U.S. Supreme Court Walton v. Arizona, 497
U.S. 639 (1990) Walton v. Arizona No. 88-7351 Argued January 17,
1990 Decided June 27, 1990 497
U.S. 639 CERTIORARI TO THE SUPREME COURT OF
ARIZONA Syllabus Petitioner Walton was found guilty in an Arizona court of
first-degree murder and was sentenced in a separate sentencing
hearing before the judge, as required by state law. Under that law,
the judge, inter alia, determines the existence of
aggravating and mitigating circumstances and "shall impose" a death
sentence if he finds one or more of several enumerated aggravating
circumstances and that there are no mitigating circumstances
sufficiently substantial to call for leniency. The burden is on the
prosecution to establish the existence of aggravating circumstances
and on the defendant to establish mitigating ones. The judge
sentenced Walton to death, after finding the presence of two
aggravating circumstances -- that the murder was committed "in an
especially heinous, cruel or depraved manner," and that it was
committed for pecuniary gain -- and that, considering all of the
mitigating factors urged by Walton, the mitigating circumstances
did not call for leniency. The State Supreme Court upheld the
sentence. In an independent review, the court concluded that the
evidence was sufficient to prove the existence of both aggravating
factors. As to the first factor, the court noted that it had
previously defined "especially cruel" to mean that the victim had
suffered mental anguish before his death and had defined
"especially depraved" to mean that the perpetrator had relished the
murder, evidencing debasement or perversion. The court also agreed
that there were no mitigating factors sufficient to call for
leniency and determined that the sentence was proportional to
sentences imposed in similar cases.

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

															1. Arizona's capital sentencing scheme does not violate the
Sixth Amendment. The Constitution does not require that every
finding of fact underlying a sentencing decision be made by a jury
rather than by a judge. See Clemons v. Mississippi, 494 U. S. 738 , 494 U. S. 745 ; Hildwin v. Florida, 490 U. S. 638 .
Since Arizona's aggravating factors are standards to guide the
making of the choice between verdicts of death and life
imprisonment rather than "elements of the offense," the judge's
finding of any particular aggravating Page 497 U. S. 640 circumstance does not require the death penalty, and the failure
to find any particular aggravating circumstance does not preclude
that penalty. Poland v. Arizona, 476 U.
S. 147 . Moreover, if the Constitution does not require
that the finding of Enmund v. Florida, 458 U.
S. 782 -- that the defendant killed, attempted to kill,
or intended to kill -- be proved as an element of the offense of
capital murder and be made by a jury, it cannot be concluded that a
State is required to denominate aggravating circumstances
"elements" of the offense or permit only a jury to determine such
circumstances' existence. Pp. 497 U. S.
647 -649.

															2. The especially heinous, cruel or depraved aggravating
circumstance, as construed by the State Supreme Court, furnishes
sufficient guidance to the sentencer to satisfy the Eighth and
Fourteenth Amendments. The court's definition of "especially cruel"
is virtually identical to the construction approved in Maynard
v. Cartwright, 486 U. S. 356 , 486 U. S.
364 -365. Similarly, its definition of "depraved" cannot
be faulted. Although juries must be instructed in more than bare
terms about an aggravating circumstance that is unconstitutionally
vague on its face, trial judges are presumed to know the law and to
apply narrower definitions in their decisions. Maynard v.
Cartwright, supra, at 486 U. S. 358 -359, 486 U. S.
363 -364; Godfrey v. Georgia, 446 U.
S. 420 , 446 U. S. 426 ,
distinguished. Walton's challenge to the State Supreme Court's
proportionality review -- that it should be overturned because it
did not distinguish his case from others in which the death
sentence was not imposed -- is rejected. Such review is not
constitutionally required where, as here, the challenged factor has
been construed in a manner to give the sentencer sufficient
guidance. Furthermore, the Constitution does not require this Court
to look behind the state court's conclusion where it plainly
undertook its review in good faith. Pp. 497 U. S.
652 -656.

															Justice WHITE, joined by THE CHIEF JUSTICE, Justice O'CONNOR and
Justice KENNEDY, concluded in Parts III and IV:

															1. Walton's Eighth and Fourteenth Amendment rights have not been
violated by placing on him the burden of proving by a preponderance
of the evidence the existence of mitigating circumstances
sufficiently substantial to call for leniency, since Arizona's
method of allocating the burdens of proof does not lessen the
State's burden to prove the existence of aggravating circumstances. Cf., e.g., Martin v. Ohio, 480 U.
S. 228 ; Lockett v. Ohio, 438 U.
S. 586 ; Mullaney v. Wilbur, 421 U.
S. 684 ; Mills v. Maryland, 486 U.
S. 367 , distinguished. Pp. 497 U. S.
649 -651.

															2. Blystone v. Pennsylvania, 494 U.
S. 299 , and Boyde v. California, 494 U.
S. 370 , foreclose Walton's argument that the state
statute creates an unconstitutional presumption under the Eighth
and Fourteenth Amendments that death is the proper sentence by
requiring that the court "shall impose" the death penalty under the
specified circumstances. The statute neither precludes the court
from considering any Page 497 U. S. 641 type of mitigating evidence nor automatically imposes a death
sentence for certain types of murder. States are free to structure
and shape consideration of mitigating evidence in an attempt to
achieve a more rational and equitable administration of the death
penalty. Pp. 497 U. S.
649 -652.

															Justice SCALIA concluded that he will no longer seek to apply,
and will not, here or in the future, vote to uphold a claim based
upon, the principle of Woodson v. North Carolina, 428 U. S. 280 , and Lockett v. Ohio, 438 U. S. 586 ,
that the sentencer in a capital case may not be precluded from
considering any mitigating factor. This principle is rationally
irreconcilable with the principle of Furman v. Georgia, 408 U. S. 238 --
that a sentencer's discretion to return a death sentence must be
constrained by specific standards, so that the death penalty is not
inflicted in a random and capricious fashion. Furman requires constraints on the sentencer's discretion to "impose" the
death penalty, while Woodson-Lockett forbids constraints
on the sentencer's discretion to "decline to impose" it -- which
are one and the same. Although the Eighth Amendment's text arguably
supports the view in Furman that unfettered discretion
makes death sentences so random and infrequent as to make their
imposition cruel and unusual, the Woodson-Lockett principle bears no relation to the Amendment's text. Nor does the
doctrine of stare decisis require adherence to Woodson-Lockett, since the objectives of the doctrine,
certainty and predictability, have been demonstrably undermined
rather than furthered by the attempt to rest a jurisprudence upon
two incompatible principles. Thus, even if correct, Walton's
assertion that in two respects the state procedure deprived the
sentencer of discretion to consider all mitigating circumstances
cannot state an Eighth Amendment violation. Pp. 497 U. S.
656 -674.

															WHITE, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and V, in which
REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined,
and an opinion with respect to Parts III and IV, in which
REHNQUIST, C.J., and O'CONNOR, and KENNEDY, JJ., joined. SCALIA,
J., filed an opinion concurring in part and concurring in the
judgment, post, p. 497 U. S. 656 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 497 U. S. 674 .
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined, post, p. 497 U. S. 677 .
STEVENS, J., filed a dissenting opinion, post, p. 497 U. S.
708 . Page 497 U. S. 642 Justice WHITE announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and V, and an
opinion in Parts III and IV in which THE CHIEF JUSTICE, Justice
O'CONNOR, and Justice KENNEDY joined.

															At issue in this case is the validity of the death sentence
imposed by an Arizona trial court after a jury found petitioner
Jeffrey Walton guilty of committing first-degree murder.

															The Arizona statutes provide that a person commits first-degree
murder if "[i]ntending or knowing that his conduct will cause
death, such person causes the death of another with premeditation"
or if in the course of committing certain specified offenses and
without any mental state other than what is required for the
commission of such offenses, he causes the death of any person.
Ariz.Rev.Stat.Ann. Page 497 U. S. 643 § 13-1105 (Supp.1988). After a person has been found guilty of
first-degree murder, the sentence for such crime is determined in
accordance with the provisions of § 13-703(B). It is there directed
that a "separate sentencing hearing . . . shall be conducted before
the court alone" to determine whether the sentence shall be death
or life imprisonment. In the course of such hearing, the judge is
instructed to determine the existence or nonexistence of any of the
aggravating or mitigating circumstances defined in subsections (F)
and (G) of § 13-703. Subsection (F) defines 10 aggravating
circumstances that may be considered. One of them is whether the
offense was committed with the expectation of receiving anything of
pecuniary value. § 13-703(F)(5). Another is whether the defendant
committed the offense in an especially heinous, cruel or depraved
manner. § 13-703(F)(6). Subsection (G) defines mitigating
circumstances as any factors

															"which are relevant in determining whether to impose a sentence
less than death, including any aspect of the defendant's character,
propensities or record and any of the circumstances of the offense,
including but not limited to"

															five specified factors. [ Footnote 1 ] The burden of establishing the existence of
any of the aggravating circumstances is on the prosecution, while
the burden of establishing mitigating circumstances is Page 497 U. S. 644 on the defendant. § 13-703(C). The court is directed to return a
special verdict setting forth its findings as to aggravating and
mitigating circumstances and then

															"shall impose a sentence of death if the court finds one or more
of the aggravating circumstances enumerated in subsection (F) of
this section and that there are no mitigating circumstances
sufficiently substantial to call for leniency."

															§ 13-703(E). I Petitioner Walton and his two codefendants, Robert Hoover and
Sharold Ramsey, went to a bar in Tucson, Arizona, on the night of
March 2, 1986, intending to find and rob someone at random, steal
his car, tie him up, and leave him in the desert while they fled
the State in the car. In the bar's parking lot, the trio
encountered Thomas Powell, a young, off-duty Marine. The three
robbed Powell at gunpoint and forced him into his car, which they
then drove out into the desert. While driving out of Tucson, the
three asked Powell questions about where he lived and whether he
had any more money. When the car stopped, Ramsey told a frightened
Powell that he would not be hurt. Walton and Hoover then forced
Powell out of the car and had him lie face down on the ground near
the car while they debated what to do with him. Eventually, Walton
instructed Hoover and Ramsey to sit in the car and turn the radio
up loud. Walton then took a .22 caliber derringer and marched
Powell off into the desert. After walking a short distance, Walton
forced Powell to lie down on the ground, placed his foot on
Powell's neck, and shot Powell once in the head. Walton later told
Hoover and Ramsey that he had shot Powell and that he had "never
seen a man pee in his pants before." Powell's body was found
approximately a week later, after Walton was arrested and led
police to the murder site. A medical examiner determined that
Powell had been blinded and rendered unconscious by the shot, but
was not immediately killed. Instead, Powell regained consciousness,
apparently floundered about in the Page 497 U. S. 645 desert, and ultimately died from dehydration, starvation, and
pneumonia approximately a day before his body was found.

															A jury convicted Walton of first-degree murder after being given
instructions on both premeditated and felony murder. See Ariz.Rev.Stat.Ann. § 13-1105 (Supp.1988). The trial judge then
conducted the separate sentencing hearing required by § 13-703(B).
The State argued that two aggravating circumstances were present:
(1) the murder was committed "in an especially heinous, cruel or
depraved manner," § 13-703(F)(6), and (2) the murder was committed
for pecuniary gain. § 13-703(F)(5). In mitigation Walton presented
testimony from a psychiatrist who opined that Walton had a long
history of substance abuse which impaired his judgment, see § 13-703(G)(1), and that Walton may have been abused
sexually as a child. Walton's counsel also argued Walton's age, 20
at the time of sentencing, as a mitigating circumstance. See § 13-703(G)(5). At the conclusion of the hearing, the
trial court found "beyond any doubt" that Walton was the one who
shot Powell. The court also found that the two aggravating
circumstances pressed by the State were present. The court stated
that it had considered Walton's age and his capacity to appreciate
the wrongfulness of his conduct, as well as all of the mitigating
factors urged by defendant's counsel. The court then concluded that
there were "no mitigating circumstances sufficiently substantial to
call for leniency." App. 61. See Ariz.Rev.Stat.Ann. §
13-703 (Supp.1988). The court sentenced Walton to death.

															The Arizona Supreme Court affirmed Walton's conviction and
sentence. 159 Ariz. 571, 769 P.2d
1017 (1989). Relying on its prior decisions, the court rejected
various specific challenges to the constitutionality of the Arizona
death penalty statute, some of which are pressed here, and then
proceeded to conduct its independent review of Walton's sentence in
order to "ensure that aggravating factors were proven beyond a
reasonable doubt and all appropriate mitigation was Page 497 U. S. 646 considered." Id. at 586, 769 P.2d at 1032. [ Footnote 2 ] The court began by
examining the "especially heinous, cruel or depraved" aggravating
circumstance found by the trial judge. The court pointed out that
it previously had determined that a murder is committed in an
especially cruel manner when "the perpetrator inflicts mental
anguish or physical abuse before the victim's death," id. at 586, 769 P.2d at 1032, (citations omitted), and that "[m]ental
anguish includes a victim's uncertainty as to his ultimate fate." Ibid. In this case, the court concluded that there was
ample evidence that Powell suffered mental anguish prior to his
death. [ Footnote 3 ] The Arizona
Supreme Court also found the evidence sufficient to conclude that
the crime was committed in an especially depraved manner, pointing
out that it had defined a depraved murder as one where "the
perpetrator relishes the murder, evidencing debasement or
perversion," id. at 587, 769 P.2d at 1033. [ Footnote 4 ] Page 497 U. S. 647 Additionally, the court found that the pecuniary gain
circumstance was present. Id. at 588, 769 P.2d at 1034.
After examining Walton's mitigating evidence regarding his
substance abuse and his youth, the court concluded that there were
"no mitigating circumstances sufficient to call for lenience." Id. at 589, 769 P.2d at 1035. Finally, the court conducted
its proportionality review and determined that Walton's death
sentence was "proportional to sentences imposed in similar cases." Id. at 590, 769 P.2d at 1036.

															Because the United States Court of Appeals for the Ninth Circuit
has held the Arizona death penalty statute to be unconstitutional
for the reasons submitted by Walton in this case, see Adamson
v. Ricketts, 865 F.2d 1011 (1988) (en banc), we granted
certiorari, 493 U.S. 808 (1989), to resolve the conflict and to
settle issues that are of importance generally in the
administration of the death penalty. We now affirm the judgment of
the Arizona Supreme Court. II Walton's first argument is that every finding of fact underlying
the sentencing decision must be made by a jury, not by a judge, and
that the Arizona scheme would be constitutional only if a jury
decides what aggravating and mitigating circumstances are present
in a given case and the trial judge then imposes sentence based on
those findings. Contrary to Walton's assertion, however:

															"Any argument that the Constitution requires that a jury impose
the sentence of death or make the findings prerequisite to
imposition of such a sentence has been soundly rejected by prior
decisions of this Court." Clemons v. Mississippi, 494 U.
S. 738 , 494 U. S. 745 (1990).

															We repeatedly have rejected constitutional challenges to
Florida's death sentencing scheme, which provides for sentencing by
the judge, not the jury. Hildwin v.
Florida , 490 Page 497 U. S. 648 U.S. 638 (1989); Spaziano v. Florida, 468 U.
S. 447 (1984); Proffitt v. Florida, 428 U. S. 242 (1976). In Hildwin, for example, we stated that

															"[t]his case presents us once again with the question whether
the Sixth Amendment requires a jury to specify the aggravating
factors that permit the imposition of capital punishment in
Florida,"

															490 U.S. at 490 U. S. 638 , and
we ultimately concluded that

															"the Sixth Amendment does not require that the specific findings
authorizing the imposition of the sentence of death be made by the
jury." Id. at 490 U. S.
640 -641.

															The distinctions Walton attempts to draw between the Florida and
Arizona statutory schemes are not persuasive. It is true that, in
Florida, the jury recommends a sentence, but it does not make
specific factual findings with regard to the existence of
mitigating or aggravating circumstances, and its recommendation is
not binding on the trial judge. A Florida trial court no more has
the assistance of a jury's findings of fact with respect to
sentencing issues than does a trial judge in Arizona.

															Walton also suggests that, in Florida, aggravating factors are
only sentencing "considerations," while, in Arizona, they are
"elements of the offense." But as we observed in Poland v.
Arizona, 476 U. S. 147 (1986), an Arizona capital punishment case:

															"Aggravating circumstances are not separate penalties or
offenses, but are 'standards to guide the making of [the] choice'
between the alternative verdicts of death and life imprisonment.
Thus, under Arizona's capital sentencing scheme, the judge's
finding of any particular aggravating circumstance does not of
itself 'convict' a defendant ( i.e., require the death
penalty), and the failure to find any particular aggravating
circumstance does not 'acquit' a defendant ( i.e., preclude
the death penalty)." Id. at 476 U. S. 156 (citation omitted).

															Our holding in Cabana v. Bullock, 474 U.
S. 376 (1986), provides further support for our
conclusion. Cabana held that an appellate court could
constitutionally make the Enmund v. Florida, 458 U.
S. 782 (1982), finding -- that the Page 497 U. S. 649 defendant killed, attempted to kill, or intended to kill -- in
the first instance. We noted that " Enmund does not
affect the state's definition of any substantive offense, even a
capital offense,'" 474 U.S. at 474 U. S. 385 (citations omitted), and that, "while the Eighth Amendment prohibits the execution of such
defendants, it does not supply a new element of the crime of
capital murder that must be found by the jury." Id. at 474 U. S. 385 ,
n. 3. Enmund only places "a substantive limitation on
sentencing, and like other such limits it need not be enforced by
the jury." Id. at 474 U. S. 386 . If the Constitution does not require that
the Enmund finding be proved as an element of the offense
of capital murder, and does not require a jury to make that
finding, we cannot conclude that a State is required to denominate
aggravating circumstances "elements" of the offense or permit only
a jury to determine the existence of such circumstances.

