Opinion

JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, dissenting.

Today the Court holds that the Eighth Amendment prohibits a State from executing a convicted felony murderer. I dissent from this holding not only because I believe that it is not supported by the analysis in our previous cases, but also because today's holding interferes with state criteria for assessing legal guilt by recasting intent as a matter of federal constitutional law.

I

The evidence at trial showed that, at approximately 7:30 a.m. on April 1, 1975, Sampson and Jeanette Armstrong approached the back door of Thomas and Eunice Kersey's farmhouse on the pretext of obtaining water for their overheated car. [ Footnote 2/1 ] When Thomas Kersey retrieved a water jug to help the Armstrongs, Sampson Armstrong grabbed him, held a gun to him, and told Jeanette Armstrong to take his wallet. Hearing her husband's cries for help, Eunice Kersey came around the side of the house with a gun and shot Jeanette Armstrong. Sampson Armstrong, and perhaps Jeanette Armstrong, returned the fire, killing both of the Kerseys. [ Footnote 2/2 ] The Armstrongs dragged the bodies into the kitchen, took Thomas Kersey's money, and fled to a nearby car, where the petitioner, Earl Enmund, was waiting to help the Armstrongs escape. Record 1348-1351. [ Footnote 2/3 ]

Ida Jean Shaw [ Footnote 2/4 ] testified that, on March 31, the petitioner and the two Armstrongs were staying at her house. When she awoke on April 1, the day of the murders, the petitioner, Jeanette, and Sampson, as well as Shaw's 1969 yellow Buick, were gone. Id. at 1185-1186. A little after eight o'clock, either the petitioner or Sampson Armstrong entered the house and told her that Jeanette had been shot. Id. at 1187-1188. After learning that Jeanette had been shot during a robbery, Shaw asked the petitioner "[w]hy he did it." Enmund answered that he had decided to rob Thomas Kersey after he had seen Kersey's money a few weeks earlier. Id. at 1205. [ Footnote 2/5 ] At the same time, Sampson Armstrong volunteered that he had made sure that the Kerseys were dead. Id. at 1207-1208.

Ida Jean Shaw also testified that, pursuant to the petitioner's and Sampson Armstrong's instructions, she had disposed of a.22-caliber pistol that she normally kept in her car, as well as a.38-caliber pistol belonging to the Armstrongs. Id. at 1198-1202. The murder weapons were never recovered. [ Footnote 2/6 ]

In his closing argument, the prosecutor did not argue that Earl Enmund had killed the Kerseys. Instead, he maintained that the petitioner had initiated and planned the armed robbery, and was in the car during the killings. According to the prosecutor, "Sampson Armstrong killed the old people." Id. at 1577. [ Footnote 2/7 ]

After deliberating for four hours, the jury found Sampson Armstrong and the petitioner each guilty of two counts of first-degree murder [ Footnote 2/8 ] and one count of robbery. [ Footnote 2/9 ] The jury then heard evidence pertaining to the appropriate sentence for the two defendants, and recommended the death penalty for each defendant on each of the murder counts. [ Footnote 2/10 ]

In its sentencing findings, [ Footnote 2/11 ] the trial court found four statutory aggravating circumstances regarding the petitioner's involvement in the murder: (1) the petitioner previously had been convicted of a felony involving the use of violence (an armed robbery in 1957), Fla.Stat. § 921.141(5)(b) (1981); (2) the murders were committed during the course of a robbery, § 921.141(5)(d); (3) the murders were committed for pecuniary gain, § 921.141(5)(f); and (4) the murders were especially heinous, atrocious, or cruel because the Kerseys had been shot in a prone position in an effort to eliminate them as witnesses, § 921.141(5)(h). App. 30-31; 399 So.2d 1362, 1371-1372 (Fla.1981). [ Footnote 2/12 ]

The trial court also found that " none of the statutory mitigating circumstances applied" to the petitioner. App. 32 (emphasis in original). Most notably, the court concluded that the evidence clearly showed that the petitioner was an accomplice to the capital felony, and that his participation had not been "relatively minor," but had been major in that he "planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons." Ibid.; 399 So.2d at 1373. See Fla.Stat. § 921.141(6)(d) (1981). [ Footnote 2/13 ]

Considering these factors, the trial court concluded that the "aggravating circumstances of these capital felonies outweigh the mitigating circumstances," and imposed the death penalty for each count of murder. App. 32; 399 So.2d at 1373. The court sentenced the petitioner to life imprisonment for the robbery. App. 28. [ Footnote 2/14 ]

On appeal, the Florida Supreme Court affirmed the petitioner's convictions and sentences. [ Footnote 2/15 ] In challenging his convictions for first-degree murder, the petitioner claimed that there was no evidence that he had committed premeditated murder, or that he had been present aiding and abetting the robbery when the Kerseys were shot. He argued that, since the jury properly could have concluded only that he was in the car on the highway when the murders were committed, he could be found guilty, at most, of second-degree murder under the State's felony murder rule. [ Footnote 2/16 ]

The court rejected this argument. Quoting from an earlier case, the Florida Supreme Court held:

'[A]n individual who personally kills another during the perpetration or attempt to perpetrate one of the enumerated felonies is guilty of first degree murder.... Moreover, the felon's liability for first degree murder extends to all of his co-felons who are personally present. As perpetrators of the underlying felony, they are principals in the homicide. In Florida, as in the majority of jurisdictions, the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felon. Only if the felon is an accessory before the fact and not personally present does liability attach under the second degree murder provision of the applicable statute in the instant case.'

399 So.2d at 1369 (quoting Adams v. State, 341 So.2d 765, 768-769 (Fla.1976) (footnote omitted), cert. denied, 434 U.S. 878 (1977)). Consequently, the critical issue regarding liability was whether the petitioner's conduct would make him a principal or merely an accessory before the fact to the underlying robbery. Under Florida law at the time of the murders,

if the accused was present aiding and abetting the commission or attempt of one of the violent felonies listed in the first-degree murder statute, he is equally guilty, with the actual perpetrator of the underlying felony, of first-degree murder.

399 So.2d at 1370. Moreover,

'the presence of the aider and abetter need not have been actual, but it is sufficient if he was constructively present, provided the aider, pursuant to a previous understanding, is sufficiently near and so situated as to abet or encourage, or to render assistance to, the actual perpetrator in committing the felonious act or in escaping after its commission.'

Ibid. (quoting Pope v. State, 84 Fla. 428, 446, 94 So. 865, 871 (1922)).

The court noted that there

was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered.

399 So.2d at 1370. [ Footnote 2/17 ] Instead,

the only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys' money.

Ibid. This evidence, the court concluded, was sufficient to find the petitioner to be a principal under state law, "constructively present aiding and abetting the commission of the crime of robbery," and thus guilty of first-degree murder. Ibid.

Turning to the trial court's written sentencing findings, the State Supreme Court rejected two of the four aggravating circumstances. First, the court held that two of the trial judge's findings -that the murders were committed both in the course of robbery and for pecuniary gain -referred to the same aspect of the petitioner's crime. Consequently, these facts supported only one aggravating circumstance. Second, citing Armstrong v. State, 399 So.2d 953 (Fla.1981), the court held that "[t]he recited circumstance, that the murders were especially heinous, atrocious, and cruel, cannot be approved." 399 So.2d at 1373. [ Footnote 2/18 ] The court affirmed the trial court's findings that none of the statutory mitigating circumstances applied. Ibid. Because one of those findings was that Enmund's participation in the capital felony was not minor, due to his role in planning the robbery, the State Supreme Court implicitly affirmed the finding that Enmund had planned the robbery.

