lfp/ss 4/1/76

April 1, 1976

No. 74-6257 GREGG v. GEORGIA

Capital Case - Georgia Statute

The Georgia statute, by a bifurcated system, imposes a

mandatory death penalty only in certain specific situations in

which there are one or more "aggravating" circumstances.

Guilt is determined at the first phase trial. This is

followed by a separate sentencing hearing which may impose death

only if one or more of the aggravating circumstances is found

to exist beyond a reasonable doubt.

There are ten specified aggravating circumstances, ranging

from the very specific (~.g., murder of a judge, prisoner, on­

duty policeman, a repeat murder) to the relatively vague circum­

stances of a defendant "who has a substantial history of serious

assaultive criminal convictions," or where the murder was

outrageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind, or an aggregated battery

to the victim".

On appeal, the Georgia Supreme Court is required to consider

whether, in reaching its verdict, the jury had acted arbitrarily.

In addition, the appellate court must determine whether the

evidence supports the finding of a statutory "aggravating"

circumstances, and whether the penalty is excessive in comparison

to that inflicted in other cases.

. ~

lfp/ss 4/1/76 -April 1, 1976

No. 74-6257 GREGG v. GEORGIA

Capital Case ~ Georgia Statute

The Georgia statute, by a bifurcated system, imposes a

mandatory death penalty only in certain specific situations in

which there are one or more "aggravating" circumstances.

Guilt is determined at the first phase trial, This is

followed by a separate sentencing hearing which may impose death

only if one or more of the aggravating circumstances is found

to exist beyond a reasonable doubt.

There are ten specified aggravating circumstances, ranging

from the very specific (~·&·, murder of a judge, prisoner, on­

duty policeman, a repeat murder) to the relatively vague circum­

stances of a defendant "who has a substantial history of serious

assaultive criminal convictions, 11 or where the murder was

outrageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind, or an aggregated battery

to the victim".

On appeal, the Georgia Supreme Court is required to consider

whether, in reaching its verdict, the jury had acted arbitrarily.

In addition, the appellate court must determine whether the

evidence supports the finding of a statutory "aggravating"

circumstances, and whether the penalty is excessive in comparison

to that inflicted in other cases •

lfp/ss 4/1/76 Z"f c~w~ \. tW-u

April 1, 1976

No. 75-5394 JUREK v. TEXAS r~ ~~.:b~ .

Capital Case - Texas Statute ~ ~ 4-r4~··•~

'-~~-i Mandatory capital punishment, limited to .rve cate€or~ •

of murder that are defined in such a way as to include

"aggravating" factors: (i) murder of on-duty officer or fire­

man; (ii) kidnapping murder, (iii) felony murder in burglary,

rape or arson; (iv) murder for hire; (v) murder during escape

from a prison or of a prison employee. There is a bifurcated

trial. If the jury convicts, a separate hearing is held to

determine whether punishment should be life imprisonment or

elect rocution. Any relevant evidence may be introduced at the

second trial. The jury is required to answer three questions

affirmatively and unanimously before the death sentence is imposec

The questiotll put to the sentencing jury leave room for

consideration discretion: Is the murder "intentionally"

committed in the course of a felony? What kind of probability

is required as to a defendant's consti tuting "a continuing

threat to society"?

But the statute reflects a careful attempt to provide

standards to guide a jury to its judgment. In the end, however,

this judgment - as is true of so many in any system of justice -

is largely subjective.

·.o·,

lfp/ss 4/1/76

April 1, 1976 No. 75-5491 Woodson v. North Carolina

Capital Case - North carolina Statute

Mandatory sentence of death whenever the defendant is

convicted of one of a series of specified crimes.

Statute is not limited to a few particularly heinous

crimes. It provides for capital punishment in all cases of

felony murder, and for murder "perpetrated by means of poison,

lying in wait, imprisonment, starving, torture, or by any other

kind of willful, deliberate and premeditated killing".

This seems to be the statutory equivalent of North

Carolina's post-Furman judicial construction of its earlier

statute.

