U.S. Supreme Court Gregg v. Georgia, 428
U.S. 153 (1976) Gregg v. Georgia No. 74-6257 Argued March 31, 1976 Decided July 2, 1976 428
U.S. 153 CERTIORARI TO THE SUPREME COURT OF
GEORGIA Syllabus Petitioner was charged with committing armed robbery and murder
on the basis of evidence that he had killed and robbed two men. At
the trial stage of Georgia's bifurcated procedure, the jury found
petitioner guilty of two counts of armed robbery and two counts of
murder. At the penalty stage, the judge instructed the jury that it
could recommend either a death sentence or a life prison sentence
on each count; that it was free to consider mitigating or
aggravating circumstances, if any, as presented by the parties; and
that it would not be authorized to consider imposing the death
sentence unless it first found beyond a reasonable doubt (1) that
the murder was committed while the offender was engaged in the
commission of other capital felonies, viz., the armed
robberies of the victims; (2) that he committed the murder for the
purpose of receiving the victims' money and automobile; or (3) that
the murder was "outrageously and wantonly vile, horrible and
inhuman" in that it "involved the depravity of [the] mind of the
defendant." The jury found the first and second of these
aggravating circumstances, and returned a sentence of death. The
Georgia Supreme Court affirmed the convictions. After reviewing the
trial transcript and record and comparing the evidence and sentence
in similar cases, the court upheld the death sentences for the
murders, concluding that they had not resulted from prejudice or
any other arbitrary factor, and were not excessive or
disproportionate to the penalty applied in similar cases, but
vacated the armed robbery sentences on the ground, inter
alia, that the death penalty had rarely been imposed in
Georgia for that offense. Petitioner challenges imposition of the
death sentence under the Georgia statute as "cruel and unusual"
punishment under the Eighth and Fourteenth Amendments. That
statute, as amended following Furman v. Georgia, 408 U. S. 238 (where this Court held to be violative of those Amendments death
sentences imposed under statutes that left juries with untrammeled
discretion to impose or withhold the death penalty), retains the
death penalty for murder and five other crimes. Guilt or innocence
is determined in the first stage Page 428 U. S. 154 of a bifurcated trial, and, if the trial is by jury, the trial
judge must charge lesser included offenses when supported by any
view of the evidence. Upon a guilty verdict or plea, a presentence
hearing is held where the judge or jury hears additional
extenuating or mitigating evidence and evidence in aggravation of
punishment if made known to the defendant before trial. At least
one of 10 specified aggravating circumstances must be found to
exist beyond a reasonable doubt and designated in writing before a
death sentence can be imposed. In jury cases, the trial judge is
bound by the recommended sentence. In its review of a death
sentence (which is automatic), the State Supreme Court must
consider whether the sentence was influenced by passion, prejudice,
or any other arbitrary factor; whether the evidence supports the
finding of a statutory aggravating circumstance; and whether the
death sentence "is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant." If the court affirms the death sentence, it must
include in its decision reference to similar cases that it has
considered. Held: The judgment is affirmed. Pp. 428 U. S.
168 -207; 428 U. S.
220 -226; 428 U. S.
227 .

															233 Ga. 117, 210 S.E.2d
659 , affirmed.

															MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS
concluded that:

															(1) The punishment of death for the crime of murder does not,
under all circumstances, violate the Eighth and Fourteenth
Amendments. Pp. 428 U. S.
168 -187.

															(a) The Eighth Amendment, which has been interpreted in a
flexible and dynamic manner to accord with evolving standards of
decency, forbids the use of punishment that is "excessive" either
because it involves the unnecessary and wanton infliction of pain
or because it is grossly disproportionate to the severity of the
crime. Pp. 428 U. S.
169 -173.

															(b) Though a legislature may not impose excessive punishment, it
is not required to select the least severe penalty possible, and a
heavy burden rests upon those attacking its judgment. Pp. 428 U. S.
174 -176.

															(c) The existence of capital punishment was accepted by the
Framers of the Constitution, and, for nearly two centuries, this
Court has recognized that capital punishment for the crime of
murder is not invalid per se. Pp. 428 U. S.
176 -178. Page 428 U. S. 155 (d) Legislative measures adopted by the people's chosen
representatives weigh heavily in ascertaining contemporary
standards of decency; and the argument that such standards require
that the Eighth Amendment be construed as prohibiting the death
penalty has been undercut by the fact that, in the four years since Furman, supra, was decided, Congress and at least 35
States have enacted new statutes providing for the death penalty.
Pp. 428 U. S.
179 -183.

															(e) Retribution and the possibility of deterrence of capital
crimes by prospective offenders are not impermissible
considerations for a legislature to weigh in determining whether
the death penalty should be imposed, and it cannot be said that
Georgia's legislative judgment that such a penalty is necessary in
some cases is clearly wrong. Pp. 428 U. S.
183 -187.

															(f) Capital punishment for the crime of murder cannot be viewed
as invariably disproportionate to the severity of that crime. P. 428 U. S.
187 .

															2. The concerns expressed in Furman that the death
penalty not be imposed arbitrarily or capriciously can be met by a
carefully drafted statute that ensures that the sentencing
authority is given adequate information and guidance, concerns best
met by a system that provides for a bifurcated proceeding at which
the sentencing authority is apprised of the information relevant to
the imposition of sentence and provided with standards to guide its
use of that information. Pp. 428 U. S.
188 -195.

															3. The Georgia statutory system under which petitioner was
sentenced to death is constitutional. The new procedures, on their
face, satisfy the concerns of Furman, since, before the
death penalty can be imposed, there must be specific jury findings
as to the circumstances of the crime or the character of the
defendant, and the State Supreme Court thereafter reviews the
comparability of each death sentence with the sentences imposed on
similarly situated defendants to ensure that the sentence of death
in a particular case is not disproportionate. Petitioner's
contentions that the changes in Georgia's sentencing procedures
have not removed the elements of arbitrariness and capriciousness
condemned by Furman are without merit. Pp. 428 U. S.
196 -207.

															(a) The opportunities under the Georgia scheme for affording an
individual defendant mercy -- whether through the prosecutor's
unfettered authority to select those whom he wishes to prosecute
for capital offenses and to plea bargain with them; the jury's
option to convict a defendant of a lesser included offense; or
the Page 428 U. S. 156 fact that the Governor or pardoning authority may commute a
death sentence -- do not render the Georgia statute
unconstitutional. P. 428 U. S.
199 .

															(b) Petitioner's arguments that certain statutory aggravating
circumstances are too broad or vague lack merit, since they need
not be given overly broad constructions or have been already
narrowed by judicial construction. One such provision was held
impermissibly vague by the Georgia Supreme Court. Petitioner's
argument that the sentencing procedure allows for arbitrary grants
of mercy reflects a misinterpretation of Furman, and
ignores the reviewing authority of the Georgia Supreme Court to
determine whether each death sentence is proportional to other
sentences imposed for similar crimes. Petitioner also urges that
the scope of the evidence and argument that can be considered at
the presentence hearing is too wide, but it is desirable for a jury
to have as much information as possible when it makes the
sentencing decision. Pp. 428 U. S.
200 -204.

															(c) The Georgia sentencing scheme also provides for automatic
sentence review by the Georgia Supreme Court to safeguard against
prejudicial or arbitrary factors. In this very case, the court
vacated petitioner's death sentence for armed robbery as an
excessive penalty. Pp. 428 U. S.
204 -206.

															MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST, concluded that:

															1. Georgia's new statutory scheme, enacted to overcome the
constitutional deficiencies found in Furman v. Georgia, 408 U. S. 238 , to
exist under the old system, not only guides the jury in its
exercise of discretion as to whether or not it will impose the
death penalty for first-degree murder, but also gives the Georgia
Supreme Court the power and imposes the obligation to decide
whether in fact the death penalty was being administered for any
given class of crime in a discriminatory, standardless, or rare
fashion. If that court properly performs the task assigned to it
under the Georgia statutes, death sentences imposed for
discriminatory reasons or wantonly or freakishly for any given
category of crime will be set aside. Petitioner has wholly failed
to establish that the Georgia Supreme Court failed properly to
perform its task in the instant case, or that it is incapable of
performing its task adequately in all cases. Thus, the death
penalty may be carried out under the Georgia legislative scheme
consistently with the Furman decision. Pp. 428 U. S.
220 -224. Page 428 U. S. 157 2. Petitioner's argument that the prosecutor's decisions in plea
bargaining or in declining to charge capital murder are
standardless, and will result in the wanton or freakish imposition
of the death penalty condemned in Furman, is without
merit, for the assumption cannot be made that prosecutors will be
motivated in their charging decisions by factors other than the
strength of their case and the likelihood that a jury would impose
the death penalty if it convicts; the standards by which
prosecutors decide whether to charge a capital felony will be the
same as those by which the jury will decide the questions of guilt
and sentence. Pp. 428 U. S.
224 -225.

															3. Petitioner's argument that the death penalty, however imposed
and for whatever crime, is cruel and unusual punishment is
untenable for the reasons stated in MR. JUSTICE WHITE's dissent in Roberts v. Louisiana, post at 428 U. S.
350 -356. P. 428 U. S.
226 .

															MR. JUSTICE BLACKMUN concurred in the judgment. See Furman
v. Georgia, 408 U.S. at 408 U. S.
405 -414 (BLACKMUN, J., dissenting), and id. at 408 U. S. 375 (BURGER, C.J., dissenting); id. at 408 U. S. 414 (POWELL, J., dissenting); id. at 408 U. S. 465 (REHNQUIST, J., dissenting). P. 428 U. S.
227 .

															Judgment of the Court, and opinion of STEWART, POWELL, and
STEVENS, JJ., announced by STEWART, J., BURGER, C.J., and
REHNQUIST, J., filed a statement concurring in the judgment, post, p. 428 U. S. 226 .
WHITE, J., filed an opinion concurring in the judgment, in which
BURGER, C.J., and REHNQUIST, J., joined, post, p. 428 U. S. 207 .
BLACKMUN, J., filed a statement concurring in the judgment, post, p. 428 U. S. 227 .
BRENNAN, J., post, p. 428 U. S. 227 ,
and MARSHALL, J., post, p. 428 U. S. 231 ,
filed dissenting opinions. Page 428 U. S. 158 Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR.
JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE
STEWART.

															The issue in this case is whether the imposition of the sentence
of death for the crime of murder under the law of Georgia violates
the Eighth and Fourteenth Amendments. I The petitioner, Troy Gregg, was charged with committing armed
robbery and murder. In accordance with Georgia procedure in capital
cases, the trial was in two stages, a guilt stage and a sentencing
stage. The evidence at the guilt trial established that, on
November 21, 1973, the petitioner and a traveling companion, Floyd
Allen, while hitchhiking north in Florida were picked up by Fred
Simmons and Bob Moore. Their car broke down, but they continued
north after Simmons purchased another vehicle with some of the cash
he was carrying. While still in Florida, they picked up another
hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he
was let out about 11 p.m. Page 428 U. S. 159 A short time later, the four men interrupted their journey for a
rest stop along the highway. The next morning the bodies of Simmons
and Moore were discovered in a ditch nearby.

															On November 23, after reading about the shootings in an Atlanta
newspaper, Weaver communicated with the Gwinnett County police and
related information concerning the journey with the victims,
including a description of the car. The next afternoon, the
petitioner and Allen, while in Simmons' car, were arrested in
Asheville, N.C. In the search incident to the arrest a .25-caliber
pistol, later shown to be that used to kill Simmons and Moore, was
found in the petitioner's pocket. After receiving the warnings
required by Miranda v. Arizona, 384 U.
S. 436 (1966), and signing a written waiver of his
rights, the petitioner signed a statement in which he admitted
shooting, then robbing Simmons and Moore. He justified the slayings
on grounds of self-defense. The next day, while being transferred
to Lawrenceville, Ga., the petitioner and Allen were taken to the
scene of the shootings. Upon arriving there, Allen recounted the
events leading to the slayings. His version of these events was as
follows: After Simmons and Moore left the car, the petitioner
stated that he intended to rob them. The petitioner then took his
pistol in hand and positioned himself on the car to improve his
aim. As Simmons and Moore came up an embankment toward the car, the
petitioner fired three shots and the two men fell near a ditch. The
petitioner, at close range, then fired a shot into the head of
each. He robbed them of valuables and drove away with Allen.

															A medical examiner testified that Simmons died from a bullet
wound in the eye, and that Moore died from bullet wounds in the
cheek and in the back of the head. He further testified that both
men had several bruises Page 428 U. S. 160 and abrasions about the face and head which probably were
sustained either from the fall into the ditch or from being dragged
or pushed along the embankment. Although Allen did not testify, a
police detective recounted the substance of Allen's statements
about the slayings, and indicated that, directly after Allen had
made these statements, the petitioner had admitted that Allen's
account was accurate. The petitioner testified in his own defense.
He confirmed that Allen had made the statements described by the
detective, but denied their truth or ever having admitted to their
accuracy. He indicated that he had shot Simmons and Moore because
of fear and in self-defense, testifying they had attacked Allen and
him, one wielding a pipe and the other a knife. [ Footnote 1 ]

															The trial judge submitted the murder charges to the jury on both
felony murder and nonfelony murder theories. He also instructed on
the issue of self-defense, but declined to instruct on
manslaughter. He submitted the robbery case to the jury on both an
armed robbery theory and on the lesser included offense of robbery
by intimidation. The jury found the petitioner guilty of two counts
of armed robbery and two counts of murder.

															At the penalty stage, which took place before the same jury,
neither the prosecutor nor the petitioner's lawyer offered any
additional evidence. Both counsel, however, made lengthy arguments
dealing generally with the propriety of capital punishment under
the circumstances and with the weight of the evidence of guilt. The
trial judge instructed the jury that it could recommend either a
death sentence or a life prison sentence on each count. Page 428 U. S. 161 The judge further charged the jury that, in determining what
sentence was appropriate, the jury was free to consider the facts
and circumstances, if any, presented by the parties in mitigation
or aggravation.

															Finally, the judge instructed the jury that it "would not be
authorized to consider [imposing] the penalty of death" unless it
first found beyond a reasonable doubt one of these aggravating
circumstances;

															"One -- That the offense of murder was committed while the
offender was engaged in the commission of two other capital
felonies, to-wit the armed robbery of [Simmons and Moore]."

															"Two -- That the offender committed the offense of murder for
the purpose of receiving money and the automobile described in the
indictment."

															"Three -- The offense of murder was outrageously and wantonly
vile, horrible and inhuman, in that they [ sic ] involved
the depravity of [the] mind of the defendant."

															Tr. 476-477. Finding the first and second of these
circumstances, the jury returned verdicts of death on each
count.

															The Supreme Court of Georgia affirmed the convictions and the
imposition of the death sentences for murder. 233 Ga. 117, 210 S.E.2d 659 (1974). After reviewing the trial transcript and the record,
including the evidence, and comparing the evidence and sentence in
similar cases in accordance with the requirements of Georgia law,
the court concluded that, considering the nature of the crime and
the defendant, the sentences of death had not resulted from
prejudice or any other arbitrary factor and were not excessive or
disproportionate to the penalty applied in similar cases. [ Footnote 2 ] The death Page 428 U. S. 162 sentences imposed for armed robbery, however, were vacated on
the grounds that the death penalty had rarely been imposed in
Georgia for that offense, and that the jury improperly considered
the murders as aggravating circumstances for the robberies after
having considered the armed robberies as aggravating circumstances
for the murders. Id. at 127, 210 S.E.2d at 667.

															We granted the petitioner's application for a writ of certiorari
limited to his challenge to the imposition of the death sentences
in this case as "cruel and unusual" punishment in violation of the
Eighth and the Fourteenth Amendments. 423 U.S. 1082 (1976). II Before considering the issues presented, it is necessary to
understand the Georgia statutory scheme for the imposition of the
death penalty. [ Footnote 3 ] The
Georgia statute, as amended after our decision in Furman v.
Georgia, 408 U. S. 238 (1972), retains the death penalty for six categories of crime:
murder, [ Footnote 4 ] kidnaping
for ransom or where Page 428 U. S. 163 the victim is harmed, armed robbery, [ Footnote 5 ] rape, treason, and aircraft hijacking.
[ Footnote 6 ] Ga.Code Ann. §§
26-1101, 26-1311 26-1902, 26-2001, 26-2201, 26-3301 (1972). The
capital defendant's guilt or innocence is determined in the
traditional manner, either by a trial judge or a jury, in the first
stage of a bifurcated trial.

															If trial is by jury, the trial judge is required to charge
lesser included offenses when they are supported by any view of the
evidence. Sims v. State, 203 Ga. 668, 47 S.E.2d 862
(1948). See Linder v. State, 132 Ga.App. 624, 625, 208 S.E.2d
630 , 631 (1974). After a verdict, finding, or plea of guilty to
a capital crime, a presentence hearing is conducted before whoever
made the determination of guilt. The sentencing procedures are
essentially the same in both bench and jury trials. At the
hearing:

															"[T]he judge [or jury] shall hear additional evidence in
extenuation, mitigation, and aggravation of punishment, including
the record of any prior criminal convictions and pleas of guilty or
pleas of nolo contendere of the defendant, or the absence
of any prior conviction and pleas: Provided, however, that Page 428 U. S. 164 only such evidence in aggravation as the State has made known to
the defendant prior to his trial shall be admissible. The judge [or
jury] shall also hear argument by the defendant or his counsel and
the prosecuting attorney . . . regarding the punishment to be
imposed."

															§ 27-2503 (Supp. 1975). The defendant is accorded substantial
latitude as to the types of evidence that he may introduce. See
Brown v. State, 235 Ga. 64, 647-650, 220 S.E.2d
922 , 925-926 (1975). [ Footnote
7 ] Evidence considered during the guilt stage may be considered
during the sentencing stage without being resubmitted. Eberheart v. State, 232 Ga. 247, 253, 206 S.E.2d 12 ,
17 (1974). [ Footnote 8 ]

															In the assessment of the appropriate sentence to be imposed, the
judge is also required to consider or to include in his
instructions to the jury

															"any mitigating circumstances or aggravating circumstances
otherwise authorized by law and any of [10] statutory aggravating
circumstances which may be supported by the evidence. . . ."

															§ 27-2534.1(b) (Supp. 1975). The scope of the nonstatutory
aggravating or mitigating circumstances is not delineated in the
statute. Before a convicted defendant may be sentenced to death,
however, except in cases of treason or aircraft hijacking, the
jury, or the trial judge in cases tried without a jury, must find
beyond a reasonable doubt one of the 10 aggravating circumstances
specified Page 428 U. S. 165 in the statute. [ Footnote 9 ]
The sentence of death may be imposed only if the jury (or judge)
finds one of the statutory aggravating circumstances and then
elects to Page 428 U. S. 166 impose that sentence. § 23102 (Supp. 1975). If the verdict is
death, the jury or judge must specify the aggravating
circumstance(s) found. § 27-253.1(c) (Supp. 1975). In jury cases,
the trial judge is bound by the jury's recommended sentence. §§
23102, 27-2514 (Supp. 1975).

															In addition to the conventional appellate process available in
all criminal cases, provision is made for special expedited direct
review by the Supreme Court of Georgia of the appropriateness of
imposing the sentence of death in the particular case. The court is
directed to consider "the punishment as well as any errors
enumerated by way of appeal," and to determine:

															"(1) Whether the sentence of death was imposed Page 428 U. S. 167 under the influence of passion, prejudice, or any other
arbitrary factor, and"

															"(2) Whether, in cases other than treason or aircraft hijacking,
the evidence supports the jury's or judge's finding of a statutory
aggravating circumstance as enumerated in section 27.2534.1(b),
and"

															"(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant."