Regarding the petitioner's claim that imposition of the death penalty, absent a showing that he intended to kill, would violate the Eighth Amendment's ban on cruel and unusual punishments, the court simply stated that the petitioner "offers us no binding legal authority that directly supports this proposition, and we therefore reject it." Id. at 1371.

II

Earl Enmund's claim in this Court is that the death sentence imposed by the Florida trial court, and affirmed by the Florida Supreme Court, is unconstitutionally disproportionate to the role he played in the robbery and murders of the Kerseys. [ Footnote 2/19 ] In particular, he contends that, because he had no actual intent to kill the victims -in effect, because his behavior and intent were no more blameworthy than that of any robber -capital punishment is too extreme a penalty. [ Footnote 2/20 ]

In Gregg v. Georgia, 428 U. S. 153 (1976), a majority of this Court concluded that the death penalty does not invariably violate the Cruel and Unusual Punishments Clause of the Eighth Amendment. [ Footnote 2/21 ] See id. at 428 U. S. 187 (opinion of Stewart, POWELL, and STEVENS, JJ.) ("[W]hen a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes") (footnote omitted); id. at 428 U. S. 226 (opinion of WHITE, J.) (rejecting the argument that "the death penalty, however imposed and for whatever crime, is cruel and unusual punishment"); id. at 428 U. S. 227 (BLACKMUN, J., concurring in judgment). In no case since Gregg and its companion cases, [ Footnote 2/22 ] has this Court retreated from that position. [ Footnote 2/23 ] Recognizing the constitutionality of the death penalty, however, only marks the beginning of the inquiry, for Earl Enmund was not convicted of murder as it is ordinarily envisioned -a deliberate and premeditated, unlawful killing. Rather, through the doctrine of accessorial liability, the petitioner has been convicted of two murders that he did not specifically intend. [ Footnote 2/24 ] Thus, it is necessary to examine the concept of proportionality as enunciated in this Court's cases to determine whether the penalty imposed on Earl Enmund is unconstitutionally disproportionate to his crimes.

A

The Eighth Amendment concept of proportionality was first fully expressed in Weems v. United States, 217 U. S. 349 (1910). In that case, defendant Weems was sentenced to 15 years at hard labor for falsifying a public document. After remarking that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense," id. at 217 U. S. 367, and after comparing Weems' punishment to the punishments for other crimes, the Court concluded that the sentence was cruel and unusual. Id. at 217 U. S. 381.

Not until two-thirds of a century later, in Coker v. Georgia, 433 U. S. 584 (1977), did the Court declare another punishment to be unconstitutionally disproportionate to the crime. Writing for himself and three other Members of the Court, JUSTICE WHITE concluded that death is a disproportionate penalty for the crime of raping an adult woman. Id. at 433 U. S. 597. [ Footnote 2/25 ] In reaching this conclusion, the plurality was careful to inform its judgment

by objective factors to the maximum possible extent [by giving attention] to the public attitudes concerning a particular sentence -history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions.

Id. at 433 U. S. 592. The plurality's resort to objective factors was no doubt an effort to derive "from the evolving standards of decency that mark the progress of a maturing society" the meaning of the requirement of proportionality contained within the Eighth Amendment. Trop v. Dulles, 356 U. S. 86, 356 U. S. 101 (1958) (opinion of Warren, C.J.).

The plurality noted that, within the previous 50 years, a majority of the States had never authorized death as a punishment for rape. More significantly to the plurality, only 3 of the 35 States that immediately reinstituted the death penalty following the Court's judgment in Furman v. Georgia, 408 U. S. 238 (1972) (invalidating nearly all state capital punishment statutes), defined rape as a capital offense. [ Footnote 2/26 ] The plurality also considered

the sentencing decisions that juries have made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried.

433 U.S. at 433 U. S. 596. See Gregg v. Georgia, 428 U.S. at 428 U. S. 181 (opinion of Stewart, POWELL, and STEVENS, JJ.) ("The jury also is a significant and reliable objective index of contemporary values because it is so directly involved"). From the available data, the plurality concluded that, in at least 90% of the rape convictions since 1973, juries in Georgia had declined to impose the death penalty. 433 U.S. at 433 U. S. 597.

Thus, the conclusion reached in Coker rested in part on the Court's observation that both legislatures and juries firmly rejected the penalty of death for the crime of rape. See Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 293 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.) (concluding that the State's mandatory death penalty statute violates the Eighth Amendment because the "two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society -jury determinations and legislative enactments -both point conclusively to the repudiation of automatic death sentences").

In addition to ascertaining "contemporary standards," the plurality opinion also considered qualitative factors bearing on the question whether the death penalty was disproportionate, for

the Constitution contemplates that, in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.

433 U.S. at 433 U. S. 597. The plurality acknowledged that a rapist is almost as blameworthy as a murderer, describing the crime of rape as "highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim." Ibid. Despite the enormity of the crime of rape, however, the Court concluded that the death penalty was "grossly out of proportion to the severity of the crime," id. at 433 U. S. 592, in part because the harm caused by a rape "does not compare with murder, which does involve the unjustified taking of human life." Id. at 433 U. S. 598.

Coker teaches, therefore, that proportionality -at least as regards capital punishment -not only requires an inquiry into contemporary standards as expressed by legislators and jurors, but also involves the notion that the magnitude of the punishment imposed must be related to the degree of the harm inflicted on the victim, as well as to the degree of the defendant's blameworthiness. [ Footnote 2/27 ] Moreover, because they turn on considerations unique to each defendant's case, these latter factors underlying the concept of proportionality are reflected in this Court's conclusion in Lockett v. Ohio, 438 U. S. 586, 438 U. S. 605 (1978), that "individualized consideration [is] a constitutional requirement in imposing the death sentence" (opinion of BURGER, C.J.) (footnote omitted). See id. at 438 U. S. 613 (opinion of BLACKMUN, J.) ("the Ohio judgment in this case improperly provided the death sentence for a defendant who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide").

In sum, in considering the petitioner's challenge, the Court should decide not only whether the petitioner's sentence of death offends contemporary standards as reflected in the responses of legislatures and juries, but also whether it is disproportionate to the harm that the petitioner caused and to the petitioner's involvement in the crime, as well as whether the procedures under which the petitioner was sentenced satisfied the constitutional requirement of individualized consideration set forth in Lockett.

B

Following the analysis set forth in Coker, the petitioner examines the historical development of the felony murder rule, as well as contemporary legislation and jury verdicts in capital cases, in an effort to show that imposition of the death penalty on him would violate the Eighth Amendment. This effort fails, however, for the available data do not show that society has rejected conclusively the death penalty for felony murderers.

