concurring in part and concurring in the judgment.
I join the Court’s judgment, but only Parts I and II of its opinion. 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.
I
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 Ohio capital penalty statute, together with that State’s aiding-and-abetting statute, and its statutory definition of “purposefulness” as including reckless endangerment, allows for a particularly harsh application of the death penalty to any defendant who has aided or abetted the commission of an armed robbery in the course of which a person is killed, even though accidentally.1 It might be that *614to inflict the death penalty in some such situations would skirt the limits of the Eighth Amendment proscription, incorporated in the Fourteenth Amendment, against gross dispro-portionality, but I doubt that the Court, in regard to murder, could easily define a convincing bright-line rule such as was used in regard to rape, Coker v. Georgia, 433 U. S. 584 (1977), to make workable a disproportionality approach.2
*615The more manageable alternative, in my view, is to follow a proceduralist tack, and require, as Ohio does not, in the case of a nontriggerman such as Lockett, that the sentencing au*616thority have discretion to consider the degree of the defendant’s participation in the acts leading to the homicide and the character of the defendant’s mens rea. That approach does not interfere with the States’ individual statutory categories for assessing legal guilt, but merely requires that the sentencing authority be permitted to weigh any available evidence, adduced at trial or at the sentencing hearing, concerning the defendant’s degree of participation in the homicide and the nature of his mens rea in regard to the commission of the homicidal act. A defendant .would be permitted to adduce evidence, if any be available, that he had little or no reason to anticipate that a gun would be fired, or that he played only a minor part in the course of events leading to the use of fatal force. Though heretofore I have been unwilling to interfere with the legislative judgment of the States in regard to capital-sentencing procedures, see Furman v. Georgia, 408 U. S. 238, 405 (1972) (dissenting opinion), adhered to in the 1976 cases, see my opinions in Gregg v. Georgia, 428 U. S. 153, 227; Proffitt v. Florida, 428 U. S. 242, 261; Jurek v. Texas, 428 U. S. 262, 279; Woodson v. North Carolina, 428 U. S. 280, 307; Roberts v. Louisiana, 428 U. S. 325, 363, this Court’s judgment as to disproportionality in Coker, supra, in which I joined, and the unusual degree to which Ohio requires capital punishment of a mere aider and abettor in an armed felony resulting in a fatality even where no participant specifically intended the fatal use of a weapon, see n. 1, supra, provides a significant occasion for setting some limit to the method by which the States assess punishment for actions less immediately connected to the deliberate taking o'f human life.
This approach is not too far off the mark already used by many States in assessing the death penalty. Of 34 States that now have capital statutes, 18 specify that a minor degree of participation in a homicide may be considered by the sentenc*617ing authority, and, of the remaining 16 States, 9' allow consideration of any mitigating factor.3
II
The second ground on which reversal is required, in my view, is a Jackson issue. Although the plurality does not reach this issue, it is raised by petitioner, and I mention it against the possibility that any further revision of the Ohio death penalty statutes, prompted by the Court’s decision today, contemplate as well, and cure, the Jackson deficiency.
In United States v. Jackson, 390 U. S. 570 (1968), the Court held that the capital-sentencing provision of the Federal Kidnaping Act was unconstitutional in that it needlessly burdened the defendant’s exercise of the Sixth Amendment *618right to trial by jury and the Fifth Amendment right to plead not guilty. The Act, 18 U. S. C. § 1201 (a) (1964 ed.), had provided that the death penalty could be imposed only “if the verdict of the jury shall so recommend,” thus peculiarly insuring that any defendant who pleaded guilty, or who waived a jury trial in favor of a bench trial, could not be sentenced to death, and imposing the risk of death only on those who insisted on trial by jury.
The holding of Jackson, prohibiting imposition of the death penalty on a defendant who insists upon a jury trial, was thereafter limited to an extent by Brady v. United States, 397 U. S. 742 (1970), where the Court held that a pre-Jackson defendant who had pleaded guilty rather than go to trial was not entitled to withdraw his plea on grounds of involuntariness or coercion even if the plea had been encouraged by fear of the death penalty in a jury trial. Here, of course, petitioner insisted on her right to a jury trial, and thus falls on the Jackson side of any Jackson-Brady dichotomy.
