source: Caselaw Access Project

author: Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Powell. Mr. Justice White, Mr. Justice Blackmun,

license: Public Domain

text:
    PROFFITT v. FLORIDA
    No. 75-5706.
    Argued March 31, 1976
    Decided July 2, 1976

      Clinton A. Curtis argued the cause for petitioner. With him on the brief was Jack 0. Johnson.

      Robert L. Shevin, Attorney General of Florida, argued the cause for respondent. With him on the brief were A. S. Johnston, George R. Georgieff, and Raymond L. Marky, Assistant Attorneys General.

      Solicitor General Bork argued the cause for the United States as amicus curiae. With him on the brief was Deputy Solicitor General Randolph. William E. James, Assistant Attorney General, argued the cause for the State of California as amicus curiae. With him on the brief were Evelle J. Younger, Attorney General, and Jack R. Winkler, Chief Assistant Attorney General.

        Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and Anthony G. Amsterdam filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.
      Briefs of amici curiae were filed by Rollie R. Rogers and Lee J. Belstock for the Colorado State Public Defender System, and by Arthur M. Michaelson for Amnesty International.

   Judgment of the Court, and opinion of

Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Powell.

The issue presented by this case is whether the imposition of the sentence of death for the crime of murder under the law of Florida violates the Eighth and Fourteenth Amendments.

I

The petitioner, Charles William Proffitt, was tried, found guilty, and sentenced to death for the first-degree murder of Joel Medgebow. The circumstances surrounding the murder were testified to by the decedent’s wife, who was present at the time it was committed. On July 10, 1973, Mrs. Medgebow awakened around 5 a. m. in the bedroom of her apartment to find her husband sitting up in bed, moaning. He was holding what she took to be a ruler. Just then a third person jumped up, hit her several times with his fist, knocked her to the. floor, and ran out of the house. It soon appeared that Medgebow had been fatally stabbed with a butcher knife. Mrs. Medgebow was not able to identify the attacker, although she was able to give a description of him.

The petitioner’s wife testified that on the night before the murder the petitioner had gone to work dressed in a white shirt and gray pants, and that he had returned at about 5:15 a. m. dressed in the same clothing but without shoes. She said that after a short conversation the petitioner had packed his clothes and departed. A young woman boarder, who overheard parts of the petitioner’s conversation with his wife, testified that the petitioner had told his wife that he had stabbed and killed a man with a butcher knife while he was burglarizing a place, and that he had beaten a woman. One of the petitioner’s coworkers testified that they had been drinking together until 3:30 or 3:45 on the morning of the murder and that the petitioner had then driven him home. He said that the petitioner at this time was wearing gray pants and a white shirt.

The jury found the defendant guilty as charged. Subsequently, as provided by Florida law, a separate hearing was held to determine whether the petitioner should be sentenced to death or to life imprisonment. Under the state law that decision turned on whether certain statutory aggravating circumstances surrounding the crime outweighed any statutory mitigating circumstances found to exist. At that hearing it was shown that the petitioner had one prior conviction, a 1967 charge of breaking and entering. The State also introduced the testimony of the physician (Dr, Crumbley) at the jail where the petitioner had been held pending trial. He testified that the petitioner had come to him as a physician, and told him that he was concerned that he would harm other people in the future, that he had had an uncontrollable desire to kill that had already resulted in his killing one man, that this desire was building up again, and that he wanted psychiatric help so he would not kill again. Dr. Crumbley also testified that, in his opinion, the petitioner was dangerous and would be a danger to his fellow inmates if imprisoned, but that his condition could be treated successfully.

The jury returned an advisory verdict recommending the sentence of death. The trial judge ordered an independent psychiatric evaluation of the petitioner, the results of which indicated that the petitioner was not, then or at the time of the murder, mentally impaired. The judge then sentenced the petitioner to death. In his written findings supporting the sentence, the judge found as aggravating circumstances that (1) the murder was premeditated and occurred in the course of a felony (burglary); (2) the petitioner has the propensity to commit murder; (3) the murder was especially heinous, atrocious, and cruel; and (4) the petitioner knowingly, through his intentional act, created a great risk of serious bodily harm and death to many persons. The judge also found specifically that none of the statutory mitigating circumstances existed. The Supreme Court of Florida affirmed. 315 So. 2d 461 (1975). We granted certiorari, 423 U. S. 1082 (1976), to consider whether the imposition of the death sentence in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

II

The petitioner argues that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, ante, at 168-187.