As the petitioner acknowledges, the felony murder doctrine, and its corresponding capital penalty, originated hundreds of years ago, [ Footnote 2/28 ] and was a fixture of English common law until 1957, when Parliament declared that an unintentional killing during a felony would be classified as manslaughter. [ Footnote 2/29 ] The common law rule was transplanted to the American Colonies, and its use continued largely unabated into the 20th century, although legislative reforms often restricted capital felony murder to enumerated violent felonies. [ Footnote 2/30 ]

The petitioner discounts the weight of this historical precedent by arguing that jurors and judges widely resisted the application of capital punishment by acquitting defendants in felony murder cases or by convicting them of noncapital manslaughter. [ Footnote 2/31 ] The force of the petitioner's argument is speculative, at best, however, for it is unclear what fraction of the jury nullification in this country resulted from dissatisfaction with the capital felony murder rule. Much of it, surely, was a reaction to the mandatory death penalty, and the failure of the common law and early state statutes to classify murder by degree. In fact, it was in response to juror attitudes toward capital punishment that most jurisdictions by the early part of this century replaced their mandatory death penalty statutes with statutes allowing juries the discretion to decide whether to impose or to recommend the death penalty. See Woodson v. North Carolina, 428 U.S. at 428 U. S. 291 -292 (opinion of Stewart, POWELL, and STEVENS, JJ.). [ Footnote 2/32 ] Thus, it simply is not possible to conclude that historically this country conclusively has rejected capital punishment for homicides committed during the course of a felony. The petitioner and the Court turn to jury verdicts in an effort to show that, by present standards at least, capital punishment is grossly out of proportion to the crimes that the petitioner committed. Surveying all reported appellate court opinions since 1954 involving executions, the petitioner has found that, of the 362 individuals executed for homicide, 339 personally committed the homicidal assault, and two others each had another person commit the homicide on his behalf. Only six persons executed were "non-triggermen." [ Footnote 2/33 ] A similar trend can be seen in the petitioner's survey of the current death row population. [ Footnote 2/34 ] Of the 739 prisoners for whom sufficient data are available, only 40 did not participate in the homicidal assault, and, of those, only 3 (including the petitioner) were sentenced to death absent a finding that they had collaborated with the killer in a specific plan to kill. Brief for Petitioner 336. See also App. to Reply Brief for Petitioner (showing that of the 45 felony murderers currently on death row in Florida, 36 were found by the State Supreme Court or a trial court to have had the intent to kill; in 8 cases, the state courts made no finding, but the defendant was the triggerman; and in 1, the petitioner's case, the defendant was not the triggerman, and there was no finding of intent to kill). Impressive as these statistics are at first glance, they cannot be accepted uncritically. So stated, the data do not reveal the number or fraction of homicides that were charged as felony murders, or the number or fraction of cases in which the State sought the death penalty for an accomplice guilty of felony murder. Consequently, we cannot know the fraction of cases in which juries rejected the death penalty for accomplice felony murder. Moreover, as JUSTICE BLACKMUN pointed out in his concurring opinion in Lockett v. Ohio, 438 U.S. at 438 U. S. 615, n. 2, many of these data classify defendants by whether they "personally committed a homicidal assault," and do not show the fraction of capital defendants who were shown to have an intent to kill. While the petitioner relies on the fact that he did not pull the trigger, his principal argument is, and must be, that death is an unconstitutional penalty absent an intent to kill, for otherwise defendants who hire others to kill would escape the death penalty. See n. 20, supra. Thus, the data he presents are not entirely relevant. Even accepting the petitioner's facts as meaningful, they may only reflect that sentencers are especially cautious in imposing the death penalty, and reserve that punishment for those defendants who are sufficiently involved in the homicide, whether or not there was specific intent to kill.

Finally, as the petitioner acknowledges, the jury verdict statistics cannot be viewed in isolation from state death penalty legislation. The petitioner and the Court therefore review recent legislation in order to support the conclusion that society has rejected capital felony murder. Of the 35 States that presently have a death penalty, however, fully 31 authorize a sentencer to impose a death sentence for a death that occurs during the course of a robbery. [ Footnote 2/35 ] The States are not uniform in delimiting the circumstances under which the death penalty may be imposed for felony murder, but each state statute can be classified as one of three types. The first category, containing 20 statutes, includes those States that permit imposition of the death penalty for felony murder even though the defendant did not commit the homicidal act, and even though he had no actual intent to kill. [ Footnote 2/36 ] Three additional States, while requiring some finding of intent, do not require the intent to kill that the petitioner believes is constitutionally mandated before the death sentence may be imposed. [ Footnote 2/37 ] The second category, containing seven statutes, includes those States that authorize the death penalty only if the defendant had the specific intent (or some rough equivalent) to kill the victim. [ Footnote 2/38 ] The third class of statutes, from only three States, restricts application of the death penalty to those felony murderers who actually commit the homicide. [ Footnote 2/39 ] The Court's curious method of counting the States that authorize imposition of the death penalty for felony murder cannot hide the fact that 23 States permit a sentencer to impose the death penalty even though the felony murderer has neither killed nor intended to kill his victim. While the Court acknowledges that eight state statutes follow the Florida death penalty scheme, see ante at 458 U. S. 789, n. 5, it also concedes that 15 other statutes permit imposition of the death penalty where the defendant neither intended to kill or actually killed the victims. See ante at 458 U. S. 790, n. 8 (Arkansas, Delaware, and Kentucky); ante at 458 U. S. 793 -794, n. 15 (New Mexico); ante at 458 U. S. 791, n. 10 (Colorado); ante at 458 U. S. 791, n. 11 (Vermont); ante at 458 U. S. 792, n. 12 (Arizona, Connecticut, Indiana, Montana, Nebraska, and North Carolina); ante at 458 U. S. 792, n. 13 (Idaho, Oklahoma, and South Dakota). Not all of the statutes list the same aggravating circumstances. Nevertheless, the question before the Court is not whether a particular species of death penalty statute is unconstitutional, but whether a scheme that permits imposition of the death penalty, absent a finding that the defendant either killed or intended to kill the victims, is unconstitutional. In short, the Court's peculiar statutory analysis cannot withstand closer scrutiny.

Thus, in nearly half of the States, and in two-thirds of the States that permit the death penalty for murder, a defendant who neither killed the victim nor specifically intended that the victim die may be sentenced to death for his participation in the robbery-murder. Far from "weigh[ing] very heavily on the side of rejecting capital punishment as a suitable penalty for" felony murder, Coker v. Georgia, 443 U.S. at 443 U. S. 596, these legislative judgments indicate that our "evolving standards of decency" still embrace capital punishment for this crime. For this reason, I conclude that the petitioner has failed to meet the standards in Coker and Woodson that the "two crucial indicators of evolving standards of decency... -jury determinations and legislative enactments - both point conclusively to the repudiation" of capital punishment for felony murder. 428 U.S. at 428 U. S. 293 (emphasis added). In short, the death penalty for felony murder does not fall short of our national "standards of decency."

C

As I noted earlier, the Eighth Amendment concept of proportionality involves more than merely a measurement of contemporary standards of decency. It requires in addition that the penalty imposed in a capital case be proportional to the harm caused and the defendant's blameworthiness. Critical to the holding in Coker, for example, was that,

in terms of moral depravity and of the injury to the person and to the public, [rape] does not compare with murder, which... involve[s] the unjustified taking of human life.

