MR. JUSTICE STEWART announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS joined.
Under Georgia law, a person convicted of murder
Nearly four years have passed since the Gregg decision, and during that time many death sentences based in whole or in part on § (b) (7) have been affirmed by the Supreme Court of Georgia. The issue now before us is whether, in affirming the imposition of the sentences of death in the present case, the Georgia Supreme Court has adopted such a broad and vague construction of the § (b) (7) aggravating circumstance as to violate the Eighth and Fourteenth Amendments to the United States Constitution.
On a day in early September in 1977, the petitioner and his wife of 28 years had a heated argument in their home. During the course of this altercation, the petitioner, who had consumed several cans of beer, threatened his wife with a knife and damaged some of her clothing. At this point, the petitioner's wife declared that she was going to leave him, and departed to stay with relatives.
In the early evening of September 20, according to the petitioner, his wife telephoned him at home. Once again they argued. She asserted that reconciliation was impossible and allegedly demanded all the proceeds from the planned sale of their house. The conversation was terminated after she said that she would call back later. This she did in an hour or so. The ensuing conversation was, according to the petitioner's account, even more heated than the first. His wife reiterated her stand that reconciliation was out of the question, said that she still wanted all the proceeds from the sale of their house, and mentioned that her mother was supporting her position. Stating that she saw no further use in talking or arguing, she hung up.
At this juncture, the petitioner got out his shotgun and walked with it down the hill from his home to the trailer where his mother-in-law lived. Peering through a window, he observed his wife, his mother-in-law, and his 11-year-old daughter playing a card game. He pointed the shotgun at his wife through the window and pulled the trigger. The charge from the gun struck his wife in the forehead and killed her instantly. He proceeded into the trailer, striking and injuring his fleeing daughter with the barrel of the gun. He then fired the gun at his mother-in-law, striking her in the head and killing her instantly.
The petitioner then called the local sheriff's office, identified himself, said where he was, explained that he had just killed his wife and mother-in-law, and asked that the sheriff come and pick him up. Upon arriving at the trailer, the law enforcement officers found the petitioner seated on a chair in open view near the driveway. He told one of the officers that "they're dead, I killed them" and directed the officer to the place where he had put the murder weapon. Later the
The petitioner was subsequently indicted on two counts of murder and one count of aggravated assault. He pleaded not guilty and relied primarily on a defense of temporary insanity at his trial. The jury returned verdicts of guilty on all three counts.
The sentencing phase of the trial was held before the same jury. No further evidence was tendered, but counsel for each side made arguments to the jury. Three times during the course of his argument, the prosecutor stated that the case involved no allegation of "torture" or of an "aggravated battery." When counsel had completed their arguments, the trial judge instructed the jury orally and in writing on the standards that must guide them in imposing sentence. Both orally and in writing, the judge quoted to the jury the statutory language of the § (b) (7) aggravating circumstance in its entirety.
The jury imposed sentences of death on both of the murder convictions. As to each, the jury specified that the aggravating circumstance they had found beyond a reasonable doubt was "that the offense of murder was outrageously or wantonly vile, horrible and inhuman."
In accord with Georgia law in capital cases, the trial judge prepared a report in the form of answers to a questionnaire for use on appellate review. One question on the form asked whether or not the victim had been "physically harmed or tortured." The trial judge's response was "No, as to both victims, excluding the actual murdering of the two victims."
The Georgia Supreme Court affirmed the judgments of the trial court in all respects. 243 Ga. 302, 253 S.E.2d 710
In Furman v. Georgia, 408 U.S. 238, the Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. Gregg v. Georgia, supra, reaffirmed this holding:
A capital sentencing scheme must, in short, provide a "`meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.'"
This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "standardless [sentencing] discretion." Gregg v. Georgia, supra, at 196, n. 47. See also Proffitt v. Florida, 428 U.S. 242; Jurek v. Texas, 428 U.S. 262. It must channel the sentencer's discretion by "clear and objective standards"
In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was "outrageously or wantonly vile, horrible and inhuman."
The standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury in this case was in no way cured by the affirmance of those sentences by the Georgia Supreme Court. Under state law that court may not affirm a judgment of death until it has independently assessed the evidence of record and determined that such evidence supports the trial judge's or jury's finding of an aggravating circumstance. Ga. Code § 27-2537 (c) (2) (1978).
