Proportional Representation Excerpts from Senate Hearings 2

    (Slip Opinion)

N O TE: W here i t  is feasible, a  syllabus (headnote) w ill be re­
leased, as is being done in  connection w ith  th is  case, a t  th e  tim e 
th e  opinion is issued. The syllabus constitu tes no p a r t  of th e  opinion 
of th e  C ourt b u t h as been prepared  by th e  R eporter of Decisions fo r 
th e  convenience of th e  reader. See U nited S ta te s  v. D etro it Lum ber  
Co., 200 U.S. 321, 337.

SUPREME COURT OF THE U SITED  STATES

Syllabus

GREGG v. GEORGIA

CERTIORARI TO THE SUPREME COURT OF GEORGIA 

No. 74-6257. Argued March 31, 1976—Decided July 2, 1976

Petitioner was charged with committing armed robbery and mur­
der on the basis of evidence that he had killed and robbed two 
men. At the trial stage of Georgia’s bifurcated procedure, the 
jury found petitioner guilty of two counts of armed robbery and 
two counts of murder. At the penalty stage, the judge instructed 
the jury that it could recommend either a death sentence or a life 
prison sentence on each count; that the jury was free to consider 
mitigating or aggravating circumstances, if any, as presented by 
the parties; and that the jury would not be authorized to con­
sider imposing the death sentence unless it first found beyond 
a reasonable doubt (1) that the murder was committed while 
the offender was engaged in the commission of other capital 
felonies, viz., the armed robberies of the victims; (2) that he com­
mitted the murder for the purpose of receiving the victims’ money 
and automobile; or (3) that the murder was “outrageously and 
wantonly vile, horrible and inhuman” in that it “involved the 
depravity of the mind of the defendant.” The jury found the 
first and second of these aggravating circumstances and returned 
a sentence of death. The Georgia Supreme Court affirmed the 
convictions. After reviewing the trial transcript and record and 
comparing the evidence and sentence in similar cases the court 
upheld the death sentences for the murders, concluding that they 
had not resulted from prejudice or any other arbitrary factor and 
were not excessive or disproportionate to the penalty applied in 
similar cases, but vacated the armed robbery sentences on the 
ground, inter alia, that the death penalty had rarely been im­
posed in Georgia for that offense. Petitioner challenges imposi­
tion of the death sentence under the Georgia statute as “cruel and 
unusual” punishment under the Eighth and Fourteenth Amend­
ments. That statute, as amended following Furman v. Georgia,

i



II GREGG v. GEORGIA

Syllabus

408 U. S. 238 (where this Court held to be violative of those 
Amendments death sentences imposed under statutes that left 
juries with untrammeled discretion to impose or withhold the 
death penalty), retains the death penalty for murder and five 
other crimes. Guilt or innocence is determined in the first stage 
of a bifurcated trial, and if the trial is by jury, the trial judge 
must charge lesser included offenses when supported by any view 
of the evidence. Upon a guilty verdict or plea a presentence 
hearing is held where the judge or jury hears additional extenuat­
ing or mitigating evidence and evidence in aggravation of punish­
ment if made known to the defendant before trial. At least one 
of 10 specified aggravating circumstances must be found to 
exist beyond a reasonable doubt and designated in writing before 
a death sentence can be imposed. In jury cases, the trial judge 
is bound by the recommended sentence. In its review of a death 
sentence (which is automatic), the State Supreme Court must 
consider whether the sentence was influenced by passion, preju­
dice, or any other arbitrary factor; whether the evidence sup­
ports the finding of a statutory aggravating circumstance; and 
whether the death sentence “is excessive or disproportionate to 
the penalty imposed in similar cases, considering both the crime 
and the defendant.” If the court affirms the death sentence it 
must include in its decision reference to similar cases that it has 
considered. Held: The judgment is affirmed. Pp. 11-50 (opinion 
of Stewart, Powell, and Stevens, J J . ) ; pp. 14-20 (opinion of 
White, J . ) ; p. 1 (statement of Blackmun, J.).

233 Ga. 117, 210 S. E. 2d 659, affirmed.
Mr. J ustice Stewart, Mr. J ustice Powell, and Mr. J ustice 

Stevens concluded that:
(1) The punishment of death for the crime of murder does 

not, under all circumstances, violate the Eighth and Fourteenth 
Amendments. Pp. 11-30.

(a) The Eighth Amendment, which has been interpreted 
in a flexible and dynamic manner to accord with evolving stand­
ards of decency, forbids the use of punishment that is “excessive” 
either because it involves the unnecessary and wanton infliction 
of pain or because it is grossly disproportionate to the severity of 
the crime. Pp. 14-17.

(b) Though a legislature may not impose excessive punish­
ment, it is not required to select the least severe penalty possible, 
and a heavy burden rests upon those attacking its judgment. 
Pp. 17-19.



GREGG v. GEORGIA h i

Syllabus

(c) The existence of capital punishment was accepted by the 
Framers of the Constitution, and for nearly two centuries this 
Court has recognized that capital punishment for the crime of 
murder is not invalid per se. Pp. 20-22.

(d) Legislative measures adopted by the people’s chosen rep­
resentatives weigh heavily in ascertaining contemporary standards 
of decency; and the argument that such standards require that 
the Eighth Amendment be construed as prohibiting the death 
penalty has been undercut byr the fact that in the four years 
since Furman, supra, was decided, Congress and at least 35 States 
have enacted new statutes providing for the death penalty. Pp. 
22-26.

(e) Retribution and the possibility of deterrence of capital 
crimes by prospective offenders are not impermissible considera­
tions for a legislature to weigh in determining whether the death 
penalty should be imposed, and it cannot be said that Georgia’s 
legislative judgment that such a penalty is necessary in some cases 
is clearly wrong. Pp. 26-30.

(f) Capital punishment for the crime of murder cannot be 
viewed as invariably disproportionate to the severity of that 
crime. P. 30.

2. The concerns expressed in Furman that the death penalty 
not be imposed arbitrarily or capriciously can be met by a care­
fully drafted statute that ensures that the sentencing authority 
is given adequate information and guidance, concerns best met by 
a system that provides for a bifurcated proceeding at which the 
sentencing authority is apprised of the information relevant to 
the imposition of sentence and provided with standards to guide 
its use of that information. Pp. 30-38.

3. The Georgia statutory system under which petitioner was 
sentenced to death is constitutional. The new procedures on 
their face satisfy the concerns of Furman, since before the death 
penalty can be imposed there must be specific jury- findings as to 
the circumstances of the crime or the character of the defendant, 
and the State Supreme Court thereafter reviews the comparability 
of each death sentence with the sentences imposed on similarly 
situated defendants to ensure that the sentence of death in a par­
ticular case is not disproportionate. Petitioner’s contentions that 
the changes in Georgia’s sentencing procedures have not removed 
the elements of arbitrariness and capriciousness condemned by 
Furman are without merit. Pp. 39-50.

(a) The opportunities under the Georgia scheme for affording



IV GREGG v. GEORGIA

Syllabus

an individual defendant mercy—whether through the prosecutor’s 
unfettered authority to select those whom he wishes to prosecute 
for capital offenses and to plea bargain with them; the jury’s 
option to convict a defendant of a lesser included offense; or the 
fact that the Governor or pardoning authority may commute a 
death sentence—do not render the Georgia statute unconstitu­
tional. Pp. 41-42.

(b) Petitioner’s arguments that certain statutory aggravating 
circumstances are too broad or vague lack merit, since they need 
not be given overly broad constructions or have been already 
narrowed by judicial construction. One such provision was held 
impermissibly vague by the Georgia Supreme Court. Petitioner’s 
argument that the sentencing procedure allows for arbitrary 
grants of mercy reflects a misinterpretation of Furman and ig­
nores the reviewing authority of the Georgia Supreme Court to 
determine whether each death sentence is proportional to other 
sentences imposed for similar crimes. Petitioner also urges that 
the scope of the evidence and argument that can be considered 
at the presentence hearing is too wide, but it is desirable for a 
jury to have as much information as possible when it makes the 
sentencing decision. Pp. 43-47.

(c) The Georgia sentencing scheme also provides for auto­
matic sentence review by the Georgia Supreme Court to safeguard 
against prejudicial or arbitrary factors. In this very case the 
court vacated petitioner’s death sentence for armed robbery as an 
excessive penalty. Pp. 47-49.

Mr. Justice White, joired by T he Chief J ustice and Mr. 
J ustice Rehnquist, concluded that:

1. Georgia’s new statutory scheme, enacted to overcome the 
constitutional deficiencies found in Furman v. Georgia, 408 U. S. 
238, to exist under the old system, not only guides the jury in its 
exercise of discretion as to whether or not it will impose the death 
penalty for first-degree murder, but also gives the Georgia Su­
preme Court the power and imposes the obligation to decide 
whether in fact the death penalty was being administered for any 
given class of crime in a discriminatory, standardless, or rare 
fashion. If that court properly performs the task assigned to 
it under the Georgia statutes, death sentences imposed for dis­
criminatory reasons or wantonly or freakishly for any given 
category of crime will be set aside. Petitioner has wholly failed to 
establish that the Georgia Supreme Court failed properly to per­
form its task in the instant case or that it is incapable of perform-



GREGG v. GEORGIA v

Syllabus

ing its task adequately in all cases. Thus the death penalty may 
be carried out under the Georgia legislative scheme consistently 
with the Furman decision. Pp. 14-18.

2. Petitioner’s argument that the prosecutor’s decisions in plea 
bargaining or in declining to charge capital murder are standard­
less and will result in the wanton or freakish imposition of the 
death penalty condemned in Furman, is without merit, for the 
assumption cannot be made tha t prosecutors will be motivated 
in their charging decisions by factors other than the strength of 
their case and the likelihood that a jury would impose the death 
penalty if it convicts; the standards by which prosecutors decide 
whether to charge a capital felony will be the same as those by 
which the jury will decide the questions of guilt and sentence. 
Pp. 18-19.

3. Petitioner’s argument that the death penalty, however im­
posed and for whatever crime, is cruel and unusual punishment 
is untenable for the reasons stated in Mr. J ustice White’s dis­
sent in Roberts v. Louisiana, post, p. — . P. 20.

Me. J ustice Blackmun concurred in the judgment. See Fur­
man v. Georgia, 408 U. S. 238, 405-414 (1972) (Blackmun, J., 
dissenting), and id., a t 375, 414 and 465.

Stewart, Powell, and Stevens, JJ., announced the judgment 
of the Court and filed an opinion delivered by Stewtart, J. Burger, 
C. J., and Rehnquist, J., filed a statement concurring in the judg­
ment. White , J., filed an opinion concurring in the judgment, in 
which Burger, C. J., and Rehnquist, J., joined. Blackmun, J., 
filed a statement concurring in the judgment. Brennan and 
Marshall, JJ., filed dissenting opinions.



NOTICE : This opinion is subject to  form al revision before publication 
in the  p relim inary  p r in t of th e  U nited S ta tes Reports. R eaders are  re­
quested to  notify  th e  R eporter of Decisions, Supreme C ourt of the  
U nited  S ta tes, W ashington, D.C. 20543, of any typograph ical or o ther 
form al erro rs, in o rder th a t  corrections may be made before th e  p re­
lim inary  p rin t goes to  press.

SUPREME COURT OF THE UNITED STATES

No. 74-6257

Troy Leon Gregg, Petitioner, ] On Writ of Certiorari to 
v. the Supreme Court of

State of Georgia. j Georgia.

[July 2, 1976]

M r . J u stice  Stew art , M r . J u stice  P o w ell , and M r . 
J u stice  Steven s  announced the judgment of the Court 
and filed an opinion delivered by M r . J u stice  Stew art.

The issue in this case is whether the imposition of 
the sentence of death for the crime of murder under the 
law of Georgia violates the Eighth and Fourteenth 
Amendments.

I
The petitioner, Troy Gregg, was charged with com­

mitting armed robbery and murder. In accordance with 
Georgia procedure in capital cases, the trial was in two 
stages, a guilt stage and a sentencing stage. The evi­
dence at the guilt trial established that on November 21, 
1973, the petitioner and a traveling companion, Floyd 
Allen, while hitchhiking north in Florida were picked up 
by Fred Simmons and Bob Moore. Their car broke 
down, but they continued north after Simmons pur­
chased another vehicle with some of the cash he 
was carrying. While still in Florida, they picked 
up another hitchhiker, Dennis Weaver, who rode with 
them to Atlanta, where he was let out about 11 p. m. 
A short time later the four men interrupted their journey 
for a rest stop along the highway. The next morning 
the bodies of Simmons and Moore were discovered in a 
ditch nearby.



2 GREGG v. GEORGIA

On November 23, after reading about the shootings 
in an Atlanta newspaper, Weaver comunicated with the 
Gwinnett County police and related information con­
cerning the journey with the victims, including a descrip­
tion of the car. The next afternoon, the petitioner and 
Allen, while in Simmons’ car, were arrested in Asheville, 
N. C. In the search incident to the arrest a .25-caliber 
pistol, later shown to be that used to kill Simmons and 
Moore, was found in the petitioner’s pocket. After re­
ceiving the warnings required by Miranda v. United 
States, 384 U. S. 436 (1966), and signing a written 
waiver of his rights, the petitioner signed a statement 
in which he admitted shooting, then robbing Simmons 
and Moore. He justified the slayings on grounds of 
self-defense. The next day, while being transferred to 
Lawrenceville. Ga., the petitioner and Allen were taken 
to the scene of the shootings. Upon arriving there, Allen 
recounted the events leading to the slayings. His ver­
sion of these events v7as as follows: After Simmons and 
Moore left the car, the petitioner stated that he intended 
to rob them. The petitioner then took his pistol in 
hand and positioned himself on the car to improve his 
aim. As Simmons and Moore came up an embankment 
towards the car, the petitioner fired three shots and the 
two men fell near a ditch. The petitioner, at close 
range, then fired a shot into the head of each. He 
robbed them of valuables and drove away with Allen.

A medical examiner testified that Simmons died from 
a bullet wound in the eye and that Moore died from 
bullet wounds in the cheek and in the back of the head. 
He further testified that both men had several bruises 
and abrasions about the face and head which probably 
were sustained either from the fall into the ditch or 
from being dragged or pushed along the embankment.



GREGG v. GEORGIA 3

Although Allen did not testify, a police detective re­
counted the substance of Allen’s statements about the 
slayings and indicated that directly after Allen had made 
these statements the petitioner had admitted that Allen’s 
account was accurate. The petitioner testified in his 
own defense. He confirmed that Allen had made the 
statements described by the detective, but denied their 
truth or ever having admitted to their accuracy. He 
indicated that he had shot Simmons and Moore because 
of fear and in self-defense, testifying they had attacked 
Allen and him, one wielding a pipe and the other a 
knife.1

The trial judge submitted the murder charges to the 
jury on both felony-murder and nonfelony-murder theo­
ries. He also instructed on the issue of self-defense but 
declined to instruct on manslaughter. He submitted the 
robbery case to the jury on both an armed-robbery 
theory and on the lesser included offense of robbery by 
intimidation. The jury found the petitioner guilty of 
two counts of armed robbery and two counts of murder.

At the penalty stage, which took place before the same 
jury, neither the prosecutor nor the petitioner’s lawyer 
offered any additional evidence. Both counsel, however, 
made lengthy arguments dealing generally with the 
propriety of capital punishment under the circumstances 
and with the weight of the evidence of guilt. The trial 
judge instructed the jury that it could recommend either 
a death sentence or a life prison sentence on each count. 
The judge further charged the jury that in determining 
what sentence was appropriate the jury was free to con- 1

1 On cross-examination the State introduced a letter written by 
the petitioner to Allen entitled, “ [a] statement for you,” with the 
instructions that Allen memorize and then burn it. The statement 
was consistent with the petitioner’s testimony at trial.



4 GREGG v. GEORGIA

sider the facts and circumstances presented by the par­
ties, if any, in mitigation or aggravation.

Finally, the judge instructed the jury that it “would 
not be authorized to consider [imposing] the sentence 
of death” unless it first found beyond a reasonable doubt 
one of these aggravating circumstances:

“One—That the offense of murder was committed 
while the offender was engaged in the commission 
o[f] two other cap it [ a] 1 felonies, to-wit the armed 
ro[b]bery of [Simons and Moore].

“Two—That the offender committed the offense 
of murder for the purpose of receiving money and 
the automobile described in the indictment.

“Three—The offense of murder was outrageously 
and wantonly vile, horrible and inhuman, in that 
they [sic] involved the depravity of the mind of 
the defendant.”

Finding the first and second of these circumstances, the 
jury returned verdicts of death on each count.

The Supreme Court of Georgia affirmed the convic­
tions and the imposition of the death sentences for 
murder. 233 Ga. 117, 210 S. E. 2d 659 (1974). After 
reviewing the trial transcript and the record, including 
the evidence, and comparing the evidence and sentence 
in similar cases in accordance with the requirements of 
Georgia law, the court concluded that, considering the 
nature of the crime and the defendant, the sentences of 
death had not resulted from prejudice or any other arbi­
trary factor and were not excessive or disproportionate 
to the penalty applied in similar cases.2 The death 
sentences imposed for armed robbery, however, were

2 The court further held, in part, that the trial court did not err 
in refusing to instruct the jury with respect to voluntary man­
slaughter since there was no evidence to support that verdict.



GREGG v. GEORGIA 5

vacated on the grounds that the death penalty had rarely 
been imposed in Georgia for that offense and that the 
jury improperly considered the murders as aggravating 
circumstances for the robberies after having considered 
the armed robberies as aggravating circumstances for the 
murders. 233 Ga., at 127, 210 S. E. 2d, at 667.

We granted the petitioner’s application for a writ of 
certiorari challenging the imposition of the death sen­
tences in this case as “cruel and unusual” punishment 
in violation of the Eighth and the Fourteenth Amend­
ments. ----U. S. -— - (1976).

II
Before considering the issues presented it is necessary 

to understand the Georgia statutory scheme for the im­
position of the death penalty.3 The Georgia statute, 
as amended after our decision in Furman v. Georgia, 408 
U. S. 238 (1972), retains the death penalty for six cate­
gories of crime: murder,4 kidnapping for ransom or where

3 Subsequent to the trial in this case limited portions of the 
Georgia statute were amended. None of these amendments changed 
significantly the substance of the statutory scheme. All references 
to the statute in this opinion are to the current version.

4 Section 26-1101 (1972) provides:
“ (a) A person commits murder when he unlawfully and with 

malice aforethought, either express or implied, causes the death 
of another human being. Express malice is that deliberate intention 
unlawfully to take away the life of a fellow creature, which is mani­
fested by external circumstances capable of proof. Malice shall be 
implied where no considerable provocation appears, and where all 
the circumstances of the killing show an abandoned and malignant 
heart.

“ (b) A person also commits the crime of murder when in the 
commission of a felony he causes the death of another human being, 
irrespective of malice.

“ (c) A person convicted of murder shall be punished by death 
or by imprisonment for life.”



GREGG v. GEORGIA

the victim is harmed, armed robbery,5 rape, treason, and 
aircraft hijacking.6 Ga. Code Ann. §§ 26-1101, 26-1311, 
26-1902, 26-2001, 26-2201, 26-3301 (1972). The capital 
defendant’s guilt or innocence is determined in the tradi­
tional manner, either by a trial judge or a jury, in the 
first stage of a bifurcated trial.

If trial is by jury, the trial judge is required to charge 
lesser included offenses when they are supported by any 
view of the evidence. Sims v. State, 203 Ga. 668, 47 
S. E. 2d 862 (1948). See Linder v. State, 132 Ga. 
App. 624, 625, 208 S. E. 2d 630, 631 (1974). After a 
verdict, finding, or plea of guilty to a capital crime, a 
presentence hearing is conducted before whomever made 
the determination of guilt. The sentencing procedures 
are essentially the same in both bench and jury trials. 
At the hearing,

“the judge [or jury] shall hear additional evidence 
in extenuation, mitigation, and aggravation of pun­
ishment, including the record of any prior criminal 
convictions and pleas of guilty or pleas of nolo 
contendere of the defendant, or the absence of any

5 Section 26-1902 (1972) provides:
“A  person commits armed robbery when, with intent to commit 

theft, he takes property of another from the person or the imme­
diate presence of another by use of an offensive weapon. The 
offense robbery by intimidation shall be a lesser included offense in 
the offense of armed robbery. A person convicted of armed robbery 
shall be punished by death or imprisonment for life, or by im­
prisonment for not less than one nor more than 20 years.”

6 These capital felonies currently are defined as they were when 
Furman was decided. The 1973 amendments to the Georgia statute, 
however, narrowed the class of crimes potentially punishable by 
death by eliminating capital perjury. Compare § 26-2401 (Supp. 
1975) with §26-2401 (1972).



GREGG v. GEORGIA 7

prior conviction and pleas: Provided, however, that 
only such evidence in aggravation as the State has 
made known to the defendant prior to his trial shall 
be admissible. The judge [or jury] shall also hear 
argument by defendant or his counsel and the prose­
cuting attorney . . . regarding the punishment to be 
imposed.” § 27-2503. (Supp. 1975.)

The defendant is accorded substantial latitude as to the 
types of evidence that he may introduce. See Brown v.
State, 235 Ga. 644, 647-650, ----  S. E. 2d ----  (1975).7
Evidence considered during the guilt stage may be con­
sidered during the sentencing stage without being resub­
mitted. Eberheart v. State, 232 Ga, 247, 253, 206 S. E. 
2d 12, 17 (1974).8

In the assessment of the appropriate sentence to be im­
posed the judge is also required to consider or to include 
in his instructions to the jury “any mitigating circum­
stances or aggravating circumstances otherwise author­
ized by law and any of [10] statutory aggravating cir­
cumstances which may be supported by the evidence.. . . ” 
§27-2534.1 (b) (Supp. 1975). The scope of the non- 
statutory aggravating or mitigating circumstances is not 
delineated in the statute. Before a convicted defendant 
may be sentenced to death, however, except in cases of 
treason or aircraft hijacking, the jury, or the trial judge 
in cases tried without a jury, must find beyond a reason­

7 I t is not clear whether the 1974 amendments to the Georgia 
statute were intended to broaden the types of evidence admissible 
at the presentence hearing. Compare § 27-2503 (a) (Supp. 1975) 
with §27-2534 (1972) (deletion of limitation “subject to the laws 
of evidence”).

8 Essentially the same procedures are followed in the case of a 
guilty plea. The judge considers the factual basis of the plea, as 
well as evidence in aggravation and mitigation. See Mitchell v. 
State, 234 Ga. 160, 214 S. E. 2d 829 (1974).



GREGG v. GEORGIA

able doubt one of the 10 aggravating circumstances speci­
fied in the statute.9 The sentence of death may be

9 The statute provides in part:
“ (a) The death penalty may be imposed for the offenses of air­

craft hijacking or treason, in any case.
“ (b) In all cases of other offenses for which the death penalty 

may be authorized, the judge shall consider, or he shall include in 
his instructions to the jury for it to consider, any mitigating circum­
stances or aggravating circumstances otherwise authorized by law 
and any of the following statutory aggravating circumstances which 
may be supported by the evidence:

“ (1) The offense of murder, rape, armed robbery, or kidnapping 
was committed by a person with a prior record of conviction for a 
capital felony, or the offense of murder was committed by a person 
who has a substantial history of serious assaultive criminal 
convictions.

“ (2) The offense of murder, rape, armed robbery, or kidnapping 
was committed while the offender was engaged in the commission 
of another capital felony, or aggravated battery, or the offense of 
murder was committed while the offender was engaged in the 
commission of burglary or arson in the first degree.

“ (3) The offender by his act of murder, armed robbery, or 
kidnapping knowingly created a great risk of death to more than 
one person in a public place by means of a weapon or device which 
would normally be hazardous to the lives of more than one person.

“ (4) The offender committed the offense of murder for himself 
or another, for the purpose of receiving money or any other thing 
of monetary value.

“ (5) The murder of a judicial officer, former judicial officer, dis­
trict attorney or solicitor or former district attorney or solicitor 
during or because of the exercise of his official duty.

“ (6) The offender caused or directed another to commit murder 
or committed murder as an agent or employee of another person.

“ (7) The offense of murder, rape, armed robbery, or kidnapping 
was outrageously or wantonly vile, horrible or inhuman in that it 
involved torture, depravity of mind, or an aggravated battery to 
the victim.

“ (8) The offense of murder was committed against any peace 
officer, corrections employee or fireman while engaged in the per­
formance of his official duties.

“ (9) The offense of murder was committed by a person in, or



GREGG v. GEORGIA 9

imposed only if the jury (or judge) finds one of the 
statutory aggravating circumstances and then elects to 
impose that sentence. §26-3102 (Supp, 1975). If the 
verdict is death the jury or judge must specify the aggra­
vating circumstance(s) found. § 27-2534.1 (c). (Supp. 
1975.) In jury cases, the trial judge is bound by 
the jury’s recommended sentence. §§ 26-3102, 27-2514 
(Supp. 1975).

In addition to the conventional appellate process avail­
able in all criminal cases, provision is made for special 
expedited direct review by the Supreme Court of Georgia 
of the appropriateness of imposing the sentence of death 
in the particular case. The court is directed to consider 
“the punishment as well as any errors enumerated by way 
of appeal,” and to determine:

“ (1) Whether the sentence of death was imposed

who has escaped from, the lawful custody of a peace officer or place 
of lawful confinement.

“ (10) The murder was committed for the purpose of avoiding, 
interfering with, or preventing a lawful arrest or custody in a place 
of lawful confinement, of himself or another.

“ (c) The statutory instructions as determined by the trial judge 
to be warranted by the evidence shall be given in charge and in writ­
ing to the jury for its deliberation. The jury, if its verdict be a 
recommendation of death, shall designate in writing, signed by the 
foreman of the jury, the aggravating circumstance or circumstances 
which it found beyond a reasonable doubt. In non-jury cases the 
judge shall make such designation. Except in cases of treason or 
aircraft hijacking, unless at least one of the statutory aggravating 
circumstances enumerated in section 27-2534.1 (b) is so found, 
the death penalty shall not be imposed.” § 27-2534.1 (Supp. 
1975).

The Supreme Court of Georgia, in Arnold v. State, 236 Ga. 534,
540,----S. E. 2 d ----- , ---- (1976), recently held unconstitutional the
portion of the first circumstance encompassing persons who have 
a “substantial history of serious assaultive criminal convictions” be­
cause it did not set “sufficiently ‘clear and objective standards.’ ”



10 GREGG v. GEORGIA

under the influence of passion, prejudice, or any 
other arbitrary factor, and
“ (2) Whether, in cases other than treason or air­
craft hijacking, the evidence supports the jury’s or 
judge’s finding of a statutory aggravating circum­
stance as enumerated in section 27.2534.1 (b), and 
“ (3) Whether the sentence of death is excessive or 
disproportionate to the penalty imposed in similar 
cases, considering both the crime and the defend­
ant.” § 27-2537 (Supp. 1975).

If the court affirms a death sentence, it is required to 
include in its decision reference to similar cases that it 
has taken into consideration. § 27-2537 (e).10

A transcript and complete record of the trial, as well 
as a separate report by the trial judge, are transmitted 
to the court for its use in reviewing the sentence. 
§ 27-2537 (a) (1972). The report is in the form of a 
six and one-half page questionnaire, designed to elicit 
information about the defendant, the crime, and the cir­
cumstances of the trial. I t  requires the trial judge to 
characterize the trial in several ways designed to test 
for arbitrariness and disproportionality of sentence. In­
cluded in the report are responses to detailed questions 
concerning the quality of the defendant’s representation, 
whether race played a role in the trial, and, whether, in 
the trial court’s judgment, there was any doubt about 
the defendant’s guilt or the appropriateness of the sen­

10 The statute requires that the Supreme Court of Georgia obtain 
and preserve the records of all capital felony cases in which the 
death penalty was imposed after January 1, 1970, or such earlier 
date that the Court considers appropriate. § 27-2537 (f) (Supp. 
1975). To aid the Court in its disposition of these cases the statute 
further provides for the appointment of a special assistant and 
authorizes the employment of additional staff. § 27-2537 (f)-(h) 
(Supp. 1975).



GREGG v. GEORGIA 11

tence. A copy of the report is served upon defense 
counsel. Under its special review authority, the court 
may either affirm the death sentence or remand the case 
for re,sentencing. In cases in which the death sentence 
is affirmed there remains the possibility of executive 
clemency.11

I l l
We address initially the basic contention that the pun­

ishment of death for the crime of murder is, under all 
circumstances, “cruel and unusual” in violation of the 
Eighth and Fourteenth Amendments of the Constitution. 
In Part IV of this opinion, we will consider the sentence 
of death imposed under the Georgia statutes at issue in 
this case.

The Court on a number of occasions has both assumed 
and asserted the constitutionality of capital punish­
ment. In several cases that assumption provided a nec­
essary foundation for the decision, as the Court was 
asked to decide whether a particular method of carrying 
out a capital sentence would be allowed to stand under 
the Eighth Amendment.11 12 But until Furman v. Georgia, 
408 U. S. 238 (1972) , the Court never confronted squarely 
the fundamental claim that the punishment of death al­
ways, regardless of the enormity of the offense or the 
procedure followed in imposing the sentence, is cruel and 
unusual punishment in violation of the Constitution.

11 See Ga. Const. Ann. § 2-3011 (1972); Ga. Code Ann. §§77- 
501, 77-511, 77-513 (Board of Pardons and Paroles is authorized 
to commute sentence of death except in cases where Governor 
refuses to suspend that sentence).

12 Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 
(1947); In re Kemmler, 136 U. S. 436, 447 (1890); Wilkerson v. 
Utah, 99 U. S. 130, 134-135 (1879). See also McGautha v. Califor­
nia, 402 U. S. 183 (1971); Witherspoon v. Illinois, 391 U. S. 510 
(1968); Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion).



12 GREGG v. GEORGIA

Although this issue was presented and addressed in 
Furman, it was not resolved by the Court. Four Jus­
tices would have held that capital punishment is not un­
constitutional per s e ;13 two Justices would have reached 
the opposite conclusion; 14 and three Justices, while 
agreeing that the statutes then before the Court were in­
valid as applied, left open the question whether such 
punishment may ever be imposed.15 We now hold that 
the punishment of death does not invariably violate the 
Constitution.

A
The history of the prohibition of “cruel and unusual” 

punishment already has been reviewed by this Court at 
length.16 The phrase first appeared in the English Bill 
of Rights of 1689, which was drafted by Parliament at the 
accession of William and Mary. See Granucci, “Nor 
Cruel and Unusual Punishments Inflicted:” The Original 
Meaning, 57 Cal. L. Rev. 839, 852-853 (1969). The 
English version appears to have been directed against 
punishments unauthorized by statute and beyond the ju­
risdiction of the sentencing court, as well as those dispro­
portionate to the offense involved. Id., at 860. The 
American draftsmen, who adopted the English phrasing

13408 U. S., at 375 (Bukger, C. J., dissenting), 405 (Blackmun, 
J., dissenting), 414 (Powell, J., dissenting), 465 (Rehnquist, J., 
dissenting).

14Id., a t 257 (Brennan, J., concurring), 314 (Marshall, J., 
concurring).

15 Id., at 240 (Douglas, J., concurring), 306 (Stewart, J., concur­
ring), 310 (White, J., concurring).

Since five Justices wrote separately in support of the judgments 
in Furman, the holding of the Court may be viewed as that posi­
tion taken by those Members who concurred in the judgments on 
the narrowest grounds—Mr . J ustice Stewart and Mr. J ustice 
White . See n. 35, infra.

10Id., at 316-328 (Marshall, J., concurring).



GREGG v. GEORGIA 13

in drafting the Eighth Amendment, were primarily con­
cerned, however, with proscribing “tortures” and other 
“barbarous” methods of punishment.” Id,., at 842.17

In the earliest cases raising Eighth Amendment claims, 
the Court focused on particular methods of execution to 
determine whether they were too cruel to pass consti­
tutional muster. The constitutionality of the sentence 
of death itself was not at issue, and the criterion used to 
evaluate the mode of execution was its similarity to 
“torture” and other “barbarous” methods. See Wilker- 
son v. Utah, 99 U. S., at 136 (“ [ I ] t  is safe to affirm 
that punishments of torture, . . . and all others in the 
same line of unnecessary cruelty, are forbidden by that 
amendment. . . .”); In  re Kemmler, 136 U. S., a t 447 
(“Punishments are cruel when they involve torture or 
a lingering death . . . .”). See also Louisiana ex rel. 
Francis v. Resweber, 329 IT. S. 459, 464 (1947) (A second 
attempt at electrocution found not to violate the Eighth

17 This conclusion derives primarily from statements made during 
the debates in the various state conventions called to ratify the 
Federal Constitution. For example, Virginia delegate Patrick Henry 
objected vehemently to the lack of a provision banning “cruel and 
unusual punishments” :
“What has distinguished our ancestors?—That they would not 
admit of tortures, or cruel and barbarous punishment. But Con­
gress may introduce the practice of the civil law, in preference to 
that of the common law. They may introduce the practice of 
France, Spain, and Germany—of torturing, to extort a confession of 
the crime.”
3 J. Elliot, The Debates in the Several State Conventions On the 
Adoption of the Federal Constitution 447-448 (1861). A similar 
objection was made in the Massachusetts convention:
“They are nowhere restrained from inventing the most cruel and 
unheard-of punishments and annexing them to crimes; and there is 
no constitutional check on them, but that racks and gibbets may be 
amongst the most mild instruments of their discipline.” 2 id,., 
a t 111 (1876).



14 GREGG v. GEORGIA

Amendment, since the failure of the initial execution at­
tempt was “an unforeseeable accident” and “ [t]here 
[was] no purpose to inflict unnecessary pain nor any 
unnecessary pain involved in the proposed execution.”).

But the Court has not confined the prohibition em­
bodied in the Eighth Amendment to “barbarous” meth­
ods that were generally outlawed in the 18th century. 
Instead, the Amendment has been interpreted in a flex­
ible and dynamic manner. The Court early recognized 
that “a principle to be vital must be capable of wider 
application than the mischief which gave it birth.” 
Weems v. United States, 217 U. S. 349, 373 (1910). Thus 
the clause forbidding “cruel and unusual” punishments 
“is not fastened to the obsolete but may acquire meaning 
as public opinion becomes enlightened by a humane 
justice.” Id., at 378. See also Furman v. Georgia, 408 
U. S., at 429-430 ( P o w ell , J., dissenting); Trop v. Dul­
les, 356 U. S., at 100-101 (plurality opinion).

In Weems the Court addressed the constitutionality of 
the Philippine punishment of cadena temporal for the 
crime of falsifying an official document. That punish­
ment included imprisonment for at least 12 years and 
one day, in chains, at hard and painful labor; the loss of 
many basic civil rights; and subjection to lifetime sur­
veillance. Although the Court acknowledged the possi­
bility that “the cruelty of pain” may be present in the 
challenged punishment, 217 U. S., at 366, it did not rely 
on that factor, for it rejected the proposition that the 
Eighth Amendment reaches only punishments that are 
“inhuman and barbarous, torture and the like.” Id., at 
368. Rather, the Court focused on the lack of propor­
tion between the crime and the offense:

“Such penalties for such offenses amaze those who 
have formed their conception of the relation of a 
state to even its offending citizens from the practice



GREGG v. GEORGIA 15

of the American commonwealths, and believe that 
it is a precept of justice that punishment for crime 
should be graduated and proportioned to offense.” 
Id., at 366-367.18

Later, in Trop v. Dulles, 356 U. S. 86 (1958), the Court 
reviewed the constitutionality of the punishment of de­
nationalization imposed upon a soldier who escaped from 
an Army stockade and became a deserter for one day. 
Although the concept of proportionality was not the 
basis of the holding, the plurality observed in dicta that 
“ [fjines, imprisonment and even execution may be im­
posed depending upon the enormity of the crime.” Id., 
at 100.

The substantive limits imposed by the Eighth Amend­
ment on what can be made criminal and punished were 
discussed in Robinson v. California, 370 U. S. 660 (1962). 
The Court found unconstitutional a state statute that 
made the status of being addicted to a narcotic drug a 
criminal offense. I t held, in effect, that it is “cruel and 
unusual” to impose any punishment at all for the mere 
status of addiction. The cruelty in the abstract of the 
actual sentence imposed was irrelevant: “Even one day 
in prison would be cruel and unusual punishment for the 
‘crime’ of having a common cold.” Id., at 667. Most 
recently, in Furman v. Georgia, 408 U. S. 238 (1972), 
three Justices in separate concurring opinions found the 
Eighth Amendment applicable to procedures employed 
to select convicted defendants for the sentence of death.

I t is clear from the foregoing precedents that the 
Eighth Amendment has not been regarded as a static

18 The Court remarked on the fact that the law under review 
“has come to us from a government of a different form and genius 
from ours,” but it also noted that the punishments it inflicted “would 
have those bad attributes even if they were found in a Federal en­
actment and not taken from an alien source.” 217 U. S., at 377.



16 GREGG v. GEORGIA

concept. As Chief Justice Warren said, in an oft-quoted 
phrase, “ [t]he Amendment must draw its meaning from 
the evolving standards of decency that mark the progress 
of a maturing society.” Trop v. Dulles, supra, at 101. 
See also Jackson v. Bishop, 404 F. 2d 571, 579 (CA8 
1968). Cf. Robinson v. California, supra, at 666. Thus, 
an assessment of contemporary values concerning the 
infliction of a challenged sanction is relevant to the 
application of the Eighth Amendment. As we develop 
below more fully, see pp. 18-19, infra, this assessment 
does not call for a subjective judgment. I t requires, 
rather, that we look to objective indicia that reflect the 
public attitude toward a given sanction.

But our cases also make clear that public perceptions 
of standards of decency with respect to criminal sanctions 
are not conclusive. A penalty also must accord with 
“the dignity of man,” which is the “basic concept under­
lying the Eighth Amendment.” Trop v. Dulles, supra, at 
100 (plurality opinion). This means, at least, that the 
punishment not be “excessive.” When a form of punish­
ment in the abstract (in this case., whether capital pun­
ishment may ever be imposed as a sanction for murder) 
rather than in the particular (the propriety of death as a 
penalty to be applied to a specific defendant for a spe­
cific crime) is under consideration, the inquiry into 
“excessiveness” has two aspects. First, the punishment 
must not involve the unnecessary and wanton infliction 
of pain. Furman v. Georgia, supra, at 392-393 (B ur­
ger, C. J., dissenting). See Wilkerson v. Utah, 99 
U. S., at 136; Weems v. United States, 217 U. S., at 381. 
Second, the punishment must not be grossly out of pro­
portion to the severity of the crime. Trop v. Dulles, 
supra, at 100 (plurality opinion) (dictum) ; Weems v. 
United States, supra, at 367.



GREGG v. GEORGIA 17

B
Of course, the requirements of the Eighth Amend­

ment must be applied with an awareness of the limited 
role to be played by the courts. This does not mean 
that judges have no role to play, for the Eighth Amend­
ment is a restraint upon the exercise of legislative 
power.

‘'Judicial review, by definition, often involves a con­
flict between judicial and legislative judgment as to 
what the Constitution means or requires. In this 
respect, Eighth Amendment cases come to us in no 
different posture. I t seems conceded by all that 
the Amendment imposes some obligations on the 
judiciary to judge the constitutionality of punish­
ment and that there are punishments that the 
Amendment w'ould bar whether legislatively ap­
proved or not.” Furman v. Georgia, supra, at 313- 
314 (White , J., concurring).

See also id., at 433 (Powell, J., dissenting).19
But, while we have an obligation to insure that con­

19 Although legislative measures adopted by the people’s chosen 
representatives provide one important means of ascertaining con­
temporary values, it is evident that legislative judgments alone 
cannot be determinative of Eighth Amendment standards since that 
Amendment was intended to safeguard individuals from the abuse 
of legislative power. See Weems v. United States, supra, a t 371- 
373; Furman v. Georgia, supra, at 258-269 (Brennan, J., concur­
ring). Robinson v. California, 370 U. S. 660 (1962), illustrates the 
proposition that penal laws enacted by state legislatures may violate 
the Eighth Amendment because “in the light of contemporary human 
knowledge” they “would doubtless be universally thought- to be an 
infliction of cruel and unusual punishment.” Id., at 666. At the 
time of Robinson nine States -in addition to California had criminal 
laws that punished addiction similar to the law declared unconstitu­
tional in Robinson. See Brief for Appellant in Robinson v. Califor­
nia, No. 61-554, a t 15.



18 GREGG v. GEORGIA

stitutional bounds are not overreached, we may not act 
as judges as we might as legislators.

“Courts are not representative bodies. They are 
not designed to be a good reflex of a democratic 
society. Their judgment is best informed, and 
therefore most dependable, within narrow limits. 
Their essential quality is detachment, founded on 
independence. History teaches that the independ­
ence of the judiciary is jeopardized when courts 
become embroiled in the passions of the day and 
assume primary responsibility in choosing between 
competing political, economic and social pressures.” 
Dennis v. United States, 341 U. S. 494, 525 (1951) 
(Frankfurter, J., concurring in affirmance).20

Therefore, in assessing a punishment selected by a 
democratically elected legislature against the constitu­
tional measure, we presume its validity. We may not 
require the legislature to select the least severe penalty 
possible so long as the penalty selected is not cruelly 
inhumane or disproportionate to the crime involved. 
And a heavy burden rests on those who would attack 
the judgment of the representatives of the people.

This is true in part because the constitutional test is 
intertwined with an assessment of contemporary stand­
ards and the legislative judgment weighs heavily in 
ascertaining such standards. “ [I]n  a democratic society 
legislatures, not courts, are constituted to respond to the 
will and consequently the moral values of the people.” 
Furman v. Georgia, 408 U. S., at 383 (B urger, C. J., dis­

20 See also Furman v. Georgia, supra, at 411 (Blackmun, J., 
dissenting):
“We should not allow our personal preferences as to the wisdom of 
legislative and congressional action, or our distaste for such action, 
to guide our judicial decision in cases such as these. The tempta­
tions to cross that policy line are very great.”



GREGG v. GEORGIA 19

senting). The deference we owe to the decisions of the 
state legislatures under our federal system, id., at 465-470 
(R e h n q u is t , J., dissenting), is enhanced where the speci­
fication of punishments is concerned, for “these are pecu­
liarly questions of legislative policy.” Gore v. United 
States, 357 U. S. 386, 393 (1958). Cf. Robinson v. Cali­
fornia, 370 U. S., at 664-665; Trop v. Dulles, 356 U. S., 
at 103 (plurality opinion); In  re Kemmler, 136 U. S., 
at 447. Caution is necessary lest this Court become, 
“under the aegis of the Cruel and Unusual Punishment 
Clause, the ultimate arbiter of the standards of crim­
inal responsibility . . . throughout the country.” Powell 
v. Texas, 392 U. S. 514, 533 (1968). A decision 
that a given punishment is impermissible under the 
Eighth Amendment cannot be reversed short of a consti­
tutional amendment. The ability of the people to ex­
press their preference through the normal democratic 
processes, as well as through ballot referenda, is 
shut off. Revisions cannot be made in the light of fur­
ther experience. See Furman v. Georgia, supra, at 461- 
462 ( P ow ell, J., dissenting).

C
In the discussion to this point we have sought to iden­

tify the principles and considerations that guide a court 
in addressing an Eighth Amendment claim. We now 
consider specifically whether the sentence of death for 
the crime of murder is a per se violation of the Eighth 
and Fourteenth Amendments to the Constitution. We 
note first that history and precedent strongly support a 
negative answer to this question.

1
The imposition of the death penalty for the crime of 

murder has a long history of acceptance both in the



20 GREGG v. GEORGIA

United States and in England. The common-law rule 
imposed a mandatory death sentence on all convicted 
murderers. McGautha v. California, 402 U. S., at 197- 
198. And the penalty continued to be used into 
the 20th century by most American States, although the 
breadth of the common-law rule was diminished, initially 
by narrowing the class of murders to be punished by 
death and subsequently by widespread adoption of laws 
expressly granting juries the discretion to recommend 
mercy. Id., at 199-200. See Woodson v. North Caro­
lina, post, p . ---- .

I t  is apparent from the text of the Constitution it­
self that the existence of capital punishment was ac­
cepted by the Framers. At the time the Eighth Amend­
ment was ratified, capital punishment was a common 
sanction in every State. Indeed, the First Congress of 
the United States enacted legislation providing death 
as the penalty for specified crimes. 1 Stat. 112 (1790). 
The Fifth Amendment, adopted at the same time as the 
Eighth, contemplated the continued existence of the capi­
tal sanction by imposing certain limits on the prosecution 
of capital cases:

“No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment 
or indictment of a Grand Jury . . . ; nor shall any 
person be subject for the same offense to be twice 
put in jeopardy of life or limb; . . . nor be deprived 
of life, liberty, or property, without due process of 
law. . .

And the Fourteenth Amendment, adopted over three- 
quarters of a century later, similarly contemplates the 
existence of the capital sanction in providing that no 
State shall deprive any person of “life, liberty, or prop­
erty” with out due process of law.

For nearly two centuries, this Court, repeatedly and



GREGG v. GEORGIA 21

often expressly, has recognized that capital punishment 
is not invalid per se. In Wither son v. Utah, 99 U. S., at 
134-135, where the Court found no constitutional vio­
lation in inflicting death by public shooting, it said:

“Cruel and unusual punishments are forbidden by 
the Constitution, but the authorities referred to are 
quite sufficient to show that the punishment of 
shooting as a mode of executing the death penalty 
for the crime of murder in the first degree is not in­
cluded in that category, within the meaning of the 
eighth amendment.”

Rejecting the contention that death by electrocution was 
“cruel and unusual,” the Court in In  re Kemmler, 136 
U. S., at 447, reiterated:

. . the punishment of death is not cruel, within 
the meaning of that word as used in the Constitu­
tion. I t  implies there something inhuman and bar­
barous, something more than the mere extinguish­
ment of life.”

Again, in Louisiana ex rel. Francis v. Resweber, 329 
U. S., at 464, the Court remarked: “The cruelty against 
which the Constitution protects a convicted man is 
cruelty inherent in the method of punishment, not the 
necessary suffering involved in any method employed to 
extinguish life humanely.” And in Trap v. Dulles, 356 
U. S., at 99, Chief Justice Warren, for four Justices, 
wrote:

“Whatever the arguments may be against capital 
punishment, both on moral grounds and in terms 
of accomplishing the purposes of punishment . . . 
the death penalty has been employed throughout 
our history, and, in a day when it is still widely ac­
cepted, it cannot be said to violate the constitutional 
concept of cruelty.”



22 GREGG v. GEORGIA

Four years ago, the petitioners in Furman and its 
companion cases predicated their argument primarily 
upon the asserted proposition that standards of de­
cency had evolved to the point where capital punish­
ment no longer could be tolerated. The petitioners in 
those cases said, in effect, that the evolutionary process 
had come to an end, and that standards of decency re­
quired that the Eighth Amendment be construed finally 
as prohibiting capital punishment for any crime regard­
less of its depravity and impact on society. This view 
was accepted by two Justices.21 Three other Justices 
were unwilling to go so far; focusing on the procedures 
by which convicted defendants were selected for the 
death penalty rather than on the actual punishment 
inflicted, they joined in the conclusion that the statutes 
before the Court were constitutionally invalid.22

The petitioners in the capital cases before the Court 
today renew the “standards of decency” argument, but 
developments during the four years since Furman have 
undercut substantially the assumptions upon which 
their argument rested. Despite the continuing debate, 
dating back to the 19th century, over the morality and 
utility of capital punishment, it is now evident that a 
large proportion of American society continues to regard 
it as an appropriate and necessary criminal sanction.

