SECTION SIX

(6) Ways In Which Death Is Different

A. The Role of the Jury

Witherspoon, 391 U.S. 510 (1968)

Walton v. Arizona, 497 U.S. 639 (1990)

Spaziano v. Florida, 468 U.S. 447 (1984)

Harris v. Alabama, 513 U.S. 504 (1995)

Clemmons v. Mississippi, 494 U.S. 738 (1990)

But see Stringer v. Black, 503 U.S. 222 (1992)

B. Jury Selection and Death Qualification

Witherspoon v. Illinois, supra

Wainwright v. Witt, 470 U.S. 1039 (1985)

Morgan v. Illinois, 504 U.S. 719 (1992)

Lockhart v. McCree, 476 U.S. 162 (1986)

Mu'Min v. Virginia, 500 U.S. 415 (1991)

C. The Role of the Prosecution

Berger v. U.S., 295 U.S. 78 (1935)

Caldwell v. Mississippi, 472 U.S. 320 (1985)

Contra Darden v. Wainwright, 477 U.S. 168 (1986)

McCleskey, supra

A. The Role of the Jury

William C. WITHERSPOON, Petitioner,

v.

STATE OF ILLINOIS et al.

391 U.S. 510 (1968)

Mr. Justice STEWART delivered the opinion of the Court.

* * *[T]he State of Illinois armed the prosecution with unlimited challenges for cause in order *513 to exclude those jurors who, in the words of the State's highest court, 'might hesitate to return a verdict inflicting (death).' [FN2 omitted] At the petitioner's trial, the prosecution eliminated nearly half the venire of prospective jurors by challenging, under the authority of this statute, any venireman who expressed qualms about capital punishment. From those who remained were chosen the jurors who ultimately found the petitioner guilty and sentenced him to death. * * *

* * *[T]he jury is given broad discretion to decide whether or not death is 'the proper penalty' in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision. A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Guided by neither rule nor standard, 'free to select or reject as it (sees) fit,' [FN14] a jury that must choose between life imprisonment and capital punishment can do little more--and must do nothing less--than express the conscience of the community on the ultimate question of life or death. [FN15] Yet, **1776 in a *520 nation less than half of whose people believe in the death penalty, [FN16] a jury composed exclusively of such people cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment--of all who would be reluctant to pronounce the extreme penalty-- such a jury can speak only for a distinct and dwindling minority. [FN17]

FN14. People v. Bernette, 30 Ill.2d 359, 370, 197 N.E.2d 436, 443.

FN15. It is suggested in a dissenting opinion today that the State of Oillinois might 'impose a particular penalty, including death, on all persons convicted of certain crimes.' Post, at 1787. But Illinois has attempted no such things. Nor has it defined a category of capital cases in which 'death (is) the preferred penalty.' People v. Bernette, supra, at 369, 197 N.E.2d, at 442. (Emphasis added.)

Instead, it has deliberately 'made * * * the death penalty * * * an optional form of punishment which (the jury remains) free to select or reject as it (sees) fit.' 30 Ill.2d, at 370, 197 N.E.2d, at 443. And one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system--a link without whith the determination of punishment would hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITTAKER). Cf. n. 19, infra.

FN16. It appears that, in 1966, approximately 42% of the American public favored capital punishment for convicted murderers, while 47% opposed it and 11% were undecided. Polls, International Review on Public Opinion, Vol. II, No. 3, at 84 (1967). In 1960, the comparable figures were 51% in favor, 36% opposed, and 13% undecided. Ibid.

FN17. Compare Arthur Koestler's observation:

'The division is not between rich and poor, highbrow and lowbrow, Christians and atheists: it is between those who have charity and those who have not. * * * The test of one's humanity is whether one is able to accept this fact--not as lip service, but with the shuddering recognition of a kinship: here but for the grace of God, drop I.' Koestler, Reflections on Hanging 166--167 (1956).

If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply 'neutral' with respect to penalty. [FN18] But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a *521 jury capable of imposing the death penalty,the State produced a jury uncommonly willing to condemn a man to die. [FN19]

FN18. Even so, a defendant convicted by such a jury in some further case might still attempt to establish that the jury was less than neutral with respect to guilt. If he were to succeed in that effort, the question would then arise whether the State's interest in submitting the penalty issue to a jury capable of imposing capital punishment may be vindicated at the expense of the defendant's interest in a completely fair determination of guilt or innocence--given the possibility of accommodating both interests by means of a bifurcated trial, using one jury to decide guilt and another to fix punishment. That problem is not presented here, however, and we intimate no view as to its proper resolution.

FN19. The amicus curiae brief filed in this case by the American Friends Service Committee et al. notes that the number of persons under sentence of death in this country climbed from 300 at the end of 1963 to 406 at the end of 1966, while the number of persons actually executed fell from 21 in 1963 to 15 in 1964, seven in 1965, and one in 1966. The brief suggests that this phenomenon might be explained in part by society's 'deep reluctance actually to inflict the death sentence' and by a widening 'divergence of belief between the juries we select and society generally.'

It is, of course, settled that a State may not entrust the determination of whether a man is innocent or guilty to a tribunal 'organized to convict.' Fay v. People of State of New York, 332 U.S. 261, 294, 67 S.Ct. 1613, 1630, 91 L.Ed. 2043. See Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. It requires but a short step from that principle to hold, as we do today, that a State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict or death. [FN20] Specifically, *522 we **1777 hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. [FN21] No defendant can constitutionally be *523 put to death at the hands of a tribunal so selected. [FN22 omitted]

FN20. It should be understood that much more is involved here than a simple determination of sentence. For the State of Illinois empowered the jury in this case to answer 'yes' or 'no' to the question whether this defendant was fit to live. To be sure, such a determination is different in kind from a finding that the defendant committed a specified criminal offense. Insofar as a determination that a man should be put to death might require 'that there be taken into account the circumstances of the offense together with the character and propensities of the offender,' Commonwealth of Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43, for example, it may be appropriate that certain rules of evidence with respect to penalty should differ from the corresponding evidentiary rules with respect to guilt. See, e.g., Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. But this does not mean that basic requirements of procedural fairness can be ignored simply because the determination involved in this case differs in some respects from the traditional assessment of whether the defendant engaged in a proscribed course of conduct. See, e.g., Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326. Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336.

One of those requirements, at least, is that the decision whether a man deserves to live or die must be made on scales that are not deliberately tipped toward death. It was in part upon such a premise that the Fourth Circuit recently invalidated a North Carolina murder conviction, noting that a juror who felt it his 'duty' to sentence every convicted murderer to death was allowed to serve in that case, 'while those who admitted to scruples against capital punishment were dismissed without further interrogation.' This 'double standard,' the court concluded, 'inevitably resulted in (a) denial of due process.' Crawford v. Bounds, 395 F.2d 297, 303--304 (alternative holding). Cf. Stroud v. United States, 251 U.S. 15, 20--21, 40 S.Ct. 50, 52, 64 L.Ed. 103, on petition for rehearing, id., at 380, 381, 40 S.Ct. 176, 177, 64 L.Ed. 317 (dictum).

FN21. Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion. See nn. 5 and 9, supra.

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as oppose to the sentence, in this or any other case.

decision against the fully retroactive application of the holding we announce today.

**1778 Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution. The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.

Reversed.

Walton v. Arizona,

497 U.S. 639 (1990)

Justice WHITE announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III and IV, in which THE CHIEF JUSTICE, Justice O'CONNOR, and Justice KENNEDY joined.

At issue in this case is the validity of the death sentence imposed by an Arizona trial court after a jury found petitioner Jeffrey Walton guilty of committing first-degree murder.

The Arizona statutes provide that a person commits first-degree murder if "[i]ntending or knowing that his conduct will cause death, such person causes the death of another with premeditation" or if in the course of committing certain specified offenses and without any mental state other than what is required for the commission of such offenses, he causes the death of any person. Ariz.Rev.Stat.Ann. *643 § 13-1105 (1989). After a person has been found guilty of first-degree murder, the sentence for such crime is determined in accordance with the provisions of § 13-703(B). It is there directed that a "separate sentencing hearing ... shall be conducted before the court alone" to determine whether the sentence shall be death or life imprisonment. In the course of such hearing, the judge is instructed to determine the existence or nonexistence of any of the aggravating or mitigating circumstances defined in subsections (F) and (G) of § 13-703. Subsection (F) defines 10 aggravating circumstances that may be considered. One of them is whether the offense was committed with the expectation of receiving anything of pecuniary value. § 13-703(F)(5). Another is whether the defendant committed the offense in an especially heinous, cruel, or depraved manner. § 13-703(F)(6). Subsection (G) defines mitigating circumstances as any factors "which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character, propensities or record and **3052 any of the circumstances of the offense, including but not limited to" five specified factors. [FN1 omitted] The burden of establishing the existence of any of the aggravating circumstances is on the prosecution, while the burden of establishing mitigating circumstances is *644 on the defendant. § 13-703(C). The court is directed to return a special verdict setting forth its findings as to aggravating and mitigating circumstances and then "shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in subsection (F) of this section and that there are no mitigating circumstances sufficiently substantial to call for leniency." § 13-703(E).

**3054 Because the United States Court of Appeals for the Ninth Circuit has held the Arizona death penalty statute to be unconstitutional for the reasons submitted by Walton in this case, see Adamson v. Ricketts, 865 F.2d 1011 (1988) (en banc), we granted certiorari, 493 U.S. 808, 110 S.Ct. 49, 107 L.Ed.2d 18 (1989), to resolve the conflict and to settle issues that are of importance generally in the administration of the death penalty. We now affirm the judgment of the Arizona Supreme Court.

