JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether respondent's death penalty must be vacated because one of the three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the Supreme Court of Georgia, although the other two aggravating circumstances were specifically upheld. The answer depends on the function of the jury's finding of an aggravating circumstance under Georgia's capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be invalid.
In January 1975 a jury in Bleckley County, Georgia, convicted respondent of the murder of Roy Asbell and sentenced him to death. The evidence received at the guilt phase of his trial, which included his confessions and the testimony of a number of witnesses, described these events: On August 19, 1974, while respondent was serving sentences for several burglary convictions and was also awaiting trial for escape, he again escaped from the Houston County Jail. In the next two days he committed two auto thefts, an armed robbery, and several burglaries. On August 21st, Roy Asbell interrupted respondent and an accomplice in the course of burglarizing the home of Asbell's son in Twiggs County. Respondent
At the sentencing phase of the trial the State relied on the evidence adduced at the guilt phase and also established that respondent's prior criminal record included convictions on two counts of armed robbery, five counts of burglary, and one count of murder. Respondent testified that he was "sorry" and knew he deserved to be punished, that his accomplice actually shot Asbell, and that they had both been "pretty high" on drugs. The State requested the jury to impose the death penalty and argued that the evidence established the aggravating circumstances identified in subparagraphs (b)(1), (b)(7), and (b)(9) of the Georgia capital sentencing statute.
The trial judge instructed the jury that under the law of Georgia "every person [found] guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case." App. 18. He explained that the jury was authorized to consider all of the evidence
The jury followed the court's instruction and imposed the death penalty. It designated in writing that it had found the aggravating circumstances described as "One" and "Three" in the judge's instruction.
In his direct appeal to the Supreme Court of Georgia respondent did not challenge the sufficiency of the evidence supporting the aggravating circumstances found by the jury. Nor did he argue that there was any infirmity in the statutory definition of those circumstances. While his appeal was pending, however, the Georgia Supreme Court held in Arnold v. State, 236 Ga. 534, 539-542, 224 S.E.2d 386, 391-392 (1976), that the aggravating circumstance described in the second clause of (b)(1) — "a substantial history of serious assaultive criminal convictions" — was unconstitutionally vague.
After the Federal District Court had denied a petition for habeas corpus, the United States Court of Appeals for the Fifth Circuit considered two constitutional challenges to respondent's death sentence. 631 F.2d 397 (1980). That court first rejected his contention that the jury was not adequately instructed that it was permitted to impose life imprisonment rather than the death penalty even if it found an aggravating circumstance.
The Court of Appeals gave two reasons for that conclusion. First, it read Stromberg v. California, 283 U.S. 359 (1931), as requiring that a jury verdict based on multiple grounds be set aside if the reviewing court cannot ascertain
Second, it believed that the presence of the invalid circumstance "made it possible for the jury to consider several prior convictions of [respondent] which otherwise would not have been before it." Ibid.
In a petition for rehearing, the State pointed out that the evidence of respondent's prior convictions would have been admissible at the sentencing hearing even if it had not relied on the invalid circumstance.
In its response to our certified question, the Georgia Supreme Court first distinguished Stromberg as a case in which the jury might have relied exclusively on a single invalid ground, noting that the jury in this case had expressly relied on valid and sufficient grounds for its verdict. The court then explained the state-law premises for its treatment of aggravating circumstances by analogizing the entire body of Georgia law governing homicides to a pyramid. It explained:
We are indebted to the Georgia Supreme Court for its helpful response to our certified question. That response makes it clear that we must confront three separate issues in order to decide this case. First, does the limited purpose served by the finding of a statutory aggravating circumstance in Georgia allow the jury a measure of discretion that is forbidden by Furman v. Georgia, 408 U.S. 238 (1972), and subsequent cases? Second, has the rule of Stromberg v. California, 283 U.S. 359 (1931), been violated? Third, in this case, even though respondent's prior criminal record was properly admitted, does the possibility that the reference to the invalid statutory aggravating circumstance in the judge's instruction affected the jury's deliberations require that the death sentence be set aside? We discuss these issues in turn.
In Georgia, unlike some other States,
A fair statement of the consensus expressed by the Court in Furman is 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.). After thus summarizing the central mandate of Furman, the joint opinion in Gregg set forth a general exposition of sentencing procedures that would satisfy the concerns of Furman. 428 U. S., at 189-195. But it expressly stated: "We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these
Georgia's scheme includes two important features which the joint opinion described in its general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia has a bifurcated procedure, see id., at 190-191, and its statute also mandates meaningful appellate review of every death sentence, see id., at 195. The statute does not, however, follow the Model Penal Code's recommendation that the jury's discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. See id., at 193. Instead, as the Georgia Supreme Court has unambiguously advised us, the aggravating circumstance merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty.
Respondent argues that the mandate of Furman is violated by a scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute. But that argument could not be accepted without overruling our specific holding in Gregg. For the Court approved Georgia's capital sentencing statute even though it clearly did not channel the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances.
Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.
The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. We therefore remain convinced, as we were in 1976, that the structure of the statute is constitutional. Moreover, the narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court — that respondent had escaped from lawful confinement, and that he had a prior record of conviction for a capital felony. These two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed. Moreover, the Georgia Supreme Court in this case reviewed the death sentence to determine whether it was arbitrary, excessive, or disproportionate.
Respondent contends that under the rule of Stromberg v. California, 283 U.S. 359 (1931), and subsequent cases, the invalidity of one of the statutory aggravating circumstances underlying the jury's sentencing verdict requires that its entire death sentence be set aside. In order to evaluate this contention, it is necessary to identify two related but different rules that have their source in the Stromberg case.
In Stromberg, a member of the Communist Party was convicted of displaying a red flag in violation of the California Penal Code. The California statute prohibited such a display (1) as a "sign, symbol or emblem" of opposition to organized government; (2) as an invitation or stimulus to anarchistic action; or (3) as an aid to seditious propaganda. This Court held that the first clause of the statute was repugnant to the Federal Constitution and found it unnecessary to pass on the validity of the other two clauses because the jury's guilty verdict might have rested exclusively on a conclusion that Stromberg had violated the first. The Court explained:
One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. The cases in which this rule has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jury's decision rested. See, e. g., Williams v. North Carolina, 317 U.S. 287, 292 (1942); Cramer v. United States, 325 U.S. 1, 36, n. 45 (1945); Terminiello v. Chicago, 337 U.S. 1, 5-6 (1949); Yates v. United States, 354 U.S. 298, 311-312 (1957). This rule does not require that respondent's death sentence be vacated, because the jury did not merely return a general verdict stating that it had found at least one aggravating circumstance. The jury expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty.
The second rule derived from the Stromberg case is illustrated by Thomas v. Collins, 323 U.S. 516, 528-529 (1945), and Street v. New York, 394 U.S. 576, 586-590 (1969). In
The Court's opinion in Street explained:
The rationale of Thomas and Street applies to cases in which there is no uncertainty about the multiple grounds on which a general verdict rests. If, under the instructions to the jury, one way of committing the offense charged is to perform an act protected by the Constitution, the rule of these cases requires that a general verdict of guilt be set aside even if the defendant's unprotected conduct, considered separately, would support the verdict. It is a difficult theoretical question whether the rule of Thomas and Street applies to the Georgia death penalty scheme. The jury's imposition of the death sentence after finding more than one aggravating circumstance is not precisely the same as the jury's verdict of guilty on a single-count indictment after finding that the defendant has engaged in more than one type of conduct encompassed by the same criminal charge, because a wider range of considerations enters into the former determination. On the other hand, it is also not precisely the same as the imposition of a single sentence of imprisonment after guilty verdicts on each of several separate counts in a multiple-count indictment,
In Stromberg, Thomas, and Street, the trial courts' judgments rested, in part, on the fact that the defendant had been found guilty of expressive activity protected by the First Amendment. In contrast, in this case there is no suggestion that any of the aggravating circumstances involved any conduct protected by the First Amendment or by any other provision of the Constitution. Accordingly, even if the Stromberg rules may sometimes apply in the sentencing context, a death sentence supported by at least one valid aggravating circumstance need not be set aside under the second Stromberg rule simply because another aggravating circumstance is "invalid" in the sense that it is insufficient by itself to support the death penalty. In this case, the jury's finding that respondent was a person who has a "substantial history of serious assaultive criminal convictions" did not provide a sufficient basis for imposing the death sentence. But it raised none of the concerns underlying the holdings in Stromberg, Thomas, and Street, for it did not treat constitutionally protected conduct as an aggravating circumstance.
Two themes have been reiterated in our opinions discussing the procedures required by the Constitution in capital sentencing determinations. On the one hand, as the general comments in the Gregg joint opinion indicated, 428 U. S., at 192-195, and as THE CHIEF JUSTICE explicitly noted in Lockett v. Ohio, 438 U. S., at 605 (plurality opinion), there can be "no perfect procedure for deciding in which cases governmental authority should be used to impose death." See also Beck v. Alabama, 447 U.S. 625, 638, n. 13 (1980). On the other hand, because there is a qualitative difference between death and any other permissible form of punishment, "there is a corresponding difference in the need for reliability
Respondent contends that the death sentence was impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a "substantial history of serious assaultive criminal convictions," for these instructions may have affected the jury's deliberations. In analyzing this contention it is essential to keep in mind the sense in which that aggravating circumstance is "invalid." It is not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. Georgia has not, for example, sought to characterize the display of a red flag, cf. Stromberg v. California, the expression of unpopular political views, cf. Terminiello v. Chicago, 337 U.S. 1 (1949), or the request for trial by jury, cf. United States v. Jackson, 390 U.S. 570 (1968), as an aggravating circumstance. Nor has Georgia attached the "aggravating" label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant, cf. Herndon v. Lowry, 301 U.S. 242 (1937), or to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness. Cf. Miller v. Florida, 373 So.2d 882, 885-886 (Fla. 1979). If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury's decision to impose death be set aside.
