We granted certiorari to decide the following question:
We now hold that the death penalty may not be imposed under these circumstances.
Petitioner was tried for the capital offense of "[r]obbery or attempts thereof when the victim is intentionally killed by the defendant."
In this case petitioner's own testimony established his participation in the robbery of an 80-year-old man named Roy Malone. Petitioner consistently denied, however, that he killed the man or that he intended his death. Under petitioner's version of the events, he and an accomplice entered
Because of the statutory prohibition, the court did not instruct the jury as to the lesser included offense of felony murder. Instead, the jury was told that if petitioner was acquitted of the capital crime of intentional killing in the course of a robbery, he "must be discharged" and "he can never be tried for anything that he ever did to Roy Malone." Record 743. The jury subsequently convicted petitioner and imposed the death penalty; after holding a hearing with respect to aggravating and mitigating factors, the trial court refused to overturn that penalty.
In the courts below petitioner attacked the prohibition on lesser included offense instructions in capital cases, arguing that the Alabama statute was constitutionally indistinguishable from the mandatory death penalty statutes struck down in Woodson v. North Carolina, 428 U.S. 280, and Roberts v. Louisiana, 428 U.S. 325.
In this Court petitioner contends that the prohibition on giving lesser included offense instructions in capital cases violates both the Eighth Amendment as made applicable to the States by the Fourteenth Amendment and the Due Process Clause of the Fourteenth Amendment by substantially increasing the risk of error in the factfinding process. Petitioner argues that, in a case in which the evidence clearly establishes the defendant's guilt of a serious noncapital crime such as felony murder, forcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction.
At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged.
Alabama's failure to afford capital defendants the protection provided by lesser included offense instructions is unique in American criminal law.
While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
Such a risk cannot be tolerated in a case in which the defendant's life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments:
To insure that the death penalty is indeed imposed on the basis of "reason rather than caprice or emotion," we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination.
Alabama argues, however, that petitioner's factual premise is wrong and that, in the context of an apparently mandatory
The State's argument is based on a misreading of our cases striking down mandatory death penalties. In Furman v. Georgia, 408 U.S. 238, the Court held unconstitutional a Georgia statute that vested the jury with complete and unguided discretion to impose the death penalty or not as it saw fit, on the ground that such a procedure led to the "wanton" and "freakish" imposition of the penalty. Id., at 310 (STEWART, J., concurring). In response to Furman several States enacted statutes that purported to withdraw any and all discretion from the jury with respect to the punishment decision by making the death penalty automatic on a finding of guilt. But, as the prevailing opinion noted in Woodson v. North Carolina, in so doing the States "simply papered over the problem of unguided and unchecked jury discretion." 428 U. S., at 302 (opinion of STEWART, POWELL, and STEVENS, JJ.). For, as historical evidence indicated, juries faced with a mandatory death penalty statute often
The Alabama statute, which was enacted after Furman but before Woodson, has many of the same flaws that made the North Carolina statute unconstitutional. Thus, the Alabama statute makes the guilt determination depend, at least in part, on the jury's feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue.
In Jacobs v. State, 361 So.2d 640 (Ala. 1978), cert. denied, 439 U.S. 1122, Chief Justice Torbert attempted to distinguish the Alabama death statute from the North Carolina and Louisiana statutes on the ground that the unavailability of lesser included offense instructions substantially reduces the risk of jury nullification. Thus, because of their reluctance to acquit a defendant who is obviously guilty of some serious crime, juries will be unlikely to disregard their oaths and acquit a defendant who is guilty of a capital crime simply because of their abhorrence of the death penalty.
The State's theory, however, is supported by nothing more than speculation. The 96% conviction rate achieved by prosecutors under the Alabama statute hardly supports the notion that the statute creates such a perfect equipoise.
In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilt of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason— its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to
The State also argues that, whatever the effect of precluding lesser included offense instructions might otherwise be, there is no possibility of harm under the Alabama statute because of two additional safeguards. First, although the jury may not convict the defendant of a lesser included offense, the State argues that it may refuse to return any verdict at all in a doubtful case, thus creating a mistrial. After a mistrial, the State may reindict on the capital offense or on lesser included offenses.
We are not persuaded by the State's argument that the mistrial "option" is an adequate substitute for proper instructions on lesser included offenses. It is extremely doubtful that juries will understand the full implications of a mistrial
The State's second argument is that, even if a defendant is erroneously convicted, the fact that the judge has the ultimate sentencing power will ensure that he is not improperly sentenced to death. Again, we are not persuaded that sentencing by the judge compensates for the risk that the jury may return an improper verdict because of the unavailability of a "third option."