II

[1] Walton's first argument is that every finding of fact underlying the sentencing decision must be made by a jury, not by a judge, and that the Arizona scheme would be constitutional only if a jury decides what aggravating and mitigating circumstances are present in a given case and the trial judge then imposes sentence based on those findings. Contrary to Walton's assertion, however: "Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court." Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725 (1990).

We repeatedly have rejected constitutional challenges to Florida's death sentencing scheme, which provides for sentencing by the judge, not the jury. Hildwin v. Florida, 490 *648 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (per curiam); Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In Hildwin, for example, we stated that "[t]his case presents us once again with the question whether the Sixth Amendment requires a jury to specify the aggravating factors that permit the imposition of capital punishment in Florida," 490 U.S., at 638, 109 S.Ct., at 2056, and we ultimately concluded that "the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury." Id., at 640-641, 109 S.Ct., at 2057.

The distinctions Walton attempts to draw between the Florida and Arizona statutory schemes are not persuasive. It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury's findings of fact with respect to sentencing issues than does a trial judge in Arizona.

Walton also suggests that in Florida aggravating factors are only sentencing "considerations" while in Arizona they are "elements of the offense." But as we observed in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), an Arizona capital punishment case: "Aggravating circumstances are not separate penalties or offenses, but are 'standards to guide the making of [the] choice' between the alternative verdicts of death and life imprisonment. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself 'convict' a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not 'acquit' a defendant (i.e., preclude the death penalty)." Id., at 156, 106 S.Ct., at 1755 (citation omitted).

Joseph Robert SPAZIANO, Petitioner

v.

FLORIDA,

468 U.S. 447 (1984)

Justice BLACKMUN delivered the opinion of the Court.

This case presents questions regarding the administration of Florida's capital sentencing statute. In particular, petitioner challenges the trial court's . . . imposition of a sentence of death when the jury had recommended life. We conclude that . . . there is no constitutional requirement that the jury's recommendation of life be final. We also reject petitioner's argument that, as applied in this case, the Florida standards for overriding a jury's sentencing recommendation are so broad and vague as to violate the constitutional requirement of reliability in capital sentencing.

I

Petitioner Joseph Robert Spaziano was indicted and tried for first-degree murder. The indictment was brought two years and one month after the alleged offense. Under the Florida statute of limitations in effect at the time of the alleged offense, August 1973, the limitations period for noncapital offenses was two years. Fla.Stat.**3157 § 932.465(2) (1973). [FN1omitted] There was no statute of limitations for capital offenses, such as first-degree murder. § 932.465(1).

The primary evidence against petitioner was given by a witness who testified that petitioner had taken him to a garbage dump in Seminole County, Fla., where petitioner had pointed out the remains of two women he claimed to have tortured and murdered. Petitioner challenged the sufficiency of the witness' recall and perception because of a substantial drug habit. The witness testified that he had not taken drugs on the day of the visit to the garbage dump, and he had been able to direct the police to the site. See Spaziano v. State, 393 So.2d 1119, 1120 (Fla.1981).

At the close of the evidence, the trial court informed petitioner that it would instruct the jury on the lesser included, noncapital offenses of attempted first-degree murder, second-degree murder, third-degree murder, and manslaughter, if petitioner would waive the statute of limitations as to those offenses. Tr. 751-755. Petitioner refused to waive the statute. The court accordingly instructed the jury solely on capital murder.

The jury deliberated somewhat more than six hours. It reported itself deadlocked, and the trial court gave an additional instruction, encouraging the jurors to resolve their differences *451 and come to a common conclusion. [FN2 omitted] Shortly thereafter, the jury returned a verdict of guilty of first-degree murder.

The trial court then convened a sentencing hearing before the same jury. Arguments were heard from both sides and evidence offered on aggravating and mitigating circumstances. A majority of the jury recommended life imprisonment. [FN3 omitted] In Florida, the jury's sentencing recommendation in a capital case is only advisory. The trial court is to conduct its own weighing of the aggravating and mitigating circumstances and, "[n]otwithstanding the recommendation of a majority of the jury," is to enter a sentence of life imprisonment or death; in the latter case, specified written findings are required. Fla.Stat. § 921.141(3) (1983). [FN4] The trial court *452 concluded that, "notwithstanding the recommendation of the jury, ... sufficient aggravating circumstances existed to justify and authorize a death sentence[;] ... the mitigating circumstances were insufficient to outweigh such **3158 aggravating circumstances and ... a sentence of death should be imposed in this case." App. 14. The two aggravating circumstances found by the court were that the homicide was especially heinous and atrocious and that the defendant had been convicted previously of felonies involving the use or threat of violence to the person. The trial court found no mitigating circumstance "except, perhaps, the age [28] of the defendant." Id., at 14-15.

FN4. The Florida capital sentencing statute in effect at the time of petitioner's trial, January 1976, is not identical to that currently in effect. In 1976, the statute directed the sentencer to determine whether statutory aggravating circumstances were outweighed by statutory mitigating circumstances. See 1972 Fla.Laws, ch. 72-724. The current statute directs the sentencer to determine whether statutory aggravating circumstances are outweighed by any mitigating circumstances. §§ 921.141(2)(b), (3)(b) (1983), as amended by 1979 Fla.Laws, ch. 79-353. There is no suggestion in this case that either the jury or the trial judge was precluded from considering any nonstatutory mitigating evidence. Cf. Barclay v. Florida, 463 U.S. 939, 947, n. 2, 103 S.Ct. 3418, 3423, n. 2, 77 L.Ed.2d 1134 (1983) (STEVENS, J., concurring in judgment).

On appeal, the Supreme Court of Florida affirmed the conviction but reversed the death sentence. Spaziano v. State, 393 So.2d 1119 (1981). In deciding whether to impose the death sentence, the trial judge had considered a confidential portion of the presentence investigation report that contained information about petitioner's previous felony convictions as well as other charges for which petitioner had not been convicted. Neither party had received a copy of that confidential portion. Relying on Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the court concluded that it was error for the trial judge to rely on the confidential information in the presentence investigation report without first disclosing the information to petitioner and giving him an opportunity to present evidence in response. * * *

On remand, the trial court ordered a new presentence investigation report and scheduled a hearing to allow petitioner to present evidence in response to the report. At the hearing, petitioner offered no evidence. The State presented evidence that petitioner had been convicted previously of forcible carnal knowledge and aggravated battery. Although the State had attempted to introduce evidence of the prior conviction in petitioner's initial sentencing hearing before the jury, the trial judge had excluded the evidence on the ground that the conviction was then on appeal. By the time of the Gardner rehearing, the conviction was final and the trial judge agreed that it was a proper consideration. Accordingly, he relied on that conviction in finding the aggravating circumstance that the defendant had been convicted previously of a felony involving the use of violence to the person. The judge also reaffirmed his conclusion that the crime was especially heinous, atrocious, and cruel. He sentenced petitioner to death. App. 25. * * *

The Supreme Court . . . Found no constitutional infirmity in the procedure whereby the judge is allowed to override the jury's recommendation of life. The court found no double jeopardy problem with the procedure, because the jury's function is only advisory. The court added its understanding that allowing the jury's recommendation to be binding would *454 violate the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

**3159 Finally, the court found that in this case the evidence suggesting that the death sentence be imposed over the jury's recommendation of life "meets the clear and convincing test to allow override of the jury's recommendation in accordance with ... Tedder v. State, 322 So.2d 908 (Fla.1975)." 433 So.2d, at 511. One judge dissented, finding "no compelling reason" to override the jury's recommendation of life. Id., at 512.

We granted certiorari, 464 U.S. 1038, 104 S.Ct. 697, 79 L.Ed.2d 164 (1984), and we now affirm.

** ** **

III

Petitione[r] . . . challenge[s] . . . the trial judge's imposition of a sentence of death after the jury had recommended life imprisonment. Petitioner urges that allowing **3161 a judge to override a jury's recommendation of life violates the Eighth Amendment's proscription against "cruel and unusual punishments." Because the jury's verdict of life should be final, petitioner argues, the practice also violates the Fifth *458 Amendment's Double Jeopardy Clause made applicable to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 793-796, 89 S.Ct. 2056, 2061-2063, 23 L.Ed.2d 707 (1969). Finally, drawing on this Court's recognition of the value of the jury's role, particularly in a capital proceeding, petitioner urges that the practice violates the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.

Petitioner points out that we need not decide whether jury sentencing in all capital cases is required; this case presents only the question whether, given a jury verdict of life, the judge may override that verdict and impose death. As counsel acknowledged at oral argument, however, his fundamental premise is that the capital sentencing decision is one that, in all cases, should be made by a jury. Tr. of Oral Arg. 16-17. We therefore address that fundamental premise. Before doing so, however, it is useful to clarify what is not at issue here.

Petitioner does not urge that capital sentencing is so much like a trial on guilt or innocence that it is controlled by the Court's decision in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 91 (1968). In Duncan, the Court found that the right to jury trial guaranteed by the Sixth Amendment is so " 'basic in our system of jurisprudence,' " id., at 149, 88 S.Ct., at 1447, quoting In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948), that it is also protected against state action by the Fourteenth Amendment.

This Court, of course, has recognized that a capital proceeding in many respects resembles a trial on the issue of guilt or innocence. See Bullington v. Missouri, 451 U.S. 430, 444, 101 S.Ct. 1852, 1861, 68 L.Ed.2d 278 (1981). Because the " 'embarrassment, expense and ordeal' ... faced by a defendant at the penalty phase of a ... capital murder trial ... are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial," the Court has concluded that the Double Jeopardy Clause bars the State from making repeated efforts to persuade a sentencer to impose the death penalty. Id., at 445, 101 S.Ct., at 1861, quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Arizona v. *459 Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). The fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause, however, does not mean that it is like a trial in respects significant to the Sixth Amendment's guarantee of a jury trial. The Court's concern in Bullington was with the risk that the State, with all its resources, would wear a defendant down, thereby leading to an erroneously imposed death penalty. 451 U.S., at 445, 101 S.Ct., at 1861. There is no similar danger involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer's decision for life is final. Arizona v. Rumsey, supra. More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding--a determination of the appropriate punishment to be imposed on an individual. See Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion), citing Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937), and Williams v. New York, 337 U.S. 241, 247-249, 69 S.Ct. 1079, 1083-1084, 93 L.Ed. 1337 (1949). The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.

