury is then required by statute to answer three specific questions
concerning (1) whether the defendant's conduct causing the death at
issue was deliberate, (2) whether the defendant's conduct in the
future would constitute a continuing threat to society, and (3)
whether his conduct in killing the victim was unreasonable in
response to the victim's provocation, if any. If the jury answers
"Yes" to each of these questions, the court must impose a death
sentence, but if the jury answers "No" to any of the questions, the
court imposes a life sentence. At the petitioner's murder trial,
the Texas trial judge, pursuant to statute (§ 12.31(b)), excluded
from the jury a number of prospective jurors who were unwilling or
unable to take an oath that the mandatory penalty of death or life
imprisonment would not "affect [their] deliberations on any issue
of fact." The jury that was selected convicted petitioner and
answered the statutory questions in the affirmative at the
punishment phase, thus causing the death sentence to be imposed. On
appeal, the Texas Court of Criminal Appeals rejected petitioner's
contention that the prospective jurors had been excluded in
violation of
Witherspoon v. Illinois, 391 U.
S. 510, wherein it was held that a State may not
constitutionally execute a death sentence imposed by a jury culled
of all those who revealed during
voir dire examination
that they had conscientious scruples against or were otherwise
opposed to capital punishment.
Held: Section 12.31(b) was applied in this case to
exclude jurors in contravention of the Sixth and Fourteenth
Amendments as construed and applied in
Witherspoon, supra.
Pp.
448 U. S.
43-51.
(a) The general proposition established by
Witherspoon
and related cases that a juror may not be challenged for cause
based on his views about capital punishment unless those views
would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and oath, is
applicable to the bifurcated procedure employed by Texas in capital
cases. If the Texas juror is to obey his
Page 448 U. S. 39
oath and follow Texas law, he must be willing not only to accept
that, in certain circumstances, death is an acceptable penalty, but
also to answer the three statutory questions without conscious
distortion or bias. Pp
448 U. S.
43-47.
(b)
Witherspoon and §12.31(b) may not coexist as
separate and independent bases for excluding jurors so as to permit
exclusion under §12.31(b) on grounds broader than permitted by
Witherspoon. Although the State could, consistently with
Witherspoon, use §12.31(b) to exclude prospective jurors
whose views on capital punishment are such as to make them unable
to follow the law or obey their oaths, the use of §12.31(b) to
exclude jurors on broader grounds based on their opinions
concerning the death penalty is impermissible. The appearance of
neutrality created by the theoretical availability of §12.31(b) as
a defense challenge to prospective jurors who favor the death
penalty is not sufficiently substantial to take §12.31(b) out of
Witherspoon's ambit. Pp.
448 U. S.
47-49.
(c) As §12.31(b) was employed here, the touchstone of the
inquiry was not whether putative jurors could and would follow
their instructions and answer the posited questions in the
affirmative if they honestly believed the evidence warranted it
beyond reasonable doubt, but rather whether the fact that the
imposition of the death penalty would follow automatically from
affirmative answers to the questions would have any effect at all
on the jurors' performance of their duties. Such a test could, and
did, exclude jurors whose only fault was to take their
responsibilities with special seriousness or to acknowledge
honestly that they might or might not be affected. It does not
appear that these individuals were so irrevocably opposed to
capital punishment as to frustrate the State's legitimate efforts
to administer its constitutionally valid death penalty scheme.
Accordingly, the Constitution disentitles the State to execute a
death sentence imposed by a jury from which such prospective jurors
have been excluded. Pp.
448 U. S.
49-51.
577
S.W.2d 717, reversed.
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. BRENNAN, J.,
filed a concurring opinion,
post, p.
448 U. S. 51.
BURGER, C.J., concurred in the judgment. MARSHALL, J., filed an
opinion concurring in the judgment,
post, p.
448 U. S. 51.
REHNQUIST, J., filed a dissenting opinion,
post, p.
448 U. S.
52.
Page 448 U. S. 40
MR. JUSTICE WHITE delivered the opinion of the Court.
