walton arizona argued january decided june petitioner walton found guilty arizona murder sentenced separate sentencing hearing judge required state law law judge inter alia determines existence aggravating mitigating circumstances shall impose death sentence finds one several enumerated aggravating circumstances mitigating circumstances sufficiently substantial call leniency burden prosecution establish existence aggravating circumstances defendant establish mitigating ones judge sentenced walton death finding presence two aggravating circumstances murder committed especially heinous cruel depraved manner committed pecuniary gain considering mitigating factors urged walton mitigating circumstances call leniency state upheld sentence independent review concluded evidence sufficient prove existence aggravating factors first factor noted previously defined especially cruel mean victim suffered mental anguish death defined especially depraved mean perpetrator relished murder evidencing debasement perversion also agreed mitigating factors sufficient call leniency determined sentence proportional sentences imposed similar cases held judgment affirmed affirmed justice white delivered opinion respect parts ii concluding arizona capital sentencing scheme violate sixth amendment constitution require every finding fact underlying sentencing decision made jury rather judge see clemons mississippi hildwin florida since arizona aggravating factors standards guide making choice verdicts death life imprisonment rather elements offense judge finding particular aggravating circumstance require death penalty failure find particular aggravating circumstance preclude penalty poland arizona moreover constitution require finding enmund florida defendant killed attempted kill intended kill proved element offense capital murder made jury concluded state required denominate aggravating circumstances elements offense permit jury determine circumstances existence pp especially heinous cruel depraved aggravating circumstance construed state furnishes sufficient guidance sentencer satisfy eighth fourteenth amendments definition especially cruel virtually identical construction approved maynard cartwright similarly definition depraved faulted although juries must instructed bare terms aggravating circumstance unconstitutionally vague face trial judges presumed know law apply narrower definitions decisions maynard cartwright supra godfrey georgia distinguished walton challenge state proportionality review overturned distinguish case others death sentence imposed rejected review constitutionally required challenged factor construed manner give sentencer sufficient guidance furthermore constitution require look behind state conclusion plainly undertook review good faith pp justice white joined chief justice justice justice kennedy concluded parts iii iv walton eighth fourteenth amendment rights violated placing burden proving preponderance evidence existence mitigating circumstances sufficiently substantial call leniency since arizona method allocating burdens proof lessen state burden prove existence aggravating circumstances martin ohio lockett ohio mullaney wilbur mills maryland distinguished pp blystone pennsylvania boyde california foreclose walton argument state statute creates unconstitutional presumption eighth fourteenth amendments death proper sentence requiring shall impose death penalty specified circumstances statute neither precludes considering type mitigating evidence automatically imposes death sentence certain types murder free structure shape consideration mitigating evidence attempt achieve rational equitable administration death penalty pp justice scalia concluded longer seek apply future vote uphold claim based upon principle woodson north carolina lockett ohio sentencer capital case may precluded considering mitigating factor principle rationally irreconcilable principle furman georgia sentencer discretion return death sentence must constrained specific standards death penalty inflicted random capricious fashion furman requires constraints sentencer discretion impose death penalty forbids constraints sentencer discretion decline impose one although eighth amendment text arguably supports view furman unfettered discretion makes death sentences random infrequent make imposition cruel unusual principle bears relation amendment text doctrine stare decisis require adherence since objectives doctrine certainty predictability demonstrably undermined rather furthered attempt rest jurisprudence upon two incompatible principles thus even correct walton assertion two respects state procedure deprived sentencer discretion consider mitigating circumstances state eighth amendment violation pp white announced judgment delivered opinion respect parts ii rehnquist scalia kennedy joined opinion respect parts iii iv rehnquist kennedy joined scalia filed opinion concurring part concurring judgment post brennan filed dissenting opinion marshall joined post blackmun filed dissenting opinion brennan marshall stevens joined post stevens filed dissenting opinion post timothy ford argued cause petitioner briefs denise young paul mcmurdie assistant attorney general arizona argued cause respondent brief robert corbin attorney general jessica gifford funkhouser john powell michael laurence welsh white randy hertz filed brief american civil liberties union et al amici curiae urging reversal brief amici curiae urging affirmance filed commonwealth pennsylvania et al ernest preate attorney general pennsylvania robert graci chief deputy attorney general mary benefield seiverling deputy attorney general john kelly chief state attorney connecticut robert butterworth attorney general florida james jones attorney general idaho neil hartigan attorney general illinois robert stephan attorney general kansas frederic cowan attorney general kentucky michael moore attorney general mississippi william webster attorney general missouri marc racicot attorney general montana brian mckay attorney general nevada john arnold attorney general new hampshire hal stratton attorney general new mexico lacy thornburg attorney general north carolina anthony celebrezze attorney general ohio robert henry attorney general oklahoma roger tellinghuisen attorney general south dakota kenneth eikenberry attorney general washington joseph meyer attorney general wyoming justice white announced judgment delivered opinion respect parts ii opinion parts iii iv chief justice justice justice kennedy joined issue case validity death sentence imposed arizona trial jury found petitioner jeffrey walton guilty committing murder arizona statutes provide person commits murder ntending knowing conduct cause death person causes death another premeditation course committing certain specified offenses without mental state required commission offenses causes death person rev stat ann supp person found guilty murder sentence crime determined accordance provisions directed separate sentencing hearing shall conducted alone determine whether sentence shall death life imprisonment course hearing judge instructed determine existence nonexistence aggravating mitigating circumstances defined subsections subsection defines aggravating circumstances may considered one whether offense committed expectation receiving anything pecuniary value another whether defendant committed offense especially heinous cruel depraved manner subsection defines mitigating circumstances factors relevant determining whether impose sentence less death including aspect defendant character propensities record circumstances offense including limited five specified factors burden establishing existence aggravating circumstances prosecution burden establishing mitigating circumstances defendant directed return special verdict setting forth findings aggravating mitigating circumstances shall impose sentence death finds one aggravating circumstances enumerated subsection section mitigating circumstances sufficiently substantial call leniency petitioner walton two codefendants robert hoover sharold ramsey went bar tucson arizona night march intending find rob someone random steal car tie leave desert fled state car bar parking lot trio encountered thomas powell young marine three robbed powell gunpoint forced car drove desert driving tucson three asked powell questions lived whether money car stopped ramsey told frightened powell hurt walton hoover forced powell car lie face ground near car debated eventually walton instructed hoover ramsey sit car turn radio loud walton took caliber derringer marched powell desert walking short distance walton forced powell lie ground placed foot powell neck shot powell head walton later told hoover ramsey shot powell never seen man pee pants powell body found approximately week later walton arrested led police murder site medical examiner determined powell blinded rendered unconscious shot immediately killed instead powell regained consciousness apparently floundered desert ultimately died dehydration starvation pneumonia approximately day body found jury convicted walton murder given instructions premeditated felony murder see supp trial judge conducted separate sentencing hearing required state argued two aggravating circumstances present murder committed especially heinous cruel depraved manner murder committed pecuniary gain mitigation walton presented testimony psychiatrist opined walton long history substance abuse impaired judgment see walton may abused sexually child walton counsel also argued walton age time sentencing mitigating circumstance see conclusion hearing trial found beyond doubt walton one shot powell also found two aggravating circumstances pressed state present stated considered walton age capacity appreciate wrongfulness conduct well mitigating factors urged defendant counsel concluded mitigating circumstances sufficiently substantial call leniency app see sentenced walton death arizona affirmed walton conviction sentence relying prior decisions rejected various specific challenges constitutionality arizona death penalty statute pressed proceeded conduct independent review walton sentence order ensure aggravating factors proven beyond reasonable doubt appropriate mitigation considered began examining especially heinous cruel depraved aggravating circumstance found trial judge pointed previously determined murder committed especially cruel manner perpetrator inflicts mental anguish physical abuse victim death citations omitted ental anguish includes victim uncertainty ultimate fate ibid case concluded ample evidence powell suffered mental anguish prior death arizona also found evidence sufficient conclude crime committed especially depraved manner pointing defined depraved murder one perpetrator relishes murder evidencing debasement perversion additionally found pecuniary gain circumstance present examining walton mitigating evidence regarding substance abuse youth concluded mitigating circumstances sufficient call lenience finally conducted proportionality review determined walton death sentence proportional sentences imposed similar cases appeals ninth circuit held arizona death penalty statute unconstitutional reasons submitted walton case see adamson ricketts en banc granted certiorari resolve conflict settle issues importance generally administration death penalty affirm judgment arizona ii walton first argument every finding fact underlying sentencing decision must made jury judge arizona scheme constitutional jury decides aggravating mitigating circumstances present given case trial judge imposes sentence based findings contrary walton assertion however argument constitution requires jury impose sentence death make findings prerequisite imposition sentence soundly rejected prior decisions clemons mississippi repeatedly rejected constitutional challenges florida death sentencing scheme provides sentencing judge jury hildwin florida spaziano florida proffitt florida hildwin example stated case presents us question whether sixth amendment requires jury specify aggravating factors permit imposition capital punishment florida ultimately concluded sixth amendment require specific findings authorizing imposition sentence death made jury distinctions walton attempts draw florida arizona statutory schemes persuasive true florida jury recommends sentence make specific factual findings regard existence mitigating aggravating circumstances recommendation binding trial judge florida trial assistance jury findings fact respect sentencing issues trial judge arizona walton also suggests florida aggravating factors sentencing considerations arizona elements offense observed poland arizona arizona capital punishment case aggravating circumstances separate penalties offenses standards guide making choice alternative verdicts death life imprisonment thus arizona capital sentencing scheme judge finding particular aggravating circumstance convict defendant require death penalty failure find particular aggravating circumstance acquit defendant preclude death penalty citation omitted holding cabana bullock provides support conclusion