433 U.S. at 433 U. S. 598.

Although the Court disingenuously seeks to characterize Enmund as only a "robber," ante at 458 U. S. 797, it cannot be disputed that he is responsible, along with Sampson and Jeanette Armstrong, for the murders of the Kerseys. There is no dispute that their lives were unjustifiably taken, and that the petitioner, as one who aided and abetted the armed robbery, is legally liable for their deaths. [ Footnote 2/40 ] Quite unlike the defendant in Coker, the petitioner cannot claim that the penalty imposed is "grossly out of proportion" to the harm for which he admittedly is at least partly responsible.

The Court's holding today is especially disturbing because it makes intent a matter of federal constitutional law, requiring this Court both to review highly subjective definitional problems customarily left to state criminal law and to develop an Eighth Amendment meaning of intent. As JUSTICE BLACKMUN pointed out in his concurring opinion in Lockett, the Court's holding substantially "interfere[s] with the States' individual statutory categories for assessing legal guilt." 438 U.S. at 438 U. S. 616. [ Footnote 2/41 ] See also id. at 438 U. S. 635 -636 (opinion of REHNQUIST, J.) (rejecting the idea that intent to kill must be proved before the State can impose the death penalty). Although the Court's opinion suggests that intent can be ascertained as if it were some historical fact, in fact, it is a legal concept, not easily defined. Thus, while proportionality requires a nexus between the punishment imposed and the defendant's blameworthiness, the Court fails to explain why the Eighth Amendment concept of proportionality requires rejection of standards of blameworthiness based on other levels of intent, such as, for example, the intent to commit an armed robbery coupled with the knowledge that armed robberies involve substantial risk of death or serious injury to other persons. Moreover, the intent-to-kill requirement is crudely crafted; it fails to take into account the complex picture of the defendant's knowledge of his accomplice's intent and whether he was armed, the defendant's contribution to the planning and success of the crime, and the defendant's actual participation during the commission of the crime. Under the circumstances, the determination of the degree of blameworthiness is best left to the sentencer, who can sift through the facts unique to each case. Consequently, while the type of mens rea of the defendant must be considered carefully in assessing the proper penalty, it is not so critical a factor in determining blameworthiness as to require a finding of intent to kill in order to impose the death penalty for felony murder.

In sum, the petitioner and the Court have failed to show that contemporary standards, as reflected in both jury determinations and legislative enactments, preclude imposition of the death penalty for accomplice felony murder. Moreover, examination of the qualitative factors underlying the concept of proportionality do not show that the death penalty is disproportionate as applied to Earl Enmund. In contrast to the crime in Coker, the petitioner's crime involves the very type of harm that this Court has held justifies the death penalty. Finally, because of the unique and complex mixture of facts involving a defendant's actions, knowledge, motives, and participation during the commission of a felony murder, I believe that the factfinder is best able to assess the defendant's blameworthiness. Accordingly, I conclude that the death penalty is not disproportionate to the crime of felony murder, even though the defendant did not actually kill or intend to kill his victims. [ Footnote 2/42 ]

III

Although I conclude that the death penalty is not disproportionate to the crime of felony murder, I believe that, in light of the State Supreme Court's rejection of critical factual findings, our previous opinions require a remand for a new sentencing hearing. [ Footnote 2/43 ] Repeatedly, this Court has emphasized that capital sentencing decisions must focus "on the circumstances of each individual homicide and individual defendant." Proffitt v. Florida, 428 U. S. 242, 428 U. S. 258 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). In striking down the mandatory capital punishment statute in Woodson v. North Carolina, 428 U.S. at 428 U. S. 304, a plurality of the Court wrote:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.... [W]e believe that, in capital cases, the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

In Lockett v. Ohio, 438 U.S. at 438 U. S. 605, a plurality of this Court concluded:

Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases.... The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.

(Footnote omitted.) Accordingly,

the sentencer, in all but the rarest kind of capital case, [may] not be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

(Footnotes omitted.) Id. at 438 U. S. 604. See id. at 438 U. S. 613 (opinion of BLACKMUN, J.) (concluding that the Ohio capital sentencing statute is unconstitutional because it "provided the death sentence for a defendant who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide"); Green v. Georgia, 442 U. S. 95, 442 U. S. 97 (1979) (per curiam) (holding that the exclusion of evidence, from the capital sentencing proceeding, that the petitioner was not present when the victim was killed violated due process because "[t]he excluded testimony was highly relevant to a critical issue in the punishment phase of the trial"); Eddings v. Oklahoma, 455 U. S. 104 (1982) (adopting the plurality's rule in Lockett ). Thus, in deciding whether or not to impose capital punishment on a felony murderer, a sentencer must consider any relevant evidence or arguments that the death penalty is inappropriate for a particular defendant because of his relative lack of mens rea and his peripheral participation in the murder. Because of the peculiar circumstances of this case, I conclude that the trial court did not give sufficient consideration to the petitioner's role in the crimes, and thus did not consider the mitigating circumstances proffered by the defendant at his sentencing hearing. [ Footnote 2/44 ]

In sentencing the petitioner, the trial court found four statutory aggravating circumstances: the petitioner had been convicted previously of a violent felony; the murders had been committed during the course of a robbery; the murders had been committed for pecuniary gain; and the murders were especially heinous, atrocious, or cruel. In its factual findings, the trial court stated that the "armed robbery... was planned ahead of time by the defendant Enmund," App. 30, and that he had shot each of the victims while they lay prone in order to eliminate them as witnesses. Id. at 301. The court expressly found that " none of the statutory mitigating circumstances applied" to the petitioner. Id. at 32 (emphasis in original). Among other findings, the court rejected Enmund's claim that his participation in the murders had been "relatively minor," and found instead that

his participation in the capital felony was major. The defendant Enmund planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons.

Ibid..

The Florida Supreme Court rejected these findings in part. The court noted that there

was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered.

399 So.2d at 1370. Rather,

the only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys' money.

Ibid. Consequently, the court expressly rejected the trial court's finding that Enmund personally had committed the homicides. Reviewing the aggravating circumstances, the Supreme Court consolidated two of them, and rejected the trial court's conclusion that the murders had been "heinous, atrocious, or cruel," since the evidence showed that the Armstrongs had killed the Kerseys in a gun battle arising from Mrs. Kersey's armed resistance, and not that the petitioner had killed them in an effort to eliminate them as witnesses. See Armstrong v. State, 399 So.2d at 963.

Although the state statutory procedures did not prevent the trial judge from considering any mitigating circumstances, [ Footnote 2/45 ] the trial judge's view of the facts, in part rejected by the State Supreme Court, effectively prevented such consideration. In his erroneous belief that the petitioner had shot both of the victims while they lay in a prone position in order to eliminate them as witnesses, the trial judge necessarily rejected the only argument offered in mitigation -that the petitioner's role in the capital felonies was minor, undeserving of the death penalty, because the petitioner was in the car when the fatal shots were fired. This fundamental misunderstanding of the petitioner's role in the crimes prevented the trial court from considering the "circumstances of the particular offense" in imposing sentence. Woodson v. North Carolina, 428 U.S. at 428 U. S. 304. Moreover, this error was not so insignificant that we can be sure its effect on the sentencing judge's decision was negligible. [ Footnote 2/46 ] Accordingly, I would vacate the decision below insofar as it affirms the death sentence, and remand the case for a new sentencing hearing.

Notes

[ Footnote 2/1 ]

Much of the evidence concerning these crimes came from J. B. Neal, to whom Sampson Armstrong made numerous admissions on the day of the murders. See Record 1344-1365.