This capital case presents the question whether Texas
contravened the Sixth and Fourteenth Amendments as construed and
applied in
Witherspoon v. Illinois, 391 U.
S. 510 (1968), when it excluded members of the venire
from jury service because they were unable to take an oath that the
mandatory penalty of death or imprisonment for life would not
"affect [their] deliberations on any issue of fact." We hold that
there were exclusions that were inconsistent with
Witherspoon, and we therefore reverse the sentence of
death imposed on the petitioner.
I
Trials for capital offenses in Texas are conducted in a
two-phase proceeding.
See Tex.Code Crim.Proc.Ann., Art.
37.071 (Vernon Supp. 1979). In the first phase, the jury considers
the question of the defendant's guilt or innocence. If the jury
finds the defendant guilty of a capital offense, the trial court
holds a separate sentencing proceeding at which a wide range of
additional evidence in mitigation or aggravation is admissible. The
jury is then required to answer the following questions based on
evidence adduced during either phase of the trial:
"(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and
Page 448 U. S. 41
with the reasonable expectation that the death of the deceased
or another would result;"
"(2) whether there is a probability that he defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and"
"(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased."
Art. 37.071(b). If the jury finds beyond a reasonable doubt that
the answer to each of these questions is "Yes," the court is
required to impose a sentence of death. If the jury finds that the
answer to any of the three questions is "No," the court imposes a
sentence of life imprisonment. Arts. 37.071(c), (e).
The petitioner in this case was charged with the capital offense
of murdering a peace officer. [
Footnote 1] During
voir dire examination of
individual prospective jurors, the prosecutor, and sometimes the
trial judge, intensively inquired as to whether
Page 448 U. S. 42
their attitudes about the death penalty permitted them to take
the oath set forth in Tex.Penal Code Ann. §12.31(b) (1974). Section
12.31(b) provides as follows:
"Prospective jurors shall be informed that a sentence of life
imprisonment or death is mandatory on conviction of a capital
felony. A prospective juror shall be disqualified from serving as a
juror unless he states under oath that the mandatory penalty of
death or imprisonment for life will not affect his deliberations on
any issue of fact."
Typically, the prospective juror was first advised that the
State was seeking the death penalty and asked to state his general
views on the subject, which were sometimes explored in considerable
depth. He was then informed in detail of the special procedure used
by Texas in capital cases, including in particular the fact that
"Yes" answers to the three punishment questions would automatically
result in the trial judge's imposing the death sentence. Finally,
he was asked whether he could state under oath, as required by
§12.31(b), that the mandatory penalty of death or imprisonment for
life would not affect his deliberations on any issue of fact. On
the State's submission and over petitioner's objections, the trial
judge excused a number of prospective jurors who were unwilling or
unable to take the §12.31(b) oath.
The jury selected under this procedure convicted the petitioner
of the charged offense and answered the statutory questions
affirmatively at the punishment phase, thus causing the trial judge
to impose the death sentence as required by Art. 37.071(e). On
appeal, the petitioner argued that prospective jurors had been
excluded in violation of this Court's decision in
Witherspoon
v. Illinois, supra. The Texas Court of Criminal Appeals
rejected the contention on the authority of its previous cases,
which had
"consistently held that the statutory scheme for the selection
of jurors in capital cases in Texas, and in particular the
application of [§ 12.31(b)] to the punishment issues, comports with
the constitutional requirements
Page 448 U. S. 43
of
Witherspoon."
577
S.W.2d 717, 728 (1979). We granted the petition for a writ of
certiorari 444 U.S. 990 (1979), limited to the following
questions:
"(1) Is the doctrine of
Witherspoon v. Illinois,
391 U. S.
510, applicable to the bifurcated procedure employed by
Texas in capital cases? (2) If so, did the exclusion from jury
service in the present case of prospective jurors pursuant to Texas
Penal Code §12.31(b) violate the doctrine of
Witherspoon v.