															We thus conclude that the Arizona capital sentencing scheme does
not violate the Sixth Amendment. III Also unpersuasive is Walton's contention that the Arizona
statute violates the Eighth and Fourteenth Amendments because it
imposes on defendants the burden of establishing, by a
preponderance of the evidence, the existence of mitigating
circumstances sufficiently substantial to call for leniency. See Ariz.Rev.Stat.Ann. § 13-703(C) and § 13-703(E)
(Supp.1988). It is true that the Court has refused to countenance
state-imposed restrictions on what mitigating circumstances may be
considered in deciding whether to impose the death penalty. See, e.g., Lockett v. Ohio, 438 U.
S. 586 , 438 U. S. 604 (1978). But Walton is not complaining that the Arizona statute or
practice excludes from consideration any particular type of
mitigating evidence; and it does not follow from Lockett and its progeny that a State is precluded from specifying how
mitigating circumstances are to be proved. Indeed, in Lockett itself, we expressly reserved opinion on Page 497 U. S. 650 whether

															"it violates the Constitution to require defendants to bear the
risk of nonpersuasion as to the existence of mitigating
circumstances in capital cases." Id. at 438 U. S. 609 ,
and n. 16.

															In Martin v. Ohio, 480 U. S. 228 (1987), we upheld the Ohio practice of imposing on a capital
defendant the burden of proving by a preponderance of the evidence
that she was acting in self defense when she allegedly committed
the murder. In Leland v. Oregon, 343 U.
S. 790 (1952), the Court upheld, in a capital case, a
requirement that the defense of insanity be proved beyond a
reasonable doubt by the defendant, see also Rivera v.
Delaware, 429 U. S. 877 (1976), and in Patterson v. New York, 432 U.
S. 197 (1977), we rejected the argument that a State
violated due process by imposing a preponderance of the evidence
standard on a defendant to prove the affirmative defense of extreme
emotional disturbance.

															The basic principle of these cases controls the result in this
case. So long as a State's method of allocating the burdens of
proof does not lessen the State's burden to prove every element of
the offense charged, or in this case to prove the existence of
aggravating circumstances, a defendant's constitutional rights are
not violated by placing on him the burden of proving mitigating
circumstances sufficiently substantial to call for leniency. Mullaney v. Wilbur, 421 U. S. 684 (1975), is not to the contrary. Mullaney struck down on
due process grounds a state statute that required a convicted
murder defendant to negate an element of the offense of murder in
order to be entitled to a sentence for voluntary manslaughter. No
such burden is placed on defendants by Arizona's capital sentencing
scheme. We therefore, decline to adopt as a constitutional
imperative a rule that would require the court to consider the
mitigating circumstances claimed by a defendant unless the State
negated them by a preponderance of the evidence.

															Neither does Mills v. Maryland, 486 U.
S. 367 (1988), lend support to Walton's position. There
this Court reversed a Page 497 U. S. 651 death sentence because it concluded that the jury instructions
given at the sentencing phase likely led the jury to believe that
any particular mitigating circumstance could not be considered
unless the jurors unanimously agreed that such circumstance was
present. The Court's focus was on whether reasonable jurors would
have read the instructions to require unanimity and if so, the
possible consequences of such an understanding. Here, of course,
the judge alone is the sentencer, and Mills is therefore
beside the point.

															Furthermore, Mills did not suggest that it would be
forbidden to require each individual juror, before weighing a
claimed mitigating circumstance in the balance, to be convinced in
his or her own mind that the mitigating circumstance has been
proved by a preponderance of the evidence. To the contrary, the
jury in that case was instructed that it had to find that any
mitigating circumstances had been proved by a preponderance of the
evidence. Id. at 486 U. S. 387 .
Neither the petitioner in Mills nor the Court in its
opinion hinted that there was any constitutional objection to that
aspect of the instructions.

															We therefore reject Walton's argument that Arizona's allocation
of the burdens of proof in a capital sentencing proceeding violates
the Constitution. IV Walton insists that because § 13-703(E) provides that the court
"shall" impose the death penalty if one or more aggravating
circumstances are found and mitigating circumstances are held
insufficient to call for leniency, the statute creates an
unconstitutional presumption that death is the proper sentence. Our
recent decisions in Blystone v. Pennsylvania, 494 U.
S. 299 (1990), and Boyde v. California, 494 U. S. 370 (1990), foreclose this submission. Blystone rejected a
challenge to a jury instruction based on a Pennsylvania statute
requiring the imposition of the death penalty if aggravating
circumstances were found to exist but no mitigating Page 497 U. S. 652 circumstances were present. We pointed out that "[t]he
requirement of individualized sentencing in capital cases is
satisfied by allowing the jury to consider all relevant mitigating
evidence," 494 U.S. at 494 U. S. 307 (footnote omitted), and concluded that, because the Pennsylvania
statute did not preclude the sentencer from considering any type of
mitigating evidence, id. at 494 U. S. 308 ,
it was consonant with that principle. In addition, the Court
concluded that the statute was not "impermissibly mandatory' as
that term was understood" in Woodson v. North Carolina, 428 U. S. 280 (1976), and Roberts v. Louisiana, 428 U.
S. 325 (1976), because it did not automatically impose
death upon conviction for certain types of murder. 494 U.S. at 494 U. S. 305 .
The same is true of the Arizona statute. Similarly, Boyde v. California, supra, upheld a pattern
jury instruction which stated that "[i]f you conclude that the
aggravating circumstances outweigh the mitigating circumstances,
you shall impose a sentence of death." See 494 U.S. at 494 U. S. 374 (emphasis omitted). The Court specifically noted that

															"there is no . . . constitutional requirement of unfettered
sentencing discretion in the jury, and States are free to structure
and shape consideration of mitigating evidence 'in an effort to
achieve a more rational and equitable administration of the death
penalty.'" Id. at 494 U. S. 377 (quoting Franklin v. Lynaugh, 487 U.
S. 164 , 487 U. S. 181 (1988) (plurality opinion)). Walton's arguments in this case are no
more persuasive than those made in Blystone and Boyde. V Walton's final contention is that the especially heinous, cruel
or depraved aggravating circumstance, as interpreted by the Arizona
courts, fails to channel the sentencer's discretion, as required by
the Eighth and Fourteenth Amendments. Walton contends that the
Arizona factor fails to pass constitutional muster for the same
reasons this Court found Oklahoma's "especially heinous, atrocious,
or cruel" aggravating Page 497 U. S. 653 circumstance to be invalid in Maynard v. Cartwright, 486 U. S. 356 (1988), and Georgia's "outrageously or wantonly vile, horrible or
inhuman" circumstance to be invalid in Godfrey v. Georgia, 446 U. S. 420 (1980). Maynard v. Cartwright and Godfrey v. Georgia, however, are distinguishable in two constitutionally significant
respects. First, in both Maynard and Godfrey, the
defendant was sentenced by a jury and the jury either was
instructed only in the bare terms of the relevant statute or in
terms nearly as vague. See 486 U.S. at 486 U. S.
358 -359, 486 U. S.
363 -364; 446 U.S. at 446 U. S. 426 .
Neither jury was given a constitutional limiting definition of the
challenged aggravating factor. Second, in neither case did the
State appellate court, in reviewing the propriety of the death
sentence, purport to affirm the death sentence by applying a
limiting definition of the aggravating circumstance to the facts
presented. 486 U.S. at 486 U. S. 364 ;
446 U.S. at 446 U. S. 429 .
These points were crucial to the conclusion we reached in Maynard. See 486 U.S. at 486 U. S.
363 -364. They are equally crucial to our decision in
this case.

															When a jury is the final sentencer, it is essential that the
jurors be properly instructed regarding all facets of the
sentencing process. It is not enough to instruct the jury in the
bare terms of an aggravating circumstance that is
unconstitutionally vague on its face. That is the import of our
holdings in Maynard and Godfrey. But the logic of
those cases has no place in the context of sentencing by a trial
judge. Trial judges are presumed to know the law, and to apply it
in making their decisions. If the Arizona Supreme Court has
narrowed the definition of the "especially heinous, cruel or
depraved" aggravating circumstance, we presume that Arizona trial
judges are applying the narrower definition. It is irrelevant that
the statute itself may not narrow the construction of the factor.
Moreover, even if a trial judge fails to apply the narrowing
construction or applies an improper construction, the Constitution
does not necessarily require that a Page 497 U. S. 654 state appellate court vacate a death sentence based on that
factor. Rather, as we held in Clemons v. Mississippi, 494 U. S. 738 (1990), a state appellate court may itself determine whether the
evidence supports the existence of the aggravating circumstance as
properly defined, or the court may eliminate consideration of the
factor altogether and determine whether any remaining aggravating
circumstances are sufficient to warrant the death penalty.

															When a federal court is asked to review a state court's
application of an individual statutory aggravating or mitigating
circumstance in a particular case, it must first determine whether
the statutory language defining the circumstance is itself too
vague to provide any guidance to the sentencer. If so, then the
federal court must attempt to determine whether the state courts
have further defined the vague terms, and, if they have done so,
whether those definitions are constitutionally sufficient, i.e., whether they provide some guidance to the sentencer.
In this case, there is no serious argument that Arizona's
"especially heinous, cruel or depraved" aggravating factor is not
facially vague. But the Arizona Supreme Court has sought to give
substance to the operative terms, and we find that its construction
meets constitutional requirements.

															The Arizona Supreme Court stated that "a crime is committed in
an especially cruel manner when the perpetrator inflicts mental
anguish or physical abuse before the victim's death," and that
"[m]ental anguish includes a victim's uncertainty as to his
ultimate fate." 159 Ariz. at 586, 769 P.2d at 1032. The court
rejected the State's argument that the six days Powell suffered
after being shot constituted cruelty within the meaning of the
statute. The court pointed out that it had limited the cruelty
circumstance in prior cases to situations where the suffering of
the victim was intended by or foreseeable to the killer. Id. at 587, 769 P.2d at 1033.

															In Maynard v. Cartwright, we expressed approval of a
definition that would limit Oklahoma's "especially heinous, Page 497 U. S. 655 atrocious, or cruel" aggravating circumstance to murders
involving "some kind of torture or physical abuse," 486 U.S. at 486 U. S.
364 -365, but we also noted that such a construction was
not the only one "that would be constitutionally acceptable." Id. at 486 U. S. 365 .
The construction given by the Arizona Supreme Court to the cruelty
aspect of the Arizona aggravating circumstance is virtually
identical to the construction we approved in Maynard. The Arizona Supreme Court's construction also is similar to the
construction of Florida's "especially heinous, atrocious, or cruel"
aggravating circumstance that we approved in Proffitt v.
Florida, 428 U.S. at 428 U. S.
255 -256. Recognizing that the proper degree of
definition of an aggravating factor of this nature is not
susceptible of mathematical precision, we conclude that the
definition given to the "especially cruel" provision by the Arizona
Supreme Court is constitutionally sufficient because it gives
meaningful guidance to the sentencer. Nor can we fault the state
court's statement that a crime is committed in an especially
"depraved" manner when the perpetrator "relishes the murder,
evidencing debasement or perversion," or "shows an indifference to
the suffering of the victim and evidences a sense of pleasure" in
the killing. See 159 Ariz. at 587, 769 P.2d at 1033.

															Walton nevertheless contends that the heinous, cruel, or
depraved factor has been applied in an arbitrary manner, and that,
as applied, does not distinguish his case from cases in which the
death sentence has not been imposed. In effect, Walton challenges
the proportionality review of the Arizona Supreme Court as
erroneous, and asks us to overturn it. This we decline to do, for
we have just concluded that the challenged factor has been
construed by the Arizona courts in a manner that furnishes
sufficient guidance to the sentencer. This being so,
proportionality review is not constitutionally required, and we

															"lawfully may presume that [Walton's] death sentence was not wantonly and freakishly' imposed -- Page 497 U. S.
656 and thus that the sentence is not disproportionate within
any recognized meaning of the Eighth Amendment." McCleskey v. Kemp, 481 U. S. 279 , 481 U. S. 306 , 481 U. S. 308 (1987); Pulley v. Harris, 465 U. S.
37 , 465 U. S. 43 (1984). Furthermore, the Arizona Supreme Court plainly undertook
its proportionality review in good faith, and found that Walton's
sentence was proportional to the sentences imposed in cases similar
to his. The Constitution does not require us to look behind that
conclusion.

															The judgment of the Arizona Supreme Court is affirmed. It is so ordered. [ Footnote 1 ]

															Those factors are as follows:

															"1. The defendant's capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of law
was significantly impaired, but not so impaired as to constitute a
defense to prosecution."

															"2. The defendant was under unusual and substantial duress,
although not such as to constitute a defense to prosecution."

															"3. The defendant was legally accountable for the conduct of
another under the provisions of § 13-303, but his participation was
relatively minor, although not so minor as to constitute a defense
to prosecution."

															"4. The defendant could not reasonably have foreseen that his
conduct in the course of the commission of the offense for which
the defendant was convicted would cause, or would create a grave
risk of causing, death to another person."

															"5. The defendant's age."

															Ariz.Rev.Stat. § 13-703(G) (Supp.1988).

															[ Footnote 2 ]

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

															[ Footnote 3 ]

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

															[ Footnote 4 ]

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

															Today a petitioner before this Court says that a State
sentencing court (1) had unconstitutionally broad discretion to
sentence him to death instead of imprisonment, and (2) had
unconstitutionally narrow discretion to sentence him to
imprisonment instead of death. An observer unacquainted with our
death penalty jurisprudence (and in the habit of thinking
logically) would probably say these positions cannot both be right.
The ultimate choice in capital sentencing, he would point out, is a
unitary one -- the choice between death and imprisonment. One
cannot have discretion whether to select the one yet lack
discretion whether to select the other. Our imaginary observer
would then be surprised to discover that, under this Court's Eighth
Amendment jurisprudence of the past 15 years, petitioner would have
a strong chance of winning on both of these antagonistic
claims simultaneously -- as evidenced by the facts that four
Members of this Court think he should win on both, see
post at 497 U. S. 677 (BLACKMUN, J., dissenting), and that an en banc panel of a Federal
Court of Appeals so held in an essentially identical case, see
Adamson v. Ricketts, 865 F.2d 1011, 1029-1044 (CA9 1988). But
that just shows that our jurisprudence and logic have long since
parted ways. I write separately to say that, and explain why, I
will no longer seek to apply one of the two incompatible Page 497 U. S. 657 branches of that jurisprudence. I agree with the Court's
analysis of petitioner's first claim, and concur in its opinion as
to Parts I, II, and V. As to the second claim, I concur only in the
judgment. I A Over the course of the past 15 years, this Court has assumed the
role of rulemaking body for the States' administration of capital
sentencing -- effectively requiring capital sentencing proceedings
separate from the adjudication of guilt, see, e.g., Woodson v.
North Carolina, 428 U. S. 280 , 428 U. S.
301 -305 (1976) (plurality opinion); Gregg v.
Georgia, 428 U. S. 153 , 428 U. S. 195 (1976) (opinion announcing the judgment), dictating the type and
extent of discretion the sentencer must and must not have, see,
e.g., Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion); Godfrey v. Georgia, 446 U. S. 420 (1980), requiring that certain categories of evidence must and must
not be admitted, see, e.g., Skipper v. South Carolina, 476 U. S. 1 (1986); Booth v. Maryland, 482 U. S. 496 (1987), undertaking minute inquiries into the wording of jury
instructions to ensure that jurors understand their duties under
our labyrinthine code of rules, see, e.g., Caldwell v.
Mississippi, 472 U. S. 320 (1985); Mills v. Maryland, 486 U.
S. 367 (1988), and prescribing the procedural forms that
sentencing decisions must follow, see, e.g., McKoy v. North
Carolina, 494 U. S. 433 (1990). The case that began the development of this Eighth
Amendment jurisprudence was Furman v. Georgia, 408 U. S. 238 (1972) (per curiam ), which has come to stand for the principle
that a sentencer's discretion to return a death sentence must be
constrained by specific standards, so that the death penalty is not
inflicted in a random and capricious fashion.

															In Furman , we overturned the sentences of two men
convicted and sentenced to death in state courts for murder, and
one man so convicted and sentenced for rape, under statutes Page 497 U. S. 658 that gave the jury complete discretion to impose death for those
crimes, with no standards as to the factors it should deem
relevant. The brief per curiam gave no reasons for the Court's
decision other than to say that

															"the imposition and carrying out of the death penalty in these
cases constitute cruel and unusual punishment in violation of the
Eight and Fourteenth Amendments." Id. at 408 U. S.
239 -240. To uncover the reasons underlying the decision
in Furman, one must turn to the opinions of the five
Justices forming the majority, each of whom wrote separately and
none of whom joined any other's opinion. Of these opinions, two
rested on the broadest possible ground -- that the death penalty
was cruel and unusual punishment in all circumstances. See
id. at 408 U. S. 305 (BRENNAN, J., concurring); id. at 408 U. S.
369 -371 (MARSHALL, J., concurring). A third, that of
Justice Douglas, rested on a narrower ground -- that the
discretionary capital sentencing systems under which the
petitioners had been sentenced were operated in a manner that
discriminated against racial minorities and unpopular groups. See id. at 408 U. S.
256 -257 (concurring opinion).