The most marked indication of society’s endorsement 
of the death penalty for murder is the legislative re­
sponse to Furman. The legislatures of at least 35 
States23 have enacted new statutes that provide for the

21 See concurring opinions of Mr. J ustice Brennan and Mr. 
J ustice Marshall, 408 U. S., at 257 and 314.

22 See concurring opinions of Mr. Justice Douglas, Mr. J ustice 
Stewart, and Mr. J ustice White , 408 U. S., at 240, 306, and 310.

23 Ala. H. B. 212, §§ 2-4, 6-7 (1975); Ariz. Rev. Stat. Ann. §§ 13- 
452 to 13-454 (Supp. 1973); Ark. Stat. Ann. § 41-4706 (Cum. Supp. 
1975); Cal. Penal Code §§ 190.1, 209, 219 (West Supp. 1974); Col.



GREGG v. GEORGIA 23

death penalty for at least some crimes that result in the 
death of another person. And the Congress of the 
United States, in 1974, enacted a statute providing the 
death penalty for aircraft piracy that results in death.* 17 * * * * * * 24 
These recently adopted statutes have attempted to ad­
dress the concerns expressed by the Court in Furman 
primarily (i) by specifying the factors to be weighed and 
the procedures to be followed in deciding when to im­
pose a capital sentence, or (ii) by making the death 
penalty mandatory for specified crimes. But all of the

S. .B. No. 46, §4 (1974 Sess.); Gen. Stat. Conn. §§ 53a—25, 53a-35 
(b), 53a-46a, 53a-54b (1975); 11 Del. Code Ann. §4209 (Cum. 
Supp. 1975); Fla. Stat. Ann. §§ 782.04, 921.141 (Cum. Supp. 1975- 
1976); Ga. Code Ann. §§26-3102, 27-2528, 27-2534.1, 27-2537 
(Supp. 1975); Idaho Code § 18-4004 (Cum. Supp. 1975); 111. Rev. 
Stat. c. 38, §§ 9-1, 1005-5-3, 1005-8-1A (1973); Burns Ind. Stat, 
Ann. §35-13-4-1 (1975); 16 Ivy. Rev. Stat. § 507.020 (1975) ; La. 
Rev. Stat. Ann. § 14:30 (Supp. 1974); Md. Code Ann., Art, 27, § 413 
(Cum. Supp. 1975); Miss. Code Ann. §§ 97-3-19, 97-3-21, 97-25-55, 
99-17-20 (Cum. Supp. 1975); Vernon’s Mo. Stat. Ann. § 559.009, 
559.05 (Supp. 1976); Mont, Rev. Codes Ann. § 94-5-105 (Spec. 
Crim. Code Supp. 1973), as amended, c. 262, 43d Legislative Assem­
bly (Mar. 21, 1974); Neb. Rev. Stat. §§ 28-401, 29-2521 to 29-2523 
(Cum. Supp. 1974); Nev. Rev. Stat, § 200.030 (1973): N. H. Rev. 
Stat. Ann. § 630:1 (1974); N. M, Stat, Ann § 40A-29-2 (Supp. 
1973); N. Y. Penal Law § 60.06 (added by S. 21028 (Cal. No. 
1548) (Ass. B 11474-A), N. Y. Laws 1974) ; N. C. Gen. Stat, § 14-
17 (Cum. Supp. 1974); Ohio Rev. Code Ann. §§ 2929.02-2929.04 
(Page Spec. Supp. 1973); 21 Okla. Stat, Ann. §701.1-701.3 (Supp.
1973); Pa. Act. No. 46, 158th General Assembly (Mar. 26, .1974);
R. I. Gen. Laws Ann. § 11-23-2 (Supp. 1975); S. C. Code § 16-52 
(Cum. Supp. 1975); Tenn. Code Ann. §§ 39-2402, 39-2406 (1975) ;
Vernon’s Tex. Pen. Code Ann. § 19.03 (a) (1974); Utah Code Ann.
§§ 76-3-206-207, 76-5-202 (Supp. 1975); Va. Code § 18.2-10, 18.2-
31 (1975); Wash. Rev. Code §§ 9A.32.045, 9A.32.046 (Supp. 1975):
Wyo. Stat. Ann. §6-54 (Cum. Supp. 1975).

24 Antihijacking Act of 1974, 49 U. S. C. §§ 1472 (i), (n) (Supp. 
IV).



24 GREGG v. GEORGIA

post-Furman statutes make clear that capital punish­
ment itself has not been rejected by the elected rep­
resentatives of the people.

In the only statewide referendum occurring since Fur­
man and brought to our attention, the people of Califor­
nia adopted a constitutional amendment that authorized 
capital punishment, in effect negating a prior ruling by 
the Supreme Court of California in People v. Anderson, 
6 Cal. 3d 628, 493 P. 2d 880, cert, denied, 406 U. S. 958 
(1972), that the death penalty violated the California 
Constitution.24 25

The jury also is a significant and reliable objective 
index of contemporary values because it is so directly 
involved. See Furman v. Georgia, 408 U. S., at 439-440 
P ow ell, J., dissenting). See generally Powell, Jury 
Trial of Crimes, 23 Wash. & Lee L. Rev. 1 (1966). 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 contempo­
rary community values and the penal system.” Wither­
spoon v. Illinois, 391 U. S. 510, 519 n. 15 (1968). I t may

24 Antihijacking Act of 1974, 49 U. S. C. §§ 1372 (i), (n) (Supp. 
IV).

25 In 1968, the people of Massachusetts were asked “Shall the 
commonwealth . . . retain the death penalty for crime?” A sub­
stantial majority of the ballots cast answered “Yes.” Of 2,348,005 
ballots cast, 1,159,348 voted “Yes,” 730,649 voted “No,” and 458,008 
were blank. See Commonwealth v. O’Neal, 339 N. E. 2d 676, 708 
and n. 1 (Mass. 1975) (Reardon, J., dissenting). A December 1972 
Gallup poll indicated that 57% of the people favored the death pen­
alty, while a June 1973 Harris survey showed support of 59%. Vid- 
mar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan. L. 
Rev. 1245, 1249 n. 22 (1974). In a December 1970 referendum, the 
voters of Illinois also rejected the abolition of capital punishment 
by 1,218,791 votes to 676,302 vo te . Report of the Governor’s Study 
Commn. on Capital Punishment, p. 43 (Pa. 1973).



GREGG v. GEORGIA 25

be true that evolving standards have influenced juries in 
recent decades to be more discriminating in imposing 
the sentence of death.26 27 But the relative infrequency of 
jury verdicts imposing the death sentence does not indi­
cate 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 irre­
vocable of sanctions should be reserved for a small 
number of extreme cases. See Furman v, Georgia, 
supra, at 388 (B urger, C. J., dissenting). Indeed, the 
actions of juries in many States since Furman is fully 
compatible with the legislative judgments, reflected in 
the new statutes, as to the continued utility and necessity 
of capital punishment in appropriate cases. At the close 
of 1974 at least 254 persons had been sentenced to death 
since Furman?1 and by the end of March 1976, more 
than 460 persons were subject to death sentences.

As we have seen, however, the 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. Trop 
v. Dulles, 356 U. S., at 100 (plurality opinion). Al­
though we cannot “invalidate a category of penalties be­

26 The number of prisoners who received death sentences in the 
years from 1961 to 1972 varied from a high of 140 in 1961 to a 
low of 75 in 1972, with wide fluctuations in the intervening years: 
103 in 1962; 93 in 1963; 106 in 1964; 86 in 1965; 118 in 1966; 85 
in 1967; 102 in 1968; 97 in 1969; 127 in 1970; and 104 in 1971. 
Department of Justice, Capital Punishment 1971-1972, National 
Prisoner Statistics Bulletin, p. 20 (December 1974). I t has been 
estimated that before Furman less than 20% of those convicted 
of murder were sentenced to death in those States that authorized 
capital punishment. See Woodson v. North Carolina, post, p. —  
n. 31.

27 Law Enforcement Assistance Administration, Capital Punish­
ment 1974, p. 1 and Table 7, p. 26 (1975).



26 GREGG v. GEORGIA

cause we deem less severe penalties adequate to serve 
the ends of penology,” Furman v. Georgia, supra, at 
451 (P o w ell , J., dissenting), the sanction imposed cannot 
be so totally without penological justification that it re­
sults in the gratuitous infliction of suffering. Cf. Wil- 
kerson v. Utah, 99 U. S., at 135-136 ; In  re Kemmier, 136 
U. S., at 447.

The death penalty is said to serve two principal social 
purposes: retribution and deterrence of capital crimes 
by prospective offenders.2 * * 28

In part, capital punishment is an expression of society’s 
moral outrage at particularly offensive conduct.29 This 
function may be unappealing to many, but it is essential 
in an ordered society that asks its citizens to rely on 
legal processes rather than self-help to vindicate their 
wrongs.

“The instinct for retribution is part of the nature 
of man, and channeling that instinct in the adminis­
tration of criminal justice serves an important pur­
pose in promoting the stability of a society governed 
by law. When people begin to believe that orga­
nized society is unwilling or unable to impose upon 
criminal offenders the punishment they ‘deserve,’ 
then there are sown the seeds of anarchy—of self- 
help, vigilante justice, and lynch law.” Furman v 
Georgia, supra, at 308 (Stew art, J., concurring).

“Retribution is no longer the dominant objective of the 
criminal law,” Williams v. New York, 337 U. S. 241, 248 
(1949), but neither is it a forbidden objective nor one

2S Another purpose that has been discussed is the incapacitation
of dangerous criminals and the consequent prevention of crimes 
that they may otherwise commit in the future. See People v. An-
denson, 6 Cal. 3d 628, 651, 493 P. 2d 880, 896, cert, denied, 406 U. S. 
958 (1972); Commonwealth v. O’Neal, 339 N. E. 2d 676, 685-686
(Mass. 1975).

29 See Packer, The Limits of the Criminal Sanction 43-44 (1968).



GREGG v. GEORGIA 27

inconsistent with our respect for the dignity of men. 
Furman v. Georgia, supra, at 394-395 (B urger, C. J., 
dissenting), 452-454 ( P ow ell , J., dissenting) ; Powell v. 
Texas, 392 U. S., at 531, 535-536. Indeed, 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.30

Statistical attempts to evaluate the worth of the death 
penalty as a deterrent to crimes by potential offenders 
have occasioned a great deal of debate.31 The results

30 Lord Justice Denning, Master of the Rolls of the Court of 
Appeal in England, spoke to this effect before the British Royal 
Commission on Capital Punishment:
“Punishment is the way in which society expresses its denunciation 
of wrong doing: and, in order to maintain respect for law, it is es­
sential that the punishment inflicted for grave crimes should ade­
quately reflect the revulsion felt by the great majority of citizens 
for them. I t  is a mistake to consider the objects of punishment
as being deterrent or reformative or preventive and nothing else___
The truth is that some crimes are so outrageous that society insists 
on adequate punishment, because the wrong-doer deserves it, irre­
spective of whether it is a deterrent or not.” Royal Commission on 
Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 
(1950).

A contemporary writer has noted more recently that opposition 
to capital punishment “has much more appeal when the discussion is 
merely academic than when the community is confronted with a 
crime, or a series of crimes, so gross, so heinous, so cold-blooded 
that anything short of death seems an inadequate response.” Rasp­
berry, Death Sentence, The Washington Post, March 12, 1976, at 
A27, col. 5-6.

31 See, e. g., Peck, The Deterrent Effect of Capital Punishment: 
Ehrlich and His Critics, 85 Yale L. J. 359 (1976); Baldus & Cole, 
A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich 
on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 
(1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehr-



28 GREGG v. GEORGIA

simply have been inconclusive. As one opponent of 
capital punishment has said:

. . after all possible inquiry, including the prob­
ing of all possible methods of inquiry, we do not 
know, and for systematic and easily visible reasons 
cannot know, what the truth about this ‘deterrent’ 
effect may be . . .  .

The inescapable flaw is . . . that social conditions 
in any state are not constant through time, and that 
social conditions are not the same in any two states. 
If an effect were observed (and the observed effects, 
one way or another, are not large) then one could 
not at all tell whether any of this effect is attribut­
able to the presence or absence of capital punish­
ment. A ‘scientific’—that is to say, a soundly 
based—conclusion is simply impossible, and no 
methodological path out of this tangle suggests it­
self.” C. Black, Capital Punishment: The Inevita­
bility of Caprice and Mistake 25-26 (1974).

Although some of the studies suggest that the death 
penalty may not function as a significantly greater de­
terrent than lesser penalties,32 there is no convincing 
empirical evidence either supporting or refuting this view. 
We may nevertheless assume safely that there are mur­
derers, 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 signifi­

lich’s Research on Capital Punishment, 85 Yale L. J. 187 (1975); 
Ehrlich, The Deterrent Effect of Capital Punishment: A Question 
of Life and Death, 65 Am. Econ. Rev. 397 (1975); Hook, The Death 
Sentence, in The Death Penalty in America 146 (H. Bedau ed. 
1967); Selim, The Death Penalty (1959).

32 See, e. g., The Death Penalty in America 258-332 (H. Bedau 
ed. 1967); Report of the Royal Commission on Capital Punishment, 
1949-1953, Cmd. 8932.



GREGG v. GEORGIA 29

cant deterrent. There are carefully contemplated mur­
ders, such as murder for hire, where the possible penalty 
of death may well enter into the cold calculus that pre­
cedes the decision to act.33 And there are some cate­
gories of murder, such as murder by a life prisoner, where 
other sanctions may not be adequate.34

The value of capital punishment as a deterrent of 
crime is a complex factual issue the resolution of which 
properly rests with the 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. Furman v. Georgia, 408 
U. S., at 403^05 (B urger, C. J., dissenting). Indeed, 
many of the post-Furman statutes reflect just such a 
responsible effort to define those crimes and those crim­
inals for which capital punishment is most probably an 
effective deterrent.

In sum, we cannot say that the judgment of the Geor­
gia legislature that capital punishment may be necessary

33 Other types of calculated murders, apparently occurring with 
increasing frequency, include the use of bombs or other means of 
indiscriminate killings, the extortion murder of hostages or kidnap 
victims, and the execution-style killing of witnesses to a crime.

34 We have been shown no statistics breaking down the total num­
ber of murders into the categories described above. The overall 
trend in the number of murders committed in the nation, however, 
has been upward for some time. In 1964, reported murders totaled 
an estimated 9,250. During the ensuing decade, the number reported 
increased 123%, until it totalled approximately 20,600 in 1974. In 
1972, the year Furman was announced, the total estimated was 18,- 
550. Despite a fractional decrease in 1975 as compared with 1974, 
the number of murders increased in the three years immediately 
following Furman to approximately 20,400, an increase of almost 
10%. See Federal Bureau of Investigation, Crime in the United 
States, Uniform Crime Reports, for 1964, 1972, and 1974; 1975 Pre­
liminary Annual Release, Uniform Crime Reports.



30 GREGG v. GEORGIA

in some cases is clearly wrong. Considerations of fed­
eralism, as well as respect for the ability of a legislature 
to evaluate, in terms of its particular state the moral 
consensus concerning the death penalty and its social 
utility as a sanction, require us to conclude, in the ab­
sence of more convincing evidence, that the infliction of 
death as a punishment for murder is not without justi­
fication and thus is not unconstitutionally severe.

Finally, we must consider whether the punishment of 
death is disproportionate in relation to the crime for 
which it is imposed. There is no question that death as 
a punishment is unique in its severity and irrevocability. 
Furman v. Georgia, supra, at 286-291 (B r e n n a n , J., 
concurring), 306 (S tew art, J., concurring). When a 
defendant’s life is at stake, the Court has been particu­
larly sensitive to insure that every safeguard is observed. 
Powell v. Texas, 287 U. S. 45, 71 (1932); Reid v. Covert, 
354 U. S. 1, 77 (1957) (Harlan, J., concurring in the re­
sult). But we are concerned here only with the imposi­
tion of capital punishment for the crime of murder, and 
when a life has been taken deliberately by the offender,35 
we cannot say that the punishment is invariably dispro­
portionate to the crime. I t is an extreme sanction, suit­
able to the most extreme of crimes.

We hold that the death penalty is not a form of pun­
ishment that may never be imposed, regardless of the 
circumstances of the offense, regardless of the character 
of the offender, and regardless of the procedure followed 
in reaching the decision to impose it.

35 We do not address here the question whether the taking of the 
eriminars life is a proportionate sanction where no victim has been 
deprived of life—for example, when capital punishment is imposed 
for rape, kidnapping, or armed robbery that does not result in the 
death of any human being.



GREGG v. GEORGIA 31

IV
We now consider whether Georgia may impose the 

death penalty on the petitioner in this case.

A
While Furman did not hold that the infliction of the 

death penalty per se violates the Constitution’s ban on 
cruel and unusual punishments, it did recognize that the 
penalty of death is different in kind from any other 
punishment imposed under our system of criminal 
justice. Because of the uniqueness of the death penalty, 
Furman held that it could not be imposed under sentenc­
ing procedures that created a substantial risk that it 
would be inflicted in an arbitrary and capricious manner. 
M r . J ustice  W h it e  concluded that “the death penalty is 
exacted with great infrequency even for the most atro­
cious crimes and . . . there is no meaningful basis for 
distinguishing the few cases in which it is imposed from 
the many cases in which it is not.” 408 U. S., at 313. 
Indeed, the death sentences examined by the Court in 
Furman were “cruel and unusual in the same way that 
being struck by lightning is cruel and unusual. For, of 
all the people convicted of [capital crimes], many just 
as reprehensible as these, the petitioners [in Furman 
were] among a capriciously selected random handful 
upon which the sentence of death has in fact been im­
posed. . . .  [T]he Eighth and Fourteenth Amendments 
cannot tolerate the infliction of a sentence of death under 
legal systems that permit this unique penalty to be so 
wantonly and so freakishly imposed.” Id., at 309-310 
(S tew art, J., concurring).36

36 This view was expressed by other Members of the Court who 
concurred in the judgments. See 408 U. S., at 255-257 (Douglas, J., 
concurring); 291-295 (Brennan, J., concurring). The dissenters 
viewed this concern as the basis for the Furman decision: “The de­



32 GREGG v. GEORGIA

Furman mandates that where discretion is afforded a 
sentencing body on a matter so grave as the determina­
tion of whether a human life should be taken or spared, 
that discretion must be suitably directed and limited so 
as to minimize the risk of wholly arbitrary and capricious 
action.

I t  is certainly not a novel proposition that discretion 
in the area of sentencing be exercised in an informed 
manner. We have long recognized that “ [f]or the deter­
mination of sentences, justice generally requires . . . that 
there be taken into account the circumstances of the 
offense together with the character and propensities of 
the offender.” Pennsylvania v. Ashe, 302 U. S. 51, 55 
(1937). See also Williams v. Oklahoma, 358 U. S. 576, 
585 (1959); Williams v. New York, 337 U. S. 241, 247 
(1949).37 Otherwise, “the system cannot function in
a consistent and rational manner.” ABA Standards 
Relating to Sentencing Alternatives and Procedures 
§4.1 (a), Commentary, p. 201. See also President’s 
Comm’n on Law Enforcement & Administration of Jus­
tice, The Challenge of Crime in a Free Society 144 
(1967); Model Penal Code § 7.07, Comment 1, pp. 52-53 
(Tent. Draft No. 2, 1954).38

cisive grievance of the opinions . . .  is that the present system of dis­
cretionary sentencing in capital cases has failed to produce even 
handed justice; . . . that the selection process has followed no ra­
tional pattern.” Id., at 398-399 (Burger, C. J., dissenting).

37 The Federal Rules of Criminal Procedure require as a matter of 
course that a presentence report containing information about a 
defendant’s background be prepared for use by the sentencing judge. 
Fed. Rule Crim. Proc. 32 (c). The importance of obtaining accurate 
sentencing information is underscored by the Rule’s direction to 
the sentencing court to “afford the defendant or his counsel an 
opportunity to comment [on the report] and, at the discretion of 
the court, to introduce testimony or other information relating to 
any alleged factual inaccuracy contained in the presentence report.” 
Red. Rule Crim. Proc. 32 (c) (3) (A).

38 Indeed, we hold elsewhere today that in capital cases it is con-



GREGG v. GEORGIA 33

The cited studies assumed that the trial judge would 
be the sentencing authority. If an experienced trial 
judge, who daily faces the difficult task of imposing 
sentences, has a vital need for accurate information 
about a defendant and the crime he committed in order 
to be able to impose a rational sentence in the typical 
criminal case, then accurate sentencing information is 
an indispensable prerequisite to a reasoned determina­
tion of whether a defendant shall live or die by a jury 
of people who may never before have made a sentenc­
ing decision.

Jury sentencing has been considered desirable in 
capital cases in order “to maintain a link between con­
temporary community values and the penal system—a 
link without which the determination of punishment 
could hardly reflect ‘the evolving standards of decency 
that mark the progress of a maturing society.’ ” 39 But 
it creates special problems. Much of the information 
that is relevant to the sentencing decision may have no 
relevance to the question of guilt, or may even be 
extremely prejudicial to a fair determination of that 
question.40 This problem, however, is scarcely insur­
mountable. Those who have studied the question sug­
gest that a bifurcated procedure—one in which the

stitutionally required that the sentencing authority have information 
sufficient to enable it to consider the character and individual cir­
cumstances of a- defendant prior to imposition of a death sentence. 
See Woodson v. North Carolina, post, pp. 22-24.

39 Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15 (1968), quoting 
Trop v. Dulles, 356 U. S. 86, 101 (1958). See also Report of the 
Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, 
II571.

40 In other situations this Court has concluded that a jury cannot 
be expected to consider certain evidence before it on one issue, 
but not another. See, e. g„ Bruton v. United States, 391 U. S. 123 
(1968); Jackson v. Denno, 378 IT. S. 368 (1964).



34 GREGG v. GEORGIA

question of sentence is not considered until the determi­
nation of guilt has been made—is the best answer. The 
drafters of the Model Penal Code concluded that if a 
unitary proceeding is used

“the determination of punishment must be based 
on less than all the evidence that has a bearing on 
that issue, such for example as a previous criminal 
record of the accused, or evidence must be admitted 
on the ground that it is relevant to sentence, though 
it would be excluded as irrelevant or prejudicial with 
respect to guilt or innocence alone. Trial lawyers 
understandably have little confidence in a solution 
that admits the evidence and trusts to an instruction 
to the jury that it should be considered only in 
determining the penalty and disregarded in assessing 
guilt.

. . The obvious solution . . .  is to bifurcate the 
proceeding, abiding strictly by the rules of evidence 
until and unless there is a conviction, but once guilt 
has been determined opening the record to further 
information that is relevant to sentence. This is 
the analogue of the procedure in the ordinary case 
when capital punishment is not in issue; the court 
conducts a separate inquiry before imposing sen­
tence.” Model Penal Code § 201.6, Comment 5, 
pp. 7T-75 (Tent. Draft No. 9, 1959).

See also Spencer v. Texas, 385 U. S. 554, 567-569; Re­
port of the Royal Commision on Capital Punishment, 
1949-1953, Cmd. 8932, fflf 555, 574; Knowlton, Problems 
of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 
1099, 1135-1136 (1953). When a human life is at stake 
and when the jury must have information prejudicial 
to the question of guilt but relevant to the question of 
penalty in order to impose a rational sentence, a bifur­



GREGG v. GEORGIA 35

cated system is more likely to ensure elimination of the 
constitutional deficiencies identified in Furman.*1

But the provision of relevant information under fair 
procedural rules is not alone sufficient to guarantee that 
the information will be properly used in the imposition 
of punishment, especially if sentencing is performed by a 
jury. Since the members of a .jury will have had little, 
if any, previous experience in sentencing, they are un­
likely to be skilled in dealing with the information they 
are given. See ABA Standards Relating to Sentencing 
Alternatives & Procedures, § 1.1 (b), Commentary, pp. 
46-47; President’s Comm’n on Law Enforcement & Ad­
ministration of Justice: The Challenge of Crime in a 
Free Society, Task Force Report : The Courts 26 (1967). 
To the extent that this problem is inherent in jury sen­
tencing, it may not be totally correctible. I t  seems clear, 
however, that the problem will be alleviated if the jury 
is given guidance regarding the factors about the crime 
and the defendant that the State, representing organized 
society, deems particularly relevant to the sentencing 
decision.

The idea that a jury should be given guidance in its 
decisionmaking is also hardly a novel proposition. Juries 41

41 In Jackson v. United States, 390 U. S. 570 (1968), the Court 
considered a statute that provided that if a defendant pleaded 
guilty, the maximum penalty would be life imprisonment, but if a 
defendant chose to go to trial, the maximum penalty upon convic­
tion was death. In holding that the statute was constitutionally 
invalid, the Court noted:
“The inevitable effect of any such provision is, of course, to dis­
courage assertion of the Fifth Amendment right not to plead guilty 
and to deter exercise of the Sixth Amendment right to demand a 
jury trial. If the provision had no other purpose or effect than 
to chill the assertion of constitutional rights by penalizing those 
who choose to exercise them, then it would be patently unconstitu­
tional.” Id., a t 581.



36 GREGG v. GEORGIA

are invariably given careful instructions on the law and 
how to apply it before they are authorized to decide the 
merits of a lawsuit. I t  would be virtually unthinkable 
to follow any other course in a legal system that has tra­
ditionally operated by following prior precedents and 
fixed rules of law.42 See Gasoline Products Co. v. 
Champlin Refining Co., 283 U. S. 494, 498; Fed. 
Rule Civ. Proc. 51. When erroneous instructions are 
given, retrial is often required. I t is quite simply a 
hallmark of our legal system that j uries be carefully and 
adequately guided in their deliberations.

While some have suggested that standards to guide 
a capital jury’s sentencing deliberations are impossible to 
formulate,43 the fact is that such standards have been 
developed. When the drafters of the Model Penal Code 
faced this problem, they concluded “that it is within 
the realm of possibility to point to the main circum­
stances of aggravation and of mitigation that should be 
weighed, and weighed against each other, when they are 
presented in a concrete case.” Model Penal Code 
§ 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) 
(emphasis original).44 While such standards are by ne­

42 But see Md. Const., art. XV, § 5: “In the trial of all criminal 
cases, the jury shall be the Judges of the Law, as well as of fa c t. . .  
See also Md. Code Ann., art. 27, § 593 (1971). Maryland judges, 
however, typically give advisory instructions on the law to the 
jury. See Md. Rule 756; Wilson v. State, 239 Md. 245, 210 A. 2d 
824 (1965).

43 See McGautha v. California, 402 U. S. 183 , 204—207 (1971); 
Report of the Royal Commission on Capital Punishment, 1949-1953, 
Cmd. 8932, If 595.

44 The Model Penal Code proposes the following standards:
“ (3) Aggravating Circumstances.

“ (a) The murder was committed by a convict under sentence of 
imprisonment.



GREGG v. GEORGIA 37

cessity somewhat general, they do provide guidance to 
the sentencing authority and thereby reduce the likeli­
hood that it will impose a sentence that fairly can be

“ (b) The defendant was previously convicted of another murder 
or of a felony involving the use or threat of violence to the person.

“ (c) At the time the murder was committed the defendant also 
committed another murder.

“ (d) The defendant knowingly created a great risk of death to 
many persons.

“ (e) The murder was committed while the defendant was engaged 
or was an accomplice in the commission of, or an attempt to com­
mit, or flight after committing or attempting to commit robbery, 
rape or deviate sexual intercourse by force or threat of force, arson, 
burglary or kidnapping.

“ (f) The murder was committed for the purpose of avoiding or 
preventing a lawful arrest or effecting an escape from lawful custody.

“ (g) The murder was committed for pecuniary gain.
“ (h) The murder was especially heinous, atrocious or cruel, man­

ifesting exceptional depravity.
“ (4) Mitigating Circumstances.

“ (a) The defendant has no significant history of prior criminal 
activity.

“ (b) The murder was committed while the defendant was under 
the influence of extreme mental or emotional disturbance.

“ (c) The victim was a participant in the defendant’s homicidal 
conduct or consented to the homicidal act.

“ (d) The murder was committed under circumstances which the 
defendant believed to provide a moral justification or extenuation 
for his conduct.

“ (e) The defendant was an accomplice in a murder committed 
by another person and his participation in the homicidal act was 
relatively minor.

“ (f) The defendant acted under duress or under the domination 
of another person.

“ (g) At the time of the murder, the capacity of the defendant to 
appreciate the criminality [wrongfulness] of his conduct or to con­
form his conduct to the requirements of law was impaired as a 
result of mental disease or defect or intoxication.

“ (h) The youth of the defendant at the time of the crime.” Model 
Penal Code § 210.6 (Proposed Official Draft, 1962).



38 GREGG v. GEORGIA

called capricious or arbitrary.45 Where the sentencing 
authority is required to specify the factors it relied upon 
in reaching its decision, the further safeguard of mean­
ingful appellate review is available to ensure that death 
sentences are not imposed capriciously or in a freakish 
manner.

In summary, the concerns expressed in Furman that 
the penalty of death not be imposed in an arbitrary or 
capricious manner can be met by a carefully drafted stat­
ute that ensures that the sentencing authority is given 
adequate information and guidance. As a general propo­
sition these concerns are best met by a system that pro­
vides for a bifurcated proceeding at which the sentencing 
authority is apprised of the information relevant to the 
imposition of sentence and provided with standards to 
guide its use of the information.

We do not intend to suggest that only the above- 
described procedures would be permissible under Furman 
or that any sentencing system constructed along these 
general lines would inevitably satisfy the concerns of 
Furman,46 for each distinct system must be examined on 
an individual basis. Rather, we have embarked upon 
this general exposition to make clear that it is possible to 
construct capital-sentencing systems capable of meeting 
Furman’s constitutional concerns.47

45 As Mr. J ustice Brennan noted in McGautha v. California, 
402 U. S. 183, 285-286 (1971) (dissenting opinion):
“ [E]ven if a State’s notion of wise capital sentencing policy is 
such that a policy cannot be implemented through a formula capable 
of mechanical application . . . there is no reason that it should not 
give some guidance to those called upon to render decision.”

46 A system could have standards so vague that they would fail ade­
quately to channel the sentencing decision patterns of juries with 
the result that a pattern of arbitrary and capricious sentencing like 
that found unconstitutional in Furman could occur.

47 In McGautha v. California, 402 U. S. 183 (1971), this Court



GREGG v. GEORGIA 39

B
We now turn to consideration of the constitutionality 

of Georgia’s capital-sentencing procedures. In the wake 
of Furman, Georgia amended its capital punishment stat­
ute, but chose not to narrow the scope of its murder pro­
visions. See Part II, supra. Thus, now as before Fur­
man, in Georgia “ [a] person commits murder when he 
unlawfully and with malice aforethought, either express 
or implied, causes the death of another human being.” 
Ga. Code Ann., § 26-1101 (a) (1972). All persons con­
victed of murder “shall be punished by death or by im­
prisonment for life.” § 26-1101 (c) (1972).

Georgia did act, however, to narrow the class of mur­
derers subject to capital punishment by specifying 10 
statutory aggravating circumstances, one of which must

held that the Due Process Clause of the Fourteenth Amendment 
did not require that a jury be provided with standards to guide its 
decision whether to recommend a sentence of life imprisonment or 
death or that the capital-sentencing proceeding be separated from 
the guilt determination process. McGautha was not an Eighth 
Amendment decision, and to the extent it purported to deal with 
Eighth Amendment concerns, it must be read in light of the opinions 
in Furman v. Georgia. There the Court ruled that death sentences 
imposed under statutes that left juries with untrammeled discretion 
to impose or withhold the death penalty violated the Eighth and 
Fourteenth Amendments. While Furman did not overrule Mc­
Gautha, it is clearly in substantial tension with a broad reading of 
McGautha’s holding. In view of Furman, McGautha can be viewed 
rationally as a precedent only for the proposition that standardless 
jury sentencing procedures were not employed in the cases there 
before the Court so as to violate the Due Process Clause. We note 
that McGautha’s assumption that it is not possible to devise stand­
ards to guide and regularize jury sentencing in capital cases has 
been undermined by subsequent experience. In view of that ex­
perience and the considerations set forth in the text, we adhere to 
Furman’s determination that where the ultimate punishment of 
death is at issue a system of standardless jury discretion violates 
the Eighth and Fourteenth Amendments.



40 GREGG v. GEORGIA

be found by the jury to exist beyond a reasonable doubt 
before a death sentence can ever be imposed.48 In addi­
tion, the jury is authorized to consider any other 
appropriate aggravating or mitigating circumstances. 
§ 27.2534.1 (b) (Supp. 1975). The jury is not required 
to find any mitigating circumstance in order to make a 
recommendation of mercy that is binding on the trial 
court, see § 27-2302 (Supp. 1975), but it must find a 
statutory aggravating circumstance before recommend­
ing a sentence of death.

These procedures require the jury to consider the cir­
cumstances of the crime and the criminal before it rec­
ommends sentence. No longer can a Georgia jury do 
as Furman’s jury did: reach a finding of the defendant’s 
guilt and then, without guidance or direction, decide 
whether he should live or die. Instead, the jury’s at­
tention is directed to the specific circumstances of the 
crime: Was it committed in the course of another capital 
felony? Was it committed for money? Was it com­
mitted upon a peace officer or judicial officer? Was it 
committed in a particularly heinous way or in a manner 
that endangered the lives of many persons? In addition, 
the jury’s attention is focused on the characteristics of 
the person who committed the crime: Does he have a 
record of prior convictions for capital offenses? Are 
there any special facts about this defendant that mitigate 
against imposing capital punishment (e. g., his youth, the 
extent of his cooperation with the police, his emotional 
state at the time of the crime).49 As a result, while 
some jury discretion still exists, “the discretion to be

43 The text of the statute enumerating the various aggravating 
circumstances is set out at n. 9, supra.

49 See Moore v. State, 233 Ga. 861, 865, 213 S. E. 2d 829, 832 
(1975).



GREGG v. GEORGIA 41

exercised is controlled by clear and objective standards 
so as to produce non-discriminatory application.” Coley 
v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615.

As an important additional safeguard against arbitrari­
ness and caprice, the Georgia statutory scheme provides 
for automatic appeal of all death sentences to the State’s 
supreme court. That court is required by statute to re­
view each sentence of death and determine whether it 
was imposed under the influence of passion or prejudice, 
whether the evidence supports the jury’s finding of a 
statutory aggravating circumstance, and whether the 
sentence is disproportionate compared to those sentences 
imposed in similar cases. § 27-2537 (c) (Supp. 1975).

In short, Georgia’s new sentencing procedures require 
as a prerequisite to the imposition of the death penalty, 
specific jury findings as to the circumstances of the 
crime or the character of the defendant. Moreover to 
guard further against a situation comparable to that 
presented in Furman, the Supreme Court of Georgia 
compares each death sentence with the sentences im­
posed on similarly situated defendants to ensure that 
the sentence of death in a particular case is not dis­
proportionate. On their face these procedures seem to 
satisfy the concerns of Furman. No longer should 
there be “no meaningful basis for distinguishing 
the few cases in which [the death penalty] is imposed 
from the many cases in which it is not.” 408 U. S., at 
313 (W h it e , J., concurring).

The petitioner contends, however, that the changes 
in the Georgia sentencing procedures are only cosmetic, 
that the arbitrariness and capriciousness condemned by 
Furman continue to exist in Georgia—both in traditional 
practices that still remain and in the new sentencing pro­
cedures adopted in response to Furman.



42 GREGG v. GEORGIA

1
First, the petitioner focuses on the opportunities for 

discretionary action that are inherent in the processing 
of any murder case under Georgia law. He notes that 
the state prosecutor has unfettered authority to select 
those persons whom he wishes to prosecute for a capital 
offense and to plea bargain with them. Further, at the 
trial the jury may choose to convict a defendant of a 
lesser included offense rather than find him guilty of a 
crime punishable by death, even if the evidence would 
support a capital verdict. And finally, a defendant who 
is convicted and sentenced to die may have his sentence 
commuted by the Governor of the State and the Georgia 
Board of Pardons and Paroles.

The existence of these discretionary stages is not deter­
minative of the issues before us. At each of these stages 
an actor in the criminal justice system makes a decision 
which may remove a defendant from consideration as a 
candidate for the death penalty. Furman, in contrast, 
dealt with the decision to impose the death sentence on a 
specific individual who had been convicted of a capital of­
fense. Nothing in any of our cases suggests that the de­
cision to afford an individual defendant mercy violates the 
Constitution. Furman held only that, in order to mini­
mize the risk that the death penalty would be imposed 
on a capriciously selected group of offenders, the decision 
to impose it had to be guided by standards so that the 
sentencing authority would focus on the particularized 
circumstances of the crime and the defendant.50

50 The petitioner’s argument is nothing more than a veiled con­
tention that Furman indirectly outlawed capital punishment by 
placing totally unrealistic conditions on its use. In order to repair 
the alleged defects pointed to by the petitioner, it would be neces­
sary to require that prosecuting authorities charge a capital offense 
whenever arguably there had been a capital murder and that they



GREGG v. GEORGIA 43

2
The petitioner further contends that the capital- 

sentencing procedures adopted by Georgia in response to 
Furman do not eliminate the dangers of arbitrariness 
and caprice in jury sentencing that were held in Furman 
to be violative of the Eighth and Fourteenth Amend­
ments. He claims that the statute is so broad and vague 
as to leave juries free to act as arbitrarily and capri­
ciously as they wish in deciding whether to impose the 
death penalty. While there is no claim that the jury 
in this case relied upon a vague or overbroad provision 
to establish the existence of a statutory aggravating cir­
cumstance, the petitioner looks to the sentencing system 
as a whole (as the Court did in Furman and we do 
today) and argues that it fails to reduce sufficiently the 
risk of arbitrary infliction of death sentences. Specifi- 
cally, Gregg urges that the statutory aggravating circum­
stances are too broad and too vague, that the sentencing 
procedure allows for arbitrary grants of mercy, and that

refuse to plea bargain with the defendant. If a jury refused to 
convict even though the evidence supported the charge, its verdict 
would have to be reversed and a verdict of guilty entered or a new 
trial ordered, since the discretionary act of jury nullification would 
not be permitted. Finally, acts of executive clemency would have 
to be prohibited. Such a system, of course, would be totally alien 
to our notions of criminal justice.

Moreover, it would be unconstitutional. Such a system in many 
respects would have the vices of the mandatory death penalty stat­
utes we hold unconstitutional today in Woodson v. North Carolina,
post, p. , and Roberts v. Louisiana, post, p . ---- . The suggestion
that a jury’s verdict of acquittal could be overturned and a defend- 
ant. retried would run afoul of the Sixth Amendment jury-trial guar­
antee and the Double Jeopardy Clause of the Fifth Amendment. 
In the federal system it also would be unconstitutional to prohibit a 
President from deciding, as an act of executive clemency, to reprieve 
one sentenced to death. U. S. Const., Art. II, § 2.



44 GREGG v. GEORGIA

the scope of the evidence and argument that- can be 
considered at the presentence hearing is too wide.

The petitioner attacks the seventh statutory aggravat­
ing circumstance, which authorizes imposition of the 
death penalty if the murder was “outrageously or 
wantonly vile, horrible or inhuman in that it involved 
torture, depravity of mind, or an aggravated battery to 
the victim,” contending that it is so broad that capital 
punishment could be imposed in any murder case.51 It 
is, of course, arguable that any murder involves depravity 
of mind or an aggravated battery. But this language 
need not be construed in this way, and there is no reason 
to assume that the Supreme Court of Georgia will adopt 
such an open-ended construction.52 In only one case has 
it upheld a jury’s decision to sentence a defendant to 
death when the only statutory aggravating circumstance 
found was that of § 7, see McCorquodale v. State, 233 
Ga. 369, 211 S. E. 2d 577 (1974), and that homicide was 
a horrifying torture-murder.53

The petitioner also argues that two of the statu­

51 In light of the limited grant of certiorari, see p. 5, supra, we 
review the “vagueness” and “overbreadth” of the statutory aggra­
vating circumstances only to consider whether their imprecision 
renders this capital-sentencing system invalid under the Eighth and 
Fourteenth Amendments because it is incapable of imposing capital 
punishment other than by arbitrariness or caprice.

52 In the course of interpreting Florida’s new capital-sentencing 
statute, the Supreme Court of Florida has ruled that the phrase 
“especially heinous, atrocious or cruel” means a “conscienceless or 
pitiless crime which is unnecessarily torturous to the victim.” 
State v. Dixon, 283 So. 2d 1, 9 (1973). See Proffitt v. Florida, post, 
pp. 12-13.

53 Two other reported cases indicate that juries have found ag­
gravating circumstances based on § 7. In both cases a separate 
statutory aggravating circumstance was also found, and the Su­
preme Court of Georgia did not explicitly rely on the finding of the 
§ 7 circumstance when it upheld the death sentence. See Jarrell v. 
State, 234 Ga. 410, 216 S. E. 2d 258 (1975) (state supreme court



GREGG v. GEORGIA 45

tory aggravating circumstances are vague and therefore 
suspectible to widely differing interpretations, thus creat­
ing a substantial risk that the death penalty will be 
arbitrarily inflicted by Georgia juries.54 In light of the 
decisions of the Supreme Court of Georgia we must dis­
agree. First, the petitioner attacks that part of § 1 that 
authorizes a jury to consider whether a defendant has 
a substantial history of serious assaultive criminal con­
victions.” The Supreme Court of Georgia, however 
victions.” The Supreme Court of Georgia, however, 
cedures provide guidance to juries. I t  held this provision 
to be impermissably vague in Arnold v. State, 236 Ga.
534, 54 0 ;---- - S. E. 2 d ---- , ---- (1976), because it did not
provide the jury with “sufficiently ‘clear and objective 
standards.’ ” Second, the petitioner points to § 3 ' which 
speaks of creating a “great risk of death to more than 
one person.” While such a phrase might be susceptible 
to an overly broad interpretation, the Supreme Court of 
Georgia has not so construed it. The only case in which 
the court upheld a conviction in reliance on this aggra­
vating circumstance involved a man who stood up in a 
church and fired a gun indiscriminately into the audience. 
See Chenault v. State, 234 Ga. 216, 215 S. E. 2d 223 
(1975). On the other hand, the court expressly reversed

upheld finding that defendant committed two other capital felonies— 
kidnapping and armed robbery—in the course of the murder (§ 2) ; 
jury also found that the murder was committed for money (§ 4) 
and that a great risk of death to bystanders was created (§3))- 
Floyd v. State, 233 Ga. 280, 210 S. E. 2d 810 (1974) (found to have 
committed a capital felony—armed robbery—in the course of the 
murder (§2)).

The petitioner also attacks § 7 as vague. As we have noted in 
answering his overbreadth argument concerning § 7, however, the 
state court has not given a broad reading to the scope of this pro­
vision, and there is no reason to think that juries will not be able 
to understand it. See n. 51, supra; Proffitt v. Florida, post, p .__ .



46 GREGG v. GEORGIA

a finding of great risk when the victim was simply kid­
napped in a parking lot. See Jarrell v. State, 234 Ga. 
410, 424, 216 S. E. 2d 258, 269 (1975).55

The petitioner next argues that the requirements of 
Furman are not met here because the jury has the power 
to decline to impose the death penalty even if it finds 
that one or more statutory aggravating circumstances is 
present in the case. This contention misinterprets Fur­
man. See pp. 41-42, supra. Moreover, it ignores the 
role of the Supreme Court of Georgia which reviews 
each death sentence to determine whether it is propor­
tional to other sentences imposed for similar crimes. 
Since the proportionality requirement on review7 is in­
tended to prevent caprice in the decision to inflict the 
penalty, the isolated decision of a jury to afford mercy 
does not render unconstitutional death sentences im­
posed on defendants who were sentenced under a system 
that does not create a substantial risk of arbitrariness 
or caprice.

The petitioner objects, finally, to the wide scope of 
evidence and argument allowed at presentence hearings. 
We think that the Georgia court wisely has chosen not 
to impose unnecessary restrictions on the evidence that 
can be offered at such a hearing and to approve open and 
far-ranging argument. See, e. g., Brown v. State, 235
Ga. 644, ----  S. E. 2d ----  (1975). So long as the
evidence introduced and the arguments made at the pre­
sentence hearing do not prejudice a defendant, it is pref­
erable not to impose restrictions. We think it desirable

55 The petitioner also objects to the last part of § 3 which requires 
that the great risk be created “by means of a weapon or device 
which wrould normally be hazardous to the lives of more than one 
person.” While the state court has not focused on this section, it 
seems reasonable to assume that if a great risk in fact is created, 
it will be likely that a weapon or device normally hazardous to 
more than one person will have created it.



GREGG v. GEORGIA 47

for the jury to have as much information before it as 
possible when it makes the sentencing decision. See pp. 
32-33, supra.

3
Finally, the Georgia statute has an additional provision 

designed to assure that the death penalty will not be 
imposed on a capriciously selected group of convicted 
defendants. The new sentencing procedures require that 
the state supreme court review every death sentence to 
determine whether it was imposed under the influence of 
passion, prejudice, or any other arbitrary factor, whether 
the evidence supports the findings of a statutory aggra­
vating circumstance, and “ [wjhether the sentence of 
death is excessive or disproportionate to the penalty im­
posed in similar cases, considering both the crime and the 
defendant.” § 27-2537 (c )(3) (Supp. 1975).56 In per­

66 The court is required to specify in its opinion the similar cases 
which it took into consideration. § 27-2537 (e) (Supp. 1975). 
Special provision is made for staff to enable the court to  compile 
data relevant to its consideration of the sentence’s validity. §§ 27- 
2537 (f)-(h ) (Supp. 1975). See generally pp. 9-11, supra.

The petitioner claims that this procedure has resulted in an in­
adequate basis for measuring the proportionality of sentences. First, 
he notes that nonappealed capital convictions where a life sentence 
is imposed and cases involving homicides where a capital conviction 
is not obtained are not included in the group of cases which the 
Supreme Court of Georgia uses for comparative purposes. The 
Georgia court has the authority to consider such cases, see Ross v. 
State, 233 Ga. 361, 365-366, 211 S. E. 2d 356, 359 (1974), and it 
does consider appealed murder cases where a life sentence has been 
imposed. We do not think that the petitioner’s argument establishes 
that the Georgia courts review process is ineffective. The petitioner 
further complains about the Georgia court’s current practice of using 
some pre-Furman cases in its comparative examination. This prac­
tice was necessary at the inception of the new procedure in the ab­
sence of any post-Furman capital cases available for comparison. It 
is not unconstitutional.



