SECTION FIVE

(5) Death Is Different - But How Different? Re-Tooling the Formal Rationality of Death

A. The Ultimate Punishment for the Ultimate Offender and Offense: Proportionality

Furman, supra

Gregg, supra

O.C.G.A. sec. 17-10-35

Contra Pulley v. Harris, 465 U.S. 37 (1984)

Gissendaner v. State, ___S.E.2d___ (Ga. No. S00P0289, July 5, 2000)

B. Heightened Reliability

Furman, supra

Gregg, supra

Woodson, supra

Gardner v. Florida, 430 U.S. 349 (1977)

Beck v. Alabama, 447 U.S. 625 (1980)

Contra Herrera v. Collins, 506 U.S. 390 (1993)

Jacobs v. Scott, 513 U.S. 1067 (1995) (Stevens, J. dissenting from the denial of certiorari)

Barefoot v. Estelle, 463 U.S. 880 (1983)

C. Minimizing the 'Risk of Arbirariness'

Gregg, supra

Contra Zant v. Stephens, supra

McCleskey v. Zant, 481 U.S. 279 (1987)

D. From Procedural Safeguards to Shortcuts and Formalism

Frank v. Mangum, 237 U.S. 309. 345 (1915) (Holmes, J., dissenting)

Wainwright v. Sykes, 433 U.S. 72 (1977)

Coleman v. Thompson, 501 U.S. 722 (1991)

The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. sec. 2254

(5) Death Is Different - But How Different? Re-Tooling the Formal Rationality of Death

A. The Ultimate Punishment for the Ultimate Offender and Offense: Proportionality

FURMAN v. GEORGIA.

408 U.S. 238 (1972)

Mr. Justice BRENNAN, concurring * * *

The final principle inherent in the Clause is that a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary: The infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive * * * Although the determination that a severe punishment is excessive may be grounded in a judgment that it is disproportionate to the crime, the more significant basis is that the punishment serves no penal purpose more effectively than a less severe punishment.

* * *

Mr. Justice STEWART, concurring.

* * *

. . . [T]he death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments. In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. But I do not rest by conclusion upon these two propositions alone.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. * * *

Justice White, concurring. * * *

. . . 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. That conclusion, as I have said, is that the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. * * *

Troy Leon GREGG, Petitioner v. State of GEORGIA.

United States Supreme Court

428 U.S. 153 (1976)

Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice STEWART.

The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments. * * *

In the assessment of the appropriate sentence to be imposed the judge is also required to consider or to include in his instructions to the jury "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of (10) statutory aggravating circumstances which may be supported by the evidence ...." The scope of the nonstatutory aggravating or mitigating circumstances is not delineated in the statute. Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute.⁽¹⁾ The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to impose that sentence. If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found, In jury cases, the trial judge is bound by the jury's recommended sentence.

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

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

(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance ... and

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

If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration.

A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. The report is in the form of a 6 1/2 page questionnaire, designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant's representation, whether race played a role in the trial, and, whether, in the trial court's judgment, there was any doubt about the defendant's guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed there remains the possibility of executive clemency. * * *

Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender,⁽²⁾ we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.

We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.

We now consider whether Georgia may impose the death penalty on the petitioner in this case.

While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner * * *

Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. * * *

Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, but it must find a statutory aggravating circumstance before recommending a sentence of death.

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

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

* * *

Finally, the Georgia statute has an additional provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The new sentencing procedures require that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." In performing sentence-review function, the Georgia court has held that "if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive." The court on another occasion stated that "we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally ...."

It is apparent that the Supreme Court of Georgia has taken its review responsibilities seriously .... The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.

The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.

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

CODE OF GEORGIA

TITLE 17. CRIMINAL PROCEDURE

CHAPTER 10. SENTENCE AND PUNISHMENT

ARTICLE 2. DEATH PENALTY GENERALLY

Current through 1999 General Assembly

17-10-35 Review of death sentences by Supreme Court; forwarding of record and transcript; scope of review; written briefs and oral argument; similar cases to be included in decision; direct appeal to be consolidated with sentence review.

(a) Whenever the death penalty is imposed, upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Georgia. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court.

(b) The Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.

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

(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection (b) of Code Section 17-10-30; and

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

(d) Both the defendant and the state shall have the right to submit briefs within the time provided by the court and to present oral argument to the court.

(e) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:

(1) Affirm the sentence of death; or

(2) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court in its decision and the extracts prepared as provided for in subsection (a) of Code Section 17-10- 37 shall be provided to the resentencing judge for his consideration.

(f) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

R. PULLEY, Warden, Petitioner

Robert Alton HARRIS.

465 U.S. 37 (1984)

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. [FN1] Along with *39 many **874 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's sentence with the sentences imposed in similar capital *40 cases and thereby to determine whether they were proportionate. . .

FN1. The evidence at trial established that on July 5, 1978, respondent and his brother decided to steal a get-away car for a bank robbery in Mira Mesa, California. 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. They 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 kidnapping, 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.Pen.Code Ann. § 190.2(c)(5) (West 1977), and each of the murders was willful, deliberate, premeditated, and committed during the commission of kidnapping 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, 1 Cal.Stats.1977, ch. 316, 1255-1266, which was codified at Cal.Penal Code §§ 190-190.6. 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.

* * *

[4] 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 *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, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Enmund v. Florida, 458 U.S. 782,102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). The death penalty is not in all cases a disproportionate penalty in this sense. Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976) (opinion of Justices Stewart, POWELL, and STEVENS); id., at 226, 96 S.Ct., at 2949 (WHITE, J., concurring).

The proportionality review sought by Harris, required by the Court of Appeals, [FN6] and provided for in numerous state statutes [**876 FN7] 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 *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.

FN6. 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, at 1196.

FN7. 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).

III

Harris's submission is rooted in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (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, 408 U.S., at 240, 92 S.Ct., at 2727 (Douglas, J., concurring), so wantonly and freakishly, id., at 306, 92 S.Ct., at 2760 (Stewart, J., concurring), and so infrequently, id., at 310, 92 S.Ct., at 2762 (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.

[5] 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, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Needless to say, that some schemes providing*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, 96 S.Ct., at 2935 (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 **877 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. 428 U.S., at 197- 198, 96 S.Ct., at 2936-2937. 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. Id., at 222, 96 S.Ct., at 2947.