															The critical opinions, however, in light of the subsequent
development of our jurisprudence, were those of Justices Stewart
and WHITE. They focused on the infrequency and seeming randomness
with which, under the discretionary state systems, the death
penalty was imposed. Justice Stewart wrote:

															"These death sentences are cruel and unusual in the same way
that being struck by lightning is cruel and unusual. For, of all
the people convicted of rapes and murders in 1967 and 1968, many
just as reprehensible as these, the petitioners are among a
capriciously selected random handful upon whom the sentence of
death has in fact been imposed. . . . [T]he Eighth and Fourteenth
Amendments cannot tolerate the infliction of a sentence of death
under legal systems that permit this unique Page 497 U. S. 659 penalty to be so wantonly and so freakishly imposed." Id. at 408 U. S.
309 -310 (concurring opinion) (footnotes omitted).
Justice WHITE took a similar view. In his opinion, the death
sentences under review violated the Eighth Amendment because,

															"as the statutes before us are now administered, the penalty is
so infrequently imposed that the threat of execution is too
attenuated to be of substantial service to criminal justice," id. at 408 U. S. 313 .
"[T]here is no meaningful basis for distinguishing the few cases in
which it is imposed from the many cases in which it is not," ibid., so that it constitutes a "pointless and needless
extinction of life with only marginal contributions to any
discernible social or public purposes," id. at 408 U. S. 312 .
The opinions of both Justice Stewart and Justice WHITE went out of
the way to say that capital punishment was not in itself a cruel
and unusual punishment, and that a mandatory system of capital
sentencing, in which everyone convicted of a particular crime
received that punishment, would "present quite different issues." Id. at 408 U. S.
310 -311 (WHITE, J., concurring); see also id. at 408 U. S.
307 -308 (Stewart, J., concurring). Furman led at least 35 States to adopt new capital
sentencing procedures that eliminated some of the discretion
previously conferred to impose or withhold the death penalty. See Gregg v. Georgia, supra, 428 U.S. at 428 U. S. 179 .
In 1976, we upheld against Eighth Amendment challenge three "guided
discretion" schemes representative of these measures which, in
varying forms, required the sentencer to consider certain specified
aggravating and mitigating circumstances in reaching its decision.
In the principal case, Gregg v. Georgia, supra, the
three-Justice opinion announcing the judgment read Furman as

															"mandat[ing] that, where discretion is afforded a sentencing
body on a matter so grave as the determination of whether a human
life should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk of wholly
arbitrary and capricious action, " id. at 428 U. S. 189 (joint opinion of Stewart, Powell, and STEVENS, Page 497 U. S. 660 JJ.) (emphasis added). See also id. at 428 U. S.
221 -222 (WHITE, J., joined by Burger, C.J., and
REHNQUIST, J., concurring in judgment); Proffitt v.
Florida, 428 U. S. 242 , 428 U. S. 251 (1976) (Opinion of Stewart, Powell, and STEVENS, JJ.); id. at 428 U. S. 260 (WHITE, J., joined by Burger, C.J., and REHNQUIST, J., concurring
in judgment); Jurek v. Texas, 428 U.
S. 262 , 428 U. S. 276 (1976) (Opinion of Stewart, Powell, and STEVENS, JJ.); id. at 428 U. S. 279 (WHITE, J., joined by Burger, C.J., and REHNQUIST, J., concurring
in judgment).

															Since the 1976 cases, we have routinely read Furman as
standing for the proposition that "channeling and limiting . . .
the sentencer's discretion in imposing the death penalty" is a
"fundamental constitutional requirement," Maynard v.
Cartwright, 486 U. S. 356 , 486 U. S. 362 (1988), and have insisted that States furnish the sentencer
with

															"clear and objective standards' that provide 'specific and
detailed guidance,' and that 'make rationally reviewable the
process for imposing a sentence of death." Godfrey v. Georgia, 446 U.S. at 446 U. S. 428 (footnotes omitted). Only twice since 1976 have we actually
invalidated a death sentence because of inadequate guidance to the
sentencer, see Maynard, supra, 486 U.S. at 486 U. S.
362 -364; Godfrey, supra, 446 U.S. at 446 U. S.
428 -429, but we have repeatedly incanted the principle
that "unbridled discretion" is unacceptable, Penry v.
Lynaugh, 492 U. S. 302 , 492 U. S. 326 (1989), that capital sentencing procedures must constrain and guide
the sentencer's discretion to ensure "that the death penalty is not
meted out arbitrarily and capriciously," California v.
Ramos, 463 U. S. 992 , 463 U. S. 999 (1983), that "the State must establish rational criteria that
narrow the decisionmaker's judgment," McCleskey v. Kemp, 481 U. S. 279 , 481 U. S. 305 (1987), that "death penalty statutes [must] be structured so as to
prevent the penalty from being administered in an arbitrary and
unpredictable fashion," California v. Brown, 479 U.
S. 538 , 479 U. S. 541 (1987), that our cases require "procedural protections . . . to
ensure that the death penalty will be imposed in a consistent,
rational manner," Barclay v. Florida, 463 U.
S. 939 , 463 U. S. 960 (1983) (STEVENS, Page 497 U. S. 661 J., concurring in judgment), that "[states] must administer [the
death] penalty in a way that can rationally distinguish between
those individuals for whom death is an appropriate sanction and
those for whom it is not," Spaziano v. Florida, 468 U. S. 447 , 468 U. S. 460 (1984). See also Zant v. Stephens, 462 U.
S. 862 , 462 U. S. 877 (1983); Eddings v. Oklahoma, 455 U.
S. 104 , 455 U. S. 110 (1982); Pulley v. Harris, 465 U. S.
37 , 465 U. S. 51 (1984); Booth v. Maryland, 482 U.S. at 482 U. S. 502 ; Mills v. Maryland, 486 U.S. at 486 U. S. 374 ; Lowenfield v. Phelps, 484 U. S. 231 , 484 U. S. 244 (1988). B Shortly after introducing our doctrine requiring constraints on
the sentencer's discretion to "impose" the death penalty, the Court
began developing a doctrine forbidding constraints on the
sentencer's discretion to " decline to impose" it. McCleskey v. Kemp, supra, 481 U.S. at 481 U. S. 304 .
This second doctrine -- counter-doctrine would be a better word --
has completely exploded whatever coherence the notion of "guided
discretion" once had.

															Some States responded to Furman by making death the
mandatory punishment for certain categories of murder. We
invalidated these statutes in Woodson v. North Carolina, 428 U. S. 280 (1976), and Roberts v. Louisiana, 428 U.
S. 325 (1976), a plurality of the Court concluding that
the sentencing process must accord at least some consideration to
the "character and record of the individual offender." Woodson,
supra, 428 U.S. at 428 U. S. 304 (Opinion of Stewart, Powell, and STEVENS, JJ.). Other States
responded to Furman by leaving the sentencer some
discretion to spare capital defendants, but limiting the kinds of
mitigating circumstances the sentencer could consider. We
invalidated these statutes in Lockett v. Ohio, 438 U. S. 586 (1978), a plurality saying the Eighth Amendment requires that the
sentencer

															"not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of
the circumstances of the offense that the defendant proffers as a
basis for a sentence less than death." Id. Page 497 U. S. 662 at 438 U. S. 604 (Opinion of Burger, C.J., joined by Stewart, Powell, and STEVENS,
JJ.) (emphasis omitted and added). The reasoning of the pluralities
in these cases was later adopted by a majority of the Court. See Sumner v. Shuman, 483 U. S. 66 (1987)
(embracing Woodson ); Eddings v. Oklahoma, supra, (embracing Lockett ).

															These decisions, of course, had no basis in Furman. One
might have supposed that curtailing or eliminating discretion in
the sentencing of capital defendants was not only consistent with Furman but positively required by it -- as many of the
States, of course, did suppose. But in Woodson and Lockett, it emerged that uniform treatment of
offenders guilty of the same capital crime was not only not required by the Eighth Amendment, but was all but prohibited. Announcing the proposition that "[c]entral to
the application of the [Eighth] Amendment is a determination of
contemporary standards regarding the infliction of punishment," Woodson, supra, 428 U.S. at 428 U. S. 288 ,
and pointing to the steady growth of discretionary sentencing
systems over the previous 150 years (those very systems we had
found unconstitutional in Furman ), Woodson,
supra, at 428 U. S.
291 -292, the pluralities in those cases determined that
a defendant could not be sentenced to death unless the sentencer
was convinced, by an unconstrained and unguided evaluation of
offender and offense, that death was the appropriate punishment. Id. at 428 U. S.
304 -305; Lockett, supra, 438 U.S. at 438 U. S.
604 -605. In short, the practice which in Furman had been described as the discretion to sentence to death and
pronounced constitutionally prohibited was in Woodson and Lockett renamed the discretion not to sentence to death
and pronounced constitutionally required.

															As elaborated in the years since, the Woodson-Lockett principle has prevented States from imposing all but the most
minimal constraints on the sentencer's discretion to decide that an
offender eligible for the death penalty should nonetheless not
receive it. We have, in the first place, repeatedly rebuffed
States' efforts to channel that discretion by Page 497 U. S. 663 specifying objective factors on which its exercise should rest.
It would misdescribe the sweep of this principle to say that "all
mitigating evidence" must be considered by the sentencer. That
would assume some objective criterion of what is mitigating, which
is precisely what we have forbidden. Our cases proudly announce
that the Constitution effectively prohibits the States from
excluding from the sentencing decision any aspect of a defendant's
character or record, or any circumstance surrounding the crime:
that the defendant had a poor and deprived childhood, or that he
had a rich and spoiled childhood; that he had a great love for the
victim's race, or that he had a pathological hatred for the
victim's race; that he has limited mental capacity, or that he has
a brilliant mind which can make a great contribution to society;
that he was kind to his mother, or that he despised his mother. Whatever evidence bearing on the crime or the criminal the
defense wishes to introduce as rendering the defendant less
deserving of the death penalty must be admitted into evidence and
considered by the sentencer. See, e.g., Lockett, supra, ("character, prior record, age, lack of specific intent to cause
death, and . . . relatively minor part in the crime"); Eddings
v. Oklahoma, supra, 455 U.S. at 455 U. S. 107 ( inter alia, that the defendant's "parents were divorced
when he was 5 years old, and until he was 14 [he] lived with his
mother without rules or supervision"); Hitchcock v.
Dugger, 481 U. S. 393 , 481 U. S. 397 (1987) ( inter alia, "that petitioner had been one of seven
children in a poor family that earned its living by picking cotton;
that his father had died of cancer; and that petitioner had been a
fond and affectionate uncle"); Skipper v. South Carolina, 476 U. S. 1 , 476 U. S. 3 (1986)
("that petitioner had been a well-behaved and well-adjusted
prisoner" while awaiting trial). Nor may States channel the
sentencer's consideration of this evidence by defining the weight
or significance it is to receive -- for example, by making evidence
of mental retardation relevant only insofar as it bears on the
question whether the crime was committed deliberately, See Penry v.
Lynaugh , Page 497 U. S. 664 492 U. S. 302 (1989). Rather, they must let the sentencer "giv[e] effect," McKoy v. North Carolina, 494 U. S. 433 , 494 U. S.
442 -443 (1990), to mitigating evidence in whatever
manner it pleases. Nor, when a jury is assigned the sentencing
task, may the State attempt to impose structural rationality on the
sentencing decision by requiring that mitigating circumstances be
found unanimously, see ibid.; each juror must be allowed
to determine and "give effect" to his perception of what evidence
favors leniency, regardless of whether those perceptions command
the assent of (or are even comprehensible to) other jurors.

															To acknowledge that "there perhaps is an inherent tension"
between this line of cases and the line stemming from Furman,
McCleskey v. Kemp, 481 U.S. at 481 U. S. 363 (BLACKMUN, J., dissenting), is rather like saying that there was
perhaps an inherent tension between the Allies and the Axis Powers
in World War II. And to refer to the two lines as pursuing "twin
objectives," Spaziano v. Florida, 468 U.S. at 468 U. S. 459 ,
is rather like referring to the twin objectives of good and evil.
They cannot be reconciled. Pursuant to Furman, and in
order "to achieve a more rational and equitable administration of
the death penalty," Franklin v. Lynaugh, 487 U.
S. 164 , 487 U. S. 181 (1988), we require that States "channel the sentencer's discretion
by clear and objective standards' that provide `specific and
detailed guidance,'" Godfrey v. Georgia, 446 U.S. at 446 U. S. 428 .
In the next breath, however, we say that "the State cannot channel the sentencer's discretion . . . to consider any relevant
[mitigating] information offered by the defendant," McCleskey
v. Kemp, supra, 481 U.S. at 481 U. S. 306 (emphasis added), that the sentencer must enjoy unconstrained
discretion to decide whether any sympathetic factors bearing on the
defendant or the crime indicate that he does not "deserve to be
sentenced to death," Penry v. Lynaugh, supra, at 492 U. S. 326 .
The latter requirement quite obviously destroys whatever Page 497 U. S. 665 rationality and predictability the former requirement was
designed to achieve. * The Court has attempted to explain the contradiction by saying
that the two requirements serve different functions: the first
serves to "narrow" according to rational criteria the class of
offenders eligible for the death penalty, while the second
guarantees that each offender who is death-eligible is not actually
sentenced to death without "an individualized assessment of the
appropriateness of the death penalty." Penry v. Lynaugh,
supra, at 492 U. S. 317 ; see also Zant v. Stephens, 462 U.S. at 462 U. S.
878 -879. But it is not "individualized assessment" that
is the issue here. No one asserts that the Constitution Page 497 U. S. 666 permits condemnation en masse. The issue is whether, in
the process of the individualized sentencing determination, the
society may specify which factors are relevant, and which are not
-- whether it may insist upon a rational scheme in which all
sentencers making the individualized determinations apply the same
standard. That is precisely the issue that was involved in Furman, no more and no less. Having held, in Furman, that the aggravating factors to be sought in the
individualized determination must be specified in advance, we are
able to refer to the defendants who will qualify under those
factors as a "class of death eligibles" -- from among whom those
actually to receive death will be selected on the basis of
unspecified mitigating factors. But if we had held in Lockett that the mitigating factors to be sought
in the individualized determination must be specified in advance,
we would equally have been able to refer to the defendants who will
qualify under those factors as a "class of mercy eligibles" -- from
among whom those actually to receive mercy will be selected on the
basis of unspecified aggravating factors. In other words,
classification versus individuation does not explain the
opposite treatment of aggravating and mitigating factors; it is
merely one way of describing the result of that opposite
treatment. What is involved here is merely setting standards for
individualized determinations, and the question remains why the
Constitution demands that the aggravating standards and mitigating
standards be accorded opposite treatment. It is impossible to
understand why. Since the individualized determination is a unitary
one (does this defendant deserve death for this crime?), once one
says each sentencer must be able to answer "no" for whatever reason
it deems morally sufficient (and indeed, for whatever reason any
one of 12 jurors deems morally sufficient), it becomes impossible
to claim that the Constitution requires consistency and rationality
among sentencing determinations to be preserved by strictly
limiting the reasons for which each sentencer can say "yes." In
fact, randomness Page 497 U. S. 667 and "freakishness" are even more evident in a system that
requires aggravating factors to be found in great detail, since it
permits sentencers to accord different treatment, for whatever
mitigating reasons they wish, not only to two different murderers
but to two murderers whose crimes have been found to be of similar
gravity. It is difficult enough to justify the Furman requirement so long as the states are permitted to allow random
mitigation; but to impose it while simultaneously requiring random
mitigation is absurd. I agree with Justice WHITE's observation that
the Lockett rule represents a sheer "about-face" from Furman, an outright negation of the principle of guided
discretion that brought us down the path of regulating capital
sentencing procedure in the first place. Lockett v. Ohio, 438 U.S. at 438 U. S. 622 (opinion of WHITE, J.). C The simultaneous pursuit of contradictory objectives necessarily
produces confusion. As THE CHIEF JUSTICE has pointed out, in
elaborating our doctrine,

															"the Court has gone from pillar to post with the result that the
sort of reasonable predictability upon which legislatures, trial
courts, and appellate courts must of necessity rely has been all
but completely sacrificed." Lockett v. Ohio, supra, at 438 U. S. 629 (REHNQUIST, J., dissenting). Repeatedly over the past 20 years,
state legislatures and courts have adopted discretion-reducing
procedures to satisfy the Furman principle, only to be
told years later that their measures have run afoul of the Lockett principle. Having said in Furman that
unconstrained discretion in capital sentencing was unacceptable, see Furman v. Georgia, 408 U.S. at 408 U. S.
256 -257 (Douglas, J., concurring); id. at 408 U. S.
309 -310 (Stewart, J., concurring); id. at 408 U. S.
311 -312 (WHITE, J., concurring), we later struck down
mandatory schemes, adopted in response to Furman because
they constrained sentencing discretion. See Woodson v. North
Carolina, 428 U. S. 280 (1976). Having sustained specific state sentencing schemes Page 497 U. S. 668 in 1976 because they provided the constitutionally necessary
degree of "guided discretion" in the form of objective sentencing
criteria, see, e.g., Proffitt v. Florida, 428 U.
S. 242 (1976); Jurek v. Texas, 428 U.
S. 262 (1976), we later struck down those very schemes
because they required the sentencer to confine itself to the
factors contained in those objective criteria, see Hitchcock v.
Dugger, 481 U. S. 393 (1987) (Florida); Penry v. Lynaugh, 492 U.
S. 302 (1989) (Texas). Having encouraged the States to
adopt the "important additional safeguard against arbitrariness" of
requiring specific jury findings supporting its sentencing
decision, Gregg v. Georgia, 428 U.S. at 428 U. S. 198 ,
we later made such findings impossible as to mitigating
circumstances (and thus meaningless as a whole) by prohibiting a
requirement that the jury agree on mitigating circumstances, McKoy v. North Carolina, 494 U. S. 433 (1990). For state lawmakers, the lesson has been that a decision of
this Court is nearly worthless as a guide for the future; though we
approve or seemingly even require some sentencing procedure today,
we may well retroactively prohibit it tomorrow.

