opinion: GODFREY v. GEORGIA
  No. 78-6899.
  Argued February 20, 1980
  Decided May 19, 1980
  Stewart, J., announced the judgment of the Court and delivered an opinion, in which Blackmun, Powell, and Stevens, JJ., joined. Marshall, J., filed an opinion concurring in the judgment, in which Brennan, J., joined, post, p. 433. Burger, C. J., filed a dissenting opinion, post, p. 442. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 444.
  J. Calloway Holmes, Jr., argued the cause for petitioner. With him on the brief was Gerry E. Holmes.
  John W. Dunsmore, Jr., Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Don A. Lang ham, First Assistant Attorney General, and John C. Walden, Senior Assistant Attorney General.
  Mr. Justice Stewart
  announced the judgment of the Court and delivered an opinion, in which Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Stevens joined.
  Under Georgia law, a person convicted of murder may be sentenced to death if it is found beyond a reasonable doubt that the offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga. Code § 27-2534.1 (b) (7) (1978). In Gregg v. Georgia, 428 U. S. 153, the Court held that this statutory aggravating circumstance (§ (b)(7)) is not unconstitutional on its face. Responding to the argument that the language of the provision is “so broad that capital punishment could be imposed in any murder case/' the joint opinion said:
  “It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.” 428 U. S., at 201 (opinion of Stewart, Powell, and Stevens, JJ.).
  Nearly four years have passed since the Gregg decision, and during that time many death sentences based in whole or in part on § (b)(7) have been affirmed by the Supreme Court of Georgia. The issue now before us is whether, in affirming the imposition of the sentences of death in the present case, the Georgia Supreme Court has adopted such a broad and vague construction of the § (b)(7) aggravating circumstance as to violate the Eighth and Fourteenth Amendments to the United States Constitution.
  I
  On a day in early September in 1977, the petitioner and his wife of 28 years had a heated argument in their home. During the course of this altercation, the petitioner, who had consumed several cans of beer, threatened his wife with a knife and damaged some of her clothing. At this point, the petitioner’s wife declared that she was going to leave him, and departed to stay with relatives. That afternoon she went to a Justice of the Peace and secured a warrant charging the petitioner with aggravated assault. A few days later, while still living away from home, she filed suit for divorce. Summons was served on the petitioner, and a court hearing was set on a date some two weeks later. Before the date of the hearing, the petitioner on several occasions asked his wife to return to their home. Each time his efforts were rebuffed. At some point during this period, his wife moved in with her mother. The petitioner believed that his mother-in-law was actively instigating his wife’s determination not to consider a possible reconciliation.
  In the early evening of September 20, according to the petitioner, his wife telephoned him at home. Once again they argued. She asserted that reconciliation was impossible and allegedly demanded all the proceeds from the planned sale of their house. The conversation was terminated after she said that she would call back later. This she did in an hour or so. The ensuing conversation was, according to the petitioner’s account, even more heated than the first. His wife reiterated her stand that reconciliation was out of the question, said that she still wanted all the proceeds from the sale of their house, and mentioned that her mother was supporting her position. Stating that she saw no further use in talking or arguing, she hung up.
  At this juncture, the petitioner got out his shotgun and walked with it down the hill from his home to the trailer where his mother-in-law lived. Peering through a window, he observed his wife, his mother-in-law, and his 11-year-old-daughter playing a card game. He pointed the shotgun at his wife through the window and pulled the trigger. The charge from the gun struck his wife in the forehead and killed her instantly. He proceeded into the trailer, striking and injuring his fleeing daughter with the barrel of the gun. He then fired the gun at his mother-in-law, striking her in the head and killing her instantly.
  The petitioner then called the local sheriff’s office, identified himself, said where he was, explained that he had just killed his wife and mother-in-law, and asked that the sheriff come and pick him up. Upon arriving at the trailer, the law enforcement officers found the petitioner seated on a chair in open view near the driveway. He told one of the officers that “they’re dead, I killed them” and directed the officer to the place where he had put the murder weapon. Later the petitioner told a police officer: “I’ve done a hideous crime, . . . but I have been thinking about it for eight years ... I'd do it again.”
  The petitioner was subsequently indicted on two counts of murder and one count of aggravated assault. He pleaded not guilty and relied primarily on a defense of temporary insanity at his trial. The jury returned verdicts of guilty on all three counts.
