Ring v. Arizona, 122 S.Ct. 2428, 153 L.Ed.2d 556 (U.S. 06/24/2002)

[1] United States Supreme Court


[2] No. 01-488


[3] 122 S.Ct. 2428, 153 L.Ed.2d 556, 2002.SCT, 70 USLW 4666, 2 Cal. Daily Op. Serv. 5594


[4] June 24, 2002


[5] TIMOTHY STUART RING, PETITIONER
v.
ARIZONA


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2001


[8] Argued April 22, 2002


[9] Decided June 24, 2002


[10] At petitioner Ring's Arizona trial for murder and related offenses, the jury deadlocked on premeditated murder, but found Ring guilty of felony murder occurring in the course of armed robbery. Under Arizona law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made by a judge conducting a separate sentencing hearing. The judge at that stage must determine the existence or nonexistence of statutorily enumerated "aggravating circumstances" and any "mitigating circumstances." The death sentence may be imposed only if the judge finds at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. Following such a hearing, Ring's trial judge sentenced him to death. Because the jury had convicted Ring of felony murder, not premeditated murder, Ring would be eligible for the death penalty only if he was, inter alia, the victim's actual killer. See Enmund v. Florida, 458 U. S. 782. Citing accomplice testimony at the sentencing hearing, the judge found that Ring was the killer. The judge then found two aggravating factors, one of them, that the offense was committed for pecuniary gain, as well as one mitigating factor, Ring's minimal criminal record, and ruled that the latter did not call for leniency.


[11] On appeal, Ring argued that Arizona's capital sentencing scheme violates the Sixth Amendment's jury trial guarantee by entrusting to a judge the finding of a fact raising the defendant's maximum penalty. See Jones v. United States, 526 U. S. 227; Apprendi v. New Jersey, 530 U. S. 466. The State responded that this Court had upheld Arizona's system in Walton v. Arizona, 497 U. S. 639, 649, and had stated in Apprendi that Walton remained good law. The Arizona Supreme Court observed that Apprendi and Jones cast doubt on Walton's continued viability and found that the Apprendi majority's interpretation of Arizona law, 530 U. S., at 496-497, was wanting. Justice O'Connor's Apprendi dissent, id., at 538, the Arizona court noted, correctly described how capital sentencing works in that State: A defendant cannot receive a death sentence unless the judge makes the factual determination that a statutory aggravating factor exists. Nevertheless, recognizing that it was bound by the Supremacy Clause to apply Walton, a decision this Court had not overruled, the Arizona court rejected Ring's constitutional attack. It then upheld the trial court's finding on the pecuniary gain aggravating factor, reweighed that factor against Ring's lack of a serious criminal record, and affirmed the death sentence.


[12] Held: Walton and Apprendi are irreconcilable; this Court's Sixth Amendment jurisprudence cannot be home to both. Accordingly, Walton is overruled to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U. S., at 647-649. Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," Apprendi, 530 U. S., at 494, n. 19, the Sixth Amendment requires that they be found by a jury. Pp. 10-23.


[13] (a) In upholding Arizona's capital sentencing scheme against a charge that it violated the Sixth Amendment, the Walton Court ruled that aggravating factors were not "elements of the offense"; they were "sentencing considerations" guiding the choice between life and death. 497 U. S., at 648. Walton drew support from Cabana v. Bullock, 474 U. S. 376, in which the Court held there was no constitutional bar to an appellate court's finding that a defendant killed, attempted to kill, or intended to kill, as Enmund, supra, required for imposition of the death penalty in felony-murder cases. If the Constitution does not require that the Enmund finding be proved as an element of the capital murder offense or that a jury make that finding, Walton stated, it could not be concluded that a State must denominate aggravating circumstances "elements" of the offense or commit to a jury only, and not to a judge, determination of the existence of such circumstances. 497 U. S., at 649. Subsequently, the Court suggested in Jones that any fact (other than prior conviction) that increases the maximum penalty for a crime must be submitted to a jury, 526 U. S., at 243, n. 6, and distinguished Walton as having characterized the finding of aggravating facts in the context of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the sentencing range's ceiling, 526 U. S., at 251. Pp. 10-15.


[14] (b) In Apprendi, the sentencing judge's finding that racial animus motivated the petitioner's weapons offense triggered application of a state "hate crime enhancement" that doubled the maximum authorized sentence. This Court held that the sentence enhancement violated Apprendi's right to a jury determination whether he was guilty of every element of the crime with which he was charged, beyond a reasonable doubt. 530 U. S., at 477. That right attached not only to Apprendi's weapons offense but also to the "hate crime" aggravating circumstance. Id., at 476. The dispositive question, the Court said, is one not of form, but of effect. Id., at 494. If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact -- no matter how the State labels it -- must be found by a jury beyond a reasonable doubt. See id., at 482-483. A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. Id., at 483. Walton could be reconciled with Apprendi, the Court asserted: The key distinction was that an Arizona first-degree murder conviction carried a maximum sentence of death; once a jury has found the defendant guilty of all the elements of an offense which carries death as its maximum penalty, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed. 530 U. S., at 497. In dissent in Apprendi, Justice O'Connor described as "demonstrably untrue" the majority's assertion that the jury makes all the findings necessary to expose the defendant to a death sentence. Such a defendant, she emphasized, cannot receive a death sentence unless a judge makes the critical factual determination that a statutory aggravating factor exists. Id., at 538. Walton, Justice O'Connor's dissent insisted, if followed, would have required the Court to uphold Apprendi's sentence. Id., at 537. Pp. 15-17.


[15] (c) Given the Arizona Supreme Court's finding that the Apprendi dissent's portrayal of Arizona's capital sentencing law was precisely right, and recognizing that the Arizona court's construction of the State's own law is authoritative, see Mullaney v. Wilbur, 421 U. S. 684, 691, this Court is persuaded that Walton, in relevant part, cannot survive Apprendi's reasoning. In an effort to reconcile its capital sentencing system with the Sixth Amendment as interpreted by Apprendi, Arizona first restates the Apprendi majority's ruling that, because Arizona law specifies death or life imprisonment as the only sentencing options for the first-degree murder of which Ring was convicted, he was sentenced within the range of punishment authorized by the jury verdict. This argument overlooks Apprendi's instruction that the relevant inquiry is one of effect, not form. 530 U. S., at 494. In effect, the required finding of an aggravated circumstance exposed Ring to a greater punishment than that authorized by the guilty verdict. Ibid. The Arizona first-degree murder statute authorizes a maximum penalty of death only in a formal sense, id., at 541 (O'Connor, J., dissenting), for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. If Arizona prevailed on its opening argument, Apprendi would be reduced to a "meaningless and formalistic" rule of statutory drafting. See id., at 541. Arizona's argument based on the Walton distinction between an offense's elements and sentencing factors is rendered untenable by Apprendi's repeated instruction that the characterization of a fact or circumstance as an element or a sentencing factor is not determinative of the question "who decides," judge or jury. See, e.g., 530 U. S., at 492. Arizona further urges that aggravating circumstances necessary to trigger a death sentence may nonetheless be reserved for judicial determination because death is different: States have constructed elaborate sentencing procedures in death cases because of constraints this Court has said the Eighth Amendment places on capital sentencing, see, e.g., id., at 522-523 (Thomas, J., concurring). Apart from the Eighth Amendment provenance of aggravating factors, however, Arizona presents no specific reason for excepting capital defendants from the constitutional protections extended to defendants generally, and none is readily apparent. Id., at 539 (O'Connor, J., dissenting). In various settings, the Court has interpreted the Constitution to require the addition of an element or elements to the definition of a crime in order to narrow its scope. See, e.g., United States v. Lopez, 514 U. S. 549, 561-562. If a legislature responded to such a decision by adding the element the Court held constitutionally required, surely the Sixth Amendment guarantee would apply to that element. There is no reason to differentiate capital crimes from all others in this regard. Arizona's suggestion that judicial authority over the finding of aggravating factors may be a better way to guarantee against the arbitrary imposition of the death penalty is unpersuasive. The Sixth Amendment jury trial right does not turn on the relative rationality, fairness, or efficiency of potential factfinders. Apprendi, 530 U. S., at 498 (Scalia, J., concurring). In any event, the superiority of judicial factfinding in capital cases is far from evident, given that the great majority of States responded to this Court's Eighth Amendment decisions requiring the presence of aggravating circumstances in capital cases by entrusting those determinations to the jury. Although stare decisis is of fundamental importance to the rule of law, this Court has overruled prior decisions where, as here, the necessity and propriety of doing so has been established. Patterson v. McLean Credit Union, 491 U. S. 164, 172. Pp. 17-23.


[16] 200 Ariz. 267, 25 P. 3d 1139, reversed and remanded.


[17] Ginsburg, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Kennedy, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in the judgment. O'Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., joined.


[18] On Writ Of Certiorari To The Supreme Court Of Arizona Court Below 200 Ariz. 267, 25 P. 3d 1139


[19] Andrew D. Hurwitz argued the cause for petitioner. With him on the briefs were John A. Stookey and Daniel L. Kaplan.


[20] Janet Napolitano, Attorney General of Arizona, argued the cause for respondent. With her on the brief were Patrick Irvine, Solicitor General, Kent E. Cattani, and Robert L. Ellman and Kathleen P. Sweeney, Assistant Attorneys General.


[21] Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and A. Vernon Barnett IV and Michael B. Billingsley, Deputy Solicitors General, joined by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Alan G. Lance of Idaho, Steve Carter of Indiana, Mike Moore of Mississippi, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark L. Shurtleff of Utah, and Jerry W. Kilgore of Virginia; for Arizona Voice for Crime Victims, Inc., et al., by Steve Twist and Douglas E. Beloof; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.


[22] The opinion of the court was delivered by: Justice Ginsburg


[23] 536 U. S. ____ (2002)


[24] This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.


[25] In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona's sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as "element[s] of the offense of capital murder." Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be "expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as "sentencing factor[s]." Id., at 492.


[26] Apprendi's reasoning is irreconcilable with Walton's holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.


[27] I.


[28] At the trial of petitioner Timothy Ring for murder, armed robbery, and related charges, the prosecutor presented evidence sufficient to permit the jury to find the facts here recounted. On November 28, 1994, a Wells Fargo armored van pulled up to the Dillard's department store at Arrowhead Mall in Glendale, Arizona. Tr. 57, 60-61 (Nov. 14, 1996). Courier Dave Moss left the van to pick up money inside the store. Id., at 61, 73-74. When he returned, the van, and its driver, John Magoch, were gone. Id., at 61-62.


[29] Later that day, Maricopa County Sheriff's Deputies found the van -- its doors locked and its engine running -- in the parking lot of a church in Sun City, Arizona. Id., at 99-100 (Nov. 13, 1996). Inside the vehicle they found Magoch, dead from a single gunshot to the head. Id., at 101. According to Wells Fargo records, more than $562,000 in cash and $271,000 in checks were missing from the van. Id., at 10 (Nov. 18, 1996).


[30] Prompted by an informant's tip, Glendale police sought to determine whether Ring and his friend James Greenham were involved in the robbery. The police investigation revealed that the two had made several expensive cash purchases in December 1994 and early 1995. E.g., id., at 153-156 (Nov. 14, 1996); id., at 90-94 (Nov. 21, 1996). Wiretaps were then placed on the telephones of Ring, Greenham, and a third suspect, William Ferguson. Id., at 19-21 (Nov. 18, 1996).


[31] In one recorded phone conversation, Ring told Ferguson that Ring might "cu[t] off" Greenham because "[h]e's too much of a risk": Greenham had indiscreetly flaunted a new truck in front of his ex-wife. State's Exh. 49A, pp. 11-12. Ring said he could cut off his associate because he held "both [Greenham's] and mine." Id., at 11. The police engineered a local news broadcast about the robbery investigation; they included in the account several intentional inaccuracies. Tr. 3-5, 13-14 (Nov. 19, 1996). On hearing the broadcast report, Ring left a message on Greenham's answering machine to "remind me to talk to you tomorrow and tell you about what was on the news tonight. Very important, and also fairly good." State's Exh. 55A, p. 2.


[32] After a detective left a note on Greenham's door asking him to call, Tr. 115-118 (Nov. 18, 1996), Ring told Ferguson that he was puzzled by the attention the police trained on Greenham. "[H]is house is clean," Ring said; "[m]ine, on the other hand, contains a very large bag." State's Exh. 70A, p. 7.


[33] On February 14, 1995, police furnished a staged reenactment of the robbery to the local news, and again included deliberate inaccuracies. Tr. 5 (Nov. 19, 1996). Ferguson told Ring that he "laughed" when he saw the broadcast, and Ring called it "humorous." State's Exh. 80A, p. 3. Ferguson said he was "not real worried at all now"; Ring, however, said he was "slightly concern[ed]" about the possibility that the police might eventually ask for hair samples. Id., at 3-4.


[34] Two days later, the police executed a search warrant at Ring's house, discovering a duffel bag in his garage containing more than $271,000 in cash. Tr. 107-108, 111, 125 (Nov. 20, 1996). They also found a note with the number "575,995" on it, followed by the word "splits" and the letters "F," "Y," and "T." Id., at 127-130. The prosecution asserted that "F" was Ferguson, "Y" was "Yoda" (Greenham's nickname), and "T" was Timothy Ring. Id., at 42 (Dec. 5, 1996).


[35] Testifying in his own defense, Ring said the money seized at his house was startup capital for a construction company he and Greenham were planning to form. Id., at 10-11 (Dec. 3, 1996). Ring testified that he made his share of the money as a confidential informant for the Federal Bureau of Investigation and as a bail bondsman and gunsmith. Id., at 162, 166-167, 180 (Dec. 2, 1996). But an FBI agent testified that Ring had been paid only $458, id., at 47 (Nov. 20, 1996), and other evidence showed that Ring had made no more than $8,800 as a bail bondsman, id., at 48-51 (Nov. 21, 1996); id., at 21 (Nov. 25, 1996).


[36] The trial judge instructed the jury on alternative charges of premeditated murder and felony murder. The jury deadlocked on premeditated murder, with 6 of 12 jurors voting to acquit, but convicted Ring of felony murder occurring in the course of armed robbery. See Ariz. Rev. Stat. Ann. §13-1105(A) and (B) (West 2001) ("A person commits first degree murder if ... [a]cting either alone or with one or more other persons the person commits or attempts to commit ... [one of several enumerated felonies] ... and in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person. ... Homicide, as prescribed in [this provision] requires no specific mental state other than what is required for the commission of any of the enumerated felonies.").