**3162 [2] Nor does petitioner urge that this Court's recognition of the "qualitative difference" of the death penalty requires the benefit of a jury. In Furman v. Georgia, 408 U.S., at 238, 92 S.Ct., at 2726, the Court struck down the then-existing capital sentencing statutes of Georgia and Texas, in large part because of its conclusion that, under those statutes, the penalty was applied arbitrarily and discriminatorily. See also Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). Since then, the Court has emphasized its pursuit of the "twin objectives" of "measured, consistent application and fairness to the accused." Eddings *460 v. Oklahoma, 455 U.S. 104, 110- 111, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). [FN7] If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Zant v. Stephens, 462 U.S. 862, 873-880, 103 S.Ct. 2733, 2741-2744, 77 L.Ed.2d 235 (1983); Furman v. Georgia, 408 U.S., at 294, 92 S.Ct., at 2754 (BRENNAN, J., concurring). It must also allow the sentencer to consider the individual circumstances of the defendant, his background, and his crime. Lockett v. Ohio, supra.

FN7. Because the death sentence is unique in its severity and in its irrevocability, Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.); Furman v. Georgia, 408 U.S. 238, 286-291, 92 S.Ct. 2726, 2750- 2753, 33 L.Ed.2d 346 (1972) (BRENNAN, J., concurring), the Court has carefully scrutinized the States' capital sentencing schemes to minimize the risk that the penalty will be imposed in error or in an arbitrary and capricious manner. There must be a valid penological reason for choosing from among the many criminal defendants the few who are sentenced to death. Zant v. Stephens, 462 U.S. 862, 876-877, 103 S.Ct. 2733, 2742- 2743, 77 L.Ed.2d 235 (1983); Enmund v. Florida, 458 U.S. 782, 788-789, 102 S.Ct. 3368, 3372, 73 L.Ed.2d 1140 (1982); Godfrey v. Georgia, 446 U.S. 420, 428-429, 100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398 (1980); Gardner v. Florida, 430 U.S. 349, 360-361, 97 S.Ct. 1197, 1205-1206, 51 L.Ed.2d 393 (1977) (plurality opinion); Proffitt v. Florida, 428 U.S. 242, 254-260, 96 S.Ct. 2960, 2967-2970, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.); Gregg v. Georgia, 428 U.S., at 196-207, 96 S.Ct., at 2936-2941; Furman v. Georgia, supra. At the same time, the Court has insisted that the sentencing decision be based on the facts and circumstances of the individual and his crime. Zant v. Stephens, 462 U.S., at 879, 103 S.Ct., at 2744; Eddings v. Oklahoma, 455 U.S., at 110-112, 102 S.Ct., at 874-875; Lockett v. Ohio, 438 U.S. 586, 601-605, 98 S.Ct. 2954, 2963-2965, 57 L.Ed.2d 973 (1978) (plurality opinion); Gregg v. Georgia, 428 U.S., at 197, 96 S.Ct., at 2396; Woodson v. North Carolina, 428 U.S. 280, 303-304, 96 S.Ct. 2978, 2990- 2991, 49 L.Ed.2d 944 (1976) (plurality opinion).

[3] Nothing in those twin objectives suggests that the sentence must or should be imposed by a jury. While it is to be hoped that current procedures have greatly reduced the risk that jury sentencing will result in arbitrary or discriminatory application of the death penalty, see Gregg v. Georgia, 428 U.S., at 190-195, 96 S.Ct., at 2933-2935 (joint opinion), there certainly is nothing in the safeguards necessitated by the Court's recognition of the qualitative difference of the death penalty that requires that the sentence be imposed by a jury.

*461 Petitioner's primary argument is that the laws and practice in most of the States indicate a nearly unanimous recognition that juries, not judges, are better equipped to make reliable capital-sentencing decisions and that a jury's decision for life should be inviolate. The reason for that recognition, petitioner urges, is that the nature of the decision whether a defendant should live or die sets capital sentencing apart and requires that a jury have the ultimate word. Noncapital sentences are imposed for various reasons, including rehabilitation, incapacitation, and deterrence. In contrast, the primary justification for the death penalty is retribution. As has been recognized, "the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes **3163 are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Id., at 184, 96 S.Ct., at 2930. The imposition of the death penalty, in other words, is an expression of community outrage. Since the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community's response must be death. If the answer is no, that decision should be final.

Petitioner's argument obviously has some appeal. But it has two fundamental flaws. First, the distinctions between capital and noncapital sentences are not so clear as petitioner suggests. Petitioner acknowledges, for example, that deterrence may be a justification for capital as well as for noncapital sentences. He suggests only that deterrence is not a proper consideration for particular sentencers who are deciding whether the penalty should be imposed in a given case. The same is true, however, in noncapital cases. Whatever the sentence, its deterrent function is primarily a consideration for the legislature. Gregg v. Georgia, 428 U.S., at 186, 96 S.Ct., at 2931 (joint opinion). Similar points can be made about the other purposes of capital and noncapital punishment. Although incapacitation has never been embraced as a sufficient justification for the death penalty, it is a legitimate consideration *462 in a capital sentencing proceeding. Id., at 183, n. 28, 96 S.Ct., at 2930, n. 28; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (joint opinion of STEWART, POWELL, and STEVENS, JJ.). While retribution clearly plays a more prominent role in a capital case, retribution is an element of all punishments society imposes, and there is no suggestion as to any of these that the sentence may not be imposed by a judge.

Second, even accepting petitioner's premise that the retributive purpose behind the death penalty is the element that sets the penalty apart, it does not follow that the sentence must be imposed by a jury. Imposing the sentence in individual cases is not the sole or even the primary vehicle through which the community's voice can be expressed. This Court's decisions indicate that the discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. See, e.g., Gregg v. Georgia, supra; Woodson v. North Carolina, 428 U.S., at 302-303, 96 S.Ct., at 2990-2991; Zant v. Stephens, 462 U.S., at 879-880, 103 S.Ct., at 2744. The sentencer is responsible for weighing the specific aggravating and mitigating circumstances the legislature has determined are necessary touchstones in determining whether death is the appropriate penalty. Thus, even if it is a jury that imposes the sentence, the "community's voice" is not given free rein. The community's voice is heard at least as clearly in the legislature when the death penalty is authorized and the particular circumstances in which death is appropriate are defined. See Gregg v. Georgia, 428 U.S., at 183-184, 96 S.Ct., at 2929-2930 (joint opinion); Furman v. Georgia, 408 U.S., at 394-395, 92 S.Ct., at 2806-2807 (BURGER, C.J., dissenting); id., at 452-454, 92 S.Ct., at 2835- 2836 (POWELL, J., dissenting).

[4] We do not denigrate the significance of the jury's role as a link between the community and the penal system and as a bulwark between the accused and the State. See Gregg v. Georgia, 428 U.S., at 181, 96 S.Ct., at 2928 (joint opinion); Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446 (1970); Duncan v. Louisiana, 391 U.S., at 156, 88 S.Ct., at 1451; Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15, 88 S.Ct. 1770, 1775, n. 15, 20 L.Ed.2d 776 (1968). The point is simply that the purpose of the *463 death penalty is not frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge. [FN8]

FN8. Petitioner's efforts to distinguish the considerations relevant to imposition of a capital or a noncapital sentence bear more on the jury's ability to function as the sentencer in a capital case than on the constitutionality of the judge's doing so. We have no particular quarrel with the proposition that juries, perhaps, are more capable of making the life-or-death decision in a capital case than of choosing among the various sentencing options available in a noncapital case. See ABA Standards for Criminal Justice 18-1.1, Commentary, pp. 18.21-18.22 (2nd ed. 1980) (reserving capital sentencing from general disapproval of jury involvement in sentencing). Sentencing by the trial judge certainly is not required by Furman v. Georgia, supra. See Gregg v. Georgia, 428 U.S., at 188-195, 96 S.Ct., at 2932-2935 (joint opinion). What we do not accept is that, because juries may sentence, they constitutionally must do so.

**3164 [5] We also acknowledge the presence of the majority view that capital sentencing, unlike other sentencing, should be performed by a jury. As petitioner points out, 30 out of 37 jurisdictions with a capital sentencing statute give the life-or-death decision to the jury, with only 3 of the remaining 7 allowing a judge to override a jury's recommendation of life. [FN9] *464 The fact that a majority of jurisdictions have adopted a different practice, however, does not establish that contemporary standards of decency are offended by the jury override. The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws. "Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment" is violated by a challenged practice. See Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982 (1977) (plurality opinion). In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.