Both opinions made much of the statutorily-required comparative proportionality review. Id., at 198, 204-206, 222-223, 96 S.Ct., at 2936, 2939-2940, 2947-2948. 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 153, 198, 204-206, 96 S.Ct., at 2915, 2936, 2939-2940, 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 *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 be 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 195, 96 S.Ct., at 2935.

In short, the Court of Appeals erred in concluding that Gregg required proportionality review. * * *

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 *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.

[6] Assuming that there could be a capital sentencing system so lacking in other **880 checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review, the 1977 California statute is not of that sort. * * *

*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 ----, 103 S.Ct., at 2747, quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1977) (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 remanded for further proceedings consistent with this opinion.

It is so ordered.

Kelly Gissendaner v. State,

___S.E.2d___

(Ga. No. S00P0289, July 5, 2000)

THOMPSON, Justice.

*1 Kelly Renee Gissendaner was convicted of the malice murder of her husband, Douglas Morgan Gissendaner. [Footnote Omitted] The jury fixed Gissendaner's sentence at death, finding as statutory aggravating circumstances that the murder was committed during the commission of kidnapping with bodily injury, a capital felony, and that Gissendaner caused or directed another to commit the murder. OCGA § 17-10-30(b)(2) and (6). For the reasons set forth below, we affirm both the conviction and the death sentence.

1. Gissendaner and the victim had been married, divorced, remarried, separated, and reunited between 1989 and 1997. Ms. Gissendaner was in a relationship with Gregory Bruce Owen and at one point stated to a co-worker that she was unhappy with her husband and in love with Owen.

Prior to Gissendaner's trial, Owen entered an agreement not to seek parole within 25 years, pled guilty, and received a sentence of life in prison. Owen testified at Gissendaner's trial that it was she who first raised the idea of murder and that she later raised the idea again several other times. Owen suggested divorce as an alternative, but Gissendaner insisted upon murder because she believed she would receive insurance money from her husband's death and because she believed he "wouldn't leave [her] alone by just divorcing him." Gissendaner had previously stated to Owen's sister that she intended to use the victim's credit to get a house and then "get rid of him."

During the days leading up to the murder, Gissendaner made 47 telephone calls to Owen and paged him 18 times. Telephone records also showed that the pair were together at a bank of payphones several hours before the murder.

On the evening of February 7, 1997, Gissendaner drove Owen to her family's home, gave him a nightstick and a large knife, and left him inside the home to wait for the victim. Gissendaner then drove to a friend's house, and, upon Gissendaner's insistence that the group keep their plans for the evening, she and her friends went out to a nightclub.

The victim arrived home shortly after 10 p.m. Owen confronted the victim from behind, held a knife to his throat, forced him to drive to a remote location, forced him to walk into the woods and kneel, and then killed him by striking him with the nightstick and then stabbing him repeatedly in the back and neck with the knife. As instructed by Gissendaner, Owen took the victim's watch and wedding ring before killing him to make the murder appear like a robbery.

Gissendaner returned home from the nightclub at about the time the murder was being carried out, paged Owen with a numeric signal, and then drove to the crime scene. After inquiring if her husband was dead, she took a flashlight and went toward the body to inspect it. Owen burned the victim's automobile with kerosene provided by Gissendaner, and the pair returned to their respective homes in Gissendaner's automobile. Owen disposed of the nightstick, the knife, a pair of his own jeans, and the victim's stolen jewelry by placing them in the garbage. A pair of Owen's sweat pants also worn on the night of the murder were recovered, however, and DNA analysis of blood found on them showed a likely match with the victim's and Owen's blood.

After the murder, Gissendaner concealed her relationship with Owen from police and claimed not to have initiated contact with him for some time. Telephone records, Owen's testimony, and other witness testimony proved otherwise. After her arrest, Gissendaner called her best friend and confessed to her active and willing role in the murder, although she then called a second time and claimed that she was coerced into participating. Gissendaner wrote aletter while in jail in an effort to hire someone to give perjured testimony and to rob and beat witnesses.

*2 Viewed in the light most favorable to the verdict, we find that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Gissendaner was guilty of the crimes of which she was convicted and that statutory aggravating circumstances existed. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 17-10-30(b)(2) and (6).

* * *

Sentence Review

*12 19. Gissendaner contends that the death sentence she received is "disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." OCGA § 17-10-35(c)(3). Upon a review of the record and of similar cases in Georgia, we conclude that it is not.

a. Our review of all death sentences includes a special vigilance for categories of cases that have so consistently ended with sentences less than death that the death penalty in any one case would be clearly disproportionate. Gregg v. State, 233 Ga. 117, 126-128(6), 210 S.E.2d 659 (1974) (finding the death penalty for armed robbery disproportionate because "rarely imposed" for that crime); Floyd v. State, 233 Ga. 280, 285(V), 210 S.E.2d 810 (1974) (same); Jarrell v. State, 234 Ga. 410, 424-425(3)(c), 216 S.E.2d 258 (1975) (same); Corn v. State, 240 Ga. 130, 141(III)(2)(c), 240 S.E.2d 694 (1977) (same); Coley v. State, 231 Ga. 829, 834-836(I) and (II), 204 S.E.2d 612 (1974) (finding the death penalty for rape of an adult not resulting in death disproportionate to "the past practice among juries" and holding that "if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive"); see also Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (concerning proportionality review of a death sentence under the United States Constitution). However, our review concerns whether the death penalty "is excessive per se" or if the death penalty is "only rarely imposed ... or substantially out of line" for the type of crime involved and not whether there ever have been sentences less than death imposed for similar crimes. Horton v. State, 249 Ga. 871, 879(12), 295 S.E.2d 281 (1982); Coley v. State, 231 Ga. at 834, 204 S.E.2d 612(I); Moore v. State, 233 Ga. 861, 866, 213 S.E.2d 829 (1975). Consequently, an argument, like one raised by Gissendaner, that a specific defendant in an unrelated murder case received a sentence less than death, while not irrelevant, cannot alone compel a finding of unlawful disproportionality. This Court views a particular crime against the backdrop of all similar cases in Georgia in determining if a given sentence is excessive per se or substantially out of line. When applicable, our "proportionality review of death sentences includes special consideration of the sentences received by co-defendants in the same crime." Allen v. State, 253 Ga. 390, 395(8), 321 S.E.2d 710 (1984) (citing Hall v. State, 241 Ga. 252, 258-260(8), 244 S.E.2d 833 (1978)).

