WHITE, J., Opinion of the Court

SUPREME COURT OF THE UNITED STATES

465 U.S. 37

Pulley v. Harris

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 82-1095 Argued: November 7, 1983 --- Decided: January 23, 1984

JUSTICE WHITE delivered the opinion of the Court.

Respondent Harris was convicted of a capital crime in a California court and was sentenced to death. ^[n1] Along with [p39] many other challenges to the conviction and sentence, Harris claimed on appeal that the California capital punishment statute was invalid under the United States Constitution because it failed to require the California Supreme Court to compare Harris' sentence with the sentences imposed in similar capital [p40] cases. and thereby to determine whether they were proportionate. ^[n2] Rejecting the constitutional claims by citation to earlier cases, the California Supreme Court affirmed. People v. Harris, 28 Cal.3d 935, 623 P.2d 240 (1981). ^[n3] We denied certiorari. 454 U.S. 882 (1981).

Harris then sought a writ of habeas corpus in the state courts. He again complained of the failure to provide him with comparative proportionality review. The writ was denied without opinion, and we denied certiorari. Harris v. California, 457 U.S. 1111 (1982). Harris next sought habeas corpus in the United States District Court for the Southern District of California, pressing the claim, among others, that he had been denied the comparative proportionality review assertedly required by the United States Constitution. The District Court denied the writ and refused to stay Harris' execution, but issued a certificate of probable cause. The Court of Appeals, after holding that the proportionality review demanded by Harris was constitutionally required, vacated the judgment of the District Court and ordered that the writ issue relieving Harris of the death sentence unless, within 120 days, the California Supreme Court undertook to determine whether the penalty imposed [p41] on Harris is proportionate to sentences imposed for similar crimes. ^[n4] 692 F.2d 1189 (1982). We granted the State's petition for certiorari presenting the question whether the proportionality review mandated by the Court of Appeals is required by the United States Constitution. 460 U.S. 1036 (1983).

I

Harris concedes that the Court of Appeals' judgment rested on a federal constitutional ground. He nonetheless contends that we should affirm the judgment, which has the effect of returning the case to the state courts, because state law may entitle him to the comparative proportionality review that he has unsuccessfully demanded. We are unimpressed with the submission. Under 28 U.S.C. § 2241 a writ of habeas corpus disturbing a state court judgment may issue only if it is found that a prisoner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court may not issue the writ on the basis of a perceived error of state law.

Even if an error of state law could be sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment, Harris' submission is not persuasive. He relies on People v. Frerson, [p42] 25 Cal.3d 142, 599 P.2d 587 (1979), and People v. Jackson, 28 Cal.3d 264, 618 P.2d 149 (1980), for the proposition that proportionality review should have been extended to him as a matter of state law. But since deciding those cases, the California Supreme Court has twice rejected Harris' demand for proportionality review without suggesting that it was in any way departing from precedent. Indeed, on direct review, it indicated that Harris' constitutional claims had been adversely decided in those very cases.

Finally, if Harris' claim is that, because of an evolution of state law, he would now enjoy the kind of proportionality review that has so far been denied him, that claim, even if accurate, ^[n5] would not warrant issuing a writ of habeas corpus. Rather it would appear to be a matter that the state courts should consider, if they are so inclined, free of the constraints of the federal writ. Accordingly, we deem it necessary to reach the constitutional question on which certiorari was granted.

II

At the outset, we should more clearly identify the issue before us. Traditionally, "proportionality" has been used with reference to an abstract evaluation of the appropriateness of [p43] a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime. See, e.g., Solem v. Helm, 463 U.S. 277 (1983); Enmund v. Florida, 458 U.S. 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977). The death penalty is not in all cases a disproportionate penalty in this sense. Gregg v. Georgia, 428 U.S. 153, 187 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); id. at 226 (WHITE, J., concurring in judgment).

The proportionality review sought by Harris, required by the Court of Appeals, ^[n6] and provided for in numerous state statutes ^[n7] is of a different sort. This sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime. The issue in this case, therefore, is whether the Eighth Amendment, applicable to the States through the Fourteenth [p44] Amendment, requires a state appellate court, before it affirms a death sentence, to compare the sentence in the case before it with the penalties imposed in similar cases if requested to do so by the prisoner. Harris insists that it does, and that this is the invariable rule in every case. Apparently, the Court of Appeals was of the same view. We do not agree.