48 GREGG v. GEORGIA

forming its sentence review function, the Georgia court 
has held that “if the death penalty is only rarely imposed 
for an act or it is substantially out of line with sentences 
imposed for other acts it will be set aside as excessive.” 
Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 616 
(1974). The court on another occasion stated that “we 
view it to be our duty under the similarity standard to as­
sure that no death sentence is affirmed unless in similar 
cases throughout the state the death penalty has been im­
posed generally . . . .” Moore v. State, 233 Ga. 861, 864, 
213 S. E. 2d 829, 832 (1975). See also Jarrell v. State, 
234 Ga. 410, 425, 216 S. E. 2d 258, 270 (1975) (standard 
is whether “juries generally throughout the state have im­
posed the death penalty”) ; Smith v. State, 236 Ga. 12,
24, — - S. E. 2d ----  (1976) (found “a clear pattern”
of jury behavior).

I t is apparent that the Supreme Court of Georgia has 
taken its review responsibilities seriously. In Coley, it 
held that “ [t]he prior cases indicate that the past prac­
tice among juries faced with similar factual situations 
and like aggravating circumstances has been to impose 
only the sentence of life imprisonment for the offense 
of rape, rather than death.” 231 Ga., at 835, 204 S. E. 
2d, at 617. I t thereupon reduced Coley’s sentence from 
death to life imprisonment. Similarly, although armed 
robbery is a capital offense under Georgia law, § 26- 
1902 (1972), the Georgia court concluded that the death 
sentences imposed in this case for that crime were “un­
usual in that they are rarely imposed for [armed rob­
bery], Thus, under the test provided by statute, . . . 
they must be considered to be excessive or dispropor­
tionate to the penalties imposed in similar cases.” Gregg 
v. State, 233 Ga. 117, 127, 210 S. E. 2d 659, 667 (1974). 
The court therefore vacated Gregg’s death sentences 
for armed robbery and has followed a similar course in



GREGG v. GEORGIA 49

every other armed robbery death penalty case to come be­
fore it. See Floyd v. State, 233 Ga. 280, 285, 210 S. E. 2d 
810, 814 (1974); Jarrell v. State, 234 Ga. 410, 424-425, 
216 S. E. 2d 258, 270 (1975). See Dorsey v. State, 236 
Ga. 591,----S. E. 2 d ----- (1976).

The provision for appellate review in the Georgia cap­
ital-sentencing system serves as a check against the ran­
dom or arbitrary imposition of the death penalty. In 
particular, the proportionality review substantially elim­
inates the possibility that a person will be sentenced to 
die by the action of an aberrant jury. If a time comes 
when juries generally do not impose the death sentence 
in a certain kind of murder case, the appellate review 
procedures assures that no defendant convicted under 
such circumstances will suffer a sentence of death.

V
The basic .concern of Furman centered on those de­

fendants who were being condemned to death capriciously 
and arbitrarily. Under the procedures before the Court 
in that case, sentencing authorities were not directed to 
give attention to the nature or circumstances of the 
crime committed or to the character or record of the 
defendant. Left unguided, juries imposed the death 
sentence in a way that could only be called freakish. 
The new Georgia sentencing procedures, by contrast, 
focus the jury’s attention on the particularized nature 
of the crime and the particularized characteristics of 
the individual defendant. While the jury is permitted 
to consider any aggravating or mitigating circumstances, 
it must find and identify at least one statutory aggra­
vating factor before it may impose a penalty of death. 
In this way the jury’s discretion is channeled. No longer 
can a jury wantonly and freakishly impose the death 
sentence; it is always circumscribed by the legislative



50 GREGG v. GEORGIA

guidelines. In addition, the review function of the Su­
preme Court of Georgia affords additional assurance that 
the concerns that prompted our decision in Furman are 
not present to any significant degree in the Georgia pro­
cedure applied here.

For the reasons expressed in this opinion, we hold that 
the statutory system under which Gregg was sentenced 
to death does not violate the Constitution. Accordingly, 
the judgment of the Georgia Supreme Court is affirmed.

I t  is so ordered.



SUPREME COURT OF THE UNITED STATES

No. 74-6257

Troy Leon Gregg, Petitioner, | On Writ of Certiorari to 
v. the Supreme Court of

State of Georgia. J Georgia.

[July 2, 1976]

M r . J ustice  W h it e , w ith  w hom  T h e  C h ie f  J ustice  
and  M r . J ustice  R e h n q u is t  join, concurring  in  th e  
judgm en t.

In Furman v. Georgia, 408 U. S. 238 (1972), this 
Court held the death penalty as then administered in 
Georgia to be unconstitutional. That same year the 
Georgia Legislature enacted a new statutory scheme under 
which the death penalty may be imposed for several 
offenses, including murder. The issue in this case is 
whether the death penalty imposed for murder on peti­
tioner Gregg under the new Georgia statutory scheme 
may constitutionally be carried out. I agree that it 
may.

I
Under the new Georgia statutory scheme a person 

convicted of murder may receive a sentence either of 
death or of life imprisonment. Ga. Code Ann. § 26-1101 
(1972).1 Under Georgia Code Ann. § 26-3102 (1975 1

1 Section 26-1101 provides, as follows:
“Murder, (a) A person commits murder when he unlawfully 

and with malice aforethought, either express or implied, causes the 
death of another human being. Express malice is that deliberate 
intention unlawfully to take away the life of a fellow creature, 
which is manifested by external circumstances capable of proof. 
Malice shall be implied where no considerable provocation appears, 
and where all the circumstances of the killing show an abandoned 
and malignant heart.

"(b) A person also commits the crime of murder when in the



2 GREGG v. GEORGIA

Supp.), the sentence will be life imprisonment unless 
the jury at a separate evidentiary proceeding immedi­
ately following the verdict finds unanimously and beyond 
a reasonable doubt at least one statutorily defined 
“aggravating circumstance.” * 2 The aggravating circum­
stances are,

“ (1) The offense of murder, rape, armed robbery,

commission of a felony he causes the death of another human being, 
irrespective of malice.

"(c) A person convicted of murder shall be punished by death 
or by imprisonment for life.”
The death penalty may also be imposed for kidnapping, Ga. Code 
Ann. § 26—1311; armed robbery, Ga. Code Ann. § 26—1902; rape, 
Ga. Code Ann. §26-2001; treason, Ga. Code Ann. §26-2201; and 
aircraft hijacking, Ga. Code Ann. § 26-3301.

2 Ga. Code Ann. §26-3102 (1975 Supp.) provides:
“Capital offenses; jury verdict and sentence. Where, upon a 

trial by jury, a person is convicted of an offense which may be 
punishable by death, a sentence of death shall not be imposed un­
less the jury verdict includes a finding of at least one statutory ag­
gravating circumstance and a recommendation that such sentence 
be imposed. Where a statutory aggravating circumstance is found 
and a recommendation of death is made, the court shall sentence 
the defendant to death. Unless the jury trying the case makes a 
finding of at least one statutory aggravating circumstance and 
recommends the death sentence in its verdict, the court shall not 
sentence the defendant to death, provided that no such finding of 
statutory aggravating circumstance shall be necessary in offenses 
of treason or aircraft hijacking. The provisions of this section shall 
not affect a sentence when the case is tried without a jury or when 
the judge accepts a plea of guilty.”

Ga. Laws, 1973, p. 159, 162 Act No. 74, provides:
"At the conclusion of all felony cases heard by a jury, and after 

argument of counsel and proper charge from the court, the jury 
shall retire to consider a verdict of guilty or not guilty without any 
consideration of punishment. Where the jury or judge returns a 
verdict or finding of guilty, the court shall resume the trial and 
conduct a pre-sentence hearing before the jury or judge at which 
time the only issue shall be the determination of punishment to



GREGG v. GEORGIA 3

or kidnapping was committed by a person with a 
prior record of conviction for a captial felony, or 
the offense of murder was committed by a person 
who has a substantial history of serious assaultive 
criminal convictions.

“ (2) The offense of murder, rape, armed robbery, 
or kidnapping was committed while the offender was 
engaged in the commission of another capital felony 
or aggravated battery, or the offense of murder was 
committed while the offender was engaged in the 
commission of burglary or arson in the first degree.

“ (3) The offender by his act of murder, armed

be imposed. In such hearing, subject to the laws of evidence, the 
jury or judge shall hear additional evidence in extenuation, mitiga­
tion, and aggravation of punishment, including the record of any 
prior criminal convictions and pleas of guilty or pleas of nolo 
contendere of the defendant, or the absence of any such prior crim­
inal convictions and pleas; provided, however, that only such evi­
dence in aggravation as the State has made known to the defendant 
prior to his trial shall be admissible. The jury or judge shall also 
hear argument by the defendant or his counsel and the prosecuting 
attorney, as provided by law, regarding the punishment to be im­
posed. The prosecuting attorney shaE open and the defendant shall 
conclude the argument to the jury or judge. Upon the conclusion 
of the evidence and arguments, the judge sha-lll give the jury ap­
propriate instructions and the jury shall retire to determine the 
punishment to be imposed. In cases in which the death penalty 
may be imposed by a jury or judge sitting without a jury, the ad­
ditional procedure provided in Code section 27-2534.1 shaE be fol­
lowed. The jury, or the judge in cases tried by a judge, shall fix 
a sentence within the limits prescribed by law. The judge shall 
impose the sentence fixed by the jury or judge, as provided by law. 
If the jury cannot, within a reasonable time, agree to the punish­
ment, the judge shall impose sentence within the limits of the law; 
provided, however, that the judge shall in no instance impose the 
death penalty wrhen, in cases tried by a jury, the jury cannot agree 
upon the punishment. If the trial court is reversed on appeal be­
cause of error only in the pre-sentence hearing, the new trial which 
may be ordered shall apply only to the issue of punishment.”



4 GREGG v. GEORGIA

robbery, or kidnapping knowingly created a great 
risk of death to more than one person in a public 
place by means of a weapon or device which would 
normally be hazardous to the lives of more than one 
person.

“ (4) The offender committed the offense of mur­
der for himself or another, for the purpose of receiv­
ing money or any other thing of monetary value.

“ (5) The murder of a judicial officer, former 
judicial officer, district attorney or solicitor or former 
district attorney or solicitor during or because of the 
exercise of his official duty.

“(6) The offender caused or directed another to 
commit murder or committed murder as an agent 
or employee of another person.

“ (7) The offense of murder, rape, armed robbery, 
or kidnapping was outrageously or wantonly vile, 
horrible or inhuman in that it involved torture, 
depravity of the mind, or an aggravated battery to 
the victim.

“ (8) The offense of murder was committed 
against any peace officer, corrections employee or 
fireman while engaged in the performance of his 
official duties.

“ (9) The offense of murder was committed by a 
person in, or who has escaped from, the lawful 
custody of a peace officer or place of lawful 
confinement.

“ (10) The murder was committed for the purpose 
of avoiding, interfering with, or preventing a lawfful 
arrest or custody in a place of lawful confinement, 
of himself or another.”

Having found an aggravating circumstance, however, the 
jury is not required to impose the death penalty. In­
stead, it is merely authorized to impose it after con­



GREGG v. GEORGIA 5

sidering evidence of “any mitigating circumstances or 
aggravating circumstances otherwise authorized by law 
and any of the [enumerated] statutory aggravating 
circumstances. . . Ga. Code Ann. § 27-2534.1 (b) 
(1975 Supp.). Unless the jury unanimously determines 
that the death penalty should be imposed, the defendant 
will be sentenced to life imprisonment. In the event 
that the jury does impose the death penalty, it must 
designate in writing the aggravating circumstance which 
it found to exist beyond a reasonable doubt.

An important aspect of the new Georgia legislative 
scheme, however, is its provision for appellate review. 
Prompt review by the Georgia Supreme Court is pro­
vided for in every case in which the death penalty is 
imposed. To assist it in deciding whether to sustain the 
death penalty, the Georgia Supreme Court is supplied, in 
every case, with a report from the trial judge in the form 
of a standard questionnaire. Ga, Code Ann. § 27-2537 
(1975 Supp.). The questionnaire contains, inter alia, 
six questions designed to disclose whether race played a 
role in the case and one question asking the trial judge 
whether the evidence forecloses “all doubt respecting the 
defendant’s guilt.” In deciding whether the death pen­
alty is to be sustained in any given case, the court shall 
determine:

“ (1) Whether the sentence of death was imposed 
under the influence of passion, prejudice, or any 
other arbitrary factor, and

“ (2) Whether in cases other than treason or air­
craft hijacking, the evidence supports the jury’s or 
judge’s finding of a statutory aggravating circum­
stance as enumerated in Code section 27-2534.1 (b), 
and

“(3) Whether the sentence of death is excessive



6 GREGG v. GEORGIA

or disproportionate to the penalty imposed in 
similar cases, considering both the crime and the 
defendant. . .

In order that information regarding ‘'similar cases” may 
be before the court, the post of Assistant to the Supreme 
Court was created. The Assistant must “accumulate 
the records of all capital cases in which sentence was 
imposed after January 1, 1970, or such earlier date as 
the court may deem appropriate.” Ga. Code Ann. § 27- 
2537 (f).3 The court is required to include in its de­
cision a reference to “those similar cases which it took 
into consideration.” Ga. Code Ann. § 27-2537 (e).

II
Petitioner Troy Gregg and a 16-year-old companion, 

Sam Allen, were hitchhiking from Florida to Asheville, 
N. C., on November 21, 1973. They were picked up in 
an automobile driven by Fred Simmons and Bob Moore, 
both of whom were drunk. The car broke down and 
Simmons purchased a new one—a 1960 Pontiac—using 
part of a large roll of cash which he had with him. 
After picking up another hitchhiker in Georgia and 
dropping him off in Atlanta, the car proceeded north to 
Gwinnett County, Ga., where it stopped so that Moore 
and Simmons could urinate. While they were out of 
the car Simmons was shot in the eye and Moore was 
shot in the right cheek and in the back of the head. 
Both died as a result.

On November 24, 1973, at 3 p. m., on the basis of in­
formation supplied by the hitchhiker, petitioner and Allen

3 Ga. Code Ann. § 27-2537 (g) provides:
“ (g) The court shall be authorized to employ an appropriate 

staff and such methods to compile such data as are deemed by the 
Chief Justice to be appropriate and relevant to the statutory ques­
tions concerning the validity of the sentence. . . .”



GREGG v. GEORGIA 7

were arrested in Asheville, N. C. They were then in 
possession of the car which Simmons had purchased; 
petitioner was in possession of the gun which had killed 
Simmons and Moore and $107 which had been taken 
from them; and in the motel room in which petitioner 
was staying was a new stereo and a car stereo player.

At about 11 p. m., after the Gwinnett County police 
had arrived, petitioner made a statement to them ad­
mitting that he had killed Moore and Simmons, but as­
serting that he had killed them in self-defense and in 
defense of Allen. He also admitted robbing them of 
$400 and taking their car. A few moments later peti­
tioner was asked why he had shot Moore and Simmons 
and responded, “By God, I wanted them dead.”

At about 1 a. m. the next morning, petitioner and Allen 
were released to the custody of the Gwinnett County 
police and were transported in two cars back to Gwinnett 
County. On the way, at about 5 a. m., the car stopped 
at the place where Moore and Simmons had been killed. 
Everyone got out of the car. Allen was asked, in 
petitioner’s presence, how the killing occurred. He said 
that he had been sitting in the back seat of the 1960 
Pontiac and was about half asleep. He woke up when 
the car stopped. Simmons and Moore got out, and as 
soon as they did petitioner turned around and told Allen, 
“get out, we’re going to rob them.” Allen said that he 
got out and walked toward the back of the car, looked 
around and could see petitioner, with a gun in his hand, 
leaning up against the car so he could get a good aim. 
Simmons and Moore had gone down the bank and had 
relieved themselves and as they were coming up the 
bank petitioner fired three shots. One of the men fell, 
the other staggered. Petitioner then circled around the 
back and approached the two men, both of whom were 
now lying in the ditch, from behind. He placed the gun



GREGG v. GEORGIA

to the head of one of them and pulled the trigger. Then 
he went quickly to the other one and placed the gun to 
his head and pulled the trigger again. He then took the 
money, whatever was in their pockets. He told Allen 
to get in the car and they drove away.

When Allen had finished telling this story, one of the 
officers asked petitioner if this was the way it had hap­
pened. Petitioner hung his head and said that it was. 
The officer then said, “You mean you shot these men in 
cold blooded murder just to rob them,” and petitioner 
said yes. The officer then asked him why and petitioner 
said he didn’t know. Petitioner was indicted in two 
counts for murder and in two counts for robbery.

At trial, petitioner’s defense was that he had killed in 
self-defense. He testified in his own behalf and told 
a version of the events similar to that which he had orig­
inally told to the Gwinnett County police. On cross- 
examination, he was confronted with a letter to Allen 
recounting a version of the events similar to that to 
which he had just testified and instructing Allen to 
memorize and burn the letter. Petitioner conceded writ­
ing the version of the events, but denied writing the por­
tion of the letter which instructed Allen to memorize 
and burn it. In rebuttal, the State called a handwriting 
expert who testified that the entire letter was written by 
he same person.

The jury was instructed on the elements of m urder4

4 The court, said:
“And, I charge you that our law provides, in connection with the 

offense of murder the following. A person commits murder when 
he unlawfully and with malice aforethought, either express or im­
plied causes the death of another human being.

“Express malice is that deliberate intention, unlawfully to take 
away the life of a fellow creature which is manifested by external 
circumstances, capable of proof.

“Malice shall be implied where no considerable provocation ap-



GREGG v. GEORGIA 9

and robbery. The trial judge gave an instruction on 
self-defense, but refused to submit the lesser included 
offense of manslaughter to the jury. I t  returned ver­
dicts of guilty on all counts.

pears and where all of the circumstances of the killing show an 
abandoned and malignant heart.

“Section B of this Code Section, our law provides that a person 
also commits the crime of murder when in the commission of a 
felony he causes the death of another human being irrespective of 
malice.

“Now, then, I charge you that if you find and believe beyond a 
reasonable doubt that the defendant did commit the homicide in 
the two counts alleged in this indictment, a t the time he was engaged 
in the commission of some other felony, you would be authorized to 
find him guilty of murder.

“In this connection, I  charge you that in order for a homicide to 
have been done in the perpetration of a felony, there must he some 
connection between the felony and the homicide. The homicide 
must have been done in pursuance of the unlawful act not collateral 
to it. I t  is not enough that the homicide occurred soon or pres­
ently after the felony was attempted or committed, there must be 
such a legal relationship between the homicide and the felony that 
you find that the homicide occurred by reason of and a part of the 
felony or that it occurred before the felony was at an end, a t an end, 
so that the felony had a legal relationship to the homicide and was 
concurrent with it in part at least, and a part of it in an actual 
and material sense. A homicide is committed in the perpetration 
of a felony when it is committed by the accused while he is en­
gaged in the performance of any act required for the full execution 
of such felony.

“I charge you that if you find and believe beyond a reasonable 
doubt that the homicide alleged in this indictment was caused by 
the defendant while he, the said accused was in the commission of 
a felony as I have just given you in this charge, you would be au­
thorized to convict the defendant of murder.

“And this you would be authorized to do whether the defendant 
intended to kill the deceased or not. A homicide, although un­
intended, if committed by the accused at the time he is engaged in 
the commission of some other felony constitute murder.

“In order for a killing to have been done in perpetration or at-



10 GREGG v. GEORGIA

No new evidence was presented at the sentencing pro­
ceeding. However, the prosecutor and the attorney for 
petitioner each made arguments to the jury on the 
issue of punishment. The prosecutor emphasized the 
strength of the case against petitioner and the fact that 
he had murdered in order to eliminate the witnesses to 
the robbery. The defense attorney emphasized the pos­
sibility that a mistake had been made and that petitioner 
was not guilty. The trial judge instructed the jury on 
their sentencing function and in so doing submitted to 
them three statutory aggravating circumstances. He 
stated:

“Now, as to counts one and three, wherein the 
defendant is charged with the murders of—has been 
found guilty of the murders of Fred Edward Sim­
mons and Bob Edward Moore, the following aggra­
vating circumstances are some that you can consider, 
as I say, you must find that these existed beyond a

tempted perpetration of a felony, or of a particular felony, there 
must be some connection as I previously charged you between the 
felony and the homicide.

“Before you would be authorized to find the defendant guilty of 
the offense of murder, you must find and believe beyond a reason­
able doubt, that the defendant did, with malice aforethought either 
express or implied cause the deaths of Fred Simmons or Bob Moore 
or you must find and believe beyond a reasonable doubt that the 
defendant, while in the commission of a felony caused the death of 
these two victims just named.

“I charge you, that if you find and believe that, a t any time prior 
to the date this indictment was returned into this court that the 
defendant did, in the county of Gwinnett, State of Georgia, with 
malice aforethought kill and murder the two men just named in 
the way and manner set forth in the indictment or that the defend­
ant caused the deaths of these two men in the way and manner 
set forth in the indictment, while he, the said accused was in the 
commission of a felony, then in either event, you would be author­
ized to find the defendant guilty of murder.”



GREGG v. GEORGIA II

reasonable doubt before the death penalty can be 
imposed.
“One—That the offense of murder was committed 
while the offender was engaged in the commission 
of two other capitol felonies, to-wit the armed rob­
bery of Fred Edward Simmons and Bob Edward 
Moore.
“Two—That the offender committed the offense of 
murder for the purpose of receiving money and the 
automobile described in the indictment.
“Three—The offense of murder was outrageously 
and wantonly vile, horrible and inhuman, in that 
they involved the depravity of mind of the defendant.

“Now, so far as the counts two and four, that is 
the counts of armed robbery, of which you have 
found the defendant guilty, then you may find— 
inquire into these aggravating circumstances.
“That the offense of armed robbery was committed 
while the offender was engaged in the commission 
of two capitol felonies, to-wit the murders of Fred 
Edward Simmons and Bob Edward Moore or that 
the offender committed the offense of armed rob­
bery for the purpose of receiving money and the 
automobile set forth in the indictment, or three, 
that the offense of armed robbery was outrageously 
and -wantonly vile, horrible and inhuman in that 
they involved the depravity of the mind of the 
defendant.
“Now, if you find that there was one or more of 
these aggravating circumstances existed beyond a 
reasonable doubt, then and I refer to each indi­
vidual count, then you would be authorized to con­
sider imposing the sentence of death.
If you do not find that one of these aggravating 

circumstances existed beyond a reasonable doubt, in



12 GREGG v. GEORGIA

either of these counts, then you would not be 
authorized to consider the penalty of death. In 
that event, the sentence as to counts one and three, 
those are the counts wherein the defendant was. 
found guilty of murder, the sentence could be im­
prisonment for life. . . .”

The jury returned the death penalty on all four counts 
finding all the aggravating circumstances submitted to 
it, except that it did not find the crimes to have been 
“outrageously or wantonly vile,” etc.

On appeal the Georgia Supreme Court affirmed the 
death sentences on the murder counts and vacated the 
death sentences on the robbery counts Gregg v. State, 
233 Ga. 117, 210 S. E. 2d 659 (1974). I t concluded that 
the murder sentences were not imposed under the influ­
ence of passion, prejudice, or any other arbitrary factor; 
that the evidence supported the finding of a statutory 
aggravating factor with respect to the murders; and, 
citing several cases in which the death penalty had been 
imposed previously for murders of persons who had wit­
nessed a robbery, held that

“After considering both the crimes and the defend­
ant and after comparing the evidence and the 
sentences in this case with those of previous murder 
cases, we are also of the opinion that these two 
sentences of death are not excessive or dispropor­
tionate to the penalties imposed in similar cases 
which are hereto attached.” 5 Id., at 127, 210 S. E. 
2d, at 667.

5 In a subsequently decided robbery-murder case, the Georgia 
Supreme Court had the following to say about the same “similar 
cases” referred to in this case:

“We have compared the evidence and sentence in this case with 
other similar cases and conclude the sentence of death is not ex­
cessive or disproportionate to the penalty imposed in those cases.



GREGG v. GEORGIA 13

However, it held with respect to the robbery sentences;
“Although there is no indication that these two 

sentences were imposed under the influence of pas-

Those similar cases we considered in reviewing the case are: Lingo 
v. State, 226 Ga. 496 (175 SE 2d 657), Johnson v. State, 226 Ga. 
511 (175 SE 2d 840), Pass v. State, 227 Ga. 730 (182 SE 2d 779), 
Watson v. State, 229 Ga. 787 (194 SE 2d 407), Scott v. State, 230 
Ga. 855 (199 SE 2d 805), and Gregg v. State, 233 Ga. 117 (210 SE 
2d 659).

“In each of the comparison cases cited, the records show that the 
accused was found guilty of murder of the victim of the robbery7 
or burglary committed in the course of such robbery or burglary. In 
each of those cases, the jury imposed the sentence of death. In Pass 
v. State, supra, the murder took place in the victim’s home, as 
occurred in the case under consideration.

“We find tha t the sentence of death in this case is not excessive 
or disproportionate to the penalty imposed in similar cases, consid­
ering both the crime and the defendant. Code Ann. § 27-2537 (c) 
(3). Notwithstanding the fact that there have been cases in which 
robbery victims were murdered and the juries imposed life sentences 
(see Appendix), the cited cases show that juries faced with similar 
factual situations have imposed death, sentences. Compare Coley 
v. State, 231 Ga. 829, 835, supra. Thus the sentence here was not 
‘wantonly and freakishly imposed’ (see above).” Moore v. State, 
233 Ga. 861, 865-866, 213 S. E. 2d 829, 833 (1975).
In another case decided after the instant case the Georgia Supreme 
Court stated:

“The cases reviewed included all murder cases coming to this 
court since January 1, 1970. All kidnapping cases were likewise 
reviewed. The comparison involved a search for similarities in 
addition to the similarity of offense charged and sentence imposed.

“All of the murder cases selected for comparison involved mur­
ders wherein all of the witnesses were killed or an attempt was 
made to kill all of the witnesses, and kidnapping cases where the vie- 
time was killed or seriously injured.

“The cases indicate that, except in some special circumstance 
such as a juvenile or an accomplice driver of a get-away vehicle, 
where the murder was committed and trial held at a time when the 
death penalty statute was effective, juries generally throughout the 
state have imposed the death penalty. The death penalty has also



14 GREGG v. GEORGIA

sion, prejudice or any other arbitrary factor, the 
sentences imposed here are unusual in that they are 
rarely imposed for this offense. Thus, under the 
test provided by statute for comparison (Code Ann. 
§27-1537 (b), (3)), they must be considered to be 
excessive or disproportionate to the penalties im­
posed in similar cases.” Ibid.

Accordingly, the sentences on the robbery counts were 
vacated.

Ill
The threshold question in this case is whether the 

death penalty may be carried out for murder under the 
Georgia legislative scheme consistent with the decision 
in Furman v. Georgia, supra. In Furman, this Court’s 
judgment operated to preclude the practice of giving the 
sentencer unguided discretion to impose or not to impose 
the death penalty for murder had resulted in Georgia and 
other States, in that the penalty was being imposed dis- 
criminatorily,* 6 wantonly and freakishly7 and so infre­
quently 8 that any given death sentence was cruel and

been imposed when the kidnap victim has been mistreated or seri­
ously injured. In this ease the victim was murdered.

“The cold blooded and callous nature of the offenses in this case 
are the types condemned by death in other cases. This defend­
ant’s death sentences for murder and kidnapping are not excessive 
or disproportionate to  the penalty imposed in similar cases. Using 
the standards prescribed for our review by the statute, we conclude 
that the sentences of death imposed in this case for murder and 
kidnapping were not imposed under the influence of passion, preju­
dice or any other arbitrary factor.” Jarrell v. State, 234 Ga. 410, 
425-426, 216 S. E. 2d 258, 270 (1975).

6 See Furman v. Georgia, supra, concurring opinion of Mr. Jus­
tice Douglas, a t p. ■— .

7 See Furman v, Georgia, supra, concurring opinion of Me. J us­
tice Stewart, at p. •— .

8 See Furman v. Georgia, supra, concurring opinion of Mr. J us­
tice White .



GREGG v. GEORGIA 15

unusual. Petitioner argues that, as in Furman, the jury 
is still the sentencer; that the statutory criteria to be con­
sidered by the jury on the issue of sentence under Geor­
gia’s new statutory scheme are vague and do not purport 
to be all inclusive ; and that, in any event, there are no 
circumstances under which the jury is required to impose 
the death penalty.9 Consequently, the petitioner argues 
that the death penalty will inexorably be imposed in as 
discriminatory, standardless, and rare a manner as it was 
imposed under the scheme declared invalid in Furman.

The argument is considerably overstated. The Geor­
gia Legislature has made an effort to identify those 
aggravating factors which it considers necessary and 
relevant to the question whether a defendant convicted 
of capital murder should be sentenced to death.10 The 
jury which imposes sentence is instructed on all statu­
tory aggravating factors which are supported by the

9 Petitioner also argues that the differences between murder—for 
which the death penalty may be imposed—and manslaughter—for 
which it may not be imposed are so difficult to define and the jury’s 
ability to disobey the trial judge’s instructions so unfettered that 
juries will use the guilt determination phase of a trial arbitrarily 
to convict some of a capital offense while convicting similarly situ­
ated individuals only of noncapital offenses. I believe this argu­
ment is enormously overstated. However, since the jury has dis­
cretion not to impose the death penalty at the sentencing phase of 
a case in Georgia, the problem of offense definition and jury nulli­
fication loses virtually all its significance in this case.

10 The factor relevant to this case is that the “murder . . . was 
committed while the offender was engaged in the commission of 
another capital felony.” The State in its brief refers to this type 
of murder as “witness-elimination” murder. Apparently the State 
of Georgia wishes to supply a substantial incentive to those engaged 
in robbery to leave their guns at home and to persuade their co­
conspirators to do the same in the hopes that fewer victims of rob­
beries will be killed.



16 GREGG v. GEORGIA

evidence, and is told that it may not impose the death 
penalty unless it unanimously finds at least one of those 
factors to have been established beyond a reasonable 
doubt. The Georgia Legislature has plainly made an 
effort to guide the jury in the exercise of its discretion, 
while at the same time permitting the jury to dispense 
mercy on the basis of factors too intangible to write 
into a statute and I cannot accept the naked assertion 
that the effort is bound to fail. As the types of murders 
for which the death penalty may be imposed become 
more narrowly defined and are limited to those which 
are particularly serious or for which the death penalty 
is peculiarly appropriate as they are in Georgia by reason 
of the aggravating circumstance requirement, it becomes 
reasonable to expect that juries—even given discretion 
not to impose the death penalty—will impose the death 
penalty in a substantial portion of the cases so defined. 
If they do, it can no longer be said that the penalty is 
being imposed wantonly and freakishly or so infrequently 
that it loses its usefulness as a sentencing device. There 
is, therefore, reason to expect that Georgia’s current sys­
tem would escape the infirmities which invalidated its 
previous system under Furman. However, the Georgia 
Legislature was not satisfied with a system which might 
but might not turn out in practice to result in death sen­
tences being imposed with reasonable consistency for cer­
tain serious murders. Instead, it gave the Georgia Su­
preme Court the power and the obligation to perform 
precisely the task which three Justices of this Court, 
whose opinions were necessary to the result, performed 
in Furman: namely the task of deciding whether in 
fact the death penalty was being administered for any 
given class of crime in a discriminatory, standardless, or 
rare fashion.

In considering any given death sentence on appeal,



GREGG v. GEORGIA 17

the Georgia Supreme Court is to determine whether 
the sentence imposed was consistent with the relevant 
statutes—i. e., whether there was sufficient evidence to 
support the finding of an aggravating circumstance. Ga. 
Code Ann. § 27-2537 (c)(2) (1975 Supp.). However, it 
must do much more than determine whether the penalty 
was lawfully imposed. I t must go on to decide—after 
reviewing the penalties imposed in “similar cases”— 
whether the penalty is “excessive or disproportionate” 
considering both the crime and the defendant. Ga. Code 
Ann. § 27-2537 (c)(3) (1975 Supp.). The new Assistant 
to the Supreme Court is to assist the court in collecting 
the records of “all capital cases” 11 in the State of Geor­
gia in which sentence was imposed after January 1, 
1970. Ga. Code Ann. § 27-2537 (f) (1975 Supp.). 
The court also has the obligation of determining 
whether the penalty was “imposed under the in­
fluence of passion, prejudice, or any other arbitrary 
factor.” Ga. Code Ann. § 27-2537 (c)(1) (1975 Supp.). 
The Georgia Supreme Court has interpreted the appel­
late review statute to require it to set aside the death 
sentence whenever juries across the State impose it only 
rarely for the type of crime in question; but to require 
it to affirm death sentences whenever juries across the 
State generally impose it for the crime in question. 
Thus, in this case the Georgia Supreme Court concluded 
that the death penalty was so rarely imposed for the 
crime of robbery that it set aside the sentences on the 
robbery counts, and effectively foreclosed that penalty

11 Petitioner states several times without citation that the only 
cases considered by the Georgia Supreme Court are those in which 
an appeal was taken either from a sentence of death or life im­
prisonment. This view finds no support in the language of the rele­
vant statutes. Moore v. State, 233 Ga. 861, 864, 213 S. E. 2d 829, 
832 (1975).



18 GREGG v. GEORGIA

from being imposed for that crime in the future under 
the legislative scheme now in existence. Similarly, the 
Georgia Supreme Court has determined that juries im­
pose the death sentence too rarely with respect to certain 
classes of rape. Compare Coley v. State, 231 Ga. 829, 
204 S. E. 2d 612 (1974), with Coker v. State, 234 Ga. 555, 
216 S. E. 2d 782 (1975). However, it concluded that 
juries “generally throughout the State” have imposed 
the death penalty for those who murder witnesses to 
armed robberies. Jarrell v. State, 234 Ga. 410, 425, 216 
S. E. 2d 258, 270 (1975). Consequently, it affirmed the 
sentences in this case on the murder counts. If the 
Georgia Supreme Court is correct with respect to this 
factual judgment, imposition of the death penalty in this 
and similar cases is consistent with Furman. Indeed, if 
the Georgia Supreme Court properly performs the task 
assigned to it under the Georgia statutes, death sentences 
imposed for discriminatory reasons or wantonly or freak­
ishly for any given category of crime will be set aside. 
Petitioner has wholly failed to establish, or even at­
tempted to establish, that the Georgia Supreme Court 
failed properly to perform its task in this case or that it 
is incapable of performing its task adequately in all cases; 
and this Court should not assume that it did not do so.

Petitioner also argues that decisions made by the prose­
cutor—either in negotiating a plea to some offense lesser 
than capital murder or in simply declining to charge cap­
ital murder—are standardless and will inexorably result 
in the wanton and freakish imposition of the penalty 
condemned by the judgment in Furman. I address this 
point separately because the cases in which no capital 
offense is charged escape the view of the Georgia Supreme 
Court and are not considered by it in determining 
whether a particular sentence is excessive or 
dispr op or tionate.



GREGG v. GEORGIA 19

Petitioner’s argument that prosecutors behave in a 
standardless fashion in deciding which cases to try as 
capital felonies is unsupported by any facts. Petitioner 
simply asserts that since prosecutors have the power not 
to charge capital felonies they will exercise that power in 
a standardless fashion. This is untenable. Absent facts 
to the contrary, it cannot be assumed that prosecutors 
will be motivated in their charging decision by factors 
other than the strength of their case and the likelihood 
that a jury would impose the death penalty if it convicts. 
Unless prosecutors are incompetent in their judgments, 
the standards by which they decide whether to charge 
a capital felony will be the same as those by which the 
jury will decide the questions of guilt and sentence. 
Thus defendants will escape the death penalty through 
prosecutorial charging decisions only because the offense 
is not sufficiently serious; or because the proof is insuf­
ficiently strong. This does not cause the system to be 
standardless anymore than the jury’s decision to impose 
life imprisonment on a defendant whose crime is deemed 
insufficiently serious or its decision to acquit someone 
who is probably guilty but whose guilt is not established 
beyond a reasonable doubt. Thus the prosecutor’s charg­
ing decisions are unlikely to have removed from the sam­
ple of cases considered by the Georgia Supreme Court 
any which are truly “similar.” If the cases really were 
“similar” in relevant respects, it is unlikely that prose­
cutors would fail to prosecute them as capital cases; and 
I am unwilling to assume the contrary.

Petitioner’s argument that there is an unconstitutional 
amount of discretion in the system which separates those 
suspects who receive the death penalty from those who 
receive life imprisonment, a lesser penalty, or are acquit­
ted or never charged, seems to be in final analysis 
an indictment of our entire system of justice. Peti­



2 0 GREGG v. GEORGIA

tioner has argued, in effect, that no matter how effective 
the death penalty may be as a punishment, government, 
created and run as it must be by humans, is inevitably 
incompetent to administer it. This cannot be accepted 
as a proposition of constitutional law. Imposition of 
the death penalty is surely an awesome responsibility 
for any system of justice and those who participate in 
it. Mistakes will be made and discriminations will 
occur which will be difficult to explain. However, one 
of society’s most basic tasks is that of protecting the 
lives of its citizens and one of the most basic ways in 
which it achieves the task is through criminal laws 
against murder. I decline to interfere with the manner 
in which Georgia has chosen to enforce such laws on 
what is simply an assertion of lack of faith in the ability 
of the system of justice to operate in a fundamentally 
fair manner.

IV
For the reasons stated in dissent in Roberts v. Loui­

siana, post, neither can I agree with the petitioner’s 
other basic argument that the death penalty, however 
imposed and for whatever crime, is cruel and unusual 
punishment.

I therefore concur in the judgment of affirmance.

Statement of T h e  C h ie f  J u stice  and M r . J u stice  
R e h n q u is t  :

We join the opinion of M r. J u stice  W h it e , agreeing 
with its analysis that Georgia’s system of capital pun­
ishment comports with the Court’s holding in Furman 
v. Georgia, 408 U. S. 238 (1972).



SUPREME COURT OE THE UNITED STATES
No. 74-6257

Troy Leon Gregg, Petitioner, 
v.

State of Georgia.

On Writ of Certiorari to 
the Supreme Court of 
Georgia.

[July 2, 1976]

Mr. J u stice  B l a c k m u n , concurring in the judgment. 
I concur in the judgment. See Furman v. Georgia, 40S 

U. S. 238, 405-414 (1972) (B l a c k m u n , J., dissenting), 
and id., at 375, 414, and 465.



SUPREME COURT OF THE UNITED STATES
Nos. 74-6257, 75-5394, and  75-5706

Troy Leon Gregg, 
Petitioner,

7L-6257 v.
State of Georgia.

Jerry Lane Jurek, Petitioner, 
75-5394 v.

State of Texas.

Charles William Proffitt, 
Petitioner,

75-5706 v.
State of Florida.

On Writ of Certiorari to 
i the Supreme Court of 

Georgia.

On Writ of Certiorari to 
the Court of Criminal 
Appeals of Texas.

On Writ of Certiorari to 
the Supreme Court of 
Florida.

[July 2, 1976]

M r . J u stice  B r e n n a n , dissenting.

The Cruel and Unusual Punishments Clause “must 
draw its meaning from the evolving standards of de­
cency that mark the progress of a maturing society.” 1 
The opinions of M r . J u stice  Stenvart, M r . J ustice  
P o w ell , and M r . J u stice  Stevens  today hold that 
“evolving standards of decency” require focus not on the 
essence of the death penalty itself but primarily upon the 
procedures employed by the State to single out persons 
to suffer the penalty of death. Those opinions hold 
further that, so viewed, the Clause invalidates the man­
datory infliction of the death penalty but not its infliction 
under sentencing procedures that M r . J u stice  Stew art , 
M r . J u stice  P ow ell, and M r . J u stice  Steven s  conclude 
adequately safeguard against the risk that the death

1 Trop v. Dulles, 356 U. S. 86, 101 (1958) (opinion of Warren, 
C. J.).



2 GREGG v. GEORGIA

penality was imposed in an arbitrary and capricious 
manner.

In Furman v. Georgia, 408 U. S. 238, 257 (1972), 1 
read “evolving standards of decency” as requiring focus 
upon the essence of the death penalty itself and not 
primarily or solely upon the procedures under which 
the determination to inflict the penalty upon a par­
ticular person was made. I there said:

“From the beginning of our Nation, the punish­
ment of death has stirred acute public controversy. 
Although pragmatic arguments for and against the 
punishment have been frequently advanced, this 
longstanding and heated controversy cannot be ex­
plained solely as the result of differences over the 
practical wisdom of a particular government policy. 
At bottom, the battle has been waged on moral 
grounds. The country has debated whether a so­
ciety for which the dignity of the individual is the 
supreme value can, without a fundamental incon­
sistency, follow the practice of deliberately putting 
some of its members to death. In the United States, 
as in other nations of the western world, The strug­
gle about this punishment has been one between 
ancient and deeply rooted beliefs in retribution, 
atonement or vengenance on the one hand, and, on 
the other, beliefs in the personal value and dignity 
of the common man that were born of the demo­
cratic movement of the eighteenth century, as well 
as beliefs in the scientific approach to an under­
standing of the motive forces of human conduct, 
which are the result of the growth of the sciences 
of behavior during the nineteenth and twentieth 
centuries.’ I t is this essentially moral conflict that 
forms the backdrop for the past changes in and the



GREGG v. GEORGIA 3

present operation of our system of imposing death 
as a punishment for crime.” Id., at 296.2 

That continues to be my view. For the Clause for­
bidding cruel and unusual punishments under our con­
stitu tio n a l system of government embodies in unique 
degree moral principles restraining the punishments that 
our civilized society may impose on those persons who 
transgress its laws. Thus, I too say: “For myself, I do 
not hesitate to assert the proposition that the only way 
the law has progressed from the days of the rack, the 
screw and the wheel is the development of moral con­
cepts, or, as stated by the Supreme Court . . . the appli­
cation of ‘evolving standards of decency’ . . . . ” 3

This Court inescapably has the duty, as the ultimate 
arbiter of the meaning of our Constitution, to say 
whether, when individuals condemned to death stand 
before our Bar, “moral concepts” require us to hold that 
the law has progressed to the point where we should 
declare that the punishment of death, like punishments 
on the rack, the screw and the wheel, is no longer morally 
tolerable in our civilized society.4 My opinion in Fur­
man v. Georgia concluded that our civilization and the 
law had progressed to this point and that therefore the 
punishment of death, for whatever crime and under all 
circumstances, is “cruel and unusual” in violation of the 
Eighth and Fourteenth Amendments of the Constitu­
tion. I shall not again canvass the reasons that led to 
that conclusion. I emphasize only that foremost among

2 Quoting T. Selim, The Death Penalty, A Report for the Model 
Penal Code Project of the American Law Institute 15 (1959).

3 Novak v. Beta, 453 F. 2d 661, 672 (CA5 1971) (Tuttle, J., con­
curring in part and dissenting in p a rt) .

4 Tao, Beyond Furman v. Georgia: The Need for a Morally Based 
Decision on Capital Punishment, 51 Notre Dame Lawyer 722, 736 
(1976).



4 GREGG v. GEORGIA

the “moral concepts” recognized in our cases and in­
herent in the Clause is the primary moral principle that 
the State, even as it punishes, must treat its citizens 
in a manner consistent with their intrinsic worth as 
human beings—a punishment must not be so severe as 
to be degrading to human dignity. A judicial determina­
tion whether the punishment of death comports with 
human dignity is therefore not only permitted but com­
pelled by the Clause. 408 U. S., at 270.

I do not understand that the Court disagrees that “ [i]n 
comparison to all other punishments today . . . the 
deliberate extinguishment of human life by the State 
is uniquely degrading to human dignity.” Id., at 291. 
For three of my Brethren hold today that mandatory 
infliction of the death penalty constitutes the penalty 
cruel and unusual punishment. I perceive no principled 
basis for this limitation. Death for whatever crime and 
under all circumstances “is truly an awesome punish­
ment. The calculated killing of a human being by the 
State involves, by its very nature, a denial of the exe­
cuted person’s humanity. . . . An executed person has 
indeed ‘lost the right to have rights.’ ” Id., at 290. 
Death is not only an unusually severe punishment, un­
usual in its pain, in its finality, and in its enormity, but it 
serves no penal purpose more effectively than a less 
severe punishment; therefore the principle inherent in 
the Clause that prohibits pointless infliction of excessive 
punishment when less severe punishment can adequately 
achieve the same purposes invalidates the punishment. 
Id., at 279.

The fatal constitutional infirmity in the punishment of 
death is that it treats “members of the human race as 
nonhumans, as objects to be toyed with and discarded. 
[It is] thus inconsistent with the fundamental premise of 
the Clause that even the vilest criminal remains a human



GREGG v. GEORGIA 5

being possessed of common human dignity.” Id., at 273. 
As such it is a penalty that “subjects the individual to a 
fate forbidden by the principle of civilized treatment 
guaranteed by the [Clause].” 5 I therefore would hold, 
on that ground alone, that death is today a cruel and 
unusual punishment prohibited by the Clause. “Justice 
of this kind is obviously no less shocking than the crime 
itself, and the new ‘official’ murder, far from offering re­
dress for the offense committed against society, adds 
instead a second defilement to the first.” 6

I concur in the judgments in No. 75-5491, Woodson v. 
North Carolina, and No. 75-5844, Roberts v. Louisiana, 
that set aside the death sentences imposed under the 
North Carolina and Louisiana death sentence statutes as 
violative of the Eighth and Fourteenth Amendments.

I dissent, however, from the judgments in No. 74-6257, 
Gregg v. Georgia, No. 75-5706, Proffitt v. Florida, and No. 
75-5394, Jurek v. Texas, insofar as each upholds the 
death sentences challenged in those cases. I would set 
aside the death sentences imposed in those cases as vio­
lative of the Eighth and Fourteenth Amendments.

5 Trop v. Dulles, supra, at 99 (opinion of Warren, C. J .) .
0 A. Camus, Reflections on the Guillotine 5-6 (Fredjof-Karla Pub. 

1960).



SUPREME COURT OF THE UNITED STATES
Nos. 74-6257, 75-5394, and 75-5706

Troy Leon Gregg, 
Petitioner,

74- 6257 v.
State of Georgia.

Jerry Lane Jurek, Petitioner,
75- 5394 v.

State of Texas.

Charles William Proffitt, 
Petitioner,

75-5706 v.
State of Florida.

On Writ of Certiorari to 
the Supreme Court of 
Georgia.

On Writ of Certiorari to 
the Court of Criminal 
Appeals of Texas.

On Writ of Certiorari to 
the Supreme Court of 
Florida.

[July 2, 1976]

M r . J u stice  M arshall , dissenting.

In Furman v. Georgia, 408 U. S. 238, 314 (1972), I 
set forth at some length my views on the basic issue pre­
sented to the Court in these cases. The death penalty, 
I concluded, is a cruel and unusual punishment pro­
hibited by the Eighth and Fourteenth Amendments. 
That continues to be my view.

I have no intention of retracing the “long and tedious 
journey,” id., at 370, that led to my conclusion in Fur­
man. My sole purposes here are to consider the sugges­
tion that my conclusion in Furman has been undercut 
by developments since then, and briefly to evaluate the 
basis for my Brethren’s holding that the extinction of 
life is a permissible form of punishment under the Cruel 
and Unusual Punishments Clause.

In Furman I concluded that the death penalty is con­
stitutionally invalid for two reasons. First, the death



2 GREGG v. GEORGIA

penalty is excessive. Id., at 331-332; 342-359. And 
second, the American people, fully informed as to the 
purposes of the death penalty and its liabilities, would 
in my view reject it as morally unacceptable. Id., at 
360-369.