[ Footnote 2/2 ]

J.B. Neal testified that Armstrong had told him that two guns were involved; Jeanette had one and Sampson had the other. Id. at 1354.

[ Footnote 2/3 ]

An autopsy revealed that Mr. Kersey had been shot twice, once with a.38-caliber bullet and once with a.22-caliber bullet. Mrs. Kersey had been shot six times; of the bullets that could be identified, two were fired from a.38-caliber gun, and one from a.22-caliber gun. According to a firearms expert, the.22-caliber bullets were fired from the same gun, and the.38-caliber bullets were fired from the same gun. See 399 So.2d 1362, 1364 (Fla.1981).

[ Footnote 2/4 ]

Ida Jean Shaw was the petitioner's common law wife and Jeanette Armstrong's mother. She was later given immunity from prosecution in return for her testimony. Record 1178-1179.

[ Footnote 2/5 ]

Thomas Kersey normally kept large sums of money in his wallet and indiscriminately showed the cash to people he dealt with. A few weeks before his murder, Kersey revealed the contents of his wallet to the petitioner and bragged that at any time he could "dig up $15,000, $16,000." 399 So.2d at 1365. See Record 1205-1206.

[ Footnote 2/6 ]

Ida Jean Shaw's trial testimony contradicted her earlier statements to police. When police initially questioned her, she insisted that Jeanette had been shot by an unknown assailant while she and Jeanette had been traveling to a nearby town. Id. at 1191-1192. Later she gave investigators a statement implicating the petitioner and Sampson Armstrong in the murders. Id. at 1209-1210. Subsequently, she gave two more statements repudiating the statement implicating the petitioner. Id. at 1208-1209.

In his closing argument, the prosecutor acknowledged the conflict between Ida Jean Shaw's testimony that she was not in the yellow Buick the morning of the murders, and the testimony of a witness who saw her in the car shortly before and after the murders. The prosecutor deemed the inconsistency irrelevant. Id. at 1671-1572.

[ Footnote 2/7 ]

At the sentencing hearing, the prosecutor theorized that the petitioner was not the "trigger man," but the "person who set it all up." Id. at 1679. The prosecutor admitted that he did not "know whether [the petitioner] set foot inside that house or not. But he drove them there. He set it up, planned it." Id. at 1679-1680. In this Court as well, the State acknowledges that the petitioner "was apparently not the triggerman in the two murders involved in his [ sic ] case." Brief in Opposition 14.

[ Footnote 2/8 ]

In Florida at the time of the Kersey murders, first-degree murder was defined in Fla.Stat. § 782.04(1)(a) (1973) as

[t]he unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any... robbery....

In instructing the jury on first-degree murder, the judge read the above provision verbatim. Record 1605-1606. He also added that

[t]he killing of a human being while engaged in the perpetration of or in the attempt to perpetrate the offense of robbery is murder in the first degree even though there is no premeditated design or intent to kill.

Id. at 1606.

Distinguishing firstand second-degree felony murder, the judge stated:

In order to sustain a conviction of first-degree murder while engaging in the perpetration of or in the attempted perpetration of the crime of robbery, the evidence must establish beyond a reasonable doubt that the defendant was actually present and was actively aiding and abetting the robbery or attempted robbery, and that the unlawful killing occurred in the perpetration of or in the attempted perpetration of the robbery. In order to sustain a conviction of second-degree murder while engaged in the perpetration of or the attempted perpetration of robbery, the evidence must establish beyond a reasonable doubt that the unlawful killing was committed in the perpetration of or in the attempted perpetration of robbery, and that the defendant actually, although not physically present at the time of the commission of the offense, did, nonetheless, procure, counsel, command or aid another to commit the crime.

Id. at 1609-1610.

[ Footnote 2/9 ]

On the motion of the petitioner and the prosecution, Jeanette Armstrong's trial had been severed from the trial of her codefendants. Id. at 50, 57. Jeanette Armstrong was tried first, and convicted of two counts of second-degree murder and one count of robbery. The trial judge sentenced her to three consecutive life sentences. 399 So.2d at 1371.

[ Footnote 2/10 ]

Under Florida law, the

court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment.

Fla.Stat. § 921.141(1) (1981). The jury renders only an "advisory sentence" based on the mitigating and aggravating circumstances. § 921.141(2).

At the sentencing hearing, the petitioner presented no evidence, Record 1677, but his attorney argued that the death penalty was inappropriate because, at most, the evidence showed that the petitioner saw Thomas Kersey's money, suggested the robbery, and drove the Armstrongs to the Kersey house. Id. at 1683-1684. He also argued that death was an excessive penalty because the gunfight was spontaneous, and beyond the petitioner's control. Id. at 1684.

[ Footnote 2/11 ]

Initially, the trial court failed to make written findings as required by Fla.Stat. § 921.141(3) (1981). On the first state appeal, the Florida Supreme Court remanded the case for such findings. See App. 29.

[ Footnote 2/12 ]

Regarding the extent of the petitioner's involvement, the trial court reasoned that, because two different guns had been used in the murders, and because Jeanette Armstrong had been seriously wounded by gunfire, the petitioner must have fired one of the guns. Moreover, since each of the Kerseys was injured by a bullet of each type, the petitioner must have shot each victim. Id. at 31; 399 So.2d at 1372.

[ Footnote 2/13 ]

The court also rejected the other statutory mitigating circumstances. In particular, the petitioner did not have a record free of criminal convictions, Fla.Stat. § 921.141(6)(a) (1981); there was no evidence that he had acted under the influence of extreme mental or emotional disturbance, § 921.141(6)(b); there was no evidence that the victims were participants in or consented to the crimes, § 921.141(6)(c); there was no evidence that he acted under extreme duress or under the substantial domination of another person, § 921.141(6)(e); there was no evidence that the petitioner was incapable of appreciating the criminality of his conduct or conforming his conduct to the requirements of law, § 921.141(6)(f); and, because he was 42 years old at the time of the offense, his age was not a mitigating factor, § 921.141(6)(g). App. 32; 399 So.2d at 1372-1373.

[ Footnote 2/14 ]

The trial court made nearly identical findings for Sampson Armstrong. In particular, it found that the murders were committed during the course of a robbery, that they were committed for pecuniary gain, and that they were especially heinous, atrocious, or cruel. See Armstrong v. State, 399 So.2d 953, 960-961 (Fla.1981). The trial court considered the only possible mitigating circumstance to be Armstrong's age (23), but did not actually find that fact to be mitigating. See id. at 962 ("the factor of age was given no consideration"). Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial judge imposed the death penalty for each murder conviction, and imposed a life sentence for the robbery. Id. at 955, 962.

[ Footnote 2/15 ]

The Florida Supreme Court also affirmed the convictions and sentences of Sampson Armstrong. See Armstrong v. State, supra, at 960.

[ Footnote 2/16 ]

Second-degree murder, based on felony murder, is defined in Fla.Stat. § 782.04(3) (1973):

[W]hen committed in the perpetration of, or in the attempt to perpetrate, any... robbery,... except as provided in subsection (1), it shall be murder in the second degree... punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.

[ Footnote 2/17 ]

The court also noted that Sampson Armstrong's admissions to J. B. Neal made no mention of the petitioner, and that the petitioner's admissions to Ida Jean Shaw indicated only "his complicity." 399 So.2d at 1370.