III

Harris' submission is rooted in Furman v. Georgia, 408 U.S. 238 (1972). In Furman, the Court concluded that capital punishment, as then administered under statutes vesting unguided sentencing discretion in juries and trial judges, had become unconstitutionally cruel and unusual punishment. The death penalty was being imposed so discriminatorily, id. at 240 (Douglas, J., concurring), so wantonly and freakishly, id. at 306 (Stewart, J., concurring), and so infrequently, id. at 310 (WHITE, J., concurring), that any given death sentence was cruel and unusual. In response to that decision, roughly two-thirds of the States promptly redrafted their capital sentencing statutes in an effort to limit jury discretion and avoid arbitrary and inconsistent results. All of the new statutes provide for automatic appeal of death sentences. Most, such as Georgia's, require the reviewing court, to some extent at least, to determine whether, considering both the crime and the defendant, the sentence is disproportionate to that imposed in similar cases. Not every State has adopted such a procedure. In some States, such as Florida, the appellate court performs proportionality review despite the absence of a statutory requirement; in others, such as California and Texas, it does not.

Four years after Furman, this Court examined several of the new state statutes. We upheld one of each of the three sorts mentioned above. See Gregg v. Georgia, supra; Proffitt v. Florida, 428 U.S. 242"]428 U.S. 242 (1976); 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). Needless to say, that some schemes providing [p45] proportionality review are constitutional does not mean that such review is indispensable. We take statutes as we find them. To endorse the statute as a whole is not to say that anything different is unacceptable. As was said in Gregg,

[w]e do not intend to suggest that only the above-described procedures would be permissible under Furman, or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis.

428 U.S. at 195 (footnote omitted). Examination of our 1976 cases makes clear that they do not establish proportionality review as a constitutional requirement.

In Gregg, six Justices concluded that the Georgia system adequately directed and limited the jury's discretion. The bifurcated proceedings, the limited number of capital crimes, the requirement that at least one aggravating circumstance be present, and the consideration of mitigating circumstances minimized the risk of wholly arbitrary, capricious, or freakish sentences. In the opinion announcing the judgment of the Court, three Justices concluded that sentencing discretion under the statute was sufficiently controlled by clear and objective standards. Id. at 197-198. In a separate concurrence, three other Justices found sufficient reason to expect that the death penalty would not be imposed so wantonly, freakishly, or infrequently as to be invalid under Furman. 428 U.S. at 222.

Both opinions made much of the statutorily required comparative proportionality review. Id. at 198, 204-206, 222-223. This was considered an additional safeguard against arbitrary or capricious sentencing. While the opinion of Justices Stewart, POWELL, and STEVENS suggested that some form of meaningful appellate review is required, id. at 153, 198, 204-206, those Justices did not declare that comparative review was so critical that, without it, the Georgia statute would not have passed constitutional muster. Indeed, in [p46] summarizing the components of an adequate capital sentencing scheme, Justices Stewart, POWELL, and STEVENS did not mention comparative review:

[T]he concerns expressed in Furman . . . can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition, these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

Id. at 195. In short, the Court of Appeals erred in concluding that Gregg required proportionality review.

There is even less basis for reliance on Proffitt v. Florida, supra. The Florida statute provides for a bifurcated procedure and forecloses the death penalty unless the sentencing authority finds that at least one of eight statutory aggravating circumstances is present and is not outweighed by any mitigating circumstances. The joint opinion of Justices Stewart, POWELL, and STEVENS observed that the Florida scheme, like its Georgia counterpart, requires the sentencer to focus on the individual circumstances of each homicide and each defendant. 428 U.S. at 251. Also, by vesting ultimate sentencing authority in the judge, rather than the jury, the statute was expected to yield more consistent sentencing at the trial court level. Id. at 252. Only after concluding that trial judges are given specific and detailed guidance to assist them in deciding whether to impose the death penalty did the opinion observe that death sentences are reviewed to ensure that they are consistent with the sentences imposed in similar cases. Id. at 250-251. ^[n8] The opinion concurring in [p47] the judgment filed by three other Justices approved the Florida statute without even mentioning appellate review. Id. at 260-261. [p48]

That Gregg and Proffitt did not establish a constitutional requirement of proportionality review is made clearer by Jurek v. Texas, 428 U.S. 262 (1976), decided the same day. In Jurek, we upheld a death sentence even though neither the statute, as in Georgia, nor state case law, as in Florida, provided for comparative proportionality review. Justices Stewart, POWELL, and STEVENS, after emphasizing the limits on the jury's discretion, ^[n9] concluded:

Texas' capital sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing [p49] prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be "wantonly" or "freakishly" imposed, it does not violate the Constitution.