															§ 27-2537 (Supp. 1975). If the court affirms a death sentence,
it is required to include in its decision reference to similar
cases that it has taken into consideration. § 27-2537(e) (Supp.
1075). [ Footnote 10 ]

															A transcript and complete record of the trial, as well as a
separate report by the trial judge, are transmitted to the court
for its use in reviewing the sentence. § 27-2537(a) (Supp. 1975).
The report is in the form of a 6 1/2-page questionnaire designed to
elicit information about the defendant, the crime, and the
circumstances of the trial. It requires the trial judge to
characterize the trial in several ways designed to test for
arbitrariness and disproportionality of sentence. Included in the
report are responses to detailed questions concerning the quality
of the defendant's representation, whether race played a role in
the trial, and, whether, in the trial court's judgment, there was
any doubt about Page 428 U. S. 168 the defendant' guilt or the appropriateness of the sentence. A
copy of the report is served upon defense counsel. Under its
special review authority, the court may either affirm the death
sentence or remand the case for resentencing. In cases in which the
death sentence is affirmed, there remains the possibility of
executive clemency. [ Footnote
11 ] III We address initially the basic contention that the punishment of
death for the crime of murder is, under all circumstances, "cruel
and unusual" in violation of the Eighth and Fourteenth Amendments
of the Constitution. In 428 U. S. we
will consider the sentence of death imposed under the Georgia
statutes at issue in this case.

															The Court, on a number of occasions, has both assumed and
asserted the constitutionality of capital punishment. In several
cases, that assumption provided a necessary foundation for the
decision, as the Court was asked to decide whether a particular
method of carrying out a capital sentence would be allowed to stand
under the Eighth Amendment. [ Footnote 12 ] But until Furman v. Georgia, 408 U. S. 238 (1972), the Court never confronted squarely the fundamental claim
that the punishment of death always, regardless of the enormity of
the offense or the procedure followed in imposing the sentence, is
cruel and Page 428 U. S. 169 unusual punishment in violation of the Constitution. Although
this issue was presented and addressed in Furman, it was
not resolved by the Court. Four Justices would have held that
capital punishment is not unconstitutional per se; [ Footnote 13 ] two Justices would have
reached the opposite conclusion; [ Footnote 14 ] and three Justices, while agreeing that the
statutes then before the Court were invalid as applied, left open
the question whether such punishment may ever be imposed. [ Footnote 15 ] We now hold that the
punishment of death does not invariably violate the
Constitution. A The history of the prohibition of "cruel and unusual" punishment
already has been reviewed at length. [ Footnote 16 ] The phrase first appeared in the English
Bill of Rights of 1689, which was drafted by Parliament at the
accession of William and Mary. See Granucci, "Nor Cruel
and Unusual Punishments Inflicted:" The Original Meaning, 57
Calif.L.Rev. 839, 852-853 (1969). The English version appears to
have been directed against punishments unauthorized by statute and
beyond the jurisdiction of the sentencing court, as well as those
disproportionate to the offense involved. Id. at 860.
The Page 428 U. S. 170 American draftsmen, who adopted the English phrasing in drafting
the Eighth Amendment, were primarily concerned, however, with
proscribing "tortures" and other "barbarous" methods of punishment. Id. at 842. [ Footnote
17 ]

															In the earliest cases raising Eighth Amendment claims, the Court
focused on particular methods of execution to determine whether
they were too cruel to pass constitutional muster. The
constitutionality of the sentence of death itself was not at issue,
and the criterion used to evaluate the mode of execution was its
similarity to "torture" and other "barbarous" methods. See
Wilkerson v. Utah, 99 U. S. 130 , 99 U. S. 136 (1879) ("[I]t is safe to affirm that punishments of torture . . .
and all others in the same line of unnecessary cruelty, are
forbidden by that amendment. . . ."); In re Kemmler, 136 U. S. 436 , 136 U. S. 447 (1890) ("Punishments are cruel when they involve torture or a
lingering death. . . ."). See also Louisiana ex rel. Francis v.
Resweber, 329 U. S. 459 , 329 U. S. 464 (1947) (second attempt at electrocution found not to violate Page 428 U. S. 171 Eighth Amendment, since failure of initial execution attempt was
"an unforeseeable accident" and "[t] here [was] no purpose to
inflict unnecessary pain, nor any unnecessary pain involved in the
proposed execution").

															But the Court has not confined the prohibition embodied in the
Eighth Amendment to "barbarous" methods that were generally
outlawed in the 18th century. Instead, the Amendment has been
interpreted in a flexible and dynamic manner. The Court early
recognized that "a principle to be vital must be capable of wider
application than the mischief which gave it birth." Weems v.
United States, 217 U. S. 349 , 217 U. S. 373 (1910). Thus, the Clause forbidding

															"cruel and unusual' punishments 'is not fastened to the
obsolete, but may acquire meaning as public opinion becomes
enlightened by a humane justice." Id. at 217 U. S. 378 . See also Furman v. Georgia, 408 U.S. at 408 U. S.
429 -430 (POWELL, J., dissenting); Trop v.
Dulles, 356 U. S. 86 , 356 U. S.
100 -101 (1958) (plurality opinion).

															In Weems, the Court addressed the constitutionality of
the Philippine punishment of cadena temporal for the crime
of falsifying an official document. That punishment included
imprisonment for at least 12 years and one day, in chains, at hard
and painful labor; the loss of many basic civil rights; and
subjection to lifetime surveillance. Although the Court
acknowledged the possibility that "the cruelty of pain" may be
present in the challenged punishment, 217 U.S. at 217 U. S. 366 ,
it did not rely on that factor, for it rejected the proposition
that the Eighth Amendment reaches only punishments that are
"inhuman and barbarous, torture and the like." Id. at 217 U. S. 368 .
Rather, the Court focused on the lack of proportion between the
crime and the offense:

															"Such penalties for such offenses amaze those who have formed
their conception of the relation of a state to even its offending
citizens from the practice Page 428 U. S. 172 of the American commonwealths, and believe that it is a precept
of justice that punishment for crime should be graduated and
proportioned to offense." Id. at 217 U. S.
366 -367. [ Footnote
18 ] Later, in Trop v. Dulles, supra, the Court
reviewed the constitutionality of the punishment of
denationalization imposed upon a soldier who escaped from an Army
stockade and became a deserter for one day. Although the concept of
proportionality was not the basis of the holding, the plurality
observed in dicta that "[f]ines, imprisonment and even execution
may be imposed depending upon the enormity of the crime." 356 U.S.
at 356 U. S.
100 .

															The substantive limits imposed by the Eighth Amendment on what
can be made criminal and punished were discussed in Robinson v.
California, 370 U. S. 660 (1962). The Court found unconstitutional a state statute that made
the status of being addicted to a narcotic drug a criminal offense.
It held, in effect, that it is "cruel and unusual" to impose any
punishment at all for the mere status of addiction. The cruelty in
the abstract of the actual sentence imposed was irrelevant: "Even
one day in prison would be a cruel and unusual punishment for the crime' of having a common cold." Id. at 370 U. S. 667 .
Most recently, in Furman v. Georgia, supra, three
Justices, in separate concurring opinions, found the Eighth
Amendment applicable to procedures employed to select convicted
defendants for the sentence of death. It is clear from the foregoing precedents that the Page 428 U. S. 173 Eighth Amendment has not been regarded as a static concept. As
Mr. Chief Justice Warren said, in an oft-quoted phrase, "[t]he
Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society." Trop v.
Dulles, supra at 356 U. S. 101 . See also Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Cf. Robinson v. California, supra at 370 U. S. 666 .
Thus, an assessment of contemporary values concerning the
infliction of a challenged sanction is relevant to the application
of the Eighth Amendment. As we develop below more fully, see
infra at 428 U. S.
175 -176, this assessment does not call for a subjective
judgment. It requires, rather, that we look to objective indicia
that reflect the public attitude toward a given sanction.

															But our cases also make clear that public perceptions of
standards of decency with respect to criminal sanctions are not
conclusive. A penalty also must accord with "the dignity of man,"
which is the "basic concept underlying the Eighth Amendment." Trop v. Dulles, supra at 356 U. S. 100 (plurality opinion). This means, at least, that the punishment not
be "excessive." When a form of punishment in the abstract (in this
case, whether capital punishment may ever be imposed as a sanction
for murder), rather than in the particular (the propriety of death
as a penalty to be applied to a specific defendant for a specific
crime), is under consideration, the inquiry into "excessiveness"
has two aspects. First, the punishment must not involve the
unnecessary and wanton infliction of pain. Furman v. Georgia,
supra, at 408 U. S.
392 -393 (BURGER, C.J., dissenting). See Wilkerson v.
Utah, 99 U.S. at 99 U. S. 136 ; Weems v. United States, supra, at 217 U. S. 381 .
Second, the punishment must not be grossly out of proportion to the
severity of the crime. Trop v. Dulles, supra, at 356 U. S. 100 (plurality opinion) (dictum); Weems v. United States,
supra, at 217 U. S.
367 . Page 428 U. S. 174 B Of course, the requirements of the Eighth Amendment must be
applied with an awareness o the limited role to be played by the
courts. This does not mean that judges have no role to play, for
the Eighth Amendment is a restraint upon the exercise of
legislative power.

															"Judicial review, by definition, often involves a conflict
between judicial and legislative judgment as to what the
Constitution means or requires. In this respect, Eighth Amendment
cases come to us in no different posture. It seems conceded by all
that the Amendment imposes some obligations on the judiciary to
judge the constitutionality of punishment, and that there are
punishments that the Amendment would bar whether legislatively
approved or not." Furman v. Georgia, 408 U.S. at 408 U. S.
313 -314 (WHITE, J., concurring). See also id. at 408 U. S. 433 (POWELL, J., dissenting). [ Footnote 19 ] But, while we have an obligation to insure
that constitutional Page 428 U. S. 175 bound are not overreached, we may not act as judges as we might
as legislators.

															"Courts are not representative bodies. They are not designed to
be a good reflex of a democratic society. Their judgment is best
informed, and therefore most dependable, within narrow limits.
Their essential quality is detachment, founded on independence.
History teaches that the independence of the judiciary is
jeopardized when courts become embroiled in the passions of the day
and assume primary responsibility in choosing between competing
political, economic and social pressures." Dennis v. United States, 341 U.
S. 494 , 341 U. S. 525 (1951) (Frankfurter, J., concurring in affirmance of judgment).
[ Footnote 20 ]

															Therefore, in assessing a punishment selected by a
democratically elected legislature against the constitutional
measure, we presume its validity. We may not require the
legislature to select the least severe penalty possible so long as
the penalty selected is not cruelly inhumane or disproportionate to
the crime involved. And a heavy burden rests on those who would
attack the judgment of the representatives of the people.

															This is true in part because the constitutional test is
intertwined with an assessment of contemporary standards and the
legislative judgment weighs heavily in ascertaining such standards.
"[I]n a democratic society, legislatures, not courts, are
constituted to respond to the will and consequently the moral
values of the people." Page 428 U. S. 176 Furman v. Georgia, supra at 408 U. S. 383 (BURGER, C.J., dissenting). The deference we owe to the decisions
of the state legislatures under our federal system, 408 U.S. at 408 U. S.
465 -470 (REHNQUIST, J., dissenting), is enhanced where
the specification of punishments is concerned, for "these are
peculiarly questions of legislative policy." Gore v. United
States, 357 U. S. 386 , 357 U. S. 393 (1968). Cf. Robinson v. California, 370 U.S. at 370 U. S.
664 -665; Trop v. Dulles, 356 U.S. at 356 U. S. 103 (plurality opinion); In re Kemmler, 136 U.S. at 136 U. S. 447 .
Caution is necessary lest this Court become,

															"under the aegis of the Cruel and Unusual Punishment Clause, the
ultimate arbiter of the standards of criminal responsibility . . .
throughout the country." Powell v. Texas, 392 U. S. 514 , 392 U. S. 533 (1968) (plurality opinion). A decision that a given punishment is
impermissible under the Eighth Amendment cannot be reversed short
of a constitutional amendment. The ability of the people to express
their preference through the normal democratic processes, as well
as through ballot referenda, is shut off. Revisions cannot be made
in the light of further experience. See Furman v. Georgia,
supra at 408 U. S.
461 -4462 (POWELL, J., dissenting). C In the discussion to this point, we have sought to identify the
principles and considerations that guide a court in addressing an
Eighth Amendment claim. We now consider specifically whether the
sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the
Constitution. We note first that history and precedent strongly
support a negative answer to this question.

															The imposition of the death penalty for the crime of murder has
a long history of acceptance both in the United States and in
England. The common law rule Page 428 U. S. 177 imposed a mandatory death sentence on all convicted murderers. McGautha v. California, 402 U. S. 183 , 402 U. S.
197 -198 (1971). And the penalty continued to be used
into the 20th century by most American States, although the breadth
of the common law rule was diminished, initially by narrowing the
class of murders to be punished by death and subsequently by
widespread adoption of laws expressly granting juries the
discretion to recommend mercy. Id. at 402 U. S.
199 -200. See Woodson v. North Carolina, post at 428 U. S.
289 -292.

															It is apparent from the text of the Constitution itself that the
existence of capital punishment was accepted by the Framers. At the
time the Eighth Amendment was ratified, capital punishment was a
common sanction in every State. Indeed, the First Congress of the
United States enacted legislation providing death as the penalty
for specified crimes. C. 9, 1 Stat. 112 (1790). The Fifth
Amendment, adopted at the same time as the Eighth, contemplated the
continued existence of the capital sanction by imposing certain
limits on the prosecution of capital cases:

															"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury . . . ; nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb; . . . nor be deprived
of life, liberty, or property, without due process of law. . .
."

															And the Fourteenth Amendment, adopted over three-quarters of a
century later, similarly contemplates the existence of the capital
sanction in providing that no State shall deprive any person of
"life, liberty, or property" without due process of law.

															For nearly two centuries, this Court, repeatedly and Page 428 U. S. 178 often expressly, has recognized that capital punishment is not
invalid per se. In Wilkerson v. Utah, 99 U.S. at 99 U. S.
134 -135, where the Court found no constitutional
violation in inflicting death by public shooting, it said:

															"Cruel and unusual punishments are forbidden by the
Constitution, but the authorities referred to are quite sufficient
to show that the punishment of shooting as a mode of executing the
death penalty for the crime of murder in the first degree is not
included in that category within the meaning of the eighth
amendment."

															Rejecting the contention that death by electrocution was "cruel
and unusual," the Court in In re Kemmler, supra at 136 U. S. 447 ,
reiterated:

															"[T]he punishment of death is not cruel within the meaning of
that word as used in the Constitution. It implies there something
inhuman and barbarous, something more than the mere extinguishment
of life."

															Again, in Louisiana ex rel. Francis v. Resweber, 329
U.S. at 329 U. S. 464 ,
the Court remarked:

															"The cruelty against which the Constitution protects a convicted
man is cruelty inherent in the method of punishment, not the
necessary suffering involved in any method employed to extinguish
life humanely."

															And in Trop v. Dulles, 356 U.S. at 356 U. S. 99 ,
Mr. Chief Justice Warren, for himself and three other Justices,
wrote:

															"Whatever the arguments may be against capital punishment, both
on moral grounds and in terms of accomplishing the purposes of
punishment . . . , the death penalty has been employed throughout
our history, and, in a day when it is still widely accepted, it
cannot be said to violate the constitutional concept of cruelty.
" Page 428 U. S. 179 Four years ago, the petitioners in Furman and its
companion cases predicated their argument primarily upon the
asserted proposition that standards of decency had evolved to the
point where capital punishment no longer could be tolerated. The
petitioners in those cases said, in effect, that the evolutionary
process had come to an end, and that standards of decency required
that the Eighth Amendment be construed finally as prohibiting
capital punishment for any crime, regardless of its depravity and
impact on society. This view was accepted by two Justices.
[ Footnote 21 ] Three other
Justices were unwilling to go so far; focusing on the procedures by
which convicted defendants were selected for the death penalty,
rather than on the actual punishment inflicted, they joined in the
conclusion that the statutes before the Court were constitutionally
invalid. [ Footnote 22 ]

															The petitioners in the capital cases before the Court today
renew the "standards of decency" argument, but developments during
the four years since Furman have undercut substantially
the assumptions upon which their argument rested. Despite the
continuing debate, dating back to the 19th century, over the
morality and utility of capital punishment, it is now evident that
a large proportion of American society continues to regard it as an
appropriate and necessary criminal sanction.

															The most marked indication of society's endorsement of the death
penalty for murder is the legislative response to Furman. The legislatures of at least 35 States [ Footnote 23 ] have enacted new statutes that provide
for the Page 428 U. S. 180 death penalty for at least some crimes that result in the death
of another person. And the Congress of the United States, in 1974,
enacted a statute providing the death penalty for aircraft piracy
that results in death. [ Footnote
24 ] These recently adopted statutes have attempted to address
the concerns expressed by the Court in Furman primarily
(i) by specifying the factors to be weighed and the procedures to
be followed in deciding when to impose a capital sentence, or (ii)
by making the death penalty mandatory for specified crimes. But all
of the post- Furman statutes make clear that capital
punishment Page 428 U. S. 181 itself has not been rejected by the elected representatives of
the people.

															In the only state-wide referendum occurring since Furman and brought to our attention, the people of
California adopted a constitutional amendment that authorized
capital punishment, in effect negating a prior ruling by the
Supreme Court of California in People v.
Anderson, 6 Cal. 3d 628 ,
493 P.2d 880, cert. denied, 406 U.S. 958 (1972), that the
death penalty violated the California Constitution. [ Footnote 25 ]

															The jury also is a significant and reliable objective index of
contemporary values, because it is so directly involved. See
Furman v. Georgia, 408 U.S. at 408 U. S.
439 -440 (POWELL, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1 (1966).
The Court has said that

															"one of the most important functions any jury can perform in
making . . . a selection [between life imprisonment and death for a
defendant convicted in a capital case] is to maintain a link
between contemporary community values and the penal system." Witherspoon v. Illinois, 391 U.
S. 510 , 391 U. S. 519 n. 15 (1968). It may be true that evolving standards have
influenced juries in Page 428 U. S. 182 recent decades to be more discriminating in imposing the
sentence of death. [ Footnote
26 ] But the relative infrequency of jury verdicts imposing the
death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to
impose the sentence may well reflect the humane feeling that this
most irrevocable of sanctions should be reserved for a small number
of extreme cases. See Furman v. Georgia, supra at 408 U. S. 388 (BURGER, C.J., dissenting). Indeed, the actions of juries in many
States since Furman are fully compatible with the
legislative judgments, reflected in the new statutes, as to the
continued utility and necessity of capital punishment in
appropriate cases. At the close of 1974, at least 254 persons had
been sentenced to death since Furman, [ Footnote 27 ] and, by the end of March,
1976, more than 460 persons were subject to death sentences.