[37] As later summed up by the Arizona Supreme Court, "the evidence admitted at trial failed to prove, beyond a reasonable doubt, that [Ring] was a major participant in the armed robbery or that he actually murdered Magoch." 200 Ariz. 267, 280, 25 P. 3d 1139, 1152 (2001). Although clear evidence connected Ring to the robbery's proceeds, nothing submitted at trial put him at the scene of the robbery. See ibid. Furthermore, "[f]or all we know from the trial evidence," the Arizona court stated, "[Ring] did not participate in, plan, or even expect the killing. This lack of evidence no doubt explains why the jury found [Ring] guilty of felony, but not premeditated, murder." Ibid.


[38] Under Arizona law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made. The State's first-degree murder statute prescribes that the offense "is punishable by death or life imprisonment as provided by §13-703." Ariz. Rev. Stat. Ann. §13-1105(C) (West 2001). The cross-referenced section, §13-703, directs the judge who presided at trial to "conduct a separate sentencing hearing to determine the existence or nonexistence of [certain enumerated] circumstances ... for the purpose of determining the sentence to be imposed." §13-703(C) (West Supp. 2001). The statute further instructs: "The hearing shall be conducted before the court alone. The court alone shall make all factual determinations required by this section or the constitution of the United States or this state." Ibid.


[39] At the conclusion of the sentencing hearing, the judge is to determine the presence or absence of the enumerated "aggravating circumstances"*fn1 and any "mitigating circumstances." *fn2 The State's law authorizes the judge to sentence the defendant to death only if there is at least one aggravating circumstance and "there are no mitigating circumstances sufficiently substantial to call for leniency." §13-703(F).


[40] Between Ring's trial and sentencing hearing, Greenham pleaded guilty to second-degree murder and armed robbery. He stipulated to a 27½ year sentence and agreed to cooperate with the prosecution in the cases against Ring and Ferguson. Tr. 35-37 (Oct. 9, 1997).


[41] Called by the prosecution at Ring's sentencing hearing, Greenham testified that he, Ring, and Ferguson had been planning the robbery for several weeks before it occurred. According to Greenham, Ring "had I guess taken the role as leader because he laid out all the tactics." Id., at 39. On the day of the robbery, Greenham said, the three watched the armored van pull up to the mall. Id., at 45. When Magoch opened the door to smoke a cigarette, Ring shot him with a rifle equipped with a homemade silencer. Id., at 42, 44-45. Greenham then pushed Magoch's body aside and drove the van away. Id., at 45. At Ring's direction, Greenham drove to the church parking lot, where he and Ring transferred the money to Ring's truck. Id., at 46, 48. Later, Greenham recalled, as the three robbers were dividing up the money, Ring upbraided him and Ferguson for "forgetting to congratulate [Ring] on [his] shot." Id., at 60.


[42] On cross-examination, Greenham acknowledged having previously told Ring's counsel that Ring had nothing to do with the planning or execution of the robbery. Id., at 85-87. Greenham explained that he had made that prior statement only because Ring had threatened his life. Id., at 87. Greenham also acknowledged that he was now testifying against Ring as "pay back" for the threats and for Ring's interference in Greenham's relationship with Greenham's ex-wife. Id., at 90-92.


[43] On October 29, 1997, the trial judge entered his "Special Verdict" sentencing Ring to death. Because Ring was convicted of felony murder, not premeditated murder, the judge recognized that Ring was eligible for the death penalty only if he was Magoch's actual killer or if he was "a major participant in the armed robbery that led to the killing and exhibited a reckless disregard or indifference for human life." App. to Pet. for Cert. 46a-47a; see Enmund v. Florida, 458 U. S. 782 (1982) (Eighth Amendment requires finding that felony-murder defendant killed or attempted to kill); Tison v. Arizona, 481 U. S. 137, 158 (1987) (qualifying Enmund, and holding that Eighth Amendment permits execution of felony-murder defendant, who did not kill or attempt to kill, but who was a "major participa[nt] in the felony committed" and who demonstrated "reckless indifference to human life").


[44] Citing Greenham's testimony at the sentencing hearing, the judge concluded that Ring "is the one who shot and killed Mr. Magoch." App. to Pet. for Cert. 47a. The judge also found that Ring was a major participant in the robbery and that armed robbery "is unquestionably a crime which carries with it a grave risk of death." Ibid.


[45] The judge then turned to the determination of aggravating and mitigating circumstances. See §13-703. He found two aggravating factors. First, the judge determined that Ring committed the offense in expectation of receiving something of "pecuniary value," as described in §13-703; "[t]aking the cash from the armored car was the motive and reason for Mr. Magoch's murder and not just the result." App. to Pet. for Cert. 49a.


[46] Second, the judge found that the offense was committed "in an especially heinous, cruel or depraved manner." Ibid. In support of this finding, he cited Ring's comment, as reported by Greenham at the sentencing hearing, expressing pride in his marksmanship. Id., at 49a-50a. The judge found one non-statutory mitigating factor: Ring's "minimal" criminal record. Id., at 52a. In his judgment, that mitigating circumstance did not "call for leniency"; he therefore sentenced Ring to death. Id., at 53a.


[47] On appeal, Ring argued that Arizona's capital sentencing scheme violates the Sixth and Fourteenth Amendments to the U. S. Constitution because it entrusts to a judge the finding of a fact raising the defendant's maximum penalty. See Jones v. United States, 526 U. S. 227 (1999); Apprendi v. New Jersey, 530 U. S. 466 (2000). The State, in response, noted that this Court had upheld Arizona's system in Walton v. Arizona, 497 U. S. 639 (1990), and had stated in Apprendi that Walton remained good law.


[48] Reviewing the death sentence, the Arizona Supreme Court made two preliminary observations. Apprendi and Jones, the Arizona high court said, "raise some question about the continued viability of Walton." 200 Ariz., at 278, 25 P. 3d, at 1150. The court then examined the Apprendi majority's interpretation of Arizona law and found it wanting. Apprendi, the Arizona court noted, described Arizona's sentencing system as one that " `requir[es] judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death,' and not as a system that `permits a judge to determine the existence of a factor which makes a crime a capital offense.' " 200 Ariz., at 279, 25 P. 3d, at 1151 (quoting Apprendi, 530 U. S., at 496-497).


[49] Justice O'Connor's Apprendi dissent, the Arizona court noted, squarely rejected the Apprendi majority's characterization of the Arizona sentencing scheme: "A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty." 200 Ariz., at 279, 25 P. 3d, at 1151 (quoting Apprendi, 530 U. S., at 538).


[50] After reciting this Court's divergent constructions of Arizona law in Apprendi, the Arizona Supreme Court described how capital sentencing in fact works in the State. The Arizona high court concluded that "the present case is precisely as described in Justice O'Connor's dissent [in Apprendi] -- Defendant's death sentence required the judge's factual findings." 200 Ariz., at 279, 25 P. 3d, at 1151. Although it agreed with the Apprendi dissent's reading of Arizona law, the Arizona court understood that it was bound by the Supremacy Clause to apply Walton, which this Court had not overruled. It therefore rejected Ring's constitutional attack on the State's capital murder judicial sentencing system. 200 Ariz., at 280, 25 P. 3d, at 1152.


[51] The court agreed with Ring that the evidence was insufficient to support the aggravating circumstance of depravity, id., at 281-282, 25 P. 3d, at 1153-1154, but it upheld the trial court's finding on the aggravating factor of pecuniary gain. The Arizona Supreme Court then reweighed that remaining factor against the sole mitigating circumstance (Ring's lack of a serious criminal record), and affirmed the death sentence. Id., at 282-284, 25 P. 3d, at 1154-1156.


[52] We granted Ring's petition for a writ of certiorari, 534 U. S. 1103 (2002), to allay uncertainty in the lower courts caused by the manifest tension between Walton and the reasoning of Apprendi. See, e.g., United States v. Promise, 255 F. 3d 150, 159-160 (CA4 2001) (en banc) (calling the continued authority of Walton in light of Apprendi "perplexing"); Hoffman v. Arave, 236 F. 3d 523, 542 (CA9 2001) ("Apprendi may raise some doubt about Walton."); People v. Kaczmarek, 318 Ill. App. 3d 340, 351-352, 741 N. E. 2d 1131, 1142 (2000) ("[W]hile it appears Apprendi extends greater constitutional protections to non-capital, rather than capital, defendants, the Court has endorsed this precise principle, and we are in no position to secondguess that decision here."). We now reverse the judgment of the Arizona Supreme Court.


[53] II.


[54] Based solely on the jury's verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. See 200 Ariz., at 279, 25 P. 3d, at 1151 (citing Ariz. Rev. Stat. §13-703). This was so because, in Arizona, a "death sentence may not legally be imposed ... unless at least one aggravating factor is found to exist beyond a reasonable doubt." 200 Ariz., at 279, 25 P. 3d, at 1151 (citing §13-703). The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment's jury trial guarantee,*fn3 made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.*fn4


[55] As earlier indicated, see supra, at 1, 8-9, this is not the first time we have considered the constitutionality of Arizona's capital sentencing system. In Walton v. Arizona, 497 U. S. 639 (1990), we upheld Arizona's scheme against a charge that it violated the Sixth Amendment. The Court had previously denied a Sixth Amendment challenge to Florida's capital sentencing system, in which the jury recommends a sentence but makes no explicit findings on aggravating circumstances; we so ruled, Walton noted, on the ground that "the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury." Id., at 648 (quoting Hildwin v. Florida, 490 U. S. 638, 640-641 (1989) (per curiam)). Walton found unavailing the attempts by the defendant-petitioner in that case to distinguish Florida's capital sentencing system from Arizona's. In neither State, according to Walton, were the aggravating factors "elements of the offense"; in both States, they ranked as "sentencing considerations" guiding the choice between life and death. 497 U. S., at 648 (internal quotation marks omitted).


[56] Walton drew support from Cabana v. Bullock, 474 U. S. 376 (1986), in which the Court held there was no constitutional bar to an appellate court's finding that a defendant killed, attempted to kill, or intended to kill, as Enmund v. Florida, 458 U. S. 782 (1982), required for imposition of the death penalty in felony-murder cases. The Enmund finding could be made by a court, Walton maintained, because it entailed no " `element of the crime of capital murder' "; it "only place[d] `a substantive limitation on sentencing.' " 497 U. S., at 649 (quoting Cabana, 474 U. S., at 385-386).


[57] "If the Constitution does not require that the Enmund finding be proved as an element of the offense of capital murder, and does not require a jury to make that finding," Walton stated, "we cannot conclude that a State is required to denominate aggravating circumstances `elements' of the offense or permit only a jury to determine the existence of such circumstances." 497 U. S., at 649.


[58] In dissent in Walton, Justice Stevens urged that the Sixth Amendment requires "a jury determination of facts that must be established before the death penalty may be imposed." Id., at 709. Aggravators "operate as statutory `elements' of capital murder under Arizona law," he reasoned, "because in their absence, [the death] sentence is unavailable." Id., at 709, n. 1. "If th[e] question had been posed in 1791, when the Sixth Amendment became law," Justice Stevens said, "the answer would have been clear," for "[b]y that time, "the English jury's role in determining critical facts in homicide cases was entrenched. As fact-finder, the jury had the power to determine not only whether the defendant was guilty of homicide but also the degree of the offense. Moreover, the jury's role in finding facts that would determine a homicide defendant's eligibility for capital punishment was particularly well established. Throughout its history, the jury determined which homicide defendants would be subject to capital punishment by making factual determinations, many of which related to difficult assessments of the defendant's state of mind. By the time the Bill of Rights was adopted, the jury's right to make these determinations was unquestioned." Id., at 710-711 (quoting White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendant's Right to Jury Trial, 65 Notre Dame L. Rev. 1, 10-11 (1989)). Walton was revisited in Jones v. United States, 526 U. S. 227 (1999).


[59] In that case, we construed the federal carjacking statute, 18 U. S. C. §2119 (1994 ed. and Supp. V), which, at the time of the criminal conduct at issue, provided that a person possessing a firearm who "takes a motor vehicle ... from the person or presence of another by force and violence or by intimidation ... shall -- (1) be ... imprisoned not more than 15 years ... , (2) if serious bodily injury ... results, be ... imprisoned not more than 25 years ... , and (3) if death results, be ... imprisoned for any number of years up to life... ." The question presented in Jones was whether the statute "defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict." 526 U. S., at 229.


[60] The carjacking statute, we recognized, was "susceptible of [both] constructions"; we adopted the one that avoided "grave and doubtful constitutional questions." Id., at 239 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909)).


[61] Section 2119, we held, established three separate offenses. Therefore, the facts -- causation of serious bodily injury or death -- necessary to trigger the escalating maximum penalties fell within the jury's province to decide. See Jones, 526 U. S., at 251-252. Responding to the dissenting opinion, the Jones Court restated succinctly the principle animating its view that the carjacking statute, if read to define a single crime, might violate the Constitution: "[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 243, n. 6.


[62] Jones endeavored to distinguish certain capital sentencing decisions, including Walton. Advancing a "careful reading of Walton's rationale," the Jones Court said: Walton "characterized the finding of aggravating facts falling within the traditional scope of capital sentencing as a choice between a greater and a lesser penalty, not as a process of raising the ceiling of the sentencing range available." 526 U. S., at 251.


[63] Dissenting in Jones, Justice Kennedy questioned the Court's account of Walton. The aggravating factors at issue in Walton, he suggested, were not merely circumstances for consideration by the trial judge in exercising sentencing discretion within a statutory range of penalties. "Under the relevant Arizona statute," Justice Kennedy observed, "Walton could not have been sentenced to death unless the trial judge found at least one of the enumerated aggravating factors. Absent such a finding, the maximum potential punishment provided by law was a term of imprisonment." 526 U. S., at 272 (citation omitted). Jones, Justice Kennedy concluded, cast doubt -- needlessly in his view -- on the vitality of Walton:


[64] "If it is constitutionally impermissible to allow a judge's finding to increase the maximum punishment for carjacking by 10 years, it is not clear why a judge's finding may increase the maximum punishment for murder from imprisonment to death. In fact, Walton would appear to have been a better candidate for the Court's new approach than is the instant case." 526 U. S., at 272.


[65] One year after Jones, the Court decided Apprendi v. New Jersey, 530 U. S. 466 (2000). The defendant-petitioner in that case was convicted of, inter alia, second-degree possession of a firearm, an offense carrying a maximum penalty of ten years under New Jersey law. See id., at 469-470. On the prosecutor's motion, the sentencing judge found by a preponderance of the evidence that Apprendi's crime had been motivated by racial animus. That finding triggered application of New Jersey's "hate crime enhancement," which doubled Apprendi's maximum authorized sentence. The judge sentenced Apprendi to 12 years in prison, 2 years over the maximum that would have applied but for the enhancement.