In past cases the State Supreme Court has apparently understood this obligation as carrying with it the responsibility to keep § (b) (7) within constitutional bounds. Recognizing that "there is a possibility of abuse of [the § (b) (7)] statutory aggravating circumstance," the court has emphasized that it will not permit the language of that subsection simply to become a "catchall" for cases which do not fit within any other statutory aggravating circumstance. Harris v. State, 237 Ga. 718, 732, 230 S.E.2d 1, 10 (1976). Thus, in exercising its function of death sentence review, the court has said that it will restrict its "approval of the death penalty under this statutory aggravating circumstance to those cases that lie at the core." Id., at 733, 230 S. E. 2d, at 11.
When Gregg was decided by this Court in 1976, the Georgia Supreme Court had affirmed two death sentences based wholly on § (b) (7). See McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). The homicide in McCorquodale was "a horrifying
Following our decision in Gregg, the Georgia Supreme Court for the first time articulated some of the conclusions it had reached with respect to § (b) (7):
Subsequently, in Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977), the court elaborated on its understanding of § (b) (7). There, the contention was that a jury's finding of the aggravating circumstance could never be deemed unanimous without a polling of each member of the panel. The court said:
The Harris and Blake opinions suggest that the Georgia Supreme Court had by 1977 reached three separate but consistent conclusions respecting the § (b) (7) aggravating circumstance. The first was that the evidence that the offense was "outrageously or wantonly vile, horrible or inhuman" had to demonstrate "torture, depravity of mind, or an aggravated battery to the victim."
The Georgia courts did not, however, so limit § (b) (7) in the present case. No claim was made, and nothing in the record before us suggests, that the petitioner committed an aggravated battery upon his wife or mother-in-law or, in fact, caused either of them to suffer any physical injury preceding their deaths. Moreover, in the trial court, the prosecutor repeatedly told the jury—and the trial judge wrote in his sentencing report—that the murders did not involve "torture." Nothing said on appeal by the Georgia Supreme Court indicates that it took a different view of the evidence. The circumstances of this case, therefore, do not satisfy the criteria laid out by the Georgia Supreme Court itself in the Harris and Blake cases. In holding that the evidence supported the jury's § (b) (7) finding, the State Supreme Court simply asserted that the verdict was "factually substantiated."
Thus, the validity of the petitioner's death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of committing, the Georgia Supreme Court can be said to have applied a constitutional construction of the phrase "outrageously or wantonly vile, horrible or inhuman in that [they] involved . . . depravity of mind. . . ."
That cannot be said here. There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not. Accordingly, the judgment of the Georgia Supreme Court insofar as it leaves standing the petitioner's death sentences is reversed, and the case is remanded to that court for further proceedings.
It is so ordered.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment.
I continue to believe that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. In addition, I agree with the plurality that the Georgia Supreme Court's construction of the provision at issue in this case is unconstitutionally vague under Gregg v. Georgia, 428 U.S. 153 (1976). I write
Under Georgia law, the death penalty may be imposed only when the jury both finds at least one statutory aggravating circumstance and recommends that the sentence of death should be imposed. Ga. Code § 26-3102 (1978). Under Ga. Code § 27-2534.1 (b) (7) (1978), it is a statutory aggravating circumstance to commit a murder that "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." In Gregg v. Georgia, supra, the Court rejected a facial challenge to the constitutionality of this aggravating circumstance. The joint opinion conceded that it is "arguable that any murder involves depravity of mind or an aggravated battery." 428 U. S., at 201 (opinion of STEWART, POWELL, and STEVENS, JJ.). Nonetheless, that opinion refused to invalidate the provision on its face, reasoning that the statutory "language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction." Ibid. In my view, life and death should not be determined by such niceties of language.
The Court's conclusion in Gregg was not unconditional; it was expressly based on the assumption that the Georgia Supreme Court would adopt a narrowing construction that would give some discernible content to § (b) (7). In the present case, no such narrowing construction was read to the jury or applied by the Georgia Supreme Court on appeal. As it has so many times in the past, that court upheld the jury's finding with a simple notation that it was supported by the evidence. The premise on which Gregg relied has thus proved demonstrably false.