We expressly rejected petitioner's objection to the wide scope of evidence and argument allowed at presentence hearings.
See id., at 206-207; see also n. 17, supra.
Thus, any evidence on which the jury might have relied in this case to find that respondent had previously been convicted of a substantial number of serious assaultive offenses, as he concedes he had been, was properly adduced at the sentencing hearing and was fully subject to explanation by the defendant.
Although the Court of Appeals acknowledged on rehearing that the evidence was admissible, it expressed the concern that the trial court's instructions "may have unduly directed the jury's attention to his prior conviction." 648 F. 2d, at 446. But, assuming that the instruction did induce the jury to place greater emphasis upon the respondent's prior criminal record than it would otherwise have done, the question remains whether that emphasis violated any constitutional right. In answering this question, it is appropriate to compare the instruction that was actually given, see supra, at 866, with an instruction on the same subject that would have been unobjectionable. Cf. Henderson v. Kibbe, 431 U.S. 145, 154-157 (1977). Nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant's prior criminal record in making its sentencing determination, see n. 17, supra, even though the defendant's prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence. There would have been no constitutional infirmity in an instruction stating, in substance: "If you find beyond a reasonable doubt that the defendant is a person who has previously been convicted of a capital felony, or that he has escaped from lawful confinement, you will be authorized to impose the death sentence, and in deciding whether or not that sentence is appropriate you may consider the remainder of his prior criminal record."
The effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label "aggravating circumstance." That label arguably might have caused the jury to give somewhat greater weight to respondent's prior criminal record than it otherwise would have given. But we do not think the Georgia Supreme
Finally, we note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is "invalid" under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty. See n. 12, supra. As we have discussed, see supra, at 873-880, the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances, and Georgia has not adopted such a system.
The judgment of the Court of Appeals is
In Claassen v. United States, 412 U.S. 140 (1891), the defendant in a criminal case was found guilty on 5 of 11 counts on which the jury was instructed. The verdict was a general one and one 6-year sentence was imposed. On writ of error, this Court affirmed the conviction and sentence, saying that the first "count an the verdict of guilty returned upon it being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered." Id., at 146. Similarly, in Barenblatt v. United States, 360 U.S. 109 (1959), a defendant was convicted on each of five counts, and a general sentence was imposed. The Court said, id., at 115: "Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable" (footnote omitted). Pinkerton v. United States, 328 U.S. 640, 641, n. 1 (1946); Whitfield v. Ohio, 297 U.S. 431, 438 (1936); Abrams v. United States, 250 U.S. 616, 619 (1919); and Evans v. United States, 153 U.S. 584, 595 (1894), were similar holdings. It is therefore clear that in cases such as Claassen and Barenblatt, there is no Stromberg, Thomas, or Street problem.
Thus in may view there would be no Stromberg-Thomas-Street problem, as such, if the invalid count had rested on constitutionally inadmissible evidence. But since the jury is instructed to take into account all the evidence, there would remain the question whether the inadmissible evidence invalidates the sentence. Perhaps it would, but at least there
Except for the foregoing, I join the Court's opinion and its judgment as well.
JUSTICE REHNQUIST, concurring in the judgment.
While agreeing with the Court's judgment, I write separately to make clear my understanding of the application of the Eighth and Fourteenth Amendments to the capital sentencing procedures and used in this case. I agree with the Court's treatment of the factual and procedural background of the case, and with its characterization of the question presented for review. In brief, we must decide whether the procedure by which Georgia imposed the death sentence comports with the Eight and Fourteenth Amendments; whether, in this case, imposition of the death sentence violates the rule of Stromberg v. California, 283 U.S. 359 (1931); and whether the erroneous presentation to a jury of an invalid aggravating circumstance requires vacating the death sentence imposed by that jury.
The Georgia death sentencing procedure is comprehensively detailed in the statutes of the State, decisions of the Georgia courts, the opinion issued by the Georgia Supreme Court in response to the questioned certified by this Court, Zant v. Stephens, 455 U.S. 410 (1982), and the jury instructions in this case. As these materials reveal, two separate proceedings are necessary to imposition of the death sentence in Georgia. The first stage is simply a traditional criminal trial on the question of guilt or innocence. If the defendant is found guilty of a capital offense, a separate sentencing proceedings is then conducted.
At this second proceeding, the State and the defendant are permitted to introduce a wide range of evidence in "extenuation, mitigation, and aggravation of punishment." Ga. Code
Respondent challenges the Georgia death sentencing system as violative of the Eight Amendment, on the grounds that it fails adequately to channel the discretion of the sentencing body. In particular, respondent urges that the absence of an instruction that the sentence must balance statutory aggravating circumstances against mitigating circumstances before imposing the death sentence render the scheme unconstitutional under the reasoning in Furman v. Georgia, 408 U.S. 238 (1972). Respondent's claim is, in my opinion, completely foreclosed by this Court's precedents.
