Judgment of the Court, and opinion of
Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stewart.
The question in this case is whether the imposition of a death sentence for the crime of first-degree murder under the law of North Carolina violates the Eighth and Fourteenth Amendments.
I
The petitioners were convicted of first-degree murder as the result of their participation in an armed robbery of a convenience food store, in the course of which the cashier was killed and a customer was seriously wounded. There were four participants in the robbery: the petitioners James Tyrone Woodson and Luby Waxton and two others, Leonard Tucker and Johnnie Lee Carroll. At the petitioners’ trial Tucker and Carroll testified for the prosecution after having been permitted to plead guilty to lesser offenses; the petitioners testified in their own defense.
The evidence for the prosecution established that the four men had been discussing a possible robbery for some time. On the fatal day Woodson had been drinking heavily. About 9:30 p. m., Waxton and Tucker came to the trailer where Woodson was staying. When Woodson came out of the trailer, Waxton struck him in the face and threatened to kill him in an effort to make him sober up and come along on the robbery. The three proceeded to Waxton’s trailer where they met Carroll. Waxton armed himself with a nickel-plated derringer, and Tucker handed Woodson a rifle. The four then set out by automobile to rob the store. Upon arriving at their destination Tucker and Waxton went into the store while Carroll and Woodson remained in the car as lookouts. Once inside the store, Tucker purchased a package of cigarettes from the woman cashier. Waxton then also asked for a package of cigarettes, but as the cashier approached him he pulled the derringer out of his hip pocket and fatally shot her at point-blank range. Waxton then took the money tray from the cash register and gave it to Tucker, who carried it out of the store, pushing past an entering customer as he reached the door. After he was outside, Tucker heard a second shot from inside the store, and shortly thereafter Waxton emerged, carrying a handful of paper money. Tucker and Wax-ton got in the car and the four drove away.
The petitioners’ testimony agreed in large part with this version of the circumstances of the robbery. It differed diametrically in one important respect: Waxton claimed that he never had a gun, and that Tucker had shot both the cashier and the customer.
During the trial Waxton asked to be allowed to plead guilty to the same lesser offenses to which Tucker had pleaded guilty, but the solicitor refused to accept the pleas. Woodson, by contrast, maintained throughout the trial that he had been coerced by Waxton, that he waS Therefore innocent, and that he would not consider pleading guilty to any offense.
The petitioners were found guilty on all charges, and, as was required by statute, sentenced to death. The Supreme Court of North Carolina affirmed. 287 N. C. 578, 215 S. E. 2d 607 (1975). We granted certiorari, 423 U. S. 1082 (1976), to consider whether the imposition of the death penalties in this case comports 'with the Eighth and Fourteenth Amendments to the United States Constitution.
II
The petitioners argue that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, ante, at 168-187.
III
At the time of this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), North Carolina law provided that in cases of first-degree murder, the jury in its unbridled discretion could choose whether the convicted defendant should be sentenced to death or to life imprisonment. After the Furman decision the Supreme Court of North Carolina in State v. Waddell, 282 N. C. 431; 194 S. E. 2d 19 (1973), held unconstitutional the provision of the death penalty statute that gave the jury the option of returning a verdict of guilty without capital punishment, but held further that this provision was severable so that the statute survived as a mandatory death penalty law.
The North Carolina General Assembly in 1974 followed the court’s lead and enacted a new statute that was essentially unchanged from the old one except that it made the death penalty mandatory. The statute now reads as follows:
“Murder in the first and second degree defined; punishment. — A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State’s prison.” N. C. Gen. Stat. §14-17 (Cum. Supp. 1975).
It was under this statute that the petitioners, who committed their crime on June 3, 1974, were tried, convicted, and sentenced to death.
North Carolina, unlike Florida, Georgia, and Texas, has thus responded to the Furman decision by making death the mandatory sentence for all persons convicted of first-degree murder. In ruling on the constitutionality of the sentences imposed on the petitioners under this North Carolina statute, the Court now addresses for the first time the question whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments. The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death.