cabana held appellate constitutionally make enmund florida finding defendant killed attempted kill intended kill first instance noted enmund affect state definition substantive offense even capital offense citations omitted eighth amendment prohibits execution defendants supply new element crime capital murder must found jury id enmund places substantive limitation sentencing like limits need enforced jury constitution require enmund finding proved element offense capital murder require jury make finding conclude state required denominate aggravating circumstances elements offense permit jury determine existence circumstances thus conclude arizona capital sentencing scheme violate sixth amendment iii also unpersuasive walton contention arizona statute violates eighth fourteenth amendments imposes defendants burden establishing preponderance evidence existence mitigating circumstances sufficiently substantial call leniency see true refused countenance restrictions mitigating circumstances may considered deciding whether impose death penalty see lockett ohio plurality opinion walton complaining arizona statute practice excludes consideration particular type mitigating evidence follow lockett progeny state precluded specifying mitigating circumstances proved indeed lockett expressly reserved opinion whether violates constitution require defendants bear risk nonpersuasion existence mitigating circumstances capital cases plurality opinion martin ohio upheld ohio practice imposing capital defendant burden proving preponderance evidence acting self defense allegedly committed murder leland oregon upheld capital case requirement defense insanity proved beyond reasonable doubt defendant see also rivera delaware patterson new york rejected argument state violated due process imposing preponderance evidence standard defendant prove affirmative defense extreme emotional disturbance basic principle cases controls result case long state method allocating burdens proof lessen state burden prove every element offense charged case prove existence aggravating circumstances defendant constitutional rights violated placing burden proving mitigating circumstances sufficiently substantial call leniency mullaney wilbur contrary mullaney struck due process grounds state statute required convicted murder defendant negate element offense murder order entitled sentence voluntary manslaughter burden placed defendants arizona capital sentencing scheme therefore decline adopt constitutional imperative rule require consider mitigating circumstances claimed defendant unless state negated preponderance evidence neither mills maryland lend support walton position reversed death sentence concluded jury instructions given sentencing phase likely led jury believe particular mitigating circumstance considered unless jurors unanimously agreed circumstance present focus whether reasonable jurors read instructions require unanimity possible consequences understanding course judge alone sentencer mills therefore beside point furthermore mills suggest forbidden require individual juror weighing claimed mitigating circumstance balance convinced mind mitigating circumstance proved preponderance evidence contrary jury case instructed find mitigating circumstances proved preponderance evidence neither petitioner mills opinion hinted constitutional objection aspect instructions therefore reject walton argument arizona allocation burdens proof capital sentencing proceeding violates constitution iv walton insists provides shall impose death penalty one aggravating circumstances found mitigating circumstances held insufficient call leniency statute creates unconstitutional presumption death proper sentence recent decisions blystone pennsylvania boyde california foreclose submission blystone rejected challenge jury instruction based pennsylvania statute requiring imposition death penalty aggravating circumstances found exist mitigating circumstances present pointed requirement individualized sentencing capital cases satisfied allowing jury consider relevant mitigating evidence omitted concluded pennsylvania statute preclude sentencer considering type mitigating evidence consonant principle addition concluded statute impermissibly mandatory term understood woodson north carolina roberts louisiana automatically impose death upon conviction certain types murder true arizona statute similarly boyde california supra upheld pattern jury instruction stated conclude aggravating circumstances outweigh mitigating circumstances shall impose sentence death see emphasis omitted specifically noted constitutional requirement unfettered sentencing discretion jury free structure shape consideration mitigating evidence effort achieve rational equitable administration death penalty quoting franklin lynaugh plurality opinion walton arguments case persuasive made blystone boyde walton final contention especially heinous cruel depraved aggravating circumstance interpreted arizona courts fails channel sentencer discretion required eighth fourteenth amendments walton contends arizona factor fails pass constitutional muster reasons found oklahoma especially heinous atrocious cruel aggravating circumstance invalid maynard cartwright georgia outrageously wantonly vile horrible inhuman circumstance invalid godfrey georgia maynard cartwright godfrey georgia however distinguishable two constitutionally significant respects first maynard godfrey defendant sentenced jury jury either instructed bare terms relevant statute terms nearly vague see neither jury given constitutional limiting definition challenged aggravating factor second neither case state appellate reviewing propriety death sentence purport affirm death sentence applying limiting definition aggravating circumstance facts presented points crucial conclusion reached maynard see equally crucial decision case jury final sentencer essential jurors properly instructed regarding facets sentencing process enough instruct jury bare terms aggravating circumstance unconstitutionally vague face import holdings maynard godfrey logic cases place context sentencing trial judge trial judges presumed know law apply making decisions arizona narrowed definition especially heinous cruel depraved aggravating circumstance presume arizona trial judges applying narrower definition irrelevant statute may narrow construction factor moreover even trial judge fails apply narrowing construction applies improper construction constitution necessarily require state appellate vacate death sentence based factor rather held clemons mississippi state appellate may determine whether evidence supports existence aggravating circumstance properly defined may eliminate consideration factor altogether determine whether remaining aggravating circumstances sufficient warrant death penalty federal asked review state application individual statutory aggravating mitigating circumstance particular case must first determine whether statutory language defining circumstance vague provide guidance sentencer federal must attempt determine whether state courts defined vague terms done whether definitions constitutionally sufficient whether provide guidance sentencer case serious argument arizona especially heinous cruel depraved aggravating factor facially vague arizona sought give substance operative terms find construction meets constitutional requirements arizona stated crime committed especially cruel manner perpetrator inflicts mental anguish physical abuse victim death ental anguish includes victim uncertainty ultimate fate rejected state argument six days powell suffered shot constituted cruelty within meaning statute pointed limited cruelty circumstance prior cases situations suffering victim intended foreseeable killer maynard cartwright expressed approval definition limit oklahoma especially heinous atrocious cruel aggravating circumstance murders involving kind torture physical abuse also noted construction one constitutionally acceptable construction given arizona cruelty aspect arizona aggravating circumstance virtually identical construction approved maynard arizona construction also similar construction florida especially heinous atrocious cruel aggravating circumstance approved proffitt florida joint opinion stewart powell stevens recognizing proper degree definition aggravating factor nature susceptible mathematical precision conclude definition given especially cruel provision arizona constitutionally sufficient gives meaningful guidance sentencer fault state statement crime committed especially depraved manner perpetrator relishes murder evidencing debasement perversion shows indifference suffering victim evidences sense pleasure killing see walton nevertheless contends heinous cruel depraved factor applied arbitrary manner applied distinguish case cases death sentence imposed effect walton challenges proportionality review arizona erroneous asks us overturn decline concluded challenged factor construed arizona courts manner furnishes sufficient guidance sentencer proportionality review constitutionally required lawfully may presume walton death sentence wantonly freakishly imposed thus sentence disproportionate within recognized meaning eighth amendment mccleskey kemp pulley harris furthermore arizona plainly undertook proportionality review good faith found walton sentence proportional sentences imposed cases similar constitution require us look behind conclusion judgment arizona affirmed ordered footnotes defendant capacity appreciate wrongfulness conduct conform conduct requirements law significantly impaired impaired constitute defense prosecution defendant unusual substantial duress although constitute defense prosecution defendant legally accountable conduct another provisions participation relatively minor although minor constitute defense prosecution defendant reasonably foreseen conduct course commission offense defendant convicted cause create grave risk causing death another person defendant age course opinion also rejected walton challenge repeated hoover walton actually shot powell pointed jury instructed felony premeditated murder entered general verdict trial required arizona law independently make determination mandated enmund florida tison arizona walton killed intended kill attempted kill participant felony recklessly indifferent killing powell held trial enmund determination based substantial evidence argued powell must realized driven tucson desert might harmed pointed powell obviously frightened enough ramsey tried reassure harmed noted walton hoover forced powell lie ground argued fate eventually walton marched powell desert gun rope surely making powell realize going tied left unharmed observed powell frightened urinated concluded walton reference never seen man pee pants constituted evidence callous fascination murder demonstrated indifference suffering victim sense pleasure taken killing justice scalia concurring part concurring judgment today petitioner says state sentencing unconstitutionally broad discretion sentence death instead imprisonment unconstitutionally narrow discretion sentence imprisonment instead death observer unacquainted death penalty jurisprudence habit thinking logically probably say positions right ultimate choice capital sentencing point unitary one choice death imprisonment one discretion whether select one yet lack discretion whether select imaginary observer surprised discover eighth amendment jurisprudence past years petitioner strong chance winning antagonistic claims simultaneously evidenced facts four members think win see post blackmun dissenting en banc panel federal appeals held essentially identical case see adamson ricketts shows jurisprudence logic long since parted ways write separately say explain longer seek apply one two incompatible branches jurisprudence agree analysis petitioner first claim concur opinion parts ii second claim concur judgment course past years assumed role rulemaking body administration capital sentencing effectively requiring capital sentencing proceedings separate adjudication guilt see woodson north carolina plurality opinion gregg georgia opinion announcing judgment dictating type extent discretion sentencer must must see lockett ohio plurality opinion godfrey georgia requiring certain categories evidence must must admitted see skipper south carolina booth maryland undertaking minute inquiries wording jury instructions ensure jurors understand duties labyrinthine code rules see caldwell mississippi mills maryland prescribing procedural forms sentencing decisions must follow see mckoy north carolina case began development eighth amendment jurisprudence furman georgia per curiam come stand principle sentencer discretion return death sentence must constrained specific standards death penalty inflicted random capricious fashion furman overturned sentences two men convicted sentenced death state courts murder one man convicted sentenced rape statutes gave jury complete discretion impose death crimes standards factors deem relevant brief per curiam gave reasons decision say imposition carrying death penalty cases