Under Ohio Rule Crim. Proc. 11 (C)(3), 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. The Rule states that if “the indictment contains one or more specifications [of aggravating circumstances] , and a plea of guilty or no contest to the charge [of aggravated murder with specifications] is accepted, the court may dismiss the specifications and impose sentence [of life imprisonment] accordingly, in the interests of justice.” Such a dismissal of aggravating' specifications absolutely precludes imposition of the death penalty. There is no provision similar to Rule 11 (C) (4) permitting the trial court to dismiss aggravating specifications “in the interests of justice” where the defendant insists on his right to trial. Instead, as the Ohio Supreme Court noted in State v. Weind, 50 Ohio St. 2d 224, 227, 364 N. E. 2d 224, 228 (1977), vacated in part and remanded, post, p. 911, a defendant who pleads not guilty *619“must rely on the court finding the presence of one of the [statutory] mitigating circumstances ... to avoid the death sentence.”
While it is true, as the Ohio Court noted in Weind, 50 Ohio St. 2d, at 229, 364 N. E. 2d, at 229, that there is always a possibility of a death sentence whether or not one pleads guilty, this does not change the fact that a defendant can plead not guilty only by enduring a semimandatory, rather than a purely discretionary, capital-sentencing provision. This disparity between a defendant’s prospects under the two sentencing alternatives is, in my view, too great to survive under Jackson, and petitioner’s death sentence thus should be vacated on that ground as well.
Ohio Rev. Code Ann. §2903.01 (B) (1975) provides that “[n]o person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit . . . aggravated robbery,” and § 2903.01 (C) states that one doing so is guilty of aggravated murder. Under § 2929.04 (A) (7), the commission of the same armed robbery serves as an aggravating specification'to the murder and requires the imposition of the death penalty upon the principal offender unless the existence of one of the three permitted mitigating circumstances is established by a preponderance of the evidence. Sections 2923.03 (A) and (F) provide that an aider or abettor who acts “with the kind of culpability required for the commission *614of [the principal] offense” shall be “prosecuted and punished as if he were a principal offender.” The finishing stroke is then delivered by Ohio’s statutory definition of “purpose.” Under §2901.22 (A), “[a] person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a 'prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.” (Emphasis added.)
In this case, as the three dissenting justices of the Ohio Supreme Court noted, 49 Ohio St. 2d 48, 68, 358 N. E. 2d 1062, 1075 (1976), the jury was instructed that Lockett could be found to have “purposely” aided a murder merely by taking part in a robbery in which the threat of force was to be employed. The jury was instructed: “If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender as an aider and abettor in the homicide, even though the aider and abettor was not aware of the particular weapon used to accomplish the killing."
The State presented no testimony indicating any prior plan actually to fire the gun in the course of the robbery. The triggerman, Parker, testified that the gun discharged accidentally when the proprietor of the pawnshop grabbed at it. App. 50-51, 53.
I do not find entirely convincing the disproportionality rule embraced by my Brother White. The rale that a defendant must have had actual intent to kill, in order to be capitally sentenced, does not explain why such intent is the sole criterion of culpability for Eighth Amendment purposes. What if a defendant personally commits the act proximately causing death by pointing a loaded gun at the robbery victim, verbally threatens to use fatal force, admittedly does not intend to cause a death, yet knowingly creates a high probability that the gun will discharge accidentally? What if a robbery participant, in order to avoid capture or even for wanton sport, personally and deliberately uses grave physical force with conscious intent to inflict serious bodily harm, but not to kill, and a death results? *615May we as judges say that for Eighth Amendment purposes the absence of a “conscious purpose of producing death,” post, at 628, transforms the culpability of those defendants’ actions?
