U.S. Supreme Court Lockett v. Ohio, 438
U.S. 586 (1978) Lockett v. Ohio No. 76-6997 Argued January 17,
1978 Decided July 3, 1978 438
U.S. 586 CERTIORARI TO THE SUPREME COURT OF
OHIO Syllabus The Ohio death penalty statute provides that once a defendant is
found guilty of aggravated murder with at least one of seven
specified aggravating circumstances, the death penalty must be
imposed unless, considering "the nature and circumstances of the
offense and the history, character, and condition of the offender,"
the sentencing judge determines that at least one of the following
circumstances is established by a preponderance of the evidence:
(1) the victim induced or facilitated the offense; (2) it is
unlikely that the offense would have been committed but for the
fact that the offender was under duress, coercion, or strong
provocation; or (3) the offense was primarily the product of the
offender's psychosis or mental deficiency. Petitioner, whose
conviction of aggravated murder with specifications that it was
committed to escape apprehension for, and while committing or
attempting to commit, aggravated robbery, and whose sentence to
death were affirmed by the Ohio Supreme Court, makes various
challenges to the validity of her conviction, and attacks the
constitutionality of the death penalty statute on the ground, inter alia, that it does not give the sentencing judge a
full opportunity to consider mitigating circumstances in capital
cases as required by the Eighth and Fourteenth Amendments. Held: The judgment is reversed insofar as it upheld the
death penalty, and the case is remanded. Pp. 438 U. S.
594 -609; 438 U. S.
613 -619; 438 U. S.
619 -621; 438 U. S.
624 -628.

															49 Ohio St.2d 48, 358 N.E.2d 1062, reversed in part and
remanded.

															THE CHIEF JUSTICE delivered the opinion of the Court with
respect to Parts I and II, concluding:

															1. The prosecutor's closing references to the State's evidence
as "unrefuted" and "uncontradicted" (no evidence having been
introduced to rebut the prosecutor's case after petitioner decided
not to testify) did not violate the constitutional prohibitions
against commenting on an accused's failure to testify, where
petitioner's counsel had already focused the jury's attention on
her silence by promising a defense and telling the jury that she
would testify. Pp. 438 U. S.
594 -595.

															2. The exclusion from the venire of four prospective jurors who
made it "unmistakably clear" that, because of their opposition to
the death penalty, they could not be trusted to "abide by existing
law" and to Page 438 U. S. 587 "follow conscientiously" the trial judge's instructions, Boulden v. Holman, 394 U. S. 478 , 394 U. S. 484 ;
did not violate petitioner's Sixth and Fourteenth Amendment rights
under the principles of Witherspoon v. Illinois, 391 U. S. 510 , or Taylor v. Louisiana, 419 U. S. 522 . Pp. 438 U. S.
595 -597.

															3. Petitioner's contention that the Ohio Supreme Court's
interpretation of the complicity provision of the statute under
which she was convicted was so unexpected that it deprived her of
fair warning of the crime with which she was charged, is without
merit. The court's construction was consistent with both prior Ohio
law and the statute's legislative history. P. 438 U. S.
597 .

															THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART, MR. JUSTICE
POWELL, and MR. JUSTICE STEVENS, concluded, in Part III, that the
limited range of mitigating circumstances that may be considered by
the sentencer under the Ohio death penalty statute is incompatible
with the Eighth and Fourteenth Amendments. Pp. 438 U. S.
597 -609.

															(a) The Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, 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. Pp. 438 U. S.
604 -605.

															(b) The need for treating each defendant in a capital case with
the degree of respect due the uniqueness of the individual is far
more important than in noncapital cases, particularly in view of
the unavailability with respect to an executed capital sentence of
such postconviction mechanisms in noncapital cases as probation,
parole, and work furloughs. P. 438 U. S.
605 .

															(c) A statute that prevents the sentencer in capital cases from
giving independent mitigating weight to aspects of the defendant's
character and record and to the circumstances of the offense
proffered in mitigation creates the risk that the death penalty
will be imposed in spite of factors that may call for a less severe
penalty, and, when the choice is between life and death, such risk
is unacceptable and incompatible with the commands of the Eighth
and Fourteenth Amendments. P. 438 U. S.
605 .

															(d) The Ohio death penalty statute does not permit the type of
individualized consideration of mitigating factors required by the
Eighth and Fourteenth Amendments. Only the three factors specified
in the statute can be considered in mitigation of the defendant's
sentence, and, once it is determined that none of those factors is
present, the statute mandates the death sentence. Pp. 438 U. S.
606 -608.

															MR JUSTICE WHITE concluded that petitioner's death sentence
should Page 438 U. S. 588 be vacated on the ground that the Ohio death penalty statute
permits a defendant convicted of aggravated murder with
specifications to be sentenced to death, as petitioner was in this
case, without a finding that he intended death to result. Pp. 438 U. S.
624 -628.

															MR. JUSTICE MARSHALL, being of the view that the death penalty
is, under all circumstances, a cruel and unusual punishment
prohibited by the Eighth Amendment, concurred in the judgment
insofar as it vacates petitioner's death sentence, and also
concurred in the judgment insofar as it affirms her conviction. Pp. 438 U. S.
619 -621.

															MR. JUSTICE BLACKMUN concluded that petitioner's death sentence
should be vacated on the grounds that (1) the Ohio death penalty
statute is deficient in regard to petitioner, a nontriggerman
charged with aiding and abetting a murder, in failing to allow
consideration of the extent of petitioner's involvement, or the
degree of her mens rea, in the commission of the homicide,
and (2) the procedure provided by an Ohio Rule of Criminal
Procedure giving the sentencing court full discretion to bar the
death sentence "in the interests of justice" if the defendant
pleads guilty or no contest, but no such discretion if the
defendant goes to trial, creates an unconstitutional disparity of
sentencing alternatives, United States v. Jackson, 390 U. S. 570 . Pp. 438 U. S.
613 -619.

															BURGER, C.J., announced the Court's judgment and delivered an
opinion of the Court with respect to Parts I and II, in which
STEWART, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ.,
joined, and an opinion with respect to Part III, in which STEWART,
POWELL, and STEVENS, JJ., joined. BLACKMUN, J., filed an opinion
concurring in part and concurring in the judgment, post, p. 438 U. S. 613 .
MARSHALL, J., filed an opinion concurring in the judgment, post, p. 438 U. S. 619 .
WHITE, J., filed an opinion concurring in part, concurring in the
judgment, and dissenting in part, post, p. 438 U. S. 621 .
REHNQUIST, J., filed an opinion concurring in part and dissenting
in part, post, p. 438 U. S. 628 . BRENNAN, J., took no part in the
consideration or decision of the case. Page 438 U. S. 589 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with
respect to the constitutionality of petitioner's conviction (Parts
I and II), together with an opinion (Part III), in which MR.
JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS
joined, on the constitutionality of the statute under which
petitioner was sentenced to death, and announced the judgment of
the Court.

															We granted certiorari in this case to consider, among other
questions, whether Ohio violated the Eighth and Fourteenth
Amendments by sentencing Sandra Lockett to death pursuant to a
statute [ Footnote 1 ] that
narrowly limits the sentencer's discretion to consider the
circumstances of the crime and the record and character of the
offender as mitigating factors. I Lockett was charged with aggravated murder with the aggravating
specifications (1) that the murder was "committed for the purpose
of escaping detection, apprehension, trial, or punishment" for
aggravated robbery, and (2) that the murder was

															"committed while . . . committing, attempting to commit, or
fleeing immediately after committing or attempting to commit . . .
aggravated robbery."

															That offense was punishable by death in Ohio. See Ohio
Rev.Code Ann. §§ 2929.03, 2929.04 (1975). She was also charged with
aggravated robbery. The State's case against her depended largely
upon the testimony of a coparticipant, one Al Parker, who gave the
following account of her participation in the robbery and
murder.

															Lockett became acquainted with Parker and Nathan Earl Dew while
she and a friend, Joanne Baxter, were in New Jersey. Parker and Dew
then accompanied Lockett, Baxter, and Lockett's brother back to
Akron, Ohio, Lockett's home Page 438 U. S. 590 town. After they arrived in Akron, Parker and Dew needed money
for the trip back to New Jersey. Dew suggested that he pawn his
ring. Lockett overheard his suggestion, but felt that the ring was
too beautiful to pawn, and suggested instead that they could get
some money by robbing a grocery store and a furniture store in the
area. She warned that the grocery store's operator was a "big guy"
who carried a "4," and that they would have "to get him real
quick." She also volunteered to get a gun from her father's
basement to aid in carrying out the robberies, but by that time,
the two stores had closed and it was too late to proceed with the
plan to rob them.

															Someone, apparently Lockett's brother, suggested a plan for
robbing a pawnshop. He and Dew would enter the shop and pretend to
pawn a ring. Next Parker, who had some bullets, would enter the
shop, ask to see a gun, load it, and use it to rob the shop. No one
planned to kill the pawnshop operator in the course of the robbery.
Because she knew the owner, Lockett was not to be among those
entering the pawnshop, though she did guide the others to the shop
that night.

															The next day Parker, Dew, Lockett, and her brother gathered at
Baxter's apartment. Lockett's brother asked if they were "still
going to do it," and everyone, including Lockett, agreed to
proceed. The four then drove by the pawnshop several times and
parked the car. Lockett's brother and Dew entered the shop. Parker
then left the car and told Lockett to start it again in two
minutes. The robbery proceeded according to plan until the
pawnbroker grabbed the gun when Parker announced the "stickup." The
gun went off with Parker's finger on the trigger, firing a fatal
shot into the pawnbroker.

															Parker went back to the car where Lockett waited with the engine
running. While driving away from the pawnshop, Parker told Lockett
what had happened. She took the gun from the pawnshop and put it
into her purse. Lockett and Page 438 U. S. 591 Parker drove to Lockett's aunt's house and called a taxicab.
Shortly thereafter, while riding away in a taxicab, they were
stopped by the police, but, by this time, Lockett had placed the
gun under the front seat. Lockett told the police that Parker
rented a room from her mother and lived with her family. After
verifying this story with Lockett's parents, the police released
Lockett and Parker. Lockett hid Dew and Parker in the attic when
the police arrived at the Lockett household later that evening.

															Parker was subsequently apprehended and charged with aggravated
murder with specifications, an offense punishable by death, and
aggravated robbery. Prior to trial, he pleaded guilty to the murder
charge and agreed to testify against Lockett, her brother, and Dew.
In return, the prosecutor dropped the aggravated robbery charge and
the specifications to the murder charge, thereby eliminating the
possibility that Parker could receive the death penalty.

															Lockett's brother and Dew were later convicted of aggravated
murder with specifications. Lockett's brother was sentenced to
death, but Dew received a lesser penalty because it was determined
that his offense was "primarily the product of mental deficiency,"
one of the three mitigating circumstances specified in the Ohio
death penalty statute.

															Two weeks before Lockett's separate trial, the prosecutor
offered to permit her to plead guilty to voluntary manslaughter and
aggravated robbery (offenses which each carried a maximum penalty
of 25 years' imprisonment and a maximum fine of $10,000, see Ohio Rev.Code Ann. §§ 2903.03, 2911.01, 2929.11
(1975)) if she would cooperate with the State, but she rejected the
offer. Just prior to her trial, the prosecutor offered to permit
her to plead guilty to aggravated murder without specifications, an
offense carrying a mandatory life penalty, with the understanding
that the aggravated robbery charge and an outstanding forgery
charge would be dismissed. Again she rejected the offer. Page 438 U. S. 592 At trial, the opening argument of Lockett's defense counsel
summarized what appears to have been Lockett's version of the
events leading to the killing. He asserted the evidence would show
that, as far as Lockett knew, Dew and her brother had planned to
pawn Dew's ring for $100 to obtain money for the trip back to New
Jersey. Lockett had not waited in the car while the men went into
the pawnshop but had gone to a restaurant for lunch and had joined
Parker, thinking the ring had been pawned, after she saw him
walking back to the car. Lockett's counsel asserted that the
evidence would show further that Parker had placed the gun under
the seat in the taxicab and that Lockett had voluntarily gone to
the police station when she learned that the police were looking
for the pawnbroker's killers.

