Subject: WALTON v. ARIZONA, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



WALTON v. ARIZONA


certiorari to the supreme court of arizona

No. 88-7351.  Argued January 17, 1990--Decided June 27, 1990

Petitioner Walton was found guilty in an Arizona court of first-degree
murder and was sentenced in a separate sentencing hearing before the judge,
as required by state law.  Under that law, the judge, inter alia,
determines the existence of aggravating and mitigating circumstances and
"shall impose" a death sentence if he finds one or more of several
enumerated aggravating circumstances and that there are no mitigating
circumstances sufficiently substantial to call for leniency.  The burden is
on the prosecution to establish the existence of aggravating circumstances
and on the defendant to establish mitigating ones.  The judge sentenced
Walton to death, after finding the presence of two aggra vating
circumstances--that the murder was committed "in an especially heinous,
cruel or depraved manner," and that it was committed for pecuniary
gain--and that, considering all of the mitigating factors urged by Walton,
the mitigating circumstances did not call for leniency.  The State Supreme
Court upheld the sentence.  In an independent review, the court concluded
that the evidence was sufficient to prove the existence of both aggravating
factors.  As to the first factor, the court noted that it had previously
defined "especially cruel" to mean that the victim had suffered mental
anguish before his death and had defined "especially depraved" to mean that
the perpetrator had relished the murder, evi dencing debasement or
perversion.  The court also agreed that there were no mitigating factors
sufficient to call for leniency and determined that the sentence was
proportional to sentences imposed in similar cases.

Held: The judgment is affirmed.

159 Ariz. 571, 769 P. 2d 1017, affirmed.

    Justice White delivered the opinion of the Court with respect to Parts
I, II, and V, concluding:

    1. Arizona's capital sentencing scheme does not violate the Sixth
Amendment.  The Constitution does not require that every finding of fact
underlying a sentencing decision be made by a jury rather than by a judge.
See Clemons v. Mississippi, 494 U. S. ----, ----; Hildwin v. Florida, 490
U. S. ----.  Since Arizona's aggravating factors are standards to guide the
making of the choice between verdicts of death and life imprisonment rather
than "elements of the offense," the judge's finding of any particular
aggravating circumstance does not require the death penalty, and the
failure to find any particular aggravating circumstance does not preclude
that penalty.  Poland v. Arizona, 476 U. S. 147.  Moreover, if the
Constitution does not require that the finding of Enmund v. Florida, 458 U.
S. 782--that the defendant killed, attempted to kill, or intended to
kill--be proved as an element of the offense of capital murder and be made
by a jury, it cannot be concluded that a State is required to denominate
aggravating circumstances "elements" of the offense or permit only a jury
to determine such circumstances' existence.  Pp. 6-8.

    2. The especially heinous, cruel or depraved aggravating circumstance,
as construed by the State Supreme Court, furnishes sufficient guidance to
the sentencer to satisfy the Eighth and Fourteenth Amendments.  The court's
definition of "especially cruel" is virtually identi- cal to the
construction approved in Maynard v. Cartwright, 486 U. S. 356, 364-365.
Similarly, its definition of "depraved" cannot be faulted.  Although juries
must be instructed in more than bare terms about an aggravating
circumstance that is unconstitutionally vague on its face, trial judges are
presumed to know the law and to apply narrower definitions in their
decisions.  Maynard v. Cartwright, supra, at 358-359, 363-364; Godfrey v.
Georgia, 446 U. S. 420, 426, distinguished.  Walton's challenge to the
State Supreme Court's proportionality review-- that it should be overturned
because it did not distinguish his case from others in which the death
sentence was not imposed--is rejected.  Such review is not constitutionally
required where, as here, the challenged factor has been construed in a
manner to give the sentencer sufficient guidance.  Furthermore, the
Constitution does not require this Court to look behind the state court's
conclusion where it plainly undertook its review in good faith.  Pp.
11-14.

    Justice White, joined by The Chief Justice, Justice O'Connor and
Justice Kennedy, concluded in Parts III and IV:

    1. Walton's Eighth and Fourteenth Amendment rights have not been
violated by placing on him the burden of proving by a preponderance of the
evidence the existence of mitigating circumstances sufficiently substantial
to call for leniency, since Arizona's method of allocating the burdens of
proof does not lessen the State's burden to prove the existence of
aggravating circumstances.  Cf., e. g., Martin v. Ohio, 480 U. S. 228.
Lockett v. Ohio, 438 U. S. 586; Mullaney v. Wilbur, 421 U. S. 684; Mills v.
Maryland, 486 U. S. 367, distinguished.  Pp. 8-10.

    2. Blystone v. Pennsylvania, 494 U. S. ----, and Boyde v. California,
494 U. S. ----, foreclose Walton's argument that the state statute creates
an unconstitutional presumption under the Eighth and Fourteenth Amendments
that death is the proper sentence by requiring that the court "shall
impose" the death penalty under the specified circumstances.  The statute
neither precludes the court from considering any type of mitigating
evidence nor automatically imposes a death sentence for certain types of
murder.  States are free to structure and shape consideration of mitigating
evidence in an attempt to achieve a more rational and equitable
administration of the death penalty.  Pp. 10-11.

    Justice Scalia concluded that he will no longer seek to apply, and will
not, here or in the future, vote to uphold a claim based upon, the
principle of Woodson v. North Carolina, 428 U. S. 280 and Lockett v. Ohio,
438 U. S. 586, that the sentencer in a capital case may not be precluded
from considering any mitigating factor.  This principle is rationally
irreconcilable with the principle of Furman v. Georgia, 408 U. S. 238--that
a sentencer's discretion to return a death sentence must be constrained by
specific standards, so that the death penalty is not inflicted in a random
and capricious fashion.  Furman requires constraints on the sentencer's
discretion to "impose" the death penalty, while Woodson-Lockett forbids
constraints on the sentencer's discretion to "decline to impose" it--which
are one and the same.  Although the Eighth Amendment's text arguably
supports the view in Furman that unfettered discretion makes death
sentences so random and infrequent as to make their imposition cruel and
unusual, the Woodson-Lockett principle bears no relation to the Amendment's
text.  Nor does the doctrine of stare decisis require adherence to
Woodson-Lockett, since the objectives of the doctrine, certainty and
predictability, have been demonstrably undermined rather than furthered by
the attempt to rest a jurisprudence upon two incompatible principles.
Thus, even if correct, Walton's assertion that in two respects the state
procedure deprived the sen tencer of discretion to consider all mitigating
circumstances cannot state an Eighth Amendment violation.  Pp. 1-17.

White, J., announced the judgment of the Court and delivered the opinion of
the Court with respect to Parts I, II, and V, in which Rehnquist, C. J.,
and O'Connor, Scalia, and Kennedy, JJ., joined, and an opinion with respect
to Parts III and IV, in which Rehnquist, C. J., and O'Connor, and Kennedy,
JJ., joined.  Scalia, J., filed an opinion concurring in part and
concurring in the judgment.  Brennan, J., filed a dissent- ing opinion, in
which Marshall, J., joined.  Blackmun, J., filed a dissenting opinion, in
which Brennan, Marshall, and Stevens, JJ., joined.  Stevens, J., filed a
dissenting opinion.

------------------------------------------------------------------------------




Subject: 88-7351--OPINION, WALTON v. ARIZONA

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 88-7351



JEFFREY ALAN WALTON, PETITIONER v. ARIZONA

on writ of certiorari to the supreme court of arizona

[June 27, 1990]



    Justice White announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and V, and an opinion in
Parts III and IV in which The Chief Justice, Justice O'Connor, and Justice
Kennedy joined.

    At issue in this case is the validity of the death sentence imposed by
an Arizona trial court after a jury found petitioner Jeffrey Walton guilty
of committing first-degree murder.
    The Arizona statutes provide that a person commits first- degree murder
if "[i]ntending or knowing that his conduct will cause death, such person
causes the death of another with premeditation" or if in the course of
committing certain specified offenses and without any mental state other
than what is required for the commission of such offenses, he causes the
death of any person.  Ariz. Rev. Stat. Ann. MDRV 13-1105 (Supp. 1988).
After a person has been found guilty of first-degree murder, the sentence
for such crime is determined in accordance with the provisions of MDRV
13-703(B).  It is there directed that a "separate sentencing hearing . . .
shall be conducted before the court alone" to determine whether the
sentence shall be death or life imprisonment.  In the course of such
hearing, the judge is instructed to determine the existence or nonexistence
of any of the aggravating or mitigating circumstances defined in
subsections (F) and (G) of MDRV 13-703.  Subsection (F) defines 10
aggravating circumstances that may be considered.  One of them is whether
the offense was committed with the expectation of receiving anything of
pecuniary value.  MDRV 13-703(F)(5).  Another is whether the defendant
committed the offense in an especially heinous, cruel or depraved manner.
MDRV 13-703(F)(6).  Subsection (G) defines mitigating circumstances as any
factors "which are relevant in determining whether to impose a sentence
less than death, including any aspect of the defendant's character,
propensities or record and any of the circumstances of the offense,
including but not limited to" five specified factors. {1}  The burden of
establishing the existence of any of the aggravating circumstances is on
the prosecution, while the burden of establishing mitigating circumstances
is on the defendant.  MDRV 13-703(C).  The court is directed to return a
special verdict setting forth its findings as to aggravating and mitigating
circumstances and then "shall impose a sentence of death if the court finds
one or more of the aggravating circumstances enumerated in subsection (F)
of this section and that there are no mitigating circumstances sufficiently
substantial to call for leniency."  MDRV 13-703(E).

I
    Petitioner Walton and his two codefendants, Robert Hoover and Sharold
Ramsey, went to a bar in Tucson, Arizona, on the night of March 2, 1986,
intending to find and rob someone at random, steal his car, tie him up, and
leave him in the desert while they fled the State in the car.  In the bar's
parking lot, the trio encountered Thomas Powell, a young, off-duty Marine.
The three robbed Powell at gunpoint and forced him into his car which they
then drove out into the desert.  While driving out of Tucson, the three
asked Powell questions about where he lived and whether he had any more
money.  When the car stopped, Ramsey told a frightened Powell that he would
not be hurt.  Walton and Hoover then forced Powell out of the car and had
him lie face down on the ground near the car while they debated what to do
with him.  Eventually, Walton instructed Hoover and Ramsey to sit in the
car and turn the radio up loud.  Walton then took a .22 caliber derringer
and marched Powell off into the desert.  After walking a short distance,
Walton forced Powell to lie down on the ground, placed his foot on Powell's
neck, and shot Powell once in the head.  Walton later told Hoover and
Ramsey that he had shot Powell and that he had "never seen a man pee in his
pants before."  Powell's body was found approximately a week later, after
Walton was arrested and led police to the murder site.  A medical examiner
determined that Powell had been blinded and rendered unconscious by the
shot but was not immediately killed.  Instead, Powell regained
consciousness, apparently floundered about in the desert, and ultimately
died from dehydration, starvation, and pneumonia approximately a day before
his body was found.   A jury convicted Walton of first-degree murder after
being given instructions on both premeditated and felony murder.  See Ariz.
Rev. Stat. Ann. MDRV 13-1105 (Supp. 1988).  The trial judge then conducted
the separate sentencing hearing required by MDRV 13-703 (B).  The State
argued that two aggravating circumstances were present: (1) the murder was
committed "in an especially heinous, cruel or depraved manner," MDRV
13-703(F)(6), and (2) the murder was committed for pecuniary gain.  MDRV
13-703 (F)(5).  In mitigation Walton presented testimony from a
psychiatrist who opined that Walton had a long history of substance abuse
which impaired his judgment, see MDRV 13-703(G)(1), and that Walton may
have been abused sexually as a child.  Walton's counsel also argued
Walton's age, 20 at the time of sentencing, as a mitigating circumstance.
See MDRV 13-703(G)(5).  At the conclusion of the hearing, the trial court
found "beyond any doubt" that Walton was the one who shot Powell.  The
court also found that the two aggravating circumstances pressed by the
State were present.  The court stated that it had considered Walton's age
and his capacity to appreciate the wrongfulness of his conduct, as well as
all of the mitigating factors urged by defendant's counsel.  The court then
concluded that that there were "no mitigating circumstances sufficiently
substantial to call for leniency."  App. 61.  See Ariz. Rev. Stat. Ann.
MDRV 13- 703 (Supp. 1988).  The court sentenced Walton to death.
    The Arizona Supreme Court affirmed Walton's conviction and sentence.
159 Ariz. 571, 769 P. 2d 1017 (1989).  Relying on its prior decisions, the
court rejected various specific challenges to the constitutionality of the
Arizona death penalty statute, some of which are pressed here, and then
proceeded to conduct its independent review of Walton's sentence in order
to "ensure that aggravating factors were proven beyond a reasonable doubt
and all appropriate mitigation was considered."  Id., at 586, 769 P. 2d, at
1032. {2}  The court began by examining the "especially heinous, cruel or
depraved" aggravating circumstance found by the trial judge.  The court
pointed out that it previously had determined that a murder is committed in
an especially cruel manner when "the perpetrator inflicts mental anguish or
physical abuse before the victim's death," id., at 586, 769 P. 2d, at 1032,
(citations omitted), and that "[m]ental anguish includes a victim's
uncertainty as to his ultimate fate."  Ibid.  In this case, the court
concluded that there was ample evidence that Powell suffered mental anguish
prior to his death. {3}  The Arizona Supreme Court also found the evidence
sufficient to conclude that the crime was committed in an especially
depraved manner, pointing out that it had defined a depraved murder as one
where "the perpetrator relishes the murder, evidencing debasement or
perversion," id., at 587, 769 P. 2d, at 1033. {4}  Additionally, the court
found that the pecuniary gain circumstance was present.  Id., at 588, 769
P. 2d, at 1034.  After examining Walton's mitigating evidence regarding his
substance abuse and his youth, the court concluded that there were "no
mitigating circumstances sufficient to call for lenience."  Id., at 589,
769 P. 2d, at 1035.  Finally, the court conducted its proportionality
review and determined that Walton's death sentence was "proportional to
sentences imposed in similar cases."  Id., at 590, 769 P. 2d, at 1036.
    Because the United States Court of Appeals for the Ninth Circuit has
held the Arizona death penalty statute to be unconstitutional for the
reasons submitted by Walton in this case, see Adamson v. Ricketts, 865 F.
2d 1011 (1988) (en banc), we granted certiorari, 493 U. S. ---- (1989), to
resolve the conflict and to settle issues that are of importance generally
in the administration of the death penalty.  We now affirm the judgment of
the Arizona Supreme Court.

II
    Walton's first argument is that every finding of fact underlying the
sentencing decision must be made by a jury, not by a judge, and that the
Arizona scheme would be constitutional only if a jury decides what
aggravating and mitigating circumstances are present in a given case and
the trial judge then imposes sentence based on those findings.  Contrary to
Walton's assertion, however:  "Any argument that the Constitution requires
that a jury impose the sentence of death or make the findings prerequisite
to imposition of such a sentence has been soundly rejected by prior
decisions of this Court."  Clemons v. Mississippi, 494 U. S. ----, ----
(1990).
    We repeatedly have rejected constitutional challenges to Florida's
death sentencing scheme, which provides for sentencing by the judge, not
the jury.  Hildwin v. Florida, 490 U. S. ---- (1989); Spaziano v. Florida,
468 U. S. 447 (1984); Proffitt v. Florida, 428 U. S. 242 (1976).  In
Hildwin, for example, we stated that "[t]his case presents us once again
with the question whether the Sixth Amendment requires a jury to specify
the aggravating factors that permit the imposition of capital punishment in
Florida," 490 U. S., at ----, and we ultimately concluded that "the Sixth
Amendment does not require that the specific findings authorizing the
imposition of the sentence of death be made by the jury."  Id., at ----.
The distinctions Walton attempts to draw between the Florida and Arizona
statutory schemes are not persuasive.  It is true that in Florida the jury
recommends a sentence, but it does not make specific factual findings with
regard to the existence of mitigating or aggravating circumstances and its
recommendation is not binding on the trial judge.  A Florida trial court no
more has the assistance of a jury's findings of fact with respect to
sentencing issues than does a trial judge in Arizona.
    Walton also suggests that in Florida aggravating factors are only
sentencing "considerations" while in Arizona they are "elements of the
offense."  But as we observed in Poland v. Arizona, 476 U. S. 147 (1986),
an Arizona capital punishment case:  "Aggravating circumstances are not
separate penalties or offenses, but are `standards to guide the making of
[the] choice' between the alternative verdicts of death and life
imprisonment.  Thus, under Arizona's capital sentencing scheme, the judge's
finding of any particular aggravating circumstance does not of itself
`convict' a defendant (i. e., require the death penalty), and the failure
to find any particular aggravating circumstance does not `acquit' a
defendant (i. e., preclude the death penalty)."  Id., at 156 (citation
omitted).   Our holding in Cabana v. Bullock, 474 U. S. 376 (1986),
provides further support for our conclusion.  Cabana held that an appellate
court could constitutionally make the Enmund v. Florida, 458 U. S. 782
(1982), finding--that the defendant killed, attempted to kill, or intended
to kill--in the first instance.  We noted that "Enmund, `does not affect
the state's definition of any substantive offense, even a capital offense,'
" 474 U. S., at 385 (citations omitted), and that "while the Eighth
Amendment prohibits the execution of such defendants, it does not supply a
new element of the crime of capital murder that must be found by the jury."
Id., at 385, n. 3.  Enmund only places "a substantive limitation on
sentencing, and like other such limits it need not be enforced by the
jury."  Id., at 386.  If the Constitution does not require that the Enmund
finding be proved as an element of the offense of capital murder, and does
not require a jury to make that finding, we cannot conclude that a State is
required to denominate aggravating circumstances "elements" of the offense
or permit only a jury to determine the existence of such circumstances.
    We thus conclude that the Arizona capital sentencing scheme does not
violate the Sixth Amendment.