Id. at 276.

That the three Justices considered such appellate review as Texas provided "a means to promote the evenhanded, rational, and consistent imposition of death sentences," ibid., is revealing. First, it makes plain that, at least in light of the other safeguards in the Texas statute, proportionality review would have been constitutionally superfluous. Second, it suggests that the similarly worded references to appellate review in Gregg and Proffitt were focused not on proportionality review as such, but only on the provision of some sort of prompt and automatic appellate review. The concurrence expressing the views of three other Justices sustained the Texas statute by focusing solely on the limitations on the jury's discretion, without even mentioning appellate review. ^[n10] [p50] In view of Jurek, we are quite sure that, at that juncture, the Court had not mandated comparative proportionality review whenever a death sentence was imposed. ^[n11]

Harris also relies on Zant v. Stephens, 462 U.S. 862 (1983), which was announced after the Court of Appeals' decision in this case. Zant did not depart from Gregg, and did not question Jurek. Indeed, Jurek was cited in support of the decision. 462 U.S. at 875-876, n. 13. While emphasizing the importance of mandatory appellate review under the Georgia statute, id. at 875 and 876, we did not hold that, without comparative proportionality review, the statute would be unconstitutional. To the contrary, we relied on the jury's finding of aggravating circumstances, not the State Supreme Court's finding of proportionality, as rationalizing the sentence. ^[n12] Thus, the emphasis was on the constitutionally necessary narrowing function of statutory aggravating circumstances. Proportionality review was considered to be an additional safeguard against arbitrarily imposed death sentences, but we certainly did not hold that comparative review was constitutionally required.

There is thus no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the [p51] defendant requests it. Indeed, to so hold would effectively overrule Jurek, and would substantially depart from the sense of Gregg and Proffitt. We are not persuaded that the Eighth Amendment requires us to take that course.

IV

Assuming that there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review, the 1977 California statute is not of that sort. Under this scheme, a person convicted of first-degree murder is sentenced to life imprisonment unless one or more "special circumstances" are found, in which case the punishment is either death or life imprisonment without parole. Cal.Penal Code Ann. §§ 190, 190.2 (West Supp.1978). ^[n13] Special circumstances are alleged in the charging paper and tried with the issue of guilt at the initial phase of the trial. At the close of evidence, the jury decides guilt or innocence and determines whether the special circumstances alleged are present. Each special circumstance must be proved beyond a reasonable doubt. § 190.4(a). If the jury finds the defendant guilty of first-degree murder and finds at least one special circumstance, the trial proceeds to a second phase to determine the appropriate penalty. Additional evidence may be offered and the jury is given a list of relevant factors. [p52] § 190.3. ^[n14]

After having heard and received all of the evidence, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall determine whether the penalty shall be death or life imprisonment without the possibility of parole.

Ibid. If the jury returns a verdict of death, the defendant is deemed to move to modify the verdict. § 190.4(e). The trial judge then reviews the evidence and, in light of the statutory factors, makes an "independent determination as to whether the weight of the evidence supports the jury's findings and verdicts." Ibid. The judge is required to state on the record the reasons for his findings. [p53] Ibid. If the trial judge denies the motion for modification, there is an automatic appeal. §§ 190.4(e), 1239(b). The statute does not require comparative proportionality review or otherwise describe the nature of the appeal. ^[n15] It does state that the trial judge's refusal to modify the sentence "shall be reviewed." § 190.4(e). This would seem to include review of the evidence relied on by the judge. As the California Supreme Court has said,

the statutory requirements that the jury specify the special circumstances which permit imposition of the death penalty, and that the trial judge specify his reasons for denying modification of the death penalty, serve to assure thoughtful and effective appellate review, focusing upon the circumstances present in each particular case.

People v. Frierson, 25 Cal.3d at 179, 599 P.2d at 609. That court has reduced a death sentence to life imprisonment because the evidence did not support the findings of special circumstances. People v. Thompson, 27 Cal.3d 303, 611 P.2d 883 (1980).