															Parker was the State's first witness. His testimony related his
version of the robbery and shooting, and he admitted to a prior
criminal record of breaking and entering, larceny, and receiving
stolen goods, as well as bond jumping. He also acknowledged that
his plea to aggravated murder had eliminated the possibility of the
death penalty, and that he had agreed to testify against Lockett,
her brother, and Dew as part of his plea agreement with the
prosecutor. At the end of the major portion of Parker's testimony,
the prosecutor renewed his offer to permit Lockett to plead guilty
to aggravated murder without specifications and to drop the other
charges against her. For the third time Lockett refused the option
of pleading guilty to a lesser offense.

															Lockett called Dew and her brother as defense witnesses, but
they invoked their Fifth Amendment rights and refused to testify.
In the course of the defense presentation, Lockett's counsel
informed the court, in the presence of the jury, that he believed
Lockett was to be the next witness, and requested a short recess.
After the recess, Lockett's counsel told the judge that Lockett
wished to testify but had decided to accept her mother's advice to
remain silent, despite her counsel's warning that, if she followed
that advice, she would have no Page 438 U. S. 593 defense except the cross-examination of the State's witnesses.
Thus, the defense did not introduce any evidence to rebut the
prosecutor's case.

															The court instructed the jury that, before it cold find Lockett
guilty, it had to find that she purposely had killed the pawnbroker
while committing or attempting to commit aggravated robbery. The
jury was further charged that one who

															"purposely aids, helps, associates himself or herself with
another for the purpose of committing a crime is regarded as if he
or she were the principal offender and is just as guilty as if the
person performed every act constituting the offense. . . ."

															Regarding the intent requirement, the court instructed:

															"A person engaged in a common design with others to rob by force
and violence an individual or individuals of their property is
presumed to acquiesce in whatever may reasonably be necessary to
accomplish the object of their enterprise. . . ."

															"If the conspired robbery and the manner of its accomplishment
would be reasonably likely to produce death, each plotter is
equally guilty with the principal offender as an aider and abettor
in the homicide. . . . An intent to kill by an aider and abettor
may be found to exist beyond a reasonable doubt under such
circumstances."

															The jury found Lockett guilty as charged.

															Once a verdict of aggravated murder with specifications had been
returned, the Ohio death penalty statute required the trial judge
to impose a death sentence unless, after "considering the nature
and circumstances of the offense" and Lockett's "history,
character, and condition," he found by a preponderance of the
evidence that (1) the victim had induced or facilitated the
offense, (2) it was unlikely that Lockett would have committed the
offense but for the fact that she "was under duress, coercion, or
strong provocation," or (3) the Page 438 U. S. 594 offense was "primarily the product of [Lockett's] psychosis or
mental deficiency." Ohio Rev.Code §§ 2929.03-2929.04(B) (1975).

															In accord with the Ohio statute, the trial judge requested a
presentence report as well as psychiatric and psychological
reports. The reports contained detailed information about Lockett's
intelligence, character, and background. The psychiatric and
psychological reports described her as a 21-year-old with
low-average or average intelligence, and not suffering from a
mental deficiency. One of the psychologists reported that "her
prognosis for rehabilitation" if returned to society was favorable.
The presentence report showed that Lockett had committed no major
offenses, although she had a record of several minor ones as a
juvenile and two minor offenses as an adult. It also showed that
she had once used heroin but was receiving treatment at a drug
abuse clinic and seemed to be "on the road to success" as far as
her drug problem was concerned. It concluded that Lockett suffered
no psychosis and was not mentally deficient. [ Footnote 2 ]

															After considering the reports and hearing argument on the
penalty issue, the trial judge concluded that the offense had not
been primarily the product of psychosis or mental deficiency.
Without specifically addressing the other two statutory mitigating
factors, the judge said that he had "no alternative, whether [he]
like[d] the law or not," but to impose the death penalty. He then
sentenced Lockett to death. II A At the outset, we address Lockett's various challenges to the
validity of her conviction. Her first contention is that the Page 438 U. S. 595 prosecutor's repeated references in his closing remarks to the
State's evidence as "unrefuted" and "uncontradicted" constituted a
comment on her failure to testify and violated her Fifth and
Fourteenth Amendment rights. See Griffin v. California, 380 U. S. 609 , 380 U. S. 615 (1965). We conclude, however, that the prosecutor's closing
comments in this case did not violate constitutional prohibitions.
Lockett's own counsel had clearly focused the jury's attention on
her silence, first, by outlining her contemplated defense in his
opening statement and, second, by stating to the court and jury
near the close of the case, that Lockett would be the "next
witness." When viewed against this background, it seems clear that
the prosecutor's closing remarks added nothing to the impression
that had already been created by Lockett's refusal to testify after
the jury had been promised a defense by her lawyer and told that
Lockett would take the stand. B Lockett also contends that four prospective jurors were excluded
from the venire in violation of her Sixth and Fourteenth Amendment
rights under the principles established in Witherspoon v.
Illinois, 391 U. S. 510 (1968), and Taylor v. Louisiana, 419 U.
S. 522 , 419 U. S. 528 (1975). We do not agree.

															On voir dire, the prosecutor told the venire that there
was a possibility that the death penalty might be imposed, but that
the judge would make the final decision as to punishment. He then
asked whether any of the prospective jurors were so opposed to
capital punishment that

															"they could not sit, listen to the evidence, listen to the law,
[and] make their determination solely upon the evidence and the law
without considering the fact that capital punishment"

															might be imposed. Four of the venire responded affirmatively.
The trial judge then addressed the following question to those four
veniremen:

															"[D]o you feel that you could take an oath to well and truely
[ sic ] try this case . . . and follow the law, or is Page 438 U. S. 596 your conviction so strong that you cannot take an oath, knowing
that a possibility exists in regard to capital punishment?"

															Each of the four specifically stated twice that he or she would
not "take the oath." They were excused.

															In Witherspoon, persons generally opposed to capital
punishment had been excluded for cause from the jury that convicted
and sentenced the petitioner to death. We did not disturb the
conviction, but we held that

															"a sentence of death cannot be carried out if the jury that
imposed or recommended it was chosen by excluding veniremen for
cause simply because they voiced general objections to the death
penalty or expressed conscientious or religious scruples against
its infliction."

															391 U.S. at 391 U. S. 522 .
We specifically noted, however, that nothing in our opinion
prevented the execution of a death sentence when the veniremen
excluded for cause make it

															"unmistakably clear . . . that their attitude toward the death
penalty would prevent them from making an impartial decision as to
the defendant's guilt." Id. at 391 U. S.
522 -523, n. 21. Each of the excluded veniremen in this
case made it "unmistakably clear" that they could not be trusted to
"abide by existing law" and "to follow conscientiously the
instructions" of the trial judge. Boulden v. Holman, 394 U. S. 478 , 394 U. S. 484 (1969). They were thus properly excluded under Witherspoon, even assuming, arguendo, that Witherspoon provides a basis for attacking the conviction
as well as the sentence in a capital case.

															Nor was there any violation of the principles of Taylor v.
Louisiana, supra. In Taylor, the Court invalidated a
jury selection system that operated to exclude a "grossly
disproportionate," 419 U.S. at 419 U. S. 525 ,
number of women from jury service thereby depriving the petitioner
of a jury chosen from a "fair cross-section" of the community, id. at 419 U. S. 530 .
Nothing in Taylor, however, suggests that the right to a
representative jury includes the right to be tried by jurors who
have explicitly Page 438 U. S. 597 indicated an inability to follow the law and instructions of the
trial judge. C Lockett's final attack on her conviction, as distinguished from
her sentence, merits only brief attention. Specifically, she
contends that the Ohio Supreme Court's interpretation of the
complicity provision of the statute under which she was convicted,
Ohio Rev.Code Ann. § 2923.03(A) (1975), was so unexpected that it
deprived her of fair warning of the crime with which she was
charged. The opinion of the Ohio Supreme Court belies this claim.
It shows clearly that the construction given the statute by the
Ohio court was consistent with both prior Ohio law and with the
legislative history of the statute. [ Footnote 3 ] In such circumstances, any claim of inadequate
notice under the Due Process Clause of the Fourteenth Amendment
must be rejected. III Lockett challenges the constitutionality of Ohio's death penalty
statute on a number of grounds. We find it necessary to consider
only her contention that her death sentence is invalid because the
statute under which it was imposed did not permit the sentencing
judge to consider, as mitigating factors, her character, prior
record, age, lack of specific intent to cause death, and her
relatively minor part in the crime. To address her contention from
the proper perspective, it is helpful to review the developments in
our recent cases where we have applied the Eighth and Fourteenth
Amendments to death penalty statutes. We do not write on a "clean
slate." A Prior to Furman v. Georgia, 408 U.
S. 238 (1972), every State that authorized capital
punishment had abandoned Page 438 U. S. 598 mandatory death penalties, [ Footnote 4 ] and instead permitted the jury unguided and
unrestrained discretion regarding the imposition of the death
penalty in a particular capital case. [ Footnote 5 ] Mandatory death penalties had proved
unsatisfactory, as the plurality noted in Woodson v. North
Carolina, 428 U. S. 280 , 428 U. S. 293 (1976), in part because juries,

															"with some regularity, disregarded their oaths and refused to
convict defendants where a death sentence was the automatic
consequence of a guilty verdict."

															This Court had never intimated prior to Furman that
discretion in sentencing offended the Constitution. See
Pennslvania ex rel. Sullivan v. Ashe, 302 U. S.
51 , 302 U. S. 55 (1937); Williams v. New York, 337 U.
S. 241 , 337 U. S. 247 (1949); Williams v. Oklahoma, 358 U.
S. 576 , 358 U.S.
585 (1959). As recently as McGautha v. California, 402 U. S. 183 (1971), the Court had specifically rejected the contention that
discretion in imposing the death penalty violated the fundamental
standards of fairness embodied in Fourteenth Amendment due process, id. at 402 U. S.
207 -208, and had asserted that States were entitled to
assume that

															"jurors confronted with the truly awesome responsibility of
decreeing death for a fellow human [would] act with due regard for
the consequences of their decision." Id. at 402 U. S.
208 .

															The constitutional status of discretionary sentencing in capital
cases changed abruptly, however, as a result of the separate
opinions supporting the judgment in Furman. The question
in Furman was whether

															"the imposition and carrying out of the death penalty [in the
cases before the Court] constitute[d] cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments."

															408 U.S. at 408 U. S. 239 .
Two Justices concluded that the Eighth Amendment prohibited the
death penalty altogether, and, on that ground, voted Page 438 U. S. 599 to reverse the judgments sustaining the death penalties. Id. at 408 U. S.
305 -306 (BRENNAN, J., concurring); id. at 408 U. S.
370 -371 (MARSHALL, J., concurring). Three Justices were
unwilling to hold the death penalty per se unconstitutional under the Eighth and Fourteenth Amendments, but
voted to reverse the judgments on other grounds. In separate
opinions, the three concluded that discretionary sentencing,
unguided by legislatively defined standards, violated the Eighth
Amendment because it was "pregnant with discrimination," id. at 408 U. S. 257 (Douglas, J., concurring), because it permitted the death penalty
to be "wantonly" and "freakishly" imposed, id. at 408 U. S. 310 (STEWART, J., concurring), and because it imposed the death penalty
with "great infrequency" and afforded "no meaningful basis for
distinguishing the few cases in which it [was] imposed from the
many cases in which it [was] not," id. at 408 U. S. 313 (WHITE, J., concurring). Thus, what had been approved under the Due
Process Clause of the Fourteenth Amendment in McGautha became impermissible under the Eighth and Fourteenth Amendments by
virtue of the judgment in Furman. See Gregg v.
Georgia, 428 U. S. 153 , 428 U. S.
195 -196, n. 47 (1976) (opinion of STEWART, POWELL, and
STEVENS, JJ.).