															As we have seen, however, the Eighth Amendment demands more than
that a challenged punishment be acceptable to contemporary society.
The Court also must ask whether it comports with the basic concept
of human dignity at the core of the Amendment. Trop v.
Dulles, 356 U.S. at 356 U. S. 100 (plurality opinion). Although we cannot "invalidate a category of
penalties because we deem less severe penalties adequate to serve
the ends of Page 428 U. S. 183 penology," Furman v. Georgia, supra, at 408 U. S. 451 (POWELL, J., dissenting), the sanction imposed cannot be so totally
without penological justification that it results in the gratuitous
infliction of suffering. Cf. Wilkerson v. Utah, 99 U.S. at 99 U. S.
135 -136; In re Kemmler, 136 U.S. at 136 U. S.
447 .

															The death penalty is said to serve two principal social
purposes: retribution and deterrence of capital crimes by
prospective offenders. [ Footnote
28 ]

															In part, capital punishment is an expression of society's moral
outrage at particularly offensive conduct. [ Footnote 29 ] This function may be unappealing to
many, but it is essential in an ordered society that asks its
citizens to rely on legal processes, rather than self-help, to
vindicate their wrongs.

															"The instinct for retribution is part of the nature of man, and
channeling that instinct in the administration of criminal justice
serves an important purpose in promoting the stability of a society
governed by law. When people begin to believe that organized
society is unwilling or unable to impose upon criminal offenders
the punishment they 'deserve,' then there are sown the seeds of
anarchy -- of self-help, vigilante justice, and lynch law." Furman v. Georgia, supra at 408 U. S. 308 (STEWART, J., concurring). "Retribution is no longer the dominant
objective of the criminal law," Williams v. New York, 337 U. S. 241 , 337 U. S. 248 (1949), but neither is it a forbidden objective, nor one
inconsistent with our respect for the dignity of men. Page 428 U. S. 184 Furman v. Georgia, 408 U.S. at 408 U. S.
394 -395 (BURGER, C. dissenting); id. at 408 U. S.
452 -454 (POWELL, J., dissenting); Powell v.
Texas, 392 U.S. at 392 U. S. 531 , 392 U. S.
535 -536 (plurality opinion). Indeed, the decision that
capital punishment may be the appropriate sanction in extreme cases
is an expression of the community's belief that certain crimes are
themselves so grievous an affront to humanity that the only
adequate response may be the penalty of death. [ Footnote 30 ] Statistical attempts to
evaluate the worth of the death penalty as a deterrent to crimes by
potential offenders have occasioned a great deal of debate.
[ Footnote 31 ] The result Page 428 U. S. 185 simply have been inconclusive. As one opponent of capital
punishment has said:

															"[A]fter all possible inquiry, including the probing of all
possible methods of inquiry, we do not know, and, for systematic
and easily visible reasons, cannot know, what the truth about this
'deterrent' effect may be. . . . "

															"The inescapable flaw is . . . that social conditions in any
state are not constant through time, and that social conditions are
not the same in any two states. If an effect were observed (and the
observed effects, one way or another, are not large), then one
could not at all tell whether any of this effect is attributable to
the presence or absence of capital punishment. A 'scientific' --
that is to say, a soundly based -- conclusion is simply impossible,
and no methodological path out of this tangle suggests itself."

															C. Black, Capital Punishment: The Inevitability of Caprice and
Mistake 226 (1974).

															Although some of the studies suggest that the death penalty may
not function as a significantly greater deterrent than lesser
penalties, [ Footnote 32 ]
there is no convincing empirical evidence either supporting or
refuting this view. We may nevertheless assume safely that there
are murderers, such as those who act in passion, for whom the
threat of death has little or no deterrent effect. But for many
others, the death penalty undoubtedly is a significant Page 428 U. S. 186 deterrent. There are carefully contemplated murders, such as
murder for hire, where the possible penalty of death may well enter
into the cold calculus that precedes the decision to act. [ Footnote 33 ] And there are some
categories of murder, such as murder by a life prisoner, where
other sanctions may not be adequate. [ Footnote 34 ]

															The value of capital punishment as a deterrent of crime is a
complex factual issue the resolution of which properly rests with
the legislatures, which can evaluate the results of statistical
studies in terms of their own local conditions and with a
flexibility of approach that is not available to the courts. Furman v. Georgia, supra at 408 U. S.
403 -405 (BURGER, C.J., dissenting). Indeed, many of the
post- Furman statutes reflect just such a responsible
effort to define those crimes and those criminals for which capital
punishment is most probably an effective deterrent.

															In sum, we cannot say that the judgment of the Georgia
Legislature that capital punishment may be necessary in some cases
is clearly wrong. Considerations of federalism, as well as respect
for the ability of a legislature Page 428 U. S. 187 to evaluate, in terms of its particular State, the moral
consensus concerning the death penalty and its social utility as a
sanction, require us to conclude, in the absence of more convincing
evidence, that the infliction of death as a punishment for murder
is not without justification, and thus is not unconstitutionally
severe.

															Finally, we must consider whether the punishment of death is
disproportionate in relation to the crime for which it is imposed.
There is no question that death, as a punishment, is unique in its
severity and irrevocability. Furman v. Georgia, 408 U.S.
at 408 U. S.
286 -291 (BRENNAN, J., concurring); id. at 408 U. S. 306 (STEWART, J., concurring). When a defendant's life is at stake, the
Court has been particularly sensitive to insure that every
safeguard is observed. Powell v. Alabama, 287 U. S.
45 , 287 U. S. 71 (1932); Reid v. Covert, 354 U. S. 1 , 354 U. S. 77 (1957) (Harlan, J., concurring in result). But we are concerned
here only with the imposition of capital punishment for the crime
of murder, and, when a life has been taken deliberately by the
offender, [ Footnote 35 ] we
cannot say that the punishment is invariably disproportionate to
the crime. It is an extreme sanction, suitable to the most extreme
of crimes.

															We hold that the death penalty is not a form of punishment that
may never be imposed, regardless of the circumstances of the
offense, regardless of the character of the offender, and
regardless of the procedure followed in reaching the decision to
impose it. IV We now consider whether Georgia may impose the death penalty on
the petitioner in this case. Page 428 U. S. 188 A While Furman did not hold that the infliction of the
death penalty per se violates the Constitution's ban on
cruel and unusual punishments, it did recognize that the penalty of
death is different in kind from any other punishment imposed under
our system of criminal justice. Because of the uniqueness of the
death penalty, Furman held that it could not be imposed
under sentencing procedures that created a substantial risk that it
would be inflicted in an arbitrary and capricious manner. MR.
JUSTICE WHITE concluded that

															"the death penalty is exacted with great infrequency even for
the most atrocious crimes, and . . . there is no meaningful basis
for distinguishing the few cases in which it is imposed from the
many cases in which it is not."

															408 U.S. at 408 U. S. 313 (concurring). Indeed, the death sentences examined by the Court in Furman were

															"cruel and unusual in the same way that being struck by
lightning is cruel and unusual. For, of all the people convicted of
[capital crimes], many just as reprehensible as these, the
petitioners [in Furman were] among a capriciously selected
random handful upon whom the sentence of death has in fact been
imposed. . . . [T]he Eighth and Fourteenth Amendments cannot
tolerate the infliction of a sentence of death under legal systems
that permit this unique penalty to be so wantonly and so freakishly
imposed." Id. at 408 U. S.
309 -310 (STEWART, J., concurring). [ Footnote 36 ] Page 428 U. S. 189 Furman mandates that, where discretion is afforded a
sentencing body on a matter so grave as the determination of
whether a human life should be taken or spared, that discretion
must be suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action.

															It is certainly not a novel proposition that discretion in the
area of sentencing be exercised in an informed manner. We have long
recognized that,

															"[f]or the determination of sentences, justice generally
requires . . that there be taken into account the circumstances of
the offense, together with the character and propensities of the
offender." Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S.
51 , 302 U. S. 55 (1937). See also Williams v. Oklahoma, 358 U.
S. 576 , 358 U.S.
585 (1959); Williams v. New York, 337 U.S. at 337 U. S. 247 .
[ Footnote 37 ] Otherwise,
"the system cannot function in a consistent and a rational manner."
American Bar Association Project on Standards for Criminal Justice,
Sentencing Alternatives and Procedures § 4.1(a), Commentary, p. 201
(App.Draft 1968). See also President's Commission on Law
Enforcement and Administration of Justice, The Challenge of Crime
in a Free Society 144 (1967); ALI, Model Penal Code § 7.07, Comment
1, pp. 52-53 (Tent.Draft No. 2, 1954). [ Footnote 38 ] Page 428 U. S. 190 The cited studies assumed that the trial judge would be the
sentencing authority. If an experienced trial judge, who daily
faces the difficult task of imposing sentences, has a vital need
for accurate information about a defendant and the crime he
committed in order to be able to impose a rational sentence in the
typical criminal case, then accurate sentencing information is an
indispensable prerequisite to a reasoned determination of whether a
defendant shall live or die by a jury of people who may never
before have made a sentencing decision.

															Jury sentencing has been considered desirable in capital cases
in order

															"to maintain a link between contemporary community values and
the penal system -- a link without which the determination of
punishment could hardly reflect 'the evolving standards of decency
that mark the progress of a maturing society.' [ Footnote 39 ]"

															But it creates special problems. Much of the information that is
relevant to the sentencing decision may have no relevance to the
question of guilt, or may even be extremely prejudicial to a fair
determination of that question. [ Footnote 40 ] This problem, however, is scarcely
insurmountable. Those who have studied the question suggest that a
bifurcated procedure -- one in which the Page 428 U. S. 191 question of sentence is not considered until the determination
of guilt has been made -- is the best answer. The drafters of the
Model Penal Code concluded:

															"[If a unitary proceeding is used], the determination of the
punishment must be based on less than all the evidence that has a
bearing on that issue, such, for example, as a previous criminal
record of the accused, or evidence must be admitted on the ground
that it is relevant to sentence, though it would be excluded as
irrelevant or prejudicial with respect to guilt or innocence alone.
Trial lawyers understandably have little confidence in a solution
that admits the evidence and trusts to an instruction to the jury
that it should be considered only in determining the penalty and
disregarded in assessing guilt."

															". . . The obvious solution . . . is to bifurcate the
proceeding, abiding strictly by the rules of evidence until and
unless there is a conviction, but, once guilt has been determined,
opening the record to the further information that is relevant to
sentence. This is the analogue of the procedure in the ordinary
case when capital punishment is not in issue; the court conducts a
separate inquiry before imposing sentence."

															ALI, Model Penal Code § 201.6, Comment 5, pp. 74-75 (Tent.Draft
No. 9, 1959). See also Spencer v. Texas, 385 U.
S. 554 , 385 U. S.
567 -569 (1967); Report of the Royal Commission on
Capital Punishment, 1949-1953, Cmd. 8932, �� 555, 574; Knowlton,
Problems of Jury Discretion in Capital Cases, 101 U.Pa.L.Rev. 1099,
1135-1136 (1953). When a human life is at stake, and when the jury
must have information prejudicial to the question of guilt but
relevant to the question of penalty in order to impose a rational
sentence, a bifurcated Page 428 U. S. 192 system is more likely to ensure elimination of the
constitutional deficiencies identified in Furman. [ Footnote 41 ]

															But the provision of relevant information under fair procedural
rules is not alone sufficient to guarantee that the information
will be properly used in the imposition of punishment, especially
if sentencing is performed by a jury. Since the members of a jury
will have had little, if any, previous experience in sentencing,
they are unlikely to be skilled in dealing with the information
they are given. See American Bar Association Project on
Standards for Criminal Justice, Sentencing Alternatives and
Procedures, § 1.1(b), Commentary, pp. 467 (Approved Draft 1968);
President's Commission on Law Enforcement and Administration of
Justice: The Challenge of Crime in a Free Society, Task Force
Report: The Courts 26 (1967). To the extent that this problem is
inherent in jury sentencing, it may not be totally correctable. It
seems clear, however, that the problem will be alleviated if the
jury is given guidance regarding the factors about the crime and
the defendant that the State, representing organized society, deems
particularly relevant to the sentencing decision.

															The idea that a jury should be given guidance in its Page 428 U. S. 193 decisionmaking is also hardly a novel proposition. Juries are
invariably given careful instructions on the law and how to apply
it before they are authorized to decide the merits of a lawsuit. It
would be virtually unthinkable to follow any other course in a
legal system that has traditionally operated by following prior
precedents and fixed rules of law. [ Footnote 42 ] See Gasoline Products Co. v. Champlin
Refining Co., 283 U. S. 494 , 283 U. S. 498 (1931); Fed.Rule Civ.Proc. 51. When erroneous instructions are
given, retrial is often required. It is quite simply a hallmark of
our legal system that juries be carefully and adequately guided in
their deliberations.

															While some have suggested that standards to guide a capital
jury's sentencing deliberations are impossible to formulate,
[ Footnote 43 ] the fact is
that such standards have been developed. When the drafters of the
Model Penal Code faced this problem, they concluded

															"that it is within the realm of possibility to point to the main
circumstances of aggravation and of mitigation that should be
weighed and weighed against each other when they are
presented in a concrete case."

															ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent.Draft No.
9, 1959) (emphasis in original). [ Footnote 44 ] While such standards are, by Page 428 U. S. 194 necessity somewhat general, they do provide guidance to the
sentencing authority, and thereby reduce the likelihood that it
will impose a sentence that fairly can be Page 428 U. S. 195 called capricious or arbitrary. [ Footnote 45 ] Where the sentencing authority is required
to specify the factors it relied upon in reaching its decision, the
further safeguard of meaningful appellate review is available to
ensure that death sentences are not imposed capriciously or in a
freakish manner.

															In summary, the concerns expressed in Furman that the
penalty of death not be imposed in an arbitrary or capricious
manner can be met by a carefully drafted statute that ensures that
the sentencing authority is given adequate information and
guidance. As a general proposition, these concerns are best met by
a system that provides for a bifurcated proceeding at which the
sentencing authority is apprised of the information relevant to the
imposition of sentence and provided with standards to guide its use
of the information.

															We do not intend to suggest that only the above-described
procedures would be permissible under Furman, or that any
sentencing system constructed along these general lines would
inevitably satisfy the concerns of Furman, [ Footnote 46 ] for each distinct system must
be examined on an individual basis. Rather, we have embarked upon
this general exposition to make clear that it is possible to
construct capital sentencing systems capable of meeting Furman's constitutional concerns. [ Footnote 47 ] Page 428 U. S. 196 B We now turn to consideration of the constitutionality of
Georgia's capital sentencing procedures. In the wake of Furman, Georgia amended its capital punishment statute,
but chose not to narrow the scope of its murder provisions. See Part II , supra. Thus, now, as before Furman, in Georgia,

															"[a] person commits murder when he unlawfully and with malice
aforethought, either express or implied, causes the death of
another human being."

															Ga.Code Ann., § 26-1101(a) (1972). All persons convicted of
murder "shall be punished by death or by imprisonment for life." §
26-1101(c) (1972).

															Georgia did act, however, to narrow the class of murderers
subject to capital punishment by specifying 10 Page 428 U. S. 197 statutory aggravating circumstances, one of which must be found
by the jury to exist beyond a reasonable doubt before a death
sentence can ever be imposed. [ Footnote 48 ] In addition, the jury is authorized to
consider any other appropriate aggravating or mitigating
circumstances. § 27-2534.1(b) (Supp. 1975). The jury is not
required to find any mitigating circumstance in order to make a
recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp. 1975), but it must find a statutory
aggravating circumstance before recommending a sentence of
death.

															These procedures require the jury to consider the circumstances
of the crime and the criminal before it recommends sentence. No
longer can a Georgia jury do as Furman's jury did: reach a
finding of the defendant's guilt and then, without guidance or
direction, decide whether he should live or die. Instead, the
jury's attention is directed to the specific circumstances of the
crime: was it committed in the course of another capital felony?
Was it committed for money? Was it committed upon a peace officer
or judicial officer? Was it committed in a particularly heinous
way, or in a manner that endangered the lives of many persons? In
addition, the jury's attention is focused on the characteristics of
the person who committed the crime: does he have a record of prior
convictions for capital offenses? Are there any special facts about
this defendant that mitigate against imposing capital punishment
( e.g., his youth, the extent of his cooperation with the
police, his emotional state at the time of the crime). [ Footnote 49 ] As a result, while Page 428 U. S. 198 some jury discretion still exists, "the discretion to be
exercised is controlled by clear and objective standards so as to
produce nondiscriminatory application." Coley v. State, 231 Ga. 829, 834, 204 S.E.2d
612 , 615 (1974).

															As an important additional safeguard against arbitrariness and
caprice, the Georgia statutory scheme provides for automatic appeal
of all death sentences to the State's Supreme Court. That court is
required by statute to review each sentence of death and determine
whether it was imposed under the influence of passion or prejudice,
whether the evidence supports the jury's finding of a statutory
aggravating circumstance, and whether the sentence is
disproportionate compared to those sentences imposed in similar
cases. § 27-2537(c) (Supp. 1975).

															In short, Georgia's new sentencing procedures require, as a
prerequisite to the imposition of the death penalty, specific jury
findings as to the circumstances of the crime or the character of
the defendant. Moreover, to guard further against a situation
comparable to that presented in Furman, the Supreme Court
of Georgia compares each death sentence with the sentences imposed
on similarly situated defendants to ensure that the sentence of
death in a particular case is not disproportionate. On their face,
these procedures seem to satisfy the concerns of Furman. No longer should there be "no meaningful basis for distinguishing
the few cases in which [the death penalty] is imposed from the many
cases in which it is not." 408 U.S. at 408 U. S. 313 (WHITE, J., concurring).

															The petitioner contends, however, that the changes in the
Georgia sentencing procedures are only cosmetic, that the
arbitrariness and capriciousness condemned by Furman continue to exist in Georgia -- both in traditional practices that
still remain and in the new sentencing procedures adopted in
response to Furman. Page 428 U. S. 199 1 First, the petitioner focuses on the opportunities for
discretionary action that are inherent in the processing of any
murder case under Georgia law. He notes that the state prosecutor
has unfettered authority to select those persons whom he wishes to
prosecute for a capital offense and to plea bargain with them.
Further, at the trial, the jury may choose to convict a defendant
of a lesser included offense rather than find him guilty of a crime
punishable by death, even if the evidence would support a capital
verdict. And finally, a defendant who is convicted and sentenced to
die may have his sentence commuted by the Governor of the State and
the Georgia Board of Pardons and Paroles.