  The sentencing phase of the trial was held before the same jury. No further evidence was’tendered, but counsel for each side made arguments to the jury. Three times during the course of his argument, the prosecutor stated that the case involved no allegation of “torture” or of an “aggravated battery.” When counsel had completed their arguments, the trial judge instructed the jury orally and in writing on the standards that must guide them in imposing sentence. Both orally and in writing, the judge quoted to the jury the statutory language of the § (b) (7) aggravating circumstance in its entirety.
  The jury imposed sentences of death on both of the murder convictions. As to each, the jury specified that the aggravating circumstance they had found beyond a reasonable doubt was “that the offense of murder was outrageously or wantonly vile, horrible and inhuman.”
  In accord with Georgia law in capital cases, the trial judge prepared a report in the form of answers to a questionnaire for use on appellate review. One question on the form asked whether or not the victim had been “physically harmed or tortured.” The trial judge's response was “No, as to both victims, excluding the actual murdering of the two victims.”
  The Georgia Supreme Court affirmed the judgments of the trial court in all respects. 243 Ga. 302, 253 S. E. 2d 710 (1979). With regard to the imposition of the death sentence for each of the two murder convictions, the court rejected the petitioner’s contention that § (b)(7) is unconstitutionally vague. The court noted that Georgia’s death penalty legislation had been upheld in Gregg v. Georgia, 428 U. S. 153, and cited its prior decisions upholding § (b) (7) in the face of similar vagueness challenges. 243 Ga., at 308-309, 253 S. E. 2d, at 717. As to the petitioner’s argument that the jury’s phraseology was, as a matter of law, an inadequate statement of § (b) (7), the court responded by simply observing that the language “was not objectionable.” 243 Ga., at 310, 253 S. E. 2d, at 718. The court found no evidence that the sentence had been “imposed under the influence of passion, prejudice, or any other arbitrary factor,” held that the sentence was neither excessive nor disproportionate to the penalty imposed in similar cases, and stated that the evidence suported the jury’s finding of the § (b) (7) statutory aggravating circumstance. 243 Ga., at 309-311, 253 S. E. 2d, at 717-718. Two justices dissented.
  II
  In Furman v. Georgia, 408 U. S. 238, the Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. Gregg v. Georgia, supra, reaffirmed this holding:
  “[Wjhere discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to, minimize the risk of wholly arbitrary and capricious action.” 428 U. S., at 189 (opinion of Stewart, Powell, and Stevens, JJ.).
  A capital sentencing scheme must, in short, provide a “ 'meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’ ” Id., at 188, quoting Furman v. Georgia, supra, at 313 (White, J., concurring).
  This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standard-less [sentencing] discretion.” Gregg v. Georgia, supra, at 196, n. 47. See also Proffitt v. Florida, 428 U. S. 242; Jurek v. Texas, 428 U. S. 262. It must channel the sentencer’s discretion by “clear and objective standards” that provide “specific and detailed guidance,” and that “make rationally reviewable the process for imposing a sentence of death.” As was made clear in Gregg, a death penalty “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” 428 U. S., at 195, n. 46.
  In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was “outrageously or wantonly vile, horrible and inhuman.” There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.” Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, their preconceptions were not dispelled by the trial judge’s sentencing instructions. These gave the jury no guidance concerning the meaning of any of § (b)(7)’s terms. In fact, the jury’s interpretation of § (b) (7) can only be the subject of sheer speculation.
  The standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury in this case was in no way cured by the affirmance of those sentences by the Georgia Supreme Court. Under state law that court may not affirm a judgment of death until it has independently assessed the evidence of record and determined that such evidence supports the trial judge’s or jury’s finding of an aggravating circumstance. Ga. Code § 27-2537 (c) (2) (1978).
  In past cases the State Supreme Court has apparently understood this obligation as carrying with it the responsibility to keep § (b)(7) within constitutional bounds. Recognizing that “there is a.possibility of abuse of [the § (b) (7)] statutory aggravating circumstance,” the court has emphasized that it will not permit the language of that subsection simply to become a “catchall” for cases which do not fit within any other statutory aggravating circumstance. Harris v. State, 237 Ga. 718, 732, 230 S. E. 2d 1, 10 (1976). Thus, in exercising its function of death sentence review, the court has said that it will restrict its “approval of the death penalty under this statutory aggravating circumstance to those cases that lie at the core.” Id., at 733, 230 S. E. 2d, at 11.
