Lockett v. Ohio

Mb. Justice Rehnquist,

concurring in part and dissenting in part.

I join Parts I and II of The Chief Justice's opinion for the Court, but am unable to join Part III of his opinion or in the judgment of reversal.

I

Whether out of a sense of judicial responsibility or a less altruistic sense of futility, there are undoubtedly circumstances which require a Member of this Court “to bow to the authority” of an earlier case despite his “original and continuing belief that the decision was constitutionally wrong.” Burns v. Richardson, 384 U. S. 73, 98 (1966) (Harlan, J., concurring in result). See also id., at 99 (Stewakt, J., concurring in judgment). The Court has most assuredly not adopted the dissenting views which I expressed in the previous capital *629 punishment cases, see Woodson v. North Carolina, 428 U. S. 280, 308 (1976), and Furman v. Georgia, 408 U. S. 238, 465 (1972). It has just as surely not cloven to a principled doctrine either holding the infliction of the death penalty to be unconstitutional per se or clearly and understandably stating the terms under which the Eighth and Fourteenth Amendments permit the death penalty to be imposed. Instead, as I believe both the opinion of The Chief Justice and the opinion of my Brother White seem to concede, the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed.

The Chief Justice states: “We do not write on a 'clean slate/ ” ante, at 597. But it can scarcely be maintained that today’s decision is the logical application of a coherent doctrine first espoused by the opinions leading to the Court’s judgment in Furman , and later elaborated in the Woodson series of cases decided two Terms ago. Indeed, it cannot even be responsibly maintained that it is a principled application of the plurality and lead opinions in the Woodson series of cases, without regard to Furman . The opinion strives manfully to appear as a logical exegesis of those opinions, but I believe that it fails in the effort. We are now told, in effect, that in order to impose a death sentence the judge or jury must receive in evidence whatever the defense attorney wishes them to hear. I do not think The Chief Justice’s effort to trace this quite novel constitutional principle back to the plurality and lead opinions in the Woodson cases succeeds.

As the opinion admits, ante, at 606 n. 14, the statute upheld in Gregg v. Georgia, 428 U. S. 153 (1976), permitted the sentencing authority to consider only those mitigating circumstances “ 'authorized by law.’ ” Id., at 164 (opinion of Stewakt, Powell, and Stevens, JJ.) (citation omitted). Today’s opinion goes on to say: “Although the Florida statute *630 approved in Proffitt [v. Florida, 428 U. S. 242 (1976)] contained a list of mitigating factors, six Members of this Court assumed . . . that the range of mitigating factors listed in the statute was not exclusive.” Ante, at 606, and n. 15, citing Proffitt, supra, at 250 n. 8, 260. The footnote referred to discussed whether the Florida court would uphold a death sentence that rested entirely on nonstatutory aggravating circumstances. The reference to the absence of limiting language with respect to the list of statutory mitigating factors was employed to emphasize the different statutory treatment of aggravating circumstances. Indeed, only one page later the joint opinion stated: “The sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating factors against seven mitigating factors to determine whether the death penalty shall be imposed.” 428 U. S., at 251. The other Proffitt opinion referred to in today’s opinion, the dissenting opinion of Mr. Justice White, id., at 260 , said of mitigating circumstances: “[Although the statutory aggravating and mitigating circumstances are not susceptible of mechanical application, they are by no means so vague and overbroad as to leave the discretion of the sentencing authority unfettered.”

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

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

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

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

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

I continue to view McOautha as a correct exposition of the limits of our authority to revise state criminal procedures in capital cases under the Eighth and Fourteenth Amendménts. Sandra Lockett was fairly tried, and was found guilty of aggravated murder. I do not think Ohio was required to receive any sort of mitigating evidence which an accused or his lawyer wishes to offer, and therefore I disagree with Part III of the plurality’s opinion.

II

Because I reject the primary contentions offered by petitioner, I must also address her other arguments, with which the Court does not wish to deal, in order to conclude that the State may impose the death penalty. Two of petitioner’s objections can be dismissed with little comment. First, she complains that the Ohio procedure does not permit jury participation in the sentencing process. As the lead opinion pointed out in Proffitt, 428 U. S., at 252 , this Court “has never suggested that jury sentencing is constitutionally required.” No majority of this Court has ever reached a contrary conclusion, and I would not do so today. Second, she contends that the State should be required to prove the absence of mitigating factors beyond a reasonable doubt. Because I continue-to believe that the Constitution is not offended by the State’s refusal to consider mitigating factors at all, there can be no infirmity in shifting the burden of persuasion to the defendant when it chooses to consider them.

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

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

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

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