III
    Also unpersuasive is Walton's contention that the Arizona statute
violates the Eighth and Fourteenth Amendments because it imposes on
defendants the burden of establishing, by a preponderance of the evidence,
the existence of mitigating circumstances sufficiently substantial to call
for leniency.  See Ariz. Rev. Stat. Ann. MDRV 13-703(C) and MDRV 13-703(E)
(Supp. 1988).  It is true that the Court has refused to countenance
state-imposed restrictions on what mitigating circumstances may be
considered in deciding whether to impose the death penalty.  See, e. g.,
Lockett v. Ohio, 438 U. S. 586, 604 (1978).  But Walton is not complaining
that the Arizona statute or practice excludes from consideration any
particular type of mitigating evidence; and it does not follow from Lockett
and its progeny that a State is precluded from specifying how mitigating
circumstances are to be proved.  Indeed, in Lockett itself, we expressly
reserved opinion on whether "it violates the Constitution to require
defendants to bear the risk of nonpersuasion as to the existence of
mitigating circumstances in capital cases."  Id., at 609, and n. 16.   In
Martin v. Ohio, 480 U. S. 228 (1987), we upheld the Ohio practice of
imposing on a capital defendant the burden of proving by a preponderance of
the evidence that she was acting in self defense when she allegedly
committed the murder.  In Leland v. Oregon, 343 U. S. 790 (1952), the Court
upheld, in a capital case, a requirement that the defense of insanity be
proved beyond a reasonable doubt by the defendant, see also Rivera v.
Delaware, 429 U. S. 877 (1976), and in Patterson v. New York, 432 U. S. 197
(1977), we rejected the argument that a State violated due process by
imposing a preponderance of the evidence standard on a defendant to prove
the affirmative defense of extreme emotional disturbance.
    The basic principle of these cases controls the result in this case.
So long as a State's method of allocating the burdens of proof does not
lessen the State's burden to prove every element of the offense charged, or
in this case to prove the existence of aggravating circumstances, a
defendant's constitutional rights are not violated by placing on him the
burden of proving mitigating circumstances sufficiently substantial to call
for leniency.  Mullaney v. Wilbur, 421 U. S. 684 (1975), is not to the
contrary.  Mullaney struck down on due process grounds a state statute that
required a convicted murder defendant to negate an element of the offense
of murder in order to be entitled to a sentence for voluntary manslaughter.
No such burden is placed on defendants by Arizona's capital-sentencing
scheme.  We therefore, decline to adopt as a constitutional imperative a
rule that would require the court to consider the mitigating circumstances
claimed by a defendant unless the State negated them by a preponderance of
the evidence.
    Neither does Mills v. Maryland, 486 U. S. 367 (1988), lend support to
Walton's position.  There this Court reversed a death sentence because it
concluded that the jury instructions given at the sentencing phase likely
led the jury to believe that any particular mitigating circumstance could
not be considered unless the jurors unanimously agreed that such
circumstance was present.  The Court's focus was on whether reasonable
jurors would have read the instructions to require unanimity and if so, the
possible consequences of such an understanding.  Here, of course, the judge
alone is the sentencer, and Mills is therefore beside the point.
    Furthermore, Mills did not suggest that it would be forbidden to
require each individual juror, before weighing a claimed mitigating
circumstance in the balance, to be convinced in his or her own mind that
the mitigating circumstance has been proved by a preponderance of the
evidence.  To the contrary, the jury in that case was instructed that it
had to find that any mitigating circumstances had been proved by a
preponderance of the evidence.  Id., at 387.  Neither the petitioner in
Mills nor the Court in its opinion hinted that there was any constitutional
objection to that aspect of the instructions.
    We therefore reject Walton's argument that Arizona's allocation of the
burdens of proof in a capital sentencing proceeding violates the
Constitution.

IV
    Walton insists that because MDRV 13-703(E) provides that the court
"shall" impose the death penalty if one or more aggravating circumstances
are found and mitigating circumstances are held insufficient to call for
leniency, the statute creates an unconstitutional presumption that death is
the proper sentence.  Our recent decisions in Blystone v. Pennsylvania, 494
U. S. ---- (1990), and Boyde v. California, 494 U. S. ---- (1990),
foreclose this submission.  Blystone rejected a challenge to a jury
instruction based on a Pennsylvania statute requiring the imposition of the
death penalty if aggravating circumstances were found to exist but no
mitigating circumstances were present.  We pointed out that "[t]he
requirement of individualized sentencing in capital cases is satisfied by
allowing the jury to consider all relevant mitigating evidence,"  494 U.
S., at ---- (footnote omitted), and concluded that because the Pennsylvania
statute did not preclude the sentencer from considering any type of
mitigating evidence, id., at ----, ---- it was consonant with that
principle.  In addition, the Court concluded that the statute was not
"impermissibly `mandatory' as that term was understood" in Woodson v. North
Carolina, 428 U. S. 280 (1976), and Roberts v. Louisiana, 428 U. S. 325
(1976), because it did not automatically impose death upon conviction for
certain types of murder.  494 U. S., at ----.  The same is true of the
Arizona statute.
    Similarly, Boyde v. California, supra, upheld a pattern jury
instruction which stated that "[i]f you conclude that the aggravating
circumstances outweigh the mitigating circumstances, you shall impose a
sentence of death."  See 494 U. S., at ---- (emphasis omitted).  The Court
specifically noted that "there is no . . . constitutional requirement of
unfettered sentencing discretion in the jury, and States are free to
structure and shape consideration of mitigating evidence `in an effort to
achieve a more rational and equitable administration of the death penalty.'
"  Id., at ---- (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988)
(plurality opinion)) .  Walton's arguments in this case are no more
persuasive than those made in Blystone and Boyde.

V
    Walton's final contention is that the especially heinous, cruel or
depraved aggravating circumstance as interpreted by the Arizona courts
fails to channel the sentencer's discretion as required by the Eighth and
Fourteenth Amendments.  Walton contends that the Arizona factor fails to
pass constitutional muster for the same reasons this Court found Oklahoma's
"especially heinous, atrocious, or cruel" aggravating circumstance to be
invalid in Maynard v. Cartwright, 486 U. S. 356 (1988), and Georgia's
"outrageously or wantonly vile, horrible or inhuman" circumstance to be
invalid in Godfrey v. Georgia, 446 U. S. 420 (1980).
    Maynard v. Cartwright and Godfrey v. Georgia, however, are
distinguishable in two constitutionally significant respects.  First, in
both Maynard and Godfrey the defendant was sentenced by a jury and the jury
either was instructed only in the bare terms of the relevant statute or in
terms nearly as vague.  See 486 U. S., at 358-359, 363-364; 446 U. S., at
426.  Neither jury was given a constitutional limiting definition of the
challenged aggravating factor.  Second, in neither case did the State
appellate court, in reviewing the propriety of the death sentence, purport
to affirm the death sentence by applying a limiting definition of the
aggravating circumstance to the facts presented.  486 U. S., at 364; 446 U.
S., at 429.  These points were crucial to the conclusion we reached in
Maynard.  See 486 U. S., at 363-364.  They are equally crucial to our
decision in this case.
    When a jury is the final sentencer, it is essential that the jurors be
properly instructed regarding all facets of the sentencing process.  It is
not enough to instruct the jury in the bare terms of an aggravating
circumstance that is unconstitutionally vague on its face.  That is the
import of our holdings in Maynard and Godfrey.  But the logic of those
cases has no place in the context of sentencing by a trial judge.  Trial
judges are presumed to know the law and to apply it in making their
decisions.  If the Arizona Supreme Court has narrowed the definition of the
"especially heinous, cruel or depraved" aggravating circumstance, we
presume that Arizona trial judges are applying the narrower definition.  It
is irrelevant that the statute itself may not narrow the construction of
the factor.  Moreover, even if a trial judge fails to apply the narrowing
construction or applies an improper construction, the Constitution does not
necessarily require that a state appellate court vacate a death sentence
based on that factor.  Rather, as we held in Clemons v. Mississippi, 494 U.
S. ---- (1990), a state appellate court may itself determine whether the
evidence supports the existence of the aggravating circumstance as properly
defined or the court may eliminate consideration of the factor altogether
and determine whether any remaining aggravating circumstances are
sufficient to warrant the death penalty.
    When a federal court is asked to review a state court's application of
an individual statutory aggravating or mitigating circumstance in a
particular case, it must first determine whether the statutory language
defining the circumstance is itself too vague to provide any guidance to
the sentencer.  If so, then the federal court must attempt to determine
whether the state courts have further defined the vague terms and if they
have done so, whether those definitions are constitutionally sufficient, i.
e., whether they provide some guidance to the sentencer.  In this case
there is no serious argument that Arizona's "especially heinous, cruel or
depraved" aggravating factor is not facially vague.  But the Arizona
Supreme Court has sought to give substance to the operative terms, and we
find that its construction meets constitutional requirements.
    The Arizona Supreme Court stated that "a crime is committed in an
especially cruel manner when the perpetrator inflicts mental anguish or
physical abuse before the victim's death," and that "[m]ental anguish
includes a victim's uncertainty as to his ultimate fate."  159 Ariz., at
586, 769 P. 2d, at 1032.  The court rejected the State's argument that the
six days Powell suffered after being shot constituted cruelty within the
meaning of the statute.  The court pointed out that it had limited the
cruelty circumstance in prior cases to situations where the suffering of
the victim was intended by or foreseeable to the killer.  Id., at 587, 769
P. 2d, at 1033.   In Maynard v. Cartwright, we expressed approval of a
definition that would limit Oklahoma's "especially heinous, atrocious, or
cruel" aggravating circumstance to murders involving "some kind of torture
or physical abuse,"  486 U. S., at 364-365, but we also noted that such a
construction was not the only one "that would be constitutionally
acceptable."  Id., at 365.  The construction given by the Arizona Supreme
Court to the cruelty aspect of the Arizona aggravating circumstance is
virtually identical to the construction we approved in Maynard.
    The Arizona Supreme Court's construction also is similar to the
construction of Florida's "especially heinous, atrocious, or cruel"
aggravating circumstance that we approved in Proffitt v. Florida, 428 U.
S., at 255-256.  Recognizing that the proper degree of definition of an
aggravating factor of this nature is not susceptible of mathematical
precision, we conclude that the definition given to the "especially cruel"
provision by the Arizona Supreme Court is constitutionally sufficient
because it gives meaningful guidance to the sentencer.  Nor can we fault
the state court's statement that a crime is committed in an especially
"depraved" manner when the perpetrator "relishes the murder, evidencing
debasement or perversion," or "shows an indifference to the suffering of
the victim and evidences a sense of pleasure" in the killing.  See 159
Ariz., at 587, 769 P. 2d, at 1033.
    Walton nevertheless contends that the heinous, cruel, or depraved
factor has been applied in an arbitrary manner and that as applied does not
distinguish his case from cases in which the death sentence has not been
imposed.  In effect Walton challenges the proportionality review of the
Arizona Supreme Court as erroneous and asks us to overturn it.  This we
decline to do, for we have just concluded that the challenged factor has
been construed by the Arizona courts in a manner that furnishes sufficient
guidance to the sentencer.  This being so, proportionality review is not
constitutionally required, and we "lawfully may presume that [Walton's]
death sentence was not `wantonly and freakishly' imposed-- and thus that
the sentence is not disproportionate within any recognized meaning of the
Eighth Amendment."  McCleskey v. Kemp, 481 U. S. 279, 306, 308 (1987);
Pulley v. Harris, 465 U. S. 37, 43 (1984).  Furthermore, the Arizona
Supreme Court plainly undertook its proportionality review in good faith
and found that Walton's sentence was proportional to the sentences imposed
in cases similar to his.  The Constitution does not require us to look
behind that conclusion.
    The judgment of the Arizona Supreme Court is affirmed.

It is so ordered.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    Those factors are as follows:
    "1. The defendant's capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a defense to
prosecution.
    "2. The defendant was under unusual and substantial duress, although
not such as to constitute a defense to prosecution.
    "3. The defendant was legally accountable for the conduct of another
under the provisions of MDRV 13-303, but his participation was relatively
minor, although not so minor as to constitute a defense to prosecution.
    "4. The defendant could not reasonably have foreseen that his conduct
in the course of the commission of the offense for which the defendant was
convicted would cause, or would create a grave risk of causing, death to
another person.
    "5. The defendant's age.  Ariz. Rev. Stat. MDRV 13-703(G) (Supp.
1988).

2
    In the course of its opinion, the court also rejected Walton's
challenge, not repeated in this Court, that Hoover and not Walton actually
shot Powell.  The court pointed out that because the jury was instructed on
both felony and premeditated murder but entered only a general verdict, the
trial court was required under Arizona law to independently make the
determination mandated by Enmund v. Florida, 458 U. S. 782 (1982) and Tison
v. Arizona, 481 U. S. 137 (1987), that Walton killed, intended to kill,
attempted to kill, or as a participant in a felony was recklessly
indifferent to the killing of Powell.  159 Ariz., at 585, 769 P. 2d, at
1031.  The court then held that the trial court's Enmund determination was
based on substantial evidence.  159 Ariz., at 586, 769 P. 2d, at 1032.

3
    The court argued that Powell must have realized as he was being driven
out of Tucson into the desert that he might be harmed and the court pointed
out that Powell was obviously frightened enough that Ramsey tried to
reassure him that he would not be harmed.  Then, the court noted, Walton
and Hoover forced Powell to lie on the ground while they argued over his
fate and eventually Walton marched Powell off into the desert with a gun
but no rope, surely making Powell realize that he was not going to be tied
up and left unharmed.  The court further observed that Powell was so
frightened that he urinated on himself.  159 Ariz., at 586- 587, 769 P. 2d,
at 1032-1033.

4
    The court concluded that Walton's reference to having " `never seen a
man pee in his pants before' " constituted evidence of "callous fascination
with the murder" and demonstrated "an indifference to the suffering of the
victim and . . . a sense of pleasure" taken "in the killing."  Id., at 587,
769 P. 2d, at 1033.





Subject: 88-7351--CONCUR, WALTON v. ARIZONA

 


    SUPREME COURT OF THE UNITED STATES


No. 88-7351



JEFFREY ALAN WALTON, PETITIONER v. ARIZONA

on writ of certiorari to the supreme court of arizona

[June 27, 1990]



    Justice Scalia, concurring in part and concurring in the judgment.
    Today a petitioner before this Court says that a State sentencing court
(1) had unconstitutionally broad discretion to sentence him to death
instead of imprisonment, and (2) had unconstitutionally narrow discretion
to sentence him to imprisonment instead of death.  An observer unacquainted
with our death penalty jurisprudence (and in the habit of thinking
logically) would probably say these positions cannot both be right.  The
ultimate choice in capital sentencing, he would point out, is a unitary
one--the choice between death and imprisonment.  One cannot have discretion
whether to select the one yet lack discretion whether to select the other.
Our imaginary observer would then be surprised to discover that, under this
Court's Eighth Amendment jurisprudence of the past 15 years, petitioner
would have a strong chance of winning on both of these antagonistic claims,
simultaneously--as evidenced by the facts that four Members of this Court
think he should win on both, see post, at ---- (Blackmun, J., dissenting),
and that an en banc panel of a Federal Court of Appeals so held in an
essentially identical case, see Adamson v. Ricketts, 865 F. 2d 1011,
1029-1044 (CA9 1988).  But that just shows that our jurisprudence and logic
have long since parted ways.  I write separately to say that, and explain
why, I will no longer seek to apply one of the two incompatible branches of
that jurisprudence.  I agree with the Court's analysis of petitioner's
first claim, and concur in its opinion as to Parts I, II, and V.  As to the
second claim, I concur only in the judgment.
I


A
    Over the course of the past 15 years, this Court has assumed the role
of rulemaking body for the States' administration of capital
sentencing--effectively requiring capital sentencing proceedings separate
from the adjudication of guilt, see, e. g., Woodson v. North Carolina, 428
U. S. 280, 301-305 (1976) (plurality opinion); Gregg v. Georgia, 428 U. S.
153, 195 (1976) (opinion announcing the judgment), dictating the type and
extent of discretion the sentencer must and must not have, see, e. g.,
Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion); Godfrey v.
Georgia, 446 U. S. 420 (1980), requiring that certain categories of
evidence must and must not be admitted, see, e. g., Skipper v. South
Carolina, 476 U. S. 1 (1986); Booth v. Maryland, 482 U. S. 496 (1987),
undertaking minute inquiries into the wording of jury instructions to
ensure that jurors understand their duties under our labyrinthine code of
rules, see, e. g., Caldwell v. Mississippi, 472 U. S. 320 (1985); Mills v.
Maryland, 486 U. S. 367 (1988), and prescribing the procedural forms that
sentencing decisions must follow, see, e. g., McKoy v. North Carolina, 494
U. S. ---- (1990).  The case that began the development of this Eighth
Amendment jurisprudence was Furman v. Georgia, 408 U. S. 238 (1972) (per
curiam), which has come to stand for the principle that a sentencer's
discretion to return a death sentence must be constrained by specific
standards, so that the death penalty is not inflicted in a random and
capricious fashion.
    In Furman, we overturned the sentences of two men convicted and
sentenced to death in state courts for murder, and one man so convicted and
sentenced for rape, under statutes that gave the jury complete discretion
to impose death for those crimes, with no standards as to the factors it
should deem relevant.  The brief per curiam gave no reasons for the Court's
decision, other than to say that "the imposition and carrying out of the
death penalty in these cases constitute cruel and unusual punishment in
violation of the Eight and Fourteenth Amendments."  Id., at 239-240.  To
uncover the reasons underlying the decision in Furman, one must turn to the
opinions of the five Justices forming the majority, each of whom wrote
separately and none of whom joined any other's opinion.  Of these opinions,
two rested on the broadest possible ground--that the death penalty was
cruel and unusual punishment in all circumstances.  See id., at 305
(Brennan, J., concurring); id., at 369-371 (Marshall, J., concurring).  A
third, that of Justice Douglas, rested on a narrower ground--that the
discretionary capital sentencing systems under which the petitioners had
been sentenced were operated in a manner that discriminated against racial
minorities and unpopular groups.  See id., at 256-257 (concurring
opinion).
    The critical opinions, however, in light of the subsequent development
of our jurisprudence, were those of Justices Stewart and White.  They
focused on the infrequency and seeming randomness with which, under the
discretionary state systems, the death penalty was imposed.  Justice
Stewart wrote:
    "These death sentences are cruel and unusual in the same way that being
struck by lightning is cruel and unusual.  For, of all the people convicted
of rapes and murders in 1967 and 1968, many just as reprehensible as these,
the petitioners are among a capriciously selected random handful upon whom
the sentence of death has in fact been imposed . . .  [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 (concurring opinion) (footnotes
omitted).