Jurl discretion .remains w:de. If it thinks capital

punishment is inappropriate, the jury in a felony murder case

may (i) convict, not for murder, but only an attempt to commit

the felony; (ii) convictoc on a lesser-included offense, but

only if there is evidence to support it, or (iii) refuse to

convict the defendant of anything.

lfp/ss 4/1/76 -April l, 1976

No. 75-5706 PROFFITT v. FLORIDA

Capital Case - The Florida Statute

The Florida statute like the federal and Texas statutes,

authorizes capital punishment only after consideration of both

"aggravating" and "mitigating" circumstances. But the Florida

system is not as carefully structured. It allows the jury to

"balance" factors on both sides and permits a recommendation

of death even when there is a "mitigating" factor.

The bifurcated system operates with the same judge and

jury. Any relevant evidence, even if otherwise inadmissible,

may be introduced during the sentencing phase. The jury may

consider eight "aggravating" and seven "mitigating" circum­

stances similar to those found in Texas.

The jury must decide (i) whether there are sufficient

aggravating circumstances, (ii) whether there are sufficient

mitigating circumstances to outweigh the aggravating circum­

stances; and (iii) whether life imprisonment or death is the

appropriate sentence.

The jury may recommend, but the decision as to sentencing

is left to the judge.

As pointed out in State v. Dixon (283 So. 2d l) (the

first decision by the Supreme Court of Florida under the

new statute), the trial judge must justify his w~nnenca1 in

writing:

' ·~· .

-"The fourth step required by Fla. Stat. § 921.141, F.S.A., is that the trial judge justifies his sentence of death in writing, to provide the opportunity for meaningful review by this Court. Discrimination or capriciousness cannot stand where reason is required, and this is an important element added for the protection of the convicted defendant. Not only is the sentence then open to judicial review and correction, but the trial judge is required to view the issue of life or death within the framework of rules provided by the statute." 283 So. 2d l at 8.

In Dixon, addressing whether the death sentence would

2.

be imposed in one situation and not in another, the Court said:

"• .• Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant

i is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great." 283 So. 2d at 10.

lfp/ss 4/1/76

April 1, 1976

No. 75-5844 ROBERTS v . LOUISIANA

Capital Case - Louisiana Statute

Mandatory death penalty prescribed for a narrow range

of offenses, characterized as "murder in the first degree".

Murder in the first degree is defined as the killing of a

human being:

(1) With specific intent to kill or to inflict great bodily harm:

(a)

(b)

(c)

(d)

(e)

During the commission of an aggravated felony (kidnapping, rape, burglary or armed robbery) ;

An on-duty fireman or peace officer;

When the defendant has a prior murder conviction or is serving a life sentence; or

The defendant has a specific intent to kill "more than one person".

For hire.

Some of the factors in the Louisiana statute, that are

made elements of the crime itself, are included in other

statutes as "aggrav ting circumstances".

The Louisiana statute, to this point, is an attempt

to define narrowly the crimes for which a death sanction may

be imposed. For the most part, the definitions are fairly

specific and objective in identifying the additional factors

that must be found.

Under Louisiana law, the jury - in every first degree

murder case - must be instructed by the judge that it may find

. . •;.

2.

a verdict for the lesser crimes of second degree murder or

manslaughter. Failure so to instruct is reversible error,

and the nature of the evidence is immaterial. Thus, the jury

has the right, always, to return a verdict of manslaughter

rather than for murder •

' , ___ _

C.9. -~~ .... ,_~~ ~ /v7,__ :.;L t ~ ~p Ld .&49 c.~ ... ~~ • II

~ -f t"~;::::-d~ 14'72-~-

'$ ~- ~ ,lo..:.. 4.. ~;.A. ~~ /;9,c.e..._+«...,_·~A~'f ~ ~ 1472., I

~-t:.,tJ-~~:sr ~~A, ... '­~ /.J..t.;.. c._ ,, 14 7 2.. J e= ...... ~ ~

~~ #11.--,.r-':.- J~A..A;~ <:::/~ ~ ·~ . ~ ~~ A,~~.~~ Je~'4 ''. ~ "-1-L··.LrtJ& --"c,_,l - ;,...... ~ ~~ 1- -~,k ~.~~~:tiM 0 ·~~~t~i·

c. .. ... ..,r ~~4J- ~ ~//-' ~ ~ UM J..___, r ~ " 141 !t a ... ~~ ~ CA • • _, ¢-~ (A...,-.c: •••· ~1-a~c ~ 1 ~

a.-,~...,.. . .Jt,., .-r ~. ~4~./·> ~cA 'f ~, <7 a (· cj~ ~ ~~ l.i-t:J .. ~ ;_; ld'IJA- ~( ·'-6Lc..f.. ~ )97~

