dissenting.
Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I could scarcely join in upholding a death sentence based in part upon a statutory aggravating circumstance so vague that its application turns solely on the “whim” of the jury. Arnold v. State, 236 Ga. 534, 541, 224 S. E. 2d 386, 391 (1976).
The submission of the unconstitutional statutory aggravating circumstance to the jury cannot be deemed harmless error on the theory that “in Georgia, the finding of an ag*905gravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.” Ante, at 874 (emphasis added). If the trial judge’s instructions had apprised the jury of this theory, it might have been proper to assume that the unconstitutional statutory factor did not affect the jury’s verdict. But such instructions would have suffered from an even more fundamental constitutional defect — a failure to provide any standards whatsoever to guide the jury’s actual sentencing decision. If this Court’s decisions concerning the death penalty establish anything, it is that a capital sentencing scheme based on “standardless jury discretion” violates the Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U. S. 153, 195, n. 47 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), citing Furman v. Georgia, 408 U. S. 238 (1972).
In any event, the jury that sentenced respondent to death was never informed of this “threshold” theory, which was invented for the first time by the Georgia Supreme Court more than seven years later. Under the instructions actually given, a juror might reasonably have concluded, as has this Court in construing essentially identical instructions, that any aggravating circumstances, including statutory aggravating circumstances, should be balanced against any mitigating circumstances in the determination of the defendant’s sentence. There is no way of knowing whether the jury would have sentenced respondent to death if its attention had not been drawn to the unconstitutional statutory factor.
I
I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, supra, at 231 (Marshall, J., dissenting); Furman v. Georgia, supra, at 314 (Marshall, J., concurring).
*906h-4 HH
Today the Court upholds a death sentence that was based in part on a statutory aggravating circumstance which the State concedes was so amorphous that it invited “subjective decision-making without . . . minimal, objective guidelines for its application.” Arnold v. State, supra, at 541, 224 S. E. 2d, at 391. In order to reach this surprising result, the Court embraces the theory, which it infers from the Georgia Supreme Court’s response to this Court’s certified question,1 that the only function of statutory aggravating circumstances in Georgia is to screen out at the threshold defendants to whom none of the 10 circumstances applies. According to this theory, once 1 of the 10 statutory factors has been found, they drop out of the picture entirely and play no part in the jury’s decision whether to sentence the defendant to death. Relying on this “threshold” theory, the Court concludes that *907the submission of the unconstitutional statutory factor did not prejudice respondent.
If the jury instructions given some eight years ago were consistent with this new theory, we could assume that the jury did not focus on the vague statutory aggravating circumstance in making its actual sentencing decision. But if the jury had been so instructed, the instructions would have been constitutionally defective for a more basic reason, since they would have left the jury totally without guidance once it found a single statutory aggravating circumstance.
A
Until this Court’s decision in Furman v. Georgia in 1972, the capital sentencing procedures in most States delegated to judges and juries plenary authority to decide when a death sentence should be imposed. The sentencer was given “practically untrammeled discretion to let an accused live or insist that he die.” Furman v. Georgia, supra, at 248 (Douglas, J., concurring) (footnote omitted).
In Furman this Court held that the system of capital punishment then in existence in this country was incompatible with the Eighth and Fourteenth Amendments. As was later recognized in Gregg v. Georgia, Furman established one basic proposition if it established nothing else: “where the ultimate punishment of death is at issue a system of stand-ardless jury discretion violates the Eighth and Fourteenth Amendments.” 428 U. S., at 195, n. 47 (opinion of Stewart, Powell, and Stevens, JJ.). The basic teaching of Furman is that a State may not leave the decision whether a defendant lives or dies to the unfettered discretion of the jury, since such a scheme is “pregnant with discrimination,” 408 U. S., at 257 (Douglas, J., concurring), and inevitably results in death sentences which are “wantonly and . . . freakishly imposed,” id., at 310 (Stewart, J., concurring), and for which “there is no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many *908cases in which it is not.” Id., at 313 (White, J., concurring).2 See Gregg v. Georgia, 428 U. S., at 195, n. 47 (noting that Furman “ruled that death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violated the Eighth and Fourteenth Amendments”).