A
The Eighth Amendment stands to assure that the State’s power to punish is “exercised within the limits of civilized standards.” Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion). See id., at 101; Weems v. United States, 217 U. S. 349, 373, 378 (1910); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 468-469 (1947) (Frankfurter, J., concurring); Robinson v. California, 370 U. S. 660, 666 (1962); Furman v. Georgia, 408 U. S., at 242 (Douglas, J., concurring); id., at 269-270 (Brennan, J., concurring); id., at 329 (Marshall, J., concurring) ; id., at 382-383 (Burger, C. J., dissenting) ; id., at 409 (Blackmun, J., dissenting); id., at 428-429 (Powell, J., dissenting). Central to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment. As discussed in Gregg v. Georgia, ante, at 176-182, indicia of societal values identified in prior opinions include history and traditional usage, legislative enactments, and jury determinations.
In order to provide a frame for assessing the relevancy of these factors in this case we begin by sketching the history of mandatory death penalty statutes in the United States. At the time the Eighth Amendment was adopted in 1791, the States uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses. Although the range of capital offenses in the American Colonies was quite limited in comparison to the more than 200 offenses then punishable by death in England, the Colonies at the time of the Revolution imposed death sentences on all persons convicted of any of a considerable number of crimes, typically including at a minimum, murder, treason, piracy, arson, rape, robbery, burglary, and sodomy. As at common law, all homicides that were not involuntary, provoked, justified, or excused constituted murder and were automatically punished by death. Almost from the outset jurors reacted unfavorably to the harshness of mandatory death sentences. The States initially responded to this expression of public dissatisfaction with mandatory statutes by limiting the classes of capital offenses.
This reform, however, left unresolved the problem posed by the not infrequent refusal of juries to convict murderers rather than subject them to automatic death sentences. In 1794, Pennsylvania attempted to alleviate the undue severity of the law by confining the mandatory death penalty to “murder of the first degree” encompassing all “wilful, deliberate and premeditated” killings. Pa. Laws 1794 c. 1766. Other jurisdictions, including Virginia and Ohio, soon enacted similar measures, and within a generation the practice spread to most of the States.
Despite the broad acceptance of the division of murder into degrees, the reform proved to be an unsatisfactory means of identifying persons appropriately punishable by death. Although its failure was due in part to the amorphous nature of the controlling concepts of willfulness, deliberateness, and premeditation, a more fundamental weakness of the reform soon became apparent. Juries continued to find the death penalty inappropriate in a significant number of first-degree murder cases and refused to return guilty verdicts for that crime.
The inadequacy of distinguishing between murderers solely on the basis of legislative criteria narrowing the definition of the capital offense led the States to grant juries sentencing discretion in capital cases. Tennessee in 1838, followed by Alabama in 1841, and Louisiana in 1846, were the first States to abandon mandatory death sentences in favor of discretionary death penalty statutes. This flexibility remedied the harshness of mandatory statutes by permitting the jury to respond to mitigating factors by withholding the death penalty. By the turn of the century, 23 States and the Federal Government had made death sentences discretionary for first-degree murder and other capital offenses. During the next two decades 14 additional States replaced their mandatory death penalty statutes. Thus, by the end of World War I, all but eight States, Hawaii, and the District of Columbia either had adopted discretionary death penalty schemes or abolished the death penalty altogether. By 1963, all of these remaining jurisdictions had replaced their automatic death penalty statutes with discretionary jury sentencing.
The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unwork-ably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society — jury determinations and legislative enactments — both point conclusively to the repudiation of automatic death sentences. At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict. As we have seen, the initial movement to reduce the number of capital offenses and to separate murder into degrees was prompted in part by the reaction of jurors as well as by reformers who objected to the imposition of death as the penalty for any crime. Nineteenth century journalists, statesmen, and jurists repeatedly observed that jurors were often deterred from convicting palpably guilty men of first-degree murder under mandatory statutes. Thereafter, continuing evidence of jury reluctance to convict persons of capital offenses in mandatory death penalty jurisdictions resulted in legislative authorization of discretionary jury sentencing — by Congress for federal crimes in 1897, by North Carolina in 1949, and by Congress for the District of Columbia in 1962.