~~ ~ ~~ tl~t-~~rd":U • c ~ 1.41 .. 1~ ~

C/1? ~~~. ~ ---­,.t..,. .L '"1"1-0 ~.;._., .,P. •' 4......, ¢..0 ~ ~)L~~h-~~ ~ ~ ~ ;e.c,.c.r ~k.i~ f~ ~·~{.~~rk~~~ ~.»;:? ~----1 e. •

--

s~(~J ~ )'- ~ .. J... ·•C... G~o& ~ ..1, ---c4 ~

lh«~A..~. ~~ ~ ~ 'I- ~ ~ /...., ~- ,._,_,~ -~A-~~-~~

r'·' A,~ . ·""'-" Hu_ Jt-4+(.d'~-4t, . ~ rA_.,. r----.., 4~~4~ :.v ~ ~~~~~~.~ ~"1( .. , .., ""'"-0 J~

~h.-a. ~ ~ ~.L(.~ ~ ~ ~,. 4~ ... ~-~ ,~

e:...~~ ~~ ~ ~ ~ ~ k A4L~ •• 4~C..&:~ ~ ... (A.AA~ ~ ~~ ~ A.v&.44(:

c-. .... · f ~~ '\ a......-/... .,.,tk,. 44/-• .J ~ ( ..._~~ ~ArJ-1~ ~) •---- ~ ~~"-/~~ J7v' ~~+'-/-.-;;,..,._I ~ ~ k ~ .... ,.p-~-.

Me. L. ... 4~~~~r ~ ~-~ • ,j~ V.Ao>Co..,.._~ •

' ... - .,

.. ~-

~~~~~p~

~ £:_~7,~~ ~ -E44.1 ~ Y(~''(~!) .S~ ~,e.. •• lot fJ.y ~~ •

' ~ ~ ~, ~14MJ '?'~t~ . ~~ ~~ ~--~..~)J 4, ~ , ~ ~~ ~~.,t~c.c.A. ~ ~ ~~.-rJt.c.... !iii ~-Lt ~.,..(., ~""'1 ~ fr--'..-a,J ~.. :;..,_,.,~ .... .v ~-;J4<~!--~-+- .,

(~~~P~~ 't ~4f ~ " ~. ')u1'~44 1-L..,_, ¥ ~· <' """- )

-

+ ~ • ........, 'U...D ~~ 8ct.c<.,.. ~ ~, , - kl-. AI. c. ¥ i-ttS-~.J- ~ ~Ai~ of~ ~:z;&:;L...

~ 7 ~ Gl-4rt.V ~ ~ . 7(_.,. .-:.<44 l;t,.J ~ ~ -

~ C/~' ~~(.4....., ~~~~ UAA~_. .. ~f-~r~ ~4~~·~<-t)

I!!_ ~~~~-- ~~-·~

4r ly 7 2, "it- .

-~~.

16 t/~ ~ ---f ~-.c.,_J,

~

tt:&r.# ~ /rJA-' ~~~I +

~~4~~~ ... ~. ::;) ,~ ;;- £;4£c.-- ;a.-+·~· u t;;a~)

~k.r-_k - af-;-:.-... --'.(__--

sk----- ~==-~;.~::;1_:(~) ~c:.~ ~ ~ ~t:...4.l..~. ~ ?-coO ~ ~ t::/t? ~ ~

n-4~~·~~-t . )' ,.. , ~ u.,,.A.;/ ~ ~. ~'t:-.yu.. ~ 'A.-ht.-~..JL~_.:· .,..,&~....._,J- -~~ ..._ ~/.. • ..4.., •. .._, ~·~.,~ . -- -

~ ~ ~ ~ r~ a.ucl.c~) t-1- _....._. '1 4 ~ 44. '"'" -A_ ~ ~ ld 4c..c.. ._,.

~ .... ---~~ ~ •4.d L~ • ~ ~ ,., «« cC•"":_

k 4~ -6-~'f//k-t.; 5~/~ ~~~ A-0 ~ .... ~."~~ ;z:..; 7~1 --4.4.Cfll4~ . - -

~ !} ~ ~ Jc .. .J... tiA... ~ tt:'rta re(- I ~ fuL ~ ...... ~~ .,_. ~~~ ~Illit-e~,~ .. ~$~~~ .. ,~ -1 ~ ~, ~~~ ~ ~ 'Z!. c. >LL ~ d;4:7.c.'-- .

s.tc--....... (~) .Jf A.-?*~~~ ~~tlr ,4-­