FN9. Twenty-nine jurisdictions allow a death sentence only if the jury recommends death, unless the defendant has requested trial or sentencing by the court. See Ark.Stat.Ann. § 41-1301 (1977); Cal.Penal Code Ann. § 190.3 (West Supp.1984); Colo.Rev.Stat. § 16-11-103 (1978 and Supp.1983); Conn.Gen.Stat. § 53a-46a (1983); Del.Code Ann., Tit. 11, § 11-4209 (1979 and Supp.1982); Ga.Code Ann. §§ 17-10-30 to 17-10-32 (1982); Ill.Rev.Stat., ch. 38, ¶ 9-1 (Supp.1984); Ky.Rev.Stat. § 532.025(1)(b) (Supp.1982); La.Code Crim.Proc.Ann., Art. 905.8 (West Supp.1984); Md.Ann.Code, Art. 27, § 413 (Supp.1983); Mass.Gen.Laws Ann., ch. 279, §§ 68, 70 (West Supp.1984); Miss.Code Ann. § 99-19- 101 (Supp.1983); Mo.Rev.Stat. § 565.006 (Supp.1982); N.H.Rev.Stat.Ann. § 630.5 (Supp.1983); N.J.Stat.Ann. § 2C:11- 3(c) (West 1982); N.M.Stat.Ann. § 31-20A-3 (1981); N.C.Gen.Stat. § 15A-2000 (1983); Ohio Rev.Code Ann. § 2929.03 (1982); Okla.Stat., Tit. 21, § 701.11 (1981); 42 Pa.Cons.Stat. § 9711(f) (1982); S.C.Code § 16-3-20 (Supp.1983); S.D.Comp.Laws Ann. § 23A-27A-4 (1979); Tenn.Code Ann. § 39-2-203 (1982); Tex.Code Crim.Proc.Ann., Art. 37.071 (Vernon 1981 and Supp.1984); Utah Code Ann. § 76-3-207 (Supp.1983); Va.Code § 19.2-264.4 (1983); Wash.Rev.Code § 10.95.030 (1983); Wyo.Stat. § 6-2-102 (1983); 49 U.S.C.App. § 1473(c). In Nevada, the jury is given responsibility for imposing the sentence in a capital case, but if the jury cannot agree, a panel of three judges may impose the sentence. Nev.Rev.Stat. §§ 175.554, 175.556 (1981). In Arizona, Idaho, Montana, and Nebraska, the court alone imposes the sentence. Ariz.Rev.Stat.Ann. § 13-703 (Supp.1983-1984); Idaho Code § 19-2515 (1979); Mont.Code Ann. § 46-18-301 (1983); Neb.Rev.Stat. § 29-2520 (1979). Besides Florida, the only States that allow a judge to override a jury's recommendation of life are Alabama and Indiana. Ala.Code § 13A-5-46 (1982); Ind.Code § 35-50-2-9 (Supp.1984).

As the Court several times has made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme. See Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Zant v. Stephens, 462 U.S., at 884, 103 S.Ct., at 2747; Gregg v. Georgia, 428 U.S., at 195, 96 S.Ct., at 2935 (joint opinion). The Court twice has concluded that Florida has struck a reasonable balance between sensitivity to the individual and his circumstances and ensuring that the penalty is not imposed arbitrarily or discriminatorily. Barclay v. Florida, 463 *465 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983); Proffitt v. Florida, 428 U.S. 242, **3165 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). We are not persuaded that placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision.

IV

[6] Our determination that there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed also disposes of petitioner's double jeopardy challenge to the jury-override procedure. If a judge may be vested with sole responsibility for imposing the penalty, then there is nothing constitutionally wrong with the judge's exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury.

V

[7] Petitioner's final challenge is to the application of the standard the Florida Supreme Court has announced for allowing a trial court to override a jury's recommendation of life. See Tedder v. State, 322 So.2d 908, 910 (1975). This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U.S. 282, 294-295, 97 S.Ct. 2290, 2298-2299, 53 L.Ed.2d 344 (1977). See also Proffitt, 428 U.S., at 249, 96 S.Ct., at 2965 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury's role. See Richardson v. State, 437 So.2d 1091, 1095 (Fla.1983); Miller v. State, 332 So.2d 65 (Fla.1976). Our responsibility, however, is not to second-guess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory.

*466 We see nothing that suggests that the application of the jury-override procedure has resulted in arbitrary or discriminatory application of the death penalty, either in general or in this particular case. Regardless of the jury's recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances. If the judge imposes a sentence of death, he must set forth in writing the findings on which the sentence is based. Fla.Stat. § 921.141(3) (1983). The Florida Supreme Court must review every capital sentence to ensure that the penalty has not been imposed arbitrarily or capriciously. § 921.141(4). As Justice STEVENS noted in Barclay, there is no evidence that the Florida Supreme Court has failed in its responsibility to perform meaningful appellate review of each death sentence, either in cases in which both the jury and the trial court have concluded that death is the appropriate penalty or in cases when the jury has recommended life and the trial court has overridden the jury's recommendation and sentenced the defendant to death. See Barclay v. Florida, 463 U.S., at 971-972, and n. 23, 103 S.Ct., at 3436, and n. 23 (opinion concurring in judgment).

In this case, the trial judge based his decision on the presence of two statutory aggravating circumstances. The first, that the defendant had previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person, § 921.141(5), was based on evidence not available to the advisory jury but, under Florida law, was properly considered by the trial judge. See White v. State, 403 So.2d 331, 339-340 (1981). Petitioner's prior conviction was for rape and aggravated battery. The trial judge also found that the murder in this case was heinous, atrocious, and cruel. The witness who accompanied petitioner to the dump site where the victim's body was found testified that the body was covered with blood and that there were cuts on the **3166 breasts, stomach, and chest. The witness also testified that petitioner had recounted his torture of the victim while *467 she was still living. The trial judge found no mitigating circumstances.

The Florida Supreme Court reviewed petitioner's sentence and concluded that the death penalty was properly imposed under state law. It is not our function to decide whether we agree with the majority of the advisory jury or with the trial judge and the Florida Supreme Court. See Barclay v. Florida, 463 U.S., at 968, 103 S.Ct., at 3434 (STEVENS, J., concurring in judgment). Whether or not "reasonable people" could differ over the result here, we see nothing irrational or arbitrary about the imposition of the death penalty in this case.

The judgment of the Supreme Court of Florida is affirmed.

It is so ordered.

Justice WHITE, with whom Justice REHNQUIST joins, concurring in part and concurring in the judgment.

** ** **

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, concurring in part and dissenting in part.

In this case, as in 82 others arising under the capital punishment statute enacted by Florida in 1972, the trial judge sentenced the defendant to death after a jury had recommended a sentence of life imprisonment. The question presented is whether the Constitution of the United States permits petitioner's execution when the prosecution has been unable to persuade a jury of his peers that the death penalty is the appropriate punishment for his crime.

The Fourteenth Amendment provides that no State may "deprive any person of life, liberty, or property without due *468 process of law." The concept of due process permits no such deprivation--whether of life, liberty, or property--to occur if it is grossly excessive in the particular case--if it is "cruel and unusual punishment" proscribed by the Eighth Amendment. [FN1 omitted] The differences between the three categories, however, are not mere matters of degree. For although we look to state law as the source of the right to property, "it is not the source of liberty, and surely not the exclusive source." Meachum v. Fano, 427 U.S. 215, 230, 96 S.Ct. 2532, 2541, 49 L.Ed.2d 451 (1976) (STEVENS, J., dissenting). See Board of Regents v. Roth, 408 U.S. 564, 572, 577, 92 S.Ct. 2701, 2706, 2709, 33 L.Ed.2d 548 (1972). Because a deprivation of liberty is qualitatively different from a deprivation of property, heightened procedural safeguards are a hallmark of Anglo-American criminal jurisprudence. But that jurisprudence has also unequivocally established that a State's deprivation of a person's life is also qualitatively different from any lesser intrusion on liberty.

In the 12 years since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), every Member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it **3167 is a justified response to a given offense. [FN2 omitted] Because it is the one punishment *469 that cannot be prescribed by a rule of law as judges normally understand such rules, but rather is ultimately understood only as an expression of the community's outrage--its sense that an individual has lost his moral entitlement to live [FN3]--I am convinced that the danger of an excessive response can only be avoided if the decision to impose the death penalty is made by a jury rather than by a single governmental official. This conviction is consistent with the judgment *470 of history and the current consensus of opinion that juries are better equipped than judges to make capital sentencing decisions. The basic explanation for that consensus lies in the fact that the question whether a sentence of death is excessive in the particular circumstances of any case is one that must be answered by the decisionmaker that is best able to "express the conscience of the community on the ultimate question of life or death." Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968) (footnote omitted).

FN3. "Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose 'the right to have rights.' A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a 'person' for purposes of due process of law and the equal protection of the laws. A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted, yet the finality of death precludes relief. An executed person has indeed 'lost the right to have rights.' As one 19th century proponent of punishing criminals by death declared, 'When a man is hung, there is an end of our relations with him. His execution is a way of saying, "You are not fit for this world, take your chance elsewhere." ' " Furman, 408 U.S., at 290, 92 S.Ct., at 2752 (BRENNAN, J., concurring) (citation omitted) (quoting Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864)). See also 408 U.S., at 306, 92 S.Ct., at 2760 (Stewart, J., 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").

** ** **

Even apart from its history, there is reason to question whether the Florida statute can be viewed as representing a judgment that judicial sentencing is consistent with contemporary standards. The administration of the statute actually reflects a deeply rooted impulse to legitimate the process through involvement of the jury. That is made evident not only through the use of an advisory jury, [FN15] but also by the fact *476 that the statute has been construed to forbid a trial judge to reject the jury's decision unless he finds that the evidence favoring a sentence of death is so clear and convincing that virtually no reasonable person **3171 could impose a lesser sentence. [FN16 omitted] Thus, the Florida experience actually lends support to the conclusion that American jurisprudence has considered the use of the jury to be important to the fairness and legitimacy of capital punishment.

FN15. In all capital cases, even those in which the defendant pleaded guilty or waived a jury on the issue of guilt or innocence, the Florida statute requires the enpanelment of an advisory jury and that it render a sentence unless the advisory jury is separately waived by the defendant. See Fla.Stat. §§ 921.141(1) and (2) (1983).