[ Footnote 2/18 ]

In Armstrong, the Florida Supreme Court expressly had rejected the trial court's conclusion that the Kerseys were murdered in order to eliminate them as witnesses. "It simply cannot be said that there was proof that the robbers killed in order to assure that there would be no witnesses against them." 399 So.2d at 963. On the contrary,

[t]he only direct account of what transpired is from the testimony of J. B. Neal about Armstrong's statement to him. By that account, the shootings were indeed spontaneous, and were precipitated by the armed resistance of Mrs. Kersey.

Ibid. In reaching this conclusion, the State Supreme Court also rejected the trial court's conclusions derived from the pathologist's testimony. Rather than indicating that the victims were prone when shot, the pathologist's testimony "as to the direction of fire and the positions of the victims when shot [was] equivocal, at best." Ibid.

[ Footnote 2/19 ]

In this Court, the petitioner neither challenges his convictions for robbery and felony murder nor argues that the State has overstepped constitutional bounds in defining murder to include felony murder. The petitioner's sole challenge is to the penalty imposed for the murders.

[ Footnote 2/20 ]

Although the petitioner ostensibly relies on the fact that he was not the triggerman, the core of his argument is that the death penalty is disproportionate to his crime because he did not have the specific intent to kill the Kerseys. Pulling the trigger is only one factor, albeit a significant one, in determining intent. See Tr. of Oral Arg. 21-23 (counsel for petitioner asserting that, so long as a defendant had the intent to kill, he need not actually have pulled the trigger in order to be subjected to capital punishment, and that, even if he had pulled the trigger, he would not be subject to the death penalty absent a specific intent to kill).

[ Footnote 2/21 ]

The Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

[ Footnote 2/22 ]

See Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976) (holding that Louisiana's mandatory death penalty statute violated the Eighth and Fourteenth Amendments); Woodson v. North Carolina, 428 U. S. 280 (1976) (holding that the State's mandatory death penalty statute violated the Eighth and Fourteenth Amendments); Jurek v. Texas, 428 U. S. 262 (1976) (upholding the Texas death penalty statute); Proffitt v. Florida, 428 U. S. 242 (1976) (upholding Florida's death penalty statute).

[ Footnote 2/23 ]

In only one case since Gregg has this Court upheld a challenged death sentence. See Dobbert v. Florida, 432 U. S. 282 (1977) (holding that changes in the death penalty statute between the time of the murder and the sentencing did not amount to an ex post facto violation). In five cases, the Court vacated the death sentence because the sentencer could not or did not consider all mitigating factors proffered by the defendant. See Roberts (Harry) v. Louisiana, 431 U. S. 633 (1977) (per curiam); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion); Bell v. Ohio, 438 U. S. 637 (1978) (plurality opinion); Green v. Georgia, 442 U. S. 95 (1979) (per curiam); Eddings v. Oklahoma, 455 U. S. 104 (1982) (adopting the reasoning of the Lockett plurality as the holding of the Court). In two cases, the Court reversed the judgments affirming the death sentences because the jury had been selected in violation of Witherspoon v. Illinois, 391 U. S. 510 (1968). See Adams v. Texas, 448 U. S. 38 (1980); Davis v. Georgia, 429 U. S. 122 (1976) (per curiam). In five other cases, the Court vacated death sentences for a variety of reasons unrelated to the proportionality of the punishment to the crime. See Gardner v. Florida, 430 U. S. 349 (1977) (plurality opinion) (due process violated when defendant had no chance to explain or deny information given to the sentencing judge); Godfrey v. Georgia, 446 U. S. 420 (1980) (plurality opinion) (reversing the death sentence because the aggravating circumstance relied upon by jury was not so tailored as to avoid arbitrary and capricious infliction of death penalty); Beck v. Alabama, 447 U. S. 625 (1980) (holding that death penalty may not be imposed where jury was precluded from considering lesser included noncapital offense, when evidence existed to support such a verdict); Bullington v. Missouri, 451 U. S. 430 (1981) (holding that Double Jeopardy Clause prevented imposition of death sentence upon retrial when jury had imposed life imprisonment at the first trial); Estelle v. Smith, 451 U. S. 454 (1981) (holding that admission of psychiatrist's testimony at the penalty phase of the capital trial violated the defendant's Fifth Amendment privilege against self-incrimination because he had not been told before his psychiatric examination that his statements could be used against him during the sentencing proceeding).

In Coker v. Georgia, 433 U. S. 584 (1977), the Court vacated a death sentence for a man who had been convicted of rape of an adult woman. Nevertheless, the Court made clear that the death penalty is not per se disproportionate to the crime of murder. See, e.g., id. at 433 U. S. 591 (opinion of WHITE, J.) ("It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment;... neither is it always disproportionate to the crime for which it is imposed"); id. at 433 U. S. 604 (opinion of BURGER, C.J.) (accepting "that the Eighth Amendment's concept of disproportionality bars the death penalty for minor crimes," but rejecting the argument that death is a disproportionate punishment for rape, much less murder).

[ Footnote 2/24 ]

Strictly speaking, this Court cannot state unequivocally whether the petitioner specifically intended either to kill the Kerseys or to have them killed because the trial court made no findings on these issues. The trial court, however, did make the finding, not rejected by the Florida Supreme Court, that the petitioner's participation was not minor, but "major," in that he "planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons." App. 32. Accordingly, I proceed on the assumption that the petitioner's only intent was to commit an armed robbery with his accomplices, the Armstrongs.

[ Footnote 2/25 ]

JUSTICE POWELL concurred in the plurality's reasoning in concluding that "ordinarily" death was disproportionate for such a crime, but stopped short of a per se rule. 433 U.S. at 433 U. S. 601. JUSTICE BRENNAN and JUSTICE MARSHALL concurred in the judgment, adhering to their previously announced views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. See id. at 433 U. S. 600 -601.

[ Footnote 2/26 ]

In fact, two of those States, Louisiana and North Carolina, did not define rape as a capital felony when they reenacted their death penalty statutes following their invalidation in Woodson v. North Carolina, 428 U. S. 280 (1976), and Roberts v. Louisiana, 428 U. S. 325 (1976). See 433 U.S. at 433 U. S. 594. Consequently, at the time Coker was decided, only Georgia authorized the death penalty for the rape of an adult woman.

[ Footnote 2/27 ]

The Court has conducted a less searching inquiry for punishments less than death. See Rummel v. Estelle, 445 U. S. 263 (1980) (upholding, against an Eighth Amendment challenge, a life sentence imposed under a state recidivist statute); Hutto v. Davis, 454 U. S. 370 (1981) (per curiam) (upholding, on the basis of Rummel, a 40-year sentence for two marihuana conviction). In Rummel, the Court expressly noted that, for purposes of Eighth Amendment analysis, those "decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality "of prison sentences. 445 U.S. at 445 U. S. 272.

[ Footnote 2/28 ]

According to one source, at early common law, most felonies were capital crimes, but attempts were punished as misdemeanors and accidental killings were not punishable at all. The felony murder rule was an effort to create felony liability for accidental killings caused during the course of an attempted felony. See ALI, Model Penal Code § 210.2, Comment, p. 31, n. 74 (Off. Draft and Revised Comments 1980).