															The existence of these discretionary stages is not determinative
of the issues before us. At each of these stages, an actor in the
criminal justice system makes a decision which may remove a
defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the
death sentence on a specific individual who had been convicted of a
capital offense. Nothing in any of our cases suggests that the
decision to afford an individual defendant mercy violates the
Constitution. Furman held only that, in order to minimize
the risk that the death penalty would be imposed on a capriciously
selected group of offenders, the decision to impose it had to be
guided by standards, so that the sentencing authority would focus
on the particularized circumstances of the crime and the defendant.
[ Footnote 50 ] Page 428 U. S. 200 2 The petitioner further contends that the capital sentencing
procedures adopted by Georgia in response to Furman do not
eliminate the dangers of arbitrariness and caprice in jury
sentencing that were held in Furman to be violative of the
Eighth and Fourteenth Amendments. He claims that the statute is so
broad and vague as to leave juries free to act as arbitrarily and
capriciously as they wish in deciding whether to impose the death
penalty. While there is no claim that the jury in this case relied
upon a vague or overbroad provision to establish the existence of a
statutory aggravating circumstance, the petitioner looks to the
sentencing system as a whole (as the Court did in Furman and we do today), and argues that it fails to reduce sufficiently
the risk of arbitrary infliction of death sentences. Specifically,
Gregg urges that the statutory aggravating circumstances are too
broad and too vague, that the sentencing procedure allows for
arbitrary grants of mercy, and that the scope of the evidence and
argument that can be considered at the presentence hearing is too
wide. Page 428 U. S. 201 The petitioner attacks the seventh statutory aggravating
circumstance, which authorizes imposition of the death penalty if
the murder was "outrageously or wantonly vile, horrible or inhuman
in that it involved torture, depravity of mind, or an aggravated
battery to the victim," contending that it is so broad that capital
punishment could be imposed in any murder case. [ Footnote 51 ] It is, of course, arguable
that any murder involves depravity of mind or an aggravated
battery. But this language need not be construed in this way, and
there is no reason to assume that the Supreme Court of Georgia will
adopt such an open-ended construction. [ Footnote 52 ] In only one case has it upheld a jury's
decision to sentence a defendant to death when the only statutory
aggravating circumstance found was that of the seventh, see
McCorquodale v. State, 233 Ga. 369, 211 S.E.2d
577 (1974), and that homicide was a horrifying torture-murder.
[ Footnote 53 ] Page 428 U. S. 202 The petitioner also argues that two of the statutory aggravating
circumstances are vague, and therefore susceptible of widely
differing interpretations, thus creating a substantial risk that
the death penalty will be arbitrarily inflicted by Georgia juries.
[ Footnote 54 ] In light of
the decisions of the Supreme Court of Georgia, we must disagree.
First, the petitioner attacks that part of § 27-2534.1(b)(1) that
authorizes a jury to consider whether a defendant has a
"substantial history of serious assaultive criminal convictions."
The Supreme Court of Georgia, however, has demonstrated a concern
that the new sentencing procedures provide guidance to juries. It
held this provision to be impermissibly vague in Arnold v.
State, 236 Ga. 534, 540, 224 S.E.2d
386 , 391 (1976), because it did not provide the jury with
"sufficiently clear and objective standards.'" Second, the
petitioner points to § 27-2534.1(b)(3) which speaks of creating a
"great risk of death to more than one person." While such a phrase
might be susceptible of an overly broad interpretation, the Supreme
Court of Georgia has not so construed it. The only case in which
the court upheld a conviction in reliance on this aggravating
circumstance involved a man who stood up in a church and fired a
gun indiscriminately into the audience. See Page 428 U. S. 203 Chenault v. State, 234 Ga. 216, 215 S.E.2d
223 (1975). On the other hand, the court expressly reversed a
finding of great risk when the victim was simply kidnaped in a
parking lot. See Jarrell v. State, 234 Ga. 410, 424, 216 S.E.2d
258 , 269 (1975). [ Footnote
55 ]

															The petitioner next argues that the requirements of Furman are not met here, because the jury has the power to
decline to impose the death penalty even if it finds that one or
more statutory aggravating circumstances are present in the case.
This contention misinterprets Furman. See supra at 428 U. S.
198 -199. Moreover, it ignores the role of the Supreme
Court of Georgia, which reviews each death sentence to determine
whether it is proportional to other sentences imposed for similar
crimes. Since the proportionality requirement on review is intended
to prevent caprice in the decision to inflict the penalty, the
isolated decision of a jury to afford mercy does not render
unconstitutional death sentences imposed on defendants who were
sentenced under a system that does not create a substantial risk of
arbitrariness or caprice.

															The petitioner objects, finally, to the wide scope of evidence
and argument allowed at presentence hearings. We think that the
Georgia court wisely has chosen not to impose unnecessary
restrictions on the evidence that can be offered at such a hearing,
and to approve open and far-ranging argument. See, e.g., Brown
v. State, 235 Ga. 644, 220 S.E.2d 922 (1975). So long as the Page 428 U. S. 204 evidence introduced and the arguments made at the presentence
hearing do not prejudice a defendant, it is preferable not to
impose restrictions. We think it desirable for the jury to have as
much information before it as possible when it makes the sentencing
decision. See supra at 428 U. S.
189 -190. 3 Finally, the Georgia statute has an additional provision
designed to assure that the death penalty will not be imposed on a
capriciously selected group of convicted defendants. The new
sentencing procedures require that the State Supreme Court review
every death sentence to determine whether it was imposed under the
influence of passion, prejudice, or any other arbitrary factor,
whether the evidence supports the findings of a statutory
aggravating circumstance, and

															"[w]hether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant."

															§ 27-2537(c)(3) (Supp. 1975). [ Footnote 56 ] In performing Page 428 U. S. 205 its sentence review function, the Georgia court has held
that,

															"if the death penalty is only rarely imposed for an act, or it
is substantially out of line with sentences imposed for other acts,
it will be set aside as excessive." Coley v. State, 231 Ga. at 834, 204 S.E.2d at 616. The
court, on another occasion, stated that

															"we view it to be our duty under the similarity standard to
assure that no death sentence is affirmed unless in similar cases
throughout the state the death penalty has been imposed generally.
. . ." Moore v. State, 233 Ga. 861, 864, 213 S.E.2d
829 , 832 (1975). See also Jarrell v. State, supra at
425, 216 S.E.2d at 270 (standard is whether "juries generally
throughout the state have imposed the death penalty"); Smith v.
State, 236 Ga. 12, 24, 222 S.E.2d
308 , 318 (1976)
(found "a clear pattern" of jury behavior).

															It is apparent that the Supreme Court of Georgia has taken its
review responsibilities seriously. In Coley, it held
that

															"[t]he prior cases indicate that the past practice among juries
faced with similar factual situations and like aggravating
circumstances has been to impose only the sentence of life
imprisonment for the offense of rape, rather than death."

															231 Ga. at 835, 204 S.E.2d at 617. It thereupon reduced Coley's
sentence from death to life imprisonment. Similarly, although armed
robbery is a capital offense under Georgia law, § 26-1902 (1972),
the Georgia court concluded that the death sentences imposed in
this case for that crime were

															"unusual in that they are rarely imposed for [armed robbery].
Thus, under the test provided by statute, . . . they must be
considered to be excessive or disproportionate to the penalties
imposed in similar cases."

															233 Page 428 U. S. 206 Ga. at 127, 210 S.E.2d at 667. The court therefore vacated
Gregg's death sentences for armed robbery, and has followed a
similar course in every other armed robbery death penalty case to
come before it. See Floyd v. State, 233 Ga. 280, 285, 210 S.E.2d
810 , 814 (1974); Jarrell v. State, 234 Ga. at 424-425,
216 S.E.2d at 270. See Dorsey v. State, 236 Ga. 591, 225 S.E.2d 418 (1976).

															The provision for appellate review in the Georgia capital
sentencing system serves as a check against the random or arbitrary
imposition of the death penalty. In particular, the proportionality
review substantially eliminates the possibility that a person will
be sentenced to die by the action of an aberrant jury. If a time
comes when juries generally do not impose the death sentence in a
certain kind of murder case, the appellate review procedures assure
that no defendant convicted under such circumstances will suffer a
sentence of death. V The basic concern of Furman centered on those
defendants who were being condemned to death capriciously and
arbitrarily. Under the procedures before the Court in that case,
sentencing authorities were not directed to give attention to the
nature or circumstances of the crime committed or to the character
or record of the defendant. Left unguided, juries imposed the death
sentence in a way that could only be called freakish. The new
Georgia sentencing procedures, by contrast, focus the jury's
attention on the particularized nature of the crime and the
particularized characteristics of the individual defendant. While
the jury is permitted to consider any aggravating or mitigating
circumstances, it must find and identify at least one statutory
aggravating factor before it may impose a penalty of death. In this
way, the jury's discretion is channeled. No longer Page 428 U. S. 207 can a jury wantonly and freakishly impose the death sentence; it
is always circumscribed by the legislative guidelines. In addition,
the review function of the Supreme Court of Georgia affords
additional assurance that the concerns that prompted our decision
in Furman are not present to any significant degree in the
Georgia procedure applied here.

															For the reasons expressed in this opinion, we hold that the
statutory system under which Gregg was sentenced to death does not
violate the Constitution. Accordingly, the judgment of the Georgia
Supreme Court is affirmed. It is so ordered. [ Footnote 1 ]

															On cross-examination, the State introduced a letter written by
the petitioner to Allen entitled, "[a] statement for you," with the
instructions that Allen memorize and then burn it. The statement
was consistent with the petitioner's testimony at trial.

															[ Footnote 2 ]

															The court further held, in part, that the trial court did not
err in refusing to instruct the jury with respect to voluntary
manslaughter, since there was no evidence to support that
verdict.

															[ Footnote 3 ]

															Subsequent to the trial in this case, limited portions of the
Georgia statute were amended. None of these amendments changed
significantly the substance of the statutory scheme. All references
to the statute in this opinion are to the current version.

															[ Footnote 4 ]

															Georgia Code Ann. § 26-1101 (1972) provides:

															"(a) A person commits murder when he unlawfully and with malice
aforethought, either express or implied, causes the death of
another human being. Express malice is that deliberate intention
unlawfully to take away the life of a fellow creature, which is
manifested by external circumstances capable of proof. Malice shall
be implied where no considerable provocation appears, and where all
the circumstances of the killing show an abandoned and malignant
heart."

															"(b) A person also commits the crime of murder when in the
commission of a felony he causes the death of another human being,
irrespective of malice."

															"(c) A person convicted of murder shall be punished by death or
by imprisonment for life."

															[ Footnote 5 ]

															Section 26-1902 (1972) provides:

															"A person commits armed robbery when, with intent to commit
theft, he takes property of another from the person or the
immediate presence of another by use of an offensive weapon. The
offense robbery by intimidation shall be a lesser included offense
in the offense of armed robbery. A person convicted of armed
robbery shall be punished by death or imprisonment for life, or by
imprisonment for not less than one nor more than 20 years."

															[ Footnote 6 ]

															These capital felonies currently are defined as they were when Furman was decided. The 1973 amendments to the Georgia
statute, however, narrowed the class of crimes potentially
punishable by death by eliminating capital perjury. Compare § 26-2401 (Supp. 1975) with § 26-2401
(1972).

															[ Footnote 7 ]

															It is not clear whether the 1974 amendments to the Georgia
statute were intended to broaden the types of evidence admissible
at the presentence hearing. Compare § 27-2503(a) (Supp.
1975) with § 27-2534 (1972) (deletion of limitation
"subject to the laws of evidence").

															[ Footnote 8 ]

															Essentially the same procedures are followed in the case of a
guilty plea. The judge considers the factual basis of the plea, as
well as evidence in aggravation and mitigation. See Mitchell v.
State, 234 Ga. 160, 214 S.E.2d 900 (1975).

															[ Footnote 9 ]

															The statute provides in part:

															"(a) The death penalty may be imposed for the offenses of
aircraft hijacking or treason, in any case."

															"(b) In all cases of other offenses for which the death penalty
may be authorized, the judge shall consider, or he shall include in
his instructions to the jury for it to consider, any mitigating
circumstances or aggravating circumstances otherwise authorized by
law and any of the following statutory aggravating circumstances
which may be supported by the evidence:"

															"(1) The offense of murder, rape, armed robbery, or kidnapping
was committed by a person with a prior record of conviction for a
capital felony, or the offense of murder was committed by a person
who has a substantial history of serious assaultive criminal
convictions."

															"(2) The offense of murder, rape, armed robbery, or kidnapping
was committed while the offender was engaged in the commission of
another capital felony, or aggravated battery, or the offense of
murder was committed while the offender was engaged in the
commission of burglary or arson in the first degree."

															"(3) The offender by his act of murder, armed robbery, or
kidnapping knowingly created a great risk of death to more than one
person in a public place by means of a weapon or device which would
normally be hazardous to the lives of more than one person."

															"(4) The offender committed the offense of murder for himself or
another, for the purpose of receiving money or any other thing of
monetary value."

															"(5) The murder of a judicial officer, former judicial officer,
district attorney or solicitor or former district attorney or
solicitor during or because of the exercise of his official
duty."

															"(6) The offender caused or directed another to commit. murder
or committed murder as an agent or employee of another person."

															"(7) The offense of murder, rape, armed robbery, or kidnapping
was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to
the victim."

															"(8) The offense of murder was committed against any peace
officer, corrections employee or fireman while engaged in the
performance of his official duties."

															"(9) The offense of murder was committed by a person in, or who
has escaped from, the lawful custody of a peace officer or place of
lawful confinement."

															"(10) The murder was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or custody in a
place of lawful confinement, of himself or another."

															"(c) The statutory instructions as determined by the trial judge
to be warranted by the evidence shall be given in charge and in
writing to the jury for its deliberation. The jury, if its verdict
be a recommendation of death, shall designate in writing, signed by
the foreman of the jury, the aggravating circumstance or
circumstances which it found beyond a reasonable doubt. In non-jury
cases the judge shall make such designation. Except in cases of
treason or aircraft hijacking, unless at least one of the statutory
aggravating circumstances enumerated in section 27-2534.1(b) is so
found, the death penalty shall not be imposed."

															§ 27-2534.1 (Supp. 1975).

															The Supreme Court of Georgia, in Arnold v. State, 236
Ga. 534, 540, 224 S.E.2d
386 , 391 (1976), recently held unconstitutional the portion of
the first circumstance encompassing persons who have a "substantial
history of serious assaultive criminal convictions" because it did
not set "sufficiently clear and objective standards.'" [ Footnote 10 ]

															The statute requires that the Supreme Court of Georgia obtain
and preserve the records of all capital felony cases in which the
death penalty was imposed after January 1, 1970, or such earlier
date that the court considers appropriate. § 27-2537(f) (Supp.
1975). To aid the court in its disposition of these cases, the
statute further provides for the appointment of a special
assistant, and authorizes the employment of additional staff
members. §§ 27-2537(f)-(h) (Supp. 1975).

															[ Footnote 11 ] See Ga.Const., Art. 5, § 1, � 12, Ga.Code Ann. § 2-3011
(1973); Ga.Code Ann. §§ 77-501, 77-511, 77-513 (1973 and Supp.
1975) (Board of Pardons and Paroles is authorized to commute
sentence of death except in cases where Governor refuses to suspend
that sentence).

															[ Footnote 12 ] Louisiana ex rel. Francis v. Resweber, 329 U.
S. 459 , 329 U. S. 464 (1947); In re Kemmler, 136 U. S. 436 , 136 U. S. 447 (1890); Wilkerson v. Utah, 99 U. S.
130 , 99 U. S.
134 -135 (1879). See also McGautha v.
California, 402 U. S. 183 (1971); Witherspoon v. Illinois, 391 U.
S. 510 (1968); Trop v. Dulles, 356 U. S.
86 , 356 U. S. 100 (1958) (plurality opinion).

															[ Footnote 13 ]

															408 U.S. at 408 U. S. 375 (BURGER, C.J., dissenting); id. at 408 U. S. 405 (BLACKMUN, J., dissenting); id. at 408 U. S. 414 (POWELL, J., dissenting); id. at 408 U. S. 465 (REHNQUIST, J., dissenting).

															[ Footnote 14 ] Id. at 408 U. S. 257 (BRENNAN, J., concurring); id. at 408 U. S. 314 (MARSHALL, J., concurring).

															[ Footnote 15 ] Id. at 408 U. S. 240 (Douglas, J., concurring); id. at 408 U. S. 306 (STEWART J., concurring); id. at 408 U. S. 310 (WHITE, J., concurring).

															Since five Justices wrote separately in support of the judgments
in Furman, the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on
the narrowest grounds -- MR. JUSTICE STEWART and MR. JUSTICE WHITE. See n 36, infra. [ Footnote 16 ]

															408 U.S. at 408 U. S.
316 -328 (MARSHALL, J., concurring).

															[ Footnote 17 ]

															This conclusion derives primarily from statements made during
the debates in the various state conventions called to ratify the
Federal Constitution. For example, Virginia delegate Patrick Henry
objected vehemently to the lack of a provision banning "cruel and
unusual punishments":

															"What has distinguished our ancestors? -- That they would not
admit of tortures, or cruel and barbarous punishment. But Congress
may introduce the practice of the civil law in preference to that
of the common law. They may introduce the practice of France,
Spain, and Germany -- of torturing to extort a confession of the
crime."

															3 J. Elliot, Debates 447-448 (1863). A similar objection was
made in the Massachusetts convention:

															"They are nowhere restrained from inventing the most cruel and
unheard-of punishments and annexing them to crimes; and there is no
constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their
discipline."

															2 Elliot, supra at 111.

															[ Footnote 18 ]

															The Court remarked on the fact that the law under review "has
come to us from a government of a different form and genius from
ours," but it also noted that the punishments it inflicted "would
have those bad attributes even if they were found in a Federal
enactment and not taken from an alien source." 217 U.S. at 217 U. S.
377 .

															[ Footnote 19 ]

															Although legislative measures adopted by the people's chosen
representatives provide one important means of ascertaining
contemporary values, it is evident that legislative judgments alone
cannot be determinative of Eighth Amendment standards, since that
Amendment was intended to safeguard individuals from the abuse of
legislative power. See Weems v. United States, 217 U. S. 349 , 217 U. S.
371 -373 (1910); Furman v. Georgia, 408 U.S. at 408 U. S.
258 -269 (BRENNAN, J., concurring). Robinson v.
California, 370 U. S. 660 (1962), illustrates the proposition that penal laws enacted by
state legislatures may violate the Eighth Amendment because, "in
the light of contemporary human knowledge," they "would doubtless
be universally thought to be an infliction of cruel and unusual
punishment." Id. at 370 U. S. 666 .
At the time of Robinson, nine States in addition to
California had criminal laws that punished addiction similar to the
law declared unconstitutional in Robinson. See Brief for Appellant in Robinson v. California, O.T. 1961,
No. 554, p. 15.

															[ Footnote 20 ] See also Furman v. Georgia, supra at 408 U. S. 411 (BLACKMUN, J., dissenting):

															"We should not allow our personal preferences as to the wisdom
of legislative and congressional action, or our distaste for such
action, to guide our judicial decision in cases such as these. The
temptations to cross that policy line are very great."

															[ Footnote 21 ] See concurring opinions of MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL, 408 U.S. at 408 U. S. 257 and 408 U. S.
314 .

															[ Footnote 22 ] See concurring opinions of Mr. Justice Douglas, MR.
JUSTICE STEWART, and MR. JUSTICE WHITE, id. at 408 U. S. 240 , 408 U. S. 306 ,
and 408 U. S.
310 .