Since the decision in Furman, the legislatures of 35 
States have enacted new statutes authorizing the imposi­
tion of the death sentence for certain crimes, and Con­
gress has enacted a law providing the death penalty for 
air piracy resulting in death. 49 U. S. C. (Supp. IV) 
§§ 1472, 1473. I would be less than candid if I did not 
acknowledge that these developments have a significant 
bearing on a realistic assessment of the moral accept­
ability of the death penalty to the American people. 
But if the constitutionality of the death penalty turns, 
as I have urged, on the opinion of an informed citizenry, 
then even the enactment of new death statutes cannot 
be viewed as conclusive. In Furman, I observed that 
the American people are largely unaware of the informa­
tion critical to a judgment on the morality of the death 
penalty, and concluded that if they were better informed 
they would consider it shocking, unjust, and unaccept­
able. 408 U. S., at 360-369. A recent study, conducted 
after the enactment of the post-Furman statutes, has 
confirmed that the American people know little about 
the death penalty, and that the opinions of an informed 
public would differ significantly from those of a public 
unaware of the consequences and effects of the death 
penalty.1

Even assuming, however, that the post-Furman enact­
ment of statutes authorizing the death penalty renders 
the prediction of the views of an informed citizenry an

1 Sarat and Vidmar, Public Opinion, The Death Penalty, and the 
Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wise. 
L. Rev. 171.



GREGG v. GEORGIA 3

uncertain basis for a constitutional decision, the enact­
ment of those statutes has no bearing whatsoever on 
the conclusion that the death penalty is unconstitutional 
because it is excessive. An excessive penalty is invalid 
under the Cruel and Unusual Punishments Clause “even 
though popular sentiment may favor” it. Id., at 331; 
ante, at 16—17, 26 (Opinion of Stew art, P o w ell , and
St ev en s , J J .) ; Roberts v. Louisiana,----U. S . ----- , ----
(W h it e , J., dissenting) (slip op., at 17-18). The in­
quiry here, then, is simply whether the death penalty is 
necessary to accomplish the legitimate legislative pur­
poses in punishment, or whether a less severe penalty— 
life imprisonment—would do as well. Furman, supra, 
at 342 (M arsha ll , J., concurring).

The two purposes that sustain the death penalty as 
nonexcessive in the Court’s view are general deterrence 
and retribution. In Furman, I canvassed the relevant 
data on the deterrent effect of capital punishment. 408 
U. S., at 347-354.2 The state of knowledge at that 
point, after literally centuries of debate, was summarized 
as follows by a United Nations Committee:

“It is generally agreed between the retentionists and 
abolitionists, whatever their opinions about the va­
lidity of comparative studies of deterrence, that the 
data which now exist show no correlation between 
the existence of capital punishment and lower rates 
of capital crime.” (Footnote omitted.)3

The available evidence, I concluded in Furman, was con­
vincing that “capital punishment is not necessary as a 
deterrent to crime in our society.” Id., at 353.

The Solicitor General in his amicus brief in these cases

2 See e. g., T. Sellin, The Death Penalty, A Report for the Model 
Penal Code Project of the American Law Institute (ALI) (1959).

3 United Nations, Department of Economic and Social Affairs, 
Capital Punishment, Pt. II, f  159, at 123.



4 GREGG v. GEORGIA

relies heavily on a study by Isaac Ehrlich,4 * reported a 
year after Furman, to support the contention that the 
death penalty does deter murder, Since the Ehrlich 
study was not available at the time of Furman and since 
it is the first scientific study to suggest that the death 
penalty may have a deterrent effect, I will briefly con­
sider its import.

The Ehrlich study focused on the relationship in the 
Nation as a whole between the homicide rate and “execu­
tion risk”—The fraction of persons convicted of murder 
who were actually executed. Comparing the differences 
in homicide rate and execution risk for the years 1933 
to 1969, Ehrlich found that increases in execution risk 
were associated with increases in the homicide rate/1 
But when he employed the statistical technique of mul­
tiple regression analysis to control for the influence of 
other variables posited to have an impact on the homicide 
rate,6 Ehrlich found a negative correlation between 
changes in the homicide rate and changes in execution 
risk. His tentative conclusion was that for the period 
from 1933 to 1967 each additional execution in the 
United States might have saved eight lives.7

The methods and conclusions of the Ehrlich study

41- Ehrlich, The Deterrent Effect of Capital Punishment: A 
Question of Life and Death (Working Paper No. 18, National 
Bureau of Economic Research, November 1973); Ehrlich, The 
Deterrent Effect of Capital Punishment: A Question of Life and 
Death, 65 Am. Econ. Rev. 397 (1975) [hereinafter cited as Ehrlich
1975],

6 Ehrlich 1975, supra, n. 4, 409.
6 The variables other than execution risk included probability of 

arrest, probability of conviction given arrest, national aggregate 
measures of the percentage of the population between age 14 and 24, 
the unemployment rate, the labor force participation rate, and 
estimated per capita income.

7 Ehrlich 1975, supra, n. 4, at 398, 414.



GREGG v. GEORGIA 5

have been severely criticized on a number of grounds.8 
I t  has been suggested, for example, that the study is 
defective because it compares execution and homicide 
rates on a nationwide, rather than a State-by-State, basis. 
The aggregation of data from all States—including those 
that have abolished the death penalty—obscures the 
relationship between murder and execution rates. Under 
Ehrlich’s methodology, a decrease in the execution risk in 
one State combined with an increase in the murder rate 
in another State would, all other things being equal, 
suggest a deterrent effect that quite obviously would not 
exist. Indeed, a deterrent effect would be suggested if, 
once again all other things being equal, one State abol­
ished the death penalty and experienced no change in 
the murder rate, while another State experienced an 
increase in the murder rate.9

The most compelling criticism of the Ehrlich study is 
that its conclusions are extremely sensitive to the choice 
of the time period included in the regression analysis.

8 See Passell & Taylor, The Deterrent Effect of Capital Punish­
ment: Another View (March 1975) (unpublished Columbia Uni­
versity Discussion Paper 74-7509); Passell, The Deterrent Effect 
of the Death Penalty: A Statistical Test, 28 Stan. L. Rev. 61 
(1975); Baldus & Cole, A Comparison of the Work of Thorsten 
Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punish­
ment, 85 Yale L. J. 170 (1975); Bowers & Pierce, The Illusion of 
Deterrence in Isaac Ehrlich’s Research on Capital Punishment, 85 
Yale L. J. 187 (1975) ; Peck, The Deterrent Effect of Capital Pun­
ishment: Ehrlich and His Critics, 85 Yale L. J. 359 (1976). See 
also Ehrlich, Deterrence: Evidence and Inference, 85 Yale L. J. 209 
(1975); Ehrlich, Rejoinder, 85 Yale L. J. 368 (1976). In addition 
to the items discussed in text, criticism has been directed at the 
quality of Ehrlich’s data, his choice of explanatory variables, his 
failure to account for the interdependence of those variables, and 
his assumptions as to the mathematical form of the relationship 
between the homicide rate and the explanatory variables.

9 See Baldus & Cole, supra, n. 8, at 175-177.



6 GREGG v. GEORGIA

Analysis of Ehrlich’s data reveals that all empirical sup­
port for the deterrent effect of capital punishment dis­
appears when the five most recent years are removed 
from his time series—that is to say, whether a decrease 
in the execution risk corresponds to an increase or a 
decrease in the murder rate depends on the ending point 
of the sample period.1'0 This finding has cast severe 
doubts on the reliability of Ehrlich’s tentative conclu­
sions.11 Indeed, a recent regression study, based on 
Ehrlich’s theoretical model but using cross-section state 
data for the years 1950 and 1960, found no support for 
the conclusion that executions act as a deterrent.10 11 12 13

The Ehrlich study, in short, is of little, if any, assist­
ance in assessing the deterrent impact of the death pen­
alty. Accord, Commonwealth v. O’Neal, 339 N. E. 2d 
676, 684 (Mass. 1975). The evidence I reviewed in 
Furman13 remains convincing, in my view, that “capital 
punishment is not necessary as a deterrent to crime in 
our society.” 408 U. S., at 353. The justification for 
the death penalty must be found elsewhere.

The other principal purpose said to be served by the 
death penalty is retribution.14 The notion that retribu­

10 Bowers & Pierce, supra, n. 8, at 197-198. See also Passell & 
Taylor, supra, n. 8 (Appendix E  to Brief for Petitioner in Jurek v. 
Texas, No. 75-5394, at 2-66—2-68).

11 See Bowers & Pierce, supra, n. 8, at 197-198; Baldus & Cole, 
supra, n. 8, at 181, 183-185; Peck, supra, n. 8, at 366-367.

12 Passell, supra, n. 8.
13 See also Bailey, Murder and Capital Punishment: Some Further 

Evidence, 45 Am. J. Orthopsychiatry 669 (1975); Bowers, Execu­
tions in America 121-162 (1974).

14 In Furman, I considered several additional purposes arguably 
served by the death penalty. 408 U. S., a t 342, 355-358. The 
only additional purpose mentioned in the opinions in these cases is 
specific deterrence—preventing the murderer from committing an­
other crime. Surely life imprisonment and, if necessary, solitary 
confinement would fully accomplish this purpose. Accord, Common­
wealth v. O’Neal, 339 N. E. 2d 676, 685 (Mass. 1975); People v.



GREGG v. GEORGIA 7

tion can serve as a moral justification for the sanction 
of death finds credence in the opinion of my Brothers 
Stew art , P o w ell , and St ev en s , and that of my Brother 
W h it e  in Roberts v. Louisiana, post. See also Furman 
v. Georgia, 408 U. S. 238, 394-395 (1972) (B urger, C. J., 
dissenting). I t  is this notion that I find to be the most 
disturbing aspect of today’s unfortunate decision.

The concept of retribution is a multifaceted one, and 
any discussion of its role in the criminal law must be 
undertaken with caution. On one level, it can be said 
that the notion of retribution or reprobation is the basis 
of our insistence that only those who have broken the 
law be punished, and in this sense the notion is quite 
obviously central to a just system of criminal sanctions. 
But our recognition that retribution plays a crucial role 
in determining who may be punished by no means re­
quires approval of retribution as a general justification 
for punishment.15 I t  is the question whether retribution 
can provide a moral justification for punishment—in par­
ticular, capital punishment—that we must consider.

My Brothers Stew art, P o w ell , and Steven s  offer the 
following explanation of the retributive justification for 
capital punishment:

“ ‘The instinct for retribution is part of the nature 
of man, and channeling that instinct in the adminis­
tration of criminal justice serves an important pur­
pose in promoting the stability of a society governed 
by law. When people begin to believe that orga­
nized society is unwilling or unable to impose upon 
criminal offenders the punishment they ‘deserve,’ 
then there are sown the seeds of anarchy—of self­

Anderson, 6 Cal. 3d 628, 651, 100 Cal. Rptr. 152, 168 (1972), cert, 
denied sub nom, California v. Anderson, 406 U. S. 958 (1972)

15 See, e. g., H. L. A. Hart, Punishment and Responsibility 8-10, 
71-83 (1968); H. Packer, The Limits of the Criminal Sanction 
38-39, 66 (1968).



8 GREGG v. GEORGIA

help, vigilante justice, and lynch law.’ ” Ante, at 
26-27, quoting from Furman v. Georgia, 408 U. S., 
at 308 (S tew art , J., concurring).

This statement is wholly inadequate to justify the death 
penalty. As my Brother B r e n n a n  stated in Furman, 
“ [t]here is no evidence whatever that utilization of im­
prisonment rather than death encourages private blood 
feuds and other disorders.” 408 U. S., at 303.16 It 
simply defies belief to suggest that the death penalty 
is necessary to prevent the American people from taking 
the law into their own hands.

In a related vein, it may be suggested tha t the expres­
sion of moral outrage through the imposition of the 
death penalty serves to reinforce basic moral values.— 
that it marks some crimes as particularly offensive and 
therefore to be avoided. The argument is akin to a de­
terrence argument, but differs in that it contemplates the 
individual’s shrinking from anti-social conduct not be­
cause he fears punishment, but because he has been told 
in the strongest possible way that- the conduct is wrong. 
This contention, like the previous one, provides no sup­
port for the death penalty. I t  is inconceivable that any 
individual concerned about conforming his conduct to 
what society says is “right” would fail to realize that 
murder is “wrong” if the penalty were simply life 
imprisonment.

The foregoing contentions—that society’s expression of 
moral outrage through the imposition of the death pen­
alty pre-empts the citizenry from taking the law into its 
own hands and reinforces moral values—are not retribu­
tive in the purest sense. They are essentially utilitarian 
in that they portray the death penalty as valuable be­
cause of its beneficial results. These justifications for the

16 See Commonwealth v. O’Neal, 339 N. E. 2d 676, 687 (Mass. 
1975); Bowers, supra, n. 13, at 335; Sellin, supra, n. 2, at 79.



GREGG v. GEORGIA 9

death penalty are inadequate because the penalty is, 
quite clearly I think, not necessary to the accomplish­
ment of those results.

There remains for consideration, however, wThat might 
be termed the purely retributive justification for the 
death penalty—that the death penalty is appropriate, 
not because of its beneficial effect on society, but because 
the taking of the murderer’s life is itself morally good.17 
Some of the language of the plurality’s opinion appears 
positively to embrace this notion of retribution for its 
own sake as a justification for capital punishment.18 My 
Brothers Stew art, P o w ell , and Stevens  sta te :

“ [T]he decision that capital punishment may be 
the appropriate sanction in extreme cases is an ex­
pression of the community’s belief that certain 
crimes are themselves so grievous an affront to hu­
manity that the only adequate response may be the 
penalty of death.” Ante, at 27 (footnote omitted).

The plurality then quotes with approval from Lord Jus­
tice Denning’s remarks before the British Royal Com­
mission on Capital Punishment:

“The truth is that some crimes are so outrageous 
that society insists on adequate punishment, because

17 See H. L. A. Hart, supra, n. 15, at 72, 74-75, 234-235; 
H. Packer, supra, n. 15, at 37-39.

18 Mr. J ustice White’s view of retribution as a justification for 
the death penalty is not altogether clear. “The widespread re­
enactment of the death penalty,” he states at one point, “answers 
any claims that life imprisonment is adequate punishment to satisfy 
the need for reprobation or retribution.” Roberts v. Louisiana,
---- - U. S. ---- , ----  (White, J., dissenting) (slip op., a t 18). But
Mr. J ustice White later states: “I t will not do to denigrate these 
legislative judgments as some form of vestigial savagery or as purely 
retributive in motivation; for they are solemn judgments, reason­
ably based, that imposition of the death penalty will save the lives 
of innocent persons.” Id., at 19.



10 GREGG v. GEORGIA

the wrong-doer deserves it, irrespective of whether it 
is a deterrent or not.” Ante, at 27 n. 30.

Of course it may be that these statements are intended 
as no more than observations as to the popular demands 
that it is thought must be responded to in order to pre­
vent anarchy. But the implication of the statements 
appears to me to be quite different—namely, that so­
ciety’s judgment that the murderer “deserves” death 
must be respected not simply because the preservation of 
order requires it, but because it is appropriate that society 
make the judgment and carry it out. I t  is this latter 
notion, in particular, that I consider to be fundamentally 
at odds with the Eighth Amendment. See Furman v. 
Georgia, 408 U, S., at 343-345 (M arshall , J., 
concurring). The mere fact that the community de­
mands the murderer’s life in return for the evil he has 
done cannot sustain the death penalty, for as the plur­
ality reminds us, “the Eighth Amendment demands more 
than that a challenged punishment be acceptable to con­
temporary society.” Ante, at 26. To be sustained under 
the Eighth Amendment, the death penalty must “ [com­
port] with the basic concept of human dignity at the 
core of the Amendment,” ante, at 26 (opinion of Stew ­
art, P ow ell , and St ev en s , J J .) ; the objective in impos­
ing it must be “ [consistent] with our respect for the dig­
nity of other men.” Id., at 27. See Trop v. Dulles, 356 
U. S. 86, 100 (1958). Under these standards, the taking 
of life “because the wrong-doer deserves it” surely must 
fall, for such a punishment has as its very basis the total 
denial of the wrong-doer’s dignity and worth.19

The death penalty, unnecessary to promote the goal of

19 See Commonwealth v. O’Neal, 339 N. E. 2d 676, 687 (Mass. 
1975); People v. Anderson, 6 Cal. 3d 628, 651, 100 Cal. Rptr. 152, 
168 (1972), cert, denied sub nom. California v. Anderson, 406 U. S. 
958 (1972).



GREGG v. GEORGIA 11

deterrence or to further any legitimate notion of retri­
bution, is an excessive penalty forbidden by the Eighth 
and Fourteenth Amendments. I respectfully dissent 
from the Court’s judgment upholding the sentences of 
death imposed upon the petitioners in these cases.



N O T E : W here i t  is  feasible, a  syllabus (headnote) w ill be re­
leased, as is being done in connection w ith  th is  case, a t  th e  tim e 
th e  opinion is issued. The syllabus constitu tes no p a r t  of th e  opinion 
of th e  C ourt bu t has been prepared  by th e  R eporter of Decisions fo r 
th e  convenience of the  reader. See U nited S ta tes  v. D etroit Lum ber  
Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PROFFITT v. FLORIDA

CERTIORARI TO THE SUPREME COURT OF FLORIDA 

No. 75-5706. Argued March 31, 1976—Decided July 2, 1976

Petitioner, who was convicted of first-degree murder, attacks the 
constitutionality of the Florida capital-sentencing procedure, that 
was enacted in response to Furman v. Georgia, 408 U. S. 238. 
Under the new statute, the trial judge (who is the sentencing 
authority) must weigh eight statutory aggravating factors against 
seven statutory mitigating factors to determine whether the death 
penalty should be imposed, thus requiring him to focus on the 
circumstances of the crime and the character of the individual 
defendant. The Florida system resembles the Georgia system
upheld in Gregg v. Georgia, ante, p. ---- , except for the basic
difference that in Florida the sentence is determined by the trial 
judge rather than by the jury, which has an advisory role with 
respect to the sentencing phase of the trial. Held: The judgment 
is affirmed. Pp. 7-16 (opinion of Stewart, Powell, and Stevens, 
J J . ) ; pp. 1-2 (opinion of White, J . ) ; p. 1 (statement of 
Blackmon, J.).

315 So. 2d 461, affirmed.
Mr. J ustice Stewart, Mr. J ustice Powell, and Mr. J ustice 

Stevens, concluded that:
1. The imposition of the death penalty is not per se cruel and 

unusual punishment in violation of the Eighth and Fourteenth 
Amendments. Gregg, ante, a t 11-30, P. 3.

2. On its face, the Florida procedures for imposition of the 
death penalty satisfy the constitutional deficiencies identified in 
Furman, supra. Florida trial judges are given specific and detailed 
guidance to assist them in deciding whether to impose a death 
penalty or imprisonment for life, and their decisions are reviewed 
to  ensure that they comport with other sentences imposed under 
similar circumstances. Petitioner’s contentions that the new

i



II PROFFITT v. FLORIDA

Syllabus

Florida procedures remain arbitrary and capricious lack merit. 
Pp. 7-15.

(a) The argument that the Florida system is constitutionally 
invalid because it allows discretion to be exercised at each stage 
of the criminal proceeding fundamentally misinterprets Furman. 
Gregg, ante, at 41-42. Pp. 10-11.

(b) The aggravating circumstances authorizing the death 
penalty if the crime is “especially heinous, atrocious, or cruel,” 
or if “ [t]he defendant knowingly created a great risk of death 
to many persons,” as construed by the Florida Supreme Court, 
provide adequate guidance to those involved in the sentencing 
process and as thus construed are not overly broad. Pp. 11-13.

(c) Petitioner’s argument that the imprecision of the miti­
gating circumstances makes them incapable of determination by 
a judge or jury and other contentions in a similar vein raise 
questions about line-drawing evaluations that- do not differ from 
factors tha t juries and judges traditionally consider. The Florida 
statute gives clear and precise directions to judge and jury to 
enable them to weigh aggravating circumstances against mitigat­
ing ones. Pp. 13-14.

(d) Contrary to petitioner’s contention, the State Supreme 
Court’s review role is neither ineffective nor arbitrary, as evidenced 
by the careful procedures it has followed in assessing the imposi­
tion of death sentences, over a third of which that court has va­
cated. Pp. 14-15.

Mr. J ustice White , joined by T he Chief J ustice and Mr. 
Justice Rehnquist, concluded that under the Florida law the 
sentencing judge is required to impose the death penalty on all 
first-degree murderers as to whom the statutory aggravating fac­
tors outweigh the mitigating factors, and as to those categories 
the penalty will not be freakishly or rarely, but will be regularly, 
imposed; and therefore the Florida scheme does not run afoul of 
the Court’s holding in Furman. Petitioner’s contentions about 
prosecutorial discretion and his argument that the death penalty 
may never be imposed under any circumstances consistent with 
the Eighth Amendment are without substance. See, respectively, 
Gregg v. Georgia, ante, at —  (White, J., concurring in judg­
ment) and Roberts v. Louisiana, post, at ----  (White , J., dis­
senting) . Pp. 1-2.

Mr. Justice Blackmun concurred in the judgment. See Fur­
man v. Georgia, 408 U. S. 238, 405-414 (Blackmun, J., dissent­
ing), and id., at 375, 414, and 465.



PROFFITT v. FLORIDA in

Syllabus

Stewart, Powell, and Stevens, JJ., announced the judgment of 
the Court and filed an opinion delivered by Powell, J. White , J., 
filed an opinion concurring in the judgment, in which Burger, C. J., 
and Rehnquist, J., joined. Blackmun, J., filed a statement con­
curring in the judgment. Brennan and Marshall, JJ., filed dis­
senting opinions, see No. 7L-6257.



NOTICE : This opinion is subject to  form al revision before publication 
in th e  p relim inary  p rin t of th e  U nited S ta tes  Reports. R eaders a re  re­
quested to  notify  th e  R eporter of Decisions, Supreme C ourt of the  
U nited S ta tes, W ashington, D.C. 20543, of any typographical or o ther 
form al erro rs, in  o rder th a t  corrections may be made before th e  pre­
lim inary  p r in t goes to  press.

SUPREME COURT OF THE UNITED STATES

No. 75-5706

Charles William Proffitt, 
Petitioner, 

v.
State of Florida.

On Writ of Certiorari to the 
Supreme Court of Florida.

[July 2, 1976]

M r . J u stice  Stew art, M r . J u stice  P ow ell, and M r . 
J u stice  Steven s  announced the judgment of the Court 
and filed an opinion delivered by  M r . J u stice  P ow ell .

The issue presented by this case is whether the imposi­
tion of the sentence of death for the crime of murder 
under the law of Florida violates the Eighth and Four­
teenth Amendments.

I
The petitioner, Charles William Proffitt, was tried, 

found guilty, and sentenced to death for the first-degree 
murder of Joel Medgebow. The circumstances surround­
ing the murder were testified to by the decedent’s wife, 
who was present at the time it was committed. On 
July 10, 1973, Mrs. Medgebow awakened around 5 a. m. 
in the bedroom of her apartment to find her husband 
sitting up in bed, moaning. He was holding what she 
took to be a ruler.1 Just then a third person jumped 
up, hit her several times with his fist, knocked her to 
the floor, and ran out of the house. I t  soon appeared 
that Medgebow had been fatally stabbed with a butcher 
knife. Mrs. Medgebow was not able to identify the at-

1 I t appears that the “ruler” was actually the murder weapon 
which Medgebow had pulled from his own chest.



2 PROFFITT v. FLORIDA

tacker, although she was able to give a description of 
him.2

The petitioner’s wife testified that on the night before 
the murder the petitioner had gone to work dressed in 
a white shirt and gray pants, and that he had returned 
at about 5:15 a. m. dressed in the same clothing but 
without shoes. She said that after a short conversa­
tion the petitioner had packed his clothes and departed. 
A young woman boarder, who overheard parts of the 
petitioner’s conversation with his wife, testified that the 
petitioner had told his wife that he had stabbed and 
killed a man with a butcher knife while he was burglar­
izing a place, and that he had beaten a woman. One 
of the petitioner’s coworkers testified that they had been 
drinking together until 3:30 or 3:45 a. m. on the morn­
ing of the murder and that the petitioner had then 
driven him home. He said that the petitioner at this 
time was wearing gray pants and a white shirt.

The jury found the defendant guilty as charged. Sub­
sequently, as provided by Florida law, a separate hearing 
was held to determine whether the petitioner should be 
sentenced to death or to life imprisonment. Under the 
state law that decision turned on whether certain statu­
tory aggravating circumstances surrounding the crime 
outweighed any statutory mitigating circumstances found 
to exist.3 At that hearing it was shown that the peti­
tioner had one prior conviction, a 1967 charge of breaking 
and entering. The State also introduced the testimony 
of the physician at the jail where the petitioner had been 
held pending trial, Dr. Crumbley. He testified that the 
petitioner had come to him as a physician, and told him 
that he was concerned that he would harm other people

2 She described the attacker as wearing light pants and a pin­
striped shirt with long sleeves rolled up to the elbow. She also 
stated that the attacker was a medium-sized white male.

3 See pp. &-7, infra.



PROFFITT v. FLORIDA 3

in the future, that he had had an uncontrollable desire 
to kill that had already resulted in his killing one man, 
that this desire was building up again, and that he 
wanted psychiatric help so he would not kill again. Dr. 
Crumbley also testified that, in his opinion, the petitioner 
was dangerous and would be a danger to his fellow 
inmates if imprisoned, but that his condition could be 
treated successfully.

The jury returned an advisory verdict recommending 
the sentence of death. The trial judge ordered an in­
dependent psychiatric evaluation of the petitioner, the 
results of which indicated that the petitioner wTas not, 
then or at the time of the murder, mentally impaired. 
The judge then sentenced the petitioner to death. In 
his written findings supporting the sentence, the judge 
found as aggravating circumstances that (1) the murder 
was premeditated and occurred in the course of a felony 
(burglary); (2) the petitioner has the propensity to 
commit murder; (3) the murder was especially heinous, 
atrocious, and cruel; and (4) the petitioner knowingly, 
through his intentional act, created a great risk of serious 
bodily harm and death to many persons. The judge 
also found specifically that none of the statutory miti­
gating circumstances existed. The Supreme Court of 
Florida affirmed. Proffitt v. State, 315 So. 2d 461 
(1975). We granted certiorari, ----  U. S. ---- , to con­
sider whether the imposition of the death sentence in 
this case constitutes cruel and unusual punishment in 
violation of the Eighth and Fourteenth Amendments.

II
The petitioner argues that the imposition of the death 

penalty under any circumstances is cruel and unusual 
punishment in violation of the Eighth and Fourteenth 
Amendments. We reject this argument for the reasons 
stated today in Gregg v. Georgia, ante, pp. 11-30.



4 PROFFITT v. FLORIDA

III
A

In response to Furman v. Georgia, 408 U. S. 238 
(1972), the Florida Legislature adopted new statutes that 
authorize the imposition of the death penalty on those 
convicted of first-degree murder. Fla. Stat. Ann. § 782.04 
(1) (Supp. 1976-1977) ,4 At the same time Florida 
adopted a new capital-sentencing procedure, patterned 
in large part on the Model Penal Code. See § 921.141 
(Supp. 1976-1977).5 Under the new statute, if a defend­
ant is found guilty of a capital offense, a separate evi­
dentiary hearing is held before the trial judge and jury 
to determine his sentence. Evidence may be presented 
on any matter the judge deems relevant to sentencing

4 The murder statute under which petitioner was convicted reads 
as follows:

“ (l) (a )  The unlawful killing of a human being, when perpetrated 
from a premeditated design to effect the death of the person killed 
or any human being, or when committed by a person engaged in 
the perpetration of or in the attempt to perpetrate, any arson, 
involuntary sexual battery, robbery, burglary, kidnapping, aircraft 
piracy, or unlawful throwing, placing, or discharging of a destructive 
device or bomb, or which resulted from the unlawful distribution of 
heroin by a person 18 years of age or older when such drug is 
proven to be the proximate cause of the death of the user, shall be 
murder in the first degree and shall constitute a capital felony, 
punishable as provided in s. 775.082.
“ (b) In all cases under this section, the procedure set forth in 
s. 921.141 shall be followed in order to determine sentence of death 
or life imprisonment.” Fla. Stat. Ann. §782.04 (Supp. 1976-1977).

Another Florida statute authorizes imposition of the death penalty 
upon conviction of sexual battery of a child under 12 years of 
age. Fla.-Stat. Ann. §794.011 (2) (Supp. 1976-1977). We do not 
in this opinion consider the constitutionality of the death penalty 
for any offense other than first-degree murder.

5 Compare Model Penal Code § 210.6 (Proposed Official Draft, 
1962) (set out in Gregg v. Georgia, ante, p. 36 n. 44).



PROFFITT v. FLORIDA 5

and must include matters relating to certain legislatively 
specified aggravating and mitigating circumstances. 
Both the prosecution and the defense may present argu­
ment on whether the death penalty shall be imposed.

At the conclusion of the hearing the jury is directed 
to consider “ [wjhether sufficient mitigating circumstances 
exist . . . which outweigh aggravating circumstances 
found to exist; and . . . fbjased on those considerations, 
whether the defendant should be sentenced to life [im­
prisonment] or death.” §§ 921.141 (2) (b)-(c) (Supp. 
1976-1977).6 The jury’s verdict is determined by ma­

6 The aggravating circumstances are:
“ (a) The capital felony was committed by a person under sentence 
of imprisonment.
“ (b) The defendant was previously convicted of another capital 
felony or of a felony involving the use or threat of violence to the 
person.
“ (c) The defendant knowingly created a great risk of death to many 
persons.
“ (d) The capital felony was committed while the defendant was 
engaged, or was an accomplice, in the commission of, or an attempt 
to commit, any robbery, rape, arson, burglary, kidnapping, or air­
craft piracy or the unlawful throwing, placing, or discharging of a 
destructive device or bomb.
“ (e) The capital felony was committed for the purpose of avoiding 
or preventing a lawful arrest or effecting an escape from custody. 
“ (f) The capital felony was committed for pecuniary gain.
“ (g) The capital felony was committed to disrupt or hinder the 
lawful exercise of any governmental function or the enforcement 
of laws,
“ (h) The capital felony was especially heinous, atrocious, or cruel.” 
The mitigating circumstances are:
“ (a) The defendant has no significant history of prior criminal 
activity.
“ (b) The capital felony was committed while the defendant was 
under the influence of extreme mental or emotional disturbance.

[Footnote 6 is continued on p. (?]



6 PROFFITT v. FLORIDA

jority vote. I t is only advisory; the actual sentence is 
determined by the trial judge. The Florida Supreme 
Court has stated, however, 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 per­
son could differ.” Tedder v. State, 322 So. 2d 908, 910
(1975) . Accord, Thompson v. State, 328 So. 2d 1, 5
(1976) . Cf. Spinkellink v. State, 313 So. 2d 666, 671 
(1975).* 7

The trial judge is also directed to weigh the statutory 
aggravating and mitigating circumstances when he de­
termines the sentence to be imposed on a defendant. 
The 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 circum­
stances exist . . . and (b) [t]hat there are insufficient

“ (c) The victim was a participant in the defendant’s conduct or 
consented to the act.
“ (d) The defendant was an accomplice in the capital felony com­
mitted by another person and his participation was relatively 
minor.
“ (e) The defendant acted under extreme duress or under the sub­
stantial domination of another person.
“ (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.
“ (g) The age of the defendant at the time of the crime.” § 921.141 
(6) (Supp. 1976-1977).

7 Tedder has not always been cited when the Florida Court has 
considered a judge-imposed death sentence following a jury recom­
mendation of life imprisonment. See, e. g., Thompson v. State, 
328 So. 2d 1 (1976) ; Douglas v. State, 328 So. 2d 18 (1976); 
Dohbert v. State, 328 So. 2d 433 (1976). But in the latter case 
two judges relied on Tedder in separate opinions, one in support 
of reversing the death sentence and one in support of affirming it.



PROFFITT v. FLORIDA 7

[statutory] mitigating circumstances . . . to outweigh the 
aggravating circumstances.” § 921.141 (3) (Supp. 1976- 
1977).8

The statute provides for automatic review by the Su­
preme Court of Florida of all cases in which a death 
sentence has been imposed. § 921.141 (4) ( Supp. 1976- 
1977). The law differs from that of Georgia in that it does 
not require the court to conduct any specific form of re­
view. Since, however, the trial judge must justify the 
imposition of death sentence with written findings, mean­
ingful appellate review of each such sentence is made pos­
sible, 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 defend­
ant 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).

On their face these procedures, like those used in 
Georgia, appear to meet the constitutional deficiencies 
identified in Furman. The sentencing authority in

8 In one ease the Florida Court upheld a death sentence where 
the trial judge had simply listed six aggravating factors as justifica­
tion for the sentence he imposed. Sawyer v. State, 313 So. 2d 680 
(1975). Since there were no mitigating factors, and since some of 
these aggravating factors arguably fell within the statutory cate­
gories, it is unclear whether the Florida Court would uphold a 
death sentence that rested entirely on nonstatutory aggravating 
circumstances. I t  seems unlikely that it would do so, since the 
capital-sentencing statute explicitly provides that “ [aggravating 
circumstances shall be limited to the following [eight specified 
factors.].” §921.141(5) (Supp. 1976-1977). (Emphasis added.) 
There is no such limiting language introducing the list of statutory 
mitigating factors. See §921.141 (6) (Supp. 1976-1977). See also 
n. 14, infra.



PROFFITT v. FLORIDA

Florida, the trial judge, is directed to weigh eight aggra­
vating factors against seven mitigating factors to deter­
mine whether the death penalty shall be imposed. This 
determination requires the trial judge to focus on the 
circumstances of the crime and the character of the indi­
vidual defendant. He must, inter alia, consider whether 
the defendant has a prior criminal record, whether the 
defendant acted under duress or under the influence of 
extreme mental or emotional disturbance, whether the 
defendant’s role in the crime was that of a minor accom­
plice, and whether the defendant’s youth argues in favor 
of a more lenient sentence than might otherwise be 
imposed. The trial judge must also determine whether 
the crime was committed in the course of one of several 
enumerated felonies, whether it was committed for 
pecuniary gain, whether it was committed to assist in 
an escape from custody or to prevent a lawful arrest, 
and whether the crime was especially heinous, atrocious, 
or cruel. To answer these questions, which are not un­
like those considered by a Georgia sentencing jury, com­
pare Gregg v. State, ante, p. 40, the sentencing judge 
must focus on the individual circumstances of each homi­
cide and each defendant.

The basic difference between the Florida system and 
the Georgia system is that in Florida the sentence is 
determined by the trial judge rather than by the j ury.® 
This Court has pointed out that jury sentencing in a 
capital case can perform an important societal function, 
Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15, but it

9 Because the trial judge imposes sentence, the Florida court has 
ruled that he may order preparation of a presentence investigation 
report to assist him in determining the appropriate sentence. See 
Swan v. State, 322 So. 2d 485, 488-489 (1975); Songer v. State, 322 
So. 2d 481, 484 (1975). These reports frequently contain much 
information relevant to sentencing. See Gregg v. Georgia, ante. 
p. 32 n. 37.



PROFFITT v. FLORIDA 9

has never suggested that jury sentencing is constitution­
ally required. And it would appear that judicial sentenc­
ing should lead, if anything, to even greater consistency in 
the imposition at the trial court level of capital punish­
ment, since a trial judge is more experienced in sentenc­
ing than a jury, and therefore is better able to impose 
sentences similar to those imposed in analogous cases.10

The Florida capital-sentencing procedures thus seek to 
assure that the death penalty will not be imposed in an 
arbitrary or capricious manner. Moreover, to the extent 
that any risk to the contrary exists, it is minimized by 
Florida’s appellate review system, under which the evi­
dence of the aggravating and mitigating circumstances is 
reviewed and reweighed by the Supreme Court of Florida 
“to determine independently whether the imposition of 
the ultimate penalty is warranted.” Songer v. State, 322 
So. 2d 481, 484 (1975). See also Sullivan v. State 303 
So. 2d 632, 637 (1974). The Supreme Court of Florida, 
like that of Georgia, has not hesitated to vacate a death 
sentence when it has determined that the sentence 
should not have been imposed. Indeed, it has vacated 
eight of the 21 death sentences that it has reviewed to 
date. See Taylor v. State, 294 So. 2d 648 (1974); La- 
Madline v. State, 303 So. 2d 17 (1974); Slater v. State, 
316 So. 2d 539 (1974); Swan v. State, 322 So. 2d 485 
(1975); Tedder v. State, 322 So. 2d 908 (1975); Halli-

10 See ABA Standards Relating to Sentencing Alternatives & 
Procedures § 1.1, Commentary, pp, 43-48; President’s Comm’n on 
Law Enforcement & Administration of Justice: The Challenge of 
Crime in a Free Society, Task Force Report : The Courts 26 (1967) 
See also Gregg v. Georgia, ante, pp. 32-33. In the words of the 
Florida Court, “a trial judge with experience in the facts of 
criminality possesses the requisite knowledge to balance the facts of 
the case against the standard criminal activity which can only be 
developed by involvement with the trials of numerous defendants.” 
State v. Dixon, 283 So. 2d, at 8.



10 PROFFITT v. FLORIDA

well v. State, 323 So. 2d 557 (1975); Thompson v. State, 
328 So. 2d 1 (1976) ; Messer v. State, 330 So. 2d 137 
(1976).

Under Florida’s capital-sentencing procedures, in sum, 
trial judges are given specific and detailed guidance to 
assist them in deciding whether to impose a death pen­
alty or imprisonment for life. Moreover, their decisions 
are reviewed to ensure that they are consistent with 
other sentences imposed in similar circumstances. Thus, 
in Florida, as in Georgia, it is no longer true that there 
is “ ‘no meaningful basis for distinguishing the few cases 
in which [the death penalty] is imposed from the many 
cases where it is not.’ ” Gregg v. Georgia, ante, p. 31, 
quoting Furman v. Georgia, 408 U. S., at 313 (White , 
J., concurring). On its face the Florida system thus 
satisfies the constitutional deficiencies identified in 
Furman.

B
As in Gregg, the petitioner contends, however, that, 

while perhaps facially acceptable, the new sentencing 
procedures in actual effect are merely cosmetic, and that 
arbitrariness and caprice still pervade the system under 
which Florida imposes the death penalty.

( 1)
The petitioner first argues that arbitrariness is inherent 

in the Florida criminal justice system because it allows 
discretion to be exercised at each stage of a criminal 
proceeding—the prosecutor’s decision whether to charge 
a capital offense in the first place, his decision whether 
to accept a plea to a lesser offense, the jury’s considera­
tion of lesser included offenses, and, after conviction and 
unsuccessful appeal, the Executive’s decision whether to 
commute a death sentence. As we noted in Gregg, this 
argument is based on a fundamental misinterpretation



PROFFITT v. FLORIDA 11

of Furman, and we reject it for the reasons expressed in 
Gregg. See ante, pp. 41-42.

( 2)
The petitioner next argues that the new Florida sen­

tencing procedures in reality do not eliminate the arbi­
trary infliction of death that was condemned in Furman. 
Basically he contends that the statutory aggravating and 
mitigating circumstances are vague and overbroad,11 and 
that the statute gives no guidance as to how the miti­
gating and aggravating circumstances should be weighed 
in any specific case.

(a)
Initially the petitioner asserts that the enumerated ag­

gravating and mitigating circumstances are so vague and 
so broad that “virtually any first degree murder convict 
[is] a candidate for a death sentence.” In particular, 
the petitioner attacks the eighth and third statutory ag­
gravating circumstances, which authorize the death pen­
alty to be imposed if the crime is “especially heinous, 
atrocious, or cruel,” or if “ [t]he defendant knowingly 
created a great risk of death to many persons.” § 921.141 
(5)(h), (c) (Supp. 1976-1977). These provisions must 
be considered as they have been construed by the Su­
preme Court of Florida.

That Court has recognized that while it is arguable 
“that all killings are atrocious, . . . [s] till we believe 
that the Legislature intended something ‘especially’ 
heinous, atrocious, or cruel when it authorized the death

11 As in Gregg, we examine the claims of vagueness and over­
breadth in the statutory criteria only insofar as it is necessary to 
determine whether there is a substantial risk that the Florida 
capital-sentencing system, when viewed in its entirety, will result 
in the capricious or arbitrary imposition of the death penalty. See 
Gregg v. Georgia, ante, p. 43 n. 51.



12 PROFFITT v. FLORIDA

penalty for first degree murder.” Tedder v. State, 322 
So. 2d 908, 910 (1975). As a consequence, the Court 
has indicated that the eighth statutory provision is di­
rected only at “the conscienceless or pitiless crime which 
is unnecessarily torturous to the victim.” State v. Dixon, 
283 So. 2d 1, 9 (1973). See also Alford v. State, 307 So. 
2d 433, 445 (1975); Halliwell v. State, 323 So. 2d 557, 
561 (1975).12 We cannot say that the provision, as so 
construed, provides inadequate guidance to those charged 
with the duty of recommending or imposing sentences in 
capital cases. See Gregg v. Georgia, ante, pp. 43-44.

In the only case, except for the instant case, in which 
the third aggravating factor—“the defendant knowingly 
created a great risk of death to many persons”—was 
found, Alvord v. State, 322 So. 2d 533 (1975), the State 
Supreme Court held that the defendant created a great 
risk of death because he “obviously murdered two of the 
victims in order to avoid a surviving witness to the 
[first] murder.” 322 So. 2d, at 540.13 As construed by

12 The Supreme Court of Florida has affirmed death sentences in 
several cases, including the instant case, where this eighth statutory 
aggravating factor was found, without specifically stating that the 
homicide was “pitiless” or “torturous to the victim.” See, e. g., 
Hallman v. State, 305 So. 2d 180 (1974) (victim’s throat slit with 
broken bottle); Spinkellink v. State, 313 So. 2d 666 (1975) (“career 
criminal” shot sleeping traveling companion); Gardner v. State, 313 
So. 2d 675 (1975) (brutal beating and m urder); Alvord v. State, 322 
So. 2d 533 (1975) (three women killed by strangulation, one raped); 
Douglas v. State, 328 So. 2d 18 (1976) (depraved murder); Henry 
v. State, 328 So. 2d 430 (1976) (torture m urder); Dobbert v. State, 
328 So, 2d 433 (1976) (torture and killing of two children). But 
the circumstances of all of these cases could accurately be charac­
terized as “pitiless” and “unnecessarily tortuous,” and it thus does 
not appear that the Florida Court has abandoned the definition 
that it announced in Dixon and applied in Alford, Tedder, and 
Halliwell.

13 While it might be argued that this case broadens that construc­
tion, since only one person other than the victim was attacked at



PROFFITT v. FLORIDA 13

the Supreme Court of Florida these provisions are not 
impermissibly vague.14

(b)
The petitioner next attacks the imprecision of the mit­

igating circumstances. He argues that whether a de­
fendant acted “under the influence of extreme mental 
or emotional disturbance,” whether a defendant’s ca­
pacity “to conform his conduct to the requirements of 
law was substantially impaired,” or whether a defend­
ant’s participation as an accomplice in a capital felony 
was “relatively minor,” are questions beyond the capacity 
of a jury or judge to determine. See §§ 921.141 (6)(b), 
(f), (d) (S upp.1976-1977).

He also argues that neither a jury nor a judge is ca­

all and then only by being hit with a fist, this would be to read 
more into the State Supreme Court’s opinion than is actually there. 
That Court considered 11 claims of error advanced by the peti­
tioner, including the trial judge’s finding that none of the statutory 
mitigating circumstances existed. I t  did not, however, consider 
whether the findings as to each of the statutory aggravating cir­
cumstances were supported by the evidence. If only one aggravat­
ing circumstance had been found, or if some mitigating circumstance 
had been found to exist but not to outweigh the aggravating circum­
stances, we would be justified in concluding that the State Supreme 
Court had necessarily decided this point even though it had not 
expressly done so. However, in the circumstances of this case, when 
four separate aggravating circumstances were found and where each 
mitigating circumstance was expressly found not to exist, no such 
holding on the part of the State Supreme Court can be implied.

14 The petitioner notes further that Florida’s sentencing system 
fails to channel jury or judge discretion because it allows for con­
sideration of nonstatutory aggravating factors. In the only case 
to approve such a practice, Sawyer v. State, 313 So. 2d 680 (1975), 
the Florida Court recast the trial court’s six nonstatutory aggravat­
ing factors into four aggravating circumstances—two of them statu­
tory. As noted earlier, it is unclear that the Florida Court would 
ever approve a death sentence based entirely on nonstatutory aggra­
vating circumstances. See n. 8, supra.



14 PROFFITT v. FLORIDA

pable of deciding how to weigh a defendant's age or de­
termining whether he had a “significant history of prior 
criminal activity." See §§ 921.141 (6 )(g), (a) (Supp. 
1976-1977). In a similar vein the petitioner argues 
that it is not possible to make a rational determination 
whether there are “sufficient” aggravating circumstances 
that are not outweighed by the mitigating circumstances, 
since the state law assigns no specific weight to any of 
the various circumstances to be considered. See § 921.141 
(Supp. 1976-1977).

While these questions and decisions may be hard, 
they require no more line-drawing than is commonly re­
quired of a fact finder in a lawsuit. For example, juries 
have traditionally evaluated the validity of defenses such 
as insanity or reduced capacity, both of which involve 
the same considerations as some of the above-mentioned 
mitigating circumstances. While the various factors to 
be considered by the sentencing authorities do not have 
numerical weights assigned to them, the requirements 
of Furman are satisfied when the sentencing authority’s 
discretion is guided and channeled by requiring examina­
tion of specific factors that argue in favor of or against 
imposition of the death penalty, thus eliminating total 
arbitrariness and capriciousness in its imposition.

The directions given to judge and jury by the Florida 
statute are sufficiently clear and precise to enable the 
various aggravating circumstances to be weighed against 
the mitigating ones. As a result, the trial court’s sen­
tencing discretion is guided and channeled by a system 
that focuses on the circumstances of each individual 
homicide and individual defendant in deciding whether 
the death penalty is to be imposed.