I am unwilling, however, to accept the plurality's characterization of the decision below as an aberrational lapse on the part of the Georgia Supreme Court from an ordinarily narrow construction of § (b) (7). Reasoning from two decisions rendered shortly after our decision in Gregg, Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977), and Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), the plurality suggests that from 1977 onward it has been the law of Georgia that a statutory aggravating circumstance can be found under § (b) (7) only if the offense involved torture and aggravated battery, manifested by "evidence of serious physical abuse of
In addition, I think it necessary to emphasize that even under the prevailing view that the death penalty may, in some circumstances, constitutionally be imposed, it is not enough for a reviewing court to apply a narrowing construction to
For this reason, I believe that the vices of vagueness and intolerably broad discretion are present in any case in which an adequate narrowing construction of § (b) (7) was not read to the jury, and the Court's decision today cannot properly be restricted to cases in which the particular facts appear to be insufficiently heinous to fall within a construction of § (b) (7) that would be consistent with Gregg.
The preceding discussion leads me to what I regard as a more fundamental defect in the Court's approach to death penalty cases. In Gregg, the Court rejected the position, expressed by my Brother BRENNAN and myself, that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. Instead it was concluded that in "a matter so grave as the determination of whether a human life should be taken or spared." it would be both necessary and sufficient to insist on sentencing procedures that would minimize or eliminate the
For reasons I expressed in Furman v. Georgia, supra, at 314-371 (concurring opinion), and Gregg v. Georgia, supra, at 231-241 (dissenting opinion), I believe that the death penalty may not constitutionally be imposed even if it were possible to do so in an evenhanded manner. But events since Gregg make that possibility seem increasingly remote. Nearly every week of every year, this Court is presented with at least one petition for certiorari raising troubling issues of noncompliance with the strictures of Gregg and its progeny. On numerous occasions since Gregg, the Court has reversed decisions of State Supreme Courts upholding the imposition of capital punishment,
The issue presented in this case usefully illustrates the point. The Georgia Supreme Court has given no real content to § (b) (7) in by far the majority of the cases in which it has had an opportunity to do so. In the four years since Gregg, the Georgia court has never reversed a jury's finding of a § (b) (7) aggravating circumstance.
The Georgia court's inability to administer its capital punishment statute in an evenhanded fashion is not necessarily attributable to any bad faith on its part; it is, I believe, symptomatic of a deeper problem that is proving to be genuinely intractable. Just five years before Gregg, Mr. Justice Harlan stated for the Court that the tasks of identifying "before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and [of] express[ing] these characteristics in language which can be
There can be no doubt that the conclusion drawn in McGautha was properly repudiated in Furman, where the Court made clear that the arbitrary imposition of the death penalty is forbidden by the Eighth and Fourteenth Amendments. But I believe that the Court in McGautha was substantially correct in concluding that the task of selecting in some objective way those persons who should be condemned to die is one that remains beyond the capacities of the criminal justice system. For this reason, I remain hopeful that even if the Court is unwilling to accept the view that the death penalty is so barbaric that it is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, it may eventually conclude that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it—and the death penalty— must be abandoned altogether.
MR. CHIEF JUSTICE BURGER, dissenting.
After murdering his wife and mother-in-law, petitioner informed the police that he had committed a "hideous" crime. The dictionary defines hideous as "morally offensive," "shocking," or "horrible." Thus, the very curious feature of this case is that petitioner himself characterized his crime in terms equivalent to those employed in the Georgia statute. For
More troubling than the plurality's characterization of petitioner's crime is the new responsibility that it assumes with today's decision—the task of determining on a case-by-case basis whether a defendant's conduct is egregious enough to warrant a death sentence. In this new role, the plurality appears to require "evidence of serious physical abuse" before a death sentence can be imposed under § (b) (7). Ante, at 431. For me, this new requirement is arbitrary and unfounded and trivializes the Constitution. Consider, for example, the Georgia case of Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), where the defendant killed a young woman for the thrill of it. As he later confessed, he "didn't want nothing [she] got except [her] life." Id., at 720, 230 S. E. 2d, at 4. Does the plurality opinion mean to suggest that anything in the Constitution precludes a state from imposing a death sentence on such a merciless, gratuitous killer? The plurality's novel physical torture requirement may provide an "objective" criterion, but it hardly separates those for whom a state may prescribe the death sentence from those for whom it may not.