															[ Footnote 23 ]

															Ala.H.B. 212, §§ 2-4, 6-7 (1975); Ariz.Rev.Stat.Ann. §§ 13-452
to 13-454 (Supp. 1973); Ark.Stat.Ann. § 41-4706 (Supp. 1975);
Cal.Penal Code §§ 190.1, 209, 219 (Supp. 1976); Colo.Laws 1974, c.
52, § 4; Conn.Gen.Stat.Rev. §§ 53a-25, 53a-35(b), 53a-46a, 53a-54b
(1975); Del.Code Ann. tit. 11, § 4209 (Supp. 1975); Fla.Stat.Ann.
§§ 782.04, 921.141 (Supp. 1975-1976); Ga.Code Ann. §§ 26-3102,
27-2528, 27-2534.1, 27-2537 (Supp. 1975); Idaho Code § 18-4004
(Supp. 1975); Ill.Ann.Stat. c. 38, §§ 9-1, 1005-5-3, 1005-8-1A
(Supp. 1976-1977); Ind.Stat.Ann. § 35-13-4-1 (1975);
Ky.Rev.Stat.Ann. § 507.020 (1975); La.Rev.Stat.Ann. § 14:30 (Supp.
1976); Md.Ann.Code, art. 27, § 413 (Supp. 1975); Miss.Code Ann. §§
97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo.Ann.Stat. §
559.009, 559.005 (Supp. 1976); Mont.Rev.Codes Ann. § 94-5-105
(Spec.Crim.Code Supp. 1976); Neb.Rev.Stat. §§ 28-401, 29-2521 to
29-2523 (1975); Nev.Rev.Stat. § 200.030 (1973); N.H.Rev.Stat.Ann. §
630:1 (1974); N.M.Stat.Ann. § 40A-29-2 (Supp. 1975); N.Y. Penal Law
§ 60.06 (1975); N.C.Gen.Stat. § 14-17 (Supp. 1975); Ohio Rev.Code
Ann. §§ 2929.02-2929.04 (1975); Okla.Stat.Ann. tit. 21, §
701.1-701.3 (Supp. 1975-1976); Pa.Laws 1974, Act No. 46;
R.I.Gen.Laws Ann. § 11-23-2 (Supp. 1975); S.C.Code Ann. § 16-52
(Supp. 1975); Tenn.Code Ann. §§ 39-2402, 39-2406 (1975); Tex.Penal
Code Ann. § 19.03(a) (1974); Utah Code Ann. §§ 76-3-206, 76-3-207,
76-5-202 (Supp. 1975); Va.Code Ann. §§ 18.2-10, 18.2-31 (1976);
Wash.Rev.Code §§ 9 A. 32.045, 9 A. 32.046 (Supp. 1975);
Wyo.Stat.Ann. § 6-54 (Supp. 1975).

															[ Footnote 24 ]

															Anti-hijacking Act of 1974, 49 U.S.C. §§ 1472(i), (n) (1970 ed.,
Supp. IV).

															[ Footnote 25 ]

															In 1968, the people of Massachusetts were asked "Shall the
commonwealth . . . retain the death penalty for crime?" A
substantial majority of the ballots cast answered "Yes." Of
2,348,005 ballots cast, 1,159,348 voted "Yes," 730,649 voted "No,"
and 458,008 were blank. See Commonwealth v. O'Neal, ___
Mass. ___ and n. 1, 339
N.E.2d 676 , 708, and n. 1 (1975) (Reardon, J., dissenting). A
December, 1972, Gallup poll indicated that 57% of the people
favored the death penalty, while a June, 1973, Harris survey showed
support of 59%. Vidmar & Ellsworth, Public Opinion and the
Death Penalty, 26 Stan.L.Rev. 1245, 1249 n. 22 (1974). In a
December, 1970, referendum, the voters of Illinois also rejected
the abolition of capital punishment by 1,218,791 votes to 676,302
votes. Report of the Governor's Study Commission on Capital
Punishment 43 (Pa.1973).

															[ Footnote 26 ]

															The number of prisoners who received death sentences in the
years from 1961 to 1972 varied from a high of 140 in 1961 to a low
of 75 in 1972, with wide fluctuations in the intervening years: 103
in 1962; 93 in 1963; 106 in 1964; 86 in 1965; 118 in 1966; 85 in
1967; 102 in 1968; 97 in 1969; 127 in 1970; and 104 in 1971.
Department of Justice, National Prisoner Statistics Bulletin,
Capital Punishment 1971-1972, p. 20 (Dec.1974). It has been
estimated that, before Furman, less than 20% of those
convicted of murder were sentenced to death in those States that
authorized capital punishment. See Woodson v. North Carolina,
post at 428 U. S.
295 -296, n. 31.

															[ Footnote 27 ]

															Department of Justice, National Prisoner Statistics Bulletin,
Capital Punishment 1974, pp. 1, 26-27 (Nov.1975)

															[ Footnote 28 ]

															Another purpose that has been discussed is the incapacitation of
dangerous criminals, and the consequent prevention of crimes that
they may otherwise commit in the future. See People v.
Anderson, 6 Cal. 3d 628 ,
651, 493 P.2d 880, 896, cert. denied, 406 U.S. 958 (1972); Commonwealth v. O'Neal, supra at ___, 339 N.E.2d at
685-686.

															[ Footnote 29 ] See H. Packer, Limits of the Criminal Sanction 43-44
(1968).

															[ Footnote 30 ]

															Lord Justice Denning, Master of the Rolls of the Court of Appeal
in England, spoke to this effect before the British Royal
Commission on Capital Punishment:

															"Punishment is the way in which society expresses its
denunciation of wrongdoing, and, in order to maintain respect for
law, it is essential that the punishment inflicted for grave crimes
should adequately reflect the revulsion felt by the great majority
of citizens for them. It is a mistake to consider the objects of
punishment as being deterrent or reformative or preventive and
nothing else. . . . The truth is that some crimes are so outrageous
that society insists on adequate punishment, because the wrongdoer
deserves it, irrespective of whether it is deterrent or not."

															Royal Commission on Capital Punishment, Minutes of Evidence,
Dec. 1, 1949, p. 207 (1950)

															A contemporary writer has noted more recently that opposition to
capital punishment

															"has much more appeal when the discussion is merely academic
than when the community is confronted with a crime, or a series of
crimes, so gross, so heinous, so cold-blooded that anything short
of death seems an inadequate response."

															Raspberry, Death Sentence, The Washington Post, Mar. 12, 1976,
p. A27, cols. 5-6.

															[ Footnote 31 ] See, e.g., Peck, The Deterrent Effect of Capital
Punishment: Ehrlich and His Critics, 85 Yale L.J. 359 (1976);
Baldus & Cole, A Comparison of the Work of Thorsten Sellin and
Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85
Yale L.J. 170 (1975); Bowers & Pierce, The Illusion of
Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85
Yale L.J. 187 (1975); Ehrlich, The Deterrent Effect of Capital
Punishment: A Question of Life and Death, 65 Am.Econ.Rev. 397 (June
1975); Hook, The Death Sentence, in The Death Penalty in America
146 (H. Bedau ed.1967); T. Sellin, The Death Penalty, A Report for
the Model Penal Code Project of the American Law Institute
(1959).

															[ Footnote 32 ] See, e.g., The Death Penalty in America, supra at 259-332; Report of the Royal Commission on Capital Punishment,
1949-1953, Cmd. 8932.

															[ Footnote 33 ]

															Other types of calculated murders, apparently occurring with
increasing frequency, include the use of bombs or other means of
indiscriminate killings, the extortion murder of hostages or kidnap
victims, and the execution-style killing of witnesses to a
crime.

															[ Footnote 34 ]

															We have been shown no statistics breaking down the total number
of murders into the categories described above. The overall trend
in the number of murders committed in the nation, however, has been
upward for some time. In 1964, reported murders totaled an
estimated 9,250. During the ensuing decade, the number reported
increased 123%, until it totaled approximately 20,600 in 1974. In
1972, the year Furman was announced, the total estimated
was 18,520. Despite a fractional decrease in 1975 as compared with
1974, the number of murders increased in the three years
immediately following Furman to approximately 20,400, an
increase of almost 10%. See FBI, Uniform Crime Reports,
for 1964, 1972, 1974, and 1975, Preliminary Annual Release.

															[ Footnote 35 ]

															We do not address here the question whether the taking of the
criminal's life is a proportionate sanction where no victim has
been deprived of life -- for example, when capital punishment is
imposed for rape, kidnaping, or armed robbery that does not result
in the death of any human being.

															[ Footnote 36 ]

															This view was expressed by other Members of the Court who
concurred in the judgments. See 408 U.S. at 408 U. S.
255 -257 (Douglas, J.); id. at 408 U. S.
291 -295 (BRENNAN, J.). The dissenters viewed this
concern as the basis for the Furman decision:

															"The decisive grievance of the opinions . . . is that the
present system of discretionary sentencing in capital cases has
failed to produce evenhanded justice; . . . that the selection
process has followed no rational pattern." Id. at 408 U. S.
398 -399 (BURGER, C.J., dissenting).

															[ Footnote 37 ]

															The Federal Rules of Criminal Procedure require as a matter of
course that a presentence report containing information about a
defendant's background be prepared for use by the sentencing judge.
Rule 32(c). The importance of obtaining accurate sentencing
information is underscored by the Rule's direction to the
sentencing court to

															"afford the defendant or his counsel an opportunity to comment
[on the report] and, at the discretion of the court, to introduce
testimony or other information relating to any alleged factual
inaccuracy contained in the presentence report."

															Rule 32(c)(3)(A).

															[ Footnote 38 ]

															Indeed, we hold elsewhere today that, in capital cases, it is
constitutionally required that the sentencing authority have
information sufficient to enable it to consider the character and
individual circumstances of a defendant prior to imposition of a
death sentence. See Woodson v. North Carolina, post at 428 U. S.
303 -305.

															[ Footnote 39 ] Witherspoon v. Illinois, 391 U.S. at 391 U. S. 519 n. 15, quoting Trop v. Dulles, 356 U.S. at 356 U. S. 101 (plurality opinion). See also Report of the Royal
Commission on Capital Punishment, 1949-1953, Cmd. 8932, � 571.

															[ Footnote 40 ]

															In other situations, this Court has concluded that a jury cannot
be expected to consider certain evidence before it on one issue,
but not another. See, e.g., Bruton v. United States, 391 U. S. 123 (1968); Jackson v. Denno, 378 U.
S. 368 (1964).

															[ Footnote 41 ]

															In United States v. Jackson, 390 U.
S. 570 (1968), the Court considered a statute that
provided that, if a defendant pleaded guilty, the maximum penalty
would be life imprisonment, but if a defendant chose to go to
trial, the maximum penalty upon conviction was death. In holding
that the statute was constitutionally invalid, the Court noted:

															"The inevitable effect of any such provision is, of course, to
discourage assertion of the Fifth Amendment right not to plead
guilty and to deter exercise of the Sixth Amendment right to demand
a jury trial. If the provision had no other purpose or effect than
to chill the assertion of constitutional rights by penalizing those
who choose to exercise them, then it would be patently
unconstitutional." Id. at 390 U. S.
581 .

															[ Footnote 42 ] But see Md.Const., Art. XV, § 5: "In the trial of all
criminal cases, the jury shall be the Judges of the Law, as well as
of fact. . . ." See also Md.Code Ann., art. 27, § 593
(1971). Maryland judges, however, typically give advisory
instructions on the law to the jury. See Md. Rule 756; Wilson v. State, 239 Md. 245, 210 A.2d 824 (1965).

															[ Footnote 43 ] See McGautha v. California, 402 U.S. at 402 U. S.
204 -207; Report of the Royal Commission on Capital
Punishment, 1949-1953, Cmd. 8932, � 595.

															[ Footnote 44 ]

															The Model Penal Code proposes the following standards:

															"(3) Aggravating Circumstances."

															"(a) The murder was committed by a convict under sentence of
imprisonment."

															"(b) The defendant was previously convicted of another murder or
of a felony involving the use or threat of violence to the
person."

															"(c) At the time the murder was committed the defendant also
committed another murder."

															"(d) The defendant knowingly created a great risk of death to
many persons."

															"(e) The murder was committed while the defendant was engaged or
was an accomplice in the commission of, or an attempt to commit, or
flight after committing or attempting to commit robbery, rape or
deviate sexual intercourse by force or threat of force, arson,
burglary or kidnapping."

															"(f) The murder was committed for the purpose of avoiding or
preventing a lawful arrest or effecting an escape from lawful
custody."

															"(g) The murder was committed for pecuniary gain."

															"(h) The murder was especially heinous, atrocious or cruel,
manifesting exceptional depravity."

															"(4) Mitigating Circumstances."

															"(a) The defendant has no significant history of prior criminal
activity."

															"(b) The murder was committed while the defendant was under the
influence of extreme mental or emotional disturbance."

															"(c) The victim was a participant in the defendant's homicidal
conduct or consented to the homicidal act."

															"(d) The murder was committed under circumstances which the
defendant believed to provide a moral justification or extenuation
for his conduct."

															"(e) The defendant was an accomplice in a murder committed by
another person and his participation in the homicidal act was
relatively minor."

															"(f) The defendant acted under duress or under the domination of
another person."

															"(g) At the time of the murder, the capacity of the defendant to
appreciate the criminality [wrongfulness] of his conduct or to
conform his conduct to the requirements of law was impaired as a
result of mental disease or defect or intoxication."

															"(h) The youth of the defendant at the time of the crime."

															ALI Model Penal Code § 210.6 (Proposed Official Draft 1962).

															[ Footnote 45 ]

															As MR. JUSTICE BRENNAN noted in McGautha v. California,
supra at 402 U. S.
285 -286 (dissenting opinion):

															"[E]ven if a State's notion of wise capital sentencing policy is
such that the policy cannot be implemented through a formula
capable of mechanical application . . . , there is no reason that
it should not give some guidance to those called upon to render
decision."

															[ Footnote 46 ]

															A system could have standards so vague that they would fail
adequately to channel the sentencing decision patterns of juries
with the result that a pattern of arbitrary and capricious
sentencing like that found unconstitutional in Furman could occur.

															[ Footnote 47 ]

															In McGautha v. California, supra, this Court held that
the Due Process Clause of the Fourteenth Amendment did not require
that a jury be provided with standards to guide its decision
whether to recommend a sentence of life imprisonment or death or
that the capital sentencing proceeding be separated from the
guilt-determination process. McGautha was not an Eighth
Amendment decision, and, to the extent it purported to deal with
Eighth Amendment concerns, it must be read in light of the opinions
in Furman v. Georgia. There, the Court ruled that death
sentences imposed under statutes that left juries with untrammeled
discretion to impose or withhold the death penalty violated the
Eighth and Fourteenth Amendments. While Furman did not
overrule McGautha, it is clearly in substantial tension
with a broad reading of McGautha's holding. In view of Furman, McGautha can be viewed rationally as a precedent
only for the proposition that standardless jury sentencing
procedures were not employed in the cases there before the Court,
so as to violate the Due Process Clause. We note that McGautha's assumption that it is not possible to devise
standards to guide and regularize jury sentencing in capital cases
has been undermined by subsequent experience. In view of that
experience and the considerations set forth in the text, we adhere
to Furman's determination that, where the ultimate
punishment of death is at issue, a system of standardless jury
discretion violates the Eighth and Fourteenth Amendments.

															[ Footnote 48 ]

															The text of the statute enumerating the various aggravating
circumstances is set out at n 9, supra. [ Footnote 49 ] See Moore v. State, 233 Ga. 861, 865, 213 S.E.2d
829 , 832 (1975).

															[ Footnote 50 ]

															The petitioner's argument is nothing more than a veiled
contention that Furman indirectly outlawed capital
punishment by placing totally unrealistic conditions on its use. In
order to repair the alleged defects pointed to by the petitioner,
it would be necessary to require that prosecuting authorities
charge a capital offense whenever arguably there had been a capital
murder, and that they refuse to plea bargain with the defendant. If
a jury refused to convict even though the evidence supported the
charge, its verdict would have to be reversed and a verdict of
guilty entered or a new trial ordered, since the discretionary act
of jury nullification would not be permitted. Finally, acts of
executive clemency would have to be prohibited. Such a system, of
course, would be totally alien to our notions of criminal
justice.

															Moreover, it would be unconstitutional. Such a system, in many
respects, would have the vices of the mandatory death penalty
statutes we hold unconstitutional today in Woodson v. North
Carolina, post, p. 428 U. S. 280 , and Roberts v. Louisiana, post, p. 428 U. S. 325 . The
suggestion that a jury's verdict of acquittal could be overturned
and a defendant retried would run afoul of the Sixth Amendment jury
trial guarantee and the Double Jeopardy Clause of the Fifth
Amendment. In the federal system, it also would be unconstitutional
to prohibit a President from deciding, as an act of executive
clemency, to reprieve one sentenced to death. U.S.Const., Art. II,
§ 2.

															[ Footnote 51 ]

															In light of the limited grant of certiorari, see supra at 428 U. S. 162 ,
we review the "vagueness" and "overbreadth" of the statutory
aggravating circumstances only to consider whether their
imprecision renders this capital sentencing system invalid under
the Eighth and Fourteenth Amendments because it is incapable of
imposing capital punishment other than by arbitrariness or
caprice.

															[ Footnote 52 ]

															In the course of interpreting Florida's new capital sentencing
statute, the Supreme Court of Florida has ruled that the phrase
"especially heinous, atrocious or cruel" means a "conscienceless or
pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So. 2d 1 ,
9 (1973). See Proffitt v. Florida, post at 428 U. S.
255 -256.

															[ Footnote 53 ]

															Two other reported cases indicate that juries have found
aggravating circumstances based on § 27-2534.1(b)(7). In both
cases, a separate statutory aggravating circumstance was also
found, and the Supreme Court of Georgia did not explicitly rely on
the finding of the seventh circumstance when it upheld the death
sentence. See Jarrell v. State, 234 Ga. 410, 216 S.E.2d 25
(1975) (State Supreme Court upheld finding that defendant committed
two other capital felonies -- kidnaping and armed robbery -- in the
course of the murder, § 27-2534.1(b)(2); jury also found that the
murder was committed for money, § 27-2534.1(b)(4), and that a great
risk of death to bystanders was created, § 27-2534.1(b)(3)); Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974) (found to have committed a capital felony -- armed robbery
-- in the course of the murder, § 27-2534.1(b)(2)).

															[ Footnote 54 ]

															The petitioner also attacks § 25-2534.1(b)(7) as vague. As we
have noted in answering his overbreadth argument concerning this
section, however, the state court has not given a broad reading to
the scope of this provision, and there is no reason to think that
juries will not be able to understand it. See n 51, supra; Proffitt v.
Florida, post at 428 U. S.
255 -256.

															[ Footnote 55 ]

															The petitioner also objects to the last part of §
27-2534.1(b)(3), which requires that the great risk be created "by
means of a weapon or device which would normally be hazardous to
the lives of more than one person." While the state court has not
focused on this section, it seems reasonable to assume that, if a
great risk in fact is created, it will be likely that a weapon or
device normally hazardous to more than one person will have created
it.

															[ Footnote 56 ]

															The court is required to specify in its opinion the similar
cases which it took into consideration. § 27-2537(e) (Supp. 1975).
Special provision is made for staff to enable the court to compile
data relevant to its consideration of the sentence's validity. §§
272537(f)-(h) (Supp. 1975). See generally supra at 428 U. S.
166 -168.

															The petitioner claims that this procedure has resulted in an
inadequate basis for measuring the proportionality of sentences.
First, he notes that nonappealed capital convictions where a life
sentence is imposed and cases involving homicides where a capital
conviction is not obtained are not included in the group of cases
which the Supreme Court of Georgia uses for comparative purposes.
The Georgia court has the authority to consider such cases, see
Ross v. State, 233 Ga. 361, 365-366, 211 S.E.2d
356 , 359 (1974), and it does consider appealed murder cases
where a life sentence has been imposed. We do not think that the
petitioner's argument establishes that the Georgia court's review
process is ineffective. The petitioner further complains about the
Georgia court's current practice of using some pre- Furman cases in its comparative examination. This practice was necessary
at the inception of the new procedure in the absence of any
post- Furman capital cases available for comparison. It is
not unconstitutional.

															MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, concurring in the judgment.