Illinois, supra? [
Footnote
2]"
II
A
Witherspoon involved a state procedure for selecting
juries in capital cases, where the jury did the sentencing and had
complete discretion as to whether the death penalty should be
imposed. In this context, the Court held that a State may not
constitutionally execute a death sentence imposed by a jury culled
of all those who revealed during
voir dire examination
that they had conscientious scruples against or were otherwise
opposed to capital punishment. The State was held to have no valid
interest in such a broad-based rule of exclusion, since
"[a] man who opposes the death penalty, no less than one who
favors it, can make the discretionary judgment entrusted to him . .
. , and can thus obey the oath he takes as a juror."
Witherspoon v. Illinois, 391 U.S. at
391 U. S. 519.
The defendant, on the other hand, was seriously prejudiced by the
State's practice. The jury which sentenced him to death fell
"woefully short of that impartiality to which the petitioner was
entitled" on the issue of punishment,
id. at
391 U. S. 518.
By excluding all those who opposed capital punishment, the
Page 448 U. S. 44
State "crossed the line of neutrality" and "produced a jury
uncommonly willing to condemn a man to die."
Id. at
391 U. S. 520,
391 U. S.
521.
The Court recognized that the State might well have power to
exclude jurors on grounds more narrowly drawn:
"[N]othing we say today bears upon the power of a State to
execute a defendant sentenced to death by a jury from which the
only veniremen who were in fact excluded for cause were those who
made unmistakably clear (1) that they would
automatically
vote against the imposition of capital punishment without regard to
any evidence that might be developed at the trial of the case
before them, or (2) that their attitude toward the death penalty
would prevent them from making an impartial decision as to the
defendant's guilt."
Id. at
391 U. S.
522-523, n. 21 (emphasis in original). This statement
seems clearly designed to accommodate the State's legitimate
interest in obtaining jurors who could follow their instructions
and obey their oaths. For example, a juror would no doubt violate
his oath if he were not impartial on the question of guilt.
Similarly, the Illinois law in effect at the time
Witherspoon was decided required the jury at least to
consider the death penalty, although it accorded the jury
absolute discretion as to whether or not to impose it. A juror
wholly unable even to consider imposing the death penalty, no
matter what the facts of a given case, would clearly be unable to
follow the law of Illinois in assessing punishment.
In
Boulden v. Holman, 394 U. S. 478,
394 U. S.
483-484 (1969), we again emphasized the State's
legitimate interest in obtaining jurors able to follow the law:
"[I]t is entirely possible that a person who has a 'fixed
opinion against,' or who does not 'believe in,' capital punishment
might nevertheless be perfectly able as a juror to abide by
existing law -- to follow conscientiously the instructions
Page 448 U. S. 45
of a trial judge and to consider fairly the imposition of the
death sentence in a particular case."
And in
Lockett v. Ohio, 438 U.
S. 586,
438 U. S.
595-596 (197), we upheld against a
Witherspoon
challenge the exclusion of several jurors who were unable to
respond affirmatively to the following question:
"[D]o you feel that you could take an oath to well and truely
[
sic] try this case . . . and follow the law, or is your
conviction so strong that you cannot take an oath, knowing that a
possibility exists in regard to capital punishment?"
This line of cases establishes the general proposition that a
juror may not be challenged for cause based on his views about
capital punishment unless those views would prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath. The State may
insist, however, that jurors will consider and decide the facts
impartially and conscientiously apply the law as charged by the
court.
B
We have little difficulty in concluding that this rule applies
to the bifurcated procedure employed by Texas in capital cases.
[
Footnote 3] This procedure
differs from the Illinois statute in effect at the time
Witherspoon was decided in three principal ways: (1) the
Witherspoon jury assessed punishment at the same time as
it rendered its verdict, whereas in Texas the jury considers
punishment in a subsequent penalty proceeding; (2) the
Witherspoon jury was given unfettered discretion to impose
the death sentence or not, whereas the
Page 448 U. S. 46
discretion of a Texas jury is circumscribed by the requirement
that it impartially answer the statutory questions; and(3) the
Witherspoon jury directly imposed the death sentence,
whereas Texas juries merely give answers to the statutory
questions, which, in turn, determine the sentence pronounced by the
trial judge. Because of these differences, the jury plays a
somewhat more limited role in Texas than it did in Illinois. If the
juror is to obey his oath and follow the law of Texas, he must be
willing not only to accept that in certain circumstances death is
an acceptable penalty, but also to answer the statutory questions
without conscious distortion or bias. The State does not violate
the
Witherspoon doctrine when it excludes prospective
jurors who are unable or unwilling to address the penalty questions
with this degree of impartiality.