															In a jurisprudence containing the contradictory commands that
discretion to impose the death penalty must be limited but
discretion not to impose the death penalty must be virtually
unconstrained, a vast number of procedures support a plausible
claim in one direction or the other. Conscientious counsel are
obliged to make those claims, and conscientious judges to consider
them. There has thus arisen, in capital cases, a permanent
flood-tide of stay applications and petitions for certiorari to
review adverse judgments at each round of direct and collateral
review, alleging novel defects in sentencing procedure arising out
of some permutation of either Furman or Lockett. State courts, attempting to give effect to the contradictory
principles in our jurisprudence and reluctant to condemn an
offender without virtual certainty that no error has been
committed, often suspend the normal rules of procedural bar to give
ear to each new claim that Page 497 U. S. 669 the sentencer's discretion was over- or under-constrained. An
adverse ruling typically gives rise to yet another round of federal
habeas review -- and by the time that is concluded, we may well
have announced yet another new rule that will justify yet another
appeal to the state courts. The effects of the uncertainty and
unpredictability are evident in this Court alone, even though we
see only the tip of a mountainous iceberg. Since granting
certiorari in McKoy v. North Carolina, supra, on February
21, 1989 (the first of this Term's capital cases to have certiorari
granted), we have received over 350 petitions for certiorari in
capital cases; eight were granted, and 84 were held for the nine
cases granted for this Term; 37 were held for this case alone.
Small wonder, then, that the statistics show a capital punishment
system that has been approved, in many States, by the democratic
vote of the people, that has theoretically been approved as
constitutional by this Court, but that seems unable to function
except as a parody of swift or even timely justice. As of May,
1990, there were 2,327 convicted murderers on death row; only 123
have been executed since our 1972 Furman decision. NAACP
Legal Defense and Educational Fund, Death Row, U.S.A. 1 (1990).
Those executions that have been carried out have occurred an
average of eight years after the commission of the capital crime. See E. Carnes & S. Stewart, Summary of
Post- Furman Capital Punishment Data § VIII (unpublished
report by Alabama Assistant Attorneys General on file with Harvard
Law School Library, 1988), cited in Powell, Commentary, 102
Harv.L.Rev. 1013, 1038, n. 26 (1989).

															In my view, it is time for us to reexamine our efforts in this
area and to measure them against the text of the constitutional
provision on which they are purportedly based. II The Eighth Amendment, made applicable to the States by the
Fourteenth Amendment, see Robinson v. California, 370 U. S. 660 , 370 U. S. 666 (1962), provides: Page 497 U. S. 670 "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."

															U.S. Const., Amdt. 8. The requirement as to punishments stands
in stark contrast to the requirement for bail and fines, which are
invalid if they are "excessive." When punishments other than fines
are involved, the Amendment explicitly requires a court to consider
not only whether the penalty is severe or harsh, but also whether
it is "unusual." If it is not, then the Eighth Amendment does not
prohibit it, no matter how cruel a judge might think it to be.
Moreover, the Eighth Amendment's prohibition is directed against
cruel and unusual punishments. It does not, by its terms,
regulate the procedures of sentencing, as opposed to the substance
of punishment. As THE CHIEF JUSTICE has observed, "[t]he
prohibition of the Eighth Amendment relates to the character of the
punishment, and not to the process by which it is imposed." Gardner v. Florida, 430 U. S. 349 , 430 U. S. 371 (1977) (REHNQUIST, J., dissenting). Thus, the procedural elements
of a sentencing scheme come within the prohibition, if at all, only
when they are of such a nature as systematically to render the
infliction of a cruel punishment "unusual."

															Our decision in Furman v. Georgia, 408 U.
S. 238 (1972), was arguably supported by this text. As I
have already described, see 497 U.
S. supra, the critical opinions of Justice
Stewart and Justice WHITE in that case rested on the ground that
discretionary capital sentencing had made the death sentence such a
random and infrequent event among capital offenders ("wanto[n] and
freakis[h]," as Justice Stewart colorfully put it) that its
imposition had become cruel and unusual. As far as I can discern
(this is not the occasion to explore the subject), that is probably
not what was meant by an "unusual punishment" in the Eighth
Amendment -- that is to say, the text did not originally prohibit a
traditional form of punishment that is rarely imposed, as opposed
to a form of punishment that is not traditional. But the phrase can
bear Page 497 U. S. 671 the former meaning. Moreover, since in most States, until the
beginning of this century, the death penalty was mandatory for the
convictions for which it was prescribed, see H. Bedau, The
Death Penalty in America 10-11 (3d ed. 1982); W. Bowers, Executions
in America 8 (1974), it cannot be said that the Furman interpretation of the phrase is contradicted by the clear
references to a permissible death penalty in the Constitution, see U.S. Const., Amend. 5; U.S. Const., Amend. 14, § 1. I
am therefore willing to adhere to the precedent established by our Furman line of cases, and to hold that, when a State
adopts capital punishment for a given crime but does not make it
mandatory, the Eighth Amendment bars it from giving the sentencer
unfettered discretion to select the recipients, but requires it to
establish in advance, and convey to the sentencer, a governing
standard. See Maynard v. Cartwright, 486 U.
S. 356 (1988); Godfrey v. Georgia, 446 U.
S. 420 (1980).

															The Woodson-Lockett line of cases, however, is another
matter. As far as I can discern, that bears no relation whatever to
the text of the Eighth Amendment. The mandatory imposition of death
-- without sentencing discretion -- for a crime which States have
traditionally punished with death cannot possibly violate the
Eighth Amendment, because it will not be "cruel" (neither
absolutely nor for the particular crime) and it will not be
"unusual" (neither in the sense of being a type of penalty that is
not traditional nor in the sense of being rarely or "freakishly"
imposed). It is quite immaterial that most States have abandoned
the practice of automatically sentencing to death all offenders
guilty of a capital crime in favor of a separate procedure in which
the sentencer is given the opportunity to consider the
appropriateness of death in the individual case, see Woodson v.
North Carolina, 428 U.S. at 428 U. S.
294 -295; still less is it relevant that mandatory
capital sentencing is (or alleged to be) out of touch Page 497 U. S. 672 with "'contemporary community values'" regarding the
administration of justice, ibid. (citation omitted).

															I am aware of the argument, see id. at 428 U. S.
302 -303; Roberts v. Louisiana, 428 U.S. at 428 U. S.
333 -335 (plurality opinion), that mandatory capital
sentencing schemes may suffer from the same defects that
characterize absolutely discretionary schemes. In mandatory
systems, the argument goes, juries frequently acquit offenders whom
they find guilty but believe do not deserve the death penalty for
their crime; and because this "jury nullification" occurs without
the benefit of any guidance or standards from the State, the result
is the same "arbitrary and capricious imposition of death
sentences" struck down in Furman. One obvious problem with
this argument is that it proves too much, invalidating Furman at the same time that it validates Woodson . If juries will ignore their instructions in
determining guilt in a mandatory capital sentencing scheme, there
is no reason to think they will not similarly chafe at the
" clear and objective standards' . . . provid[ing] `specific and
detailed guidance,'" Godfrey v. Georgia, supra, 446 U.S.
at 446 U. S. 428 (footnotes omitted), that Furman requires. The Furman approach must be preferred, since it is facially
implausible that the risk of arbitrariness arising from juries'
ignoring their instructions is greater than the risk of
arbitrariness from giving them no instructions at all. The theory
of "unusualness" adopted in Furman is tenuous enough when
used to invalidate explicitly conferred standardless sentencing
discretion; I am unwilling to extend that theory to situations in
which the sentencer is denied that discretion, on the
basis of a conjecture (found nowhere else in the law) that juries
systematically disregard their oaths. Despite the fact that I think Woodson and Lockett find no proper basis in the Constitution, they
have some claim to my adherence because of the doctrine of stare decisis. I do not reject that claim lightly, but l
must reject it here. My initial and my fundamental problem, as I
have described it in detail above, is not that Woodson and Lockett are wrong, Page 497 U. S. 673 but that Woodson and Lockett are rationally
irreconcilable with Furman. It is that which led me into
the inquiry whether either they or Furman was wrong. I
would not know how to apply them -- or, more precisely, how to
apply both them and Furman -- if I wanted to. I cannot
continue to say, in case after case, what degree of "narrowing" is
sufficient to achieve the constitutional objective enunciated in Furman when I know that that objective is in any case
impossible of achievement because of Woodson-Lockett. And
I cannot continue to say, in case after case, what sort of
restraints upon sentencer discretion are unconstitutional under Woodson-Lockett when I know that the Constitution
positively favors constraints under Furman. Stare
decisis cannot command the impossible. Since I cannot possibly
be guided by what seem to me incompatible principles, I must reject
the one that is plainly in error.

															The objectives of the doctrine of stare decisis are not
furthered by adhering to Woodson-Lockett in any event. The
doctrine exists for the purpose of introducing certainty and
stability into the law and protecting the expectations of
individuals and institutions that have acted in reliance on
existing rules. As I have described, the Woodson-Lockett principle has frustrated this very purpose from the outset --
contradicting the basic thrust of much of our death penalty
jurisprudence, laying traps for unwary States, and generating a
fundamental uncertainty in the law that shows no signs of ending or
even diminishing.

															I cannot adhere to a principle so lacking in support in
constitutional text and so plainly unworthy of respect under stare decisis. Accordingly, I will not, in this case or in
the future, vote to uphold an Eighth Amendment claim that the
sentencer's discretion has been unlawfully restrict III I turn, finally, to petitioner's Eighth Amendment claims in the
present case. Page 497 U. S. 674 With respect to the Furman claim, I agree with the
Court's analysis and conclusion, and join those portions of its
opinion. The aggravating circumstance found to exist in this case,
that the murder was committed in an "especially heinous, cruel or
depraved" manner -- cruelty being defined as involving the
infliction of mental anguish or physical abuse, and depravity
defined as involving the relishing of the murder or the victim's
suffering -- defines with reasonable specificity certain elements
that distinguish the death-eligible offense from other murders.
They are precise enough, in my view, both to guide the sentencer
and to enable review of the sentence.

															As to petitioner's claim that, in two respects, the Arizona
procedure deprived the sentencer of discretion to consider all
mitigating circumstances: for the reasons stated above, I do not
believe that claim, if correct, states an Eighth Amendment
violation.

															I therefore concur in part and concur in the judgment.

															* Justice STEVENS contends that the purpose of Furman is merely to narrow the group of crimes (to which the sentencer's
unconstrained discretion is then applied) to some undefined point
near the "tip of the pyramid" of murder -- the base of that pyramid
consisting of all murders, and the apex consisting of a particular
type crime of murder defined in minute detail. Post at 497 U. S.
715 -718 (dissenting opinion). There is, however, no hint
in our Furman jurisprudence of an attempt to determine
what constitutes the critical line below the "tip of the pyramid,"
and to assess whether either the elements of the crime are alone
sufficient to bring the statute above that line (in which case no
aggravating factors whatever need be specified) or whether the
aggravating factors are sufficient for that purpose. I read the
cases (and the States, in enacting their post- Furman statutes, have certainly read them) as requiring aggravating
factors to be specified whenever the sentencer is given discretion.
It is a means of confining the sentencers' discretion -- giving
them something specific to look for rather than leaving them to
wander at large among all aggravating circumstances. That produces
a consistency of result which is unachievable -- no matter how
narrowly the crime is defined -- if they are left to take into
account any aggravating factor at all. We have, to be sure, held
that the discretion-limiting aggravating factor can duplicate a
factor already required by the definition of the crime, see
Lowenfield v. Phelps, 484 U. S. 231 (1988), but, in those circumstances, the sentencer's discretion is
still focused and confined. We have never allowed sentencers to be
given complete discretion without a requisite finding of
aggravating factors. If and when the Court redefines Furman to permit the latter, and to require an assessment
(I cannot imagine on what basis) that a sufficiently narrow level
of the "pyramid" of murder has been reached, I shall be prepared to
reconsider my evaluation of Woodson and Lockett. Justice BRENNAN, with whom Justice MARSHALL joins,
dissenting.

															The Court's most cavalier application today of longstanding
Eighth Amendment doctrines developed over the course of two decades
of careful and sustained inquiry, when added to the host of other
recent examples of crabbed application of doctrine in the death
penalty context, see, e.g., Blystone v. Pennsylvania, 494 U. S. 299 (1990); Boyde v. California, 494 U.
S. 370 (1990); cf. Saffle v. Parks, 494 U. S. 484 (1990); Sawyer v. Smith, ante, p. 497 U. S. 227 ,
suggests that this Court is losing sight of its responsibility to
ensure that the ultimate criminal sanction is meted out only in
accordance with constitutional principle. While I join Justice
BLACKMUN's dissenting opinions in today's decisions, I also adhere
to my Page 497 U. S. 675 view that the death penalty is in all circumstances a cruel and
unusual punishment:

															"The fatal constitutional infirmity in the punishment of death
is that it treats"

															"members of the human race as nonhumans, as objects to be toyed
with and discarded. [It is] thus inconsistent with the fundamental
premise of the [Cruel and Unusual Punishments] Clause that even the
vilest criminal remains a human being possessed of common human
dignity."

															"As such, it is a penalty that 'subjects the individual to a
fate forbidden by the principle of civilized treatment guaranteed
by the [Clause].' I therefore would hold, on that ground alone,
that death is today a cruel and unusual punishment prohibited by
the Clause."

															"Justice of this kind is obviously no less shocking than the
crime itself, and the new 'official' murder, far from offering
redress for the offense committed against society, adds instead a
second defilement to the first." Gregg v. Georgia, 428 U. S. 153 , 428 U. S.
230 -231 (1976) (dissenting opinion) (citations and
footnote omitted). See Furman v. Georgia, 408 U.
S. 238 , 408 U. S.
257 -306 (1972) (concurring opinion).

															Even if I did not believe that the death penalty is wholly
inconsistent with the constitutional principle of human dignity, I
would agree that the concern for human dignity lying at the core of
the Eighth Amendment requires that a decision to impose the death
penalty be made only after an assessment of its propriety in each
individual case.

															"A process that accords no significance to relevant facets of
the character and record of the individual offender or the
circumstances of the particular offense excludes from consideration
in fixing the ultimate punishment of death the possibility of
compassionate or mitigating factors stemming from the diverse
frailties of humankind. It treats all persons convicted of a
designated offense not as uniquely individual human beings, but as
members of Page 497 U. S. 676 a faceless, undifferentiated mass to be subjected to the blind
infliction of the penalty of death." Woodson v. North Carolina, 428 U.
S. 280 , 428 U. S. 304 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Thus, "a
system of capital punishment at once [must be] consistent and
principled but also humane and sensible to the uniqueness of the
individual." Eddings v. Oklahoma, 455 U.
S. 104 , 455 U. S. 110 (1982). [ Footnote 2/1 ]

															In the past,

															"this Court has gone to extraordinary measures to ensure that
the prisoner sentenced to be executed is afforded process that will
guarantee, as much as is humanly possible, that the sentence was
not imposed out of whim, passion, prejudice, or mistake." Id. at 455 U. S. 118 (O'CONNOR, J., concurring); but today's decisions reflect, if
anything, the opposing concern that States ought to be able to
execute prisoners Page 497 U. S. 677 with as little interference as possible from our established
Eighth Amendment doctrine.

															[ Footnote 2/1 ]

															Justice SCALIA's separate opinion dismissing the settled
principle underlying Lockett v. Ohio, 438 U.
S. 586 (1978), based on the assertion that this
doctrinal principle cannot be reconciled with that underlying Furman v. Georgia, 408 U. S. 238 (1976), reflects a misdescription and apparent misunderstanding of
our doctrine. Justice SCALlA's concern that the Lockett principle is not commanded by the explicit text of the Eighth
Amendment has long been rejected by this Court; it is well
established that the Eighth Amendment's proscription of cruel and
unusual punishments "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86 , 356 U. S. 101 (1958); see Weems v. United States, 217 U.
S. 349 , 217 U. S. 378 (1910). The Lockett and Furman principles speak
to different concerns underlying our notion of civilized
punishment; the Lockett rule flows primarily from the
Amendment's core concern for human dignity, see Woodson v.
North Carolina, 428 U. S. 280 , 428 U. S. 304 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.), whereas the Furman principle reflects the understanding that the
Amendment commands that punishment not be meted out in a wholly
arbitrary and irrational manner. Id., 428 U.S. at 428 U. S. 303 .
Our cases have applied these principles together to "insis[t] that
capital punishment be imposed fairly, and with reasonable
consistency, or not at all." Eddings v. Oklahoma, 455 U. S. 104 , 455 U. S. 112 (1982) (emphasis added); see, e.g., Penry v. Lynaugh, 492 U. S. 302 , 492 U. S. 319 , 492 U. S.
326 -328 (1989). See generally post at 497 U. S.
714 -719 (STEVENS, J., dissenting).

															Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL,
and Justice STEVENS join, dissenting.

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

															I therefore dissent from the Court's affirmance of Jeffrey Alan
Walton's sentence of death. I During the past 15 years, this Court's death penalty
jurisprudence consistently has stressed the importance of an
individualized-sentencing process, one that permits

															"the particularized consideration of relevant aspects of the
character and record of each convicted defendant before the
imposition upon him of a sentence of death." Woodson v. North Carolina, 428 U.
S. 280 , 428 U. S. 303 (1976) (plurality opinion). Such a procedure is required
because

															"[a] process that accords no significance to relevant facets of
the character and record of the individual offender or the
circumstances of the particular offense excludes from consideration
in fixing the ultimate punishment of death the possibility of
compassionate or mitigating factors stemming from the diverse
frailties of humankind." Id. at 428 U. S. 304 .
A plurality of this Court stated in Page 497 U. S. 678 Lockett v. Ohio, 438 U. S. 586 , 438 U. S. 604 (1978), that a capital sentencer may

															"not be precluded from considering, as a mitigating
factor, any aspect of a defendant's character or record and
any of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death."

															(Emphasis in original.) In Eddings v. Oklahoma, 455 U. S. 104 , 455 U. S.
114 -115 (1982), a majority held that

															"[t]he sentencer, and the [state appellate court] on review, may
determine the weight to be given relevant mitigating evidence. But
they may not give it no weight by excluding such evidence from
their consideration. [ Footnote
3/1 ]"

															The Court, moreover, has insisted that the substance as well as
the form of Lockett must be respected. See Penry v.
Lynaugh, 492 U. S. 302 , 492 U. S. 319 (1989) ("[I]t is not enough simply to allow the defendant to
present mitigating evidence to the sentencer. The sentencer must
also be able to consider and give effect to that evidence in
imposing sentence").