As we have noted today in Gregg v. Georgia, ante, at 179-181, legislative measures adopted by the people’s chosen representatives weigh heavily in ascertaining contemporary standards of decency. The consistent course charted by the state legislatures and by Congress since the middle of the past century demonstrates that the aversion of jurors to mandatory death penalty statutes is shared by society at large.
Still further evidence of the incompatibility of mandatory death penalties with contemporary values is provided by the results of jury sentencing under discretionary statutes. In Witherspoon v. Illinois, 391 U. S. 510 (1968), the Court observed that “one of the most important functions any jury can perform” in exercising its discretion to choose “between life imprisonment and capital punishment” is “to maintain a link between contemporary community values and the penal system.” Id., at 519, and n. 15. Various studies indicate that even in first-degree murder cases juries with sentencing discretion do not impose the death penalty “with any great frequency.” H. Kalven & H. Zeisel, The American Jury 436 (1966). The actions of sentencing juries suggest that under contemporary standards of decency death is viewed as an inappropriate punishment for a substantial portion of convicted first-degree murderers.
Although the Court has never ruled on the constitutionality of mandatory death penalty statutes, on several occasions dating back to 1899 it has commented upon our society’s aversion to automatic death sentences. In Winston v. United States, 172 U. S. 303 (1899), the Court noted that the “hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, instead of by death.” Id., at 310. Fifty years after Winston, the Court underscored the marked transformation in our attitudes toward mandatory sentences: “The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions . . . .” Williams v. New York, 337 U. S. 241, 247 (1949).
More recently, the Court in McGautha v. California, 402 U. S. 183 (1971), detailed the evolution of discretionary imposition of death sentences in this country, prompted by what it termed the American “rebellion against the common-law rule imposing a mandatory death sentence on all convicted murderers.” Id., at 198. See id., at 198-202. Perhaps the one important factor about evolving social values regarding capital punishment upon which the Members of the Furman Court agreed was the accuracy of McGautha’s assessment of our Nation’s rejection of mandatory death sentences. See Furman v. Georgia, 408 U. S., at 245-246 (Douglas, J., concurring); id., at 297-298 (Brennan, J., concurring); id., at 339 (Marshall, J., concurring); id., at 402-403 (Burger, C. J., with whom Blackmun, Powell, and Rehnquist, JJ., joined, dissenting); id., at 413 (Blackmun, J., dissenting). Mr. 'Justice Blackmun, for example, emphasized that legislation requiring an automatic death sentence for specified crimes would be “regressive and of an antique mold” and would mark a return to a “point in our criminology [passed beyond] long ago.” Ibid. The Chief Justice, speaking for the four dissenting Justices in Furman, discussed the question of mandatory death sentences at some length:
“I had thought that nothing was clearer in history, as we noted in McGautha one year ago, than the American abhorrence of 'the common-law rule imposing a mandatory death sentence on all convicted murderers.’ 402 U. S., at 198. As the concurring opinion of Mr. Justice Marshall shows, [408 U. S.,] at 339, the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process. It recognized that individual culpability is not always measured by the category of the crime committed. This change in sentencing practice was greeted by the Court as a humanizing development. See Winston, v. United States, 172 U. S. 303 (1899); cf. Calton v. Utah, 130 U. S. 83 (1889). See also Andres v. United States, 333 U. S. 740, 753 (1948) (Frankfurter, J., concurring).” Id., at 402.
Although it seems beyond dispute that, at the time of the Furman decision in 1972, mandatory death penalty statutes had been renounced by American juries and legislatures, there remains the question whether the mandatory statutes adopted by North Carolina and a number of other States following Furman evince a sudden reversal of societal values regarding the imposition of capital punishment. In view of the persistent and unswerving legislative rejection of mandatory death penalty statutes beginning in 1838 and continuing for more than 130 years until Furman, it seems evident that the post-Furman enactments reflect attempts by the States to retain the death penalty in a form consistent with the Constitution, rather than a renewed societal acceptance of mandatory death sentencing. The fact that some States have adopted mandatory measures following Fur-man while others have legislated standards to guide jury discretion appears attributable to diverse readings of this Court’s multi-opinioned decision in that case.