We are also directed by OCGA § 17-10-35(c)(3) to consider "the defendant" in weighing the proportionality of a death sentence, and, therefore, the special individual characteristics of an appellant are appropriate for consideration. See Corn v. State, 240 Ga. at 141, 240 S.E.2d 694(III)(2)(c) (discussing "low mental level and social maladjustment"). Our consideration of "the defendant" also requires a review of the aggravating factors presented at trial, including both past conduct and conduct after the crime.

*13 b. In considering Gissendaner's role in the murder, we note several aggravating factors from the record. First, the record indicates that she was the moving force in the crime. Owen, her co-conspirator, testified that Gissendaner insisted her husband be murdered rather than divorced so that she would receive insurance money to pay off the mortgage on her home, although she learned after the murder that no such insurance policy was yet in force. Telephone records indicated that Gissendaner was with Owen when the two made plans for the murder from a bank of payphones and that Gissendaner called or paged Owen 65 times in the days leading up to the murder. On the night of the murder, Gissendaner drove Owen to her family's home, provided him with the murder weapons, and then left him inside the home to lie in wait for her husband while she left to establish an alibi. While out with her friends during the actual murder, Gissendaner resisted suggestions that the group reschedule their outing. When she returned, she immediately sent a numeric signal to Owen on his pager and then drove to the murder scene. Owen testified that she took a flashlight to inspect her husband's body to see that he was dead and assisted in burning her husband's automobile.

Gissendaner's conduct after the night of the murder is also an appropriate concern for our sentence review, as it was an appropriate concern for the jury who sentenced her. Evidence at trial showed that Gissendaner, prior to her arrest, drove angrily toward a witness while declaring, "I ought to run the bitch over." While in jail, she wrote a letter and drew a map of her house in an effort to locate a person willing to accept money to commit perjury and to rob and beat witnesses.

c. We conclude that the deliberate, even insistent, manner in which Gissendaner pursued her husband's death, the fact that the murder was the unprovoked and calculated killing of a close family member, the fact that she arranged the murder to obtain money, and the fact that she attempted to avoid responsibility for her conduct by suborning perjury and orchestrating violence against witnesses all weigh heavily against her claim that the death penalty in her case is disproportionate. Our review of the sentences imposed in similar cases in Georgia reveals that the death sentence imposed in Gissendaner's case, considering both the gravity of her crime and the apparent depravity of her character, is not disproportionate. OCGA § 17-10-35(c)(3). The cases appearing in the Appendix support this conclusion in that each involved the careful devising of a plan to kill, killing for the purpose of receiving something of monetary value, kidnaping with bodily injury, or causing or directing another to kill.

d. Gissendaner also contends her death sentence is impermissibly disproportionate to the sentence received by her co-conspirator. The evidence showed that Gissendaner was the moving force behind the murder and even insisted upon murder when her co-conspirator suggested divorce instead. See Waldrip v. State, 267 Ga. 739, 752-753(25), 482 S.E.2d 299 (1997) (affirming death sentence when appellant is one among several persons likely to have been moving force, despite life sentence of co-indictees); compare Hall v. State 241 Ga. at 260(8), 244 S.E.2d 833. The evidence showed that she repeatedly raised the option of murder in conversations with her co-conspirator and that she planned the murder. She and not her co-conspirator stood primarily to gain financially from the murder. The murder was planned against her close family member. See DeYoung v. State, 268 Ga. 780, 493 S.E.2d 157. Unlike her co- conspirator, who cooperated with authorities and confessed his guilt, Gissendaner devised a plan to suborn perjury and to do violence against witnesses. Id.; compare Moore v. State, 233 Ga. at 865, 213 S.E.2d 829. We also note that Gissendaner appealed to the jury's sense of justice by making the same argument of proportionality she makes to this Court and that the jury rejected the argument by its verdict. In light of all these circumstances, we conclude that Gissendaner's sentence was not impermissibly disproportionate to Owen's. See Carr v. State, 267 Ga. at 559(11), 480 S.E.2d 583; see also Crowe v. State, 265 Ga. at 595(24), 458 S.E.2d 799; compare Hall v. State, 241 Ga. at 259-260(8), 244 S.E.2d 833.

*14 20. We find that the sentence of death in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA § 17-10-35(c)(1).

Judgment affirmed.

All the Justices concur, except FLETCHER, P.J., who concurs in judgment only as to Division 12; and BENHAM, C.J., and SEARS, J., who dissent as to Division 15.

APPENDIX

Wilson v. State, 271 Ga. 811, 525 S.E.2d 339 (--- S.E.2d ----) (1999); Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998); DeYoung v. State, 268 Ga. 780, 493 S.E.2d 157 (1997); Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299 (1997); Carr v. State, 267 Ga. 547, 480 S.E.2d 583 (1997); Crowe v. State, 265 Ga. 582, 458 S.E.2d 799 (1995); Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78 (1992); Ferrell v. State, 261 Ga. 115, 401 S.E.2d 741 (1991); Ford v. State, 257 Ga. 461, 360 S.E.2d 258 (1987); Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986); Alderman v. State, 254 Ga. 206, 327 S.E.2d 168 (1985); Tyler v. State, 247 Ga. 119, 274 S.E.2d 549 (1981); Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978); Smith v. State, 236 Ga. 12, 222 S.E.2d 308 (1976).

BENHAM, Chief Justice, dissenting.

*15 While I concur with the majority's affirmance of appellant's adjudication of guilt, I respectfully dissent to Division 15 of the majority opinion and the sentence for the same reasons as stated by Justice Sears in her dissent in Wilson v. State, 271 Ga. 811, 523 S.E.2d 339 (1999).

I am authorized to state that Justice Sears joins in this dissent.

B. Heightened Reliability

FURMAN, v. GEORGIA,

408 U.S. 238 (1972)

* * *

Mr. Justice STEWART, concurring.

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. * * *

[T]he death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments. In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. But I do not rest by conclusion upon these two propositions alone.