Justice White took a similar view.  In his opinion the death sentences
under review violated the Eighth Amendment because "as the statutes before
us are now administered, the penalty is so infrequently imposed that the
threat of execution is too attenuated to be of substantial service to
criminal justice," id., at 313.  "[T]here is no meaningful basis for
distinguishing the few cases in which it is imposed from the many cases in
which it is not," ibid., so that it constitutes a "pointless and needless
extinction of life with only marginal contributions to any discernible
social or public purposes," id., at 312.  The opinions of both Justice
Stewart and Justice White went out of the way to say that capital
punishment was not in itself a cruel and unusual punishment, and that a
mandatory system of capital sentencing, in which everyone convicted of a
particular crime received that punishment, would "present quite different
issues."  Id., at 310-311 (White, J., concurring); see also id., at 307-308
(Stewart, J., concurring).
    Furman led at least 35 States to adopt new capital sentencing
procedures that eliminated some of the discretion previously conferred to
impose or withold the death penalty.  See Gregg v. Georgia, supra, at 179.
In 1976, we upheld against Eighth Amendment challenge three "guided
discretion" schemes representative of these measures, which, in varying
forms, required the sentencer to consider certain specified aggravating and
mitigating circumstances in reaching its decision.  In the principal case,
Gregg v. Georgia, supra, the three-Justice opinion announcing the judgment
read Furman as "mandat[ing] that where discretion is afforded a sentencing
body on a matter so grave as the determination 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," id., at 189 (Opinion of Stewart, Powell, and Stevens, JJ.)
(emphasis added).  See also id., at 221-222 (White, J., joined by Burger,
C. J., and Rehnquist, J., concurring in judgment); Proffitt v. Florida, 428
U. S. 242, 251 (1976) (Opinion of Stewart, Powell, and Stevens, JJ.); id.,
at 260 (White, J., joined by Burger, C. J., and Rehnquist, J., concurring
in judgment); Jurek v. Texas, 428 U. S. 262, 276 (1976) (Opinion of
Stewart, Powell, and Stevens, JJ.); id., at 279 (White, J., joined by
Burger, C. J., and Rehnquist, J., concurring in judgment).
    Since the 1976 cases, we have routinely read Furman as standing for the
proposition that "channelling and limiting . . . the sentencer's discretion
in imposing the death penalty" is a "fundamental constitutional
requirement," Maynard v. Cartwright, 486 U. S. 356, 362 (1988), and have
insisted that States furnish the sentencer with " `clear and objective
standards' that provide `specific and detailed guidance,' and that `make
rationally reviewable the process for imposing a sentence of death.' "
Godfrey v. Georgia, 446 U. S., at 428 (footnotes omitted).  Only twice
since 1976 have we actually invalidated a death sentence because of
inadequate guidance to the sentencer, see Maynard, supra, at 362-364;
Godfrey, supra, at 428-429, 433, but we have repeatedly incanted the
principle that "unbridled discretion" is unacceptable, Penry v. Lynaugh,
492 U. S. ----, ---- (1989), that capital sentencing procedures must
constrain and guide the sentencer's discretion to ensure "that the death
penalty is not meted out arbitrarily and capriciously," California v.
Ramos, 463 U. S. 992, 999 (1983), that "the State must establish rational
criteria that narrow the decisionmaker's judgment," McCleskey v. Kemp, 481
U. S. 279, 305 (1987), that "death penalty statutes [must] be structured so
as to prevent the penalty from being administered in an arbitrary and
unpredictable fashion," California v. Brown, 479 U. S. 538, 541 (1987),
that our cases require "procedural protections . . . to ensure that the
death penalty will be imposed in a consistent, rational manner," Barclay v.
Florida, 463 U. S. 939, 960 (1983) (Stevens, J., concurring in judgment),
that "[states] must administer [the death] penalty in a way that can
rationally distinguish between those individuals for whom death is an
appropriate sanction and those for whom it is not," Spaziano v. Florida,
468 U. S. 447, 460 (1984).  See also Zant v. Stephens, 462 U. S. 862, 877
(1983); Eddings v. Oklahoma, 455 U. S. 104, 110 (1982); Pulley v. Harris,
465 U. S. 37, 51 (1984); Booth v. Maryland, 482 U. S., at 502; Mills v.
Maryland, 486 U. S., at 374; Lowenfield v. Phelps, 484 U. S. 231, 244
(1988).
B
    Shortly after introducing our doctrine requiring constraints on the
sentencer's discretion to "impose" the death penalty, the Court began
developing a doctrine forbidding constraints on the sentencer's discretion
to "decline to impose" it.  McCleskey v. Kemp, supra, at 304.  This second
doctrine--counterdoctrine would be a better word--has completely exploded
whatever coherence the notion of "guided discretion" once had.
    Some States responded to Furman by making death the mandatory
punishment for certain categories of murder.  We invalidated these statutes
in Woodson v. North Carolina, 428 U. S. 280 (1976), and Roberts v.
Louisiana, 428 U. S. 325 (1976), a plurality of the Court concluding that
the sentencing process must accord at least some consideration to the
"character and record of the individual offender."  Woodson, supra, at 304
(Opinion of Stewart, Powell, and Stevens, JJ.).  Other States responded to
Furman by leaving the sentencer some discretion to spare capital
defendants, but limiting the kinds of mitigating circumstances the
sentencer could consider.  We invalidated these statutes in Lockett v.
Ohio, 438 U. S. 586 (1978), a plurality saying the Eighth Amendment
requires that the sentencer "not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers as a basis
for a sentence less than death."  Id., at 604 (Opinion of Burger, C. J.,
joined by Stewart, Powell, and Stevens, JJ.) (emphasis omitted and added).
The reasoning of the pluralities in these cases was later adopted by a
majority of the Court.  See Sumner v. Shuman, 483 U. S. 66 (1987)
(embracing Woodson); Eddings v. Oklahoma, supra (embracing Lockett).
    These decisions, of course, had no basis in Furman.  One might have
supposed that curtailing or eliminating discretion in the sentencing of
capital defendants was not only consistent with Furman, but positively
required by it--as many of the States, of course, did suppose.  But in
Woodson and Lockett, it emerged that uniform treatment of offenders guilty
of the same capital crime was not only not required by the Eighth
Amendment, but was all but prohibited.  Announcing the proposition that
"[c]entral to the application of the [Eighth] Amendment is a determination
of contemporary standards regarding the infliction of punishment," Woodson,
supra, at 288, and pointing to the steady growth of discretionary
sentencing systems over the previous 150 years (those very systems we had
found unconstitutional in Furman), Woodson, supra, at 291-292, the
pluralities in those cases determined that a defendant could not be
sentenced to death unless the sentencer was convinced, by an unconstrained
and unguided evaluation of offender and offense, that death was the
appropriate punishment.  Id., at 304-305; Lockett, supra, at 604-605.  In
short, the practice which in Furman had been described as the discretion to
sentence to death and pronounced constitutionally prohibited, was in
Woodson and Lockett renamed the discretion not to sentence to death and
pronounced constitutionally required.
    As elaborated in the years since, the Woodson-Lockett principle has
prevented States from imposing all but the most minimal constraints on the
sentencer's discretion to decide that an offender eligible for the death
penalty should nonetheless not receive it.  We have, in the first place,
repeatedly rebuffed States' efforts to channel that discretion by
specifying objective factors on which its exercise should rest.  It would
misdescribe the sweep of this principle to say that "all mitigating
evidence" must be considered by the sentencer.  That would assume some
objective criterion of what is mitigating, which is precisely what we have
forbidden.  Our cases proudly announce that the Constitution effectively
prohibits the States from excluding from the sentencing decision any aspect
of a defendant's character or record, or any circumstance surrounding the
crime: that the defendant had a poor and deprived childhood, or that he had
a rich and spoiled childhood; that he had a great love for the victim's
race, or that he had a pathological hatred for the victim's race; that he
has limited mental capacity, or that he has a brilliant mind which can make
a great contribution to society; that he was kind to his mother, or that he
despised his mother.  Whatever evidence bearing on the crime or the
criminal the defense wishes to introduce as rendering the defendant less
deserving of the death penalty must be admitted into evidence and
considered by the sentencer.  See, e. g., Lockett, supra ("character, prior
record, age, lack of specific intent to cause death, and . . . relatively
minor part in the crime"); Eddings v. Oklahoma, supra, at 107 (inter alia,
that the defendant's "parents were divorced when he was 5 years old, and
until he was 14 [he] lived with his mother without rules or supervision");
Hitchcock v. Dugger, 481 U. S. 393, 397 (1987) (inter alia, "that
petitioner had been one of seven children in a poor family that earned its
living by picking cotton; that his father had died of cancer; and that
petitioner had been a fond and affectionate uncle"); Skipper v. South
Carolina, 476 U. S. 1, 3 (1986) ("that petitioner had been a well- behaved
and well-adjusted prisoner" while awaiting trial).  Nor may States channel
the sentencer's consideration of this evidence by defining the weight or
significance it is to receive--for example, by making evidence of mental
retardation relevant only insofar as it bears on the question whether the
crime was committed deliberately, see Penry v. Lyn augh, ---- U. S. ----,
---- (1989).  Rather, they must let the sentencer "giv[e] effect," McKoy v.
North Carolina, 494 U. S. ----, ---- (1990), to mitigating evidence in
whatever manner it pleases.  Nor, when a jury is assigned the sentencing
task, may the State attempt to impose structural rationality on the
sentencing decision by requiring that mitigating circumstances be found
unanimously, see ibid.; each juror must be allowed to determine and "give
effect" to his perception of what evidence favors leniency, regardless of
whether those perceptions command the assent of (or are even comprehensible
to) other jurors.
    To acknowledge that "there perhaps is an inherent tension" between this
line of cases and the line stemming from Furman, McCleskey v. Kemp, 481 U.
S., at 363 (Blackmun, J., dissenting), is rather like saying that there was
perhaps an inherent tension between the Allies and the Axis Powers in World
War II.  And to refer to the two lines as pursuing "twin objectives,"
Spaziano v. Florida, 468 U. S., at 459, is rather like referring to the
twin objectives of good and evil.  They cannot be reconciled.  Pursuant to
Furman, and in order "to achieve a more rational and equitable
administration of the death penalty," Franklin v. Lynaugh, 487 U. S. 164,
181 (1988), we require that States "channel the sentencer's discretion by
`clear and objective standards' that provide `specific and detailed
guidance,' " Godfrey v. Georgia, 446 U. S., at 428.  In the next breath,
however, we say that "the State cannot channel the sentencer's discretion .
. . to consider any relevant [mitigating] information offered by the
defendant," McCleskey v. Kemp, supra, at 306 (emphasis added), that the
sentencer must enjoy unconstrained discretion to decide whether any
sympathetic factors bearing on the defendant or the crime indicate that he
does not "deserve to be sentenced to death,"  Penry v. Lynaugh, supra, at
----.  The latter requirement quite obviously destroys whatever rationality
and predictability the former requirement was designed to achieve. {1}
    The Court has attempted to explain the contradiction by saying that the
two requirements serve different functions: the first serves to "narrow"
according to rational criteria the class of offenders eligible for the
death penalty, while the second guarantees that each offender who is
death-eligible is not actually sentenced to death without "an
individualized assessment of the appropriateness of the death penalty."
Penry v. Lynaugh, supra, at ----; see also Zant v. Stephens, 462 U. S., at
878-879.  But it is not "individualized assessment" that is the issue here.
No one asserts that the Constitution permits condemnation en masse.  The
issue is whether, in the process of the individualized sentencing
determination, the society may specify which factors are relevant, and
which are not--whether it may insist upon a rational scheme in which all
sentencers making the individualized determinations apply the same
standard.  That is precisely the issue that was involved in Furman, no more
and no less.  Having held, in Furman, that the aggravating factors to be
sought in the individualized determination must be specified in advance, we
are able to refer to the defendants who will qualify under those factors as
a "class of death eligibles"--from among whom those actually to receive
death will be selected on the basis of unspecified mitigating factors.  But
if we had held in Lockett that the mitigating factors to be sought in the
individualized determination must be specified in advance, we would equally
have been able to refer to the defendants who will qualify under those
factors as a "class of mercy eligibles"--from among whom those actually to
receive mercy will be selected on the basis of unspecified aggravating
factors.  In other words, classification versus individuation does not
explain the opposite treatment of aggravating and mitigating factors; it is
merely one way of describing the result of that opposite treatment.  What
is involved here is merely setting standards for individualized
determinations, and the question remains why the Constitution demands that
the aggravating standards and mitigating standards be accorded opposite
treatment.  It is impossible to understand why.  Since the individualized
determination is a unitary one (does this defendant deserve death for this
crime?) once one says each sentencer must be able to answer "no" for
whatever reason it deems morally sufficient (and indeed, for whatever
reason any one of 12 jurors deems morally sufficient), it becomes
impossible to claim that the Constitution requires consistency and
rationality among sentencing determinations to be preserved by strictly
limiting the reasons for which each sentencer can say "yes."  In fact,
randomness and "freakishness" are even more evident in a system that
requires aggravating factors to be found in great detail, since it permits
sentencers to accord different treatment, for whatever mitigating reasons
they wish, not only to two different murderers, but to two murderers whose
crimes have been found to be of similar gravity.  It is difficult enough to
justify the Furman requirement so long as the states are permitted to allow
random mitigation; but to impose it while simultaneously requiring random
mitigation is absurd.  I agree with Justice White's observation that the
Lockett rule represents a sheer "about-face" from Furman, an outright
negation of the principle of guided discretion that brought us down the
path of regulating capital sentencing procedure in the first place.
Lockett v. Ohio, 438 U. S., at 622 (opinion of White, J.,).
C
    The simultaneous pursuit of contradictory objectives necessarily
produces confusion.  As The Chief Justice has pointed out, in elaborating
our doctrine "the Court has gone from pillar to post, with the result that
the sort of reasonable predictability upon which legislatures, trial
courts, and appellate courts must of necessity rely has been all but
completely sacrificed."  Lockett v. Ohio, supra, at 629 (Rehnquist, J.,
dissenting).  Repeatedly over the past 20 years state legislatures and
courts have adopted discretion-reducing procedures to satisfy the Furman
principle, only to be told years later that their measures have run afoul
of the Lockett principle.  Having said in Furman that unconstrained
discretion in capital sentencing was unacceptable, see Furman v. Georgia,
408 U. S., at 256-257 (Douglas, J., concurring); id., at 309-310 (Stewart,
J. concurring); id., at 311-312 (White, J., concurring), we later struck
down mandatory schemes, adopted in response to Furman, because they
constrained sentencing discretion.  See Woodson v. North Carolina, 428 U.
S. 280 (1976).  Having sustained specific state sentencing schemes in 1976
because they provided the constitutionally necessary degree of "guided
discretion" in the form of objective sentencing criteria, see, e. g.,
Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262
(1976), we later struck down those very schemes because they required the
sentencer to confine itself to the factors contained in those objective
criteria, see Hitchcock v. Dugger, 481 U. S. 393 (1987) (Florida); Penry v.
Lynaugh, 492 U. S. ---- (1989) (Texas).  Having encouraged the States to
adopt the "important additional safeguard against arbitrariness" of
requiring specific jury findings supporting its sentencing decision, Gregg
v. Georgia, 428 U. S., at 198, we later made such findings impossible as to
mitigating circumstances (and thus meaningless as a whole) by prohibiting a
requirement that the jury agree on mitigating circumstances, McKoy v. North
Carolina, 494 U. S. ---- (1990).  For state lawmakers, the lesson has been
that a decision of this Court is nearly worthless as a guide for the
future; though we approve or seemingly even require some sentencing
procedure today, we may well retroactively prohibit it tomorrow.
    In a jurisprudence containing the contradictory commands that
discretion to impose the death penalty must be limited but discretion not
to impose the death penalty must be virtually unconstrained, a vast number
of procedures support a plausible claim in one direction or the other.
Conscientious counsel are obliged to make those claims, and conscientious
judges to consider them.  There has thus arisen, in capital cases, a
permanent flood-tide of stay applications and petitions for certiorari to
review adverse judgments at each round of direct and collateral review,
alleging novel defects in sentencing procedure arising out of some
permutation of either Furman or Lockett.  State courts, attempting to give
effect to the contradictory principles in our jurisprudence and reluctant
to condemn an offender without virtual certainty that no error has been
committed, often suspend the normal rules of procedural bar to give ear to
each new claim that the sentencer's discretion was over- or
under-constrained.  An adverse ruling typically gives rise to yet another
round of federal habeas review--and by the time that is concluded we may
well have announced yet another new rule that will justify yet another
appeal to the state courts.  The effects of the uncertainty and
unpredictability are evident in this Court alone, even though we see only
the tip of a mountainous iceberg.  Since granting certiorari in McKoy v.
North Carolina, 489 U. S. ----, on February 21, 1989 (the first of this
Term's capital cases to have certiorari granted), we have received over 350
petitions for certiorari in capital cases; eight were granted, and 84 were
held for the nine cases granted for this Term; 37 were held for this case
alone.  Small wonder, then, that the statistics show a capital punishment
system that has been approved, in many States, by the democratic vote of
the people, that has theoretically been approved as constitutional by this
Court, but that seems unable to function except as a parody of swift or
even timely justice.  As of May 1990 there were 2,327 convicted murderers
on death row; only 123 have been executed since our 1972 Furman decision.
NAACP Legal Defense and Educational Fund, Death Row, U. S. A. 1 (1990).
Those executions that have been carried out have occurred an average of
eight years after the commission of the capital crime.  See E. Carnes & S.
Stewart, Summary of Post-Furman Capital Punishment Data MDRV VIII
(unpublished report by Alabama Assistant Attorneys General on file with
Harvard Law School Library, 1988), cited in Powell, Commentary, 102 Harv.
L. Rev. 1013, 1038, n. 26 (1989).
    In my view, it is time for us to reexamine our efforts in this area and
to measure them against the text of the constitutional provision on which
they are purportedly based.
II
    The Eighth Amendment, made applicable to the States by the Fourteenth
Amendment, see Robinson v. California, 370 U. S. 660, 666 (1962),
provides:
    "Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted."  U. S. Const., Amdt. 8.