Except in minor detail, Georgia's current system is identical to the sentencing procedure we held constitutional in Gregg v. Georgia, 428 U.S. 153 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); id., at 207 (WHITE, J., concurring in judgment). The joint opinion in Gregg fully recognized that the Georgia scheme did not direct the sentencing body that statutory aggravating and mitigating circumstances were to be weighed against each other in any formal sense. This is evident from its careful description of the Georgia scheme, id., at 196-197, and its treatment of the
Respondent next contends that Stromberg v. California, 283 U.S. 359 (1931), requires that his death sentence be set aside. Respondent's argument rests on the fact that one of the three aggravating circumstances specified by the jury in
Careful examination of Stromberg, cases following that decision, and the role of aggravating circumstances in a jury's imposition of the death penalty compels rejection of respondent's claim. Stromberg presented a straightforward case. The defendant was convicted for violating a California statute prohibiting the display of a red flag for any of three separate purposes. At trial the jury was instructed that the defendant should be convicted if he acted with any one of the proscribed purposes; it returned a general verdict of guilty without indicating which purpose it believed motivated the defendant. This Court concluded that the first of the clauses of the statute detailing impermissible purposes was unconstitutional, and held that it was unnecessary to decide the validity of the remaining two clauses. The Court observed that the prosecutor had "emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses." 283 U. S., at 368. It concludes that it was "impossible to say under which clause of the statute the conviction was obtained," ibid., and that, given this complete uncertainty, the conviction could not stand. See also Williams v. North Carolina, 317 U.S. 287,
As the Court points out, the Stromberg doctrine subsequently was extended — albeit without lengthy analysis. In Street v. New York, 394 U.S. 576, 586-590(1969), the Court vacated a conviction based on a single-count indictment, for casting contempt on the United States flag. The statute under which petitioner was convicted criminalized casting contempt upon the flag by "words or act." Id., at 578. The information filed against petitioner alleged that he violated this statue because he both burned the flag and shouted derogatory statement about it. Likewise, the State introduced evidence at the bench trial of both the petitioners act and his speech. The Court concluded that petitioners constitutional rights would have been violated had he been punished for his speech. It thought, moreover, that the trial judge might have rested his finding solely on petitioners speech, which presented a situation similar to that in Stromberg.
In addition, however, the Court believed that, on the record of the case, there was an "unacceptable danger that the trier of fact . . . regarded the two acts as `intertwined' and . . . rested the conviction on both together." 394 U. S., at 588. In short, when an element of a crime is defined to included constitutionally projected actions, and when the States alleges, argues, and offer proof that the defendant's protected conduct satisfied the element, then a general verdict of guilty must be set aside, even if the State also alleged and proved another course of conduct that could have satisfied the element. As in Stromberg, however, the Court also noted that when the record indicates that he jury's verdict did not rest on an "intertwined" combination of protected and
Neither the Stromberg line of case nor Street provides respondent with appreciable support. I agree with the Court that the Stromberg rule is plainly distinguished since the jury explicated returned two concededly valid aggravation circumstances, thereby conclusively negating the inference that it rested solely on the invalid circumstances. Likewise, I conclude that the analysis in Street is inapposite.
As indicated above, Street explicitly stated that its rule regarding the treatment of aggravating circumstance is inapplicable "when the indictment or information is in several counts and the conviction is explicitly declared to rest on finding of guilt on certain of those counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others." 394 U. S., at 588 (footnote omitted.) This exception to the Street rule extends to the jury's determination in this case that certain specified aggravating circumstances existed. The jury received separate instructions as to each of several aggravating circumstances, and returned a verdict from separately listing three circumstances. The fact that one of these subsequently proved to be invalid does not affect the validity of the remaining two jury findings, just as the reversal on appeal of one of several convictions returned to separate
Street's logic is even less applicable to a Georgia death jury's second decision, namely, that the defendant deserved the death sentence. Under the respondent's theory, the jury's verdict of death was based in part on an aggravating circumstances that later proved invalid, and which, according to respondent must thus fall under the rule of Street. Whatever its proper application elsewhere, Street's rule cannot fairly be extended to the sentencing context. As discussed below, the significant difference between the role of aggravating circumstances in the jury's decision to imposed the death sentence and role played by instructions or allegations in a jury's determination of guilt preclude applying Street to the sentencing context.