															From those holdings two closely related principles emerge. The
first is that the "qualitative difference" between death and all
other penalties necessitates a greater degree of "reliability in
the determination that death is the appropriate punishment in a
specific case." Woodson v. North Carolina, 428 U.S. at 428 U. S. 305 (plurality opinion). The second is that the particularized
sentencing procedure mandated by the Eighth Amendment requires that
the sentencer be allowed to consider

															"any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis
for a sentence less than death." Lockett v. Ohio, 438 U.S. at 438 U. S. 604 (plurality opinion). Only if the defendant is allowed an
unrestricted opportunity to present relevant mitigating evidence
will a capital sentencing procedure be deemed sufficiently reliable
to satisfy constitutional standards. The Court said in Eddings that "the rule in Lockett Page 497 U. S. 679 recognizes that a consistency produced by ignoring individual
differences is a false consistency." 455 U.S. at 455 U. S.
112 .

															The Court today upholds an Arizona statute which (a) excludes
from the sentencer's consideration all mitigating circumstances
that the defendant has failed to prove by a preponderance of the
evidence, and (b) places upon the capital defendant the burden of
demonstrating that the mitigating circumstances so proved are
"sufficiently substantial to call for leniency." The plurality
makes no effort to explain how these provisions are consistent with
the Eighth Amendment principles announced in Woodson,
Lockett, and their progeny. [ Footnote 3/2 ] Indeed, the plurality's analysis of these
issues includes Page 497 U. S. 680 virtually no discussion of capital cases, and those that the
majority does discuss are demonstrably inapposite. Rather, the
plurality relies on "analogous" cases that do not involve the death
penalty. Its analysis thereby ignores what I had thought to be
settled principles regarding the distinctive nature of capital
sentencing. A The Arizona capital sentencing statute flatly provides: "[T]he
burden of establishing the existence of the [mitigating]
circumstances included in subsection G of this section is on the
defendant." Ariz.Rev.Stat.Ann. § 13-703 C (1989). The Arizona
Supreme Court has construed the statute to require that any
mitigating circumstances must be proved by a preponderance of the
evidence. See, e.g., State v. McMurtrey, 143 Ariz. 71, 73, 691 P.2d
1099 , 1101 (1984). There can be no doubt that this provision of
Arizona law excludes from the sentencer's consideration relevant
mitigating evidence that might affect the determination whether the
death penalty is appropriate. Exclusion of that evidence is
unsupported by this Court's decisions, and serves no legitimate
state interest.

															The plurality does not analyze this case within the framework
established by our Eighth Amendment decisions. Rather, the
plurality relies almost exclusively on noncapital cases upholding
the State's right to place upon the defendant the burden of proving
an affirmative defense. See ante at 497 U. S. 650 .
Reliance on these cases is misplaced, however, since those
decisions rest upon a premise that is wholly inapplicable in the
capital sentencing context. In Patterson v. New York, 432 U. S. 197 (1977), the Court explained the justification in a noncapital case
for allowing the burden of persuasion as to affirmative defenses to
be placed upon the defendant rather than the State:

															"The Due Process Clause, as we see it, does not put New York to
the choice of abandoning these defenses or undertaking Page 497 U. S. 681 to disprove their existence in order to convict of a crime which
otherwise is within its constitutional powers to sanction by
substantial punishment."

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

															432 U.S. at 432 U. S.
207 -209 (emphasis added). The Court's decision thus
rested upon an argument that "the greater power includes the
lesser": since the State constitutionally could decline to
recognize the defense at all, it could take the lesser step of
placing the burden of proof upon the defendant. That reasoning is
simply inapposite when a capital defendant introduces mitigating
evidence, since the State lacks the greater power to exclude the
evidence entirely. [ Footnote
3/3 ]

															But it makes no sense to analyze petitioner's claim of Lockett error by drawing on "analogous" cases outside the
sphere of capital sentencing. In developing the requirement Page 497 U. S. 682 of individualized capital sentencing (with unlimited
presentation of relevant mitigating evidence), this Court has not
purported to rely on principles applicable to criminal prosecutions
generally. Instead, the Court's Eighth Amendment jurisprudence
explicitly has proceeded from the premise "that death is a
punishment different from all other sanctions in kind rather than
degree." Woodson v. North Carolina, 428 U.S. at 428 U. S.
303 -304 (plurality opinion). [ Footnote 3/4 ] To suggest that the principles announced
in Lockett and Eddings are applicable only
insofar as they are consistent with the constitutional rules
governing noncapital cases is to deprive those decisions of all
significance.

															Application of the preponderance standard in this context is
especially problematic in light of the fact that the "existence" of
a mitigating factor frequently is not a factual issue to which a
"yes" or "no" answer can be given. See Stebbing v.
Maryland, 469 U. S. 900 ,
902-904 (1984) (MARSHALL, J., dissenting from denial of
certiorari). The statute, for example, lists as a first mitigating
circumstance the fact that

															"[t]he defendant's capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of law
was significantly impaired. . . ."

															Ariz. Rev.Stat.Ann. § 13-703 G.1 (1989). Petitioner offered
evidence of childhood sexual abuse. Presumably, no individual who
suffers such treatment is wholly unaffected; at the same time, it
is rare that such an individual is so deeply traumatized that his
impairment furnishes a complete defense for his actions. The
question whether an individual's capacity to behave lawfully is
"impaired" is one of degree, not an either/or proposition. Page 497 U. S. 683 The preponderance standard, however, encourages the sentencer to
conclude that, unless some vaguely defined threshold of
"significance" has been reached, the evidence of abuse and
consequent impairment cannot be considered at all. Indeed, it appears that the Arizona Supreme Court has applied
the statute in just this fashion. See, e.g., State v.
Wallace, 151 Ariz. 362, 369, 728 P.2d 232 ,
239 (1986) ("we find that neither defendant's difficult earlier
years' nor his use of `various drugs' so affected his capacity to
conform to the requirements of law that they constitute mitigating
factors under § 13-703(G)(1)"), cert. denied, 483 U.S.
1011 (1987); State v. Rossi, 146 Ariz. 359, 367, 706 P.2d 371 ,
379 (1985) (intoxication or duress is not a mitigating circumstance
unless it is substantial); State v. Woratzeck, 134 Ariz.
452, 458, 657 P.2d 865 , 871 (1982)
(same); State v. Nash, 143 Ariz. 392, 406, 694 P.2d 222 ,
236 (State acknowledged some degree of mental impairment, but
argued that "it was not significant enough to be a mitigating
circumstance"), cert. denied, 471 U.
S. 1143 (1985). The Arizona Supreme Court has not simply
held that duress or impairment which falls below the threshold
should be given reduced weight at the final stage of the sentencing
process, when aggravating and mitigating circumstances are
balanced. Rather, it has held that duress or impairment which falls
below the threshold is not a mitigating factor. It is therefore
misleading, in many instances, to characterize an Arizona court's
rejection of proffered mitigating evidence as a determination that
the evidence should not be credited. The trial judge instead may be
acting upon the belief that a defendant's impairment, though
proved, is not "significant" within the meaning of the statute.
Thus, under Arizona law, a sentencing judge is entitled to give no weight to mitigating evidence on the ground that the
evidence is not mitigating enough. Under the guise of a
burden of proof, Page 497 U. S. 684 the statute provides that some mitigating evidence is not to be
considered at all. [ Footnote
3/5 ]

															Even when the trial judge's rejection of a particular mitigating
circumstance is based on credibility determinations, application of
the preponderance standard is unwarranted. Mitigating evidence that
fails to meet this standard is not so unreliable that it has no
proper place in the sentencing decision: decisions as to
punishment, like decisions as to guilt or innocence, will often be
based on the cumulative effect of several pieces of
evidence, no one of which by itself is fully persuasive. The
problems with the preponderance standard are compounded when the
defendant presents several possible mitigating factors. A trial
judge might be 49% convinced as to each of 10 mitigating
circumstances, yet he would be forced to conclude, as a matter of
law, that there was no mitigation to weigh against the aggravating
factors.

															The Arizona Supreme Court has articulated two closely related
justifications for placing upon the capital defendant the burden of
proving that a mitigating circumstance exists. The court has
asserted that "[f]acts which would tend to show mitigation are
peculiarly within the knowledge of a defendant," State v.
Smith, 125 Ariz. 412, 416, 610 P.2d 46 , 50
(1980), and that "[t]o require the State to negate every mitigating
circumstance would place an impermissible burden on the State," State v. Watson, 120 Ariz. 441, 447, 586 P.2d Page 497 U. S. 685 1253, 1259 (1978), cert. denied, 440 U.S. 924 (1979).
Until today, this Court has never identified a state interest which
outweighs the capital defendant's right to unrestricted
presentation of mitigating evidence. Even if such an interest could
exist, however, the interests advanced by the State in support of
the preponderance standard do not withstand scrutiny.

															The State's justifications are not without force when a criminal
defendant offers an affirmative defense in a trial to determine
guilt or innocence. A jury's decision as to an affirmative defense
is a binary choice: either the defense is accepted or it is not.
Since the jury's acceptance of the defense automatically results in
an acquittal (or in conviction on a lesser charge), the State may
suffer real prejudice if the defense is established on the basis of
minimally persuasive evidence which the State has no practical
opportunity to rebut -- especially if it is difficult to anticipate
the defenses that a particular individual may offer. In contrast,
if a capital sentencer believes that certain mitigating evidence
has some persuasive value, but does not meet the preponderance
standard, the sentencer simply may give that evidence reduced
weight -- weight proportional to its persuasiveness -- at the final
balancing stage. [ Footnote 3/6 ] No
legitimate interest is served Page 497 U. S. 686 by forbidding the sentencer to give such evidence any effect at
all.

															The Arizona rule at issue here falls well within the prohibition
announced in Lockett and its progeny. The statute defines
a wide range of relevant mitigating evidence -- evidence with some
degree of persuasiveness which has not been proved by a
preponderance -- that cannot be given effect by the
capital sentencer. That rule finds no support in this Court's
precedents, and it serves no legitimate governmental interest. I
therefore conclude that the Arizona death penalty statute, as
construed by the Supreme Court of Arizona, impermissibly limits the
sentencer's consideration of relevant mitigating evidence, and
thereby violates the Eighth Amendment. [ Footnote 3/7 ] B I also believe that the Constitution forbids the State of
Arizona to place upon the capital defendant the burden of proving
mitigating circumstances that are "sufficiently substantial to call
for leniency." Ariz.Rev.Stat.Ann. § 13-703 E (1989). Once an
aggravating circumstance has been established, the Arizona statute
mandates that death is to be deemed the appropriate penalty unless
the defendant proves otherwise. That statutory provision, in my
view, establishes a "presumption of death" [ Footnote 3/8 ] in violation of the Eighth Amendment. Page 497 U. S. 687 The Arizona Supreme Court repeatedly has indicated that a
defendant's mitigating evidence will be deemed "sufficiently
substantial to call for leniency" only if the mitigating factors
"outweigh" those in aggravation. [ Footnote 3/9 ] That court has sustained the requirement
on the ground that

															"[w]hen the issue of guilt is settled and only the question of
punishment remains, due process is not offended by requiring the
already guilty defendant to carry the burden of showing why he
should receive leniency." State v. Watson, 120 Ariz. at 447, 586 P.2d at 1259. If
the mitigating and aggravating circumstances are in equipoise, the
statute requires that the trial judge impose capital punishment.
The assertion that a sentence of death may be imposed in such a
case runs directly counter to the Eighth Amendment requirement that
a capital sentence must rest upon a "determination that death is
the appropriate punishment in a specific case." Woodson v.
North Carolina, 428 U.S. at 428 U. S. 305 (plurality opinion).

															The plurality takes a hard-line approach, and makes little
effort to ground its holding on our Eighth Amendment jurisprudence.
In support of its position, the plurality cites only two very
recent capital cases, Blystone v. Pennsylvania, 494 U. S. 299 (1990), and Boyde v. California, 494 U.
S. 370 (1990). Reliance even on these precedents is
misplaced. The statutes upheld in those cases provided that the
death penalty would be imposed

															"only after a determination that the aggravating circumstances
outweigh the mitigating circumstances present in the particular
crime committed by the particular defendant, or that there are no
such mitigating circumstances." Blystone, 494 U.S. at 494 U. S. 305 .
In neither Boyde nor Blystone did the challenged
statute require a capital Page 497 U. S. 688 sentence when aggravating and mitigating factors are evenly
balanced. Those decisions simply do not speak to the issue posed by
the Arizona statute: whether the State permissibly may place upon
the capital defendant the burden of demonstrating that a sentence
of death is not appropriate.

															The plurality does not attempt to explain why Arizona may
require a capital sentence in a case where aggravating and
mitigating circumstances are evenly balanced. [ Footnote 3/10 ] Indeed, the plurality does not even
acknowledge that this is the dispositive question. Instead, it
offers only a conclusory assertion:

															"So long as a State's method of allocating the burdens of proof
does not lessen the State's burden to prove every element of the
offense charged, or in this case to prove the existence of
aggravating circumstances, a defendant's constitutional rights are
not violated by placing on him the burden of proving mitigating
circumstances sufficiently substantial to call for leniency." Ante at 497 U. S. 650 .
One searches in vain for any hint of a limiting principle. May a
State require that the death penalty be imposed whenever an
aggravating factor is established and mitigating circumstances do
not " substantially outweigh" those in aggravation? May a
state statute provide that a death sentence is presumptively
appropriate whenever an aggravating circumstance is proved, and
that the presumption can be rebutted only by a showing that
mitigating circumstances are "extraordinarily great"? These
formulations would appear to satisfy the plurality's test: viz., that the State is required to establish an
aggravating circumstance, and no mitigating evidence is excluded
from the sentencer's consideration. [ Footnote 3/11 ] But the right to present mitigating Page 497 U. S. 689 evidence is rendered all but meaningless if the rules that guide
the sentencer's deliberations virtually ensure that the mitigating
evidence will not change the outcome. [ Footnote 3/12 ]

															Like the plurality's analysis of the requirement that mitigating
circumstances be proved by a preponderance of the evidence, its
approval of this provision appears to rest upon an analogy between
mitigating evidence in capital sentencing and affirmative defenses
in noncapital cases. In noncapital cases, of course, the States are
given broad latitude to sacrifice precision for predictability by
imposing determinate sentences and restricting the defendant's
ability to present evidence in mitigation or excuse. If the States
were similarly free to make capital punishment mandatory for
specified crimes, and to prohibit the introduction of mitigating
evidence or declare such evidence to be irrelevant, the plurality's
reasoning today would be unassailable. There then could be no
objection to a sentencing scheme which permitted a defendant to
argue that the death penalty was inappropriate in his case, but
placed upon his shoulders the burden of persuading the sentencer.
This Court, however, repeatedly has recognized that the
"qualitative difference between death and other penalties calls for
a greater degree of reliability when the death sentence is
imposed," Lockett v. Ohio, 438 U.S. at 438 U. S. 604 (plurality opinion), and that, in capital cases, "the punishment
should be directly related to the personal culpability of the
defendant," Penry v. Lynaugh, 492 U.S. at 492 U. S. 327 .
I see no way that these principles can be squared with Page 497 U. S. 690 a capital sentencing scheme which provides that doubtful cases
should be resolved in favor of a sentence of death. I therefore
conclude that the Constitution bars Arizona from placing upon a
capital defendant the burden of proving that mitigating
circumstances are "sufficiently substantial to call for
leniency." II In Godfrey v. Georgia, 446 U.
S. 420 (1980), we considered Georgia's "outrageously or
wantonly vile, horrible or inhuman" aggravating circumstance. The
plurality concluded:

															"There is nothing in these few words, standing alone, that
implies any inherent restraint on the arbitrary and capricious
infliction of the death sentence. A person of ordinary sensibility
could fairly characterize almost every murder as 'outrageously or
wantonly vile, horrible and inhuman.'" Id. at 446 U. S.
428 -429. Two terms ago, in Maynard v.
Cartwright, 486 U. S. 356 (1988), the Court unanimously struck down an Oklahoma death
sentence based in part upon that State's "especially heinous,
atrocious, or cruel" aggravating circumstance. The Court noted
that

															"the language of the Oklahoma aggravating circumstance at issue
. . . gave no more guidance than the 'outrageously or wantonly
vile, horrible or inhuman' language that the jury returned in its
verdict in Godfrey. " Id. 486 U.S. at 486 U. S.
363 -364.

															The Arizona statute at issue today lists as an aggravating
circumstance the conclusion that "[t]he defendant committed the
offense in an especially heinous, cruel or depraved manner."
Ariz.Rev.Stat.Ann. § 13-703 F. 6 (1989) (the (F)(6) circumstance).
The Arizona Supreme Court consistently has held that "[t]hese terms
are considered disjunctive; the presence of any one of three
factors is an aggravating circumstance." State v. Beaty, 158 Ariz. 232, 242, 762 P.2d 519 ,
529 (1988), cert. denied, 491 U.S. 910 (1989). At the
sentencing phase in the present case, the State relied primarily on
medical evidence detailing the injuries that the victim Powell
suffered when he regained consciousness after the Page 497 U. S. 691 shooting. [ Footnote 3/13 ] The
trial judge's sentencing order stated that he found that Walton had
"committed the offense in an extremely heinous, cruel or depraved
manner," App. 56, but did not specify the basis for that finding.
In its "independent review" of the capital sentence, the Arizona
Supreme Court held that the (F)(6) circumstance was not supported
by evidence of Powell's suffering after the shooting, since Walton
could not have foreseen that Powell would survive his wound. The
court found, however, that the murder was especially cruel
since

															"Powell suffered great mental anguish both during the car ride
when his fate was uncertain and in his final march into the desert
when his fate had become certain."

