concurring in the judgment.
I continue to believe that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. In addition, I agree with the plurality that the Georgia Supreme Court’s construction of the provision at issue in this case is unconstitutionally vague under Gregg v. Georgia, 428 U. S. 153 (1976). I write *434separately, first, to examine the Georgia Supreme Court’s application of this provision, and second, to suggest why the enterprise on which the Court embarked in Gregg v. Georgia, supra, increasingly appears to be doomed to failure.
I
Under Georgia law, the death penalty may be imposed only when the jury both finds at least one statutory aggravating circumstance and recommends that the sentence of death should be imposed. Ga. Code § 26-3102 (1978). Under Ga. Code § 27-2534.1 (b)(7) (1978), it is a statutory aggravating circumstance to commit a murder that “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” In Gregg v. Georgia, supra, the Court rejected a facial challenge to the constitutionality of this aggravating circumstance. The joint opinion conceded that it is “arguable that any murder involves depravity of mind or an aggravated battery.” 428 U. S., at 201 (opinion of Stewart, Powell, and Stevens, JJ.). Nonetheless, that opinion refused to invalidate the provision on its face, reasoning that the statutory “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.” Ibid. In my view, life and death should not be determined by such niceties of language.
The Court’s conclusion in Gregg was not unconditional; it was expressly based on the assumption that the Georgia Supreme Court would adopt a narrowing construction that would give some discernible content to § (b)(7). In the present case, no such narrowing construction was read to the jury or applied by the Georgia Supreme Court on appeal. As it has so many times in the past, that court upheld the jury’s finding with a simple notation that it was supported by the evidence. The premise on which Gregg relied has thus proved demonstrably false.
*435For this reason, I readily agree with the plurality that, as applied in this case, § (b) (7) is unconstitutionally vague.1 The record unequivocally establishes that the trial judge, the prosecutor, and the jury did not believe that the evidence showed that either victim was tortured. Nor was there aggravated battery to the victims.2 I also agree that since the victims died instantaneously and within a few moments of each other, the fact that the murder weapon was one which caused extensive damage to the victim’s body is constitutionally irrelevant. Ante, at 433, n. 16.
I am unwilling, however, to accept the plurality’s characterization of the decision below as an aberrational lapse on the part of the Georgia Supreme Court from an ordinarily narrow construction of § (b)(7). Reasoning from two decisions rendered shortly after our decision in Gregg, Blake v. State, 239 Ga. 292, 236 S. E. 2d 637 (1977), and Harris v. State, 237 Ga. 718, 230 S. E. 2d 1 (1976), the plurality suggests that from 1977 onward it has been the law of Georgia that a statutory aggravating circumstance can be found under § (b) (7) only if the offense involved torture and aggravated battery, manifested by “evidence of serious physical abuse of *436the victim before death.” Ante, at 431.3 But we cannot stop reading the Georgia Reports after those two cases. In Ruffin v. State, 243 Ga. 95, 252 S. E. 2d 472 (1979), the court upheld a jury finding of a § (b)(7) aggravating circumstance stated in the words, “we the jurors conclude that this act was both horrible and inhuman.” The case involved a shotgun murder of a child: no torture or aggravated battery was present. See also Holton v. State, 243 Ga. 312, 253 S. E. 2d 736, cert. denied, 444 U. S. 925 (1979).4 The Georgia court’s cursory treatment of § (b) (7) in Ruffin, Holton, and the present case indicates either that it has abandoned its intention of reaching only “core” cases under § (b)(7) or that its understanding of the “core” has become remarkably inclusive.
In addition, I think it necessary to emphasize that even under the prevailing view that the death penalty may, in some circumstances, constitutionally be imposed, it is not enough for a reviewing court to apply a narrowing construction to *437otherwise ambiguous statutory language. The jury must be instructed on the proper, narrow construction of the statute. The Court's cases make clear that it is the sentencer’s discretion that must be channeled and guided by clear, objective, and specific standards. See ante, at 428. To give the jury an instruction in the form of the bare words of the statute — words that are hopelessly ambiguous and could be understood to apply to any murder, see ante, at 428-429; Gregg v. Georgia, 428 U. S., at 201 — would effectively grant it unbridled discretion to impose the death penalty. Such a defect could not be cured by the post hoc narrowing construction of an appellate court. The reviewing court can determine only whether a rational jury might have imposed the death penalty if it had been properly instructed; it is impossible for it to say whether a particular jury would have so exercised its discretion if it had known the law.
