U.S. Supreme Court Pulley v. Harris, 465 U.S.
37 (1984) Pulley v. Harris No. 82-1095 Argued November 7,
1983 Decided January 23,
1984 465 U.S.
37 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondent was convicted of a capital crime in a California
court and was sentenced to death, and the California Supreme Court
affirmed, rejecting the claim that California's capital punishment
statute was invalid under the Federal Constitution because it
failed to require the California Supreme Court to compare
respondent's sentence with sentences imposed in similar capital
cases, and thereby to determine whether they were proportionate.
After habeas corpus relief was denied by the state courts,
respondent sought habeas corpus in Federal District Court, again
contending that he had been denied the comparative proportionality
review assertedly required by the Constitution. The District Court
denied the writ, but the Court of Appeals held that comparative
proportionality review was constitutionally required. Held: 1. There is no merit to respondent's contention that the Court
of Appeals' judgment should be affirmed solely on the ground that
state decisional law entitles him to comparative proportionality
review. Under 28 U.S.C. § 2241, a federal court may not issue a
writ of habeas corpus on the basis of a perceived error of state
law. In rejecting respondent's demand for proportionality review,
the California Supreme Court did not suggest that it was in any way
departing from state case law precedent. Moreover, if respondent's
claim is that, because of an evolution of state law, he would now
enjoy the kind of proportionality review that has so far been
denied him, the state courts should consider the matter, if they
are so inclined, free of the constraints of the federal writ of
habeas corpus. Pp. 465 U. S.
41 -42.

															2. The Eighth Amendment does not require, as an invariable rule
in every case, that a state appellate court, before it affirms a
death sentence, compare the sentence in the case before it with the
penalties imposed in similar cases if requested to do so by the
prisoner. Pp. 465 U. S.
44 -54.

															(a) This Court's cases do not require comparative
proportionality review by an appellate court in every capital case.
The outcome in Gregg v. Georgia, 428 U.
S. 153 (upholding Georgia's statutory scheme which
required comparative proportionality review), and Proffitt v.
Florida, 428 U. S. 242 (upholding Florida's scheme under which the appellate court
performed proportionality review despite the absence of a Page 465 U. S. 38 statutory requirement), did not hinge on proportionality review.
That some schemes providing proportionality review are
constitutional does not mean that such review is indispensable.
Moreover, Jurek v. Texas, 428 U.
S. 262 , upheld Texas' scheme even though neither the
statute nor state case law provided for comparative proportionality
review. Pp. 465 U. S.
44 -51.

															(b) Assuming that there could be a capital sentencing system so
lacking in other checks on arbitrariness that it would not pass
constitutional muster without comparative proportionality review,
the California statute involved here is not of that sort. Pp. 465 U. S.
51 -54.

															692 F.2d 1189, reversed and remanded.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined,
and in all but Part III of which STEVENS, J., joined. STEVENS, J.,
filed an opinion concurring in part and concurring in the judgment, post, p. 465 U. S. 54 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 465 U. S.
59 .

															JUSTICE WHITE delivered the opinion of the Court.

															Respondent Harris was convicted of a capital crime in a
California court and was sentenced to death. [ Footnote 1 ] Along with Page 465 U. S. 39 many other challenges to the conviction and sentence, Harris
claimed on appeal that the California capital punishment statute
was invalid under the United States Constitution because it failed
to require the California Supreme Court to compare Harris' sentence
with the sentences imposed in similar capital Page 465 U. S. 40 cases. and thereby to determine whether they were proportionate.
[ Footnote 2 ] Rejecting the
constitutional claims by citation to earlier cases, the California
Supreme Court affirmed. People v. Harris, 28 Cal. 3d
935 , 623 P.2d 240 (1981). [ Footnote 3 ] We denied certiorari. 454 U.S. 882 (1981).

															Harris then sought a writ of habeas corpus in the state courts.
He again complained of the failure to provide him with comparative
proportionality review. The writ was denied without opinion, and we
denied certiorari. Harris v. California, 457 U.S. 1111
(1982). Harris next sought habeas corpus in the United States
District Court for the Southern District of California, pressing
the claim, among others, that he had been denied the comparative
proportionality review assertedly required by the United States
Constitution. The District Court denied the writ and refused to
stay Harris' execution, but issued a certificate of probable cause.
The Court of Appeals, after holding that the proportionality review
demanded by Harris was constitutionally required, vacated the
judgment of the District Court and ordered that the writ issue
relieving Harris of the death sentence unless, within 120 days, the
California Supreme Court undertook to determine whether the penalty
imposed Page 465 U. S. 41 on Harris is proportionate to sentences imposed for similar
crimes. [ Footnote 4 ] 692 F.2d
1189 (1982). We granted the State's petition for certiorari
presenting the question whether the proportionality review mandated
by the Court of Appeals is required by the United States
Constitution. 460 U.S. 1036 (1983). I Harris concedes that the Court of Appeals' judgment rested on a
federal constitutional ground. He nonetheless contends that we
should affirm the judgment, which has the effect of returning the
case to the state courts, because state law may entitle him to the
comparative proportionality review that he has unsuccessfully
demanded. We are unimpressed with the submission. Under 28 U.S.C. §
2241, a writ of habeas corpus disturbing a state court judgment may
issue only if it is found that a prisoner is in custody "in
violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2241(c)(3). A federal court may not issue the
writ on the basis of a perceived error of state law.

															Even if an error of state law could be sufficiently egregious to
amount to a denial of equal protection or of due process of law
guaranteed by the Fourteenth Amendment, Harris' submission is not
persuasive. He relies on People v. Frerson, Page 465 U. S. 42 25 Cal. 3d
142 , 599 P.2d 587 (1979), and People v.
Jackson, 28 Cal. 3d
264 , 618 P.2d 149 (1980), for the proposition that
proportionality review should have been extended to him as a matter
of state law. But since deciding those cases, the California
Supreme Court has twice rejected Harris' demand for proportionality
review without suggesting that it was in any way departing from
precedent. Indeed, on direct review, it indicated that Harris'
constitutional claims had been adversely decided in those very
cases.

															Finally, if Harris' claim is that, because of an evolution of
state law, he would now enjoy the kind of proportionality review
that has so far been denied him, that claim, even if accurate,
[ Footnote 5 ] would not warrant
issuing a writ of habeas corpus. Rather it would appear to be a
matter that the state courts should consider, if they are so
inclined, free of the constraints of the federal writ. Accordingly,
we deem it necessary to reach the constitutional question on which
certiorari was granted. II At the outset, we should more clearly identify the issue before
us. Traditionally, "proportionality" has been used with reference
to an abstract evaluation of the appropriateness of Page 465 U. S. 43 a sentence for a particular crime. Looking to the gravity of the
offense and the severity of the penalty, to sentences imposed for
other crimes, and to sentencing practices in other jurisdictions,
this Court has occasionally struck down punishments as inherently
disproportionate, and therefore cruel and unusual, when imposed for
a particular crime or category of crime. See, e.g., Solem v.
Helm, 463 U. S. 277 (1983); Enmund v. Florida, 458 U.
S. 782 (1982); Coker v. Georgia, 433 U.
S. 584 (1977). The death penalty is not in all cases a
disproportionate penalty in this sense. Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 187 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); id. at 428 U. S. 226 (WHITE, J., concurring in judgment).

															The proportionality review sought by Harris, required by the
Court of Appeals, [ Footnote 6 ]
and provided for in numerous state statutes [ Footnote 7 ] is of a different sort. This sort of
proportionality review presumes that the death sentence is not
disproportionate to the crime in the traditional sense. It purports
to inquire instead whether the penalty is nonetheless unacceptable
in a particular case because disproportionate to the punishment
imposed on others convicted of the same crime. The issue in this
case, therefore, is whether the Eighth Amendment, applicable to the
States through the Fourteenth Page 465 U. S. 44 Amendment, requires a state appellate court, before it affirms a
death sentence, to compare the sentence in the case before it with
the penalties imposed in similar cases if requested to do so by the
prisoner. Harris insists that it does, and that this is the
invariable rule in every case. Apparently, the Court of Appeals was
of the same view. We do not agree. III Harris' submission is rooted in Furman v. Georgia, 408 U. S. 238 (1972). In Furman, the Court concluded that capital
punishment, as then administered under statutes vesting unguided
sentencing discretion in juries and trial judges, had become
unconstitutionally cruel and unusual punishment. The death penalty
was being imposed so discriminatorily, id. at 428 U. S. 240 (Douglas, J., concurring), so wantonly and freakishly, id. at 428 U. S. 306 (Stewart, J., concurring), and so infrequently, id. at 428 U. S. 310 (WHITE, J., concurring), that any given death sentence was cruel
and unusual. In response to that decision, roughly two-thirds of
the States promptly redrafted their capital sentencing statutes in
an effort to limit jury discretion and avoid arbitrary and
inconsistent results. All of the new statutes provide for automatic
appeal of death sentences. Most, such as Georgia's, require the
reviewing court, to some extent at least, to determine whether,
considering both the crime and the defendant, the sentence is
disproportionate to that imposed in similar cases. Not every State
has adopted such a procedure. In some States, such as Florida, the
appellate court performs proportionality review despite the absence
of a statutory requirement; in others, such as California and
Texas, it does not.