															Predictably, [ Footnote 6 ]
the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the
death penalty in accord with the Eighth Amendment. [ Footnote 7 ] Some States responded to what was
thought to Page 438 U. S. 600 be the command of Furman by adopting mandatory death
penalties for a limited category of specific crimes thus
eliminating all discretion from the sentencing process in capital
cases. [ Footnote 8 ] Other
States attempted to continue the practice of individually assessing
the culpability of each individual defendant convicted of a capital
offense and, at the same time, to comply with Furman, by
providing standards to guide the sentencing decision. [ Footnote 9 ]

															Four years after Furman, we considered Eighth
Amendment Page 438 U. S. 601 issues posed by five of the post- Furman death penalty
statutes. [ Footnote 10 ] Four
Justices took the position that all five statutes complied with the
Constitution; two Justices took the position that none of them
complied. Hence, the disposition of each case varied according to
the votes of three Justices who delivered a joint opinion in each
of the five cases upholding the constitutionality of the statutes
of Georgia, Florida, and Texas, and holding those of North Carolina
and Louisiana unconstitutional.

															The joint opinion reasoned that, to comply with Furman, sentencing procedures should not create "a substantial risk that
the death penalty [will] be inflicted in an arbitrary and
capricious manner." Gregg v. Georgia, supra at 428 U. S. 188 .
In the view of the three Justices, however, Furman did not
require that all sentencing discretion be eliminated, but only that
it be "directed and limited," 428 U.S. at 428 U. S. 189 ,
so that the death penalty would be imposed in a more consistent and
rational manner and so that there would be a "meaningful basis for
distinguishing the . . . cases in which it is imposed from . . .
the many cases in which it is not." Id. at 428 U. S. 188 .
The plurality concluded, in the course of invalidating North
Carolina's mandatory death penalty statute, that the sentencing
process must permit 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," Woodson v. North Carolina, 428 U.S. at 428 U. S. 304 ,
in order to ensure the reliability, under Eighth Amendment
standards, of the determination that "death is the appropriate
punishment in a specific case." Id. at 428 U. S. 305 ; see Roberts (Harry) v. Louisiana, 431 U.
S. 633 , 431 U. S. 637 (1977); Jurek v. Texas, 428 U. S. 262 , 428 U. S.
271 -272 (1976). Page 438 U. S. 602 In the last decade, many of the States have been obliged to
revise their death penalty statutes in response to the various
opinions supporting the judgments in Furman and Gregg and its companion cases. The signals from this Court
have not, however, always been easy to decipher. The States now
deserve the clearest guidance that the Court can provide; we have
an obligation to reconcile previously differing views in order to
provide that guidance. B With that obligation in mind, we turn to Lockett's attack on the
Ohio statute. Essentially, she contends that the Eighth and
Fourteenth Amendments require that the sentencer be given a full
opportunity to consider mitigating circumstances in capital cases,
and that the Ohio statute does not comply with that requirement.
She relies, in large part, on the plurality opinions in Woodson, supra at 428 U. S. 303 -305, and Roberts (Stanislaus) v.
Louisiana, 428 U. S. 325 , 428 U. S.
333 -334 (1976), and the joint opinion in Jurek,
supra at 428 U. S.
271 -272, but she goes beyond them.

															We begin by recognizing that the concept of individualized
sentencing in criminal cases generally, although not
constitutionally required, has long been accepted in this country. See Williams v. New York, 337 U.S. at 337 U. S.
247 -248; Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. at 302 U. S. 55 .
Consistent with that concept, sentencing judges traditionally have
taken a wide range of factors into account. That States have
authority to make aiders and abettors equally responsible, as a
matter of law, with principals, or to enact felony murder statutes
is beyond constitutional challenge. But the definition of crimes
generally has not been thought automatically to dictate what should
be the proper penalty. See ibid.; Williams v. New York,
supra at 337 U. S.
247 -248; Williams v. Oklahoma, 358 U.S. at 358 U.S. 585 . And where
sentencing discretion is granted, it generally Page 438 U. S. 603 has been agreed that he sentencing judge's "possession of the
fullest information possible concerning the defendant's life and
characteristics" is "[h]ighly relevant -- if not essential -- [to the] selection of an appropriate sentence. . . ." Williams v. New York, supra at 337 U. S. 247 (emphasis added).

															The opinions of this Court going back many years in dealing with
sentencing in capital cases have noted the strength of the basis
for individualized sentencing. For example, Mr. Justice Black,
writing for the Court in Williams v. New York, supra at 337 U. S.
247 -248 -- a capital case -- observed that the

															"whole country has traveled far from the period in which the
death sentence was an automatic and commonplace result of
convictions even for offenses today deemed trivial."

															Ten years later, in Williams v. Oklahoma, supra at 358 U.S. 585 , another
capital case, the Court echoed Mr. Justice Black, stating that

															"[i]n discharging his duty of imposing a proper sentence, the
sentencing judge is authorized, if not required, to
consider all of the mitigating and aggravating circumstances
involved in the crime."

															(Emphasis added.) See also Furman v. Georgia, 408 U.S.
at 408 U. S.
245 -246 (Douglas, J., concurring); id. at 408 U. S.
297 -298 (BRENNAN, J., concurring); id. at 408 U. S. 339 (MARSHALL, J., concurring); id. at 408 U. S.
402 -403 (BURGER, C.J., dissenting); id. at 408 U. S. 413 (BLACKMUN, J., dissenting); McGautha v. California, 402
U.S. at 402 U. S.
197 -203. Most would agree that "the 19th century
movement away from mandatory death sentences marked an enlightened
introduction of flexibility into the sentencing process." Furman v. Georgia, supra at 408 U. S. 402 (BURGER, C.J., dissenting).

															Although legislatures remain free to decide how much discretion
in sentencing should be reposed in the judge or jury in noncapital
cases, the plurality opinion in Woodson, after Page 438 U. S. 604 reviewing the historical repudiation of mandatory sentencing in
capital cases, 428 U.S. at 428 U. S. 289 -298, concluded that

															"in capital cases 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. at 428 U. S. 304 .
That declaration rested "on the predicate that the penalty of death
is qualitatively different" from any other sentence. Id. at 428 U. S. 305 .
We are satisfied that this qualitative difference between death and
other penalties calls for a greater degree of reliability when the
death sentence is imposed. The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of "relevant facets of the character and record of
the individual offender or the circumstances of the particular
offense." Id. at 428 U. S. 304 .
The plurality did not attempt to indicate, however, which facets of
an offender or his offense it deemed "relevant" in capital
sentencing or what degree of consideration of "relevant facets" it
would require.

															We are now faced with those questions, and we conclude that the
Eighth and Fourteenth Amendments require that the sentencer, in all
but the rarest kind of capital case, [ Footnote 11 ] 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.
[ Footnote 12 ] We recognize
that, in noncapital Page 438 U. S. 605 cases, the established practice of individualized sentences
rests not on constitutional commands, but on public policy enacted
into statutes. The considerations that account for the wide
acceptance of individualization of sentences in noncapital cases
surely cannot be thought less important in capital cases. 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. The
need for treating each defendant in a capital case with that degree
of respect due the uniqueness of the individual is far more
important than in noncapital cases. A variety of flexible
techniques -- probation, parole, work furloughs, to name a few --
and various postconviction remedies may be available to modify an
initial sentence of confinement in noncapital cases. The
nonavailability of corrective or modifying mechanisms with respect
to an executed capital sentence underscores the need for
individualized consideration as a constitutional requirement in
imposing the death sentence. [ Footnote 13 ]

															There is no perfect procedure for deciding in which cases
governmental authority should be used to impose death. But a
statute that prevents the sentencer in all capital cases from
giving independent mitigating weight to aspects of the defendant's
character and record and to circumstances of the offense proffered
in mitigation creates the risk that the death penalty will be
imposed in spite of factors which may call for a less severe
penalty. When the choice is between life and death, that risk is
unacceptable and incompatible with the commands of the Eighth and
Fourteenth Amendments. Page 438 U. S. 606 C The Ohio death penalty statute does not permit the type of
individualized consideration of mitigating factors we now hold to
be required by the Eighth and Fourteenth Amendments in capital
cases. Its constitutional infirmities can best be understood by
comparing it with the statutes upheld in Gregg, Proffitt, and Jurek. In upholding the Georgia statute in Gregg, JUSTICES
STEWART, POWELL, and STEVENS noted that the statute permitted the
jury "to consider any aggravating or mitigating circumstances," see Gregg, 428 U.S. at 428 U. S. 206 ,
and that the Georgia Supreme Court had approved "open and
far-ranging argument" in presentence hearings, id. at 428 U. S. 203 .
[ Footnote 14 ] Although the
Florida statute approved in Proffitt contained a list of
mitigating factors, six Members of this Court assumed, in approving
the statute, that the range of mitigating factors listed in the
statute was not exclusive. [ Footnote 15 ] Jurek involved a Texas statute
which made no explicit reference to mitigating factors. 428 U.S. at 428 U. S. 272 .
Rather, the jury was required to answer three Page 438 U. S. 607 questions in the sentencing process, the second of which was
"whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat
to society." Tex.Code Crim.Proc., Art. 37.071(b) (Supp. 1971976); see 428 U.S. at 428 U. S. 269 .
The statute survived the petitioner's Eighth and Fourteenth
Amendment attack because three Justices concluded that the Texas
Court of Criminal Appeals had broadly interpreted the second
question -- despite its facial narrowness -- so as to permit the
sentencer to consider "whatever mitigating circumstances" the
defendant might be able to show. Id. at 428 U. S.
272 -273 (opinion of STEWART, POWELL, and STEVENS, JJ.),
citing and quoting, Jurek v. State, 522
S.W.2d 934 , 939-940 (Tex.Crim.App. 1975). None of the statutes
we sustained in Gregg and the companion cases clearly
operated at that time to prevent the sentencer from considering any
aspect of the defendant's character and record or any circumstances
of his offense as an independently mitigating factor.

															In this regard, the statute now before us is significantly
different. Once a defendant is found guilty of aggravated murder
with at least one of seven specified aggravating circumstances, the
death penalty must be imposed unless, considering "the nature and
circumstances of the offense and the history, character, and
condition of the offender," the sentencing judge determines that at
least one of the following mitigating circumstances is established
by a preponderance of the evidence:

															"(1) The victim of the offense induced or facilitated it."

															"(2) It is unlikely that the offense would have been committed,
but for the fact that the offender was under duress, coercion, or
strong provocation."

															"(3) The offense was primarily the product of the offender's
psychosis or mental deficiency, though such condition is
insufficient to establish the defense of insanity."