															159 Ariz. 571, 587, 769 P.2d
1017 , 1033 (1989). The court also indicated that a finding of
depravity would be supported by Walton's comment some hours after
the shooting that he had "never seen a man pee in his pants
before." Ibid. In sustaining Walton's sentence of death, the majority offers
two principal grounds upon which, it says, Godfrey and Maynard may be distinguished. First, the majority points
out that capital sentencing in Arizona is conducted by a trial
judge, who is presumed to be aware of any limiting construction
announced by the State Supreme Court. Ante at 497 U. S. 653 .
Second, the majority notes that the Arizona Supreme Court itself
"purport[ed] to affirm the death sentence by applying a limiting
definition of the aggravating circumstance to the facts presented." Ibid. In my view, neither of these factors supports the
Court's decision to affirm petitioner's death sentence. Page 497 U. S. 692 A Unlike a jury, a sentencing judge is presumed to know the law as
stated in the controlling opinions of the State Supreme Court. Even
if the aggravating circumstance is vague on its face, the sentence
will be valid if the judge's discretion has been suitably channeled
by the "instructions" provided by the appellate court's
construction of the statute. The trial judge's familiarity with the
State Supreme Court's opinions, however, will serve to narrow his
discretion only if that body of case law articulates a construction
of the aggravating circumstance that is coherent and consistent,
and that meaningfully limits the range of homicides to which the
aggravating factor will apply. [ Footnote 3/14 ] One therefore would expect the majority
to analyze Arizona Supreme Court decisions issued prior to the
imposition of petitioner's sentence (January 27, 1987), in order to
determine whether the judge who sentenced Walton to death can be
presumed to have acted on the basis of a constitutionally
sufficient limiting construction of the aggravating factor. The
Court, however, cites no Arizona cases at all, justifying the
omission as a refusal to second-guess the State Supreme Court's
proportionality review. Ante at 497 U. S.
655 -656. The Court thus distinguishes Godfrey and Maynard on the ground that Arizona sentencing judges
are presumed to read and be guided by the opinions of the Arizona
Supreme Court, yet insists, as a matter of principle, that it is
barred from determining whether those opinions furnish
constitutionally Page 497 U. S. 693 adequate guidance. This, it seems to me, is strange and unusual
reasoning indeed. [ Footnote
3/15 ]

															Had the majority examined the Arizona Supreme Court's
application of the "especially heinous, cruel or depraved"
aggravating circumstance, it would have been hard-pressed to
conclude that the state court has placed meaningful limitations on
the scope of the (F)(6) factor. The Arizona Supreme Court attempted
to define the statutory terms in State v. Knapp, 114 Ariz.
631, 562 P.2d 704 (1977), cert. denied, 435 U.S. 908 (1978). The court there
stated: "The words heinous, cruel or depraved' have meanings
that are clear to a person of average intelligence and
understanding." Id. at 543, 562 P.2d at 716. The court
then offered definitions culled from Webster's Third New
International Dictionary: "heinous" was defined as "hatefully or
shockingly evil: grossly bad"; "cruel" as "disposed to inflict pain
esp. in a wanton, insensate or vindictive manner: sadistic"; and
"depraved" as "marked by debasement, corruption, perversion or
deterioration." Ibid. [ Footnote 3/16 ] The court explained: "What our Page 497 U. S. 694 legislature intended to include as an aggravating circumstance
was a killing wherein additional circumstances of the nature
enumerated above set the crime apart from the usual or the
norm." Ibid. In State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 , cert. denied, 461 U.S. 971 (1983), the Arizona Supreme
Court reviewed its prior decisions construing the (F)(6) factor.
The court explained that

															"cruelty involves the pain and distress visited upon the
victims, and that heinous and depraved go to the mental state and
attitude of the perpetrator as reflected in his words and
actions." Id. at 51, 659 P.2d at 10. [ Footnote 3/17 ] The court also listed five factors that,
in prior cases, had supported a finding that a particular killing
was especially heinous or depraved. These factors were (1) "the
apparent relishing of the murder by the killer," (2) "the
infliction of gratuitous violence on the victim," (3) "the needless
mutilation of the victim," (4) "the senselessness of the crime,"
and (5) "the helplessness of the victim." Id. at 52, 659
P.2d at 11. The court did not disavow the Knapp definitions; to the contrary, it cited those definitions with
approval. Id. at 51, 659 P.2d at 10. Nor did the court
hold that a murder could be deemed especially heinous or depraved
only when one of these five factors was present. Rather, the court
stated:

															"Where no circumstances, such as the specific factors
discussed above, separate the crime from the 'norm' of first
degree murders, we will reverse a finding that the crime was
committed in an 'especially heinous, cruel, or depraved
manner.'" Id. at 53, 659 P.2d at 12 (emphasis added).

															The principles announced in Gretzler have failed to
place meaningful limitations on the application of the (F)(6)
aggravating Page 497 U. S. 695 circumstance. Since its decision in Gretzler, the
Arizona Supreme Court has continued to identify new factors which
support a finding that a particular murder was heinous or depraved.
The court, for example, has held that heinousness or depravity was
shown in part by the age of the victim, see State v.
Wallace, 151 Ariz. 362, 368, 728 P.2d 232 ,
238 (1986) ("the fact that defendant killed two children, with whom
he admittedly had no dispute and who posed no danger to him, is
additional evidence of his shockingly evil state of mind' "), cert. denied, 483 U.S. 1011 (1987); State v.
Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22 , 28
("The victim in this case was 78 years old"), cert.
denied, 462 U.S. 1124 (1983); by the fact the murder was
committed to eliminate a witness, see State v. Correll, 148 Ariz. 468, 481, 715 P.2d 721 ,
734 (1986); State v. Gillies, 142 Ariz. 564, 570, 691 P.2d 655 ,
661 (1984), cert. denied, 470 U.S. 1059 (1985); State
v. Smith, 141 Ariz. 510, 511-512, 687 P.2d
1265 , 1266-1267 (1984); by the fact the victim had been kind to
the killer, State v. Fisher, 141 Ariz. 227, 252, 686 P.2d 750 ,
775, cert. denied, 469 U.S. 1066 (1984); by the fact the
killer used "special bullets . . . designed to inflict greater
tissue damage," State v. Rossi, 146 Ariz. 359, 365, 706 P.2d 371 ,
377 (1985), or "intentionally and repeatedly fir[ed] a
high-powered, destructive weapon at the victim," State v.
Chaney, 141 Ariz. 295, 313, 686 P.2d 1265 ,
1283 (1984); by the fact "the victim was bound to an extent far
greater than was necessary to achieve" the purpose of preventing
her escape, State v. Villafuerte, 142 Ariz. 323, 331, 690 P.2d 42 , 50
(1984), cert. denied, 469 U.S. 1230 (1985); or by the
killer's "total disregard for human life," State v.
Correll, 148 Ariz. at 481, 715 P.2d at 734. The Arizona
Supreme Court has not purported to announce necessary conditions
for a finding of heinousness or depravity. Instead, the court has
observed: "Our previous cases have approved findings of heinous or
depraved conduct where the perpetrator acted with gratuitous
violence, relished the killing or in some other way acted
in such a fashion that his acts set him apart from the 'norm' of
first degree murderers. Page 497 U. S. 696 State v. Johnson, 147 Ariz. 395, 401, 710 P.2d 1050 , 1056 (1985)
(emphasis added)."

															Indeed, there would appear to be few first degree murders which
the Arizona Supreme Court would not define as especially
heinous or depraved -- and those murders which do fall
outside this aggravating circumstance are likely to be covered by
some other aggravating factor. Thus, the court will find
heinousness and depravity on the basis of "gratuitous violence" if
the murderer uses more force than necessary to kill the victim, see State v. Summerlin, 138 Ariz. 426, 436, 675 P.2d 686 ,
696 (1983); State v. Ceja, 126 Ariz. 35, 40, 612 P.2d
491 , 496 (1980), but the murder will be deemed cruel if the
killer uses insufficient force and the victim consequently dies a
lingering death, see State v. Chaney, 141 Ariz. at 312,
686 P.2d at 1282. A determination that a particular murder is
"senseless" will support a finding of depravity; but a murder to
eliminate a witness is also depraved, a murder for pecuniary gain
is covered by a separate aggravating circumstance, [ Footnote 3/18 ] and evidence showing that
the defendant killed out of hatred for the victim or a desire for
revenge may be used to buttress the court's conclusion that the
killer "relished" the crime. Page 497 U. S. 697 See State v. Jeffers, 135 Ariz. 404, 430, 661 P.2d 1105 ,
1131, cert. denied, 464 U.S. 865 (1983). [ Footnote 3/19 ] In State v. Wallace, 151
Ariz. 362, 368, 728 P.2d 232 ,
238 (1986), cert. denied, 483 U.S. 1011 (1987), the
court's determination that the crime was "senseless" (and therefore
heinous and depraved) was based in part on the fact that the
defendant "steadfastly maintains there was no reason or
justification for what he did" -- this in a case where the
defendant argued that his remorse for the crime constituted a
mitigating factor.

															I must also conclude that the Arizona Supreme Court's
construction of "cruelty" has become so broad that it imposes no
meaningful limits on the sentencer's discretion. The court in State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704 ,
716 (1977), cert. denied, 435 U.S. 908 (1978), used a
dictionary definition to regard "cruel" as "disposed to inflict
pain esp. in a wanton, insensate or vindictive manner: sadistic."
This might have provided the starting point for a limiting
construction that would have meaningfully distinguished the most
egregious murders. This Court in Maynard expressed
apparent approval of a construction that would limit the
aggravating circumstance to murders involving "torture or serious
physical abuse." 486 U.S. at 486 U. S. 364 ; accord, Godfrey v. Georgia, 446 U.S. at 446 U. S. 431 (plurality opinion). And I have no quarrel with the proposition
that a murder which is preceded by the deliberate infliction of
gratuitous suffering is more blameworthy than one which is not. Page 497 U. S. 698 The Arizona Supreme Court's later decisions, however, made it
clear that the murder which is "especially cruel" is the norm
rather than the exception. The application of this circumstance has
been expanded to cover any murder in which the victim is shown to
have experienced fear or uncertainty as to his ultimate fate.
[ Footnote 3/20 ] The Arizona
Supreme Court has not required that the defendant must have
deliberately delayed or protracted the killing for the
purpose of causing the victim mental anguish. Nor has the
court required that the period of fear or uncertainty be of
extended duration: the court has made findings of cruelty in cases
where that period was brief. [ Footnote 3/21 ] Indeed, in explaining the sorts of
murder that would not be especially cruel, the Arizona
Supreme Court has repeatedly referred to killings in which the
victim was not conscious, see, e.g., State v. Beaty, 158
Ariz. 232, 242, 762 P.2d 519 ,
529 (1988) ("[T]o suffer pain or distress, the victim must be
conscious at the time the offense is committed. If the evidence is
inconclusive on consciousness, the factor of cruelty cannot
exist"), cert. denied, 491 U.S. 910 (1989), [ Footnote 3/22 ] and has explained that the
victim of an "especially cruel" killing is "to be contrasted with
the individual who is killed instantly without knowing what
happened." State v. Gillies, 142 Ariz. 564, 570, 691 P.2d 655 ,
661 (1984), cert. denied, 470 U.S. 1059 (1985). I do not
believe that an aggravating factor Page 497 U. S. 699 which requires only that the victim be conscious and aware of
his danger for some measurable period before the killing occurs can
be said to provide a "principled way to distinguish this case, in
which the death penalty was imposed, from the many cases in which
it was not." Godfrey v. Georgia, 446 U.S. at 433
(plurality opinion). And I am entirely baffled by the majority's
assertion that this construction of the aggravating circumstance is
"virtually identical," ante at 497 U. S. 655 ,
to a requirement of torture or serious physical abuse. [ Footnote 3/23 ]

															The majority is correct in asserting that, in the absence of
evidence to the contrary, the trial judge who sentenced petitioner
to death must be presumed to have been aware of the manner in which
these statutory terms had been construed by the Arizona Supreme
Court. That judge's familiarity with the applicable precedents,
however, could not possibly have served to guide or channel his
sentencing discretion. The entire body of Arizona case law, like
the bare words of the statute, provided "no principled way to
distinguish this case" from other homicides where capital sentences
were not imposed. Under this Court's decisions in Godfrey and Maynard, the standards by which the trial court
sentenced Walton to death were constitutionally deficient. B Relying on Clemons v. Mississippi, 494 U.
S. 738 (1990), the majority also contends that

															"a state appellate court may itself determine whether the
evidence supports the existence of the aggravating circumstance as
properly defined. . . . Page 497 U. S. 700 [T]he Arizona Supreme Court has sought to give substance to the
operative terms, and we find that its construction meets
constitutional requirements." Ante at 497 U. S. 654 .
The Court thus holds that, even if the trial-level sentencing
procedure failed to satisfy the Eighth Amendment, Walton's sentence
nevertheless may stand because the appellate court, applying a
satisfactory limiting construction, independently determined that
the murder was especially cruel. For three independent reasons, I
cannot accept that conclusion.

															(1) If the (F)(6) factor and the prior decisions of the Arizona
Supreme Court failed to provide sufficient guidance to the trial
judge, the appellate court's conclusion that this murder fell
within some narrow definition of "cruel" could not eliminate the
possibility that the trial court, in balancing aggravating and
mitigating circumstances, had relied on factors lying outside this
narrow definition. Affirmance of Walton's death sentence depends
not only on the Arizona Supreme Court's determination that this
murder was especially cruel, but also upon its conclusion that the
mitigating factors did not outweigh those in aggravation. I adhere
to the view, expressed in the separate opinion in Clemons, 494 U.S. at 494 U. S. 756 ,
which three other Justices joined, that an appellate court is
incapable of finding and balancing aggravating and mitigating
factors in a manner that is sufficiently reliable to satisfy the
Eighth Amendment. [ Footnote 3/24 ]
Indeed, the Arizona Supreme Court's treatment of the record in this
case hardly provides support for those Members of this Court -- a
bare majority -- who now would entrust the task of capital
sentencing to an appellate tribunal. The state court's conclusion
that the murder was especially cruel was based in large part Page 497 U. S. 701 on its assertions that Powell "was so clearly terrified by the
time they stopped that [one of the assailants] tried to reassure
him that they would not hurt him" and that, during the final march
into the desert, the victim "begged the defendant not to kill him."
159 Ariz. 571, 587, 769 P.2d
1017 , 1033 (1989). The court's discussion includes no citations
to the record (which furnishes frail support for the court's
characterization of the events), and appears to be based primarily
on a misreading of the State's appellate brief. [ Footnote 3/25 ] Given the institutional limitations
of appellate courts generally, and the questionable treatment of
the facts by the Arizona Supreme Court in this case, I cannot agree
that the appellate sentencing here was sufficiently reliable to
meet the standards of the Eighth Amendment. [ Footnote 3/26 ] Page 497 U. S. 702 (2) In Clemons, this Court stated that, insofar as the
Federal Constitution is concerned, a state appellate court may
determine for itself whether a capital sentence is warranted when
the trial-level sentencing proceeding has been tainted by
constitutional error. Whether the supreme court of a particular
State possesses that power, however, is a matter of state law.
[ Footnote 3/27 ] The Arizona
Supreme Court has taken obviously inconsistent positions on the
question whether trial-level error in capital sentencing
necessitates a remand, or whether the error may be cured by the
appellate court's independent review. Compare State v.
Wallace, 151 Ariz. 362, 369, 728 P.2d 232 ,
239 (1986) ("As we have set aside the finding of pecuniary gain, we
must now allow the trial court another opportunity to exercise its
sentencing discretion and reweigh the remaining aggravating and
mitigating factors"), cert. denied, 483 U.S. 1011 (1987); State v. Rossi, 146 Ariz. at 368, 706 P.2d at 380
("Because we believe the trial judge used the wrong standard for
determining and applying mitigating factors, we must vacate
defendant's death sentence and remand for resentencing"); State
v. McMurtrey, 143 Ariz. 71, 73, 691 P.2d
1099 , 1101 (1984) ("Because the trial judge imposed upon the
defendant a more onerous burden of proof in determining the
existence of mitigating circumstances, the matter will have to be
remanded for resentencing"); State v. Gillies, 135 Ariz.
500, 516, 662 P.2d Page 497 U. S. 703 1007, 1023 (1983) (court remanded for resentencing after three
of four aggravating circumstances found by the trial judge were
invalidated on appeal), with State v. Rockwell, 161 Ariz.
5, 15-16, 775
P.2d 1069 , 1079-1080 (1989) (court invalidated two of three
aggravating circumstances and concluded that the mitigating
evidence outweighed the remaining aggravating factor); State v.
Poland, 144 Ariz. 388, 407, 698 P.2d 183 ,
202 (1985) ("The finding that the murders were committed in an especially heinous, cruel or depraved manner' is set aside, but
the findings as to the other aggravating circumstances are
affirmed. No mitigating circumstances sufficiently substantial to
call for leniency have been shown"); State v. James, 141
Ariz. 141, 148, 685 P.2d 1293 ,
1300 (court struck down one aggravating factor but upheld the death
sentence on the ground that "[t]here is [another] aggravating
circumstance and no mitigating circumstances sufficiently
substantial to call for leniency"), cert. denied, 469 U. S. 990 (1984); State v. Blazak, 131 Ariz. 598, 604, 643 P.2d 694 ,
700 (one aggravating factor invalidated, but death sentence upheld
because "[e]ven in the absence of this aggravating circumstance,
there are still enough aggravating circumstances that cannot be
overcome by the mitigating circumstances"), cert. denied, 459 U.S. 882 (1982). [ Footnote
3/28 ] It simply is not clear whether the Arizona Supreme Court
regards itself as having the power to uphold a capital sentence on
the basis of its own comparison of aggravating and mitigating
circumstances when the sentencing judge has relied in part upon an
invalid aggravating factor. In this case, as in all capital cases, the Arizona Supreme Court
performed an "independent review" of the trial-level Page 497 U. S. 704 sentencing process. The Arizona Supreme Court consistently has
maintained:

															"Unlike appellate review of non-capital crimes, our duty on
review of the death penalty is to conduct an independent
examination of the record to determine whether the death penalty
was properly imposed." State v. Schad, 129 Ariz. 557, 573, 633 P.2d 366 ,
382 (1981), cert. denied, 455 U.S. 983 (1982). The
independent review performed by the Arizona Supreme Court in
capital cases, however, is quite different from appellate
"reweighing" as that term is used in Clemons. The Arizona
court's review does not proceed from the premise that errors in the
trial-level sentencing process can be cured by the State Supreme
Court's determination that death is the appropriate penalty.
Rather, that review historically has been explained as an
additional level of protection for the defendant, a means of
ensuring that a trial judge's sentence of death is subjected to
rigorous scrutiny. See State v. Richmond, 114 Ariz. 186,
196, 560 P.2d 41 , 51
(1976) ("the gravity of the death penalty requires that we
painstakingly examine the record to determine whether it has been
erroneously imposed"), cert. denied, 433 U.S. 915 (1977).
Under Arizona law, the trial court is the sentencer, and the
appellate court's review is intended to ensure that trial-level
functions were properly carried out. Indeed, the Arizona Supreme
Court has resisted analogies between its own independent review and
the initial trial-level sentencing process:

															"While we have an independent duty of review, we perform it as
an appellate court, not as a trial court. . . . We hold, therefore,
that the Arizona procedure is not a single indivisible hearing, but
instead resembles a trial on the issue of life or death followed by
the utilization of this court's appellate process. . . ." State v. Rumsey, 136 Ariz. 166, 173, 665 P.2d 48 ,
55 (1983). [ Footnote 3/29 ]
Today's Page 497 U. S. 705 majority indicates, however, that the Arizona Supreme Court's
independent review may serve as a substitute for a
constitutionally adequate trial-level sentencing proceeding,
despite the fact that the State Supreme Court did not believe that
any trial-level error had occurred and regarded itself as affirming
the sentencing decision of the lower court.