IV

The Court correctly notes that sentencing has traditionally been a question with which the jury is not concerned. Ante, at 3162. Deciding upon the appropriate sentence for a person who has been convicted of a crime is the routine work of judges. By reason of this experience, as well as their training, judges presumably perform this function well. But, precisely because the death penalty is unique, the normal presumption that a judge is the appropriate sentencing authority does not apply in the capital context. The decision whether or not an individual must die is not one that has traditionally been entrusted to judges. This tradition, which has marked a sharp distinction between the usual evaluations of judicial competence with respect to capital and noncapital sentencing, not only eliminates the general presumption that judicial sentencing is appropriate in the capital context, but also in itself provides reason to question whether assigning this role to governmental officials and not juries is consistent with the community's moral sense. [FN17]

FN17. In Proffitt, the joint opinion stated: "[I]t would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and is therefore better able to impose sentences similar to those imposed in analogous cases." Id., at 252, 96 S.Ct., at 2966 (opinion of Stewart, POWELL, and STEVENS, JJ.). Of course, since Proffitt was not challenging judicial sentencing in that case, see n. 4, supra, this statement was directed only at the risk of arbitrariness that had been identified by the plurality in Furman, and was not concerned with the claim made here that jury sentencing is more consistent with community values. Moreover, experience under the Florida statute indicates that this prediction concerning judicial sentencing has not been borne out. Not only has the Florida Supreme Court proved much more likely to reverse in a jury override case than in any other type of capital case, see Radelet & Vandiver, The Florida Supreme Court and Death Penalty Appeals, 74 J.Crim.L. & Criminology 913 (1983), but also the clear majority of override cases ultimately result in sentences of life imprisonment rather than death. See App. B. to Brief for Petitioner. Thus, it is doubtful that judicial sentencing has worked to reduce the level of capital sentencing disparity; if anything, the evidence in override cases suggests that the jury reaches the appropriate result more often than does the judge.

*477 While tradition and contemporary practice in most American jurisdictions indicate that capital sentencing by judges offends a moral sense that this unique kind of judgment must be made by a more authentic voice of the community, nevertheless the Court is correct to insist that these factors cannot be conclusive, or the Eighth Amendment would prevent any innovation or variation in the administration of the criminal law. Ante, at 3164. Therefore, a more focused inquiry into the Eighth Amendment implications of the decision to put an accused to death, and the jury's relationship to those implications, is essential.

** ** **

VI

The authors of our federal and state constitutional guarantees uniformly recognized the special function of the jury in any exercise of plenary power over the life and liberty of the citizen. In our jurisprudence, the jury has always played an essential role in legitimating the system of criminal justice.

"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice **3174 administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions *482 strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 1450-1451, 20 L.Ed.2d 491 (1968) (footnote omitted). [FN26 omitted]

Thus, the jury serves to ensure that the criminal process is not subject to the unchecked assertion of arbitrary governmental power; community participation is "critical to public confidence in the fairness of the criminal justice system." Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). [FN27 omitted]

The same consideration that supports a constitutional entitlement to a trial by a jury rather than a judge at the guilt or innocence stage--the right to have an authentic representative of the community apply its lay perspective to the determination that must precede *483 a deprivation of liberty--applies with special force to the determination that must precede a deprivation of life. In many respects capital sentencing resembles a trial on the question of guilt, involving as it does a prescribed burden of proof of given elements through the adversarial process. [FN28 omitted] But more important than its procedural aspects, the life-or-death decision in capital cases depends upon its link to community values for its moral and constitutional legitimacy. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), after observing that "a jury that must choose between life imprisonment and capital punishment can do little more--and must do nothing less--than express the conscience of the community on the ultimate question of life or death," id., at 519, 88 S.Ct., at 1775 (footnote omitted), the Court added:

[O]ne of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system--a line without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' " Id., at 519, n. 15, 88 S.Ct., at 1775, n. 15 (quoting Trop v. Dulles, **3175 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)). [FN29 omitted]

That the jury is central to the link between capital punishment and the standards of decency contained in the Eighth Amendment is amply demonstrated by history. Under the common law capital punishment was mandatory for all felonies, and even through the last century it was mandatory for large categories of offenses. "[O]ne of the most significant developments in our society's treatment of capital punishment has been the rejection of the common- law practice of inexorably imposing a death sentence upon every person *484 convicted of a specified offense." Woodson, 428 U.S., at 301, 96 S.Ct., at 2989 (plurality opinion). The jury played a critical role in this process. Juries refused to convict in cases in which they felt the death penalty to be morally unjustified. This forced the adoption of more enlightened capital punishment statutes that were more in accord with the community's moral sensibilities:

"At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict. As we have seen, the initial movement to reduce the number of capital offenses and to separate murder into degrees was prompted in part by the reaction of jurors as well as by reformers who objected to the imposition of death as the penalty for any crime. Nineteenth century journalists, statesmen, and jurists repeatedly observed that jurors were often deterred from convicting palpably guilty men of first-degree murder under mandatory statutes. Thereafter, continuing evidence of jury reluctance to convict persons of capital offenses in mandatory death penalty jurisdictions resulted in legislative authorization of discretionary jury sentencing...." Id., at 293, 96 S.Ct., at 2986 (footnote omitted). [FN30 omitted]

Thus the lesson history teaches is that the jury--and in particular jury sentencing--has played a critical role in ensuring that capital punishment is imposed in a manner consistent with evolving standards of decency. This is a lesson of constitutional magnitude, and one that was forgotten during the enactment of the Florida statute.

*485 VII

The importance of the jury to the legitimacy of the capital sentencing decision has been a consistent theme in our evaluation of post-Furman capital punishment statutes. In Gregg, we reaffirmed the link between evolving standards of decency and the imposition of capital punishment provided by the jury, as well as the traditional function of the jury in ensuring that the death penalty is assessed only in cases where its imposition is consistent with Eighth Amendment standards:

"The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. The Court has said that 'one of the most important functions any jury can perform in making ... a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system.' It may be true that evolving standards **3176 have influenced juries in recent decades to be more discriminating in imposing the sentence of death. But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases." 428 U.S., at 181-182, 96 S.Ct., at 2929 (opinion of STEWART, POWELL, and STEVENS, JJ.) (footnote and citations omitted) (quoting Witherspoon, 391 U.S., at 519, n. 15, 88 S.Ct., at 1755, n. 15). [FN31 omitted]

Highly relevant to the present inquiry is the invalidation of post-Furman statutes requiring mandatory death sentences *486 because they broke the critical link provided by the jury between the death penalty and community standards:

"[E]vidence of the incompatibility of mandatory death penalties with contemporary values is provided by the results of jury sentencing under discretionary statutes. In Witherspoon v. Illinois, 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776] (1968), the Court observed that 'one of the most important functions any jury can perform' in exercising its discretion to choose 'between life imprisonment and capital punishment' is 'to maintain a link between contemporary community values and the penal system.' Id., at 519, and n. 15 [88 S.Ct., at 1755 n. 15]. Various studies indicate that even in first-degree murder cases juries with sentencing discretion do not impose the death penalty 'with any great frequency.' " Woodson, 428 U.S., at 295, 96 S.Ct., at 2987 (plurality opinion) (footnote omitted) (quoting H. Kalven & H. Zeisel, The American Jury 436 (1966)).

We therefore concluded that "North Carolina's mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish 'be exercised within the limits of civilized standards.' " 428 U.S., at 301, 96 S.Ct., at 2989 (footnote omitted) (quoting Trop v. Dulles, 356 U.S., at 100, 78 S.Ct., at 598 (plurality opinion)).

That the jury provides a better link to community values than does a single judge is supported not only by our cases, but also by common sense. Juries-- comprised as they are of a fair cross section of the community [FN32 omitted]--are more representative institutions than is the judiciary; they reflect more accurately the composition and experiences of the community as a whole, and inevitably make decisions based on community values more reliably, than can that segment of the community *487 that is selected for service on the bench. [FN33] Indeed, as **3177 the preceding discussion demonstrates, the belief that juries more accurately reflect the conscience of the community than can a single judge is the central reason that the jury right has been recognized at the guilt stage in our jurisprudence. This same belief firmly supports the use of juries in capital sentencing, in order to address the Eighth Amendment's *488 concern that capital punishment be administered consistently with community values. In fact, the available empirical evidence indicates that judges and juries do make sentencing decisions in capital cases in significantly different ways, [FN34] thus supporting the conclusion that entrusting the capital decision *489 to a single judge creates an unacceptable risk that the decision will not be consistent with community values.

FN33. In his valuable article, Professor Gillers has written:

"Intuitively, juries, chosen in accordance with rules calculated to assure that they reflect a 'fair cross-section of the community,' are more likely to accurately express community values than are individual state trial judges. This is true because twelve people are more likely than one person to reflect public sentiment, because jurors are selected in a manner enhancing that likelihood, and because trial judges collectively do not represent--by race, sex, or economic or social class--the communities from which they come. The response of a representative jury of acceptable size is consequently taken to be the community response. The jury does not try to determine what the community would say, but in giving its conclusion, speaks for the community. The judge, on the other hand, must assess the community's 'belief' or 'conscience' and impose it or must impose his own and assume it is the community's. Whichever the judge does, the representative jury would seem to have a substantially better chance of identifying the community view simply by speaking its mind.