In short, I am convinced that the course the plurality embarks on today is sadly mistaken—indeed confused. It is this Court's function to insure that the rights of a defendant are scrupulously respected; and in capital cases we must see to it that the jury has rendered its decision with meticulous care. But it is emphatically not our province to second-guess the jury's judgment or to tell the states which of their "hideous,"
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.
The sole question presented by this petition is whether, in affirming petitioner's death sentence, the Georgia Supreme Court adopted such a broad construction of Ga. Code § 27-2534.1 (b) (7) (1978) as to violate the Eighth and Fourteenth Amendments to the United States Constitution.
In early September 1977, Mrs. Godfrey, petitioner's wife, left him, moved in with her mother, and refused his entreaty to move back home. She also filed for divorce and charged petitioner with aggravated assault based on an incident in which he had cut some clothes off her body with a knife. On September 20, 1977, Mrs. Godfrey refused petitioner's request to halt divorce proceedings so that they could attempt a reconciliation. That same day petitioner carried his single-action shotgun to his mother-in-law's trailer home, where his wife, her mother, and the couple's 11-year-old daughter were playing a game around a table. Firing through a window, petitioner killed his wife with a shotgun blast to the head. As his daughter, running for help, attempted to rush past him, he struck her on the head with the barrel of the gun; she nonetheless was able to run on for help. Petitioner then reloaded his shotgun and, after entering the home, fired a fatal blast at his mother-in-law's head. After calling the police himself, petitioner was arrested, advised of his rights, and taken to the police station, where he told an officer that he had committed a "hideous crime" about which he had thought for eight years and that he would do it again.
Petitioner, over his defense of insanity, was convicted of the murders of his wife and his mother-in-law and of the
In Gregg v. Georgia, 428 U.S. 153 (1976), we upheld the constitutionality of the capital-sentencing procedures in accordance with which the State of Georgia has sentenced petitioner to death. Two aspects of that scheme impressed us in particular as curing the constitutional defects in the system that was invalidated several years earlier in Furman v. Georgia, 408 U.S. 238 (1972). First, the sentencing system specifies statutory aggravating circumstances, one of which has to be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. Ga. Code §§ 26-3102, 27-2534.1 (1978). Second, the scheme provides for automatic appeal of all death sentences to the
The opinion announcing the judgment of the Court in Gregg recognized that § (b) (7), which would authorize imposition of the death penalty here if either of the murders was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," presented some potential interpretative difficulty because "arguabl[y] . . . any murder involves depravity of mind or an aggravated battery." 428 U. S., at 201 (opinion of STEWART, POWELL, and STEVENS, JJ.). "But," the opinion continued, "this language need not be construed in this way, and there is no reason to assume
This case presents a preliminary difficulty because the sentencing jury found merely that "the offense of murder was outrageously or wantonly vile, horrible and inhuman," and did not repeat in its finding the entire incantation of § (b) (7). The Georgia Supreme Court found the jury's phraseology unobjectionable; and because this judgment was rendered in the same sentence in which the court expressed its determination that sufficient evidence supported the jury's finding of statutory aggravating circumstance § (b) (7), the court presumably believed that the jury's finding met all necessary terms of the provision notwithstanding the jury's abbreviated statement.
Petitioner argues, however, that the Georgia Supreme Court, by not deeming the jury's abbreviated statement as reversible error, has endorsed a view of § (b) (7) that allows for the provision's application upon a finding that a murder was "outrageously or wantonly vile, horrible or inhuman," even though the murder involved no "torture, depravity of mind, or . . . aggravated battery to the victim." Such a finding, petitioner contends, would be incomplete and indicative of an unconstitutionally broad construction of the provision, for the language "outrageously or wantonly vile, horrible or inhuman" cannot "objectively guide and channel jury discretion in the imposition of a death sentence in compliance with the command of the 8th and 14th Amendments. . . ." Brief for Petitioner 23. The plurality opinion seems to agree. Ante, at 428.