															Four years after Furman, this Court examined several of
the new state statutes. We upheld one of each of the three sorts
mentioned above. See Gregg v. Georgia, supra; Proffitt v.
Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976). Needless to say, that some schemes providing Page 465 U. S. 45 proportionality review are constitutional does not mean that
such review is indispensable. We take statutes as we find them. To
endorse the statute as a whole is not to say that anything
different is unacceptable. As was said in Gregg, "[w]e 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, for each
distinct system must be examined on an individual basis."

															428 U.S. at 195 (footnote omitted). Examination of our 1976
cases makes clear that they do not establish proportionality review
as a constitutional requirement.

															In Gregg, six Justices concluded that the Georgia
system adequately directed and limited the jury's discretion. The
bifurcated proceedings, the limited number of capital crimes, the
requirement that at least one aggravating circumstance be present,
and the consideration of mitigating circumstances minimized the
risk of wholly arbitrary, capricious, or freakish sentences. In the
opinion announcing the judgment of the Court, three Justices
concluded that sentencing discretion under the statute was
sufficiently controlled by clear and objective standards. Id. at 428 U. S.
197 -198. In a separate concurrence, three other Justices
found sufficient reason to expect that the death penalty would not
be imposed so wantonly, freakishly, or infrequently as to be
invalid under Furman. 428 U.S. at 428 U. S.
222 .

															Both opinions made much of the statutorily required comparative
proportionality review. Id. at 428 U. S. 198 , 428 U. S.
204 -206, 428 U. S.
222 -223. This was considered an additional safeguard
against arbitrary or capricious sentencing. While the opinion of
Justices Stewart, POWELL, and STEVENS suggested that some form of
meaningful appellate review is required, id. at 428 U. S. 153 , 428 U. S. 198 , 428 U. S.
204 -206, those Justices did not declare that comparative
review was so critical that, without it, the Georgia statute would
not have passed constitutional muster. Indeed, in Page 465 U. S. 46 summarizing the components of an adequate capital sentencing
scheme, Justices Stewart, POWELL, and STEVENS did not mention
comparative review:

															"[T]he concerns expressed in Furman . . . 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." Id. at 428 U. S. 195 .
In short, the Court of Appeals erred in concluding that Gregg required proportionality review.

															There is even less basis for reliance on Proffitt v.
Florida, supra. The Florida statute provides for a bifurcated
procedure and forecloses the death penalty unless the sentencing
authority finds that at least one of eight statutory aggravating
circumstances is present and is not outweighed by any mitigating
circumstances. The joint opinion of Justices Stewart, POWELL, and
STEVENS observed that the Florida scheme, like its Georgia
counterpart, requires the sentencer to focus on the individual
circumstances of each homicide and each defendant. 428 U.S. at 428 U. S. 251 .
Also, by vesting ultimate sentencing authority in the judge, rather
than the jury, the statute was expected to yield more consistent
sentencing at the trial court level. Id. at 428 U. S. 252 .
Only after concluding that trial judges are given specific and
detailed guidance to assist them in deciding whether to impose the
death penalty did the opinion observe that death sentences are
reviewed to ensure that they are consistent with the sentences
imposed in similar cases. Id. at 428 U. S.
250 -251. [ Footnote
8 ] The opinion concurring in Page 465 U. S. 47 the judgment filed by three other Justices approved the Florida
statute without even mentioning appellate review. Id. at 428 U. S.
260 -261. Page 465 U. S. 48 That Gregg and Proffitt did not establish a
constitutional requirement of proportionality review is made
clearer by Jurek v. Texas, 428 U.
S. 262 (1976), decided the same day. In Jurek, we upheld a death sentence even though neither the statute, as in
Georgia, nor state case law, as in Florida, provided for
comparative proportionality review. Justices Stewart, POWELL, and
STEVENS, after emphasizing the limits on the jury's discretion,
[ Footnote 9 ] concluded:

															"Texas' capital sentencing procedures, like those of Georgia and
Florida, do not violate the Eighth and Fourteenth Amendments. By
narrowing its definition of capital murder, Texas has essentially
said that there must be at least one statutory aggravating
circumstance in a first-degree murder case before a death sentence
may even be considered. By authorizing the defense to bring before
the jury at the separate sentencing hearing whatever mitigating
circumstances relating to the individual defendant can be adduced,
Texas has ensured that the sentencing jury will have adequate
guidance to enable it to perform its sentencing function. By
providing Page 465 U. S. 49 prompt judicial review of the jury's decision in a court with
statewide jurisdiction, Texas has provided a means to promote the
evenhanded, rational, and consistent imposition of death sentences
under law. Because this system serves to assure that sentences of
death will not be 'wantonly' or 'freakishly' imposed, it does not
violate the Constitution." Id. at 428 U. S.
276 .

															That the three Justices considered such appellate review as
Texas provided "a means to promote the evenhanded, rational, and
consistent imposition of death sentences," ibid., is
revealing. First, it makes plain that, at least in light of the
other safeguards in the Texas statute, proportionality review would
have been constitutionally superfluous. Second, it suggests that
the similarly worded references to appellate review in Gregg and Proffitt were focused not on
proportionality review as such, but only on the provision of some
sort of prompt and automatic appellate review. The concurrence
expressing the views of three other Justices sustained the Texas
statute by focusing solely on the limitations on the jury's
discretion, without even mentioning appellate review. [ Footnote 10 ] Page 465 U. S. 50 In view of Jurek, we are quite sure that, at that
juncture, the Court had not mandated comparative proportionality
review whenever a death sentence was imposed. [ Footnote 11 ]

															Harris also relies on Zant v. Stephens, 462 U.
S. 862 (1983), which was announced after the Court of
Appeals' decision in this case. Zant did not depart from Gregg, and did not question Jurek. Indeed, Jurek was cited in support of the decision. 462 U.S. at 462 U. S.
875 -876, n. 13. While emphasizing the importance of
mandatory appellate review under the Georgia statute, id. at 462 U. S. 875 and 462 U. S. 876 ,
we did not hold that, without comparative proportionality review,
the statute would be unconstitutional. To the contrary, we relied
on the jury's finding of aggravating circumstances, not the State
Supreme Court's finding of proportionality, as rationalizing the
sentence. [ Footnote 12 ]
Thus, the emphasis was on the constitutionally necessary narrowing
function of statutory aggravating circumstances. Proportionality
review was considered to be an additional safeguard against
arbitrarily imposed death sentences, but we certainly did not hold
that comparative review was constitutionally required.

															There is thus no basis in our cases for holding that comparative
proportionality review by an appellate court is required in every
case in which the death penalty is imposed and the Page 465 U. S. 51 defendant requests it. Indeed, to so hold would effectively
overrule Jurek, and would substantially depart from the
sense of Gregg and Proffitt. We are not persuaded
that the Eighth Amendment requires us to take that course. IV Assuming that there could be a capital sentencing system so
lacking in other checks on arbitrariness that it would not pass
constitutional muster without comparative proportionality review,
the 1977 California statute is not of that sort. Under this scheme,
a person convicted of first-degree murder is sentenced to life
imprisonment unless one or more "special circumstances" are found,
in which case the punishment is either death or life imprisonment
without parole. Cal.Penal Code Ann. §§ 190, 190.2 (West Supp.1978).
[ Footnote 13 ] Special
circumstances are alleged in the charging paper and tried with the
issue of guilt at the initial phase of the trial. At the close of
evidence, the jury decides guilt or innocence and determines
whether the special circumstances alleged are present. Each special
circumstance must be proved beyond a reasonable doubt. § 190.4(a).
If the jury finds the defendant guilty of first-degree murder and
finds at least one special circumstance, the trial proceeds to a
second phase to determine the appropriate penalty. Additional
evidence may be offered and the jury is given a list of relevant
factors. Page 465 U. S. 52 § 190.3. [ Footnote
14 ]

															"After having heard and received all of the evidence, the trier
of fact shall consider, take into account and be guided by the
aggravating and mitigating circumstances referred to in this
section, and shall determine whether the penalty shall be death or
life imprisonment without the possibility of parole." Ibid. If the jury returns a verdict of death, the
defendant is deemed to move to modify the verdict. § 190.4(e). The
trial judge then reviews the evidence and, in light of the
statutory factors, makes an "independent determination as to
whether the weight of the evidence supports the jury's findings and
verdicts." Ibid. The judge is required to state on the
record the reasons for his findings. Page 465 U. S. 53 Ibid. If the trial judge denies the motion for
modification, there is an automatic appeal. §§ 190.4(e), 1239(b).
The statute does not require comparative proportionality review or
otherwise describe the nature of the appeal. [ Footnote 15 ] It does state that the trial
judge's refusal to modify the sentence "shall be reviewed." §
190.4(e). This would seem to include review of the evidence relied
on by the judge. As the California Supreme Court has said,

															"the statutory requirements that the jury specify the special
circumstances which permit imposition of the death penalty, and
that the trial judge specify his reasons for denying modification
of the death penalty, serve to assure thoughtful and effective
appellate review, focusing upon the circumstances present in each
particular case." People v. Frierson, 25 Cal. 3d at 179, 599 P.2d at 609.
That court has reduced a death sentence to life imprisonment
because the evidence did not support the findings of special
circumstances. People v. Thompson, 27 Cal. 3d
303 , 611 P.2d 883 (1980).