															Whether or not the Arizona Supreme Court possesses the power to
"reweigh" evidence in order to cure trial-level error, it is clear
that the court did not purport to exercise that power in this case.
The court did not suggest that the trial judge's finding of the
(F)(6) circumstance was constitutionally suspect. The Arizona
Supreme Court made independent determinations as to aggravating and
mitigating circumstances, but these findings were plainly intended
to supplement, rather than to replace, the findings of the
trial court. That this is a distinction with a difference should be
clear to the present majority from this Court's opinion in Caldwell v. Mississippi, 472 U. S. 320 (1985). In Caldwell, we invalidated a capital sentence
imposed by a jury which had been incorrectly informed that its
verdict was only a "recommendation." We stated that

															"it is constitutionally impermissible to rest a death sentence
on a determination made by a sentencer who has been led to believe
that the responsibility for determining the appropriateness of the
defendant's death rests elsewhere." Id. at 472 U. S.
328 -329. The same reasoning should apply here. Just as a
jury's sentence of death may not stand if the jury believed that it
was merely recommending capital punishment, the Arizona
Supreme Court's independent determination that death is appropriate
cannot cure trial-level error if the appellate court believed
incorrectly Page 497 U. S. 706 that it was simply affirming a constitutionally valid
sentence imposed by the trial judge.

															Thus, even if I could accept the majority's conclusion that
appellate resentencing can cure constitutional defects in the
trial-level procedure, I could not agree that the Arizona Supreme
Court has purported to exercise that power here. To conclude that
Walton's death sentence may stand, despite constitutional defects
in the trial-level sentencing process, it is not enough for the
majority to say that the Constitution permits a state appellate
court to reweigh valid aggravating and mitigating factors. The
majority must also be prepared to assert with reasonable assurance
that the Arizona Supreme Court would have chosen to affirm the
death sentence on the basis of its own reweighing if it had
recognized that the trial-level procedure was defective. Given the
Arizona court's inconsistent treatment of the reweighing issue, no
such assertion is possible. In holding that the appellate court's
independent review can save the sentence even if the trial judge
received insufficient guidance, the majority affirms a decision
that the Arizona Supreme Court never made.

															(3) Even if I believed that appellate resentencing could cure
trial-level error, and that the Arizona Supreme Court can properly
be regarded as the sentencer in this case, I would still conclude
that petitioner's sentence must be vacated. The (F)(6) aggravating
factor, as construed by the State Supreme Court, sweeps so broadly
that it includes within its reach virtually every homicide. The
appellate court's application of the statutory language simply
provides no meaningful basis on which a defendant such as Walton
can be singled out for death.

															Indeed, my conclusion that the sentence imposed by the appellate
court is invalid follows almost necessarily from my belief that the
trial-level sentencing was constitutionally flawed. [ Footnote 3/30 ] The defective nature of
the trial court's sentence Page 497 U. S. 707 did not stem from the judge's failure to abide by limitations
announced by the Arizona Supreme Court. Rather, the trial-level
sentencing procedure was defective because, even assuming that the
trial judge correctly applied the relevant precedents, those
decisions had failed to articulate a constitutionally sufficient
narrowing construction of the statutory language. In the two years
between the trial court's imposition of sentence and its own
affirmance, the Arizona Supreme Court did not purport to narrow the
scope of the (F)(6) aggravating factor. It therefore is difficult
to see how any trial-level error could have been cured by the
appellate court's application of the same legal rules that the
trial judge is presumed to have followed.

															The majority concedes, as it must, that the statutory language
is unconstitutionally vague under Godfrey and Maynard. The majority therefore recognizes that the
validity of the (F)(6) factor depends upon the construction given
it by the Arizona Supreme Court. I do not see how the adequacy of
that construction can be determined other than through examination
of the body of state court precedents -- an examination that the
majority conspicuously declines to undertake. Because the Arizona
Supreme Court has utterly failed to place meaningful limits on the
application of this aggravating factor, a sentence based in part
upon the (F)(6) circumstance should not stand. [ Footnote 3/31 ] Page 497 U. S. 708 III Earlier this Term, the very same majority of this Court severely
restricted the regime of federal habeas corpus that had previously
helped to safeguard the constitutional rights of criminal
defendants, including those accused of capital crimes. See
Butler v. McKellar, 494 U. S. 407 (1990); Saffle v. Parks, 494 U. S. 484 (1990). Today this majority serves notice that capital defendants
no longer should expect from this Court on direct review a
considered examination of their constitutional claims. In
adjudicating claims that will mean life or death for convicted
inmates in Arizona and elsewhere, the majority makes only the most
perfunctory effort to reconcile its holding with this Court's prior
Eighth Amendment jurisprudence. Nor does the majority display any
recognition that a decision concerning the constitutionality of a
State's capital punishment scheme may require an understanding of
the manner in which that scheme actually operates.

															Perhaps the current majority has grown weary of explicating what
some Members no doubt choose to regard as hypertechnical rules that
currently govern the administration of the death penalty. Certainly
it is to be hoped that States will scrupulously protect the
constitutional rights of capital defendants even without the
prospect of meaningful federal oversight. Good wishes, however, are
no substitute for this Court's careful review. Today's decision is
either an abdication of the Court's constitutional role or it is a
silent repudiation of previously settled legal principles.

															I dissent.

															[ Footnote 3/1 ]

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

															[ Footnote 3/2 ]

															The plurality does assert, however, that its analysis is
consistent with Lockett and its progeny, see ante at 497 U. S.
649 -650. In contrast, Justice SCALIA, who provides the
fifth vote for affirmance, expresses no view on the question
whether the Arizona statute comports with the standards announced
in the Court's prior decisions. He argues, instead, that any
violation of Lockett is immaterial, because Lockett should be overruled. Eight Members of the Court
agree that Lockett remains good law, and I shall not
attempt today a detailed exposition of this Court's Eighth
Amendment jurisprudence. I do wish, however, to make two brief
observations:

															First, Justice SCALlA's argument is not new -- as his citation
to then-Justice REHNQUlST's dissent in Lockett demonstrates. See ante at 497 U. S. 667 .
The rule that a capital sentencer must be allowed to consider all
relevant mitigating evidence has been vigorously opposed, intensely
debated, and eventually accepted by all Members of this Court as a
common starting point for analysis in individual cases. See,
e.g., Hitchcock v. Dugger, 481 U. S. 393 (1987) (SCALIA, J., writing for a unanimous Court). This history
suggests not only that considerations of stare decisis support continued application of the Lockett rule. It
indicates as well that this Court's Eighth Amendment jurisprudence
is not so patently irrational that it should be abruptly
discarded.

															My second observation relates to the integrity of this Court's
adjudicative process. The validity of Lockett has been
presumed throughout this case, and the arguments raised by Justice
SCALIA have not been addressed in the petitioner's brief or
argument. It is disturbing that the decisive vote in a capital case
should turn on a single Justice's rejection of a line of authority
that both parties to this controversy, and eight Members of this
Court, have accepted.

															[ Footnote 3/3 ]

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

															[ Footnote 3/4 ]

															The plurality in Lockett stated:

															"We recognize that, in noncapital cases, the established
practice of individualized sentences rests not on constitutional
commands but on public policy enacted into statutes. . . . Given
that the imposition of death by public authority is so profoundly
different from all other penalties, we cannot avoid the conclusion
that an individualized decision is essential in capital cases." Id. at 438 U. S.
604 -605.

															[ Footnote 3/5 ]

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

															[ Footnote 3/6 ] See Eddings v. Oklahoma, 455 U.
S. 104 , 455 U. S.
114 -115 ( 1982) ("The sentencer, and the [state
appellate court] on review, may determine the weight to be given
mitigating evidence. But they may not give it no weight by
excluding such evidence from their consideration").

															As the Arizona Supreme Court has recognized, the determination
that an aggravating or mitigating factor exists does not require
that the factor be given any particular weight.

															"The statute does not require that the number of aggravating
circumstances be weighed against the number of mitigating
circumstances. One mitigating circumstance, for example, may be
'sufficiently substantial' to outweigh two aggravating
circumstances. The converse is also true -- one aggravating
circumstance could be so substantial that two or more mitigating
circumstances would not be 'sufficiently substantial to call for
leniency.' A.R.S. § 13-454(D)." State v. Brookover, 124 Ariz. 38, 42, 601 P.2d 1322 ,
1326 (1979).

															[ Footnote 3/7 ]

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

															[ Footnote 3/8 ] See Adamson v. Ricketts, 865 F.2d 1011, 1041 (CA9 1988)
(en banc), cert. pending, No. 881553. See also Jackson
v. Dugger, 837 F.2d 1469, 1474 (CA11), cert. denied, 486 U.S. 1026 (1988).

															[ Footnote 3/9 ] See, e.g., State v. McCall, 160 Ariz. 119, 125, 770
P.2d 1165 , 1171 (1989); State v. Mauro, 159 Ariz. 186,
208, 766 P.2d
59 , 81 (1988); State v. Moorman, 154 Ariz. 578, 587, 744 P.2d 679 ,
688 (1987); State v. LaGrand, 153 Ariz. 21, 37, 734 P.2d 563 ,
579, cert. denied, 484 U.S. 872 (1987); State v.
McMurtrey, 151 Ariz. 105, 110, 726 P.2d 202 ,
207 (1986), cert. denied, 480 U.S. 911 (1987).

															[ Footnote 3/10 ]

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

															[ Footnote 3/11 ]

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

															[ Footnote 3/12 ] See Penry v. Lynaugh, 492 U. S. 302 , 492 U. S. 319 (1989) ("[I]t is not enough simply to allow the defendant to
present mitigating evidence to the sentencer. The sentencer must
also be able to consider and give effect to that evidence in
imposing sentence"); Franklin v. Lynaugh, 487 U.
S. 164 , 487 U. S. 185 (1988) (O'CONNOR, J., concurring in judgment) ("Indeed, the right
to have the sentencer consider and weigh relevant mitigating
evidence would be meaningless unless the sentencer was also
permitted to give effect to its consideration").

															[ Footnote 3/13 ]

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

															[ Footnote 3/14 ]

															The Arizona Supreme Court stated:

															"[T]he trial court's finding of cruelty is supported by the
mental torment of the victim prior to the shooting rather than the
events which took place afterwards."

															159 Ariz. at 587, 769 P.2d at 1033. The trial judge, however,
made no "finding of cruelty": he found more generally that Walton
"committed the offense in an extremely heinous, cruel or depraved
manner." The trial judge's sentence therefore can stand only if all
three of the statutory terms have been given constitutionally
sufficient limiting constructions.

															[ Footnote 3/15 ]

															The majority relies on our holding in Pulley v. Harris, 465 U. S. 37 , 465 U. S. 43 (1984), in arguing that proportionality review is not
constitutionally required. Ante at 497 U. S.
655 -656. That reliance is misplaced. In Pulley, the Court held that, so long as other safeguards at the initial
sentencing proceeding adequately limit the sentencer's discretion,
the Constitution does not require the additional protection of
proportionality review by an appellate court. See 465 U.S.
at 465 U. S. 44 -54. Pulley is simply irrelevant when the adequacy of the
initial sentencing is itself the point at issue.

															[ Footnote 3/16 ]

															These definitions are strikingly similar to the jury
instructions given in Maynard, in which the Oklahoma jury
was told that

															"the term 'heinous' means extremely wicked or shockingly evil;
'atrocious' means outrageously wicked and vile; 'cruel' means
pitiless, or designed to inflict a high degree of pain, utter
indifference to, or enjoyment of, the sufferings of others." Cartwright v. Maynard, 822 F.2d 1477, 1488 (CA10 1987).
The majority acknowledges, albeit obliquely, that those
instructions were unconstitutionally vague. See ante at 497 U. S.
652 -653. The Tenth Circuit's assessment of the Oklahoma
jury instructions is equally applicable to the definitions used in Knapp: "Vague terms do not suddenly become clear when they
are defined by reference to other vague terms." Cartwright v.
Maynard, 822 F.2d at 1489.

															[ Footnote 3/17 ]

															The court also noted that "our concept of cruelty involves not
only physical pain, but also mental . . . distress visited upon
the victims.'" 135 Ariz. at 51, 659 P.2d at 10, quoting State
v. Clark, 126 Ariz. 428, 436, 616 P.2d 888 ,
896, cert. denied, 449 U.S. 1067 (1980). [ Footnote 3/18 ] See Ariz.Rev.Stat.Ann. § 13-703 F. 5 (1989). Indeed,
the Arizona courts have been willing to find that a particular
murder was committed both for an unworthy purpose and for no
purpose at all. In State v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert. denied, 459 U.S. 882 (1982), the Arizona
Supreme Court found two aggravating circumstances: (1) the murders
were committed for pecuniary gain, since the object of the killings
was to obtain an automobile, id. at 542, 633 P.2d at 351,
and (2) the murders were senseless, and therefore especially
heinous and depraved, in part because the victims could not have
impeded the theft of the car and the killings therefore did not
further the defendants' plan, id. at 543, 633 P.2d at 352. See also State v. Correll, 148 Ariz. 468, 479, 715 P.2d 721 ,
732 (1986) (pecuniary gain circumstance was established by the fact
that the defendant and an accomplice "very carefully executed the
armed robbery, and the murders were part of the scheme of
robbery"); id. at 481, 715 P.2d at 734 ((F)(6) factor was
proved because "depravity is indicated by the senselessness of the
murders, in that the murders were unnecessary to accomplish the
robbery").

															[ Footnote 3/19 ]

															The Arizona Supreme Court has identified other particularly
reprehensible motives which, in its view, will support a finding of
heinousness or depravity. See State v. Martinez-Villareal, 145 Ariz. 441, 451, 702 P.2d 670 ,
680 (murder to demonstrate "manliness" reflects "a manifest
disregard for the fundamental principles upon which our society is
based"), cert. denied, 474 U.S. 975 (1985); State v.
McCall, 139 Ariz. 147, 162, 677 P.2d 920 ,
935 (1983) (finding supported in part by the fact that the
mutilation of the victims' bodies "was designed to be a message' to warn other people"), cert. denied, 467 U. S. 1220 (1984). Taken together, the state court's decisions reflect the
indisputable fact that there is no legitimate reason to commit
murder, but they provide no principled basis for identifying the
most blameworthy killings. [ Footnote 3/20 ] See, e.g., State v. Bracy, 145 Ariz. 520, 537, 703 P.2d 464 ,
481 (1985), cert. denied, 474 U.S. 1110 (1986); State
v. Carriger, 143 Ariz. 142, 160, 692 P.2d 991 ,
1009 (1984), cert. denied, 471 U.S. 1111 (1985); State
v. Correll, 148 Ariz. at 480, 715 P.2d at 733.

															[ Footnote 3/21 ] See State v. Rossi, 146 Ariz. 359, 365, 706 P.2d 371 ,
377 (1985) ("Before defendant fired the fatal shot, the victim
leaned against his bedroom wall and pleaded with defendant, stating You have my money, you shot me, what more do you want?' This
evinces the victim's mental anguish"). [ Footnote 3/22 ] See also State v. Villafuerte, 142 Ariz. 323, 331, 690 P.2d 42 , 50
(1984), cert. denied, 469 U.S. 1230 (1985); State v.
Harding, 137 Ariz. 278, 294, 670 P.2d 383 ,
399 (1983), cert. denied, 465 U.S. 1013 (1984); State
v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22 ,
28, cert. denied, 462 U.S. 1124 (1983).

															[ Footnote 3/23 ]

															The State, focusing on the fear and uncertainty experienced by
Powell prior to the shooting, asserts: "It is without question that
the victim suffered an excruciatingly cruel' death," and
suggests that Powell's mental anguish was equivalent to "torture."
Brief for Respondent 48-49. I do not minimize Thomas Powell's
suffering, but it bears noting that the State of Arizona seeks to
confine Jeffrey Walton in its penitentiary, set a date for his
execution, and put him to death. It seems strange for the State to
suggest that an individual has been "tortured" when he is made to
contemplate the prospect of his own demise. [ Footnote 3/24 ]

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

															[ Footnote 3/25 ]

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

															"Q. How was [Powell] acting after you pulled up at the pullout
and they got out of the car?"

															"A. He was scared."

															"Q. How do you know?"

															"A. I don't remember. I just told him not to be scared because
he wouldn't be hurt. . . . "

															App. 24.

															The statement that Powell "begged the defendant not to kill him"
appears to be based entirely on Walton's statement during his taped
interrogation that "the guy told Rob [one of Walton's accomplices],
he goes, don't hurt me, I don't tell anybody, ((inaudible))." Tr.
of Dec. 15, 1986, pm, p. 82.