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 in 1967 and 1968, 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. [Footnote Omitted] 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. But racial discrimination has not been proved, and I put it to one side. 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 wantonly and so freakishly imposed.

GREGG v. GEORGIA.

428 U.S. 153 (1976)

Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice STEWART.

* * *

Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender,⁽³⁾ we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.

WOODSON

NORTH CAROLINA,

428 U.S. 280 (1976).

Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. Justice STEWART.

The question in this case is whether the imposition of a death sentence for the crime of first-degree murder under the law of North Carolina violates the Eighth and Fourteenth Amendments.

* * *

A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death .... A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

This Court has previously recognized that "(f)or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender" .... While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe 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.

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

For the reasons stated, we conclude that the death sentences imposed upon the petitioners under North Carolina's mandatory death sentence statute violated the Eighth and Fourteenth Amendments and therefore must be set aside. The judgment of the Supreme Court of North Carolina is reversed insofar as it upheld the death sentences imposed upon the petitioners, and the case is remanded for further proceedings not inconsistent with this opinion.

Daniel Wilbur GARDNER, Petitioner,

State of FLORIDA,

430 U.S. 349(1977)

Mr. Justice STEVENS. Petitioner was convicted of first-degree murder and sentenced to death. When the trial judge imposed the death sentence he stated that he was relying in part on information in a presentence investigation report. Portions of the report were not disclosed to counsel for the parties. Without reviewing the confidential portion of the presentence report, the Supreme Court of Florida, over the dissent of two justices, affirmed the death sentence. We conclude that this procedure does not satisfy the constitutional command that no person shall be deprived of life without due process of law.

On June 30, 1973, the petitioner assaulted his wife with a blunt instrument, causing her death. On January 10, 1974, after a trial in the Circuit Court of Citrus County, Fla., a jury found him guilty of first-degree murder.

The separate sentencing hearing required by Florida law in capital cases was held later on the same day. The State merely introduced two photographs of the decedent, otherwise relying on the trial testimony. That testimony, if credited, was sufficient to support a finding of one of the statutory aggravating circumstances, that the felony committed by petitioner 'was especially heinous, atrocious, or cruel.'

In mitigation petitioner testified that he had consumed a vast quantity of alcohol during a day-long drinking spree which preceded the crime, and professed to have almost no recollection of the assault itself. His testimony, if credited, was sufficient to support a finding of at least one of the statutory mitigating circumstances.

After hearing this evidence the jury was instructed to determine by a majority vote (1) whether the State had proved one of the aggravating circumstances defined by statute, (2) whether mitigating circumstances outweighed any such aggravating circumstance, and (3) based on that determination, whether the defendant should be sentenced to life or death.

After the jury retired to deliberate, the judge announced that he was going to order a presentence investigation of petitioner. Twenty-five minutes later the jury returned its advisory verdict. It expressly found that the mitigating circumstances outweighed the aggravating circumstances and advised the court to impose a life sentence.

The presentence investigation report was completed by the Florida Parole and Probation Commission on January 28, 1974. On January 30, 1974, the trial judge entered findings of fact and judgment sentencing petitioner to death. His ultimate finding was that the felony 'was especially heinous, atrocious or cruel; and that such aggravating circumstances outweighs the mitigating circumstance, to-wit: none.' As a preface to that ultimate finding, he recited that his conclusion was based on the evidence presented at both stages of the bifurcated proceeding, the arguments of counsel, and his review of 'the factual information contained in said pre-sentence investigation.'

There is no dispute about the fact that the presentence investigation report contained a confidential portion which was not disclosed to defense counsel. Although the judge noted in his findings of fact that the State and petitioner's counsel had been given 'a copy of that portion (of the report) to which they are entitled,' counsel made no request to examine the full report or to be apprised of the contents of the confidential portion. The trial judge did not comment on the contents of the confidential portion. His findings do not indicate that there was anything of special importance in the undisclosed portion, or that there was any reason other than customary practice for not disclosing the entire report to the parties. * * *

[F]ive Members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country. Gregg v. Georgia, 428 U.S. 153, 181-188 (opinion of Stewart, Powell, and Stevens, JJ.); Id. at 231-241 (Marshall, J., dissenting); Furman v. Georgia, 408 U.S., at 286-291 (Brennan, J., concurring). From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.

Second, it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. * * *

. . . Florida argues that trial judges can be trusted to exercise their discretion in a responsible manner, even though they may base their decisions on secret information. However acceptable that argument might have been before Furman v. Georgia, it is now clearly foreclosed. Moreover, the argument rests on the erroneous premise that the participation of counsel is superfluous to the process of evaluating the relevance and significance of aggravating and mitigating facts. Our belief that debate between adversaries is often essential to the truth-seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases.

Even if it were permissible to withhold a portion of the report from a defendant, and even from defense counsel, pursuant to an express finding of good cause for nondisclosure, it would nevertheless be necessary to make the full report a part of the record to be reviewed on appeal. Since the State must administer its capital-sentencing procedures with an even hand, it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed. Without full disclosure of the basis for the death sentence, the Florida capital-sentencing procedure would be subject to the defects would resulted in the holding of unconstitutionality in Furman v. Georgia. In this particular case, the only explanation for the lack of disclosure is the failure of defense counsel to request access to the full report. That failure cannot justify the submission of a less complete record to the reviewing court than the record on which the trial judge based his decision to sentence petitioner to death.

* * *

We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain. * * *

Mr. Justice WHITE, concurring in the judgment.

* * *

The issue in this case, like the issue in Woodson v. North Carolina, 'involves the procedure' employed by the State in selecting persons who will receive the death penalty. Here the sentencing judge indicated that he selected petitioner Gardner for the death penalty in part because of information contained in a presentence report which information was not disclosed to petitioner or to his counsel and to which petitioner had no opportunity to respond. A procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the 'character and record of the individual offender,' fails to meet the 'need for reliability in the determination that death is the appropriate punishment' which the Court indicated was required in Woodson. This conclusion stems solely from the Eighth Amendment's ban on cruel and unusual punishments on which the Woodson decision expressly rested, and my conclusion is limited, as was Woodson, to cases in which the death penalty is imposed. I thus see no reason to address in this case the possible application to sentencing proceedings in death or other cases of the Due Process Clause, other than as the vehicle by which the strictures of the Eighth Amendment are triggered in this case. For these reasons, I do not join the plurality opinion but concur in the judgment.