															By requiring the jury to find at least one special circumstance
beyond a reasonable doubt, the statute limits the death sentence to
a small subclass of capital-eligible cases. The statutory list of
relevant factors, applied to defendants within this subclass,
"provide[s] jury guidance and lessen[s] the chance of arbitrary
application of the death penalty," 692 F.2d at 1194,
"guarantee[ing] that the jury's discretion will be guided and its
consideration deliberate," id. at 1195. The jury's
"discretion must be suitably directed and limited so as to minimize
the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 428 U. S. 189 .
Its decision is reviewed by the trial judge and the State Supreme
Court. On its face, this system, without any requirement or
practice of comparative proportionality review, cannot be
successfully challenged under Furman and our subsequent
cases. Page 465 U. S. 54 Any capital sentencing scheme may occasionally produce
aberrational outcomes. Such inconsistencies are a far cry from the
major systemic defects identified in Furman. As we have
acknowledged in the past, "there can be no perfect procedure
for deciding in which cases governmental authority should be used
to impose death.'" Zant v. Stephens, 462 U.S. at 465 U. S. 884 ,
quoting Lockett v. Ohio, 438 U. S. 586 , 438 U. S. 605 (1978) (plurality opinion). As we are presently informed, we cannot
say that the California procedures provided Harris inadequate
protection against the evil identified in Furman. The
Court of Appeals therefore erred in ordering the writ of habeas
corpus to issue. Its judgment is reversed, and the case is remanded
for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ]

															The evidence at trial established that, on July 5, 1978,
respondent and his brother decided to steal a getaway car for a
bank robbery in Mira Mesa, Cal. Respondent approached two teenaged
boys eating hamburgers in their car, and forced them at gunpoint to
drive him to a nearby wooded area. His brother followed. T hey
parked the cars, and walked partway up a trail. Respondent told the
boys he was going to use their car to rob a bank. They offered to
walk to the top of the hill, wait a while, and then report the car
as stolen, giving misleading descriptions of the thieves.
Respondent approved the plan, but when one of the boys moved off
into the bushes, he shot the other. He pursued and killed the
fleeing boy, then returned and fired several more shots into the
body of his first victim. Respondent finished the boys' hamburgers,
and he and his brother then went ahead with the bank robbery. They
were apprehended soon thereafter, and confessed to the killings and
the robbery.

															A jury convicted respondent of kidnaping, robbery, and the
first-degree murder of both boys. In accordance with the California
death sentencing scheme then in effect, it also found that the
statutory "special circumstances" charged by the prosecution were
proved beyond a reasonable doubt: respondent had been convicted of
more than one offense of first-degree murder, Cal.Penal Code Ann. §
190.2(c)(5) (West Supp.1978), and each of the murders was willful,
deliberate, premeditated, and committed during the commission of
kidnaping and robbery, §§ 190.2(c)(3)(i), (ii). The proper
punishment was therefore either death or life imprisonment without
the possibility of parole, to be determined at a separate
sentencing hearing. At that hearing, the State introduced evidence
that respondent had been convicted of manslaughter in 1975; that he
had been found in possession of a makeshift knife and a garrote
while in prison; that he and others had sodomized another inmate;
and that he had threatened that inmate's life. Respondent took the
stand and testified to his dismal childhood, his minimal education,
and the conviction of his father for sexually molesting
respondent's sisters. He stated that his brother had fired the
first shots, and that he was sorry about the murders. The jury was
then provided with a list of factors to help it decide upon a
penalty. It chose death. The trial judge denied the automatic
motion to modify the judgment. See § 190.4(e).

															Respondent was sentenced under the 1977 California death penalty
statute, 1977 Cal.Stats., ch. 316, pp. 1255-1266, which was
codified at Cal.Penal Code Ann. §§ 190-190.6 (West Supp.1978). The
1977 statute was replaced in late 1978 by the substantially similar
provisions now in effect. See Cal.Pen.Code Ann. §§
190-190.7 (West Supp.1983). Unless otherwise noted, references in
this opinion are to the 1977 statute. For the most part, however,
what is said applies equally to the current California statute.

															[ Footnote 2 ]

															There has been some confusion as to whether Harris sought
proportionality review on direct appeal. The record filed with us
contains a copy of his appellate brief. The brief is largely
identical to his federal habeas petition, which is also in the
record, and, from what we can infer, to his state petition, which
is not. In his appellate brief, Harris argued that the California
scheme was constitutionally defective for failure to establish a
proportionality review mechanism. His habeas petitions also
included an affidavit detailing perceived inconsistencies in
California capital sentencing and identifying similar cases in
which the death sentence was not imposed. This affidavit was not
presented to the California Supreme Court on direct appeal.

															[ Footnote 3 ]

															Three justices joined the opinion of the court. Justice Tobriner
concurred to note that he considered the death penalty statute
unconstitutional, but felt bound by a previous ruling from which he
had dissented. Chief Justice Bird, joined by Justice Mosk,
dissented on the ground that pretrial publicity had denied
respondent a fair trial.

															[ Footnote 4 ]

															The court rejected Harris' other constitutional challenges to
the California statute. First, it found that the list of
aggravating and mitigating circumstances adequately limited the
jury's discretion, even though the factors were not identified as
aggravating or mitigating and even though the jury was allowed to
consider nonstatutory factors. Second, it held that there was no
constitutional requirement that the appropriateness of the death
penalty be established beyond a reasonable doubt. Third, written
findings by the jury were not constitutionally required, at least
where, as in California, the judge provides such a statement. The
court remanded, however, for a possible evidentiary hearing on
Harris' claim that the death penalty was being discriminatorily
administered in California, and for a closer look at the state
court record to determine whether the California Supreme Court's
conclusion that pretrial publicity was not unfairly prejudicial was
adequately supported.

															[ Footnote 5 ]

															None of the California Supreme Court's many reversals in capital
cases was based on a finding that the sentence was disproportionate
to that imposed on similar defendants for similar crimes. We are
aware of only one case beside this one in which the court affirmed
a death sentence imposed under the 1977 or later statute. People v. Jackson, 28 Cal. 3d
264 , 618 P.2d 149 (1980). No proportionality review of the sort
at issue here was conducted in that case.

															At oral argument, counsel for respondent pointed to People
v. Dillon, 34 Cal. 3d
441 , 668 P.2d 697 (1983), as an example of California's evolving practice of
proportionality review. There the court reduced a first-degree
murder conviction carrying a life sentence to a second-degree
conviction. The court relied in part on the disparity between
Dillon's punishment and that received by the six other participants
in the crime. Dillon was not a death case, did not involve any
cross-case comparison, and hardly signifies an established practice
of proportionality review.

															[ Footnote 6 ]

															The Court of Appeals noted a distinction between the
proportionality of the death penalty to the crime for which it was
imposed, and the proportionality of a given defendant's sentence to
other sentences imposed for similar crimes. "This latter
proportionality review . . . is what concerns us here." 692 F.2d
1189, 1196 (1982).

															[ Footnote 7 ]

															Under the much-copied Georgia scheme, for example, the Supreme
Court is required in every case to determine

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

															Ga.Code. Ann. § 17-10-35(c)(3) (1982). If the court affirms the
death sentence, it is to include in its decision reference to
similar cases that it has taken into consideration. § 17-10-35(e).
The court is required to maintain records of all capital felony
cases in which the death penalty was imposed since 1970. §
17-10-37(a).

															[ Footnote 8 ]

															JUSTICE STEVENS implies that the joint opinion in Proffitt did not really understand the Florida Supreme
Court to conduct comparative proportionality review. Post at 465 U. S. 56 .
While his reading of that opinion does, of course, further support
our interpretation of Proffitt, we do not share it. The
opinion stated that the Florida court considered its function to be
the same as its "Georgia counterpart," and that it would review a
particular sentence " in light of the other decisions and
determine whether or not the punishment is too great.'" 428 U.S. at 428 U. S. 251 ,
quoting State v. Dixon, 283 So. 2d 1 ,
10 (Fla.1973). Thus, sentencing "decisions are reviewed to ensure
that they are consistent with other sentences imposed in similar
circumstances." 428 U.S. at 428 U. S. 253 .
As JUSTICE STEVENS notes, the opinion went on to point out that the
Florida Supreme Court "has several times compared the circumstances of a case under
review with those of previous cases in which it has assessed the
imposition of death sentences. [Citations omitted.] By following
this procedure, the Florida court has, in effect, adopted the type
of proportionality review mandated by the Georgia statute." Id. at 428 U. S. 259 .
The most natural reading of this language is that its authors
believed that Florida did conduct proportionality review. Indeed,
that is how the Florida Supreme Court, for one, has interpreted it. E.g., McCaskill v. State, 344 So. 2d
1276 , 1280 (1977).

