dissenting.
Before the Court is an application, filed by Ross Maggio, Warden of the Louisiana State Penitentiary, to vacate a stay of execution granted by the United States Court of Appeals for the Fifth Circuit.1 Because the condemned, Robert Wayne Williams, has raised a substantial constitutional claim relating to the proportionality review undertaken by the Supreme Court of Louisiana when it affirmed his death sentence, I would deny the application. Moreover, because the Court’s approach to this case displays an unseemly and unjustified eagerness to allow the State to proceed with Williams’ execution, I dissent.
I
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting), I would deny the Warden’s application to vacate the stay of execution granted by the Court of Appeals.
HH
Even if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would deny the application in this case because *57Williams has raised a substantial constitutional claim concerning the disproportionate nature of his sentence.
This afternoon, the Court will hear oral argument in Pulley v. Harris, No. 82-1095, to consider whether the Constitution requires, prior to the execution of any death sentence, that a court of statewide jurisdiction determine whether a death sentence is proportional to the crime committed in light of the sentences received by similarly charged and convicted defendants in the State. Specifically, the questions presented to the Court for review are (1) whether the Constitution requires any proportionality review by a court of statewide jurisdiction prior to the execution of a state death sentence and (2) if so, whether the Constitution requires that such review assume any particular focus, scope, or procedural structure. Williams maintains that the order of the Court of Appeals staying his execution should be allowed to stand pending this Court’s plenary consideration and disposition of the issues raised in Pulley. There is simply no defensible basis for disagreeing with him.
His common-sense position rests on several related arguments. Initially, it is beyond dispute that the constitutional status of proportionality review is currently unclear. That is undoubtedly why the Court granted the petition for a writ of certiorari in Pulley. See 460 U. S. 1036 (1983). It is also why Justice White, just last month, stayed the execution of James David Autry pending our decision in Pulley. See Autry v. Estelle, post, p. 1301 (in chambers). See also infra, at 62. Given this uncertainty, it seems grossly inappropriate to allow an execution to take place at this time if the condemned prisoner raises a nonfrivolous argument relating to the proportionality of his sentence. And in this case, Williams has raised at least two nonfrivolous, and indeed substantial, claims concerning the proportionality of his death sentence.
First, Williams contends that the Supreme Court of Louisiana has denied him due process of law by undertaking only a *58districtwide or parishwide proportionality review in his case. See State v. Williams, 383 So. 2d 369, 374-375 (1980), cert. denied, 449 U. S. 1103 (1981). He properly notes that prior opinions of this Court have suggested that statewide proportionality review is required before any constitutional death sentence may be carried out. See, e. g., Gregg v. Georgia, 428 U. S., at 198, 204-206 (opinion of Stewart, Powell, and Stevens, JJ.) (approving death penalty in Georgia where appellate court examines whether the same sentence has been imposed “ ‘in similar cases throughout the state’ ”); id., at 223 (opinion of White, J.) (noting with approval that the State Supreme Court vacates the death sentence “whenever juries across the State impose it only rarely for the type of crime in question”).2 Given that the necessary scope of any required proportionality review is among the questions presented in Pulley, any uncertainty concerning the continuing validity of these prior statements will presumably be answered by our decision in that case. The execution of a condemned prisoner raising a nonfrivolous claim on this particular issue prior to the release of that decision belies our boast to be a civilized society.3
*59Second, even if a proportionality review limited to a single judicial district might eventually be held to pass constitutional muster, Williams notes that recent decisions of the Supreme Court of Louisiana have randomly applied proportionality reviews that are statewide in scope. See, e. g., State v. Moore, 432 So. 2d 209, 225-228 (1983) (limited comparison of first-degree murder cases statewide); State v. Narcisse, 426 So. 2d 118, 138-139 (1983) (similar comparison between several districts rather than the customary one). The state court’s failure to adopt any consistent approach in its review of capital cases, combined with its failure to offer any reasons for these different approaches, suggests that his death sentence has been imposed in a capricious and arbitrary manner. Again, at least until this Court clarifies the need for, and potential scope of, proportionality review in Pulley, I find it startling that the Court should allow this execution to take place.