															In its brief to the Arizona Supreme Court, the State asserted,
without record citation: "During the ride, Powell begged his
abductors to spare him and they could keep his money and car."
Brief for Appellee 50, State v. Walton, Arizona Supreme
Court No. CR 87-0022-AP. That assertion was made more or less in
passing; the State's argument on cruelty focused on Powell's mental
and physical suffering after the shooting. The Arizona Supreme
Court's opinion asserts that Powell begged for his life when he and
Walton were alone in the desert (rather than during the car ride
beforehand). There is not one line of testimony that supports the
court's statement.

															[ Footnote 3/26 ]

															The trial judge in this case found that Walton rather than
Hoover had fired the fatal shot -- an issue on which the evidence
was conflicting and on which the jury was apparently unable to
agree. See 159 Ariz. at 592-593, 769 P.2d at 1038-1039
(concurring opinion). In its brief to the Arizona Supreme Court,
the State argued that this finding should be reviewed
deferentially, on the ground that,

															"[a]s the trial court is better situated to assess the impact of
the evidence, its decision should not be overturned absent an abuse
of that discretion."

															Brief for Appellee 48, State v. Walton, Arizona Supreme
Court No. 87-0022-AP. The Arizona Supreme Court did not purport to
make an independent determination on this point; it stated only
that "we find substantial evidence to support the trial judge's
finding that the defendant killed the victim." 159 Ariz. at 586,
769 P.2d at 1032.

															[ Footnote 3/27 ] See Clemons, 494 U.S. at 494 U. S. 754 ("Nothing in this opinion is intended to convey the impression that
state appellate courts are required to or necessarily should engage
in reweighing or harmless error analysis when errors have occurred
in a capital sentencing proceeding. Our holding is only that such
procedures are constitutionally permissible.").

															[ Footnote 3/28 ] See also State v. Smith, 146 Ariz. 491, 504, 707 P.2d 289 ,
302 (1985) ("Our elimination of some aggravating factors in the
absence of mitigating circumstances does not mandate a remand
to the trial court for resentencing") (emphasis added) (citing
cases). Where mitigating factors are absent, affirmance of the
death sentence does not require reweighing, and is more properly
characterized as harmless-error analysis.

															[ Footnote 3/29 ]

															In affirming the judgment of the Arizona Supreme Court in that
case, this Court stated that

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

															[ Footnote 3/30 ]

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

															[ Footnote 3/31 ]

															The breadth of the (F)(6) circumstance is particularly
unfortunate in light of the statutory requirement that the
defendant, in order to avoid the death penalty, must demonstrate
mitigating factors "sufficiently substantial to call for leniency."
The presumption of death is triggered whenever an aggravating
circumstance is found; the Arizona Supreme Court's expansive
construction of the (F)(6) factor ensures that an aggravating
circumstance plausibly can be discovered in virtually any
murder.

															Justice STEVENS, dissenting.

															While I join Justice BLACKMUN's dissent, I write separately to
dissent from the Court's holding in 497 U. S. Page 497 U. S. 709 I The Court holds in 497 U. S. I am
convinced that the Sixth Amendment requires the opposite
conclusion.

															Arizona Rev.Stat.Ann. § 13-1105(C) (1989) provides that first
degree murder, which includes both premeditated murder and felony
murder, is "punishable by death or life imprisonment as provided by
§ 13-703." Section § 13-703(B) requires, after guilt of
first-degree murder is established, that a judge conduct a hearing
to determine if any statutory aggravating or mitigating
circumstances exist. The State bears the burden of proving the
existence of any aggravating circumstance by evidence admissible
under the Arizona Rules of Evidence. § 13-703(C). Section 13703(E)
then provides, as the Arizona Supreme Court has explained:

															"Where none of the statutory aggravating circumstances are found
to be present, our statute prohibits the death penalty. Where one
or more statutory aggravating circumstance is found, and no
mitigation exists, the statute requires the death penalty. Where
both aggravating and mitigating circumstances are found in a given
case, the trial judge, and then this court on review, must
determine whether the mitigating circumstances are 'sufficiently
substantial to call for leniency.'" State v. Gretzler, 135 Ariz. 42, 55, 659 P.2d 1 ,
13 (citations omitted), cert. denied, 461 U.S. 971 (1983).
Thus, under Arizona law, as construed by Arizona's highest court, a
first-degree murder is not punishable by a death sentence until at
least one statutory aggravating circumstance has been proved.
[ Footnote 4/1 ] Page 497 U. S. 710 In this case, the sentencing judge found two aggravating
circumstances: that petitioner committed the offense "as
consideration for the receipt, or in expectation of the receipt, of
anything of pecuniary value" and that he committed it "in an
especially heinous, cruel or depraved manner." Ariz. Rev.Stat.Ann.
§§ 13-703(F)(5), (F)(6) (1989). [ Footnote 4/2 ] At issue is the narrow question whether
these findings about petitioner's commission of the offense are,
under Arizona law, elements of a capital crime, and therefore must
be determined by a jury.

															If this question had been posed in 1791, when the Sixth
Amendment became law, the answer would have been clear. By that
time,

															"the English jury's role in determining critical facts in
homicide cases was entrenched. As fact-finder, the jury had the
power to determine not only whether the defendant was guilty of
homicide but also the degree of the Page 497 U. S. 711 offense. Moreover, the jury's role in finding facts that
would determine a homicide defendant's eligibility for capital
punishment was particularly well established. Throughout its
history, the jury determined which homicide defendants would be
subject to capital punishment by making factual determinations,
many of which related to difficult assessments of the defendant's
state of mind. By the time the Bill of Rights was adopted, the
jury's right to make these determinations was unquestioned.
[ Footnote 4/3 ]"

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

															"The history of trial by jury in criminal cases has been
frequently told. It is sufficient for present purposes to say that,
by the time our Constitution was written, jury trial in criminal
cases had been in existence in England for several centuries and
carried impressive credentials traced by many to Magna Carta. Its
preservation and proper operation as a protection against arbitrary
rule were among the major objectives of the revolutionary
settlement which was expressed in the Declaration and Page 497 U. S. 712 Bill of Rights of 1689. In the 18th century Blackstone could
write:"

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

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

															" * * * *" "The guarantees of jury trial in the Federal and State
Constitutions reflect a profound judgment about the way in which
law should be enforced and justice administered. A right to jury
trial is granted to criminal defendants in order to prevent
oppression by the Government. Those who wrote our constitutions
knew from history and experience that it was necessary to protect
against unfounded criminal charges brought to eliminate enemies and
against judges too responsive to the voice of higher authority. The
framers of the constitutions strove to create an independent
judiciary, but insisted upon further protection against arbitrary
action. Providing Page 497 U. S. 713 an accused with the right to be tried by a jury of his peers
gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or
eccentric judge. If the defendant preferred the common-sense
judgment of a jury to the more tutored but perhaps less sympathetic
reaction of the single judge, he was to have it. Beyond this, the
jury trial provisions in the Federal and State Constitutions
reflect a fundamental decision about the exercise of official power
-- a reluctance to entrust plenary powers over the life and liberty
of the citizen to one judge or to a group of judges." Id. at 151-152, 155-156 (footnotes omitted).

															Since Duncan, this Court has held that a death sentence
under Florida law may be imposed by a judge, rather than a jury, Spaziano v. Florida, 468 U. S. 447 (1984), and has held that a judge may make a factual determination
that mandates imposition of a minimum sentence within the penalty
range of certain noncapital offenses, McMillan v.
Pennsylvania, 477 U. S. 79 (1986). By stretching the limits of sentencing determinations that
are made by judges exposed to "the voice of higher authority,"
these decisions have encroached upon the factfinding function that
has so long been entrusted to the jury. [ Footnote 4/4 ] Further distorting the sentencing function
to Page 497 U. S. 714 encompass findings of factual elements necessary to establish a
capital offense is the unhappy product of the gradual "increase and
spread" of these precedents, "to the utter disuse of juries in
questions of the most momentous concern." [ Footnote 4/5 ] Even if the unfortunate decisions in Spaziano and McMillan fell just one step short of
the stride the Court takes today, it is not too late to change our
course and follow the wise and inspiring voice that spoke for the
Court in Duncan v. Louisiana. II Justice SCALIA announces in a separate opinion that henceforth
he will not regard Woodson v. North Carolina, 428 U.
S. 280 (1976), Roberts v. Louisiana, 428 U. S. 325 (1976), Lockett v. Ohio, 438 U. S. 586 (1978), Godfrey v. Georgia, 446 U.
S. 420 (1980), and other cases adopting their reasoning
as binding precedent. The major premise for this rejection of our
capital sentencing jurisprudence is his professed inability to
reconcile those cases with the central holding in Furman v.
Georgia, 408 U. S. 238 (1972). [ Footnote 4/6 ] Although Page 497 U. S. 715 there are other flaws in Justice SCALIA's opinion, [ Footnote 4/7 ] it is at least appropriate to
explain why his major premise is simply wrong.

															The cases that Justice SCALIA categorically rejects today rest
on the theory that the risk of arbitrariness condemned in Furman is a function of the size of the class of convicted
persons who are eligible for the death penalty. When Furman was decided, Georgia included virtually all
defendants convicted of forcible rape, armed robbery, kidnaping and
first-degree murder in that class. As the opinions in Furman observed, in that large class of cases race and
other irrelevant factors unquestionably played an unacceptable role
in determining which defendants would die and which would live. Page 497 U. S. 716 However, the size of the class may be narrowed to reduce
sufficiently that risk of arbitrariness, even if a jury is then
given complete discretion to show mercy when evaluating the
individual characteristics of the few individuals who have been
found death eligible.

															The elaborate empirical study of the administration of Georgia's
capital sentencing statute that the Court considered in McCleskey v. Kemp, 481 U. S. 279 (1987), further illustrates the validity of this theory. In my
opinion in that case, I observed:

															"One of the lessons of the Baldus study is that there exist
certain categories of extremely serious crimes for which
prosecutors consistently seek, and juries consistently impose, the
death penalty without regard to the race of the victim or the race
of the offender. If Georgia were to narrow the class of
death-eligible defendants to those categories, the danger of
arbitrary and discriminatory imposition of the death penalty would
be significantly decreased, if not eradicated." Id. at 481 U. S. 367 (dissenting opinion).

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

															"'All cases of homicide of every category are contained within
the pyramid. The consequences flowing to the perpetrator increase
in severity as the cases proceed from the base of the apex, with
the death penalty applying only to those few cases which are
contained in the space just beneath the apex. To reach that
category, a case must pass through three planes of division between
the base and the apex."

															"'The first plane of division above the base separates from all
homicide cases those which fall into the category Page 497 U. S. 717 of murder. This plane is established by the legislature in
statutes defining terms such as murder, voluntary manslaughter,
involuntary manslaughter, and justifiable homicide. In deciding
whether a given case falls above or below this plane, the function
of the trier of facts is limited to finding facts. The plane
remains fixed unless moved by legislative act."

															"'The second plane separates from all murder cases those in
which the penalty of death is a possible punishment. This plane is
established by statutory definitions of aggravating circumstances.
The function of the factfinder is again limited to making a
determination of whether certain facts have been established.
Except where there is treason or aircraft hijacking, a given case
may not move above this second plane unless at least one statutory
aggravating circumstance exists. Code Ann.. § 27-2534.1(c)."

															"'The third plane separates, from all cases in which a penalty
of death may be imposed, those cases in which it shall be imposed.
There is an absolute discretion in the factfinder to place any
given case below the plane and not impose death. The plane itself
is established by the factfinder. In establishing the plane, the
factfinder considers all evidence in extenuation, mitigation and
aggravation of punishment. Code Ann. § 27-2503 and § 27-2534.1.
There is a final limitation on the imposition of the death penalty
resting in the automatic appeal procedure: This court determines
whether the penalty of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor; whether the
statutory aggravating circumstances are supported by the evidence;
and whether the sentence of death is excessive or disproportionate
to the penalty imposed in similar cases. Code Ann. § 27-2537.
Performance of this function may cause this court to remove a case
from the death penalty category, but can never have the opposite
result. " Page 497 U. S. 718 "'The purpose of the statutory aggravating circumstances is to
limit to a large degree, but not completely, the factfinder's
discretion. Unless at least one of the ten statutory aggravating
circumstances exists, the death penalty may not be imposed in any
event. If there exists at least one statutory aggravating
circumstance, the death penalty may be imposed, but the factfinder
has a discretion to decline to do so without giving any reason. Waters v. State, 248 Ga. 355, 369, 283 S.E.2d
238 (1981); Hawes v. State, 240 Ga. 327, 334, 240 S.E.2d 833 (1977); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). In making the decision as to the penalty, the factfinder
takes into consideration all circumstances before it from both the
guilt-innocence and the sentence phases of the trial. These
circumstances relate both to the offense and the defendant."

															"'A case may not pass the second plane into that area in which
the death penalty is authorized unless at least one statutory
aggravating circumstance is found. However, this plane is passed
regardless of the number of statutory aggravating circumstances
found, so long as there is at least one. Once beyond this plane,
the case enters the area of the factfinder's discretion, in which
all the facts and circumstances of the case determine, in terms of
our metaphor, whether or not the case passes the third plane and
into the area in which the death penalty is imposed.' 250 Ga. 97,
99-100, 297 S.E.2d 1 ,
3-4 (1982)." Id. at 462 U. S.
870 -872. Justice SCALIA ignores the difference between
the base of the pyramid and its apex. A rule that forbids unguided
discretion at the base is completely consistent with one that
requires discretion at the apex. After narrowing the class of cases
to those at the tip of the pyramid, it is then appropriate to allow
the sentencer discretion to show mercy based on individual
mitigating circumstances in the cases that remain. Page 497 U. S. 719 Perhaps a rule that allows the specific facts of particular
cases to make the difference between life and death -- a rule that
is consistent with the common-law tradition of case-by-case
adjudication -- provides less certainty than legislative guidelines
that mandate the death penalty whenever specified conditions are
met. Such guidelines would fit nicely in a Napoleonic Code drafted
in accord with the continental approach to the formulation of legal
rules. However, this Nation's long experience with mandatory death
sentences -- a history recounted at length in our opinion in Woodson and entirely ignored by Justice SCALIA today --
has led us to reject such rules. I remain convinced that the
approach adopted by this Court in Weems v. United States, 217 U. S. 349 (1910), and in Trop v. Dulles, 356 U. S.
86 (1958), followed by Justice Stewart, Justice Powell
and myself in 1976, and thereafter repeatedly endorsed by this
Court, is not only wiser, but far more just, than the reactionary
position espoused by Justice SCALIA today.

															[ Footnote 4/1 ]

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

															[ Footnote 4/2 ]

															This Court has long distinguished a jury's determination of
"whether a defendant is guilty of having engaged in certain
criminal conduct" from a sentencing judge's consideration of "the
fullest information possible concerning the defendant's life and
characteristics." Williams v. New York, 337 U.
S. 241 , 337 U. S.
246 -247 (1949). Both of the aggravating circumstances in
this case concern the offense itself, not the offender. Indeed, the
Arizona courts' findings of aggravation rested entirely on evidence
that had been presented to the jury during the guilt phase of the
trial; the Arizona Supreme Court disregarded the only testimony
about aggravation offered at the sentencing hearing as irrelevant.
Sentencing Hearing Tr. (Jan. 26-27, 1987); 159 Ariz. 571, 587. 769 P.2d
1017 , 1033 (1989) (testimony about victim after shooting did
not bear on cruelty). Cf. Spaziano v. Florida, 468 U. S. 447 , 468 U. S. 452 (1984) (after a Florida jury recommended life, sentencing judge
found defendant's felony record was an aggravating factor); Hildwin v. Florida, 490 U. S. 638 , 490 U. S. 639 (1989) (after a Florida jury recommended death, sentencing judge
found defendant's felony record and status as a prisoner at the
time of the crime were aggravating factors).

															[ Footnote 4/3 ]

															W. White, Fact-Finding and the Death Penalty: The Scope of a
Capital Defendant's Right to Jury Trial, 65 Notre Dame L.Rev. 1,
10-11 (1989) (footnote omitted; emphasis added). The right to a
jury trial in criminal matters was most strongly guarded
because

															"'in times of difficulty and danger, more is to be apprehended
from the violence and partiality of judges appointed by the
[c]rown, in suits between the king and the subject, than in
disputes between one individual and another." Id. at 10 (quoting 4 W. Blackstone, Commentaries 343
(1769)). For a view of earlier practices, see generally Green, The Jury and the English Law of Homicide, 1200-1600, 74
Mich.L.Rev. 413 (1976).

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

															[ Footnote 4/5 ]

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

															4 W. Blackstone, Commentaries 343-344 ( 1769).

															[ Footnote 4/6 ] Furman has been characterized as mandating that

															"where discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life should be taken
or spared, that discretion must be suitably directed and limited so
as to minimize the risk of wholly arbitrary and capricious
action." Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 189 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.).

															[ Footnote 4/7 ]

															For example, Justice SCALIA incorrectly assumes that our
holdings in Woodson v. North Carolina, 428 U.
S. 280 (1976), and Roberts v. Louisiana, 428 U. S. 325 (1976), rest entirely on the view that mandatory death penalty
statutes pose the same risk of arbitrariness that supported the
Court's decision in Furman v. Georgia, 408 U.
S. 238 (1972). See ante at 497 U. S.
671 -672. In fact, that consideration was only one of the
three grounds for invalidating the North Carolina and Louisiana
mandatory statutes. See Woodson , 428 U.S. at 428 U. S.
288 -305. Justice SCALIA ironically overlooks a more
traditional reason supporting our conclusion in Woodson, the growing societal consensus against mandatory imposition of the
death penalty:

															"The history of mandatory death penalty statutes in the United
States thus reveals that the practice of sentencing to death all
persons convicted of a particular offense has been rejected as
unduly harsh and unworkably rigid. The two crucial indicators of
evolving standards of decency respecting the imposition of
punishment in our society -- jury determinations and legislative
enactments -- both point conclusively to the repudiation of
automatic death sentences." Id. at 428 U. S.
292 -293.

															We further held that the

															"fundamental respect for humanity underlying the Eighth
Amendment . . . requires consideration of the character and record
of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of
inflicting the penalty of death." Id., 428 U.S. at 428 U. S.
304 .