[ Footnote 2/29 ]

See English Homicide Act of 1957, 5 & 6 Eliz. 2, ch. 11. The English attitude toward capital punishment, as reflected in recent legislation, differs significantly from American attitudes as reflected in state legislation; in 1965, England abolished the death penalty for all murders. See Murder (Abolition of Death Penalty) Act of 1965, 8 Hallisbury's Statutes of England 541 (3d ed.1969).

[ Footnote 2/30 ]

See Comment, The Constitutionality of Imposing the Death Penalty for Felony Murder, 15 Hous.L.Rev. 356, 364-365 (1978); Alderstein, Felony Murder in the New Criminal Codes, 4 Am.J.Crim.L. 249, 251-252 (1976).

[ Footnote 2/31 ]

See, e.g., Royal Commission on Capital Punishment 1949-1953, Report 31-33 (1953) (reporting that application of the felony murder doctrine was limited to those cases in which the verdict could have been intentional murder); Law Revision Commission of the State of New York, 3d Annual Report 665, 668, and n. 444 (1937). It is significant that the New York Legislature rejected the Commission's recommendation of requiring some element of mens rea, and instead adopted a scheme giving jurors discretion to recommend life sentences. See 1937 N.Y. Laws, ch. 67.

[ Footnote 2/32 ]

The extent of jury nullification and the nearly complete repudiation of mandatory death penalty laws led a plurality of this Court to conclude that the

two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society -jury determinations and legislative enactments -both point conclusively to the repudiation of automatic death sentences.

Woodson v. North Carolina, 428 U.S. at 428 U. S. 293 (opinion of Stewart, POWELL, and STEVENS, JJ.). These factors supported the Court's conclusion that North Carolina's mandatory death penalty law violated the Eighth Amendment.

[ Footnote 2/33 ]

See App. D to Brief for Petitioner. Moreover, the last nontriggerman was executed in 1955. By contrast, 72 rapists were executed between 1955 and this Court's 1977 decision in Coker. Brief for Petitioner 34-35.

[ Footnote 2/34 ]

See App. E to Brief for Petitioner; NAACP Legal Defense and Education Fund, Inc., Death Row U.S.A. (Oct. 20, 1981).

[ Footnote 2/35 ]

Only Missouri, New Hampshire, and Pennsylvania define felony murder as a crime distinct from capital murder. See Mo.Rev.Stat. §§ 665.001, 565.003, 565.008(2) (1978); N.H.Rev.Stat.Ann. §§ 630:1, 630:1-a(1)(b)(2), 630:1-a(III) (1974 and Supp.1981); 18 Pa.Cons.Stat. §§ 2502(a), (b), (d), 1102(b) (1980). One exception to the New Hampshire scheme is § 630:1(1)(b), which includes in the definition of capital murder a death caused "knowingly" in the course of a kidnaping. A fourth State, Washington, permits imposition of the death penalty if premeditated murder is aggravated by, inter alia, commission during a felony. Wash.Rev.Code §§ 9A.32.030(1)(a), 10.95.020(9) (1981).

[ Footnote 2/36 ]

See Ariz.Rev.Stat.Ann. §§ 13-1105(A)(2), (C) (Supp.1981-1982); Cal.Penal Code Ann. §§ 189, 190 (West Supp.1982); Colo.Rev.Stat. §§ 18-3-102(1)(b), 18-1-105(1)(a) (1978 and Supp.1981); Conn.Gen.Stat.Ann. §§ 53a-54b, 53a-54c, 53a-35a(1) (West Supp.1982); Fla.Stat. §§ 782.04(1)(a), 775.082(1) (1981); Ga.Code §§ 26-1101(b), (c) (1978); Idaho Code §§ 18-4003(d), 4004 (1979); Ind.Code §§ 35-42-1-1(2), 35-50-2-3(b) (Supp.1981); Miss.Code Ann. §§ 97-3-19(2)(e), 97-3-21 (Supp.1981); Mont.Code Ann. §§ 45-5-102(1)(b), (2) (1981); Neb.Rev.Stat. §§ 28303(2), 28-105(1) (1979); Nev.Rev.Stat. §§ 200.030(1)(b), 200.030(4)(a) (1981); N.M.Stat.Ann. §§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp.1981); N.C.Gen.Stat. § 14-17 (1981); Okla.Stat., Tit. 21, §§ 701.7(B), 701.9(A) (1981); S.C.Code §§ 16-3-10, 16-3-20(C)(a)(1) (1976 and Supp.1981); S.D.Codified Laws §§ 22-16-4, 22-16-12, 22-6-1(1), 22-3-3 (1979 and Supp.1981); Tenn.Code Ann. §§ 39-2402(a), (b) (Supp.1981); Vt.Stat.Ann., Tit. 13, §§ 2301, 2303(b), (c) (1974 and Supp.1981); and Wyo.Stat. §§ 6-4-101(a), (b) (1977).

Two of these States, Colorado and Connecticut, provide that it is an affirmative defense to the capital crime if the accomplice did not "in any way solicit, request, command, importune, cause or aid the commission" of the homicidal act; was not armed with a deadly weapon and had no reason to believe that his cofelons were so armed; and did not engage or intend to engage, and had no reason to believe that his cofelons would engage, in conduct "likely to result in death or serious bodily injury." See Colo.Rev.Stat. § 18-3-102 (2) (1978); Conn.Gen.Stat. § 53a-54c (Supp.1982). Colorado also prevents imposition of the death penalty if the defendant's role, though sufficient to establish guilt, was "relatively minor." Colo.Rev.Stat. § 16-11-103(5)(d) (1978). Even if they were available under the Florida statute, these provisions would have been of no help to the petitioner, since the trial court found that there were no mitigating circumstances, in part because Enmund's role in the capital felony was not minor. See Fla.Stat. § 921.141(6)(d) (1981). The State Supreme Court expressly affirmed the trial court's finding of no mitigating circumstances, and therefore the finding that the petitioner's role was not minor. 399 So.2d at 1373.

Of course, not all of the statutes listed above are identical. Several of them provide that robbery murder is a capital felony, but require proof of additional aggravating circumstances, e.g., the defendant had been convicted previously of a violent felony, or the victim was a correctional officer, before the death penalty can be imposed. See, e.g., Okla.Stat., Tit. 21, § 701.12 (1981); N.M.Stat.Ann. §§ 30-2-1(A)(2), 31-18-14(A), 31-20A-5 (Supp.1981). Others, like the Florida statute, define robbery murder as a capital offense and use the robbery as an aggravating circumstance. The common thread in all of these statutes, however, is that the defendant need not have the intent to kill in order to be subject to the death penalty. The Court's additional subdivision of this group of statutes, see ante at 458 U. S. 791 -793, and nn. 10-13, serves only to obscure the point that 20 States permit imposition of the death penalty even though the defendant did not actually kill, and had no intent to kill.