"The intuitive expectation that a representative jury of adequate size will convey community values more reliably than will a single judge finds support in cases treating jury composition at culpability trials. In this related area, the Court has stressed the importance of a representative jury as an aid in assuring 'meaningful community participation,' and has accepted the idea that different segments of the community will bring to the representative jury 'perspectives and values that influence both jury deliberation and result.' In addition, the Court has said that juries of decreasing size have a reduced chance of reflecting minority viewpoints. The Court's conclusions that the size and representativenessof juries influence their ability to reflect community values support an inference that a representative jury of adequate size is also more likely than a single judge to reflect the community's retributive sentiment. Indeed, since capital sentencing involves application of community values, whereas guilt-determination predominantly demands factfinding, the Court's conclusions would seem to apply with even greater force in the capital sentencing area." Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1, 63-65 (1980) (footnotes omitted).

FN34. A respected study of the matter found that judges and juries disagree as to the imposition of the death penalty in 59 percent of the cases, with juries being much more likely to show mercy than judges. See H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment 37-50 (1968). This study must be viewed with some caution, because it was based on pre-Furman sentencing, when juries were given no guidance concerning the standards for decision. See Zeisel, supra, at 37-38, and n. 29. But then there were no standards for judges to follow either, and the wide disparity between judge and jury sentencing in an era in which all the sentencer could do was express its sense of proportionality, see Witherspoon, 391 U.S., at 519, 88 S.Ct., at 1775, and n. 15, suggests that judicial sentencing does not reflect the same moral sensibility as does jury sentencing. That there has been such a large number of jury overrides under the Florida statute tends to indicate that the disparity between judge and jury has continued in the post-Furman era. Indeed, the facts of this very case illustrate the point. While the crime for which petitioner was convicted was quite horrible, the case against him was rather weak, resting as it did on the largely uncorroborated testimony of a drug addict who said that petitioner had bragged to him of having killed a number of women, and had led him to the victim's body. It may well be that the jury was sufficiently convinced of petitioner's guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made, coupled with evidence indicating that petitioner had suffered serious head injuries when he was 20 years old which had induced a personality change, App. 35, see also 433 So.2d, at 512 (McDonald, J., dissenting), that the jury concluded that a sentence of death could not be morally justified in this case. A judge trained to distinguish proof of guilt from questions concerning sentencing might react quite differently to this case than would a jury. See H. Melville, Billy Budd 72 (Pocket Books 1972) ("For the compassion how can I otherwise than share it. But, mindful of paramount obligations I strive against scruples that may tend to enervate decision. Not, gentlemen, that I hide from myself that this case is an exceptional one. Speculatively regarded, it well might be referred to a jury of casuists. But for us here acting not as casuists or moralists, in a case practical, and under martial law practically to be dealt with").

Thus, the legitimacy of capital punishment in light of the Eighth Amendment's mandate concerning the proportionality of punishment critically depends upon whether its imposition in a particular case is consistent with the community's sense of values. Juries have historically been, and continue to be, a much better indicator as to whether the death penalty is a disproportionate punishment for a given offense in light of community values than is a single judge. If the prosecutor cannot convince a jury that the defendant deserves to die, there is an unjustifiable risk that the imposition of that punishment will not reflect the community's sense of the defendant's "moral guilt." The Florida statute is thus inconsistent with "the need for reliability in the determination that death is the appropriate punishment in a specific case," **3178 Woodson, 428 U.S., at 305, 96 S.Ct., at 2991 (plurality opinion); it "introduce[s] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case." Beck v. Alabama, 447 U.S. 625, 643, 100 S.Ct. 2382, 2392, 65 L.Ed.2d 392 (1980). As a result, the statute "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." Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (plurality opinion). Once a State, through specification of aggravating circumstances and meaningful appellate review of jury verdicts, develops a capital sentencing process which in the aggregate distinguishes between those who may live and those who will die in some acceptably nonarbitrary way, [FN35 omitted] Furman and its progeny provide no warrant *490 for--indeed do not tolerate--the exclusion from the capital sentencing process of the jury and the critical contribution only it can make toward linking the administration of capital punishment to community values.

VIII

History, tradition, and the basic structure and purpose of the jury system persuade me that jury sentencing is essential if the administration of capital punishment is to be governed by the community's evolving standards of decency. The constitutional legitimacy of capital punishment depends upon the extent to which the process is able to produce results which reflect the community's moral sensibilities. Judges simply cannot acceptably mirror those sensibilities--the very notion of a right to jury trial is premised on that realization. Judicial sentencing in capital cases cannot provide the type of community participation in the process upon which its legitimacy depends.

If the State wishes to execute a citizen, it must persuade a jury of his peers that death is an appropriate punishment for his offense. If it cannot do so, then I do not believe it can be said with an acceptable degree of assurance that imposition of the death penalty would be consistent with the community's sense of proportionality. Thus, in this case Florida has authorized the imposition of disproportionate punishment in violation of the Eighth and Fourteenth Amendments. Accordingly, while I join Part II of the opinion of the Court, with respect to the remainder of the Court's opinion and its judgment, I respectfully dissent.

Louise HARRIS, Petitioner,

v.

ALABAMA.

513 U.S. 504 (1995)

Justice O'CONNOR delivered the opinion of the Court.

Alabama law vests capital sentencing authority in the trial judge, but requires the judge to consider an advisory jury verdict. We granted certiorari to consider petitioner's argument that Alabama's capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury's recommendation and thus permits arbitrary imposition of the death penalty.

*506 I

A defendant convicted of capital murder in Alabama is entitled to a sentencing hearing before the trial jury, Ala.Code § 13A-5-46 **1033 (1994), unless jury participation is waived by both parties and approved by the court, § 13A- 5-44. The State must prove statutory aggravating factors beyond a reasonable doubt and must disprove, by a preponderance of the evidence, any mitigating circumstance the defendant may proffer. § 13A-5-45(g). The jury then renders an advisory verdict. If it finds that aggravating factors, if any, outweigh mitigating circumstances, then the jury recommends death; otherwise, the verdict is life imprisonment without parole. § 13A-5-46(e). The jury may recommend death only if 10 jurors so agree, while a verdict of life imprisonment requires a simple majority. § 13A-5-46(f). The recommendation and vote tally are reported to the judge.

The judge then must consider all available evidence and file a written statement detailing the defendant's crime, listing specific aggravating and mitigating factors, and imposing a sentence. Section § 13A-5-47(e) provides:

"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or 13A-5-46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."

If the defendant is sentenced to death, his conviction and sentence are automatically reviewed by an appellate court and, if affirmed, a writ of certiorari is granted by the Alabama Supreme Court as a matter of right. In addition to reviewing the record for errors, the appellate courts must *507 independently weigh aggravating and mitigating circumstances and determine whether the death penalty is disproportionate to sentences rendered in comparable cases. § 13A-5-53(b).

Petitioner Louise Harris was married to the victim, a deputy sheriff, and was also having an affair with Lorenzo McCarter. She asked McCarter to find someone to kill her husband, and McCarter to that end approached a co-worker, who refused and reported the solicitation to his supervisor. McCarter then found willing accomplices in Michael Sockwell and Alex Hood, who were paid $100 and given a vague promise of more money upon performance. On the appointed night, as her husband left for work on the night shift, Harris called McCarter on his beeper to alert him. McCarter and Hood sat in a car parked on a nearby street, and Sockwell hid in the bushes next to a stop sign. As the victim stopped his car at the intersection, Sockwell sprang forth and shot him, point blank, with a shotgun. Harris was arrested after questioning, and McCarter agreed to bear witness to the conspiracy in exchange for the prosecutor's promise not to seek the death penalty. McCarter testified that Harris had asked him to kill her husband so they could share in his death benefits, which totaled about $250,000.

The jury convicted Harris of capital murder. At the sentencing hearing, a number of witnesses attested to her good background and strong character. She was rearing seven children, held three jobs simultaneously, and participated actively in her church. The jury recommended, by a 7 to 5 vote, that she be imprisoned for life without parole. The trial judge then considered her sentence, finding the existence of one aggravating circumstance, that the murder was committed for pecuniary gain, and one statutory mitigator, that Harris had no prior criminal record. The trial judge also found as nonstatutory mitigating circumstances that Harris was a hardworking, respected member of her church and community. Noting that Harris had planned the crime *508 and financed its commission and stood to benefit the most from her husband's murder, the judge concluded that "the one statutory aggravating circumstance found and considered far outweighs all of the non-statutory mitigating circumstances, and that the sentence ought to be death." App. 7. In separate proceedings, all the conspirators were convicted of capital murder. McCarter and Hood received prison terms of life without parole; Sockwell, the triggerman, was sentenced to death after the trial judge rejected a jury **1034 recommendation, again by a 7 to 5 vote, of life imprisonment.

The Alabama Court of Criminal Appeals affirmed Harris' conviction and sentence. 632 So.2d 503 (1992). It noted that Alabama's death penalty statute is based on Florida's sentencing scheme, which we have held to be constitutional, see Spaziano v. Florida, 468 U.S. 447, 457-467, 104 S.Ct. 3154, 3160-3166, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). One difference is that jury recommendations are to be given "great weight" by the sentencing judge in Florida, see Tedder v. State, 322 So.2d 908, 910 (Fla.1975), whereas Alabama only requires the judge to "consider" the advisory verdict. The Court of Criminal Appeals rejected Harris' contention that Florida's so-called Tedder standard is constitutionally required, however. 632 So.2d, at 538. As the statute prescribes, the court then reviewed the record for prejudicial errors and independently weighed the aggravating and mitigating circumstances. Finding no errors and concluding that death was the proper sentence, the court affirmed. Id., at 542-543. The Alabama Supreme Court also affirmed, discussing an unrelated claim. 632 So.2d 543 (1993). We granted certiorari. 512 U.S. 1234, 114 S.Ct. 2736, 129 L.Ed.2d 858 (1994).