															While acknowledging that at present the Florida Supreme Court
undertakes to provide proportionality review in every case, see
Brown v. Wainwright, 392 So. 2d
1327 , cert. denied, 454 U. S. 1000 (1981), JUSTICE STEVENS says that that has not always been its
practice, citing a long list of cases in which no such review was
explicitly performed. Post at 465 U. S. 56 -58,
n. The Florida Supreme Court has undeniably become more
enthusiastic, or at least more explicit, about proportionality
review in recent years. See, e.g., Williams v.
State, 437 So. 2d 133 (1983); Adams v. State, 412 So. 2d 850 (1982). However, comparative proportionality review has been part
of at least the theory of appellate review in Florida since the
enactment of that State's first post- Furman capital
punishment statute. It was endorsed in the very first case decided
under that statute, see State v. Dixon, supra, at 10, and
frequently acknowledged and performed thereafter, see, e.g.,
Alvord v. State, 322 So. 2d
533 , 540-541 (1975); Alford v. State, 307 So. 2d
433 , 445 (1975); Lamadline v. State, 303 So. 2d 17 ,
20 (1974). As the Florida Supreme Court has itself recently
stated:

															"Since the inception of the 'new' death penalty statute in 1972,
this Court has engaged in a proportionality review of death cases
to ensure rationality and consistency in the imposition of the
death penalty." Sullivan v. State, 441 So. 2d
609 , 613 (1983) (citing State v. Dixon, supra ).

															JUSTICE STEVENS points out that the Florida Supreme Court has
not conducted an express review of the proportionality of every
capital sentence it has reviewed. It is worth bearing in mind that,
in many of the decisions he cites the court reversed the death
sentence by examining the circumstances of the particular case;
proportionality review would therefore have been superfluous. And
the fact that, in others, the court was not explicit about
comparative review does not mean none was undertaken. See
Messer v. State, 439 So. 2d
875 , 879 (1983) (acknowledging proportionality review
requirement, but rejecting "the assertion that in our written
opinion we must explicitly compare each death sentence with past
capital cases"). In any event, the critical question is what the Proffitt Court thought the Florida scheme was. In that
regard, the joint opinion speaks for itself.

															[ Footnote 9 ]

															"Thus, Texas law essentially requires that one of five
aggravating circumstances be found before a defendant can be found
guilty of capital murder, and that in considering whether to impose
a death sentence the jury may be asked to consider whatever
evidence of mitigating circumstances the defense can bring before
it. It thus appears that, as in Georgia and Florida, the Texas
capital sentencing procedure guides and focuses the jury's
objective consideration of the particularized circumstances of the
individual offense and the individual offender before it can impose
a sentence of death."

															428 U.S. at 428 U. S.
273 -274.

															[ Footnote 10 ]

															"Under the revised law, the substantive crime of murder is
defined; and when a murder occurs in one of the five circumstances
set out in the statute, the death penalty must be imposed if the
jury also makes the certain additional findings against the
defendant. Petitioner claims that the additional questions upon
which the death sentence depends are so vague that, in essence, the
jury possesses standardless sentencing power; but I agree with
Justices STEWART, POWELL, and STEVENS that the issues posed in the
sentencing proceeding have a common sense core of meaning, and that
criminal juries should be capable of understanding them. The
statute does not extend to juries discretionary power to dispense
mercy, and it should not be assumed that juries will disobey or
nullify their instructions. As of February of this year, 33
persons, including petitioner, had been sentenced to death under
the Texas murder statute. I cannot conclude at this juncture that
the death penalty under this system will be imposed so seldom and
arbitrarily as to serve no useful penological function and hence
fall within the reach of the decision announced by five Members the
Court in Furman v. Georgia. . . . [T]he Texas capital
punishment statute limits the imposition of the death penalty to a
narrowly defined group of the most brutal crimes and aims at
limiting its imposition to similar offenses occurring under similar
circumstances." Id. at 428 U. S.
278 -279 (WHITE, J., joined by BURGER, C.J., and
REHNQUIST, J., concurring in judgment).

															[ Footnote 11 ] See also Woodson v. North Carolina, 428 U.
S. 280 , 428 U. S. 319 (1976) (REHNQUIST, J., dissenting) ("If the States wish to
undertake such an effort [ i.e., proportionality review],
they are undoubtedly free to do so, but surely it is not required
by the United States Constitution").

															[ Footnote 12 ]

															We upheld the death sentence even though the State Supreme Court
had invalidated, as unconstitutionally vague, one of the three
aggravating circumstances relied on by the jury. The two remaining
circumstances

															"adequately differentiate[d] this case in an objective,
evenhanded, and substantively rational way from the many Georgia
murder cases in which the death penalty may not be imposed."

															462 U.S. at 462 U. S.
879 .

															[ Footnote 13 ]

															Briefly, the statutory special circumstances are: (1) the murder
was for profit; (2) the murder was perpetrated by an explosive; (3)
the victim was a police officer killed in the line of duty; (4) the
victim was a witness to a crime, killed to prevent his testifying
in a criminal proceeding; (5) the murder was committed during the
commission of robbery, kidnaping, rape, performance of a lewd or
lascivious act on someone under 14, or burglary; (6) the murder
involved torture; (7) the defendant had been previously convicted
of first- or second-degree murder, or was convicted of more than
one murder in the first or second degree in the instant proceeding.
Cal.Penal Code Ann. § 190.2 (West Supp.1978). These are greatly
expanded in the current statute. See Cal.Penal Code Ann. §
190.2 (West Supp.1983).

															[ Footnote 14 ]

															Briefly, the statutory special circumstances are: (1) the murder
was for profit; (2) the murder was perpetrated by an explosive; (3)
the victim was a police officer killed in the line of duty; (4) the
victim was a witness to a crime, killed to prevent his testifying
in a criminal proceeding; (5) the murder was committed during the
commission of robbery, kidnaping, rape, performance of a lewd or
lascivious act on someone under 14, or burglary; (6) the murder
involved torture; (7) the defendant had been previously convicted
of first- or second-degree murder, or was convicted of more than
one murder in the first or second degree in the instant proceeding.
Cal.Penal Code Ann. § 190.2 (West Supp.1978). These are greatly
expanded in the current statute. See Cal.Penal Code Ann. §
190.2 (West Supp.1983).

															[ Footnote 15 ]

															The statute does not separate aggravating and mitigating
circumstances. Section 190.3 provides:

															"In determining the penalty the trier of fact shall take into
account any of the following factors if relevant:"

															"(a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any
special circumstances found to be true pursuant to § 190.1."

															"(b) The presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or
violence or the expressed or implied threat to use force or
violence."

															"(c) Whether or not the offense was committed while the
defendant was under the influence of extreme mental or emotional
disturbance."

															"(d) Whether or not the victim was a participant in the
defendant's homicidal conduct or consented to the homicidal
act."

															"(e) Whether or not the offense was committed under
circumstances which the defendant reasonably believed to be a moral
justification or extenuation for his conduct."

															"(f) Whether or not the defendant acted under extreme duress or
under the substantial domination of another person."

															"(g) Whether or not at the time of the offense the capacity of
the defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired as a
result of mental disease or the effects of intoxication."

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

															"(i) Whether or not the defendant was an accomplice to the
offense and his participation in the commission of the offense was
relatively minor."

															"(j) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime."

															JUSTICE STEVENS, concurring in part and concurring in the
judgment.

															While I agree with the basic conclusion of 465 U.
S. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U.
S. 242 (1976); Jurek v. Texas, 428 U.
S. 262 (1976); and Zant v. Stephens,@ 462 U.
S. 862 (1983), is sufficiently different from that
reflected in Part III to prevent me from joining that portion of
the opinion.

															While the cases relied upon by respondent do not establish that
comparative proportionality review is a constitutionally required
element of a capital sentencing system, I believe the case law does
establish that appellate review plays an essential role in
eliminating the systemic arbitrariness and capriciousness which
infected death penalty schemes invalidated by Furman v.
Georgia, 408 U. S. 238 (1972), and hence that some form of meaningful appellate review is
constitutionally required. Page 465 U. S. 55 The systemic arbitrariness and capriciousness in the imposition
of capital punishment under statutory schemes invalidated by Furman resulted from two basic defects in those schemes.
First, the systems were permitting the imposition of capital
punishment in broad classes of offenses for which the penalty would
always constitute cruel and unusual punishment. Second, even among
those types of homicides for which the death penalty could be
constitutionally imposed as punishment, the schemes vested
essentially unfettered discretion in juries and trial judges to
impose the death sentence. Given these defects, arbitrariness and
capriciousness in the imposition of the punishment were inevitable,
and, given the extreme nature of the punishment, constitutionally
intolerable. The statutes we have approved in Gregg,
Proffitt, and Jurek were designed to eliminate each
of these defects. Each scheme provided an effective mechanism for
categorically narrowing the class of offenses for which the death
penalty could be imposed, and provided special procedural
safeguards including appellate review of the sentencing authority's
decision to impose the death penalty.

															In Gregg, the opinion of Justices Stewart, POWELL, and
STEVENS indicated that some form of meaningful appellate review is
required, see 428 U.S. at 428 U. S. 198 ,
and that opinion, id. at 428 U. S.
204 -206, as well as JUSTICE WHITE's opinion, see
id. at 428 U. S. 224 ,
focused on the proportionality review component of the Georgia
statute because it was a prominent, innovative, and noteworthy
feature that had been specifically designed to combat effectively
the systemic problems in capital sentencing which had invalidated
the prior Georgia capital sentencing scheme. But observations that
this innovation is an effective safeguard do not mean that it is
the only method of ensuring that death sentences are not imposed
capriciously, or that it is the only acceptable form of appellate
review.