[ Footnote 2/37 ]

See Ark.Stat.Ann. §§ 41-1501(1)(a), (2), (3) (1977) (a capital crime if death occurs during commission of the felony "under circumstances manifesting extreme indifference to the value of human life"); Del.Code Ann., Tit. 11, §§ 636(a)(6), 636(b), 4209(a) (1979) (a capital crime only if the death is caused "with criminal negligence"); Ky.Rev.Stat. § 507.020(1)(b), (2) (Supp.1980) (defendant must "caus[e] the death of another person" under "circumstances manifesting extreme indifference to human life [and while] wantonly engag[ing] in conduct which creates a grave risk of death to another person"). It is an affirmative defense to capital felony murder in Arkansas if the "defendant did not commit the homicide act or in any way solicit, command, induce, procure, counsel, or aid its commission." Ark.Stat.Ann. § 41-1501(2) (1977).

At oral argument, counsel for petitioner stated that "the determining factor is the intent to take life, conscious purpose to take life." Tr. of Oral Arg. 18. Under the petitioner's proposed standard, these statutes would be unconstitutional.

[ Footnote 2/38 ]

See Ala.Code §§ 13A-2-23, 13A-40(a)(2), (b), (c), (d), 13A-2(a)(1) (1977 and Supp.1982) (the accomplice is not guilty of capital murder unless the killing is intentional, and the accomplice had "intent to promote or assist the commission" of the murder); Ill.Rev.Stat., ch. 38, 9-1(a)(3), 9-1(b)(6) (1979) (a capital crime only if the defendant killed intentionally or with knowledge that his actions "created a strong probability of death or great bodily harm"); La.Rev.Stat.Ann. § 14.30(1) (West Supp.1982) (defendant is guilty of capital murder only if he had "specific intent to kill or to inflict great bodily harm"); Ohio Rev.Code Ann. §§ 2903.01(B), (C), (D), 2929.02(A), 2929.04(A)(7) (1982) (accomplice is not guilty of the capital crime unless he "purposely cause[d]" the death and was "specifically found to have intended to cause the death of another"; if defendant is not the "principal offender," the death penalty is precluded unless he "committed the aggravated murder with prior calculation and design"); Tex.Penal Code Ann. §§ 12.31, 19.03(a)(2), 19.02(a)(1) (1974) (defendant is guilty of capital murder only if he "intentionally or knowingly" caused death during the course of the robbery); Utah Code Ann. §§ 76202(1)(d), (2), 76206(1) (1978) (defendant is guilty of capital murder only if he "intentionally or knowingly" caused the death during the course of the robbery); and Va.Code §§ 18.2-31(d), 18.2-10(a) (1982) (capital murder only if killing is "willful, deliberate and premeditated").

[ Footnote 2/39 ]

See Ill.Rev.Stat., ch. 38, 9-1(a)(3), 9-1(b)(6) (1979) (a capital crime only if the defendant actually killed the victim and the defendant killed intentionally or with knowledge that his actions "created a strong probability of death or great bodily harm"); Md.Ann.Code, Art. 27, §§ 410, 412(b), 413(d)(10), (e)(1) (1982) (except in cases of murder for hire, only principal in the first degree subject to the death penalty); Va.Code §§ 18.2-31(d), 18.2-10(a), 18.2-18 (1982) (except in cases of murder for hire, only the immediate perpetrator of the homicide, and not accomplice before the fact or principal in the second degree, may be tried for capital murder). Note that Illinois and Virginia also require an intent to kill. See n. 38, supra.

[ Footnote 2/40 ]

The Court's attempt to downplay the significance of Enmund's role in the murders, see ante at 458 U. S. 786 -787, n. 2, does not square with the facts of this case. The trial court expressly found that, because Enmund had planned the robbery, his role was not minor, and that therefore no statutory mitigating circumstances applied. The Florida Supreme Court affirmed the finding of no mitigating circumstances, thereby affirming the underlying factual predicate -Enmund had planned the armed robbery. Moreover, even Enmund's trial counsel conceded at the sentencing hearing that Enmund initiated the armed robbery and drove the getaway car. See n. 10, supra.

The Court misreads the opinion below in suggesting that the State Supreme Court deduced from the sentencing hearing that Enmund's only participation was as the getaway driver. In fact, the court made that statement with respect to the guilt phase of the trial. As I mentioned above, Enmund's counsel conceded at the sentencing hearing that Enmund had initiated the armed robbery.

[ Footnote 2/41 ]

It is not true, as the petitioner suggests, that an intent-to-kill requirement would not interfere with the State's substantive categories of murder. Prohibiting the death penalty for accomplice felony murder would create a category of murder between capital murder, for which the death penalty is permitted, and the next statutory degree, for which some term of years (typically less than life imprisonment) is imposed.

[ Footnote 2/42 ]

The petitioner and the Court also contend that capital punishment for felony murder violates the Eighth Amendment because it "makes no measurable contribution to acceptable goals of punishment." Coker v. Georgia, 433 U.S. at 433 U. S. 592. In brief, the petitioner and the Court reason that, since he did not specifically intend to kill the Kerseys, since the probability of death during an armed robbery is so low, see ALI, Model Penal Code, supra, n. 28, § 210.2, Comment, p. 38, n. 96 (concluding from several studies that a homicide occurs in about one-half of one percent of all robberies), and since the death penalty is so rarely imposed on nontriggermen, capital punishment could not have deterred him or anyone else from participating in the armed robbery. The petitioner and the Court also reject the notion that the goal of retribution might be served because his "moral guilt" is too insignificant.

At their core, these conclusions are legislative judgments regarding the efficacy of capital punishment as a tool in achieving retributive justice and deterring violent crime. Surely, neither the petitioner nor the Court has shown that capital punishment is ineffective as a deterrent for his crime; the most the Court can do is speculate as to its effect on other felony murderers and rely on "competent observers" rather than legislative judgments. See ante at 458 U. S. 799 -800. Moreover, the decision of whether or not a particular punishment serves the admittedly legitimate goal of retribution seems uniquely suited to legislative resolution. Because an armed robber takes a serious risk that someone will die during the course of his crime, and because of the obviousness of that risk, we cannot conclude that the death penalty "makes no measurable contribution to acceptable goals of punishment. "

[ Footnote 2/43 ]

Apparently, the Court also intends that the case be remanded for a new death sentence hearing, consistent, of course, with its holding today.

[ Footnote 2/44 ]

Although the petitioner challenges the constitutionality of his sentencing hearing, he does not challenge the constitutionality of the statutory capital sentencing procedures. See Proffitt v. Florida, 428 U. S. 242 (1976) (upholding the Florida scheme).

[ Footnote 2/45 ]

See Songer v. State, 365 So.2d 696, 700 (Fla.1978) (holding that Fla.Stat. § 921.141(6) (1981), which lists mitigating circumstances, does not restrict the sentencer's consideration of mitigating circumstances to those expressly listed in the statute); Shriner v. State, 386 So.2d 525, 533 (Fla.1980), cert. denied, 449 U.S. 1103 (1981); 399 So.2d at 1371. As noted above, the petitioner offered no additional evidence at the sentencing hearing in mitigation of his crime. See Record 1677. His counsel argued, however, that the petitioner did not deserve the death penalty because his role in the crime was relatively minor. Id. at 1683-1685.

[ Footnote 2/46 ]

The Florida Supreme Court's opinion fails to correct this error either by remanding for new sentencing or by evaluating the impact of the trial court's fundamental misperception of the petitioner's role in the killings. Rather, the court simply repeats three times, without any discussion of the evidence, that there are "no mitigating circumstances." 399 So.2d at 1373. In light of the court's dramatically different factual findings, this review is inadequate to satisfy the Lockett principle.