															Ohio Rev.Code Ann. § 2929.04(B) (1975). Page 438 U. S. 608 The Ohio Supreme Court has concluded that there is no
constitutional distinction between the statute approved in Proffitt and Ohio's statute, see State v.
Bayless, 48 Ohio St.2d 73, 86-87, 357 N E.2d 1035, 1045-1046
(1976), because the mitigating circumstances in Ohio's statute are
"liberally construed in favor of the accused," State v.
Bell, 48 Ohio St.2d 270, 281, 358 N.E.2d 556, 564 (1976); see State v. Bayless, supra at 86, 357 N.E.2d at 1046, and
because the sentencing judge or judges may consider factors such as
the age and criminal record of the defendant in determining whether
any of the mitigating circumstances is established, State v.
Bell, supra at 281, 358 N.E.2d at 564. But even under the Ohio
court's construction of the statute, only the three factors
specified in the statute can be considered in mitigation of the
defendant's sentence. See 48 Ohio St.2d at 281-282, 358
N.E.2d at 564-565; State v. Bayless, supra at 87 n. 2, 357
N.E.2d at 1046 n. 2. We see, therefore, that once it is determined
that the victim did not induce or facilitate the offense, that the
defendant did not act under duress or coercion, and that the
offense was not primarily the product of the defendant's mental
deficiency, the Ohio statute mandates the sentence of death. The
absence of direct proof that the defendant intended to cause the
death of the victim is relevant for mitigating purposes only if it
is determined that it sheds some light on one of the three
statutory mitigating factors. Similarly, consideration of a
defendant's comparatively minor role in the offense, or age, would
generally not be permitted, as such, to affect the sentencing
decision.

															The limited range of mitigating circumstances which may be
considered by the sentencer under the Ohio statute is incompatible
with the Eighth and Fourteenth Amendments. To meet constitutional
requirements, a death penalty statute must not preclude
consideration of relevant mitigating factors.

															Accordingly, the judgment under review is reversed to the Page 438 U. S. 609 extent that it sustains the imposition of the death penalty, and
the case is remanded for further proceedings. [ Footnote 16 ] So ordered. MR. JUSTICE BRENNAN took no part in the consideration or
decision of this case.

															| 438
U.S. 586 app| APPENDIX TO OPINION OF THE COURT The pertinent provisions of the Ohio death penalty statute, Ohio
Rev.Code Ann. (1975), are as follows:

															"§ 2929.03 Imposing sentence for a capital offense."

															"(A) If the indictment or count in the indictment charging
aggravated murder contains no specification of an aggravating
circumstance listed in division (A) of section 2929.04 of the
Revised Code, then, following a verdict of guilty of the charge,
the trial court shall impose sentence of life imprisonment on the
offender."

															"(B) If the indictment or count in the indictment charging
aggravated murder contains one or more specifications of
aggravating circumstances listed in division (A) of section 2929.04
of the Revised Code, the verdict shall separately state whether the
accused is found guilty or not guilty of the principal charge and,
if guilty of the principal charge, whether the offender is guilty
or not Page 438 U. S. 610 guilty of each specification. The jury shall be instructed on
its duties in this regard, which shall include an instruction that
a specification must be proved beyond a reasonable doubt in order
to support a guilty verdict on such specification, but such
instruction shall not mention the penalty which may be the
consequence of a guilty or not guilty verdict on any charge or
specification."

															"(C) If the indictment or count in the indictment charging
aggravated murder contains one or more specifications of
aggravating circumstances listed in division (A) of section 2929.04
of the Revised Code, then, following a verdict of guilty of the
charge but not guilty of each of the specifications, the trial
court shall impose sentence of life imprisonment on the offender.
If the indictment contains one or more specifications listed in
division (A) of such section, then, following a verdict of guilty
of both the charge and one or more of the specifications, the
penalty to be imposed on the offender shall be determined: (1) By
the panel of three judges which tried the offender upon his waiver
of the right to trial by jury; (2) By the trial judge, if the
offender was tried by jury."

															"(D) When death may be imposed as a penalty for aggravated
murder, the court shall require a pre-sentence investigation and a
psychiatric examination to be made, and reports submitted to the
court, pursuant to section 2947.06 of the Revised Code. Copies of
the reports shall be furnished to the prosecutor and to the
offender or his counsel. The court shall hear testimony and other
evidence, the statement, if any, of the offender, and the
arguments, if any, of counsel for the defense and prosecution
relevant to the penalty which should be imposed on the offender. If
the offender chooses to make a statement, Page 438 U. S. 611 he is subject to cross-examination only if he consents to make
such statement under oath or affirmation."

															"(E) Upon consideration of the reports, testimony, other
evidence, statement of the offender, and arguments of counsel
submitted to the court pursuant to division (D) of this section, if
the court finds, or if the panel of three judges unanimously finds
that none of the mitigating circumstances listed in division (b) of
section 2929.04 of the Revised Code is established by a
preponderance of the evidence, it shall impose sentence of death on
the offender. Otherwise, it shall impose sentence of life
imprisonment on the offender."

															"§ 2929.04 Criteria for imposing death or imprisonment for a
capital offense."

															"(A) Imposition of the death penalty for aggravated murder is
precluded, unless one or more of the following is specified in the
indictment or count in the indictment pursuant to section 2941.14
of the Revised Code, and is proved beyond a reasonable doubt:"

															"(1) The offense was the assassination of the president of the
United States or person in line of succession to the presidency, or
of the governor or lieutenant governor of this state, or of the
president-elect or vice-president-elect of the United States, or of
the governor-elect or lieutenant governor-elect of this state, or
of a candidate for any of the foregoing offices. For purposes of
this division, a person is a candidate if he has been nominated for
election according to law, or if he has filed a petition or
petitions according to law to have his name placed on the ballot in
a primary or general election, or if he campaigns as a write-in
candidate in a primary or general election."

															"(2) The offense was committed for hire."

															"(3) The offense was committed for the purpose of escaping
detection, apprehension, trial, or punishment for another offense
committed by the offender. " Page 438 U. S. 612 "(4) The offense was committed while the offender was a prisoner
in a detention facility as defined in section 2921.01 of the
Revised Code."

															"(5) The offender has previously been convicted of an offense of
which the gist was the purposeful killing of or attempt to kill
another, committed prior to the offense at bar, or the offense at
bar was part of a course of conduct involving the purposeful
killing of or attempt to kill two or more persons by the
offender."

															"(6) The victim of the offense was a law enforcement officer
whom the offender knew to be such, and either the victim was
engaged in his duties at the time of the offense or it was the
offender's specific purpose to kill a law enforcement officer."

															"(7) The offense was committed while the offender was
committing, attempting to commit, or fleeing immediately after
committing or attempting to commit kidnapping, rape, aggravated
arson, aggravated robbery, or aggravated burglary."

															"(B) Regardless of whether one or more of the aggravating
circumstances listed in division (A) of this section is specified
in the indictment and proved beyond a reasonable doubt, the death
penalty for aggravated murder is precluded when, considering the
nature and circumstances of the offense and the history, character,
and condition of the offender, one or more of the following is
established by a prepondence [preponderance] of the evidence:"

															"(1) The victim of the offense induced or facilitated it."

															"(2) It is unlikely that the offense would have been committed,
but for the fact that the offender was under duress, coercion, or
strong provocation."

															"(3) The offense was primarily the product of the offender's
psychosis or mental deficiency, though such Page 438 U. S. 613 condition is insufficient to establish the defense of
insanity."

															[ Footnote 1 ]

															The pertinent provisions of the Ohio death penalty statute
appear as an 438
U.S. 586 app|>appendix to this opinion.

															[ Footnote 2 ]

															The presentence report also contained information about the
robbery. It indicated that Dew had told the police that he, Parker,
and Lockett's brother had planned the holdup. It also indicated
that Parker had told the police that Lockett had not followed his
order to keep the car running during the robbery, and instead had
gone to get something to eat.

															[ Footnote 3 ] See 49 Ohio St.2d 48, 58-62, 358 N.E.2d 1062, 1070-1072
(1976); id. at 69-70, 358 N.E.2d at 1076 (stern, J.,
dissenting).

															[ Footnote 4 ] See Woodson v. North Carolina, 428 U.
S. 280 , 428 U. S.
291 -292, and n. 25 (1976) (Opinion of STEWART, POWELL,
and STEVENS, JJ.).

															[ Footnote 5 ] See id. at 428 U. S.
291 -292; McGautha v. California, 402 U.
S. 183 , 402 U. S. 200 n. 11 (1971).

															[ Footnote 6 ] See Furman v. Georgia, 408 U.
S. 238 , 408 U. S. 403 (1972) (BURGER, C.J., dissenting).

															[ Footnote 7 ]

															The limits on the consideration of mitigating factors in Ohio's
death penalty statute which Lockett now attacks appear to have been
a direct response to Furman. Prior to Furman, Ohio had begun to revise its system of capital sentencing. The Ohio
House of Representatives had passed a bill abandoning the practice
of unbridled sentencing discretion and instructing the sentencer to
consider a list of aggravating and mitigating circumstances in
determining whether to impose the death penalty. The list of
mitigating circumstances permitted consideration of any
circumstance "tending to mitigate the offense, though failing to
establish a defense." See Sub.House Bill 511, 109th Ohio
General Assembly § 2929.03(C)(3), passed by the Ohio House on March
22, 1972; Lehman & Norris, Some Legislative History and
Comments on Ohio's New Criminal Code, 23 Cleve.St.L.Rev. 8, 10, 16
(1974). Furman was announced during the Ohio Senate Judiciary
Committee's consideration of the Ohio House bill. After Furman, the Committee decided to retain the death penalty
but to eliminate much of the sentencing discretion permitted by the
House bill. As a result, the Ohio Senate developed the current
sentencing procedure which requires the imposition of the death
penalty if one of seven specific aggravating circumstances and none
of three specific mitigating circumstances is found to exist.
Confronted with what reasonably would have appeared to be the
questionable constitutionality of permitting discretionary weighing
of mitigating factors after Furman, the sponsors of the
Ohio House bill were not in a position to mount a strong opposition
to the Senate's amendments, see Lehman & Norris, supra at 18-22, and the statute under which Lockett was
sentenced was enacted.

															[ Footnote 8 ] See, e.g., Woodson, supra at 428 U. S. 300 (opinion of STEWART, POWELL, and STEVENS, JJ.); Rockwell v.
Superior Court, 18 Cal. 3d
420 , 446 448, 556 P.2d 1101, 1116-1118 (1976) (Clark, J.,
concurring) (account of how California and other States enacted
unconstitutional mandatory death penalties in response to Furman ); State v. Spence, 367 A.2d
983 , 985-986 (Del.1976) (Delaware Legislature and court
interpreted Furman as requiring elimination of all
sentencing discretion resulting in an unconstitutional statute);
Liebman & Shepard, Guiding Capital Sentencing Discretion Beyond
the "Boiler Plate": Mental Disorder as a Mitigating Factor, 66
Geo.L.J. 757, 765 n. 43 (1978).

															[ Footnote 9 ] See Note, Discretion and the Constitutionality of the
New Death Penalty Statutes, 87 Harv.L.Rev. 1690, 1690-1710
(1974).

															[ Footnote 10 ] Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U.
S. 242 (1976); Jurek v. Texas, 428 U.
S. 262 (1976); Woodson v. North Carolina,
supra; and Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976).

															[ Footnote 11 ]

															We express no opinion as to whether the need to deter certain
kinds of homicide would justify a mandatory death sentence as, for
example, when a prisoner -- or escapee -- under a life sentence is
found guilty of murder. See Robert (Harry) v. Louisiana, 431 U. S. 633 , 431 U. S. 637 n. 5 (1977).

															[ Footnote 12 ]

															Nothing in this opinion limits the traditional authority of a
court to exclude, as irrelevant, evidence not bearing on the
defendant's character, prior record, or the circumstance of his
offense.

															[ Footnote 13 ]

															Sentencing in noncapital cases present no comparable problems.
We emphasize that, in dealing with standards for imposition of the
death sentence, we intimate no view regarding the authority of a
State or of the Congress to fix mandatory, minimum sentences for
noncapital crimes.