~~~~~~.,~ ~~~ ~ ~ tM.-C.~(r>t£·~~

. ~W:.~). ' e ~~ s--~' ~e ..... ~~

~-t::./~· ~=-:!::::::~:~·~ ~~

'Zt.c. ~:LL:~ ~ • ~ ' I ~~-1~-CA,.., (~~~~~~.£­~·~~~~~~ ~ II k;.,_ .... ,t:;;;;.,... ''A........, ~ s ~ ~ :;-~A~)-"-A..--:.I.y ~ ~#f"""""1

lfp/ ss 4/16/76

TO:

FROM:

MEMORANDUM

Chris Whitman DATE: April 16, 1976

Lewis F. Powell, Jr.

Moratorium on Sententes Already Imposed

I talked again on yesterday with Justice Stewart about

the necessity, as I view it, to decide the capital cases on

a prospective basis, where the state statutes are sustained.

He remains sympathetic to the idea, and we plan to

broaden the base of our discussion. Meanwhile, I agreed to

try to identify possible ways by which the Court could declare

a sort of moratorium or, perhaps more accurately, make our

judgments pr ospective.

I have thought of no way of accomplishing this other

than simply "holding" that the statutes (say, in Florida,

Georgia and Texas) comport with constitutional standards, to

but that the judgment of the Court is operative only as/the

future sentences. The cases could then be remanded for

resentencing, either by the court or jury (as the case may

be) in light of the certainty that the sentence would not

be constitutionally flawed. I think one can at least

surmise that some of the sentences were imposed by juries,

and even by courts, with a rather strong belief that capital

punishment woul d be totally outlawed by this Court. Indeed,

2.

I had no idea myself until the day before Conference how some of

of my Brothers would vote. In view/this ambiguity, I hesitate

to say that every sentence of death in these states would

have been imposed had the law been settled rather than quite

unsettled.

This court created the doctrine of non-retroactivity

with respect to the invalidation of state and federal statutes,

depending upon the circumstances. I see no compelling reason

why we could not create a doctrine of non-retroactivity with

respect to the validating of capital punishment under the

circumstances of these cases.

But I would like your most careful thinking, as I

propose to pursue this idea and need all the help I can get.

L.F.P., Jr.

ss

~·--------------~------------------------

Dear Potter:

this refers to our. several discussions concerning the possibility of deciding the capital ... cases on a prospective • · basis, where the state statutes are · sustained.

~,i"f>i- ., ~. "' ~· . •.m ·~' ;:· •. \1'(~

Although I have given this sooMa'' thought since our last conversation, I have come up with no rationale supp,orted by

·authority. :: There may be some negative or "reverse • support ' derived from. the judge-made doctrine of non-retroactivity 'with respect to some constitutional decisiona in cr~al cases. , But the ' logic of this approach is hardly compelling. ··

I. !;' ,:JI.: ' ~·. ·1'1\.t.:lml ~ ~ ·~·\ J

Perhaps the best approach is the simpl~ and straight- ·. forward one ~ ~" These are unique cases for al.t. of the obvious reasons. Quite apart"Yrom uniqueness in terms of finality , , . '. of the death penalty, the status of the law at the time these : ·,,., pendiag penalties were imposed was perhaps uniquely unsettled. No one - no · legislator, i. udge or juror - could have been certaiD .how this Court u timately would come down on the ·

. capital punishment issue. Certainly I did not know, and indeed I am not sure even today bow the Court will go on each of the five statutory schemes presently before us.

·am not wbolly at rest myself as to my position on the . ' Louisiana statute. Thus, it is at least possible that subtle, -and even unconscious, influences and especially uncertainties .. ,; Q~

.· may have pervade.d legislative, judicial and jury decisiona.

