|Lockett v. Ohio
49 Ohio St.2d 48, 358 N.E.2d 1062, reversed in part and remanded.
[ Burger ]
[ Blackmun ]
[ Marshall ]
[ White ]
[ Rehnquist ]
Lockett v. Ohio
CERTIORARI TO THE SUPREME COURT OF OHIO
MR JUSTICE WHITE, concurring in part, dissenting in part, and concurring in the judgments of the Court. [*]
I concur in Parts I and II of the Court's opinion in Lockett v. Ohio, and Part I of the Court's opinion in Bell v. Ohio, post p. 637 and in the judgments. I cannot, however, agree with [p622] Part III of the plurality opinion in Lockett and Part II of the plurality opinion in Bell, and, to that extent, respectfully dissent.
The Court has now completed its about-face since Furman v. Georgia, 408 U.S. 238 (1972). Furman held that, as a result of permitting the sentencer to exercise unfettered discretion to impose or not to impose the death penalty for murder, the penalty was then being imposed discriminatorily, [n1] wantonly and freakishly, [n2] and so infrequently [n3] that any given death sentence was cruel and unusual. The Court began its retreat in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976), where a plurality held that statutes which imposed mandatory death sentences even for first-degree murders were constitutionally invalid because the Eighth Amendment required that consideration be given by the sentencer to aspects of character of the individual offender and the circumstances of the particular offense in deciding whether to impose the punishment of death. [n4] Today it is held, again through a plurality, that the sentencer may constitutionally impose the death penalty only as an exercise of his unguided discretion after being presented with all circumstances which the defendant might believe to be conceivably relevant to the appropriateness of the penalty for the individual offender. [n5] [p623]
With all due respect, I dissent. I continue to be of the view, for the reasons set forth in my dissenting opinion in Roberts, supra at 337, that it does not violate the Eighth Amendment for a State to impose the death penalty on a mandatory basis when the defendant has been found guilty beyond a reasonable doubt of committing a deliberate, unjustified killing. Moreover, I greatly fear that the effect of the Court's decision today will be to compel constitutionally a restoration of the state of affairs at the time Furman was decided, where the death penalty is imposed so erratically and the threat of execution is so attenuated for even the most atrocious murders that
its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.
Furman v. Georgia, supra at 312 (WHITE, J., concurring). By requiring as a matter of constitutional law that sentencing authorities be permitted to consider, and, in their discretion, to act upon, any and all mitigating circumstances, the Court permits them to refuse to impose the death penalty no matter what the circumstances of the crime. This invites a return to the pre-Furman days when the death penalty was generally reserved for those very few for whom society has least consideration. I decline to extend Woodson and Roberts in this respect.
It also seems to me that the plurality strains very hard and unsuccessfully to avoid eviscerating the handiwork in Proffitt v. Florida, 428 U.S. 242"]428 U.S. 242 (1976), and 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976); and surely it calls into question any other death penalty statute that permits only a limited number of [p624] mitigating circumstances to be placed before the sentencing authority or to be used in its deliberations.
I nevertheless concur in the judgments of the Court reversing the imposition of the death sentences because I agree with the contention of the petitioners, ignored by the plurality, that it violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim.
It is now established that a penalty constitutes cruel and unusual punishment if it is excessive in relation to the crime for which it is imposed. A punishment is disproportionate
if it (1) makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground.
Coker v. Georgia, 433 U.S. 584, 592 (1977) (opinion of WHITE, J.). Because it has been extremely rare that the death penalty has been imposed upon those who were not found to have intended the death of the victim, the punishment of death violates both tests under the circumstances present here.
According to the factual submissions before this Court, out of 363 reported executions for homicide since 1954 for which facts are available, only eight clearly involved individuals who did not personally commit the murder. [n6] Moreover, at least some of these eight executions involved individuals who intended [p625] to cause the death of the victim. [n7] Furthermore, the last such execution occurred in 1955. In contrast, there have been 72 executions for rape in the United States since 1954. [n8]
I recognize that approximately half of the States have not legislatively foreclosed the possibility of imposing the death penalty upon those who do not intend to cause death. The ultimate judgment of the American people concerning the imposition of the death penalty upon such defendants, however, is revealed not only by the content of statutes and by the imposition of capital sentences, but also by the frequency with which society is prepared actually to inflict the punishment of death. See Furman v. Georgia, 408 U.S. 238 (1972). It is clear from recent history that the infliction of death under circumstances where there is no purpose to take life has been widely rejected as grossly out of proportion to the seriousness of the crime.
The value of capital punishment as a deterrent to those lacking a purpose to kill is extremely attenuated. Whatever questions may be raised concerning the efficacy of the death penalty as a deterrent to intentional murders -- and that debate rages on -- its function in deterring individuals from becoming involved in ventures in which death may unintentionally result is even more doubtful. Moreover, whatever legitimate purposes the imposition of death upon those who do not intend to cause death might serve if inflicted with any regularity is surely dissipated by society's apparent unwillingness to impose it upon other than an occasional and erratic basis. See id. at 310 (WHITE, J., concurring). [p626]
Under those circumstances, the conclusion is unavoidable that the infliction of death upon those who had no intent to bring about the death of the victim is not only grossly out of proportion to the severity of the crime, but also fails to contribute significantly to acceptable or, indeed, any perceptible goals of punishment.