Four years after Furman was decided, this Court upheld the capital sentencing statutes of Georgia, Florida, and Texas against constitutional attack, concluding that those statutes contained safeguards that promised to eliminate the constitutional deficiencies found in Furman. See Gregg v. Georgia; Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976). The Court’s conclusion was based on the premise that the statutes ensured that sentencers would be “given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Gregg v. Georgia, 428 U. S., at 192 (opinion of Stewart, Powell, and Stevens, JJ.).3 The Court assumed that the iden*909tification of specific statutory aggravating circumstances would put an end to standardless sentencing discretion:
“These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury's attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury’s attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment .... As a result, while some jury discretion still exists, ‘the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.’” Id., at 197-198 (opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added; footnote and citation omitted).
In Godfrey v. Georgia, 446 U. S. 420 (1980), the Court reiterated that a State “must channel the senteneer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance.’” Id., at 428 (plurality opinion) (citations *910omitted). The Court reaffirmed the teaching of Furman and Gregg that “the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” 446 U. S., at 427. “[I]f a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Id., at 428.
B
Today we learn for the first time that the Court did not mean what it said in Gregg v. Georgia. We now learn that the actual decision whether a defendant lives or dies may still be left to the unfettered discretion of the jury. Although we were assured in Gregg that sentencing discretion was “ ‘to be exercised ... by clear and objective standards/” 428 U. S., at 198 (opinion of Stewart, Powell, and Stevens, JJ.), we are now told that the State need do nothing whatsoever to guide the jury’s ultimate decision whether to sentence a defendant to death or spare his life.
Under today’s decision all the State has to do is require the jury to make some threshold finding. Once that finding is made, the jurors can be left completely at large, wdth nothing to guide them but their whims and prejudices. They need not even consider any statutory aggravating circumstances that they have found to be applicable. Their sentencing decision is to be the product of their discretion and of nothing else.
If this is not a scheme based on “standardless jury discretion,” Gregg v. Georgia, 428 U. S., at 195, n. 47 (opinion of Stewart, Powell, and Stevens, JJ.), I do not know what is. Today’s decision makes an absolute mockery of this Court’s precedents concerning capital sentencing procedures. There is no point in requiring state legislatures to identify specific aggravating circumstances if sentencers are to be left free to ignore them in deciding which defendants are to die. If this is all Gregg v. Georgia stands for, the States may as well be *911permitted to reenact the statutes that were on the books before Furman.
The system of discretionary sentencing that the Court approves today differs only in form from the capital sentencing procedures that this Court held unconstitutional more than a decade ago. The only difference between Georgia’s pre-Furman capital sentencing scheme and the “threshold” theory that the Court embraces today is that the unchecked discretion previously conferred in all cases of murder is now conferred in cases of murder with one statutory aggravating circumstance. But merely circumscribing the category of cases eligible for the death penalty cannot remove from constitutional scrutiny the procedure by which those actually sentenced to death are selected.
More than a decade ago this Court struck down an Ohio statute that permitted a death sentence only if the jury found that the victim of the murder was a police officer, but gave the jury unbridled discretion once that aggravating factor was found. Duling v. Ohio, 408 U. S. 936 (1972), summarily rev’g 21 Ohio St. 2d 13, 254 N. E. 2d 670 (1970). See Ohio Rev. Code Ann. §2901.04 (1953). There is no difference of any consequence between the Ohio scheme held impermissible in Duling and the “threshold” scheme that the Court endorses today. If, as Duling establishes, the Constitution prohibits a State from defining a crime (such as murder of a police officer) and then leaving the decision whether to impose the death sentence to the unchecked discretion of the jury, it must also prohibit a State from defining a lesser crime (such as murder) and then permitting the jury to make a standardless sentencing decision once it has found a single aggravating factor (such as that the victim was a police officer). In both cases the ultimate decision whether the defendant will be killed is left to the discretion of the sentencer, unguided by any legislative standards.4 Whether a particu*912lar preliminary finding was made at the guilt phase of the trial or at the sentencing phase is irrelevant; a requirement that the finding be made at the sentencing phase in no way channels the sentencer’s discretion once that finding has been made.5 If the Constitution forbids one form of standardless discretion, it must forbid the other as well.
HH ► — I
A
In any event, the jury that sentenced respondent to death was never apprised of the “threshold” theory relied upon by the Court. There is no basis for the Court’s assumption, *913ante, at 891, that the jury did not attribute special significance to the statutory aggravating circumstances and did not weigh them, along with any other evidence in aggravation, against the evidence offered by respondent in mitigation.