Perhaps no rationalization is needed beyond ' a recognition of the stark fact that the carrying out of several hundred executioaa, pursuant to validatioo thereof by this Court, would cause profound shock waves with unpredictable consequences.

'. My guess is that state governors, certai.Dly for the most part,

- 2 - I. <

.. would 'exercise executive clemency on a broad scale. But one il:~~;, ~·;. cannot be sure that this would be done uniformly, even within '·'"

a , particular state. ,, ' .. ,,, ~~'

,, My tentative conclusion, therefore, is that the Court , . ~:,,:,jl should simply exercise ita ultimate authority and responsibi~ity

, ~~ .. evea in the abseace of precedent. We could hold that the . ,,.: ~~~t~ effect of our decision suataini.og the laws in some of these ,

states ia prospective so far aa preexisting sentences of deat are concerned. The cases from those states could be remanded . for resentencing uader the statutory schemes that we have · !Yitained. Those responsible for the resentencing could tben ~ act with the certainty that the death sentence, if reimposed, ,. ~ would DOt,, be constitutionally flawed. ~ · ~~

,,'.~j'J ·t';:(•,' '. ' .~,~~l ',f'\,t " • '· '4 .. '1 ~',

·~ .1 I agree with you that some consultation is desirable, and ", ·' that we should start with John Stevens. I will call you about '"·

this early next week. Meanwhile you may come up _with some more traditional and achola,rly rationale.

' ..

lfp/ss 4/16/

MEMO&ANDUM

TO: Whitman

FROM: F. Powell, Jr.

Moratorium on Sententes Already Impssed

I talked again on yesterday with Justice Stewart about

the necessity, as I view it, to decide the capital cases on

a prospective basis, where the state statutes are sustained. ~

He remains sympathetic to the idea, and we plan to v:· ;r broaden the base of our discussion. Meanwhile, I agreed to ,,

try to identify possible ways by which the Court could declare

a sort of moratorium or, perhaps more accurately, make our

judgments pDospective.

I have thought of no way of accomplishing this other

simply "holding" that the statutes (say, in Florida,

Georgia and Texas) comport with constitutional standards, to

but that the judgment of the Court is operative only as/the

future sentences. The cases could then be remanded for ·~·~·

resentencing, either by the court or jury (as the case may

be) in light of the certainty that the sentence would not

· be constitutionally flawed. I think one can at least

surmise that some of the sentences were imposed by juries,

and even by courts, with a rather strong belief that capital

punishment would be totally outlawed by this Indeed,

2.

I had no idea myself until the day before Conference how some of

of my Brothers would vote. In view/this ambiguity, I hesitate

wi to say that every sentence of death in these t Atetes would

.. have been imposed had the law been settled rather than quite "~: '·

This court created the doctrine of non-retroactivity ,-_,1fil:i ~

.~.! (', 1

with respect to the invalidation of state and federal statutes,

depending upon the circumstances. ·'··~I see no compelling reason

why we could not create a doctrine of non-retroactivity with

respect to 1;:he ,,yalidating of capital punishment under the t '

circumstances of these cases. "!<" ". ·<·· ,. · .. "-~' lii: ·~ l!J:l ~,; 'fi

But I would like your most careful thinking,

to pursue this idea and need all

,.

CHAMBERS O F

JUSTICE POTTER STEWART

Dear Chief,

.$u:prtmt <!fcu:rt of tJrt ~h ~tattg ~agfringtcn. to. <ij. 2l!.;iJ!.~

May 7, 1976

Re: Capital Cases

After considerable thought and discussion, Lewis, John, and I have tentatively agreed upon the form that our joint opinions in these cases will take. It is our present intention to write an opinion in each case, for a total of five opinions.

As of now, we would affirm in No. 74-6257, Gregg, No. 75-5394, Jurek, and No. 75-5706, Proffitt, and reverse in No. 75-5491, Woodson, and No. 75-5844, Roberts. Each opinion will reject the contention that the Eighth and Fourteenth Amendments foreclose the imposition and execution of a death sentence under any circumstances. This issue will be dealt with in detail in the lead opinion (Gregg or Proffitt) and that dis­cussion will be incorporated by reference in each of the other four opinions. It would be our hope that four other members of the Court will be able to join at least those parts of all five opinions.