Mr. Justice REHNQUIST, dissenting. * * * [I]f capital punishment is not cruel and unusual under the Eighth and Fourteenth Amendments, the use of particular sentencing procedures, never previously held unfair under the Due Process Clause, in a case where the death sentence is imposed cannot convert that sentence into a cruel and unusual punishment. The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed. I would therefore affirm the judgment of the Supreme Court of Florida.

Gilbert Franklin BECK, Petitioner,

State of ALABAMA,

447 U.S. 625 (1980)

Mr. Justice STEVENS delivered the opinion of the Court.

We granted certiorari to decide the following question: "May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?" 444 U.S. 897, 100 S.Ct. 204, 62 L.Ed.2d 132. We now hold that the death penalty may not be imposed under these circumstances.

Petitioner was tried for the capital offense of "[r]obbery or attempts thereof when the victim is intentionally killed by the defendant." [FN1] [omitted] Under the Alabama death penalty statute *628 the requisite intent to kill may not be supplied by the felony- **2385 murder doctrine. [FN2] [omitted] Felony murder is thus a lesser included offense of the capital crime of robbery-intentional killing. However, under the statute the judge is specifically prohibited from giving the jury the option of convicting the defendant of a lesser included offense. [FN3] [omitted] Instead, the jury is given the *629 choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime. If the defendant is convicted and the death penalty imposed, the trial judge must then hold a hearing with respect to aggravating and mitigating circumstances; after hearing the evidence, the judge may refuse to impose the death penalty, sentencing the defendant to life imprisonment without possibility of parole. [FN4] [omitted]

In this case petitioner's own testimony established his participation in the robbery of an 80-year-old man named Roy Malone. **2386 Petitioner consistently denied, however, that he killed the man or that he intended his death. Under petitioner's version of the events, he and an accomplice entered *630 their victim's home in the afternoon, and, after petitioner had seized the man intending to bind him with a rope, his accomplice unexpectedly struck and killed him. As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law. [FN5]

FN5. The Alabama rule in cases other than capital cases is that the defendant is entitled to a lesser included offense instruction if "there is any reasonable theory from the evidence which would support the position." Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890 (1973). The State concedes that under this standard petitioner would have been entitled to instructions on first-degree (felony) murder and robbery. Brief for Respondent 78-79; Tr. of Oral Arg. 23. The parties disagree as to whether petitioner also would have been entitled to an instruction on second-degree murder under state law. We, of course, have no occasion to pass on this issue.

Because of the statutory prohibition, the court did not instruct the jury as to the lesser included offense of felony murder. Instead, the jury was told that if petitioner was acquitted of the capital crime of intentional killing in the course of a robbery, he "must be discharged" and "he can never be tried for anything that he ever did to Roy Malone." Record 743. The jury subsequently convicted petitioner and imposed the death penalty; after holding a hearing with respect to aggravating and mitigating factors, the trial court refused to overturn that penalty. . . .

In this Court petitioner contends that the prohibition on giving lesser included offense instructions in capital cases violates both the Eighth Amendment as made applicable to the States by the Fourteenth Amendment and the Due Process Clause of the Fourteenth Amendment by substantially increasing the risk of error in the factfinding process. Petitioner argues that, in a case in which the evidence clearly establishes the defendant's guilt of a serious noncapital crime such as felony murder, forcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction. [FN8] *633 In response, Alabama argues that the preclusion of lesser included offense instructions does not impair the reliability of the factfinding process or prejudice the defendant in any way. Rather, it argues that the apparently mandatory death penalty will make the jury more prone to acquit in a doubtful case and that the jury's ability to force a mistrial by refusing to return a verdict acts as a viable third option in a case in which the jury has doubts but is nevertheless unwilling to acquit. The State also contends that prohibiting lesser included offense instructions is a reasonable way of assuring that the death penalty is not imposed arbitrarily and capriciously as a result of compromise verdicts. Finally, it argues that any error in the imposition of the death penalty by the jury can be cured by the judge after a hearing on aggravating and mitigating circumstances.

FN8. Petitioner also argues that, because Alabama law requires a trial judge to give lesser included offense instructions where appropriate in noncapital cases, the total prohibition on such instructions in capital cases constitutes an irrational discrimination violative of the Equal Protection Clause of the Fourteenth Amendment. In view of our disposition of the case, it is not necessary to consider this issue. Moreover, petitioner failed to raise this claim in the courts below.

At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. [FN9] [omitted] This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. See 2 C. Wright, Federal Practice and Procedure s 515, n. 54 **2388 (1969). But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal. As Mr. Justice BRENNAN explained in his opinion *634 for the Court in Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844, providing the jury with the "third option" of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard:

"Moreover, it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction--in this context or any other--precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option-- convicting the defendant of simple assault--could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an *635 instruction would raise difficult constitutional questions." Id., at 212-213, 93 S.Ct., at 1997-98 (emphasis in original).

Alabama's failure to afford capital defendants the protection provided by lesser included offense instructions is unique in American criminal law. [FN10] In the federal courts, it has long been "beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States, supra, at 208, 93 S.Ct., at 1997. [FN11] [omitted] **2389 Similarly, the state courts that have addressed *636 the issue have unanimously held that a defendant is entitled to a lesser included offense instruction where the evidence warrants it. [FN12] [omitted] Indeed, for all noncapital crimes *637 Alabama itself gives the defendant a right to such instructions under appropriate circumstances. See n. 5, supra.

FN10. Mississippi's post-Furman death penalty statute also contained a prohibition on charging lesser included offenses. In Jackson v. State, 337 So.2d 1242, 1255 (1976), the Mississippi Supreme Court struck down this part of the statute on the ground that it "constitutes an impediment to full and complete administration of justice in the trial of capital cases and is therefore not binding on the courts. . . ." While warning that lesser included offense instructions should not be given "indiscriminately or automatically," the court held that they should continue to be given when "warranted by the evidence."