For this reason, I believe that the vices of vagueness and intolerably broad discretion are present in any case in which an adequate narrowing construction of § (b) (7) was not read to the jury, and the Court's decision today cannot properly be restricted to cases in which the particular facts appear to be insufficiently heinous to fall within a construction of § (b) (7) that would be consistent with Gregg.
II
The preceding discussion leads me to what I regard as a more fundamental defect in the Court's approach to death penalty cases. In Gregg, the Court rejected the position, expressed by my Brother Brennan and myself, that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. Instead it was concluded that in “a matter so grave as the determination of whether a human life should be taken or spared,” it would be both necessary and sufficient to insist on sentencing procedures that would minimize or eliminate the *438“risk that [the death penalty] would be inflicted in an arbitrary and capricious manner.” 428 U. S., at 189, 188 (opinion of Stewart, Powell, and Stevens, JJ.). Contrary to the statutes at issue in Furman v. Georgia, 408 U. S. 238 (1972), under which the death penalty was “infrequently imposed” upon “a capriciously selected random handful,” id., at 309-310 (Stewart, J., concurring), and “the threat of execution [was] too attenuated to be of substantial service to criminal justice,” id., at 311-313 (White, J., concurring), it was anticipated that the Georgia scheme would produce an evenhanded, objective procedure rationally “ 'distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’ ” Gregg v. Georgia, supra, at 198, quoting Furman, supra, at 313 (White, J., concurring).
For reasons I expressed in Furman v. Georgia, supra, at 314-371 (concurring opinion), and Gregg v. Georgia, supra, at 231-241 (dissenting opinion), I believe that the death penalty may not constitutionally be imposed even if it were possible to do so in an evenhanded manner. But events since Gregg make that possibility seem increasingly remote. Nearly every week of every year, this Court is presented with at least one petition for certiorari raising troubling issues of noncompliance with the strictures of Gregg and its progeny. On numerous occasions since Gregg, the Court has reversed decisions of State Supreme Courts upholding the imposition of capital punishment,5 frequently on the ground that the sentencing proceeding allowed undue discretion, causing dangers *439of arbitrariness in violation of Gregg and its companion cases. These developments, coupled with other persuasive evidence,6 strongly suggest that appellate courts are incapable of guaranteeing the kind of objectivity and evenhandedness that the Court contemplated and hoped for in Gregg. The disgraceful distorting effects of racial discrimination and poverty continue to be painfully visible in the imposition of death sentences.7 And while hundreds have been placed on death row in the years since Gregg,8 only three persons have been executed.9 Two of them made no effort to challenge their sentence and were thus permitted to commit what I have elsewhere described as “state-administered suicide." Lenhard *440v. Wolff, 444 U. S. 807, 815 (1979) (dissenting opinion). See also Gilmore v. Utah, 429 U. S. 1012 (1976). The task of eliminating arbitrariness in the infliction of capital punishment is proving to be one which our criminal justice system— and perhaps any criminal justice system — is unable to perform.10 In short, it is now apparent that the defects that led my Brothers Douglas, Stewart, and White to concur in the judgment in Furman are present as well in the statutory schemes under which defendants are currently sentenced to death.
The issue presented in this case usefully illustrates the point. The Georgia Supreme Court has given no real content to § (b)(7) in by far the majority of the cases in which it has had an opportunity to do so. In the four years since Gregg, the Georgia court has never reversed a jury’s finding of a § (b) (7) aggravating circumstance.11 With considerable frequency the Georgia court has, as here, upheld the imposition of the death penalty on the basis of a simple conclusory statement that the evidence supported the jury’s finding under § (b) (7).12 Instances of a narrowing construction are difficult *441to find, and those narrowing constructions that can be found have not been adhered to with any regularity. In no case has the Georgia court required a narrowing construction to be given to the jury — an indispensable method for avoiding the “standardless and unchanneled imposition of death sentences.” Ante, at 429. Genuinely independent review has been exceedingly rare. In sum, I agree with the analysis of a recent commentator who, after a careful examination of the Georgia cases, concluded that the Georgia court has made no substantial effort to limit the scope of § (b)(7), but has instead defined the provision so broadly that practically every murder can fit within its reach. See Dix, Appellate Review of the Decision To Impose Death, 68 Geo. L. J. 97, 110-123 (1979).