III

A

In response to Furman v. Georgia, 408 U. S. 238 (1972), the Florida Legislature adopted new statutes that authorize the imposition of the death penalty on those convicted of first-degree murder. Fla. Stat. Ann. § 782.04 (1) (Supp. 1976-1977). At the same time Florida adopted a new capital-sentencing procedure, patterned in large part on the Model Penal Code. See § 921.141 (Supp. 1976-1977). Under the new statute, if a defendant is found guilty of a capital offense, a separate evi-dentiary hearing is held before the trial judge and jury to determine his sentence. Evidence may be presented on any matter the judge deems relevant to sentencing and must include matters relating to certain legislatively specified aggravating and mitigating circumstances. Both the prosecution and the defense may present argument on whether the death penalty shall be imposed.

At the conclusion of the hearing the jury is directed to consider “[wjhether sufficient mitigating circumstances exist . . . which outweigh the aggravating circumstances found to exist; and . . . [b]ased on these considerations, whether the defendant should be sentenced to life [imprisonment] or death.” §§ 921.141 (2) (b) and (c) (Supp. 1976-1977). The jury’s verdict is determined by majority vote. It is only advisory; the actual sentence is determined by the trial judge. The Florida Supreme Court has stated, however, that “[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So. 2d 908, 910 (1975). Accord, Thompson v. State, 328 So. 2d 1, 5 (1976). Cf. Spinkellink v. State, 313 So. 2d 666, 671 (1976).

The trial judge is also directed to weigh the statutory aggravating and mitigating circumstances when he determines the sentence to be imposed on a defendant. The statute requires that if the trial court imposes a sentence of death, “it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) [t]hat sufficient [statutory] aggravating circumstances exist . . . and (b) [t]hat there are insufficient [statutory] mitigating circumstances ... to outweigh the aggravating circumstances.” § 921.141 (3) (Supp. 1976-1977).

The statute provides for automatic review by the Supreme Court of Florida of all cases in which a death sentence has been imposed. § 921.141 (4) (Supp. 1976-1977). The law differs from that of Georgia in that it does not require the court to conduct any specific form of review. Since, however, the trial judge must justify the imposition of a death sentence with written findings, meaningful appellate review of each such sentence is made possible, and the Supreme Court of Florida, like its Georgia counterpart, considers its function to be to “[guarantee] that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case. . . . If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.” State v. Dixon, 283 So. 2d 1, 10 (1973).

On their face these procedures, like those used in Georgia, appear to meet the constitutional deficiencies identified in Furman. The sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating factors against seven mitigating factors to determine whether the death penalty shall be imposed. This determination requires the trial judge to focus on the circumstances of the crime and the character of the individual defendant. He must, inter alia, consider whether the defendant has a prior criminal record, whether the defendant acted under duress or under the influence of extreme mental or emotional disturbance, whether the defendant’s role in the crime was that of a minor accomplice, and whether the defendant’s youth argues in favor of a more lenient sentence than might otherwise be imposed. The trial judge must also determine whether the crime was committed in the course of one of several enumerated felonies, whether it was committed for pecuniary gain, whether it was committed to assist in an escape from custody or to prevent a lawful arrest, and whether the crime was especially heinous, atrocious, or cruel. To answer these questions, which are not unlike those considered by a Georgia sentencing jury, see Gregg v. Georgia, ante, at 197, the sentencing judge must focus on the individual circumstances of each homicide and each defendant.

The basic difference between the Florida system and the Georgia system is that in Florida the sentence is determined by the trial judge rather than by the jury. This Court has pointed out that jury sentencing in a capital case can perform an important societal function, Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15 (1968), but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.

The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida's appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida “to determine independently whether the imposition of the ultimate penalty is warranted.” Songer v. State, 322 So. 2d 481, 484 (1975). See also Sullivan v. State, 303 So. 2d 632, 637 (1974). The Supreme Court of Florida, like that of Georgia, has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. Indeed, it has vacated 8 of the 21 death sentences that it has reviewed to date. See Taylor v. State, 294 So. 2d 648 (1974); Lamadline v. State, 303 So. 2d 17 (1974); Slater v. State, 316 So. 2d 539 (1975); Swan v. State, 322 So. 2d 485 (1975); Tedder v. State, 322 So. 2d 908 (1975); Halliwell v. State, 323 So. 2d 557 (1975); Thompson v. State, 328 So. 2d 1 (1976); Messer v. State, 330 So. 2d 137 (1976).

Under Florida's capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is 'no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’ ” Gregg v. Georgia, ante, at 188, quoting Furman v. Georgia, 408 U. S., at 313 (White, J., concurring). On its face the Florida system thus satisfies the constitutional deficiencies identified in Furman.