While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense--but leaves some doubt with respect to an element that would justify conviction of a capital offense--the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Such a risk cannot be tolerated in a case in which the defendant's life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments: "[D]eath is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the defendant, it is **2390 different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on *638 reason rather than caprice or emotion." Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (opinion of STEVENS, J.). To insure that the death penalty is indeed imposed on the basis of "reason rather than caprice or emotion," we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. [FN13] The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case. [FN14]

FN13. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (opinion of STEVENS, J.); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. In Lockett THE CHIEF JUSTICE explained the rationale for requiring more reliable procedures in capital sentencing determinations: "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." Id., at 605, 98 S.Ct., at 2965. See also Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (opinion of STEWART, POWELL, and STEVENS, JJ.): "Death, in its finality, differs more from life imprisonment than a 100- year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."

FN14. We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case.

* * *

In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason--its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to *643 acquit for an equally impermissible reason--that, whatever his crime, the defendant does not deserve death. [footnote omitted] In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

Accordingly, the judgment of the Alabama Supreme Court is

Reversed.

Mr. Justice BRENNAN, concurring. [omitted]

Mr. Justice MARSHALL, concurring in the judgment. [omitted]

Mr. Justice REHNQUIST, with whom Mr. Justice WHITE joins, dissenting. [Justice Rehnquist's dissent was limited to a jurisdictional issue and whether Beck's failure to raise the lesser-included-offense issue on discretionary review from the Alabama Court of Criminal Appeals to the Alabama Supreme Court barred the Supreme Court's consideration of the claim.]

Leonel Torres HERRERA, Petitioner

James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,

506 U.S. 390 (1993)

Chief Justice REHNQUIST delivered the opinion of the Court. Petitioner Leonel Torres Herrera was convicted of capital murder and sentenced to death in January 1982. He unsuccessfully challenged the conviction on direct appeal and state collateral proceedings in the Texas state courts, and in a federal habeas petition. In February 1992--10 years after his conviction--he urged in a second federal habeas petition that he was "actually innocent" of the murder for which he was sentenced to death, and that the Eighth Amendment's prohibition against cruel and unusual punishment and *857 the Fourteenth Amendment's guarantee of due process of law therefore forbid his execution. He supported this claim with affidavits tending to show that his now-dead brother, rather than he, had been the perpetrator of the crime. Petitioner urges us to hold that this showing of innocence entitles him to relief in this federal habeas proceeding. We hold that it does not.

Shortly before 11 p.m. on an evening in late September 1981, the body of Texas Department of Public Safety Officer David Rucker was found by a passerby on a stretch of highway about six miles east of Los Fresnos, Texas, a few miles north of Brownsville in the Rio Grande Valley. Rucker's body was lying beside his patrol car. He had been shot in the head.

At about the same time, Los Fresnos Police Officer Enrique Carrisalez observed a speeding vehicle traveling west towards Los Fresnos, away from the place where Rucker's body had been found, along the same road. Carrisalez, who was accompanied in his patrol car by Enrique Hernandez, turned on his flashing red lights and pursued the speeding vehicle. After the car had stopped briefly at a red light, it signaled that it would pull over and did so. The patrol car pulled up behind it. Carrisalez took a flashlight and walked toward the car of the speeder. The driver opened his door and exchanged a few words with Carrisalez before firing at least one shot at Carrisalez' chest. The officer died nine days later.

Petitioner Herrera was arrested a few days after the shootings and charged with the capital murder of both Carrisalez and Rucker. He was tried and found guilty of the capital murder of Carrisalez in January 1982, and sentenced to death. In July 1982, petitioner pleaded guilty to the murder of Rucker.

At petitioner's trial for the murder of Carrisalez, Hernandez, who had witnessed Carrisalez' slaying from the officer's patrol car, identified petitioner as the person who had wielded the gun. A declaration by Officer Carrisalez to the same effect, made while he was in the hospital, was also admitted. Through a license plate check, it was shown that the speeding car involved in Carrisalez' murder was registered to petitioner's "live-in" girlfriend. Petitioner was known to drive this car, and he had a set of keys to the car in his pants pocket when he was arrested. Hernandez identified the car as the vehicle from which the murderer had emerged to fire the fatal shot. He also testified that there had been only one person in the car that night.

The evidence showed that Herrera's Social Security card had been found alongside Rucker's patrol car on the night he was killed. Splatters of blood on the car identified as the vehicle involved in the shootings, and on petitioner's blue jeans and wallet were identified as type A blood--the same type which Rucker had. (Herrera has type O blood.) Similar evidence with respect to strands of hair found in the car indicated that the hair was Rucker's and not Herrera's. A handwritten letter was also found on the person of petitioner when he was arrested, which strongly implied that he had killed Rucker. [FN1]

FN1. The letter read: "To whom it may concern: I am terribly sorry for those I have brought grief to their lives. Who knows why? We cannot change the future's problems with problems from the past. What I did was for a cause and purpose. One law runs others, and in the world we live in, that's the way it is. "I'm not a tormented person.... I believe in the law. What would it be without this [sic ] men that risk their lives for others, and that's what they should be doing--protecting life, property, and the pursuit of happiness. Sometimes, the law gets too involved with other things that profit them. The most laws that they make for people to break them, in other words, to encourage crime. "What happened to Rucker was for a certain reason. I knew him as Mike Tatum. He was in my business, and he violated some of its laws and suffered the penalty, like the one you have for me when the time comes. "My personal life, which has been a conspiracy since my high school days, has nothing to do with what has happened. The other officer that became part of our lives, me and Rucker's (Tatum), that night had not to do in this [sic ]. He was out to do what he had to do, protect, but that's life. There's a lot of us that wear different faces in lives every day, and that is what causes problems for all. [Unintelligible word]. "You have wrote all you want of my life, but think about yours, also. [Signed Leonel Herrera]. "I have tapes and pictures to prove what I have said. I will prove my side if you accept to listen. You [unintelligible word] freedom of speech, even a criminal has that right. I will present myself if this is read word for word over the media, I will turn myself in; if not, don't have millions of men out there working just on me while others--robbers, rapists, or burglars--are taking advantage of the law's time. Excuse my spelling and writing. It's hard at times like this." App. to Brief for United States as Amicus Curiae 3a-4a.