[66] We held that Apprendi's sentence violated his right to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Id., at 477 (quoting United States v. Gaudin, 515 U. S. 506, 510 (1995)). That right attached not only to Apprendi's weapons offense but also to the "hate crime" aggravating circumstance. New Jersey, the Court observed, "threatened Apprendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race." Apprendi, 530 U. S., at 476. "Merely using the label `sentence enhancement' to describe the [second act] surely does not provide a principled basis for treating [the two acts] differently." Ibid.


[67] The dispositive question, we said, "is one not of form, but of effect." Id., at 494. If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact -- no matter how the State labels it -- must be found by a jury beyond a reasonable doubt. See id., at 482-483. A defendant may not be "expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone." Id., at 483; see also id., at 499 (Scalia, J., concurring) ("[A]ll the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.").


[68] Walton could be reconciled with Apprendi, the Court finally asserted. The key distinction, according to the Apprendi Court, was that a conviction of first-degree murder in Arizona carried a maximum sentence of death. "[O]nce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed." 530 U. S., at 497 (emphasis deleted) (quoting Almendarez-Torres v. United States, 523 U. S. 224, 257, n. 2 (1998) (Scalia, J., dissenting)).


[69] The Apprendi dissenters called the Court's distinction of Walton "baffling." 530 U. S., at 538 (opinion of O'Connor, J.). The Court claimed that "the jury makes all of the findings necessary to expose the defendant to a death sentence." Ibid. That, the dissent said, was "demonstrably untrue," for a "defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty." Ibid. Walton, the Apprendi dissenters insisted, if properly followed, would have required the Court to uphold Apprendi's sentence. "If a State can remove from the jury a factual determination that makes the difference between life and death, as Walton holds that it can, it is inconceivable why a State cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed." 530 U. S., at 537 (opinion of O'Connor, J.).


[70] The Arizona Supreme Court, as we earlier recounted, see supra, at 8-9, found the Apprendi majority's portrayal of Arizona's capital sentencing law incorrect, and the description in Justice O'Connor's dissent precisely right: "Defendant's death sentence required the judge's factual findings." 200 Ariz., at 279, 25 P. 3d, at 1151. Recognizing that the Arizona court's construction of the State's own law is authoritative, see Mullaney v. Wilbur, 421 U. S. 684, 691 (1975), we are persuaded that Walton, in relevant part, cannot survive the reasoning of Apprendi.


[71] In an effort to reconcile its capital sentencing system with the Sixth Amendment as interpreted by Apprendi, Arizona first restates the Apprendi majority's portrayal of Arizona's system: Ring was convicted of first-degree murder, for which Arizona law specifies "death or life imprisonment" as the only sentencing options, see Ariz. Rev. Stat. Ann. §13-1105(C) (West 2001); Ring was therefore sentenced within the range of punishment authorized by the jury verdict. See Brief for Respondent 9-19.


[72] This argument overlooks Apprendi's instruction that "the relevant inquiry is one not of form, but of effect." 530 U. S., at 494. In effect, "the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury's guilty verdict." Ibid.; see 200 Ariz., at 279, 25 P. 3d, at 1151. The Arizona first-degree murder statute "authorizes a maximum penalty of death only in a formal sense," Apprendi, 530 U. S., at 541 (O'Connor, J., dissenting), for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. See §13-1105(C) ("First degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by §13-703." (emphasis added)). If Arizona prevailed on its opening argument, Apprendi would be reduced to a "meaningless and formalistic" rule of statutory drafting. See 530 U. S., at 541 (O'Connor, J., dissenting).


[73] Arizona also supports the distinction relied upon in Walton between elements of an offense and sentencing factors. See supra, at 11-12; Tr. of Oral Arg. 28-29. As to elevation of the maximum punishment, however, Apprendi renders the argument untenable;*fn5 Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as an "element" or a "sentencing factor" is not determinative of the question "who decides," judge or jury. See, e.g., 530 U. S., at 492 (noting New Jersey's contention that "[t]he required finding of biased purpose is not an `element' of a distinct hate crime offense, but rather the traditional `sentencing factor' of motive," and calling this argument "nothing more than a disagreement with the rule we apply today"); id., at 494, n. 19 ("[W]hen the term `sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict."); id., at 495 ("[M]erely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense." (internal quotation marks omitted)); see also id., at 501 (Thomas, J., concurring) ("[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact[,] ... the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.").


[74] Even if facts increasing punishment beyond the maximum authorized by a guilty verdict standing alone ordinarily must be found by a jury, Arizona further urges, aggravating circumstances necessary to trigger a death sentence may nonetheless be reserved for judicial determination. As Arizona's counsel maintained at oral argument, there is no doubt that "[d]eath is different." Tr. of Oral Arg. 43. States have constructed elaborate sentencing procedures in death cases, Arizona emphasizes, because of constraints we have said the Eighth Amendment places on capital sentencing. Brief for Respondent 21-25 (citing Furman v. Georgia, 408 U. S. 238 (1972) (per curiam)); see also Maynard v. Cartwright, 486 U. S. 356, 362 (1988) ("Since Furman, our cases have insisted that the channeling and limiting of the sentencer's discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action."); Apprendi, 530 U. S., at 522-523 (Thomas, J., concurring) ("[I]n the area of capital punishment, unlike any other area, we have imposed special constraints on a legislature's ability to determine what facts shall lead to what punishment -- we have restricted the legislature's ability to define crimes.").


[75] Apart from the Eighth Amendment provenance of aggravating factors, Arizona presents "no specific reason for excepting capital defendants from the constitutional protections ... extend[ed] to defendants generally, and none is readily apparent." Id., at 539 (O'Connor, J., dissenting). The notion "that the Eighth Amendment's restriction on a state legislature's ability to define capital crimes should be compensated for by permitting States more leeway under the Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence ... is without precedent in our constitutional jurisprudence." Ibid.


[76] In various settings, we have interpreted the Constitution to require the addition of an element or elements to the definition of a criminal offense in order to narrow its scope. See, e.g., United States v. Lopez, 514 U. S. 549, 561-562 (1995) (suggesting that addition to federal gun possession statute of "express jurisdictional element" requiring connection between weapon and interstate commerce would render statute constitutional under Commerce Clause); Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (First Amendment prohibits States from "proscrib[ing] advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"); Lambert v. California, 355 U. S. 225, 229 (1957) (Due Process Clause of Fourteenth Amendment requires "actual knowledge of the duty to register or proof of the probability of such knowledge" before ex-felon may be convicted of failing to register presence in municipality). If a legislature responded to one of these decisions by adding the element we held constitutionally required, surely the Sixth Amendment guarantee would apply to that element. We see no reason to differentiate capital crimes from all others in this regard.


[77] Arizona suggests that judicial authority over the finding of aggravating factors "may ... be a better way to guarantee against the arbitrary imposition of the death penalty." Tr. of Oral Arg. 32. The Sixth Amendment jury trial right, however, does not turn on the relative rationality, fairness, or efficiency of potential factfinders. Entrusting to a judge the finding of facts necessary to support a death sentence might be


[78] "an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. ... The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free." Apprendi, 530 U. S., at 498 (Scalia, J., concurring).


[79] In any event, the superiority of judicial factfinding in capital cases is far from evident. Unlike Arizona, the great majority of States responded to this Court's Eighth Amendment decisions requiring the presence of aggravating circumstances in capital cases by entrusting those determinations to the jury.*fn6


[80] Although " `the doctrine of stare decisis is of fundamental importance to the rule of law[,]' ... [o]ur precedents are not sacrosanct." Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989) (quoting Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 494 (1987)). "[W]e have overruled prior decisions where the necessity and propriety of doing so has been established." 491 U. S., at 172. We are satisfied that this is such a case.


[81] For the reasons stated, we hold that Walton and Apprendi are irreconcilable; our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U. S., at 647-649.


[82] Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," Apprendi, 530 U. S., at 494, n. 19, the Sixth Amendment requires that they be found by a jury.


[83] "The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. ... If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it." Duncan v. Louisiana, 391 U. S. 145, 155-156 (1968).


[84] The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both. The judgment of the Arizona Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.*fn7


[85] It is so ordered.


[86] Justice Scalia, with whom Justice Thomas joins, concurring.


[87] The question whether Walton v. Arizona, 497 U. S. 639 (1990), survives our decision in Apprendi v. New Jersey, 530 U. S. 466 (2000), confronts me with a difficult choice. What compelled Arizona (and many other States) to specify particular "aggravating factors" that must be found before the death penalty can be imposed, see 1973 Ariz. Sess. Laws ch. 138, §5 (originally codified as Ariz. Rev. Stat. §13-454), was the line of this Court's cases beginning with Furman v. Georgia, 408 U. S. 238 (1972) (per curiam). See Walton, 497 U. S., at 659-660 (Scalia, J., concurring in part and concurring in judgment). In my view, that line of decisions had no proper foundation in the Constitution. Id., at 670 (" `[T]he prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed' " (quoting Gardner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J., dissenting))). I am therefore reluctant to magnify the burdens that our Furman jurisprudence imposes on the States. Better for the Court to have invented an evidentiary requirement that a judge can find by a preponderance of the evidence, than to invent one that a unanimous jury must find beyond a reasonable doubt.


[88] On the other hand, as I wrote in my dissent in Almendarez-Torres v. United States, 523 U. S. 224, 248 (1998), and as I reaffirmed by joining the opinion for the Court in Apprendi, I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives -- whether the statute calls them elements of the offense, sentencing factors, or Mary Jane -- must be found by the jury beyond a reasonable doubt.


[89] The quandary is apparent: Should I continue to apply the last-stated principle when I know that the only reason the fact is essential is that this Court has mistakenly said that the Constitution requires state law to impose such "aggravating factors"? In Walton, to tell the truth, the Sixth Amendment claim was not put with the clarity it obtained in Almendarez-Torres and Apprendi. There what the appellant argued had to be found by the jury was not all facts essential to imposition of the death penalty, but rather "every finding of fact underlying the sentencing decision," including not only the aggravating factors without which the penalty could not be imposed, but also the mitigating factors that might induce a sentencer to give a lesser punishment. 497 U. S., at 647 (emphasis added). But even if the point had been put with greater clarity in Walton, I think I still would have approved the Arizona scheme -- I would have favored the States' freedom to develop their own capital sentencing procedures (already erroneously abridged by Furman) over the logic of the Apprendi principle.


[90] Since Walton, I have acquired new wisdom that consists of two realizations -- or, to put it more critically, have discarded old ignorance that consisted of the failure to realize two things: First, that it is impossible to identify with certainty those aggravating factors whose adoption has been wrongfully coerced by Furman, as opposed to those that the State would have adopted in any event. Some States, for example, already had aggravating-factor requirements for capital murder (e.g., murder of a peace officer, see 1965 N. Y. Laws p. 1022 (originally codified at N. Y. Penal Law §1045)) when Furman was decided. When such a State has added aggravating factors, are the new ones the Apprendi-exempt product of Furman, and the old ones not? And even as to those States that did not previously have aggravating-factor requirements, who is to say that their adoption of a new one today -- or, for that matter, even their retention of old ones adopted immediately post-Furman -- is still the product of that case, and not of a changed social belief that murder simpliciter does not deserve death?


[91] Second, and more important, my observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt "sentencing factors" determined by judges that increase punishment beyond what is authorized by the jury's verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, see Apprendi, supra, at 523 (O'Connor, J., dissenting), cause me to believe that our people's traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man's going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.


[92] Accordingly, whether or not the States have been erroneously coerced into the adoption of "aggravating factors," wherever those factors exist they must be subject to the usual requirements of the common law, and to the requirement enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a reasonable doubt.


[93] I add one further point, lest the holding of today's decision be confused by the separate concurrence. Justice Breyer, who refuses to accept Apprendi, see 530 U. S., at 555 (Breyer, J., dissenting); see also Harris v. United States, ante, p. ___ (Breyer, J., concurring in part and concurring in judgment), nonetheless concurs in today's judgment because he "believe[s] that jury sentencing in capital cases is mandated by the Eighth Amendment." Post, at 1 (opinion concurring in judgment). While I am, as always, pleased to travel in Justice Breyer's company, the unfortunate fact is that today's judgment has nothing to do with jury sentencing. What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so -- by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase. There is really no way in which Justice Breyer can travel with the happy band that reaches today's result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.


[94] Justice Kennedy, concurring.


[95] Though it is still my view that Apprendi v. New Jersey, 530 U. S. 466 (2000), was wrongly decided, Apprendi is now the law, and its holding must be implemented in a principled way. As the Court suggests, no principled reading of Apprendi would allow Walton v. Arizona, 497 U. S. 639 (1990), to stand. It is beyond question that during the penalty phase of a first-degree murder prosecution in Arizona, the finding of an aggravating circumstance exposes "the defendant to a greater punishment than that authorized by the jury's guilty verdict." Apprendi, supra, at 494. When a finding has this effect, Apprendi makes clear, it cannot be reserved for the judge.


[96] This is not to say Apprendi should be extended without caution, for the States' settled expectations deserve our respect. A sound understanding of the Sixth Amendment will allow States to respond to the needs and realities of criminal justice administration, and Apprendi can be read as leaving in place many reforms designed to reduce unfairness in sentencing. I agree with the Court, however, that Apprendi and Walton cannot stand together as the law.


[97] With these observations I join the opinion of the Court.


[98] Breyer, J., concurring in judgment


[99] Justice Breyer, concurring in the judgment.


[100] I.


[101] Given my views in Apprendi v. New Jersey, 530 U. S. 466, 555 (2000) (dissenting opinion), and Harris v. United States, ante, at __ (Breyer, J., concurring in part and concurring in judgment), I cannot join the Court's opinion. I concur in the judgment, however, because I believe that jury sentencing in capital cases is mandated by the Eighth Amendment.


[102] II.


[103] This Court has held that the Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty. Gregg v. Georgia, 428 U. S. 153 (1976). Otherwise, the constitutional prohibition against "cruel and unusual punishments" would forbid its use. Furman v. Georgia, 408 U. S. 238 (1972) (per curiam). Justice Stevens has written that those safeguards include a requirement that a jury impose any sentence of death. Harris v. Alabama, 513 U. S. 504, 515-526 (1995) (dissenting opinion); Spaziano v. Florida, 468 U. S. 447, 467-490 (1984) (Stevens, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part). Although I joined the majority in Harris v. Alabama, I have come to agree with the dissenting view, and with the related views of others upon which it in part relies, see Gregg, supra, at 190 (opinion of Stewart, Powell, and Stevens, JJ.). Cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting) ("Wisdom too often never comes, and so one ought not to reject it merely because it comes late"). I therefore conclude that the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death.


[104] I am convinced by the reasons that Justice Stevens has given. These include (1) his belief that retribution provides the main justification for capital punishment, and (2) his assessment of the jury's comparative advantage in determining, in a particular case, whether capital punishment will serve that end.