By requiring the jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small subclass of capital-eligible cases. The statutory list of relevant factors, applied to defendants within this subclass, "provide[s] jury guidance and lessen[s] the chance of arbitrary application of the death penalty," 692 F.2d at 1194, "guarantee[ing] that the jury's discretion will be guided and its consideration deliberate," id. at 1195. The jury's "discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 189. Its decision is reviewed by the trial judge and the State Supreme Court. On its face, this system, without any requirement or practice of comparative proportionality review, cannot be successfully challenged under Furman and our subsequent cases. [p54]

Any capital sentencing scheme may occasionally produce aberrational outcomes. Such inconsistencies are a far cry from the major systemic defects identified in Furman. As we have acknowledged in the past, "there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.'" Zant v. Stephens, 462 U.S. at 884, quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion). As we are presently informed, we cannot say that the California procedures provided Harris inadequate protection against the evil identified in Furman. The Court of Appeals therefore erred in ordering the writ of habeas corpus to issue. Its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

1. The evidence at trial established that, on July 5, 1978, respondent and his brother decided to steal a getaway car for a bank robbery in Mira Mesa, Cal. Respondent approached two teenaged boys eating hamburgers in their car, and forced them at gunpoint to drive him to a nearby wooded area. His brother followed. T hey parked the cars, and walked partway up a trail. Respondent told the boys he was going to use their car to rob a bank. They offered to walk to the top of the hill, wait a while, and then report the car as stolen, giving misleading descriptions of the thieves. Respondent approved the plan, but when one of the boys moved off into the bushes, he shot the other. He pursued and killed the fleeing boy, then returned and fired several more shots into the body of his first victim. Respondent finished the boys' hamburgers, and he and his brother then went ahead with the bank robbery. They were apprehended soon thereafter, and confessed to the killings and the robbery.

A jury convicted respondent of kidnaping, robbery, and the first-degree murder of both boys. In accordance with the California death sentencing scheme then in effect, it also found that the statutory "special circumstances" charged by the prosecution were proved beyond a reasonable doubt: respondent had been convicted of more than one offense of first-degree murder, Cal.Penal Code Ann. § 190.2(c)(5) (West Supp.1978), and each of the murders was willful, deliberate, premeditated, and committed during the commission of kidnaping and robbery, §§ 190.2(c)(3)(i), (ii). The proper punishment was therefore either death or life imprisonment without the possibility of parole, to be determined at a separate sentencing hearing. At that hearing, the State introduced evidence that respondent had been convicted of manslaughter in 1975; that he had been found in possession of a makeshift knife and a garrote while in prison; that he and others had sodomized another inmate; and that he had threatened that inmate's life. Respondent took the stand and testified to his dismal childhood, his minimal education, and the conviction of his father for sexually molesting respondent's sisters. He stated that his brother had fired the first shots, and that he was sorry about the murders. The jury was then provided with a list of factors to help it decide upon a penalty. It chose death. The trial judge denied the automatic motion to modify the judgment. See § 190.4(e).

Respondent was sentenced under the 1977 California death penalty statute, 1977 Cal.Stats., ch. 316, pp. 1255-1266, which was codified at Cal.Penal Code Ann. §§ 190-190.6 (West Supp.1978). The 1977 statute was replaced in late 1978 by the substantially similar provisions now in effect. See Cal.Pen.Code Ann. §§ 190-190.7 (West Supp.1983). Unless otherwise noted, references in this opinion are to the 1977 statute. For the most part, however, what is said applies equally to the current California statute.

2. There has been some confusion as to whether Harris sought proportionality review on direct appeal. The record filed with us contains a copy of his appellate brief. The brief is largely identical to his federal habeas petition, which is also in the record, and, from what we can infer, to his state petition, which is not. In his appellate brief, Harris argued that the California scheme was constitutionally defective for failure to establish a proportionality review mechanism. His habeas petitions also included an affidavit detailing perceived inconsistencies in California capital sentencing and identifying similar cases in which the death sentence was not imposed. This affidavit was not presented to the California Supreme Court on direct appeal.

3. Three justices joined the opinion of the court. Justice Tobriner concurred to note that he considered the death penalty statute unconstitutional, but felt bound by a previous ruling from which he had dissented. Chief Justice Bird, joined by Justice Mosk, dissented on the ground that pretrial publicity had denied respondent a fair trial.