II

Alabama's capital sentencing scheme is much like that of Florida. Both require jury participation in the sentencing process but give ultimate sentencing authority to the *509 trial judge. Ala.Code § 13A-5- 47(e) (1994); Fla.Stat. § 921.141(3) (1985). A sentence of death in both States is subject to automatic appellate review. Ala.Code § 13A-5-55 (1994); Fla.Stat. § 921.141(4) (1985). In Florida, as in Alabama, the reviewing courts must independently weigh aggravating and mitigating circumstances to determine the propriety of the death sentence, Ala.Code § 13A-5-53(b)(2) (1994); Harvard v. State, 375 So.2d 833 (Fla.1977), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), and must decide whether the penalty is excessive or disproportionate compared to similar cases, Ala.Code § 13A-5-53(b)(3) (1994); Williams v. State, 437 So.2d 133 (Fla.1983), cert. denied, 466 U.S. 909, 104 S.Ct. 1690, 80 L.Ed.2d 164 (1984).

The two States differ in one important respect. The Florida Supreme Court has opined that the trial judge must give "great weight" to the jury's recommendation and may not override the advisory verdict of life unless "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder v. State, supra, at 910. The same deference inures to a jury recommendation of death. See Grossman v. State, 525 So.2d 833, 839, n. 1 (Fla.1988) (collecting cases). The Alabama capital sentencing statute, by contrast, requires only that the judge "consider" the jury's recommendation, and Alabama courts have refused to read the Tedder standard into the statute. See Ex parte Jones, 456 So.2d 380, 382-383 (Ala.1984). This distinction between the Alabama and Florida schemes forms the controversy in this case--whether the Eighth Amendment to the Constitution requires the sentencing judge to ascribe any particular weight to the verdict of an advisory jury.

We have held Florida's capital sentencing statute to be constitutional. See Proffitt v. Florida, supra; Spaziano v. Florida, supra. In Spaziano, we addressed the specific question whether Florida could, consistent with the Constitution, vest sentencing authority in the judge and relegate the jury to an advisory role. While acknowledging that sentencing *510 power resides with the jury in most States, we made clear that the "Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws." Id., at 464, 104 S.Ct., at 3164. We therefore rejected the contention that "placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision." Id., at 465, 104 S.Ct., at 3165; see also Walton v. **1035 Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 3054, 111 L.Ed.2d 511 (1990); Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725 (1990).

Asserting that the death penalty serves no function in "rehabilitation," "incapacitation," or "deterren[ce]," Justice STEVENS argues that a jury "should bear the responsibility to express the conscience of the community on the ultimate question of life or death in particular cases." Post, at 1038, 1039 (internal quotation marks omitted). What purpose is served by capital punishment and how a State should implement its capital punishment scheme--to the extent that those questions involve only policy issues--are matters over which we, as judges, have no jurisdiction. Our power of judicial review legitimately extends only to determine whether the policy choices of the community, expressed through its legislative enactments, comport with the Constitution. As we have noted elsewhere, "while we have an obligation to insure that constitutional bounds are not overreached, we may not act as judges as we might as legislators." Gregg v. Georgia, 428 U.S. 153, 174-175, 96 S.Ct. 2909, 2925-2926, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). * * *

Consistent with established constitutional law, Alabama has chosen to guide the sentencing decision by requiring the jury and judge to weigh aggravating and mitigating circumstances. Harris does not challenge this legislative choice. And she objects to neither the vesting of sentencing authority in the judge nor the requirement that the advisory verdict be considered in the process. What she seeks instead is a constitutional mandate as to how that verdict should be considered; relying on Florida's standard, she suggests that the judge must give "great weight" to the jury's advice.

*512 We have rejected the notion that "a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required." Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 2330, 101 L.Ed.2d 155 (1988). Equally settled is the corollary that the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer. See, e.g., Blystone v. Pennsylvania, 494 U.S. 299, 306-307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990); Eddings v. Oklahoma, 455 U.S. 104, 113-115, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982); Proffitt, supra, 428 U.S., at 257-258, 96 S.Ct., **1036 at 2969 (joint opinion of Stewart, Powell, and STEVENS, JJ.). To require that "great weight" be given to the jury recommendation here, one of the criteria to be considered by the sentencer, would offend these established principles and place within constitutional ambit micromanagement tasks that properly rest within the State's discretion to administer its criminal justice system. We therefore hold that the Eighth Amendment does not require the State to define the weight the sentencing judge must accord an advisory jury verdict. * * *

The Constitution permits the trial judge, acting alone, to impose a capital sentence. It is thus not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight. Accordingly, we affirm the judgment of the Alabama Supreme Court.

It is so ordered.

Chandler CLEMONS, Petitioner

v.

MISSISSIPPI.

494 U.S. 738 (1990)

Justice WHITE delivered the opinion of the Court.

The Mississippi Supreme Court upheld the death sentence imposed on Chandler Clemons even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was "especially heinous, atrocious, or cruel," was constitutionally invalid in light of our decision in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Although we hold that the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review, we vacate the judgment below and remand, because it is unclear whether the Mississippi Supreme Court correctly employed either of these methods.

I

On the evening of April 17, 1987, petitioner Clemons complained to friends that he needed money and suggested a robbery of a pizza delivery man. Clemons used a pay telephone to order a pizza to be delivered to an apartment complex. He and two others, Calvin and Hay, went to the complex in a car and waited. When the pizza delivery vehicle arrived, Clemons and Hay got out of the car; Clemons carried a shotgun belonging to Hay. Clemons stopped and entered the *742 delivery vehicle and ordered the driver, Arthur Shorter, to get out of the car. Shorter was told to take any money he had out of his pockets, which he did. Clemons then told Shorter to lie down, took a bag of money and some pizza from the delivery vehicle, and was about to **1445 return to the car where Calvin was sitting when Hay asked if Shorter had seen Clemons' face. When Clemons answered in the affirmative, Hay told him he had to kill Shorter. Shorter begged for his life but Clemons shot him and got into the car with Hay and Calvin. As they drove away, Calvin looked back and saw Shorter raise his head once. Shorter died shortly thereafter.

The three men eventually went home. Clemons disposed of the shotgun in a hole in his backyard. Calvin, however,later that night related the robbery and shooting incident to his sister's friend, who happened to be a county jailer. The next day Clemons was arrested at his home and later made a videotaped statement in which he admitted being part of the group that robbed Shorter but denied foreknowledge of the robbery plan and denied that he had been the killer. Before trial Clemons also told the Sheriff where he had hidden the gun.

Clemons was indicted for capital murder and, after a change of venue, was tried before a jury. The principal witness against Clemons was Calvin, who had entered into a plea agreement with the State of Mississippi. Clemons was convicted of capital murder and a sentencing hearing was held. At the sentencing hearing, the State presented evidence arguably establishing that two statutory aggravating factors were present in this case: (1) that the murder was committed during the course of a robbery for pecuniary gain and (2) that it was an "especially heinous, atrocious or cruel" killing. Clemons presented testimony from his mother and a psychologist regarding mitigating evidence. The State argued the "especially heinous" factor extensively and with regard to that factor the trial court instructed the jury in the *743 bare terms of the Mississippi statute. [FN1] The jury was further instructed several times that it need not sentence Clemons to death even if it found that no mitigating circumstances were present. The jury sentenced Clemons to death, finding that both aggravating factors argued by the State were present and that they outweighed any mitigating circumstances.

FN1. The court instructed the jury as follows: "Consider only the following elements, if any, of aggravation in determining whether the death penalty should be imposed: ... (2) The Capital offense was especially heinous, atrocious, or cruel." App. 25. This language is identical to that in Miss.Code Ann. § 99-19-101(5)(h) (Supp.1989), which provides that "[a]ggravating circumstances shall be limited to the following: ... (h) The capital offense was especially heinous, atrocious or cruel."

Clemons appealed his conviction and sentence to the Mississippi Supreme Court, and that court affirmed. 535 So.2d 1354 (1988). After rejecting Clemons' arguments regarding guilt and several of his challenges to the sentencing proceeding, the court addressed the validity of the "especially heinous" aggravating factor even though Clemons had never raised the issue. The court began by noting that our decision in Maynard v. Cartwright, supra, had invalidated Oklahoma's identical "especially heinous, atrocious, or cruel" aggravating circumstance because it was unconstitutionally vague and did not provide sufficient guidance to the jury in deciding whether to impose the death penalty. The court also recognized that we had refused to sustain the death penalty in Maynard, even though valid aggravating circumstances remained, because Oklahoma had no procedure for salvaging death sentences under such circumstances and that we had left the question of the effect of possible constitutional limiting constructions of the "especially heinous" factor to the Oklahoma courts in the first instance.

The Mississippi Supreme Court distinguished this case from Maynard and sustained Clemons' death sentence on the following grounds: (1) in Mississippi there is an established procedure that "when one aggravating circumstance is found *744 to be invalid or unsupported by the evidence, a remaining valid aggravating circumstance will nonetheless support the death penalty verdict," 535 **1446 So.2d, at 1362 (citing cases); (2) the Mississippi Supreme Court has previously given the"especially heinous" factor a constitutional limiting construction, narrowing that category to murders that are conscienceless or pitiless and unnecessarily torturous to the victim, id., at 1363 (citing Coleman v. State, 378 So.2d 640, 648 (1979)); and (3) the trial court gave the jury no less than seven instructions that "singly and collectively told the jury that regardless of aggravating circumstances, they were not required to impose the death penalty," even "if ... there were no mitigating circumstances." 535 So.2d, at 1364 (citing instructions).