Contrary to the indication in your memorandum of May 5, we do not plan to produce a separate opinion "holding that the Eighth Amendment in and of itself does not foreclose State or Federal power to impose capital punishment." In the interest of avoiding misunderstanding, and of providing you and the other members of the Court ample opportunity to consider whether you wish to write separately, I thought it wise to clari­fy now what Lewis, John, and I hope eventually to produce.

Sincerely yours,

The Chief Justice

Copies to the Conference

. '

LFP/gg 5-7-76

CAPITAL CASES - GENERAL FILE

In talking with Justices Stewart and Stevens,

they noted - in connection with Part II of the lead

opinion - that it is important to emphasize the following:

Perhaps the principal argument made to the Court

in 1972 was that "evolving standards of decency" had

reached the point where capital punishment was no longer

acceptable to the American people. This assumption

(which I believe was emphasized in the Brennan and

Marshall opinions) has since proved unfounded. In addition

to 34 or 35 states and the federal government, two or

more states have adopted or approved capital punishment

by popular referendum. I believe California is one of

these.

In order to keep the door open for a different

result in rape cases, we should make clear that we deal

in these opinions only with cases where death was imposed

on the victim of the crime. Thus, the doctrine of

proportionality is applicable whereas it would not be

relevant~.=---z•c& .. lR££~1}~ in most rape cases.

L.F.P. Jr .

,Ju:prtmt <Q:curt cf tqt ~nittb ,Jtatts Jl'asqinghttt. ~. <!f. 2llgt'!-,',l

CHAMBERS OF

JUSTICE POTTER STEWART

May 27, 1976

Re: Capital Cases

Dear Lewis and John,

I plan to leave town this afternoon, not to return until late in the day on Monday. In order not to lose time, I transmit herewith to each of you copies of drafts of "Part III" in the Georgia and North Carolina cases.

I am sure that both of these drafts can be improved by your suggestions as to substance and style. Perhaps early next week you can let me know of any basic deficiencies that either of you perceives.

Sincerely yours,

Mr. Justice Powell

Mr. Justice Stevens

1 lfp/ss 5/31/76 Rider A, p. t-tl (Gregg)

We address ~

initially the basic contention tha~ punishment of death for the crime of murder is, under all

circumstances, "cruel and unusual" in violation of the

Eighth and Fourteenth Amendments of the Constitution.

In Part IV of this opinion, supra, we consider the sentence

of death imposed under Georgia's statutes

The Court on a number of occasions over the years

has both assumed and asserted the constitutionality of

capital punishment. In several cases that assumption

provided a necessary foundation for the decision, as the

issue was whether a particular means of carrying out a

capital sentence would be allowed to stand. But until

Furman v. Georgia, 408 u.s. 236 (1972) the Court never

confronted squarely the underlying fundamental question

whether the punishment of death always, and regardless

,_ " ......... ,~J,;r .... "" of the enormity of the offense, is incompatible with the

A.

Eighth Amendment. Although this issue was presented

and addressed in Furman, it was not resolved by the Court.

Four Justices would have held that capital punishment is

not unconstitutional per ~; two Justices would have reached

the opposite conclusion; and three Justices, while agreeing

2.

that the statutes then before the Court were invalid as

applied, left open the basic question of constitutionality .

We now hold that the punishment of death does not necessarily

violate the Eighth Amendment.

Note to Chris: I leave to you the coordinating of the

footnotes with this revision. I think we also should add

to note 13, at least as "see" W:itherspoon v. Illinois, 391

U.S. 510 and McGautha v. California, 402 u.s. 183, and

possibly Weems v. United States, 217 U.S. 349, 382, 409

(White and Holmes in dissent).

lfp/ss 5 1 ~1/76 Rider B, p. ~I-1 (Gregg)

A.

Before discussing the applicability of the Eighth

Amendment to capital punishment, it will be informative

to review the principal precedents of this Court that have

considered claims of cruel and unusual punishment in a

variety of cases, including capital cases.