4. The court rejected Harris' other constitutional challenges to the California statute. First, it found that the list of aggravating and mitigating circumstances adequately limited the jury's discretion, even though the factors were not identified as aggravating or mitigating and even though the jury was allowed to consider nonstatutory factors. Second, it held that there was no constitutional requirement that the appropriateness of the death penalty be established beyond a reasonable doubt. Third, written findings by the jury were not constitutionally required, at least where, as in California, the judge provides such a statement. The court remanded, however, for a possible evidentiary hearing on Harris' claim that the death penalty was being discriminatorily administered in California, and for a closer look at the state court record to determine whether the California Supreme Court's conclusion that pretrial publicity was not unfairly prejudicial was adequately supported.

5. None of the California Supreme Court's many reversals in capital cases was based on a finding that the sentence was disproportionate to that imposed on similar defendants for similar crimes. We are aware of only one case beside this one in which the court affirmed a death sentence imposed under the 1977 or later statute. People v. Jackson, 28 Cal.3d 264, 618 P.2d 149 (1980). No proportionality review of the sort at issue here was conducted in that case.

At oral argument, counsel for respondent pointed to People v. Dillon, 34 Cal.3d 441, 668 P.2d 697 (1983), as an example of California's evolving practice of proportionality review. There the court reduced a first-degree murder conviction carrying a life sentence to a second-degree conviction. The court relied in part on the disparity between Dillon's punishment and that received by the six other participants in the crime. Dillon was not a death case, did not involve any cross-case comparison, and hardly signifies an established practice of proportionality review.

6. The Court of Appeals noted a distinction between the proportionality of the death penalty to the crime for which it was imposed, and the proportionality of a given defendant's sentence to other sentences imposed for similar crimes. "This latter proportionality review . . . is what concerns us here." 692 F.2d 1189, 1196 (1982).

7. Under the much-copied Georgia scheme, for example, the Supreme Court is required in every case to determine

[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Ga.Code. Ann. § 17-10-35(c)(3) (1982). If the court affirms the death sentence, it is to include in its decision reference to similar cases that it has taken into consideration. § 17-10-35(e). The court is required to maintain records of all capital felony cases in which the death penalty was imposed since 1970. § 17-10-37(a).

8. JUSTICE STEVENS implies that the joint opinion in Proffitt did not really understand the Florida Supreme Court to conduct comparative proportionality review. Post at 56. While his reading of that opinion does, of course, further support our interpretation of Proffitt, we do not share it. The opinion stated that the Florida court considered its function to be the same as its "Georgia counterpart," and that it would review a particular sentence "‘in light of the other decisions and determine whether or not the punishment is too great.'" 428 U.S. at 251, quoting State v. Dixon, 283 So.2d 1, 10 (Fla.1973). Thus, sentencing "decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances." 428 U.S. at 253. As JUSTICE STEVENS notes, the opinion went on to point out that the Florida Supreme Court

has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. [Citations omitted.] By following this procedure, the Florida court has, in effect, adopted the type of proportionality review mandated by the Georgia statute.

Id. at 259. The most natural reading of this language is that its authors believed that Florida did conduct proportionality review. Indeed, that is how the Florida Supreme Court, for one, has interpreted it. E.g., McCaskill v. State, 344 So.2d 1276, 1280 (1977).

While acknowledging that at present the Florida Supreme Court undertakes to provide proportionality review in every case, see Brown v. Wainwright, 392 So.2d 1327, cert. denied, 454 U.S. 1000 (1981), JUSTICE STEVENS says that that has not always been its practice, citing a long list of cases in which no such review was explicitly performed. Post at 56-58, n. The Florida Supreme Court has undeniably become more enthusiastic, or at least more explicit, about proportionality review in recent years. See, e.g., Williams v. State, 437 So.2d 133 (1983); Adams v. State, 412 So.2d 850 (1982). However, comparative proportionality review has been part of at least the theory of appellate review in Florida since the enactment of that State's first post-Furman capital punishment statute. It was endorsed in the very first case decided under that statute, see State v. Dixon, supra, at 10, and frequently acknowledged and performed thereafter, see, e.g., Alvord v. State, 322 So.2d 533, 540-541 (1975); Alford v. State, 307 So.2d 433, 445 (1975); Lamadline v. State, 303 So.2d 17, 20 (1974). As the Florida Supreme Court has itself recently stated:

Since the inception of the "new" death penalty statute in 1972, this Court has engaged in a proportionality review of death cases to ensure rationality and consistency in the imposition of the death penalty.

