california ramos argued february decided july guilt phase respondent california trial jury returned verdict guilt count murder punishable california law death life imprisonment without possibility parole alleged special circumstance commission murder robbery found true jury guilt phase addition requiring jury instructions separate penalty phase aggravating mitigating circumstances california law requires trial judge inform jury sentence life imprisonment without possibility parole may commuted governor sentence includes possibility parole briggs instruction penalty phase respondent trial judge instructions included briggs instruction jury returned verdict death california affirmed respondent conviction reversed death penalty concluding briggs instruction violated federal constitution remanded case new penalty phase held federal constitution prohibit instruction permitting capital sentencing jury consider governor power commute life sentence without possibility parole pp possible commutation life sentence impermissibly inject element speculative jury consideration bringing jury attention possibility defendant may returned society briggs instruction invites jury assess whether defendant someone whose probable future behavior makes undesirable permitted return society thus focusing jury defendant probable future dangerousness jury consideration factor future dangerousness upheld jurek texas giving briggs instruction result diminution reliability sentencing decision kind condemned gardner florida held death sentence may imposed basis presentence investigation report containing information defendant opportunity explain deny briggs instruction gives jury accurate information defendant counsel aware preclude defendant offering evidence argument regarding governor power commute life sentence pp briggs instruction constitutionally infirm asserted ground deflects jury focus central task undertaking individualized sentencing determination sense instruction focuses attention defendant future dangerousness jury deliberation individualized also california sentencing system ensures jury information regarding individual characteristics defendant offense briggs instruction simply places jury additional element considered along many factors determining sentence appropriate circumstances defendant case affect jury determination beck alabama distinguished finally informing jury governor power commute sentence life without possibility parole merely accurate statement potential sentencing alternative corrects misconception conveyed phrase life imprisonment without possibility parole pp briggs instruction unconstitutional fails inform jury also governor power commute death sentence even assuming arguendo briggs instruction impermissible effect skewing jury toward imposing death penalty instruction governor power commute death sentences well life sentences restore neutrality increase reliability sentencing choice fact advising jurors death verdict theoretically modifiable thus final may incline approach sentencing decision less appreciation gravity choice moral responsibility reposed sentencers thus instruction disclosing governor power commute death sentence may operate defendant distinct disadvantage moreover briggs instruction alone impermissibly impel jury toward voting death sentence information relevant factually accurate properly jury trial judge instructions emphasize role factor jury decision pp conclusion eighth fourteenth amendments prohibit instruction regarding governor power commute life sentence override judgment state legislatures capital sentencing juries permitted consider matter free provide greater protections criminal justice system federal constitution requires pp delivered opinion burger white powell rehnquist joined marshall filed dissenting opinion brennan joined parts ii iii iv blackmun joined post blackmun post stevens post filed dissenting opinions harley mayfield deputy attorney general california argued cause petitioner brief george deukmejian attorney general robert philibosian chief assistant attorney general daniel kremer assistant attorney general jay bloom deputy attorney general ezra hendon appointment argued cause filed brief respondent justice delivered opinion case requires us consider constitutionality eighth fourteenth amendments instructing capital sentencing jury regarding governor power commute sentence life without possibility parole finding constitutional defect instruction reverse decision california remand proceedings night june respondent marcelino ramos participated robbery restaurant employed janitor respondent codefendant placed food order respondent entered restaurant went behind front counter work area ostensibly purpose checking work schedule emerged gun respondent directed two employees working night restaurant refrigerator ordered face back wall respondent entered emerged refrigerator several times inquiring one point keys restaurant safe entered last time instructed two employees kneel floor refrigerator remove hats pray respondent struck head shot wounding one killing respondent charged robbery attempted murder murder defense counsel presented evidence guilt phase respondent trial jury returned verdict guilt counts california law murder punishable death life imprisonment without possibility parole alleged special circumstance found true jury guilt phase separate penalty phase respondent presented extensive evidence attempt mitigate punishment addition requiring jury instructions aggravating mitigating circumstances california law requires trial judge inform jury sentence life imprisonment without possibility parole may commuted governor sentence includes possibility parole penalty phase respondent trial judge delivered following instruction instructed state constitution governor empowered grant reprieve pardon commutation sentence following conviction crime power governor may future commute modify sentence life imprisonment without possibility parole lesser sentence include possibility parole tr appeal california affirmed respondent conviction reversed death sentence concluding briggs instruction required cal penal code ann west supp violated federal constitution cal found two constitutional flaws instruction first invites jury consider factors foreign task deciding whether defendant live die according state instead assuring decision rests consideration character record individual offender circumstances particular offense woodson north carolina instruction focuses jury attention governor power render defendant eligible parole jury vote execute injects entirely speculative element capital sentencing determination second concluded instruction also inform jury governor possesses power commute death sentence leaves jury mistaken belief way keep defendant streets condemn death accordingly remanded new penalty phase granted certiorari reverse remand ii challenging constitutionality briggs instruction respondent presses upon us two central arguments advanced california decision contends capital sentencing jury may constitutionally consider possible commutation briggs instruction unconstitutionally misleads jury selectively informing governor power commute