(c)
Finally, the Florida statute has a provision designed 

to assure that the death penalty will not be imposed



PROFFITT v. FLORIDA 15

on a capriciously selected group of convicted defendants. 
The Supreme Court of Florida reviews each death sen­
tence to ensure that similar results are reached in sim­
ilar cases.15

Nonetheless the petitioner attacks the Florida appel­
late review process because the role of the Supreme 
Court of Florida in reviewing death sentences is neces­
sarily subjective and unpredictable. While it may be 
true that that Court has not chosen to formulate a rigid 
objective test as its standard of review for all cases, it 
does not follow that the appellate review process is in­
effective or arbitrary. In fact, it is apparent that the 
Florida Court has undertaken responsibly to perform its 
function of death sentence review with a maximum of 
rationality and consistency. For example, it has sev­
eral times compared the circumstances of a case under 
review with those of previous cases in which it has as­
sessed the imposition of death sentences. See, e. g., Al­
ford v. State, 307 So. 2d 433, 445 (1975); Alvord v. State, 
322 So. 2d 533, 540-541 (1975). By following this pro­
cedure the Florida Court has in effect adopted the type 
of proportionality review mandated by the Georgia stat­
ute. Cf. Gregg v. Georgia, ante, pp. 47-49. And any 
suggestion that the Florida Court engages in only cursory 
or rubber stamp review of death penalty cases is to­
tally controverted by the fact that it has vacated over 
one-third of the death sentences that have come before 
it. See pp. 9-10, supra.16

15 State v. Dixon, 283 So. 2d, a t 10.
16 The petitioner also argues that since the Florida Court does 

not review sentences of life imprisonment imposed in capital cases 
or sentences imposed in cases where a capital crime was charged 
but where the jury convicted of a lesser offense, it will have an 
unbalanced view of the way that the typical jury treats a murder 
case and it will affirm death sentences under circumstances where 
the vast majority of judges would have imposed a sentence of life



16 PROFFITT v. FLORIDA

IV
Florida, like Georgia, has responded to Furman by 

enacting legislation that passes constitutional muster. 
That legislation provides that after a person is convicted 
of first-degree murder, there shall be an informed, 
focused, guided, and objective inquiry into the question 
whether he should be sentenced to death. If a death 
sentence is imposed, the sentencing authority articulates 
in writing the statutory reasons that led to its decision. 
Those reasons, and the evidence supporting them, are 
conscientiously reviewed by a court which, because of 
its statewide jurisdiction, can assure consistency, fairness, 
and rationality in the evenhanded operation of the state 
law. As in Georgia, this system serves to assure that sen­
tences of death will not be “wantonly” or “freakishly” 
imposed. See Furman v. Georgia, 408 U. S., at 310 
(S t ew a r t , J., concurring). Accordingly, the judgment 
before us is affirmed.

I t  is so ordered.

imprisonment. As we noted in Gregg v. Georgia, ante, p. 47 n. 56, 
this problem is not sufficient to raise a serious risk that the state 
capital-sentencing system will result in arbitrary and capricious 
imposition of the death penalty.



SUPREME COURT OF THE UNITED STATES

No. 76-5706

Charles William Proffitt, 
Petitioner, 

v.
State of Florida.

On Writ of Certiorari to the 
Supreme Court of Florida.

[July 2, 1976]

M r . J ustice  W h it e , with whom T h e  C h ie f  J ustice 
and M r . J u stice  R e h n q u is t  join, concurring in the 
judgment.

There is no need to repeat the statement of the facts 
of this case and of the statutory procedure under which 
the death penalty was imposed, both of which are de­
scribed in detail in the opinion of M r . J ustice  Stew art, 
M r . J u stice  P ow ell, and M r . J u stice  Steven s  (here­
inafter the plurality). I agree with the plurality, see 
Part III-B  (2) (a) and (b), ante, at 11-14, that although 
the statutory aggravating and mitigating circumstances 
are not susceptible to mechanical application as they are 
by no means so vague and overbroad as to leave the dis­
cretion of the sentencing authority unfettered. Under 
Florida law, the'sentencing judge is required to impose 
the death penalty on all first-degree murderers as to 
whom the statutory aggravating factors outweigh the 
mitigating factors. There is good reason to anticipate, 
then, that as to certain categories of murderers, the pen­
alty will not be imposed freakishly or rarely but will be 
imposed with regularily; and consequently it cannot be 
said that the death penalty in Florida as to those cate­
gories has ceased “to be a credible deterrent or measur­
ably to contribute to any other end of punishment in the 
criminal justice system.” Furman v. Georgia, 408 U. S.



2 PROFFITT v. FLORIDA

238, 311 (1972) (concurring opinion). Accordingly, the 
Florida statutory scheme for imposing the death penalty 
does not run afoul of this Court’s holding in Furman v. 
Georgia, swpra.

For the reasons set forth in my concurring opinion in 
Gregg v. Georgia, ante, at 18-20, and my dissenting opin­
ion in Roberts v. Louisiana, post, at 13-14, this conclusion 
is not undercut by the possibility that some murderers 
may escape the death penalty solely through exercise of 
prosecutorial discretion or executive clemency. For the 
reasons set forth in my dissenting opinion in Roberts v. 
Louisiana, post, at 14-17, I also reject petitioner’s argu­
ment that under the Eighth Amendment the death pen­
alty may never be imposed under any circumstances.

I concur in the judgment of affirmance.



SUPREME COURT OF THE UNITED STATES

No. 75-5706

Charles William Proffitt, 
Petitioner,

v.
On Writ of Certiorari to the 

Supreme Court of Florida.
State of Florida,

[July 2, 1976]

Mr. J u stice  B l a c k m u n , concurring in th e  judgment. 
I concur in the judgment. See Furman v. Georgia, 408 

U. S. 238, 405-414 (1972) (B l a c k m u n , J., dissenting), 
and id., at 375, 414, and 465.



(Slip Opinion)

NOTE : W here i t  is feasible, a  syllabus (headnote) w ill be re­
leased, as is being done in  connection w ith  th is  case, a t  th e  tim e 
the  opinion is issued. The syllabus constitu tes no p a r t  of th e  opinion 
of the  C ourt bu t has been prepared  by th e  R eporter of Decisions for 
th e  convenience of th e  reader. See U nited S ta tes  v. D etroit Lum ber  
Co., 200 D.S, 321, 337.

SUPREME COUBT OE THE UNITED STATES

Syllabus

JITREK v. TEXAS

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS 

No. 75-5394. Argued March 30, 1976—.Decided July 2, 1976

Petitioner, who was convicted of murder and whose death sentence 
was upheld on appeal, challenges the constitutionality of the 
Texas procedures enacted after this Court’s decision in Furman 
v. Georgia, 408 U. S. 238. The new Texas Penal Code limits 
capital homicides to intentional and knowing murders committed 
in five situations. Texas also adopted a new capital-sentencing 
procedure, which requires the jury to answer the following three 
questions in a proceeding that takes place after a verdict finding 
a person guilty of one of the specified murder categories: 
(1) whether the conduct of the defendant causing the death 
was committed deliberately and with the reasonable expectation 
that the death would result; (2) whether it is probable that the 
defendant would commit criminal acts of violence constituting a 
continuing threat to society; and (3) if raised by the evidence, 
whether the defendant’s conduct was an unreasonable response to 
the provocation, if any, by the deceased. If the jury finds that 
the State has proved beyond a reasonable doubt that the answer 
to each of the three questions is affirmative the death sentence 
is imposed; if it finds that the answer to any question is nega­
tive a sentence of life imprisonment results. The Texas Court 
of Criminal Appeals in this case indicated that it will interpret 
the “continuing threat to society” question to mean that the 
jury could consider various mitigating factors. Held: The judg­
ment is affirmed. Pp. 4-12 (opinion of Stewart, Powell, and 
Stevens, J J . ) ; p. — • (statement of Burger, C. J . ) ; pp. — - 
(opinion of White, J . ) ; p. ----  (statement of Blackmun, J.).

522 S. W. 2d 934, affirmed.
Mr. J ustice Stewart, Mr. J ustice Powell, and Mr. J ustice 

Stevens concluded that:
1. The imposition of the death penalty is not per se cruel and

i



JUREK v.  TEXAS

Syllabus

unusual punishment in violation of the Eighth and Fourteenth 
Amendments. Gregg, ante, at 11-30. Pp. 4—5.

2. The Texas capital-sentencing procedures do not violate the 
Eighth and Fourteenth Amendments. Texas’ action in narrow­
ing capital offenses to five categories in essence requires the jury 
to find the existence of a statutory aggravating circumstance be­
fore the death penalty may be imposed, thus requiring the sen­
tencing authority to focus on the particularized nature of the 
crime. And, though the Texas statute does not explicitly speak 
of mitigating circumstances, it has been construed to embrace the 
jury’s consideration of such circumstances. Thus, as in the cases 
of Gregg v. Georgia, ante, p. — , and Proffitt v. Florida, ante,
p. ---- , the Texas capital-sentencing procedure guides and focuses
the jury’s objective consideration of the particularized circum­
stances of the individual offense and the individual offender be­
fore it can impose a sentence of death. The Texas law has thus 
eliminated the arbitrariness and caprice of the system invalidated 
in Furman. Petitioner’s contentions to the contrary are without 
substance. Pp. 5-12.

(a) His assertion that arbitrariness still pervades the entire 
Texas criminal justice system fundamentally misinterprets Furman. 
Gregg, ante, at 41-42. P. 11.

(b) Petitioner’s contention that the second statutory ques­
tion is unconstitutionally vague because it requires the prediction 
of human behavior lacks merit. The jury’s task in answering that 
question is one that must commonly be performed throughout the 
American criminal justice system, and Texas law clearly satisfies 
the essential requirement that the jury have all possible relevant 
information about the individual defendant. Pp. 11-12.

T he Chief Justice concurred in the judgment. See Furman 
v. Georgia, 408 U. S. 238, 375 (Burger, C. J., dissenting).

Mr. J ustice White, joined by T he Chief J ustice and Mr. 
J ustice Rehnquist, concluded that under the revised Texas law 
the substantive crime of murder is narrowly defined and when 
murder occurs in one of the five circumstances detailed in the stat­
ute, the death penalty must be imposed if the jury makes the 
certain additional findings against the defendant. Petitioner’s 
contentions that unconstitutionally arbitrary or discretionary 
statutory features nevertheless remain are without substance, as 
is his assertion that the Eighth Amendment forbids the death 
penalty under any and all circumstances. Roberts v. Louisiana, 
post, at •—  (White, J., dissenting). P p .---------—.



JUREK v. TEXAS i n

Syllabus

Mb, J ustice Blackmun concurred in the judgment. See Fur­
man v. Georgia, 408 U. S. 238, 405-414 (Blackmun, J., dissent­
ing), and id., at 375, 414, and 465.

Stewart, Powell, and Stevens, JJ., announced the judgment of 
the Court and filed an opinion delivered by Stevens, J. Burger, 
C. J., filed a statement concurring in the judgment. White, J., 
filed an opinion concurring in the judgment, in which Burgee, C. J., 
and Rehnquist, J., joined. Blackmun, J., filed a statement con­
curring in the judgment. Brennan and Marshall, JJ., filed 
dissenting opinions, see No. 74^-6257.



NOTICE : T his opinion is sub ject to  form al revision before publication 
in th e  p relim inary  p r in t of th e  U nited S ta tes Reports. R eaders are  re­
quested to  notify  th e  R eporter of Decisions, Supreme C ourt of the  
U nited S ta tes, W ashington, D.C. 20543, of any typographical or o ther 
form al erro rs, in o rder th a t  corrections may be made before th e  pre­
lim inary  p r in t goes to press.

SUPREME COURT OF THE UNITED STATES

No. 75-5394

Jerry Lane Jurek, Petitioner,
v.

State of Texas.

On Writ of Certiorari to 
the Court of Criminal 
Appeals of Texas.

[July 2, 1976]

M r . J u stice  Stew art, M r . J u stice  P o w ell , and M r . 
J u stice  Stevens  announced the judgment of the Court 
and filed an opinion delivered by  M r . J u stice  Stev en s .

The issue in this case is whether the imposition of the 
sentence of death for the crime of murder under the law 
of Texas violates the Eighth and Fourteenth Amend­
ments to the Constitution.

I
The petitioner in this case, Jerry Lane Jurek, was 

charged by indictment with the killing of Wendy Adams 
“by choking and strangling her with his hands, and by 
drowning her in the water, by throwing her into a 
river . . .  in the course of committing and attempting to 
commit kidnapping of and forcible rape upon the said 
Wendy Adams.” 1

1 At the time of the charged offense, Texas law provided that 
“ [wjhoever shall voluntarily kill any person within this state shall 
be guilty of murder. Murder shall be distinguished from every 
other species of homicide by the absence of circumstances which 
reduce the offense to negligent homicide or which excuse or justify 
the killing.” Texas Penal Code, Art. 1256 (1973).

Under the new Texas Penal Code (effective January 1, 1974), 
murder is now defined by § 19.02 (a ) :
“A person commits an offense if he:
“ (1) intentionally or knowingly causes the death of an individual;



2 JUREK v. TEXAS

The evidence at his trial consisted of incriminating 
statements made by the petitioner,2 the testimony of 
several people who saw the petitioner and the deceased

“ (2) intends to cause serious body injury and commits an act clearly 
dangerous to human life that causes the death of an individual; or 
“ (3) commits or attempts to commit a felony, other than voluntary 
or involuntary manslaughter, and in the course of and in furtherance 
of the commission or attempt, he commits or attempts to commit 
an act clearly dangerous to human life that causes the death of an 
individual,”

Texas law prescribed the punishment for murder as follows:
“ (a) Except as provided in subsection (b) of this Article, the 
punishment for murder shall be confinement in the penitentiary for 
life or for any term of years not less than two.
“ (b) The punishment for murder with malice aforethought shall be 
death or imprisonment for life if:

“ (1) the person murdered a peace officer or fireman who was 
acting in the lawful discharge of an official duty and who the 
defendant knew was a peace officer or fireman;

“ (2) the person intentionally committed the murder in the course 
of committing or attempting to commit kidnapping, burglary, rob­
bery, forcible rape, or arson;

“ (3) the person committed the murder for remuneration or the 
promise of remuneration or employed another to commit the murder 
for remuneration or the promise of remuneration;

“ (4) the person committed the murder while escaping or attempt­
ing to escape from a penal institution;

“ (5) the person, while incarcerated in a penal institution, mur­
dered another who was employed in the operation of the penal 
institution.
“ (c) If the jury does not find beyond a reasonable doubt that the 
murder was committed under one of the circumstances or conditions 
enumerated in Subsection (b) of this Article, the defendant may be 
convicted of murder, with or without malice, under Subsection (a) 
of this Article, or of any other lesser included offenses.” Texas 
Penal Code, Art. 1257 (1973).
Article 1257 has been superseded by Section 19.03 of the new Texas 
Penal Code, which is substantially similar to Article 1257.

2 The court held a separate hearing to determine whether these



JUREK v. TEXAS 3

during the day she was killed, and certain technical evi­
dence. This evidence established that the petitioner, 22 
years old at the time, had been drinking beer in the 
afternoon. He and two young friends later went driving 
together in his old pickup truck. The petitioner ex­
pressed a desire for sexual relations with some young 
girls they saw, but one of his companions said the girls 
were too young. The petitioner then dropped his two 
friends off at a pool hall. He was next seen talking to 
Wendy, who was 10 years old, at a public swimming pool 
where her grandmother had left her to swim. Other 
witnesses testified that they later observed a man resem­
bling the petitioner driving an old pickup truck through 
town at a high rate of speed, with a young blond girl 
standing screaming in the bed of the truck. The last 
witness who saw them heard the girl crying “help me, 
help me.” The witness tried to follow them, but lost 
them in traffic. According to the petitioner’s statement, 
he took the girl to the river, choked her,* 3 and threw her 
unconscious body in the river. Her drowned body was 
found downriver two days later.

At the conclusion of the trial the jury returned a 
verdict of guilty.

Texas law requires that if a defendant has been con­
victed of a capital offense, the trial court must conduct 
a separate sentencing proceeding before the same jury 
that tried the issue of guilt. Any relevant evidence may 
be introduced at this proceeding, and both prosecution

statements were given voluntarily, and concluded that they were. 
The question of the voluntariness of the confessions was also sub­
mitted to the jury. The Court of Criminal Appeals affirmed the 
admissibility of the statements. 522 S. W. 2d, at 943.

3 The petitioner originally stated that he started choking Wendy 
when she angered him by criticizing him and his brother for their 
drinking. In a later statement he said that he choked her after 
she refused to have sexual relations with him and started screaming.



4 JUREK v. TEXAS

and defense may present argument for or against the 
sentence of death. The jury is then presented with two 
(sometimes three) questions,4 the answers to which de­
termine whether a death sentence will be imposed.

During the punishment phase of the petitioner’s trial, 
several witnesses for the State testified to the petitioner’s 
bad reputation in the community. The petitioner’s 
father countered with testimony that the petitioner had 
always been steadily employed since he had left school 
and that he contributed to his family’s support.

The jury then considered the two statutory questions 
relevant to this case: (1) whether the evidence estab­
lished beyond a reasonable doubt that the murder of the 
deceased was committed deliberately and with the rea­
sonable expectation that the death of the deceased or 
another would result, and (2) whether the evidence 
established beyond a reasonable doubt that there was 
a probability that the defendant would commit criminal 
acts of violence that would constitute a continuing threat 
to society. The jury unanimously answered yes to both 
questions, and the judge, therefore, in accordance with 
the statute, sentenced the petitioner to death. The 
Court of Criminal Appeals of Texas affirmed the judg­
ment. Jurek v. State, 522 S. W. 2d 934 (1975).

We granted certio ra ri,----U. S. ------ •, to consider
whether the imposition of the death penalty in this case 
violates the Eighth and Fourteenth Amendments of the 
United States Constitution.

II
The petitioner argues that the imposition of the death 

penalty under any circumstances is cruel and unusual 
punishment in violation of the Eighth and Fourteenth

4 See pp. 5-6, infra.



JUREK v. TEXAS 5

Amendments. We reject this argument for the reasons 
stated today in Gregg v. Georgia, ante, pp. 11—30.

I l l
A

After this Court held Texas’ system, for imposing capital 
punishment unconstitutional in Branch v. Texas, decided 
sub nom. Furman v. Georgia, 408 U. S. 238 (1972), the 
Texas Legislature narrowed the scope of its laws relating 
to capital punishment. The new Texas Penal Code 
limits capital homicides to intentional and knowing mur­
ders committed in five situations: murder of a peace 
officer or fireman; murder committed in the course of 
kidnapping, burglary, robbery, forcible rape, or arson; 
murder committed for remuneration; murder committed 
while escaping or attempting to escape from a penal 
institution; and murder committed by a prison inmate 
when the victim is a prison employee. See Texas Penal 
Code § 19.03 (1974).

In addition, Texas adopted a new capital-sentencing 
procedure. See Texas Code of Crim. Proe., Art. 37.071 
(Supp. 1975-1976). That procedure requires the jury 
to answer three questions in a proceeding that takes 
place subsequent to the return of a verdict finding a 
person guilty of one of the above categories of murder. 
The questions the jury must answer are these:

“(1) whether the conduct of the defendant that 
caused the death of the deceased was committed 
deliberately and with the reasonable expectation 
that the death of the. deceased or another would 
result ;
“(2) whether there is a probability that the defend­
ant would commit criminal acts of violence that 
would constitute a continuing threat to society; 
and



6 JUREK v. TEXAS

“ (3) if raised by the evidence, whether the conduct 
of the defendant in killing the deceased was unrea­
sonable in response to the provocation, if any, by 
the deceased.” Texas Code Crim. Proc., Art. 37.071 
(b) (Supp. 1975-1976).

If the jury finds that the State has proved beyond 
a reasonable doubt that the answer to each of the three 
questions is yes, then the death sentence is imposed. If 
the jury finds that the answer to any question is no, then 
a sentence of life imprisonment results. Texas Code 
Crim. Proc., Art. 37.071 (c), (e) (Supp. 1975-1976).5 
The law also provides for an expedited review by the 
Texas Court of Criminal Appeals. See Texas Code Crim. 
Proc., Art. 37.071 (f) (Supp. 1975-1976).

The Texas Court of Criminal Appeals has thus far 
affirmed only two judgments imposing death sentences 
under its post-Furman law—in this case and in Smith v. 
State, No. 49,809 (Feb. 18, 1976). In the present case 
the state appellate court noted that its law “limits the 
circumstances under which the State may seek the death 
penalty to a small group of narrowly defined and par­
ticularly brutal offenses. This insures that the death 
penalty will be imposed only for the most serious crimes 
[and] that [it] will only be imposed for the same type 
of offenses which occur under the same type of circum­
stances.” 522 S. W. 2d, at 939.

While Texas has not adopted a list of statutory aggra­
vating circumstances the existence of which can justify 
the imposition of the death penalty as have Georgia and

5 The jury can answer yes only if all members agree; it can 
answer no if 10 of 12 members agree. Texas Code Crim. Proc., 
Art. 37.071 (d) (Supp. 1975-1976). Texas law is unclear as to the 
procedure to be followed in the event that the jury is unable to 
answer the questions. See Vernon’s Texas Codes Annotated—Penal 
§19.03, Practice Commentary, p. 107 (1974).



JUREK v. TEXAS 7

Florida, its action in narrowing the categories of murders 
for which a death sentence may ever be imposed serves 
much the same purpose. See McGautha v. California, 
402 U. S. 183, 206 n. 16 (1971); Model Penal Code 
§ 201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). 
In fact, each of the five classes of murders made capital 
by the Texas statute is encompassed in Georgia and 
Florida by one or more of their statutory aggravating 
circumstances. For example, the Texas statute requires 
the jury at the guilt determining stage to consider 
whether the crime was committed in the course of a 
particular felony, whether it was committed for hire, or 
whether the defendant was an inmate of a penal insti­
tution at the time of its commission. Cf. Gregg v. 
Georgia, ante, pp. 8-9, n. 9; Proffitt v. Florida, ante, pp. 
5-6, n. 6. Thus, in essence, the Texas statute requires that 
the jury find the existence of a statutory aggravating cir­
cumstance before the death penalty may be imposed. So 
far as consideration of aggravating circumstances is con­
cerned, therefore, the principal difference between Texas 
and the other two States is that the death penalty is 
an available sentencing option-—even potentially—for a 
smaller class of murders in Texas. Otherwise the stat­
utes are similar. Each requires the sentencing authority 
to focus on the particularized nature of the crime.

But a sentencing system that allowed the jury to con­
sider only aggravating circumstances would almost cer­
tainly fall short of providing the individualized sentenc­
ing determination that we today have held in Woodson v. 
North Carolina, post, pp. 22-24, to be required by the 
Eighth and Fourteenth Amendments. For such a system 
would approach the mandatory laws that we today hold 
unconstitutional in Woodson and Roberts v. Louisiana, 
post.6 A jury must be allowed to consider on the basis

6 When the drafters of the Model Penal Code considered a pro-



8 JUREK v. TEXAS

of all relevant evidence not only why a death sentence 
should be imposed, but also why it should not be 
imposed.

Thus, in order to meet the requirement of the Eighth 
and Fourteenth Amendments, a capital-sentencing sys­
tem must allow the sentencing authority to consider 
mitigating circumstances. In Gregg v. Georgia, we today 
hold constitutionally valid a capital-sentencing system 
that directs the jury to consider any mitigating factors, 
and in Proffitt v. Florida we likewise hold constitutional 
a system that directs the judge and advisory jury to 
consider certain enumerated mitigating circumstances. 
The Texas statute does not explicitly speak of mitigating 
circumstances; it directs only that the jury answer three 
questions. Thus, the constitutionality of the Texas pro­
cedures turns on whether the enumerated questions allow 
consideration of particularized mitigating factors.

The second Texas statutory question * 7 asks the jury

posal that would have simply listed aggravating factors as sufficient 
reasons for imposition of the death penalty, they found the proposal 
unsatisfactory:

“Such an approach has the disadvantage, however, of according 
disproportionate significance to the enumeration of aggravating cir­
cumstances when what is rationaEy necessary is . . . the balancing 
of any aggravations against any mitigations that appear. The object 
sought is better attained, in our view, by requiring a finding that 
an aggravating circumstance has been established and a finding 
that there are no substantial mitigating circumstances.” Model 
Penal Code §201.6, Comment 3, p. 72 (Tent. Draft No. 9, 1959) 
(emphasis original).

7 The Texas Court of Criminal Appeals has not yet construed 
the first and third questions (which are set out in the text a t 5-6, 
supra) ; thus it is as yet undetermined whether or not the jury’s 
consideration of those questions would properly include considera­
tion of mitigating circumstances. In at least some situations the 
questions could, however, comprehend such an inquiry. For, 
example, the third question asks whether the conduct of the defendant



JUREK v. TEXAS 9

to determine “whether there is a probability that the 
defendant would commit criminal acts of violence that 
would constitute a continuing threat to society” if he 
were not sentenced to death. The Texas Court of Crim­
inal Appeals has yet to define precisely the meanings of 
such terms as “criminal acts of violence” or “continuing 
threat to society.” In the present case, however, it indi­
cated that it will interpret this second question so as to 
allow a defendant to bring to the jury’s attention what­
ever mitigating circumstances he may be able to show:

“In determining the likelihood that the defendant 
would be a continuing threat to society, the jury 
could consider whether the defendant had a signifi­
cant criminal record. I t could consider the range 
and severity of his prior criminal conduct. I t could 
look further to the age of the defendant and whether 
or not at the time of the commission of the offense 
he was acting under duress or under the domination 
of another. I t could also consider whether the de­
fendant was under an extreme form of mental or 
emotional pressure, something less, perhaps, than 
insanity, but more than the emotions of the aver­
age man, however inflamed, could withstand.” 522 
S. W. 2d, at 939-940.

In the only other case in which the Texas Court of 
Criminal Appeals has upheld a death sentence, it focused 
on the question of whether any mitigating factors were

was unreasonable in response to any provocation by the deceased. 
This might be construed to allow the jury to consider circumstances 
which, though not sufficient as a defense to the crime itself, might 
nevertheless have enough mitigating force to avoid the death 
penalty—a claim, for example, that a woman who hired an assassin 
to kill her husband was driven to it by his continued cruelty to 
her. We cannot, however, construe the statute; that power is 
reserved to the Texas courts.



10 JUREK v. TEXAS

present in the case. See Smith  v. State, No. 49,809 
(Feb. 18, 1976). In that case the state appellate court 
examined the sufficiency of the evidence to see if a “yes” 
answer to question 2 should be sustained. In doing so 
it examined the defendant's prior conviction on narcotics 
charges, his subsequent failure to attempt to rehabilitate 
himself or obtain employment, the fact that he had not 
acted under duress or as a result of mental or emotional 
pressure, his apparent willingness to kill, his lack of 
remorse after the killing, and the conclusion of a psy­
chiatrist that he had a soeiopathic personality and that 
his patterns of conduct would be the same in the future 
as they had been in the past.

Thus, Texas law essentially requires that one of five 
aggravating circumstances be found before a defendant 
can be found guilty of capital-murder, and that in con­
sidering whether to impose a death sentence the jury 
may be asked to consider whatever evidence of mitigat­
ing circumstances the defense can bring before it. I t  
thus appears that, as in Georgia and Florida, the Texas 
capital-sentencing procedure guides and focuses the 
jury’s objective consideration of the particularized cir­
cumstances of the individual offense and the individual 
offender before it can impose a sentence of death.

B
As in the Georgia and Florida cases, however, the peti­

tioner contends that the substantial legislative changes 
that Texas made in response to this Court’s Furman 
decision are no more than cosmetic in nature and have 
in fact not eliminated the arbitrariness and caprice of 
the system held in Furman to violate the Eighth and 
Fourteenth Amendments.8

8 See Branch v. Texas, decided sub nom. Furman v. Georgia, 408 
U. S. 238 (1972).



JUREK v. TEXAS 11

( 1)
The petitioner first asserts that arbitrariness still per­

vades the entire criminal justice system of Texas—from 
the prosecutor’s decision whether to charge a capital 
offense in the first place and then whether to engage 
in plea bargaining, through the jury’s consideration of 
lesser included offenses, to the Governor’s ultimate power 
to commute death sentences. This contention funda­
mentally misinterprets the Furman decision, and we 
reject it for the reasons set out in our opinion today 
in Gregg v. Georgia, ante, pp. 41-42.

( 2)
Focusing on the second statutory question that Texas 

requires a jury to answer in considering whether to 
impose a death sentence, the petitioner argues that it 
is impossible to predict future behavior and that the 
question is so vague as to be meaningless. I t  is, of 
course, not easy to predict future behavior. The fact 
that such a determination is difficult, however, does not 
mean that it cannot be made. Indeed, prediction of 
future criminal conduct is an essential element in many 
of the decisions rendered throughout our criminal justice 
system. The decision whether to admit a defendant to 
bail, for instance, must often turn on a judge’s prediction 
of the defendant’s future conduct.9 And any sentencing 
authority must predict a convicted person’s probable

9 See, e. g., ABA Standards Relating to Pretrial Release § 5.1 (a ) : 
“I t should be presumed that the defendant is entitled to be released 
on order to appear or on his own recognizance. The presumption 
may be overcome by a finding that there is substantial risk of non- 
appearance. . . .  In capital cases, the defendant may be detained 
pending trial if the facts support a finding that the defendant is 
likely to commit a serious crime, intimidate witnesses or otherwise 
interfere with the administration of justice or will flee if released.”



12 JUREK v. TEXAS

future conduct when it engages in the process of deter­
mining what punishment to impose.10 11 For those sen­
tenced to prison, these same predictions must be made 
by parole authorities.11 The task that a Texas jury 
must perform in answering the statutory question in 
issue is thus basically no different from the task per­
formed countless times each day throughout the Ameri­
can system of criminal justice. What is essential is that 
the jury have before it all possible relevant information 
about the individual defendant whose fate it must deter­
mine. Texas law clearly assures that all such evidence 
will be adduced.

IV
We conclude that Texas’ capital-sentencing proce-

10 See, e. g., ABA Standards Relating to Sentencing Alternatives 
and Procedures § 2.5 (c ) : “A sentence not involving total confine­
ment is to be preferred in the absence of affirmative reasons to the 
contrary. Examples of legitimate reasons for the selection of total 
confinement in a given case are: (i) Confinement is necessary in 
order to protect the public from further criminal activity by the 
defendant . . .

A similar conclusion was reached by the drafters of the Model 
Penal Code:

“The Court shall deal with a person who has been convicted of 
a crime without imposing sentence of imprisonment unless, having 
regard to the nature and circumstances of the crime and the history, 
character and condition of the defendant, it is of the opinion that 
his imprisonment is necessary for protection of the public because: 
(a) there is undue risk that during the period of a suspended sen­
tence or probation the defendant will commit another crime.” 
Model Penal Code §7.01 (1) (Proposed Official Draft, 1962).

11 See, e. g., Model Penal Code §305.9 (1) (Proposed Official 
Draft, 1962):

“Whenever the Board of Parole considers the first release of a 
prisoner who is eligible for release on parole, it shall be the policy 
of the Board to order his release, unless the Board is of the opinion 
that his release should be deferred because: (a) there is a substan­
tial risk that he will not conform to the conditions of parole . . .



JUREK v.  TEXAS 13

dures, like those of Georgia and Florida, do not violate 
the Eighth and Fourteenth Amendments. By narrow­
ing its definition of capital murder, Texas has essentially 
said that there must be at least one statutory aggravat­
ing circumstance in a first-degree murder case before a 
death sentence may even be considered. By authorizing 
the defense to bring before the jury at the separate 
sentencing hearing whatever mitigating circumstances 
relating to the individual defendant can be adduced, 
Texas has ensured that the sentencing jury will have 
adequate guidance to enable it to perform its sentencing 
function. By providing prompt judicial review of the 
jury’s decision in a court with statewide jurisdiction, 
Texas has provided a means to promote the evenhanded, 
rational, and consistent imposition of death sentences 
under law. Because this system serves to assure that 
sentences of death will not be “wantonly” or “freakishly” 
imposed, it does not violate the Constitution. Furman 
v. Georgia, 408 U. S., at 310 (S tew art, J., concurring). 
Accordingly, the judgment of the Texas Court of Crim­
inal Appeals is affirmed.

I t  is so ordered.



SUPREME COUKT 0 1  THE UNITED STATES
No. 75-5394

Jerry Lane Jurek, Petitioner, 
v.

State of Texas.

On Writ of Certiorari to 
the Court of Criminal 
Appeals of Texas.

[July 2, 1976]

Mr. C h ie f  J u stice  B urger, concurring.
I concur in the judgment. See Furman v. Georgia, 408 

U. S. 238, 375 (1972) (B urger, C. J., dissenting).



SUPEEME COUET OF THE UNITED STATES
No. 75-5394

Jerry Lane Jurek, Petitioner, 
v.

State of Texas.

On Writ of Certiorari to 
the Court of Criminal 
Appeals of Texas.

[July 2, 1976]

Mr. J u stice  W h it e , with whom T h e  C h ie f  J ustice  
and Mr. J u stice  R e h n q u is t  join, concurring in the 
judgment.

Following the invalidation of the Texas capital pun­
ishment statute in Branch v. Texas, decided with Fur­
man v. Georgia, 408 U. S. 238 (1972), the Texas Legisla­
ture re-enacted the death penalty for five types of mur­
der, including murders committed in the course of certain 
felonies and required that it be imposed providing that, 
after returning a guilty verdict in such murder cases and 
after a sentencing proceeding at which all relevant evi­
dence is admissable, the jury answers two questions in 
the affirmative—and a third if raised by the evidence: 

“ (1) whether the conduct of the defendant that 
caused the death of the deceased was committed de­
liberately and with the reasonable expectation that 
the death of the deceased or another would result;
(2) whether there is a probability that the defend­
ant 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 unreason­
able in response to the provocation, if any, by the 
deceased.”

The question in this case is whether the death penalty 
imposed on Jerry Lane Jurek for the crime of felony 
murder may be carried out consistently with the Eighth 
and Fourteenth Amendments.



2 JUREK v.  TEXAS

The opinion of Mr. J u stice  Stew art, Mr. J ustice  
P ow ell, and Mr. J u stice  Steven s  (hereinafter the 
plurality) describes, and I shall not repeat, the facts of 
the crime and proceedings leading to the imposition of 
the death penalty when the jury unanimously gave its 
affirmative answers to the relevant questions posed in 
the judge’s post-verdict instructions. I also agree with 
the plurality that the judgment of the Texas Criminal 
Court of Appeals, which affirmed the conviction and 
judgment, must be affirmed here. Jurek v. State, 522 
S. W. 2d 934 (1975).

For the reasons stated in my dissent in Roberts v. 
Louisiana, post, I cannot conclude that the Eighth 
Amendment forbids the death penalty under any and 
all circumstances. I also cannot agree with petitioner’s 
other major contention that under the new Texas stat­
ute and the State’s criminal justice system in general, 
the criminal jury and other law enforcement officers ex­
ercise such a range of discretion that the death penalty 
will be imposed so seldom, so arbitrarily and so freak­
ishly that the new statute suffers from the infirmities 
which Branch v. Texas found in its predecessor. Under 
the revised law, the substantive crime of murder is de­
fined; and when a murder occurs in one of the five cir­
cumstances set out in the statute, the death penalty 
must be imposed if the jury also makes the certain ad­
ditional findings against the defendant. Petitioner 
claims that the additional questions upon which the 
death sentence depends are so vague that in essence the 
jury possesses standardless sentencing power; but I 
agree with the plurality that the issues posed in the 
sentencing proceeding have a common-sense core of 
meaning and that criminal juries should be capable of 
understanding them. The statute does not extend to 
juries discretionary power to dispense mercy, and it



JUREK v.  TEXAS 3

should not be assumed that juries will disobey or nullify 
their instructions. As of February of this year, 33 
persons, including petitioner, had been sentenced to 
death under the Texas murder statute. I cannot con­
clude at this juncture that the death penalty under this 
system will be imposed so seldom and arbitrarily as to 
serve no useful penological function and hence fall within 
reach of the decision announced by five Members of the 
Court in Furman v. Georgia.

Nor, for the reasons I have set out in Roberts, post, 
and Gregg, ante, am I convinced that this conclusion 
should be modified because of the alleged discretion 
which is exercisable by other major functionaries in the 
State’s criminal justice system. Furthermore, as the 
plurality states and as the Texas Court of Criminal Ap­
peals has noted, the Texas capital punishment statute 
limits the imposition of the death penalty to a narrowly 
defined group of the most brutal crimes and aims at 
limiting its imposition to similar offenses occurring under 
similar circumstances. 522 S. W. 2d, at 939.

I concur in the judgment of affrmance.



SUPREME COURT OF THE UNITED STATES
No. 75-5394

Jerry Lane Jurek, Petitioner, 
v.

State of Texas.

On Writ of Certiorari to 
the Court of Criminal 
Appeals of Texas.

[July 2, 1976]

M r . J u stice  B l a c k m u n , concurring  in  th e  judgm ent.

I concur in the judgment. See Furman v. Georgia, 408 
U. S. 238, 405-414 (1972) (B l a c k m u n , J., dissenting), 
and id., at 375, 414, and 465.



(Slip Opinion)

N O TE: W here i t  is feasible, a  syllabus (headnote) w ill be re ­
leased, as is being done in connection w ith  th is  case, a t  th e  tim e 
the  opinion is issued. The syllabus constitu tes no p a r t of th e  opinion 
of th e  C ourt bu t has been prepared  by th e  R eporter of Decisions for 
th e  convenience of th e  reader. See United S ta te s  v. D etroit Lum ber 
Co., 200 U.S. 321, 337.

SUPBEME COURT OF THE UNITED STATES

Syllabus

WOODSON E T  AL. V . NORTH CAROLINA

C ER TIO R A R I TO T H E  S U P R E M E  CO U RT O F N O R T H  CA R O LIN A  

No. 75-5491. Argued March 31, 1976—Decided July 2, 1976

Following this Court’s decision in Furman v. Georgia, 408 U. S. 
238, the North Carolina law that previously had provided that 
in cases of first-degree murder the jury in its unbridled discretion 
could choose whether the convicted defendant should be sen­
tenced to death or life imprisonment was changed to make the 
death penalty mandatory for that crime. Petitioners, whose 
convictions of first-degree murder under the new statute were up­
held by the Supreme Court of North Carolina, have challenged the 
statute’s constitutionality. Held: The judgment is reversed and 
the case is remanded. Pp. 3-24 (opinion of St e w a r t , P o w e l l , 
and St e v e n s , J J . ) ; p. 1 (statement of B r e n n a n , J . ) ; p. 1 
(statement of M a r s h a l l , J.).

287 N. C. 578, 215 S. E. 2d 607, reversed and remanded.
M.r . J u s t ic e  S t e w a r t , M r . J u s t ic e  P o w e l l , and M r . J u s t ic e  

S t e v e n s  concluded that North Carolina’s mandatory death sen­
tence statute violates the Eighth and Fourteenth Amendments. 
Pp. 3-24.

(a) The Eighth Amendment serves to assure that the State’s 
power to punish is “exercised within the limits of civilized stand­
ards,” Trop v. Dulles, 356 U. S. 86, 100 (plurality opinion), and 
central to the application of the Amendment is a determination of 
contemporary standards regarding the infliction of punishment, 
Gregg v. Georgia, ante, a t -— . Pp. 6-7.

(b) Though at the time the Eighth Amendment was adopted, 
all the States provided mandatory death sentences for specified 
offenses, the reaction of jurors and legislators to the harshness of 
those provisions has led to the replacement of automatic death 
penalty statutes with discretionary jury sentencing. The two 
crucial indicators of evolving standards of decency respecting the

i



WOODSON v. NORTH CAROLINA

Syllabus

imposition of punishment in our society—jury determinations and 
legislative enactments—conclusively point to the repudiation of 
automatic death sentences. “The belief no longer prevails that 
every offense in a like legal category calls for an identical pun­
ishment without regard to the past life and habits of a particular 
offender,” Williams v. New York, 337 U. S. 241, 247. North 
Carolina’s mandatory death penalty statute for first-degree mur­
der, which resulted from the State Legislature’s adoption of the 
State Supreme Court’s analysis that Furman required the sev­
erance of the discretionary feature of the old law, is a constitu­
tionally impermissible departure from contemporary standards re­
specting imposition of the unique and irretrievable punishment 
of death. Pp. 7-20.

(c) The North Carolina statute fails to. provide a constitution­
ally tolerable response to Furman’s rejection of unbridled jury 
discretion in the imposition of capital sentences. Central to the 
limited holding in that case was the conviction that vesting a 
jury with standardless sentencing power violated the Eighth 
and Fourteenth Amendments, yet that constitutional deficiency 
is not eliminated by the mere formal removal of all sentencing 
power from juries in capital cases. In view of the historic rec­
ord, it may reasonably be assumed that many juries under man­
datory statutes will continue to consider the grave consequences 
of a conviction in reaching a verdict. But the North Carolina 
statute provides no standards to guide the jury in determining 
which murderers shall live and which shall die. Pp. 21-22.

(d) The respect for human dignity underlying the Eighth 
Amendment, Trop v. Dulles, supra, at 100 (plurality opinion), 
requires consideration of aspects of the character of the individual 
offender and the circumstances of the particular offense as a con­
stitutionally indispensable part of the process of imposing the 
ultimate punishment of death. The North Carolina statute im­
permissibly treats all persons convicted of a designated offense 
not as uniquely individual human beings, but as members of a 
faceless, undifferentiated mass to be subjected to the blind inflic­
tion of the death penalty, Pp. 22-24.

Mr. J u s t ic e  B r e n n a n  concurred in the judgment for the rea­
sons stated in his dissenting opinion in Gregg v. Georgia, ante, 
a t ---- .

Mr. J u s t ic e  M a r s h a l l , being of the view that death is  a cruel 
and unusual punishment forbidden by the Eighth and Fourteenth



WOODSON v. NORTH CAROLINA in

Syllabus

Amendments, concurred in the judgment. Gregg v. Georgia, ante, 
at —  ( M a r s h a l l , J., dissenting).

St e w a r t , P o w e l l , and S t e v e n s , JJ., announced the judgment of 
the Court and filed an opinion delivered b y  S t e w a r t , J. B r e n n a n  
and M a r s h a l l , JJ., filed statements concurring in the judgment. 
W h i t e , J., filed a dissenting opinion, in which B u r g e r , C. J., and 
R e h n q u i s t , J., joined. B l a c k m u n , J., filed a dissenting statement. 
R e h n q u i s t , J., filed a dissenting opinion.



NOTICE : T his opinion is subject to  form al revision before publication 
in th e  p relim inary  p r in t of th e  U nited S ta tes  Reports. R eaders a re  re­
quested to  notify  th e  R eporter of Decisions, Supreme C ourt of the 
U nited S ta tes, W ashington, D.C. 20543, of any typographical or o ther 
form al erro rs, in o rder th a t  corrections may be made before th e  pre­
lim inary  p rin t goes to  press.

SUPREME COURT OF THE UNITED STATES

No. 75-5491

James Tyrone Woodson 
and Luby Waxton, 

Petitioners, 
v.

On Writ of Certiorari to the 
Supreme Court of North 
Carolina.

State of North Carolina.,

[July 2, 1976]

Mr. J u stice  Stew art, Mr. J u stice  P o w ell , and Mr. 
J u stice  Steven s  announced the judgment of the Court 
and filed an opinion delivered by  Mr. J u stice  Stew art .

The question in this case is whether the imposition of 
a death sentence for the crime of first-degree murder un­
der the law of North Carolina violates the Eighth and 
Fourteenth Amendments.

I
The petitioners were convicted of first-degree murder 

as the result of their participation in an armed robbery 
of a convenience food store, in the course of which the 
cashier was killed and a customer was seriously wounded. 
There were four participants in the robbery: the peti­
tioners Tyrone Woodson and Luby Waxton and two 
others, Leonard Tucker and Johnnie Lee Carroll. At 
the petitioners’ trial Tucker and Carroll testified for the 
prosecution after having been permitted to plead guilty 
to lesser offenses; the petitioners testified in their own 
defense.

The evidence for the prosecution established that the 
four men had been discussing a possible robbery for 
some time. On the fatal day Woodson had been drink­
ing heavily. About 9.30 p. m., Waxton and Tucker came



2 WOODSON v. NORTH CAROLINA

t o . the trailer where Woodson was staying. When 
Woodson came out of the trailer, Waxton struck him 
in the face and threatened to kill him in an effort to 
make him sober up and come along on the robbery. The 
three proceeded to Waxton’s trailer where they met Car- 
roll. Waxton armed himself with a nickel-plated der­
ringer, and Tucker handed Woodson a rifle. The four 
then set out by automobile to rob the store. Upon ar­
riving at their, destination Tucker and Waxton went 
into the store while Carroll and Woodson remained in the 
car as lookouts. Once inside the store, Tucker purchased 
a package of cigarettes from the woman cashier. Waxton 
then also asked for a package of cigarettes, but as the 
cashier approached him he pulled the derringer out of his 
hip pocket and fatally shot her at point-blank range. 
Waxton then took the money tray from the cash register 
and gave it to Tucker, who carried it out of the store, 
pushing past an entering customer as he reached the door. 
After he was outside, Tucker heard a second shot from 
inside the store, and shortly thereafter Waxton emerged, 
carrying a handful of paper money. Tucker and Wax- 
ton got in the car and the four drove away.

The petitioners’ testimony agreed in large part with 
this version of the circumstances of the robbery. I t  dif­
fered diametrically in one important respect: Waxton 
claimed he never had a gun, and that Tucker had shot 
both the cashier and the customer.

During the trial Waxton asked to be allowed to plead 
guilty to the same lesser offenses to which Tucker had 
pleaded guilty,1 but the solicitor refused to accept the

1Tucker had been allowed to plead guilty to charges of accessory 
after the fact to murder and to armed robbery. He was sentenced 
to 10 years imprisonment on the first charge, and to not less 
than 20 years nor more than 30 years on the second, the sentences 
to run concurrently.



WOODSON v.  NORTH CAROLINA 3

pleas.2 Woodson, by contrast, maintained throughout 
the trial that he had been coerced by Waxton, that he 
was therefore innocent, and that he would not consider 
pleading guilty to any offense.

The petitioners were found guilty on all charges,3 and, 
as was required by statute, sentenced to death. The 
Supreme Court of North Carolina affirmed. State v. 
Woodson, 287 N. C. 578, 215 S. E. 2d 607 (1975). We
granted certiorari,----U. S. — to consider whether the
imposition of the death penalties in this case comports 
with the Eighth and Fourteenth Amendments to the 
United States Constitution.

II
The petitioners argue that the imposition of the death 

penalty under any circumstances is cruel and unusual 
punishment in violation of the Eighth and Fourteenth 
Amendments. We reject this argument for the reasons 
stated today in Gregg v. Georgia, ante, pp. 11-30.

III
At the time of this Court’s decision in Furman v. 

Georgia, 408 U. S. 238 (1972), North Carolina law pro­

2 The solicitor gave no reason for refusing to accept Waxton’s 
offer to plead guilty to a lesser offense. The Supreme Court of 
North Carolina, in finding that the solicitor had not abused his 
discretion, noted:
‘‘The evidence that Waxton planned and directed the robbery and 
that he fired the shots which killed Mrs. Butler and wounded 
Mr. Stancil is overwhelming. No extenuating circumstances gave 
the solicitor any incentive to accept the plea he tendered at the 
close of the State’s evidence.” 287 N. C. 578, 595-596; 215 S. E. 
2d 607, 618 (1975).

3 In addition to first-degree murder, both petitioners were found 
guilty of armed robbery. Waxton was also found guilty of assault 
with a deadly weapon with intent to kill, a charge arising from the 
wounding of the customer.