A brief examination of the background of the current North Carolina statute serves to reaffirm our assessment of its limited utility as an indicator of contemporary values regarding mandatory death sentences. Before 1949, North Carolina imposed a mandatory death sentence on any person convicted of rape or first-degree murder. That year, a study commission created by the state legislature recommended that juries be granted discretion to recommend life sentences in all capital cases:
“We propose that a recommendation of mercy by the jury in capital cases automatically carry with it a life sentence. Only three other states now have the mandatory death penalty and we believe its retention will be definitely harmful. Quite frequently, juries refuse to convict for rape or first degree murder because, from all the circumstances, they do not believe the defendant, although guilty, should suffer death. The result is that verdicts are returned hardly in harmony with evidence. Our proposal is already in effect in respect to the crimes of burglary and arson. There is much testimony that it has proved beneficial in such cases. We think the law can now be broadened to include all capital crimes.” Report of the Special Commission For the Improvement of the Administration of Justice, North Carolina, Popular Government 13 (Jan. 1949).
The 1949 session of the General Assembly of North Carolina adopted the proposed modifications of its rape and murder statutes. Although in subsequent years numerous bills were introduced in the legislature to limit further or abolish the death penalty in North Carolina, they were rejected as were two 1969 proposals to return to mandatory death sentences for all capital offenses. See State v. Waddell, 282 N. C., at 441, 194 S. E. 2d, at 26 (opinion of the court); id., at 456-457, 194 S. E. 2d, at 32-33 (Bobbitt, C. J., concurring in part and dissenting in part).
As noted, supra, at 285-286, when the Supreme Court of North Carolina analyzed the constitutionality of the State's death penalty statute following this Court’s decision in Furman, it severed the 1949 proviso authorizing jury sentencing discretion and held that “the remainder of the statute with death as the mandatory punishment . . . remains in full force and effect.” State v. Waddell, supra, at 444-445, 194 S. E. 2d, at 28. The North Carolina General Assembly then followed the course found constitutional in Waddell and enacted a first-degree murder provision identical to the mandatory statute in operation prior to the authorization of jury discretion. The State’s brief in this case relates that the legislature sought to remove “all sentencing discretion [so that] there could be no successful Furman based attack on the North Carolina statute.”
It is now well established that the Eighth Amendment draws much of its meaning from “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S., at 101 (plurality opinion). As the above discussion makes clear, one of the most significant developments in our society’s treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina’s mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State’s power to punish “be exercised within the limits of civilized standards.” Id., at 100.
B
A separate deficiency of North Carolina's mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman’s, rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. See Furman v. Georgia, 408 U. S., at 309-310 (Stewart, J., concurring); id., at 313 (White, J., concurring); cf. id., at 253-257 (Douglas, J., concurring). See also id., at 398-399 (Burger, C. J., dissenting). It is argued that North Carolina has remedied the inadequacies of the death penalty statutes held unconstitutional in Furman by withdrawing all sentencing discretion from juries in capital cases. But when one considers the long and consistent American experience with the death penalty in first-degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury discretion.
As we have noted in Part III-A, supra, there is general agreement that American juries have persistently refused to convict a significant portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes. The North Carolina study commission, supra, at 299-300, reported that juries in that State “[q]uite frequently” were deterred from rendering guilty verdicts of first-degree murder because of the enormity of the sentence automatically imposed. Moreover, as a matter of historic fact, juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first-degree murder cases. In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict. North Carolina’s mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury’s willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman’s, basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.
C
A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied — that death is a punishment different from all other sanctions in kind rather than degree. See 408 U. S., at 286-291 (Brennan, J., concurring); id., at 306 (Stewart, J., concurring). A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U. S., at 247-249; Furman v. Georgia, 408 U. S., at 402-403 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U. S., at 100 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
For the reasons stated, we conclude that the death sentences imposed upon the petitioners under North Carolina's mandatory death sentence statute violated the Eighth and Fourteenth Amendments and therefore must be set aside. The judgment of the Supreme Court of North Carolina is reversed insofar as it upheld the death sentences imposed upon the petitioners, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Tucker had been allowed to plead guilty to charges of accessory after the fact to murder and to armed robbery. He was sentenced to 19 years’ imprisonment on the first charge, and to not less than 20 years nor more than 30 years on the second, the sentences, to run concurrently.