The requirement as to punishments stands in stark contrast to the
requirement for bail and fines, which are invalid if they are "excessive."
When punishments other than fines are involved, the Amendment explicitly
requires a court to consider not only whether the penalty is severe or
harsh, but also whether it is "unusual."  If it is not, then the Eighth
Amendment does not prohibit it, no matter how cruel a judge might think it
to be.  Moreover, the Eighth Amendment's prohibition is directed against
cruel and unusual punishments.  It does not, by its terms, regulate the
procedures of sentencing as opposed to the substance of punishment.  As The
Chief Justice has observed, "[t]he prohibition of the Eighth Amendment
relates to the character of the punishment, and not to the process by which
it imposed."  Gardner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J.,
dissenting).  Thus, the procedural elements of a sentencing scheme come
within the prohibition, if at all, only when they are of such a nature as
systematically to render the infliction of a cruel punishment "unusual."
    Our decision in Furman v. Georgia, 408 U. S. 238 (1972), was arguably
supported by this text.  As I have already described, see Part I-A, supra,
the critical opinions of Justice Stewart and Justice White in that case
rested on the ground that discretionary capital sentencing had made the
death sentence such a random and infrequent event among capital offenders
("wanto[n] and freakis[h]," as Justice Stewart colorfully put it) that its
imposition had become cruel and unusual.  As far as I can discern (this is
not the occasion to explore the subject), that is probably not what was
meant by an "unusual punishment" in the Eighth Amendment--that is to say,
the text did not originally prohibit a traditional form of punishment that
is rarely imposed, as opposed to a form of punishment that is not
traditional.  But the phrase can bear the former meaning.  Moreover, since
in most States, until the beginning of this century, the death penalty was
mandatory for the convictions for which it was prescribed, see H. Bedau,
The Death Penalty in America 10-11 (3d ed. 1982); W. Bowers, Executions in
America 8 (1974), it cannot be said that the Furman interpretation of the
phrase is contradicted by the clear references to a permissible death
penalty in the Constitution, see U. S. Const., Amend. 5; U. S. Const.,
Amend. 14, MDRV 1.  I am therefore willing to adhere to the precedent
established by our Furman line of cases, and to hold that when a State
adopts capital punishment for a given crime but does not make it mandatory,
the Eighth Amendment bars it from giving the sentencer unfettered
discretion to select the recipients, but requires it to establish in
advance, and convey to the sentencer, a governing standard.  See Maynard v.
Cartwright, 486 U. S. 356 (1988); Godfrey v. Georgia, 446 U. S. 420
(1980).
    The Woodson-Lockett line of cases, however, is another matter.  As far
as I can discern, that bears no relation whatever to the text of the Eighth
Amendment.  The mandatory imposition of death--without sentencing
discretion--for a crime which States have traditionally punished with death
cannot possibly violate the Eighth Amendment, because it will not be
"cruel" (neither absolutely nor for the particular crime) and it will not
be "unusual" (neither in the sense of being a type of penalty that is not
traditional nor in the sense of being rarely or "freakishly" imposed).  It
is quite immaterial that most States have abandoned the practice of
automatically sentencing to death all offenders guilty of a capital crime,
in favor of a separate procedure in which the sen tencer is given the
opportunity to consider the appropriateness of death in the individual
case, see Woodson v. North Carolina, 428 U. S., at 294-295; still less is
it relevant that mandatory capital sentencing is (or alleged to be) out of
touch with " `contemporary community values' " regarding the administration
of justice, ibid. (citation omitted).
    I am aware of the argument, see id., at 302-303; Roberts v. Louisiana,
428 U. S., at 333-335 (plurality opinion), that mandatory capital
sentencing schemes may suffer from the same defects that characterize
absolutely discretionary schemes.  In mandatory systems, the argument goes,
juries frequently acquit offenders whom they find guilty but believe do not
deserve the death penalty for their crime; and because this "jury
nullification" occurs without the benefit of any guidance or standards from
the State, the result is the same "arbitrary and capricious imposition of
death sentences" struck down in Furman.  One obvious problem with this
argument is that it proves too much, invalidating Furman at the same time
that it validates Woodson.  If juries will ignore their instructions in
determining guilt in a mandatory capital sentencing scheme, there is no
reason to think they will not similarly chafe at the " `clear and objective
standards' . . . provid[ing] `specific and detailed guidance,' " Godfrey v.
Georgia, supra, at 428 (footnotes omitted), that Furman requires.  The
Furman approach must be preferred, since it is facially implausible that
the risk of arbitrariness arising from juries' ignoring their instructions
is greater than the risk of arbitrariness from giving them no instructions
at all.  The theory of "unusualness" adopted in Furman is tenuous enough
when used to invalidate explicitly conferred stand ardless sentencing
discretion; I am unwilling to extend that theory to situations in which the
sentencer is denied that discretion, on the basis of a conjecture (found
nowhere else in the law) that juries systematically disregard their oaths.
    Despite the fact that I think Woodson and Lockett find no proper basis
in the Constitution, they have some claim to my adherence because of the
doctrine of stare decisis.  I do not reject that claim lightly, but I must
reject it here.  My initial and my fundamental problem, as I have described
it in detail above, is not that Woodson and Lockett are wrong, but that
Woodson and Lockett are rationally irreconcilable with Furman.  It is that
which led me into the inquiry whether either they or Furman was wrong.  I
would not know how to apply them--or, more precisely, how to apply both
them and Furman--if I wanted to.  I cannot continue to say, in case after
case, what degree of "narrowing" is sufficient to achieve the
constitutional objective enunciated in Furman when I know that that
objective is in any case impossible of achievement because of
Woodson-Lockett.  And I cannot continue to say, in case after case, what
sort of restraints upon sentencer discretion are unconstitutional under
Woodson-Lockett when I know that the Constitution positively favors
constraints under Furman.  Stare decisis cannot command the impossible.
Since I cannot possibly be guided by what seem to me incompatible
principles, I must reject the one that is plainly in error.
    The objectives of the doctrine of stare decisis are not furthered by
adhering to Woodson-Lockett in any event.  The doctrine exists for the
purpose of introducing certainty and stability into the law and protecting
the expectations of individuals and institutions that have acted in
reliance on existing rules.  As I have described, the Woodson-Lockett
principle has frustrated this very purpose from the outset-- contradicting
the basic thrust of much of our death penalty jurisprudence, laying traps
for unwary States, and generating a fundamental uncertainty in the law that
shows no signs of ending or even diminishing.
    I cannot adhere to a principle so lacking in support in constitutional
text and so plainly unworthy of respect under stare decisis.  Accordingly,
I will not, in this case or in the future, vote to uphold an Eighth
Amendment claim that the sentencer's discretion has been unlawfully
restricted.
III
    I turn, finally, to petitioner's Eighth Amendment claims in the present
case.
    With respect to the Furman claim, I agree with the Court's analysis and
conclusion, and join those portions of its opinion.  The aggravating
circumstance found to exist in this case, that the murder was committed in
an "especially heinous, cruel or depraved" manner--cruelty being defined as
involving the infliction of mental anguish or physical abuse, and depravity
defined as involving the relishing of the murder or the victim's
suffering--defines with reasonable specificity certain elements that
distinguish the death-eligible offense from other murders.  They are
precise enough, in my view, both to guide the sentencer and to enable
review of the sentence.
    As to petitioner's claim that in two respects the Arizona procedure
deprived the sentencer of discretion to consider all mitigating
circumstances: for the reasons stated above I do not believe that claim, if
correct, states an Eighth Amendment violation.
    I therefore concur in part and concur in the judgment.

 
 
 
 
------------------------------------------------------------------------------
1
    Justice Stevens contends that the purpose of Furman is merely to narrow
the group of crimes (to which the sentencer's unconstrained discretion is
then applied) to some undefined point near the "tip of the pyramid" of
murder--the base of that pyramid consisting of all murders, and the apex
consisting of a particular type crime of murder defined in minute detail.
Post, at ---- (dissenting opinion).  There is, however, no hint in our
Furman jurisprudence of an attempt to determine what constitutes the
critical line below the "tip of the pyramid," and to assess whether either
the elements of the crime are alone sufficient to bring the statute above
that line (in which case no aggravating factors whatever need be specified)
or whether the aggravating factors are sufficient for that purpose.  I read
the cases (and the States, in enacting their post-Furman statutes, have
certainly read them) as requiring aggravating factors to be specified
whenever the sentencer is given discretion.  It is a means of confining the
sentencers' discretion--giving them something specific to look for rather
than leaving them to wander at large among all aggravating circumstances.
That produces a consistency of result which is unachievable--no matter how
narrowly the crime is defined--if they are left to take into account any
aggravating factor at all.  We have, to be sure, held that the discretion-
limiting aggravating factor can duplicate a factor already required by the
definition of the crime, see Lowenfield v. Phelps, 484 U. S. 231 (1988),
but in those circumstances the sentencer's discretion is still focused and
confined.  We have never allowed sentencers to be given complete discretion
without a requisite finding of aggravating factors.  If and when the Court
redefines Furman to permit the latter, and to require an assessment (I
cannot imagine on what basis) that a sufficiently narrow level of the
"pyramid" of murder has been reached, I shall be prepared to reconsider my
evaluation of Woodson and Lockett.





Subject: 88-7351--DISSENT, WALTON v. ARIZONA

 


    SUPREME COURT OF THE UNITED STATES


No. 88-7351



JEFFREY ALAN WALTON, PETITIONER v. ARIZONA

on writ of certiorari to the supreme court of arizona

[June 27, 1990]



    Justice Brennan, with whom Justice Marshall joins, dissenting. {2}
    The Court's most cavalier application today of longstanding Eighth
Amendment doctrines developed over the course of two decades of careful and
sustained inquiry, when added to the host of other recent examples of
crabbed application of doctrine in the death penalty context, see, e. g.,
Blystone v. Pennsylvania, 494 U. S. ---- (1990); Boyde v. California, 494
U. S. ---- (1990); cf. Saffle v. Parks, 494 U. S. ---- (1990); Sawyer v.
Smith, ante, p. ----, suggests that this Court is losing sight of its
responsibility to ensure that the ultimate criminal sanction is meted out
only in accordance with constitutional principle.  While I join Justice
Black mun's dissenting opinions in today's decisions, I also adhere to my
view that the death penalty is in all circumstances a cruel and unusual
punishment:

"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 [Cruel and Unusual Punishments] Clause that even the vilest criminal
remains a human being possessed of common human dignity.'  As such it is a
penalty that `subjects the individual to a fate forbidden by the principle
of civilized treatment guaranteed by the [Clause].'  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 redress for the offense committed against society, adds
instead a second defilement to the first.' "  Gregg v. Georgia, 428 U. S.
153, 230-231 (1976) (dissenting opinion) (citations and footnote omitted).


See Furman v. Georgia, 408 U. S. 238, 257-306 (1972) (concurring opinion).
    Even if I did not believe that the death penalty is wholly inconsistent
with the constitutional principle of human dignity, I would agree that the
concern for human dignity lying at the core of the Eighth Amendment
requires that a decision to impose the death penalty be made only after an
assessment of its propriety in each individual case.

"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 compassionate or mitigating factors
stemming from the diverse frailties of humankind.  It 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 infliction of the penalty of death."  Woodson v. North Carolina, 428
U. S. 280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).


Thus "a system of capital punishment at once [must be] consistent and
principled but also humane and sensible to the uniqueness of the
individual."  Eddings v. Oklahoma, 455 U. S. 104, 110 (1982). {1}
    In the past, "this Court has gone to extraordinary measures to ensure
that the prisoner sentenced to be executed is afforded process that will
guarantee, as much as is humanly possible, that the sentence was not
imposed out of whim, passion, prejudice, or mistake."  Id., at 118
(O'Connor, J., concurring).  But today's decisions reflect, if anything,
the opposing concern that States ought to be able to execute prisoners with
as little interference as possible from our established Eighth Amendment
doctrine.

 
 
 
 
 


------------------------------------------------------------------------------
1
    Justice Scalia's separate opinion dismissing the settled principle
underlying Lockett v. Ohio, 438 U. S. 586 (1978), based on the asser- tion
that this doctrinal principle cannot be reconciled with that underlying
Furman v. Georgia, 408 U. S. 238 (1976), reflects a misdescription and
apparent misunderstanding of our doctrine.  Justice Scalia's concern that
the Lockett principle is not commanded by the explicit text of the Eighth
Amendment has long been rejected by this Court; it is well established that
the Eighth Amendment's proscription of cruel and unusual punishments "must
draw its meaning from the evolving standards of decency that mark the
progress of a maturing society."  Trop v. Dulles, 356 U. S. 86, 101 (1958);
see Weems v. United States, 217 U. S. 349, 378 (1910).  The Lockett and
Furman principles speak to different concerns underlying our notion of
civilized punishment; the Lockett rule flows primarily from the Amendment's
core concern for human dignity, see Woodson v. North Carolina, 428 U. S.
280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), whereas the
Furman principle reflects the understanding that the Amendment commands
that punishment not be meted out in a wholly arbitrary and irrational
manner.  Id., at 303.  Our cases have applied these principles together to
"insis[t] that capital punishment be imposed fairly, and with reasonable
consistency, or not at all."  Eddings v. Oklahoma, 455 U. S. 104, 112
(1982) (emphasis added); see, e. g., Penry v. Lynaugh, 492 U. S. ----, ----
(1989).  See generally post, at 7-11 (Stevens, J., dissenting).

2
    [This opinion applies also to No. 89-189, Lewis v. Jeffers, post, at
----.]





Subject: 88-7351--DISSENT, WALTON v. ARIZONA

 


    SUPREME COURT OF THE UNITED STATES


No. 88-7351



JEFFREY ALAN WALTON, PETITIONER v. ARIZONA

on writ of certiorari to the supreme court of arizona

[June 27, 1990]



    Justice Blackmun, with whom Justice Brennan, Justice Marshall, and
Justice Stevens join, dissenting.
    In my view, two Arizona statutory provisions, pertinent here, run afoul
of the established Eighth Amendment principle that a capital defendant is
entitled to an individualized sentencing determination which involves the
consideration of all relevant mitigating evidence.  The first is the
requirement that the sentencer may consider only those mitigating
circumstances proved by a preponderance of the evidence.  The second is the
provision that the defendant bears the burden of establishing mitigating
circumstances "sufficiently substantial to call for leniency."  I also
conclude that Arizona's "heinous, cruel or depraved" aggravating
circumstance, as construed by the Arizona Supreme Court, provides no
meaningful guidance to the sentencing authority and, as a consequence, is
unconstitutional.
    I therefore dissent from the Court's affirmance of Jeffrey Alan
Walton's sentence of death.

I
    During the past 15 years, this Court's death penalty jurisprudence
consistently has stressed the importance of an individualized-sentencing
process, one that permits "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."  Woodson v. North Carolina,
428 U. S. 280, 303 (1976) (plurality opinion).  Such a procedure is
required because "[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 compassionate or
mitigating factors stemming from the diverse frailties of humankind."  Id.,
at 304.  A plurality of this Court stated in Lockett v. Ohio, 438 U. S.
586, 604 (1978), that a capital sentencer may "not be precluded from
considering, as a mitigating factor, any aspect of a defendant's character
or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death" (emphasis in original).
In Eddings v. Oklahoma, 455 U. S. 104, 114-115 (1982), a majority held that
"[t]he sentencer, and the [state appellate court] on review, may determine
the weight to be given relevant mitigating evidence.  But they may not give
it no weight by excluding such evidence from their consideration."  {1}
The Court, moreover, has insisted that the substance as well as the form of
Lockett must be respected.  See Penry v. Lynaugh, ---- U. S. ----, ----
(1989) (slip op. 13) ("[I]t is not enough simply to allow the defendant to
present mitigating evidence to the sentencer.  The sentencer must also be
able to consider and give effect to that evidence in imposing sentence").
    From those holdings two closely related principles emerge.  The first
is that the "qualitative difference" between death and all other penalties
necessitates a greater degree of "reliability in the determination that
death is the appropriate punishment in a specific case."  Woodson v. North
Carolina, 428 U. S., at 305 (plurality opinion).  The second is that the
particularized sentencing procedure mandated by the Eighth Amendment
requires that the sentencer be allowed to consider "any aspect of a
defendant's character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than death."
Lockett v. Ohio, 438 U. S., at 604 (plurality opinion).  Only if the
defendant is allowed an unrestricted opportunity to present relevant
mitigating evidence will a capital sentencing procedure be deemed
sufficiently reliable to satisfy constitutional standards.  The Court said
in Eddings that "the rule in Lockett recognizes that a consistency produced
by ignoring individual differences is a false consistency."  455 U. S., at
112.
    The Court today upholds an Arizona statute which (a) excludes from the
sentencer's consideration all mitigating circumstances that the defendant
has failed to prove by a preponderance of the evidence, and (b) places upon
the capital defendant the burden of demonstrating that the mitigating
circumstances so proved are "sufficiently substantial to call for
leniency."  The plurality makes no effort to explain how these provisions
are consistent with the Eighth Amendment principles announced in Woodson,
Lockett, and their progeny. {2}  Indeed, the plurality's analysis of these
issues includes virtually no discussion of capital cases, and those that
the majority does discuss are demonstrably inapposite.  Rather, the
plurality relies on "analogous" cases that do not involve the death
penalty.  Its analysis thereby ignores what I had thought to be settled
principles regarding the distinctive nature of capital sentencing.
A
    The Arizona capital sentencing statute flatly provides: "[T]he burden
of establishing the existence of the [mitigating] circumstances included in
subsection G of this section is on the defendant."  Ariz. Rev. Stat. Ann.
MDRV 13-703C (1989).  The Arizona Supreme Court has construed the statute
to require that any mitigating circumstances must be proved by a
preponderance of the evidence.  See, e. g., State v. McMurtrey, 143 Ariz.
71, 73, 691 P. 2d 1099, 1101 (1984).  There can be no doubt that this
provision of Arizona law excludes from the sentencer's consideration
relevant mitigating evidence that might affect the determination whether
the death penalty is appropriate.  Exclusion of that evidence is
unsupported by this Court's decisions and serves no legitimate state
interest.
    The plurality does not analyze this case within the framework
established by our Eighth Amendment decisions.  Rather, the plurality
relies almost exclusively on noncapital cases upholding the State's right
to place upon the defendant the burden of proving an affirmative defense.
See ante, at 8-9.  Reliance on these cases is misplaced, however, since
those decisions rest upon a premise that is wholly inapplicable in the
capital sentencing context.  In Patterson v. New York, 432 U. S. 197
(1977), the Court explained the justification in a noncapital case for
allowing the burden of persuasion as to affirmative defenses to be placed
upon the defendant rather than the State:

"The Due Process Clause, as we see it, does not put New York to the choice
of abandoning these defenses or undertaking to disprove their existence in
order to convict of a crime which otherwise is within its constitutional
powers to sanction by substantial punishment.

    . . . . .



    ". . . [I]n each instance of a murder conviction under the present law,
New York will have proved beyond a reasonable doubt that the defendant has
intentionally killed another person, an act which it is not disputed the
State may constitutionally criminalize and punish.  If the State
nevertheless chooses to recognize a factor that mitigates the degree of
criminality or punishment, we think the State may assure itself that the
fact has been established with reasonable certainty.  To recognize at all a
mitigating circumstance does not require the State to prove its
nonexistence in each case in which the fact is put in issue, if in its
judgment this would be too cumbersome, too expensive, and too inaccurate."
432 U. S., at 207-209 (emphasis added).