4 WOODSON v.  NORTH CAROLINA

vided that in cases of first-degree murder, the jury in its 
unbridled discretion could choose whether the convicted 
defendant should be sentenced to death or to life im­
prisonment.4 After the Furman decision the Supreme 
Court of North Carolina in State v. Waddell, 282 N. C. 
431, 194 S. E. 2d 19 (1973), held unconstitutional the 
provision of the death penalty statute that gave the jury 
the option of returning a verdict of guilty without cap­
ital punishment, but held further that this provision was 
severable so that the statute survived as a mandatory 
death penalty law.5

The North Carolina General Assembly in 1974 fol­
lowed the court’s lead and enacted a new statute that 
was essentially unchanged from the old one except that

4 The murder statute in effect in North Carolia until 1973 read 
as follows:
“§ 14-17. Murder in the first and second degree defined; punish­
ment.—A murder which shall be perpetrated by means of poison, 
lying in wait, imprisonment, starving, torture, or by any other 
kind of willful, deliberate and premeditated killing, or which shall 
be committed in the perpetration or attempt to perpetrate any 
arson, rape, robbery, burglary or other felony, shall be deemed to 
be murder in the first degree and shall be punished with death: 
Provided, if at the time of rendering its verdict in open court, the 
jury shall so recommend, the punishment shall be imprisonment for 
life in the State’s prison, and the court shall so instruct the jury. 
All other kinds of murder shall be deemed murder in the second 
degree, and shall be punished with imprisonment of not less than 
two nor more than thirty years in the State’s prison.” N. C. Gen. 
Stat. § 14-17 (1969 repl. volume).

5 The Court characterized the effect of the statute without the 
invalid provision as follows:

“Upon the return of a verdict of guilty of any such offense, the 
court must pronounce a sentence of death. The punishment to be 
imposed for these capital felonies is no longer a discretionary ques­
tion for the jury and therefore no longer a proper subject for an 
instruction by the judge.” 282 N. C., at 445, 194 S. E. 2d, at 28-29.



WOODSON v.  NORTH CAROLINA 5

it made the death penalty mandatory. The statute now 
reads as follows:

“Murder in the first and second degree defined; 
punishment.—A murder which shall be perpetrated 
by means of poison, lying in wait, imprisonment, 
starving, torture, or by any other kind of willful, 
deliberate and premeditated killing, or which shall 
be committed in the perpetration or attempt to per­
petrate any arson, rape, robbery, kidnapping, bur­
glary or other felony shall be deemed to be murder 
in the first degree and shall be punished with death. 
All other kinds of murder shall be deemed murder 
in the second degree, and shall be punished by im­
prisonment for a term of not less than two years nor 
more than life imprisonment in the State’s prison.” 
N. C. Gen. Stat. §14-17 (Cum. Supp. 1975).

I t was under this statute that the petitioners, who 
committed their crime on June 3, 1974, were tried, con­
victed, and sentenced to death.

North Carolina, unlike Florida, Georgia, and Texas, 
has thus responded to the Furman decision by making 
death the mandatory sentence for all persons convicted 
of first-degree murder.6 In ruling on the constitution­
ality of the sentences imposed on the petitioners under 
this North Carolina statute, the Court now addresses for 
the first time the question whether a death sentence re­
turned pursuant to a law imposing a mandatory death 
penalty for a broad category of homicidal offenses7 con­

6 North Carolina also has enacted a mandatory death sentence 
statute for the crime of first-degree rape. N. C. Gen. Stat. § 14-21 
(Cum. Supp. 1975).

7 This case does not involve a mandatory death penalty statute 
limited to an extremely narrow category of homicide, such as murder 
by a prisoner serving a life sentence, defined in large part in terms of



6 WOODSON v.  NORTH CAROLINA

stitutes cruel and unusual punishment within the mean­
ing of the Eighth and Fourteenth Amendments.* 8 The 
issue, like that explored in Furman, involves the proce­
dure employed by the State to select persons for the 
unique and irreversible penalty of death.9 10

A
The Eighth Amendment stands to assure that the 

State’s power to punish is “exercised within the limits 
of civilized standards.” Trop v. Dulles, 356 U. S. 86, 100 
(1958) (plurality opinion). See id., at 101; Weems v. 
United States, 217 U. S. 349, 373, 378 (1910); Louisiana 
ex rel. Francis v. Resweber, 329 U. S. 459, 468-469 (1947) 
(Frankfurter, J., concurring); 10 Robinson v. California,

the character or record of the offender. We thus express no opinion 
regarding the constitutionality of such a statute. See n. 25, infra.

8 The Eighth Amendment’s proscription of cruel and unusual pun­
ishment has been held to be applicable to the States through the 
Fourteenth Amendment. See Robinson v. California, 370 U. S. 
660 (1962).

The Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), 
involved statutes providing for jury discretion in the imposition of 
death sentences. Several members of the Court in Furman ex­
pressly declined to state their views regarding the constitutionality 
of mandatory death sentence statutes. See id,., a t 257 (Douglas, J., 
concurring); id., at 307 (S t e w a r t , J., concurring); id., at 310-311 
( W h i t e , J., concurring).

9 The petitioners here, as in the other four death penalty cases be­
fore the Court, contend that their sentences were imposed in viola­
tion of the Constitution because North Carolina has failed to elimi­
nate discretion from all phases of its procedure for imposing capital 
punishment. We have rejected similar claims today in Gregg, Prof­
fitt, and Jurek. The mandatory nature of the North Carolina death 
penalty statute for first-degree murder presents a different ques­
tion under the Eighth and Fourteenth Amendments.

10 Mr. Justice Frankfurter contended that the Eighth Amendment 
did not apply to the States through the Fourteenth Amendment. He 
believed, however, that the Due Process Clause of the Fourteenth



WOODSON v.  NORTH CAROLINA 7

370 U. S. 660, 666 (1962); Furman v. Georgia, 408 U. S. 
238, 242 (1972) (Douglas, J., concurring); id., at 269-270 
(B r e n n a n , J., concurring); id., at 329 (M arshall , J., 
concurring); id., at 382-383 (B urger, C. J., dissenting); 
id., at 409 (B l a c k m u n , J., dissenting); id., at 428-429 
( P ow ell, J., dissenting). Central to the application of 
the Amendment is a determination of contemporary 
standards regarding the infliction of punishment. As 
discussed in Gregg v. Georgia, ante, pp. 19-25, indicia 
of societal values identified in prior opinions include 
history and traditional usage,11 legislative enactments,11 12 
and jury determinations.13

In order to provide a frame for assessing the relevancy 
of these factors in this case we begin by sketching the 
history of mandatory death penalty statutes in the 
United States. At the time the Eighth Amendment was 
adopted in 1791, the States uniformly followed the com­
mon-law practice of making death the exclusive and

Amendment itself “expresses a demand for civilized standards.” 
Louisiana ex rel. Francis v. Resweber, 329 U. S., at 468 (concurring 
opinion).

11 See Trop v. Dulles, 356 U. S. at 99 (plurality opinion) (dictum). 
See also Furman v. Georgia, 408 U. S., at 291 (B r e n n a n , J., 
concurring).

12 See Weems v. United States, 217 U. S. 349, 377 (1910) (noting 
that the punishment of cadena temporal at issue in that case had “no 
fellow in American legislation”) ; Furman v. Georgia, 408 IT. S. 238, 
436-437 (1972) ( P o w e l l , J., dissenting); Gregg v . Georgia, ante, 
p. 19.

13 See Witherspoon v. Illinois, 391 U. S. 510, 519 and n. 15 (1968) ; 
McGautha v. California, 402 U. S. 183, 201-202 (1971); Fur­
man v. Georgia, 408 U. S., at 388 (B u r g e r , C. J., dissenting); id., at 
439-441 ( P o w e l l , J., dissenting) (“Any attempt to discern, there­
fore, where prevailing standards of decency lie must take careful 
account of the jury’s response to the question of capital 
punishment.”) .



WOODSON v.  NORTH CAROLINA

mandatory sentence for certain specified offenses.14 Al­
though the range of capital offenses in the American 
colonies was quite limited in comparison to the more 
than 200 offenses then punishable by death in England,15 
the colonies a t the time of the Revolution imposed 
death sentences on all persons convicted of any of a 
considerable number of crimes, typically including at 
a minimum, murder, treason, piracy, arson, rape, rob­
bery, burglary, and sodomy.16 As at common law, all 
homicides that were not involuntary, provoked, justified, 
or excused constituted murder and were automatically 
punished by death.17 Almost from the outset jurors 
reacted unfavorably to the harshness of mandatory death 
sentences.18 The States initially responded to this ex­
pression of public dissatisfaction with mandatory stat­
utes by limiting the classes of capital offenses.19

14 See H. Bedau, The Death Penalty in America 5-6, 15, 27-28 
(rev. ed. 1967).

15 See id., at 1-2; R. Bye, Capital Punishment in the United States 
1-2 (1919).

16 See H. Bedau, The Death Penalty in America, supra, at 6; 
R. Bye, Capital Punishment in the United States, supra, a t 2-3 
(Most New England colonies made 12 offenses capital. Rhode Is­
land, with 10 capital crimes, was the “mildest of all of the colo­
nies.”) ; Hartung, Trends in the Use of Capital Punishment, 284 
Annals of the Amer. Academy 8, 10 (1952) (“The English colonies 
in this country had from ten to eighteen capital offenses.”) .

17 See H. Bedau, The Death Penalty in America, supra, at 23-24.
18 See id., at 27; Knowlton, Problems of Jury Discretion in Capi­

tal Cases, 101 U. Pa. L. Rev. 1099, 1102 (1953); Mackey, The 
Inutility of Mandatory Capital Punishment: An Historical Note, 
54 B. U. L. Rev. 32 (1974); McGautha v. California, 402 U. S. 183, 
198-199 (1971); Andres v. United States, 333 U. S. 740, 753 (1948) 
(Frankfurter, J., concurring); Winston v. United States, 172 U. S. 
303, 310 (1899).

19 See R. Bye, Capital Punishment in the United States, supra, a t 
5. During the colonial period, Pennsylvania under the Great Law 
of William Penn limited capital punishment to murder in 1682.



WOODSON v. NORTH CAROLINA 9

This reform, however, left unresolved the problem 
posed by the not infrequent refusal of juries to con­
vict murderers rather than subject them to automatic 
death sentences. In 1794, Pennsylvania attempted to 
alleviate the undue severity of the law by confining 
the mandatory death penalty to “murder of the first 
degree” encompassing all “willful, deliberate and pre­
meditated” killings. Pa. Laws 1794 c. 1777,* 20 Other 
jurisdictions, including Virginia and Ohio, soon enacted 
similar measures, and within a generation the practice 
spread to most of the States.21

Despite the broad acceptance of the division of mur­
der into degrees, the reform proved to be an unsatisfac­
tory means of identifying persons appropriately punish­
able by death. Although its failure was due in part to 
the amorphous nature of the controlling concepts of will­
fulness, deliberateness, and premeditation,22 a more fun­
damental weakness of the reform soon became apparent. 
Juries continued to find the death penalty inappropriate 
in a significant number of first-degree murder cases and 
refused to return guilty verdicts for that crime.23

Following Penn’s death in 1718, however, Pennsylvania greatly ex­
panded the number of capital offenses. See Hartung, Trends in the 
Use of Capital Punishment, supra, at 9-10.

Many States during the early 19th century significantly reduced 
the number of crimed punishable by death. See Davis, The Move­
ment to Abolish Capital Punishment in America, 1787-1861, 63 
Amer. Hist. Rev. 23, 27 and n. 15 (1957).

20 See H. Bedau, The Death Penalty in America, supra, at 24.
21 See ibid.; Davis, The Movement to Abolish Capital Punishment 

in America, 1787-1861, supra, at 26-27 n. 13. By the late 1950s, 
some 34 States had adopted the Pennsylvania formulation, and only 
10 States retained a single category of murder as defined at common 
law. See Model Penal Code §201.6, Comment 2, p. 66 (Tent. 
Draft No. 9, 1959).

22 See McGautha v. Cailfomia, 402 U. S. 183, 198-199 (1971).
23 See H. Bedau, The Death Penalty in America, supra, a t 27;



10 WOODSON v.  NORTH CAROLINA

The inadequacy of distinguishing between murderers 
solely on the basis of legislative criteria narrowing the 
definition of the capital offense led the States to grant 
juries sentencing discretion in capital cases. Tennessee 
in 1838, followed by Alabama in 1841, and Louisiana in 
1846, were the first States to abandon mandatory death 
sentences in favor of discretionary death penalty stat­
utes.24 This flexibility remedied the harshness of man­
datory statutes by permitting the jury to respond to 
mitigating factors by withholding the death penalty. 
By the turn of the century, 23 States and the Federal 
Government had made death sentences discretionary for 
first-degree murder and other capital offenses. During 
the next two decades 14 additional States replaced their 
mandatory death penalty statutes. Thus, by the end 
of World War I, all but eight States, Hawaii, and the 
District of Columbia either had adopted discretionary 
death penalty schemes or abolished the death penalty 
altogether. By 1963, all of these remaining jurisdic­
tions had replaced their automatic death penalty stat­
utes with discretionary jury sentencing.25

The history of mandatory death penalty statutes in

Mackey, The Inutility of Mandatory Capital Punishment: An His­
torical Note, supra; McGautha v. California, supra, at 199.

24 See Tenn.Laws 1837-1838, c. 29; Ala. Laws 1841, c. 3; La. Laws 
1846, c. 139. See also W. Bowers, Executions in America 7 (1974).

Prior to the Tennessee reform in 1838, Maryland had changed 
from a mandatory to an optional death sentence for the crimes of 
treason, rape, and arson. Md. Laws 1809, c. 138. For a time 
during the early colonial period Massachusetts, as part of its 
“Capital! Lawes” of 1636, had a nonmandatory provision for the 
crime of rape. See H. Bedau, The Death Penalty, supra, at 28.

25 See W. Bowers, Executions in America, supra, at 7-9 (Table 1-2 
sets forth the date each State adopted discretionary jury sentenc­
ing) ; Brief for the United States as Amicus Curiae in McGautha v. 
California, No. 70-203, App. B (listing the statutes in each State 
initially introducing discretionary jury sentencing in capital cases),



WOODSON v. NORTH CAROLINA 11

the United States thus reveals that the practice of sen­
tencing to death all persons convicted of a particular 
offense has been rejected as unduly harsh and unwork- 
ably rigid. The two crucial indicators of evolving stand-

App. C (listing the state statutes in force in 1970 providing for dis­
cretionary jury sentencing in capital murder cases).

Prior to this Court’s 1972 decision in Furman v. Georgia, 408 
U. S. 238, there remained a handful of obscure statutes scattered 
among the penal codes in various States that required an automatic 
death sentence upon conviction of a specilfied offense. These 
statutes applied to such esoteric crimes as trainwrecking resulting in 
death, perjury in a capital case resulting in the execution of an in­
nocent person, and treason against a state government. See H. 
Bedau, The Death Penalty in America, supra, at 46-47 (1964 com­
pilation). The most prevalent of these statutes dealt with the 
crime of treason against state governments. Ibid. I t  ap­
pears that no one has ever been prosecuted under these or other 
state treason laws. See Hartung, Trends in the Use of Capital 
Punishment, supra, a t 10. See also T. Sellin, The Death Penalty: 
A Report for the Model Penal Code Project of the American Law 
Institute 1 (1959) (discussing the Michigan statute, subsequently 
repealed in 1963, and the North Dakota statute). Several States 
retained mandatory death sentences for perjury in capital cases re­
sulting in the execution of an innocent person. Data covering the 
years from 1930 to 1961 indicate, however, that no State employed 
its capital perjury statute during that period. See H. Bedau, The 
Death Penalty in America, supra, at 46.

The only category of mandatory death sentence statutes that ap­
pears to have had any relevance to the actual administration of the 
death penalty in the years preceeding Furman concerned the crimes 
of murder or assault with a deadly weapon by a life-term prisoner. 
Statutes of this type apparently existed in five States in 1964. See 
id., at 46-47. In 1970, only five of the more than 550 prisoners 
under death sentence across the country had been sentenced under 
a mandatory death penalty statute. Those prisoners had all been 
convicted under the California statute applicable to assaults by life- 
term prisoners. See Brief of the NAACP as Amicus Curiae in 
McGautha v. California, No. 70-203, at 15 n. 19. We have no 
occasion in this case to examine the constitutionality of mandatory 
death sentence statutes applicable to prisoners serving life sentences.



12 WOODSON v. NORTH CAROLINA

ards of decency respecting the imposition of punish­
ment in our society—jury determinations and legislative 
enactments—both point conclusively to the repudiation 
of automatic death sentences. At least since the Revo­
lution, American jurors have, with some regularity, dis­
regarded their oaths and refused to convict defendants 
where a death sentence was the automatic consequence 
of a guilty verdict. As wre have seen, the initial move­
ment 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 ob­
jected 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.2’6 Thereafter, 
continuing evidence of jury reluctance to convict persons 
of capital offenses in mandatory death penalty jurisdic­
tions resulted in legislative authorization of discretion­
ary jury sentencing—by Congress for federal crimes in 
1897,26 27 28 by North Carolina in 1949,“  and by Congress for 
the District of Columbia in 1962.29

26 See Mackey, The Inutility of Mandatory Capital Punishment: 
An Historical Note, su-pra.

27 See H. R. Rep. No. 108, 54th Cong, 1st Sess. (1896) (The re­
port noted that the modification of the federal capital statutes to 
make the death penalty discretionary was in harmony with “a 
growing public sentiment.” Id., a t 2, quoting H. R. Rep. No. 545, 
53d Cong, 2d Sess. 1 (1894)); S. Rep. No. 846, 53d Cong., 3d Sess. 
(1895).

28 See Report of the Special Commission for the Improvement of 
the Administration of Justice, Improving the Administration of Jus­
tice in North Carolina, Popular Government 13 (Jan. 1949).

29 See Hearings before the Subcommittee on the Judiciary of the 
Senate Committee on the District of Columbia 19-20 (May 17, 1961) 
(testimony of Sen. Keating). Data compiled by a former United 
States Attorney for the District of Columbia indicated that juries



WOODSON v.  NORTH CAROLINA 13

As we have noted today in Gregg v. Georgia, ante, pp, 
17 n. 19, 18-19, legislative measures adopted by the 
people’s chosen representatives weigh heavily in ascer­
taining contemporary standards of decency. The con­
sistent course charted by the state legislatures and by

convicted defendants of first-degree murder in only 12 of the 60 jury 
trials for first-degree murder held in the District of Columbia 
between July 1, 1953, and February 1960. Ibid. The convic­
tion rate was “substantially below the general average in prosecut­
ing other crimes.” Id., at 20. The lower conviction rate was 
attributed to the reluctance of jurors to impose the harsh conse­
quences of a first-degree murder conviction in cases where the record 
might justify a leaser punishment. Ibid. See McCaffert.y, Major 
Trends in the Use of Capital Punishment, 1 Crim, L. Q. 9, 14-15 
(1963) (discussing a similar study of first-degree murder cases in 
the District of Columbia during the period July 1, 1947, through 
June 30, 1958).

A study of the death penalty submitted to the American Law In­
stitute noted that juries in Massachusetts and Connecticut had “for 
many years” resorted to second-degree murder convictions to avoid 
the consequences of those States’ mandatory death penalty statutes 
for first-degree murder, prior to their replacement with discretionary 
sentencing in 1951. See T. Sellin, The Death Penalty: A Report to 
the Model Penal Code Project of the American Law Institute 13 
(1959).

A 1973 Pennsylvania legislative report surveying the available 
literature analyzing mandatory death sentence statutes concluded:

“Although the data collection techniques in some instances are 
weak, the uniformity of the conclusions in substantiating what these 
authors’ termed ‘jury nullification’ (i.e. refusal to convict because of 
the required penalty) is impressive. Authors on both sides of the 
capital punishment debate reached essentially the same conclusions. 
Authors writing about the mandatory death penalty who wrote in 
1892 reached the same conclusions as persons writing in the 1950’s 
and 1960’s.”
McCloskey, A Review of the Literature Contrasting Mandatory and 
Discretionary Systems of Sentencing Capital Casas, Pa. GSCCP 
Report No. 2, published in Report of the Governor’s Study Com­
mission on Capital Punishment 101 (Sept. 1973).



14 WOODSON v. NORTH CAROLINA

Congress since the middle of the past century demon­
strates that the aversion of jurors to mandatoiy death 
penalty statutes is shared by society at large.30

Still further evidence of the incompatibility of manda­
tory death penalties with contemporary values is pro­
vided by the results of jury sentencing under discretion­
ary statutes. In Witherspoon v. Illinois, 391 U. S. 510 
(1968), the Court observed that “one of the most im­
portant functions any jury can perform” in exercising its 
discretion to choose “between life imprisonment and 
capital punishment” is “to maintain a link between con­
temporary community values and the penal system.” 
Id., at 519 and n. 15. Various studies indicate that even 
in first-degree murder cases juries with sentencing dis­
cretion do not impose the death penalty “with any great 
frequency.” H. Kalven and H. Zeisel, The American 
Jury 436 (1966).31 The actions of sentencing juries sug­

30 Not only have mandatory death sentence laws for murder been 
abandoned by legislature after legislature since Tennessee replaced 
its mandatory statute 138 years ago, but, with a single exception, no 
State prior to this Court’s Furman decision in 1972 ever returned 
to a mandatory scheme after adopting discretionary sentencing. 
See H. Bedau, The Death Penalty in America, supra, a t 30; W7. 
Bowers, Executions in America, supra, a t 9. Vermont, which first 
provided for jury discretion in 1911, was apparently prompted to re­
turn to mandatory sentencing by a “veritable crime wave of twenty 
murders” in 1912. See H. Bedau, The Death Penalty in America, 
supra, at 30. Vermont reinstituted discretionary jury sentencing in 
1957.

31 Data compiled on discretionary jury sentencing of persons con­
victed of capital murder reveal that the penalty of death is gen­
erally imposed in less than 20% of the cases. See Furman v. Geor­
gia, 408 U. S. 238, 386-387, n. 11 (1972) (B u r g e r , C. J., dissent­
ing) ; id., at 435-436 n. 19 ( P o w e l l , J., dissenting); Brief for the 
Petitioner in Aikens v. California, No. 68-5027, at App. F  (collect­
ing data from a number of jurisdictions indicating that the per­
centage of death sentences in many States was well below 20%). 
Statistics compiled by the Department of Justice show that only



WOODSON v.  NORTH CAROLINA 15

gest that under contemporary standards of decency 
death is viewed as an inappropriate punishment for a 
substantial portion of convicted first-degree murderers.

Although the Court has never ruled on the constitu­
tionality of mandatory death penalty statutes, on several 
occasions dating back to 1899 it has commented upon 
our society’s aversion to automatic death sentences. In 
Winston v. United States, 172 U. S. 303 (1899), the 
Court noted that the “hardship of punishing with death 
every crime coming within the definition of murder at 
common law, and the reluctance of jurors to concur in a 
capital conviction, have induced American legislatures, in 
modern times, to allow some cases of murder to be pun­
ished by imprisonment, instead of by death.” Id., at 
310.32 Fifty years after Winston, the Court underscored 
the marked transformation in our attitudes towards man­
datory sentences: “The belief no longer prevails that 
every offense in a like legal category calls for an identical 
punishment without regard to the past life and habits of

66 convicted murderers were sentenced to death in 1972. See Law 
Enforcement Assistance Administration, Capital Punishment, 1971- 
1972 (National Prisoner Statistics Bulletin Dec. 1974) (Table 7a) 
(the figure does not include persons retained in local facilities during 
the pendancy of their appeals).

32 Later, in Andres v. United States, Justice Frankfurter observed 
that the 19th century movement leading to the passage of legisla­
tion providing for discretionary sentencing in capital cases “was im­
pelled both by ethical and humanitarian arguments against capital 
punishment, as well as by the practical consideration that jurors 
were reluctant to bring in verdicts which inevitably called for its 
infliction.” 333 U. S. 740, 753 (1948) (concurring opinion). The 
Court in Andres noted that the decision of Congress at the end of 
the 19th century to replace mandatory death sentences with dis­
cretionary jury sentencing for federal capital crimes was prompted 
by “ [dissatisfaction over the harshness and antiquity of the federal 
criminal laws.” Id., at 747-748, n. 11.



16 WOODSON v. NORTH CAROLINA

a particular offender. This whole country has traveled 
far from the period in which the death sentence was an 
automatic and commonplace result of convictions . . . 
Williams v. New York, 337 U. S. 241, 247 (1949).

More recently, the Court in McGautha v. California, 
402 U. S. 183 (1971), detailed the evolution of discre­
tionary imposition of death sentences in this country, 
prompted by what it termed the American “rebellion 
against the common-law rule imposing a mandatory 
death sentence on all convicted murderers.” Id., at 198. 
See id., at 198-202. Perhaps the one important factor 
about evolving social values regarding capital punish­
ment upon which the members of the Furman Court 
agreed was the accuracy of McGautha’s assessment of 
our Nation’s rejection of mandatory death sentences. 
See Furman v. Georgia, 408 U. S., at 245-246 (Douglas, 
J., concurring); id., at 297-298 (B r e n n a n , J., concur­
ring) ; id., at 339 (M arsha ll , J., concurring); id., at 
402-403 (B urger, C. J., with whom B l a c k m u n , P o w ell , 
and R e h n q u is t , JJ., joined, dissenting); id., at 413 
(B l a c k m u n , J., dissenting). M r . J u stice  B l a c k m u n , 
for example, emphasized that legislation requiring an 
automatic death sentence for specified crimes would be 
“regressive and of an antique mold” and would mark 
a return to a “point in our criminology [passed beyond] 
long ago.” Id., at 413. T h e  C h ie f  J u st ic e , speaking 
for the four dissenting justices in Furman, discussed the 
question of mandatory death sentences at some length:

“I had. thought that nothing was clearer in history, 
as we noted in McGautha one year ago, than the 
American abhorrence of ‘the common-law rule im­
posing a mandatory death sentence on all convicted 
murderers.’ 402 U. S., at 198. As the concurring 
opinion of M r . J ustice  M arshall  shows, ante, at 
339, the 19th century movement away from manda­



WOODSON v. NORTH CAROLINA 17

tory death sentences marked an enlightened intro­
duction of flexibility into the sentencing process. I t 
recognized that individual culpability is not always 
measured by the category of the crime committed. 
This change in sentencing practice was greeted by 
the Court as a humanizing development. See Win­
ston v. United States, 172 U. S. 303 (1899); cf. 
Calton v. Utah, 130 U. S. 83 (1889). See also 
Andres v. United States, 333 U. S. 740, 753 (1948) 
(Frankfurter, J., concurring).” 408 U. S., at 402.

Although it seems beyond dispute that, at the time of 
the Furman decision in 1972, mandatory death penalty 
statutes had been renounced by American juries and 
legislatures, there remains the question whether the 
mandatory statutes adopted by North Carolina and a 
number of other States following Furman evince a sud­
den reversal of societal values regarding the imposition 
of capital punishment. In view of the persistent and 
unswerving legislative rejection of mandatory death pen­
alty statutes beginning in 1838 and continuing for more 
than 130 years until Furman,™ it seems evident that the 
post-Furman enactments reflect attempts by the States 
to retain the death penalty in a form consistent with the 
Constitution, rather than a renewed societal acceptance 
of mandatory death sentencing.33 34 The fact that some

33 See n. 30, supra.
34 A study of public opinion polls on the death penalty concluded 

that “despite the increasing approval for the death penalty reflected 
in opinion polls during the last decade, there is evidence that many 
people supporting the general idea of capital punishment want its 
administration to depend on the circumstances of the case, the 
character of the defendant, or both.” Vidmar and Ellsworth, Pub­
lic Opinion and the Death Penalty, 26 Stan. L. Rev. 1245, 1267 
(1974). One poll discussed by the authors revealed that a “sub­
stantial majority” of persons opposed mandatory capital punish­
ment. Id., at 1253. Moreover, the public through the jury sys­



18 WOODSON v. NORTH CAROLINA

States have adopted mandatory measures following Fur­
man while others have legislated standards to guide jury 
discretion appears attributable to diverse readings of 
this Court’s multi-opinioned decision in that case.35

A brief examination of the background of the current 
North Carolina statute serves to reaffirm our assessment 
of its limited utility as an indicator of contemporary 
values regarding mandatory death sentences. Before 
1949, North Carolina imposed a mandatory death sen­
tence on any person convicted of rape or first-degree 
murder. That year, a study commission created by the 
state legislature recommended that juries be granted dis­
cretion to recommend life sentences in all capital cases:

“We propose that a recommendation of mercy by 
the jury in capital cases automatically carry with 
it a life sentence. Only three other states now 
have the mandatory death penalty and we believe 
that its retention will be definitely harmful. Quite 
frequently, juries refuse to convict for rape or first 
degree murder because, from all the circumstances, 
they do not believe the defendant, although guilty, 
should suffer death. The result is that verdicts are 
returned hardly in harmony with evidence. Our 
proposal is already in effect in respect to the crimes

tem has in recent years applied the death penalty in anything but 
a mandatory fashion. See n. 31, supra.

35 The fact that, as Mr. J u s t ic e  R e h n q u i s t ’s dissent properly 
notes, some States “preferred mandatory capital punishment to no 
capital punishment at all,” post, at p. 6, is entitled to some weight. 
But such an artificial choice merely establishes a desire for some 
form of capital punishment; it is hardly “utterly inconsistent with 
the notion that [those states] regarded mandatory capital sentenc­
ing as beyond ‘evolving standards of decency.’ ” Id., a t 6-7. I t  
says no more about contemporary values than would the decision of 
a State thinking itself faced with a choice between a barbarous pun­
ishment and no punishment at all to choose the former.



WOODSON v.  NORTH CAROLINA 19

of burglary and arson. There is much testimony 
that it has proved beneficial in such cases. We 
think the law can now be broadened to include all 
capital crimes.”

Report of the Special Commission For the Improvement 
of the Administration of Justice, Improving the Admin­
istration of Justice in North Carolina, Popular Govern­
ment 13 (Ja n .1949).

The 1949 session of the General Assembly of North 
Carolina adopted the proposed modifications of its rape 
and murder statutes. Although in subsequent years nu­
merous bills were introduced in the legislature to limit 
further or abolish the death penalty in North Carolina, 
they were rejected as were two 1969 proposals to return 
to mandatory death sentences for all capital offenses. 
See State v. Waddell, 282 N. C. 431, 441, 194 S. E. 2d 19, 
26 (opinion of the C ourt); 282 N. C., at 456-457, 194 
S. E. 2d, at 32-33 (Bobbitt, C. J., concurring in part and 
dissenting in part).

As noted above, supra, p. 4, when the Supreme Court 
of North Carolina analyzed the constitutionality of the 
State’s death penalty statute following this Court’s de­
cision in Furman, it severed the 1949 proviso authorizing 
•jury sentencing discretion and held that “the remainder 
of the statute with death as the mandatory punish­
ment . . . remains in full force and effect.” State v. Wad­
dell, 282 N. C., at 444-445, 194 S. E. 2d, at 28. The 
North Carolina General Assembly then followed the 
course found constitutional in Waddell and enacted a 
first-degree murder provision identical to the mandatory 
statute in operation prior to the authorization of jury 
discretion. The State’s brief in this case relates that 
the legislature sought to remove “all sentencing discre­
tion [so that] there would be no successful Furman 
based attack upon the North Carolina statute.”



20 WOODSON v. NORTH CAROLINA

I t is now well established that the Eighth Amendment 
draws much of its meaning from “the evolving standards 
of decency that mark the progress of a maturing so­
ciety.” Trop v. Dulles, 356 U. S., at 101 (plurality 
opinion). As the above discussion makes clear, one 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 convicted of a speci­
fied offense. 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 con­
sistently with the Eighth and Fourteenth Amendments’ 
requirement that the State’s power to punish “be exer­
cised within the limits of civilized standards.” Id., at 
1QQ.36

36 Dissenting opinions in this case and in Roberts v. Louisiana, 
post, argue that this conclusion is “simply mistaken” because the 
American rejection of mandatory death sentence statutes might 
possibly be ascribable to “some maverick juries or jurors.” Post, at 
3 , 6 ( R e h n q u i s t , J., dissenting). See Roberts v. Louisiana, post, at 
25 (W h i t e , J., dissenting). Since acquittals no less than convic­
tions required unanimity and citizens with moral reservations con­
cerning the death penalty were regularly excluded from capital 
juries, it seems hardly conceivable that the persistent refusal of 
American juries to convict palpably guilty defendants of capital 
offenses under mandatory death sentence statutes merely “repre­
sented the intransigence of only a small minority” of jurors. Post, 
at 5 ( R e h n q u i s t , J., dissenting). Moreover, the dissenting opinions 
simply ignore the experience under discretionary death sentence 
statutes indicating that juries reflecting contemporary community 
values, Witherspoon v. Illinois, 391 U. S. 510, 519 and n. 15, found 
the death penalty appropriate for only a small minority of con­
victed first-degree murderers. See n. 31, supra. We think it evi­
dent that the uniform assessment of the historical record by mem­
bers of this Court beginning in 1899 in Winston v. United States,



WOODSON v. NORTH CAROLINA 21

B
A separate deficiency of North Carolina’s mandatory 

death sentence statute is its failure to provide a consti­
tutionally tolerable response to Furman’s rejection of 
unbridled jury discretion in the imposition of capital sen­
tences. Central to the limited holding in Furman was 
the conviction that the vesting of standardless sentencing 
power in the jury violated the Eighth and Fourteenth 
Amendments. See Furman v. Georgia, 408 TJ. S., at 309 
310 (Stew art , J., concurring); id., at 313 (W h it e , J., 
concurring); cf. id., at 253-257 (Douglas, J., concur­
ring). See also id., at 398-399 (B urger, C. J,, dissent­
ing). I t is argued that North Carolina has remedied 
the inadequacies of the death penalty statutes held un­
constitutional in Furman by withdrawing all sentencing 
discretion from juries in capital cases. But when one 
considers the long and consistent American experience 
with the death penalty in first-degree murder cases, it 
becomes evident that mandatory statutes enacted in re­
sponse to Furman have simply papered over the problem 
of unguided and unchecked jury discretion.

As we have npted in Part III-A , supra, there is gen­
eral agreement that American juries have persistently 
refused to convict a significant portion of persons charged 
with first-degree murder of that offense under mandatory 
death penalty statutes. The North Carolina study com­
mission, supra, pp. 18-19, reported that juries in that 
state “ [qjuite frequently” were deterred from rendering 
guilty verdicts of first-degree murder because of the enor­
mity of the sentence automatically imposed. Moreover,

supra, and continuing through the dissenting opinions of T h e  C h i e f  
J u s t ic e  and Mr. J u s t ic e  B l a c k m u n  four years ago in Furman, see 
pp. 15-17 and n. 32, supra, provide a far more cogent and per­
suasive explanation of the American rejection of mandatory death 
sentences than do the speculations in today’s dissenting opinions.



22 WOODSON v. NORTH CAROLINA

as a matter of historic fact, juries operating under discre­
tionary sentencing statutes have consistently returned 
death sentences in only a minority of first-degree murder 
cases.37 In view of the historic record, it is only reason­
able to assume that many juries under mandatory stat­
utes will continue to consider the grave consequences of 
a conviction in reaching a verdict. North Carolina’s 
mandatory death penalty statute provides no standards to 
guide the jury in its inevitable exercise of the power to 
determine which first-degree murderers shall live and 
which shall die. And there is no way under the North 
Carolina law for the judiciary to check arbitrary and ca­
pricious exercise of that power through a review of death 
sentences.38 Instead of rationalizing the sentencing proc­
ess, a mandatory scheme may well exacerbate the prob­
lem identified in Furman by resting the penalty deter­
mination on the particular jury’s willingness to act 
lawlessly. While a mandatory death penalty statute 
may reasonably be expected to increase the number of 
persons sentenced to death, it does not fulfill Furman’s 
basic requirement by replacing arbitrary and wanton 
jury discretion with objective standards to guide, regu­
larize, and make rationally reviewable the process for 
imposing a sentence of death.

C
A third constitutional shortcoming of the North Car­

olina statute is its failure to allow the particularized 
consideration of relevant aspects of the character and 
record of each convicted defendant before the imposition 
upon him of a sentence of death. In Furman, members 
of the Court acknowledged what cannot fairly be de­
nied—that death is a punishment different from all other

37 See n. 31, supra.
38 See Gregg v. Georgia, ante, pp. 47-49.



WOODSON v. NORTH CAROLINA 23

sanctions in kind rather than degree. See 408 U. S., 
at 286-291 (B r e n n a n , J., concurring); id., at 306 
(S tew art, J., concurring). A process that accords no 
significance to relevant facets of the character and record 
of the individual offender or the circumstances of the 
particular offense excludes from consideration in fixing 
the ultimate punishment of death the possibility of com­
passionate or mitigating factors stemming from the di­
verse frailties of humankind. I t treats all persons con­
victed of a designated offense not as uniquely individual 
human beings, but as members of a faceless, undifferen­
tiated mass to be subjected to the blind infliction of the 
penalty of death.

This Court has previously recognized that “ [f]or the 
determination of sentences, justice generally requires 
consideration of more than the particular acts by which 
the crime was committed and that there be taken into 
account the circumstances of the offense together with 
the character and propensities of the offender.” Penn­
sylvania v. Ashe, 302 U. S. 51, 55 (1937). Consideration 
of both the offender and the offense in order to arrive 
at a just and appropriate sentence has been viewed as a 
progressive and humanizing development. See Williams 
v. New York, 337 U. S. 241, 247-249 (1949); Furman v. 
Georgia, 408 U. S., at 402-403 (B urger, C. J., dissent­
ing). While the prevailing practice of individualizing 
sentencing determinations generally reflects simply en­
lightened policy rather than a constitutional imperative, 
we believe that in capital cases the fundamental respect 
for humanity underlying the Eighth Amendment, see 
Trop v. Dulles, 356 U. S., at 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.



24 WOODSON v. NORTH CAROLINA

This conclusion rests squarely on the predicate that 
the penalty of death is qualitatively different from a sen­
tence 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 corre­
sponding difference in the need for reliability in the de­
termination that death is the appropriate punishment 
in a specific case.39

For the reasons stated, we conclude that the death 
sentences imposed upon the petitioners under North Car­
olina’s mandatory death sentence statute violated the 
Eighth and Fourteenth Amendments and therefore must 
be set aside.40 The judgment of the Supreme Court of 
North Carolina is reversed insofar as it upheld the death 
sentences imposed upon the petitioners, and the case is 
remanded for further proceedings not inconsistent with 
this opinion.

I t  is so ordered.

39 Mr. J ustice Rehnquist’s dissenting opinion proceeds on the 
faulty premise that if, as we hold in Gregg v. Georgia, ante, the 
penalty of death is not invariably a cruel and unusual punishment 
for the crime of murder, then it must be a proportionate and appro­
priate punishment for any and every murderer regardless of the cir­
cumstances of the crime and the character and record of the offender. 
See post, a t pp. 16-17.

40 Our determination that the death sentences in this case were 
imposed under procedures that violated constitutional standards 
makes it unnecessary to reach the question whether imposition of 
the death penalty on petitioner Woodson would have been so dis­
proportionate in comparison in the nature of his involvement in 
the capital offense as independently to violate the Eighth and Four­
teenth Amendments. See Gregg v. Georgia, ante, p. 30,



SUPEEME COUET OF THE UNITED STATES
No. 75-5491

James Tyrone Woodson 
and Luby Waxton, 

Petitioners, 
v.

State of North Carolina.,

On Writ of Certiorari to the 
Supreme Court of North 
Carolina.

[July 2, 1976]

M r . J u stice  B r e n n a n , concurring in  th e  judgm en t.

For the reasons stated in my dissenting opinion in
Gregg v. Georgia,----U. S .----- , ----  (1976). I concur in
the judgment that sets aside the death sentences im­
posed under the North Carolina death sentence statute 
as violative of the Eighth and Fourteenth Amendments.



SUPREME COURT OE THE UNITED STATES
No. 75-5491

James Tyrone Woodson 
and Luby Waxton, 

Petitioners,
v.

State of North Carolina..

On Writ of Certiorari to the 
Supreme Court of North 
Carolina.

[July 2, 1976]

M r . J u stice  M arsha ll , concurring  in th e  judgm en t.

For the reasons stated in my dissenting opinion in
Gregg v. Georgia, ----  U. S. ---- , ----  (1976), I am of
the view that the death penalty is a cruel and unusual 
punishment forbidden by the Eighth and Fourteenth 
Amendments. I therefore concur in the Court’s 
judgment.



SUPREME COURT OF THE UNITED STATES
No. 75-5491

James Tyrone Woodson 
and Luby Waxton, 

Petitioners, 
v.

On Writ of Certiorari to the 
Supreme Court of North 
Carolina.

State of North Carolina.

[July 2, 1976]

Mr. J ustice  W h it e , with whom T h e  C h ie f  J ustice  
and Mr. J u stice  R e h n q u is t  join, dissenting.

Following Furman v. Georgia, 408 U. S. 238 (1972), 
the North Carolina Supreme Court considered the effect 
of that case on the North Carolina criminal statutes 
which imposed the death penalty for first-degree murder 
and other crimes but which provided that “if the jury 
shall so recommend at the time of rendering its verdict in 
open court, the punishment shall be imprisonment for 
life in the State’s prison, and the court shall so instruct 
the jury.” State v. Waddell, 282 N. C. 431, 194 S. E. 
2d 19 (1973), determined that Furman v. Georgia invali­
dated only the proviso giving the jury the power to limit 
the penalty to life imprisonment and that thenceforward 
death was the mandatory penalty for the specified capital 
crimes. Thereafter N. C. Gen. Stat. § 14-17 was 
amended to eliminate the express dispensing power of the 
jury and to add kidnapping to the underlying felonies 
for which death is the specified penalty. As amended, 
the section reads as follows:

“A murder which shall be perpetrated by means 
of poison, lying in wait, imprisonment, starving, tor­
ture, or by any other kind of willful, deliberate and 
premeditated killing, or which shall be committed



2 WOODSON NORTH CAROLINA

in the perpetration or attempt to perpetrate any 
arson, rape, robbery, kidnapping, burglary or other 
felony, shall be deemed to be murder in the first 
degree and shall be punished with death. All other 
kinds of murder shall be deemed murder in the sec­
ond degree, and shall be punished by imprisonment 
of not less than two years nor more than life im­
prisonment in the State’s prison.”

It was under this statute that the petitioners in this case 
were convicted of first-degree murder and the mandatory 
death sentences imposed.

The facte of record and the proceedings in this case 
leading to petitioners’ convictions for first-degree murder 
and their death sentences appear in the opinion of Mr. 
J ustice  Stew art, M r. J u stice  P ow ell , and Mr. J ustice 
Stevens  (hereinafter the plurality). The issues in the 
case are very similar, if not identical, to those in Roberts 
v. Louisiana, post. For the reasons stated in my dissent­
ing opinion in that case, I reject petitioners’ arguments 
that the death penalty in any circumstances is a violation 
of the Eighth Amendment and that the North Carolina 
statute, although making the imposition of the death 
penalty mandatory upon proof of guilt and a verdict of 
first-degree murder, will nevertheless result in the death 
penalty being imposed so seldom and arbitrarily that it is 
void under Furman v. Georgia. As is also apparent from 
my dissenting opinion in Roberts v. Louisiana, I also dis­
agree with the two additional grounds which the plurality 
sua sponte offers for invalidating the North Carolina 
statute. I would affirm the judgment of the North Caro­
lina Supreme Court.



SUPREME COURT OF THE UNITED STATES
No. 75-5491

James Tyrone Woodson 
and Luby Waxton, 

Petitioners,
v.

State of North Carolina.

On Writ of Certiorari to the 
Supreme Court of North 
Carolina.

[July 2, 1976]

M r . J u stice  B l a c k m u n , dissenting.

I dissent for the reasons set forth in my dissent in 
Furman v. Georgia, 408 U. S. 238, 405-414 (1972), and 
in the other dissenting opinions I joined in that case. 
Id., at 375, 414, and 465.



SUPREME COURT OF THE UNITED STATES
No. 75-5491

James Tyrone Woodson 
and Luby Waxton, 

Petitioners, 
v.

State of North Carolina.,

On Writ of Certiorari to the 
Supreme Court of North 
Carolina.

[July 2, 1976]

Mr. J u stice  R e h n q u is t , dissenting.

I
The difficulties which attend the plurality’s explana­

tion for the result it reaches tend at first to obscure 
difficulties at least as significant which inhere in the 
unarticulated premises which necessarily underlie that 
explanation. I advert to the latter only briefly, in order 
to devote the major and following portion of this dissent 
to those issues which the plurality actually considers.

As an original proposition, it is by no means clear 
that the prohibition against cruel and unusual punish­
ments embodied in the Eighth Amendment, and made 
applicable to the States by the Fourteenth Amendment, 
Robinson v. California, 370 U, S. 660 (1962), was not 
limited to those punishments deemed cruel and unusual 
at the time of the adoption of the Bill of Rights. 
McGautha v. California, 402 U. S. 183, 225 (1971) 
(Black, J., concurring). If Weems v. United States, 217 
U. S. 349 (1910), dealing not with the Eighth Amend­
ment but with an identical provision contained in the 
Philippine Constitution, and the plurality opinion in 
Trop v. Dulles, 356 U. S. 86 (1958), are to be taken 
as indicating the contrary, they should surely be weighed 
against statements in cases such as Wilkerson v. Utah,



2 WOODSON v. NORTH CAROLINA

99 U. S. 130 (1879); In  re Kemmler, 136 U. S. 436 
(1890); Louisiana ex rel. Francis v. Resweber, 329 U. S. 
459, 464 (1947); and the plurality opinion in Trap itself, 
that the infliction of capital punishment is not in itself 
violative of the Cruel and Unusual Punishment Clause. 
Thus for the plurality to begin its analysis with the 
assumption that it need only demonstrate that “evolv­
ing standards of decency” show that contemporary “so­
ciety” has rejected such provisions is itself a somewhat 
shaky point of departure. But even if the assumption 
be conceded, the plurality opinion’s analysis nonetheless 
founders.

The plurality relies first upon its conclusion that 
society has turned away from the mandatory imposition 
of death sentences, and second upon its conclusion that 
the North Carolina system has “simply papered over” 
the problem of unbridled jury discretion which two of 
the separate opinions in Furman v. Georgia, 408 U. S. 
238 (1972), identified as the basis for the judgment 
rendering the death sentences there reviewed unconsti­
tutional. The third “constitutional shortcoming” of the 
North Carolina statute is said to be “its failure to allow 
the particularized consideration of relevant aspects of 
the character and record of each convicted defendant be­
fore the imposition upon him of a sentence of death.” 
Ante, at 22.

I do not believe that any one of these reasons singly, 
nor all of them together, can withstand careful analysis. 
Contrary to the plurality’s assertions, they would import 
into the Cruel and Unusual Punishment Clause proce­
dural requirements which find no support in our cases. 
Their application will result in the invalidation of a 
death sentence imposed upon a defendant convicted of 
first-degree murder under the North Carolina system, 
and the upholding of the same sentence imposed on an



WOODSON v. NORTH CAROLINA 3

identical defendant convicted on identical evidence of 
first-degree murder under the Florida, Georgia, or Texas 
systems—a result surely as “freakish” as that condemned 
in the separate opinions in Furman.