															In Furman v. Georgia, 408 U. S. 238 (1972), this Court held the death penalty, as then administered in
Georgia, to be unconstitutional. That same year, the Georgia
Legislature enacted a new statutory scheme under which the death
penalty may be imposed for several offenses, including murder. The
issue in this case is whether the death penalty imposed for murder
on petitioner Gregg under the new Georgia statutory scheme may
constitutionally be carried out. I agree that it may. I Under the new Georgia statutory scheme, a person convicted of
murder may receive a sentence either of death or of life
imprisonment. Ga.Code Ann. § 26-1101 (1972). [ Footnote 2/1 ] Under Georgia Code Ann. § 26-3102
(Supp. Page 428 U. S. 208 1975); the sentence will be life imprisonment unless the jury,
at a separate evidentiary proceeding immediately following the
verdict, finds unanimously and beyond a reasonable doubt at least
one statutorily defined "aggravating circumstance." [ Footnote 2/2 ] The aggravating circumstances
are:

															"(1) The offense of murder, rape, armed robbery, Page 428 U. S. 209 or kidnapping was committed by a person with a prior record of
conviction for a capital felony, or the offense of murder was
committed by a person Page 428 U. S. 210 who has a substantial history of serious assaultive criminal
convictions."

															"(2) The offense of murder, rape, armed robbery, or kidnapping
was committed while the offender was engaged in the commission of
another capital felony or aggravated battery, or the offense of
murder was committed while the offender was engaged in the
commission of burglary or arson in the first degree."

															"(3) The offender by his act of murder, armed robbery, or
kidnapping knowingly created a great risk of death to more than one
person in a public place by means of a weapon or device which would
normally be hazardous to the lives of more than one person."

															"(4) The offender committed the offense of murder for himself or
another, for the purpose of receiving money or any other thing of
monetary value."

															"(5) The murder of a judicial officer, former judicial officer,
district attorney or solicitor or former district attorney or
solicitor during or because of the exercise of his official
duty."

															"(6) The offender caused or directed another to commit murder or
committed murder as an agent or employee of another person."

															"(7) The offense of murder, rape, armed robbery, or kidnapping
was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to
the victim."

															"(8) The offense of murder was committed against any peace
officer, corrections employee or fireman while engaged in the
performance of his official duties. " Page 428 U. S. 211 "(9) The offense of murder was committed by a person in, or who
has escaped from, the lawful custody of a peace officer or place of
lawful confinement."

															"(10) The murder was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or custody in a
place of lawful confinement, of himself or another."

															§ 27-2534.1(b) (Supp. 1975). Having found an aggravating
circumstance, however, the jury is not required to impose the death
penalty. Instead, it is merely authorized to impose it after
considering evidence of

															"any mitigating circumstances or aggravating circumstances
otherwise authorized by law and any of the [enumerated] statutory
aggravating circumstances. . . ."

															§ 27-2534.1(b) (Supp. 1975). Unless the jury unanimously
determines that the death penalty should be imposed, the defendant
will be sentenced to life imprisonment. In the event that the jury
does impose the death penalty, it must designate in writing the
aggravating circumstance which it found to exist beyond a
reasonable doubt.

															An important aspect of the new Georgia legislative scheme,
however, is its provision for appellate review. Prompt review by
the Georgia Supreme Court is provided for in every case in which
the death penalty is imposed. To assist it in deciding whether to
sustain the death penalty, the Georgia Supreme Court is supplied,
in every case, with a report from the trial judge in the form of a
standard questionnaire. § 27-2537(a) (Supp. 1975). The
questionnaire contains, inter alia, six questions designed
to disclose whether race played a role in the case, and one
question asking the trial judge whether the evidence forecloses
"all doubt respecting the defendant's Page 428 U. S. 212 guilt." In deciding whether the death penalty is to be sustained
in any given case, the court shall determine:

															"(1) Whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor,
and"

															"(2) Whether, in cases other than treason or aircraft hijacking,
the evidence supports the jury's or judge's finding of a statutory
aggravating circumstance as enumerated in section 27-2534.1(b),
and"

															"(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. . . ."

															In order that information regarding "similar cases" may be
before the court, the post of Assistant to the Supreme Court was
created. The Assistant must

															"accumulate the records of all capital felony cases in which
sentence was imposed after January 1, 1970, or such earlier date as
the court may deem appropriate."

															§ 27-2537(f). [ Footnote 2/3 ] The
court is required to include in its decision a reference to "those
similar cases which it took into consideration." § 27-2537(e). II Petitioner Troy Gregg and a 16-year-old companion, Floyd Allen,
were hitchhiking from Florida to Asheville, N.C. on November 21,
1973. They were picked up in an automobile driven by Fred Simmons
and Bob Moore, both of whom were drunk. The car broke down, and
Simmons purchased a new one -- a 1960 Pontiac -- using Page 428 U. S. 213 part of a large roll of cash which he had with him. After
picking up another hitchhiker in Florida and dropping him off in
Atlanta, the car proceeded north to Gwinnett County, Ga. where it
stopped so that Moore and Simmons could urinate. While they were
out of the car, Simmons was shot in the eye and Moore was shot in
the right cheek and in the back of the head. Both died as a
result.

															On November 24, 1973, at 3 p.m., on the basis of information
supplied by the hitchhiker, petitioner and Allen were arrested in
Asheville, N.C. They were then in possession of the car which
Simmons had purchased; petitioner was in possession of the gun
which had killed Simmons and Moore and $107 which had been taken
from them; and in the motel room in which petitioner was staying
was a new stereo and a car stereo player.

															At about 11 p.m., after the Gwinnett County police had arrived,
petitioner made a statement to them admitting that he had killed
Moore and Simmons, but asserting that he had killed them in
self-defense and in defense of Allen. He also admitted robbing them
of $400 and taking their car. A few moments later, petitioner was
asked why he had shot Moore, and Simmons and responded: "By God, I
wanted them dead."

															At about 1 o'clock the next morning, petitioner and Allen were
released to the custody of the Gwinnett County police and were
transported in two cars back to Gwinnett County. On the way, at
about 5 a.m., the car stopped at the place where Moore and Simmons
had been killed. Everyone got out of the car. Allen was asked, in
petitioner's presence, how the killing occurred. He said that he
had been sitting in the back seat of the 1960 Pontiac and was about
half asleep. He woke up when the car stopped. Simmons and Moore got
out, and, as soon as they did, petitioner turned around and told
Allen: "Get out, we're going to rob them." Allen said that he Page 428 U. S. 214 got out and walked toward the back of the car, looked around,
and could see petitioner, with a gun in his hand, leaning up
against the car so he could get a good aim. Simmons and Moore had
gone down the bank and had relieved themselves, and, as they were
coming up the bank, petitioner fired three shots. One of the men
fell, the other staggered. Petitioner then circled around the back
and approached the two men, both of whom were now lying in the
ditch, from behind. He placed the gun to the head of one of them
and pulled the trigger. Then he went quickly to the other one and
placed the gun to his head and pulled the trigger again. He then
took the money, whatever was in their pockets. He told Allen to get
in the car, and they drove away.

															When Allen had finished telling this story, one of the officers
asked petitioner if this was the way it had happened. Petitioner
hung his head and said that it was. The officer then said: "You
mean you shot these men down in cold blooded murder just to rob
them," and petitioner said yes. The officer then asked him why, and
petitioner said he did not know. Petitioner was indicted in two
counts for murder and in two counts for robbery.

															At trial, petitioner's defense was that he had killed in
self-defense. He testified in his own behalf, and told a version of
the events similar to that which he had originally told to the
Gwinnett County police. On cross-examination, he was confronted
with a letter to Allen recounting a version of the events similar
to that to which he had just testified and instructing Allen to
memorize and burn the letter. Petitioner conceded writing the
version of the events, but denied writing the portion of the letter
which instructed Allen to memorize and burn it. In rebuttal, the
State called a handwriting expert who testified that the entire
letter was written by the same person. Page 428 U. S. 215 The jury was instructed on the elements of murder [ Footnote 2/4 ] and robbery. The trial judge
gave an instruction on self-defense, but refused to submit the
lesser included Page 428 U. S. 216 offense of manslaughter to the jury. It returned verdicts of
guilty on all counts.

															No new evidence was presented at the sentencing proceeding.
However, the prosecutor and the attorney for petitioner each made
arguments to the jury on the issue of punishment. The prosecutor
emphasized the strength of the case against petitioner and the fact
that he had murdered in order to eliminate the witnesses to the
robbery. The defense attorney emphasized the possibility that a
mistake had been made, and that petitioner was not guilty. The
trial judge instructed the jury on Page 428 U. S. 217 their sentencing function, and, in so doing, submitted to them
three statutory aggravating circumstances. He stated:

															"Now, as to counts one and three, wherein the defendant is
charged with the murders of -- has been found guilty of the murders
of [Simmons and Moore], the following aggravating circumstances are
some that you can consider, as I say, you must find that these
existed beyond a reasonable doubt before the death penalty can be
imposed."

															"One -- That the offense of murder was committed while the
offender was engaged in the commission of two other capital
felonies, to-wit the armed robbery of [Simmons and Moore]."

															"Two -- That the offender committed the offense of murder for
the purpose of receiving money and the automobile described in the
indictment."

															"Three -- The offense of murder was outrageously and wantonly
vile, horrible and inhuman, in that they involved the depravity of
mind of the defendant."

															"Now, so far as the counts two and four, that is the counts of
armed robbery, of which you have found the defendant guilty, then
you may find -- inquire into these aggravating circumstances."

															"That the offense of armed robbery was committed while the
offender was engaged in the commission of two capital felonies,
to-wit the murders of [Simmons and Moore], or that the offender
committed the offense of armed robbery for the purpose of receiving
money and the automobile set forth in the indictment, or three,
that the offense of armed robbery was outrageously and wantonly
vile, horrible and inhuman in that they involved the depravity of
the mind of the defendant. " Page 428 U. S. 218 "Now, if you find that there was one or more of these
aggravating circumstances existed beyond a reasonable doubt, then,
and I refer to each individual count, then you would be authorized
to consider imposing the sentence of death."

															"If you do not find that one of these aggravating circumstances
existed beyond a reasonable doubt in either of these counts, then
you would not be authorized to consider the penalty of death. In
that event, the sentence as to counts one and three, those are the
counts wherein the defendant was found guilty of murder, the
sentence could be imprisonment for life."

															Tr. 476-477. The jury returned the death penalty on all four
counts finding all the aggravating circumstances submitted to it,
except that it did not find the crimes to have been "outrageously
or wantonly vile," etc.

															On appeal, the Georgia Supreme Court affirmed the death
sentences on the murder counts and vacated the death sentences on
the robbery counts. 233 Ga. 117, 210 S.E.2d 659 (1974). It concluded that the murder sentences were not imposed
under the influence of passion, prejudice, or any other arbitrary
factor; that the evidence supported the finding of a statutory
aggravating factor with respect to the murders; and, citing several
cases in which the death penalty had been imposed previously for
murders of persons who had witnessed a robbery, held:

															"After considering both the crimes and the defendant, and after
comparing the evidence and the sentences in this case with those of
previous murder cases, we are also of the opinion that these two
sentences of death are not excessive or disproportionate to the
penalties imposed in similar cases Page 428 U. S. 219 which are hereto attached. [ Footnote
2/5 ]" Id. at 127, 210 S.E.2d at 667. However, it held with
respect to the robbery sentences:

															"Although there is no indication that these two Page 428 U. S. 220 sentences were imposed under the influence of passion, prejudice
or any other arbitrary factor, the sentences imposed here are
unusual in that they are rarely imposed for this offense. Thus,
under the test provided by statute for comparison (Code Ann. §
27-2537(c), (3)), they must be considered to be excessive or
disproportionate to the penalties imposed in similar cases." Ibid. Accordingly, the sentences on the robbery counts
were vacated. III The threshold question in this case is whether the death penalty
may be carried out for murder under the Georgia legislative scheme
consistent with the decision in Furman v. Georgia, supra. In Furman, this Court held that, as a result of giving the
sentencer unguided discretion to impose or not to impose the death
penalty for murder, the penalty was being imposed discriminatorily,
[ Footnote 2/6 ] Page 428 U. S. 221 wantonly and freakishly, [ Footnote
2/7 ] and so infrequently, [ Footnote
2/8 ] that any given death sentence was cruel and unusual.
Petitioner argues that, as in Furman, the jury is still
the sentencer; that the statutory criteria to be considered by the
jury on the issue of sentence under Georgia's new statutory scheme
are vague, and do not purport to be all-inclusive; and that, in any
event, there are no circumstances under which the jury is required
to impose the death penalty. [ Footnote
2/9 ] Consequently, the petitioner argues that the death penalty
will inexorably be imposed in as discriminatory, standardless, and
rare a manner as it was imposed under the scheme declared invalid
in Furman. The argument is considerably overstated. The Georgia Legislature
has made an effort to identify those aggravating factors which it
considers necessary and relevant to the question whether a
defendant convicted of capital murder should be sentenced to death.
[ Footnote 2/10 ] The Page 428 U. S. 222 jury which imposes sentence is instructed on all statutory
aggravating factors which are supported by the evidence, and is
told that it may at impose the death penalty unless it unanimously
finds at least one of those factors to have been established beyond
a reasonable doubt. The Georgia Legislature has plainly made an
effort to guide the jury in the exercise of its discretion, while,
at the same time, permitting the jury to dispense mercy on the
basis of factors too intangible to write into a statute, and I
cannot accept the naked assertion that the effort is bound to fail.
As the types of murders for which the death penalty may be imposed
become more narrowly defined and are limited to those which are
particularly serious or for which the death penalty is peculiarly
appropriate, as they are in Georgia by reason of the aggravating
circumstance requirement, it becomes reasonable to expect that
juries -- even given discretion not to impose the death penalty --
will impose the death penalty in a substantial portion of the cases
so defined. If they do, it can no longer be said that the penalty
is being imposed wantonly and freakishly, or so infrequently that
it loses its usefulness as a sentencing device. There is,
therefore, reason to expect that Georgia's current system would
escape the infirmities which invalidated its previous system under Furman. However, the Georgia Legislature was not satisfied
with a system which might, but also might not, turn out in practice
to result in death sentences being imposed with reasonable
consistency for certain serious murders. Instead, it gave the
Georgia Supreme Court the power and the obligation to perform
precisely the task which three Justices of this Court, whose
opinions were necessary to the result, performed Page 428 U. S. 223 in Furman: namely, the task of deciding whether, in
fact, the death penalty was being administered for any given class
of crime in a discriminatory, standardless, or rare fashion.

															In considering any given death sentence on appeal, the Georgia
Supreme Court is to determine whether the sentence imposed was
consistent with the relevant statutes -- i.e., whether
there was sufficient evidence to support the finding of an
aggravating circumstance. Ga.Code Ann § 27-2537(c)(2) (Supp. 1975).
However, it must do much more than determine whether the penalty
was lawfully imposed. It must go on to decide -- after reviewing
the penalties imposed in "similar cases" -- whether the penalty is
"excessive or disproportionate" considering both the crime and the
defendant. § 27-2537(c)(3) (Supp. 1975). The new Assistant to the
Supreme Court is to assist the court in collecting the records of
"all capital felony cases" [ Footnote
2/11 ] in the State of Georgia in which sentence was imposed
after January 1, 1970. § 27-2537(f) (Supp. 1975). The court also
has the obligation of determining whether the penalty was "imposed
under the influence of passion, prejudice, or any other arbitrary
factor." § 27-2537(c)(1) (Supp. 1975). The Georgia Supreme Court
has interpreted the appellate review statute to require it to set
aside the death sentence whenever juries across the State impose it
only rarely for the type of crime in question, but to require it to
affirm death sentences whenever juries across the State generally
impose it for the crime in question. Page 428 U. S. 224 Thus, in this case, the Georgia Supreme Court concluded that the
death penalty was so rarely imposed for the crime of robbery that
it set aside the sentences on the robbery counts, and effectively
foreclosed that penalty from being imposed for that crime in the
future under the legislative scheme now in existence. Similarly,
the Georgia Supreme Court has determined that juries impose the
death sentence too rarely with respect to certain classes of rape. Compare Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974), with Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975). However, it concluded that juries "generally throughout the
state" have imposed the death penalty for those who murder
witnesses to armed robberies. Jarrell v. State, 234 Ga.
410, 425, 216 S.E.2d
258 , 270 (1975). Consequently, it armed the sentences in this
case on the murder counts. If the Georgia Supreme Court is correct
with respect to this factual judgment, imposition of the death
penalty in this and similar cases is consistent with Furman. Indeed, if the Georgia Supreme Court properly
performs the task assigned to it under the Georgia statutes, death
sentences imposed for discriminatory reasons or wantonly or
freakishly for any given category of crime will be set aside.
Petitioner has wholly failed to establish, and has not even
attempted to establish, that the Georgia Supreme Court failed
properly to perform its task in this case, or that it is incapable
of performing its task adequately in all cases, and this Court
should not assume that it did not do so.

															Petitioner also argues that decisions made by the prosecutor --
either in negotiating a plea to some lesser offense than capital
murder or in simply declining to charge capital murder -- are
standardless, and will inexorably result in the wanton and freakish
imposition of the penalty condemned by the judgment in Furman. I address this Page 428 U. S. 225 point separately because the cases in which no capital offense
is charged escape the view of the Georgia Supreme Court, and are
not considered by it in determining whether a particular sentence
is excessive or disproportionate.

															Petitioner's argument that prosecutors behave in a standardless
fashion in deciding which cases to try as capital felonies is
unsupported by any facts. Petitioner simply asserts that, since
prosecutors have the power not to charge capital felonies, they
will exercise that power in a standardless fashion. This is
untenable. Absent facts to the contrary, it cannot be assumed that
prosecutors will be motivated in their charging decision by factors
other than the strength of their case and the likelihood that a
jury would impose the death penalty if it convicts. Unless
prosecutors are incompetent in their judgments, the standards by
which they decide whether to charge a capital felony will be the
same as those by which the jury will decide the questions of guilt
and sentence. Thus, defendants will escape the death penalty
through prosecutorial charging decisions only because the offense
is not sufficiently serious; or because the proof is insufficiently
strong. This does not cause the system to be standardless any more
than the jury's decision to impose life imprisonment on a defendant
whose crime is deemed insufficiently serious or its decision to
acquit someone who is probably guilty but whose guilt is not
established beyond a reasonable doubt. Thus, the prosecutor's
charging decisions are unlikely to have removed from the sample of
cases considered by the Georgia Supreme Court any which are truly
"similar." If the cases really were "similar" in relevant respects,
it is unlikely that prosecutors would fail to prosecute them as
capital cases; and I am unwilling to assume the contrary.

															Petitioner's argument that there is an unconstitutional Page 428 U. S. 226 amount of discretion in the system which separates those
suspects who receive the death penalty from those who receive life
imprisonment, a lesser penalty, or are acquitted or never charged,
seems to be, in final analysis, an indictment of our entire system
of justice. Petitioner has argued, in effect, that no matter how
effective the death penalty may be as a punishment, government,
created and run as it must be by humans, is inevitably incompetent
to administer it. This cannot be accepted as a proposition of
constitutional law. Imposition of the death penalty is surely an
awesome responsibility for any system of justice and those who
participate in it. Mistakes will be made, and discriminations will
occur which will be difficult to explain. However, one of society's
most basic tasks is that of protecting the lives of its citizens,
and one of the most basic ways in which it achieves the task is
through criminal laws against murder. I decline to interfere with
the manner in which Georgia has chosen to enforce such laws on what
is simply an assertion of lack of faith in the ability of the
system of justice to operate in a fundamentally fair manner. IV For the reasons stated in dissent in Roberts v. Louisiana,
post at 428 U. S.
350 -356, neither can I agree with the petitioner's other
basic argument that the death penalty, however imposed and for
whatever crime, is cruel and unusual punishment.