Thus, while both sides to this litigation felt constrained to engage in elaborate structural arguments regarding § (b) (7)— focusing on grammar and syntax, nuance and implication—I ascribe no constitutional significance at all to the jury's attenuated statement of the provision, and thus regard the question whether certain language in the section is severable from the rest as immaterial to the decision of this case.
The question remains whether the facts of this case bear sufficient relation to § (b) (7) to conclude that the Georgia Supreme Court responsibly and constitutionally discharged its review function. I believe that they do.
As described earlier, petitioner, in a coldblooded executioner's style, murdered his wife and his mother-in-law and, in passing, struck his young daughter on the head with the barrel of his gun. The weapon, a shotgun, is hardly known for the surgical precision with which it perforates its target. The murder scene, in consequence, can only be described in the most unpleasant terms. Petitioner's wife lay prone on the floor. Mrs. Godfrey's head had a hole described as "[a]pproximately the size of a silver dollar" on the side where the shot entered, and much less decipherable and more extensive damage on the side where the shot exited. Tr. 259. Pellets that had passed through Mrs. Godfrey's head were found embedded in the kitchen cabinet.
It will be remembered that after petitioner inflicted this much damage, he took out time not only to strike his daughter on the head, but also to reload his single-shot shotgun and to enter the house. Only then did he get around to shooting his mother-in-law, Mrs. Wilkerson, whose last several moments as a sentient being must have been as terrifying as the human mind can imagine. The police eventually found her face-down on the floor with a substantial portion of her head missing and her brain, no longer cabined by her skull, protruding for some distance onto the floor. Blood not only covered the floor and table, but dripped from the ceiling as well.
The Georgia Supreme Court held that these facts supported the jury's finding of the existence of statutory aggravating circumstance § (b) (7). A majority of this Court disagrees. But this disagreement, founded as it is on the notion that the lower court's construction of the provision was overly broad, in fact reveals a conception of this Court's role in back-stopping
Who is to say that the murders of Mrs. Godfrey and Mrs. Wilkerson were not "vile," or "inhuman," or "horrible"? In performing his murderous chore, petitioner employed a weapon known for its disfiguring effects on targets, human or other, and he succeeded in creating a scene so macabre and revolting that, if anything, "vile," "horrible," and "inhuman" are descriptively inadequate.
And who among us can honestly say that Mrs. Wilkerson did not feel "torture" in her last sentient moments. Her daughter, an instant ago a living being sitting across the table from Mrs. Wilkerson, lay prone on the floor, a bloodied and mutilated corpse. The seconds ticked by; enough time for her son-in-law to reload his gun, to enter the home, and to
The point is not that, in my view, petitioner's crimes were definitively vile, horrible, or inhuman, or that, as I assay the evidence, they beyond any doubt involved torture, depravity of mind, or an aggravated battery to the victims. Rather, the lesson is a much more elementary one, an instruction that, I should have thought, this Court would have taken to heart long ago. Our mandate does not extend to interfering with factfinders in state criminal proceedings or with state courts that are responsibly and consistently interpreting state law, unless that interference is predicated on a violation of the Constitution. No convincing showing of such a violation is made here, for, as MR. JUSTICE STEWART has written in another place, the issue here is not what our verdict would have been, but whether "any rational factfinder" could have found the existence of aggravating circumstance § (b) (7). Jackson v. Virginia, 443 U.S. 307, 313 (1979). Faithful adherence to this standard of review compels our affirmance of the judgment below.