The court then stated that given all of these considerations plus "the brutal and torturous facts surrounding the murder of Arthur Shorter ... it is inescapable that Maynard v. Cartwright does not dictate the outcome of the case sub judice." Ibid. The court added that "[w]e likewise are of the opinion beyond a reasonable doubt that the jury's verdict would have been the same with or without the 'especially heinous, atrocious or cruel' aggravating circumstance." Ibid. Finally, the court conducted its proportionality review. The court noted that it had reviewed the record and stated that "[i]n our opinion ... the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other...." Id., 535 So.2d at 1365. Three justices dissented, arguing that the sentence should be vacated and the case remanded to a jury for resentencing with properly defined aggravating factors. We granted certiorari, 491 U.S. 904, 109 S.Ct. 3184, 105 L.Ed.2d 693 (1989).

II

We deal first with petitioner's submission that it is constitutionally impermissible for an appellate court to uphold a death sentence imposed by a jury that has relied in part on an invalid aggravating circumstance. In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), we determined that in a State like Georgia, *745 where aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and remand to a jury. We withheld opinion, however, "concerning the possible significance of a holding that a particular aggravating circumstance is 'invalid' under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty." Id., at 890, 103 S.Ct. at 2749. In Mississippi, unlike the Georgia scheme considered in Zant, the finding of aggravating factors is part of the jury's sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances. [FN2] Although these differences complicate the questions raised, we do not believe that they dictate reversal in this case.

FN2. Mississippi Code Ann. § 99-19-101(3)(c) (Supp.1989) provides that "[f]or the jury to impose a sentence of death, it must unanimously find ... (c) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances."

A

[1][2] Nothing in the Sixth Amendment as construed by our prior decisions indicates that a defendant's right to a jury trial would be infringed where an appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence. Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court. Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), held that an appellate **1447 court can make the findings required by Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), in the first instance and stated that "[t]he decision whether a particular punishment--even the *746 death penalty--is appropriate in any given case is not one that we have ever required to be made by a jury." 474 U.S., at 385, 106 S.Ct., at 696. Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), ruled that neither the Sixth Amendment, nor the Eighth Amendment, nor any other constitutional provision provides a defendant with the right to have a jury determine the appropriateness of a capital sentence; neither is there a double jeopardy prohibition on a judge's override of a jury's recommended sentence. Likewise, the Sixth Amendment does not require that a jury specify the aggravating factors that permit the imposition of capital punishment, Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), nor does it require jury sentencing, even where the sentence turns on specific findings of fact. McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986).

B

[3] To avoid the import of these cases, Clemons argues that under Mississippi law only a jury has the authority to impose a death sentence, see Miss.Code Ann. § 99-19-101 (Supp.1989), and that he therefore has a liberty interest under the Due Process Clause of the Fourteenth Amendment in having a jury make all determinations relevant to his sentence. He therefore argues that an appellate court cannot reweigh the balance of factors when the jury has found and relied on an invalid aggravating circumstance. Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause, Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977) (plurality opinion), and we have recognized that when state law creates for a defendant a liberty interest in having a jury make particular findings, speculative appellate findings will not suffice to protect that entitlement for due process purposes. Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). However, these two general propositions do not lead to the result Clemons seeks. * * *

*748 C

[4] Clemons also submits that appellate courts are unable to fully consider and give effect to the mitigating evidence presented by defendants at the sentencing phase in a capital case and that it therefore violates the Eighth Amendment for an appellate court to undertake to reweigh aggravating and mitigating circumstances in an attempt to salvage the death sentence imposed by a jury. He insists, therefore, that he is entitled to a new sentencing hearing before a jury and that the decision below must be reversed. We are unpersuaded, however, that our cases require this result. Indeed, they point in the opposite direction.

[5] The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. See, e.g., Spaziano v. Florida, supra, 468 U.S. at 460, 104 S.Ct. at 3162; Zant v. Stephens, 462 U.S., at 879, 103 S.Ct., at 2744; Eddings v. Oklahoma, 455 U.S. 104, 110-112, 102 S.Ct. 869, 874-875, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 601-605, 98 S.Ct. 2954, 2963-2965, 57 L.Ed.2d 973 (1978) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). In scrutinizing death penalty procedures under the Eighth Amendment, the Court has emphasized the "twin objectives" of "measured consistent application and fairness to the accused." Eddings, supra, 455 U.S., at 110-111, 102 S.Ct., at 874-875. See also Lockett, supra, 438 U.S., at 604, 98 S.Ct., at 2964 (emphasizing the importance of reliability). Nothing inherent in the process of appellate reweighing is inconsistent with the pursuit of the foregoing objectives.

We see no reason to believe that careful appellate weighing of aggravating against mitigating circumstances in cases such as this would not produce "measured consistent application" of the death penalty or in any way be unfair to the defendant. It is a routine task of appellate courts to decide whether the *749 evidence supports a jury verdict and in capital cases in "weighing" States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. And, as the opinion below indicates, a similar process of weighing aggravating and mitigating evidence is involved in an appellate court's proportionality review. Furthermore, this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency. See, e.g., Gregg v. Georgia, supra, 428 U.S., at 204-206, 96 S.Ct., at 2939-2941 (joint opinion of Stewart, Powell, and STEVENS, JJ.); Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.); Dobbert v. Florida, 432 U.S. 282, 295- 296, 97 S.Ct. 2290, 2299-2300, 53 L.Ed.2d 344 (1977); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). It is also important to note that state supreme courts in States authorizing the death penalty may well review many death sentences and that typical jurors, in contrast, will serve on only one such case during their lifetimes. See Proffitt, supra, 428 U.S., at **1449 252-253, 96 S.Ct., at 2966-2967. Therefore, we conclude that state appellate courts can and do give each defendant an individualized and reliable sentencing determination based on the defendant's circumstances, his background, and the crime. * * *

IV

[9] Even if under Mississippi law, the weighing of aggravating and mitigating circumstances were not an appellate, but a jury, function, it was open to the Mississippi Supreme Court to find that the error which occurred during the sentencing proceeding was harmless. See, e.g., Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). * * *

V

Nothing in this opinion is intended to convey the impression that state appellate courts are required to or necessarily should engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding. Our holding is only that such procedures are constitutionally permissible. In some situations, a state appellate court may conclude that peculiarities in a case make appellate reweighing or harmless-error analysis extremely speculative or impossible. We have previously noted that appellate courts may face certain difficulties in determining sentencing questions in the first instance. See Caldwell v. Mississippi, 472 U.S. 320, 330-331, 105 S.Ct. 2633, 2640-2641, 86 L.Ed.2d 231 (1985). Nevertheless, that decision is for state appellate courts, including the Mississippi Supreme Court in this case, to make. [FN5]

FN5. We find unpersuasive Clemons' argument that the Mississippi Supreme Court's decision to remand to a sentencing jury in Johnson v. State, 511 So.2d 1333 (1987), rev'd, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), on remand, 547 So.2d 59 (1989), a case in which this Court reversed the death sentence because it depended in part on a jury finding that the "especially heinous" aggravating factor was present, indicates that the Mississippi Supreme Court acted arbitrarily in refusing to do the same in this case. Johnson is distinguishable because in that case the jury had found both that the defendant had been convicted of a prior violent felony and that the murder was especially heinous, atrocious, or cruel. In fact, the prior conviction the jury relied upon had been vacated and thus the jury was permitted to consider inadmissible evidence in determining the defendant's sentence. This Court noted in vacating the sentence that the Mississippi Supreme Court's refusal to rely on harmless- error analysis in upholding the sentence was "plainly justified" because the error "extended beyond the mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible" and in fact permitted the jury "to consider evidence that [was] revealed to be materially inaccurate." 486 U.S., at 590, 108 S.Ct., at 1989. The Court did not hold that the Mississippi Supreme Court could not have applied harmless-error analysis.

Given that two aggravating factors had been invalidated and inadmissible evidence had been presented to the jury, it was not unreasonable for the Mississippi Supreme Court to conclude that it could not conduct the harmless-error inquiry or adequately reweigh the mitigating factors and aggravating circumstances in Johnson. By contrast, in this case there is no serious suggestion that the State's reliance on the "especially heinous" factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding. All of the circumstances surrounding the murder already had been aired during the guilt phase of the trial and a jury clearly is entitled to consider such evidence in imposing sentence. A state appellate court's decision to conduct harmless-error analysis or to reweigh aggravating and mitigating factors rather than remand to the sentencing jury violates the Constitution only if the decision is made arbitrarily. We cannot say that the Mississippi Supreme Court's refusal to remand in this case was rendered arbitrary by its decision to remand in Johnson.

**1452 *755 VI

For the foregoing reasons the judgment of the Mississippi Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

So ordered.

Justice BRENNAN, concurring in part and dissenting in part.

* * *

Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, concurring in part and dissenting in part.

* * *

James R. STRINGER, Petitioner,

v.

Lee Roy BLACK, Commissioner, Mississippi Department of Corrections, et al,

503 U.S. 222 (1992)

Justice KENNEDY delivered the opinion of the Court.

The death sentence of the petitioner in this case was decreed by a judgment that became final before we decided *225 either Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), or Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). The petitioner argues that the State of Mississippi committed the same error in his case as it did in Clemons, and that under both Maynard and Clemons his sentence is unconstitutional. The question presented is whether in a federal habeas corpus proceeding a petitioner is foreclosed from relying on Maynard and Clemons because either or both announced a new rule as defined in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

**1134 I

In June 1982, Ray McWilliams and his wife, Nell, were shot to death in their Jackson, Mississippi, home as part of an armed robbery. The petitioner James R. Stringer did not fire the fatal shots, but he did plan the robbery and take part in it. The killing was part of his plan from the outset. The crimes, and their gruesome aspects, are described in the opinion of the Mississippi Supreme Court on direct review of the conviction and sentence. Stringer v. State, 454 So.2d 468, 471-473 (1984).

Under Mississippi law the death sentence may be imposed for mu