															[ Footnote 14 ]

															The statute provided that, in sentencing, the jury should
consider "any mitigating circumstances or aggravating circumstances
otherwise authorized by law" in addition to 10 specified
aggravating circumstances. See Ga.Code Ann. § 27.2534.1(b)
(Supp. 1975). MR. JUSTICE WHITE, who also voted to uphold the
statute in an opinion joined by THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST, noted that the Georgia Legislature had decided to permit
"the jury to dispense mercy on the basis of factors too intangible
to write into a statute." Gregg, 428 U.S. at 428 U. S.
222 .

															[ Footnote 15 ]

															The opinion of JUSTICES STEWART, POWELL and STEVENS in Proffitt noted that the Florida statute "provides that [a]ggravating circumstances shall be limited to . . . [eight
specified factors],'" and that there was "no such limiting language
introducing the list of statutory mitigating factors." 428 U.S. at 428 U. S. 250 n. 8. MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE and MR.
JUSTICE REHNQUIST, accepted the interpretation of the statute
contained in the opinion of JUSTICES STEWART, POWELL, and STEVENS. See id. at 428 U. S.
260 . [ Footnote 16 ]

															In view of our holding that Lockett was not sentenced in accord
with the Eighth Amendment, we need not address her contention that
the death penalty is constitutionally disproportionate for one who
has not been proved to have taken life, to have attempted to take
life, or to have intended to take life, or her contention that the
death penalty is disproportionate as applied to her in this case.
Nor do we address her contentions that the Constitution requires
that the death sentence be imposed by a jury; that the Ohio
statutory procedures impermissibly burden the defendant's exercise
of his rights to plead not guilty and to be tried by a jury; and
that it violates the Constitution to require defendants to bear the
risk of nonpersuasion as to the existence of mitigating
circumstances in capital cases.

															MR. JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.

															I join the Court's judgment, but only Parts I and II of its
opinion. I, too, would reverse the judgment of the Supreme Court of
Ohio insofar as it upheld the imposition of the death penalty on
petitioner Sandra Lockett, but I would do so for a reason more
limited than that which the plurality espouses, and for an
additional reason not relied upon by the plurality. I The first reason is that, in my view, the Ohio judgment in this
case improperly provided the death sentence for a defendant who
only aided and abetted a murder, without permitting any
consideration by the sentencing authority of the extent of her
involvement, or the degree of her mens rea, in the
commission of the homicide. The Ohio capital penalty statute,
together with that State's aiding-and-abetting statute, and its
statutory definition of "purposefulness" as including reckless
endangerment, allows for a particularly harsh application of the
death penalty to any defendant who has aided or abetted the
commission of an armed robbery in the course of which a person is
killed, even though accidentally. [ Footnote 2/1 ] It might be that Page 438 U. S. 614 to inflict the death penalty in some such situations would skirt
the limits of the Eighth Amendment proscription, incorporated in
the Fourteenth Amendment, against gross disproportionality, but I
doubt that the Court, in regard to murder, could easily define a
convincing bright-line rule such as was used in regard to rape, Coker v. Georgia, 433 U. S. 584 (1977), to make workable a disproportionality approach. [ Footnote 2/2 ] Page 438 U. S. 615 The more manageable alternative, in my view, is to follow a
proceduralist tack and require, as Ohio does not, in the case of a
nontriggerman such as Lockett, that the sentencing authority Page 438 U. S. 616 have discretion to consider the degree of the defendant's
participation in the acts leading to the homicide and the character
of the defendant's mens rea. That approach does not
interfere with the States' individual statutory categories for
assessing legal guilt, but merely requires that the sentencing
authority be permitted to weigh any available evidence, adduced at
trial or at the sentencing hearing, concerning the defendant's
degree of participation in the homicide and the nature of his mens rea in regard to the commission of the homicidal act.
A defendant would be permitted to adduce evidence, if any be
available, that he had little or no reason to anticipate that a gun
would be fired, or that he played only a minor part in t,he course
of events leading to the use of fatal force. Though heretofore I
have been unwilling to interfere with the legislative judgment of
the States in regard to capital sentencing procedures, see
Furman v. Georgia, 408 U. S. 238 , 408 U. S. 405 (1972) (dissenting opinion), adhered to in the 1976 cases, see my opinions in Gregg v. Georgia, 428 U.
S. 153 , 428 U. S. 227 ; Proffitt v. Florida, 428 U. S. 242 , 428 U. S. 261 ; Jurek v. Texas, 428 U. S. 262 , 428 U. S. 279 ; Woodson v. North Carolina, 428 U.
S. 280 , 428 U. S. 307 ; Roberts v. Louisiana, 428 U. S. 325 , 428 U. S. 363 ,
this Court's judgment as to disproportionality in Coker,
supra, in which I joined, and the unusual degree to which Ohio
requires capital punishment of a mere aider and abettor in an armed
felony resulting in a fatality even where no participant
specifically intended the fatal use of a weapon, see 438
U.S. 586 fn2/1|>n. 1, supra, provides a significant
occasion for setting some limit to the method by which the States
assess punishment for actions less immediately connected to the
deliberate taking of human life.

															This approach is not too far off the mark already used by many
States in assessing the death penalty. Of 34 States that now have
capital statutes, 18 specify that a minor degree of participation
in a homicide may be considered by the sentencing Page 438 U. S. 617 authority, and, of the remaining 16 States, 9 allow
consideration of any mitigating factor. [ Footnote 2/3 ] II The second ground on which reversal is required, in my view, is
a Jackson issue. Although the plurality does not reach
this issue, it is raised by petitioner, and I mention it against
the possibility that any further revision of the Ohio death penalty
statutes, prompted by the Court's decision today, contemplate as
well, and cure, the Jackson deficiency.

															In United States v. Jackson, 390 U.
S. 570 (1968), the Court held that the capital
sentencing provision of the Federal Kidnaping Act was
unconstitutional in that it needlessly burdened the defendant's
exercise of the Sixth Amendment Page 438 U. S. 618 right to trial by jury and the Fifth Amendment right to plead
not guilty. The Act, 18 U.S.C. § 1201(a) (1964 ed.), had provided
that the death penalty could be imposed only "if the verdict of the
jury shall so recommend," thus peculiarly insuring that any
defendant who pleaded guilty, or who waived a jury trial in favor
of a bench trial, could not be sentenced to death, and imposing the
risk of death only on those who insisted on trial by jury.

															The holding of Jackson, prohibiting imposition of the
death penalty on a defendant who insists upon a jury trial, was
thereafter limited to an extent by Brady v. United States, 397 U. S. 742 (1970), where the Court held that a pre- Jackson defendant
who had pleaded guilty rather than go to trial was not entitled to
withdraw his plea on grounds of involuntariness or coercion even if
the plea had been encouraged by fear of the death penalty in a jury
trial. Here, of course, petitioner insisted on her right to a jury
trial, and thus falls on the Jackson side of any Jackson-Brady dichotomy.

															Under Ohio Rule Crim.Proc. 11(C)(3), the sentencing court has
full discretion to prevent imposition of a capital sentence "in the
interests of justice" if a defendant pleads guilty or no contest,
but wholly lacks such discretion if the defendant goes to trial.
The Rule states that, if

															"the indictment contains one or more specifications [of
aggravating circumstances], and a plea of guilty or no contest to
the charge [of aggravated murder with specifications] is accepted,
the court may dismiss the specifications and impose sentence [of
life imprisonment] accordingly, in the interests of justice."

															Such a dismissal of aggravating specifications absolutely
precludes imposition of the death penalty. There is no provision
similar to Rule 11(C)(4) permitting the trial court to dismiss
aggravating specifications "in the interests of justice" where the
defendant insists on his right to trial. Instead, as the Ohio
Supreme Court noted in State v. Weind, 50 Ohio St.2d 224,
227, 364 N.E.2d 224, 228 (1977), vacated in part and remanded,
post, p. 911, a defendant who pleads not guilty Page 438 U. S. 619 "must rely on the court finding the presence of one of the
[statutory] mitigating circumstances . . . to avoid the death
sentence."

															While it is true, as the Ohio Court noted in Weind, 50
Ohio St.2d at 229, 364 N.E.2d at 229, that there is always a
possibility of a death sentence whether or not one pleads guilty,
this does not change the fact that a defendant can plead not guilty
only by enduring a semi-mandatory, rather than a purely
discretionary, capital sentencing provision. This disparity between
a defendant's prospects under the two sentencing alternatives is,
in my view, too great to survive under Jackson, and
petitioner's death sentence thus should be vacated on that ground
as well.

															[ Footnote 2/1 ]

															Ohio Rev.Code Ann. § 2903.01(b) (1975) provides that

															"[n]o person shall purposely cause the death of another while
committing or attempting to commit, or while fleeing immediately
after committing or attempting to commit . . . aggravated
robbery,"

															and § 2903.01(C) states that one doing so is guilty of
aggravated murder. Under § 2929.04(A)(7), the commission of the
same armed robbery serves as an aggravating specification to the
murder, and requires the imposition of the death penalty upon the
principal offender unless the existence of one of the three
permitted mitigating circumstances is established by a
preponderance of the evidence. Sections 2923.03(A) and (F) provide
that an aider or abettor who acts "with the kind of culpability
required for the commission of [the principal] offense" shall be
"prosecuted and punished as if he were a principal offender." The
finishing stroke is then delivered by Ohio's statutory definition
of "purpose." Under § 2901.22(A),

															"[a] person acts purposely when it is his specific intention to
cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what
the offender intends to accomplish thereby, it is his specific
intention to engage in conduct of that nature. "

															(Emphasis added.)

															In this case, as the three dissenting justices of the Ohio
Supreme Court noted, 49 Ohio St.2d 48, 68, 358 N.E.2d 1062, 1075
(1976), the jury was instructed that Lockett could be found to have
"purposely" aided a murder merely by taking part in a robbery in
which the threat of force was to be employed. The jury was
instructed:

															"If the conspired robbery and the manner of its accomplishment
would be reasonably likely to produce death, each plotter is
equally guilty with the principal offender as an aider and abettor
in the homicide, even though the aider and abettor was not aware of
the particular weapon used to accomplish the killing."

															The State presented no testimony indicating any prior plan
actually to fire the gun in the course of the robbery. The
triggerman, Parker, testified that the gun discharged accidentally
when the proprietor of the pawnshop grabbed at it. App. 50-51,
53.

															[ Footnote 2/2 ]

															I do not find entirely convincing the disproportionality rule
embraced by my Brother WHITE. The rule that a defendant must have
had actual intent to kill in order to be capitally sentenced does
not explain why such intent is the sole criterion of culpability
for Eighth Amendment purposes. What if a defendant personally
commits the act proximately causing death by pointing a loaded gun
at the robbery victim, verbally threatens to use fatal force,
admittedly does not intend to cause a death, yet knowingly creates
a high probability that the gun will discharge accidentally? What
if a robbery participant, in order to avoid capture or even for
wanton sport, personally and deliberately uses grave physical force
with conscious intent to inflict serious bodily harm, but not to
kill, and a death results? May we, as judges, say that for Eighth
Amendment purposes the absence of a "conscious purpose of producing
death," post at 438 U. S. 628 ,
transforms the culpability of those defendants' actions?

															Applying a requirement of actual intent to kill to defendants
not immediately involved in the physical act causing death,
moreover, would run aground on intricate definitional problems
attending a felony murder. What intention may a State attribute to
a robbery participant who sits in the getaway car, knows that a
loaded gun will be brandished by his companion in the robbery
inside the store, is willing to have the gun fired if necessary to
make an escape but not to accomplish the robbery, when the victim
is shot by the companion even though not necessary for escape? What
if the unarmed participant stands immediately inside the store as a
lookout, intends that a loaded gun merely be brandished, but never
bothered to discuss with the triggerman what limitations were
appropriate for the firing of the gun? What if the same lookout
personally intended that the gun never be fired, but, after his
companion fires a fatal shot to prevent the victim from sounding an
alarm, approves and takes off?