A simple examination of the proportionality review that was undertaken in this case demonstrates its inadequacy.4 *60The review was undertaken in April 1980, when Williams’ case was on direct appeal before the Supreme Court of Louisiana. The court compared the circumstances of Williams’ crime with the crimes of other capital defendants in the Nineteenth Judicial District for the Parish of East Baton Rouge, La., the district or parish in which Williams was tried and convicted. At that time, only 28 murder prosecutions had taken place in the district since January 1, 1976, the relevant date under state rules on which to begin the comparison. Of those 28 prosecutions, only 11 resulted in convictions for first-degree murder. And of those 11, only 3 defendants were sentenced to death. Like Williams, all three were the actual killers in a murder taking place during the perpetration of an armed robbery. And the court conclusorily noted that the crimes committed by the eight defendants receiving life imprisonment had no aggravating circumstances or some mitigating circumstances and therefore were distinguishable from Williams’ case. But, as the state court also admitted, Williams had no significant prior criminal record and may have been affected by a drug-induced mental disturbance. Therefore, the proportionality review undertaken in this case, limited as it was to a few cases arising in a single judicial district, could not ensure that similarly situated defendants throughout the State of Louisiana also had received a death sentence.
Louisiana has a total of 40 judicial districts in which a death sentence may be imposed. They apparently range from districts that cover primarily rural areas to a district that covers the urban center of New Orleans. Yet by allowing the Supreme Court of Louisiana to limit its proportionality review to a particular district, the Court today sanctions a practice *61that undoubtedly results in different sentences for similarly situated defendants, dependent solely upon the judicial dis*-trict in which the defendant was tried. This is the essence of arbitrary and capricious imposition of the death penalty that the Court has consistently denounced. “A constant theme of our cases . . . has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner.” Barclay v. Florida, 463 U. S. 939, 960 (1983) (Stevens, J., concurring in judgment). Central to these protections is a system that includes meaningful appellate review for every death sentence. See, e. g., Zant v. Stephens, 462 U. S., at 875 and 876; Gregg v. Georgia, 428 U. S., at 195, 204-206. Given the existence of only one statewide death penalty statute approved by the Louisiana State Legislature, requiring that all courts and juries across the State apply uniform legal standards before imposing a death sentence, there can be no doubt of the substantiality of the constitutional question whether the State Supreme Court may apply different standards of appellate review depending on the judicial district involved.
In sum, Williams has raised a substantial claim challenging the constitutionality of his death sentence which is encompassed within the questions presented to the Court in Pulley v. Harris. Given the severity and irrevocability of the death sentence, it is shocking that the Court does not follow its normal procedures in this case. Under these procedures, the stay of execution should be left in force pending the timely filing of a petition for certiorari, and the final disposition in Pulley.
Ill
The Court offers no defensible rationale for departing from this sensible practice.5 Its action in this case is especially *62troubling because (1) it is based on the minimal filings associated with a stay application, (2) it effectively pre-empts one of the questions presented for review in Pulley, and (3) it apparently is an irrevocable decision that will result in Williams’ execution.
Less than five weeks ago, on October 5, 1983, Justice White stayed the execution of a condemned prisoner who, mere hours before his execution, claimed that he had been denied due process because the Texas Court of Criminal Appeals had failed to subject his death sentence to any proportionality review. See Autry v. Estelle, post, p. 1301 (in chambers). Justice White concluded that Autry’s execution should be stayed pending disposition of Pulley because the Court’s decision in Pulley will likely have a bearing on the validity of that prisoner’s last-minute claim. Since then, the full Court has refused to vacate that stay. Post, p. 925. Incredibly, the sensible practice followed in Autry has been rejected in this case because the Supreme Court of Louisiana utilized a limited proportionality review whereas in Autry the state court did not apply any such review. For present purposes, however, this is a distinction which should make no difference.' Given the questions presented in Pulley, see supra, at 57, it is impossible to be certain that the proportionality review accorded Williams satisfies the constitutional requirements that the Pulley decision is intended to clarify.