II
The plurality is simply mistaken in its assertion that 

“ [t]he history of mandatory death penalty statutes in 
the United States thus reveals that the practice of sen­
tencing to death all persons convicted of a particular 
offense have been rejected as unduly harsh and unwork- 
ably rigid.” Ante, at 10-11. This conclusion is purport­
edly based on two historic developments: the first a 
series of legislative decisions during the 19th century 
narrowing the class of offenses punishable by death; the 
second a series of legislative decisions during both the 
19th and 20th centuries, through which mandatory im­
position of the death penalty largely gave way to jury 
discretion in deciding whether or not to impose this 
ultimate sanction. The first development may have 
some relevance to the plurality’s argument in general 
but has no bearing at all upon this case. The second 
development, properly analyzed, has virtually no rele­
vance even to the plurality’s argument.

There can be no question that the legislative and other 
materials discussed in the plurality’s opinion show a 
widespread conclusion on the part of state legislatures 
during the 19th century that the penalty of death was 
being required for too broad a range of crimes, and that 
these legislatures proceeded to narrow the range of crimes 
for which such penalty could be imposed. If this case 
involved the imposition of the death penalty for an 
offense such as burglary or sodomy, see ante, at 8, the 
virtually unanimous trend in the legislatures of the States 
to exclude such offenders from liability for capital pun­



4 WOODSON v. NORTH CAROLINA

ishment might bear on the plurality’s Eighth Amendment 
argument. But petitioners were convicted of first-degree 
murder, and there is not the slightest suggestion in the 
material relied upon by the plurality that there had been 
any turning away at all, much less any such unanimous 
turning away, from the death penalty as a punishment 
for those guilty of first-degree murder. The legislative 
narrowing of the spectrum of capital crimes, therefore, 
while very arguably representing a general societal judg­
ment since the trend was so widespread, simply never 
reached far enough to exclude the sort of aggravated 
homicide of which petitioners stand convicted.

The second string to the plurality’s analytical bow is 
that legislative change from mandatory to discretionary 
imposition of the death sentence likewise evidences 
societal rejection of mandatory death penalties. The 
plurality simply does not make out this part of its case, 
however, in large part because it treats as being of equal 
dignity with legislative judgments the judgments of par­
ticular juries and of individual jurors.

There was undoubted dissatisfaction, from more than 
one sector of 19th century society, with the operation of 
mandatory death sentences. One segment of that society 
was totally opposed to capital punishment, and was ap­
parently willing to accept the substitution of discretion­
ary imposition of that penalty for its mandatory imposi­
tion as a halfway house on the road to total abolition. 
Another segment was equally unhappy with the operation 
of the mandatory system, but for an entirely different 
reason. As the plurality recognizes, this second seg­
ment of society was unhappy with the operation of the 
mandatory system, not because of the death sentences 
imposed under it, but because people obviously guilty of 
criminal offenses were not being convicted under it. See



WOODSON v. NORTH CAROLINA 5

ante, at 12. Change to a discretionary system was ac­
cepted by these persons not because they thought man­
datory imposition of the death penalty was cruel and un­
usual, but because they thought that if jurors were per­
mitted to return a sentence other than death upon the 
conviction of a capital crime, fewer guilty defendants 
would be acquitted. See McGautha, supra, 402 U. S., 
at 199.

So far as the action of juries is concerned, the fact 
that in some cases juries operating under the manda­
tory system refused to convict obviously guilty defend­
ants does not reflect any “turning away” from the death 
penalty, or the mandatory death penalty, supporting the 
proposition that it is “cruel and unusual.” Given the 
requirement of unanimity with respect to jury verdicts 
in capital cases, a requirement which prevails today in 
States which accept a nonunanimous verdict in the case 
of other crimes, see Johnson v. Louisiana, 406 U. S. 356, 
363-364 (1972), it is apparent that a single juror could 
prevent a jury from returning a verdict of conviction. 
Occasional refusals to convict, therefore, may just as 
easily have represented the intransigence of only a small 
minority of 12 jurors as well as the unanimous judg­
ment of all 12. The fact that the presence of such 
jurors could prevent conviction in a given case, even 
though the majority of, society, speaking through 
legislatures, had decreed that it should be imposed, cer­
tainly does not indicate that society as a whole rejected 
mandatory punishment for such offenders; it does not 
even indicate that those few members of society who 
serve on juries, as a whole, had done so.

The introduction of discretionary sentencing likewise 
creates no inference that contemporary society had re­
jected the mandatory system as unduly severe. Legisla­
tures enacting discretionary sentencing statutes had no



reason to think that there would not be roughly the 
same number of capital convictions under the new sys­
tem as under the old. The same subjective juror re­
sponses which resulted in juror nullification under the 
old system were legitimized, but in the absence of those 
subjective responses to a particular set of facts, a capital 
sentence could as likely be anticipated under the discre­
tionary system as under the mandatory. And at least 
some of those who would have been acquitted under the 
mandatory system would be subjected to at least some 
punishment under the discretionary system, rather than 
escaping altogether a penalty for the crime of which they 
were guilty. That society was unwilling to accept the 
paradox presented to it by the actions of some maverick 
juries or jurors—the acquittal of palpably guilty 
defendants—hardly reflects the sort of an “evolving 
standard of decency” to which the plurality professes 
obeisance.

Nor do the opinions in Furman which indicate a pref­
erence for discretionary sentencing in capital cases sug­
gest in the slightest that a mandatory sentencing 
procedure would be cruel and unusual. The plurality 
concedes, as they must, that following Furman 10 States 
enacted laws providing for mandatory capital punish­
ment. See State Capital Punishment Statutes Enacted 
Subsequent to Furman v. Georgia, Congressional Re­
search Service Pamphlet 17-22 (June 19, 1974). These 
enactments the plurality seeks to explain as due to a 
wrong-headed reading of the holding in Furman. But 
this explanation simply does not wash. While those 
States may be presumed to have preferred their prior 
systems reposing sentencing discretion in juries or judges, 
they indisputably preferred mandatory capital punish­
ment to no capital punishment at all. Their willingness 
to enact statutes providing that penalty is utterly incon­

6 WOODSON v. NORTH CAROLINA



WOODSON v. NORTH CAROLINA 7

sistent with the notion that they regarded mandatory 
capital sentencing as beyond “evolving standards of 
decency.” The plurality’s glib rejection of these legisla­
tive decisions as having little weight on the scale which 
it finds in the Eighth Amendment seems to me more an 
instance of their desire to save the people from them­
selves than a conscientious effort to ascertain the content 
of any “evolving standard of decency.”

I l l
The second constitutional, flaw which the plurality 

finds in North Carolina’s mandatory system is that it 
has simply “papered over” the problem of unchecked 
jury discretion. The plurality states that, ante, at 21, 
“there is general agreement that American juries have 
persistently refused to convict a significant portion of 
persons charged with first-degree murder of that of­
fense under mandatory death penalty statutes.” The 
plurality also states, ante, at 21-22, that “as a mat­
ter of historic fact, juries operating under discre­
tionary sentencing statutes have consistently returned 
death sentences in only a minority of first degree mur­
der cases.” The basic factual assumption of the plural­
ity seems to be that for any given number of first-degree 
murder defendants subject to capital punishment, there 
will be a certain number of jurors who will be unwilling 
to impose the death penalty even though they are en­
tirely satisfied that the necessary elements of the sub­
stantive offense are made out.

In North Carolina jurors unwilling to impose the death 
penalty may simply hang a jury or they may so assert 
themselves that a verdict of not guilty is brought in; 
in Louisiana they will have a similar effect in causing 
some juries to bring in a verdict of guilty of a lesser 
included offense even though all the jurors are satisfied 
that the elements of the greater offense are made out.



8 WOODSON v. NORTH CAROLINA

Such jurors, of course, are violating their oath, but such 
violation is not only consistent with the majority’s hy­
pothesis; the majority’s hypothesis is bottomed on its 
occurrence.

For purposes of argument, I accept the plurality’s 
hypothesis: but it seems to me impossible to conclude 
from it that a mandatory death sentence statute such as 
North Carolina enacted is any less sound constitution­
ally than are the systems enacted by Georgia, Florida, 
and Texas which the Court upholds.

In Georgia juries are entitled to return a sentence of 
life, rather than death, for no reason whatever, simply 
based upon their own subjective notions of what is right 
and what is wrong. In Florida the judge and jury are 
required to weigh legislatively enacted aggravating fac­
tors against legislatively enacted mitigating factors, and 
then base their choice between life or death on an esti­
mate of the result of that weighing. Substantial discre­
tion exists here, too, though it is somewhat more 
canalized than it is in Georgia. Why these types of dis­
cretion are regarded by the plurality as constitutionally 
permissible, while that which may occur in the North 
Carolina system is not, is not readily apparent. The 
freakish and arbitrary nature of the death penalty de­
scribed in the separate opinions of Stew art, J., and 
W h it e , J., in Furman arose not from the perception that 
so many capital sentences were being imposed, but from 
the perception that so jew were being imposed. To con­
clude that the North Carolina system is bad because 
juror nullification may permit jury discretion while con­
cluding that the Georgia and Florida systems are sound 
because they require this same discretion, is, as the plu­
rality opinion demonstrates, inexplicable.

The Texas system much more closely approximates 
the mandatory North Carolina system which is struck 
down today. The jury is required to answer three statu­



WOODSON v. NORTH CAROLINA 9

tory questions. If the questions are unanimously an­
swered in the affirmative, the death penalty must be 
imposed. I t is extremely difficult to see how this system 
can be any less subject to the infirmities caused by juror 
nullification which the plurality concludes are fatal to 
North Carolina’s statute. The plurality apparently 
thinks it can sidestep this inconsistency because of its 
belief that one of the three questions will permit con­
sideration of mitigating factors justifying imposition of 
a life sentence. I t  is, however, as the plurality recog­
nizes, Jurek v. Texas, ante, at 9, far from clear that 
the statute is to be read in such a fashion. In any 
event, while the imposition of such unlimited considera­
tion of mitigating factors may conform to the plurality’s 
novel constitutional doctrine that “ [a] jury must be 
allowed to consider on the basis of all relevant evidence 
not only why a death sentence should be imposed, but 
also why it should not be imposed,” id., at 7-8, the 
resulting system seems as likely as any to produce the 
unbridled discretion which was condemned by the sepa­
rate opinions in Furman.

The plurality seems to believe, see ante, at 22, that 
provision for appellate review will afford a check upon 
the instances of juror arbitrariness in a discretionary 
system. But it is not at all apparent that appellate 
review of death sentences, through a process of compar­
ing the facts of one case in which a death sentence was 
imposed with the facts of another in which such a sen­
tence was imposed, will afford any meaningful protection 
against whatever arbitrariness results from jury discre­
tion. All that such review of death sentences can pro­
vide is a comparison of fact situations which must in 
their nature be highly particularized if not unique, and 
the only relief which it can afford is to single out the 
occasional death sentence which in the view of the re­



10 WOODSON v. NORTH CAROLINA

viewing court does not conform to the standards estab­
lished by the legislature.

I t  is established, of course, that there is no right 
to appellate review of a criminal sentence. McKane v. 
Durston, 153 U. S. 684 (1894). That question is not at 
issue here, since North Carolina, along with the other 
four States whose systems the petitioners are challenging 
in these cases, provides appellate review for a death 
sentence imposed in one of its trial courts.

By definition, of course, there can be no separate appel­
late review of the factual basis for the sentencing decision 
in a mandatory system. If it is once established in a 
fairly conducted trial that the defendant has in fact com­
mitted the crime in question, the only question as to the 
sentence which can be raised on appeal is whether a 
legislative determination that such a crime should be 
punished by death violates the Cruel and Unusual Pun­
ishment Clause of the Eighth Amendment. Here both 
petitioners were convicted of first-degree murder, and 
there is no serious question raised by the plurality that 
death is not a constitutionally permissible penalty for 
such a crime.

But the plurality sees another role for appellate review 
in its description of the reasons why the Georgia, Texas, 
and Florida systems are upheld, and the North Carolina 
system stricken down. And it is doubtless true that 
Georgia in particular has made a substantial effort to 
respond to the concerns expressed in Furman, not an 
easy task considering the glossolalial manner in which 
those concerns were expressed. The Georgia Supreme 
Court has indicated that the Georgia death penalty 
statute requires it to review death sentences imposed 
by juries on the basis of rough “proportionality.” I t  has 
announced that it will not sustain, at least at the present 
time, death penalties imposed for armed robery because



WOODSON v. NORTH CAROLINA 11

that penalty is so seldom imposed by juries for that 
offense. I t has also indicated that it will not sustain 
death penalties imposed for rape in certain fact situa­
tions, because the death penalty has been so seldom 
imposed on facts similar to those situations.

But while the Georgia response may be an admirable 
one as a matter of policy, it has imperfections, if a failure 
to conform completely to the dictates of the separate 
opinions in Furman be deemed imperfections, which the 
plurality opinion does not point out. Although there 
may be some disagreement between the plurality opinion, 
and the opinion of my Brother W h it e  in Gregg v. 
Georgia, which I have joined, as to whether the propor­
tionality review conducted by the Supreme Court of 
Georgia is based solely upon capital sentences imposed, 
or upon all sentences imposed in cases where a capital 
sentence could have been imposed by law, 1 shall assume 
for the purposes of this discussion that the system con­
templates the latter. But this is still far from a guar­
antee of any equality in sentencing, and is likewise no 
guarantee against juror nullification. Under the Georgia 
system, this jury is free to recommend life imprison­
ment, as opposed to death, for no stated reason whatever. 
The Georgia Supreme Court cannot know, therefore, 
when it is reviewing jury sentences for life in capital 
•cases, whether the jurors. found aggravating circum­
stances present, but nonetheless decided to recommend 
mercy, or instead found no aggravating circumstances at 
all and opted for mercy. So the “proportionality” type 
of review, while it would perhaps achieve its objective 
if there were no possible factual lacunae in the jury 
verdicts, will not achieve its objective because there are 
necessarily such lacunae.

Identical defects seem inherent in the systems of ap­
pellate review provided in Texas and Florida, for neither



12 WOODSON v. NORTH CAROLINA

requires the sentencing authority which concludes that 
a death penalty is inappropriate to state what mitigat­
ing factors were found to be present or whether certain 
aggravating factors urged by the prosecutor were actually 
found to be lacking. Without such detailed factual 
findings the plurality’s praise of appellate review as a 
cure for the constitutional infirmities which it identifies 
seems to me somewhat forced.

Appellate review affords no correction whatever with 
respect to those fortunate few who are the beneficiaries 
of random discretion exercised by juries, whether under 
an admittedly discretionary system or under a purport­
edly mandatory system. I t  may make corrections at 
one end of the spectrum, but cannot at the other. It 
is even less clear that any provision of the Constitution 
can be read to require such appellate review. If the 
States wish to undertake such an effort, they are un­
doubtedly free to do so, but surely it is not required by 
the United States Constitution.

The Court’s insistence on “standards” to “guide the 
jury in its inevitable exercise of the power to decide 
which murderer shall live and which shall die” is squarely 
contrary to the Court’s opinion in McGautha, supra, 
authored by Mr. Justice Harlan and subscribed to by 
five other Members of the Court only five years ago. So 
is the Court’s latter-day recognition, some four years 
after the decision of the case, that Furman requires “ob­
jective standards to guide, regularize, and make ration­
ally reviewable the process for imposing a sentence of 
death.” Its abandonment of stare decisis in this repudi­
ation of McGautha is a far lesser mistake than its sub­
stitution of a superficial and contrived constitutional 
doctrine for the genuine wisdom contained in McGautha. 
There the Court addressed the “standardless discretion” 
contention in this language:

“In our view, such force as this argument has



WOODSON v. NORTH CAROLINA 13

derives largely from its generality. Those who have 
come to grips with the hard task of actually attempt­
ing to draft means for channeling capital sentencing 
discretion have confirmed the lesson taught by the 
history recounted above. To identify before the 
fact those characteristics of criminal homicide and 
their perpetrators which call for the death penalty, 
and to express these characteristics in language 
which can be fairly understood and applied by the 
sentencing authority, appear to be tasks which are 
beyond present human ability.

Thus the British Home Office, which before the 
recent abolition of capital punishment in that coun­
try had the responsibility for selecting the cases from 
England and Wales which should receive the benefit 
of the Royal Prerogative of Mercy, observed:

“ ‘The difficulty of defining by any statutory pro­
vision the types of murder which ought or ought not 
to be punished by death may be illustrated by refer­
ence to the many diverse considerations to which 
the Home Secretary has regard in deciding whether 
to recommend clemency. No simple formula can 
take account of the innumerable degrees of culp­
ability, and no formula which fails to do so can 
claim to be just or satisfy public opinion.’ 1-2 
Royal Commission on Capital Punishment, Minutes 
of Evidence 13 (1949).” 402 U. S., at 204-205.

“In light of history, experience, and the present 
limitations of human knowledge, we find it quite 
impossible to say that committing to the untram­
meled discretion of the jury the power to pronounce 
life or death in capital cases is offensive to anything 
in the Constitution. The States are entitled to 
assume that jurors confronted with the truly awe­



14 WOODSON v. NORTH CAROLINA

some responsibility of decreeing death for a fellow 
human will act with due regard for the consequences 
of their decision and will consider a variety of fac­
tors, many of which will have been suggested by the 
evidence or by the arguments of defense counsel. 
For a court to attempt to catalog the appropriate 
factors in this elusive area could inhibit rather than 
expand the scope of consideration, for no list of cir­
cumstances would ever be really complete. The in­
finite variety of cases and facets to each case would 
make general standards either meaningless ‘boiler­
plate’ or a statement of the obvious that no jury 
would need.” 402 U. S., at 207-208 (citation 
omitted).

I t is also worth noting that the plurality opinion re­
pudiates not only the view expressed by the Court in 
McGautha, but also, as noted in McGautha, the view 
which had been adhered to by every other American 
jurisdiction which had considered the question. See 402 
U. S., at 196 n. 8.

The plurality opinion’s insistence, in Part III-C , that 
if the death penalty is to be imposed there must be “par­
ticularized consideration of relevant aspects of the char­
acter and record of each convicted defendant” is but­
tressed by neither case authority nor reason. Its 
principal claim to distinction is that it contradicts 
important parts of Part III-A  in the same opinion.

Part III-A , which describes what it conceives to have 
been society’s turning away from the mandatory imposi­
tion of the death penalty, purports to express no opinion 
as to the constitutionality of a mandatory statute for 
“an extremely narrow category of homicide, such as mur­
der by a prisoner serving a life sentence.” See ante, at 
5 n. 7. Yet if “particularized consideration” is to be 
required in every case under the doctrine expressed in



WOODSON v. NORTH CAROLINA 15

Part III-C , such a reservation in Part III-A  is dis­
ingenuous at best.

None of the cases half-heartedly cited by the plurality 
in Part III-C  comes within a light year of establishing 
the proposition that individualized consideration is a 
constitutional requisite for the imposition of the death 
penalty. Pennsylvania v. Ashe, 302 U. S. 51 (1937), 
upheld against a claim of violation of the Equal Protec­
tion Clause a Pennsylvania statute which made the sen­
tence imposed upon a convict breaking out of a peniten­
tiary dependent upon the length of the term which he 
was serving at the time of the break. In support of its 
conclusion that Pennsylvania had not denied the convict 
equal protection, the Court observed:

“The comparative gravity of criminal offenses and 
whether their consequences are more or less injurious 
are matters for [the State’s] determination. . . .  I t  
may inflict a deserved penalty merely to vindicate 
the law or to deter or to reform the offender or for 
all of these purposes. For the determination of 
sentences, justice generally requires consideration of 
more than the particular acts by which the crime 
was committed and that there be taken into account 
the circumstances of the offense together with the 
character and propensities of the offender. His past 
may be taken to indicate his present purposes and 
tendencies and significantly to suggest the period of 
restraint and the kind of discipline that ought to be 
imposed upon him.” 302 U. S., at 55.

These words of Mr. Justice Butler, speaking for the 
Court in that case, and those of Mr. Justice Black in 
Williams v. New York, 377 U. S. 241 (1949), the other 
opinion relied on by the plurality, lend no support what­
ever to the principle that the Constitution requires indi­
vidualized consideration. This is not surprising, since



16 WOODSON v. NORTH CAROLINA

even if such a doctrine had respectable support, which 
it has not, it is unlikely that either Mr. Justice Butler 
or Mr. Justice Black would have embraced it.

The plurality also relies upon the indisputable propo­
sition that “death is different” for the result which it 
reaches in Part III-C . But the respects in which death 
is “different” from other punishment which may be im­
posed upon convicted criminals do not seem to me to 
establish the proposition that the Constitution requires 
individualized sentencing.

One of the principal reasons why death is different 
is because it is irreversible; an executed defendant can­
not be brought back to life. This aspect of the differ­
ence between death and other penalties would undoubt­
edly support statutory provisions for especially careful 
review of the fairness of the trial, the accuracy of the 
factfinding process, and the fairness of the sentencing 
procedure where the death penalty is imposed. But 
none of those aspects of the death sentence is at issue 
here. Petitioners were found guilty of the crime of first 
degree murder in a trial the constitutional validity of 
which is unquestioned here. And since the punishment 
of death is conceded by the plurality not to be a cruel 
and unusual punishment for such a crime, the irre­
versible aspect of the death penalty has no connection 
whatever with any requirement for individualized con­
sideration of the sentence.

The second aspect of the death penalty which makes 
it “different” from other penalties is the fact that it is 
indeed an ultimate penalty, which ends a human life 
rather than simply requiring that a living human being 
be confined for a given period of time in a penal insti­
tution. This aspect of the difference may enter into the 
decision of whether or not it is a “cruel and unusual” 
penalty for a given offense. But since in this case the



WOODSON v. NORTH CAROLINA 17

offense was first-degree murder, that particular inquiry 
need proceed no further.

The plurality’s insistence on individualized considera­
tion of the sentencing, therefore, depends not upon any 
traditional application of the prohibition against cruel 
and unusual punishment contained in the Eighth 
Amendment. The punishment here is concededly not 
cruel and unusual, and that determination has tradi­
tionally ended judicial inquiry in our cases construing 
the Cruel and Unusual Punishment Clause. Trop v. 
Dulles, supra; Robinson v. California, supra; Louisiana 
ex rel. Francis v. Resweber, supra; Wilkerson v. Utah, 
supra. What the plurality opinion has actually done 
is to import into the Due Process Clause of the Four­
teenth Amendment what it conceives to be desirable pro­
cedural guarantees where the punishment of death, con­
cededly not cruel and unusual for the crime of which the 
defendant was convicted, is to be imposed. This is 
squarely contrary to Mc,Gautha, and unsupported by any 
other decision of this Court.

I agree with the conclusion of the plurality, and with 
that of M e . J u stice  W h it e , that death is not a cruel 
and unusual punishment for the offense of which these 
petitioners were convicted. Since no member of the 
Court suggests that the trial which led to those convic­
tions in any way fell short of the standards mandated by 
the Constitution, the judgments of conviction should 
be affirmed. The Fourteenth Amendment, giving the 
fullest scope to its “majestic generalities,” Fay v. New 
York, 332 U. S. 261, 282 (1947), is conscripted rather 
than interpreted when used to permit one but not an­
other system for imposition of the death penalty.



N O T E : W here it  is feasible, a syllabus (headnote) w ill be re­
leased, as is being done in connection w ith  th is  case, a t  th e  tim e 
the  opinion is issued. The syllabus constitu tes no p a r t  of th e  opinion 
of the  C ourt bu t has been prepared  by the  R eporter of Decisions for 
th e  convenience of the  reader. See United S ta te s  v. D etroit Lum ber  
Co., 200 D.S. 321, 337.

SUPKEME COUET OF THE UNITED STATES

Syllabus

ROBERTS v. LOUISIANA

CERTIORARI TO THE SUPREME COURT OF LOUISIANA

No. 75-5844. Argued March 30-31, 1976—Decided July 2, 1976

Petitioner was found guilty of first-degree murder and sentenced to 
death under amended Louisiana statutes enacted after this Court’s 
decision in Furman v. Georgia, 408 U. S. 238. The Louisiana Su­
preme Court affirmed, rejecting petitioner’s contention that the 
new procedure for imposing the death penalty is unconstitutional. 
The post-Furman legislation mandates imposition of the death 
penalty whenever, with respect to five categories of homicide (here 
killing during the perpetration of an armed robbery), the jury 
finds the defendant had a specific intent to kill or to inflict great 
bodily harm. If a verdict of guilty of first-degree murder is re­
turned, death is mandated regardless of any mercy recommenda­
tion. Every jury is instructed on the crimes of second-degree 
murder and manslaughter and permitted to consider those ver­
dicts even if no evidence supports the lesser verdicts; and if a 
lesser verdict is returned it is treated as an acquittal of all 
greater charges. Held: The judgment must be reversed and the 
case is remanded. Pp. 5-10 (opinion of Stewart, Powell, and 
Stevens, J J . ) ; p. 1 (statement of Brennan, J . ) ; p. 1 (state­
ment of Marshall, J,).

319 So. 2d 317, reversed and remanded.
Mr. J ustice Stewart, Mr. J ustice Powell, and Mr. Justice 

Stevens concluded that:
1. The imposition of the death penalty is not per se cruel and 

unusual punishment violative of the Eighth and Fourteenth 
Amendments. Gregg v. Georgia, ante, a t 11-30. P. 5.

2. Louisiana’s mandatory death penalty statute violates the 
Eighth and Fourteenth Amendments. Pp. 5-10.

(a) Though Louisiana has adopted a different and somewhat 
narrower definition of first-degree murder than North Carolina,

i



II ROBERTS v. LOUISIANA

Syllabus

the difference is not of constitutional significance, and the Louisi­
ana statute imposing a mandatory death sentence is invalid for 
substantially the same reasons as are detailed in Woodson v. North 
Carolina, ante, at — . Pp. 5-8.

(b) Though respondent State claims that it has adopted satis­
factory procedures to comply with Furman’s requirement that 
standardless jury discretion be replaced by procedures that safe­
guard against the arbitrary and capricious imposition of death 
sentences, that objective has not been realized, since the respon­
sive verdict procedure not only lacks standards to  guide the jury 
in selecting among first-degree murderers, but it plainly invites 
the jurors to disregard their oaths and choose a verdict for a lesser 
offense whenever they feel that the death penalty is inappropriate. 
See Woodson, ante, a t 21-22. Pp. 8-10.

Mr. J ustice Brennan concurred in the judgment for the rea­
sons stated in his dissenting opinion in Gregg v. Georgia, ante, 
a t — .

Mr. J ustice Marshall, being of the view that death is a cruel 
and unusual punishment forbidden by the Eighth and Fourteenth 
Amendments, concurred in the judgment. Gregg v. Georgia, ante, 
a t —  (Marshall, J., dissenting).

Stewart, Powell, and Stevens, JJ., announced the judgment of 
the Court and filed an opinion delivered by Stevens, J. Brennan 
and Marshall, JJ., filed statements concurring in the judgment. 
Burger, C. J., filed a dissenting statement. White, J., filed a dis­
senting opinion, in which Burger, C. J., and Blackmun and Re h n - 
quist, JJ., joined. Blackmun, J., filed a dissenting statement.



NOTICE : This opinion is subject to  form al revision before publication 
in the  p relim inary  p r in t of the  U nited S ta tes Reports. R eaders are  re­
quested to  notify  the  R eporter of Decisions, Suprem e C ourt of the 
U nited S ta tes, W ashington, D.C. 20543, of any typographical or o ther 
form al errors, in order th a t  corrections may be made before the  pre­
lim inary  p rin t goes to press.

SUPEEME COUKT OF THE UNITED STATES

No. 75-5844

Stanislaus Roberts,
Petitioner, On Writ of Certiorari to the Su- 

v. preme Court of Louisiana.
State of Louisiana.

[July 2, 1976]

Mr. J u stice  Stew art, Mr. J u stice  P ow ell , and Mr. 
J u stice  Steven s  announced the judgment of the Court 
and filed an opinion delivered by  Mr. J u stice  St ev en s .

The question in this case is whether the imposition of 
the sentence of death for the crime of first-degree murder 
under the law of Louisiana violates the Eighth and Four­
teenth Amendments.

I
On August 18, 1973, in the early hours of the morning, 

Richard G. Lowe was found dead in the office of the 
Lake Charles, La., gas station at which he worked. He 
had been shot four times in the head. Four men—the 
petitioner, Huey Cormier, Everett Walls, and Calvin 
Arcenaux—were arrested for complicity in the murder. 
The petitioner was subsequently indicted by a grand 
jury on a presentment that he “ [d]id unlawfully with 
the specific intent to kill or to inflict great bodily harm, 
while engaged in the armed robbery of Richard G. Lowe 
commit first degree murder by killing one Richard G. 
Lowe, in violation of Section One (1) of L. S. A.-R S 
14:30.”

At the petitioner’s trial, Cormier, Walls, and Arcenaux 
testified for the prosecution. Their testimony estab-



2 ROBERTS v. LOUISIANA

lished that just before midnight on August 17, the peti­
tioner discussed with Walls and Cormier the subject of 
“ripping off that old man at the station,” and that on the 
early morning of August 18, Arcenaux and the petitioner 
went to the gas station on the pretext of seeking employ­
ment. After Lowe told them that there were no jobs 
available they surreptitiously made their way into the 
office of the station, where Arcenaux removed a pistol 
from a desk drawer. The petitioner insisted on taking 
possession of the pistol. When Lowe returned to the 
office, the petitioner and Arcenaux assaulted him and 
then shoved him into a small back room. Shortly there­
after a car drove up. Arcenaux went out and, posing as 
the station attendant, sold the motorist about three dol­
lars’ worth of gasoline. While still out in front, Arcen­
aux heard four shots from inside the station. He went 
back inside and found the petitioner gone and Lowe lying 
bleeding on the floor. Arcenaux grabbed some empty 
“money bags” and ran.

The jury found the petitioner guilty as charged. As 
required by state law, the trial judge sentenced him to 
death. The Supreme Court of Louisiana affirmed the 
judgment. State v. Roberts, 319 So. 2d 317 (La. 1975).
We granted certiorari,----U. S .-----  (1976), to consider
whether the imposition of the death penalty in this case 
violates the Eighth and Fourteenth Amendments of the 
United States Constitution.

II
The Louisiana Legislature in 1973 amended the state 

statutes relating to murder and the death penalty in 
apparent response to this Court’s decision in Furman v. 
Georgia, 408 U. S. 238 (1972). Before these amend­
ments, Louisiana law defined the crime of “murder” as 
the killing of a human being by an offender with a spe­
cific intent to kill or to inflict great bodily harm, or by an



ROBERTS v. LOUISIANA 3

offender engaged in the perpetration or attempted perpe­
tration of certain serious felonies, even without an intent 
to kill.1 The jury was free to return any of four ver­
dicts: guilty, guilty without capital punishment, guilty 
of manslaughter or not guilty.1 2

In the 1973 amendments, the legislature changed this 
discretionary statute to a wholly mandatory one, requir­
ing that the death penalty be imposed whenever the jury 
finds the defendant guilty of the newly defined crime of 
first-degree murder. The revised statute, under which 
the petitioner was charged, convicted, and sentenced, 
provides in part that first-degree murder is the killing of 
a human being when the offender has a specific intent to 
kill or to inflict great bodily harm and is engaged in the 
perpetration or attempted perpetration of aggravated 
kidnapping, aggravated rape, or armed robbery.3 In a

1 La. Rev. Stat. Ann. § 14:30 (1951). The felonies were aggra­
vated arson, aggravated burglary, aggravated kidnapping, aggravated 
rape, armed robbery and simple robbery.

2 La. Code Crim. Proc. Ann., Art 814 (1967).
3 La. Rev. Stat. Ann. § 14:30 (1974):
“First degree murder. First degree murder is the killing of a 

human being:
“ (1) When the offender has a specific intent to kill or to inflict 

great bodily harm and is engaged in the perpetration or attempted 
perpetration of aggravated kidnapping, aggravated rape or armed 
robbery; or

“ (2) When the offender has a specific intent to kill, or to  inflict 
great bodily harm upon, a fireman or a peace officer who was en­
gaged in the performance of his lawful duties; or

“ (3) Where the offender has a specific intent to kill or to inflict 
great bodily harm and has previously been convicted of an unrelated 
murder or is serving a life sentence; or

“ (4) When the offender has a specific intent to kill or to inflict 
great bodily harm upon more than one person; [or]

“ (5) When the offender has specific intent to commit murder and



4 ROBERTS v. LOUISIANA

first-degree murder case, the four responsive verdicts are 
now guilty, guilty of second-degree murder, guilty of 
manslaughter, and not guilty. La. Code Grim. Proc. 
Ann., Art. 814 (A)(1) (Supp. 1975). The jury must be 
instructed on all these verdicts, whether or not raised, by 
the evidence or requested by the defendant.4

Under the former statute, the jury had the unfettered 
choice in any case where it found the defendant guilty of 
murder of returning either a verdict of guilty, which re­
quired the imposition of the death penalty, or a verdict

has been offered or has received anything of value for committing 
the murder.

‘T or the purposes of paragraph (2) herein, the term peace officer 
shall be defined and include any constable, sheriff, deputy sheriff, 
local or state policeman, game warden, federal law enforcement 
officer, jail or prison guard, parole officer, probation officer, judge, 
district attorney, assistant district attorney or district attorney’s 
investigator.

‘‘Whoever commits the crime of first degree murder shall be pun­
ished by death.”

(In 1975, § 14.30 (1) was amended to add the crime of aggravated 
burglary as a predicate felony for first-degree murder. La. Acts 
1975, No. 327.)

La. Rev. Stat. Ann. § 14:30.1 (1974):
“Second degree murder. Second degree murder is the killing of 

a human being:
“ (1) When the offender has a specific intent to kill or to inflict 

great bodily harm; or
“ (2) When the offender is engaged in the perpetration or a t­

tempted perpetration of aggravated arson, aggravated burglary, 
aggravated kidnapping, aggravated escape, armed robbery, or simple 
robbery, even though he has no intent to kill.

“Whoever commits the crime of second degree murder shall be im­
prisoned at hard labor for life and shall not be eligible for parole, 
probation or suspension of sentence for a period of twenty years.”

(In 1975, § 14:30.1 was amended to increase the period of parole 
ineligibility from twenty to forty years following a conviction for 
second-degree murder. La. Acts 1975, No. 380.)

* See State v. Cooley, 260 La. 768, 257 So. 2d 400 (1972).



ROBERTS v. LOUISIANA 5

of guilty without capital punishment, in which case the 
punishment was imprisonment at hard labor for life.5 6 
Under the new statute the jury is required only to deter­
mine whether both conditions existed at the time of the 
killing; if there was a specific intent to kill or to inflict 
great bodily harm, and the offender was engaged in an 
armed robbery, the offense, is first-degree murder and 
the mandatory punishment is death. If only one of 
these conditions existed, the offense is second-degree mur­
der and the mandatory punishment is imprisonment at 
hard labor for life. Any qualification or recommenda­
tion which a jury might add to its verdict—such as a 
recommendation of mercy where the verdict is guilty of 
first-degree murder—is without any effect.6

III
The petitioner argues that the imposition of the death 

penalty under any circumstances is cruel and unusual 
punishment in violation of the Eighth and Fourteenth 
Amendments. We reject this argument for the reasons 
stated today in Gregg v. Georgia, ante, pp. 11-30.

IV
Louisiana, like North Carolina, has responded to Fur­

man by replacing discretionary jury sentencing in capital 
cases with mandatory death sentences. Under the pres­
ent Louisiana law, all persons found guilty of first-degree 
murder, aggravated rape, aggravated kidnapping, or 
treason are automatically sentenced to death. See La.

5 La. Code Crim. Proc. Ann., Art. 814 (1967), enumerated ''guilty 
without capital punishment” as one of the responsive verdicts avail­
able in a murder case. La. Code Crim. Proc. Ann., Art. 817 (1967), 
provided that the jury in a capital case could qualify its verdict of 
guilty with the phrase “without capital punishment.”

6 La. Code Crim. Proc. Ann., Art. 817 (Supp. 1975).



6 ROBERTS v. LOUISIANA

Rev. Stat. Ann. §§ 14:30, 14:42, 14:44, 14:113 (1974).
There are two major differences between the Louisiana 

and North Carolina statutes governing first-degree mur­
der cases. First, the crime of first-degree murder in 
North Carolina includes any willful, deliberate, and 
premeditated homicide and any felony murder, whereas 
Louisiana limits first-degree murder to five categories of 
homicide—killing in connection with the commission of 
certain felonies; killing of a fireman or a peace officer in 
the performance of his duties; killing for remuneration; 
killing with the intent to inflict harm on more than one 
person; and killing by a person with a prior murder con­
viction or under a current life sentence.7 Second, Loui­
siana employs a unique system of responsive verdicts 
under which the jury in every first-degree murder case 
must be instructed on the crimes of first-degree murder, 
second-degree murder, and manslaughter and must be 
provided with the verdicts of guilty, guilty of second- 
degree murder, guilty of manslaughter, and not guilty. 
See La. Code Crim. Proc. Ann., Arts. 809, 814 (Supp. 
1975); State v. Cooley, 260 La. 768, 771, 257 So. 2d 400, 
401 (1972). By contrast, in North Carolina instructions 
on lesser included offenses must have a basis in the evi­
dence adduced at trial. See State v. Spivey, 151 N. C. 
676, 65 S. E. 995 (1909); cf. State v. Vestal, 283 N. C. 
249, 195 S. E. 2d 297 (1973).

That Louisiana has adopted a different and somewhat 
narrower definition of first-degree murder than North 
Carolina is not of controlling constitutional significance. 
The history of mandatory death penalty statutes indi­
cates a firm societal view that limiting the scope of capi­
tal murder is an inadequate response to the harshness 
and inflexibility of a mandatory death sentence statute. 
See Woodson v. North Carolina, ante, pp. 7-15. A large

7 See La. Rev. Stat. Ann. § 14:30 (1974), set forth at n. 3, supra.



ROBERTS v. LOUISIANA 7

group of jurisdictions first responded to the unacceptable 
severity of the common-law rule of automatic death 
sentences for all murder convictions by narrowing the 
definition of capital homicide. Each of these jurisdic­
tions found that approach insufficient and subsequently 
substituted discretionary sentencing for mandatory death 
sentences. See Woodson v. North Carolina, ante, pp. 
9-10.8

The futility of attempting to solve the problems of 
mandatory death penalty statutes by narrowing the scope 
of the capital offense stems from our society’s rejection 
of the belief that “every offense in a like legal category 
calls for an identical punishment without regard to the 
past life and habits of a particular offender.” Williams 
v. New York, 337 U. S. 241, 247 (1949). See also Penn­
sylvania v. Ashe, 302 U. S. 51, 55 (1937). As the dis­
senting justices in Furman noted, the 19th century move­
ment away from mandatory death sentences was rooted 
in the recognition that “individual culpability is not al­
ways measured by the category of crime committed.” 
408 U. S. 238, 402 (1972) (B urger, C. J„ dissenting).

The constitutional vice of mandatory death sentence 
statutes—lack of focus on the circumstances of the par­
ticular offense and the character and propensities of the 
offender—is not resolved by Louisiana’s limitation of 
first-degree murder to various categories of killings. The 
diversity of circumstances presented in case’s falling 
within the single category of killings during the commis­
sion of a specified felony, as well as the variety of possi­
ble offenders involved in such crimes, underscores the 
rigidity of Louisiana’s enactment and its similarity to 
the North Carolina statute. Even the other more nar­

8 At least 27 jurisdictions first limited the scope of their capital 
homicide laws by dividing murder into degrees and then later made 
death sentences discretionary even in first-degree murder cases.



ROBERTS v. LOUISIANA

rowly drawn categories of first-degree murder in the 
Louisiana law afford no meaningful opportunity for con­
sideration of mitigating factors presented by the circum­
stances of the particular crime or by the attributes of the 
individual offender.9

Louisiana’s mandatory death sentence statute also fails 
to comply with Furman’s requirement that standardless 
jury discretion be replaced by procedures that safeguard 
against the arbitrary and capricious imposition of death 
sentences. The State claims that it has adopted satisfac­
tory procedures by taking all sentencing authority from 
juries in capital murder cases. This was accomplished, 
according to the State, by deleting the jury’s pre-Furman 
authority to return a verdict of guilty without capital 
punishment in any murder case. See La. Rev. Stat. Ann. 
§ 14:30 (1974); La. Code Crim. Proc. Ann., Arts. 814, 817 
(Supp. 1975).10

Under the current Louisiana system, however, every 
jury in a first-degree murder case is instructed on the 
crimes of second-degree murder and manslaughter and 
permitted to consider those verdicts even if there is not a 
scintilla of evidence to support the lesser verdicts. See 
La. Code Crim. Proc. Ann., Arts. 809, 814 (Supp. 1975).

9 Only the third category of the Louisiana first-degree murder 
statute, covering intentional killing by a person serving a life sen­
tence or by a person previously convicted of an unrelated murder, 
defines the capital crime at least in significant part in terms of the 
character or record of the individual offender. Although even this 
narrow category does not permit the jury to consider possible miti­
gating factors, a prisoner serving a life sentence presents a unique 
problem that may justify such a law. See Gregg v. Georgia, ante, 
p. 29; Woodson v. North Carolina, ante, pp. 5-6 n. 7, 10-11 n. 25.

10 Louisiana juries are instructed to return a guilty verdict for the 
offense charged if warranted by the evidence and to consider lesser 
verdicts only if the evidence does not justify a conviction on the 
greater offense. See State v. Hill, 297 So. 2d 660, 662 (La. 1974); 
cf. State v. Selman, 300 So. 2d 467, 471-473 (La. 1974).



ROBERTS v. LOUISIANA 9

And, if a lesser verdict is returned, it is treated as an ac­
quittal of all greater charges. See La. Code Grim. Proc. 
Ann., Art. 598 (Supp. 1975). This responsive verdict 
procedure not only lacks standards to guide the jury in 
selecting among first-degree murderers, but it plainly 
invites the jurors to disregard their oaths and choose a 
verdict for a lesser offense whenever they feel the death 
penalty is inappropriate. There is an element of capri­
ciousness in making the jurors’ power to avoid the death 
penalty dependent on their willingness to accept this 
invitation to disregard the trial judge’s instructions. The 
Louisiana procedure neither provides standards to chan­
nel jury judgments nor permits review to check the arbi­
trary exercise of the capital jury’s de facto sentencing 
discretion. See Woodson v. North Carolina, ante, pp. 
21- 22.11

The Louisiana statute thus suffers from constitutional 
deficiencies similar to those identified in the North Caro­
lina statute in Woodson v. North Carolina, ante. As in 
North Carolina, there are no standards provided to guide

11 While it is likely that many juries will follow their instructions 
and consider only the question of guilt in reaching their verdict, it 
is only reasonable to assume, in light of past experience with man­
datory death sentence statutes that a significant number of juries 
will take into account the fact that the death sentence is an auto­
matic consequence of any first-degree murder conviction in Louisi­
ana. See Woodson v. North Carolina, ante, pp. 21-22. Those 
juries that do consider sentencing consequences are given no guid­
ance in deciding when the ultimate sanction of death is an appro­
priate punishment and will often be given little or no evidence 
concerning the personal characteristics and previous record of an 
individual defendant. Moreover, there is no judicial review to 
safeguard against capricious sentencing determinations. Indeed, 
there is no judicial review of the sufficiency of the evidence to sup­
port a conviction. See State v. Brumfield, 319 So. 2d 402, 404 (La. 
1975); State v. Evans, 317 So. 2d 168, 170 (La. 1975); State v. 
Douglas, 278 So. 2d 485, 491 (La. 1973).



10 ROBERTS v. LOUISIANA

the jury in the exercise of its power to select those first- 
degree murderers who will receive death sentences, and 
there is no meaningful appellate review of the jury’s de­
cision. As in North Carolina, death sentences are man­
datory upon conviction for first-degree murder. Louisi­
ana’s mandatory death sentence law employs a procedure 
that was rejected by that State’s legislature 130 years 
ago 12 and that subsequently has been renounced by legis­
latures and juries in every jurisdiction in this nation. 
See Woodson v. North Carolina, ante, pp. 10-14. The 
Eighth Amendment, which draws much of its meaning 
from “the evolving standards of decency that mark the 
progress of a maturing society,” Trop v. Dulles, 356 U. S. 
86, 101 (plurality opinion), simply cannot tolerate the 
reintroduction of a practice so thoroughly discredited.

Accordingly, we find that the death sentence imposed 
upon the petitioner under Louisiana’s mandatory death 
sentence statute violates the Eighth and Fourteenth 
Amendments and must be set aside. The judgment of 
the Supreme Court of Louisiana is reversed insofar as it 
upheld the death sentence imposed upon the petitioner, 
and the case is remanded for further proceedings not 
inconsistent with this opinion.

I t  is so ordered.

12 See La. Laws 1846, c. 139.



8UPEEME COUKT OF THE UNITED STATES
No. 75-5844

Stanislaus Roberts, ■
Petitioner, On Writ of Certiorari to the Su- 

v. preme Court of Louisiana.
State of Louisiana.'

[July 2, 1976]

M r . J u stice  Br e n n a n , concurring in  th e  judgm ent.

For the reasons stated in my dissenting opinion in
Gregg v. Georgia,----U. S .----- , ----  (1976), I concur in
the judgment that sets aside the death sentence im­
posed under the Louisiana death sentence statute as 
violative of the Eighth and Fourteenth Amendments.



SUPEEME COURT OF THE UNITED STATES
No. 75-5844

Stanislaus Roberts,,
Petitioner, On Writ of Certiorari to the Su- 

v. preme Court of Louisiana.
State of Louisiana.

[July 2, 1976]

Mr. J u stice  M arshall , concurring in the judgment.
For the reasons stated in my dissenting opinion in

Gregg v. Georgia, ----  U. S. ---- , ---- - (1976), I am of
the view that the death penalty is a cruel and unusual 
punishment forbidden by the Eighth and Fourteenth 
Amendments. I therefore concur in the Court’s 
judgment.



SUPBEME COUET OE THE UNITED STATES
No. 7-5-5844

Stanislaus Roberts,, 
Petitioner, 

v.
State of Louisiana.

On Writ of Certiorari to the Su­
preme Court of Louisiana.

[July 2, 1976]

M r . Ch ie f  J u stice  B urger, dissenting.

I  d issen t for th e  reasons se t fo rth  in  m y d issen t in  
Furman v. Georgia, 408 U. S. 238, 375 (1972).



SUPEEME COURT OF THE UNITED STATES

No. 75-5844

Stanislaus Roberts, 
Petitioner, 

v.
State of Louisiana.

On Writ of Certiorari to the Su­
preme Court of Louisiana.

[July 2, 1976]

M e . J u stice  W h it e , w ith  w hom  T h e  C h ie f  J u stice , 
M r . J ustice  B l a c k m u n , an d  M r . J u stice  R e h n q u is t  
join, d issenting.