constitute cruel unusual punishment violation eight fourteenth amendments uncover reasons underlying decision furman one must turn opinions five justices forming majority wrote separately none joined opinion opinions two rested broadest possible ground death penalty cruel unusual punishment circumstances see brennan concurring marshall concurring third justice douglas rested narrower ground discretionary capital sentencing systems petitioners sentenced operated manner discriminated racial minorities unpopular groups see concurring opinion critical opinions however light subsequent development jurisprudence justices stewart white focused infrequency seeming randomness discretionary state systems death penalty imposed justice stewart wrote death sentences cruel unusual way struck lightning cruel unusual people convicted rapes murders many reprehensible petitioners among capriciously selected random handful upon sentence death fact imposed eighth fourteenth amendments tolerate infliction sentence death legal systems permit unique penalty wantonly freakishly imposed concurring opinion footnotes omitted furman led least adopt new capital sentencing procedures eliminated discretion previously conferred impose withhold death penalty see gregg georgia supra upheld eighth amendment challenge three guided discretion schemes representative measures varying forms required sentencer consider certain specified aggravating mitigating circumstances reaching decision principal case gregg georgia supra opinion announcing judgment read furman mandat ing discretion afforded sentencing body matter grave determination whether human life taken spared discretion must suitably directed limited minimize risk wholly arbitrary capricious action joint opinion stewart powell stevens jj emphasis added see also white joined burger rehnquist concurring judgment proffitt florida joint opinion stewart powell stevens jj white joined burger rehnquist concurring judgment jurek texas joint opinion stewart powell stevens jj white joined burger rehnquist concurring judgment since cases routinely read furman standing proposition channeling limiting sentencer discretion imposing death penalty fundamental constitutional requirement maynard cartwright insisted furnish sentencer clear objective standards provide specific detailed guidance make rationally reviewable process imposing sentence death godfrey georgia footnotes omitted twice since actually invalidated death sentence inadequate guidance sentencer see maynard supra godfrey supra repeatedly incanted principle unbridled discretion unacceptable penry lynaugh capital sentencing procedures must constrain guide sentencer discretion ensure death penalty meted arbitrarily capriciously california ramos state must establish rational criteria narrow decisionmaker judgment mccleskey kemp death penalty statutes must structured prevent penalty administered arbitrary unpredictable fashion california brown cases require procedural protections ensure death penalty imposed consistent rational manner barclay florida stevens concurring judgment must administer death penalty way rationally distinguish individuals death appropriate sanction spaziano florida see also zant stephens eddings oklahoma pulley harris booth maryland mills maryland lowenfield phelps shortly introducing doctrine requiring constraints sentencer discretion impose death penalty began developing doctrine forbidding constraints sentencer discretion decline impose mccleskey kemp supra emphasis deleted second doctrine better word completely exploded whatever coherence notion guided discretion responded furman making death mandatory punishment certain categories murder invalidated statutes woodson north carolina roberts louisiana plurality concluding sentencing process must accord least consideration character record individual offender woodson supra plurality opinion responded furman leaving sentencer discretion spare capital defendants limiting kinds mitigating circumstances sentencer consider invalidated statutes lockett ohio plurality saying eighth amendment requires sentencer precluded considering mitigating factor aspect defendant character record circumstances offense defendant proffers basis sentence less death opinion burger joined stewart powell stevens jj emphasis omitted added reasoning pluralities cases later adopted majority see sumner shuman embracing woodson eddings oklahoma supra embracing lockett decisions course basis furman one might supposed curtailing eliminating discretion sentencing capital defendants consistent furman positively required many course suppose woodson lockett emerged uniform treatment offenders guilty capital crime required eighth amendment prohibited announcing proposition entral application eighth amendment determination contemporary standards regarding infliction punishment woodson supra pointing steady growth discretionary sentencing systems previous years systems found unconstitutional furman woodson supra pluralities cases determined defendant sentenced death unless sentencer convinced unconstrained unguided evaluation offender offense death appropriate punishment lockett supra short practice furman described discretion sentence death pronounced constitutionally prohibited woodson lockett renamed discretion sentence death pronounced constitutionally required elaborated years since principle prevented imposing minimal constraints sentencer discretion decide offender eligible death penalty nonetheless receive first place repeatedly rebuffed efforts channel discretion specifying objective factors exercise rest misdescribe sweep principle say mitigating evidence must considered sentencer assume objective criterion mitigating precisely forbidden cases proudly announce constitution effectively prohibits excluding sentencing decision aspect defendant character record circumstance surrounding crime defendant poor deprived childhood rich spoiled childhood great love victim race pathological hatred victim race limited mental capacity brilliant mind make great contribution society kind mother despised mother whatever evidence bearing crime criminal defense wishes introduce rendering defendant less deserving death penalty must admitted evidence considered sentencer see lockett supra character prior record age lack specific intent cause death relatively minor part crime eddings oklahoma supra inter alia defendant parents divorced years old lived mother without rules supervision hitchcock dugger inter alia petitioner one seven children poor family earned living picking cotton father died cancer petitioner fond affectionate uncle skipper south carolina petitioner prisoner awaiting trial may channel sentencer consideration evidence defining weight significance receive example making evidence mental retardation relevant insofar bears question whether crime committed deliberately see penry lynaugh rather must let sentencer give effect mckoy north carolina mitigating evidence whatever manner pleases jury assigned sentencing task may state attempt impose structural rationality sentencing decision requiring mitigating circumstances found unanimously see juror must allowed determine give effect perception evidence favors leniency regardless whether perceptions command assent even comprehensible jurors acknowledge perhaps inherent tension line cases line stemming furman mccleskey kemp blackmun dissenting rather like saying perhaps inherent tension allies axis powers world war ii refer two lines pursuing twin objectives spaziano florida rather like referring twin objectives good evil reconciled pursuant furman order achieve rational equitable administration death penalty franklin lynaugh require channel sentencer discretion clear objective standards provide specific detailed guidance godfrey georgia next breath however say state channel sentencer discretion consider relevant mitigating information offered defendant mccleskey kemp supra emphasis added sentencer must enjoy unconstrained discretion decide whether sympathetic factors bearing defendant crime indicate deserve sentenced death penry lynaugh supra latter requirement quite obviously destroys whatever rationality predictability former requirement designed achieve attempted explain contradiction saying two requirements serve different functions first serves narrow according rational criteria class offenders eligible death penalty second guarantees offender actually sentenced death without individualized assessment appropriateness death penalty penry lynaugh supra see also zant stephens individualized assessment issue one asserts constitution permits condemnation en masse issue whether process individualized sentencing determination society may specify factors relevant whether may insist upon rational scheme sentencers making individualized determinations apply standard precisely issue involved furman less held furman aggravating factors sought individualized determination must specified advance able refer defendants qualify factors class death eligibles among actually receive death selected basis unspecified mitigating factors held lockett mitigating factors sought individualized determination must specified advance equally able refer defendants qualify factors class mercy eligibles among actually receive mercy selected basis unspecified aggravating factors words classification versus individuation explain opposite treatment aggravating mitigating factors merely one way describing result opposite treatment involved merely setting standards individualized determinations question remains constitution demands aggravating standards mitigating standards accorded opposite treatment impossible understand since individualized determination unitary one defendant deserve death crime one says sentencer must able answer whatever reason deems morally sufficient indeed whatever reason one jurors deems morally sufficient becomes impossible claim constitution requires consistency rationality among sentencing determinations preserved strictly limiting reasons sentencer say yes fact randomness freakishness even evident system requires aggravating factors found great detail since permits sentencers accord different treatment whatever mitigating reasons wish two different murderers two murderers whose crimes found similar gravity difficult enough justify furman requirement long permitted allow random mitigation impose simultaneously requiring random mitigation absurd agree justice white observation lockett rule represents sheer furman outright negation principle guided discretion brought us path regulating capital sentencing procedure first place lockett ohio opinion concurring part dissenting part concurring judgments simultaneous pursuit contradictory objectives necessarily produces confusion chief justice pointed elaborating doctrine gone pillar post result sort reasonable predictability upon legislatures trial courts appellate courts must necessity rely completely sacrificed lockett ohio supra rehnquist dissenting repeatedly past years state legislatures courts adopted procedures satisfy furman principle told years later measures run afoul lockett principle said furman unconstrained discretion capital sentencing unacceptable see furman georgia douglas concurring stewart concurring white concurring later struck mandatory schemes adopted response furman constrained sentencing discretion see woodson north carolina sustained specific state sentencing schemes provided constitutionally necessary degree guided discretion form objective sentencing criteria see proffitt florida jurek texas later struck schemes required sentencer confine factors contained objective criteria see hitchcock dugger florida penry lynaugh texas encouraged adopt important additional safeguard arbitrariness requiring specific jury findings supporting sentencing decision gregg georgia joint opinion stewart powell stevens jj later made findings impossible mitigating circumstances thus meaningless whole prohibiting requirement jury agree mitigating circumstances mckoy north carolina state lawmakers lesson decision nearly worthless guide future though approve seemingly even require sentencing procedure today may well retroactively prohibit tomorrow jurisprudence containing contradictory commands discretion impose death penalty must limited discretion impose death penalty must virtually unconstrained vast number procedures support plausible claim one direction conscientious counsel obliged make claims conscientious judges consider thus arisen capital cases permanent stay applications petitions certiorari review adverse judgments round direct collateral review alleging novel defects sentencing procedure arising permutation either furman lockett state courts attempting give effect contradictory principles jurisprudence reluctant condemn offender without virtual certainty error committed often suspend normal rules procedural bar give ear new claim sentencer discretion adverse ruling typically gives rise yet another round federal habeas review time concluded may well announced yet another new rule justify yet another appeal state courts effects uncertainty