[105] As to the first, I note the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to incapacitate offenders, or to rehabilitate criminals. Studies of deterrence are, at most, inconclusive. See, e.g., Sorenson, Wrinkle, Brewer, & Marquart, Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas, 45 Crime & Delinquency 481 (1999) (no evidence of a deterrent effect); Bonner & Fessenden, Absence of Executions: A special report, States With No Death Penalty Share Lower Homicide Rates, N. Y. Times, Sept. 22, 2000, p. A1 (during last 20 years, homicide rate in death penalty States has been 48% to 101% higher than in non-death-penalty States); see also Radelet & Akers, Deterrence and the Death Penalty: The Views of the Experts, 87 J. Crim. L. & C. 1, 8 (1996) (over 80% of criminologists believe existing research fails to support deterrence justification).


[106] As to incapacitation, few offenders sentenced to life without parole (as an alternative to death) commit further crimes. See, e.g., Sorensen & Pilgrim, An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. Crim. L. & C. 1251, 1256 (2000) (studies find average repeat murder rate of .002% among murderers whose death sentences were commuted); Marquart & Sorensen, A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders, 23 Loyola (LA) L. Rev. 5, 26 (1989) (98% did not kill again either in prison or in free society). But see Roberts v. Louisiana, 428 U. S. 325, 354 (1976) (White, J., dissenting) ("[D]eath finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not"). And rehabilitation, obviously, is beside the point.


[107] In respect to retribution, jurors possess an important comparative advantage over judges. In principle, they are more attuned to "the community's moral sensibility," Spaziano, 468 U. S., at 481 (Stevens, J., concurring in part and dissenting in part), because they "reflect more accurately the composition and experiences of the community as a whole," id., at 486. Hence they are more likely to "express the conscience of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U. S. 510, 519 (1968), and better able to determine in the particular case the need for retribution, namely, "an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Gregg, supra, at 184 (joint opinion of Stewart, Powell, and Stevens, JJ.).


[108] Nor is the fact that some judges are democratically elected likely to change the jury's comparative advantage in this respect. Even in jurisdictions where judges are selected directly by the people, the jury remains uniquely capable of determining whether, given the community's views, capital punishment is appropriate in the particular case at hand. See Harris, supra, at 518-519 (Stevens, J., dissenting); see also J. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It 405-406 (Feb. 11, 2002) (hereinafter A Broken System) (finding that judges who override jury verdicts for life are especially likely to commit serious errors); cf. Epstein & King, The Rules of Inference, 69 U. Chi. L. Rev. 1 (2002) (noting dangers in much scholarly research but generally approving of Liebman).


[109] The importance of trying to translate a community's sense of capital punishment's appropriateness in a particular case is underscored by the continued division of opinion as to whether capital punishment is in all circumstances, as currently administered, "cruel and unusual." Those who make this claim point, among other things, to the fact that death is not reversible, and to death sentences imposed upon those whose convictions proved unreliable. See, e.g., Weinstein, The Nation's Death Penalty Foes Mark a Milestone Crime: Arizona convict freed on DNA tests is said to be the 100th known condemned U. S. prisoner to be exonerated since executions resumed, Los Angeles Times, Apr. 10, 2002, p. A16; G. Ryan, Governor of Illinois, Report of Governor's Commission on Capital Punishment 7-10 (Apr. 15, 2002) (imposing moratorium on Illinois executions because, post-Furman, 13 people have been exonerated and 12 executed); see generally Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 27 (1987).


[110] They point to the potentially arbitrary application of the death penalty, adding that the race of the victim and socio-economic factors seem to matter. See, e.g., U. S. General Accounting Office, Report to Senate and House Committees on the Judiciary: Death Penalty Sentencing 5 (Feb. 1990) (synthesis of 28 studies shows "pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty"); Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, With Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1661 (1998) (evidence of race&nbhyph;of&nbhyph;victim disparities in 90% of States studied and of race&nbhyph;of&nbhyph;defendant disparities in 55%); McCleskey v. Kemp, 481 U. S. 279, 320-345 (1987) (Brennan, J., dissenting); see also, e.g., D. Baldus, G. Woodworth, G. Young, & A. Christ, The Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973-1999): A Legal and Empirical Analysis 95-100 (Oct. 10, 2001) (death sentences almost five times more likely when victim is of a high socio-economic status).


[111] They argue that the delays that increasingly accompany sentences of death make those sentences unconstitutional because of "the suffering inherent in a prolonged wait for execution." Knight v. Florida, 528 U. S. 990, 994 (1999) (Breyer, J., dissenting from denial of certiorari) (arguing that the Court should consider the question); see, e.g., Lackey v. Texas, 514 U. S. 1045 (1995) (Stevens, J., respecting denial of certiorari); Bureau of Justice Statistics, Capital Punishment 2000, pp. 12, 14 (rev. 2002) (average delay is 12 years, with 52 people waiting more than 20 years and some more than 25).


[112] They point to the inadequacy of representation in capital cases, a fact that aggravates the other failings. See, e.g., Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835 (1994) (describing many studies discussing deficient capital representation).


[113] And they note that other nations have increasingly abandoned capital punishment. See, e.g., San Martin, U. S. Taken to Task Over Death Penalty, Miami Herald, May 31, 2001, p. 1 (United States is only Western industrialized Nation that authorizes the death penalty); Amnesty International Website Against the Death Penalty, Facts and Figures on the Death Penalty, (2002) http://www.web. amnesty.org/rmp/dplibrary.nsf (since Gregg, 111 countries have either abandoned the penalty altogether, reserved it only for exceptional crimes like wartime crimes, or have not carried out executions for at least the past 10 years); DeYoung, Group Criticizes U. S. on Detainee Policy; Amnesty Warns of Human Rights Fallout, Washington Post, May 28, 2002, p. A4 (the United States rates fourth in number of executions, after China, Iran, and Saudi Arabia).


[114] Many communities may have accepted some or all of these claims, for they do not impose capital sentences. See A Broken System, App. B, Table 11A (more than two-thirds of American counties have never imposed the death penalty since Gregg (2,064 out of 3,066), and only 3% of the Nation's counties account for 50% of the Nation's death sentences (92 out of 3,066)). Leaving questions of arbitrariness aside, this diversity argues strongly for procedures that will help assure that, in a particular case, the community indeed believes application of the death penalty is appropriate, not "cruel," "unusual," or otherwise unwarranted.


[115] For these reasons, the danger of unwarranted imposition of the penalty cannot be avoided unless "the decision to impose the death penalty is made by a jury rather than by a single governmental official." Spaziano, 468 U. S., at 469 (Stevens, J., concurring in part and dissenting in part); see Solem v. Helm, 463 U. S. 277, 284 (1983) (Eighth Amendment prohibits excessive or disproportionate punishment). And I conclude that the Eighth Amendment requires individual jurors to make, and to take responsibility for, a decision to sentence a person to death.


[116] O'Connor, J., dissenting


[117] Justice O'Connor, with whom the Chief Justice joins, dissenting.


[118] I understand why the Court holds that the reasoning of Apprendi v. New Jersey, 530 U. S. 466 (2000), is irreconcilable with Walton v. Arizona, 497 U. S. 639 (1990). Yet in choosing which to overrule, I would choose Apprendi, not Walton.


[119] I continue to believe, for the reasons I articulated in my dissent in Apprendi, that the decision in Apprendi was a serious mistake. As I argued in that dissent, Apprendi's rule that any fact that increases the maximum penalty must be treated as an element of the crime is not required by the Constitution, by history, or by our prior cases. See 530 U. S., at 524-552. Indeed, the rule directly contradicts several of our prior cases. See id., at 531-539 (explaining that the rule conflicts with Patterson v. New York, 432 U. S. 197 (1977), Almendarez-Torres v. United States, 523 U. S. 224 (1998), and Walton, supra). And it ignores the "significant history in this country of ... discretionary sentencing by judges." 530 U. S., at 544 (O'Connor, J., dissenting). The Court has failed, both in Apprendi and in the decision announced today, to "offer any meaningful justification for deviating from years of cases both suggesting and holding that application of the `increase in the maximum penalty' rule is not required by the Constitution." Id., at 539.


[120] Not only was the decision in Apprendi unjustified in my view, but it has also had a severely destabilizing effect on our criminal justice system. I predicted in my dissent that the decision would "unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part on the authority of [Apprendi]." Id., at 551. As of May 31, 2002, less than two years after Apprendi was announced, the United States Courts of Appeals had decided approximately 1,802 criminal appeals in which defendants challenged their sentences, and in some cases even their convictions, under Apprendi.*fn8 These federal appeals are likely only the tip of the iceberg, as federal criminal prosecutions represent a tiny fraction of the total number of criminal prosecutions nationwide. See ibid. (O'Connor, J., dissenting) ("In 1998 ... federal criminal prosecutions represented only about 0.4% of the total number of criminal prosecutions in federal and state courts"). The number of second or successive habeas corpus petitions filed in the federal courts also increased by 77% in 2001, a phenomenon the Administrative Office of the United States Courts attributes to prisoners bringing Apprendi claims. Administrative Office of the U. S. Courts, 2001 Judicial Business 17. This Court has been similarly overwhelmed by the aftershocks of Apprendi. A survey of the petitions for certiorari we received in the past year indicates that 18% raised Apprendi-related claims.*fn9 It is simply beyond dispute that Apprendi threw countless criminal sentences into doubt and thereby caused an enormous increase in the workload of an already overburdened judiciary.


[121] The decision today is only going to add to these already serious effects. The Court effectively declares five States' capital sentencing schemes unconstitutional. See ante, at 21, n. 5 (identifying Colorado, Idaho, Montana, and Nebraska as having sentencing schemes like Arizona's). There are 168 prisoners on death row in these States, Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc., Death Row U. S. A. (Spring 2002), each of whom is now likely to challenge his or her death sentence. I believe many of these challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless error or plain error review, or because, having completed their direct appeals, they will be barred from taking advantage of today's holding on federal collateral review. See 28 U. S. C. §§2244(b)(2)(A), 2254(d)(1); Teague v. Lane, 489 U. S. 288 (1989). Nonetheless, the need to evaluate these claims will greatly burden the courts in these five States. In addition, I fear that the prisoners on death row in Alabama, Delaware, Florida, and Indiana, which the Court identifies as having hybrid sentencing schemes in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determination, see ante, at 21, n. 6, may also seize on today's decision to challenge their sentences. There are 529 prisoners on death row in these States. Criminal Justice Project, supra.


[122] By expanding on Apprendi, the Court today exacerbates the harm done in that case. Consistent with my dissent, I would overrule Apprendi rather than Walton.



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Opinion Footnotes

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[123] *fn1 The aggravating circumstances, enumerated in Ariz. Rev. Stat. Ann. §13-703(G) (West Supp. 2001), are: "1. The defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable. "2. The defendant was previously convicted of a serious offense, whether prepatory or completed. "3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense. "4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value. "5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value. "6. The defendant committed the offense in an especially heinous, cruel or depraved manner. "7. The defendant committed the offense while in the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail. "8. The defendant has been convicted of one or more other homicides, as defined in §13-1101, which were committed during the commission of the offense. "9. The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under fifteen years of age or was seventy years of age or older. "10. The murdered person was an on duty peace officer who was killed in the course of performing his official duties and the defendant knew, or should have known, that the murdered person was a peace officer."


[124] *fn2 The statute enumerates certain mitigating circumstances, but the enumeration is not exclusive. "The court shall consider as mitigating circumstances any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence less than death ... ." §13-703(H).


[125] *fn3 "In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury ... ."


[126] *fn4 Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United States, 523 U. S. 224 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. He makes no Sixth Amendment claim with respect to mitigating circumstances. See Apprendi v. New Jersey, 530 U. S. 466, 490-491, n. 16 (2000) (noting "the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation" (citation omitted)). Nor does he argue that the Sixth Amendment required the jury to make the ultimate determination whether to impose the death penalty. See Proffitt v. Florida, 428 U. S. 242, 252 (1976) (plurality opinion) ("[I]t has never [been] suggested that jury sentencing is constitutionally required."). He does not question the Arizona Supreme Court's authority to reweigh the aggravating and mitigating circumstances after that court struck one aggravator. See Clemons v. Mississippi, 494 U. S. 738, 745 (1990). Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U. S., at 477, n. 3 (Fourteenth Amendment "has not ... been construed to include the Fifth Amendment right to `presentment or indictment of a Grand Jury' ").


[127] *fn5 In Harris v. United States, ante, p. __, a majority of the Court concludes that the distinction between elements and sentencing factors continues to be meaningful as to facts increasing the minimum sentence. See ante, at 20 (plurality opinion) ("The factual finding in Apprendi extended the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury. [A] finding [that triggers a mandatory minimum sentence] restrain[s] the judge's power, limiting his or her choices within the authorized range. It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be."); ante, at 1 (Breyer, J., concurring in part and concurring in judgment) ("[T]he Sixth Amendment permits judges to apply sentencing factors -- whether those factors lead to a sentence beyond the statutory maximum (as in Apprendi) or the application of a mandatory minimum (as here).") .


[128] *fn6 Of the 38 States with capital punishment, 29 generally commit sentencing decisions to juries. See Ark. Code Ann. §5-4-602 (1993); Cal. Penal Code Ann. §190.3 (West 1999); Conn. Gen. Stat. §53a-46a (2001); Ga. Code Ann. §17-10-31.1 (Supp. 1996); Ill. Comp. Stat. Ann., ch. 720, §5/9-1(d) (West 1993); Kan. Stat. Ann. §21-4624(b) (1995); Ky. Rev. Stat. Ann. §532.025(1)(b) (1993); La. Code Crim. Proc. Ann., Art. §905.1 (West 1997); Md. Ann. Code, Art. 27, §413(b) (1996); Miss. Code Ann. §99-19-101 (1973-2000); Mo. Rev. Stat. §§565.030, 565.032 (1999 and Supp. 2002); Nev. Rev. Stat. Ann. §175.552 (Michie 2001); N. H. Rev. Stat. Ann. §630:5 (II) (1996); N. J. Stat. Ann. §2C:11-3(c) (Supp. 2001); N. M. Stat. Ann. §31-20A-1 (2000); N. Y. Crim. Proc. Law §400.27 (McKinney Supp. 2001-2002); N. C. Gen. Stat. §15A-2000 (1999); Ohio Rev. Code Ann. §2929.03 (West 1997); Okla. Stat., Tit. 21, §701.10(A) (Supp. 2001); Ore. Rev. Stat. Ann. §163.150 (1997); 42 Pa. Cons. Stat. §9711 (Supp. 2001); S. C. Code Ann. §16-3-20(B) (1985); S. D. Codified Laws §23A-27A-2 (1998); Tenn. Code Ann. §39-13-204 (Supp. 2000); Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 2001); Utah Code Ann. §76-3-207 (Supp. 2001); Va. Code Ann. §19.2-264.3 (2000); Wash. Rev. Code §10.95.050 (1990); Wyo. Stat. Ann. §6-2-102 (2001). Other than Arizona, only four States commit both capital sentencing factfinding and the ultimate sentencing decision entirely to judges. See Colo. Rev. Stat. §16-11-103 (2001) (three-judge panel); Idaho Code §19-2515 (Supp. 2001); Mont. Code Ann. §46-18-301 (1997); Neb. Rev. Stat. §29-2520 (1995). Four States have hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations. See Ala. Code §§13A-5-46, 13A-5-47 (1994); Del. Code Ann., Tit. 11, §4209 (1995); Fla. Stat. Ann. §921.141 (West 2001); Ind. Code Ann. §35-50-2-9 (Supp. 2001).