															The requirement of actual intent to kill in order to inflict the
death penalty would require this Court to impose upon the States an
elaborate "constitutionalized" definition of the requisite mens
rea, involving myriad problems of line drawing that normally
are left to jury discretion but that, in disproportionality
analysis, have to be decided as issues of law, and interfering with
the substantive categories of the States' criminal law. And such a
rule, even if workable, is an incomplete method of ascertaining
culpability for Eighth Amendment purposes, which necessarily is a
more subtle mixture of action, inaction, and degrees of mens
rea. Finally, I must question the data relied upon by my Brother
WHITE in concluding, post at 438 U. S. 624 ,
that only "extremely rare[ly]" has the death penalty been used when
a defendant did not specifically intend the death of the victim.
The representation made by petitioner Lockett, even if accepted
uncritically, was merely that, of 363 reported cases involving
executions from 1954 to 1976, in 347, the defendant "personally
committed a homicidal assault" -- not that the defendant had actual
intention to kill. App. to Brief for Petitioner 1b. Of contemporary
death penalty statutes, my Brother WHITE concedes that
approximately half permit the execution of persons who did not
actually intend to cause death.

															[ Footnote 2/3 ]

															The 18 state statutes specifically permitting consideration of a
defendant's minor degree of involvement are Ala.Code, Tit. 13, § 13
7(4) (1975); Ariz.Rev.Stat.Ann. § 13-454(F)(3) (Supp. 1977);
Ark.Stat.Ann. § 41-1304(5) (1977); Cal.Penal Code Ann. § 190.3(i)
(West Supp. 1978); Fla.Stat. § 921.141(6)(d) (Supp. 1978); Ind.Code
§ 35-50-2-9(c)(4) (Supp. 1977); Ky.Rev.Stat. § 532.025(2)(b)(5)
(Supp. 1977); La.Code Crim. Proc., Art. 905.5(g) (West Supp. 1978);
Mo.Rev.Stat. § 565.012.3(4) (Supp. 1978); Mont. Rev.Codes Ann. §
95-2206.9(6) (Supp. 1977); Neb.Rev.Stat. § 29-2523(2)(e) (1975);
Nev.Rev.Stat. § 200.035(4) (1977); N.C.Gen.Stat. § 15A-2000(f)(4)
(Supp. 1977), added by 1977 N.C. Sess. Laws, ch. 406; S.C.Code §
13-20(C)(b)(4) (Supp. 1978); Tenn.Code Ann. § 39-2404 (j)(5) (Supp.
1977); Utah Code Ann. § 76-3-207(1)(f) (Supp. 1977); Wash.Rev.Code
§ 9 A. 32.045(2)(d) (Supp. 1977); Wyo.Stat. §§ 6-54.2(c),(d), and
(j)(iv) (Supp. 1977), added by 1977 Wyo.Sess.Laws, ch. 122.

															The nine state statutes allowing consideration of any mitigating
circumstance are Del.Code Ann., Tit. 11, § 4209(c) (Supp. 1977);
Ga.Code § 27-2534.1(b) (1975); Idaho Code § 19-2515(c) (Supp.
1977); Ill.Rev.Stat., ch. 38, § 9-1(c) (Supp. 1978); Miss.Code Ann.
§ 97-3-21 (Supp. 1977), see Jackson v.
State, 337 So. 2d
1242 , 1254 (Miss.1976); N.H.Rev.Stat.Ann. § 630:5(II) (Supp.
1977); Okla.Stat., Tit. 21, § 701.10 (Supp. 1977); Tex.Code
Crim.Proc.Ann., Art. 37.071(b)(2) (Vernon Supp. 1978), see
Jurek v. Texas, 428 U. S. 262 , 428 U. S.
272 -273 (1976); Va.Code § 19.2-264.4(b) (Supp.
1977).

															MR. JUSTICE MARSHALL, concurring in the judgment.

															I continue to adhere to my view that the death penalty is, under
all circumstances, a cruel and unusual punishment prohibited by the
Eighth Amendment. See Furman v. Georgia, 408 U.
S. 238 , 408 U. S.
314 -374 (1972) (MARSHALL, J., concurring); Gregg v.
Georgia, 428 U. S. 153 , 428 U. S.
231 -241 (1976) (MARSHALL, J., dissenting). The cases
that have come to this Court since its 1976 decisions permitting
imposition of the death penalty have only persuaded me further of
that conclusion. See, e.g., Gardner v. Florida, 430 U. S. 349 , 430 U. S. 365 (1977) (MARSHALL, J., dissenting); Coker v. Georgia, 433 U. S. 584 , 433 U. S.
600 -601 (1977) (MARSHALL, J., concurring in judgment); Alford v. Florida, 436 U. S. 935 (1978) (MARSHALL, J., dissenting from denial of certiorari). This
case, as well, serves to reinforce my view.

															When a death sentence is imposed under the circumstances
presented here, I fail to understand how any of my Brethren -- even
those who believe that the death penalty is not wholly inconsistent
with the Constitution -- can disagree that it must be vacated.
Under the Ohio death penalty statute, this 21-year-old Negro woman
was sentenced to death for a killing that she did not actually
commit or intend to commit. She was convicted under a theory of
vicarious liability. The imposition Page 438 U. S. 620 of the death penalty for this crime totally violates the
principle of proportionality embodied in the Eighth Amendment's
prohibition, Weems v. United States, 217 U.
S. 349 (1910); it makes no distinction between a willful
and malicious murderer and an accomplice to an armed robbery in
which a killing unintentionally occurs. See 49 Ohio St.2d
48, 67, 358 N.E.2d 1062, 1075 (1976) (dissenting opinion).

															Permitting imposition of the death penalty solely on proof of
felony murder, moreover, necessarily leads to the kind of
"lightning bolt," "freakish," and "wanton" executions that
persuaded other Members of the Court to join MR. JUSTICE BRENNAN
and myself in Furman v. Georgia, supra, in holding
Georgia's death penalty statute unconstitutional. Whether a death
results in the course of a felony (thus giving rise to felony
murder liability) turns on fortuitous events that do not
distinguish the intention or moral culpability of the defendants.
That the State of Ohio chose to permit imposition of the death
penalty under a purely vicarious theory of liability seems to belie
the notion that the Court can discern the "evolving standards of
decency," Trop v. Dulles, 356 U. S.
86 , 356 U. S. 101 (1958) (plurality opinion), embodied in the Eighth Amendment, by
reference to state "legislative judgment," see Gregg v.
Georgia, supra at 428 U. S. 175 (opinion of STEWART, POWELL, and STEVENS, JJ.).

															As the plurality points out, petitioner was sentenced to death
under a statutory scheme that precluded any effective consideration
of her degree of involvement in the crime, her age, or her
prospects for rehabilitation. Achieving the proper balance between
clear guidelines that assure relative equality of treatment, and
discretion to consider individual factors whose weight cannot
always be preassigned, is no easy task in any sentencing system.
Where life itself is what hangs in the balance, a fine precision in
the process must be insisted upon. The Ohio statute, with its
blunderbuss, virtually mandatory approach to imposition of the
death penalty for certain crimes, Page 438 U. S. 621 wholly fails to recognize the unique individuality of every
criminal defendant who comes before its courts. See Roberts
(Harry) v. Louisiana, 431 U. S. 633 , 431 U. S. 637 (1977) (per curiam); Woodson v. North Carolina, 428 U. S. 280 , 428 U. S. 304 (1976).

															The opinions announcing the judgment of the Court in Gregg
v. Georgia, 428 U.S. at 428 U. S.
188 -198 (opinion of STEWART, POWELL, and STEVENS, JJ.), Jurek v. Texas, 428 U. S. 262 , 428 U. S.
271 -276 (1976) (opinion of STEWART, POWELL, and STEVENS,
JJ.), and Proffitt v. Florida, 428 U.
S. 242 , 428 U. S.
259 -260 (1976) (opinion of STEWART, POWELL, and STEVENS,
JJ.), upheld the constitutionality of the death penalty in the
belief that a system providing sufficient guidance for the
sentencing decisionmaker and adequate appellate review would assure
"rationality," "consistency," and "proportionality" in the
imposition of the death sentence. Gregg v. Georgia, supra at 428 U. S. 203 ; Proffitt v. Florida, supra at 428 U. S. 259 ; Jurek v. Texas, supra at 428 U. S. 276 .
That an Ohio trial court could impose the death penalty on
petitioner under these facts, and that the Ohio Supreme Court on
review could sustain it, cast strong doubt on the plurality's
premise that appellate review in state systems is sufficient to
avoid the wrongful and unfair imposition of this irrevocable
penalty.

															Accordingly, I join in the Court's judgment insofar as it
affirms petitioner's conviction and vacates her death sentence. I
do not, however, join in the Court's assumption that the death
penalty may ever be imposed without violating the command of the
Eighth Amendment that no "cruel and unusual punishments" be
imposed.

															MR JUSTICE WHITE, concurring in part, dissenting in part, and
concurring in the judgments of the Court. * I concur in Parts I and II of the Court's opinion in Lockett
v. Ohio, and Part I of the Court's opinion in Bell v.
Ohio, post p. 438 U. S. 637 and
in the judgments. I cannot, however, agree with Page 438 U. S. 622 Part III of the plurality opinion in Lockett and Part
II of the plurality opinion in Bell, and, to that extent,
respectfully dissent.

															The Court has now completed its about-face since Furman v.
Georgia, 408 U. S. 238 (1972). Furman held that, as a result of permitting the
sentencer to exercise unfettered discretion to impose or not to
impose the death penalty for murder, the penalty was then being
imposed discriminatorily, [ Footnote
3/1 ] wantonly and freakishly, [ Footnote 3/2 ] and so infrequently [ Footnote 3/3 ] that any given death sentence was cruel
and unusual. The Court began its retreat in Woodson v. North
Carolina, 428 U. S. 280 (1976), and Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976), where a plurality held that statutes which imposed
mandatory death sentences even for first-degree murders were
constitutionally invalid because the Eighth Amendment required that
consideration be given by the sentencer to aspects of character of
the individual offender and the circumstances of the particular
offense in deciding whether to impose the punishment of death.
[ Footnote 3/4 ] Today it is held,
again through a plurality, that the sentencer may constitutionally
impose the death penalty only as an exercise of his unguided
discretion after being presented with all circumstances which the
defendant might believe to be conceivably relevant to the
appropriateness of the penalty for the individual offender.
[ Footnote 3/5 ] Page 438 U. S. 623 With all due respect, I dissent. I continue to be of the view,
for the reasons set forth in my dissenting opinion in Roberts,
supra at 428 U. S. 337 ,
that it does not violate the Eighth Amendment for a State to impose
the death penalty on a mandatory basis when the defendant has been
found guilty beyond a reasonable doubt of committing a deliberate,
unjustified killing. Moreover, I greatly fear that the effect of
the Court's decision today will be to compel constitutionally a
restoration of the state of affairs at the time Furman was
decided, where the death penalty is imposed so erratically and the
threat of execution is so attenuated for even the most atrocious
murders that

															"its imposition would then be the pointless and needless
extinction of life with only marginal contributions to any
discernible social or public purposes." Furman v. Georgia, supra at 408 U. S. 312 (WHITE, J., concurring). By requiring as a matter of constitutional
law that sentencing authorities be permitted to consider, and, in
their discretion, to act upon, any and all mitigating
circumstances, the Court permits them to refuse to impose the death
penalty no matter what the circumstances of the crime. This invites
a return to the pre- Furman days when the death penalty was
generally reserved for those very few for whom society has least
consideration. I decline to extend Woodson and Roberts in this respect.