Nevertheless, jurors in Texas must determine whether the
evidence presented by the State convinces them beyond reasonable
doubt that each of the three questions put to them must be answered
in the affirmative. In doing so, they must consider both
aggravating and mitigating circumstances, whether appearing in the
evidence presented at the trial on guilt or innocence or during the
sentencing proceedings. Jurors will characteristically know that
affirmative answers to the questions will result in the automatic
imposition of the death penalty,
Hovila v.
State, 532
S.W.2d 293, 294 (Tex.Crim.App. 1975), and each of the jurors
whose exclusion is challenged by petitioner was so informed. In
essence, Texas juries must be allowed to consider, "on the basis of
all relevant evidence, not only why a death sentence should be
imposed but also why it should not be imposed."
Jurek v.
Texas, 428 U. S. 262,
428 U. S. 271
(1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). This process
is not an exact science, and the jurors under the Texas bifurcated
procedure unavoidably exercise a range of judgment and discretion
while remaining true to their instructions and their oaths.
With these considerations in mind, it is apparent that a Texas
juror's views about the death penalty might influence
Page 448 U. S. 47
the manner in which he performs his role, but without exceeding
the "guided jury discretion," 577 S.W.2d at 730, permitted him
under Texas law. In such circumstances, he could not be excluded
consistently with
Witherspoon. Exclusions under §12.31(b),
like other exclusions, must be examined in this light. [
Footnote 4]
C
The State urges that
Witherspoon and §12.31(b) may
coexist as separate and independent bases for excluding jurors in
Texas, and that exclusion under the statute is consistent with the
Sixth and Fourteenth Amendments as construed in
Witherspoon. Brief for Respondent 48. It is the State's
position that, even if some jurors in the present case were
excluded on grounds broader than that permitted under
Witherspoon, the exclusion was nevertheless proper under
§12.31(b). The State's argument is consistent with the holdings of
decisions in the Texas Court of Criminal Appeals which have
considered the relationship between
Witherspoon and §
12.31(b). [
Footnote 5] The
argument, such as it is, is unpersuasive.
As an initial matter, it is clear beyond peradventure that
Witherspoon is not a ground for challenging any
prospective
Page 448 U. S. 48
juror. It is, rather, a limitation on the State's power to
exclude: if prospective jurors are barred from jury service because
of their views about capital punishment on "any broader basis" than
inability to follow the law or abide by their oaths, the death
sentence cannot be carried out.
Witherspoon v. Illinois,
391 U.S. at
391 U. S. 522,
n. 21. While this point may seem too obvious to bear repetition, it
is apparent from their frequent references to
Witherspoon
as a ground for "disqualifying" prospective jurors [
Footnote 6] that the State, and the Texas
Court of Criminal Appeals, might have fallen into the error of
assuming that
Witherspoon and §12.31(b) are both grounds
for exclusion, so that there is no conflict if §12.31(b) excludes
prospective jurors that
Witherspoon does not.
Nor do we agree with the State's argument that, because it has a
different origin and purpose, §12.31(b) cannot and will not lead to
exclusions forbidden by
Witherspoon. Unlike grounds for
exclusion having nothing to do with capital punishment, such as
personal bias, ill health, financial hardship, or peremptory
challenges, 12.31(b) focuses the inquiry directly on the
prospective juror's beliefs about the death penalty, and hence
clearly falls within the scope of the
Witherspoon
doctrine. The State could, consistently with
Witherspoon,
use §12.31(b) to exclude prospective jurors whose views on capital
punishment are such as to make them unable to follow the law or
obey their oaths. But the use of §12.31(b)
Page 448 U. S. 49
to exclude jurors on broader grounds based on their opinions
concerning the death penalty is impermissible.