unpredictability evident alone even though see tip mountainous iceberg since granting certiorari mckoy north carolina supra february first term capital cases certiorari granted received petitions certiorari capital cases granted held cases granted term held case alone small wonder statistics show capital punishment system approved many democratic vote people theoretically approved constitutional seems unable function except parody swift even timely justice may convicted murderers death row executed since furman decision naacp legal defense educational fund death row executions carried occurred average eight years commission capital crime see carnes stewart summary capital punishment data viii unpublished report alabama assistant attorneys general file harvard law school library cited powell commentary view time us reexamine efforts area measure text constitutional provision purportedly based ii eighth amendment made applicable fourteenth amendment see robinson california provides excessive bail shall required excessive fines imposed cruel unusual punishments inflicted decision furman georgia arguably supported text already described see part supra critical opinions justice stewart justice white case rested ground discretionary capital sentencing made death sentence random infrequent event among capital offenders wanto freakis justice stewart colorfully put imposition become cruel unusual far discern occasion explore subject probably meant unusual punishment eighth amendment say text originally prohibit traditional form punishment rarely imposed opposed form punishment traditional phrase bear former meaning moreover since beginning century death penalty mandatory convictions prescribed see bedau death penalty america ed bowers executions america said furman interpretation phrase contradicted clear references permissible death penalty constitution see amend amend therefore willing adhere precedent established furman line cases hold state adopts capital punishment given crime make mandatory eighth amendment bars giving sentencer unfettered discretion select recipients requires establish advance convey sentencer governing standard see maynard cartwright godfrey georgia line cases however another matter far discern bears relation whatever text eighth amendment mandatory imposition death without sentencing discretion crime traditionally punished death possibly violate eighth amendment cruel neither absolutely particular crime unusual neither sense type penalty traditional sense rarely freakishly imposed quite immaterial abandoned practice automatically sentencing death offenders guilty capital crime favor separate procedure sentencer given opportunity consider appropriateness death individual case see woodson north carolina plurality opinion still less relevant mandatory capital sentencing alleged touch contemporary community values regarding administration justice citation omitted aware argument see roberts louisiana plurality opinion mandatory capital sentencing schemes may suffer defects characterize absolutely discretionary schemes mandatory systems argument goes juries frequently acquit offenders find guilty believe deserve death penalty crime jury nullification occurs without benefit guidance standards state result arbitrary capricious imposition death sentences struck furman one obvious problem argument proves much invalidating furman time validates woodson juries ignore instructions determining guilt mandatory capital sentencing scheme reason think similarly chafe clear objective standards provid ing specific detailed guidance godfrey georgia supra footnotes omitted furman requires furman approach must preferred since facially implausible risk arbitrariness arising juries ignoring instructions greater risk arbitrariness giving instructions theory unusualness adopted furman tenuous enough used invalidate explicitly conferred standardless sentencing discretion unwilling extend theory situations sentencer denied discretion basis conjecture found nowhere else law juries systematically disregard oaths despite fact think woodson lockett find proper basis constitution claim adherence doctrine stare decisis reject claim lightly must reject initial fundamental problem described detail woodson lockett wrong woodson lockett rationally irreconcilable furman led inquiry whether either furman wrong know apply precisely apply furman wanted continue say case case degree narrowing sufficient achieve constitutional objective enunciated furman know objective case impossible achievement continue say case case sort restraints upon sentencer discretion unconstitutional know constitution positively favors constraints furman stare decisis command impossible since possibly guided seem incompatible principles must reject one plainly error objectives doctrine stare decisis furthered adhering event doctrine exists purpose introducing certainty stability law protecting expectations individuals institutions acted reliance existing rules described principle frustrated purpose outset contradicting basic thrust much death penalty jurisprudence laying traps unwary generating fundamental uncertainty law shows signs ending even diminishing adhere principle lacking support constitutional text plainly unworthy respect stare decisis accordingly case future vote uphold eighth amendment claim sentencer discretion unlawfully restrict iii turn finally petitioner eighth amendment claims present case respect furman claim agree analysis conclusion join portions opinion aggravating circumstance found exist case murder committed especially heinous cruel depraved manner cruelty defined involving infliction mental anguish physical abuse depravity defined involving relishing murder victim suffering defines reasonable specificity certain elements distinguish offense murders precise enough view guide sentencer enable review sentence petitioner claim two respects arizona procedure deprived sentencer discretion consider mitigating circumstances reasons stated believe claim correct eighth amendment violation therefore concur part concur judgment justice stevens contends purpose furman merely narrow group crimes sentencer unconstrained discretion applied undefined point near tip pyramid murder base pyramid consisting murders apex consisting particular type crime murder defined minute detail post dissenting opinion however hint furman jurisprudence attempt determine constitutes critical line tip pyramid assess whether either elements crime alone sufficient bring statute line case aggravating factors whatever need specified whether aggravating factors sufficient purpose read cases enacting statutes certainly read requiring aggravating factors specified whenever sentencer given discretion means confining sentencers discretion giving something specific look rather leaving wander large among aggravating circumstances produces consistency result unachievable matter narrowly crime defined left take account aggravating factor sure held aggravating factor duplicate factor already required definition crime see lowenfield phelps circumstances sentencer discretion still focused confined never allowed sentencers given complete discretion without requisite finding aggravating factors redefines furman permit latter require assessment imagine basis sufficiently narrow level pyramid murder reached shall prepared reconsider evaluation woodson lockett justice brennan justice marshall joins dissenting cavalier application today longstanding eighth amendment doctrines developed course two decades careful sustained inquiry added host recent examples crabbed application doctrine death penalty context see blystone pennsylvania boyde california cf saffle parks sawyer smith ante suggests losing sight responsibility ensure ultimate criminal sanction meted accordance constitutional principle join justice blackmun dissenting opinions today decisions also adhere view death penalty circumstances cruel unusual punishment fatal constitutional infirmity punishment death treats members human race nonhumans objects toyed discarded thus inconsistent fundamental premise cruel unusual punishments clause even vilest criminal remains human possessed common human dignity penalty subjects individual fate forbidden principle civilized treatment guaranteed clause therefore hold ground alone death today cruel unusual punishment prohibited clause justice kind obviously less shocking crime new official murder far offering redress offense committed society adds instead second defilement first gregg georgia dissenting opinion citations omitted even believe death penalty wholly inconsistent constitutional principle human dignity agree concern human dignity lying core eighth amendment requires decision impose death penalty made assessment propriety individual case process accords significance relevant facets character record individual offender circumstances particular offense excludes consideration fixing ultimate punishment death possibility compassionate mitigating factors stemming diverse frailties humankind treats persons convicted designated offense uniquely individual human beings members faceless undifferentiated mass subjected blind infliction penalty death woodson north carolina opinion stewart powell stevens past gone extraordinary measures ensure prisoner sentenced executed afforded process guarantee much humanly possible sentence imposed whim passion prejudice mistake concurring today decisions reflect anything opposing concern able execute prisoners little interference possible established eighth amendment doctrine opinion applies also lewis jeffers post justice scalia separate opinion dismissing settled principle underlying lockett ohio based assertion doctrinal principle reconciled underlying furman georgia reflects misdescription apparent misunderstanding doctrine justice scalia concern lockett principle commanded explicit text eighth amendment long rejected well established eighth amendment proscription cruel unusual punishments must draw meaning evolving standards decency mark progress maturing society trop dulles see weems lockett furman principles speak different concerns underlying notion civilized punishment lockett rule flows primarily amendment core concern human dignity see woodson north carolina opinion stewart powell stevens jj whereas furman principle reflects understanding amendment commands punishment meted wholly arbitrary irrational manner cases applied principles together insis capital punishment imposed fairly reasonable consistency eddings oklahoma emphasis added see penry lynaugh see generally post stevens dissenting justice blackmun justice brennan justice marshall justice stevens join dissenting view two arizona statutory provisions pertinent run afoul established eighth amendment principle capital defendant entitled individualized sentencing determination involves consideration relevant mitigating evidence first requirement sentencer may consider mitigating circumstances proved preponderance evidence second provision defendant bears burden establishing mitigating circumstances sufficiently substantial call leniency also conclude arizona heinous cruel depraved aggravating circumstance construed arizona provides meaningful guidance sentencing authority consequence unconstitutional therefore dissent affirmance jeffrey alan walton sentence death past years death penalty jurisprudence consistently stressed importance process one permits particularized consideration relevant aspects character record convicted defendant imposition upon sentence death woodson north carolina plurality opinion procedure required process accords significance relevant facets character record individual offender circumstances particular offense excludes consideration fixing ultimate punishment death possibility compassionate mitigating factors stemming diverse frailties humankind plurality stated lockett ohio capital sentencer may precluded considering mitigating factor aspect defendant character record circumstances offense defendant proffers basis sentence less death emphasis original eddings oklahoma majority held sentencer state appellate review may determine weight given relevant mitigating evidence may give weight excluding evidence consideration moreover insisted substance well form lockett must respected see penry lynaugh enough simply allow defendant present mitigating evidence sentencer sentencer must also able consider give effect evidence imposing sentence holdings two closely related principles emerge first qualitative difference death penalties necessitates greater degree reliability determination death appropriate punishment specific case woodson north carolina plurality opinion second particularized sentencing procedure mandated eighth amendment requires sentencer allowed consider aspect defendant character record circumstances offense defendant proffers basis sentence less death lockett ohio plurality opinion defendant allowed unrestricted opportunity present relevant mitigating evidence capital sentencing procedure deemed sufficiently reliable satisfy constitutional standards said eddings rule lockett recognizes consistency