															It also seems to me that the plurality strains very hard and
unsuccessfully to avoid eviscerating the handiwork in Proffitt
v. Florida, 428 U. S. 242 (1976), and Jurek v. Texas, 428 U.
S. 262 (1976); and surely it calls into question any
other death penalty statute that permits only a limited number
of Page 438 U. S. 624 mitigating circumstances to be placed before the sentencing
authority or to be used in its deliberations. II I nevertheless concur in the judgments of the Court reversing
the imposition of the death sentences because I agree with the
contention of the petitioners, ignored by the plurality, that it
violates the Eighth Amendment to impose the penalty of death
without a finding that the defendant possessed a purpose to cause
the death of the victim.

															It is now established that a penalty constitutes cruel and
unusual punishment if it is excessive in relation to the crime for
which it is imposed. A punishment is disproportionate

															"if it (1) makes no measurable contribution to acceptable goals
of punishment, and hence is nothing more than the purposeless and
needless imposition of pain and suffering; or (2) is grossly out of
proportion to the severity of the crime. A punishment might fail
the test on either ground." Coker v. Georgia, 433 U. S. 584 , 433 U. S. 592 (1977) (opinion of WHITE, J.). Because it has been extremely rare
that the death penalty has been imposed upon those who were not
found to have intended the death of the victim, the punishment of
death violates both tests under the circumstances present here.

															According to the factual submissions before this Court, out of
363 reported executions for homicide since 1954 for which facts are
available, only eight clearly involved individuals who did not
personally commit the murder. [ Footnote
3/6 ] Moreover, at least some of these eight executions involved
individuals who intended Page 438 U. S. 625 to cause the death of the victim. [ Footnote 3/7 ] Furthermore, the last such execution
occurred in 1955. In contrast, there have been 72 executions for
rape in the United States since 1954. [ Footnote 3/8 ]

															I recognize that approximately half of the States have not
legislatively foreclosed the possibility of imposing the death
penalty upon those who do not intend to cause death. The ultimate
judgment of the American people concerning the imposition of the
death penalty upon such defendants, however, is revealed not only
by the content of statutes and by the imposition of capital
sentences, but also by the frequency with which society is prepared
actually to inflict the punishment of death. See Furman v.
Georgia, 408 U. S. 238 (1972). It is clear from recent history that the infliction of
death under circumstances where there is no purpose to take life
has been widely rejected as grossly out of proportion to the
seriousness of the crime.

															The value of capital punishment as a deterrent to those lacking
a purpose to kill is extremely attenuated. Whatever questions may
be raised concerning the efficacy of the death penalty as a
deterrent to intentional murders -- and that debate rages on -- its
function in deterring individuals from becoming involved in
ventures in which death may unintentionally result is even more
doubtful. Moreover, whatever legitimate purposes the imposition of
death upon those who do not intend to cause death might serve if
inflicted with any regularity is surely dissipated by society's
apparent unwillingness to impose it upon other than an occasional
and erratic basis. See id. at 408 U. S. 310 (WHITE, J., concurring). Page 438 U. S. 626 Under those circumstances, the conclusion is unavoidable that
the infliction of death upon those who had no intent to bring about
the death of the victim is not only grossly out of proportion to
the severity of the crime, but also fails to contribute
significantly to acceptable or, indeed, any perceptible goals of
punishment.

															This is not to question, of course, that those who engage in
serious criminal conduct which poses a substantial risk of
violence, as did the present petitioners, deserve serious
punishment regardless of whether or not they possess a purpose to
take life. And the fact that death results, even unintentionally,
from a criminal venture need not and frequently is not regarded by
society as irrelevant to the appropriate degree of punishment. But
society has made a judgment, which has deep roots in the history of
the criminal law, see United States v. United States Gypsum
Co., ante, p. 438 U. S. 422 ,
distinguishing, at least for purpose of the imposition of the death
penalty, between the culpability of those who acted with and those
who acted without a purpose to destroy human life.

															Both of these petitioners were sentenced to death without a
finding at any stage of the proceeding that they intended the death
of those who were killed as a result of their criminal conduct. In Lockett v. Ohio, the trial judge instructed the jury as
follows:

															"A person engaged in a common design with others to rob by force
and violence an individual or individuals of their property is
presumed to acquiesce in whatever may reasonably be necessary to
accomplish the object of their enterprise. . . ."

															"If the conspired robbery and the manner of its accomplishment
would be reasonably likely to produce death, each plotter is
equally guilty with the principal offender as an aider and abettor
in the homicide. . . . An intent to kill by an aider and abettor
may be Page 438 U. S. 627 found to exist beyond a reasonable doubt under such
circumstances."

															On appeal, the Ohio Supreme Court held that, where

															"it might be reasonably expected by all the participants that
the victim's life would be endangered by the manner and means of
performing the act conspired . . . , participants [are] bound by
all the consequences naturally and probably arising from the
furtherance of the conspiracy to commit the robbery."

															49 Ohio St.2d 48, 62, 358 N.E.2d 1062, 1072 (1976). It is thus
clear that, under Ohio law, a defendant may be convicted of
aggravated murder with aggravating specifications and sentenced to
death without a finding that he intended death to result, but only
that he engaged in criminal conduct which posed a substantial risk
of death to others. Moreover, it appears that nowhere during either
the trial or sentencing process was any finding made that Lockett
intended that death be inflicted in connection with the robbery.
The petitioner in Bell v. Ohio, post, p. 438 U. S. 637 , was
tried before a three-judge panel. Again, however, no findings were
made either during the trial or sentencing stage of the process
that Bell intended the death of the victim which resulted from the
criminal conduct in which he was engaged.

															Of course, the facts of both of these cases might well permit
the inference that the petitioners did, in fact, intend the death
of the victims. But there is a vast difference between permitting a
factfinder to consider a defendant's willingness to engage in
criminal conduct which poses a substantial risk of death in
deciding whether to infer that he acted with a purpose to take
life, and defining such conduct as an ultimate fact equivalent to
possessing a purpose to kill, as Ohio has done. See United
States v. United States Gypsum Co., ante, p. 438 U. S. 422 .
Indeed, the type of conduct which Ohio would punish by death
requires at most the degree of mens rea defined by the ALI
Model Penal Code (1962) as recklessness: conduct undertaken with
knowledge that death is likely to Page 438 U. S. 628 follow. [ Footnote 3/9 ] Since I
would hold that death may not be inflicted for killings consistent
with the Eighth Amendment without a finding that the defendant
engaged in conduct with the conscious purpose of producing death,
these sentences must be set aside. [ Footnote 3/10 ]

															* [This opinion applies also to No. 76-6513, Bell v. Ohio,
post, p. 438 U. S.
637 .]

															[ Footnote 3/1 ] See Furman v. Georgia, 408 U.S. at 408 U. S. 240 (Douglas, J., concurring).

															[ Footnote 3/2 ] See id. at 408 U. S. 306 (STEWART, J., concurring).

															[ Footnote 3/3 ] See id. at 408 U. S. 310 (WHITE, J., concurring).

															[ Footnote 3/4 ]

															The Court took a further step along this path in Roberts
(Harry) v. Louisiana, 431 U. S. 633 (1977), which held that the imposition of a mandatory death
sentence even upon one convicted of the first-degree murder of a
police officer engaged in the performance of his duties constituted
cruel and unusual punishment.

															[ Footnote 3/5 ]

															The plurality's general endorsement of individualized sentencing
as representing enlightened public policy even apart from the
Eighth Amendment context, ante at 438 U. S.
602 -603, is not only questionable but also highly
inappropriate in light of the fact that Congress, after detailed
study of the matter, is currently giving serious consideration to
legislation adopting the view that the goals of the criminal law
are best achieved by a system of sentencing which narrowly limits
the discretion of the sentencer. See S. 1437, 95th Cong.,
2d Sess. (approved by the Senate on Jan. 30, 1978).

															[ Footnote 3/6 ]

															The study is based upon reported appellate opinions. There were
eight additional cases in which the facts were not reported in
sufficient detail to permit a determination as to the status of the
executed person. I recognize that, because of the absence of
reported appellate opinions for some cases, this study does not
include all executions within the relevant time period. There is no
reason whatsoever to suppose, however, that the statistics relevant
to these executions would alter the conclusions to be drawn from
those included in the study.

															[ Footnote 3/7 ]

															In two of these cases, the executed person arranged for another
to commit the murder for him. I realize that it may be conceivable
that a few of the "triggermen" actually executed lacked an intent
to kill. But such cases will of necessity be rare.

															[ Footnote 3/8 ]

															United States Department of Justice, Law Enforcement Assistance
Administration, National Prisoner Statistics Bulletin No.
SD-NPS-CP, Capital Punishment 1974, pp. 117 (Nov.1975).

															[ Footnote 3/9 ]

															Section 2.02(2)(c) provides:

															"A person acts recklessly with respect to a material element of
an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and purpose of the actor's conduct and
the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person
would observe in the actor's situation."

															In contrast, § 2.02(2)(a) provides:

															"A person acts purposely with respect to a material element of
an offense when:"

															"(i) if the element involves the nature of his conduct or a
result thereof, it is his conscious object to engage in conduct of
that nature or to cause such a result. . . ."

															[ Footnote 3/10 ]

															I find it unnecessary to address other constitutional challenge
to the death sentences imposed in these cases.

															MR. JUSTICE REHNQUIST, concurring in part and dissenting in
part.

															I join Parts I and II of THE CHIEF JUSTICE's opinion for the
Court, but am unable to join Part III of his opinion or in the
judgment of reversal. I Whether out of a sense of judicial responsibility or a less
altruistic sense of futility, there are undoubtedly circumstances
which require a Member of this Court "to bow to the authority" of
an earlier case despite his "original and continuing belief that
the decision was constitutionally wrong." Burns v.
Richardson, 384 U. S. 73 , 384 U. S. 98 (1966) (Harlan, J., concurring in result). See also id. at 384 U. S. 99 (STEWART, J., concurring in judgment). The Court has most assuredly
not adopted the dissenting views which I expressed in the previous
capital Page 438 U. S. 629 punishment.cases, see Woodson v. North Carolina, 428 U. S. 280 , 428 U. S. 308 (1976), and Furman v. Georgia, 408 U.
S. 238 , 408 U. S. 465 (1972). It has just as surely not cloven to a principled doctrine
either holding the infliction of the death penalty to be
unconstitutional per se or clearly and understandably
stating the terms under which the Eighth and Fourteenth Amendments
permit the death penalty to be imposed. Instead, as I believe both
the opinion of THE CHIEF JUSTICE and the opinion of my Brother
WHITE seem to concede, 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.