[129] *fn7 We do not reach the State's assertion that any error was harmless because a pecuniary gain finding was implicit in the jury's guilty verdict. See Neder v. United States, 527 U. S. 1, 25 (1999) (this Court ordinarily leaves it to lower courts to pass on the harmlessness of error in the first instance).


[130] *fn8 This data was obtained from a Westlaw search conducted May 31, 2002, in the United States Courts of Appeals database using the following search terms: " `Apprendi v. New Jersey' & Title[`U.S.' or `United States']."


[131] *fn9 Specific counts are on file with the Clerk of the Court.

Atkins v. Virginia, 122 S.Ct. 2242, 153 L.Ed.2d 335 (U.S. 06/20/2002)

[1] United States Supreme Court


[2] No. 00-8452


[3] 122 S.Ct. 2242, 153 L.Ed.2d 335, 2002.SCT, 70 USLW 4585, 2 Cal. Daily Op. Serv. 5439


[4] June 20, 2002


[5] DARYL RENARD ATKINS, PETITIONER
v.
VIRGINIA


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2001


[8] Argued February 20, 2002


[9] Petitioner Atkins was convicted of capital murder and related crimes by a Virginia jury and sentenced to death. Affirming, the Virginia Supreme Court relied on Penry v. Lynaugh, 492 U. S. 302, in rejecting Atkins' contention that he could not be sentenced to death because he is mentally retarded.


[10] Held: Executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Pp. 5-17.


[11] (a) A punishment is "excessive," and therefore prohibited by the Amendment, if it is not graduated and proportioned to the offense. E.g., Weems v. United States, 217 U. S. 349, 367. An excessiveness claim is judged by currently prevailing standards of decency. Trop v. Dulles, 356 U. S. 86, 100-101. Proportionality review under such evolving standards should be informed by objective factors to the maximum possible extent, see, e.g., Harmelin v. Michigan, 501 U. S. 957, 1000, the clearest and most reliable of which is the legislation enacted by the country's legislatures, Penry, 492 U. S., at 331. In addition to objective evidence, the Constitution contemplates that this Court will bring its own judgment to bear by asking whether there is reason to agree or disagree with the judgment reached by the citizenry and its legislators, e.g., Coker v. Georgia, 433 U. S. 584, 597. Pp. 5-8.


[12] (b) Much has changed since Penry's conclusion that the two state statutes then existing that prohibited such executions, even when added to the 14 States that had rejected capital punishment completely, did not provide sufficient evidence of a consensus. 492 U. S., at 334. Subsequently, a significant number of States have concluded that death is not a suitable punishment for a mentally retarded criminal, and similar bills have passed at least one house in other States. It is not so much the number of these States that is significant, but the consistency of the direction of change. Given that anticrime legislation is far more popular than legislation protecting violent criminals, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of legislation reinstating such executions) provides powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures addressing the issue have voted overwhelmingly in favor of the prohibition. Moreover, even in States allowing the execution of mentally retarded offenders, the practice is uncommon. Pp. 8-12.


[13] (c) An independent evaluation of the issue reveals no reason for the Court to disagree with the legislative consensus. Clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others' reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability. In light of these deficiencies, the Court's death penalty jurisprudence provides two reasons to agree with the legislative consensus. First, there is a serious question whether either justification underpinning the death penalty -- retribution and deterrence of capital crimes -- applies to mentally retarded offenders. As to retribution, the severity of the appropriate punishment necessarily depends on the offender's culpability. If the culpability of the average murderer is insufficient to justify imposition of death, see Godfrey v. Georgia, 446 U. S. 420, 433, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. As to deterrence, the same cognitive and behavioral impairments that make mentally retarded defendants less morally culpable also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the death penalty's deterrent effect with respect to offenders who are not mentally retarded. Second, mentally retarded defendants in the aggregate face a special risk of wrongful execution because of the possibility that they will unwittingly confess to crimes they did not commit, their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanor may create an unwarranted impression of lack of remorse for their crimes. Pp. 12-17.


[14] 260 Va. 375, 534 S. E. 2d 312, reversed and remanded.


[15] Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.


[16] On Writ Of Certiorari To The Supreme Court Of Virginia Court Below: 260 Va. 375, 534 S. E. 2d 312


[17] James W. Ellis argued the cause for petitioner. With him on the briefs were Robert E. Lee, by appointment of the Court, 534 U. S. ___, Mark E. Olive, and Charles E. Haden.


[18] Pamela A. Rumpz, Assistant Attorney General of Virginia, argued the cause for respondent. With her on the brief was Randolph A. Beales, Attorney General.


[19] Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, and J. Clayton Crenshaw, Henry M. Johnson, James R. Houts, A. Vernon Barnett IV, Michael B. Billingsley, and David R. Clark, Assistant Attorneys General, Michael C. Moore, Attorney General of Mississippi, Frankie Sue Del Papa, Attorney General of Nevada, Charles M. Condon, Attorney General of South Carolina, and Mark L. Shurtleff, Attorney General of Utah; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.


[20] [REPORTER'S NOTE: On December 3, 2001, 534 U. S. 1053, the Court granted the motion of amici curiae filers in McCarver v. North Carolina, No. 00-8727, cert. dism'd, 533 U. S. 975, to have their amici curiae briefs considered in support of petitioner in this case. Such briefs were filed for the American Association on Mental retardation et al. by James W. Ellis, April Land, Christian G. Fritz, Michael B. Browde, and Stanley S. Herr; for the American Bar Association by Martha W. Barnett and David M. Gossett; for the American Civil Liberties Union et al. by Larry W. Yackle, Bryan A. Stevenson, Steven R. Shapiro, and Diann Y. Rust-Tierney; for the American Psychological Association et al. by Paul M. Smith, William M. Hohengarten, Nathalie F. P. Gilfoyle, James L. McHugh, and Richard G. Taranto; for the European Union by Richard J. Wilson; for the United States Catholic Conference et al. by Mark E. Chopko, Jeffrey Hunter Moon, and Michael R. Moses; and for Morton Abramowitz et al. by Harold Hongju Koh and Stanley S. Herr.]


[21] The opinion of the court was delivered by: Justice Stevens


[22] Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.


[23] I.


[24] Petitioner, Daryl Renard Atkins, was convicted of abduction, armed robbery, and capital murder, and sentenced to death. At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.


[25] Jones and Atkins both testified in the guilt phase of Atkins' trial.*fn1 Each confirmed most of the details in the other's account of the incident, with the important exception that each stated that the other had actually shot and killed Nesbitt. Jones' testimony, which was both more coherent and credible than Atkins', was obviously credited by the jury and was sufficient to establish Atkins' guilt.*fn2 At the penalty phase of the trial, the State introduced victim impact evidence and proved two aggravating circumstances: future dangerousness and "vileness of the offense." To prove future dangerousness, the State relied on Atkins' prior felony convictions as well as the testimony of four victims of earlier robberies and assaults. To prove the second aggravator, the prosecution relied upon the trial record, including pictures of the deceased's body and the autopsy report.


[26] In the penalty phase, the defense relied on one witness, Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins before trial and concluded that he was "mildly mentally retarded."*fn3 His conclusion was based on interviews with people who knew Atkins,*fn4 a review of school and court records, and the administration of a standard intelligence test which indicated that Atkins had a full scale IQ of 59.*fn5


[27] The jury sentenced Atkins to death, but the Virginia Supreme Court ordered a second sentencing hearing because the trial court had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 (1999). At the resentencing, Dr. Nelson again testified. The State presented an expert rebuttal witness, Dr. Stanton Samenow, who expressed the opinion that Atkins was not mentally retarded, but rather was of "average intelligence, at least," and diagnosable as having antisocial personality disorder.*fn6 App. 476. The jury again sentenced Atkins to death.


[28] The Supreme Court of Virginia affirmed the imposition of the death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). Atkins did not argue before the Virginia Supreme Court that his sentence was disproportionate to penalties imposed for similar crimes in Virginia, but he did contend "that he is mentally retarded and thus cannot be sentenced to death." Id., at 386, 534 S. E. 2d, at 318. The majority of the state court rejected this contention, relying on our holding in Penry. 260 Va., at 387, 534 S. E. 2d, at 319. The Court was "not willing to commute Atkins' sentence of death to life imprisonment merely because of his IQ score." Id., at 390, 534 S. E. 2d, at 321.


[29] Justice Hassell and Justice Koontz dissented. They rejected Dr. Samenow's opinion that Atkins possesses average intelligence as "incredulous as a matter of law," and concluded that "the imposition of the sentence of death upon a criminal defendant who has the mental age of a child between the ages of 9 and 12 is excessive." Id., at 394, 395-396, 534 S. E. 2d, at 323-324. In their opinion, "it is indefensible to conclude that individuals who are mentally retarded are not to some degree less culpable for their criminal acts. By definition, such individuals have substantial limitations not shared by the general population. A moral and civilized society diminishes itself if its system of justice does not afford recognition and consideration of those limitations in a meaningful way." Id., at 397, 534 S. E. 2d, at 325.


[30] Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed in the Penry case. 533 U. S. 976 (2001).


[31] II.


[32] The Eighth Amendment succinctly prohibits "excessive" sanctions. It provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Weems v. United States, 217 U. S. 349 (1910), we held that a punishment of 12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive. We explained "that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense." Id., at 367. We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment. See Harmelin v. Michigan, 501 U. S. 957, 997-998 (1991) (Kennedy, J., concurring in part and concurring in judgment); see also id., at 1009-1011 (White, J., dissenting).*fn7 Thus, even though "imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual," it may not be imposed as a penalty for "the `status' of narcotic addiction," Robinson v. California, 370 U. S. 660, 666-667 (1962), because such a sanction would be excessive. As Justice Stewart explained in Robinson: "Even one day in prison would be a cruel and unusual punishment for the `crime' of having a common cold." Id., at 667.


[33] A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the "Bloody Assizes" or when the Bill of Rights was adopted, but rather by those that currently prevail. As Chief Justice Warren explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958): "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. ... The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Id., at 100-101.


[34] Proportionality review under those evolving standards should be informed by " `objective factors to the maximum possible extent,' " see Harmelin, 501 U. S., at 1000 (quoting Rummel v. Estelle, 445 U. S 263, 274-275 (1980)). We have pinpointed that the "clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures." Penry, 492 U. S., at 331. Relying in part on such legislative evidence, we have held that death is an impermissibly excessive punishment for the rape of an adult woman, Coker v. Georgia, 433 U. S. 584, 593-596 (1977), or for a defendant who neither took life, attempted to take life, nor intended to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982). In Coker, we focused primarily on the then-recent legislation that had been enacted in response to our decision 10 years earlier in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to support the conclusion that the "current judgment," though "not wholly unanimous," weighed very heavily on the side of rejecting capital punishment as a "suitable penalty for raping an adult woman." Coker, 433 U. S., at 596. The "current legislative judgment" relevant to our decision in Enmund was less clear than in Coker but "nevertheless weigh[ed] on the side of rejecting capital punishment for the crime at issue." Enmund, 458 U. S., at 793.


[35] We also acknowledged in Coker that the objective evidence, though of great importance, did not "wholly determine" the controversy, "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 597. For example, in Enmund, we concluded by expressing our own judgment about the issue:


[36] "For purposes of imposing the death penalty, Enmund's criminal culpability must be limited to his participation in the robbery, and his punishment must be tailored to his personal responsibility and moral guilt. Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts. This is the judgment of most of the legislatures that have recently addressed the matter, and we have no reason to disagree with that judgment for purposes of construing and applying the Eighth Amendment." 458 U. S., at 801 (emphasis added).


[37] Thus, in cases involving a consensus, our own judgment is "brought to bear," Coker, 433 U. S., at 597, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.


[38] Guided by our approach in these cases, we shall first review the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded and then consider reasons for agreeing or disagreeing with their judgment.


[39] III.


[40] The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia*fn8 apparently led to the enactment of the first state statute prohibiting such executions.*fn9 In 1988, when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a "sentence of death shall not be carried out upon a person who is mentally retarded."*fn10 In 1989, Maryland enacted a similar prohibition.*fn11 It was in that year that we decided Penry, and concluded that those two state enactments, "even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus." 492 U. S., at 334.


[41] Much has changed since then. Responding to the national attention received by the Bowden execution and our decision in Penry, state legislatures across the country began to address the issue. In 1990 Kentucky and Tennessee enacted statutes similar to those in Georgia and Maryland, as did New Mexico in 1991, and Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and 1994.*fn12 In 1995, when New York reinstated its death penalty, it emulated the Federal Government by expressly exempting the mentally retarded.*fn13 Nebraska followed suit in 1998.*fn14 There appear to have been no similar enactments during the next two years, but in 2000 and 2001 six more States -- South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina -- joined the procession.*fn15 The Texas Legislature unanimously adopted a similar bill,*fn16 and bills have passed at least one house in other States, including Virginia and Nevada.*fn17


[42] It is not so much the number of these States that is significant, but the consistency of the direction of change.*fn18 Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. The evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition.*fn19 Moreover, even in those States that allow the execution of mentally retarded offenders, the practice is uncommon. Some States, for example New Hampshire and New Jersey, continue to authorize executions, but none have been carried out in decades. Thus there is little need to pursue legislation barring the execution of the mentally retarded in those States. And it appears that even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since we decided Penry.*fn20 The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.*fn21


[43] To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." 477 U. S. 399, 405, 416-417 (1986).*fn22


[44] IV.


[45] This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.


[46] As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.*fn23 There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.*fn24 Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.


[47] In light of these deficiencies, our death penalty jurisprudence provides two reasons consistent with the legislative consensus that the mentally retarded should be categorically excluded from execution. First, there is a serious question as to whether either justification that we have recognized as a basis for the death penalty applies to mentally retarded offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976), identified "retribution and deterrence of capital crimes by prospective offenders" as the social purposes served by the death penalty. Unless the imposition of the death penalty on a mentally retarded person "measurably contributes to one or both of these goals, it `is nothing more than the purposeless and needless imposition of pain and suffering,' and hence an unconstitutional punishment." Enmund, 458 U. S., at 798.


[48] With respect to retribution -- the interest in seeing that the offender gets his "just deserts" -- the severity of the appropriate punishment necessarily depends on the culpability of the offender. Since Gregg, our jurisprudence has consistently confined the imposition of the death penalty to a narrow category of the most serious crimes. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980), we set aside a death sentence because the petitioner's crimes did not reflect "a consciousness materially more `depraved' than that of any person guilty of murder." Id., at 433. If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.


[49] With respect to deterrence -- the interest in preventing capital crimes by prospective offenders -- "it seems likely that `capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation,' " Enmund, 458 U. S., at 799. Exempting the mentally retarded from that punishment will not affect the "cold calculus that precedes the decision" of other potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders. The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable -- for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses -- that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence.


[50] The reduced capacity of mentally retarded offenders provides a second justification for a categorical rule making such offenders ineligible for the death penalty. The risk "that the death penalty will be imposed in spite of factors which may call for a less severe penalty," Lockett v. Ohio, 438 U. S. 586, 605 (1978), is enhanced, not only by the possibility of false confessions,*fn25 but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. As Penry demonstrated, moreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. 492 U. S., at 323-325. Mentally retarded defendants in the aggregate face a special risk of wrongful execution.


[51] Our independent evaluation of the issue reveals no reason to disagree with the judgment of "the legislatures that have recently addressed the matter" and concluded that death is not a suitable punishment for a mentally retarded criminal. We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our "evolving standards of decency," we therefore conclude that such punishment is excessive and that the Constitution "places a substantive restriction on the State's power to take the life" of a mentally retarded offender. Ford, 477 U. S., at 405.


[52] The judgment of the Virginia Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.


[53] It is so ordered.


[54] Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, dissenting.


[55] The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime. See ante, at 9-10.


[56] I agree with Justice Scalia, post, at 1 (dissenting opinion), that the Court's assessment of the current legislative judgment regarding the execution of defendants like petitioner more resembles a post hoc rationalization for the majority's subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency. I write separately, however, to call attention to the defects in the Court's decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. See ante, at 11-12, n. 21. The Court's suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any "permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved." Stanford v. Kentucky, 492 U. S. 361, 377 (1989) (plurality opinion). The Court's uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.


[57] In making determinations about whether a punishment is "cruel and unusual" under the evolving standards of decency embraced by the Eighth Amendment, we have emphasized that legislation is the "clearest and most reliable objective evidence of contemporary values." Penry v. Lynaugh, 492 U. S. 302, 331 (1989). See also McCleskey v. Kemp, 481 U. S. 279, 300 (1987). The reason we ascribe primacy to legislative enactments follows from the constitutional role legislatures play in expressing policy of a State. " `[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.' " Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissenting)). And because the specifications of punishments are "peculiarly questions of legislative policy," Gore v. United States, 357 U. S. 386, 393 (1958), our cases have cautioned against using " `the aegis of the Cruel and Unusual Punishment Clause' " to cut off the normal democratic processes, Gregg, supra, at 176 (quoting Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion)).


[58] Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, " `is a significant and reliable index of contemporary values,' " Coker v. Georgia, 433 U. S. 584, 596 (1977) (plurality opinion) (quoting Gregg, supra, at 181), because of the jury's intimate involvement in the case and its function of " `maintain[ing] a link between contemporary community values and the penal system,' " Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)). In Coker, supra, at 596-597, for example, we credited data showing that "at least 9 out of 10" juries in Georgia did not impose the death sentence for rape convictions. And in Enmund v. Florida, 458 U. S. 782, 793-794 (1982), where evidence of the current legislative judgment was not as "compelling" as that in Coker (but more so than that here), we were persuaded by "overwhelming [evidence] that American juries . . . repudiated imposition of the death penalty" for a defendant who neither took life nor attempted or intended to take life.


[59] In my view, these two sources -- the work product of legislatures and sentencing jury determinations -- ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the Eighth Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments.


[60] In reaching its conclusion today, the Court does not take notice of the fact that neither petitioner nor his amici have adduced any comprehensive statistics that would conclusively prove (or disprove) whether juries routinely consider death a disproportionate punishment for mentally retarded offenders like petitioner.*fn26 Instead, it adverts to the fact that other countries have disapproved imposition of the death penalty for crimes committed by mentally retarded offenders, see ante, at 11-12, n. 21 (citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 2). I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination. While it is true that some of our prior opinions have looked to "the climate of international opinion," Coker, supra, at 596, n. 10, to reinforce a conclusion regarding evolving standards of decency, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality opinion); Enmund, supra, at 796-797, n. 22 (1982); Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (plurality opinion); we have since explicitly rejected the idea that the sentencing practices of other countries could "serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people." Stanford, supra, at 369, n. 1 (emphasizing that "American conceptions of decency ... are dispositive") (emphasis in original).


[61] Stanford's reasoning makes perfectly good sense, and the Court offers no basis to question it. For if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant. And nothing in Thompson, Enmund, Coker, or Trop suggests otherwise. Thompson, Enmund, and Coker rely only on the bare citation of international laws by the Trop plurality as authority to deem other countries' sentencing choices germane. But the Trop plurality --representing the view of only a minority of the Court -- offered no explanation for its own citation, and there is no reason to resurrect this view given our sound rejection of the argument in Stanford.


[62] To further buttress its appraisal of contemporary societal values, the Court marshals public opinion poll results and evidence that several professional organizations and religious groups have adopted official positions opposing the imposition of the death penalty upon mentally retarded offenders. See ante, at 11-12, n. 21 (citing Brief for American Psychological Association et al. as Amici Curiae; Brief for American Association on Mental Retardation et al. as Amici Curiae; noting that "representatives of widely diverse religious communities . . . reflecting Christian, Jewish, Muslim, and Buddhist traditions ... `share a conviction that the execution of persons with mental retardation cannot be morally justified' "; and stating that "polling data shows a widespread consensus among Americans ... that executing the mentally retarded is wrong"). In my view, none should be accorded any weight on the Eight Amendment scale when the elected representatives of a State's populace have not deemed them persuasive enough to prompt legislative action. In Penry, 492 U. S., at 334-335, we were cited similar data and declined to take them into consideration where the "public sentiment expressed in [them]" had yet to find expression in state law. See also Stanford, 492 U. S., at 377 (plurality opinion) (refusing "the invitation to rest constitutional law upon such uncertain foundations" as "public opinion polls, the views of interest groups, and the positions adopted by various professional organizations"). For the Court to rely on such data today serves only to illustrate its willingness to proscribe by judicial fiat -- at the behest of private organizations speaking only for themselves -- a punishment about which no across-the-board consensus has developed through the workings of normal democratic processes in the laboratories of the States.


[63] Even if I were to accept the legitimacy of the Court's decision to reach beyond the product of legislatures and practices of sentencing juries to discern a national standard of decency, I would take issue with the blind-faith credence it accords the opinion polls brought to our attention. An extensive body of social science literature describes how methodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results. See, e.g., R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984).


[64] The Federal Judicial Center's Reference Manual on Scientific Evidence 221-271 (1994) and its Manual for Complex Litigation §21.493 pp. 101-103 (3d ed. 1995), offer helpful suggestions to judges called upon to assess the weight and admissibility of survey evidence on a factual issue before a court. Looking at the polling data (reproduced in the Appendix to this opinion) in light of these factors, one cannot help but observe how unlikely it is that the data could support a valid inference about the question presented by this case. For example, the questions reported to have been asked in the various polls do not appear designed to gauge whether the respondents might find the death penalty an acceptable punishment for mentally retarded offenders in rare cases. Most are categorical (e.g., "Do you think that persons convicted of murder who are mentally retarded should or should not receive the death penalty?"), and, as such, would not elicit whether the respondent might agree or disagree that all mentally retarded people by definition can never act with the level of culpability associated with the death penalty, regardless of the severity of their impairment or the individual circumstances of their crime. Second, none of the 27 polls cited disclose the targeted survey population or the sampling techniques used by those who conducted the research. Thus, even if one accepts that the survey instruments were adequately designed to address a relevant question, it is impossible to know whether the sample was representative enough or the methodology sufficiently sound to tell us anything about the opinions of the citizens of a particular State or the American public at large. Finally, the information provided to us does not indicate why a particular survey was conducted or, in a few cases, by whom, factors which also can bear on the objectivity of the results. In order to be credited here, such surveys should be offered as evidence at trial, where their sponsors can be examined and cross-examined about these matters.


[65] There are strong reasons for limiting our inquiry into what constitutes an evolving standard of decency under the Eighth Amendment to the laws passed by legislatures and the practices of sentencing juries in America. Here, the Court goes beyond these well-established objective indicators of contemporary values. It finds "further support to [its] conclusion" that a national consensus has developed against imposing the death penalty on all mentally retarded defendants in international opinion, the views of professional and religious organizations, and opinion polls not demonstrated to be reliable. Ante, at 11-12, n. 21. Believing this view to be seriously mistaken, I dissent.


[66] [EDITOR'S NOTE: APPENDIX CURRENTLY UNAVAILABLE]


[67] Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting.


[68] Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.


[69] I.


[70] I begin with a brief restatement of facts that are abridged by the Court but important to understanding this case. After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.


[71] The jury convicted Atkins of capital murder. At resentencing (the Virginia Supreme Court affirmed his conviction but remanded for resentencing because the trial court had used an improper verdict form, 257 Va. 160, 179, 510 S. E. 2d 445, 457 (1999)), the jury heard extensive evidence of petitioner's alleged mental retardation. A psychologist testified that petitioner was mildly mentally retarded with an IQ of 59, that he was a "slow learne[r]," App. 444, who showed a "lack of success in pretty much every domain of his life," id., at 442, and that he had an "impaired" capacity to appreciate the criminality of his conduct and to conform his conduct to the law, id., at 453. Petitioner's family members offered additional evidence in support of his mental retardation claim (e.g., that petitioner is a "follower," id., at 421). The State contested the evidence of retardation and presented testimony of a psychologist who found "absolutely no evidence other than the IQ score ... indicating that [petitioner] was in the least bit mentally retarded" and concluded that petitioner was "of average intelligence, at least." Id., at 476.


[72] The jury also heard testimony about petitioner's 16 prior felony convictions for robbery, attempted robbery, abduction, use of a firearm, and maiming. Id., at 491-522. The victims of these offenses provided graphic depictions of petitioner's violent tendencies: He hit one over the head with a beer bottle, id., at 406; he slapped a gun across another victim's face, clubbed her in the head with it, knocked her to the ground, and then helped her up, only to shoot her in the stomach, id., at 411-413. The jury sentenced petitioner to death. The Supreme Court of Virginia affirmed petitioner's sentence. 260 Va. 375, 534 S. E. 2d 312 (2000).


[73] II.


[74] As the foregoing history demonstrates, petitioner's mental retardation was a central issue at sentencing. The jury concluded, however, that his alleged retardation was not a compelling reason to exempt him from the death penalty in light of the brutality of his crime and his long demonstrated propensity for violence. "In upsetting this particularized judgment on the basis of a constitutional absolute," the Court concludes that no one who is even slightly mentally retarded can have sufficient "moral responsibility to be subjected to capital punishment for any crime. As a sociological and moral conclusion that is implausible; and it is doubly implausible as an interpretation of the United States Constitution." Thompson v. Oklahoma, 487 U. S. 815, 863-864 (1988) (Scalia, J., dissenting).


[75] Under our Eighth Amendment jurisprudence, a punishment is "cruel and unusual" if it falls within one of two categories: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," Ford v. Wainwright, 477 U. S. 399, 405 (1986), and modes of punishment that are inconsistent with modern "standards of decency," as evinced by objective indicia, the most important of which is "legislation enacted by the country's legislatures," Penry v. Lynaugh, 492 U. S. 302, 330-331 (1989).


[76] The Court makes no pretense that execution of the mildly mentally retarded would have been considered "cruel and unusual" in 1791. Only the severely or profoundly mentally retarded, commonly known as "idiots," enjoyed any special status under the law at that time. They, like lunatics, suffered a "deficiency in will" rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492 U. S., at 331-332 ("[T]he term `idiot' was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil"); id., at 333 (citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the "profound" or "severe" range of mental retardation under modern standards); 2 A. Fitz-Herbert, Natura Brevium 233B (9th ed. 1794) (originally published 1534) (An idiot is "such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss"). Due to their incompetence, idiots were "excuse[d] from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses." 4 Blackstone 25; see also Penry, supra, at 331. Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from "go[ing] loose, to the terror of the king's subjects." 4 Blackstone 25; see also S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 12-14 (3d ed. 1985); 1 Blackstone 292-296; 1 M. Hale, Pleas of the Crown 33 (1st Am. ed. 1847). Mentally retarded offenders with less severe impairments -- those who were not "idiots" -- suffered criminal prosecution and punishment, including capital punishment. See, e.g., I. Ray, Medical Jurisprudence of Insanity 65, 87-92 (W. Overholser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent "imbecile" -- imbecility being a less severe form of retardation which "differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind"); A. Highmore, Law of Idiocy and Lunacy 200 (1807) ("The great difficulty in all these cases, is to determine where a person shall be said to be so far deprived of his sense and memory as not to have any of his actions imputed to him: or where notwithstanding some defects of this kind he still appears to have so much reason and understanding as will make him accountable for his actions ...").


[77] The Court is left to argue, therefore, that execution of the mildly retarded is inconsistent with the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion) (Warren, C. J.). Before today, our opinions consistently emphasized that Eighth Amendment judgments regarding the existence of social "standards" "should be informed by objective factors to the maximum possible extent" and "should not be, or appear to be, merely the subjective views of individual Justices." Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); see also Stanford, supra, at 369; McCleskey v. Kemp, 481 U. S. 279, 300 (1987); Enmund v. Florida, 458 U. S. 782, 788 (1982). "First" among these objective factors are the "statutes passed by society's elected representatives," Stanford v. Kentucky, 492 U. S. 361, 370 (1989); because it "will rarely if ever be the case that the Members of this Court will have a better sense of the evolution in views of the American people than do their elected representatives," Thompson, supra, at 865 (Scalia, J., dissenting).


