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defendants
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penalty
cases
establish
decision
whether
condemn
man
death
given
case
may
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considerations
alone
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fact
legislature
may
rationally
conclude
mandatory
capital
punishment
deterrent
effect
given
class
aggravated
crimes
significantly
greater
discretionary
capital
sentencing
invalidated
mandatory
capital
punishment
statutes
well
statutes
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consider
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perhaps
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well
settled
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fact
capital
case
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weigh
consideration
indeed
aspect
defendant
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character
relevant
question
whether
death
excessive
punishment
offense
thus
particular
capital
sentencing
decisions
rest
entirely
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considerations
context
capital
felony
cases
therefore
question
whether
death
sentence
appropriate
nonexcessive
response
particular
facts
case
depend
retribution
justification
nature
justification
described
gregg
part
capital
punishment
expression
society
moral
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particularly
offensive
conduct
function
may
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many
essential
ordered
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asks
citizens
rely
legal
processes
rather
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wrongs
opinion
stewart
powell
stevens
jj
omitted
vi
authors
federal
state
constitutional
guarantees
uniformly
recognized
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function
jury
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plenary
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life
liberty
citizen
jurisprudence
jury
always
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criminal
justice
guarantees
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trial
federal
state
constitutions
reflect
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judgment
way
law
enforced
justice
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right
jury
trial
granted
criminal
defendants
order
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wrote
constitutions
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history
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necessary
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charges
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constitutions
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insisted
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duncan
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link
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values
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witherspoon
illinois
observing
jury
must
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life
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punishment
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must
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conscience
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ultimate
question
life
death
omitted
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important
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jury
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punishment
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quoting
trop
dulles
plurality
opinion
least
since
revolution
american
jurors
regularity
disregarded
oaths
refused
convict
defendants
death
sentence
automatic
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guilty
verdict
seen
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movement
reduce
number
capital
offenses
separate
murder
degrees
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part
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well
reformers
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death
penalty
crime
nineteenth
century
journalists
statesmen
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jurors
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palpably
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men
murder
mandatory
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evidence
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convict
persons
capital
offenses
mandatory
death
penalty
jurisdictions
resulted
legislative
authorization
discretionary
jury
sentencing
omitted
vii
importance
jury
legitimacy
capital
sentencing
decision
consistent
theme
evaluation
capital
punishment
statutes
gregg
reaffirmed
link
evolving
standards
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imposition
capital
punishment
provided
jury
well
traditional
function
jury
ensuring
death
penalty
assessed
cases
imposition
consistent
eighth
amendment
standards
jury
also
significant