															In Proffitt, the joint opinion of Justices Stewart,
POWELL, and STEVENS explicitly recognized that the Florida "law
differs from that of Georgia in that it does not require the court
to conduct any specific form of review." 428 U.S. at Page 465 U. S. 56 428 U. S.
250 -251. The opinion observed, however, that "meaningful
appellate review" was made possible by the requirement that the
trial judge justify the imposition of a death sentence with written
findings, and further observed that the Supreme Court of Florida
had indicated that death sentences would be reviewed to ensure that
they are consistent with the sentences imposed in similar cases. Id. at 428 U. S. 251 .
Under the Florida practice as described in the Proffitt opinion, the appellate review routinely involved an independent
analysis of the aggravating and mitigating circumstances in the
particular case. Id. at 428 U. S. 253 .
Later in the opinion, in response to Proffitt's argument
that the Florida appellate review process was "subjective and
unpredictable," id. at 428 U. S. 258 ,
we noted that the State Supreme Court had "several times" compared
the circumstances of a case under review with those of previous
cases in which the death sentence had been imposed and that by
"following this procedure the Florida court has in effect adopted
the type of proportionality review mandated by the Georgia
statute." Id. at 428 U. S. 259 .
We did not, however, indicate that the particular procedure that
had been followed "several times" was either the invariable routine
in Florida, * or that it was an
indispensable feature of meaningful appellate review. Page 465 U. S. 57 The Texas statute reviewed in Jurek, like the Florida
statute reviewed in Proffitt, did not provide for
comparative review. We nevertheless concluded "that Texas'
capital Page 465 U. S. 58 sentencing procedures, like those of Georgia and Florida," were
constitutional because they assured that "sentences of death will
not be wantonly' or `freakishly' imposed." 428 U.S. at 428 U. S. 276 .
That assurance rested in part on the statutory guarantee of
meaningful appellate review. As we stated: "By providing prompt judicial review of the jury's decision in a
court with statewide jurisdiction, Texas has provided a means to
promote the evenhanded, rational, and consistent imposition of
death sentences under law." Ibid. Thus, in all three cases decided on the same day,
we relied in part on the guarantee of meaningful appellate review,
and we found no reason to differentiate among the three statutes in
appraising the quality of the review that was mandated.

															Last Term, in Zant v. Stephens, 462 U.
S. 862 (1983), we again reviewed the Georgia sentencing
scheme. The Court observed that the appellate review of every death
penalty proceeding "to determine whether the sentence was arbitrary
or disproportionate" was one of the two primary features upon which
the Gregg joint opinion's approval of the Georgia scheme
rested. 462 U.S. at 462 U. S. 876 .
While the Court did not focus on the comparative review element of
the scheme in reaffirming the constitutionality of the Georgia
statute, appellate review of the sentencing decision was deemed
essential to upholding its constitutionality. Id. at 462 U. S.
876 -877, and n. 15. The fact that the Georgia Supreme
Court had reviewed the sentence in question "to determine whether
it was arbitrary, excessive, or disproportionate" Page 465 U. S. 59 was relied upon to reject a contention that the statute was
invalid as applied because of the absence of standards to guide the
jury in weighing the significance of aggravating circumstances, id. at 462 U. S.
879 -880 (footnote describing proportionality review
omitted), and the mandatory appellate review was also relied upon
in rejecting the argument that the subsequent invalidation of one
of the aggravating circumstances found by the jury required setting
aside the death sentence, id. at 462 U. S. 890 .
Once again, proportionality review was viewed as an effective,
additional safeguard against arbitrary and capricious death
sentences. While we did not hold that comparative proportionality
review is a mandated component of a constitutionally acceptable
capital sentencing system, our decision certainly recognized what
was plain from Gregg, Proffitt, and Jurek: that
some form of meaningful appellate review is an essential safeguard
against the arbitrary and capricious imposition of death sentences
by individual juries and judges.

															To summarize, in each of the statutory schemes approved in our
prior cases, as in the scheme we review today, meaningful appellate
review is an indispensable component of the Court's determination
that the State's capital sentencing procedure is valid. Like the
Court, however, I am not persuaded that the particular form of
review prescribed by statute in Georgia -- comparative
proportionality review -- is the only method by which an appellate
court can avoid the danger that the imposition of the death
sentence in a particular case, or a particular class of cases, will
be so extraordinary as to violate the Eighth Amendment.

															Accordingly, I join in all but Part III of the Court's opinion,
and concur in the judgment.

															* And, of course, it was not the regular practice in Florida
before Proffitt was decided. Proportionality review was
not conducted in the following pre- Proffitt decisions: Jones v. State, 332 So. 2d
615 , 619 (1976) (per curiam) (reversing death sentence as
unwarranted under circumstances of particular case); Henry v.
State, 328 So. 2d
430 , 432 (per curiam) (affirming death sentence weighing
circumstances in case before it), cert. denied, 429 U.S.
951 (1976); Douglas v. State, 328 So. 2d
18 , 21-22 (same), cert. denied, 429 U.S. 871 (1976); Thompson v. State, 328 So. 2d 1 ,
5 (1976) (quotes language from State v.
Dixon, 283 So. 2d 1 (Fla.1973), concerning review in light of prior decisions, then
reverses death sentence without considering other cases, but
instead based on facts in case before it); 328 So. 2d at 5-6
(Adkins, J., concurring specially) (maintaining affirmance was
merited based on his agreement with weighing of circumstances
performed by trial judge); Dobbert v.
State, 328 So. 2d
433 , 441 (1976) (affirming death sentence without cross-case
proportionality review, but opinion did agree with trial judge's
general remark that the crime was the most atrocious of which he
had personal knowledge), aff'd, 432 U.
S. 282 (1977); Halliwell v.
State, 323 So. 2d
557 , 561 (1975) (per curiam) (reversing death sentence based on
weighing of circumstances in particular case); Tedder v.
State, 322 So. 2d
908 , 910 (1975) (establishing special standard of review in
reviewing imposition of death sentence after jury recommendation of
life sentence, and reversing death sentence under circumstances of
particular case); Swan v. State, 322 So. 2d
485 , 489 (1975) (same); Gardner v.
State, 313 So. 2d
675 , 677 (1975) (affirming death sentence based on weighing
circumstances in case before it), cert. denied, 430 U. S. 349 (1977); Spinkellink v. State, 313 So. 2d
666 , 671 (1975) (same), cert. denied, 428 U.S. 911
(1976); Sawyer v. State, 313 So. 2d
680 , 682 (1975) (same), cert. denied, 428 U.S. 911
(1976); Hallman v. State, 305 So. 2d
180 , 182 (1974)
(per curiam) (same), cert. denied, 428 U.S. 911 (1976); Sullivan v. State, 303 So. 2d
632 , 637-638 (1974) (specially concurring opinion joined by
five justices citing Dixon for proposition that court's
responsibility is to independently determine whether death penalty
warranted and proceeds to affirm the death sentence based on
assessment of circumstances in case before it), cert.
denied, 428 U.S. 911 (1976); Taylor v.
State, 294 So. 2d
648 , 652 (1974) (reversing death sentence based on weighing of
circumstances in particular case). Moreover, opinions issued
shortly before and after Proffitt reveal a similar absence
of comparative proportionality review. Adams v.
State, 341 So. 2d
765 , 769 (1976) (affirming death sentence and citing Dixon for proposition that role of court is to
independently review circumstances in particular case and determine
whether death sentence warranted), cert. denied, 434 U.S.
977 (1977); Funchess v. State, 341 So. 2d 762, 763 (1976)
(affirming death sentence weighing circumstances in case before
it), cert. denied, 434 U.S. 878 (1977); Chambers v.
State, 339 So. 2d 204 (1976) (per curiam) (reversing death sentence based on
circumstances of case before it); Meeks v.
State, 339 So. 2d
186 , 192 (1976) (per curiam) (affirming death sentence,
compares sentence with that of accomplice only, affirms on ground
that sentence warranted under circumstances of particular case), cert. denied, 439 U.S. 991 (1978); Knight v.
State, 338 So.2d. 201, 205 (1976) (affirming death sentence
weighing circumstances in case before it); Meeks v.
State, 336 So. 2d
1142 , 1145 (1976) (same); see also Cooper v.
State, 336 So. 2d
1133 , 1142 (1976), cert. denied, 431 U.S. 925 (1977).

															The Florida Supreme Court now undertakes to provide
proportionality review in every case, see Brown v.
Wainwright, 392 So. 2d
1327 , 1331, cert. denied, 454 U.
S. 1000 (1981). As we noted in Proffitt, this
practice does provide the "function of death sentence review with a
maximum of rationality and consistency." 428 U.S. at 428 U. S.
258 -259. The fact that the practice is an especially
good one, however, does not mean that it is an indispensable
element of meaningful appellate review.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.

															Almost 12 years ago, in Furman v. Georgia, 408 U.
S. 238 (1972), the Court concluded that the death
penalty, as then administered under various state and federal
statutes, constituted Page 465 U. S. 60 a cruel and unusual punishment prohibited by the Eighth and
Fourteenth Amendments. At that time, the Court was convinced that
death sentences were being imposed in a manner that was so
arbitrary and capricious that no individual death sentence could be
constitutionally justified. [ Footnote
2/1 ] Four years later, faced with new death penalty statutes
enacted by the States of Georgia, Florida, and Texas, a majority of
the Court concluded that the procedural mechanisms included in
those statutes provided sufficient protection to ensure their
constitutional application. See Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U.
S. 242 (1976); Jurek v. Texas, 428 U.
S. 262 (1976). Thus began a series of decisions from
this Court in which, with some exceptions, it has been assumed that
the death penalty is being imposed by the various States in a
rational and nondiscriminatory way. Upon the available evidence,
however, I am convinced that the Court is simply deluding itself,
and also the American public, when it insists that those defendants
who have already been executed or are today condemned to death have
been selected on a basis that is neither arbitrary nor capricious,
under any meaningful definition of those terms.

															Moreover, in this case, the Court concludes that proportionality
review of a death sentence is constitutionally unnecessary.
Presumably this is so even if a comparative review of death
sentences imposed on similarly situated defendants might eliminate
some, if only a small part, of the irrationality Page 465 U. S. 61 that currently surrounds the imposition of the death penalty.
Because, in my view, the evidence available to the Court suggests
that proportionality review does serve this limited purpose, I
believe that the State of California, through a court of statewide
jurisdiction, should be required to undertake proportionality
review when examining any death sentence on appeal. I A In Furman v. Georgia, supra, and subsequent orders, see, e.g., 408 U.S. 933-940 (1972), the Court invalidated
all death sentences then existing in the various States. Although
each of the five Justices concurring in the per curiam opinion of
the Court authored a separate opinion, it has since been the
accepted holding of Furman that, at a minimum, the death
penalty cannot "be imposed under sentencing procedures that
creat[e] a substantial risk that it [will] be inflicted in an
arbitrary and capricious manner." Gregg v. Georgia, supra, at 428 U. S. 188 (opinion of Stewart, POWELL, and STEVENS, JJ.).

															This was the touchstone of Justice Stewart's concerns in Furman: "These death sentences are cruel and unusual in the same way
that being struck by lightning is cruel and unusual. For, of all
the people convicted of rapes and murders . . . many just as
reprehensible as these, the petitioners are among a capriciously
selected random handful upon whom the sentence of death has in fact
been imposed. My concurring Brothers have demonstrated that, if any
basis can be discerned for the selection of these few to be
sentenced to die, it is the constitutionally impermissible basis of
race. . . . I simply conclude that the Eighth and Fourteenth
Amendments cannot tolerate the infliction of a sentence of death
under legal systems that permit this unique penalty to be so Page 465 U. S. 62 wantonly and so freakishly imposed."

															408 U.S. at 408 U. S.
309 -310 (footnotes and citations omitted). Likewise,
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." Id. at 408 U. S. 313 .
And, although focusing his analysis on the equal protection
concerns of the Eighth Amendment, Justice Douglas substantially
agreed, noting that

															"[t]he high service rendered by the 'cruel and unusual'
punishment clause of the Eighth Amendment is to require
legislatures to write penal laws that are evenhanded, nonselective,
and nonarbitrary, and to require judges to see to it that general
laws are not applied sparsely, selectively, and spottily to
unpopular groups." Id. at 408 U. S. 256 . See also id. at 408 U. S. 248 ,
n. 11, 408 U. S. 249 (Douglas, J., concurring) (" A penalty . . . should be
considered "unusually" imposed if it is administered arbitrarily or
discriminatorily'") (quoting Goldberg & Dershowitz, Declaring
the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1790
(1970)); 408 U.S. at 408 U. S.
274 -277, 408 U. S.
291 -295 (BRENNAN, J., concurring). [ Footnote 2/2 ] These concerns about the irrational imposition of the death
penalty were not based on abstract speculation. Rather, they were
premised on actual experience with the administration of the
penalty by the various States. I will not attempt at this time to
summarize the evidence available to the Court in 1972 when Furman was decided. See, e.g., id. at 408 U. S.
249 -252, 256-257, n. 21 (Douglas, J., concurring); id. at 408 U. S.
291 -295 (BRENNAN, J., concurring); id. at 408 U. S.
309 -310 (Stewart, Page 465 U. S. 63 J., concurring); id. at 408 U. S.
364 -369 (MARSHALL, J., concurring). Suffice it to say
that the Court was persuaded, both from personal experience in
reviewing capital cases [ Footnote
2/3 ] and from the available research analyzing imposition of
this extreme penalty, that the death penalty was being administered
in an arbitrary and capricious manner.

															Moreover, this stated concern with the irrational imposition of
the death penalty did not cease with the judgments of the Furman Court; indeed, the same focus has been reflected in
the Court's decisions ever since. See, e.g., Barclay v.
Florida, 463 U. S. 939 , 463 U. S.
958 -960 (1983) (STEVENS, J., concurring in judgment); Zant v. Stephens, 462 U. S. 862 , 462 U. S. 874 (1983) (characterizing Furman as holding 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'")
(quoting Gregg v. Georgia, 428 U.S. at 428 U. S. 189 (opinion of Stewart, POWELL, and STEVENS, JJ.)); Eddings v.
Oklahoma, 455 U. S. 104 , 455 U. S. 111 (1982) (noting that the Court "has attempted to provide standards
for a constitutional death penalty that would serve both goals of
measured, consistent application and fairness to the accused"); id. at 455 U. S. 112 (noting that the Court has "insiste[d] that capital punishment be
imposed fairly, and with reasonable consistency, or not at all").
Hence, if any principle is an accepted part of the Court's death
penalty decisions during the past 12 years, it is that the
irrational application of the death penalty, as evidenced by
an Page 465 U. S. 64 examination of when the death penalty is actually imposed,
cannot be constitutionally defended.

															Even while repeating this principle, however, the Court since Gregg v. Georgia, supra, and its companion cases, has
allowed executions to take place, and death rows to expand, without
fully examining the results obtained by the death penalty statutes
enacted in response to the Furman decision. Indeed, the
Court seems content to conclude that, so long as certain procedural
protections exist, imposition of the death penalty is
constitutionally permissible. But a sentencer's consideration of
aggravating and mitigating circumstances, see ante at 465 U. S. 51 -53,
combined with some form of meaningful appellate review, see
ante at 465 U. S. 54 -55, 465 U. S. 59 (STEVENS, J., concurring in part), does not, by itself, ensure that
a death sentence in any particular case, or the death penalty in
general, is a constitutional exercise of the State's power. Given
the emotions generated by capital crimes, it may well be that
juries, trial judges, and appellate courts considering sentences of
death are invariably affected by impermissible considerations.
Although we may tolerate such irrationality in other sentencing
contexts, the premise of Furman was that such arbitrary
and capricious decisionmaking is simply invalid when applied to
" a matter [as] grave as the determination of whether a human
life should be taken or spared.'" Zant v. Stephens, supra, at 462 U. S. 874 .
As executions occur with more frequency, therefore, the time is
fast approaching for the Court to reexamine the death penalty, not
simply to ensure the existence of adequate procedural protections,
but more importantly to reevaluate the imposition of the death
penalty for the irrationality prohibited by our decision in Furman. B The current evidence of discriminatory and irrational
application of the death penalty has yet to be completely or
systematically marshaled. What evidence has been compiled,
moreover, has not been properly presented to the Court, and Page 465 U. S. 65 is not at issue in this case. Nevertheless, as in other recent
decisions, the Court today evaluates the procedural mechanism at
issue -- in this case, comparative proportionality review --
without regard to whether the actual administration of the death
penalty by the States satisfies the concerns expressed in Furman. The most compelling evidence that the death penalty continues to
be administered unconstitutionally relates to the racial
discrimination that apparently, and perhaps invariably, exists in
its application. The Court correctly avoids the question of racial
discrimination as not properly presented in this case. See
ante at 465 U. S. 41 , n.
4 (noting that the Court of Appeals "remanded . . . for a possible
evidentiary hearing on Harris' claim that the death penalty was
being discriminatorily administered in California"). [ Footnote 2/4 ] But the issue cannot be
avoided much longer, as decisions of the lower federal courts are
beginning to recognize. See, e.g., Spencer v. Zant, 715
F.2d 1562, 1578-1583 (CA11 1983), rehearing en banc
pending, No. 82-8408; Ross v. Hopper, 716 F.2d 1528,
1539 (CA11 1983). See also Stephens v. Kemp, 464 U.
S. 1027 (1983) (stay of execution granted pending
rehearing en banc in Spencer ).