In the first place,
“everything about the judge’s charge highlighted the importance of the aggravating circumstances. Not only were the circumstances submitted to the jury in writing, but also the jury was in turn required to write down each and every aggravating circumstance that it found to be established beyond a reasonable doubt. . . . The jury instructions provide absolutely no indication that, after carefully considering each of the statutory aggravating circumstances submitted by the trial judge, the jury should, or even could, discard the list of officially sanctioned grounds for imposing the death penalty in deciding whether to actually sentence respondent to death.” Zant v. Stephens, 456 U. S. 410, 427 (1982) (Marshall, J., dissenting).
In deciding whether respondent deserved to die, the jurors might well have deemed his prior assaults unimportant if the judge had not specifically focused on them in his charge.
Second, the Court’s assertion that “in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion,” ante, at 874, is flatly inconsistent with this Court’s own previous characterizations of the function of statutory aggravating circumstances in the Georgia scheme. In Gregg v. Georgia, where the jury instructions were essentially identical to those given here,6 the joint opinion of Justices Stewart, *914Powell, and Stevens took great pains to point out that the statutory aggravating circumstances served to apprise the sentencer “of the information relevant to the imposition of sentence and [to] provid[e] standards to guide its use of the information.” 428 U. S., at 195. There was not the slightest hint that the statutory factors are relevant only to the threshold determination of whether the defendant is eligible to receive the death penalty. On the contrary, the joint opinion emphasized that they informed the sentencer of “the factors . . . that the State . . . deems particularly relevant to the sentencing decision” Id., at 192 (emphasis added). If it had been thought that statutory aggravating circumstances were to play only a threshold role in the sentencing process, it would have made no sense at all to say that a jury’s verdict identifying one or more of those circumstances served to apprise appellate courts of “the factors it relied upon in reaching its decision.” Id., at 195 (emphasis added). The very premise of the “threshold” theory adopted today is that statutory aggravating circumstances are not relied upon by the jury in reaching its ultimate sentencing decision, but are considered only in deciding whether the defendant is eligible to receive the death penalty.
The Court’s assumption that respondent’s jury did not balance aggravating circumstances against mitigating circumstances is also inconsistent with this Court’s characterization of the almost identical instructions given in Coker v. Georgia, 433 U. S. 584 (1977) (plurality opinion). See App. in Coker v. Georgia, O. T. 1976, No. 75-5444, pp. 298-302. In Coker, as in this case, the jury was not expressly instructed to weigh aggravating against mitigating circumstances, but the plurality opinion sensibly recognized that such a weighing is inherent in any determination of whether mitigating circumstances warrant a life sentence notwithstanding the existence of aggravating circumstances:
“The jury was instructed that it could consider as aggravating circumstances whether the rape had been committed by a person with a prior record of conviction *915for a capital felony and whether the rape had been committed in the course of committing another capital felony, namely, the armed robbery of Allen Carver. The court also instructed, pursuant to statute, that even if aggravating circumstances were present, the death penalty need not be imposed if the jury found they were outweighed by mitigating circumstances. ...” 433 U. S., at 587-590 (emphasis added).
I would like to know how the jury that sentenced respondent to death in 1975 could have known that statutory aggravating circumstances were to play only a threshold role in their deliberations, when this Court itself has interpreted essentially identical instructions to require a weighing of aggravating and mitigating circumstances and as recently as last Term found it necessary to ask the Georgia Supreme Court to clarify what the instructions in this case meant. We are presented with “different and conflicting theories regarding a charge designed to guide the jury . . . , and yet we are asked to sustain the [death sentence] on the assumption that the jury was properly guided.” Bollenbach v. United States, 326 U. S. 607, 613 (1946). For my part, I believe that a death sentence “ought not to rest on an equivocal direction to the jury on a basic issue.” Ibid. It is patently unfair to assume that the jury that sentenced respondent somehow understood that statutory aggravating circumstances were to receive no special weight and were not to be balanced against mitigating circumstances. Respondent is “entitled to have the validity of [his sentence] appraised on consideration of the case as it was tried and as the issues were determined in the trial court,” Cole v. Arkansas, 333 U. S. 196, 202 (1948); see Presnell v. Georgia, 439 U. S. 14, 16 (1978), not on a theory that has been adopted for the first time after the fact.
B
Once it is recognized that respondent’s jury may well have assumed that statutory aggravating circumstances deserve *916special weight, the injustice of today’s decision becomes apparent. Under the Georgia capital sentencing procedure, the sentencer always has discretion not to impose a death sentence regardless of whether there is proof of one or more statutory aggravating circumstances, and regardless of whether there are any mitigating circumstances.