Applying a requirement of actual intent to kill to defendants not immediately involved in the physical act causing death, moreover, would run aground on intricate definitional problems attending a felony murder. What intention may a State attribute to a robbery participant who sits in the getaway car, knows that a loaded gun will be brandished by his companion in the robbery inside the store, is willing to have the gun fired if necessary to make an escape but not to accomplish the robbery, when the victim is shot by the companion even though not necessary for escape ? What if the unarmed participant stands immediately inside the store as a lookout, intends that a loaded gun merely be brandished, but never bothered to discuss with the triggerman what limitations were appropriate for the firing of the gun? What if the same lookout personally intended that the gun never be fired, but, after his companion fires a fatal shot to prevent the victim from sounding an alarm, approves and takes off?
The requirement of actual intent to kill in order to inflict the death penalty would require this Court to impose upon the States an elaborate “constitutionalized” definition of the requisite mens rea, involving myriad problems of line drawing that normally are left to jury discretion but that, in disproportionality analysis, have to be decided as issues of law, and interfering with the substantive categories of the States’ criminal law. And such a rule, even if workable, is an incomplete method of ascertaining culpability for Eighth Amendment purposes, which necessarily is a more subtle mixture of action, inaction, and degrees of mens rea.
Finally, I must question the data relied upon by my Brother White in concluding, post, at 624, that only “extremely rare[ly]” has the death penalty been used when a defendant did not specifically intend the death of the victim. The representation made by petitioner Lockett, even if accepted uncritically, was merely that of 363 reported cases involving executions from 1954 to 1976, in 347 the defendant “personally committed a homicidal assault” — not that the defendant had actual intention to kill. App. to Brief for Petitioner lb. Of contemporary death penalty statutes, my Brother White concedes that approximately half permit the execution of persons who did not actually intend to cause death.
The 18 state statutes specifically permitting consideration of a defendant’s minor degree of involvement are Ala. Code, Tit. 13, § 13-11-7 (4) (1975); Ariz. Rev. Stat. Ann. § 13-454 (F) (3) (Supp. 1977); Ark. Stat. Ann. § 41-1304 (5) (1977); Cal. Penal Code Ann. § 190.3 (i) (West Supp. 1978); Fla. Stat. § 921.141 (6) (d) (Supp. 1978); Ind. Code § 35-50-2-9 (c) (4) (Supp. 1977); Ky. Rev. Stat. § 532.025 (2) (b) (5) (Supp. 1977) ; La. Code Crim. Proe., Art. 905.5 (g) (West Supp. 1978); Mo. Rev. Stat. § 565.012.3 (4) (Supp. 1978); Mont. Rev. Codes Ann. § 95-2206.9 (6) (Supp. 1977); Neb. Rev. Stat. §29-2523 (2) (e) (1975); Nev. Rev. Stat. §200.035 (4) (1977); N. C. Gen. Stat. § 15A-2000 (f) (4) (Supp. 1977), added by 1977 N. C. Sess. Laws, ch. 406; S. C. Code § 16-3-20 (C) (b) (4) (Supp. 1978); Tenn. Code Ann. § 39-2404 (j) (5) (Supp. 1977); Utah Code Ann. § 76-3-207 (l)(f) (Supp. 1977); Wash. Rev. Code § 9A.32.045 (2)(d) (Supp. 1977); Wyo. Stat. §§ 6-54.2 (c), (d), and (j)(iv) (Supp. 1977), added by 1977 Wyo. Sess. Laws, ch. 122.
The nine state statutes allowing consideration of any mitigating circumstance are Del. Code Ann., Tit. 11, § 4209 (c) (Supp. 1977); Ga. Code §27-2534,1 (b) (1975); Idaho Code § 19-2515 (c) (Supp. 1977); Ill. Rev. Stat., ch. 38, § 9-1 (c) (Supp. 1978); Miss. Code Ann. § 97-3-21 (Supp. 1977), see Jackson v. State, 337 So. 2d 1242, 1254 (Miss. 1976); N. H. Rev. Stat. Ann. § 630:5 (II) (Supp. 1977); OMa. Stat., Tit. 21, §701.10 (Supp. 1977); Tex. Code Crim. Proc. Ann., Art. 37.071 (b) (2) (Vernon Supp. 1978), see Jurek v. Texas, 428 U. S. 262, 272-273 (1976); Va. Code § 19.2-264.4 (B) (Supp. 1977).