The solicitor gave no reason for refusing to accept Waxton’s offer to plead guilty to a lesser offense. The Supreme Court of North Carolina, in finding that the solicitor had not abused his discretion, noted:
“The evidence that Waxton planned and directed the robbery and that he fired the shots which killed Mrs. Butler and wounded Mr. Stancil is overwhelming. No extenuating circumstances gave the solicitor any incentive to accept the plea he tendered at the close of the State’s evidence.” 287 N. C. 578, 595-596, 215 S. E. 2d 607, 618 (1975).
In addition to first-degree murder, both petitioners were found guilty of armed robbery. Waxton was also found guilty of assault with a deadly weapon with intent to kill, a charge arising from the wounding of the customer.
The murder statute in effect in North Carolina until April 1974 read as follows:
“§ 14-17. Murder in the first and second degree defined; punishment. — A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shah so recommend, the punishment shall be imprisonment fo-r life in the State’s prison, and the court shall so instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State’s prison.” N. C. Gen. Stat. § 14-17 (1969).
The court characterized the effect of the statute without the invalid provision as follows:
“Upon the return of a verdict of guilty of any such offense, the court must pronounce a sentence of death. The punishment to be imposed for these capital felonies is no longer a discretionary question for the jury and therefore no longer a proper subject for an instruction by the judge." 282 N. C., at 445, 194 S. E. 2d, at 28-29.
North Carolina also has enacted a mandatory death sentence statute for the crime of first-degree rape. N. C. Gen. Stat. § 14 — 21 (Cum. Supp. 1975).
This case does not involve a mandatory death penalty statute limited to an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence, defined in large part in terms of the character or record of the offender. We thus express no opinion regarding the constitutionality of such a statute. See n. 25, infra.
The Eighth Amendment's proscription of cruel and unusual punishments has been held to be applicable to the States through the Fourteenth Amendment. See Robinson v. California, 370 U. S. 660 (1962).
The Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), involved statutes providing for jury discretion in the imposition of death sentences. Several members of the Court in Furman expressly declined to state their views regarding the constitutionality of mandatory death sentence statutes. See id,., at 257 (Douglas, J., concurring); id., at 307 (Stewart, J., concurring); id., at 310-311 (White, J., concurring).
The petitioners here, as in the other four death penalty cases before the Court, contend that their sentences were imposed in violation of the Constitution because North Carolina has failed to eliminate discretion from all phases of its procedure for imposing capital punishment. We have rejected similar claims today in Gregg, Prof-fitt, and Jureh. The mandatory nature of the North Carolina death penalty statute for first-degree murder presents a different question under the Eighth and Fourteenth Amendments.
Mr. Justice Frankfurter contended that the Eighth Amendment did not apply to the States through the Fourteenth Amendment. He believed, however, that the Due Process Clause of the Fourteenth Amendment itself "expresses a demand for civilized standards.” Louisiana ex rel. Francis v. Resweber, 329 U. S., at 468 (concurring opinion).
See Trop v. Dulles, 356 U. S. at 99 (plurality opinion) (dictum). See also Furman v. Georgia, supra, at 291 (Brennan, J., concurring).
See Weems v. United States, 217 U. S. 349, 377 (1910) (noting that the punishment of cadena temporal at issue in that case had “no fellow in American legislation”); Furman v. Georgia, supra, at 436-437 (Powell, J., dissenting); Gregg v. Georgia, ante, at 179-181.
See Witherspoon v. Illinois, 391 U. S. 510, 519, and n. 15 (1968); McGautha v. California, 402 U. S. 183, 201-202 (1971); Furman v. Georgia, supra, at 388 (Burger, C. J., dissenting); id., at 439-441 (Powell, J., dissenting) (“Any attempt to discern, therefore, where prevailing standards of decency lie must take careful account of the jury’s response to the question of capital punishment”).