The rule relied upon by respondent was developed in a situation where a factfinder returns a verdict of guilty on a specific criminal charge. In returning this verdict, the jury decides whether the defendant committed a specific set of defined acts with a particular mental state. These elements each of which is necessary to the verdict of guilty, are specifically and carefully enumerated and defined in the indictment or information and the instructions to the jury. Only evidence relevant to the particular elements alleged by the State is admissible, even then, subject to exclusion of prejudicial evidence which might distract the jury from the specific factfinding task it performs. Based on this evidence the jury decides whether each of the elements constituting the offense was proved beyond a reasonable doubt. The Court's observation in Williams v. New York, 337 U.S. 241, 246-247 (1949), accurately captures the character of the procedure
The decision by a Georgia death jury at the final stage of its deliberations to impose death is a significantly different decision from the model just described. A wide range of evidence is admissible on literally countless subjects: "We have long recognized that `[f]or the determination of sentence, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Gregg, 428 U. S., at 189 (emphasis added. In considering this evidence, the jury does not attempt to decide whether particular elements have been proved, but instead makes a unique, individualized judgment regarding the punishment that a particular person deserves. See Lockett v. Ohio, 438 U.S. 586, 602-605 (1978).
The role of aggravating circumstances in making this judgment is substantially more limited than the role played by jury instructions or allegations in an indictment in an ordinary trial. In Georgia, aggravating circumstances serve principally to restrict the class of defendants subject to the death sentence; once a single aggravating circumstances is specified, the jury then considers all the evidence in aggravation-mitigation in deciding whether to impose the death penalty, see Part I, supra. An aggravating circumstance in this latter stage is simply one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant.
If an aggravating circumstance is revealed to be invalid, the probable effect of this fact alone on the jury's second decision — whether the death sentence is appropriate — is minimal. If one of the few theories of guilt presented to the jury
Respondent contends next that, even if Street is inapplicable the erroneous submission to the jury of an instruction which we are bound to regard as unconstitutionally vague, see n. 3, supra, must have had sufficient effect on the jury's deliberations to require vacating its verdict. Although our prior decisions are not completely consistent regarding the effect of constitutional error in sentencing proceedings on the sentence imposed on the defendant, in general sentencing decisions are accorded far greater finality than convictions.
Ordinarily, a sentence within statutory limits is beyond appellate review. Gore v. United States, 357 U.S. 386, 393 (1958). In Street, 394 U. S., at 588, n. 9, we cited approval to several of a long line of sentencing decisions. In Claassen v. United States, 142 U.S. 140 (1891); Pinkerton v. United States, 328 U.S. 640 (1946); and Barenblatt v. United States, 360 U.S. 109 (1959), defendants were convicted on several separate counts and received "general sentence,"
The practical basis for the rules articulated in Gore and the Claassen line of cases is clear. As indicated above, sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does. The fact that one of the countless considerations that the sentencer would have taken into account was erroneous, misleading, or otherwise improperly before him, ordinarily can be assumed not to have been a necessary basis for his decision. Nonetheless in limited cases, non capital sentencing decisions are vacated for resentencing.
In United States v. Tucker, 404 U.S. 443 (1972), two uncounseled — and therefore unconstitutionally obtained — convictions were introduced against the defendant in the sentencing proceeding. The Court observed that the sentencing judge gave "explicit" and specific" attention, id., at 444, 447, to these convictions. Moreover, it noted that the defendant would have "appeared in a dramatically different light" had the true character of the unconstitutional convictions been known: the judge would have been dealing with a
Similarly, in Townsend v. Burke, 334 U.S. 736 (1948), an uncounseled defendant was sentenced following a proceeding in which the trial judge explicitly an repeatedly relied upon the incorrect assumption that the defendant had been convicted of several crimes. The Court observed that "[i]t is not the duration of severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process." Id., at 741.
The approach taken in Tucker, Townsend, and the Claassen line of cases begins with the presumption that, since the sentencer's judgment rested on countless variables, an error made in one portion of the sentencing proceeding ordinarily should not affect the sentence. This presumption is most plainly revealed by the Claassen line of cases, where a sentence will stand even if it turns out that the crimes for which the defendant was sentenced had not all been committed. Nonetheless, the defendant may adduce evidence that the sentencing body likely would have acted differently had the error not occurred. In order to prevail on such a claim, however, we have required a convincing showing that the introduction of specific constitutionally infirm evidence had an ascertainable and "dramatic" impact on the sentencing authority. See United States v. Tucker, supra; Townsend v. Burke, supra. Of course, a more careful application of this standard is appropriate in capital cases.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins dissenting.
Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I could scarcely join in upholding a death sentence based in part upon a statutory aggravating circumstance so vague that its application turns solely on the "whim" of the jury. Arnold v. State, 236 Ga. 534, 541, 224 S.E.2d 386, 391 (1976).
The submission of the unconstitutional statutory aggravating circumstance to the jury cannot be deemed harmless error on the theory that "in Georgia, the finding of an aggravating
In any event, the jury that sentenced respondent to death was never informed of this "threshold" theory, which was invented for the first time by the Georgia Supreme Court more than seven years later. Under the instruction actually given, a juror might reasonably have concluded, as has this Court in construing essentially identical instructions, that any aggravating circumstances, including statutory aggravating circumstances, should be balanced against any mitigating circumstances in the determination of the defendant's sentence. There is no way of knowing whether the jury would have sentenced respondent to death if its attention had not been drawn to the unconstitutional statutory factor.