It is no answer that the Court has consistently denied challenges to Louisiana’s districtwide proportionality review, including Williams’ own challenge to that review in his petition for certiorari on his first federal habeas. Williams v. Maggio, 463 U. S. 1214 (1983). For each of these denials, as is true of all denials of certiorari, is not a decision on the merits of the issues raised in the respective petitions. More *63important, in none of those cases did the Court’s denial of cer-tiorari involve an imminent date of execution. In this case, by contrast, the Court’s action will allow the execution of Williams to proceed to its fatal conclusion even though uncertainty overhangs the constitutional legitimacy of the process by which his death sentence was affirmed.6
Nor may the Court take comfort in the fact that, in the course of denying Williams’ request for habeas relief, the Federal District Court conducted an abbreviated statewide proportionality review based on the published opinions of the Supreme Court of Louisiana. Although the District Court concluded that Williams’ sentence was not disproportionate, that finding is largely irrelevant to the issue raised by Williams. The District Court’s judgment regarding the proportionality of the death sentence is insufficient because it cannot substitute for the State Supreme Court, which is presumably more familiar than the federal court with the important nuances of the State’s death penalty jurisprudence. Moreover, because Williams’ requested remedy on habeas was a remand to the state court for a statewide proportionality review, the District Court did not have the benefit of any arguments from counsel for Williams on how that statewide review should be conducted. That the District Court conducted a hasty proportionality review based solely on published opinions from the State Supreme Court should not be deemed constitutionally sufficient.
Finally, the Court gives insufficient weight to the potential prejudicial effect of the limited, districtwide review conducted in Williams’ case. In fact, Williams’ habeas petition *64has identified at least two specific ways in which he has been prejudiced by a districtwide, rather than a statewide, proportionality review. First, he claims that there has never been a statewide pattern of death sentences for persons committing murder during armed robbery, especially when there was a close question whether the murder was committed with specific intent or was simply accidental. Second, Williams claims that his case presented mitigating circumstances comparable to various cases in other parts of the State which resulted in sentences of life imprisonment. These are exactly the types of disparities which a proportionality review of proper scope would discover.
The Court, therefore, plainly offers no reason for treating this case differently from any other stay application raising questions which are encompassed within a substantially similar case then pending on the Court’s plenary docket. Rather, “an appeal that raises a substantial constitutional question is to be singled out for summary treatment solely because the State has announced its intention to execute . . . before the ordinary appellate procedure has run its course.” Barefoot v. Estelle, 463 U. S. 880, 913 (1983) (Marshall, J., dissenting) (emphasis in original).7
*65f — I
By vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is pre-empting any conclusion that the Constitution mandates statewide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared unconstitutional. Only after full consideration and disposition of Pulley will the Court be in a position to determine with reasonable assurance the validity of the claims raised by Williams. I am appalled that the Court should be unwilling to let stand a stay of execution pending the clarification of this issue.
I dissent.
See Williams v. King, 719 F. 2d 730 (CA5 1983). Prior to the action of the Court of Appeals, the execution of Williams had been set for between 12 p. m. and 3 a. m. on Tuesday, October 25, 1983.
See also Proffitt v. Florida, 428 U. S. 242, 258-260 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (approving death penalty in Florida where appellate review is done “by a court which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality” in the imposition of the penalty); Jurek v. Texas, 428 U. S. 262, 276 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Zant v. Stephens, 462 U. S. 862, 879-880, 890, and n. 19 (1983).
The Court does not conclude that Williams’ challenge to the district-wide proportionality review undertaken by the State Supreme Court is a frivolous or even a nonsubstantial claim. Indeed, at least one justice of the Supreme Court of Louisiana has argued that the limited scope of such review does not satisfy federal constitutional standards. See State v. Prejean, 379 So. 2d 240, 249-252 (La. 1979) (Dennis, J., dissenting from denial of rehearing).