If a fully instructed jury would find the defendant guilty only of a lesser, noncapital offense, the judge would not have the opportunity to impose the death sentence. Moreover, it is manifest that the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State's Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence.
Accordingly, the judgment of the Alabama Supreme Court is
MR. JUSTICE BRENNAN, concurring.
Although I join the Court's opinion, I continue to believe that the death penalty is, in all circumstances, contrary to the Eighth Amendment's prohibition against imposition of cruel and unusual punishments. Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting).
MR. JUSTICE MARSHALL, concurring in the judgment.
I continue to believe that the death penalty is, under all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 314-374 (1972) (MARSHALL, J., concurring); Gregg v. Georgia, 428 U.S. 153, 231-241 (1976) (MARSHALL, J., dissenting); Godfrey v. Georgia, 446 U.S. 420, 433-442 (1980) (MARSHALL, J., concurring in judgment). In addition, I agree with the Court that Alabama's prohibition on giving lesser included offense instructions in capital cases is unconstitutional because it substantially increases the risk of error in the factfinding process. I do not, however, join in the Court's assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no "cruel and unusual punishments" be imposed. Lockett v. Ohio, 438 U.S. 586, 621 (1978) (MARSHALL, J., concurring in judgment); Bell v. Ohio, 438 U.S. 637, 643-644 (1978) (MARSHALL, J., concurring in judgment). I join in the judgment of the Court.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins, dissenting.
The opinion of the Court begins by stating that we granted certiorari to decide the question of whether a sentence of
Obviously, unless the Supreme Court of Alabama was wholly in error in deciding what issue petitioner had raised there, it was obviously not a question involving the United States Constitution.
I do not believe it suffices, under the jurisdiction granted to us by the Constitution and by Congress, to brush this matter off as the Court does in its footnote 6 on the grounds that petitioner presented his claim "in some fashion" to the Supreme Court of Alabama, and that "[t]he State has never argued that this presentation was insufficient, as a matter of state law, to preserve the issue."
This is not a matter that may be stipulated or waived by any of the parties to a case decided on its merits here. Title 28 U. S. C. § 1257 provides that our certiorari jurisdiction extends only to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had. . . ."
In Hulbert v. Chicago, 202 U.S. 275, 280 (1906), this Court said:
More recently, in Street v. New York, 394 U.S. 576, 582 (1969), the Court has said:
Thus it is insufficient that the State "has never argued" that a judgment under review is not that of the highest court of the State in which a judgment could be had; it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. Here I am not convinced that such a showing has been made.
Believing, therefore, because of the proceedings in the Supreme Court of Alabama, that we do not have jurisdiction under 28 U. S. C. § 1257 to decide the question which the Court purports to decide, I dissent.
"(1) Kidnapping for ransom or attempts thereof, when the victim is intentionally killed by the defendant;
"(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant;
"(3) Rape when the victim is intentionally killed by the defendant; carnal knowledge of a girl under 12 years of age, or abuse of such girl in an attempt to have carnal knowledge, when the victim is intentionally killed by the defendant;
"(4) Nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed by the defendant;
"(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard;
"(6) Any murder committed while the defendant is under sentence of life imprisonment;
"(7) Murder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire;
"(8) Indecent molestation of, or an attempt to indecently molest, a child under the age of 16 years, when the child victim is intentionally killed by the defendant;
"(9) Willful setting off or exploding dynamite or other explosive under circumstances now punishable by section 13-2-60 or 13-2-61, when a person is intentionally killed by the defendant because of said explosion;
"(10) Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts;
"(11) Murder in the first degree where the victim is a public official or public figure and the murder stems from or is caused by or related to his official position, acts or capacity;
"(12) Murder in the first degree committed while the defendant is engaged or participating in the act of unlawfully assuming control of any aircraft by use of threats or force with intent to obtain any valuable consideration for the release of said aircraft or any passenger or crewman thereon, or to direct the route or movement of said aircraft, or otherwise exert control over said aircraft;
"(13) Any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime; or
"(14) Murder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness."
"If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses."
The last phrase of this subsection has been consistently construed to preclude any lesser included offense instructions in capital cases. See Jacobs v. State, 361 So.2d 640, 646 (Ala. 1978) (Torbert, C. J., concurring in part and dissenting in part), cert. denied, 439 U.S. 1122; Evans v. Birtton, 472 F.Supp. 707, 714 (SD Ala. 1979).