produced ignoring individual differences false consistency today upholds arizona statute excludes sentencer consideration mitigating circumstances defendant failed prove preponderance evidence places upon capital defendant burden demonstrating mitigating circumstances proved sufficiently substantial call leniency plurality makes effort explain provisions consistent eighth amendment principles announced woodson lockett progeny indeed plurality analysis issues includes virtually discussion capital cases majority discuss demonstrably inapposite rather plurality relies analogous cases involve death penalty analysis thereby ignores thought settled principles regarding distinctive nature capital sentencing arizona capital sentencing statute flatly provides burden establishing existence mitigating circumstances included subsection section defendant arizona construed statute require mitigating circumstances must proved preponderance evidence see state mcmurtrey doubt provision arizona law excludes sentencer consideration relevant mitigating evidence might affect determination whether death penalty appropriate exclusion evidence unsupported decisions serves legitimate state interest plurality analyze case within framework established eighth amendment decisions rather plurality relies almost exclusively noncapital cases upholding state right place upon defendant burden proving affirmative defense see ante reliance cases misplaced however since decisions rest upon premise wholly inapplicable capital sentencing context patterson new york explained justification noncapital case allowing burden persuasion affirmative defenses placed upon defendant rather state due process clause see put new york choice abandoning defenses undertaking disprove existence order convict crime otherwise within constitutional powers sanction substantial punishment instance murder conviction present law new york proved beyond reasonable doubt defendant intentionally killed another person act disputed state may constitutionally criminalize punish state nevertheless chooses recognize factor mitigates degree criminality punishment think state may assure fact established reasonable certainty recognize mitigating circumstance require state prove nonexistence case fact put issue judgment cumbersome expensive inaccurate emphasis added makes sense analyze petitioner claim lockett error drawing analogous cases outside sphere capital sentencing developing requirement individualized capital sentencing unlimited presentation relevant mitigating evidence purported rely principles applicable criminal prosecutions generally instead eighth amendment jurisprudence explicitly proceeded premise death punishment different sanctions kind rather degree woodson north carolina plurality opinion suggest principles announced lockett eddings applicable insofar consistent constitutional rules governing noncapital cases deprive decisions significance application preponderance standard context especially problematic light fact existence mitigating factor frequently factual issue yes answer given see stebbing maryland marshall dissenting denial certiorari statute example lists first mitigating circumstance fact defendant capacity appreciate wrongfulness conduct conform conduct requirements law significantly impaired petitioner offered evidence childhood sexual abuse presumably individual suffers treatment wholly unaffected time rare individual deeply traumatized impairment furnishes complete defense actions question whether individual capacity behave lawfully impaired one degree proposition preponderance standard however encourages sentencer conclude unless vaguely defined threshold significance reached evidence abuse consequent impairment considered indeed appears arizona applied statute fashion see state wallace find neither defendant difficult earlier years use various drugs affected capacity conform requirements law constitute mitigating factors cert denied state rossi intoxication duress mitigating circumstance unless substantial state woratzeck state nash state acknowledged degree mental impairment argued significant enough mitigating circumstance cert denied arizona simply held duress impairment falls threshold given reduced weight final stage sentencing process aggravating mitigating circumstances balanced rather held duress impairment falls threshold mitigating factor therefore misleading many instances characterize arizona rejection proffered mitigating evidence determination evidence credited trial judge instead may acting upon belief defendant impairment though proved significant within meaning statute thus arizona law sentencing judge entitled give weight mitigating evidence ground evidence mitigating enough guise burden proof statute provides mitigating evidence considered even trial judge rejection particular mitigating circumstance based credibility determinations application preponderance standard unwarranted mitigating evidence fails meet standard unreliable proper place sentencing decision decisions punishment like decisions guilt innocence often based cumulative effect several pieces evidence one fully persuasive problems preponderance standard compounded defendant presents several possible mitigating factors trial judge might convinced mitigating circumstances yet forced conclude matter law mitigation weigh aggravating factors arizona articulated two closely related justifications placing upon capital defendant burden proving mitigating circumstance exists asserted acts tend show mitigation peculiarly within knowledge defendant state smith require state negate every mitigating circumstance place impermissible burden state state watson cert denied today never identified state interest outweighs capital defendant right unrestricted presentation mitigating evidence even interest exist however interests advanced state support preponderance standard withstand scrutiny state justifications without force criminal defendant offers affirmative defense trial determine guilt innocence jury decision affirmative defense binary choice either defense accepted since jury acceptance defense automatically results acquittal conviction lesser charge state may suffer real prejudice defense established basis minimally persuasive evidence state practical opportunity rebut especially difficult anticipate defenses particular individual may offer contrast capital sentencer believes certain mitigating evidence persuasive value meet preponderance standard sentencer simply may give evidence reduced weight weight proportional persuasiveness final balancing stage legitimate interest served forbidding sentencer give evidence effect arizona rule issue falls well within prohibition announced lockett progeny statute defines wide range relevant mitigating evidence evidence degree persuasiveness proved preponderance given effect capital sentencer rule finds support precedents serves legitimate governmental interest therefore conclude arizona death penalty statute construed arizona impermissibly limits sentencer consideration relevant mitigating evidence thereby violates eighth amendment also believe constitution forbids state arizona place upon capital defendant burden proving mitigating circumstances sufficiently substantial call leniency aggravating circumstance established arizona statute mandates death deemed appropriate penalty unless defendant proves otherwise statutory provision view establishes presumption death violation eighth amendment arizona repeatedly indicated defendant mitigating evidence deemed sufficiently substantial call leniency mitigating factors outweigh aggravation sustained requirement ground hen issue guilt settled question punishment remains due process offended requiring already guilty defendant carry burden showing receive leniency state watson mitigating aggravating circumstances equipoise statute requires trial judge impose capital punishment assertion sentence death may imposed case runs directly counter eighth amendment requirement capital sentence must rest upon determination death appropriate punishment specific case woodson north carolina plurality opinion plurality takes approach makes little effort ground holding eighth amendment jurisprudence support position plurality cites two recent capital cases blystone pennsylvania boyde california reliance even precedents misplaced statutes upheld cases provided death penalty imposed determination aggravating circumstances outweigh mitigating circumstances present particular crime committed particular defendant mitigating circumstances blystone neither boyde blystone challenged statute require capital sentence aggravating mitigating factors evenly balanced decisions simply speak issue posed arizona statute whether state permissibly may place upon capital defendant burden demonstrating sentence death appropriate plurality attempt explain arizona may require capital sentence case aggravating mitigating circumstances evenly balanced indeed plurality even acknowledge dispositive question instead offers conclusory assertion long state method allocating burdens proof lessen state burden prove every element offense charged case prove existence aggravating circumstances defendant constitutional rights violated placing burden proving mitigating circumstances sufficiently substantial call leniency ante one searches vain hint limiting principle may state require death penalty imposed whenever aggravating factor established mitigating circumstances substantially outweigh aggravation may state statute provide death sentence presumptively appropriate whenever aggravating circumstance proved presumption rebutted showing mitigating circumstances extraordinarily great formulations appear satisfy plurality test state required establish aggravating circumstance mitigating evidence excluded sentencer consideration right present mitigating evidence rendered meaningless rules guide sentencer deliberations virtually ensure mitigating evidence change outcome like plurality analysis requirement mitigating circumstances proved preponderance evidence approval provision appears rest upon analogy mitigating evidence capital sentencing affirmative defenses noncapital cases noncapital cases course given broad latitude sacrifice precision predictability imposing determinate sentences restricting defendant ability present evidence mitigation excuse similarly free make capital punishment mandatory specified crimes prohibit introduction mitigating evidence declare evidence irrelevant plurality reasoning today unassailable objection sentencing scheme permitted defendant argue death penalty inappropriate case placed upon shoulders burden persuading sentencer however repeatedly recognized qualitative difference death penalties calls greater degree reliability death sentence imposed lockett ohio plurality opinion capital cases punishment directly related personal culpability defendant penry lynaugh see way principles squared capital sentencing scheme provides doubtful cases resolved favor sentence death therefore conclude constitution bars arizona placing upon capital defendant burden proving mitigating circumstances sufficiently substantial call leniency ii godfrey georgia considered georgia outrageously wantonly vile horrible inhuman aggravating circumstance plurality concluded nothing words standing alone implies inherent restraint arbitrary capricious infliction death sentence person ordinary sensibility fairly characterize almost every murder outrageously wantonly vile horrible inhuman two terms ago maynard cartwright unanimously struck oklahoma death sentence based part upon state especially heinous atrocious cruel aggravating circumstance noted language oklahoma aggravating circumstance issue gave guidance outrageously wantonly vile horrible inhuman language jury returned verdict godfrey arizona statute issue today lists aggravating circumstance conclusion defendant committed offense especially heinous cruel depraved manner circumstance arizona consistently held hese terms considered disjunctive presence one three factors aggravating circumstance state beaty cert denied sentencing phase present case state relied primarily medical evidence detailing injuries victim powell suffered regained consciousness shooting trial judge sentencing order stated found walton committed offense extremely heinous cruel depraved manner app specify basis finding independent review capital sentence arizona held circumstance supported evidence powell suffering shooting since walton foreseen powell survive wound found however murder especially cruel since powell suffered great mental anguish car ride fate uncertain final march desert fate become certain also indicated finding depravity supported walton comment hours shooting never seen man pee pants ibid sustaining walton sentence death majority offers two principal grounds upon says godfrey maynard may distinguished first majority points capital sentencing arizona conducted trial judge presumed aware limiting construction announced state ante second majority notes arizona purport ed affirm death sentence applying limiting definition aggravating