See H. Bedau, The Death Penalty in America 5-6, 15, 27-28 (rev. ed. 1967) (hereafter Bedau).
See id., at 1-2; R. Bye, Capital Punishment in the United States 1-2 (1919) (hereafter Bye).
See Bedau 6; Bye 2-3 (most New England Colonies made 12 offenses capital; Rhode Island, with 10 capital crimes, was the “mildest of all of the colonies”); Hartung, Trends in the Use of Capital Punishment, 284 Annals of Am. Academy of Pol. and Soe. Sci. 8, 10 (1952) (“The English colonies in-this country had from ten to eighteen capital offenses”).
See Bedau 23-24.
See id., at 27; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1102 (1953); Mackey, The Inutility of Mandatory Capital Punishment: An Historical Note, 54 B. U. L. Rev. 32 (1974); McGautha v. California, supra, at 198-199; Andres v. United States, 333 U. S. 740, 753 (1948) (Frankfurter, J., concurring); Winston v. United States, 172 U. S. 303, 310 (1899).
See Bye 5. During the colonial period, Pennsylvania in 1682 under the Great Law of William Penn limited capital punishment to murder. Following Penn’s death in 1718, however, Pennsylvania greatly expanded the number of capital offenses. See Hartung, supra, n. 16, at 9-10.
Many States during the early 19th century significantly reduced the number of crimes punishable by death. See Davis, The Movement to Abolish Capital Punishment in America, 1787-1861, 63 Am. Hist. Rev. 23, 27, and n. 15 (1957).
See Bedau 24.
See ibid.; Davis, supra, at 26-27, n. 13. By the late 1950’s, some 34 States had adopted the Pennsylvania formulation, and only 10 States retained a single category of murder as defined at common law. See American Law Institute, Model Penal Code § 201.6, Comment 2, p. 66 (Tent.. Draft No. 9, 1959).
See McGautha v. California, supra, at 198-199.
See Bedau 27; Mackey, supra, n. 18; McGautha v. California, supra, at 199.
See Tenn. Laws 1837-1838, c. 29; Ala. Laws 1841; La. Laws 1846, Act No. 139. See also W. Bowers, Executions in America 7 (1974).
Prior to the Tennessee reform in 1838, Maryland had changed from a mandatory to an optional death sentence for the crimes of treason, rape, and arson. Md. Laws 1809, c. 138. For a time during the early colonial period Massachusetts, as part of its “Capitall Lawes” of 1636, apparently had a nonmandatory provision for the crime of rape. See Bedau 28.
See Bowers, supra, at 7-9 (Table 1-2 sets forth the date each State adopted discretionary jury sentencing); Brief for United States as Amicus Curiae in McGautha v. California, O. T. 1970, No. 70-203, App. B (listing statutes in each State initially introducing discretionary jury sentencing in capital cases), App. C (listing state statutes in force in 1970 providing for discretionary jury sentencing in capital murder cases).
Prior to this Court’s 1972 decision in Furman v. Georgia, 408 U. S. 238, there remained a handful of obscure statutes scattered among the penal codes in various States that required an automatic death sentence upon conviction of a specified offense. These statutes applied to such esoteric crimes as trainwrecking resulting in death, perjury in a capital case resulting in the execution of an innocent person, and treason against a state government. See Bedau 46-47 (1964 compilation). The most prevalent of these statutes dealt with the crime of treason against state governments. Ibid. It appears that no one has ever been prosecuted under these or other state treason laws. See Hartung, supra, n. 16, at 10. See also T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 1 (1959) (discussing the Michigan statute, subsequently repealed in 1963, and the North Dakota statute). Several States retained mandatory death sentences for perjury in capital cases resulting in the execution of an innocent person. Data covering the years from 1930 to 1961 indicate, however, that no State employed its capital perjury statute during that period. See Bedau 46.