Finally, we cannot agree that §12.31(b) is "neutral" with
respect to the death penalty, since, under that section, the
defendant may challenge jurors who state that their views in favor
of the death penalty will affect their deliberations on fact
issues. Despite the hypothetical existence of the juror who
believes literally in the Biblical admonition "an eye for an eye,"
see Witherspoon v. Illinois, supra at
391 U. S. 536
(Black, J., dissenting), it is undeniable, and the State does not
seriously dispute, that such jurors will be few indeed as compared
with those excluded because of scruples against capital punishment.
The appearance of neutrality created by the theoretical
availability of §12.31(b) as a defense challenge is not
sufficiently substantial to take the statute out of the ambit of
Witherspoon.
III
Based on our own examination of the record, we have concluded
that §12.31(b) was applied in this case to exclude prospective
jurors on grounds impermissible under
Witherspoon and
related cases. As employed here, the touchstone of the inquiry
under §12.31(b) was not whether putative jurors could and would
follow their instructions and answer the posited questions in the
affirmative if they honestly believed the evidence warranted it
beyond reasonable doubt. Rather, the touchstone was whether the
fact that the imposition of the death penalty would follow
automatically from affirmative answers to the questions would have
any effect at all on the jurors' performance of their duties. Such
a test could, and did, exclude jurors who stated that they would be
"affected" by the possibility of the death penalty, but who
apparently meant only that the potentially lethal consequences of
their decision would invest their deliberations with greater
seriousness and gravity, or would involve them emotionally.
[
Footnote 7]
Page 448 U. S. 50
Others were excluded only because they were unable positively to
state whether or not their deliberations would in any way be
"affected." [
Footnote 8] But
neither nervousness, emotional involvement, nor inability to deny
or confirm any effect whatsoever is equivalent to an unwillingness
or an inability on the part of the jurors to follow the court's
instructions and obey their oaths, regardless of their feelings
about the death penalty. The grounds for excluding these jurors
were consequently insufficient under the Sixth and Fourteenth
Amendments. Nor, in our view, would the Constitution permit the
exclusion of jurors from the penalty phase of a Texas murder trial
if they aver that they will honestly find the facts and answer the
questions in the affirmative if they are convinced beyond
reasonable doubt, but not otherwise, yet who frankly concede that
the prospects of the death penalty may affect what their honest
judgment of the facts will be or what they may deem to be a
reasonable doubt. Such assessments and judgments by jurors are
inherent in the jury system, and to exclude all jurors who would be
in the slightest way affected by the prospect of the death penalty
or by their views about such a penalty would be to deprive the
defendant of the impartial jury to which he or she is entitled
under the law. We repeat that the State may bar from jury service
those whose beliefs about capital punishment would lead them to
ignore the law or violate their oaths. But, in the present case,
Texas has applied §12.31(b) to exclude jurors whose only fault was
to take their responsibilities with special seriousness or to
acknowledge honestly that they might or might not
Page 448 U. S. 51
be affected. It does not appear in the record before us that
these individuals were so irrevocably opposed to capital punishment
as to frustrate the State's legitimate efforts to administer its
constitutionally valid death penalty scheme. Accordingly, the
Constitution disentitles the State to execute a sentence of death
imposed by a jury from which such prospective jurors have been
excluded.
The judgment of the Texas Court of Criminal Appeals is
consequently reversed to the extent that it sustains the imposition
of the death penalty.
So ordered.
THE CHIEF JUSTICE concurs in the judgment.
[
Footnote 1]
Under Tex.Penal Code Ann. §19.03(a)(1) (1974), whoever
"murders a peace officer or fireman who is acting in the lawful
discharge of an official duty and who the person knows is a peace
officer or fireman"
is guilty of a capital felony. Texas also authorizes the death
penalty for four other offenses: murder committed in the course of
kidnaping, burglary, robbery, forcible rape, or arson; murder
committed for remuneration; murder committed while escaping or
attempting to escape from a penal institution; and murder of a
prison employee by a prison inmate. § 19.03.