															I therefore concur in the judgment of affirmance.

															[ Footnote 2/1 ]

															Section 21101 provides as follows:

															"Murder."

															"(a) A person commits murder when he unlawfully and with malice
aforethought, either express or implied, causes the death of
another human being. Express malice is that deliberate intention
unlawfully to take away the life of a fellow creature, which is
manifested by external circumstances capable of proof. Malice shall
be implied where no considerable provocation appears, and where all
the circumstances of the killing show an abandoned and malignant
heart."

															"(b) A person also commits the crime of murder when in the
commission of a felony he causes the death of another human being,
irrespective of malice."

															"(c) A person convicted of murder shall be punished by death or
by imprisonment for life."

															The death penalty may also be imposed for kidnaping, Ga.Code Ann
§ 26-1311; armed robbery, § 26-1902; rape, § 26-2001; treason, §
26-2201; and aircraft hijacking, § 26-3301.

															[ Footnote 2/2 ]

															Section 26-3102 (Supp. 1975) provides:

															"Capital offenses; jury verdict and sentence."

															"Where, upon a trial by jury, a person is convicted of an
offense which may be punishable by death, a sentence of death shall
not be imposed unless the jury verdict includes a finding of at
least one statutory aggravating circumstance and a recommendation
that such sentence be imposed. Where a statutory aggravating
circumstance is found and a recommendation of death is made, the
court shall sentence the defendant to death. Where a sentence of
death is not recommended by the jury, the court shall sentence the
defendant to imprisonment as provided by law. Unless the jury
trying the case makes a finding of at least one statutory
aggravating circumstance and recommends the death sentence in its
verdict, the court shall not sentence the defendant to death,
provided that no such finding of statutory aggravating circumstance
shall be necessary in offenses of treason or aircraft hijacking.
The provisions of this section shall not affect a sentence when the
case is tried without a jury or when the judge accepts a plea of
guilty."

															Georgia Laws, 1973, Act No. 74, p. 162, provides:

															"At the conclusion of all felony cases heard by a jury, and
after argument of counsel and proper charge from the court, the
jury shall retire to consider a verdict of guilty or not guilty
without any consideration of punishment. In nonjury felony cases,
the judge shall likewise first consider a finding of guilty or not
guilty without any consideration of punishment. Where the jury or
judge returns a verdict or finding of guilty, the court shall
resume the trial and conduct a pre-sentence hearing before the jury
or judge at which time the only issue shall be the determination of
punishment to be imposed. In such hearing, subject to the laws of
evidence, the jury or judge shall hear additional evidence in
extenuation, mitigation, and aggravation of punishment, including
the record of any prior criminal convictions and pleas of guilty or
pleas of nolo contendere of the defendant, or the absence
of any such prior criminal convictions and pleas; provided,
however, that only such evidence in aggravation as the State has
made known to the defendant prior to his trial shall be admissible.
The jury or judge shall also hear argument by the defendant or his
counsel and the prosecuting attorney, as provided by law, regarding
the punishment to be imposed. The prosecuting attorney shall open
and the defendant shall conclude the argument to the jury or judge.
Upon the conclusion of the evidence and arguments, the judge shall
give the jury appropriate instructions and the jury shall retire to
determine the punishment to be imposed. In cases in which the death
penalty may be imposed by a jury or judge sitting without a jury,
the additional procedure provided in Code section 27-2534.1 shall
be followed. The jury, or the judge in cases tried by a judge,
shall fix a sentence within the limits prescribed by law. The judge
shall impose the sentence fixed by the jury or judge, as provided
by law. If the jury cannot, within a reasonable time, agree to the
punishment, the judge shall impose sentence within the limits of
the law; provided, however, that the judge shall in no instance
impose the death penalty when, in cases tried by a jury, the jury
cannot agree upon the punishment. If the trial court is reversed on
appeal because of error only in the pre-sentence hearing, the new
trial which may be ordered shall apply only to the issue of
punishment."

															[ Footnote 2/3 ]

															Section 27-2537(g) provides:

															"The court shall be authorized to employ an appropriate staff
and such methods to compile such data as are deemed by the Chief
Justice to be appropriate and relevant to the statutory questions
concerning the validity of the sentence. . . ."

															[ Footnote 2/4 ]

															The court said:

															"And, I charge you that our law provides, in connection with the
offense of murder the following. A person commits murder when he
unlawfully and with malice aforethought, either express or implied
causes the death of another human being."

															"Express malice is that deliberate intention, unlawfully to take
away the life of a fellow creature which is manifested by external
circumstances, capable of proof."

															"Malice shall be implied where no considerable provocation
appears and where all of the circumstances of the killing show an
abandoned and malignant heart."

															"Section B of this Code Section, our law provides that a person
also commits the crime of murder when, in the commission of a
felony, he causes the death of another human being irrespective of
malice."

															"Now, then, I charge you that, if you find and believe beyond a
reasonable doubt that the defendant did commit the homicide in the
two counts alleged in this indictment, at the time he was engaged
in the commission of some other felony, you would be authorized to
find him guilty of murder."

															"In this connection, I charge you that, in order for a homicide
to have been done in the perpetration of a felony, there must be
some connection between the felony and the homicide. The homicide
must have been done in pursuance of the unlawful act, not
collateral to it. It is not enough that the homicide occurred soon
or presently after the felony was attempted or committed; there
must be such a legal relationship between the homicide and the
felony that you find that the homicide occurred by reason of and a
part of the felony, or that it occurred before the felony was at an
end, so that the felony had a legal relationship to the homicide,
and was concurrent with it, in part, at least, and a part of it in
an actual and material sense. A homicide is committed in the
perpetration of a felony when it is committed by the accused while
he is engaged in the performance of any act required for the full
execution of such felony."

															"I charge you that, if you find and believe beyond a reasonable
doubt that the homicide alleged in this indictment was caused by
the defendant while he, the said accused was in the commission of a
felony as I have just given you in this charge, you would be
authorized to convict the defendant of murder."

															"And this you would be authorized to do whether the defendant
intended to kill the deceased or not. A homicide, although
unintended, if committed by the accused at the time he is engaged
in the commission of some other felony, constitutes murder."

															"In order for a killing to have been done in perpetration or
attempted perpetration of a felony, or of a particular felony,
there must be some connection, as I previously charged you, between
the felony and the homicide."

															"Before you would be authorized to find the defendant guilty of
the offense of murder, you must find and believe beyond a
reasonable doubt that the defendant did, with malice aforethought,
either express or implied, cause the deaths of [Simmons or Moore],
or you must find and believe beyond a reasonable doubt that the
defendant, while in the commission of a felony, caused the death of
these two victims just named."

															"I charge you, that, if you find and believe that, at any time
prior to the date this indictment was returned into this court,
that the defendant did, in the county of Gwinnett, State of
Georgia, with malice aforethought, kill and murder the two men just
named in the way and manner set forth in the indictment, or that
the defendant caused the deaths of these two men in the way and
manner set forth in the indictment, while he, the said accused, was
in the commission of a felony, then, in either event, you would be
authorized to find the defendant guilty of murder."

															[ Footnote 2/5 ]

															In a subsequently decided robbery-murder case, the Georgia
Supreme Court had the following to say about the same "similar
cases" referred to in this case:

															"We have compared the evidence and sentence in this case with
other similar cases, and conclude the sentence of death is not
excessive or disproportionate to the penalty imposed in those
cases. Those similar cases we considered in reviewing the case are: Lingo v. State, 226 Ga. 496 (175 S.E.2d 657), Johnson
v. State, 226 Ga. 511 (175 S.E.2d 840), Pass v.
State, 227 Ga. 730 (182 S.E.2d 779), Watson v. State, 229 Ga. 787 (194 S.E.2d 407), Scott v. State, 230 Ga. 413
(197 S.E.2d 338), Kramer v. State, 230 Ga. 855 (199 S.E.2d
805), and Gregg v. State, 233 Ga. 117 ( 210 S.E.2d
659 )."

															"In each of the comparison cases cited, the records show that
the accused was found guilty of murder of the victim of the robbery
or burglary committed in the course of such robbery or burglary. In
each of those cases, the jury imposed the sentence of death. In Pass v. State, supra, the murder took place in the
victim's home, as occurred in the case under consideration."

															"We find that the sentence of death in this case is not
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant. Code Ann. §
27-2537(c)(3). Notwithstanding the fact that there have been cases
in which robbery victims were murdered and the juries imposed life
sentences ( see Appendix), the cited cases show that juries
faced with similar factual situations have imposed death sentences. Compare Coley v. State, 231 Ga. 829, 835, supra. Thus, the sentence here was not 'wantonly and freakishly imposed'
( see above)." Moore v. State, 233 Ga. 861, 865-866, 213 S.E.2d
829 , 833 (1975). In another case decided after the instant
case, the Georgia Supreme Court stated:

															"The cases reviewed included all murder cases coming to this
court since January 1, 1970. All kidnapping cases were likewise
reviewed. The comparison involved a search for similarities in
addition to the similarity of offense charged and sentence
imposed."

															"All of the murder cases selected for comparison involved
murders wherein all of the witnesses were killed or an attempt was
made to kill all of the witnesses, and kidnapping cases where the
victim was killed or seriously injured."

															"The cases indicate that, except in some special circumstance
such as a juvenile or an accomplice driver of a get-away vehicle,
where the murder was committed and trial held at a time when the
death penalty statute was effective, juries generally throughout
the state have imposed the death penalty. The death penalty has
also been imposed when the kidnap victim has been mistreated or
seriously injured. In this case, the victim was murdered."

															"The cold-blooded and callous nature of the offenses in this
case are the types condemned by death in other cases. This
defendant's death sentences for murder and kidnapping are not
excessive or disproportionate to the penalty imposed in similar
cases. Using the standards prescribed for our review by the
statute, we conclude that the sentences of death imposed in this
case for murder and kidnapping were not imposed under the influence
of passion, prejudice or any other arbitrary factor." Jarrell v. State, 234 Ga. 410, 425-426, 216 S.E.2d
258 , 270 (1975).

															[ Footnote 2/6 ] See Furman v. Georgia, 408 U.S. at 408 U. S. 240 (Douglas, J., concurring).

															[ Footnote 2/7 ] See id. at 408 U. S. 306 (STEWART, J., concurring).

															[ Footnote 2/8 ] See id. at 408 U. S. 310 (WHITE, J., concurring).

															[ Footnote 2/9 ]

															Petitioner also argues that the differences between murder --
for which the death penalty may be imposed -- and manslaughter --
for which it may not be imposed -- are so difficult to define and
the jury's ability to disobey the trial judge's instructions so
unfettered, that juries will use the guilt-determination phase of a
trial arbitrarily to convict some of a capital offense while
convicting similarly situated individuals only of noncapital
offenses. I believe this argument is enormously overstated.
However, since the jury has discretion not to impose the death
penalty at the sentencing phase of a case in Georgia, the problem
of offense definition and jury nullification loses virtually all
its significance in this case.

															[ Footnote 2/10 ]

															The factor relevant to this case is that the "murder . . . was
committed while the offender was engaged in the commission of
another capital felony." The State, in its brief, refers to this
type of murder as "witness-elimination" murder. Apparently the
State of Georgia wishes to supply a substantial incentive to those
engaged in robbery to leave their guns at home and to persuade
their coconspirators to do the same in the hope that fewer victims
of robberies will be killed.

															[ Footnote 2/11 ]

															Petitioner states several times without citation that the only
cases considered by the Georgia Supreme Court are those in which an
appeal was taken either from a sentence of death or life
imprisonment. This view finds no support in the language of the
relevant statutes. Moore v. State, 233 Ga. at 863-864, 213
S.E.2d at 832.

															Statement of THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST:

															We concur in the judgment, and join the opinion of MR. JUSTICE
WHITE, agreeing with its analysis that Georgia's system of capital
punishment comports with Page 428 U. S. 227 the Court's holding in Furman v. Georgia, 408 U.
S. 238 (1972).

															MR. JUSTICE BLACKMUN, concurring in the judgment.

															I concur in the judgment. See Furman v. Georgia, 408 U. S. 238 , 408 U. S.
405 -414 (1972) (BLACKMUN, J., dissenting), and id. at 408 U. S. 375 (BURGER, C.J., dissenting); id. at 408 U. S. 414 (POWELL, J., dissenting); id. at 408 U. S. 465 (REHNQUIST, J., dissenting).

															MR. JUSTICE BRENNAN, dissenting. * The Cruel and Unusual Punishments Clause "must draw its meaning
from the evolving standards of decency that mark the progress of a
maturing society." [ Footnote 3/1 ]
The opinions of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR.
JUSTICE STEVENS today hold that "evolving standards of decency"
require focus not on the essence of the death penalty itself, but
primarily upon the procedures employed by the State to single out
persons to suffer the penalty of death. Those opinions hold further
that, so viewed, the Clause invalidates the mandatory infliction of
the death penalty, but not its infliction under sentencing
procedures that MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR.
JUSTICE STEVENS conclude adequately safeguard against the risk that
the death penalty was imposed in an arbitrary and capricious
manner.

															In Furman v. Georgia, 408 U. S. 238 , 408 U. S. 257 (1972) (concurring opinion), I read "evolving standards of decency"
as requiring focus upon the essence of the death penalty itself,
and not primarily or solely upon the procedures Page 428 U. S. 228 under which the determination to inflict the penalty upon a
particular person was made. I there said:

															"From the beginning of our Nation, the punishment of death has
stirred acute public controversy. Although pragmatic arguments for
and against the punishment have been frequently advanced, this
longstanding and heated controversy cannot be explained solely as
the result of differences over the practical wisdom of a particular
government policy. At bottom, the battle has been waged on moral
grounds. The country has debated whether a society for which the
dignity of the individual is the supreme value can, without a
fundamental inconsistency, follow the practice of deliberately
putting some of its members to death. In the United States, as in
other nations of the western world,"

															"the struggle about this punishment has been one between ancient
and deeply rooted beliefs in retribution, atonement or vengeance,
on the one hand, and, on the other, beliefs in the personal value
and dignity of the common man that were born of the democratic
movement of the eighteenth century, as well as beliefs in the
scientific approach to an understanding of the motive forces of
human conduct, which are the result of the growth of the sciences
of behavior during the nineteenth and twentieth centuries."

															"It is this essentially moral conflict that forms the backdrop
for the past changes in and the present operation of our system of
imposing death as a punishment for crime." Id. at 408 U. S. 296 .
[ Footnote 3/2 ] That continues to be
my view. For the Clause forbidding cruel and unusual punishments
under our constitutional Page 428 U. S. 229 system of government embodies in unique degree moral principles
restraining the punishments that our civilized society may impose
on those persons who transgress its laws. Thus, I too say:

															"For myself, I do not hesitate to assert the proposition that
the only way the law has progressed from the days of the rack, the
screw and the wheel is the development of moral concepts, or, as
stated by the Supreme Court . . . the application of 'evolving
standards of decency.' . . . [ Footnote
3/3 ]"

															This Court inescapably has the duty, as the ultimate arbiter of
the meaning of our Constitution, to say whether, when individuals
condemned to death stand before our Bar, "moral concepts" require
us to hold that the law has progressed to the point where we should
declare that the punishment of death, like punishments on the rack,
the screw, and the wheel, is no longer morally tolerable in our
civilized society. [ Footnote 3/4 ]
My opinion in Furman v. Georgia concluded that our
civilization and the law had progressed to this point, and that,
therefore, the punishment of death, for whatever crime and under
all circumstances, is "cruel and unusual" in violation of the
Eighth and Fourteenth Amendments of the Constitution. I shall not
again canvass the reasons that led to that conclusion. I emphasize
only that foremost among the "moral concepts" recognized in our
cases and inherent in the Clause is the primary moral principle
that the State, even as it punishes, must treat its citizens in a
manner consistent with their intrinsic worth as human beings -- a
punishment must not be so severe as to be degrading to human
dignity. A judicial determination Page 428 U. S. 230 whether the punishment of death comports with human dignity is
therefore not only permitted, but compelled, by the Clause. 408
U.S. at 408 U. S.
270 .

															I do not understand that the Court disagrees that,

															"[i]n comparison to all other punishments today . . . , the
deliberate extinguishment of human life by the State is uniquely
degrading to human dignity." Id. at 408 U. S. 291 .
For three of my Brethren hold today that mandatory infliction of
the death penalty constitutes the penalty cruel and unusual
punishment. I perceive no principled basis for this limitation.
Death, for whatever crime and under all circumstances,

															"is truly an awesome punishment. The calculated killing of a
human being by the State involves, by its very nature, a denial of
the executed person's humanity. . . . An executed person has indeed
'lost the right to have rights.'" Id. at 408 U. S. 290 .
Death is not only an unusually severe punishment, unusual in its
pain, in its finality, and in its enormity, but it serves no penal
purpose more effectively than a less severe punishment; therefore
the principle inherent in the Clause that prohibits pointless
infliction of excessive punishment when less severe punishment can
adequately achieve the same purposes invalidates the punishment. Id. at 408 U. S.
279 .

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

															"members of the human race as nonhumans, as objects to be toyed
with and discarded. [It is] thus inconsistent with the fundamental
premise of the Clause that even the vilest criminal remains a human
being possessed of common human dignity." Id. at 408 U. S. 273 .
As such, it is a penalty that "subjects the individual to a fate
forbidden by the principle of civilized treatment guaranteed by the
[ Clause]." [ Footnote 3/5 ] I
therefore would hold, Page 428 U. S. 231 on that ground alone, that death is today a cruel and unusual
punishment prohibited by the Clause.

															"Justice of this kind is obviously no less shocking than the
crime itself, and the new 'official' murder, far from offering
redress for the offense committed against society, adds instead a
second defilement to the first. [ Footnote 3/6 ]"

															I dissent from the judgments in No. 74-6257, Gregg v.
Georgia, No. 75-5706, Proffitt v. Florida, and No.
75-5394, Jurek v. Texas, insofar as each upholds the death
sentences challenged in those cases. I would set aside the death
sentences imposed in those cases as violative of the Eighth and
Fourteenth Amendments.

															* [This opinion applies also to No. 75-5706, Proffitt v.
Florida, post, p. 428 U. S. 242 , and
No. 75-5394, Jurek v. Texas, post, p. 428 U. S.
262 .]

															[ Footnote 3/1 ] Trop v. Dulles, 356 U. S. 86 , 356 U. S. 101 (1958) (plurality opinion of Warren, C.J.).

															[ Footnote 3/2 ]

															Quoting T. Sellin, The Death Penalty, A Report for the Model
Penal Code Project of the American Law Institute 15 (1959).

															[ Footnote 3/3 ] Novak v. Beto, 453 F.2d 661, 672 (CA5 1971) (Tuttle,
J., concurring in part and dissenting in part).

															[ Footnote 3/4 ]

															Tao, Beyond Furman v. Georgia: The Need for a Morally
Based Decision on Capital Punishment, 51 Notre Dame Law. 722, 736
(1976).