I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, supra, at 231 (MARSHALL, J., dissenting); Furman v. Georgia, supra, at 314 (MARSHALL, J., concurring).
Today the Court upholds a death sentence that was based in part on a statutory aggravating Circumstance which the State concedes was so amorphous that it invited "subjective decision-making without . . . minimal, objective guidelines for its application." Arnold v. State, supra, at 541, 224 S. E. 2d, at 391. In order to reach this surprising result, the Court embraces the theory, which it infers from the Georgia Supreme Court's response to this Court's certified question,
If the jury instructions given some eight years ago were consistent with this new theory, we could assume that the jury did not focus on the vague statutory aggravating circumstance in making its actual sentencing decision. But if the jury had been so instructed, the instructions would have been constitutionally defective for a more basic reason, since they would have left the jury totally without guidance once it found a single statutory aggravating circumstance.
Until this Court's decision in Furman v. Georgia in 1972, the capital sentencing procedures in most States delegated to judges and juries plenary authority to decide when a death sentence should be imposed. The sentencer was given "practically untrammeled discretion to let an accused live or insist that he die." Furman v. Georgia, supra, at 248 (Douglas, J., concurring) (footnote omitted).
In Furman this Court held that the system of capital punishment then in existence in this country was incompatible with the Eighth and Fourteenth Amendments. As was later recognized in Gregg v. Georgia, Furman established one basic proposition if it established nothing else: "where the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments." 428 U. S., at 195, n. 47 (opinion of Stewart, POWELL, and STEVENS, JJ.). The basic teaching of Furman is that a State may not leave the decision whether a defendant lives or dies to the unfettered discretion of the jury, since such a scheme is "pregnant with discrimination," 408 U. S., at 257 (Douglas, J., concurring), and inevitably results in death sentences which are "wantonly and . . . freakishly imposed," id., at 310 (Stewart, J., concurring), and for which "there is no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many
Four years after Furman was decided, this Court upheld the capital sentencing statutes of Georgia, Florida, and Texas against constitutional attack, concluding that those statutes contained safeguards that promised to eliminate the constitutional deficiencies found in Furman. See Gregg v. Georgia; Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). The Court's conclusion was based on the premise that the statutes ensured that sentencers would be "given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision." Gregg v. Georgia, 428 U. S., at 192 (opinion of Stewart, POWELL, and STEVENS, JJ.).
In Godfrey v. Georgia, 446 U.S. 420 (1980), the Court reiterated that a State "must channel the sentencer's discretion by `clear and objective standards' that provide `specific and detailed guidance.' " Id., at 428 (plurality opinion) (citations
Today we learn for the first time that the Court did not mean what it said in Gregg v. Georgia. We now learn that the actual decision whether a defendant lives or dies may still be left to the unfettered discretion of the jury. Although we were assured in Gregg that sentencing discretion was " `to be exercised . . . by clear and objective standards,' " 428 U. S., at 198 (opinion of Stewart, POWELL, and STEVENS, JJ.), we are now told that the State need do nothing whatsoever to guide the jury's ultimate decision whether to sentence a defendant to death or spare his life.
Under today's decision all the State has to do is require to jury to make some threshold finding. Once that finding is made, the jurors can be left completely at large, with nothing to guide them but their whims and prejudices. They need not even consider any statutory aggravating circumstances that they have found to be applicable. Their sentencing decision is to be the product of their discretion and of nothing else.
If this is not a scheme based on "standardless jury discretion," Gregg v. Georgia, 428 U. S., at 195, n. 47 (opinion of Stewart, POWELL, and STEVENS, JJ.), I do not know what is. Today's decision makes at absolute mockery of this Court's precedents concerning capital sentencing procedures. There is no point in requiring state legislatures to identify specific aggravating circumstances if sentencers are to be left free to ignore them in deciding which defendants are to die. If this is all Gregg v. Georgia stands for, the States may as well be
The system of discretionary sentencing that the Court approves today differs only in form from the capital sentencing procedures that this Court held unconstitutional more than a decade ago. The only difference between Georgia's pre-Furman capital sentencing scheme and the "threshold" theory that the Court embraces today is that the unchecked discretion previously conferred in all cases of murder is now conferred in cases of murder with one statutory aggravating circumstances. But merely circumscribing the category of cases eligible for the death penalty cannot remove from constitutional scrutiny the procedure by which those actually sentenced to death are selected.