Under the current Texas capital punishment scheme, the jury's
discretion over sentencing is limited both by §19.03, which
authorizes the death penalty for only a small class of aggravated
crimes, and by Tex.Code Crim.Proc.Ann., Art. 37.071 (Vernon Supp.
1979), which mandates a sentence of death if, but only if, the jury
answers "Yes" to each of the statutory penalty questions. This
system was adopted in response to the Court's judgment in
Branch v. Texas, decided together with
Furman v.
Georgia, 408 U. S. 238
(1972), which struck down a statute giving the jury absolute
discretion whether to impose the death penalty or not. The Court
upheld the revised Texas capital punishment scheme in
Jurek v.
Texas, 428 U. S. 262
(1976).
[
Footnote 2]
In
Burns v. Estelle, 592 F.2d 1297 (1979), a panel of
the Court of Appeals for the Fifth Circuit found that the
application of Tex.Penal Code Ann. §12.31(b) (1974) to the facts of
that case violated
Witherspoon. The en banc Fifth Circuit
has since set the case for rehearing en banc. 598 F.2d 1016 (1979).
The court held oral argument on January 8, 1980, but has as yet
issued no decision.
[
Footnote 3]
In
Davis v. Georgia, 429 U. S. 122
(1976), the Court applied the
Witherspoon doctrine to a
case arising under a death penalty scheme similar in some respects
to the current Texas system. Petitioner and
amicus suggest
that
Davis conclusively establishes the applicability of
Witherspoon to the present case. We do not treat the
question as foreclosed, however, because the issue was not
explicitly raised in that case.
[
Footnote 4]
Even the State concedes that
Witherspoon "applies" to
the Texas system. Brief for Respondent 36-48. The State suggests
that this proposition is questionable as a matter of "logic," but
agrees that Texas experience and case law conclusively demonstrate
Witherspoon's applicability. The Texas Court of Criminal
Appeals has consistently held that
Witherspoon is "alive
and well" in that State.
E.g., Woodkins v.
State, 542
S.W.2d 855, 862 (1976),
cert. denied, 431 U.S. 960
(1977);
Burns v. State, 556
S.W.2d 270, 275,
cert. denied, 434 U.S. 935 (1977);
Brock v. State, 556
S.W.2d 309, 312,
cert. denied, 434 U.S. 1002 (1977);
Whitmore v. State, 570
S.W.2d 889, 893 (1976).
[
Footnote 5]
E.g., Moore v. State, 542
S.W.2d 664, 672 (1976),
cert. denied, 431 U.S. 949
(1977);
Woodkins v. State, supra at 862;
Shippy v.
State, 556 S.W.2d 246, 251,
cert. denied, 434 U.S.
935 (1977);
Burns v. State, supra at 275-276;
Freeman
v. State, 556
S.W.2d 287, 297-298 (1977),
cert. denied, 434 U.S.
1088 (1978);
Brock v. State, supra at 313;
Hughes v.
State, 562
S.W.2d 857, 859-861,
cert. denied, 439 U.S. 903
(1978);
Hughes v. State, 563
S.W.2d 581, 583 (1978),
cert. denied, 440 U.S. 950
(1979);
Bodde v. State, 568
S.W.2d 344, 348-349 (1978),
cert. denied, 440 U.S. 968
(1979);
Whitmore v. State, supra at 893;
Garcia v.
State, 581
S.W.2d 168, 174-175 (1979),
cert. pending, No. 795464;
Burks v. State, 583
S.W.2d 389, 393-394 (1979),
cert. pending, No.
79-5533.
[
Footnote 6]
E.g., Brief for Respondent 34, 42, 48;
Moore v.
State, supra at 672;
Brock v. State, supra at 313;
Hughes v. State, 562 S.W.2d at 860;
Hughes v.
State, 563 S.W.2d at 586;
Chambers v.
State, 568
S.W.2d 313, 320 (1978),
cert. denied, 440 U.S. 928
(1979);
Bodde v. State, supra at 348;
Garcia v. State,
supra at 175.
