MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS concluded that:
(1) The punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments.
(a) The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is "excessive" either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime.
(b) Though a legislature may not impose excessive punishment, it is not required to select the least severe penalty possible, and a heavy burden rests upon those attacking its judgment
(c) The existence of capital punishment was accepted by the Framers of the Constitution, and, for nearly two centuries, this Court has recognized that capital punishment for the crime of murder is not invalid per se.
(d)Legislative measures adopted by the people's chosen representatives weigh heavily in ascertaining contemporary standards of decency; and the argument that such standards require that the Eighth Amendment be construed as prohibiting the death penalty has been undercut by the fact that, in the four years since Furman, supra, was decided, Congress and at least 35 States have enacted new statutes providing for the death penalty.
(e) Retribution and the possibility of deterrence of capital crimes by prospective offenders are not impermissible considerations for a legislature to weigh in determining whether the death penalty should be imposed, and it cannot be said that Georgia's legislative judgment that such a penalty is necessary in some cases is clearly wrong
(f) Capital punishment for the crime of murder cannot be viewed as invariably disproportionate to the severity of that crime.
2. The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance, concerns 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 that information.
The Georgia statutory system under which petitioner was sentenced to death is constitutional. The new procedures, on their face, satisfy the concerns of Furman, since, before the death penalty can be imposed, there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. Petitioner's contentions that the changes in Georgia's sentencing procedures have not removed the elements of arbitrariness and capriciousness condemned by Furman are without merit
(a) The opportunities under the Georgia scheme for affording an individual defendant mercy -- whether through the prosecutor's unfettered authority to select those whom he wishes to prosecute for capital offenses and to plea bargain with them; the jury's option to convict a defendant of a lesser included offense; or the [p*156] fact that the Governor or pardoning authority may commute a death sentence -- do not render the Georgia statute unconstitutional
(b) Petitioner's arguments that certain statutory aggravating circumstances are too broad or vague lack merit, since they need not be given overly broad constructions or have been already narrowed by judicial construction. One such provision was held impermissibly vague by the Georgia Supreme Court. Petitioner's argument that the sentencing procedure allows for arbitrary grants of mercy reflects a misinterpretation of Furman, and ignores the reviewing authority of the Georgia Supreme Court to determine whether each death sentence is proportional to other sentences imposed for similar crimes. Petitioner also urges that the scope of the evidence and argument that can be considered at the presentence hearing is too wide, but it is desirable for a jury to have as much information as possible when it makes the sentencing decision.
(c) The Georgia sentencing scheme also provides for automatic sentence review by the Georgia Supreme Court to safeguard against prejudicial or arbitrary factors. In this very case, the court vacated petitioner's death sentence for armed robbery as an excessive penalty.
MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, concluded that:
1. Georgia's new statutory scheme, enacted to overcome the constitutional deficiencies found in Furman v. Georgia, 408 U.S. 238 , to exist under the old system, not only guides the jury in its exercise of discretion as to whether or not it will impose the death penalty for first-degree murder, but also gives the Georgia Supreme Court the power and imposes the obligation to decide whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. If that court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Petitioner has wholly failed to establish that the Georgia Supreme Court failed properly to perform its task in the instant case, or that it is incapable of performing its task adequately in all cases. Thus, the death penalty may be carried out under the Georgia legislative scheme consistently with the Furman decision.
2. Petitioner's argument that the prosecutor's decisions in plea bargaining or in declining to charge capital murder are standardless, and will result in the wanton or freakish imposition of the death penalty condemned in Furman, is without merit, for the assumption cannot be made that prosecutors will be motivated in their charging decisions by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts; the standards by which prosecutors decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence
3. Petitioner's argument that the death penalty, however imposed and for whatever crime, is cruel and unusual punishment is untenable for the reasons stated in MR. JUSTICE WHITE's dissent in Roberts v. Louisiana, post
MR. JUSTICE BLACKMUN concurred in the judgment
Judgment of the Court, and opinion of STEWART, POWELL, and STEVENS, JJ., announced by STEWART, J., BURGER, C.J., and REHNQUIST, J., filed a statement concurring in the judgment, post, p. 226 . WHITE, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 207 . BLACKMUN, J., filed a statement concurring in the judgment, post, p. 227 . BRENNAN, J., post, p. 227 , and MARSHALL, J., post, p. 231 , filed dissenting opinions.
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