circumstance facts presented ibid view neither factors supports decision affirm petitioner death sentence unlike jury sentencing judge presumed know law stated controlling opinions state even aggravating circumstance vague face sentence valid judge discretion suitably channeled instructions provided appellate construction statute trial judge familiarity state opinions however serve narrow discretion body case law articulates construction aggravating circumstance coherent consistent meaningfully limits range homicides aggravating factor apply one therefore expect majority analyze arizona decisions issued prior imposition petitioner sentence january order determine whether judge sentenced walton death presumed acted basis constitutionally sufficient limiting construction aggravating factor however cites arizona cases justifying omission refusal state proportionality review ante thus distinguishes godfrey maynard ground arizona sentencing judges presumed read guided opinions arizona yet insists matter principle barred determining whether opinions furnish constitutionally adequate guidance seems strange unusual reasoning indeed majority examined arizona application especially heinous cruel depraved aggravating circumstance conclude state placed meaningful limitations scope factor arizona attempted define statutory terms state knapp cert denied stated words heinous cruel depraved meanings clear person average intelligence understanding offered definitions culled webster third new international dictionary heinous defined hatefully shockingly evil grossly bad cruel disposed inflict pain esp wanton insensate vindictive manner sadistic depraved marked debasement corruption perversion deterioration ibid explained legislature intended include aggravating circumstance killing wherein additional circumstances nature enumerated set crime apart usual norm ibid state gretzler cert denied arizona reviewed prior decisions construing factor explained cruelty involves pain distress visited upon victims heinous depraved go mental state attitude perpetrator reflected words actions also listed five factors prior cases supported finding particular killing especially heinous depraved factors apparent relishing murder killer infliction gratuitous violence victim needless mutilation victim senselessness crime helplessness victim disavow knapp definitions contrary cited definitions approval hold murder deemed especially heinous depraved one five factors present rather stated circumstances specific factors discussed separate crime norm first degree murders reverse finding crime committed especially heinous cruel depraved manner emphasis added principles announced gretzler failed place meaningful limitations application aggravating circumstance since decision gretzler arizona continued identify new factors support finding particular murder heinous depraved example held heinousness depravity shown part age victim see state wallace fact defendant killed two children admittedly dispute posed danger additional evidence shockingly evil state mind state zaragoza victim case years old cert denied fact murder committed eliminate witness see state correll state gillies cert denied state smith fact victim kind killer state fisher cert denied fact killer used special bullets designed inflict greater tissue damage state rossi intentionally repeatedly fir ed destructive weapon victim state chaney fact victim bound extent far greater necessary achieve purpose preventing escape state villafuerte cert denied killer total disregard human life state correll arizona purported announce necessary conditions finding heinousness depravity instead observed previous cases approved findings heinous depraved conduct perpetrator acted gratuitous violence relished killing way acted fashion acts set apart norm first degree murderers state johnson emphasis added indeed appear first degree murders arizona define especially heinous depraved murders fall outside aggravating circumstance likely covered aggravating factor thus find heinousness depravity basis gratuitous violence murderer uses force necessary kill victim see state summerlin state ceja murder deemed cruel killer uses insufficient force victim consequently dies lingering death see state chaney determination particular murder senseless support finding depravity murder eliminate witness also depraved murder pecuniary gain covered separate aggravating circumstance evidence showing defendant killed hatred victim desire revenge may used buttress conclusion killer relished crime see state jeffers cert denied state wallace determination crime senseless therefore heinous depraved based part fact defendant steadfastly maintains reason justification case defendant argued remorse crime constituted mitigating factor must also conclude arizona construction cruelty become broad imposes meaningful limits sentencer discretion state knapp used dictionary definition regard cruel disposed inflict pain esp wanton insensate vindictive manner sadistic might provided starting point limiting construction meaningfully distinguished egregious murders maynard expressed apparent approval construction limit aggravating circumstance murders involving torture serious physical abuse accord godfrey georgia plurality opinion quarrel proposition murder preceded deliberate infliction gratuitous suffering blameworthy one arizona later decisions however made clear murder especially cruel norm rather exception application circumstance expanded cover murder victim shown experienced fear uncertainty ultimate fate arizona required defendant must deliberately delayed protracted killing purpose causing victim mental anguish required period fear uncertainty extended duration made findings cruelty cases period brief indeed explaining sorts murder especially cruel arizona repeatedly referred killings victim conscious see state beaty suffer pain distress victim must conscious time offense committed evidence inconclusive consciousness factor cruelty exist cert denied explained victim especially cruel killing contrasted individual killed instantly without knowing happened state gillies cert denied believe aggravating factor requires victim conscious aware danger measurable period killing occurs said provide principled way distinguish case death penalty imposed many cases godfrey georgia plurality opinion entirely baffled majority assertion construction aggravating circumstance virtually identical ante requirement torture serious physical abuse majority correct asserting absence evidence contrary trial judge sentenced petitioner death must presumed aware manner statutory terms construed arizona judge familiarity applicable precedents however possibly served guide channel sentencing discretion entire body arizona case law like bare words statute provided principled way distinguish case homicides capital sentences imposed decisions godfrey maynard standards trial sentenced walton death constitutionally deficient relying clemons mississippi majority also contends state appellate may determine whether evidence supports existence aggravating circumstance properly defined arizona sought give substance operative terms find construction meets constitutional requirements ante thus holds even sentencing procedure failed satisfy eighth amendment walton sentence nevertheless may stand appellate applying satisfactory limiting construction independently determined murder especially cruel three independent reasons accept conclusion factor prior decisions arizona failed provide sufficient guidance trial judge appellate conclusion murder fell within narrow definition cruel eliminate possibility trial balancing aggravating mitigating circumstances relied factors lying outside narrow definition affirmance walton death sentence depends arizona determination murder especially cruel also upon conclusion mitigating factors outweigh aggravation adhere view expressed separate opinion clemons three justices joined appellate incapable finding balancing aggravating mitigating factors manner sufficiently reliable satisfy eighth amendment indeed arizona treatment record case hardly provides support members bare majority entrust task capital sentencing appellate tribunal state conclusion murder especially cruel based large part assertions powell clearly terrified time stopped one assailants tried reassure hurt final march desert victim begged defendant kill discussion includes citations record furnishes frail support characterization events appears based primarily misreading state appellate brief given institutional limitations appellate courts generally questionable treatment facts arizona case agree appellate sentencing sufficiently reliable meet standards eighth amendment clemons stated insofar federal constitution concerned state appellate may determine whether capital sentence warranted sentencing proceeding tainted constitutional error whether particular state possesses power however matter state law arizona taken obviously inconsistent positions question whether error capital sentencing necessitates remand whether error may cured appellate independent review compare state wallace set aside finding pecuniary gain must allow trial another opportunity exercise sentencing discretion reweigh remaining aggravating mitigating factors state rossi believe trial judge used wrong standard determining applying mitigating factors must vacate defendant death sentence remand resentencing state mcmurtrey trial judge imposed upon defendant onerous burden proof determining existence mitigating circumstances matter remanded resentencing state gillies remanded resentencing three four aggravating circumstances found trial judge invalidated appeal state rockwell invalidated two three aggravating circumstances concluded mitigating evidence outweighed remaining aggravating factor state poland finding murders committed especially heinous cruel depraved manner set aside findings aggravating circumstances affirmed mitigating circumstances sufficiently substantial call leniency shown state james struck one aggravating factor upheld death sentence ground another aggravating circumstance mitigating circumstances sufficiently substantial call leniency cert denied state blazak one aggravating factor invalidated death sentence upheld ven absence aggravating circumstance still enough aggravating circumstances overcome mitigating circumstances cert denied simply clear whether arizona regards power uphold capital sentence basis comparison aggravating mitigating circumstances sentencing judge relied part upon invalid aggravating factor case capital cases arizona performed independent review sentencing process arizona consistently maintained unlike appellate review crimes duty review death penalty conduct independent examination record determine whether death penalty properly imposed state schad cert denied independent review performed arizona capital cases however quite different appellate reweighing term used clemons arizona review proceed premise errors sentencing process cured state determination death appropriate penalty rather review historically explained additional level protection defendant means ensuring trial judge sentence death subjected rigorous scrutiny see state richmond gravity death penalty requires painstakingly examine record determine whether erroneously imposed cert denied arizona law trial sentencer appellate review intended ensure functions properly carried indeed arizona resisted analogies independent review initial sentencing process independent duty review perform appellate trial hold therefore arizona procedure single indivisible hearing instead resembles trial issue life death followed utilization appellate process state rumsey today majority indicates however arizona independent review may serve substitute constitutionally adequate sentencing proceeding despite fact state believe error occurred regarded affirming sentencing decision lower whether arizona possesses power reweigh evidence order cure error clear purport exercise power case suggest trial judge finding circumstance constitutionally suspect arizona made independent determinations aggravating mitigating circumstances findings plainly intended supplement rather replace findings trial distinction difference clear present majority opinion caldwell mississippi caldwell invalidated capital sentence imposed jury incorrectly informed verdict recommendation stated constitutionally impermissible rest death sentence determination made sentencer led believe responsibility determining appropriateness defendant death rests elsewhere reasoning apply jury sentence death may stand jury believed merely recommending capital punishment arizona independent determination death appropriate cure error appellate believed incorrectly simply affirming constitutionally valid sentence imposed trial judge thus even accept majority conclusion appellate resentencing cure constitutional defects procedure agree arizona purported exercise power conclude walton death sentence may stand despite constitutional defects sentencing process enough majority say constitution permits state appellate reweigh