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values
directly
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said
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functions
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case
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verdicts
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sentence
indicate
rejection
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punishment
per
se
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juries
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cases
impose
sentence
may
well
reflect
humane
feeling
irrevocable
sanctions
reserved
small
number
extreme
cases
opinion
stewart
powell
stevens
jj
citations
omitted
quoting
witherspoon
vidence
incompatibility
mandatory
death
penalties
contemporary
values
provided
results
jury
sentencing
discretionary
statutes
witherspoon
illinois
observed
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functions
jury
perform
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choose
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system
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murder
cases
juries
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impose
death
penalty
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frequency
woodson
plurality
opinion
omitted
quoting
kalven
zeisel
american
jury
jury
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link
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values
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judge
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cases
also
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belief
juries
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single
judge
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reason
jury
right
recognized
guilt
stage
jurisprudence
belief
firmly
supports
use
juries
capital
sentencing
order
address
eighth
amendment
concern
capital
punishment
administered
consistently
community
values
fact
available
empirical
evidence
indicates
judges
juries
make
sentencing
decisions
capital
cases
significantly
different
ways
thus
supporting
conclusion
entrusting
capital
decision
single
judge
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decision
consistent
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values
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legitimacy
capital
punishment
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eighth
amendment
mandate
concerning
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punishment
critically
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upon
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imposition
particular
case
consistent
community
sense
values
juries
historically
continue
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whether
death
penalty
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offense
light
community
values
single
judge
prosecutor
convince
jury
defendant
deserves
die
unjustifiable
risk
imposition
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reflect
community
sense
defendant
moral
guilt
florida
statute
thus
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need
reliability
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death
appropriate
punishment
specific
case
woodson
plurality
opinion
introduce
level
uncertainty
unreliability
factfinding
process
tolerated
capital
case
beck
alabama
result
statute
creates
risk
death
penalty
imposed
spite
factors
may
call
less
severe
penalty
choice
life
death
risk
unacceptable
incompatible
commands
eighth
fourteenth
amendments
lockett
ohio
plurality
opinion
state
specification
aggravating
circumstances
meaningful
appellate
review
jury
verdicts
develops
capital
sentencing
process
aggregate
distinguishes
may
live
die
acceptably
nonarbitrary
way
furman
progeny
provide
warrant
indeed
tolerate
exclusion
capital
sentencing
process
jury
critical
contribution
make
toward
linking
administration
capital
punishment
community
values
viii
history
tradition
basic
structure
purpose
jury
system
persuade
jury
sentencing
essential
administration
capital
punishment
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evolving
standards
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punishment
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process
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sensibilities
judges
simply
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mirror
sensibilities
notion
right
jury
trial
premised
realization
judicial
sentencing
capital
cases
provide
type
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upon
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state
wishes
execute
citizen
must
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peers
death
appropriate
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believe
said
acceptable
degree
assurance
imposition
death
penalty
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sense
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thus
case
florida
authorized
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punishment