[
Footnote 7]
Prospective jurors Mahon, Jenson, and Ferguson fell into this
category. As Jenson said at one point during his
voir dire
examination:
"Well, I think it probably would [affect my deliberations]
because, afterall [
sic], you're talking about a man's life
here. You definitely don't want to take it lightly."
Tr. of
Voire Dire 367.
[
Footnote 8]
Prospective jurors Coyle, White, McDonald, and Riddle were
excluded on this ground.
MR. JUSTICE BRENNAN, concurring.
Although I join the Court's opinion, I continue to believe that
the death penalty is, in all circumstances, contrary to the Eighth
Amendment's prohibition against imposition of cruel and unusual
punishments.
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 227
(1976) (BRENNAN, J., dissenting).
MR. JUSTICE MARSHALL, concurring in the judgment.
I continue to believe that the death penalty is, under all
circumstances, cruel and unusual punishment prohibited by the
Eighth and Fourteenth Amendments.
Furman v. Georgia,
408 U. S. 238,
408 U. S.
314-374 (1972) (MARSHALL, J., concurring);
Gregg v.
Georgia, 428 U. S. 153,
428 U. S.
231-241 (1976) (MARSHALL, J., dissenting);
Godfrey
v. Georgia, 446 U. S. 420,
446 U. S.
437-440 (1980) (MARSHALL, J., concurring in judgment).
In addition, I agree with the Court that the exclusion of veniremen
in this case violated the doctrine of
Witherspoon v.
Illinois, 391 U. S. 510
(1968). I do not, however, join in the Court's assumption that the
death penalty may ever be imposed without violating the command of
the Eighth Amendment that no "cruel and unusual punishments" be
imposed.
Cf.
Page 448 U. S. 52
Beck v. Alabama, 447 U. S. 625,
447 U. S. 646
(1980) (MARSALL, J., concurring in judgment). I join in the
judgment of the Court.
MR. JUSTIE REHNQUIST, dissenting.
The Court today holds that, under
Witherspoon v.
Illinois, 391 U. S. 510
(1968), the State of Texas may not excuse from service on a jury
considering a capital case persons who are unwilling or unable to
swear that the possibility that the defendant will be executed will
not affect their deliberations on any issue of fact. Thus, at a
time when this Court should be reexamining the doctrinal
underpinnings of
Witherspoon in light of our intervening
decisions in capital cases, it instead expands that precedent as if
those underpinnings had remained wholly static, and would benefit
from expansion of the holding. I find myself constrained to
dissent.
At the time
Witherspoon was decided, Illinois, like
many States, gave the juries in capital cases complete and
unbridled discretion in considering the death penalty. In the words
of
Witherspoon itself, "the State of Illinois empowered
the jury . . . to answer
yes' or `no' to the question whether
this defendant was fit to live." 391 U.S. at 391 U. S. 521,
n. 20. This feature of the capital sentencing scheme under
consideration in that case was perhaps the single most important
factor in this Court's ultimate decision:
"[I]n Illinois . . . , the jury is given broad discretion to
decide whether or not death
is 'the proper penalty' in a
given case, and a juror's general views about capital punishment
play an inevitable role in any such decision."
"A man who opposes the death penalty, no less than one who
favors it, can make the discretionary judgment entrusted to him by
the State, and can thus obey the oath he takes as a juror. But a
jury from which all such men have been excluded cannot perform the
task demanded of it. Guided by neither rule nor standard,
Page 448 U. S. 53
'free to select or reject as it [sees] fit,'' 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
(emphasis in original; footnote omitted).
However one feels about the constitutionality of excluding
persons with qualms about the death penalty from such a jury, one
has to admit that the conditions that formed the predicate for
Witherspoon no longer exist. Our recent decisions on the
constitutionality of the death penalty leave little doubt that,
contrary to this Court's only slightly less recent decision in
McGautha v. California, 402 U. S. 183
(1971), a State may not leave the decision whether to impose
capital punishment upon a particular defendant solely to the
untrammeled discretion of a jury.
See Furman v. Georgia,
408 U. S. 238
(1972);
Gregg v. Georgia, 428 U.