valid aggravating mitigating factors majority must also prepared assert reasonable assurance arizona chosen affirm death sentence basis reweighing recognized procedure defective given arizona inconsistent treatment reweighing issue assertion possible holding appellate independent review save sentence even trial judge received insufficient guidance majority affirms decision arizona never made even believed appellate resentencing cure error arizona properly regarded sentencer case still conclude petitioner sentence must vacated aggravating factor construed state sweeps broadly includes within reach virtually every homicide appellate application statutory language simply provides meaningful basis defendant walton singled death indeed conclusion sentence imposed appellate invalid follows almost necessarily belief sentencing constitutionally flawed defective nature trial sentence stem judge failure abide limitations announced arizona rather sentencing procedure defective even assuming trial judge correctly applied relevant precedents decisions failed articulate constitutionally sufficient narrowing construction statutory language two years trial imposition sentence affirmance arizona purport narrow scope aggravating factor therefore difficult see error cured appellate application legal rules trial judge presumed followed majority concedes must statutory language unconstitutionally vague godfrey maynard majority therefore recognizes validity factor depends upon construction given arizona see adequacy construction determined examination body state precedents examination majority conspicuously declines undertake arizona utterly failed place meaningful limits application aggravating factor sentence based part upon circumstance stand iii earlier term majority severely restricted regime federal habeas corpus previously helped safeguard constitutional rights criminal defendants including accused capital crimes see butler mckellar saffle parks today majority serves notice capital defendants longer expect direct review considered examination constitutional claims adjudicating claims mean life death convicted inmates arizona elsewhere majority makes perfunctory effort reconcile holding prior eighth amendment jurisprudence majority display recognition decision concerning constitutionality state capital punishment scheme may require understanding manner scheme actually operates perhaps current majority grown weary explicating members doubt choose regard hypertechnical rules currently govern administration death penalty certainly hoped scrupulously protect constitutional rights capital defendants even without prospect meaningful federal oversight good wishes however substitute careful review today decision either abdication constitutional role silent repudiation previously settled legal principles dissent eddings instructed remand state courts must consider relevant mitigating evidence weigh evidence aggravating circumstances plurality assert however analysis consistent lockett progeny see ante contrast justice scalia provides fifth vote affirmance expresses view question whether arizona statute comports standards announced prior decisions argues instead violation lockett immaterial lockett overruled eight members agree lockett remains good law shall attempt today detailed exposition eighth amendment jurisprudence wish however make two brief observations first justice scalia argument new citation rehnquist dissent lockett demonstrates see ante rule capital sentencer must allowed consider relevant mitigating evidence vigorously opposed intensely debated eventually accepted members common starting point analysis individual cases see hitchcock dugger scalia writing unanimous history suggests considerations stare decisis support continued application lockett rule indicates well eighth amendment jurisprudence patently irrational abruptly discarded second observation relates integrity adjudicative process validity lockett presumed throughout case arguments raised justice scalia addressed petitioner brief argument disturbing decisive vote capital case turn single justice rejection line authority parties controversy eight members accepted first time member recognized connection state greater power eliminate consideration mitigating evidence lesser power place burden proof defendant see lockett ohio rehnquist concurring part dissenting part continue believe constitution offended state refusal consider mitigating factors infirmity shifting burden persuasion defendant chooses consider plurality lockett stated recognize noncapital cases established practice individualized sentences rests constitutional commands public policy enacted statutes given imposition death public authority profoundly different penalties avoid conclusion individualized decision essential capital cases one might ask happen defendant argued proved mitigating circumstance moderate impairment presumably arizona respond mitigating factor recognized arizona law prior decisions indicating certain proffered evidence impairment duress constitute mitigating factor relied language arizona statute requires impairment significant duress substantial see state rossi rejection mitigating evidence ground support mitigating circumstance defined statute however reconciled hitchcock dugger held capital defendant restricted proof statutory mitigating factors see eddings oklahoma sentencer state appellate review may determine weight given mitigating evidence may give weight excluding evidence consideration arizona recognized determination aggravating mitigating factor exists require factor given particular weight statute require number aggravating circumstances weighed number mitigating circumstances one mitigating circumstance example may sufficiently substantial outweigh two aggravating circumstances converse also true one aggravating circumstance substantial two mitigating circumstances sufficiently substantial call leniency state brookover arizona decision place burden proving mitigation defendant saved fact state required prove aggravating circumstances beyond reasonable doubt see mccleskey kemp contrast carefully defined standards must narrow sentencer discretion impose death sentence constitution limits state ability narrow sentencer discretion consider relevant evidence might cause decline impose death sentence emphasis original see adamson ricketts en banc cert pending see also jackson dugger cert denied see state mccall state mauro state moorman state lagrand cert denied state mcmurtrey cert denied state asserted interest ensuring reliable evidence considered final balancing stage course provides basis requirement death imposed whenever mitigating evidence found reliable evenly balances aggravating circumstances fact presumption death triggered finding aggravating circumstance save statute see sumner shuman proof aggravating factor es provide adequate basis determine whether death sentence appropriate sanction particular case capital defendant still entitled individualized consideration mitigating evidence see penry lynaugh enough simply allow defendant present mitigating evidence sentencer sentencer must also able consider give effect evidence imposing sentence franklin lynaugh concurring judgment indeed right sentencer consider weigh relevant mitigating evidence meaningless unless sentencer also permitted give effect consideration defense counsel objected introduction testimony ground walton foreseen powell suffering shooting since walton reasonably believed powell dead trial judge overruled objection ground testimony understand going testify certainly goes cruelty tr arizona stated trial finding cruelty supported mental torment victim prior shooting rather events took place afterwards trial judge however made finding cruelty found generally walton committed offense extremely heinous cruel depraved manner trial judge sentence therefore stand three statutory terms given constitutionally sufficient limiting constructions majority relies holding pulley harris arguing proportionality review constitutionally required ante reliance misplaced pulley held long safeguards initial sentencing proceeding adequately limit sentencer discretion constitution require additional protection proportionality review appellate see pulley simply irrelevant adequacy initial sentencing point issue definitions strikingly similar jury instructions given maynard oklahoma jury told term heinous means extremely wicked shockingly evil atrocious means outrageously wicked vile cruel means pitiless designed inflict high degree pain utter indifference enjoyment sufferings others cartwright maynard majority acknowledges albeit obliquely instructions unconstitutionally vague see ante tenth circuit assessment oklahoma jury instructions equally applicable definitions used knapp vague terms suddenly become clear defined reference vague terms cartwright maynard also noted concept cruelty involves physical pain also mental distress visited upon victims quoting state clark cert denied see indeed arizona courts willing find particular murder committed unworthy purpose purpose state tison cert denied arizona found two aggravating circumstances murders committed pecuniary gain since object killings obtain automobile murders senseless therefore especially heinous depraved part victims impeded theft car killings therefore defendants plan see also state correll pecuniary gain circumstance established fact defendant accomplice carefully executed armed robbery murders part scheme robbery factor proved depravity indicated senselessness murders murders unnecessary accomplish robbery arizona identified particularly reprehensible motives view support finding heinousness depravity see state murder demonstrate manliness reflects manifest disregard fundamental principles upon society based cert denied state mccall finding supported part fact mutilation victims bodies designed message warn people cert denied taken together state decisions reflect indisputable fact legitimate reason commit murder provide principled basis identifying blameworthy killings see state bracy cert denied state carriger cert denied state correll see state rossi defendant fired fatal shot victim leaned bedroom wall pleaded defendant stating money shot want evinces victim mental anguish see also state villafuerte cert denied state harding cert denied state zaragoza cert denied state focusing fear uncertainty experienced powell prior shooting asserts without question victim suffered excruciatingly cruel death suggests powell mental anguish equivalent torture brief respondent minimize thomas powell suffering bears noting state arizona seeks confine jeffrey walton penitentiary set date execution put death seems strange state suggest individual tortured made contemplate prospect demise discussion appellate reweighing clemons technically dictum vacated clemons death sentence stated remand mississippi might reweigh valid aggravating mitigating circumstances apply limiting construction challenged aggravating factor concluded state law power arizona first assertion supported following passage testimony sharold ramsey powell acting pulled pullout got car scared know remember told scared hurt app brief arizona state asserted without record citation ride powell begged abductors spare keep money car appellee answering brief cr assertion made less passing state argument cruelty focused powell mental physical suffering shooting arizona opinion asserts powell begged life walton alone desert rather car ride beforehand one line testimony supports statement trial judge case found walton rather hoover fired fatal shot issue evidence conflicting jury apparently unable agree see concurring opinion brief arizona state argued finding reviewed deferentially ground trial better situated assess impact evidence decision overturned absent abuse discretion appellee answering brief arizona purport make independent determination point stated find substantial evidence support trial judge finding defendant killed victim see clemons nothing opinion intended convey impression state appellate courts required necessarily engage reweighing harmless error analysis errors occurred capital sentencing proceeding holding procedures constitutionally see also state smith elimination aggravating factors absence mitigating circumstances mandate remand trial resentencing emphasis added citing cases mitigating factors absent affirmance death sentence require reweighing properly characterized analysis affirming judgment arizona case stated availability appellate review including reweighing aggravating mitigating circumstances make appellate process part single continuing sentencing proceeding arizona noted role strictly appellate trial indeed appeal need taken life imprisonment imposed appellate reweighing work defendant advantage arizona rumsey emphasis added also referred trial judge sole decisionmaker proceeding one difference trial judge found murder committed extremely heinous cruel depraved manner appellate specified murder cruel arizona prior decisions placed meaningful limits concept cruelty difference might significant fact however