* * * Petitioner . . . filed a second habeas petition, raising, among other things, a claim of "actual innocence" based on newly discovered evidence. In support of this claim petitioner presented the affidavits of Hector Villarreal, an attorney who had represented petitioner's brother, Raul Herrera, Sr., and of Juan Franco Palacious, one of Raul Sr.'s former cellmates. Both individuals claimed that Raul Sr., who died in 1984, had told them that he--and not petitioner--had killed Officers Rucker and Carrisalez. [FN2] The State District Court denied this application, finding that "no evidence at trial remotely suggest[ed] that anyone other than [petitioner] committed the offense." Ex parte Herrera, No. 81-CR-672-C (Tex. 197th Jud.Dist., Jan. 14, 1991), P 35. The Texas Court of Criminal Appeals affirmed, Ex parte Herrera, 819 S.W.2d 528 (1991), and we denied certiorari, Herrera v. Texas, 502 U.S. ----, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992).

FN2. Villarreal's affidavit is dated December 11, 1990. He attested that while he was representing Raul Sr. on a charge of attempted murder in 1984, Raul Sr. had told him that he, petitioner, their father, Officer Rucker, and the Hidalgo County Sheriff were involved in a drug-trafficking scheme; that he was the one who had shot Officers Rucker and Carrisalez; that he didn't tell anyone about this because he thought petitioner would be acquitted; and that after petitioner was convicted and sentenced to death, he began blackmailing the Hidalgo County Sheriff. According to Villarreal, Raul Sr. was killed by Jose Lopez, who worked with the sheriff on drug- trafficking matters and was present when Raul Sr. murdered Rucker and Carrisalez, to silence him. Palacious' affidavit is dated December 10, 1990. He attested that while he and Raul Sr. shared a cell together in the Hidalgo County jail in 1984, Raul Sr. told him that he had shot Rucker and Carrisalez.

In February 1992, petitioner lodged the instant habeas petition--his second-- in federal court, alleging, among other things, that he is innocent of the murders of Rucker and Carrisalez, and that his execution would thus violate the Eighth and Fourteenth Amendments. In addition to proffering the above affidavits, petitioner presented the affidavits of Raul Herrera, Jr., Raul Sr.'s son, and Jose Ybarra, Jr., a schoolmate of the Herrera brothers. Raul Jr. averred that he had witnessed his father shoot Officers Rucker and Carrisalez and petitioner was not present. Raul Jr. was nine years old at the time of the killings. Ybarra alleged that Raul Sr. told him one summer night in 1983 that he had shot the two police officers. [FN3] Petitioner alleged that law enforcement officials were *859 aware of this evidence, and had withheld it in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

FN3. Raul Jr.'s affidavit is dated January 29, 1992. Ybarra's affidavit is dated January 9, 1991. It was initially submitted with Petitioner's Reply to State's Brief in Response to Petitioner's Petition for Writ of Habeas Corpus filed January 18, 1991, in the Texas Court of Criminal Appeals.

The District Court dismissed most of petitioner's claims as an abuse of the writ. No. M-92-30 (SD Tex. Feb. 17, 1992). However, "in order to ensure that Petitioner can assert his constitutional claims and out of a sense of fairness and due process," the District Court granted petitioner's request for a stay of execution so that he could present his claim of actual innocence, along with the Raul Jr. and Ybarra affidavits, in state court. App. 38-39. Although it initially dismissed petitioner's Brady claim on the ground that petitioner had failed to present "any evidence of withholding exculpatory material by the prosecution," App. 37, the District Court also granted an evidentiary hearing on this claim after reconsideration, id., at 54.

The Court of Appeals vacated the stay of execution. 954 F.2d 1029 (CA5 1992). It agreed with the District Court's initial conclusion that there was no evidentiary basis for petitioner's Brady claim, and found disingenuous petitioner's attempt to couch his claim of actual innocence in Brady terms. 954 F.2d, at 1032. Absent an accompanying constitutional violation, the Court of Appeals held that petitioner's claim of actual innocence was not cognizable because, under Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." See 954 F.2d at 1034. [FN4] We granted certiorari, 502 U.S. ----, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992), and the Texas Court of Criminal Appeals stayed petitioner's execution. We now affirm.

FN4. After the Court of Appeals vacated the stay of execution, petitioner attached a new affidavit by Raul Jr. to his Petition for Rehearing, which was denied. The affidavit alleges that during petitioner's trial, various law enforcement officials and the Hidalgo County Sheriff told Raul Jr. not to say what happened on the night of the shootings and threatened his family.

Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. See United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975). But the evidence upon which petitioner's claim of innocence rests was not produced at his trial, but rather eight years later. In any system of criminal justice, "innocence" or "guilt" must be determined in some sort of a judicial proceeding. Petitioner's showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings in this case, which have stretched over a span of 10 years.

A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Other constitutional provisions also have the effect of ensuring against the risk of convicting an innocent person. See, e.g., Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (right to confront adverse witnesses); Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (right to compulsory process); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (right to effective assistance of counsel); Winship, supra (prosecution must prove guilt beyond a reasonable doubt); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (right to jury trial); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecution must disclose exculpatory evidence); *860 Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to assistance of counsel); In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (right to "fair trial in a fair tribunal"). In capital cases, we have required additional protections because of the nature of the penalty at stake. See, e.g., Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (jury must be given option of convicting the defendant of a lesser offense). All of these constitutional safeguards, of course, make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant. But we have also observed that "[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). To conclude otherwise would all but paralyze our system for enforcement of the criminal law.

Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974) ("The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt"). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is "innocent," but on the contrary as one who has been convicted by due process of law of two brutal murders.

Based on affidavits here filed, petitioner claims that evidence never presented to the trial court proves him innocent notwithstanding the verdict reached at his trial. Such a claim is not cognizable in the state courts of Texas. For to obtain a new trial based on newly discovered evidence, a defendant must file a motion within 30 days after imposition or suspension of sentence. [citations omitted]

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. . . . This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution-- not to correct errors of fact. . . .

This is not to say that our habeas jurisprudence casts a blind eye towards innocence. In a series of cases culminating with Sawyer v. Whitley, 505 U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), decided last Term, we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence. This rule, or fundamental miscarriage of justice exception, is grounded in the "equitable discretion" of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons. See McCleskey, supra, at ----, 111 S.Ct., at 1474. But this body of our habeas jurisprudence makes clear that a claim of "actual innocence" is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. . . . The fundamental miscarriage of justice exception is available "only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann, supra, at 454, 106 S.Ct., at 2627 (emphasis added). *863 We have never held that it extends to free-standing claims of actual innocence. Therefore, the exception is inapplicable here.