The Georgia court’s inability to administer its capital punishment statute in an evenhanded fashion is not necessarily attributable to any bad faith on its part; it is, I believe, symptomatic of a deeper problem that is proving to be genuinely intractable. Just five years before Gregg, Mr. Justice Harlan stated for the Court that the tasks of identifying “before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and [of] express [ing] these characteristics in language which can be *442fairly understood and applied by the sentencing authority, appear to be . . . beyond present human ability.” McGautha v. California, 402 U. S. 183, 204 (1971). From this premise, the Court in McGautha drew the conclusion that the effort to eliminate arbitrariness in the imposition of the death penalty need not be attempted at all. In Furman, the Court concluded that the arbitrary infliction of the death penalty was constitutionally intolerable. And in Gregg, the Court rejected the premise of McGautha and approved a statutory scheme under which, as the Court then perceived it, the death penalty would be imposed in an evenhanded manner.
There can be no doubt that the conclusion drawn in McGau-tha was properly repudiated in Furman, where the Court made clear that the arbitrary imposition of the death penalty is forbidden by the Eighth and Fourteenth Amendments. But I believe that the Court in McGautha was substantially correct in concluding that the task of selecting in some objective way those persons who should be condemned to die is one that remains beyond the capacities of the criminal justice system. For this reason, I remain hopeful that even if the Court is unwilling to accept the view that the death penalty is so barbaric that it is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, it may eventually conclude that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty— must be abandoned altogether.
My Brother White appears to miseharacterize today’s holding in suggesting that a “majority of this Court disagrees” with the conclusion that the “facts supported the jury’s finding of the existence of statutory aggravating circumstance § (b)(7).” Post, at 449. The question is not whether the facts support the jury’s finding. As in any case raising issues of vagueness, the question is whether the court below has adopted so ambiguous a construction of the relevant provision that the universe of cases that it comprehends is impermissibly large, thus leaving undue discretion to the decisionmaker and creating intolerable dangers of arbitrariness and caprice.
Georgia Code §26-1305 (1978) provides, in pertinent part: “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.”
My Brother White also assumes that § (b) (7) “applie[s] in its entirety,” post, at 448, so that the aggravating circumstance cannot be found unless the jury finds torture, depravity of mind, or aggravated battery to the victim.
In Holton v. State, the defendant murdered a husband and wife. Both victims died of gunshot wounds. The husband had sustained wounds to his ear and shoulder which were apparently caused by blows from a tomahawk. The wife had been stabbed in the back and her ear almost severed after she died. The jury was instructed in the language of § (b)(7), but the word “torture” was omitted since there was no evidence of torture before the deaths occurred. The court also instructed the jury on the statutory definition of aggravated battery, but informed them that they could not find an aggravated battery to the wife. The jury found as an aggravating circumstance the fact that the murder was committed “by reason of depravity of mind.” The Georgia Supreme Court indicated in dictum that the omission of the words “outrageously or wantonly vile, horrible or inhuman,” rendered the finding impermissibly vague, but did not comment on the instructions to the jury. Apparently, then, the court would have permitted the jury to find that the murder of the wife fell within § (b) (7) even though there was neither torture nor aggravated battery. See also n. 11, infra.
See, e. g., Green v. Georgia, 442 U. S. 95 (1979); Presnell v. Georgia, 439 U. S. 14 (1978); Bell v. Ohio, 438 U. S. 637 (1978); Lockett v. Ohio, 438 U. S. 586 (1978); Downs v. Ohio, 438 U. S. 909 (1978); Shelton v. Ohio, 438 U. S. 909 (1978); Woods v. Ohio, 438 U. S. 910 (1978); Roberts v. Ohio, 438 U. S. 910 (1978); Jordan v. Arizona, 438 U. S. 911 (1978) ; Coker v. Georgia, 433 U. S. 584 (1977); Eberheart v. Georgia, 433 U. S. 917 (1977); Hooks v. Georgia, 433 U. S. 917 (1977); Gardner v. Florida, 430 U. S. 349 (1977); Davis v. Georgia, 429 U. S. 122 (1976).