[78] The Court pays lipservice to these precedents as it miraculously extracts a "national consensus" forbidding execution of the mentally retarded, ante, at 12, from the fact that 18 States -- less than half (47%) of the 38 States that permit capital punishment (for whom the issue exists) -- have very recently enacted legislation barring execution of the mentally retarded. Even that 47% figure is a distorted one. If one is to say, as the Court does today, that all executions of the mentally retarded are so morally repugnant as to violate our national "standards of decency," surely the "consensus" it points to must be one that has set its righteous face against all such executions. Not 18 States, but only seven -- 18% of death penalty jurisdictions -- have legislation of that scope. Eleven of those that the Court counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation;*fn27 those already on death row, or consigned there before the statute's effective date, or even (in those States using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these States permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded; *fn28 New York permits execution of the mentally retarded who commit murder in a correctional facility. N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001); N. Y. Penal Law §125.27 (McKinney 202).


[79] But let us accept, for the sake of argument, the Court's faulty count. That bare number of States alone -- 18 -- should be enough to convince any reasonable person that no "national consensus" exists. How is it possible that agreement among 47% of the death penalty jurisdictions amounts to "consensus"? Our prior cases have generally required a much higher degree of agreement before finding a punishment cruel and unusual on "evolving standards" grounds. In Coker, supra, at 595-596, we proscribed the death penalty for rape of an adult woman after finding that only one jurisdiction, Georgia, authorized such a punishment. In Enmund, supra, at 789, we invalidated the death penalty for mere participation in a robbery in which an accomplice took a life, a punishment not permitted in 28 of the death penalty States (78%). In Ford, 477 U. S., at 408, we supported the common-law prohibition of execution of the insane with the observation that "[t]his ancestral legacy has not outlived its time," since not a single State authorizes such punishment. In Solem v. Helm, 463 U. S. 277, 300 (1983), we invalidated a life sentence without parole under a recidivist statute by which the criminal "was treated more severely than he would have been in any other State." What the Court calls evidence of "consensus" in the present case (a fudged 47%) more closely resembles evidence that we found inadequate to establish consensus in earlier cases. Tison v. Arizona, 481 U. S. 137, 154, 158 (1987), upheld a state law authorizing capital punishment for major participation in a felony with reckless indifference to life where only 11 of the 37 death penalty States (30%) prohibited such punishment. Stanford, supra, at 372, upheld a state law permitting execution of defendants who committed a capital crime at age 16 where only 15 of the 36 death penalty States (42%) prohibited death for such offenders.


[80] Moreover, a major factor that the Court entirely disregards is that the legislation of all 18 States it relies on is still in its infancy. The oldest of the statutes is only 14 years old; *fn29 five were enacted last year; *fn30 over half were enacted within the past eight years.*fn31 Few, if any, of the States have had sufficient experience with these laws to know whether they are sensible in the long term. It is "myopic to base sweeping constitutional principles upon the narrow experience of [a few] years." Coker, 433 U. S., at 614 (Burger, C. J., dissenting); see also Thompson, 487 U. S., at 854-855 (O'Connor, J., concurring in judgment).


[81] The Court attempts to bolster its embarrassingly feeble evidence of "consensus" with the following: "It is not so much the number of these States that is significant, but the consistency of the direction of change." Ante, at 10 (emphasis added). But in what other direction could we possibly see change? Given that 14 years ago all the death penalty statutes included the mentally retarded, any change (except precipitate undoing of what had just been done) was bound to be in the one direction the Court finds significant enough to overcome the lack of real consensus. That is to say, to be accurate the Court's "consistency-of-the-direction-of-change" point should be recast into the following unimpressive observation: "No State has yet undone its exemption of the mentally retarded, one for as long as 14 whole years." In any event, reliance upon "trends," even those of much longer duration than a mere 14 years, is a perilous basis for constitutional adjudication, as Justice O'Connor eloquently explained in Thompson:


[82] "In 1846, Michigan became the first State to abolish the death penalty ... . In succeeding decades, other American States continued the trend towards abolition ... . Later, and particularly after World War II, there ensued a steady and dramatic decline in executions ... . In the 1950's and 1960's, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968... .


[83] In 1972, when this Court heard arguments on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus ... . We now know that any inference of a societal consensus rejecting the death penalty would have been mistaken. But had this Court then declared the existence of such a consensus, and outlawed capital punishment, legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law, making it difficult to refute and even more difficult to reject." 487 U. S., at 854-855.


[84] Her words demonstrate, of course, not merely the peril of riding a trend, but also the peril of discerning a consensus where there is none.


[85] The Court's thrashing about for evidence of "consensus" includes reliance upon the margins by which state legislatures have enacted bans on execution of the retarded. Ante, at 11. Presumably, in applying our Eighth Amendment "evolving-standards-of-decency" jurisprudence, we will henceforth weigh not only how many States have agreed, but how many States have agreed by how much. Of course if the percentage of legislators voting for the bill is significant, surely the number of people represented by the legislators voting for the bill is also significant: the fact that 49% of the legislators in a State with a population of 60 million voted against the bill should be more impressive than the fact that 90% of the legislators in a state with a population of 2 million voted for it. (By the way, the population of the death penalty States that exclude the mentally retarded is only 44% of the population of all death penalty States. U. S. Census Bureau, Statistical Abstract of the United States 21 (121st ed. 2001).) This is quite absurd. What we have looked for in the past to "evolve" the Eighth Amendment is a consensus of the same sort as the consensus that adopted the Eighth Amendment: a consensus of the sovereign States that form the Union, not a nose count of Americans for and against.


[86] Even less compelling (if possible) is the Court's argument, ante, at 11, that evidence of "national consensus" is to be found in the infrequency with which retarded persons are executed in States that do not bar their execution. To begin with, what the Court takes as true is in fact quite doubtful. It is not at all clear that execution of the mentally retarded is "uncommon," ibid., as even the sources cited by the Court suggest, see ante, at 11, n. 20 (citing D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997) (updated by Death Penalty Informa-tion Center; available at http://www.advocacyone.org/ deathpenalty.html) (June 12, 2002) (showing that 12 States executed 35 allegedly mentally retarded offenders during the period 1984-2000)). See also Bonner & Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000 p. A1 (reporting that 10% of death row inmates are retarded). If, however, execution of the mentally retarded is "uncommon"; and if it is not a sufficient explanation of this that the retarded comprise a tiny fraction of society (1% to 3%), Brief for American Psychological Association et al. as Amici Curiae 7; then surely the explanation is that mental retardation is a constitutionally mandated mitigating factor at sentencing, Penry, 492 U. S., at 328. For that reason, even if there were uniform national sentiment in favor of executing the retarded in appropriate cases, one would still expect execution of the mentally retarded to be "uncommon." To adapt to the present case what the Court itself said in Stanford, 492 U. S., at 374: "[I]t is not only possible, but overwhelmingly probable, that the very considerations which induce [today's majority] to believe that death should never be imposed on [mentally retarded] offenders ... cause prosecutors and juries to believe that it should rarely be imposed."


[87] But the Prize for the Court's Most Feeble Effort to fabricate "national consensus" must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called "world community," and respondents to opinion polls. Ante, at 11-12, n. 21. I agree with the Chief Jus-tice, ante, at 4-8 (dissenting opinion), that the views of professional and religious organizations and the results of opinion polls are irrelevant.*fn32 Equally irrelevant are the practices of the "world community," whose notions of justice are (thankfully) not always those of our people. "We must never forget that it is a Constitution for the United States of America that we are expounding. ... [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." Thompson, 487 U. S., at 868-869, n. 4 (Scalia, J., dissenting).


[88] III.


[89] Beyond the empty talk of a "national consensus," the Court gives us a brief glimpse of what really underlies today's decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. " `[T]he Constitution,' " the Court says, "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.' " Ante, at 7 (quoting Coker, 433 U. S., at 597) (emphasis added). (The unexpressed reason for this unexpressed "contemplation" of the Constitution is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one's breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all. "[I]n the end," it is the feelings and intuition of a majority of the Justices that count -- "the perceptions of decency, or of penology, or of mercy, entertained ... by a majority of the small and unrepresentative segment of our society that sits on this Court." Thompson, supra, at 873 (Scalia, J., dissenting).


[90] The genuinely operative portion of the opinion, then, is the Court's statement of the reasons why it agrees with the contrived consensus it has found, that the "diminished capacities" of the mentally retarded render the death penalty excessive. Ante, at 13-17. The Court's analysis rests on two fundamental assumptions: (1) that the Eighth Amendment prohibits excessive punishments, and (2) that sentencing juries or judges are unable to account properly for the "diminished capacities" of the retarded. The first assumption is wrong, as I explained at length in Harmelin v. Michigan, 501 U. S. 957, 966-990 (1991) (opinion of Scalia, J.). The Eighth Amendment is addressed to always-and-everywhere "cruel" punishments, such as the rack and the thumbscrew. But where the punishment is in itself permissible, "[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling the States from giving effect to altered beliefs and responding to changed social conditions." Id., at 990. The second assumption --inability of judges or juries to take proper account of mental retardation -- is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters:


[91] "[I]t is very difficult to define the indivisible line that divides perfect and partial insanity; but it must rest upon circumstances duly to be weighed and considered both by the judge and jury, lest on the one side there be a kind of inhumanity towards the defects of human nature, or on the other side too great an indulgence given to great crimes ... ." 1 Hale, Pleas of the Crown, at 30.


[92] Proceeding from these faulty assumptions, the Court gives two reasons why the death penalty is an excessive punishment for all mentally retarded offenders. First, the "diminished capacities" of the mentally retarded raise a "serious question" whether their execution contributes to the "social purposes" of the death penalty, viz., retribution and deterrence. Ante, at 13-14. (The Court conveniently ignores a third "social purpose" of the death penalty -- "incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future," Gregg v. Georgia, 428 U. S. 153, 183, n. 28 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). But never mind; its discussion of even the other two does not bear analysis.) Retribution is not advanced, the argument goes, because the mentally retarded are no more culpable than the average murderer, whom we have already held lacks sufficient culpability to warrant the death penalty, see Godfrey v. Georgia, 446 U. S. 420, 433 (1980) (plurality opinion). Ante, at 14-15. Who says so? Is there an established correlation between mental acuity and the ability to conform one's conduct to the law in such a rudimentary matter as murder? Are the mentally retarded really more disposed (and hence more likely) to commit willfully cruel and serious crime than others? In my experience, the opposite is true: being childlike generally suggests innocence rather than brutality.


[93] Assuming, however, that there is a direct connection between diminished intelligence and the inability to refrain from murder, what scientific analysis can possibly show that a mildly retarded individual who commits an exquisite torture-killing is "no more culpable" than the "average" murderer in a holdup-gone-wrong or a domestic dispute? Or a moderately retarded individual who commits a series of 20 exquisite torture-killings? Surely culpability, and deservedness of the most severe retribution, depends not merely (if at all) upon the mental capacity of the criminal (above the level where he is able to distinguish right from wrong) but also upon the depravity of the crime -- which is precisely why this sort of question has traditionally been thought answerable not by a categorical rule of the sort the Court today imposes upon all trials, but rather by the sentencer's weighing of the circumstances (both degree of retardation and depravity of crime) in the particular case. The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society's moral outrage sometimes demands execution of retarded offenders. By what principle of law, science, or logic can the Court pronounce that this is wrong? There is none. Once the Court admits (as it does) that mental retardation does not render the offender morally blameless, ante, at 13-14, there is no basis for saying that the death penalty is never appropriate retribution, no matter how heinous the crime. As long as a mentally retarded offender knows "the difference between right and wrong," ante, at 13, only the sentencer can assess whether his retardation reduces his culpability enough to exempt him from the death penalty for the particular murder in question.


[94] As for the other social purpose of the death penalty that the Court discusses, deterrence: That is not advanced, the Court tells us, because the mentally retarded are "less likely" than their non-retarded counterparts to "process the information of the possibility of execution as a penalty and ... control their conduct based upon that information." Ante, at 15. Of course this leads to the same conclusion discussed earlier --that the mentally retarded (because they are less deterred) are more likely to kill -- which neither I nor the society at large believes. In any event, even the Court does not say that all mentally retarded individuals cannot "process the information of the possibility of execution as a penalty and . . . control their conduct based upon that information"; it merely asserts that they are "less likely" to be able to do so. But surely the deterrent effect of a penalty is adequately vindicated if it successfully deters many, but not all, of the target class. Virginia's death penalty, for example, does not fail of its deterrent effect simply because some criminals are unaware that Virginia has the death penalty. In other words, the supposed fact that some retarded criminals cannot fully appreciate the death penalty has nothing to do with the deterrence rationale, but is simply an echo of the arguments denying a retribution rationale, discussed and rejected above. I am not sure that a murderer is somehow less blameworthy if (though he knew his act was wrong) he did not fully appreciate that he could die for it; but if so, we should treat a mentally retarded murderer the way we treat an offender who may be "less likely" to respond to the death penalty because he was abused as a child. We do not hold him immune from capital punishment, but require his background to be considered by the sentencer as a mitigating factor. Eddings v. Oklahoma, 455 U. S. 104, 113-117 (1982).


[95] The Court throws one last factor into its grab bag of reasons why execution of the retarded is "excessive" in all cases: Mentally retarded offenders "face a special risk of wrongful execution" because they are less able "to make a persuasive showing of mitigation," "to give meaningful assistance to their counsel," and to be effective witnesses. Ante, at 16. "Special risk" is pretty flabby language (even flabbier than "less likely") -- and I suppose a similar "special risk" could be said to exist for just plain stupid people, inarticulate people, even ugly people. If this unsupported claim has any substance to it (which I doubt) it might support a due process claim in all criminal prosecutions of the mentally retarded; but it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual. We have never before held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative.


[96] Today's opinion adds one more to the long list of substantive and procedural requirements impeding imposition of the death penalty imposed under this Court's assumed power to invent a death-is-different jurisprudence. None of those requirements existed when the Eighth Amendment was adopted, and some of them were not even supported by current moral consensus. They include prohibition of the death penalty for "ordinary" murder, Godfrey, 446 U. S., at 433, for rape of an adult woman, Coker, 433 U. S., at 592, and for felony murder absent a showing that the defendant possessed a sufficiently culpable state of mind, Enmund, 458 U. S., at 801; prohibition of the death penalty for any person under the age of 16 at the time of the crime, Thompson, 487 U. S., at 838 (plurality opinion); prohibition of the death penalty as the mandatory punishment for any crime, Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion), Sumner v. Shuman, 483 U. S. 66, 77-78 (1987); a requirement that the sentencer not be given unguided discretion, Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), a requirement that the sentencer be empowered to take into account all mitigating circumstances, Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion), Eddings v. Oklahoma, supra, at 110; and a requirement that the accused receive a judicial evaluation of his claim of insanity before the sentence can be executed, Ford, 477 U. S., at 410-411 (plurality opinion). There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court.


