concurring in the judgment.
I continue to believe that the death penalty is, under all circumstances, a cruel and unusual punishment prohibited by *644the Eighth and Fourteenth Amendments, 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), and thus disagree with the Court’s assumption to the contrary. See Lockett v. Ohio, ante, p. 619 (Marshall, J., concurring in judgment). I join in the Court’s judgment insofar as it requires that petitioner’s death sentence be vacated.