Under the present statutory regime, adopted in response to Furman, the Georgia Supreme Court has responsibly and consistently performed its review function pursuant to the Georgia capital-sentencing procedures. The State reports that, at the time its brief was written, the Georgia Supreme Court had reviewed some 99 cases in which the death penalty has been imposed. Of these, 66 had been affirmed; 5 had been reversed for errors in the guilt phase; and 22 had been
The Georgia Supreme Court has vacated a death sentence where it believed that the statutory sentencing procedures, as passed by the legislature, were defective, Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974) (holding, inter alia, that the death penalty for armed robbery was impermissible), aff'd on other grounds, 428 U.S. 153 (1976); it has held that jurors must be instructed that they can impose a life sentence even though they find the existence of a statutory aggravating circumstance, Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); it has reversed the imposition of the death penalty
The Georgia Supreme Court has also been responsible and consistent in its construction of § (b) (7). The provision has been the exclusive or nonexclusive basis for imposition of the death penalty in over 30 cases. In one excursus on the provision's language, the court in effect held that the section is to be read as a whole, construing "depravity of mind," "torture," and "aggravated battery" to flesh out the meaning of "vile," "horrible," and "inhuman." Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933 (1977). I see no constitutional error resulting from this understanding of the provision. Indeed, the Georgia Supreme Court has expressly rejected an analysis that would apply the provision disjunctively, Holton v. State, supra, an analysis that, if adopted, would arguably be assailable on constitutional grounds. And the court has noted that it would apply the
Nor do the facts of this case stand out as an aberration. A jury found § (b) (7) satisfied, for example, when a child was senselessly and ruthlessly executed by a murderer who, like petitioner, accomplished this end with a shotgun. The Georgia Supreme Court affirmed. Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472, cert. denied, 444 U.S. 995 (1979). See Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976), cert. denied, 430 U.S. 975 (1977). The court has also affirmed a jury's finding of statutory aggravating circumstance § (b) (7) where,
The majority's attempt to drive a wedge between this case and others in which § (b) (7) has been applied is thus unconvincing, as is any suggestion that the Georgia Supreme Court has somehow failed overall in performance of its review function.
In the circumstances of this case, the majority today endorses the argument that I thought we had rejected in Gregg: namely, "that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it." 428 U. S., at 226 (opinion of WHITE, J.). The Georgia Supreme Court, faced with a seemingly endless train of macabre scenes, has endeavored in a responsible, rational, and consistent fashion to effectuate its statutory mandate as illuminated by our judgment in Gregg. Today, a majority of this Court, its arguments shredded by its own illogic, informs the Georgia Supreme Court that, to some extent, its efforts have been outside the Constitution. I reject this as an unwarranted invasion into the realm of state law, for, as in
I would affirm the judgment of the Supreme Court of Georgia.
"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice."
"(1) The offense of murder . . . was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
"(2) The offense of murder . . . was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
"(3) The offender by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
"(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
"(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." Ga. Code § 27-2534.1 (b) (1978).
In Arnold v. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976), the Supreme Court of Georgia held unconstitutional the portion of the first statutory aggravating circumstances encompassing persons who have a "substantial history of serious assaultive criminal convictions" because it did not set "sufficiently `clear and objective standards.'"
We note, however, that the Harris case apparently did not involve "torture" in this sense.
"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27-2534.1 (b), and
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Ga. Code § 27-2537 (c) (1978).
The plurality also notes that in the sentencing report filled out by the trial judge, he wrote that the victims here had not been physically harmed or tortured beyond the fact of their murders. But any argument supportive of the plurality's position based on the judge's sentencing report is undermined by the plurality opinion itself. For that opinion makes clear that the Georgia Supreme Court, in the course of exercising its review function, has developed "criteria" to guide its application of § (b) (7), criteria of which this Court's plurality apparently approves. Ante, at 431-432. Surely a court capable of developing such criteria is also capable of keeping them in mind when deciding the latest case to involve the statutory provision that gave birth to the criteria in the first place. Yet the plurality does not recognize the seemingly inescapable conclusion that the Georgia Supreme Court, when affirming petitioner's convictions and sentences, matched the facts of this case to its understanding of the statute and, irrespective of the trial judge's comments, concluded that § (b) (7) properly formed the basis for the imposition of the death penalty. The plurality instead seems to adopt the curious notion that a trial judge is capable of binding an appellate court in the performance of its statutory duty to review trial court determinations.
The plurality opinion also is troubled by the fact that the trial judge gave no guidance to the jurors by way, presumably, of defining the terms in § (b) (7). Ante, at 429. Yet the opinion does not demonstrate that such definitions were provided in cases in which the plurality would agree that § (b) (7) was properly applied. Nor does the opinion demonstrate that such definitions obtain a constitutional significance apart from an independent showing—absent here—that juries and courts cannot rationally apply an unequivocal legislative mandate.