one sentencing choices respondent first argument raises two related distinct concerns power commutation speculative factor injects unacceptable level unreliability capital sentencing determination consideration factor deflects jury constitutionally mandated task basing penalty decision character defendant nature offense address points parts infra respondent second argument part iii infra turning specific contentions respondent first argument however examine general principles guided pronouncements regarding proper range considerations sentencer capital case well separate opinions majority individual justices recognized qualitative difference death punishments requires correspondingly greater degree scrutiny capital sentencing determination ensuring death penalty meted arbitrarily capriciously principal concern procedure state imposes death sentence substantive factors state lays jury basis imposing death determined defendant falls within category persons eligible death penalty gregg georgia companion cases reviewed capital sentencing schemes five determine whether schemes cured constitutional defects identified furman georgia gregg joint opinion justices stewart powell stevens concluded georgia sentencing scheme met concerns furman providing bifurcated proceeding instruction factors considered meaningful appellate review death sentence satisfied procedural safeguards suitably directed limited jury discretion minimize risk wholly arbitrary capricious action joint opinion undertake dictate state particular substantive factors deemed relevant capital sentencing decision indeed joint opinion observed seems clear problem channeling jury discretion alleviated jury given guidance regarding factors crime defendant state representing organized society deems particularly relevant sentencing decision emphasis added see also deference owe decisions state legislatures federal system enhanced specification punishments concerned peculiarly questions legislative policy erroneous suggest however imposed substantive limitations particular factors capital sentencing jury may consider determining whether death appropriate gregg joint opinion suggested excessively vague sentencing standards might lead arbitrary capricious sentencing patterns condemned furman moreover woodson north carolina plurality concluded state must structure capital sentencing procedure permit consideration individual characteristics offender crime principle individualization extended lockett ohio plurality determined eighth fourteenth amendments require sentencer capital case precluded considering mitigating factor aspect defendant character record circumstances offense defendant proffers basis sentence less death emphasis original footnotes omitted finally gardner florida plurality held death sentence may imposed basis presentence investigation report containing information defendant opportunity explain deny beyond limitations noted deferred state choice substantive factors relevant penalty determination view briggs instruction run afoul constraints addressing respondent specific arguments find unpersuasive suggestion possible commutation life sentence must held constitutionally irrelevant sentencing decision speculative element jury consideration point find jurek texas controlling texas capital sentencing system upheld jurek limits capital homicides intentional knowing murders committed five situations jury finds defendant guilty one five categories murder jury must answer three statutory questions jury concludes state proved beyond reasonable doubt question answered affirmative death sentence imposed approving statutory scheme joint opinion jurek rejected contention second statutory question requiring consideration defendant future dangerousness unconstitutionally vague involved prediction human behavior course easy predict future behavior fact determination difficult however mean made indeed prediction future criminal conduct essential element many decisions rendered throughout criminal justice system sentencing authority must predict convicted person probable future conduct engages process determining punishment impose sentenced prison predictions must made parole authorities task texas jury must perform answering statutory question issue thus basically different task performed countless times day throughout american system criminal justice essential jury possible relevant information individual defendant whose fate must determine texas law clearly assures evidence adduced footnotes omitted diminution reliability sentencing decision kind condemned gardner florida gardner reversed death sentence imposed part basis confidential portion presentence investigation report disclosed either defendant counsel potential sentencer might rested decision part erroneous inaccurate information defendant opportunity explain deny need reliability capital sentencing dictated death penalty reversed gardner provides support respondent briggs instruction gives jury accurate information defendant counsel aware preclude defendant offering evidence argument regarding governor power commute life sentence closely related yet distinct respondent speculativeness argument contention briggs instruction constitutionally infirm deflects jury focus central task respondent argues commutation instruction diverts jury undertaking kind individualized sentencing determination woodson north carolina constitutionally indispensable part process inflicting penalty death already noted supra functional matter briggs instruction focuses jury attention whether particular defendant one whose possible return society desirable sense jury deliberation individualized instruction invites jury predict much future governor might defendant might released society contention injecting factor jury deliberations constitutes departure kind individualized focus required capital sentencing decisions implicitly rejected decision jurek indeed noting consideration defendant future dangerousness inquiry common throughout criminal justice system joint opinion justices stewart powell stevens observed essential jury possible relevant information individual defendant whose fate must determine texas law clearly assures evidence adduced texas scheme california sentencing system ensures jury information regarding individual characteristics defendant offense including nature circumstances crime defendant character background history mental condition physical condition cal penal code ann west supp respondent also relies beck alabama support contention briggs instruction undermines jury responsibility make individualized sentencing determination beck held jury capital case must permitted consider verdict guilt noncapital offense evidence support verdict disapproving alabama statute precluded giving lesser included offense charge capital cases concluded chief flaw statute interjects irrelevant considerations factfinding process diverting jury attention central issue whether state satisfied burden proving beyond reasonable doubt defendant guilty capital crime failure give lesser included offense instruction diverted jury two ways jury might convict defendant capital offense belief guilty crime given mandatory