															THE CHIEF JUSTICE states: "We do not write on a clean
slate,'" ante at 438 U. S. 597 .
But it can scarcely be maintained that today's decision is the
logical application of a coherent doctrine first espoused by the
opinions leading to the Court's judgment in Furman, and
later elaborated in the Woodson series of cases decided
two Terms ago. Indeed, it cannot even be responsibly maintained
that it is a principled application of the plurality and lead
opinions in the Woodson series of cases, without regard to Furman. The opinion strives manfully to appear as a
logical exegesis of those opinions, but I believe that it fails in
the effort. We are now told, in effect, that, in order to impose a
death sentence, the judge or jury must receive in evidence whatever
the defense attorney wishes them to hear. I do not think THE CHIEF
JUSTICE's effort to trace this quite novel constitutional principle
back to the plurality and lead opinions in the Woodson cases succeeds. As the opinion admits, ante at 438 U. S. 606 n. 14, the statute upheld in Gregg v. Georgia, 428 U. S. 153 (1976), permitted the sentencing authority to consider only those
mitigating circumstances " authorized by law.'" Id. at 428 U. S. 164 (opinion of STEWART, POWELL, and STEVENS, JJ.) (citation omitted).
Today's opinion goes on to say: "Although the Florida statute Page 438 U. S. 630 approved in Proffitt [v. Florida, 428 U. S.
242 (1976),] contained a list of mitigating factors, six
Members of this Court assumed . . . that the range of mitigating
factors listed in the statute was not exclusive." Ante at 438 U. S. 606 ,
and n. 15, citing Proffitt, supra, at 428 U. S. 250 n. 8, 428 U. S. 260 .
The footnote referred to discussed whether the Florida court would
uphold a death sentence that rested entirely on nonstatutory
aggravating circumstances. The reference to the absence of limiting
language with respect to the list of statutory mitigating factors
was employed to emphasize the different statutory treatment of
aggravating circumstances. Indeed, only one page later, the joint
opinion stated:

															"The sentencing authority in Florida, the trial judge, is
directed to weigh eight aggravating factors against seven
mitigating factors to determine whether the death penalty shall be
imposed."

															428 U.S. at 428 U. S. 251 .
The other Proffitt opinion referred to in today's opinion,
the dissenting opinion of MR. JUSTICE WHITE, id. at 428 U. S. 260 ,
said of mitigating circumstances:

															"[A]lthough the statutory aggravating and mitigating
circumstances are not susceptible of mechanical application, they
are by no means so vague and overbroad as to leave the discretion
of the sentencing authority unfettered."

															The opinion's effort to find support for today's rule in our
opinions in Jurek v. Texas, 428 U.
S. 262 (1976), is equally strained. The lead opinion
there read the opinion of the Texas Court of Criminal Appeals to
interpret the statute "so as to allow a defendant to bring to the
jury's attention whatever mitigating circumstances he may be able
to show," id. at 428 U. S. 272 ,
and went on to quote several specified types of mitigating
circumstances which were mentioned in the Texas court's opinion. I
think it clear from this context that the term "mitigating
circumstances" was not so broad as to encompass any evidence which
the defense attorney saw fit to present to a judge or jury.

															It seems to me indisputably clear from today's opinion that, Page 438 U. S. 631 while we may not be writing on a clean slate, the Court is
scarcely faithful to what has been written before. Rather, it makes
a third distinct effort to address the same question, an effort
which derives little support from any of the various opinions in Furman or from the prevailing opinions in the Woodson cases. As a practical matter, I doubt that today's
opinion will make a great deal of difference in the manner in which
trials in capital cases are conducted, since I would suspect that
it has been the practice of most trial judges to permit a defendant
to offer virtually any sort of evidence in his own defense as he
wished. But as my Brother WHITE points out in his dissent, the
theme of today's opinion, far from supporting those views expressed
in Furman which did appear to be carried over to the Woodson cases, tends to undercut those views. If a
defendant, as a matter of constitutional law, is to be permitted to
offer as evidence in the sentencing hearing any fact, however
bizarre, which he wishes, even though the most sympathetically
disposed trial judge could conceive of no basis upon which the jury
might take it into account in imposing a sentence, the new
constitutional doctrine will not eliminate arbitrariness or
freakishness in the imposition of sentences, but will codify and
institutionalize it. By encouraging defendants in capital cases,
and presumably sentencing judges and juries, to take into
consideration anything under the sun as a "mitigating
circumstance," it will not guide sentencing discretion, but will
totally unleash it. It thus appears that the evil described by the Woodson plurality -- that mandatory capital sentencing
"papered over the problem of unguided and unchecked jury
discretion," 428 U.S. at 428 U. S. 302 -- was in truth not the unchecked discretion, but a system which
"papered over" its exercise, rather than spreading it on the
record.

															I did not, either at the time of the Furman decision or
the decision in the Woodson cases, agree with the views
expressed in Furman which I thought the lead opinions in
the Woodson Page 438 U. S. 632 cases sought to carry over into those opinions. I do, however,
agree with the statements as to institutional responsibility
contained in the separate opinions in Burns v. Richardson, 384 U. S. 73 (1966), and I trust that I am not insensitive to THE CHIEF
JUSTICE's expressed concern in his opinion that "[t]he States now
deserve the clearest guidance that the Court can provide" on
capital punishment. Ante at 438 U. S. 602 .
Given the posture of my colleagues in this case, however, there
does not seem to me to be any way in which I can assist in the
discharge of that obligation. I am frank to say that I am uncertain
whether today's opinion represents the seminal case in the
exposition by this Court of the Eighth and Fourteenth Amendments as
they apply to capital punishment, or whether, instead, it
represents the third false start in this direction within the past
six years.

															A majority of the Court has yet to endorse the course taken by
today's plurality in using the Eighth Amendment as a device for
importing into the trial of capital cases extremely stringent
procedural restraints. The last opinion on that subject to command
a majority of this Court was that of Mr. Justice Harlan in McGautha v. California, 402 U. S. 183 (1971), in which he spoke for the Court in these words:

															"It may well be, as the American Law Institute and the National
Commission on Reform of Federal Criminal Laws have concluded, that
bifurcated trials and criteria for jury sentencing discretion are
superior means of dealing with capital cases if the death penalty
is to be retained at all. But the Federal Constitution, which marks
the limits of our authority in these cases, does not guarantee
trial procedures that are the best of all worlds, or that accord
with the most enlightened ideas of students of the infant science
of criminology, or even those that measure up to the individual
predilections of members of this Court. See Spencer v.
Texas, 385 U. S. 554 (1967). The
Constitution requires no more than that trials be Page 438 U. S. 633 fairly conducted and that guaranteed rights of defendants be
scrupulously respected." Id. at 402 U. S.
221 .

															I continue to view McGautha as a correct exposition of
the limits of our authority to revise state criminal procedures in
capital cases under the Eighth and Fourteenth Amendments. Sandra
Lockett. was fairly tried, and was found guilty of aggravated
murder. I do not think Ohio was required to receive any sort of
mitigating evidence which an accused or his lawyer wishes to offer,
and therefore I disagree with Part III of the plurality's
opinion. II Because I reject the primary contentions offered by petitioner,
I must also address her other arguments, with which the Court does
not wish to deal, in order to conclude that the State may impose
the death penalty. Two of petitioner's objections can be dismissed
with little comment. First, she complains that the Ohio procedure
does not permit jury participation in the sentencing process. As
the lead opinion pointed out in Proffitt, 428 U.S. at 428 U. S. 252 ,
this Court "has never suggested that jury sentencing is
constitutionally required." No majority of this Court has ever
reached a contrary conclusion, and I would not do so today. Second,
she contends that the State should be required to prove the absence
of mitigating factors beyond a reasonable doubt. 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.

															Petitioner also presents two arguments based on United
States v. Jackson, 390 U. S. 570 (1968), in which the Court held that the imposition of the death
penalty under the Federal Kidnaping Act, 18 U.S.C. § 1201(a) (1964
ed.), was unconstitutional because it could only be imposed where
the defendant exercised his right to trial by jury. First,
petitioner Page 438 U. S. 634 attacks the provision of the statute requiring three judges,
rather than one, to hear the case when a defendant chooses to be
tried by the court, rather than the jury. She contends that the
three judges are less likely to impose the death penalty than would
be the single judge who determines sentence in the case of a jury
trial. To that extent, she argues, the exercise of the right to a
jury trial is discouraged because of a fear of a higher probability
of the imposition of the death penalty. This argument cannot be
supported. There is simply no reason to conclude that three judges
are less likely than one to impose the death sentence on a
convicted murderer. At the same time, it is at least equally
plausible that the three judges would be less likely than a jury to
convict in the first instance. Thus, at the time when an accused
defendant must choose between a trial before the jury and a trial
to the court, it simply cannot be said which is more likely to
result in the imposition of death. Since both procedures are
sufficiently fair to satisfy the Constitution, I see no infirmity
in requiring petitioner to choose which she prefers.

															Second, petitioner complains that the trial court has the
authority to dismiss the specifications of aggravating
circumstances, thus precluding the imposition of the death penalty,
only when a defendant pleads guilty or no contest. She contends
that this limitation upon the availability of judicial mercy
unfairly penalizes her right to plead not guilty. While Jackson may offer some support for this contention, it
certainly does not compel its acceptance. In Jackson, the
defendant could have been executed if he exercised his right to a
jury trial, but could not have been executed if he waived it. In
Ohio, a defendant is subject to possible execution whether or not
he pleads guilty. Furthermore, if he chooses to plead guilty, he is
not subject to possible acquittal. Under such circumstances, it is
difficult to imagine that any defendant will be deterred from
exercising his right to go to trial. Indeed, petitioner was not so
deterred, and respondent reports that Page 438 U. S. 635 no one in petitioner's county has ever pleaded guilty to capital
murder. Brief for Respondent 36. The mere fact that petitioner was
required to choose hardly amounts to a constitutional violation. In McGautha, supra at 402 U. S.
212 -213, the Court explained an earlier decision, Simmons v. United States, 390 U.
S. 377 (1968), in which it had invalidated a conviction
because the defendant had been required to forgo his Fifth
Amendment privilege against self-incrimination to protect a Fourth
Amendment claim. Here, petitioner's assertion of her right to go to
trial would have deprived her only of a statutory possibility of
mercy, not of constitutional dimensions, enjoyed by other
defendants in Ohio. Nothing in Jackson suggests that such
a choice is forbidden by the Fourteenth Amendment.

															I finally reject the proposition urged by my Brother WHITE in
his separate opinion, which the plurality finds it unnecessary to
reach. That claim is that the death penalty, as applied to one who
participated in this murder as Lockett did, is "disproportionate,"
and therefore violative of the Eighth and Fourteenth Amendments. I
know of no principle embodied in those Amendments, other than
perhaps one's personal notion of what is a fitting punishment for a
crime, which would allow this Court to hold the death penalty
imposed upon her unconstitutional because, under the judge's charge
to the jury, the latter were not required to find that she intended
to cause the death of her victim. As my Brother WHITE concedes,
approximately half of the States "have not legislatively foreclosed
the possibility of imposing the death penalty upon those who do not
intend to cause death." Ante at 438 U. S. 625 .
Centuries of common law doctrine establishing the felony murder
doctrine, dealing with the relationship between aiders and abettors
and principals, would have to be rejected to adopt this view. Just
as surely as many thoughtful moralists and penologists would reject
the Biblical notion of "an eye for an eye, a tooth for a tooth," as
a guide for minimum sentencing, there is nothing in the prohibition
against Page 438 U. S. 636 cruel and unusual punishments contained in the Eighth Amendment
which sets that injunction as a limitation on the maximum sentence
which society may impose.

															Since all of petitioner's claims appear to me to be without
merit, I would affirm the judgment of the Supreme Court of
Ohio.

Summary:
In the case of Lockett v. Ohio, the U.S. Supreme Court considered the constitutionality of the Ohio death penalty statute and the validity of the petitioner's conviction for aggravated murder. The Court held that the judgment upholding the death penalty was reversed and the case was remanded for further proceedings.

The Court found that the prosecutor's comments on the petitioner's silence did not violate her constitutional rights, and the exclusion of prospective jurors opposed to the death penalty was also upheld. However, the Court agreed with the petitioner's argument that the death penalty statute did not allow the sentencing judge to consider mitigating circumstances fully.

Justice Burger, in his opinion, rejected the proposition that the death penalty was disproportionate and unconstitutional, citing common law doctrine and state legislation that allowed for the imposition of the death penalty in similar cases. He would have affirmed the judgment of the Ohio Supreme Court.