The only category of mandatory death sentence statutes that appears to have had any relevance to the actual administration of the death penalty in t-he years preceding Furman concerned the crimes of murder or assault with a deadly weapon by a life-term prisoner. Statutes of this type apparently existed in five States in 1964. See id., at 46-47. In 1970, only five of the more than 550 prisoners under death sentence across the country had been sentenced under a mandatory death penalty statute. Those prisoners had all been convicted under the California statute applicable to assaults by life-term prisoners. See Brief For NAACP Legal Defense and Educational Fund, Inc., et al., as Amici Curiae in McGautha v. California, O. T. 1970, No. 70-203, p. 15 n. 19. We have no occasion in this ease to examine the constitutionality of mandatory death sentence statutes applicable to prisoners serving life sentences.
See Mackey, supra, n. 18.
See H. R. Rep. No. 108, 54th Cong., 1st Sess., 2 (1896) (noting that the modification of the federal capital statutes to make the death penalty discretionary was in harmony with “a growing public sentiment,” quoting H. R. Rep. No. 545, 53d Cong., 2d Sess., 1 (1894)); S. Rep. No. 846, 53d Cong., 3d Sess. (1895).
See Report of the Special Commission for the Improvement of the Administration of Justice, North Carolina, Popular Government 13 (Jan. 1949).
See unpublished Hearings on S. 138 before the Subcommittee on the Judiciary of the Senate Committee on the District of Columbia 19-20 (May 17, 1961) (testimony of Sen. Keating). Data compiled by a former United States Attorney for the District of Columbia indicated that juries convicted defendants of first-degree murder in only 12 of the 60 jury trials for first-degree murder held in the District of Columbia between July 1, 1953, and February 1960. Ibid. The conviction rate was “substantially below the general average in prosecuting other crimes.” Id., at 20. The lower conviction rate was attributed to the reluctance of jurors to impose the harsh consequences of a first-degree murder conviction in cases where the record might justify a lesser punishment. Ibid. See McCafferty, Major Trends in the Use of Capital Punishment, 1 Am. Crim. L. Q. No. 2, pp. 9, l-L-15 (1963) (discussing a similar study of first-degree murder cases in the District of Columbia during the period July 1, 1947, through June 30, 1958).
A study of the death penalty submitted to the American Law Institute noted that juries in Massachusetts and Connecticut had "for many years” resorted to second-degree murder convictions to avoid the consequences of those States’ mandatory death penalty statutes for first-degree murder, prior to their replacement with discretionary sentencing in 1951. See Sellin, supra, n. 25, at 13.
A 1973 Pennsylvania legislative report surveying the available literature analyzing mandatory death sentence statutes concluded:
“Although the data collection techniques in some instances are weak, the uniformity of the conclusions in substantiating what these authors termed 'jury nullification’ (i. e. refusal to convict because of the required penalty) is impressive. Authors on both sides of the capital punishment debate reached essentially the same conclusions. Authors writing about the mandatory death penalty who wrote in 1892 reached the same conclusions as persons writing in the 1950’s and 1960’s.” MeCloskey, A Review of the Literature Contrasting Mandatory and Discretionary Systems of Sentencing Capital Cases, in Report of the Governor’s Study Commission on Capital Punishment 100, 101 (Pa., 1973).
Not only have mandatory death sentence laws for murder been abandoned by legislature after legislature since Tennessee replaced its mandatory statute 138 years ago, but, with a single exception, no State prior to this Court’s Furman decision in 1972 ever returned to a mandatory scheme after adopting discretionary sentencing. See Bedau 30; Bowers, supra, n. 29, at 9. Vermont, which first provided for jury discretion in 1911, was apparently prompted to return to mandatory sentencing by a “veritable crime wave of twenty murders” in 1912. See Bedau 30. Vermont reinstituted discretionary jury sentencing in 1957.
Data compiled on discretionary jury sentencing of persons convicted of capital murder reveal that the penalty of death is generally imposed in less than 20% of the cases. See Furman v. Georgia, 408 U. S., at 386-387, n. 11 (Burger, C. J., dissenting); id., at 435-436, n. 19 (Powell, J., dissenting); Brief for Petitioner in Aikens v. California, O. T. 1971, No. 68-5027, App. F (collecting data from a number of jurisdictions indicating that the percentage of death sentences in many States was well below 20%). Statistics compiled by the Department of Justice show that only 66 convicted murderers were sentenced to death in 1972. See Law Enforcement Assistance Administration, Capital Punishment, 1971— 1972, Table 7a (National Prisoner Statistics Bulletin Dec. 1974). (The figure does not include persons retained in local facilities during the pendency of their appeals.)