															[ Footnote 3/5 ] Trop v. Dulles, 356 U.S. at 356 U. S. 99 (plurality opinion of Warren, C.J.).

															[ Footnote 3/6 ]

															A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla
Pub.1960).

															MR. JUSTICE MARSHALL, dissenting.*

															In Furman v. Georgia, 408 U. S. 238 , 408 U. S. 314 (1972) (concurring opinion), I set forth at some length my views on
the basic issue presented to the Court in these cases. The death
penalty, I concluded, is a cruel and unusual punishment prohibited
by the Eighth and Fourteenth Amendments. That continues to be my
view.

															I have no intention of retracing the "long and tedious journey" id. at 408 U. S. 370 ,
that led to my conclusion in Furman. My sole purposes here
are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and
briefly to evaluate the basis for my Brethren's holding that the
extinction of life is a permissible form of punishment under the
Cruel and Unusual Punishments Clause.

															In Furman, I concluded that the death penalty is
constitutionally invalid for two reasons. First, the death penalty
is excessive. Id. at 408 U. S.
331 -332; 408 U. S.
342 -359. And Page 428 U. S. 232 second, the American people, fully informed as to the purposes
of the death penalty and its liabilities, would, in my view, reject
it as morally unacceptable. Id. at 408 U. S.
360 -369.

															Since the decision in Furman, the legislatures of 35
States have enacted new statutes authorizing the imposition of the
death sentence for certain crimes, and Congress has enacted a law
providing the death penalty for air piracy resulting in death. 49
U.S.C. §§ 1472(i), (n) (1970 ed., Supp. IV). I would be less than
candid if I did not acknowledge that these developments have a
significant bearing on a realistic assessment of the moral
acceptability of the death penalty to the American people. But if
the constitutionality of the death penalty turns, as I have urged,
on the opinion of an informed citizenry, then even the enactment of
new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely
unaware of the information critical to a judgment on the morality
of the death penalty, and concluded that, if they were better
informed, they would consider it shocking, unjust, and
unacceptable. 408 U.S. at 408 U. S.
360 -369. A recent study, conducted after the enactment
of the post- Furman statutes, has confirmed that the
American people know little about the death penalty, and that the
opinions of an informed public would differ significantly from
those of a public unaware of the consequences and effects of the
death penalty. [ Footnote 4/1 ]

															Even assuming, however, that the post- Furman enactment
of statutes authorizing the death penalty renders the prediction of
the views of an informed citizenry an Page 428 U. S. 233 uncertain basis for a constitutional decision, the enactment of
those statutes has no bearing whatsoever on the conclusion that the
death penalty is unconstitutional because it is excessive. An
excessive penalty is invalid under the Cruel and Unusual
Punishments Clause "even though popular sentiment may favor" it. Id. at 408 U. S. 331 ; ante at 428 U. S. 173 , 428 U. S.
182 -183 (opinion of STEWART, POWELL, and STEVENS, JJ.); Roberts v. Louisiana, post at 428 U. S.
353 -354 (WHITE, J., dissenting). The inquiry here, then,
is simply whether the death penalty is necessary to accomplish the
legitimate legislative purposes in punishment, or whether a less
severe penalty -- life imprisonment -- would do as well. Furman, supra at 408 U. S. 342 (MARSHALL, J., concurring).

															The two purposes that sustain the death penalty as nonexcessive
in the Court's view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent
effect of capital punishment. 408 U.S. at 408 U. S.
347 -354. [ Footnote 4/2 ]
The state of knowledge at that point, after literally centuries of
debate, was summarized as follows by a United Nations
Committee:

															"It is generally agreed between the retentionists and
abolitionists, whatever their opinions about the validity of
comparative studies of deterrence, that the data which now exist
show no correlation between the existence of capital punishment and
lower rates of capital crime. [ Footnote
4/3 ]"

															The available evidence, I concluded in Furman, was
convincing that "capital punishment is not necessary as a deterrent
to crime in our society." Id. at 408 U. S.
353 .

															The Sollicitor General, in his amicus brief in these
cases, Page 428 U. S. 234 relies heavily on a study by Isaac Ehrlich, [ Footnote 4/4 ] reported a year after Furman, to support the contention that the death penalty
does deter murder. Since the Ehrlich study was not available at the
time of Furman, and since it is the first scientific study
to suggest that the death penalty may have a deterrent effect, I
will briefly consider its import.

															The Ehrlich study focused on the relationship in the Nation as a
whole between the homicide rate and "execution risk" -- the
fraction of persons convicted of murder who were actually executed.
Comparing the differences in homicide rate and execution risk for
the years 1933 to 1969, Ehrlich found that increases in execution
risk were associated with increases in the homicide rate. [ Footnote 4/5 ] But when he employed the
statistical technique of multiple regression analysis to control
for the influence of other variables posited to have an impact on
the homicide rate, [ Footnote 4/6 ]
Ehrlich found a negative correlation between changes in the
homicide rate and changes in execution risk. His tentative
conclusion was that, for the period from 1933 to 1967, each
additional execution in the United States might have saved eight
lives. [ Footnote 4/7 ]

															The methods and conclusions of the Ehrlich study Page 428 U. S. 235 have been severely criticized on a number of grounds. [ Footnote 4/8 ] It has been suggested, for
example, that the study is defective because it compares execution
and homicide rates on a nationwide, rather than a state-by-state,
basis. The aggregation of data from all States -- including those
that have abolished the death penalty -- obscures the relationship
between murder and execution rates. Under Ehrlich's methodology, a
decrease in the execution risk in one State combined with an
increase in the murder rate in another State would, all other
things being equal, suggest a deterrent effect that quite obviously
would not exist. Indeed, a deterrent effect would be suggested if,
once again all other things being equal, one State abolished the
death penalty and experienced no change in the murder rate, while
another State experienced an increase in the murder rate. [ Footnote 4/9 ]

															The most compelling criticism of the Ehrlich study is Page 428 U. S. 236 that its conclusions are extremely sensitive to the choice of
the time period included in the regression analysis. Analysis of
Ehrlich's data reveals that all empirical support for the deterrent
effect of capital punishment disappears when the five most recent
years are removed from his time series -- that is to say, whether a
decrease in the execution risk corresponds to an increase or a
decrease in the murder rate depends on the ending point of the
sample period. [ Footnote 4/10 ]
This finding has cast severe doubts on the reliability of Ehrlich's
tentative conclusions. [ Footnote
4/11 ] Indeed, a recent regression study, based on Ehrlich's
theoretical model but using cross-section state data for the years
1950 and 1960, found no support for the conclusion that executions
act as a deterrent. [ Footnote
4/12 ]

															The Ehrlich study, in short, is of little, if any, assistance in
assessing the deterrent impact of the death penalty. Accord,
Commonwealth v. O'Neal, ___ Mass. ___, 339
N.E.2d 676 , 684 (1975). The evidence I reviewed in Furman [ Footnote 4/13 ]
remains convincing, in my view, that "capital punishment is not
necessary as a deterrent to crime in our society." 408 U.S. at 408 U. S. 353 .
The justification for the death penalty must be found
elsewhere.

															The other principal purpose said to be served by the death
penalty is retribution. [ Footnote
4/14 ] The notion that retribution Page 428 U. S. 237 can serve as a moral justification for the sanction of death
finds credence in the opinion of my Brothers STEWART, POWELL, and
STEVENS, and that of my Brother WHITE in Roberts v. Louisiana,
post, p. 428 U. S. 337 . See also Furman v. Georgia, 408 U.S. at 408 U. S.
394 -395 (BURGER, C.J., dissenting). It is this notion
that I find to be the most disturbing aspect of today's unfortunate
decisions.

															The concept of retribution is a multifaceted one, and any
discussion of its role in the criminal law must be undertaken with
caution. On one level, it can be said that the notion of
retribution or reprobation is the basis of our insistence that only
those who have broken the law be punished, and, in this sense, the
notion is quite obviously central to a just system of criminal
sanctions. But our recognition that retribution plays a crucial
role in determining who may be punished by no means requires
approval of retribution as a general justification for punishment.
[ Footnote 4/15 ] It is the
question whether retribution can provide a moral justification for
punishment -- in particular, capital punishment -- that we must
consider.

															My Brothers STEWART, POWELL, and STEVENS offer the following
explanation of the retributive justification for capital
punishment:

															"'The instinct for retribution is part of the nature of man, and
channeling that instinct in the administration of criminal justice
serves an important purpose in promoting the stability of a society
governed Page 428 U. S. 238 by law. When people begin to believe that organized society is
unwilling or unable to impose upon criminal offenders the
punishment they 'deserve,' then there are sown the seeds of anarchy
-- of self-help, vigilante justice, and lynch law.'" Ante at 428 U. S. 183 ,
quoting from Furman v. Georgia, supra at 408 U. S. 308 (STEWART, J., concurring). This statement is wholly inadequate to
justify the death penalty. As my Brother BRENNAN stated in Furman, "[t]here is no evidence whatever that utilization of
imprisonment, rather than death, encourages private blood feuds and
other disorders."

															408 U.S. at 408 U. S. 303 (concurring opinion). [ Footnote
4/16 ] It simply defies belief to suggest that the death penalty
is necessary to prevent the American people from taking the law
into their own hands.

															In a related vein, it may be suggested that the expression of
moral outrage through the imposition of the death penalty serves to
reinforce basic moral values -- that it marks some crimes as
particularly offensive, and therefore to be avoided. The argument
is akin to a deterrence argument, but differs in that it
contemplates the individual's shrinking from antisocial conduct not
because he fears punishment, but because he has been told in the
strongest possible way that the conduct is wrong. This contention,
like the previous one, provides no support for the death penalty.
It is inconceivable that any individual concerned about conforming
his conduct to what society says is "right" would fail to realize
that murder is "wrong" if the penalty were simply life
imprisonment.

															The foregoing contentions -- that society's expression of moral
outrage through the imposition of the death penalty preempts the
citizenry from taking the law into its Page 428 U. S. 239 own hands and reinforces moral values -- are not retributive in
the purest sense. They are essentially utilitarian, in that they
portray the death penalty as valuable because of its beneficial
results. These justifications for the death penalty are inadequate
because the penalty is, quite clearly I think, not necessary to the
accomplishment of those results.

															There remains for consideration, however, what might be termed
the purely retributive justification for the death penalty -- that
the death penalty is appropriate not because of its beneficial
effect on society, but because the taking of the murderer's life is
itself morally good. [ Footnote
4/17 ] Some of the language of the opinion of my Brothers
STEWART, POWELL, and STEVENS in No. 74-6257 appears positively to
embrace this notion of retribution for its own sake as a
justification for capital punishment. [ Footnote 4/18 ] They state:

															"[T]he decision that capital punishment may be the appropriate
sanction in extreme cases is an expression of the community's
belief that certain crimes are themselves so grievous an affront to
humanity that the only adequate response may be the penalty of
death." Ante at 428 U. S. 184 (footnote omitted). Page 428 U. S. 240 They then quote with approval from Lord Justice Denning's
remarks before the British Royal Commission on Capital
Punishment:

															"'The truth is that some crimes are so outrageous that society
insists on adequate punishment because the wrongdoer deserves it,
irrespective of whether it is a deterrent or not.'" Ante at 428 U. S. 184 n. 30.

															Of course, it may be that these statements are intended as no
more than observations as to the popular demands that it is thought
must be responded to in order to prevent anarchy. But the
implication of the statements appears to me to be quite different
-- namely, that society's judgment that the murderer "deserves"
death must be respected not simply because the preservation of
order requires it, but because it is appropriate that society make
the judgment and carry it out. It is this latter notion, in
particular, that I consider to be fundamentally at odds with the
Eighth Amendment. See Furman v. Georgia, 408 U.S. at 408 U. S.
343 -345 (MARSHALL, J., concurring). The mere fact that
the community demands the murderer's life in return for the evil he
has done cannot sustain the death penalty, for as JUSTICES STEWART,
POWELL, and STEVENS remind us, "the Eighth Amendment demands more
than that a challenged punishment be acceptable to contemporary
society." Ante at 428 U. S. 182 . To be sustained under the Eighth
Amendment, the death penalty must "compor[t] with the basic concept
of human dignity at the core of the Amendment," ibid.; the
objective in imposing it must be "[consistent] with our respect for
the dignity of [other] men." Ante at 428 U. S. 183 . See Trop v. Dulles, 356 U. S. 86 , 356 U. S. 100 (1958) (plurality opinion). Under these standards, the taking of
life "because the wrongdoer deserves it" surely must Page 428 U. S. 241 fall, for such a punishment has as its very basis the total
denial of the wrongdoer's dignity and worth. [ Footnote 4/19 ]

															The death penalty, unnecessary to promote the goal of deterrence
or to further any legitimate notion of retribution, is an excessive
penalty forbidden by the Eighth and Fourteenth Amendments. I
respectfully dissent from the Court's judgment upholding the
sentences of death imposed upon the petitioners in these cases.

															* [This opinion applies also to No. 75-5706, Proffitt v.
Florida, post, p. 428 U. S. 242 , and
No. 75-5394, Jurek v. Texas, post, p. 428 U. S.
262 .]

															[ Footnote 4/1 ]

															Sarat & Vidmar, Public Opinion, The Death Penalty, and the
Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wis.L.Rev.
171.

															[ Footnote 4/2 ] See e.g., T. Sellin, The Death Penalty, A Report for
the Model Penal Code Project of the American Law Institute
(1959).

															[ Footnote 4/3 ]

															United Nations, Department of Economic and Social Affairs,
Capital Punishment, pt. II, � 159, p. 123 (1968).

															[ Footnote 4/4 ]

															I. Ehrlich, The Deterrent Effect of Capital Punishment: A
Question of Life and Death (Working Paper No. 18, National Bureau
of Economic Research, Nov.1973); Ehrlich, The Deterrent Effect of
Capital Punishment: A Question of Life and Death, 65 Am.Econ.Rev.
397 (June 1975).

															[ Footnote 4/5 ] Id. at 409.

															[ Footnote 4/6 ]

															The variables other than execution risk included probability of
arrest, probability of conviction given arrest, national aggregate
measures of the percentage of the population between age 14 and 24,
the unemployment rate, the labor force participation rate, and
estimated per capita income.

															[ Footnote 4/7 ] Id. at 398, 414.

															[ Footnote 4/8 ] See Passell & Taylor, The Deterrent Effect of
Capital Punishment: Another View (unpublished Columbia University
Discussion Paper 74-7509, Mar.1975), reproduced in Brief for
Petitioner App. E in Jurek v. Texas, O.T. 1975, No.
75-5844; Passell, The Deterrent Effect of the Death Penalty: A
Statistical Test, 28 Stan. L.Rev. 61 (1975); Baldus & Cole, A
Comparison of the Work of Thorsten Sellin & Isaac Ehrlich on
the Deterrent Effect of Capital Punishment, 85 Yale L.J. 170
(1975); Bowers & Pierce, The Illusion of Deterrence in Isaac
Ehrlich's Research on Capital Punishment, 85 Yale L.J. 187 (1975);
Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His
Critics, 85 Yale L.J. 359 (1976). See also Ehrlich,
Deterrence: Evidence and Inference, 85 Yale L.J. 209 (1975);
Ehrlich, Rejoinder, 85 Yale L.J. 368 (1976). In addition to the
items discussed in text, criticism has been directed at the quality
of Ehrlich's data, his choice of explanatory variables, his failure
to account for the interdependence of those variables, and his
assumptions as to the mathematical form of the relationship between
the homicide rate and the explanatory variables.

															[ Footnote 4/9 ] See Baldus & Cole, supra at 175-177.

															[ Footnote 4/10 ]

															Bowers & Pierce, supra, 428
U.S. 153 fn4/8|>n. 8, at 197-198. See also Passell
& Taylor, supra, 428
U.S. 153 fn4/8|>n. 8, at 2-66 - 2-68.

															[ Footnote 4/11 ] See Bowers & Pierce, supra, 428
U.S. 153 fn4/8|>n. 8, at 197-198; Baldus & Cole, supra, 428
U.S. 153 fn4/8|>n. 8, at 181, 183-185; Peck, supra, 428
U.S. 153 fn4/8|>n. 8, at 366-367.

															[ Footnote 4/12 ]

															Passell, supra, 428
U.S. 153 fn4/8|>n. 8.

															[ Footnote 4/13 ] See also Bailey, Murder and Capital Punishment: Some
Further Evidence, 45 Am.J.Orthopsychiatry 669 (1975); W. Bowers,
Executions in America 121-163 (1974).

															[ Footnote 4/14 ]

															In Furman, I considered several additional purposes
arguably served by the death penalty. 408 U.S. at 408 U. S. 314 , 408 U. S. 342 , 408 U. S.
355 -358. The only additional purpose mentioned in the
opinions in these case is specific deterrence -- preventing the
murderer from committing another crime. Surely life imprisonment
and, if necessary, solitary confinement would fully accomplish this
purpose. Accord, Commonwealth v. O'Neal, ___ Mass. ___,
___, 339
N.E.2d 676 , 685 (1975); People v.
Anderson, 6 Cal. 3d 628 ,
651, 493 P.2d 880, 896, cert. denied, 406 U.S. 958
(1972).

															[ Footnote 4/15 ] See, e.g., H. Hart, Punishment and Responsibility 8-10,
71-83 (1968); H. Packer, Limits of the Criminal Sanction 38-39, 66
(1968).

															[ Footnote 4/16 ] See Commonwealth v. O'Neal, supra at ___, 339 N.E.2d at
687; Bowers, supra, 428
U.S. 153 fn4/13|>n. 13, at 135; Sellin, supra, 428
U.S. 153 fn4/2|>n. 2, at 79.

															[ Footnote 4/17 ] See Hart, supra, 428
U.S. 153 fn4/15|>n. 15, at 72, 74-75, 234-235; Packer, supra, 428
U.S. 153 fn4/15|>n. 15, at 37-39.

															[ Footnote 4/18 ]

															MR. JUSTICE WHITE's view of retribution as a justification for
the death penalty is not altogether clear. "The widespread
reenactment of the death penalty," he states at one point, "answers
any claims that life imprisonment is adequate punishment to satisfy
the need for reprobation or retribution." Roberts v. Louisiana,
post at 428 U. S. 354 .
(WHITE, J., dissenting). But MR. JUSTICE WHITE later states:

															"It will not do to denigrate these legislative judgments as some
form of vestigial savagery or as purely retributive in motivation,
for they are solemn judgments, reasonably based, that imposition of
the death penalty will save the lives of innocent persons." Post at 428 U. S.
355 .

															[ Footnote 4/19 ] See Commonwealth v. O'Neal, supra at ___, 339 N.E.2d at
687; People v. Anderson, 6 Cal. 3d at 651, 493 P.2d at
896.

Summary: The U.S. Supreme Court case Gregg v. Georgia (1976) dealt with the constitutionality of the death penalty under the Eighth and Fourteenth Amendments. Petitioner Troy Gregg was charged with armed robbery and murder, found guilty, and sentenced to death. The Court reviewed Georgia's bifurcated trial procedure, which included a separate penalty stage where the jury could recommend death or life imprisonment based on aggravating and mitigating circumstances. The Court upheld the death sentence, finding that the Georgia statute, amended after Furman v. Georgia, provided sufficient guidelines for the jury and did not result in cruel and unusual punishment. The Court also discussed various purposes of the death penalty, including retribution and deterrence, and concluded that life imprisonment was an adequate alternative.