More than a decade ago this Court struck down an Ohio statute that permitted a death sentence only if the jury found that the victim of the murder was a police officer, but gave the jury unbridled discretion once that aggravating factor was found. Duling v. Ohio, 408 U.S. 936 (1972), summarily rev'g 21 Ohio St.2d 13, 254 N.E.2d 670 (1970). See Ohio Rev. Code Ann. § 2901.04 (1953). There is no difference of any consequence between the Ohio scheme held impermissible in Duling and the "threshold" scheme that the Court endorses today. If, as Duling establishes, the Constitution prohibits a State from defining a crime (such as murder of a police officer) and then leaving the decision whether to impose the death sentence to the unchecked discretion of the jury, it must also prohibit a State from defining a lesser crime (such as murder) and then permitting the jury to make a standardless sentencing decision once it has found a single aggravating factor (such as that the victim was a police officer). In both cases the ultimate decision whether the defendant will be killed is left to the discretion of the sentencer, unguided by any legislative standards.
In any event, the jury that sentenced respondent to death was never apprised of the "threshold" theory relied upon by the Court. There is no basis for the Court's assumption,
In the first place,
In deciding whether respondent deserved to die, the jurors might well have deemed his prior assaults unimportant if the judge had not specifically focused on them in his charge.
Second, the Court's assertion that "in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion," ante, at 874, is flatly inconsistent with this Court's own previous characterizations of the function of statutory aggravating circumstances in the Georgia scheme. In Gregg v. Georgia, where the jury instructions were essentially identical to those given here,
The Court's assumption that respondent's jury did not balance aggravating circumstances against mitigating circumstances is also inconsistent with this Court's characterization of the almost identical instructions given in Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion). See App. in Coker v. Georgia, O. T. 1976, No. 75-5444, pp. 298-302. In Coker, as in this case, the jury was not expressly instructed to weigh aggravating against mitigating circumstances, but the plurality opinion sensibly recognized that such a weighing is inherent in any determination of whether mitigating circumstances warrant a life sentence notwithstanding the existence of aggravating circumstances:
I would like to know how the jury that sentenced respondent to death in 1975 could have known that statutory aggravating circumstances were to play only a threshold role in their deliberations, when this Court itself has interpreted essentially identical instructions to require a weighing of aggravating and mitigating circumstances and as recently as last Term found it necessary to ask the Georgia Supreme Court to clarify what the instructions in this case meant. We are presented with "different and conflicting theories regarding a charge designed to guide the jury . . . , and yet we are asked to sustain the [death sentence] on the assumption that the jury was properly guided." Bollenbach v. United States, 326 U.S. 607, 613 (1946). For my part, I believe that a death sentence "ought not to rest on an equivocal direction to the jury on a basic issue." Ibid. It is patently unfair to assume that the jury that sentenced respondent somehow understood that statutory aggravating circumstances were to receive no special weight and were not to be balanced against mitigating circumstances. Respondent is "entitled to have the validity of [his sentence] appraised on consideration of the case as it was tried and as the issues were determined in the trial court,"Cole v. Arkansas, 333 U.S. 196, 202 (1948); see Presnell v. Georgia, 439 U.S. 14, 16 (1978), not on a theory that has been adopted for the first time after the fact.
Once it is recognized that respondent's jury may well have assumed that statutory aggravating circumstances deserve
There is simply no way for this Court to know whether the jury would have sentenced respondent to death if the unconstitutional statutory aggravating circumstance had not been included in the judge's charge. If it is important for the State to authorize and for the prosecution to request the submission of a particular statutory aggravating circumstance to the jury, "we must assume that in some cases [that circumstance] will be decisive in the [jury's] choice between a life sentence and a death sentence." Gardner v. Florida, 430 U.S. 349, 359 (1977) (opinion of STEVENS, J.).
As Justice Stewart pointed out in a similar case, "under Georgia's capital punishment scheme, only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death." Drake v. Zant, 449 U.S. 999, 1001 (1980) (dissenting from denial of certiorari) (emphasis added). Although the Court labors mightily in an effort to demonstrate that submission of the unconstitutional statutory aggravating circumstance did not affect the jury's verdict, there is no escape from the conclusion — reached by JUSTICE POWELL only last Term — that respondent was sentenced to death "under instructions that could have misled the jury." Zant v. Stephens, 456 U. S., at 429 (POWELL, J., dissenting).
As I read the Court's opinion, the Court does not deny that respondent might have received only a life sentence if the unconstitutional aggravating circumstance had not been submitted to the jury. Rather, the Court assumes that "the instruction did induce the jury to place greater emphasis upon the respondent's prior criminal record than it would otherwise have done." Ante, at 888. The Court concludes, however, that the submission of this unconstitutional statutory factor does not amount to "a constitutional defect in the sentencing process," ante, at 889, because the jury could properly have been instructed to decide whether either of the other two statutory factors applied and told in addition that "in deciding whether or not [a death] sentence is appropriate you may consider the remainder of [the defendant's] prior criminal record," ante, at 888. The Court finds no constitutional difference between this charge and the charge actually given.