Later, in Andres v. United States, Mr. Justice Frankfurter observed that the 19th century movement leading to- the passage of legislation providing for discretionary sentencing in capital cases “was impelled both by ethical and humanitarian arguments against capital punishment, as well as by the practical consideration that jurors were reluctant to bring in verdicts which inevitably called for its infliction.” 333 U. S., at 753 (concurring opinion). The Court in Andres noted that the decision of Congress at the end of the 19th century to replace mandatory death sentences with discretionary jury sentencing for federal capital crimes was prompted by “[d]issatisfaction over the harshness and antiquity of the federal criminal laws.” Id., at 747-748, n. 11.
See n. 30, supra.
A study of public opinion polls on the death penalty concluded that “despite the increasing approval for the death penalty reflected in opinion polls during the last decade, there is evidence that many people supporting the general idea of capital punishment want its administration to depend on the circumstances of the case, the character of the defendant, or both.” Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan. L. Rev. 1245, 1267 (1974). One poll discussed by the authors revealed that a “substantial majority” of persons opposed mandatory capital punishment. Id., at 1253. Moreover, the public through the jury system has in recent years applied the death penalty in anything but a mandatory fashion. See n. 31, supra.
The fact that, as Mr. Justice Rehnquist’s dissent properly notes, some States “preferred mandatory capital punishment to no capital punishment at all,” post, at 313, is entitled to some weight. But such an artificial choice merely establishes a desire for some form of capital punishment; it is hardly “utterly inconsistent with the notion that [those States] regarded mandatory capital sentencing as beyond 'evolving standards of decency.’” Ibid. It says no more about contemporary values than would the decision of a State, thinking itself faced with a choice between a barbarous punishment and no punishment at all, to choose the former.
Dissenting opinions in this case and in Roberts v. Louisiana, post, p. 325, argue that this conclusion is “simply mistaken” because the American rejection of mandatory death sentence statutes might possibly be ascribable to “some maverick juries or jurors.” Post, at 309, 313 (RehNquist, J., dissenting). See Roberts v. Louisiana, post, at 361 (White, J., dissenting). Since acquittals no less than convictions required unanimity and citizens with moral reservations concerning the death penalty were regularly excluded from capital juries, it seems hardly conceivable that the persistent refusal of American juries to convict palpably guilty defendants of capital offenses under mandatory death sentence statutes merely “represented the intransigence of only a small minority” of jurors. Post, at 312 (Rehnquist, J., dissenting). Moreover, the dissenting opinions simply ignore the experience under discretionary death sentence statutes indicating that juries reflecting contemporary community values, Witherspoon v. Illinois, 391 U. S., at 519, and n. 15, found the death penalty appropriate for only a small minority of convicted first-degree murderers. See n. 31, supra. We think it evident that the uniform assessment of the historical record by Members of this Court beginning in 1899 in Winston v. United States, 172 U. S. 303 (1899), and continuing through the dissenting opinions of The Chief Justice and Mr. Justice BlackmuN four years ago in Furman, see supra, at 296-298, and n. 32, provides a far more cogent and persuasive explanation of the American rejection of mandatory death sentences than do the speculations in today’s dissenting opinions.
See n. 31, supra.
See Gregg v. Georgia, ante, at 204-206.
Mr. Justice Rehnquist’s dissenting opinion proceeds on the faulty premise that if, as we hold in Gregg v. Georgia, ante, p. 153, the penalty of death is not invariably a cruel and unusual punishment for the crime of murder, then it must be a proportionate and appropriate punishment for any and every murderer regardless of the circumstances of the crime and the character and record of the offender. See post, at 322-324.
Our determination that the death sentences in this case were imposed under procedures that violated constitutional standards makes it unnecessary to reach the question whether imposition of the death penalty on petitioner Woodson would have been so disproportionate to the nature of his involvement in the capital offense as independently to violate the Eighth and Fourteenth Amendments. See Gregg v. Georgia, ante, at 187.