The Court's decision thus rested upon an argument that "the greater power
includes the lesser": since the State constitutionally could decline to
recognize the defense at all, it could take the lesser step of placing the
burden of proof upon the defendant.  That reasoning is simply inapposite
when a capital defendant introduces mitigating evidence, since the State
lacks the greater power to exclude the evidence entirely. {3}
    But it makes no sense to analyze petitioner's claim of Lockett error by
drawing on "analogous" cases outside the sphere of capital sentencing.  In
developing the requirement of individualized capital sentencing (with
unlimited presentation of relevant mitigating evidence), this Court has not
purported to rely on principles applicable to criminal prosecutions
generally.  Instead, the Court's Eighth Amendment jurisprudence explicitly
has proceeded from the premise "that death is a punishment different from
all other sanctions in kind rather than degree."  Woodson v. North
Carolina, 428 U. S., at 303-304 (plurality opinion). {4}  To suggest that
the principles announced in Lockett and Eddings are applicable only insofar
as they are consistent with the constitutional rules governing noncapital
cases is to deprive those decisions of all significance.
    Application of the preponderance standard in this context is especially
problematic in light of the fact that the "existence" of a mitigating
factor frequently is not a factual issue to which a "yes" or "no" answer
can be given.  See Stebbing v. Maryland, 469 U. S. 900, 902-904 (1984)
(Marshall, J., dissenting from denial of certiorari).  The statute, for
example, lists as a first mitigating circumstance the fact that "[t]he
defendant's capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law was significantly impaired .
. . ."  Ariz. Rev. Stat. Ann. MDRV 13-703G.1 (1989).  Petitioner offered
evidence of childhood sexual abuse.  Presumably, no individual who suffers
such treatment is wholly unaffected; at the same time, it is rare that such
an individual is so deeply traumatized that his impairment furnishes a
complete defense for his actions.  The question whether an individual's
capacity to behave lawfully is "impaired" is one of degree, not an
either/or propo sition.  The preponderance standard, however, encourages
the sentencer to conclude that unless some vaguely defined threshold of
"significance" has been reached, the evidence of abuse and consequent
impairment cannot be considered at all.
    Indeed, it appears that the Arizona Supreme Court has applied the
statute in just this fashion.  See, e. g., State v. Wallace, 151 Ariz. 362,
369, 728 P. 2d 232, 239 (1986) ("we find that neither defendant's
`difficult earlier years' nor his use of `various drugs' so affected his
capacity to conform to the requirements of law that they constitute
mitigating factors under MDRV 13-703(G)(1)"), cert. denied, 483 U. S. 1011
(1987); State v. Rossi, 146 Ariz. 359, 367, 706 P. 2d 371, 379 (1985)
(intoxication or duress is not a mitigating circumstance unless it is
substantial); State v. Woratzeck, 134 Ariz. 452, 458, 657 P. 2d 865, 871
(1982) (same); State v. Nash, 143 Ariz. 392, 406, 694 P. 2d 222, 236 (State
acknowledged some degree of mental impairment but argued that "it was not
significant enough to be a mitigating circumstance"), cert. denied, 471 U.
S. 1143 (1985).  The Arizona Supreme Court has not simply held that duress
or impairment which falls below the threshold should be given reduced
weight at the final stage of the sentencing process, when aggravating and
mitigating circumstances are balanced.  Rather, it has held that duress or
impairment which falls below the threshold is not a mitigating factor.  It
is therefore misleading, in many instances, to characterize an Arizona
court's rejection of proffered mitigating evidence as a determination that
the evidence should not be credited.  The trial judge instead may be acting
upon the belief that a defendant's impairment, though proved, is not
"significant" within the meaning of the statute.  Thus, under Arizona law,
a sentencing judge is entitled to give no weight to mitigating evidence on
the ground that the evidence is not mitigating enough.  Under the guise of
a burden of proof, the statute provides that some mitigating evidence is
not to be considered at all. {5}
    Even when the trial judge's rejection of a particular mitigating
circumstance is based on credibility determinations, application of the
preponderance standard is unwarranted.  Mitigating evidence that fails to
meet this standard is not so unreliable that it has no proper place in the
sentencing decision: decisions as to punishment, like decisions as to guilt
or innocence, will often be based on the cumulative effect of several
pieces of evidence, no one of which by itself is fully persuasive.  The
problems with the preponderance standard are compounded when the defendant
presents several possible mitigating factors.  A trial judge might be 49%
convinced as to each of 10 mitigating circumstances; yet he would be forced
to conclude, as a matter of law, that there was no mitigation to weigh
against the aggravating factors.
    The Arizona Supreme Court has articulated two closely related
justifications for placing upon the capital defendant the burden of proving
that a mitigating circumstance exists.  The court has asserted that
"[f]acts which would tend to show mitigation are peculiarly within the
knowledge of a defendant," State v. Smith, 125 Ariz. 412, 416, 610 P. 2d
46, 50 (1980), and that "[t]o require the State to negate every mitigating
circumstance would place an impermissible burden on the State," State v.
Watson, 120 Ariz. 441, 447, 586 P. 2d 1253, 1259 (1978), cert. denied, 440
U. S. 924 (1979).  Until today, this Court has never identified a state
interest which outweighs the capital defendant's right to unrestricted
presentation of mitigating evidence.  Even if such an interest could exist,
however, the interests advanced by the State in support of the
preponderance standard do not withstand scrutiny.
    The State's justifications are not without force when a criminal
defendant offers an affirmative defense in a trial to determine guilt or
innocence.  A jury's decision as to an affirmative defense is a binary
choice: either the defense is accepted or it is not.  Since the jury's
acceptance of the defense automatically results in an acquittal (or in
conviction on a lesser charge), the State may suffer real prejudice if the
defense is established on the basis of minimally persuasive evidence which
the State has no practical opportunity to rebut-- especially if it is
difficult to anticipate the defenses that a particular individual may
offer.  In contrast, if a capital sentencer believes that certain
mitigating evidence has some persuasive value, but does not meet the
preponderance standard, the sentencer simply may give that evidence reduced
weight--weight proportional to its persuasiveness--at the final balancing
stage. {6}  No legitimate interest is served by forbidding the sentencer to
give such evidence any effect at all.
    The Arizona rule at issue here falls well within the prohibition
announced in Lockett and its progeny.  The statute defines a wide range of
relevant mitigating evidence--evidence with some degree of persuasiveness
which has not been proved by a preponderance--that cannot be given effect
by the capital sentencer.  That rule finds no support in this Court's
precedents, and it serves no legitimate governmental interest.  I therefore
conclude that the Arizona death-penalty statute, as construed by the
Supreme Court of Arizona, impermissibly limits the sentencer's
consideration of relevant mitigating evidence, and thereby violates the
Eighth Amendment. {7}

B
    I also believe that the Constitution forbids the State of Arizona to
place upon the capital defendant the burden of proving mitigating
circumstances that are "sufficiently substantial to call for leniency."
Ariz. Rev. Stat. Ann. MDRV 13-703E (1989).  Once an aggravating
circumstance has been established, the Arizona statute mandates that death
is to be deemed the appropriate penalty unless the defendant proves
otherwise.  That statutory provision, in my view, establishes a
"presumption of death"  {8} in violation of the Eighth Amendment.
    The Arizona Supreme Court repeatedly has indicated that a defendant's
mitigating evidence will be deemed "sufficiently substantial to call for
leniency" only if the mitigating factors "outweigh" those in aggravation.
{9}  That court has sustained the requirement on the ground that "[w]hen
the issue of guilt is settled and only the question of punishment remains,
due process is not offended by requiring the already guilty defendant to
carry the burden of showing why he should receive leniency."  State v.
Watson, 120 Ariz., at 447, 586 P. 2d, at 1259.  If the mitigating and
aggravating circumstances are in equipoise, the statute requires that the
trial judge impose capital punishment.  The assertion that a sentence of
death may be imposed in such a case runs directly counter to the Eighth
Amendment requirement that a capital sentence must rest upon a
"determination that death is the appropriate punishment in a specific
case."  Woodson v. North Carolina, 428 U. S., at 305 (plurality opinion).
    The plurality takes a hardline approach and makes little effort to
ground its holding on our Eighth Amendment jurisprudence.  In support of
its position, the plurality cites only two very recent capital cases,
Blystone v. Pennsylvania, ---- U. S. ---- (1990), and Boyde v. California,
---- U. S. ---- (1990).  Reliance even on these precedents is misplaced.
The statutes upheld in those cases provided that the death penalty would be
imposed "only after a determination that the aggravating circumstances
outweigh the mitigating circumstances present in the particular crime
committed by the particular defendant, or that there are no such mitigating
circumstances."  Blystone, ---- U. S., at ---- (slip op. 5-6).  In neither
Boyde nor Blystone did the challenged statute require a capital sentence
when aggravating and mitigating factors are evenly balanced.  Those
decisions simply do not speak to the issue posed by the Arizona statute:
whether the State permissibly may place upon the capital defendant the
burden of demonstrating that a sentence of death is not appropriate.
    The plurality does not attempt to explain why Arizona may require a
capital sentence in a case where aggravating and mitigating circumstances
are evenly balanced. {10}  Indeed, the plurality does not even acknowledge
that this is the dispositive question.  Instead, it offers only a
conclusory assertion: "So long as a State's method of allocating the
burdens of proof does not lessen the State's burden to prove every element
of the offense charged, or in this case to prove the existence of
aggravating circumstances, a defendant's constitutional rights are not
violated by placing on him the burden of proving mitigating circumstances
sufficiently substantial to call for leniency."  Ante, at 9.  One searches
in vain for any hint of a limiting principle.  May a State require that the
death penalty be imposed whenever an aggravating factor is established and
mitigating circumstances do not "substantially outweigh" those in
aggravation?  May a state statute provide that a death sentence is
presumptively appropriate whenever an aggravating circumstance is proved,
and that the presumption can be rebutted only by a showing that mitigating
circumstances are "extraordinarily great"?  These formulations would appear
to satisfy the plurality's test: viz., that the State is required to
establish an aggravating circumstance, and no mitigating evidence is
excluded from the sen tencer's consideration. {11}  But the right to
present mitigating evidence is rendered all but meaningless if the rules
that guide the sentencer's deliberations virtually ensure that the
mitigating evidence will not change the outcome. {12}
    Like the plurality's analysis of the requirement that mitigating
circumstances be proved by a preponderance of the evidence, its approval of
this provision appears to rest upon an analogy between mitigating evidence
in capital sentencing and affirmative defenses in noncapital cases.  In
noncapital cases, of course, the States are given broad latitude to
sacrifice precision for predictability by imposing determinate sentences
and restricting the defendant's ability to present evidence in mitigation
or excuse.  If the States were similarly free to make capital punishment
mandatory for specified crimes, and to prohibit the introduction of
mitigating evidence or declare such evidence to be irrelevant, the
plurality's reasoning today would be unassailable.  There then could be no
objection to a sentencing scheme which permitted a defendant to argue that
the death penalty was inappropriate in his case, but placed upon his
shoulders the burden of persuading the sentencer.  This Court, however,
repeatedly has recognized that the "qualitative difference between death
and other penalties calls for a greater degree of reliability when the
death sentence is imposed," Lockett v. Ohio, 438 U. S., at 604 (plurality
opinion), and that in capital cases "the punishment should be directly
related to the personal culpability of the defendant," Penry v. Lynaugh,
---- U. S., at ---- (slip op. 21).  I see no way that these principles can
be squared with a capital sentencing scheme which provides that doubtful
cases should be resolved in favor of a sentence of death.  I therefore
conclude that the Constitution bars Arizona from placing upon a capital
defendant the burden of proving that mitigating circumstances are
"sufficiently substantial to call for leniency."
III
    In Godfrey v. Georgia, 446 U. S. 420 (1980), we considered Georgia's
"outrageously or wantonly vile, horrible or inhuman" aggravating
circumstance.  The plurality concluded: "There is nothing in these few
words, standing alone, that implies any inherent restraint on the arbitrary
and capricious infliction of the death sentence.  A person of ordinary
sensibility could fairly characterize almost every murder as `outrageously
or wantonly vile, horrible and inhuman.' "  Id., at 428-429.  Two terms
ago, in Maynard v. Cartwright, 486 U. S. 356 (1988), the Court unanimously
struck down an Oklahoma death sentence based in part upon that State's
"especially heinous, atrocious, or cruel" aggravating circumstance.  The
Court noted that "the language of the Oklahoma aggravating circumstance at
issue . . . gave no more guidance than the `outrageously or wantonly vile,
horrible or inhuman' language that the jury returned in its verdict in
Godfrey."  Id., at 363-364.
    The Arizona statute at issue today lists as an aggravating circumstance
the conclusion that "[t]he defendant committed the offense in an especially
heinous, cruel or depraved manner."  Ariz. Rev. Stat. Ann. MDRV 13-703F.6
(1989) (the F6 circumstance).  The Arizona Supreme Court consistently has
held that "[t]hese terms are considered disjunctive; the presence of any
one of three factors is an aggravating circumstance."  State v. Beaty, 158
Ariz. 232, 242, 762 P. 2d 519, 529 (1988), cert. denied, ---- U. S. ----
(1989).  At the sentencing phase in the present case, the State relied
primarily on medical evidence detailing the injuries that the victim Powell
suffered when he regained consciousness after the shooting. {13}  The trial
judge's sentencing order stated that he found that Walton had "committed
the offense in an extremely heinous, cruel or depraved manner," App. 56,
but did not specify the basis for that finding.  In its "independent
review" of the capital sentence, the Arizona Supreme Court held that the F6
circumstance was not supported by evidence of Powell's suffering after the
shooting, since Walton could not have foreseen that Powell would survive
his wound.  The court found, however, that the murder was especially cruel
since "Powell suffered great mental anguish both during the car ride when
his fate was uncertain and in his final march into the desert when his fate
had become certain."  159 Ariz. 571, 587, 769 P. 2d 1017, 1033 (1989).  The
court also indicated that a finding of depravity would be supported by
Walton's comment some hours after the shooting that he had "never seen a
man pee in his pants before."  Ibid.
    In sustaining Walton's sentence of death, the majority offers two
principal grounds upon which, it says, Godfrey and Maynard may be
distinguished.  First, the majority points out that capital sentencing in
Arizona is conducted by a trial judge who is presumed to be aware of any
limiting construction announced by the State Supreme Court.  Ante, at
11-12.  Second, the majority notes that the Arizona Supreme Court itself
"purport[ed] to affirm the death sentence by applying a limiting definition
of the aggravating circumstance to the facts presented."  Ante, at 12.  In
my view, neither of these factors supports the Court's decision to affirm
petitioner's death sentence.