Sullivan v. State, 441 So.2d 609, 613 (1983) (citing State v. Dixon, supra).

JUSTICE STEVENS points out that the Florida Supreme Court has not conducted an express review of the proportionality of every capital sentence it has reviewed. It is worth bearing in mind that, in many of the decisions he cites the court reversed the death sentence by examining the circumstances of the particular case; proportionality review would therefore have been superfluous. And the fact that, in others, the court was not explicit about comparative review does not mean none was undertaken. See Messer v. State, 439 So.2d 875, 879 (1983) (acknowledging proportionality review requirement, but rejecting "the assertion that in our written opinion we must explicitly compare each death sentence with past capital cases"). In any event, the critical question is what the Proffitt Court thought the Florida scheme was. In that regard, the joint opinion speaks for itself.

9.

Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.

428 U.S. at 273-274.

10.

Under the revised law, the substantive crime of murder is defined; and when a murder occurs in one of the five circumstances set out in the statute, the death penalty must be imposed if the jury also makes the certain additional findings against the defendant. Petitioner claims that the additional questions upon which the death sentence depends are so vague that, in essence, the jury possesses standardless sentencing power; but I agree with Justices STEWART, POWELL, and STEVENS that the issues posed in the sentencing proceeding have a common sense core of meaning, and that criminal juries should be capable of understanding them. The statute does not extend to juries discretionary power to dispense mercy, and it should not be assumed that juries will disobey or nullify their instructions. As of February of this year, 33 persons, including petitioner, had been sentenced to death under the Texas murder statute. I cannot conclude at this juncture that the death penalty under this system will be imposed so seldom and arbitrarily as to serve no useful penological function and hence fall within the reach of the decision announced by five Members the Court in Furman v. Georgia. . . . [T]he Texas capital punishment statute limits the imposition of the death penalty to a narrowly defined group of the most brutal crimes and aims at limiting its imposition to similar offenses occurring under similar circumstances.

Id. at 278-279 (WHITE, J., joined by BURGER, C.J., and REHNQUIST, J., concurring in judgment).

11. See also Woodson v. North Carolina, 428 U.S. 280, 319 (1976) (REHNQUIST, J., dissenting) ("If the States wish to undertake such an effort [i.e., proportionality review], they are undoubtedly free to do so, but surely it is not required by the United States Constitution").

12. We upheld the death sentence even though the State Supreme Court had invalidated, as unconstitutionally vague, one of the three aggravating circumstances relied on by the jury. The two remaining circumstances

adequately differentiate[d] this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed.

462 U.S. at 879.

13. Briefly, the statutory special circumstances are: (1) the murder was for profit; (2) the murder was perpetrated by an explosive; (3) the victim was a police officer killed in the line of duty; (4) the victim was a witness to a crime, killed to prevent his testifying in a criminal proceeding; (5) the murder was committed during the commission of robbery, kidnaping, rape, performance of a lewd or lascivious act on someone under 14, or burglary; (6) the murder involved torture; (7) the defendant had been previously convicted of first- or second-degree murder, or was convicted of more than one murder in the first or second degree in the instant proceeding. Cal.Penal Code Ann. § 190.2 (West Supp.1978). These are greatly expanded in the current statute. See Cal.Penal Code Ann. § 190.2 (West Supp.1983).

14. Briefly, the statutory special circumstances are: (1) the murder was for profit; (2) the murder was perpetrated by an explosive; (3) the victim was a police officer killed in the line of duty; (4) the victim was a witness to a crime, killed to prevent his testifying in a criminal proceeding; (5) the murder was committed during the commission of robbery, kidnaping, rape, performance of a lewd or lascivious act on someone under 14, or burglary; (6) the murder involved torture; (7) the defendant had been previously convicted of first- or second-degree murder, or was convicted of more than one murder in the first or second degree in the instant proceeding. Cal.Penal Code Ann. § 190.2 (West Supp.1978). These are greatly expanded in the current statute. See Cal.Penal Code Ann. § 190.2 (West Supp.1983).

15. The statute does not separate aggravating and mitigating circumstances. Section 190.3 provides:

In determining the penalty the trier of fact shall take into account any of the following factors if relevant:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to § 190.1.

(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence.

(c) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(d) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(e) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(f) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.

(g) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or the effects of intoxication.

(h) The age of the defendant at the time of the crime.

(i) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(j) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.