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eighth
fourteenth
amendments
accordingly
join
part
ii
opinion
respect
remainder
opinion
judgment
respectfully
dissent
see
solem
helm
eighth
amendment
provides
excessive
bail
shall
required
excessive
fines
imposed
cruel
unusual
punishments
inflicted
eighth
amendment
incorporated
due
process
clause
fourteenth
amendment
robinson
california
louisiana
ex
rel
francis
resweber
plurality
opinion
see
solem
helm
burger
dissenting
enmund
florida
beck
alabama
rummel
estelle
lockett
ohio
plurality
opinion
coker
georgia
plurality
opinion
gardner
florida
plurality
opinion
gregg
georgia
opinion
stewart
powell
stevens
death
truly
awesome
punishment
calculated
killing
human
state
involves
nature
denial
executed
person
humanity
contrast
plight
person
punished
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evident
individual
prison
lose
right
rights
prisoner
retains
example
constitutional
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exercise
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free
cruel
unusual
punishments
treatment
person
purposes
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process
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equal
protection
laws
prisoner
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member
human
family
moreover
retains
right
access
courts
punishment
irrevocable
apart
common
charge
grounded
upon
recognition
human
fallibility
punishment
death
must
inevitably
inflicted
upon
innocent
men
know
death
lot
men
whose
convictions
unconstitutionally
secured
view
later
retroactively
applied
holdings
punishment
may
unconstitutionally
inflicted
yet
finality
death
precludes
relief
executed
person
indeed
lost
right
rights
one
century
proponent
punishing
criminals
death
declared
man
hung
end
relations
execution
way
saying
fit
world
take
chance
elsewhere
furman
brennan
concurring
citation
omitted
quoting
stephen
capital
punishments
fraser
magazine
see
also
stewart
concurring
penalty
death
differs
forms
criminal
punishment
degree
kind
unique
total
irrevocability
unique
rejection
rehabilitation
convict
basic
purpose
criminal
justice
unique
finally
absolute
renunciation
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correctly
treats
question
whether
procedure
constitutional
open
one
question
explicitly
reserved
decision
past
see
bell
ohio
plurality
opinion
lockett
ohio
plurality
opinion
proffitt
considered
number
aspects
statute
precise
issue
arise
since
advisory
jury
recommended
proffitt
sentenced
death
opinion
stewart
powell
stevens
thus
description
proffitt
containing
holding
point
barclay
florida
stevens
concurring
judgment
incorrect
death
sentences
based
trial
judge
rejection
jury
recommendation
vacated
without
considering
question
gardner
florida
arizona
rumsey
death
sentence
case
advisory
jury
recommended
life
imprisonment
upheld
dobbert
florida
certiorari
granted
consider
permissibility
sentence
ex
post
facto
clause
see
sentence
also
upheld
barclay
issue
neither
raised
decided
see
enmund
florida
dissenting
coker
georgia
powell
concurring
judgment
part
dissenting
part
woodson
north
carolina
plurality
opinion
another
aspect
eighth
amendment
analysis
unrelated
contemporary
standards
decency
eighth
amendment
demands
challenged
punishment
acceptable
contemporary
society
also
must
ask
whether
comports
basic
concept
human
dignity
core
amendment
sanction
imposed
totally
without
penological
justification
results
gratuitous
infliction
suffering
gregg
opinion
stewart
powell
stevens
jj
citation
omitted
see
also
rhodes
chapman
estelle
gamble
one
contends
however
judicial
sentencing
capital
cases
results
gratuitous
infliction
suffering
violate
aspect
eighth
amendment
see
also
solem
helm
enmund
florida
coker
georgia
plurality
opinion
roberts
louisiana
white
dissenting
gregg
opinion
stewart
powell
stevens
see
andres
frankfurter
concurring
see
witherspoon
illinois
nn
opinion
douglas
brief
amicus
curiae
mcgautha
california
crampton
ohio
pp
british
experience
particularly
relevant
since
eighth
amendment
derived
magna
carta
english
declaration
rights
see
solem
helm
gregg
opinion
stewart
powell
stevens
jj
furman
georgia
marshall
concurring
trop
dulles
plurality
opinion
see
douglas
concurring
brennan
concurring
stewart
concurring
white
concurring
see
also
marshall
concurring
see
lockett
ohio
plurality
opinion
woodson
plurality
opinion
see
also
ehrhardt
levinson
florida
legislative
response
furman
exercise
futility
crim
case
florida
said
allowing
jury
recommendation
binding
violate
furman
see
also
johnson
state
per
curiam
cert
denied
douglas
state
per
curiam
see
zant
stephens
gregg
opinion
stewart
powell
stevens
jj
white
concurring
judgment
separate
reason
discounting
normal
presumption
validity
statute
worked
intended
protect
rights
defendant
although
technically
judge
may
impose
death
sentence
practical
sense
accused
confronts
jeopardy
death
sentence
twice
jury
recommends
death
elected
florida
judge
sensitive
community
sentiment
additional
reason
follow
recommendation
cases
jury
override
procedure
worked
defendant
advantage
trial
judge
rejected
jury