  When Gregg was decided by this Court in 1976, the Georgia Supreme Court had affirmed two death sentences based wholly on § (b)(7). See McCorquodale v. State, 233 Ga. 369, 211 S. E. 2d 577 (1974); House v. State, 232 Ga. 140, 205 S. E. 2d 217 (1974). The homicide in McCorquodale was “a horrifying torture-murder.” There, the victim had been beaten, burned, raped, and otherwise severely abused before her death by strangulation. The homicide in House was of a similar ilk. In that case, the convicted murderer had choked two 7-year-old boys to death after having forced each of them to submit to anal sodomy.
  Following our decision in Gregg, the Georgia Supreme Court for the first time articulated some of the conclusions it had reached with respect to § (b) (7):
  "This aggravating circumstance involves both the effect on the victim, viz., torture, or an aggravated battery; and the offender, viz., depravity of mind. As to both parties the test is that the acts (the offense) were outrageously or wantonly vile, horrible or inhuman.
  “We believe that each of [the cases decided to date that has relied exclusively on § (b) (7) ] establishes beyond any reasonable doubt a depravity of mind and either involved torture or an aggravated battery to the victim as illustrating the crimes were outrageously or wantonly vile, horrible or inhuman. Each of the cases is at the core and not the periphery.. . .” Harris v. State, supra, at 732-733, 230 S. E. 2d, at 10-11.
  Subsequently, in Blake v. State, 239 Ga. 292, 236 S. E. 2d 637 (1977), the court elaborated on its understanding of § (b)(7). There, the contention was that a jury’s finding of the aggravating circumstance could never be deemed unanimous without a polling of each member of the panel. The court said:
  “We find no significant dissimilarity between outrageously vile, wantonly vile, horrible or inhuman. Considering torture and.aggravated battery on the one hand as substantially similar treatment of the victim and depravity of mind on the other hand as relating to the defendant, we find no room for nonunanimous verdicts for the reason that there is no prohibition upon measuring cause on the one hand by effect on the other hand. That is to say, the depravity of mind contemplated by the statute is that which results in torture or aggravated battery to the victim. . . 239 Ga., at 299, 236 S. E. 2d, at 643.
  The Harris and Blake opinions suggest that the Georgia Supreme Court had by 1977 reached three separate but consistent conclusions respecting the § (b)(7) aggravating circumstance. The first was that the evidence that the offense was “outrageously or wantonly vile, horrible or inhuman” had to demonstrate “torture, depravity of mind, or an aggravated battery to the victim.” The second was that the phrase, “depravity of mind,” comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim. The third, derived from Blake alone, was that the word, “torture,” must be construed in pari materia with “aggravated battery” so as to require evidence -of serious physical abuse of the victim before death. Indeed, the circumstances proved in a number of the § (b)(7) death sentence cases affirmed by the Georgia Supreme Court have met all three of these criteria.
  The Georgia courts did not, however, so limit § (b) (7) in the present case. No claim was made, and nothing in the record before us suggests, that the petitioner committed an aggravated battery upon his wife or mother-in-law or, in fact, caused either of them to suffer any physical injury preceding their deaths. Moreover, in the trial court, the prosecutor repeatedly told the jury- — and the trial judge wrote in his sentencing report — that the murders did not involve “torture.” Nothing said on appeal by the Georgia Supreme Court indicates that it took a different view of the evidence. The circumstances of this case, therefore, do not satisfy the criteria laid out by the Georgia Supreme Court itself in the Harris and Blake cases. In holding that the evidence supported the jury’s § (b)(7) finding, the State Supreme Court simply asserted that the verdict was “factually substantiated.”
  Thus, the validity of the petitioner’s death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of committing, the Georgia Supreme Court can be said to have applied a constitutional construction of the phrase “outrageously or wantonly vile, horrible or inhuman in that [they] involved . . . depravity of mind. . . .” We conclude that the answer must be no. The petitioner’s crimes cannot be said to have reflected a consciousness materially more “depraved” than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma. Shortly after the killings, he acknowledged his responsibility and the heinous nature of his crimes. These factors certainly did not remove the criminality from the petitioner’s acts. .But, as was said in Gardner v. Florida, 430 U. S. 349, 358, it “is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”
  That cannot be said here. There is no principled way to distinguish this case, in which the death penalty was imposed, from the many eases in which it was not. Accordingly, the judgment of the Georgia Supreme Court insofar as it leaves standing the petitioner’s death sentences is reversed, and the case is remanded to that court for further proceedings.