state construction cruelty placed significant constraints sentencer discretion whether sentencer trial judge arizona breadth circumstance particularly unfortunate light statutory requirement defendant order avoid death penalty must demonstrate mitigating factors sufficiently substantial call leniency presumption death triggered whenever aggravating circumstance found arizona expansive construction factor ensures aggravating circumstance plausibly discovered virtually murder justice stevens dissenting join justice blackmun dissent write separately dissent holding part ii comment justice scalia opinion holds part ii opinion person entitled jury determination facts must established death penalty may imposed convinced sixth amendment requires opposite conclusion arizona provides first degree murder includes premeditated murder felony murder punishable death life imprisonment provided section requires guilt murder established judge conduct hearing determine statutory aggravating mitigating circumstances exist state bears burden proving existence aggravating circumstance evidence admissible arizona rules evidence section provides arizona explained none statutory aggravating circumstances found present statute prohibits death penalty one statutory aggravating circumstance found mitigation exists statute requires death penalty aggravating mitigating circumstances found given case trial judge review must determine whether mitigating circumstances sufficiently substantial call leniency state gretzler citations omitted cert denied thus arizona law construed arizona highest murder punishable death sentence least one statutory aggravating circumstance proved case sentencing judge found two aggravating circumstances petitioner committed offense consideration receipt expectation receipt anything pecuniary value committed especially heinous cruel depraved manner issue narrow question whether findings petitioner commission offense arizona law elements capital crime therefore must determined jury question posed sixth amendment became law answer clear time english jury role determining critical facts homicide cases entrenched jury power determine whether defendant guilty homicide also degree offense moreover jury role finding facts determine homicide defendant eligibility capital punishment particularly well established throughout history jury determined homicide defendants subject capital punishment making factual determinations many related difficult assessments defendant state mind time bill rights adopted jury right make determinations unquestioned history trial jury criminal cases frequently told sufficient present purposes say time constitution written jury trial criminal cases existence england several centuries carried impressive credentials traced many magna carta preservation proper operation protection arbitrary rule among major objectives revolutionary settlement expressed declaration bill rights century blackstone write law therefore wisely placed strong barrier presentment trial jury liberties people prerogative crown necessary preserving admirable balance constitution vest executive power laws prince yet power might dangerous destructive constitution exerted without check control justices oyer terminer occasionally named crown might france turkey imprison dispatch exile man obnoxious government instant declaration pleasure founders english law excellent forecast contrived truth every accusation whether preferred shape indictment information appeal afterwards confirmed unanimous suffrage twelve equals neighbors indifferently chosen superior suspicion jury trial came america english colonists received strong support guarantees jury trial federal state constitutions reflect profound judgment way law enforced justice administered right jury trial granted criminal defendants order prevent oppression government wrote constitutions knew history experience necessary protect unfounded criminal charges brought eliminate enemies judges responsive voice higher authority framers constitutions strove create independent judiciary insisted upon protection arbitrary action providing accused right tried jury peers gave inestimable safeguard corrupt overzealous prosecutor compliant biased eccentric judge defendant preferred judgment jury tutored perhaps less sympathetic reaction single judge beyond jury trial provisions federal state constitutions reflect fundamental decision exercise official power reluctance entrust plenary powers life liberty citizen one judge group judges footnotes omitted ii justice scalia announces separate opinion henceforth regard woodson north carolina roberts louisiana lockett ohio godfreyv georgia cases adopting reasoning binding precedent major premise rejection capital sentencing jurisprudence professed inability reconcile cases central holding furman georgia although flaws justice scalia opinion least appropriate explain major premise simply wrong cases justice scalia categorically rejects today rest theory risk arbitrariness condemned furman function size class convicted persons eligible death penalty furman decided georgia included virtually defendants convicted forcible rape armed robbery kidnaping murder class opinions furman observed large class cases race irrelevant factors unquestionably played unacceptable role determining defendants die live however size class may narrowed reduce sufficiently risk arbitrariness even jury given complete discretion show mercy evaluating individual characteristics individuals found death eligible elaborate empirical study administration georgia capital sentencing statute considered mccleskey kemp illustrates validity theory opinion case observed one lessons baldus study exist certain categories extremely serious crimes prosecutors consistently seek juries consistently impose death penalty without regard race victim race offender georgia narrow class defendants categories danger arbitrary discriminatory imposition death penalty significantly decreased eradicated dissenting opinion cases homicide every category contained within pyramid consequences flowing perpetrator increase severity cases proceed base apex death penalty applying cases contained space beneath apex reach category case must pass three planes division base apex first plane division base separates homicide cases fall category murder plane established legislature statutes defining terms murder voluntary manslaughter involuntary manslaughter justifiable homicide deciding whether given case falls plane function trier facts limited finding facts plane remains fixed unless moved legislative act second plane separates murder cases penalty death possible punishment plane established statutory definitions aggravating circumstances function factfinder limited making determination whether certain facts established except treason aircraft hijacking given case may move second plane unless least one statutory aggravating circumstance exists code ann third plane separates cases penalty death may imposed cases shall imposed absolute discretion factfinder place given case plane impose death plane established factfinder establishing plane factfinder considers evidence extenuation mitigation aggravation punishment code ann final limitation imposition death penalty resting automatic appeal procedure determines whether penalty death imposed influence passion prejudice arbitrary factor whether statutory aggravating circumstances supported evidence whether sentence death excessive disproportionate penalty imposed similar cases code ann performance function may cause remove case death penalty category never opposite result purpose statutory aggravating circumstances limit large degree completely factfinder discretion unless least one ten statutory aggravating circumstances exists death penalty may imposed event exists least one statutory aggravating circumstance death penalty may imposed factfinder discretion decline without giving reason waters state hawes state fleming state making decision penalty factfinder takes consideration circumstances sentence phases trial circumstances relate offense defendant case may pass second plane area death penalty authorized unless least one statutory aggravating circumstance found however plane passed regardless number statutory aggravating circumstances found long least one beyond plane case enters area factfinder discretion facts circumstances case determine terms metaphor whether case passes third plane area death penalty imposed perhaps rule allows specific facts particular cases make difference life death rule consistent tradition adjudication provides less certainty legislative guidelines mandate death penalty whenever specified conditions met guidelines fit nicely napoleonic code drafted accord continental approach formulation legal rules however nation long experience mandatory death sentences history recounted length opinion woodson entirely ignored justice scalia today led us reject rules remain convinced approach adopted weems trop dulles followed justice stewart justice powell thereafter repeatedly endorsed wiser far reactionary position espoused justice scalia today although arizona aggravating circumstances separate penalties offenses poland arizona double jeopardy challenge operate statutory elements capital murder arizona law absence sentence unavailable cf mcmillan pennsylvania minimum term required upon finding sentencing penalty within range already available without special finding cabana bullock requiring finding intent comply eighth amendment establish new element state definition capital offense long distinguished jury determination whether defendant guilty engaged certain criminal conduct sentencing judge consideration fullest information possible concerning defendant life characteristics williams new york aggravating circumstances case concern offense offender indeed arizona courts findings aggravation rested entirely evidence presented jury guilt phase trial arizona disregarded testimony aggravation offered sentencing hearing irrelevant sentencing hearing tr testimony victim shooting bear cruelty cf spaziano florida florida jury recommended life sentencing judge found defendant felony record aggravating factor hildwin florida per curiam florida jury recommended death sentencing judge found defendant felony record status prisoner time crime aggravating factors white death penalty scope capital defendant right jury trial notre dame omitted emphasis added right jury trial criminal matters strongly guarded times difficulty danger apprehended violence partiality judges appointed rown suits king subject disputes one individual another quoting blackstone commentaries view earlier practices see generally green jury english law homicide duncan louisiana although english ruler longer bears upon judges today voice higher authority elected judges often appear listen many voters generally favor capital punishment far less information particular trial jurors sifted patiently details relevant admissible evidence else account disturbing propensity elected judges impose death sentence time time notwithstanding jury recommendation life florida jury provides advisory sentence judge imposes sentence capital case judges imposed death jury recommendation life death sentences entered december december see also radelet rejecting jury imposition death penalty florida judges likely juries favor imposition death sentence liberties england subsist long palladium remains sacred inviolate open attacks none hardy make also secret machinations may sap undermine introducing new arbitrary methods trial justices peace commissioners revenue courts conscience however convenient may appear first doubtless arbitrary powers well executed convenient yet let remembered delays little inconveniences forms justice price free nations must pay liberty substantial matters inroads upon sacred bulwark nation fundamentally opposite spirit constitution though begun trifles precedent may gradually increase spread utter disuse juries questions momentous concern blackstone commentaries furman characterized mandating discretion afforded sentencing body matter grave determination whether human life taken spared discretion must suitably directed limited minimize risk wholly arbitrary capricious action gregg georgia joint opinion stewart powell stevens example justice scalia incorrectly assumes holdings woodson north carolina roberts louisiana rest entirely view mandatory death penalty statutes pose risk arbitrariness supported decision furman georgia see ante fact consideration one three grounds invalidating north carolina louisiana mandatory statutes see woodson justice scalia ironically overlooks traditional reason supporting conclusion woodson growing societal consensus mandatory imposition death penalty history mandatory death penalty statutes thus reveals practice sentencing death persons convicted particular offense rejected unduly harsh unworkably rigid two crucial indicators evolving standards decency respecting imposition punishment society jury determinations legislative enactments point conclusively repudiation automatic death sentences