Rather, the Court concludes that the challenge does not present “an issue warranting a grant of certiorari.” See ante, at 52. But as noted above, the Court has already granted a petition for certiorari in Pulley that *59poses a question concerning the constitutionally required scope of any proportionality review. Therefore, the Court’s conclusion that the claim raised by Williams is not worthy of review is directly contradicted by the Court’s previous actions in Pulley. See also Baldwin v. Maggio, 704 F. 2d 1325, 1326, n. 1 (CA5 1983), in which the Court of Appeals for the Fifth Circuit recognized the similarity between the claims raised in Pulley and the claim raised by Williams and other condemned prisoners in Louisiana.
Article 905.9 of the Louisiana Code of Criminal Procedure requires that the Supreme Court of Louisiana “review every sentence of death to determine if it is excessive” and directs the court to “establish such procedures as are necessary to satisfy constitutional criteria for review.” La. Code Crim. Proc. Ann., Art. 905.9 (West Supp. 1983). Acting pursuant to that direction, the court has adopted its own Rule 28, which provides in relevant part that “[i]n determining whether the sentence is excessive the court shall determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Louisiana Supreme Court Rule 28, § 1(c).
Moreover, the system for appellate review in Louisiana was intentionally patterned after the procedure for review authorized by the Georgia death *60penalty statute and approved by this Court in Gregg v. Georgia, 428 U. S. 153 (1976). See State v. Sonnier, 379 So. 2d 1336, 1358 (La. 1979). The Georgia procedure, of course, includes a proportionality review that compares a death sentence to other sentences imposed throughout the State. Gregg v. Georgia, supra, at 204-206; see supra, at 58.
On several occasions, I and other Members of the Court have expressed disapproval for the “ ‘growing and inexplicable readiness ... to “dispose of” cases summarily.’ ” Hutto v. Davis, 454 U. S. 370, 387 (1982) (Bren-*62NAN, J., dissenting) (quoting Harris v. Rivera, 454 U. S. 339, 349 (1981) (Marshall, J., dissenting)). For the various reasons expressed in the text, this practice proves especially disturbing in this case.
Under Louisiana law, “if any federal court. . . grants a stay of execution, the trial court shall fix the execution date at not less than thirty days nor more than forty-five days from the dissolution of the stay order.” La. Rev. Stat. Ann. § 15:567 (West Supp. 1983). This means that Williams’ execution can be rescheduled mere weeks after this Court hears oral argument in Pulley, at a time when it is extremely unlikely that the Court will have already rendered its decision in that case.
At least two other claims raised by Williams also suggest that the State should not be allowed to proceed with this execution. First, as Justice Stevens notes, ante, p. 52, Williams has raised a serious question concerning the prosecutor's argument to the jury. That argument unduly prejudiced Williams because, by overstating the role of appellate review, it both misstated Louisiana law and allowed the jury to discount its grave responsibilities when imposing the death sentence. Unlike JUSTICE Stevens, however, I believe Sanders v. United States, 373 U. S. 1 (1963), mandates that the case be remanded for a full hearing on this matter.
Second, Williams has alleged that exclusion for cause of jurors unequivocally opposed to the death penalty resulted in a biased jury during the guilt phase of the trial proceedings against him. The Court has previously noted that, “[i]n light of . . . presently available information,” it cannot be said that such juror exclusion results in an unrepresentative jury on the issue of guilt. See, e. g., Witherspoon v. Illinois, 391 U. S. 510, 516-518 *65(1968). See also Bumper v. North Carolina, 391U. S. 543, 545, and nn. 5, 6 (1968). That conclusion, however, was reached 15 years ago, and recent cases and scholarship suggest that it may need to be reexamined. See, e. g., Grigsby v. Mabry, 569 F. Supp. 1273 (ED Ark. 1983); Winick, Pros-ecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1 (1982). An evi-dentiary hearing on this issue is clearly necessary.