Petitioner asserts that this case is different because he has been sentenced to death. But we have "refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus." Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989) (plurality opinion). We have, of course, held that the Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed. See, e.g., McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (unanimity requirement impermissibly limits jurors' consideration of mitigating evidence); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (jury must be allowed to consider all of a capital defendant's mitigating character evidence); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion) (same). But petitioner's claim does not fit well into the doctrine of these cases, since, as we have pointed out, it is far from clear that a second trial 10 years after the first trial would produce a more reliable result. * * *

Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after- discovered evidence establishing their innocence. . . .

[I]n state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant. Federal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings. Our federal habeas cases have treated claims of "actual innocence," not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold. * * *

This is not to say that petitioner's affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner's trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.

The judgment of the Court of Appeals is

Affirmed.

Justice O'CONNOR, with whom Justice KENNEDY joins, concurring. [omitted]

Justice SCALIA, with whom Justice THOMAS joins, concurring.

* * * There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after *875 conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) "shocks" the dissenters' consciences, post, at 876, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience-shocking" as a legal test.

I nonetheless join the entirety of the Court's opinion, including the final portion (pages 869-870)--because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution [FN1] [omitted] lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon. . . .

Justice WHITE, concurring in the judgment.

In voting to affirm, I assume that a persuasive showing of "actual innocence" made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, "no rational trier of fact could [find] proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979). For the reasons stated in the Court's opinion, petitioner's showing falls far short of satisfying even that standard, and I therefore concur in the judgment.

*876 Justice BLACKMUN, with whom Justice STEVENS and Justice SOUTER join with respect to Parts I-IV, dissenting.

Nothing could be more contrary to contemporary standards of decency, see Ford v. Wainwright, 477 U.S. 399, 406, 106 S.Ct. 2595, 2600, 91 L.Ed.2d 335 (1986), or more shocking to the conscience, see Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), than to execute a person who is actually innocent.

I therefore must disagree with the long and general discussion that precedes the Court's disposition of this case. See ante, at 859-869. That discussion, of course, is dictum because the Court assumes, "for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional." Ante, at 869. Without articulating the standard it is applying, however, the Court then decides that this petitioner has not made a sufficiently persuasive case. Because I believe that in the first instance the District Court should decide whether petitioner is entitled to a hearing and whether he is entitled to relief on the merits of his claim, I would reverse the order of the Court of Appeals and remand this case for further proceedings in the District Court.

The Court's enumeration, ante, at 859, of the constitutional rights of criminal defendants surely is entirely beside the point. These protections sometimes fail. [FN1] We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. Despite the State of Texas' astonishing protestation to the contrary, see Tr. of Oral Arg. 37, I do not see how the answer can be anything but "yes."

FN1. One impressive study has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984. Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan.L.Rev. 21, 36, 173-179 (1987); M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282-356 (1992). The majority cites this study to show that clemency has been exercised frequently in capital cases when showings of actual innocence have been made. See ante, at 24. But the study also shows that requests for clemency by persons the authors believe were innocent have been refused. See, e.g., Bedau & Radelet, 40 Stan.L.Rev., at 91 (discussing James Adams who was executed in Florida on May 10, 1984); M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence, at 5-10 (same).

* * *

I believe it contrary to any standard of decency to execute someone who is actually innocent. Because the Eighth Amendment applies to questions of guilt or innocence, Beck v. Alabama, 447 U.S., at 638, 100 S.Ct., at 2390, and to persons upon whom a valid sentence of death has been imposed, Johnson v. Mississippi, 486 U.S., at 590, 108 S.Ct., at 1988, I also believe that petitioner may raise an Eighth Amendment challenge to his punishment on the ground that he is actually innocent.

Execution of the innocent is equally offensive to the Due Process Clause of the Fourteenth Amendment. The majority's discussion misinterprets petitioner's Fourteenth Amendment claim as raising a procedural rather than a substantive due process challenge. [FN5 omitted]

"The Due Process Clause of the Fifth Amendment provides that 'No person shall ... be deprived of life, liberty, or property, without due process of law....' This Court has held that the Due Process Clause protects individuals against two types of government action. So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' Rochin v. California, 342 U.S. 165, 172 [72 S.Ct. 205, 209, 96 L.Ed. 183] (1952), or interferes with rights 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-326 [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v. Eldridge, 424 U.S. 319, 335 [96 S.Ct. 893, 903, 47 L.Ed.2d 18] (1976). This requirement has traditionally been referred to as 'procedural' due process." United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987). Petitioner cites not Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), or Medina v. California, 505 U.S. ----, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), in support of his due process claim, but Rochin. Brief for Petitioner 32-33. * * *

Whatever procedures a State might adopt to hear actual innocence claims, one thing is certain: The possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments. The majority correctly points out: "A pardon is an act of grace." Ante, at 867. The vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal. Indeed, in Ford v. Wainwright, we explicitly rejected the argument that executive clemency was adequate to vindicate the Eighth Amendment right not to be executed if one is insane. 477 U.S., at 416, 106 S.Ct., at 2605. The possibility of executive clemency "exists in every case in which a defendant challenges his sentence under the Eighth Amendment. Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless." Solem v. Helm, 463 U.S. 277, 303, 103 S.Ct. 3001, 3016, 77 L.Ed.2d 637 (1983). * * *

The question that remains is what showing should be required to obtain relief on the merits of an Eighth or Fourteenth Amendment claim of actual innocence. I agree with the majority that "in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant." Ante, at 868. I also think that "a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional." Ante, at 869. The question is what "a truly persuasive demonstration" entails, a question the majority's disposition of this case leaves open. * * * I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent. This standard is supported by several considerations. First, new evidence of innocence may be discovered long after the defendant's conviction. Given the passage of time, it may be difficult for the State to retry a defendant who obtains relief from his conviction or sentence on an actual-innocence claim. The actual-innocence proceeding thus may constitute the final word on whether the defendant may be punished. In light of this fact, an otherwise constitutionally valid conviction or sentence should not be set aside lightly. Second, conviction after a constitutionally adequate trial strips the defendant *883 of the presumption of innocence. The government bears the burden of proving the defendant's guilt beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether