[Footnotes and some citations have been omitted.]
Lockett v. Ohio
No. 76-6997
Argued January 17, 1978
Decided July 3, 1978
438 U.S. 586
CERTIORARI TO THE SUPREME COURT OF OHIO
Syllabus
The Ohio death penalty statute provides that once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determines that at least one of the following circumstances is established by a preponderance of the evidence: (1) the victim induced or facilitated the offense; (2) it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation; or (3) the offense was primarily the product of the offender's psychosis or mental deficiency. Petitioner, whose conviction of aggravated murder with specifications that it was committed to escape apprehension for, and while committing or attempting to commit, aggravated robbery, and whose sentence to death were affirmed by the Ohio Supreme Court, makes various challenges to the validity of her conviction, and attacks the constitutionality of the death penalty statute on the ground, inter alia, that it does not give the sentencing judge a full opportunity to consider mitigating circumstances in capital cases as required by the Eighth and Fourteenth Amendments.
Held: The judgment is reversed insofar as it upheld the death penalty, and the case is remanded.
49 Ohio St.2d 48, 358 N.E.2d 1062, reversed in part and remanded.
THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II, concluding:
1. The prosecutor's closing references to the State's evidence as "unrefuted" and "uncontradicted" (no evidence having been introduced to rebut the prosecutor's case after petitioner decided not to testify) did not violate the constitutional prohibitions against commenting on an accused's failure to testify, where petitioner's counsel had already focused the jury's attention on her silence by promising a defense and telling the jury that she would testify. Pp. 594-595.
2. The exclusion from the venire of four prospective jurors who made it "unmistakably clear" that, because of their opposition to the death penalty, they could not be trusted to "abide by existing law" and to [438 U.S. 587] "follow conscientiously" the trial judge's instructions, Boulden v. Holman, 394 U.S. 478, 484; did not violate petitioner's Sixth and Fourteenth Amendment rights under the principles of Witherspoon v. Illinois, 391 U.S. 510, or Taylor v. Louisiana, 419 U.S. 522. Pp. 595-597.
3. Petitioner's contention that the Ohio Supreme Court's interpretation of the complicity provision of the statute under which she was convicted was so unexpected that it deprived her of fair warning of the crime with which she was charged, is without merit. The court's construction was consistent with both prior Ohio law and the statute's legislative history. P. 597.
THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, concluded, in Part III, that the limited range of mitigating circumstances that may be considered by the sentencer under the Ohio death penalty statute is incompatible with the Eighth and Fourteenth Amendments. Pp. 597-609.
(a) The Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Pp. 604-605.
(b) The need for treating each defendant in a capital case with the degree of respect due the uniqueness of the individual is far more important than in noncapital cases, particularly in view of the unavailability with respect to an executed capital sentence of such postconviction mechanisms in noncapital cases as probation, parole, and work furloughs. P. 605.
(c) A statute that prevents the sentencer in capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to the circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty, and, when the choice is between life and death, such risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. P. 605.
(d) The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments. Only the three factors specified in the statute can be considered in mitigation of the defendant's sentence, and, once it is determined that none of those factors is present, the statute mandates the death sentence. Pp. 606-608.
MR JUSTICE WHITE concluded that petitioner's death sentence should [438 U.S. 588] be vacated on the ground that the Ohio death penalty statute permits a defendant convicted of aggravated murder with specifications to be sentenced to death, as petitioner was in this case, without a finding that he intended death to result. Pp. 624-628.
MR. JUSTICE MARSHALL, being of the view that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by the Eighth Amendment, concurred in the judgment insofar as it vacates petitioner's death sentence, and also concurred in the judgment insofar as it affirms her conviction. Pp. 619-621.
MR. JUSTICE BLACKMUN concluded that petitioner's death sentence should be vacated on the grounds that (1) the Ohio death penalty statute is deficient in regard to petitioner, a nontriggerman charged with aiding and abetting a murder, in failing to allow consideration of the extent of petitioner's involvement, or the degree of her mens rea, in the commission of the homicide, and (2) the procedure provided by an Ohio Rule of Criminal Procedure giving the sentencing court full discretion to bar the death sentence "in the interests of justice" if the defendant pleads guilty or no contest, but no such discretion if the defendant goes to trial, creates an unconstitutional disparity of sentencing alternatives, United States v. Jackson, 390 U.S. 570. Pp. 613-619.
BURGER, C.J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I and II, in which STEWART, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined, and an opinion with respect to Part III, in which STEWART, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 613. MARSHALL, J., filed an opinion concurring in the judgment, post, p. 619. WHITE, J., filed an opinion concurring in part, concurring in the judgment, and dissenting in part, post, p. 621. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, post, p. 628. BRENNAN, J., took no part in the consideration or decision of the case. [438 U.S. 589]
* * *
III
Lockett challenges the constitutionality of Ohio's death penalty statute on a number of grounds. We find it necessary to consider only her contention that her death sentence is invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime. To address her contention from the proper perspective, it is helpful to review the developments in our recent cases where we have applied the Eighth and Fourteenth Amendments to death penalty statutes. We do not write on a "clean slate."
A
* * *
The constitutional status of discretionary sentencing in capital cases changed abruptly, however, as a result of the separate opinions supporting the judgment in Furman. The question in Furman was whether the imposition and carrying out of the death penalty [in the cases before the Court] constitute[d] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. 408 U.S. at 239. Two Justices concluded that the Eighth Amendment prohibited the death penalty altogether, and, on that ground, voted [438 U.S. 599] to reverse the judgments sustaining the death penalties. Id. at 305-306 (BRENNAN, J., concurring); id. at 370-371 (MARSHALL, J., concurring). Three Justices were unwilling to hold the death penalty per se unconstitutional under the Eighth and Fourteenth Amendments, but voted to reverse the judgments on other grounds. In separate opinions, the three concluded that discretionary sentencing, unguided by legislatively defined standards, violated the Eighth Amendment because it was "pregnant with discrimination," id. at 257 (Douglas, J., concurring), because it permitted the death penalty to be "wantonly" and "freakishly" imposed, id. at 310 (STEWART, J., concurring), and because it imposed the death penalty with "great infrequency" and afforded "no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not," id. at 313 (WHITE, J., concurring). Thus, what had been approved under the Due Process Clause of the Fourteenth Amendment in McGautha became impermissible under the Eighth and Fourteenth Amendments by virtue of the judgment in Furman. See Gregg v. Georgia, 428 U.S. 153, 195-196, n. 47 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.).
Predictably, the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the death penalty in accord with the Eighth Amendment. Some States responded to what was thought to be the command of Furman by adopting mandatory death penalties for a limited category of specific crimes thus eliminating all discretion from the sentencing process in capital cases. Other States attempted to continue the practice of individually assessing the culpability of each individual defendant convicted of a capital offense and, at the same time, to comply with Furman, by providing standards to guide the sentencing decision.
Four years after Furman, we considered Eighth Amendment [438 U.S. 601] issues posed by five of the post-Furman death penalty statutes. Four Justices took the position that all five statutes complied with the Constitution; two Justices took the position that none of them complied. Hence, the disposition of each case varied according to the votes of three Justices who delivered a joint opinion in each of the five cases upholding the constitutionality of the statutes of Georgia, Florida, and Texas, and holding those of North Carolina and Louisiana unconstitutional.
The joint opinion reasoned that, to comply with Furman, sentencing procedures should not create "a substantial risk that the death penalty [will] be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, supra at 188. In the view of the three Justices, however, Furman did not require that all sentencing discretion be eliminated, but only that it be "directed and limited," 428 U.S. at 189, so that the death penalty would be imposed in a more consistent and rational manner and so that there would be a "meaningful basis for distinguishing the . . . cases in which it is imposed from . . . the many cases in which it is not." Id. at 188. The plurality concluded, in the course of invalidating North Carolina's mandatory death penalty statute, that the sentencing process must permit consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death,
Woodson v. North Carolina, 428 U.S. at 304, in order to ensure the reliability, under Eighth Amendment standards, of the determination that "death is the appropriate punishment in a specific case." Id. at 305; see Roberts (Harry) v. Louisiana, 431 U.S. 633, 637 (1977); Jurek v. Texas, 428 U.S. 262, 271-272 (1976). [438 U.S. 602] * * *
B
With that obligation in mind, we turn to Lockett's attack on the Ohio statute. Essentially, she contends that the Eighth and Fourteenth Amendments require that the sentencer be given a full opportunity to consider mitigating circumstances in capital cases, and that the Ohio statute does not comply with that requirement. She relies, in large part, on the plurality opinions in Woodson, supra at 303-305, and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 333-334 (1976), and the joint opinion in Jurek, supra at 271-272, but she goes beyond them.
We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country. See Williams v. New York, 337 U.S. at 247-248; Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. at 55. Consistent with that concept, sentencing judges traditionally have taken a wide range of factors into account. That States have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony murder statutes is beyond constitutional challenge. But the definition of crimes generally has not been thought automatically to dictate what should be the proper penalty. * * * And where sentencing discretion is granted, it generally has been agreed that he sentencing judge's "possession of the fullest information possible concerning the defendant's life and characteristics" is "[h]ighly relevant -- if not essential -- [to the] selection of an appropriate sentence. . . ." Williams v. New York, supra at 247 (emphasis added).
* * *
Although legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases, the plurality opinion in Woodson, after [438 U.S. 604] reviewing the historical repudiation of mandatory sentencing in capital cases, 428 U.S. at 289-298, concluded that in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
Id. at 304. That declaration rested "on the predicate that the penalty of death is qualitatively different" from any other sentence. Id. at 305. We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of "relevant facets of the character and record of the individual offender or the circumstances of the particular offense." Id. at 304. The plurality did not attempt to indicate, however, which facets of an offender or his offense it deemed "relevant" in capital sentencing or what degree of consideration of "relevant facets" it would require.
We are now faced with those questions, and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes. The considerations that account for the wide acceptance of individualization of sentences in noncapital cases surely cannot be thought less important in capital cases. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques -- probation, parole, work furloughs, to name a few -- and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.
There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.
C
The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors we now hold to be required by the Eighth and Fourteenth Amendments in capital cases. Its constitutional infirmities can best be understood by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek.
[In Ohio], Once a defendant is found guilty of aggravated murder with at least one of seven specified aggravating circumstances, the death penalty must be imposed unless, considering "the nature and circumstances of the offense and the history, character, and condition of the offender," the sentencing judge determines that at least one of the following mitigating circumstances is established by a preponderance of the evidence:
(1) The victim of the offense induced or facilitated it.
(2) It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation.
(3) The offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity.
Ohio Rev.Code Ann. § 2929.04(B) (1975). [438 U.S. 608]
* * * [But even] under the Ohio court's construction of the statute, only the three factors specified in the statute can be considered in mitigation of the defendant's sentence. * * * We see, therefore, that once it is determined that the victim did not induce or facilitate the offense, that the defendant did not act under duress or coercion, and that the offense was not primarily the product of the defendant's mental deficiency, the Ohio statute mandates the sentence of death. The absence of direct proof that the defendant intended to cause the death of the victim is relevant for mitigating purposes only if it is determined that it sheds some light on one of the three statutory mitigating factors. Similarly, consideration of a defendant's comparatively minor role in the offense, or age, would generally not be permitted, as such, to affect the sentencing decision.
The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors.
Accordingly, the judgment under review is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings.
So ordered.