A
    Unlike a jury, a sentencing judge is presumed to know the law as stated
in the controlling opinions of the State Supreme Court.  Even if the
aggravating circumstance is vague on its face, the sentence will be valid
if the judge's discretion has been suitably channeled by the "instructions"
provided by the appellate court's construction of the statute.  The trial
judge's familiarity with the State Supreme Court's opinions, however, will
serve to narrow his discretion only if that body of case law articulates a
construction of the aggravating circumstance that is coherent and
consistent, and that meaningfully limits the range of homicides to which
the aggravating factor will apply. {14}  One therefore would expect the
majority to analyze Arizona Supreme Court decisions issued prior to the
imposition of petitioner's sentence (January 27, 1987), in order to
determine whether the judge who sentenced Walton to death can be presumed
to have acted on the basis of a constitutionally sufficient limiting
construction of the aggravating factor.  The Court, however, cites no
Arizona cases at all, justifying the omission as a refusal to second-guess
the State Supreme Court's proportionality review.  Ante, at 14.  The Court
thus distinguishes Godfrey and Maynard on the ground that Arizona
sentencing judges are presumed to read and be guided by the opinions of the
Arizona Supreme Court, yet insists, as a matter of principle, that it is
barred from determining whether those opinions furnish constitutionally
adequate guidance.  This, it seems to me, is strange and unusual reasoning
indeed. {15}
    Had the majority examined the Arizona Supreme Court's application of
the "especially heinous, cruel or depraved" aggravating circumstance, it
would have been hard-pressed to conclude that the state court has placed
meaningful limitations on the scope of the F6 factor.  The Arizona Supreme
Court attempted to define the statutory terms in State v. Knapp, 114 Ariz.
531, 562 P. 2d 704 (1977), cert. denied, 435 U. S. 908 (1978).  The court
there stated: "The words `heinous, cruel or depraved' have meanings that
are clear to a person of average intelligence and understanding."  Id., at
543, 562 P. 2d, at 716.  The court then offered definitions culled from
Webster's Third New International Dictionary: "heinous" was defined as
"hatefully or shockingly evil: grossly bad"; "cruel" as "disposed to
inflict pain esp. in a wanton, insensate or vindictive manner: sadistic";
and "depraved" as "marked by debasement, corruption, perversion or
deterioration."  Ibid. {16}  The court explained: "What our legislature
intended to include as an aggravating circumstance was a killing wherein
additional circumstances of the nature enumerated above set the crime apart
from the usual or the norm."  Ibid.
    In State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert. denied, 461 U.
S. 971 (1983), the Arizona Supreme Court reviewed its prior decisions
construing the F6 factor.  The court explained that "cruelty involves the
pain and distress visited upon the victims, and that heinous and depraved
go to the mental state and attitude of the perpetrator as reflected in his
words and actions."  Id., at 51, 659 P. 2d, at 10. {17}  The court also
listed five factors that, in prior cases, had supported a finding that a
particular killing was especially heinous or depraved.  These factors were
(1) "the apparent relishing of the murder by the killer," (2) "the
infliction of gratuitous violence on the victim," (3) "the needless
mutilation of the victim," (4) "the senselessness of the crime," and (5)
"the helplessness of the victim."  Id., at 52, 659 P. 2d, at 11.  The court
did not disavow the Knapp definitions; to the contrary, it cited those
definitions with approval.  Id., at 51, 659 P. 2d, at 10.  Nor did the
court hold that a murder could be deemed especially heinous or depraved
only when one of these five factors was present.  Rather, the court stated:
"Where no circumstances, such as the specific factors discussed above,
separate the crime from the `norm' of first degree murders, we will reverse
a finding that the crime was committed in an `especially heinous, cruel, or
depraved manner.' "  Id., at 53, 659 P. 2d, at 12 (emphasis added).
    The principles announced in Gretzler have failed to place meaningful
limitations on the application of the F6 aggravating circumstance.  Since
its decision in Gretzler, the Arizona Supreme Court has continued to
identify new factors which support a finding that a particular murder was
heinous or depraved.  The court, for example, has held that heinousness or
depravity was shown in part by the age of the victim, see State v. Wallace,
151 Ariz. 362, 368, 728 P. 2d 232, 238 (1986) ("the fact that defendant
killed two children, with whom he admittedly had no dispute and who posed
no danger to him, is additional evidence of his `shockingly evil state of
mind' "), cert. denied, 483 U. S. 1011 (1987); State v. Zaragoza, 135 Ariz.
63, 69, 659 P. 2d 22, 28  ("The victim in this case was 78 years old"),
cert. denied, 462 U. S. 1124 (1983); by the fact the murder was committed
to eliminate a witness, see State v. Correll, 148 Ariz. 468, 481, 715 P. 2d
721, 734 (1986); State v. Gillies, 142 Ariz. 564, 570, 691 P. 2d 655, 661
(1984), cert. denied, 470 U. S. 1059 (1985); State v. Smith, 141 Ariz. 510,
511-512, 687 P. 2d 1265, 1266-1267 (1984); by the fact the victim had been
kind to the killer, State v. Fisher, 141 Ariz. 227, 252, 686 P. 2d 750,
775, cert. denied, 469 U. S. 1066 (1984); by the fact the killer used
"special bullets . . . designed to inflict greater tissue damage," State v.
Rossi, 146 Ariz. 359, 365, 706 P. 2d 371, 377 (1985), or "intentionally and
repeatedly fir[ed] a high-powered, destructive weapon at the victim," State
v. Chaney, 141 Ariz. 295, 313, 686 P. 2d 1265, 1283 (1984); by the fact
"the victim was bound to an extent far greater than was necessary to
achieve" the purpose of preventing her escape, State v. Villafuerte, 142
Ariz. 323, 331, 690 P. 2d 42, 50 (1984), cert. denied, 469 U. S. 1230
(1985); or by the killer's "total disregard for human life," State v.
Correll, 148 Ariz., at 481, 715 P. 2d, at 734.  The Arizona Supreme Court
has not purported to announce necessary conditions for a finding of
heinousness or depravity.  Instead, the court has observed: "Our previous
cases have approved findings of heinous or depraved conduct where the
perpetrator acted with gratuitous violence, relished the killing or in some
other way acted in such a fashion that his acts set him apart from the
`norm' of first degree murderers."  State v. Johnson, 147 Ariz. 395, 401,
710 P. 2d 1050, 1056 (1985) (emphasis added).
    Indeed, there would appear to be few first-degree murders which the
Arizona Supreme Court would not define as especially heinous or
depraved--and those murders which do fall outside this aggravating
circumstance are likely to be covered by some other aggravating factor.
Thus, the court will find heinousness and depravity on the basis of
"gratuitous violence" if the murderer uses more force than necessary to
kill the victim, see State v. Summerlin, 138 Ariz. 426, 436, 675 P. 2d 686,
696 (1983); State v. Ceja, 126 Ariz. 35, 40, 612 P. 2d 491, 496 (1980), but
the murder will be deemed cruel if the killer uses insufficient force and
the victim consequently dies a lingering death, see State v. Chaney, 141
Ariz., at 312, 686 P. 2d, at 1282.  A determination that a particular
murder is "senseless" will support a finding of depravity; but a murder to
eliminate a witness is also depraved, a murder for pecuniary gain is
covered by a separate aggravating circumstance, {18} and evidence showing
that the defendant killed out of hatred for the victim or a desire for
revenge may be used to buttress the court's conclusion that the killer
"relished" the crime.  See State v. Jeffers, 135 Ariz. 404, 430, 661 P. 2d
1105, 1131, cert. denied, 464 U. S. 865 (1983). {19}  In State v. Wallace,
151 Ariz. 362, 368, 728 P. 2d 232, 238 (1986), cert. denied, 483 U. S. 1011
(1987), the court's determination that the crime was "senseless" (and
therefore heinous and depraved) was based in part on the fact that the
defendant "steadfastly maintains there was no reason or justification for
what he did"--this in a case where the defendant argued that his remorse
for the crime constituted a mitigating factor.
    I must also conclude that the Arizona Supreme Court's construction of
"cruelty" has become so broad that it imposes no meaningful limits on the
sentencer's discretion.  The court in State v. Knapp, 114 Ariz. 531, 543,
562 P. 2d 704, 716 (1977), cert. denied, 435 U. S. 908 (1978), used a
dictionary definition to regard "cruel" as "disposed to inflict pain esp.
in a wanton, insensate or vindictive manner: sadistic."  This might have
provided the starting point for a limiting construction that would have
meaningfully distinguished the most egregious murders.  This Court in
Maynard expressed apparent approval of a construction that would limit the
aggravating circumstance to murders involving "torture or serious physical
abuse."  486 U. S., at 364; accord, Godfrey v. Georgia, 446 U. S., at 431
(plurality opinion).  And I have no quarrel with the proposition that a
murder which is preceded by the deliberate infliction of gratuitous
suffering is more blameworthy than one which is not.
    The Arizona Supreme Court's later decisions, however, made it clear
that the murder which is "especially cruel" is the norm rather than the
exception.  The application of this circumstance has been expanded to cover
any murder in which the victim is shown to have experienced fear or
uncertainty as to his ultimate fate. {20}  The Arizona Supreme Court has
not required that the defendant must have deliberately delayed or
protracted the killing for the purpose of causing the victim mental
anguish.  Nor has the court required that the period of fear or uncertainty
be of extended duration: the court has made findings of cruelty in cases
where that period was brief. {21}  Indeed, in explaining the sorts of
murder that would not be especially cruel, the Arizona Supreme Court has
repeatedly referred to killings in which the victim was not conscious, see,
e. g., State v. Beaty, 158 Ariz. 232, 242, 762 P. 2d 519, 529 (1988) ("[T]o
suffer pain or distress, the victim must be conscious at the time the
offense is committed.  If the evidence is inconclusive on consciousness,
the factor of cruelty cannot exist"), cert. denied, ---- U. S. ---- (1989),
{22} and has explained that the victim of an "especially cruel" killing is
"to be contrasted with the individual who is killed instantly without
knowing what happened."  State v. Gillies, 142 Ariz. 564, 570, 691 P. 2d
655, 661 (1984), cert. denied, 470 U. S. 1059 (1985).  I do not believe
that an aggravating factor which requires only that the victim be conscious
and aware of his danger for some measurable period before the killing
occurs can be said to provide a "principled way to distinguish this case,
in which the death penalty was imposed, from the many cases in which it was
not."  Godfrey v. Georgia, 446 U. S., at 433 (plurality opinion).  And I am
entirely baffled by the majority's assertion that this construction of the
aggravating circumstance is "virtually identical," ante, at 13, to a
requirement of torture or serious physical abuse. {23}
    The majority is correct in asserting that, in the absence of evidence
to the contrary, the trial judge who sentenced petitioner to death must be
presumed to have been aware of the manner in which these statutory terms
had been construed by the Arizona Supreme Court.  That judge's familiarity
with the applicable precedents, however, could not possibly have served to
guide or channel his sentencing discretion.  The entire body of Arizona
case law, like the bare words of the statute, provided "no principled way
to distinguish this case" from other homicides where capital sentences were
not imposed.  Under this Court's decisions in Godfrey and Maynard, the
standards by which the trial court sentenced Walton to death were
constitutionally deficient.

B
    Relying on Clemons v. Mississippi, ---- U. S. ---- (1990), the majority
also contends that "a state appellate court may itself determine whether
the evidence supports the existence of the aggravating circumstance as
properly defined . . . [T]he Arizona Supreme Court has sought to give
substance to the operative terms, and we find that its construction meets
constitutional requirements."  Ante, at 12-13.  The Court thus holds that,
even if the trial-level sentencing procedure failed to satisfy the Eighth
Amendment, Walton's sentence nevertheless may stand because the appellate
court, applying a satisfactory limiting construction, independently
determined that the murder was especially cruel.  For three independent
reasons, I cannot accept that conclusion.
    (1) If the F6 factor and the prior decisions of the Arizona Supreme
Court failed to provide sufficient guidance to the trial judge, the
appellate court's conclusion that this murder fell within some narrow
definition of "cruel" could not eliminate the possibility that the trial
court, in balancing aggravating and mitigating circumstances, had relied on
factors lying outside this narrow definition.  Affirmance of Walton's death
sentence depends not only on the Arizona Supreme Court's determination that
this murder was especially cruel, but also upon its conclusion that the
mitigating factors did not outweigh those in aggravation.  I adhere to the
view, expressed in the separate opinion in Clemons, ---- U. S., at ----,
which three other Justices joined, that an appellate court is incapable of
finding and balancing aggravating and mitigating factors in a manner that
is sufficiently reliable to satisfy the Eighth Amendment. {24}  Indeed, the
Arizona Supreme Court's treatment of the record in this case hardly
provides support for those Members of this Court--a bare majority--who now
would entrust the task of capital sentencing to an appellate tribunal.  The
state court's conclusion that the murder was especially cruel was based in
large part on its assertions that Powell "was so clearly terrified by the
time they stopped that [one of the assailants] tried to reassure him that
they would not hurt him" and that during the final march into the desert
the victim "begged the defendant not to kill him."  159 Ariz. 571, 587, 769
P. 2d 1017, 1033 (1989).  The court's discussion includes no citations to
the record (which furnishes frail support for the court's characterization
of the events), and appears to be based primarily on a misreading of the
State's appellate brief. {25}  Given the institutional limitations of
appellate courts generally, and the questionable treatment of the facts by
the Arizona Supreme Court in this case, I cannot agree that the appellate
sentencing here was sufficiently reliable to meet the standards of the
Eighth Amendment. {26}
    (2) In Clemons, this Court stated that, insofar as the Federal
Constitution is concerned, a state appellate court may determine for itself
whether a capital sentence is warranted when the trial-level sentencing
proceeding has been tainted by constitutional error.  Whether the supreme
court of a particular State possesses that power, however, is a matter of
state law. {27}  The Arizona Supreme Court has taken obviously inconsistent
positions on the question whether trial- level error in capital sentencing
necessitates a remand, or whether the error may be cured by the appellate
court's independent review.  Compare State v. Wallace, 151 Ariz. 362, 369,
728 P. 2d 232, 239 (1986) ("As we have set aside the finding of pecuniary
gain, we must now allow the trial court another opportunity to exercise its
sentencing discretion and reweigh the remaining aggravating and mitigating
factors"), cert. denied, 483 U. S. 1011 (1987); State v. Rossi, 146 Ariz.,
at 368, 706 P. 2d, at 380 ("Because we believe the trial judge used the
wrong standard for determining and applying mitigating factors, we must
vacate defendant's death sentence and remand for resentencing"); State v.
McMurtrey, 143 Ariz. 71, 73, 691 P. 2d 1099, 1101 (1984) ("Because the
trial judge imposed upon the defendant a more onerous burden of proof in
determining the existence of mitigating circumstances, the matter will have
to be remanded for resentencing"); State v. Gillies, 135 Ariz. 500, 516,
662 P. 2d 1007, 1023 (1983) (court remanded for resentencing after three of
four aggravating circumstances found by the trial judge were invalidated on
appeal), with State v. Rockwell, 161 Ariz. 5, 15-16, 775 P. 2d 1069,
1079-1080 (1989) (court invalidated two of three aggravating circumstances
and concluded that the mitigating evidence outweighed the remaining
aggravating factor); State v. Poland, 144 Ariz. 388, 407, 698 P. 2d 183,
202 (1985) ("The finding that the murders were committed in an `especially
heinous, cruel or depraved manner' is set aside, but the findings as to the
other aggravating circumstances are affirmed.  No mitigating circumstances
sufficiently substantial to call for leniency have been shown"); State v.
James, 141 Ariz. 141, 148, 685 P. 2d 1293, 1300 (court struck down one
aggravating factor but upheld the death sentence on the ground that
"[t]here is [another] aggravating circumstance and no mitigating
circumstances sufficiently substantial to call for leniency"), cert.
denied, 469 U. S. 990 (1984); State v. Blazak, 131 Ariz. 598, 604, 643 P.
2d 694, 700 (one aggravating factor invalidated, but death sentence upheld
because "[e]ven in the absence of this aggravating circumstance, there are
still enough aggravating circumstances that cannot be overcome by the
mitigating circumstances"), cert. denied, 459 U. S. 882 (1982). {28}  It
simply is not clear whether the Arizona Supreme Court regards itself as
having the power to uphold a capital sentence on the basis of its own
comparison of aggravating and mitigating circumstances when the sentencing
judge has relied in part upon an invalid aggravating factor.
    In this case, as in all capital cases, the Arizona Supreme Court
performed an "independent review" of the trial-level sentencing process.
The Arizona Supreme Court consistently has maintained: "Unlike appellate
review of non-capital crimes, our duty on review of the death penalty is to
conduct an independent examination of the record to determine whether the
death penalty was properly imposed."  State v. Schad, 129 Ariz. 557, 573,
633 P. 2d 366, 382 (1981), cert. denied, 455 U. S. 983 (1982).  The
independent review performed by the Arizona Supreme Court in capital cases,
however, is quite different from appellate "reweighing" as that term is
used in Clemons.  The Arizona court's review does not proceed from the
premise that errors in the trial-level sentencing process can be cured by
the State Supreme Court's determination that death is the appropriate
penalty.  Rather, that review historically has been explained as an
additional level of protection for the defendant, a means of ensuring that
a trial judge's sentence of death is subjected to rigorous scrutiny.  See
State v. Richmond, 114 Ariz. 186, 196, 560 P. 2d 41, 51 (1976) ("the
gravity of the death penalty requires that we painstakingly examine the
record to determine whether it has been erroneously imposed"), cert.
denied, 433 U. S. 915 (1977).  Under Arizona law, the trial court is the
sentencer, and the appellate court's review is intended to ensure that
trial-level functions were properly carried out.  Indeed, the Arizona
Supreme Court has resisted analogies between its own independent review and
the initial trial-level sentencing process: "While we have an independent
duty of review, we perform it as an appellate court, not as a trial court .
. . .  We hold, therefore, that the Arizona procedure is not a single
indivisible hearing, but instead resembles a trial on the issue of life or
death followed by the utilization of this court's appellate process . . ."
State v. Rumsey, 136 Ariz. 166, 173, 665 P. 2d 48, 55 (1983). {29}  Today's
majority indicates, however, that the Arizona Supreme Court's independent
review may serve as a substitute for a constitutionally adequate
trial-level sentencing proceeding, despite the fact that the State Supreme
Court did not believe that any trial-level error had occurred and regarded
itself as affirming the sentencing decision of the lower court.
    Whether or not the Arizona Supreme Court possesses the power to
"reweigh" evidence in order to cure trial-level error, it is clear that the
court did not purport to exercise that power in this case.  The court did
not suggest that the trial judge's finding of the F6 circumstance was
constitutionally suspect.  The Arizona Supreme Court made independent
determinations as to aggravating and mitigating circumstances, but these
findings were plainly intended to supplement rather than to replace the
findings of the trial court.  That this is a distinction with a difference
should be clear to the present majority from this Court's opinion in
Caldwell v. Mississippi, 472 U. S. 320 (1985).  In Caldwell we invalidated
a capital sentence imposed by a jury which had been incorrectly informed
that its verdict was only a "recommendation."  We stated that "it is
constitutionally impermissible to rest a death sentence on a determination
made by a sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant's death rests elsewhere."
Id., at 328-329.  The same reasoning should apply here.  Just as a jury's
sentence of death may not stand if the jury believed that it was merely
recommending capital punishment, the Arizona Supreme Court's independent
determination that death is appropriate cannot cure trial-level error if
the appellate court believed incorrectly that it was simply affirming a
constitutionally valid sentence imposed by the trial judge.
    Thus, even if I could accept the majority's conclusion that appellate
resentencing can cure constitutional defects in the trial-level procedure,
I could not agree that the Arizona Supreme Court has purported to exercise
that power here.  To conclude that Walton's death sentence may stand,
despite constitutional defects in the trial-level sentencing process, it is
not enough for the majority to say that the Constitution permits a state
appellate court to reweigh valid aggravating and mitigating factors.  The
majority must also be prepared to assert with reasonable assurance that the
Arizona Supreme Court would have chosen to affirm the death sentence on the
basis of its own reweighing if it had recognized that the trial-level
procedure was defective.  Given the Arizona court's inconsistent treatment
of the reweighing issue, no such assertion is possible.  In holding that
the appellate court's independent review can save the sentence even if the
trial judge received insufficient guidance, the majority affirms a decision
that the Arizona Supreme Court never made.
    (3) Even if I believed that appellate resentencing could cure
trial-level error, and that the Arizona Supreme Court can properly be
regarded as the sentencer in this case, I would still conclude that
petitioner's sentence must be vacated.  The F6 aggravating factor, as
construed by the State Supreme Court, sweeps so broadly that it includes
within its reach virtually every homicide.  The appellate court's
application of the statutory language simply provides no meaningful basis
on which a defendant such as Walton can be singled out for death.
    Indeed, my conclusion that the sentence imposed by the appellate court
is invalid follows almost necessarily from my belief that the trial-level
sentencing was constitutionally flawed. {30}  The defective nature of the
trial court's sentence did not stem from the judge's failure to abide by
limitations announced by the Arizona Supreme Court.  Rather, the
trial-level sentencing procedure was defective because, even assuming that
the trial judge correctly applied the relevant precedents, those decisions
had failed to articulate a constitutionally sufficient narrowing
construction of the statutory language.  In the two years between the trial
court's imposition of sentence and its own affirmance, the Arizona Supreme
Court did not purport to narrow the scope of the F6 aggravating factor.  It
therefore is difficult to see how any trial-level error could have been
cured by the appellate court's application of the same legal rules that the
trial judge is presumed to have followed.
    The majority concedes, as it must, that the statutory language is
unconstitutionally vague under Godfrey and Maynard.  The majority therefore
recognizes that the validity of the F6 factor depends upon the construction
given it by the Arizona Supreme Court.  I do not see how the adequacy of
that construction can be determined other than through examination of the
body of state court precedents--an examination that the majority
conspicuously declines to undertake.  Because the Arizona Supreme Court has
utterly failed to place meaningful limits on the application of this
aggravating factor, a sentence based in part upon the F6 circumstance
should not stand. {31}

III
    Earlier this Term the very same majority of this Court severely
restricted the regime of federal habeas corpus that had previously helped
to safeguard the constitutional rights of criminal defendants, including
those accused of capital crimes.  See Butler v. McKellar, ---- U. S. ----
(1990); Saffle v. Parks, ---- U. S. ---- (1990).  Today this majority
serves notice that capital defendants no longer should expect from this
Court on direct review a considered examination of their constitutional
claims.  In adjudicating claims that will mean life or death for convicted
inmates in Arizona and elsewhere, the majority makes only the most
perfunctory effort to reconcile its holding with this Court's prior Eighth
Amendment jurisprudence.  Nor does the majority display any recognition
that a decision concerning the constitutionality of a State's capital
punishment scheme may require an understanding of the manner in which that
scheme actually operates.
    Perhaps the current majority has grown weary of explicating what some
Members no doubt choose to regard as hyper technical rules that currently
govern the administration of the death penalty.  Certainly it is to be
hoped that States will scrupulously protect the constitutional rights of
capital defendants even without the prospect of meaningful federal
oversight.  Good wishes, however, are no substitute for this Court's
careful review.  Today's decision is either an abdication of the Court's
constitutional role, or it is a silent repudiation of previously settled
legal principles.
    I dissent.

