26

Mitigating Factors and Mandatory Death Sentences

While the Court endorsed limiting jury discretion by requiring states to codify aggravating factors, it took the opposite approach when it came to the limitation of discretion regarding mitigating factors.

In theory, mandatory sentences or the codification of mitigating factors could prevent unfairness in sentencing, such as juries consistently granting the death penalty to deserving black defendants but not to deserving white defendants. The Court, however, worried more about forcing juries to give the death penalty when they feel the defendant does not deserve it. Juries must be allowed, the Court would hold, to make an individualized determination in death penalty cases, as it would be cruel and unusual to sentence someone to death contrary to a jury’s determination that their crime merited it.

This cornerstone of the post-Gregg death penalty regime was established at the same time Gregg was decided. North Carolina was one of the five states whose death penalty statutes were considered by the Court in 1976. Unlike Georgia, Texas, and Florida, North Carolina’s statute was held unconstitutional by the Court because it made the death penalty mandatory for anyone convicted of first-degree murder. In Woodson v. North Carolina (1976), Justice Stewart argued that automatic death sentences had long been unpopular in the United States, even in the colonial era, and would sometimes lead to juries finding guilty parties “not guilty” in order to avoid implementing the sentence. Apart from this, Stewart wrote that:

in capital cases, the fundamental respect for humanity underlying the Eighth Amendment 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.

After Woodson, the Court would continue to strike down state death penalty regimes that limited the trier of fact’s consideration of mitigating factors. The best known of these later opinions was Lockett v. Ohio (1978), a case where the getaway driver for a robbery that led to murder was sentenced to death. Ohio law only permitted three mitigating factors for first-degree or aggravated murder: 1) the victim had provoked the homicide, 2) the murderer was being blackmailed or coerced, or 3) the murderer had mental deficiencies. Lockett challenged these limitations as violating the Eighth Amendment, and the Court agreed that states could not limit the consideration of mitigating factors any more than they could make death sentences mandatory.

Lockett v. Ohio

438 U. S. 586

Facts: Ohio’s death penalty statute requires juries to levy the death penalty for aggravated murder unless the victim induced the offense, it was committed under duress or coercion, or was the result of mental deficiencies. Lockett was the getaway driver for a robbery that led to felony murder and was given the death penalty after having been found guilty.

Question: Did Lockett’s death sentence violate the Eighth Amendment?

Vote: Yes, 7-1

For the Court: Justice Burger

Concurring in part and concurring in the judgment: Justice Blackmun

Concurring in the judgment: Justice Marshall

Concurring in part and dissenting in part: Justice White

Concurring in part and dissenting in part: Justice Rehnquist

CHIEF JUSTICE BURGER delivered the opinion of the Court with respect to the constitutionality of petitioner’s conviction (Parts I and II), together with an opinion (Part III), in which JUSTICE STEWART, JUSTICE POWELL, and JUSTICE STEVENS joined, on the constitutionality of the statute under which petitioner was sentenced to death, and announced the judgment of the Court.

We granted certiorari in this case to consider, among other questions, whether Ohio violated the Eighth and Fourteenth Amendments by sentencing Sandra Lockett to death pursuant to a statute that narrowly limits the sentencer’s discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors.

I

Lockett was charged with aggravated murder with the aggravating specifications (1) that the murder was “committed for the purpose of escaping detection, apprehension, trial, or punishment” for aggravated robbery, and (2) that the murder was “committed while … committing, attempting to commit, or fleeing immediately after committing or attempting to commit … aggravated robbery.”

That offense was punishable by death in Ohio. She was also charged with aggravated robbery. The State’s case against her depended largely upon the testimony of a coparticipant, one Al Parker, who gave the following account of her participation in the robbery and murder…

The next day Parker, Dew, Lockett, and her brother gathered at Baxter’s apartment. Lockett’s brother asked if they were “still going to do it,” and everyone, including Lockett, agreed to proceed. The four then drove by the pawnshop several times and parked the car. Lockett’s brother and Dew entered the shop. Parker then left the car and told Lockett to start it again in two minutes. The robbery proceeded according to plan until the pawnbroker grabbed the gun when Parker announced the “stickup.” The gun went off with Parker’s finger on the trigger, firing a fatal shot into the pawnbroker…

Parker was subsequently apprehended and charged with aggravated murder with specifications, an offense punishable by death, and aggravated robbery. Prior to trial, he pleaded guilty to the murder charge and agreed to testify against Lockett, her brother, and Dew. In return, the prosecutor dropped the aggravated robbery charge and the specifications to the murder charge, thereby eliminating the possibility that Parker could receive the death penalty.