~ .

lfp/ss : '11/76 Rider A, III-7 (Gregg) --In Furman v. Georgia, 408 U.S. 238 (1972), three

Justices in separate opinions weighed, in Eighth Amendment

terms. the manner by which convicted defendants were

selected for the sentence of death. As we show in Part IV,

infra, the focus of these opinions was on procedures rather

than the actual punishment inflicted.

lfp/ss '31/76 Rider A, p~~ri-8 (Gregg)

It is clear that the Eighth Amendment has not been

regarded as a static concept. Rather, as Chief Justice

Warren said, in an oft-quoted phrase, "[t]he Amendment

must draw its meaning from the envolving standards of

decency that mark the progress of a maturing society. 11

Trop v. Dulles, 356 U.S., at 101. See also Jackson v.

Bishop, 404 F.2d 571, 579 (CAB 1968). Cf. Robinson v.

california, 370 U.S., at 666 . Thus, an assessment of

contemporary values concerning the infliction of a

challenged sanction is relevant to the application of

the Eighth Amendment. As we develop below more fully,

supra, at ___ , this assessment does not call fo~ a

subjective judgment. It requires, rather, that we look

to objective indicia that reflect the public attitude

toward a given sanction .

But our cases also make clear that public perception

of standards of decency with respect to criminal sanctions

are not conclusive. A penalty also must accord with "the

dignity of man", which is the "basic concept underlying

the Eighth Amendment". ~rop v . Dulles, 356, at 100. This

-means, at least, that the punishment not be .. excessive"

in relation to the crime. When a form of punishment in

the abstract (in this case whether capital punishment

2.

may ever be imposed as a sanction for murder) rather than in

the particular (the propriety of the death penalty) as;

applied to a particular defendant) is under consideration,

the inquiry into "excessiveness" has two aspects. First,

the punishment must not involve the unnecessary and wanton

infl~tion of pain. Furman v. Georgia, 408 u.s., at 392•383

(Burger, C.J., dissenting). The limits imposed by the

Eighth Amendment in this respect were first describ~ in

WilKerson v. ~' 99 U.S., at 136: "[I]t is safe to

affirm that punishments of torture . and all others

in the same line of unnecessary cruelty, are forbidden

••• " And the Court has expanded the concept to prohibit

the infliction of pain that is much more severe than is

necessary to serve any conceivable penal purpose. See,

~·&·• Weems v. United States, 217 U.S., at 381. Second,

the punishment must not be grossly out of proportion to

the severity of the crime. Troe v. Dulles, 356, at 100;

Weems v. United States, 217 u.s., at 367.

(Here go to Subpart C on page 13)

,. '

lfp/ 88 ' '31/76

c.

Rider . p. 111-16 (Gregg) "!

In the discussion to this point we have sought to

identify the principles and considerations that guide a

court in addressing an Eighth Amendment claim. We now

consider specifically whether the sentence of death for

the crime of murder is a per se violation of the Eighth

and Fourteenth Amendments to the Constitution. We note

first that history and precedent strongly support a

negative answer to this question.

J _

lfp/ss 5'11/76 Hider A, p. II-18 (Gregg) ""'r

their

and companion cases Four years ago the petitionemin Furman/predicated

kia case primarily upon the asserted proposition that

standards of decency had ev.:oJ.ve.d~ to the point where

capital punishment no longer could be tolerated.

Petitioners in those cases said, in effect, that the

evolutionary process had come to an end, and that standards

of decency required that the Eighth Amendment be construed

finally as prohibiting capital punishment for any crime

regardless of its depravity and impact on society. This

absolutist view was accepted by two Justices.* Three

other Justices were unwilling to go so far; focusing on

the procedures by which convicted defendants were selected

for the death penalty rather than the actual punishment

inflicted, they joined in the conclusion that the statutes

before the Court were invalid.**

*see concurring opinions of Mr. Justice Brennan and Mr. Justice Marshall, 308 u.s., at ___ and----·

**See opinions of Mr. Justice Douglas, Mr. Justice Stewart and Mr. Justice White, a 408 U.S., at_, _and_.

3.

by sentencers in deciding when to impose a capital sentence

or by making the death penalty mandatory for certain specific

crimes. But they all indicate that capital punishment itself

has not been rejected by the elected representatives of the

people. In the only statewide referendum occurring since

Furman and brought to our attention, the people of California

adopted a constitutional amendment authorizing capital

punishment, and in effect negating a prior ruling by the

Supreme Court of Cal~for~i~ in People v. Anderson, 6 Cal.