															Furthermore, the scholarly research necessary to support a claim
of systemic racial discrimination is currently being pursued, and
the results of that research are being compiled into a rapidly
expanding body of literature. See, e.g., Page 465 U. S. 66 D. Baldus, G. Woodworth, & C. Pulaski, The Differential
Treatment of White and Black Victim Homicide Cases in Georgia's
Capital Charging and Sentencing Process: Preliminary Findings (June
1982) (unpublished), reprinted in App. G to Pet. for Cert. in Smith v. Balkcom, O.T. 1981, No. 6978, Exh. E, Appendix D
(discrimination by race of victim); Bowers & Pierce,
Arbitrariness and Discrimination under Post- Furman Capital
Statutes, 26 Crime & Delinquency 563 (1980) (discrimination by
race of defendant and race of victim); L. Foley, Florida After the Furman Decision: Discrimination in the Processing of
Capital Offense Cases (unpublished), reprinted in App. to
Application for Stay in Sullivan v. Wainwright, O.T. 1983,
No. A-409, Exh. 33 (discrimination by race of victim); Foley &
Powell, The Discretion of Prosecutors, Judges, and Juries in
Capital Cases, 7 Crim.Just.Rev. 16 (Fall 1982) (discrimination by
race of victim); S. Gross & R. Mauro, Patterns of Death: An
Analysis of Racial Disparities in Capital Sentencing and Homicide
Victimization (Oct.1983) (unpublished), reprinted in App. to
Application for Stay in Sullivan v. Wainwright, supra, Exh. 28 (discrimination by race of victim); Jacoby &
Paternoster, Sentencing Disparity and Jury Packing: Further
Challenges to the Death Penalty, 73 J.Crim.L. & Criminology 379
(1982) (discrimination by race of victim); Kleck, Racial
Discrimination in Criminal Sentencing: A Critical Evaluation of the
Evidence with Additional Evidence on the Death Penalty, 46
Am.Soc.Rev. 783 (1981); Radelet, Racial Characteristics and the
Imposition of the Death Penalty, 46 Am.Soc.Rev. 918 (1981)
(discrimination by race of victim); M. Radelet & G. Pierce,
Race and Prosecutorial Discretion in Homicide Cases (1983)
(presented at the Meetings of the American Sociological
Association, Detroit, Mich., Sept. 4, 1983), reprinted in App. to
Application for Stay in Sullivan v. Wainwright, supra, Exh. 34 (discrimination by race of defendant and race of victim);
Riedel, Discrimination in the Imposition of the Death Penalty: A
Comparison of the Page 465 U. S. 67 Characteristics of Offenders Sentenced Pre- Furman and
Post- Furman, 49 Temp.L.Q. 261 (1976); Zeisel, Race Bias in
the Administration of the Death Penalty: The Florida Experience, 95
Harv.L.Rev. 456 (1981) (discrimination by race of defendant and
race of victim). See also C. Black, Capital Punishment:
The Inevitability of Caprice and Mistake (2d ed.1981). Although
research methods and techniques often differ, the conclusions being
reached are relatively clear: factors crucial, yet without doubt
impermissibly applied, to the imposition of the death penalty are
the race of the defendant and the race of the victim.

															Nor do I mean to suggest that racial discrimination is the only
irrationality that infects the death penalty as it is currently
being applied. Several of the studies cited above suggest that
discrimination by gender, e.g., Foley, supra; Foley & Powell, supra, by socioeconomic status, e.g., Foley & Powell, supra, and by
geographical location within a State, e.g., Bowers &
Pierce, supra; Foley & Powell, supra, may be
common. I will not attempt at this time to expand upon the
conclusions that these studies may dictate. But if the Court is
going to fulfill its constitutional responsibilities, then it
cannot sanction continued executions on the unexamined assumption
that the death penalty is being administered in a rational,
nonarbitrary, and noncapricious manner. Simply to assume that the
procedural protections mandated by this Court's prior decisions
eliminate the irrationality underlying application of the death
penalty is to ignore the holding of Furman and whatever
constitutional difficulties may be inherent in each State's death
penalty system. II The question directly presented by this case is whether the
Federal Constitution requires a court of statewide jurisdiction to
undertake comparative proportionality review before a death
sentence may be carried out. The results obtained by many States
that undertake such proportionality review, Page 465 U. S. 68 pursuant to either state statute or judicial decision, convince
me that this form of appellate review serves to eliminate some, if
only a small part, of the irrationality that infects the current
imposition of death sentences throughout the various States. To
this extent, I believe that comparative proportionality review is
mandated by the Constitution. A Some forms of irrationality that infect the administration of
the death penalty -- unlike discrimination by race, gender,
socioeconomic status, or geographic location within a State --
cannot be measured in any comprehensive way. That does not mean,
however, that the process under which death sentences are currently
being imposed is otherwise rational or acceptable. Rather, for any
individual defendant, the process is filled with so much
unpredictability that "it smacks of little more than a lottery
system," Furman v. Georgia, 408 U.S. at 408 U. S. 293 (BRENNAN, J., concurring), under which being chosen for a death
sentence remains as random as "being struck by lightning," id. at 408 U. S. 309 (Stewart, J., concurring).

															Chief among the reasons for this unpredictability is the fact
that similarly situated defendants, charged and convicted for
similar crimes within the same State, often receive vastly
different sentences. Professor John Kaplan of the Stanford Law
School has summarized the dilemma:

															"The problem [of error in imposing capital punishment] is much
more serious if we consider the chances of error in the system to
be more than the execution of someone who is completely innocent --
the ultimate horror case. Though examples of victims of mistaken
identity are sometimes found on death row, the far more common
cases fall into two types. In one, the recipient of the death
penalty is guilty of a crime, but of a lesser offense, for which
capital punishment is not in theory available. . . ."

															"The second type of error in capital punishment occurs when we
execute someone whose crime does not seem so Page 465 U. S. 69 aggravated when compared to those of many who escaped the death
penalty. It is in this kind of case -- which is extremely common --
that we must worry whether, first, we have designed procedures
which are appropriate to the decision between life and death and,
second, whether we have followed those procedures."

															Kaplan, The Problem of Capital Punishment, 1983 U.Ill.L.Rev.
555, 576. Comparative proportionality review is aimed at
eliminating this second type of error. [ Footnote 2/5 ] Page 465 U. S. 70 B Disproportionality among sentences given different defendants
can only be eliminated after sentencing disparities are identified.
And the most logical way to identify such sentencing disparities is
for a court of statewide jurisdiction Page 465 U. S. 71 to conduct comparisons between death sentences imposed by
different judges or juries within the State. This is what the Court
labels comparative proportionality review. See ante at 465 U. S. 42 -44.
Although clearly no panacea, such review often serves to identify
the most extreme examples of disproportionality among similarly
situated defendants. At least to this extent, this form of
appellate review serves to eliminate some of the irrationality that
currently surrounds imposition of a death sentence. If only to
further this limited purpose, therefore, I believe that the
Constitution's prohibition on the irrational imposition of the
death penalty requires that this procedural safeguard be
provided.

															Indeed, despite the Court's insistence that such review is not
compelled by the Federal Constitution, over 30 States now require,
either by statute or judicial decision, some form of comparative
proportionality review before any death sentence may be carried
out. [ Footnote 2/6 ] By itself, this
should weigh heavily on the side of requiring such appellate
review. Cf. Enmund v. Florida, 458 U.
S. 782 , 458 U. S.
788 -796 (1982); Coker v. Georgia, 433 U.
S. 584 , 433 U. S.
593 -596 (1977). In addition, these current practices
establish beyond dispute that such review can be administered
without much difficulty by a court of statewide jurisdiction in
each State.

															Perhaps the best evidence of the value of proportionality review
can be gathered by examining the actual results obtained in those
States which now require such review. For example, since 1973, the
statute controlling appellate review of death sentences in the
State of Georgia has required that Page 465 U. S. 72 the Supreme Court of Georgia determine

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

															Ga.Code Ann. § 17-10-35(c)(3) (1982). See ante at 465 U. S. 43 , n.
7; Gregg v. Georgia, 428 U.S. at 428 U. S.
166 -168, 428 U. S. 198 , 428 U. S.
204 -206 (opinion of Stewart, POWELL, and STEVENS, JJ.).
Pursuant to this statutory mandate, the Georgia Supreme Court has
vacated at least seven death sentences because it was convinced
that they were comparatively disproportionate. See, e.g., High
v. State, 247 Ga. 289, 297, 276 S.E.2d 5 ,
14 (1981) (death sentence disproportionate for armed robbery and
kidnaping); Hall v. State, 241 Ga. 252, 258-260, 244 S.E.2d
833 , 838-839 (1978) (death sentence disproportionate for felony
murder when codefendant received life sentence in subsequent jury
trial); Ward v. State, 239 Ga. 205, 208-209, 236 S.E.2d
365 , 368 (1977) (death sentence disproportionate for murder
when defendant had received life sentence for same crime in
previous trial); Jarrell v. State, 234 Ga. 410, 424-425, 216 S.E.2d
258 , 270 (1975) (death sentence disproportionate for armed
robbery); Floyd v. State, 233 Ga. 280, 285, 210 S.E.2d
810 , 814 (1974) (same); Gregg v. State, 233 Ga. 117,
127, 210 S.E.2d
659 , 667 (1974) (same), aff'd on other grounds, 428 U. S. 153 (1976); Coley v. State, 231 Ga. 829, 835-836, 204 S.E.2d
612 , 616-617 (1974) (death sentence disproportionate for rape). Cf. Hill v. State, 237 Ga. 794, 802-803, 229 S.E.2d
737 , 743 (1976) (death sentence not disproportionate even
though unclear which defendant actually committed murder; sentence
later commuted to life imprisonment by Board of Pardons and
Paroles).