There is simply no way for this Court to know whether the jury would have sentenced respondent to death if the unconstitutional statutory aggravating circumstance had not been included in the judge’s charge. If it is important for the State to authorize and for the prosecution to request the submission of a particular statutory aggravating circumstance to the jury, “we must assume that in some cases [that circumstance] will be decisive in the [jury’s] choice between a life sentence and a death sentence.” Gardner v. Florida, 430 U. S. 349, 359 (1977) (opinion of Stevens, J.).
As Justice Stewart pointed out in a similar case, “under Georgia’s capital punishment scheme, only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death.” Drake v. Zant, 449 U. S. 999, 1001 (1980) (dissenting from denial of certiorari) (emphasis added). Although the Court labors mightily in an effort to demonstrate that submission of the unconstitutional statutory aggravating circumstance did not affect the jury’s verdict, there is no escape from the conclusion — reached by Justice Powell only last Term — that respondent was sentenced to death “under instructions that could have misled the jury.” Zant v. Stephens, 456 U. S., at 429 (Powell, J., dissenting).7 Where a man’s life is at stake, this inconvenient fact should not be simply swept under the rug.
*917C
As I read the Court’s opinion, the Court does not deny that respondent might have received only a life sentence if the unconstitutional aggravating circumstance had not been submitted to the jury. Rather, the Court assumes that “the instruction did induce the jury to place greater emphasis upon the respondent’s prior criminal record than it would otherwise have done.” Ante, at 888. The Court concludes, however, that the submission of this unconstitutional statutory factor does not amount to “a constitutional defect in the sentencing process,” ante, at 889, because the jury could properly have been instructed to decide whether either of the other two statutory factors applied and told in addition that “in deciding whether or not [a death] sentence is appropriate you may consider the remainder of [the defendant’s] prior criminal record,” ante, at 888. The Court finds no constitutional difference between this charge and the charge actually given.
Even assuming that it is proper to sustain a death sentence by reference to a hypothetical instruction that might have been given but was not, the Court errs in assuming that the hypothetical instruction would satisfy the Constitution. As elaborated in Part II above, this Court’s decisions establish that the actual determination whether a defendant shall live or die — and not merely the threshold decision whether he is eligible for a death sentence — must be guided by clear and objective standards. The focus of the sentencer’s attention must be directed to specific factors whose existence or nonexistence can be determined with reasonable certainty. Since the hypothetical instruction would fail to channel the *918sentencer’s discretion in this fashion, the Court’s assumption that it would be constitutional is unwarranted.8
> 1 — I
For the foregoing reasons, I would vacate respondent’s death sentence.
Although the Court asserts that “the Georgia Supreme Court has unambiguously advised us” that the finding of one or more of the statutory aggravating circumstances “merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty” and serves no other function, ante, at 875, the Georgia Supreme Court’s answer to our certified question is in fact far from clear. The answer states only that the threshold “is passed regardless of the number of statutory aggravating circumstances found, so long as there is at least one,” and that thereafter the sentencer may consider “all the facts and circumstances of the case.” 250 Ga. 97, 100, 297 S. E. 2d 1, 4 (1982). To say that all aggravating circumstances, statutory and nonstatutory, may be considered once one statutory circumstance has been found, is not to say that “the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.” Ante, at 874 (emphasis added). There is nothing in the Georgia Supreme Court’s opinion to suggest that jurors are not to give special attention to statutory aggravating circumstances throughout their deliberations, rather than simply in making the threshold determination whether any such circumstances apply.
Nonetheless, for the purposes of this opinion I will assume that the majority has correctly characterized the Georgia Supreme Court’s explanation of the Georgia capital sentencing procedure.
Justice Brennan and I were the other two Members of the Furman majority. We concluded that the death penalty is in all circumstances cruel and unusual punishment. 408 U. S., at 257 (Brennan, J., concurring); id., at 314 (Marshall, J., concurring).
See Gregg v. Georgia, 428 U. S., at 221 (White, J., joined by Burger, C. J., and Rehnquist, J., concurring in judgment) (“The Georgia Legislature has made an effort to identify those aggravating factors which it considers necessary and relevant to the question whether a defendant convicted of capital murder should be be sentenced to death”) (emphasis added; footnote omitted); Proffitt v. Florida, 428 U. S. 242, 251 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (“The sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating factors against seven mitigating factors to determine whether the death penalty shall be imposed”); id., at 260 (White, J., joined by Burger, C. J., and Rehnquist, J., concurring in judgment) (“although the statutory aggravating and mitigating circumstances are not susceptible of mechanical application, they are by no means so vague and overbroad as to leave the discretion of the sentencing authority unfettered”); Jurek v. Texas, 428 U. S. 262, 273-274 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) *909(“It. . . appears that. . . the Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death”); id., at 279 (White, J., joined by Burger, C. J., and Rehnquist, J., concurring in judgment) (“the Texas capital punishment statute limits the imposition of the death penalty to a narrowly defined group of the most brutal crimes and aims at limiting its imposition to similar offenses occurring under similar circumstances”).