nature death penalty alabama law jury might acquit think defendant crime warrants death according respondent briggs instruction like removal lesser included offense option beck predisposes jury act without regard whether death penalty called facts unconvinced briggs instruction constrains jury sentencing choice manner condemned beck restricting jury beck two sentencing alternatives conviction capital offense acquittal essence placed artificial alternatives jury unavailability third option thereby created risk unwarranted conviction contrast briggs instruction limit jury two sentencing choices neither may appropriate instead places jury additional element considered along many factors determining sentence appropriate circumstances defendant case point however fundamental difference nature determination issue beck nature choice penalty phase noted beck identified chief vice alabama failure provide lesser included offense option deflecting jury attention central issue whether state satisfied burden proving beyond reasonable doubt defendant guilty capital crime emphasis added returning conviction jury must satisfy necessary elements particular crime proved beyond reasonable doubt fixing penalty however similar central issue jury attention may diverted jury finds defendant falls within legislatively defined category persons eligible death penalty respondent jury determining truth alleged special circumstance jury free consider myriad factors determine whether death appropriate punishment sense jury choice life death must individualized constitution require jury ignore possible factors process selecting defendants actually sentenced death zant stephens omitted noted essential effect briggs instruction inject sentencing calculus consideration akin aggravating factor future dangerousness texas scheme see supra element simply one countless considerations weighed jury seeking judge punishment appropriate individual defendant rehnquist concurring judgment short concern beck regarding risk unwarranted conviction simply directly translatable deliberative process capital jury engages determining appropriate penalty single determinative issue apart general concern penalty tailored individual defendant offense finally emphasize informing jury governor power commute sentence life without possibility parole merely accurate statement potential sentencing alternative describe sentence life imprisonment without possibility parole simply inaccurate state law governor possesses authority commute sentence lesser sentence includes possibility parole briggs instruction thus corrects misconception supplies jury accurate information deliberation selecting appropriate sentence see also supra iii concluded capital sentencing jury consideration governor power commute life sentence prohibited federal constitution address respondent contention briggs instruction must held unconstitutional fails inform jurors also death sentence may commuted essence respondent complains briggs instruction creates misleading impression jury prevent defendant return society imposing death sentence thus biasing jury favor death respondent therefore concludes commutation factor properly considered jury basic principles fairness require full disclosure made respect commutation brief respondent thus according respondent federal constitution permits jury consider possible commutation life sentence federal constitution requires jury also instructed death sentence may commuted find respondent argument puzzling must assume respondent principal objection impact briggs instruction skew jury toward imposing death fail see instruction governor power commute death sentences well life sentences restores situation one neutrality although instruction neutral sense giving jury complete factually accurate information commutation power balance impact briggs instruction even assuming arguendo current instruction impermissible skewing effect disclosure complete nature commutation power eliminate skewing favor death increase reliability sentencing choice jury concerned preventing defendant potential return society less inclined vote death penalty upon learning even death sentence may effect fact advising jurors death verdict theoretically modifiable thus final may incline approach sentencing decision less appreciation gravity choice moral responsibility reposed sentencers short instruction disclosing governor power commute death sentence may operate defendant distinct disadvantage precisely perception defendant prejudiced instruction possible commutation death sentence led california people morse cal prohibit giving instruction thus state law time respondent ramos trial precluded giving half commutation instruction respondent argues constitutionally required moreover convinced respondent argument briggs instruction alone impermissibly impels jury toward voting death sentence aggravating factor presented prosecution impact concluded part ii supra state constitutionally entitled permit juror consideration governor power commute life sentence information relevant factually accurate properly jury moreover trial judge instructions place particular emphasis role factor jury ultimate decision zant stephens cf iv sum briggs instruction violate substantive limitations precedents imposed capital sentencing process preclude individualized sentencing determinations consideration mitigating factors impermissibly inject element speculative jury deliberation finally failure inform jury also governor power commute death sentence render constitutionally infirm therefore defer state identification governor power commute life sentence substantive factor presented sentencing jury consideration conclusion intended override contrary judgment state legislatures capital sentencing juries permitted consider governor power commute sentence elementary free provide greater protections criminal justice system federal constitution requires sit judges legislators wisdom decision permit juror consideration possible commutation best left hold eighth fourteenth amendments prohibit instruction judgment california reversed case remanded proceedings inconsistent opinion ordered footnotes respondent offered evidence show inter alia adoptive parents died young came bad influence codefendant respondent mild congenital brain damage low intelligence quotient borderline schizophrenia influence alcohol drugs time offenses intended graze victims shot jury shall impose sentence death concludes aggravating circumstances outweigh mitigating circumstances shall impose sentence life without possibility parole mitigating circumstances outweigh aggravating circumstances cal penal code ann west supp ibid instruction referred hereinafter briggs instruction incorporated california penal code result voter initiative popularly known briggs initiative trial judge gave instruction objection respondent ground instruction mandated legislation tr dissent justice richardson concluded briggs instruction harmless nonprejudicial merely informs jurors information matter common knowledge instruction relevant issue parole injected sentencing process one alternative punishments jury must consider life imprisonment without