B

As in Gregg, the petitioner contends, however, that, while perhaps facially acceptable, the new sentencing procedures in actual effect are merely cosmetic, and that arbitrariness and caprice still pervade the system under which Florida imposes the death penalty.

(1)

The petitioner first argues that arbitrariness is inherent in the Florida criminal justice system because it allows discretion to be exercised at each stage of a criminal proceeding — the prosecutor’s decision whether to charge a capital offense in the first place, his decision whether to accept a plea to a lesser offense, the jury’s consideration of lesser included offenses, and, after conviction and unsuccessful appeal, the Executive’s decision whether to commute a death sentence. As we noted in Gregg, this argument is based on a fundamental misinterpretation of Furman, and we reject it for the reasons expressed in Gregg. See ante, at 199.

(2)

The petitioner next argues that the new Florida sentencing procedures in reality do not eliminate the arbitrary infliction of death that was condemned in Furman. Basically he contends that the statutory aggravating and mitigating circumstances are vague and overbroad, and that the statute gives no guidance as to how the mitigating and aggravating circumstances should be weighed in any specific case.

(a)

Initially the petitioner asserts that the enumerated aggravating and mitigating circumstances are so vague and so broad that virtually “any capital defendant becomes a candidate for the death penalty . . . In particular, the petitioner attacks the eighth and third statutory aggravating circumstances, which authorize the death penalty to be imposed if the crime is “especially heinous, atrocious, or cruel,” or if “[t]he defendant knowingly created a great risk of death to many persons.” §§ 921.141 (5)(h), (c) (Supp. 1976-1977). These provisions must be considered as they have been construed by the Supreme Court of Florida.

That court has recognized that while it is arguable “that all killings are atrocious, . . . [s] till, we believe that the Legislature intended something 'especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” Tedder v. State, 322 So. 2d, at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So. 2d, at 9. See also Alford v. State, 307 So. 2d 433, 445 (1975); Halliwell v. State, supra, at 561. We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. See Gregg v. Georgia, ante, at 200-203.

In the only case, except for the instant case, in which the third aggravating factor — “[t]he defendant knowingly created a great risk of death to many persons”— was found, Alvord v. State, 322 So. 2d 533 (1975), the State Supreme Court held that the defendant created a great risk of death because he “obviously murdered two of the victims in order .to avoid a surviving witness to the [first] murder.” Id., at 540. As construed by the Supreme Court of Florida these provisions are not impermissibly vague.

(b)

The petitioner next attacks the imprecision of the mitigating circumstances. He argues that whether a defendant acted “under the influence of extreme mental or emotional disturbance,” whether a defendant’s capacity “to conform his conduct to the requirements of law was substantially impaired,” or whether a defendant’s participation as an accomplice in a capital felony was “relatively minor,” are questions beyond the capacity of a jury or judge to determine. See §§ 921.141 (6)(b), (f), (d) (Supp. 1976-1977).

He also argues that neither a jury nor a judge is capable of deciding how to weigh a defendant’s age or determining whether he had a “significant history of prior criminal activity.” See §§ 921.141 (6) (g)-, (a) (Supp. 1976-1977). In a similar vein the petitioner argues that it is not possible to make a rational determination whether there are “sufficient” aggravating circumstances that are not outweighed by the mitigating circumstances, since the state law assigns no specific weight to any of the various circumstances to be considered. See § 921.141 (Supp. 1976-1977).

While these questions and decisions may be hard, they require no more line drawing than is commonly required of a factfinder in a lawsuit. For example, juries have traditionally evaluated the validity of defenses such as insanity or reduced capacity, both of which involve the same considerations as some of the above-mentioned mitigating circumstances. While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.

The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.

(c)

Finally, the Florida statute has a provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The Supreme Court of Florida reviews each death sentence to ensure that similar results are reached in similar cases.

Nonetheless the petitioner attacks the Florida appellate review process because the role of the Supreme Court of Florida in reviewing death sentences is necessarily subjective and unpredictable. While it may be true that that court has not chosen to formulate a rigid objective test as its standard of review for all cases, it does not follow that the appellate review process is ineffective or arbitrary. In fact, it is apparent that the Florida court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. See, e. g., Alford v. State, 307 So. 2d, at 445; Alvord v. State, 322 So. 2d, at 540-541. By following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute. Cf. Gregg v. Georgia, ante, at 204-206. And any suggestion that the Florida court engages in only cursory or rubber-stamp review of death penalty cases is totally controverted by the fact that it has vacated over one-third of the death sentences that have come before it. See supra, at 253.