This remains true whether or not the aggravating factor satisfies the Court’s requirement that it “genuinely narrow the class of persons eligible *912for the death penalty and . . . reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Ante, at 877.
This Court has repeatedly recognized that a capital sentencing statute does not satisfy the Constitution simply because it requires a bifurcated trial and permits presentation at the penalty phase of evidence concerning the circumstances of the crime, the defendant’s background and history, and other factors in aggravation and mitigation of punishment. E. g., Delgado v. Connecticut, 408 U. S. 940 (1972), summarily rev’g 161 Conn. 536, 290 A. 2d 338 (1971) (see Conn. Gen. Stat. §53-10 (1968)); Moore v. Illinois, 408 U. S. 786 (1972) (see Ill. Rev. Stat., ch. 38, §1-7 (1963)); Scoleri v. Pennsylvania, 408 U. S. 934 (1972), summarily rev’g 432 Pa. 571, 248 A. 2d 295 (1968) (see Pa. Stat. Ann., Tit. 18, §4701 (1963)). Although the creation of a separate sentencing proceeding permits the exclusion from the guilt phase of information that is relevant only to sentencing and that might prejudice the determination of guilt, merely bifurcating the trial obviously does nothing to guide the discretion of the sentencer. See Gregg v. Georgia, 428 U. S., at 192 (opinion of Stewart, Powell, and Stevens, JJ.).
Nor is mandatory appellate review a substitute for legislatively defined criteria to guide the jury in imposing sentence. Ante, at 890. Although appellate review may serve to reduce arbitrariness and caprice “[w]here the sentencing authority is required to specify the factors it relied upon in reaching its decision,” Gregg v. Georgia, supra, at 195 (opinion of Stewart, Powell, and Stevens, JJ.), appellate review cannot serve this function where statutory aggravating circumstances play only a threshold role and an appellate court therefore has no means of ascertaining the factors underlying the jury’s ultimate sentencing decision.
The instructions given in this case are set forth in the Court’s opinion last Term certifying a question to the Georgia Supreme Court. See Zant v. Stephens, 466 U. S. 410, 411-412, n. 1 (1982).. The instructions given in Gregg are quoted in Justice White’s opinion concurring in the judgment in that case. See 428 U. S., at 217-218.
Although Justice Powell stated in his dissent that he would leave it to the Georgia Supreme Court to decide “whether it has authority to find that the instruction was harmless error beyond a reasonable doubt,” 456 *917U. S., at 429, the per curiam opinion rejected this approach and asked the Georgia Supreme Court only to clarify the state-law premises underlying its decision to sustain respondent’s death sentence. The Georgia Supreme Court was not asked to conduct, and it did not conduct, a review of the evidence to determine whether the instruction was harmless error beyond a reasonable doubt.
Even if the hypothetical instruction were permissible, it would not follow that there was no constitutional defect in the instructions given in this case. There is nothing particularly vague about the phrase “prior criminal record”; it would be reasonably clear to any juror of ordinary intelligence that a defendant’s prior criminal record consists of his past convictions. By contrast, it is common ground in this case that the statutory aggravating circumstance “substantial history of serious assaultive criminal convictions” is so vague that no two juries could be expected to agree as to whether a particular defendant had such a history.
It is one thing to bring to the jury’s attention a readily identifiable factor such as the defendant’s prior criminal record, and leave it to the jury to decide what weight that factor should receive. It is quite another thing to ask the jury to determine the applicability of a statutory factor that no group of individuals of ordinary intelligence can be expected to apply in any objective way, and then, if the issue is resolved against the defendant, to take that factor into account in imposing sentence. Both instructions invite the exercise of discretion as to the weight to be given to the statutory factor, but the instruction given here has the further vice of requiring an arbitrary determination that can only be made in a haphazard way. It is as if the jurors were asked to flip a coin and weigh the result in their sentencing decision. Even if the hypothetical charge cited by the Court were proper, the charge given in this case would still be impermissible because it injected an arbitrary determination into the sentencing process.