See generally Dix, Appellate Review of the Decision To Impose Death, 68 Geo. L. J. 97 (1979). Professor Dix's meticulous study of the process of appellate review in Georgia, Florida, and Texas since 1976 demonstrates that “objective standards” for the imposition of the death penalty have not been achieved and probably are impossible to achieve, and concludes that Oregg and its companion cases “mandate pursuit of an impossible goal.” 68 Geo. L. J., at 161.
On April 20, 1980, for example, over 40% of the persons on death row were Negroes. See NAACP Legal Defense and Educational Fund, Death Row, U. S. A., 1 (Apr. 20, 1980). See also U. S. Department of Justice, Capital Punishment 1978, pp. 25-30 (1979); Furman v. Georgia, 408 U. S. 238, 249-257 (1972) (Douglas, J., concurring).
See NAACP Legal Defense and Educational Fund, Death Row, U. S. A. (Apr. 20, 1980) (642 people on death row); U. S. Department of Justice, Capital Punishment 1978, p. 1 (1979) (445 people on death row as of December 31, 1978).
In Furman, my Brothers Stewart and White concurred in the judgment largely on the ground that the death penalty had been so infrequently imposed that it made no contribution to the goals of punishment. Mr. Justice Stewart stated that “the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.” Furman v. Georgia, 408 U. S., at 309-310. Mr. Justice White relied on his conclusion that “the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.” Id., at 313. These conclusions have proved to be equally valid under the sentencing schemes upheld in Gregg.
See C. Black, Capital Punishment: The Inevitability of Caprice and Mistake (1974); Black, Due Process for Death: Jurek v. Texas and Companion Cases, 26 Cath. U. L. Rev. 1 (1976).
In Holton v. State, 243 Ga. 312, 253 S. E. 2d 736, cert. denied, 444 U. S. 925 (1979), thé court reversed a sentence of death on the grounds that the trial judge had given an inadequate charge on mitigating circumstances and that the jury had not been informed that it could recommend a life sentence even though it found a statutory aggravating circumstance. Although in dictum it indicated disapproval of a statutory circumstance based solely on depravity of mind, the court did not reverse the jury’s finding under § (b)(7). See also n. 4, supra.
See Willis v. State, 243 Ga. 185, 253 S. E. 2d 70, cert. denied, 444 U. S. 885 (1979); Baker v. State, 243 Ga. 710, 257 S. E. 2d 192 (1979); Legare v. State, 243 Ga. 744, 257 S. E. 2d 247, cert. denied, 444 U. S. 984 (1979) ; Green v. State, 242 Ga. 261, 249 S. E. 2d 1 (1978), rev’d on other grounds, 442 U. S. 95 (1979); Young v. State, 239 Ga. 53, 236 S. E. 2d 1, cert. denied, 434 U. S. 1002 (1977); Gaddis v. State, 239 Ga. 238, 236 S. E. 2d *441594 (1977), cert. denied, 434 U. S. 1088 (1978); Davis v. State, 236 Ga. 804, 225 S. E. 2d 241, rev’d on other grounds, 429 U. S. 122 (1976); Jarrell v. State, 234 Ga. 410, 216 S. E. 2d 258 (1975), cert. denied, 428 U. S. 910 (1976); Floyd v. State, 233 Ga. 280, 210 S. E. 2d 810 (1974), cert. denied, 431 U. S. 949 (1977); House v. State, 232 Ga. 140, 205 S. E. 2d 217 (1974), cert. denied, 428 U. S. 910 (1976). The Georgia court has given an extraordinarily broad meaning to the word “torture.” Under that court’s view, “torture” may be present whenever the victim suffered pain or anticipated the prospect of death. See Campbell v. State, 240 Ga. 352, 240 S. E. 2d 828 (1977), cert. denied, 439 U. S. 882 (1978); Blake v. State, 239 Ga. 292, 236 S. E. 2d 637, cert. denied, 434 U. S. 960 (1977); Banks v. State, 237 Ga. 325, 227 S. E. 2d 380 (1976), cert. denied, 430 U. S. 975 (1977). That interpretation would of course enable a jury to find a § (b) (7) aggravating circumstance in most murder cases.