"If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the state of Alabama. The state and the defendant, or his counsel, shall be permitted to present argument for or against the sentence of death."
"The trial jury cannot be instructed on lesser included offenses.
"In the absence of such a provision, the appellant insists that the only choice that a petit jury has is imposing death or acquitting the defendant. He states that because only those two choices are presented to the jury, the statute can only be interpreted as having a mandatory death provision." 365 So.2d 985, 999 (1978).
In his petition for certiorari to the Alabama Supreme Court petitioner specifically stated that he was challenging the Alabama statute as being in violation of the Eighth, Sixth, and Fourteenth Amendments to the United States Constitution and argued that it is "in fact a mandatory death sentence." However, petitioner did not explore these issues more fully in his brief to the Alabama Supreme Court, Tr. of Oral Arg. 5, and, in its one-paragraph opinion affirming the judgment of the Alabama Court of Criminal Appeals, the Supreme Court adverted only to the state constitutional issues petitioner had raised.
In his dissenting opinion MR. JUSTICE REHNQUIST takes the position that we are required to construe the Alabama Supreme Court's failure to address petitioner's federal constitutional claims as a determination that petitioner had waived those claims. We disagree. It is clear that petitioner did present his federal claims in some fashion to the Alabama Supreme Court. The State has never argued that this presentation was insufficient, as a matter of state law, to preserve the issue. On the contrary, in its brief in opposition to the petition for certiorari, the State argued that "the Alabama Appellate Courts have reviewed these matters raised in the petition, fully considered them and correctly decided the issues." Similarly, after certiorari was granted, the State again did not argue that petitioner's due process and Eighth Amendment claims were not properly raised or preserved below.
While the parties of course cannot confer jurisdiction on this Court by agreement, we should not simply brush aside the Alabama Attorney General's view of his own State's law. Cf. Chambers v. Mississippi, 410 U.S. 284, 290, n. 3. That is especially true in a case such as this, where the death penalty was imposed in a plainly unconstitutional manner. Cf. Vachon v. New Hampshire, 414 U.S. 478.
"A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter."
See also Berra v. United States, 351 U.S. 131, 134, where Mr. Justice Harlan indicated that the defendant's entitlement to such an instruction could not be doubted:
"In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense. See Stevenson v. United States, 162 U.S. 313." Rule 31 (c) of the Federal Rules of Criminal Procedure provides that "[t]he defendant may be found guilty of an offense necessarily included in the offense charged. . . ." Although the Rule is permissively phrased, it has been universally interpreted as granting a defendant a right to a requested lesser included offense instruction if the evidence warrants it. See, e. g., United States v. Scharf, 558 F.2d 498, 502 (CA8 1977); United States v. Crutchfield, 547 F.2d 496, 500 (CA9 1977); Government of Virgin Islands v. Carmona, 422 F.2d 95, 100 (CA3 1970); 2 C. Wright, Federal Practice and Procedure § 515, n. 57 (1969).
"There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." Id., at 605.
See also Woodson v. North Carolina, 428 U.S. 280, 305 (opinion of STEWART, POWELL, and STEVENS, JJ.):
"Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."
Thus, it is only in cases like this in which the preclusion of lesser included offenses is linked to a mandatory death penalty that the State could even raise the possibility that the elimination of this procedural safeguard was a permissible way to reduce the arbitrary and capricious infliction of the death penalty.
"[I]f the jury finds the defendant not guilty, the defendant must be discharged. The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance. If the defendant is reindicted for an offense wherein the indictment does not allege an aggravated circumstance, the punishment upon conviction shall be as heretofore or hereafter provided by law; however, the punishment shall not be death or life imprisonment without parole."
In his instructions to the jury the trial judge stated that, if acquitted, petitioner could not be tried "for anything he ever did to Roy Malone." And, although he explained that petitioner could be retried in the event of a mistrial, he did not elaborate on what that retrial would entail. Id., at 743.
"[T]o leave sentence reduction in the prerogative of the trial court is to place undue pressures upon this office. Again, admittedly, a trial judge must often be the bulwark of the legal system when presented with unpopular causes and adverse public opinion. This State's recent history, however, reflects the outcry of unjustified criticism attendant with a trial judge's reduction of a sentence to life imprisonment without possibility of parole, after a jury has returned a sentence of death. Clearly, this pressure constitutes an undue compulsion on the trial judge to conform the sentence which he imposes with that previously returned by the jury." (Footnote omitted.)