 
 
 
 
 

------------------------------------------------------------------------------
1
    The Court in Eddings further instructed that on remand "the state
courts must consider all relevant mitigating evidence and weigh it against
the evidence of the aggravating circumstances."  455 U. S., at 117.

2
    The plurality does assert, however, that its analysis is consistent
with Lockett and its progeny.  See ante, at 8.  In contrast, Justice
Scalia, who provides the fifth vote for affirmance, expresses no view on
the question whether the Arizona statute comports with the standards
announced in the Court's prior decisions.  He argues, instead, that any
violation of Lockett is immaterial because Lockett should be overruled.
Eight Members of the Court agree that Lockett remains good law, and I shall
not attempt today a detailed exposition of this Court's Eighth Amendment
jurisprudence.  I do wish, however, to make two brief observations:
    First, Justice Scalia's argument is not new--as his citation to then-
Justice Rehnquist's dissent in Lockett demonstrates.  See ante, at 12.  The
rule that a capital sentencer must be allowed to consider all relevant
mitigating evidence has been vigorously opposed, intensely debated, and
eventually accepted by all Members of this Court as a common starting point
for analysis in individual cases.  See, e. g., Hitchcock v. Dugger, 481 U.
S. 393 (1987) (Scalia, J., writing for a unanimous Court).  This history
suggests not only that considerations of stare decisis support continued
application of the Lockett rule.  It indicates as well that this Court's
Eighth Amendment jurisprudence is not so patently irrational that it should
be abruptly discarded.
    My second observation relates to the integrity of this Court's
adjudicative process.  The validity of Lockett has been presumed throughout
this case, and the arguments raised by Justice Scalia have not been
addressed in the petitioner's brief or argument.  It is disturbing that the
decisive vote in a capital case should turn on a single Justice's rejection
of a line of authority that both parties to this controversy, and eight
Members of this Court, have accepted.

3
    This is not the first time a Member of this Court has recognized the
connection between the State's greater power to eliminate all consideration
of mitigating evidence and its lesser power to place the burden of proof on
the defendant.  See Lockett v. Ohio, 438 U. S., at 633 (Rehnquist, J.,
concurring in part and dissenting in part) ("Because I continue to believe
that the Constitution is not offended by the State's refusal to consider
mitigating factors at all, there can be no infirmity in shifting the burden
of persuasion to the defendant when it chooses to consider them").

4
    The plurality in Lockett stated: "We recognize that, in noncapital
cases, the established practice of individualized sentences rests not on
constitutional commands, but on public policy enacted into statutes . . . .
Given that the imposition of death by public authority is so profoundly
different from all other penalties, we cannot avoid the conclusion that an
individualized decision is essential in capital cases."  Id., at 604-605.

5
    One might ask what would happen if the defendant argued that he had
proved the mitigating circumstance of "moderate impairment."  Presumably
the Arizona Supreme Court would respond that no such mitigating factor is
recognized under Arizona law.  In prior decisions indicating that certain
proffered evidence of impairment or duress would not constitute a
mitigating factor, that court has relied on the language of the Arizona
statute, which requires that impairment be "significant" and duress
"substantial."  See, e. g., State v. Rossi, 146 Ariz., at 366-367, 706 P.
2d, at 378-379.  Rejection of mitigating evidence on the ground that it
does not support a mitigating circumstance as defined in the statute,
however, cannot be reconciled with Hitchcock v. Dugger, 481 U. S. 393
(1987), in which this Court held that a capital defendant cannot be
restricted to proof of statutory mitigating factors.

6
    See Eddings v. Oklahoma, 455 U. S. 104, 114-115 (1982) ("The sentencer,
and the [state appellate court] on review, may determine the weight to be
given mitigating evidence.  But they may not give it no weight by excluding
such evidence from their consideration").
    As the Arizona Supreme Court has recognized, the determination that an
aggravating or mitigating factor exists does not require that the factor be
given any particular weight.  "The statute does not require that the number
of aggravating circumstances be weighed against the number of mitigating
circumstances.  One mitigating circumstance, for example, may be
`sufficiently substantial' to outweigh two aggravating circumstances.  The
converse is also true--one aggravating circumstance could be so substantial
that two or more mitigating circumstances would not be `sufficiently
substantial to call for leniency.  A. R. S. MDRV 13-454(D).' "  State v.
Brookover, 124 Ariz. 38, 42, 601 P. 2d 1322, 1326 (1979).

7
    Nor is Arizona's decision to place the burden of proving mitigation on
the defendant saved by the fact that the State is required to prove
aggravating circumstances beyond a reasonable doubt.  See McCleskey v.
Kemp, 481 U. S. 279, 304 (1987) ("In contrast to the carefully defined
standards that must narrow a sentencer's discretion to impose the death
sentence, the Constitution limits a State's ability to narrow a sentencer's
discretion to consider relevant evidence that might cause it to decline to
impose the death sentence") (emphasis in original).

8
    See Adamson v. Ricketts, 865 F. 2d 1011, 1041 (CA9 1988) (en banc),
cert. pending, No. 88-1553.  See also Jackson v. Dugger, 837 F. 2d 1469,
1474 (CA11), cert. denied, 486 U. S. 1026 (1988).

9
    See, e. g., State v. McCall, 160 Ariz. 119, 125, 770 P. 2d 1165, 1171
(1989); State v. Mauro, 159 Ariz. 186, 208, 766 P. 2d 59, 81 (1988); State
v. Moorman, 154 Ariz. 578, 587, 744 P. 2d 679, 688 (1987); State v.
LaGrand, 153 Ariz. 21, 37, 734 P. 2d 563, 579, cert. denied, 484 U. S. 872
(1987); State v. McMurtrey, 151 Ariz. 105, 110, 726 P. 2d 202, 207 (1986),
cert. denied, 480 U. S. 911 (1987).

10
    The State's asserted interest in ensuring that only "reliable" evidence
is considered at the final balancing stage of course provides no basis for
a requirement that death be imposed whenever the mitigating evidence found
to be reliable evenly balances the aggravating circumstances.

11
    The fact that the presumption of death is triggered only by the finding
of an aggravating circumstance does not save the statute.  See Sumner v.
Shuman, 483 U. S. 66, 78 (1987) (proof of an aggravating factor "do[es] not
provide an adequate basis on which to determine whether the death sentence
is the appropriate sanction in any particular case"; capital defendant is
still entitled to individualized consideration of mitigating evidence).

12
    See Penry v. Lynaugh, ---- U. S. ----, ---- (1989) (slip op. 13) ("[I]t
is not enough simply to allow the defendant to present mitigating evidence
to the sentencer.  The sentencer must also be able to consider and give
effect to that evidence in imposing sentence"); Franklin v. Lynaugh, 487 U.
S. 164, 185 (1988) (O'Connor, J., concurring in judgment) ("Indeed, the
right to have the sentencer consider and weigh relevant mitigating evidence
would be meaningless unless the sentencer was also permitted to give effect
to its consideration").

13
    Defense counsel objected to the introduction of this testimony on the
ground that Walton could not have foreseen Powell's suffering after the
shooting, since Walton reasonably believed that Powell was dead.  The trial
judge overruled the objection on the ground that "the testimony that I
understand he's going to testify to certainly goes to cruelty. . . ."  Tr.
Jan. 27, 1987, p. 233.

14
    The Arizona Supreme Court stated: "[T]he trial court's finding of
cruelty is supported by the mental torment of the victim prior to the
shooting rather than the events which took place afterwards."  159 Ariz.,
at 587, 769 P. 2d, at 1033.  The trial judge, however, made no "finding of
cruelty": he found more generally that Walton "committed the offense in an
extremely heinous, cruel or depraved manner."  The trial judge's sentence
therefore can stand only if all three of the statutory terms have been
given constitutionally sufficient limiting constructions.

15
    The majority relies on our holding in Pulley v. Harris, 465 U. S. 37,
43 (1984), in arguing that proportionality review is not constitutionally
required.  Ante, at 14.  That reliance is misplaced.  In Pulley the Court
held that, so long as other safeguards at the initial sentencing proceeding
adequately limit the sentencer's discretion, the Constitution does not
require the additional protection of proportionality review by an appellate
court.  See id., at 44-54.  Pulley is simply irrelevant when the adequacy
of the initial sentencing is itself the point at issue.

16
    These definitions are strikingly similar to the jury instructions given
in Maynard, in which the Oklahoma jury was told that "the term `heinous'
means extremely wicked or shockingly evil; `atrocious' means outrageously
wicked and vile; `cruel' means pitiless, or designed to inflict a high
degree of pain, utter indifference to, or enjoyment of, the sufferings of
others."  Cartwright v. Maynard, 822 F. 2d 1477, 1488 (CA10 1987).  The
majority acknowledges, albeit obliquely, that those instructions were
unconstitutionally vague.  See ante, at 11.  The Tenth Circuit's assessment
of the Oklahoma jury instructions is equally applicable to the definitions
used in Knapp: "Vague terms do not suddenly become clear when they are
defined by reference to other vague terms."  Cartwright v. Maynard, 822 F.
2d, at 1489.

17
    The court also noted that "our concept of cruelty involves not only
physical pain, but also `mental . . . distress visited upon the victims.' "
135 Ariz., at 51, 659 P. 2d, at 10, quoting State v. Clark, 126 Ariz. 428,
436, 616 P. 2d 888, 896, cert. denied, 449 U. S. 1067 (1980).

18
    See Ariz. Rev. Stat. Ann. MDRV 13-703F.5 (1989).  Indeed, the Arizona
courts have been willing to find that a particular murder was committed
both for an unworthy purpose and for no purpose at all.  In State v. Tison,
129 Ariz. 526, 633 P. 2d 335 (1981), cert. denied, 459 U. S. 882 (1982),
the Arizona Supreme Court found two aggravating circumstances: (1)the
murders were committed for pecuniary gain, since the object of the killings
was to obtain an automobile, id., at 542, 633 P. 2d, at 351, and (2)the
murders were senseless, and therefore especially heinous and depraved, in
part because the victims could not have impeded the theft of the car and
the killings therefore did not further the defendants' plan, id., at 543,
633 P. 2d, at 352.  See also State v. Correll, 148 Ariz. 468, 479, 715 P.
2d 721, 732 (1986) (pecuniary gain circumstance was established by the fact
that the defendant and an accomplice "very carefully executed the armed
robbery, and the murders were part of the scheme of robbery"); id., at 481,
715 P. 2d, at 734 (F6 factor was proved because "depravity is indicated by
the senselessness of the murders in that the murders were unnecessary to
accomplish the robbery").

19
    The Arizona Supreme Court has identified other particularly
reprehensible motives which, in its view, will support a finding of
heinousness or depravity.  See State v. Martinez-Villareal, 145 Ariz. 441,
451, 702 P. 2d 670, 680 (murder to demonstrate "manliness" reflects "a
manifest disregard for the fundamental principles upon which our society is
based"), cert. denied, 474 U. S. 975 (1985); State v. McCall, 139 Ariz.
147, 162, 677 P. 2d 920, 935 (1983) (finding supported in part by the fact
that the mutilation of the victims' bodies "was designed to be a `message'
to warn other people"), cert. denied, 467 U. S. 1220 (1984).  Taken
together, the state court's decisions reflect the indisputable fact that
there is no legitimate reason to commit murder, but they provide no
principled basis for identifying the most blameworthy killings.

20
    See, e. g., State v. Bracy, 145 Ariz. 520, 537, 703 P. 2d 464, 481
(1985), cert. denied, 474 U. S. 1110 (1986); State v. Carriger, 143 Ariz.
142, 160, 692 P. 2d 991, 1009 (1984), cert. denied, 471 U. S. 1111 (1985);
State v. Correll, 148 Ariz., at 480, 715 P. 2d, at 733.

21
    See State v. Rossi, 146 Ariz. 359, 365, 706 P. 2d 371, 377 (1985)
("Before defendant fired the fatal shot, the victim leaned against his
bedroom wall and pleaded with defendant, stating `You have my money, you
shot me, what more do you want?'  This evinces the victim's mental
anguish").

22
    See also State v. Villafuerte, 142 Ariz. 323, 331, 690 P. 2d 42, 50
(1984), cert. denied, 469 U. S. 1230 (1985); State v. Harding, 137 Ariz.
278, 294, 670 P. 2d 383, 399 (1983), cert. denied, 465 U. S. 1013 (1984);
State v. Zaragoza, 135 Ariz. 63, 69, 659 P. 2d 22, 28, cert. denied, 462 U.
S. 1124 (1983).

23
    The State, focusing on the fear and uncertainty experienced by Powell
prior to the shooting, asserts: "It is without question that the victim
suffered an excruciatingly `cruel' death," and suggests that Powell's
mental anguish was equivalent to "torture."  Brief for Respondent 48-49.  I
do not minimize Thomas Powell's suffering, but it bears noting that the
State of Arizona seeks to confine Jeffrey Walton in its penitentiary, set a
date for his execution, and put him to death.  It seems strange for the
State to suggest that an individual has been "tortured" when he is made to
contemplate the prospect of his own demise.

24
    The discussion of appellate reweighing in Clemons technically is
dictum: the Court vacated Clemons's death sentence but stated that on
remand the Mississippi Supreme Court might reweigh the valid aggravating
and mitigating circumstances or apply a limiting construction of the
challenged aggravating factor if it concluded that under state law it had
the power to do so.

25
    The Arizona Supreme Court's first assertion is supported only by the
following passage from the testimony of Sharold Ramsey:

    "Q. How was [Powell] acting after you pulled up at the pullout and they
got out of the car?
    "A. He was scared.
    "Q. How do you know?
    "A. I don't remember.  I just told him not to be scared because he
wouldn't be hurt. . . ."  App. 24.

    The statement that Powell "begged the defendant not to kill him"
appears to be based entirely on Walton's statement during his taped
interrogation that "the guy told Rob [one of Walton's accomplices], he
goes, don't hurt me, I don't tell anybody, ((inaudible))."  Tr. of Dec. 15,
1986, pm, p. 82.
    In its brief to the Arizona Supreme Court, the State asserted, without
record citation: "During the ride, Powell begged his abductors to spare him
and they could keep his money and car."  Brief for Appellee 50, State v.
Walton, Arizona Supreme Court No. CR 87-0022-AP.  That assertion was made
more or less in passing: the State's argument on cruelty focused on
Powell's mental and physical suffering after the shooting.  The Arizona
Supreme Court's opinion asserts that Powell begged for his life when he and
Walton were alone in the desert (rather than during the car ride
beforehand).  There is not one line of testimony that supports the court's
statement.

26
    The trial judge in this case found that Walton rather than Hoover had
fired the fatal shot--an issue on which the evidence was conflicting and on
which the jury was apparently unable to agree.  See 159 Ariz., at 592-593,
769 P. 2d, at 1038-1039 (concurring opinion).  In its brief to the Arizona
Supreme Court, the State argued that this finding should be reviewed
deferentially on the ground that "[a]s the trial court is better situated
to assess the impact of the evidence, its decision should not be overturned
absent an abuse of that discretion."  Brief for Appellee 48, State v.
Walton, Arizona Supreme Court No. 87-0022-AP.  The Arizona Supreme Court
did not purport to make an independent determination on this point: it
stated only that "we find substantial evidence to support the trial judge's
finding that the defendant killed the victim."  159 Ariz., at 586, 769 P.
2d, at 1032.

27
    See Clemons, ---- U. S., at ---- (slip op. 14) ("Nothing in this
opinion is intended to convey the impression that state appellate courts
are required to or necessarily should engage in reweighing or harmless
error analysis when errors have occurred in a capital sentencing
proceeding.  Our holding is only that such procedures are constitutionally
permissible").
28
    See also State v. Smith, 146 Ariz. 491, 504, 707 P. 2d 289, 302 (1985)
("Our elimination of some aggravating factors in the absence of mitigating
circumstances does not mandate a remand to the trial court for
resentencing") (emphasis added) (citing cases).  Where mitigating factors
are absent, affirmance of the death sentence does not require reweighing
and is more properly characterized as harmless-error analysis.

29
    In affirming the judgment of the Arizona Supreme Court in that case,
this Court stated that "the availability of appellate review, including
reweighing of aggravating and mitigating circumstances, [does not] make the
appellate process part of a single continuing sentencing proceeding.  The
Supreme Court of Arizona noted that its role is strictly that of an
appellate court, not a trial court.  Indeed, no appeal need be taken if
life imprisonment is imposed, and the appellate reweighing can work only to
the defendant's advantage."  Arizona v. Rumsey, 467 U. S. 203, 210 (1984)
(emphasis added).  We also referred to the trial judge as "the sole
decisionmaker in the proceeding."  Id., at 211.

30
    The one difference is that the trial judge found only that the murder
was committed "in an extremely heinous, cruel or depraved manner," while
the appellate court specified that the murder was "cruel."  If the Arizona
Supreme Court's prior decisions had placed meaningful limits on the concept
of "cruelty," that difference might be significant.  In fact, however, the
state court's construction of "cruelty" has placed no significant
constraints on the sentencer's discretion--whether the sentencer is the
trial judge or the Arizona Supreme Court itself.

31
    The breadth of the F6 circumstance is particularly unfortunate in light
of the statutory requirement that the defendant, in order to avoid the
death penalty, must demonstrate mitigating factors "sufficiently
substantial to call for leniency."  The presumption of death is triggered
whenever an aggravating circumstance is found; the Arizona Supreme Court's
expansive construction of the F6 factor ensures that an aggravating
circumstance plausibly can be discovered in virtually any murder.





Subject: 88-7351--DISSENT, WALTON v. ARIZONA

 


    SUPREME COURT OF THE UNITED STATES


No. 88-7351



JEFFREY ALAN WALTON, PETITIONER v. ARIZONA

on writ of certiorari to the supreme court of arizona

[June 27, 1990]



    Justice Stevens, dissenting.
    While I join Justice Blackmun's dissent, I write separately to dissent
from the Court's holding in Part II and to comment on Justice Scalia's
opinion.