possibility parole addition dissent concluded instruction failure also inform jury governor power commute death sentence render constitutionally infirm people morse cal held basis supervisory powers jurors instructed death sentence commuted reduced jury sense responsibility imposing capital sentence therefore briggs instruction struck fails require instruction type condemned morse california also concluded certain testimony defense psychiatrist inadmissible matter state evidence law defense objection penalty phase prosecutor allowed elicit psychiatrist respondent aware governor power commute life sentence without parole lesser sentence included possibility parole according psychiatrist respondent indicated released parole years prison probably built within feelings anger frustration attempt take revenge anyone involved trial including district attorney prosecuted case judge presided jurors voted convict cal omitted state ruled trial abused discretion admitting testimony prejudice created admission testimony outweighed probative value see cal evid code ann west respondent argues reach constitutional issues raised state ruling represents possible adequate independent state ground state decision reverse death sentence find bar reaching federal questions state quite clearly rested reversal death sentence solely federal constitution cal moreover respect ruling evidentiary question determine whether error warranted reversal death penalty held testimony admitted penalty phase retried therefore adequacy ruling support reversal sentence addressed state see michigan long post course remand state free determine whether matter state law evidentiary error sufficient basis reversing death sentence addition california expressly declined decide whether briggs instruction independently violates provisions state constitution cal evidentiary issue course state may address question remand california construed briggs instruction inviting capital sentencing juries consider commutation power sentencing determination see view statute accordingly see eddings oklahoma concurring beck alabama opinion stevens joined burger brennan stewart blackmun powell jj lockett ohio opinion burger joined stewart powell stevens jj gardner florida opinion stevens joined stewart powell jj white concurring judgment woodson north carolina opinion stewart powell stevens proffitt florida jurek texas woodson north carolina supra plurality opinion roberts louisiana plurality opinion moreover approving sentencing schemes georgia florida texas joint opinions justices stewart powell stevens substitute views state legislatures particular substantive factors chosen narrow class defendants eligible death penalty example georgia scheme examined gregg least specified aggravating circumstances must found beyond reasonable doubt jury may consider whether death appropriate punishment individual defendant contrast texas scheme approved jurek texas supra state attempted limit category defendants upon death sentence may imposed narrowing capital homicides intentional knowing murders committed five particular situations see upholding texas scheme joint opinion observed texas adopted list statutory aggravating circumstances existence justify imposition death penalty georgia florida action narrowing categories murders death sentence may ever imposed serves much purpose cf godfrey georgia reversing death sentence rested unconstitutionally broad vague construction aggravating circumstance believe capital cases fundamental respect humanity underlying eighth amendment requires consideration character record individual offender circumstances particular offense constitutionally indispensable part process inflicting penalty death woodson supra see also gregg georgia quoting pennsylvania ex rel sullivan ashe see also zant stephens rehnquist concurring judgment enmund florida dissenting eddings oklahoma concurring burger dissenting see also cal briggs instruction injects sentencing calculus entirely irrelevant factor questions whether conduct defendant caused death deceased committed deliberately reasonable expectation death deceased another result whether probability defendant commit criminal acts violence constitute continuing threat society raised evidence whether conduct defendant killing deceased unreasonable response provocation deceased art supp analogy matters raised jurors minds briggs instruction texas statutory factor defendant future dangerousness intellectual sleight hand post blackmun dissenting avoid analogy ignore process thought briggs instruction inevitably engenders jury deliberations sure briggs instruction terms may incline thoughts probability current future governor might commute defendant sentence nevertheless whatever jurors thoughts probability alone inextricably linked thought whether desirable defendant released society evaluating question jury consider defendant potential reform whether probable future behavior counsels desirability release society see also aba standards criminal justice ed giving example legitimate reason selecting total confinement fact onfinement necessary order protect public serious criminal activity defendant also observe respect relevance information conveyed briggs instruction issue parole commutation presented language used describe one jury sentencing choices life imprisonment without possibility parole state california reasonably concluded jurors generally aware governor power commute death sentence jurors aware governor also may commute sentence life imprisonment without possibility parole informed avoid possible misconception conveyed description sentencing alternative dissent justice marshall argues balanced instruction given solution permit misleading instruction prohibit altogether instruction concerning commutation post observation incorrect least two reasons first discussed see infra suggest federal constitutional infirmity giving instruction concerning governor power commute death sentence note comment prohibited state law second briggs instruction simply misleading contrary instruction gives jury accurate information corrects misleading description sentencing choice available jury although justice richardson noted cal jurors may general awareness availability commutation parole statutory description one sentencing choices life imprisonment without possibility parole may generate misleading impression governor commute sentence one included possibility parole briggs instruction merely dispels possible misunderstanding defendant may offer evidence argument regarding commutation power respondent counsel addressed possibility governor commutation life sentence closing argument tr briggs instruction thereby accomplishes result occur instead requiring briggs instruction state merely described sentence statutorily life imprisonment possibility commutation surely respondent argue constitution prohibits state accurately characterizing sentencing choices note respondent indeed contend california sentencing scheme violates directive lockett ohio california statute question permits defendant present evidence show penalty less death appropriate case cal penal code ann west supp addition note assurance texas