S. 153 (1976);
Proffitt v. Florida,
428 U. S. 242
(1976);
Jurek v. Texas, 428 U. S. 262
(1976);
Roberts v. Louisiana, 428 U.
S. 325 (1976).
The statute presently in force in Texas requires imposition of
the death penalty if the jury in a capital case answers three
questions in the affirmative:
"(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;"
"(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and"
"(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased."
Tex. Code Crim.Proc.Ann., Art 37.071(b) (Vernon Supp. 1979).
Page 448 U. S. 54
If the jury answers any of these inquiries in the negative,
capital punishment cannot be imposed.
It is hard to imagine a system of capital sentencing that leaves
less discretion in the hands of the jury while at the same time
allowing them to consider the particular circumstances of each case
-- that is, to perform their assigned task at all. In upholding
this system against constitutional challenge in
Jurek v. Texas,
supra, the opinion announcing the judgment stressed that this
procedure
"guides and focuses the jury's
objective consideration
of the particularized circumstances of the individual offense and
the individual offender before it can impose a sentence of
death."
Id. at
428 U. S. 274
(emphasis added). Given this mandate to a jury in a capital case to
answer certain specific questions on the basis of the evidence
submitted, I see no reason why Texas should not be entitled to
require each juror to swear that he or she will answer those
questions without regard to their possible cumulative
consequences.
In holding otherwise, the Court seems to recognize that the
jury's role in this case is fundamentally different from that
considered in
Witherspoon. It nevertheless dismisses this
difference on the grounds that the sentencing process employed by
Texas "is not an exact science," and that
"the jurors under the Texas bifurcated procedure unavoidably
exercise a range of judgment and discretion while remaining true to
their instructions and their oaths."
Ante at
448 U. S. 46. I
would suggest that the Court's observations in this regard are as
true when applied to the initial determination of guilt as they are
when applied to the sentencing proceeding. In either determination,
a juror is required to make "unscientific" determinations and to
exercise a good deal of discretion within the bounds of his or her
oath. In fact, I can see no plausible distinction between the role
of the jury in the guilt/innocence phase of the trial and its role,
as defined by the State of Texas, in the sentencing phase. No one
would suggest, however, that jurors could not be excused for
cause
Page 448 U. S. 55
if they declined to swear that the possibility of capital
punishment would not affect their determination of the defendant's
guilt or innocence.
Cf. Witherspoon v. Illinois, 391 U.S.
at
391 U. S. 523,
n. 21 ("Nor . . . does today's holding render invalid the
conviction, as opposed to the
sentence, in this
or any other case") .
In his dissent in
Witherspoon, Mr. Justice Black
pointed out that society, as much as the defendant, has a right to
an impartial jury.
Id. at
391 U. S. 535.
He also observed that, if a person could not be excluded from a
jury for being "too soft" on the death penalty, then a court would
be without a basis for excluding someone who was "too hard." As he
wrote,
"I would not dream of foisting on a criminal defendant a juror
who admitted that he had conscientious or religious scruples
against
not inflicting the death sentence on any person
convicted of murder (a juror who claims, for example, that he
adheres literally to the Biblical admonition of 'an eye for an
eye')."
Id. at
391 U. S. 536
(emphasis added). I cannot believe that the Court would question
the excusal of a juror who would not take the challenged oath for
those same reasons. To dismiss this possibility, as does the Court
here, because "such jurors will be few indeed,"
ante at
448 U. S. 49, is
not only to engage in unsupportable speculation, but also to miss
the point of Mr. Justice Black's argument. The question is not one
of statistical parity, but of logical consistency.
Like the Texas Court of Criminal Appeals, I do not read
Witherspoon as casting any doubt upon the
constitutionality of the oath required by Tex.Penal Code Ann.
§12.31(b) (1974).
See Hughes v. State, 563
S.W.2d 581 (1978);
Freeman v. State, 556
S.W.2d 287 (1977);
Burns v. State, 556
S.W.2d 270 (1977);
Boulware v. State, 542
S.W.2d 677 (1976). I therefore would affirm the judgment of the
court below.