recommendation
death
brought
attention
attorney
general
florida
presumably
aware
cases
hand
fact
persons
identify
victims
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capital
defendants
inevitably
encourages
judges
must
face
election
reject
recommendation
leniency
fact
defendants
persuaded
juries
recommend
mercy
thereafter
sentenced
death
florida
statute
lends
support
thesis
practical
matter
prosecution
given
two
chances
obtain
death
sentence
statute
capital
cases
even
defendant
pleaded
guilty
waived
jury
issue
guilt
innocence
florida
statute
requires
empanelment
advisory
jury
render
sentence
unless
advisory
jury
separately
waived
defendant
see
stat
see
dobbert
citing
tedder
state
proffitt
florida
opinion
stewart
powell
stevens
jj
proffitt
joint
opinion
stated
appear
judicial
sentencing
lead
anything
even
greater
consistency
imposition
trial
level
capital
punishment
since
trial
judge
experienced
sentencing
jury
therefore
better
able
impose
sentences
similar
imposed
analogous
cases
opinion
stewart
powell
stevens
course
since
proffitt
challenging
judicial
sentencing
case
see
supra
statement
directed
risk
arbitrariness
identified
plurality
furman
concerned
claim
made
jury
sentencing
consistent
community
values
moreover
experience
florida
statute
indicates
prediction
concerning
judicial
sentencing
borne
florida
proved
much
likely
reverse
jury
override
case
type
capital
case
see
radelet
vandiver
florida
death
penalty
appeals
crim
also
clear
majority
override
cases
ultimately
result
sentences
life
imprisonment
rather
death
see
app
brief
petitioner
thus
doubtful
judicial
sentencing
worked
reduce
level
capital
sentencing
disparity
anything
evidence
override
cases
suggests
jury
reaches
appropriate
result
often
judge
see
solem
helm
enmund
rhodes
chapman
coker
georgia
plurality
opinion
estelle
gamble
gregg
opinion
stewart
powell
stevens
jj
weems
although
incapacitation
identified
one
rationale
advanced
death
penalty
gregg
opinion
stewart
powell
stevens
jj
placed
reliance
upon
rationale
upholding
imposition
capital
punishment
eighth
amendment
ground
mentioned
four
seven
justices
voted
uphold
death
penalty
gregg
companion
cases
see
roberts
louisiana
white
dissenting
joined
burger
blackmun
rehnquist
event
incapacitation
alone
justify
imposition
capital
punishment
mandatory
death
penalty
statutes
constitutional
held
see
ante
see
roberts
louisiana
white
dissenting
gregg
opinion
stewart
powell
stevens
see
also
marshall
dissenting
gregg
justice
stewart
justice
powell
wrote
although
studies
suggest
death
penalty
may
function
significantly
greater
deterrent
lesser
penalties
convincing
empirical
evidence
either
supporting
refuting
view
may
nevertheless
assume
safely
murderers
act
passion
threat
death
little
deterrent
effect
many
others
death
penalty
undoubtedly
significant
deterrent
carefully
contemplated
murders
murder
hire
possible
penalty
death
may
well
enter
cold
calculus
precedes
decision
act
categories
murder
murder
life
prisoner
sanctions
may
adequate
value
capital
punishment
deterrent
crime
complex
factual
issue
resolution
properly
rests
legislatures
evaluate
results
statistical
studies
terms
local
conditions
flexibility
approach
available
courts
indeed
many
statutes
reflect
responsible
effort
define
crimes
criminals
capital
punishment
probably
effective
deterrent
footnotes
citation
omitted
cf
enmund
imposition
death
penalty
lacking
intent
kill
attenuated
deterrent
effect
justified
deterrence
lockett
ohio
white
concurring
part
dissenting
part
florida
legislature
purport
make
contrary
finding
advance
enhanced
deterrent
effect
justification
judicial
sentencing
indeed
argument
especially
anomalous
case
light
deference
generally
given
jury
determinations
florida
statute
see
eddings
oklahoma
lockett
ohio
plurality
opinion
roberts
louisiana
per
curiam
roberts
louisiana
plurality
opinion
woodson
plurality
opinion
jurek
texas
opinion
stewart
powell
stevens
see
also
california
ramos
enmund
see
also
furman
stewart
concurring
powell
dissenting
see
also
brown
louisiana
plurality
opinion
burch
louisiana
ballew
georgia
opinion
blackmun
apodaca
oregon
plurality
opinion
williams
florida
see
also
humphrey
cady
see
bullington
missouri
see
also
arizona
rumsey
accord
mcgautha
california
furman
burger
dissenting
powell
dissenting
see
generally
note
death
penalty
federalism
eighth
amendment
constraints
allocation
state
decisionmaking
power
stan
rev
see
also
eddings
oklahoma
lockett
ohio
plurality
opinion
furman
douglas
concurring
brennan
concurring
marshall
concurring
mcgautha
andres
frankfurter
concurring
see
also
enmund
coker
georgia
plurality
opinion
see
duren
missouri
valuable
article
professor
gillers
written
intuitively
juries
chosen
accordance
rules
calculated
assure
reflect
fair
community
likely
accurately
express
community
values
individual
state
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martial
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practically
dealt
see
pulley
harris
stevens
concurring
part
concurring
judgment
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stephens
gregg
opinion
stewart
powell
stevens
jj
white
concurring
judgment