jury acts particularized less speculative informational base considers defendant future dangerousness california jury estelle smith noted expert psychiatric testimony defendant necessary prove defendant future dangerousness texas scheme nder texas capital sentencing procedure inquiry necessary jury resolution future dangerousness issue sense confined province psychiatric experts sense disapproving use psychiatric testimony bearing issue future dangerousness holding jurek guided recognition inquiry mandated texas law require resort medical experts entencing decisions rest inquiry countless facts circumstances type proof particular elements returning conviction zant stephens rehnquist concurring judgment consideration commutation power undermine jury statutory responsibility weigh aggravating factors mitigating factors impose death former outweigh latter desirability defendant release society simply one matter enters weighing process moreover fact jury given specific guidance commutation factor figure determination presents constitutional problem held zant stephens supra constitutional prohibition arbitrary capricious capital sentencing determinations violated capital sentencing scheme permits jury exercise unbridled discretion determining whether death penalty imposed found defendant member class made eligible penalty statute see also ali model penal code prop draft providing besides aggravating mitigating factors sentencer shall take account facts deems relevant model penal code sentencing stage shall inform jury nature sentence imprisonment may imposed including implication respect possible release upon parole jury verdict sentence death ibid approval gregg georgia evidence informing penalty determination georgia equally appropriate think georgia wisely chosen impose unnecessary restrictions evidence offered presentence hearing approve open argument long evidence introduced arguments made presentence hearing prejudice defendant preferable impose restrictions think desirable jury much information possible makes sentencing decision art california constitution implementing statutory sections cal penal code ann et seq west governor possesses broad authority reprieve pardon commute sentences including death sentence although state statute containing briggs instruction requires instruction governor power commute sentence life without possibility parole cal penal code ann west supp trial judge case preceded specific instruction additional statement governor empowered grant reprieve pardon commutation sentence following conviction crime tr emphasis added statement ambiguous might construed advising jury governor power commute death sentence well life sentence however oral argument state respondent argued ambiguity quoted sentence interpreted advising jury possible commutation death sentence tr oral arg significantly state interpret instruction providing full disclosure extent governor power commutation fact affirmatively concluded jury informed sentence death may commuted modified cal emphasis original defer state finding point see wolfe north carolina lloyd fry roofing wood observe incidentally respondent time requested trial judge also charge jury regarding governor power commute death sentence based supervisory powers california held morse capital sentencing jury instructed either trial judge governor possible reduction death penalty concluded suggesting authority review propriety jury decision impose death instruction tended reduce jury sense responsibility fixing penalty cal given conclusion part ii supra state may constitutionally permit consideration governor power commute sentence life imprisonment without possibility parole suggest course federal constitution prohibits instruction regarding governor power commute death sentence trial judge instructed jury consider evidence applicable instructions law received part trial case consider circumstances extenuate gravity crime even though legal excuse crime tr justice marshall dissent claims briggs instruction encourages jury impose death penalty basis erroneous assumption defendant sentenced death released post emphasize instruction informational satisfies jurek requirement hat essential jury possible relevant information individual defendant whose fate must determine addition justice marshall wrongly assumes briggs instruction determining factor jury choice appropriate punishment emphasized supra briggs instruction advise encourage jury reach verdict reliance upon information cal richardson dissenting addition stated trial judge instructions case emphasize role factor jury decision see code ann prohibiting argument possibility pardon parole clemency many state courts held improper jury consider informed argument instruction possibility commutation pardon parole basis decision cases always clear often appear whether state decision based federal constitutional principles many instances however state decision appears rest interpretation state capital sentencing system division responsibility sentencer authorities effected scheme see people walker statute requires jury case may consider aggravating mitigating factors relevant imposition death penalty whether defendant may future time paroled proper aggravating factor consider determining whether death penalty imposed emphasis added state lindsey la nowhere entire sentencing scheme state code criminal procedure provide sentencing jury may consider offender future potential release life sentence imposed iving jury carte blanche permission decide potential factual consequences life sentence allows weigh alternative terms clear meaning provided legislature terms particular number years versus death penalty thereby undermining jury responsibility accept law given legislature emphasis added poole state md type argument likely allow jury disregard duty determine aggravating mitigating factors balance one required state statute consideration possibility parole simply irrelevant emphasis added state atkinson legislature committed jury responsibility determine first instance whether punishment life death charged another agency responsibility deciding life sentence shall executed quoting state white see also sukle people consideration parole outside proper scope jury duty fixed statute state jones justice marshall justice brennan joins justice blackmun joins parts ii iii iv dissenting even accepted prevailing view death penalty may constitutionally imposed certain circumstances agree state may tip balance favor death informing jury defendant may eventually released executed view briggs instruction unconstitutional three reasons misleading invites speculation guesswork injects capital sentencing process factor bears relation nature offense character offender continue adhere view death penalty circumstances cruel unusual punishment forbidden eighth fourteenth amendments see gregg georgia marshall dissenting furman georgia marshall concurring vacate death sentence basis alone however even accept prevailing view death penalty may constitutionally imposed certain circumstances vacate death sentence case ii apart permissibility ever instructing jury consider possibility commutation briggs instruction unconstitutional