This is not to question, of course, that those who engage in serious criminal conduct which poses a substantial risk of violence, as did the present petitioners, deserve serious punishment regardless of whether or not they possess a purpose to take life. And the fact that death results, even unintentionally, from a criminal venture need not and frequently is not regarded by society as irrelevant to the appropriate degree of punishment. But society has made a judgment, which has deep roots in the history of the criminal law, see United States v. United States Gypsum Co., ante, p. 422, distinguishing, at least for purpose of the imposition of the death penalty, between the culpability of those who acted with and those who acted without a purpose to destroy human life.
Both of these petitioners were sentenced to death without a finding at any stage of the proceeding that they intended the death of those who were killed as a result of their criminal conduct. In Lockett v. Ohio, the trial judge instructed the jury as follows:
A person engaged in a common design with others to rob by force and violence an individual or individuals of their property is presumed to acquiesce in whatever may reasonably be necessary to accomplish the object of their enterprise. . . .
If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender as an aider and abettor in the homicide. . . . An intent to kill by an aider and abettor may be [p627] found to exist beyond a reasonable doubt under such circumstances.
On appeal, the Ohio Supreme Court held that, where
it might be reasonably expected by all the participants that the victim's life would be endangered by the manner and means of performing the act conspired . . . , participants [are] bound by all the consequences naturally and probably arising from the furtherance of the conspiracy to commit the robbery.
49 Ohio St.2d 48, 62, 358 N.E.2d 1062, 1072 (1976). It is thus clear that, under Ohio law, a defendant may be convicted of aggravated murder with aggravating specifications and sentenced to death without a finding that he intended death to result, but only that he engaged in criminal conduct which posed a substantial risk of death to others. Moreover, it appears that nowhere during either the trial or sentencing process was any finding made that Lockett intended that death be inflicted in connection with the robbery. The petitioner in Bell v. Ohio, post, p. 637, was tried before a three-judge panel. Again, however, no findings were made either during the trial or sentencing stage of the process that Bell intended the death of the victim which resulted from the criminal conduct in which he was engaged.
Of course, the facts of both of these cases might well permit the inference that the petitioners did, in fact, intend the death of the victims. But there is a vast difference between permitting a factfinder to consider a defendant's willingness to engage in criminal conduct which poses a substantial risk of death in deciding whether to infer that he acted with a purpose to take life, and defining such conduct as an ultimate fact equivalent to possessing a purpose to kill, as Ohio has done. See United States v. United States Gypsum Co., ante, p. 422. Indeed, the type of conduct which Ohio would punish by death requires at most the degree of mens rea defined by the ALI Model Penal Code (1962) as recklessness: conduct undertaken with knowledge that death is likely to [p628] follow. [n9] Since I would hold that death may not be inflicted for killings consistent with the Eighth Amendment without a finding that the defendant engaged in conduct with the conscious purpose of producing death, these sentences must be set aside. [n10]
* [This opinion applies also to No. 76-6513, Bell v. Ohio, post, p. 637.]
1. See Furman v. Georgia, 408 U.S. at 240 (Douglas, J., concurring).
2. See id. at 306 (STEWART, J., concurring).
3. See id. at 310 (WHITE, J., concurring).
4. The Court took a further step along this path in Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977), which held that the imposition of a mandatory death sentence even upon one convicted of the first-degree murder of a police officer engaged in the performance of his duties constituted cruel and unusual punishment.
5. The plurality's general endorsement of individualized sentencing as representing enlightened public policy even apart from the Eighth Amendment context, ante at 602-603, is not only questionable but also highly inappropriate in light of the fact that Congress, after detailed study of the matter, is currently giving serious consideration to legislation adopting the view that the goals of the criminal law are best achieved by a system of sentencing which narrowly limits the discretion of the sentencer. See S. 1437, 95th Cong., 2d Sess. (approved by the Senate on Jan. 30, 1978).
6. The study is based upon reported appellate opinions. There were eight additional cases in which the facts were not reported in sufficient detail to permit a determination as to the status of the executed person. I recognize that, because of the absence of reported appellate opinions for some cases, this study does not include all executions within the relevant time period. There is no reason whatsoever to suppose, however, that the statistics relevant to these executions would alter the conclusions to be drawn from those included in the study.
7. In two of these cases, the executed person arranged for another to commit the murder for him. I realize that it may be conceivable that a few of the "triggermen" actually executed lacked an intent to kill. But such cases will of necessity be rare.
8. United States Department of Justice, Law Enforcement Assistance Administration, National Prisoner Statistics Bulletin No. SD-NPS-CP, Capital Punishment 1974, pp. 117 (Nov.1975).
9. Section 2.02(2)(c) provides:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
In contrast, § 2.02(2)(a) provides:
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result. . . .
10. I find it unnecessary to address other constitutional challenge to the death sentences imposed in these cases.