  It is so ordered.
  Georgia Code §26-1101 (1978) defines “murder” as follows:
  “(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
  “(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.”
  The other statutory aggravating circumstances upon which a death sentence may be based after conviction of murder in Georgia are considerably more specific or objectively measurable than § (b) (7):
  “(1) The offense of murder . . . was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
  “ (2) The offense of murder . . . was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
  “(3) The offender by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
  “(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
  “(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
  “(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
  “(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
  “(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
  “(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.” Ga. Code §27-2534.1 (b) (1978).
  In Arnold v. State, 236 Ga. 534, 540, 224 S. E. 2d 386, 391 (1976), the Supreme Court of Georgia held unconstitutional the portion of the first statutory aggravating circumstances encompassing persons who have a “substantial history of serious assaultive criminal convictions” because it did not set “sufficiently ‘clear and objective standards.’ ”
  According to the petitioner, this was not the first time that he and his wife had been separated as a result of his violent behavior. On two or more previous occasions the petitioner had been hospitalized because of his drinking problem.
  Another question on the form asked the trial judge to list the mitigating circumstances that were in evidence. The judge noted that the petitioner had no significant history of prior criminal activity.
  Gregg v. Georgia, 428 U. S., at 198, quoting Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974).
  Proffitt v. Florida, 428 U. S., at 253 (opinion of Stewart, Powell, and STEVENS, JJ.).
  Woodson v. North Carolina, 428 U. S. 280, 303 (opinion of Stewart, Powell, and Stevens, JJ.).
  See also Ruffin v. State, 243 Ga. 95, 106-107, 252 S. E. 2d 472, 480 (1979); Hill v. State, 237 Ga. 794, 802, 229 S. E. 2d 737, 742-743 (1976). Cf. Holton v. State, 243 Ga. 312, 318, 253 S. E. 2d 736, 740 (1979).
  Gregg v. Georgia, supra, at 201.
  Banks v. State, 237 Ga. 325, 227 S. E. 2d 380 (1976); McCorquodale v. State, 233 Ga. 369, 211 S. E. 2d 577 (1974); House v. State, 232 Ga. 140, 205 S. E. 2d 217 (1974).
  Since Harris and Blake, the court has summarily rejected all constitutional challenges to its construction of § (b)(7). See, e. g., Baker v. State, 243 Ga. 710, 711-712, 257 S. E. 2d 192, 193-194 (1979); Collins v. State, 243 Ga. 291, 294, 253 S. E. 2d 729, 732 (1979); Johnson v. State, 242 Ga. 649, 651, 250 S. E. 2d 394, 397-398 (1978); Lamb v. State, 241 Ga. 10, 15, 243 S. E. 2d 59, 63 (1978).
  This construction of § (b) (7) finds strong support in the language and structure of the statutory provision.
  “Aggravated battery” is a term that is defined in Georgia's criminal statutes. Georgia Code §26-1305 (1978) states: “A person commits aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, or by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.” It appears that this definition has on at least one occasion been treated by the state trial courts as controlling the meaning of the same words in § (b) (7). See, e. g., Holton v. State, 243 Ga., at 317, n. 1, 253 S. E. 2d, at 740, n. 1.
  We note, however, that the Hams case apparently did not involve “torture” in this sense.
  See, e. g., Thomas v. State, 240 Ga. 393, 242 S. E. 2d 1 (1977) ; Stanley v. State, 240 Ga. 341; 241 S. E. 2d 173 (1977); Dix v. State, 238 Ga. 209, 232 S. E. 2d 47 (1977); Birt v. State, 236 Ga. 815, 225 S. E. 2d 248 (1976); McCorquodale v. State, supra.
  The sentences of death in this case rested exclusively on § (b)(7). Accordingly, we intimate no view as to whether or not the petitioner might constitutionally have received the same sentences on some other basis. Georgia does not, as do some States, make multiple murders an aggravating circumstance, as such.
  In light of this fact, it is constitutionally irrelevant that the petitioner used a shotgun instead of a rifle as the murder weapon, resulting in a gruesome spectacle in his mother-in-law’s trailer. An interpretation of § (b) (7) so as to include all murders resulting in gruesome scenes would be totally irrational.
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