misleads jury scope governor clemency power upholding instruction majority authorizes fraud deceit serious state actions taking human life cal see ibid instruction part contractual negotiation arguably constitute tortious deceit fraudulent misrepresentation briggs instruction may well mislead jury believing eliminate possibility commutation imposing death sentence indicates governor commute life sentence without possibility parole governor also commute death sentence instruction thus erroneously suggests jury death sentence assure defendant permanent removal society whereas alternative sentence see people haskett cal presented choice jury may impose death sentence prevent governor exercising power commute life sentence without possibility parole see gardner florida opinion stevens must assume cases instruction decisive yet sentencing decision based grotesque mistake governor also power commute death sentence possibility mistake deliberately injected sentencing process briggs instruction view constitution simply permit state stac deck capital defendant manner witherspoon illinois see adams texas majority assumes issue whether balanced instruction cure defect ante argues instruction governor power commute death sentence seriously prejudicial defendant event given since forbidden state law ante analysis based fundamental misunderstanding issue question whether balanced instruction less advantageous defendants whether briggs instruction misleading therefore unconstitutional briggs instruction indeed misleading majority never denies may lead jurors impose death sentence wrongly assume sentence ensure defendant released hardly defended ground balanced instruction prejudicial majority points compelling reasons informing jury governor power commute death sentences solution permit misleading instruction prohibit altogether instruction concerning commutation point seems eluded majority inexplicable reason concludes since balanced instruction unavailable state free mislead jury governor clemency power one searches majority opinion vain explanation state inability give complete statement governor commutation powers possibly justify giving incomplete statement misleading thought common ground capital sentencing process must reliable rational free mistakes humanly possible yet upholds briggs instruction without ever disputing substantial potential mislead thus authorizes state cros line neutrality encourage death sentences deceiving jury witherspoon supra iii briggs instruction struck misleading also invites imposition death penalty basis mere speculation majority concedes ante briggs instruction invites jury consider possibility sentence defendant death may released commutation subsequent parole instruction thus invites jury speculate possibility release decide whether wishes foreclose possibility imposing death sentence respondent contends state may invite jury impose death sentence basis ad hoc speculation likelihood release instead directly confronting contention majority denies principal effect briggs instruction invite jury predict actions future governor parole board instead characterizes briggs instruction mere proxy determination future dangerousness ante reasons texas scheme upheld jurek texas requires jury determine defendant future dangerousness jurek controlling ante briggs instruction therefore constitutional briggs instruction simply reduced functional equivalent scheme upheld jurek neither requires even suggests jury make finding concerning defendant future dangerousness jury provided evidence base finding importantly whatever else briggs instruction might incidentally lead juries consider one thing expressly invites impose death penalty basis ad hoc speculations likelihood commutation individual jury predictions possibility commutation parole represent sheer speculation godfrey georgia plurality opinion jury simply basis assessing likelihood particular defendant eventually released sentenced death invite jury indulge speculation ask foretell numerous imponderables policies may adopted unnamed future governors parole officials change defendant character well factors might deemed relevant commutation parole decisions yet questions human mind answer rest future events unpredictable people morse cal inevitable part commutation decision standardless predictive inquiry becomes even hazardous majority suggests jury also considers whether defendant pose threat society released jury short assess likelihood defendant released also likelihood release mistake fail see jury expected forecast future character particular defendant risk state authority armed contemporaneous information character whose contents jury guess misjudge character erroneously release sentencing decisions based groundless predictions clearly arbitrary capricious tennessee put death sentence imposed basis product mere guesswork predictions particular juries reflect little wild speculation differences among juries predictions less product caprice reason yet briggs instruction creates possibility one defendant may sentenced die another permitted live first jury perceived greater likelihood commutation parole hardly constitutes meaningful principled basis distinguishing case death penalty imposed one gregg georgia quoting furman georgia white concurring see also godfrey georgia supra lockett ohio plurality opinion imposition death sentences basis sheer speculation unknowables arbitrary capricious prior cases stressed heightened need reliability rationality determination whether individual sentenced death woodson north carolina plurality opinion lockett ohio supra gardner florida briggs instruction injects level unreliability uncertainty arbitrariness tolerated capital case beck alabama iv even briggs instruction mislead jury call guesswork unconstitutional independent reason introduces impermissible factor capital sentencing process instruction invites juries impose death sentence eliminate possibility eventual release commutation parole yet possibility bears relation defendant character nature crime generally accepted justification death penalty since factor considered jury may decisive decision sentence defendant death gardner florida supra opinion stevens jury clearly permitted consider factor rather permitted consider factors provide principled basis imposing death sentence rather life sentence see zant stephens noting jury may consider race religion political affiliation suggesting factors truly mitigating basis imposing death sentence view constitution forbids jury consider factor bears relation defendant character nature crime unrelated penological objective justify imposition death penalty cases establish capital sentencing proceeding focus nature criminal act character offender order minimize risk death penalty imposed capriciously selected group offenders decision impose must guided standards sentencing authority focus particularized circumstances crime defendant gregg georgia supra opinion stewart powell stevens thus stressed appropriateness death penalty depend relevant facets character record individual offender woodson north carolina supra considerations extent premeditation nature crime prior criminal