															Similarly, other States that require comparative proportionality
review also have vacated death sentences for defendants whose crime
or personal history did not justify such an extreme penalty. See, e.g., Henry v. State, 278 Ark. 478, 488-489, 647 S.W.2d
419 , 425 (1983); Sumlin v. State, 273 Ark. 185, 190, 617 S.W.2d
372 , 375 (1981); Blair v. Page 465 U. S. 73 State, 406 So. 2d
1103 , 1109 (Fla.1981); McCaskill v. State, 344 So. 2d
1276 , 1278-1280 (Fla.1977); People v.
Gleckler, 82 Ill. 2d
145 , 161-171, 411 N.E.2d
849 , 856-861 (1980); Smith v.
Commonwealth, 634
S.W.2d 411 , 413-414 (Ky.1982); State v.
Sonnier, 380 So. 2d
1 , 5-9 (La.1979); Coleman v. State, 378 So. 2d
640 , 649-650 (Miss.1979); State v.
McIlvoy, 629 S.W.2d
333 , 341-342 (Mo.1982); Munn v. State, 658
P.2d 482 , 487-488 (Okla.Crim.App.1983). [ Footnote 2/7 ]

															What these cases clearly demonstrate, in my view, is that
comparative proportionality review serves to eliminate some, if
only a small part, of the irrationality that currently infects
imposition of the death penalty by the various States. Before any
execution is carried out, therefore, a State should be required
under the Eighth and Fourteenth Amendments to conduct such
appellate review. The Court's decision in Furman, and the
Court's continuing emphasis on meaningful appellate review, see, e.g., ante, p. 465 U. S. 54 (STEVENS, J., concurring in part); Barclay v. Florida, 463
U.S. at 463 U. S.
988 -989 (MARSHALL, J., dissenting), require no less. III The Court today concludes that our prior decisions do not
mandate that a comparative proportionality review be conducted
before any execution takes place. Then, simply because the
California statute provides both a list of "special circumstances"
or "factors" that a jury must find before imposing Page 465 U. S. 74 a death sentence and judicial review of those findings, the
Court upholds the California sentencing scheme. At no point does
the Court determine whether comparative proportionality review
should be required in order to ensure that the irrational,
arbitrary, and capricious imposition of the death penalty
invalidated by Furman does not still exist. Even if I did
not adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment, I could not join in
such unstudied decisionmaking.

															I dissent.

															[ Footnote 2/1 ]

															In a concurring opinion, I expressed the view that the death
penalty is in all circumstances cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amendments. Furman v.
Georgia, 408 U.S. at 408 U. S. 257 . See also Gregg v. Georgia, 428 U.
S. 153 , 428 U. S. 227 (1976) (BRENNAN, J., dissenting). Nothing that has occurred during
the past 12 years has given me any reason to change these views; if
anything, I am today more persuaded of the unconstitutionality of
the death penalty than ever before. I therefore adhere to the views
I expressed in Furman and Gregg, and would vacate
the death sentence imposed on the respondent, Robert Alton
Harris.

															[ Footnote 2/2 ]

															Even the dissenters viewed the concerns expressed about the
arbitrary and capricious infliction of the death penalty as the
primary basis for the Court's 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."

															408 U.S. at 408 U. S.
398 -399 (BURGER, C.J., dissenting).

															[ Footnote 2/3 ]

															In his concurring opinion, JUSTICE WHITE focused on his personal
experience:

															"I need not restate the facts and figures that appear in the
opinions of my Brethren. Nor can I 'prove' my conclusion from these
data. But, like my Brethren, I must arrive at judgment; and I can
do no more than state a conclusion based on 10 years of almost
daily exposure to the facts and circumstances of hundreds and
hundreds of federal and state criminal cases involving crimes for
which death is the authorized penalty." Id. at 428 U. S.
313 .

															[ Footnote 2/4 ]

															The Court of Appeals held, in a portion of its opinion not
challenged before this Court, that

															"the district court should, if it becomes necessary, provide an
opportunity to develop the factual basis and arguments concerning
[Harris'] race discrimination and gender discrimination
claims."

															692 F.2d 1189, 1197-1199 (CA9 1982). Harris is therefore
entitled on remand to develop the evidence and arguments essential
to an adequate review of these claims. At the same time, Harris
made no showing in support of his wealth and age discrimination
claims; the Court of Appeals therefore refused to require an
evidentiary hearing or further consideration of these alleged bases
for discrimination. Id. at 1199.

															[ Footnote 2/5 ]

															Perhaps the easiest evidence to assemble in order to highlight
the comparative disproportionality between death sentences is to
examine the cases proved against the 11 men who have been executed
in the United States since 1976. Of those individuals, at least
four refused to process appeals on their own behalf, preferring
execution to a life in prison. Among the seven others were
individuals convicted of the most heinous of crimes. But even among
these men, there were still unexplained differences between their
crimes which went unaccounted for in their sentences.

															For example, Professor Kaplan has focused his comments on the
execution of John Spinkellink (spelling of this name varies):

															"As I read the record, he was probably guilty of voluntary
manslaughter, or at most second-degree murder. He was a drifter who
killed another drifter who had sexually assaulted him. Although he
received capital punishment in Florida, in California most district
attorneys would probably have been happy to accept a plea to
second-degree murder in such a case."

															Kaplan, 1983 U.Ill.L.Rev. at 576. See Spinkellink v.
Wainwright, 578 F.2d 582, 586, n. 3 (CA5 1978); Spinkellink v. State, 313 So. 2d
666 , 668 (Fla.1975). Justice Ervin of the Supreme Court of
Florida, writing in dissent, explained the underlying facts that
support Professor Kaplan's conclusions:

															"In this case, it appears that [Spinkellink], at the time of the
homicide, was a 24-year-old drifter who picked up Szymankiewicz, a
hitchhiker. Both had criminal records and both were heavy drinkers.
Szymankiewicz, the victim in this case, was a man of vicious
propensities who boasted of killings and forced [Spinkellink] to
have homosexual relations with him. [Spinkellink] discovered that
Szymankiewicz had 'relieved him of his cash reserves.'"

															"It was under these conditions that [Spinkellink] returned to
the motel room where the homicide occurred. [Spinkellink] testified
he shot Szymankiewicz in self-defense. Evidence to the contrary was
only circumstantial. In fact, only through such evidence was it
possible to infer the crime was premeditated and different from
[Spinkellink's] direct testimony that he shot Szymankiewicz in
self-defense. The reasoning of this Court on the suddenness in
which premeditation may be formed is suspect and allowed the
prosecution undue latitude to readily shift from the theory of
felony murder to premeditated murder."

															"It does not appear to me that, in this situation, there was
sufficient certainty of premeditated guilt and heinousness to
warrant the death penalty. When the nature of the relation between
[Spinkellink] and Szymankiewicz is taken into account, along with
the viciousness of the victim's character and this theft of
[Spinkellink's] money, it is obvious that hostility existed between
them that could have produced a mortal encounter that involved
self-defense shooting."

															" * * * *" "Truly characterized, the sentencing to death here is an example
of the exercise of local arbitrary discretion. The two actors in
the homicide were underprivileged drifters. Their surnames,
Spinkellink and Szymankiewicz, were foreign and strange to the
Tallahassee area. They had no family roots or business connections
here. All of the ingredients were present for the exercise of
invidious parochial discrimination in the sentencing process which
the plural opinions of the majority in Furman condemned.
The result here is an old story, often repeated in this
jurisdiction where the subconscious prejudices and local mores
outweigh humane, civilized understanding when certain segments of
the population are up for sentencing for murder." Id. at 673-674.

															Others characterize the December, 1982, execution of Charles
Brooks, Jr., as inexcusably aberrational. In particular, it is
alleged that the prosecution in Brooks' case failed to prove
whether he or his accomplice -- one Woodrow Loudres, who eventually
obtained a 40-year sentence in a plea bargain -- fired the fatal
shot. Indeed, before Brooks was executed, his prosecutor joined
those seeking to stay his execution. See Goodpaster,
Judicial Review of Death Sentences, 74 J.Crim.L. & Criminology
786, 786-787 (1983); Los Angeles Times, Dec. 6, 1982, p. 9, col. 1;
Los Angeles Daily Journal, Dec. 8, 1982, p. 7, col. 1. See also
Brooks v. Estelle, 459 U. S. 1061 ,
1063 (1982) (BRENNAN, MARSHALL, and STEVENS, JJ., dissenting from
denial of stay); Brooks v. Estelle, 697 F.2d 586, 588 (CA5
1982) (per curiam).

															[ Footnote 2/6 ]

															For a complete list of these state statutes and decisions, see App. A to Brief for Respondent. See also Baldus, Pulaski, Woodworth, & Kyle, Identifying Comparatively
Excessive Sentences of Death: A Quantitative Approach, 33
Stan.L.Rev. 1, 2-3, n. 2 (1980); Goodpaster, supra, at
793, n. 61.

															Although the Court today holds that the States are not
constitutionally compelled to conduct comparative proportionality
reviews, each State of course remains free to continue the
practice.

															[ Footnote 2/7 ]

															Ironically, although the California death penalty statute
reviewed in this case does not require comparative proportionality
review, most other felony sentences in the State are subject to a
mandatory, and highly complex, system of comparative review. See Cal.Penal Code Ann. § 1170(f) (West Supp.1983)
("Within one year after the commencement of the term of
imprisonment, the Board of Prison Terms shall review the sentence
to determine whether the sentence is disparate in comparison with
the sentences imposed in similar cases"). California therefore
accords greater protection to felons who are imprisoned than to
felons who may be executed.

Summary: The Supreme Court rejected the argument that the Eighth Amendment requires state appellate courts to compare a death sentence with penalties imposed in similar cases, finding that it is not an essential requirement in every capital case. The Court's previous decisions in Gregg v. Georgia and Proffitt v. Florida did not hinge on proportionality review, and Jurek v. Texas upheld a scheme without it. California's capital punishment statute was upheld as constitutional, and the Court emphasized that states are free to conduct comparative proportionality reviews if they choose.