Under the Louisiana statutes in effect prior to 1973, 
there were three grades of criminal homicide—murder, 
manslaughter, and negligent homicide. La. Rev. Stat. 
§ 14:29 (1951). Murder was punishable by death, La. 
Rev. Stat. § 14:30 (1951); but a jury finding a defend­
ant guilty of murder was empowered to foreclose the 
death penalty by returning a verdict of “guilty without 
capital punishment.” La. Rev. Stat. § 14:409 (1951). 
Following Furman v. Georgia, 408 U. S. 238 (1972), 
which the Louisiana courts held effectively to have in­
validated the Louisiana death penalty,1 the statutes were

1 Sinclair v. Louisiana, 408 U. S. 939, on remand sub nom. State 
v. Sinclair, 263 La. 377, 268 So. 2d 514 (1972); Poland v. Louisiana, 
408 U . S. 936, on remand sub nom. State v. Poland, 263 La. 269, 
268 So. 2d 221 (1972); Johnson v. Louisiana, 408 U. S. 932, on 
remand sub nom. State v. Singleton, 263 La. 267, 268 So. 2d 220 
(1972); Williams v. Louisiana, 408 U . S. 934, on remand sub nom. 
State v. Williams, 263 La. 284, 268 So. 2d 227 (1972); Square v. 
Louisiana, 408 U. S. 938, on remand sub nom. State v. Square, 
263 La. 291, 268 So. 2d 229 (1972); Douglas v. Louisiana, 408 U. S. 
937, on remand sub nom. State v. Douglas, 263 La. 294, 268 So. 2d 
231 (1972); McAllister v. Louisiana, 408 U. S. 934, on remand sub 
nom. State v. McAllister, 263 La. 296, 268 So. 2d 231 (1972); 
Strong v. Louisiana, 408 U. S. 937, on remand sub nom. State v.



2 ROBERTS v. LOUISIANA

amended to provide four grades of criminal homicide: 
first-degree murder, second-degree murder, manslaughter, 
and negligent homicide. La. Rev. Stat. § 14:29 (1974 
Supp.). First-degree murder was defined as the killing 
of a human in prescribed situations, including where the 
offender, with specific intent to kill or to inflict great 
bodily harm, takes another’s life while perpetrating or 
attempting to perpetrate aggravated kidnapping, aggra­
vated rape, or armed robbery. La. Rev. Stat. § 14:30 
(1974 Supp.). The new statute provides that “whoever 
commits the crime of first degree murder should be pun­
ished by death,” and juries were no longer authorized to 
return guilty verdicts without capital punishment.2 As

Strong, 263 La. 298, 268 So. 2d 232 (1972); Marks v. Louisiana, 
408 U. S. 933, on remand sub nom. State v. Marks, 263 La. 355, 
268 So. 2d 253 (1972).

^Section 14:30 of La. Rev. Stat. (1974 Supp.), which became 
effective July 2, 1973, provided:

“First degree murder is the killing of a human being:
“ (1) When the offender has a specific intent to kill or to inflict 

great bodily harm and is engaged in the perpetration or attempted 
perpetration of aggravated kidnapping, aggravated rape or armed 
robbery; or

“ (2) When the offender has a specific intent to kill, or to inflict 
great bodily harm upon, a fireman or a peace officer who was en­
gaged in the performance of his lawful duties; or 

“ (3) Where the offender has a specific intent to kill or to inflict 
great bodily harm and has previously been convicted of an unrelated 
murder or is serving a life sentence; or

“ (4) When the offender has a specific intent to kill or to inflict 
great bodily harm upon more than one person;

“ (5) When the offender has specific intent to commit murder and 
has been offered or has received anything of value for committing 
the murder.

“For the purposes of paragraph (2) herein, the term peace officer 
shall be defined and include any constable, sheriff, deputy sheriff, 
local or state policeman, game warden, federal law enforcement 
officer, jail or prison guard, parole officer, probation officer, judge,



ROBERTS v. LOUISIANA 3

had been the case before 1973, the possible jury verdicts 
in first-degree murder cases were also specified by statute. 
As amended in 1973, these “responsive verdicts,” as to 
which juries were to be instructed in every first-degree 
murder case, are: “guilty,” “guilty of second degree mur­
der,” “guilty of manslaughter” and “not guilty.” La. 
Code Crim. Proc. Art. 814(A )(1) (1975 Supp.).

The issue in this case is whether the imposition of the 
death penalty under this statutory scheme upon a de­

district attorney, assistant district attorney or district attorneys’ 
investigator.

“Whoever commits the crime of first degree murder shall be 
punished by death.
“Amended by Acts 1973, No. 109, § 1.”
Subsection (1) of the the statute was amended in 1975 to include 
“aggravated burglary.” La. Acts 1975, No. 327, § 1.

As petitioner here concedes, Louisiana’s -post-Furman legislation, 
supra, “narrowed” “the range of cases in which the punishment of 
death might be inflicted.” Brief for Petitioner 31 (original 
emphasis). Prior to the 1973 legislation, all murders were pun­
ishable by the death penalty. Section 14:30, La.. Rev. Stat. (1951), 
which was applicable prior to Furman, provided:

“Murder is the killing of a human being.
“ (1) When the offender has a specific intent to kill or to inflict 

great bodily harm; or
“ (2) When the offender is engaged in the perpetration or a t­

tempted perpetration of aggravated arson, aggravated burglary, 
aggravated kidnapping, aggravated rape, armed robbery, or simple 
robbery, even though he has no intent to kill.

“Whoever commits the crime of murder shall be punished by 
death.”

In addition to murder, Louisiana prior to Furman provided for 
the death penalty in cases of aggravated rape (§ 14:42 La. Rev. 
Stat.), aggravated kidnapping (§ 14:44 La. Rev. Stat.), and treason 
(§14:113 La. Rev. Stat.). Louisiana’s post -Furman legislation re­
enacted the death penalty for aggravated rape (§ 14:42 La. Rev. 
Stat. (1975 Supp.)), aggravated kidnapping (§ 14:44 La. Rev. Stat. 
(1974 Supp.)), and treason (§ 14:133 La. Rev. Stat. (1974 Supp.)). 
The constitutionality of these statutes is not before the Court.



4 ROBERTS v.  LOUISIANA

fendant found guilty for first-degree murder is consistent 
with the Eighth Amendment, which forbids the infliction 
of “cruel and unusual punishments” and which by virtue 
of the Fourteenth Amendment is binding upon the States. 
Robinson v. California, 370 U. S. 660 (1962). I am 
convinced that it is and dissent from the Court’s 
judgment.

I
On August 18, 1973, Richard G. Lowe of Lake Charles, 

La., was found dead in the Texaco service station where 
he worked as an attendant. He had been shot four times 
in the head with a pistol which was not found on the 
scene, but which, as it turned out, had been kept by the 
station manager in a drawer near the cash register. The 
gun was later recovered from the owner of a bar and was 
traced to petitioner, who was charged with first-degree 
murder in an indictment alleging that “with the specific 
intent to kill or to inflict great bodily harm” and “while 
engaged in . . . armed robbery,” he had killed Richard G. 
Lowe.

At the trial Calvin Arceneaux, testifying for the prose­
cution, stated that he had participated in the robbery 
and that he had taken the gun from the drawer and 
given it to petitioner, who had said he wanted it because 
he had “always wanted to kill a white dude.” The at­
tendant, who had been overpowered, remained inside the 
station with petitioner while Arceneaux, posing as the 
station attendant, went outside to tend a customer. 
According to Arceneaux, Lowe was shot during this inter­
val. Another witness, Everett Walls, testified that he 
had declined to participate in the robbery but by chance 
had seen the petitioner at the station with a gun in his 
hand. According to a third witness, Huey Cormier, who 
also had refused petitioner’s invitation to participate, peti­
tioner had come to Cormier’s house early on August 18



ROBERTS v. LOUISIANA 5

and had said that he “had just shot that old man . . .  at 
the filling station.” (Record 134-135.)

The case went to the jury under instructions advising 
the jury of the State’s burden of proof and of the charge 
in the indictment that petitioner had killed another per­
son with “specific intent to kill or to inflict great bodily 
harm and done when the accused was engaged in the 
perpetration of armed robbery.” The elements which 
the State was required to prove beyond reasonable doubt 
were explained, including the elements of first-degree 
murder and of armed robbery.3 In accordance with the

3 “There are certain facts that must be proved by the State to 
your satisfaction and beyond a reasonable doubt before you can 
return a verdict of guilty in this case.

“First, the State must prove that a crime was committed and 
that it was committed within the Parish of Calcasieu.

“Second, the State must prove that the alleged crime was com­
mitted by Stanislaus Roberts, the person named in the indictment, 
and on trial in this case.

“Third, the State must prove that Richard G. Lowe, the person 
named in the indictment as having been killed, was in fact killed.

“Fourth, the State must prove that the killing occurred while 
the defendant was engaged in an armed robbery.

“Fifth, the State must prove that the killing occurred on or about 
the date alleged in the indictment, although I charge you that it 
is not necessary that the State prove that exact date alleged in the 
indictment.

“Sixth, the State must prove that the offense committed was 
murder.

“First degree murder is defined in LSA-R. S. 14:30 as follows:
“ ‘First degree murder is the killing of a human being:
‘“ (1) When the offender has a specific intent to kill or to inflict 

great bodily harm and is engaged in the perpetration or attempted 
perpetration of aggravated kidnapping, aggravated rape or armed 
robbery; . . .’

“The indictment in this case charged Stanislaus Roberts under 
the statute. The State then, under this indictment, must prove 
that the killing was unlawful and done with a specific intent to kill



6 ROBERTS v. LOUISIANA

statute the court also explained the possible verdicts 
other than first-degree murder: “the law provides that 
in a trial of murder in the first degree, if the jury is not

or to inflict great bodily harm and done when the accused was 
engaged in the perpetration of armed robbery.

“Armed robbery is defined in LSA-R. S. 14:64 as follows:
“ ‘Armed robbery is the theft of anything of value from the per­

son of another or which is in the immediate control of another, by 
use of force or intimidation, while armed with a dangerous weapon.'

“Theft includes the taking of anything of value which belongs 
to another without his consent. An intent to deprive the other per­
manently of whatever may be the subject of the taking is essential.

“A ‘dangerous weapon’ is defined by the law of Louisiana as ‘any 
gas, liquid or other substance or instrumentality, which, in the 
manner used, calculated or likely to produce death or great bodily 
harm.’

“The test of a dangerous weapon is not whether the weapon is 
inherently dangerous, but whether it is dangerous ‘in the manner 
used.’ Whether a dangerous weapon was used in this case is a 
question to be determined by the jury in considering: (1) whether 
a weapon was used; (2) the nature of a weapon if so used; (3) and 
the manner in which it may have been used; under the law and 
definition referred to above.

“An essential element of the crime of armed robbery is specific 
criminal intent, which is that state of mind which exists when the 
circumstances indicate that the offender actively desired the pre­
scribed criminal consequences to follow his act or failure to act.

“The requisite intent may be established by direct or positive 
evidence, or it may be inferred from the acts or conduct of the 
defendant or from other facts or circumstances surrounding the 
alleged commission of the offense. You may consider the acts or 
conduct of the defendant prior to, at the time of, or after the 
alleged offense, as well as all other facts by which you might ascer­
tain whether the accused intended to commit the offense charged.

“To constitute the crime of first degree murder, the offender must 
have a specific intent to kill or inflict great bodily harm, and this 
‘specific intent’ must actually exist in the mind of the offender at 
the time of the killing. If a human being is killed, when the 
offender is charged under this statute, but at the time of the killing, 
the offender did not have a specific intent to kill or inflict great



ROBERTS v. LOUISIANA

convinced beyond a reasonable doubt that the accused is 
guilty of the crime of murder in the first degree, but is 
convinced beyond a reasonable doubt that he is guilty 
of murder in the second degree, it should render a verdict 
of guilty of murder in the second degree.” The elements 
of second-degree murder and also of manslaughter were 
then explained, whereupon the court instructed:

“If you should conclude that the defendant is not 
guilty of murder in the first degree, but you are 
convinced beyond a reasonable doubt that he is 
guilty of murder in the second degree it would be 
your duty to find that defendant guilty of murder 
in the second degree.

“If you would conclude that the defendant is not 
guilty of murder in the first degree or murder in the 
second degree, but you are convinced beyond a rea­
sonable doubt that he is guilty of manslaughter, it 
would then be your duty to find the defendant guilty 
of manslaughter.

“If you should conclude that the defendant is not 
guilty of murder in the first degree, or murder in the

bodily harm, then, the killing could not be murder in the first 
degree, although it might me murder in the second degree, man­
slaughter, justifiable homicide or an accident. The specific intent 
to kill or to inflict great bodily harm not only must exist a t the 
time of the killing, but it must also be felonious, that is, it must 
be wrong or without any just cause or excuse.

“I charge you that it is not necessary that this specific intent 
should have existed in the mind of the offender for any particular 
length of time before the killing in order to constitute the crime 
of murder. If the will accompanies the act, that is, if the specific 
intent to kill or to inflict great bodily [sic] actually exists in the 
mind of the offender at the moment of the killing, even though this 
specific intent was formed only a moment prior to the act itself 
which causes death, it would be as completely insufficient to make 
the act murder as if the intent had been formed on the previous 
day, an hour earlier, or any other time.”



8 ROBERTS v, LOUISIANA

second degree or manslaughter, it would then be 
your duty to find the defendant not guilty.”

Finally, the court instructed the jury:
“To summarize, you may return any one of the 

following verdicts:
“1. Guilty as charged.
“2. Guilty of second degree murder.
“3. Guilty of manslaughter.
“4. Not guilty.
“Accordingly, I will now set forth the proper form 

of each verdict that may be rendered, reminding 
you that only one verdict shall be rendered.

“If you are convinced beyond a reasonable doubt 
that the defendant is guilty of the offense charged, 
the form of your verdict should be: ‘We, the jury, 
find the defendant guilty as charged/

“If you are not convinced beyond a reasonable 
doubt that the defendant is guilty of murder in the 
first degree but you are convinced beyond a reason­
able doubt that the defendant is guilty of murder 
in the second degree, the form of your verdict would 
be: ‘We, the jury, find the defendant guilty of sec­
ond degree murder/

“If you are not convinced beyond a reasonable 
doubt that the defendant is guilty of murder in the 
first degree or murder in the second degree, but you 
are convinced beyond a reasonable doubt that the 
defendant is guilty of manslaughter, the form of 
your verdict would be: ‘We, the jury, find the de­
fendant guilty of manslaughter/

“If you are not convinced that the defendant is 
guilty of murder in the first degree, murder in the 
second degree or manslaughter, the form of your 
verdict would be: ‘We, the jury, find the defendant 
not guilty/ ”



ROBERTS v. LOUISIANA 9

The jury found the defendant guilty of first-degree 
murder and the death sentence was imposed. On ap­
peal, the conviction was affirmed, the Louisiana Supreme 
Court rejecting petitioner’s challenge to the death pen­
alty based on the Eighth Amendment. State v. Roberts, 
319 So. 2d 317 (1975).

II
Petitioner mounts a double attack on the death penalty 

imposed upon him: first, that the statute under which 
his sentence was imposed is too little different from 
the provision at issue in Furman v. Georgia to escape 
the strictures of our decision in that case; second, that 
death is a cruel and unusual punishment for any crime 
committed by any defendant under any conditions, an 
argument presented in Furman and there rejected by 
four of the six Justices wrho addressed the issue. I 
disagree with both submissions.

I cannot conclude that the current Louisiana first- 
degree murder statute is insufficiently different from the 
statutes invalidated in Furman’s wake to avoid invalida­
tion under that case. As I have already said, under 
prior Louisiana law, one of the permissible verdicts that 
a jury in any capital punishment case was authorized 
by statute and by its instructions to return was “guilty 
without capital punishment.” Dispensing with the 
death penalty was expressly placed within the uncon­
trolled discretion of the jury and in no case involved a 
breach of its instructions or the controlling statute. A 
guilty verdict carrying capital punishment required an 
unanimous verdict; any juror, consistent with his in­
struction and whatever the evidence might be, was free 
to vote for a verdict of guilty without capital punish­
ment, thereby, if he persevered, at least foreclosing a 
capital punishment verdict at that trial.

Under this or similar jury sentencing arrangements



10 ROBERTS v. LOUISIANA

which were in force in Louisiana, Georgia, and most other 
States that authorized capital punishment, the death 
penalty came to be imposed less and less frequently, so 
much so that in Furman v. Georgia the Court concluded 
that in practice criminal juries, exercising their lawful dis­
cretion, were imposing it so seldom and so freakishly and 
arbitrarily that it was no longer serving the legitimate ends 
of criminal justice and had come to be cruel and unusual 
punishment violative of the Eighth Amendment. I t was 
in response to this judgment that Louisiana sought to 
re-enact the death penalty as a constitutionally valid pun­
ishment by redefining the crime of first-degree murder 
and by making death the mandatory punishment for 
those found guilty of that crime.

To implement this aim, the present Louisiana law 
eliminated the “guilty without capital punishment” ver­
dict. Jurors in first-degree murder cases are no longer 
instructed that they have discretion to withhold capital 
punishment. Their instructions now are to find the 
defendant guilty if they believe beyond a reasonable 
doubt that he committed the crime with which he is 
charged. A verdict of guilty carries a mandatory death 
sentence. In the present case, the jury was instructed 
as to the specific elements constituting the crime of 
felony murder which the indictment charged. They 
were also directed that if they believed beyond reason­
able doubt that Roberts committed these acts, they 
were to return a verdict of guilty as charged in the in­
dictment. The jury could not, if it believed the defend­
ant had committed the crime, nevertheless dispense with 
the death penalty.

The difference between a jury having and not having
the lawful discretion to spare the life of the defend­
ant is apparent and fundamental. I t is undeniable 
that the unfettered discretion of the jury to save the



ROBERTS v. LOUISIANA 11
defendant from death was a major contributing factor in 
the developments which led us to invalidate: the death 
penalty in Furman v. Georgia. This factor Louisiana 
has now sought to eliminate by making the death penalty 
compulsory upon a verdict of guilty in first-degree mur­
der cases. As I see it, we are now in no position to rule 
that the State’s present law, having eliminated the overt 
discretionary power of juries, suffers from the same con­
stitutional infirmities which led this Court to invalidate 
the Georgia death penalty statute in Furman v. Georgia.

Even so, petitioner submits that in every capital case 
the court is required to instruct the jury with respect to 
lesser included offenses and that the jury therefore has 
unlimited discretion to foreclose the death penalty by 
finding the defendant guilty of a lesser included offence 
for which capital punishment is not authorized. The 
difficulty with the argument is illustrated by the instruc­
tions in this case. The jury was not instructed that it 
could in its discretion convict of a lesser included offense. 
The jury’s plain instructions, instead, were to return a 
verdict of guilty of murder as charged if it believed 
from the evidence that Roberts had committed the spe­
cific acts constituting the offense charged and defined 
by the court. Only if they did not believe Roberts had 
committed the acts charged in the indictment were the 
jurors free to consider whether he was guilty of the lesser 
included offense of second-degree murder, and only if 
they did not find beyond a reasonable doubt that Rob­
erts was quilty of second-degree murder were they free 
to consider the offense of manslaughter. As the Supreme 
Court of Louisiana said in State v. Hill, 297 So. 2d 660, 
662 (1974), and repeated in this case, 319 So. 2d, at 
321-322, “the use of these lesser verdicts . . .  is contin­
gent upon the jury finding insufficient evidence to con­



12 ROBERTS v. LOUISIANA

vict the defendant of first degree murder, with which he 
is charged.” See also State v. Selman, 300 So. 2d 467, 
473 (1974), petition for cert, pending, No. 74-6065.

Is is true that the jury in this case, like juries in other 
capital cases in Louisiana and elsewhere, may violate 
its instructions and convict of a lesser included offense 
despite the evidence. But for constitutional purposes I 
am quite unwilling to equate the raw power of nullifica­
tion with the unlimited discretion extended jurors under 
prior Louisiana statutes. In McGautha v. California, 402 
U. S. 183 (1971), we rejected the argument that vesting 
standardless sentencing discretion in the jury was un­
constitutional under the Due Process Clause. In arriv­
ing at that judgment, we noted that the practice of jury 
sentencing had emerged from the “rebellion against the 
common law rule imposing a mandatory death sentence 
on all convicted murderers” and from the unsatisfactory 
experience with attempting to define the various grades 
of homicide and to specify those for which the death 
penalty was required. Vesting complete sentencing 
power in the jury was the upshot. The difficulties ad­
verted to in McGautha, however, including that of jury 
nullification, are inadequate to require invalidation of 
the Louisiana felony murder rule on the grounds that 
jurors wall so often and systematically refuse to follow 
their instructions that the administration of the death 
penalty under the current law will not be substantially 
different from that which obtained under prior statutes.

Nor am I convinced that the Louisiana death penalty 
for first-degree murder is substantially more vulnerable 
because the prosecutor is vested with discretion as to the 
selection and filing of charges, by the practice of plea 
bargaining or by the power of executive clemency. Peti­
tioner argues that these characteristics of the criminal 
justice system in Louisiana, combined with the discre­



ROBERTS v. LOUISIANA 13

tion arguably left to the jury as discussed above, insure 
that the death penalty will be as seldom and arbitrarily 
applied as it was under the predecessor statutes. The 
Louisiana statutes, however, define the elements of first- 
degree murder, and I cannot accept the assertion that 
state prosecutors will systematically fail to file first- 
degree murder charges when the evidence warrants it or 
to seek convictions for first-degree murder on less than 
adequate evidence. Of course, someone must exercise 
discretion and judgment as to what charges are to be 
filed and against whom; but this essential process is 
nothing more than the rational enforcement of the State’s 
criminal law and the sensible operation of the criminal 
justice system. The discretion with which Louisiana’s 
prosecutors are invested and which appears to be no 
more than normal, furnishes no basis for inferring that 
capital crimes will be prosecuted so arbitrarily and fre­
quently that the present death penalty statute is invalid 
under Furman v. Georgia.

I have much the same reaction to plea bargaining 
and executive clemency. A prosecutor may seek or 
accept pleas to lesser offenses where he is not confident 
of his first-degree murder case, but this is merely the 
proper exercise of the prosecutor’s discretion as I have 
already discussed. So too, as illustrated by this case 
and the North Carolina case, Woodson v. North Carolina, 
ante, some defendants who otherwise would have been 
tried for first-degree murder, convicted and sentenced to 
death are permitted to plead to lesser offenses because 
they are willing to testify against their codefendants. 
This is a grisly trade, but it is not irrational; for it is 
aimed at insuring the successful conclusion of a first- 
degree murder case against one or more other defend­
ants. Whatever else the practice may be, it is neither 
inexplicable, freakish nor violative of the Eighth Amend­



14 ROBERTS v. LOUISIANA

ment. Nor has it been condemned by this Court under 
other provisions'of the Constitution. Santobello v. New 
York, 404 U. S. 257 (1971); North Carolina v. Alford, 
400 U. S. 25 (1970); Parker v. North Carolina, 397 U. S. 
790 (1970); Brady v. United States, 397 U. S. 742 
(1970). See also Chaffin v. Stynchcombe, 412 U. S. 
17, 30-31 (1973).

As for executive clemency, I cannot assume that this 
power, exercised by governors and vested in the President 
by Art. II, § 2, of the Constitution, will be used in a 
standardless and arbitrary manner. I t  is more reason­
able to expect the power to be exercised by the Executive 
Branch whenever it is concluded that the criminal justice 
system has unjustly convicted a defendant of first-degree 
murder and sentenced him to death. The country’s ex­
perience with the commutation power does not suggest 
that it is a senseless lottery, that it operates in an arbi­
trary or discriminatory manner or that it will lead to 
reducing the death penalty to a merely theoretical threat 
that is imposed only on the luckless few.

I  cannot conclude, as do M r . J u stice  Stew art, M r . 
J u stice  P o w ell , and M r . J u stice  Steven s  (hereinafter 
the plurality), that under the present Louisiana law, 
capital punishment will occur so seldom, discriminatorily 
or freakishly that it will fail to satisfy the Eighth 
Amendment as construed and applied in Furman v. 
Georgia.

Ill
I also cannot agree with the petitioner’s other basic 

argument that the death penalty, however imposed and 
for whatever crime, is cruel and unusual punishment. 
The opposing positions on this issue, as well as the 
history of the death penalty, were fully canvassed by 
various Justices in their separate opinions in Furman v. 
Georgia, and these able and lucid presentations need not



ROBERTS v. LOUISIANA 15

be repeated here. I t  is plain enough that the 
Constitution drafted by the Framers expressly made room 
for the death penalty. The Fifth Amendment provides 
that “no person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a presentment or 
indictment by a grand jury . . .” and that no person shall 
be “twice put in jeopardy of life or limb . . . nor be 
deprived of life . . . without due process of law.” The 
Fourteenth Amendment, adopted three-quarters of a 
century later, likewise enjoined the States from depriv­
ing any person of “his life” without due process of law. 
Since the very first Congress, federal law has defined 
crimes for which the death penalty is authorized. Capi­
tal punishment has also been part of the criminal justice 
system of that great majority of the States ever since 
the Union was first organized. Until Furman v. Georgia, 
this Court’s opinions, if they did not squarely uphold 
the death penalty, consistently assumed its constitution­
ality. Wilkerson v. Utah, 99 U. S. 130 (1878); In  re 
Kemmler, 136 U. S. 436 (1890); Louisiana ex rel. Francis v. 
Resweber, 329 U. S. 459 (1946); McGautha v. California, 
402 U. S. 183 (1971); Witherspoon v. Illinois, 391 U. S. 
510(1968). In Trop v. Dulles, 356 U. S. 86,99 (1958), four 
Members of the Court—Chief Justice Warren and Justices 
Black, Douglas, and Whittaker—agreed that “whatever 
the arguments may be against capital punishment, both 
on moral grounds and in terms of accomplishing the pur­
poses of punishment—and they are forceful—the death 
penalty has been employed throughout our history, and, 
in a day when it is still widely accepted, it cannot be 
said to violate the constitutional concept of cruelty.” 

Until Furman v. Georgia, this was the consistent 
view of the Court and of every Justice who in a pub­
lished opinion had addressed the question of the validity 
of capital punishment under the Eighth Amendment. In



16 ROBERTS v. LOUISIANA

Furman, it was concluded by at least two Justices4 that 
the death penalty had become unacceptable to the great 
majority of the people of this country and for that rea­
son, alone or combined with other reasons, was invalid 
under the Eighth Amendment, which must be construed 
and applied to reflect the evolving moral standards of the 
country. Trop v. Dulles, 365 U. S., at 111; Weems v. 
United States, 217 U. S. 349, 378 (1910). That argu­
ment, whether or not accurate at that time, when meas­
ured by the manner in which the death penalty was be­
ing administered under the then prevailing statutory 
schemes, is no longer descriptive of the country’s atti­
tude. Since the judgment in Furman, Congress and 35 
state legislatures re-enacted the death penalty for one 
or more crimes.5 All of these States authorize the death

4 M r . J u s t ic e  M a r s h a l l  wrote that the death penalty was in­
valid for several independent reasons, one of which was that “it is 
morally unacceptable to the people of the United States at this time 
in our history.” 408 U. S., a t 360. That capital punishment “has 
been almost totally rejected by contemporary society,” 408 U. S., 
at 295, was one of four factors which together led Mr. J ustice 
B r e n n a n  to invalidate the statute before us in Furman v. Georgia.

5 The statutes are summarized in the Appendix to petitioner’s 
brief in No. 73-7031, Fowler v. North Carolina, cert, granted, 419 
U. S. 963 (1974), and in Appendix A to the petitioner’s brief in 
No. 75-5394, Jurek v. Texas, ante, decided this day. The various 
types of post-Furman statutes which have been enacted are de­
scribed and analyzed in the Note, Discretion and the Constitution­
ality of the New Death Penalty Statutes, 87 Harv. L. Rev. 1690 
(1974).

Following the invalidation of the death penalty in California by 
the California Supreme Court on state constitutional grounds in 
People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert, denied, 406 
U. S. 958 (1972), the state constitution was amended by initiative 
and referendum to reinstate the penalty (with approximately two- 
thirds of those voting approving the measure). Cal. Const., 
Art. I, § 27 (effective Nov. 7, 1972). Approximately 64% of the 
voters at the 1968 Massachusetts general election voted “yes”



ROBERTS v. LOUISIANA 17

penalty for murder of one kind or another. With these 
profound developments in mind, I cannot say that cap­
ital punishment has been rejected by or is offensive to 
the prevailing attitudes and moral presuppositions in the 
United States or that it is always an excessively cruel or 
severe punishment or always a disproportionate punish­
ment for any crime for which it might be imposed.6 
These grounds for invalidating the death penalty are 
foreclosed by recent events, which this Court must ac­
cept as demonstrating that capital punishment is accept­
able to the contemporary community as just punishment 
for at least some intentional killings.

I t is apparent also that Congress and 35 state legisla­
tures are of the view that capital punishment better

to a referendum asking “Shall the commonwealth of Massachusetts 
retain the death penalty for crime?” See Commonwealth v. O’Neal, 
---- M ass.----- , ---- , 339 N. E. 2d 676, 708 (1975) (Reardon, J., dis­
senting). For other state referenda approving capital punishment, 
see Furman v. Georgia, 408 U. S., at 437-439 ( P o w e l l , J., dissent­
ing): Oregon (1964), Colorado (1966), Illinois (1970).

There have also been public opinion polls on capital punishment, 
see, e. g., S. Rep. No. 93-721, a t 13-14 (1974), but their validity and 
reliability have been strongly criticized, see e. g., N. Vidmar & P. 
Ellsworth, Public Opinion and the Death Penalty, 26 Stan. L. Rev. 
1245 (1974), and indeed neither the parties here nor amici rely on 
such polls as relevant to the issue before us. Brief of United States, 
supra, at 54.

6 As shown by Mr. J u s t ic e  P o w e l l ’s opinion in Furman v. Geor­
gia, 408 U. S., at 442-443 n. 37, state death penalty statutes with­
stood constitutional challenge in the highest courts of 25 States. 
Post-Fwrmaw legislation has been widely challenged but has been 
sustained as not contrary to the Eighth and Fourteenth Amendments 
in the five States now before us and in Oklahoma (e. g., Davis v. 
State, 542 P. 2d 532 (1975)). Final resolutions of cases in many 
other States is apparently waiting our decision in the cases decided
today. But see Commonwealth v. O’Neal, ------ Mass. ------, 339
N. E. 2d 676 (1975), and Rice v. Cunningham, 61 111. 2d 353, 336 
N. E. 2d 1 (1975), invalidating the death penalty on state law 
grounds.



18 ROBERTS v. LOUISIANA

serves the ends of criminal justice than would life im­
prisonment and that it is therefore not excessive in the 
sense that it serves no legitimate legislative or social 
ends. Petitioner Roberts, to the contrary, submits that 
life imprisonment obviously would better serve the end 
of reformation or rehabilitation and that there is no 
satisfactory evidence that punishing by death serves more 
effectively than does life imprisonment the other major 
ends of imposing serious criminal sanctions: incapacitation 
of the prisoner, the deterrence of others and moral re- 
enforcement and retribution. The death penalty is 
therefore cruel and unusual, it is argued, because it is 
the purposeless taking of life and the needless imposition 
of suffering.

The widespread re-enactment of the death penalty, it 
seems to me, answers any claims that life imprisonment 
is adequate punishment to satisfy the need for reproba­
tion or retribution. I t also seems clear enough that 
death finally forecloses the possibility that a prisoner will 
commit further crimes, whereas life imprisonment does 
not. This leaves the question of general deterrence as 
the principal battleground: does the death penalty more 
effectively deter others from crime than does the threat 
of life imprisonment?

The debate on this subject started generations ago and 
is still in progress. Each side has a plethora of fact and 
opinion in support of its position,7 some of it quite old

7 The debate over the general deterrent effect of the death pen­
alty and the relevant materials were canvassed exhaustively by 
M r . J u s t ic e  M a r s h a l l  in his separate concurring opinion in Fur­
man, 408 U. S., at 345-354. The debate has intensified since then. 
See Brief for Petitioner in No. 73-7301, Fowler v. North Carolina, 
cert, pending, Part I I I  (esp. pp. 121-130, and Appendix E, pp. le - 
10e), incorporated by reference in Petitioner’s Brief in this case. 
See also Brief for United States as amicus curiae in this and related 
cases, a t 34-45. The focal point of the most recent stage of the



ROBERTS v. LOUISIANA 19

and some of it very new; but neither has yet silenced 
the other. I need not detail these conflicting mate­
rials, most of which are familiar sources. I t  is quite 
apparent that the relative efficacy of capital punishment 
and life imprisonment to deter others from crime re­
mains a matter about which reasonable men and reason­
able legislators may easily differ. In this posture of the 
case, it would be neither a proper or wise exercise of the 
power of judicial review to refuse to accept the reason­
able conclusions of Congress and 35 state legislatures 
that there are indeed certain circumstances in which the 
death penalty is the more efficacious deterrent of crime.

I t  will not do to denigrate these legislative judgments 
as some form of vestigial savagery or as purely retribu­
tive in motivation; for they are solemn judgments, rea­
sonably based, that imposition of the death penalty will 
save the lives of innocent persons. This concern for life 
and human values and the sincere efforts of the States 
to pursue them are matters of the greatest moment with

debate has been Prof. Isaac Ehrlich’s study of the issue. Ehrlich, 
The Deterrent Effect of Capital Punishment, 65 Am. Econ. Rev. 
397 (1975). For reactions to and comments on the Ehrlich study, 
see Statistical Evidence on the Deterrent Effect of Capital Punish­
ment, 85 Yale L. J. 164—227 (1975). See also Passell, The Deterrent 
Effect of the Death Penalty: A Statistical Test, 28 Stan. L. Rev. 61 
(1975).

For analysis of some of the reasons for the inconclusive nature 
of statistical studies on the issue, see, e. g., Royal Commission on 
Capital Punishment, 1949-1953 Report (1953), a t 62-67; Gibbs, 
Crime, Punishment, and Deterrence, 48 Sw. Soc. Sci. Q„ 515 (1968); 
H. L. A. Hart, Murder and the Principles of Punishment: England 
and the United States, 52 Nw. U. L. Rev. 433, 457-458 (1957). See 
also R. Posner, The Economic Approach to Law, 53 Tex. L. Rev. 
757, 766-768 (1975).

For a study of the deterrent effect of punishment generally, 
see F. Zimring & G. Hawkins, Deterrence (1973), and esp. pp. 16, 
18-19, 31, 62-64, 186-190 (for a general discussion of capital 
punishment as a deterrent).



2 0 ROBERTS v.  LOUISIANA

which the judiciary should be most reluctant to interfere. 
The issue is not whether, had we been legislators, we 
would have supported or opposed the capital punishment 
statutes presently before us. The question here under 
discussion is whether the Eighth Amendment requires us 
to interfere with the enforcement of these statutes on 
the grounds that a sentence of life imprisonment for the 
crimes at issue would as well have served the ends of 
criminal justice. In my view, the Eighth Amend- 
rtient provides no warrant for overturning these convic­
tions on these grounds.

IV
The plurality offers two additional reasons for invali­

dating the Louisiana statute, neither of which had been 
raised by the parties and with both of which I disagree.

The plurality holds the Louisiana statute unconstitu­
tional for want of a separate sentencing proceeding in 
which the sentencing authority may focus on the sen­
tence and consider some or all of the aggravating and 
mitigating circumstances. In McGautha v. California, 
402 U, S. 183 (1971), after having heard the same issues 
argued twice before in Maxivell v. Bishop, see 395 U. S. 
918 (1969), we specifically rejected the claims that a 
defendant’s “constitutional rights were infringed by per­
mitting the jury to impose the death penalty without 
governing standards” and that “the jury’s imposition of 
the death sentence in the same proceeding and verdict as 
determined the issue of guilt was [not] constitutionally 
permissible.” 402 U. S., at 185. With respect to the 
necessity of a bifurcated criminal trial, we had reached 
essentially the same result in Spencer v. Texas, 385 U. S. 
554 (1967). In spite of these cases, the plurality holds 
that the State must provide a procedure under which 
the sentencer may separately consider the character and 
record of the individual defendant, along with the eir-



ROBERTS v. LOUISIANA 21

cumstances of the particular offense, including any miti­
gating circumstancees that may exist. For myself, I see 
no reason to reconsider McGautha and would not invali­
date the Louisiana statute for its failure to provide 
what McGautha held it need not provide. I still share 
the concluding remarks of the Court in McGautha v. 
California:

“It  may well be, as the American Law Institute and 
the National Commission on Reform of Federal 
Criminal Laws have concluded, that bifurcated trials 
and criteria for juiy sentencing discretion are su­
perior means of dealing with capital cases if the 
death penalty is to be retained at all. But the Fed­
eral Constitution, which marks the limits of our 
authority in these cases, does not guarantee trial 
procedures that are the best of all worlds, or that 
accord with the most enlightened ideas of students 
of the infant science of criminology, or even those 
that measure up to the individual predilections of 
members of this Court. See Spencer v. Texas, 385 
U. S. 554 (1967). The Constitution requires no 
more than that trials be fairly conducted and that 
guaranteed rights of defendants be scrupulously re­
spected. From a constitutional standpoint we can­
not conclude that it is impermissible for a State to 
consider that the compassionate purposes of jury 
sentencing in capital cases are better served by hav­
ing the issues of guilt and punishment determined 
in a single trial than by focusing the jury’s attention 
solely on punishment after the issue of guilt has 
been determined.

“Certainly the facts of these gruesome murders 
bespeak no miscarriage of justice. The ability of 
juries, unassisted by standards, to distinguish be­
tween those defendants for whom the death pen­



2 2 ROBERTS v. LOUISIANA

alty is appropriate punishment and those for whom 
imprisonment is sufficient is indeed illustrated by the 
discriminating verdict of the jury in McGautha’s 
case, finding Wilkinson the less culpable of the two 
defendants and sparing his life.

“The procedures which petitioners challenge are 
those by which most capital trials in this country 
are conducted, and by which all were conducted un­
til a few years ago. We have determined that these 
procedures are consistent with the rights to which 
petitioners were constitutionally entitled, and that 
their trials were entirely fair. Having reached 
these conclusions we have performed our task of 
measuring the States’ process by federal constitu­
tional standards, . . . .” 402 U. S., at 221-222.

Implicit in the plurality’s holding that a separate pro­
ceeding must be held at which the sentencer may consider 
the character and record of the accused is the proposition 
that States are constitutionally prohibited from consider­
ing any crime no matter how defined so serious that 
every person who commits it should be put to death 
regardless of extraneous factors related to his character. 
Quite apart from McGautha v. California, supra, I can­
not agree. I t  is axiomatic that the major justification 
for concluding that a given defendant deserves to be 
punished is that he committed a crime. Even if the 
character of the accused must be considered under the 
Eighth Amendment, surely a State is not constitutionally 
forbidden to provide that the commission of certain 
crimes conclusively establishes that the criminal’s char­
acter is such that he deserves death. Moreover, quite 
apart from the character of a criminal, a State should 
constitutionally be able to conclude that the need to 
deter some crimes and that the likelihood that the death 
penalty will succeed in deterring these crimes is such



ROBERTS v.  LOUISIANA 23

that the death penalty may be made mandatory for all 
people who commit them. Nothing resembling a rea­
soned basis for the rejection of these propositions is to 
be found in the plurality opinion.

The remaining reason offered for invalidating the 
Louisiana statute is also infirm. I t is said that the 
Eighth Amendment forbids the legislature to require 
imposition of the death penalty when the elements 
of the specified crime have proven to the satisfaction of 
the jury because historically the concept of the manda­
tory death sentence has been rejected by the community 
and departs so far from contemporary standards with 
respect to the imposition of capital punishment that it 
must be held unconstitutional.

Although the plurality seemingly makes an unlimited 
pronouncement, it actually stops short of invalidating 
any statute making death the required punishment for 
any crime whatsoever. Apparently there are some 
crimes for which the plurality in its infinite wisdom will 
permit the States to require the death sentence to be im­
posed without the additional procedures which its opinion 
seems to mandate. There have always been mandatory 
death penalties for at least some crimes, and the legisla­
tures of at least two States have now again embraced 
this approach in order to serve what they deem to be 
their own penological goals.

Furthermore, the plurality upholds the capital punish­
ment statute of Texas, under which capital punishment 
is required if the defendant is found guilty of the crime 
charged and the jury answers two additional questions in 
the affirmative. Once that occurs, no discretion is left 
to the jury; death is mandatory. Although Louisiana 
juries are not required to answer these precise questions, 
the Texas law is not constitutionally distinguishable 
from the Louisiana system under which the jury, to



24 ROBERTS v. LOUISIANA

convict, must find the elements of the crime, including 
the essential element of intent to kill or inflict great 
bodily harm, which, according to the instructions given 
in this case, must be felonious, “that is, it must be wrong 
or without any just cause or excuse.”

As the plurality now interprets the Eighth Amendment, 
the Louisiana and North Carolina statutes are infirm 
because the jury is deprived of all discretion once it finds 
the defendant guilty. Yet in the next breath it invali­
dates these statutes because they are said to invite or 
allow too much discretion: despite their instructions, 
when they feel that defendants do- not deserve to die, 
juries will so often and systematically disobey their in­
structions and find the defendant not guilty or guilty of 
a noncapital offense that the statute fails to satisfy the 
standards of Furman v. Georgia. If it is truly the case 
that Louisiana juries will exercise too much discretion— 
and I do not agree that it is—than it seems strange in­
deed that the statute is also invalidated because it pur­
ports to give the jury too little discretion by making the 
death penalty mandatory. Furthermore, if there is dan­
ger of freakish and too infrequent imposition of capital 
punishment under a mandatory system such as Louisi­
ana’s, there is very little ground for believing that ju­
ries will be any more faithful to their instructions under 
the Georgia and Florida systems where the opportunity 
is much, much greater for juries to practice their own 
brand of unbridled discretion.

In any event the plurality overreads the history upon 
which it so heavily relies. Narrowing the categories of 
crime for which the death penalty was authorized re­
flected a growing sentiment that death was an excessive 
penalty for many crimes, but I am not convinced, as 
apparently the plurality is, that the decision to vest dis­
cretionary sentencing power in the jury was a judgment 
that mandatory punishments were excessively cruel



ROBERTS v.  LOUISIANA 2 5

rather than merely a legislative response to avoid jury 
nullifications which were occurring with some frequency. 
That legislatures chose jury sentencing as the least 
troublesome of two approaches hardly proves legislative 
rejection of mandatory sentencing. State legislatures 
may have preferred to vest discretionary sentencing 
power in a jury rather than to have guilty defendants go 
scot-free; but I doubt that these events necessarily reflect 
an affirmative legislative preference for discretionary 
systems or support an inference that legislatures would 
have chosen them even absent their experience with jury 
nullification.

Nor does the fact that juries at times refused to con­
vict despite the evidence prove that the mandatory 
nature of the sentence was the burr under the jury’s 
saddle rather than that one or more persons on those 
juries were opposed in principle to the death penalty un­
der whatever system it might be authorized or imposed. 
Surely if every nullifying jury had been interrogated at 
the time and had it been proved to everyone’s satis­
faction that all or a large part of the nullifying 
verdicts occurred because certain members of these juries 
had been opposed to the death penalty in any form, 
rather than because the juries involved were reluctant 
to impose the death penalty on the particular defendants 
before them, it could not be concluded that either those 
juries or the country had condemned mandatory punish­
ments as distinguished from the death penalty itself. 
The plurality nevertheless draws such an inference even 
though there is no more reason to infer that jury nulli­
fication occurred because of opposition to the death 
penalty in particular cases than because one or more of 
the 12 jurors on the critical juries were opposed to the 
death penalty in any form and stubbornly refused to 
participate in a guilty verdict. Of course, the plurality 
does not conclude that the death penalty was itself placed



26 ROBERTS v. LOUISIANA

beyond legislative resuscitation either by jury nullifica­
tion under mandatory statutes or by the erosion of the 
death penalty under the discretionary sentencing systems 
that led to the judgment in Furman v. Georgia. I see no 
more basis for arriving at a contrary conclusion with re­
spect to the mandatory statutes.

Louisiana and North Carolina have returned to the 
mandatory capital punishment system for certain crimes.8 
Their legislatures have not deemed mandatory punish­
ment, once the crime is proven, to be unacceptable; nor

8 It is unclear to me why, because legislatures found shortcomings 
in their mandatory statutes and decided to try  vesting absolute 
discretion in juries, the legislatures are constitutionally forbidden to 
return to mandatory statutes when shortcomings are discovered 
in their discretionary statutes. See Furman v. Georgia, supra. 
Florida has in effect at the present time a statute under which the 
death penalty is mandatory whenever the sentencing judge finds 
that statutory aggravating factors outweigh the mitigating factors. 
Georgia has in effect a statute which gives the sentencer discretion 
in every case to decline to impose the death penalty. If Florida 
and all other states like it choose to adopt the Georgia statutory 
scheme, will the Eighth Amendment prevent them from later chang­
ing their minds and returning to their present scheme? I would 
think not.

Most of the States had in effect prior to Furman v. Georgia, 
supra, statutes under which even the least culpable first-degree 
murderer could be put to death. I simply cannot find from the 
decision to adopt such statutes a constitutional rule preventing the 
States from removing the standardless nature of sentencing under 
such statutes and replacing them with statutes under which all or 
a substantial portion of first-degree murderers are put to death.

This is particularly true in Louisiana. The most that the plu­
rality can possibly infer from its own description of the history of 
capital punishment in this country is that the legislatures have 
rejected the proposition that all first-degree murderers should be 
put to death. This is so. because the only mandatory statutes 
which were historically repealed or replaced were those which 
made death the mandatory punishment for all first-degree murders. 
Louisiana has now passed a statute -which makes death the



ROBERTS v. LOUISIANA 27

have their juries rejected it, for the death penalty has 
been imposed with some regularity. Perhaps we would 
prefer that these States had adopted a different system, 
but the issue is not our individual preferences but the 
constitutionality of the mandatory systems chosen by 
these two States. I see no warrant under the Eighth 
Amendment for refusing to uphold these statutes.

Indeed, the more fundamental objection than the 
plurality’s muddled reasoning is that in Gregg v. Georgia,
ante, a t ---- , it lectures us at length about the role and
place of the judiciary and then proceeds to ignore its 
own advice, the net effect being to suggest that observers 
of this institution should pay more attention to wThat we 
do than what we say. The plurality claims that it has not 
forgotten what the past has taught about the limits of 
judicial review; but I fear that it has again surrendered 
to the temptation to make policy for and to attempt to 
govern the country through a misuse of the powers given 
this Court under the Constitution.

y
I conclude that § 14:30 of the Louisiana statutes 

imposing the death penalty for first-degree murder 
is not unconstitutional under the Eighth Amendment. 
I am not impressed with the argument that this result 
reduces the amendment to little more than mild advice 
from the Framers to state legislators. Weems, Trop, 
and Fur?nan bear witness to the contrary.

For the foregoing reasons, I dissent.

mandatory penalty for only five narrow categories of first-degree 
murder, not for all first-degree murders by any means. The his­
tory relied upon by the majority is utterly silent on society’s reaction 
to such a statute. I t cannot be invalidated on the basis of contem­
porary standards because we do not know that it is inconsistent 
with such standards.



SUPREME COURT OF THE UNITED STATES

No. 75-6844

Stanislaus Roberts, 
Petitioner, 

v.
State of Louisiana.

On Writ of Certiorari to the Su­
preme Court of Louisiana.

[July 2, 1976]

M r . J u stice  B l a c k m u n , dissenting.

I dissent for the reasons set forth in my dissent in 
Furman v. Georgia, 408 U. S. 238, 405-414 (1972), and 
in the other dissenting opinions I joined in that ease. 
Id., at 375, 414, and 465.



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