[97] This newest invention promises to be more effective than any of the others in turning the process of capital trial into a game. One need only read the definitions of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association (set forth in the Court's opinion, ante, at 2-3, n. 3) to realize that the symptoms of this condition can readily be feigned. And whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), Jones v. United States, 463 U. S. 354, 370, and n. 20 (1983), the capital defendant who feigns mental retardation risks nothing at all. The mere pendency of the present case has brought us petitions by death row inmates claiming for the first time, after multiple habeas petitions, that they are retarded. See, e.g., Moore v. Texas, 535 U. S. __ (2002) (Scalia, J., dissenting from grant of applications for stay of execution).


[98] Perhaps these practical difficulties will not be experienced by the minority of capital-punishment States that have very recently changed mental retardation from a mitigating factor (to be accepted or rejected by the sentencer) to an absolute immunity. Time will tell -- and the brief time those States have had the new disposition in place (an average of 6.8 years) is surely not enough. But if the practical difficulties do not appear, and if the other States share the Court's perceived moral consensus that all mental retardation renders the death penalty inappropriate for all crimes, then that majority will presumably follow suit. But there is no justification for this Court's pushing them into the experiment -- and turning the experiment into a permanent practice -- on constitutional pretext. Nothing has changed the accuracy of Matthew Hale's endorsement of the common law's traditional method for taking account of guilt-reducing factors, written over three centuries ago:


[99] "[Determination of a person's incapacity] is a matter of great difficulty, partly from the easiness of counterfeiting this disability ... and partly from the variety of the degrees of this infirmity, whereof some are sufficient, and some are insufficient to excuse persons in capital offenses. ...


[100] "Yet the law of England hath afforded the best method of trial, that is possible, of this and all other matters of fact, namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses ... , and by the inspection and direction of the judge." 1 Hale, Pleas of the Crown, at 32-33.


[101] I respectfully dissent.



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Opinion Footnotes

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[102] *fn1 Initially, both Jones and Atkins were indicted for capital murder. The prosecution ultimately permitted Jones to plead guilty to first-degree murder in exchange for his testimony against Atkins. As a result of the plea, Jones became ineligible to receive the death penalty.


[103] *fn2 Highly damaging to the credibility of Atkins' testimony was its substantial inconsistency with the statement he gave to the police upon his arrest. Jones, in contrast, had declined to make an initial statement to the authorities.


[104] *fn3 The American Association of Mental Retardation (AAMR) defines mental retardation as follows: "Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18." Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric Association's definition is similar: "The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). "Mild" mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id., at 42-43.


[105] *fn4 The doctor interviewed Atkins, members of his family, and deputies at the jail where he had been incarcerated for the preceding 18 months. Dr. Nelson also reviewed the statements that Atkins had given to the police and the investigative reports concerning this case.


[106] *fn5 Dr. Nelson administered the Wechsler Adult Intelligence Scales test (WAIS-III), the standard instrument in the United States for assessing intellectual functioning. AAMR, Mental Retardation, supra. The WAIS-III is scored by adding together the number of points earned on different subtests, and using a mathematical formula to convert this raw score into a scaled score. The test measures an intelligence range from 45 to 155. The mean score of the test is 100, which means that a person receiving a score of 100 is considered to have an average level of cognitive functioning. A. Kaufman & E. Lichtenberger, Essentials of WAIS- III Assessment 60 (1999). It is estimated that between 1 and 3 percent of the population has an IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition. 2 B. Sadock & V. Sadock, Comprehensive Textbook of Psychiatry 2952 (7th ed. 2000). At the sentencing phase, Dr. Nelson testified: "[Atkins'] full scale IQ is 59. Compared to the population at large, that means less than one percentile... . Mental retardation is a relatively rare thing. It's about one percent of the population." App. 274. According to Dr. Nelson, Atkins' IQ score "would automatically qualify for Social Security disability income." Id., at 280. Dr. Nelson also indicated that of the over 40 capital defendants that he had evaluated, Atkins was only the second individual who met the criteria for mental retardation. Id., at 310. He testified that, in his opinion, Atkins' limited intellect had been a consistent feature throughout his life, and that his IQ score of 59 is not an "aberration, malingered result, or invalid test score." Id., at 308.


[107] *fn6 Dr. Samenow's testimony was based upon two interviews with Atkins, a review of his school records, and interviews with correctional staff. He did not administer an intelligence test, but did ask Atkins questions taken from the 1972 version of the Wechsler Memory Scale. Id., at 524-525, 529. Dr. Samenow attributed Atkins' "academic performance [that was] by and large terrible" to the fact that he "is a person who chose to pay attention sometimes, not to pay attention others, and did poorly because he did not want to do what he was required to do." Id., at 480-481.


[108] *fn7 Thus, we have read the text of the amendment to prohibit all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.


[109] *fn8 Jerome Bowden, who was identified as having mental retardation when he was 14-years-old, was scheduled for imminent execution in Georgia in June of 1986. The Georgia Board of Pardons and Paroles granted a stay following public protests over his execution. A psychologist selected by the State evaluated Bowden and determined that he had an IQ of 65, which is consistent with mental retardation. Nevertheless, the board lifted the stay and Bowden was executed the following day. The board concluded that Bowden understood the nature of his crime and his punishment and therefore that execution, despite his mental deficiencies, was permissible. See Montgomery, Bowden's Execution Stirs Protest, Atlanta Journal, Oct. 13, 1986, p. A1.


[110] *fn9 Ga. Code Ann. §17-7-131(j) (Supp. 1988).


[111] *fn10 The Anti-Drug Abuse Act of 1988, Pub. L. 100-690, §7001(l), 102 Stat. 4390, 21 U. S. C. §848(l). Congress expanded the federal death penalty law in 1994. It again included a provision that prohibited any individual with mental retardation from being sentenced to death or executed. Federal Death Penalty Act of 1994, 18 U. S. C. §3596(c).


[112] *fn11 Md. Ann. Code, Art. 27, §412(f)(1) (1989).


[113] *fn12 Ky. Rev. Stat. Ann. §§532.130, 532.135, 532.140; Tenn. Code Ann. §39-13-203; N. M. Stat. Ann. §31-20A-2.1; Ark. Code Ann. §5-4-618; Colo. Rev. Stat. Ann. §16-9-401; Wash. Rev. Code §10.95.030; Ind. Code §§35-36-9-2 through 35-36-9-6; Kan. Stat. Ann. §21-4623.


[114] *fn13 N. Y. Crim. Proc. Law §400.27. However, New York law provides that a sentence of death "may not be set aside ... upon the ground that the defendant is mentally retarded" if "the killing occurred while the defendant was confined or under custody in a state correctional facility or local correctional institution." N. Y. Crim. Proc. Law §400.27.12(d) (McKinney 2001-2002 Interim Pocket Part).


[115] *fn14 Neb. Rev. Stat. §28-105.01.


[116] *fn15 S. D. Codified Laws §23A-27A-26.1; Ariz. Rev. Stat. Ann. 13-703.02; Conn. Gen. Stat. §53a-46a; Fla. Stat. Ann. §921.137; Mo. Rev. Stat. §565.030; 2001-346 N. C. Sess. Laws p. 45.


[117] *fn16 House Bill No. 236 passed the Texas House on April 24, 2001, and the Senate version, S. 686, passed the Texas Senate on May 16, 2001. Governor Perry vetoed the legislation on June 17, 2001. In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty. In fact, he stated: "We do not execute mentally retarded murderers today." See Veto Proclamation for H. B. No. 236. Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw: "My opposition to this legislation focuses on a serious legal flaw in the bill. House Bill No. 236 would create a system whereby the jury and judge are asked to make the same determination based on two different sets of facts... . Also of grave concern is the fact that the provision that sets up this legally flawed process never received a public hearing during the legislative process." Ibid.


[118] *fn17 Virginia Senate Bill No. 497 (2002); House Bill No. 957 (2002); see also Nevada Assembly Bill 353 (2001). Furthermore, a commission on capital punishment in Illinois has recently recommended that Illinois adopt a statute prohibiting the execution of mentally retarded offenders. Report of the Governor's Commission on Capital Punishment 156 (April 2002).


[119] *fn18 A comparison to Stanford v. Kentucky, 492 U. S. 361 (1989), in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty. Mont. Code Ann. §45-5-102 (1999); Ind. Code §35-50-2-3 (1998).


[120] *fn19 App. D to Brief for AAMR et al. as Amici Curiae.


[121] *fn20 Those States are Alabama, Texas, Louisiana, South Carolina, and Virginia. D. Keyes, W. Edwards, & R. Perske, People with Mental Retardation are Dying Legally, 35 Mental Retardation (Feb. 1997) (updated by Death Penalty Information Center; available at http://www.advocacyone.org/deathpenalty.html) (June 18, 2002).


[122] *fn21 Additional evidence makes it clear that this legislative judgment reflects a much broader social and professional consensus. For example, several organizations with germane expertise have adopted official positions opposing the imposition of the death penalty upon a mentally retarded offender. See Brief for American Psychological Association et al. as Amici Curiae; Brief for AAMR et al. as Amici Curiae. In addition, representatives of widely diverse religious communities in the United States, reflecting Christian, Jewish, Muslim, and Buddhist traditions, have filed an amicus curiae brief explaining that even though their views about the death penalty differ, they all "share a conviction that the execution of persons with mental retardation cannot be morally justified." See Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 4. Finally, polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong. R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1; App. B to Brief for AAMR as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727 (appending approximately 20 state and national polls on the issue). Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue. See Thompson v. Oklahoma, 487 U. S. 815, 830, 831, n. 31 (1988) (considering the views of "respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community").


[123] *fn22 The statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions set forth in n. 3, supra.


[124] *fn23 J. McGee & F. Menolascino, The Evaluation of Defendants with Mental Retardation in the Criminal Justice System, in The Criminal Justice System and Mental Retardation 55, 58-60 (R. Conley, R. Luckasson, & G. Bouthilet eds. 1992); Appelbaum & Appelbaum, Criminal-Justice Related Competencies in Defendants with Mental Retardation, 14 J. of Psychiatry & L. 483, 487-489 (Winter 1994).


[125] *fn24 See, e.g., Ellis & Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 429 (1985); Levy-Shiff, Kedem, & Sevillia, Ego Identity in Mentally Retarded Adolescents, 94 Am. J. Mental Retardation 541, 547 (1990); Whitman, Self Regulation and Mental Retardation, 94 Am. J. Mental Retardation 347, 360 (1990); Everington & Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental Retardation 37 Mental Retardation 212, 212-213, 535 (1999) (hereinafter Everington & Fulero).


[126] *fn25 See Everington & Fulero 212-213. Despite the heavy burden that the prosecution must shoulder in capital cases, we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit. See Baker, Death-Row Inmate Gets Clemency; Agreement Ends Days of Suspense, Washington Post, Jan. 15, 1994, p. A1; Holt & McRoberts, Porter Fully Savors First Taste of Freedom; Judge Releases Man Once Set for Execution, Chicago Tribune, Feb. 6, 1999, p. N1.


[127] *fn26 Apparently no such statistics exist. See Brief for American Association on Mental Retardation et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 19, n. 29 (noting that "actions by individual prosecutors and by juries are difficult to quantify with precision"). Petitioner's inability to muster studies in his favor ought to cut against him, for it is his "heavy burden," Stanford v. Kentucky, 492 U. S. 361, 373 (1989) (internal quotation marks omitted), to establish a national consensus against a punishment deemed acceptable by the Virginia Legislature and jury who sentenced him. Furthermore, it is worth noting that experts have estimated that as many as 10 percent of death row inmates are mentally retarded, see R. Bonner & S. Rimer, Executing the Mentally Retarded Even as Laws Begin to Shift, N. Y. Times, Aug. 7, 2000, p. A1, a number which suggests that sentencing juries are not as reluctant to impose the death penalty on defendants like petitioner as was the case in Coker v. Georgia, 433 U. S. 584 (1977), and Enmund v. Florida, 458 U. S. 782 (1982).


[128] *fn27 See Ariz. Rev. Stat. Ann. §13-703.02(I) (Supp. 2001); Ark. Code Ann. §5-4-618(d)(1) (1997); Reams v. State, 322 Ark. 336, 340, 909 S. W. 2d 324, 326-327 (1995); Fla. Stat. §921.137(8) (Supp. 2002); Ga. Code Ann. §17-7-131(j) (1997); Ind. Code §35-36-9-6 (1998); Rondon v. State, 711 N. E. 2d 506, 512 (Ind. 1999); Kan. Stat. Ann. §§21-4623(d), 21-4631(c) (1995); Ky. Rev. Stat. Ann. §532.140(3) (1999); Md. Ann. Code, Art. 27, §412(g) (1996); Booth v. State, 327 Md. 142, 166-167, 608 A. 2d 162, 174 (1992); Mo. Rev. Stat. §565.030(7) (Supp. 2001); N. Y. Crim. Proc. Law §400.27.12(c) (McKinney Supp. 2002); 1995 Sess. N. Y. Laws, ch. 1, §38; Tenn. Code Ann. §39-13-203(b) (1997); Van Tran v. State, 66 S. W. 2d 790, 798-799 (Tenn. 2001).


[129] *fn28 The Kansas statute defines "mentally retarded" as "having significantly subaverage general intellectual functioning ... to an extent which substantially impairs one's capacity to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of law." Kan. Stat. Ann. §21-4623(e) (2001). This definition of retardation, petitioner concedes, is analogous to the Model Penal Code's definition of a "mental disease or defect" excusing responsibility for criminal conduct, see ALI, Model Penal Code §4.01 (1985), which would not include mild mental retardation. Reply Brief for petitioner 3, n. 4.


[130] *fn29 Ga. Code Ann. §17-7-131(j).


[131] *fn30 Ariz. Rev. Stat. Ann. §13-703.02; Conn. Gen. Stat. §53a-46a(h); Fla. Stat. Ann. §921.137; Mo. Rev. Stat. §§565.030(4)-(7); N. C. Gen. Stat. §15A-2005.


[132] *fn31 In addition to the statutes cited n. 3 supra, see S. D. Codified Laws §23A-27A-26.1 (enacted 2000); Neb. Rev. Stat. §§28-105.01(2)-(5) (1998); N. Y. Crim. Proc. Law §400.27(12) (1995); Ind. Code §35-36-9-6 (1994); Kan. Stat. Ann. §21-4623 (1994).


[133] *fn32 And in some cases positively counter-indicative. The Court cites, for example, the views of the United States Catholic Conference, whose members are the active Catholic Bishops of the United States. See ante, at 12, n. 21 (citing Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 2). The attitudes of that body regarding crime and punishment are so far from being representative, even of the views of Catholics, that they are currently the object of intense national (and entirely ecumenical) criticism.