Lockett’s brother and Dew were later convicted of aggravated murder with specifications. Lockett’s brother was sentenced to death, but Dew received a lesser penalty because it was determined that his offense was “primarily the product of mental deficiency,” one of the three mitigating circumstances specified in the Ohio death penalty statute.

Two weeks before Lockett’s separate trial, the prosecutor offered to permit her to plead guilty to voluntary manslaughter and aggravated robbery if she would cooperate with the State, but she rejected the offer. Just prior to her trial, the prosecutor offered to permit her to plead guilty to aggravated murder without specifications, an offense carrying a mandatory life penalty, with the understanding that the aggravated robbery charge and an outstanding forgery charge would be dismissed. Again, she rejected the offer…

… The jury found Lockett guilty as charged.

Once a verdict of aggravated murder with specifications had been returned, the Ohio death penalty statute required the trial judge to impose a death sentence unless, after “considering the nature and circumstances of the offense” and Lockett’s “history, character, and condition,” he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she “was under duress, coercion, or strong provocation,” or (3) the offense was “primarily the product of [Lockett’s] psychosis or mental deficiency.”

In accord with the Ohio statute, the trial judge requested a presentence report as well as psychiatric and psychological reports. The reports contained detailed information about Lockett’s intelligence, character, and background. The psychiatric and psychological reports described her as a 21-year-old with low-average or average intelligence, and not suffering from a mental deficiency. One of the psychologists reported that “her prognosis for rehabilitation” if returned to society was favorable. The presentence report showed that Lockett had committed no major offenses, although she had a record of several minor ones as a juvenile and two minor offenses as an adult. It also showed that she had once used heroin but was receiving treatment at a drug abuse clinic and seemed to be “on the road to success” as far as her drug problem was concerned. It concluded that Lockett suffered no psychosis and was not mentally deficient.

After considering the reports and hearing argument on the penalty issue, the trial judge concluded that the offense had not been primarily the product of psychosis or mental deficiency. Without specifically addressing the other two statutory mitigating factors, the judge said that he had “no alternative, whether [he] like[d] the law or not,” but to impose the death penalty. He then sentenced Lockett to death.

II

…

III

Lockett challenges the constitutionality of Ohio’s death penalty statute on a number of grounds. We find it necessary to consider only her contention that her death sentence is invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime…

A

Prior to Furman v. Georgia (1972), every State that authorized capital punishment had abandoned mandatory death penalties, and instead permitted the jury unguided and unrestrained discretion regarding the imposition of the death penalty in a particular capital case. Mandatory death penalties had proved unsatisfactory, as the plurality noted in Woodson v. North Carolina, in part because juries, “with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict.”

… Predictably, the variety of opinions supporting the judgment in Furman engendered confusion as to what was required in order to impose the death penalty in accord with the Eighth Amendment. Some States responded to what was thought to be the command of Furman by adopting mandatory death penalties for a limited category of specific crimes thus eliminating all discretion from the sentencing process in capital cases. Other States attempted to continue the practice of individually assessing the culpability of each individual defendant convicted of a capital offense and, at the same time, to comply with Furman, by providing standards to guide the sentencing decision…

… the disposition of each case [in the five 1977 death penalty cases] varied according to the votes of three Justices who delivered a joint opinion in each of the five cases upholding the constitutionality of the statutes of Georgia, Florida, and Texas, and holding those of North Carolina and Louisiana unconstitutional.

The joint opinion reasoned that, to comply with Furman, sentencing procedures should not create “a substantial risk that the death penalty [will] be inflicted in an arbitrary and capricious manner.” In the view of the three Justices, however, Furman did not require that all sentencing discretion be eliminated, but only that it be “directed and limited,” so that the death penalty would be imposed in a more consistent and rational manner and so that there would be a “meaningful basis for distinguishing the … cases in which it is imposed from … the many cases in which it is not.” The plurality concluded, in the course of invalidating North Carolina’s mandatory death penalty statute, that the sentencing process must permit 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,” Woodson v. North Carolina, in order to ensure the reliability, under Eighth Amendment standards, of the determination that “death is the appropriate punishment in a specific case.” …

The signals from this Court have not, however, always been easy to decipher. The States now deserve the clearest guidance that the Court can provide; we have an obligation to reconcile previously differing views in order to provide that guidance.

