Lockett v. Ohio

Mr. 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. See Furman v. Georgia, 408 U. S. 238, 314 — 374 (1972) (Marshall, J., concurring); Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting). The cases that have come to this Cburt since its 1976 decisions permitting imposition of the death penalty have only persuaded me further of that conclusion. See, e. g., Gardner v. Florida, 430 U. S. 349, 365 (1977) (Marshall, J., dissenting); Coker v. Georgia, 433 U. S. 584, 600-601 (1977) (Marshall, J., concurring in judgment); Alford v. Florida, 436 U. S. 935 (1978) (Marshall, J., dissenting from denial of certiorari). This case, as well, serves to reinforce my view.

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 imposi*620tion of the death penalty for this crime totally violates the principle of proportionality embodied in the Eighth Amendment's prohibition, Weems v. United States, 217 U. S. 349 (1910); it makes no distinction between a willful and malicious murderer and an accomplice to an armed robbery in which a killing unintentionally occurs. See 49 Ohio St. 2d 48, 67, 358 N. E. 2d 1062, 1075 (1976) (dissenting opinion).

Permitting imposition of the death penalty solely' on proof of felony murder, moreover, necessarily leads to the kind of “lightning bolt,” “freakish,” and “wanton” executions that persuaded other Members of the Court to join Mr. Justice Brennan and myself in Furman v. Georgia, supra, in holding Georgia’s death penalty statute unconstitutional. Whether a death results in the course of a felony (thus giving rise to felony-murder liability) turns on fortuitous events that do not distinguish the intention or moral culpability of the defendants. That the State of Ohio chose to permit imposition of the death penalty under a purely vicarious theory of liability seems to belie the notion that the Court can discern the “evolving standards of decency,” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), embodied in the Eighth Amendment, by reference to state “legislative judgment,” see Gregg v. Georgia, supra, at 175 (opinion of Stewart, Powell, and Stevens, JJ.).

As the plurality points out, petitioner was sentenced to death under a statutory scheme that precluded any effective consideration of her degree of involvement in the crime, her age, or her prospects for rehabilitation. Achieving the proper balance between clear guidelines that assure relative equality of treatment, and discretion to consider individual factors whose weight cannot always be preassigned, is no easy task in any sentencing system. Where life itself is what hangs in the balance, a fine precision in the process must be insisted upon. The Ohio statute, with its blunderbuss, virtually mandatory approach to imposition of the death penalty for certain crimes, *621wholly fails to recognize the unique individuality of every criminal defendant who comes before its courts. See Roberts (Harry) v. Louisiana, 431 U. S. 633, 637 (1977) (per curiam); Woodson v. North Carolina, 428 U. S. 280, 304 (1976).

The opinions announcing the judgment of the Court in Gregg v. Georgia, 428 U. S., at 188-198 (opinion of Stewart, Powell, and Stevens, JJ.), Jurek v. Texas, 428 U. S. 262, 271-276 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), and Proffitt v. Florida, 428 U. S. 242, 259-260 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), upheld the constitutionality of the death penalty, in the belief that a system providing sufficient guidance for the sentencing de-cisionmaker .and adequate appellate review would assure “rationality,” “consistency,” and “proportionality” in the imposition of the death sentence. Gregg v. Georgia, supra, at 203; Proffitt v. Florida, supra, at 259; Jurek v. Texas, supra, at 276. That an Ohio trial court could impose the death penalty on petitioner under these facts, and that the Ohio Supreme Court on review could sustain it, cast strong doubt on the plurality’s premise that appellate review in state systems is sufficient to avoid the wrongful and unfair imposition of this irrevocable penalty.

Accordingly, I join in the Court’s judgment insofar as it affirms petitioner’s conviction and vacates her death sentence. I do not, however, join in the Court’s assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no “cruel and unusual punishments” be imposed.