I
    The Court holds in Part II of its opinion that a person is not entitled
to a jury determination of facts that must be established before the death
penalty may be imposed.  I am convinced that the Sixth Amendment requires
the opposite conclusion.
    Arizona Rev. Stat. Ann. MDRV 13-1105 (C) (1989) provides that first
degree murder, which includes both premeditated murder and felony murder,
is "punishable by death or life impris- onment as provided by MDRV 13-703."
Section MDRV 13-703(B) requires, after guilt of first-degree murder is
established, that a judge conduct a hearing to determine if any statutory
aggravating or mitigating circumstances exist.  The State bears the burden
of proving the existence of any aggravating circumstance by evidence
admissible under the Arizona Rules of Evidence.  MDRV 13-703(C).  Section
13-703(E) then provides, as the Arizona Supreme Court has explained: "Where
none of the statutory aggravating circumstances are found to be present,
our statute prohibits the death penalty.  Where one or more statutory
aggravating circumstance is found, and no mitigation exists, the statute
requires the death penalty.  Where both aggravating and mitigating
circumstances are found in a given case, the trial judge, and then this
court on review, must determine whether the mitigating circumstances are
`sufficiently substantial to call for leniency.' "  State v. Gretzler, 135
Ariz. 42, 55, 659 P. 2d 1, 13 (citations omitted), cert. denied, 461 U. S.
971 (1983).  Thus, under Arizona law, as construed by Arizona's highest
court, a first-degree murder is not punishable by a death sentence until at
least one statutory aggravating circumstance has been proved. {1}
    In this case, the sentencing judge found two aggravating circumstances:
that petitioner committed the offense "as consideration for the receipt, or
in expectation of the receipt, of anything of pecuniary value" and that he
committed it "in an especially heinous, cruel or depraved manner."  Ariz.
Rev. Stat. Ann. 15 13-703(F)(5), (F)(6) (1989). {2}  At issue is the narrow
question whether these findings about petitioner's commission of the
offense are, under Arizona law, elements of a capital crime and therefore
must be determined by a jury.
    If this question had been posed in 1791, when the Sixth Amendment
became law, the answer would have been clear.  By that time,
"the English jury's role in determining critical facts in homicide cases
was entrenched.  As fact-finder, the jury had the power to determine not
only whether the defendant was guilty of homicide but also the degree of
the offense.  Moreover, the jury's role in finding facts that would
determine a homicide defendant's eligibility for capital punishment was
particularly well established.  Throughout its history, the jury determined
which homicide defendants would be subject to capital punishment by making
factual determinations, many of which related to difficult assessments of
the defendant's state of mind.  By the time the Bill of Rights was adopted,
the jury's right to make these determinations was unquestioned."  {3}


    Similarly, if this question had arisen in 1968, when this Court held
the guarantee of trial by jury in criminal prosecutions binding on the
States, I do not doubt that petitioner again would have prevailed.  Justice
White's eloquent opinion for the Court in Duncan v. Louisiana, 391 U. S.
145 (1968), was faithful to the history and meaning of the Sixth
Amendment:

    "The history of trial by jury in criminal cases has been frequently
told.  It is sufficient for present purposes to say that by the time our
Constitution was written, jury trial in criminal cases had been in
existence in England for several centuries and carried impressive
credentials traced by many to Magna Carta.  Its preservation and proper
operation as a protection against arbitrary rule  were among the major
objectives of the revolutionary settlement which was expressed in the
Declaration and Bill of Rights of 1689.  In the 18th century Blackstone
could write:

" `Our law has therefore wisely placed this strong and two-fold barrier, of
a presentment and a trial by jury, between the liberties of the people and
the prerogative of the crown.  It was necessary, for preserving the
admirable balance of our constitution, to vest the executive power of the
laws in the prince: and yet this power might be dangerous and destructive
to that very constitution, if exerted without check or control, by justices
of oyer and terminer occasionally named by the crown; who might then, as in
France or Turkey, imprison, dispatch, or exile any man that was obnoxious
to the government, by an instant declaration that such is their will and
pleasure.  But the founders of the English law have, with excellent
forecast, contrived that . . . the truth of every accusation, whether
preferred in the shape of indictment, information, or appeal, should
afterwards be confirmed by the unanimous suffrage of twelve of his equals
and neighbors, indifferently chosen and superior to all suspicion.'

    "Jury trial came to America with English colonists, and received strong
support from them.

    . . . . .



    "The guarantees of jury trial in the Federal and State Constitutions
reflect a profound judgment about the way in which law should be enforced
and justice administered.  A right to jury trial is granted to criminal
defendants in order to prevent oppression by the Government.  Those who
wrote our constitutions knew from history and experience that it was
necessary to protect against unfounded criminal charges brought to
eliminate enemies and against judges too responsive to the voice of higher
authority.  The framers of the constitutions strove to create an
independent judiciary but insisted upon further protection against
arbitrary action.  Providing an accused with the right to be tried by a
jury of his peers gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or eccentric
judge.  If the defendant preferred the common-sense judgment of a jury to
the more tutored but perhaps less sympathetic reaction of the single judge,
he was to have it.  Beyond this, the jury trial provisions in the Federal
and State Constitutions reflect a fundamental decision about the exercise
of official power--a reluctance to entrust plenary powers over the life and
liberty of the citizen to one judge or to a group of judges."  Id., at
151-152, 155-156 (footnotes omitted).


    Since Duncan, this Court has held that a death sentence under Florida
law may be imposed by a judge, rather than a jury, Spaziano v. Florida, 468
U. S. 447 (1984), and has held that a judge may make a factual
determination that mandates imposition of a minimum sentence within the
penalty range of certain noncapital offenses, McMillan v. Pennsylvania, 477
U. S. 79 (1986).  By stretching the limits of sentencing determinations
that are made by judges exposed to "the voice of higher authority," these
decisions have encroached upon the factfinding function that has so long
been entrusted to the jury. {4}  Further distorting the sentencing function
to encompass findings of factual elements necessary to establish a capital
offense is the unhappy product of the gradual "increase and spread" of
these precedents, "to the utter disuse of juries in questions of the most
momentous concern."  {5}  Even if the unfortunate decisions in Spaziano and
McMillan fell just one step short of the stride the Court takes today, it
is not too late to change our course and follow the wise and inspiring
voice that spoke for the Court in Duncan v. Louisiana.

II
    Justice Scalia announces in a separate opinion that henceforth he will
not regard Woodson v. North Carolina, 428 U. S. 280 (1976), Roberts v.
Louisiana, 428 U. S. 325 (1976), Lockett v. Ohio, 438 U. S. 586 (1978),
Godfrey v. Georgia, 446 U. S. 420 (1980), and other cases adopting their
reasoning as binding precedent.  The major premise for this rejection of
our capital sentencing jurisprudence is his professed inability to
reconcile those cases with the central holding in Furman v. Georgia, 408 U.
S. 238 (1972). {6}  Although there are other flaws in Justice Scalia's
opinion, {7} it is at least appropriate to explain why his major premise is
simply wrong.
    The cases that Justice Scalia categorically rejects today rest on the
theory that the risk of arbitrariness condemned in Furman is a function of
the size of the class of convicted persons who are eligible for the death
penalty.  When Furman was decided, Georgia included virtually all
defendants convicted of forcible rape, armed robbery, kidnaping and first-
degree murder in that class.  As the opinions in Furman observed, in that
large class of cases race and other irrelevant factors unquestionably
played an unacceptable role in determining which defendants would die and
which would live.  However, the size of the class may be narrowed to reduce
sufficiently that risk of arbitrariness, even if a jury is then given
complete discretion to show mercy when evaluating the individual
characteristics of the few individuals who have been found death eligible.
    The elaborate empirical study of the administration of Georgia's
capital sentencing statute that the Court considered in McCleskey v. Kemp,
481 U. S. 279 (1987), further illustrates the validity of this theory.  In
my opinion in that case I observed:


"One of the lessons of the Baldus study is that there exist certain
categories of extremely serious crimes for which prosecutors consistently
seek, and juries consistently impose, the death penalty without regard to
the race of the victim or the race of the offender.  If Georgia were to
narrow the class of death-eligible defendants to those categories, the
danger of arbitrary and discriminatory imposition of the death penalty
would be significantly decreased, if not eradicated."  Id., at 367
(dissenting opinion).


    The Georgia Supreme Court itself understood the concept that Justice
Scalia apparently has missed.  In Zant v. Stephens, 462 U. S. 862 (1983),
we quoted the following excerpt from its opinion analogizing the law
governing homicides in Georgia to a pyramid:

    " `All cases of homicide of every category are contained within the
pyramid.  The consequences flowing to the perpetrator increase in severity
as the cases proceed from the base of the apex, with the death penalty
applying only to those few cases which are contained in the space just
beneath the apex.  To reach that category a case must pass through three
planes of division between the base and the apex.
    " `The first plane of division above the base separates from all
homicide cases those which fall into the category of murder.  This plane is
established by the legislature in statutes defining terms such as murder,
voluntary manslaughter, involuntary manslaughter, and justifiable homicide.
In deciding whether a given case falls above or below this plane, the
function of the trier of facts is limited to finding facts.  The plane
remains fixed unless moved by legislative act.
    " `The second plane separates from all murder cases those in which the
penalty of death is a possible punishment.  This plane is established by
statutory definitions of aggravating circumstances.  The function of the
factfinder is again limited to making a determination of whether certain
facts have been established.  Except where there is treason or aircraft
hijacking, a given case may not move above this second plane unless at
least one statutory aggravating circumstance exists.  Code Ann. MDRV
27-2534.1(c).
    " `The third plane separates, from all cases in which a penalty of
death may be imposed, those cases in which it shall be imposed.  There is
an absolute discretion in the factfinder to place any given case below the
plane and not impose death.  The plane itself is established by the
factfinder.  In establishing the plane, the factfinder considers all
evidence in extenuation, mitigation and aggravation of punishment.  Code
Ann. MDRV 27-2503 and MDRV 27-2534.1.  There is a final limitation on the
imposition of the death penalty resting in the automatic appeal procedure:
This court determines whether the penalty of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor; whether the
statutory aggravating circumstances are supported by the evidence; and
whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases.  Code Ann. MDRV 27-2537.  Performance of
this function may cause this court to remove a case from the death penalty
category but can never have the opposite result.
    " `The purpose of the statutory aggravating circumstances is to limit
to a large degree, but not completely, the factfinder's discretion.  Unless
at least one of the ten statutory aggravating circumstances exists, the
death penalty may not be imposed in any event.  If there exists at least
one statutory aggravating circumstance, the death penalty may be imposed
but the factfinder has a discretion to decline to do so without giving any
reason.  Waters v. State, 248 Ga. 355, 369, 283 S. E. 2d 238 (1981); Hawes
v. State, 240 Ga. 327, 334, 240 S. E. 2d 833 (1977); Fleming v. State, 240
Ga. 142, 240 S. E. 2d 37 (1977).  In making the decision as to the penalty,
the factfinder takes into consideration all circumstances before it from
both the guilt-innocence and the sentence phases of the trial.  These
circumstances relate both to the offense and the defendant.
    " `A case may not pass the second plane into that area in which the
death penalty is authorized unless at least one statutory aggravating
circumstance is found.  However, this plane is passed regardless of the
number of statutory aggravating circumstances found, so long as there is at
least one.  Once beyond this plane, the case enters the area of the
factfinder's discretion, in which all the facts and circumstances of the
case determine, in terms of our metaphor, whether or not the case passes
the third plane and into the area in which the death penalty is imposed.'
250 Ga. 97, 99-100, 297 S. E. 2d 1, 3-4 (1982)."  Id., at 870-872.


Justice Scalia ignores the difference between the base of the pyramid and
its apex.  A rule that forbids unguided discretion at the base is
completely consistent with one that requires discretion at the apex.  After
narrowing the class of cases to those at the tip of the pyramid, it is then
appropriate to allow the sentencer discretion to show mercy based on
individual mitigating circumstances in the cases that remain.    Perhaps a
rule that allows the specific facts of particular cases to make the
difference between life and death--a rule that is consistent with the
common-law tradition of case-by- case adjudication--provides less certainty
than legislative guidelines that mandate the death penalty whenever
specified conditions are met.  Such guidelines would fit nicely in a
Napoleonic Code drafted in accord with the continental approach to the
formulation of legal rules.  However, this Nation's long experience with
mandatory death sentences--a history recounted at length in our opinion in
Woodson and entirely ignored by Justice Scalia today--has led us to reject
such rules.  I remain convinced that the approach adopted by this Court in
Weems v. United States, 217 U. S. 349 (1910), and in Trop v. Dulles, 356 U.
S. 86 (1958), followed by Justice Stewart, Justice Powell and myself in
1976, and thereafter repeatedly endorsed by this Court, is not only wiser,
but far more just, than the reactionary position espoused by Justice Scalia
today.

 
 
 
 
 

------------------------------------------------------------------------------
1
    Although Arizona's aggravating circumstances are not "separate
penalties or offenses," Poland v. Arizona, 476 U. S. 147, 156 (1986)
(double jeopardy challenge), they operate as statutory "elements" of
capital murder under Arizona law because in their absence, that sentence is
unavailable under 15 13-1105 and 13-703.  Cf. McMillan v. Pennsylvania, 477
U. S. 79, 88 (1986) (5-year minimum term required upon finding by
sentencing court was "a penalty within the range already available to it
without the special finding"); Cabana v. Bullock, 474 U. S. 376, 385 (1986)
(requiring a finding of intent to comply with the Eighth Amendment does not
establish any new element of the state's definition of a capital offense).

2
    This Court has long distinguished a jury's determination of "whether a
defendant is guilty of having engaged in certain criminal conduct" from a
sentencing judge's consideration of "the fullest information possible
concerning the defendant's life and characteristics."  Williams v. New
York, 337 U. S. 241, 246-247 (1949).  Both of the aggravating circumstances
in this case concern the offense itself, not the offender.  Indeed, the
Arizona courts' findings of aggravation rested entirely on evidence that
had been presented to the jury during the guilt phase of the trial; the
Arizona Su preme Court disregarded the only testimony about aggravation
offered at the sentencing hearing as irrelevant.  Sentencing Hearing Tr.
(Jan. 26-27, 1987); 159 Ariz. 571, 587, 769 P. 2d 1017, 1033 (1989)
(testimony about victim after shooting did not bear on cruelty).  Cf.
Spaziano v. Florida, 468 U. S. 447, 452 (1984) (after a Florida jury
recommended life, sentencing judge found defendant's felony record was an
aggravating factor); Hildwin v. Florida, 490 U. S. ----, ---- (1989) (after
a Florida jury recommended death, sentencing judge found defendant's felony
record and status as a prisoner at the time of the crime were aggravating
factors).

3
    W. White, Fact-Finding and the Death Penalty: The Scope of a Capital
Defendant's Right to Jury Trial, 65 Notre Dame L. Rev. 1, 10-11 (1989)
(footnote omitted; emphasis added).  The right to a jury trial in criminal
matters was most strongly guarded because " `in times of difficulty and
danger, more is to be apprehended from the violence and partiality of
judges appointed by the [c]rown, in suits between the king and the subject,
than in disputes between one individual and another.' "  Id., at 10
(quoting 4 W. Blackstone, Commentaries 343 (1769)).  For a view of earlier
practices, see generally Green, The Jury and the English Law of Homicide,
1200-1600, 74 Mich. L. Rev. 413 (1976).

4
    Duncan v. Louisiana, 391 U. S. 145, 156 (1968).  Although the 18th-
century English ruler no longer bears upon our judges, today the "voice of
higher authority" to which elected judges too often appear to listen is
that of the many voters who generally favor capital punishment but who have
far less information about a particular trial than the jurors who have
sifted patiently through the details of the relevant and admissible
evidence.  How else do we account for the disturbing propensity of elected
judges to impose the death sentence time after time notwithstanding a
jury's recommendation of life?  In Florida, where the jury provides an
advisory sentence before the judge imposes a sentence in a capital case,
Fla. Stat. MDRV 921.141 (1989), judges have imposed death over a jury
recommendation of life in 125 of the 617 death sentences entered between
December 1972 and December 1989.  See also Radelet, Rejecting the Jury: The
Imposition of the Death Penalty in Florida, 18 U. C. D. L. Rev. 1409 (1985)
(judges are more likely than juries to favor the imposition of a death
sentence).

5
    "So that the liberties of England cannot but subsist, so long as this
palladium remains sacred and inviolate, not only from all open attacks,
(which none will be so hardy as to make) but also from all secret
machinations, which may sap and undermine it; by introducing new and
arbitrary methods of trial, by justices of the peace, commissioners of the
revenue, and courts of conscience.  And however convenient these may appear
at first, (as doubtless all arbitrary powers, well executed, are the most
con venient) yet let it be again remembered, that delays, and little
inconveniences in the forms of justice, are the price that all free nations
must pay for their liberty in more substantial matters; that these inroads
upon this sacred bulwark of the nation are fundamentally opposite to the
spirit of our constitution; and that, though begun in trifles, the
precedent may gradually increase and spread, to the utter disuse of juries
in questions of the most momentous concern."  4 W. Blackstone, Commentaries
343-344 (1769).

6
    Furman has been characterized as mandating that "where discretion is
afforded a sentencing body on a matter so grave as the determination 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."  Gregg v. Georgia, 428 U. S. 153, 189
(1976) (opinion of Stewart, Powell, and Stevens, JJ.).

7
    For example, Justice Scalia incorrectly assumes that our holdings in
Woodson v. North Carolina, 428 U. S. 280 (1976), and Roberts v. Louisiana,
428 U. S. 325 (1976), rest entirely on the view that mandatory death
penalty statutes pose the same risk of arbitrariness that supported the
Court's decision in Furman v. Georgia, 408 U. S. 238 (1972).  See ante, at
16-17.  In fact, that consideration was only one of the three grounds for
invalidating the North Carolina and Louisiana mandatory statutes.  See
Woodson, 428 U. S., at 288-305.  Justice Scalia ironically overlooks a more
traditional reason supporting our conclusion in Woodson, the growing
societal consensus against mandatory imposition of the death penalty:
    "The history of mandatory death penalty statutes in the United States
thus reveals that the practice of sentencing to death all persons convicted
of a particular offense has been rejected as unduly harsh and unworkably
rigid.  The two crucial indicators of evolving standards of decency
respecting the imposition of punishment in our society--jury determinations
and legislative enactments--both point conclusively to the repudiation of
automatic death sentences.  Id., at 292-293.

    We further held that the "fundamental respect for humanity underlying
the Eighth Amendment . . . requires consideration of the character and
record of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of
inflicting the penalty of death."  Id., at 304.