B

With that obligation in mind, we turn to Lockett’s attack on the Ohio statute. Essentially, she contends that the Eighth and Fourteenth Amendments require that the sentencer be given a full opportunity to consider mitigating circumstances in capital cases, and that the Ohio statute does not comply with that requirement…

We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country…  That States have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony murder statutes is beyond constitutional challenge. But the definition of crimes generally has not been thought automatically to dictate what should be the proper penalty…  And where sentencing discretion is granted, it generally has been agreed that the sentencing judge’s “possession of the fullest information possible concerning the defendant’s life and characteristics” is “[h]ighly relevant — if not essential — [to the] selection of an appropriate sentence…”

Although legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases, the plurality opinion in Woodson, after reviewing the historical repudiation of mandatory sentencing in capital cases, concluded that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment … 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.”

That declaration rested “on the predicate that the penalty of death is qualitatively different” from any other sentence…

We are now faced with those questions, and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death…

… Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. …

There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments…

C

The Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors we now hold to be required by the Eighth and Fourteenth Amendments in capital cases…

… The absence of direct proof that the defendant intended to cause the death of the victim is relevant for mitigating purposes only if it is determined that it sheds some light on one of the three statutory mitigating factors. Similarly, consideration of a defendant’s comparatively minor role in the offense, or age, would generally not be permitted, as such, to affect the sentencing decision.

The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments…

JUSTICE BLACKMUN, concurring in part and concurring in the judgment.

I, too, would reverse the judgment of the Supreme Court of Ohio insofar as it upheld the imposition of the death penalty on petitioner Sandra Lockett, but I would do so for a reason more limited than that which the plurality espouses, and for an additional reason not relied upon by the plurality…

The first reason is that, in my view, the Ohio judgment in this case improperly provided the death sentence for a defendant who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide…

The second ground on which reversal is required, in my view…

… the sentencing court has full discretion to prevent imposition of a capital sentence “in the interests of justice” if a defendant pleads guilty or no contest, but wholly lacks such discretion if the defendant goes to trial…

JUSTICE MARSHALL, concurring in the judgment.

I continue to adhere to my view that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by the Eighth Amendment…

When a death sentence is imposed under the circumstances presented here, I fail to understand how any of my Brethren — even those who believe that the death penalty is not wholly inconsistent with the Constitution — can disagree that it must be vacated. Under the Ohio death penalty statute, this 21-year-old Negro woman was sentenced to death for a killing that she did not actually commit or intend to commit. She was convicted under a theory of vicarious liability. The imposition of the death penalty for this crime totally violates the principle of proportionality embodied in the Eighth Amendment’s prohibition…

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… I cannot, however, agree with Part III of the plurality opinion in Lockett … and, to that extent, respectfully dissent.

The Court has now completed its about-face since Furman v. Georgia (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, wantonly and freakishly, and so infrequently that any given death sentence was cruel and unusual. The Court began its retreat in Woodson v. North Carolina, … 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. 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.

With all due respect, I dissent. I continue to be of the view… 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.” …

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 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…

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. Moreover, at least some of these eight executions involved individuals who intended to cause the death of the victim. Furthermore, the last such execution occurred in 1955…

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…

… 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.

JUSTICE REHNQUIST, concurring in part and dissenting in part.

I join Parts I and II of THE CHIEF JUSTICE’s opinion for the Court, but am unable to join Part III of his opinion or in the judgment of reversal.

… As a practical matter, I doubt that today’s opinion will make a great deal of difference in the manner in which trials in capital cases are conducted, since I would suspect that it has been the practice of most trial judges to permit a defendant to offer virtually any sort of evidence in his own defense as he wished. But as my Brother WHITE points out in his dissent, the theme of today’s opinion, far from supporting those views expressed in Furman which did appear to be carried over to the Woodson cases, tends to undercut those views. If a defendant, as a matter of constitutional law, is to be permitted to offer as evidence in the sentencing hearing any fact, however bizarre, which he wishes, even though the most sympathetically disposed trial judge could conceive of no basis upon which the jury might take it into account in imposing a sentence, the new constitutional doctrine will not eliminate arbitrariness or freakishness in the imposition of sentences, but will codify and institutionalize it. By encouraging defendants in capital cases, and presumably sentencing judges and juries, to take into consideration anything under the sun as a “mitigating circumstance,” it will not guide sentencing discretion, but will totally unleash it…