3rd 628, 493 P.2d 880 (1972), cert denied, 406 u.s. 958

23 (1972), that the death penalty was unconstitutional.

The jury is perhaps the most reliable objective index of

contemporary values ~ecause it is the most directly

involved. See Furman v. Georgia, 408 U.S., at 439·440

(Powell, J., dissenting). The Court has said "that one

\ 23. In 1968, theppeople of Massachusetts were asked · "Shall the Commonwealth • • • retain the death penalty for

1 crime?" A substantial majority of the ballots cast \ answered "Yes". Of 2,348,008 ballots case, 1,159,348 \ voted "Yes", 730,649 voted "No" and 458,008 were blank. See Commonwealth v. O'Neal, 339 N.E. 2d 676, 708, n. l (Mass. 1975) (Reardon, J., dissenting). A December 1972 Gallup poll indicated that 57% of the people favored the death penalty, while a June 1973 poll showed support of 59%. Vidmar & Ellsworth, Public Oxinion and the Death F~n~ltY . 26 Stan. L. Rev. 1245, 12 9 n. 22 (1§74).

Note to Chris: I am inclined to omit, from the text a reference to the public opinion polls. I am not impressed by their relevance • at least comparatively speaking - to a judicial opinion ..

·.

I' I I

I I

2.

Petitioners in the capital cases now before the

Court renew the "standard of decency" argument, perhaps

with diminished conviction as they now rely primarily on

the asserted arbitrariness of the penalty resulting from

the areas of discretion inherent in the criminal justice

system, see infra at p. ___ • Developments during the

four years since Furman have undercut substantially the

assumptions upon which that case was submitted. Despite

the continuing debate. dating back to the Nineteenth

Century, over the morality and utility of capital punish-

ment, it is now evident that a large proportion of

contemporary American society continues to regard it as

an appropriate and necessary criminal sanction. The most

marked indication of society's endorsement of the death

penalty for murder is the legislative response to Furman.

20 21 At least 35 states and the United States have enacted

new statutes that provide for the death penalty for at

least some crimes that result in the death of another

person. These statutes have attempted to address the

concerns expressed by the Court in Furman in several ways -

primarily either by specifying the factors to be weighed

_ ....

4.

of the most important functions any jury can perform in

making a selection [between life imprisonment and death]

for a defendant convicted in a capital case is to maintain

a link between contemporary community values and the

penal system." Witherspoon v. Illinois, 491 U.S. 510, 519

(1968). It is no doubt true that evolving standards have

influenced juries in recent decades to be more discriminating

24 in imposing the sentence of death. But the relativel

infrequency of jury verdicts imposing the death sentence

does not indicate rejection of capital punishment. Rather

the reluctance of juries in many cases to impose the

sentence may well reflect the humane feeling ,that this

most irrevocable of sanctions should be reserved for a

24. Although statistics as to the exact number and trend of sentences of death rendered by juries are not available to us, the number of executions has decreased sharply in the past half-century: there were a 199 executions in 1935; 124 in 1940; 82 in 1950; 66 in 1960; and finally only 2 in 1967. Department of Justice, National Prisoner Statistics No. 46, Capital Punishment 130-1970, p. 8 (August 1971). It is generall y recognized that vocal sentiment for the abolition of capital punish­ment, together with pending litigation in a number of courts in which this issue was presented, probably resulted in the failure to implement jury verdicts imposing the sentence that continued to be rendered until Furman was decided.

5.

small number of extreme cases. See Furman v. Georgia,

408 u.s., at 388 (Burger, C.J., dissenting). Indeed,

the action of juries in many states since Furman is fully

compatible with the legislative judgments, reflected in

the new statutes, as to the continued utility and necessity

of capital punishment in appropriate cases. , At the close

of 1975, at least 254 persons had been sentenced to

26 death since Furman, and by the end of March 1976, more

than 460 persons were subject to death sentences.

(Note: The foregoing rider is intended as substitute from the point marked on page 15 to the point marked end on p. 22.)