activity considered relevant determination appropriate sentence requirement jury focus factors designed ensure punishment tailored defendant personal responsibility moral guilt enmund florida emphasis added sharp contrast mere possibility commutation wholly utterly foreign defendant guilt even remotely related blameworthiness possibility bears absolutely relation nature offense character individual whether defendant crime warrants death penalty turn speculative possibility may may occur possibility commutation relationship state purposes said justify death penalty capital punishment simply justified necessary keep criminals streets whatever might said concerning retribution deterrence justifications capital punishment seriously defended necessary insulate public persons likely commit crimes future life imprisonment necessary solitary confinement fully accomplish aim incapacitation see gregg georgia supra marshall dissenting furman georgia supra marshall concurring death penalty justified considerations incapacitation implicitly acknowledged gregg joint opinion justices stewart powell stevens relied entirely retribution deterrence possible justifications death penalty mentioned incapacitation passing nother purpose discussed conclusion way altered california decision establish alternative sentence death guarantee permanent confinement death sentence inappropriate state justify imposition ground alternative provided case leaves open possibility future release may considered inadequate jury analogy may usefully drawn decision beck alabama beck struck instruction created risk defendant convicted crime guilty necessarily rejected suggestion instruction justified fact alternative presented conviction presenting jury capital case choice unwarranted conviction acquittal impermissible may induce jury convict simply ensure defendant receives punishment choice seem inevitably enhance risk unwarranted conviction similarly defendant may sentenced death simply alternative state adopted ensure incapacitation state may use unavailability permanent imprisonment induce juries sentence death defendants whose appropriate punishment something less severe death inflicted life sentence appropriate abhorrent thought state white finally briggs instruction impermissibly invites jurors impose death sentences basis desire foreclose duly authorized review judgment conviction although power grant clemency restricted standards reasonable assume least exercised governor concludes criminal justice system unjustly convicted defendant roberts louisiana white joined burger blackmun rehnquist dissenting yet jury whose judgment conviction subject future application clemency led believe may impose death sentence preclude application aware authority majority cites none proposition judicial body may base decision less one concerning life death individual desire immunize actions duly authorized reexamination conclusion juries permitted consider commutation parole deciding appropriate sentence shared nearly every jurisdiction considered question prior decisions consistently sought guidance objective evidence country present judgment determining constitutionality particular capital sentencing schemes coker georgia see solem helm ante enmund dissenting beck alabama supra gregg georgia woodson north carolina scarcely word explanation today decision dismisses overwhelming weight authority establishing jury may informed possibility defendant may released sentenced death propriety allowing sentencing jury consider power governor commute sentence parole board grant parole considered jurisdictions addition california jurisdictions concluded california case jury consider possibility pardon parole commutation three jurisdictions deemed proper allow jury consider possibility sentence reduced commutation parole two cases decided furman georgia one decision approved jury consideration parole commutation decision concerned capital sentencing scheme jury merely recommends sentence moreover view embraced majority almost uniformly rejected formerly permitted jury consideration parole commutation trend renounce prior decisions thought impressive consensus weigh heavily balance determining constitutionality briggs instruction enmund florida supra majority breezily dismisses consensus terse statement free provide greater protections federal constitution requires ante observation hardly suffices explanation however since thing said enmund coker beck woodson yet decisions looked prevailing standards guidance majority approach inconsistent compelling reasons according due regard coker georgia contemporary judgments jurisdictions stressed eighth amendment must draw meaning evolving standards decency mark progress maturing society trop dulles plurality opinion entral application amendment determination contemporary standards regarding infliction punishment woodson north carolina opinion stewart powell stevens moreover unless judgment informed objective factors maximum possible extent decisions may reflect merely subjective views individual justices coker supra plurality opinion vi whatever interest state may imposing death penalty justification misleading instruction obviously calculated increase likelihood death sentence inviting jury speculate possibility defendant eventually released executed vacate respondent death sentence state courts recognized juries compensate possibility future clemency imposing harsher sentences see farris state smith state del state white majority notes respondent request jury charge regarding governor power commute death sentence ante makes nothing fact however reasons plain california find respondent waived objection misleading nature briggs instruction event instruction forbidden state law reasons articulated majority ante constitution presumably forbid instructing jury capital sentencing proceeding consider governor powers commute death sentence see generally farris state supra noting instruction tends breed irresponsibility part jurors premised upon proposition corrective action taken others later date state jones jury sense responsibility reduced reliance executive review majority suggests defendant free correct misleading impression created briggs instruction informing jurors governor power commute death sentences ante suggestion anomalous indeed since majority concluded jurors informed inclined approach sentencing decision less appreciation gravity choice moral responsibility reposed sentencers ante agree state may force defendant choose sentenced jury misinformed one unlikely view task requisite sense responsibility briggs instruction merely invites jury speculate likelihood future release says nothing whether likelihood future criminal activity event release jury may decide impose death penalty prevent defendant release simply concluded defendant deserve reenter society concern dangerousness jurek says nothing permissibility imposing death sentence basis addition although jury presented briggs instruction might choose take account future dangerousness way makes instruction functional equivalent texas scheme upholding texas scheme stressed texas law assured possible relevant information presented jury briggs instruction