Even assuming that it is proper to sustain a death sentence by reference to a hypothetical instruction that might have been given but was not, the Court errs in assuming that the hypothetical instruction would satisfy the Constitution. As elaborated in Part II above, this Court's decisions establish that the actual determination whether a defendant shall live or die — and not merely the threshold decision whether he is eligible for a death sentence — must be guided by clear and objective standards. The focus of the sentencer's attention must be directed to specific factors whose existence or nonexistence can be determined with reasonable certainty. Since the hypothetical instruction would fail to channel the
For the foregoing reasons, I would vacate respondent's death sentence.
"In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
"(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
"(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."
"(1) The offense of Murder was committed by a person with a prior record of conviction for a capital felony. 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 by a person who has escaped from the lawful custody of a peace officer and place of lawful confinement." App. 23.
"What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury?" 456 U. S., at 416-417.
"Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1(b) (Supp. 1975). The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp. 1975), but it must find a statutory aggravating circumstance before recommending a sentence of death." 428 U. S., at 196-197; see also id., at 161, 165, 206-207. Cf. id., at 208, 218, 222 (opinion of WHITE, J., concurring in judgment).
The joint opinion issued the same day in Jurek v. Texas, 428 U.S. 262 (1976), makes clear that specific standards for balancing aggravating against mitigating circumstances are not constitutionally required. In Jurek we held that the State's action in "narrowing the categories of murders for which a death sentence may ever be imposed" served much the same purpose as the lists of statutory aggravating circumstances that Georgia and Florida had adopted. Id., at 270. We also held that one of the three questions presented to the sentencing jury permitted the defendant to bring mitigating circumstances to the jury's attention. Id., at 273-274. Thus, in Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution and certainly were not explicitly balanced against each other.
In Gregg, the joint opinion again recognized the need for legislative criteria to limit the death penalty to certain crimes: "[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." 428 U. S., at 184. The opinion also noted with approval the efforts of legislatures to "define those crimes and those criminals for which capital punishment is most probably an effective deterrent." Id., at 186. The opinion of JUSTICE WHITE concurring in the judgment in Gregg asserted that, over time, as the aggravating circumstance requirement was applied, "the types of murders for which the death penalty may be imposed [would] become more narrowly defined and [would be] limited to those which are particularly serious or for which the death penalty is peculiarly appropriate." Id., at 222. Cf. Roberts (Harry) v. Louisiana, 431 U.S. 633, 636 (1977) (the State may consider as an aggravating circumstance the fact that the murder victim was a peace officer performing his regular duties, because there is "a special interest in affording protection to those public servants who regularly must risk their lives in order to guard the safety of other persons and property").
A State is, of course, free to decide as a matter of state law to limit the evidence of aggravating factors that the prosecution may offer at the sentencing hearing. A number of States do not permit the sentencer to consider aggravating circumstances other than those enumerated in the statute. See Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 101-119 (1980); see, e. g., Ark. Stat. Ann. § 41-1301(4) (1977); 42 Pa. Cons. Stat. § 9711(a)(2) (1980).
"In performing the sentence comparison required by Code Ann. § 27-2537(c)(3), this court uses for comparison purposes not only similar cases in which death was imposed, but similar cases in which death was not imposed." 237 Ga., at 262, 227 S. E. 2d, at 263.
As an appendix to the opinion it provided a list of the similar cases it had considered, as the statute requires. Id., at 263, 227 S. E. 2d, at 264. See also Ross v. State, 233 Ga. 361, 364-367, 211 S.E.2d 356, 358-360 (1974); Tucker v. State, 245 Ga. 68, 74, 263 S.E.2d 109, 113 (1980).
Nonetheless, for the purposes of this opinion I will assume that the majority has correctly characterized the Georgia Supreme Court's explanation of the Georgia capital sentencing procedure.
Nor is mandatory appellate review a substitute for legislatively defined criteria to guide the jury in imposing sentence. Ante, at 890. Although appellate review may serve to reduce arbitrariness and caprice "[w]here the sentencing authority is required to specify the factors it relied upon in reaching its decision," Gregg v. Georgia, supra, at 195 (opinion of Stewart, POWELL, and STEVENS, JJ.), appellate review cannot serve this function where statutory aggravating circumstances play only a threshold role and an appellate court therefore has no means of ascertaining the factors underlying the jury's ultimate sentencing decision.
It is one thing to bring to the jury's attention a readily identifiable factor such as the defendant's prior criminal record, and leave it to the jury to decide what weight that factor should receive. It is quite another thing to ask the jury to determine the applicability of a statutory factor that no group of individuals of ordinary intelligence can be expected to apply in any objective way, and then, if the issue is resolved against the defendant, to take that factor into account in imposing sentence. Both instructions invite the exercise of discretion as to the weight to be given to the statutory factor, but the instruction given here has the further vice of requiring an arbitrary determination that can only be made in a haphazard way. It is as if the jurors were asked to flip a coin and weigh the result in their sentencing decision. Even if the hypothetical charge cited by the Court were proper, the charge given in this case would still be impermissible because it injected an arbitrary determination into the sentencing process.