jury required make finding concerning defendant future dangerousness also requirement evidence future dangerousness introduced indeed rare exceptions evidence inadmissible california law see people murtishaw cal cert denied farris state quoting graham state accord state leland purely speculative jones commonwealth results punishment based speculative elements state lindsey la unquantifiable factor farris state supra state lindsey supra people walker jurek texas establish goal incapacitation may justify death penalty question addressed jurek petitioner jurek attack texas capital sentencing scheme ground rather contended scheme prevent arbitrary capricious infliction death penalty rejected attack procedures prescribed texas scheme opinion stewart powell stevens jj white joined burger rehnquist concurring judgment decide substantive question whether prediction future dangerousness proper criterion determining whether defendant live die matters jury california actually eliminate possibility commutation death sentence may commuted well briggs instruction omits mention fact majority acknowledges ante exist compelling reasons defendant wish forced bring jury attention see supra state courts consistently held juries may permitted circumvent actions branches government preemptive imposition death penalty see murray state crim app consideration commutation subverts jury properly assigned role andrews state ark consideration commutation takes jury far afield proper purpose prerogative broyles commonwealth jury anticipates acts executive branch circumvent infringes upon prerogatives state lindsey jury improperly governor duly authorized power jones commonwealth california state statute requiring jury instructed consider possibility commutation jurisdictions issue generally arisen either jury inquired parole commutation defendant contended prosecution improperly argued issue jury decisions concern jury sentencing capital cases although concern noncapital cases decisions found error harmless none cases find jury instruction concerning parole commutation harmless see grady state crim app noncapital westbrook state ark jones state smith state del paramore state prosecutor argument improper reversible error vacated grounds gilreath state cert denied people szabo farmer commonwealth state brown la poole state md state thomas mo grandsinger state neb prosecutorial argument improper reversible error cert denied summers state reaffirming serrano state instructed jury assume life without parole means exactly state conklin state jones mckee state crim app noncapital state leland aff commonwealth aljoe state goolsby cert denied farris state noncapital clanton state tex crim app clanton commonwealth state todd state lindsey noncapital state carroll wyo contrary majority suggestion ante decisions rest much broader grounds interpretation particular state statutes massa state ohio app state jackson brewer state ind instance georgia legislature overruled prior decisions contrary enacting statute forbidding jury argument concerning commutation parole code ann see strickland state cases discussed therein new jersey reversed line decisions approved jury consideration commutation parole state white tennessee invalidated statute required juries instructed parole felony cases farris state supra see also andrews state ark disapproving earlier decisions permitting judge asked jurors inform possibility reduction sentence justice blackmun dissenting join parts ii justice marshall opinion dissent understood issue case whether state constitutionally may instruct jury governor power commute sentence life without parole issue involves jury consideration probability action incumbent governor future governors instead redefines issue terms dangerousness respondent issue involves jury consideration probability respondent commit acts violence future ante justice marshall ante justice stevens post forcefully point two questions relate neither state california solitary dissenter state ventured argument issue actually presented important one may arguments supportive instruction however chooses present none instead approves briggs instruction substituting intellectual sleight hand legal analysis kind appellate review compounds original unfairness instruction thereby rule law disservice dissent justice stevens dissenting rule law required hear case granted certiorari least four members determined matter discretion review constitutionality briggs instruction represent wise use scarce resources certiorari granted case informed respondent briggs instruction unique california requires juries instructed selectively governor power commute life without parole sentences informed accurately overwhelming number jurisdictions condemn comment whatsoever capital case governor power commute statement followed list citations decisions brief opposition see ante justice marshall dissenting facts shed illuminating light perception discretion exercised even one agree conclusion instruction violate defendant procedural rights nevertheless fair ask harm done administration justice state courts california left undisturbed determination clear omission instruction conceivably prejudice prosecutor legitimate interests surely character offense character offender death proper penalty omission comment governor power commute life sentence preclude jury returning proper verdict true instruction may make difference life death case scales otherwise evenly balanced reason instruction given reason giving existence rarely exercised power commutation absolutely nothing defendant culpability capacity rehabilitation governor power commute entirely different relevant aggravating circumstance may legitimately impel jury toward voting death penalty see ante briggs instruction greater justification instruction jury scales evenly balanced remember murders committed people whose names begin initial letter matter trivial impact instruction may fundamentally wrong presiding judge trial personify evenhanded administration justice tell jury indirectly sure doubt concerning proper penalty resolved favor certain method preventing defendant ever walking streets concludes opinion solemnly noting sit judges legislators wisdom decision permit juror consideration possible commutation best left ante ask due respect justices voted grant certiorari case allow wisdom state judges prevail california especially taken position consistent state judges alabama arkansas colorado delaware florida georgia illinois kentucky louisiana maryland missouri nebraska nevada new jersey north carolina oklahoma oregon pennsylvania south carolina tennessee texas virginia washington west virginia wyoming repeat rule law commanded grant certiorari state required follow california precedent permitted stand nothing interest facilitating imposition death penalty california justified exercise discretion review judgment california interest opinion sufficient warrant review validity jury instruction wisdom giving instruction plainly matter best left reasons stated parts ii justice marshall opinion disagree decision merits even correct merits still firmly disagree decision grant certiorari therefore respectfully dissent