IV

Florida, like Georgia, has responded to Furman by enacting legislation that passes constitutional muster. That legislation provides that after a person is convicted of first-degree murder, there shall be an informed, focused, guided, and objective inquiry into the question whether he should be sentenced to death. If a death sentence is imposed, the sentencing authority articulates in writing the statutory reasons that led to its decision. Those reasons, and the evidence supporting them, are conscientiously reviewed by a court which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality in the evenhanded operation of the state law. As in Georgia, this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed. See Furman v. Georgia, 408 U. S., at 310 (Stewart, J., concurring). Accordingly, the judgment before us is affirmed.

It is so ordered.

[For dissenting opinion of Mr. Justice Brennan, see ante, p. 227.]

[For dissenting opinion of Mr. Justice Marshall, see ante, p. 231.]

Mr. Justice White,

with whom The Chief Justice and Mr. Justice Rehnquist join,

concurring in the judgment.

There is no need to repeat the statement of the facts of this case and of the statutory procedure under which the death penalty was imposed, both of which are described in detail in the opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens. I agree with them, see Parts III-B (2) (a) and (b), ante, at 255-258, that although the statutory aggravating and mitigating circumstances are not susceptible of mechanical application, they are by no means so vague and over-broad as to leave the discretion of the sentencing authority unfettered. Under Florida law, the sentencing judge is required to impose the death penalty on all first-degree murderers as to whom the statutory aggravating factors outweigh the mitigating factors. There is good reason to anticipate, then, that as to certain categories of murderers, the penalty will not be imposed freakishly or rarely but will be imposed with regularity; and consequently it cannot be said that the death penalty in Florida as to those categories has ceased “to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.” Furman v. Georgia, 408 U. S. 238, 311 (1972) (White, J., concurring) . Accordingly, the Florida statutory scheme for imposing the death penalty does Pot run afoul of this Court’s holding in Furman v. Georgia.

For the reasons set forth in my opinion concurring in the judgment in Gregg v. Georgia, ante, at 224-225, and my dissenting opinion in Roberts v. Louisiana, post, at 348-350, this conclusion is not undercut by the possibility that some murderers may escape the death penalty solely through exercise of prosecutorial discretion or executive clemency. For the reasons set forth in my dissenting opinion in Roberts v. Louisiana, post, at 350-356, I also reject petitioner’s argument that under the Eighth Amendment the death penalty may never be imposed under any circumstances.

I concur in the judgment of affirmance.

Mr. Justice Blackmun,

concurring in the judgment.

I concur in the judgment. See Furman v. Georgia, 408 U. S. 238, 405-414 (1972) (Blackmun, J., dissenting), and id., at 375, 414, and 465.

       It appears that the “ruler” was actually the murder weapon which Medgebow had pulled from his own chest.

       She described the attacker as wearing light pants and a pinstriped shirt with long sleeves rolled up to the elbow. She also stated that the attacker was a medium-sized white male.

       See infra, at 248-250.

       The murder statute under which petitioner was convicted reads as follows:
      “(1) (a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person 18 years of age or older when such drug is proven to bo the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in s. 775.082.
      “(b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.” Fla. Stat. Ann. §782.04 (Supp. 1976-1977).
      Another Florida statute authorizes imposition of the death penalty upon conviction of sexual battery of a child under 12 years of age. §794.011 (2) (Supp. 1976-1977). We do not in this opinion consider the constitutionality of the death penalty for any offense other than first-degree murder.

       See Model Penal Code §210.6 (Proposed Official Draft, 1962) (set out in Gregg v. Georgia, ante, at 193-194, n. 44).

       The aggravating circumstances are:
      “(a) The capital felony was committed by a person under sentence of imprisonment.
      “(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
      “(c) The defendant knowingly created a great risk of death to many persons.
      “(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.
      “(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. “(f) The capital felony was committed for pecuniary gain.
      “(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
      “(h) The capital felony was especially heinous, atrocious, or cruel.” §921.141 (5) (Supp. 1976-1977).
      The mitigating circumstances are:
      “(a) The defendant has no significant history of prior criminal activity.
      “(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
      “(c) The victim was a participant in the defendant’s conduct or consented to the act.
      “(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
      “(e) The defendant acted under extreme duress or under the substantial domination of another person.
      “(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct, to- the requirements of law was substantially impaired.
      “(g) The age of the defendant at the time of the crime.” § 921.141 (6) (Supp. 1976-1977).

        Tedder has not always been cited when the Florida court has considered a judge-imposed death sentence following a jury recommendation of life imprisonment. See, e. g., Thompson v. State, 328 So. 2d 1 (1976); Douglas v. State, 328 So, 2d 18 (1976); Dobbert v. State, 328 So. 2d 433 (1976). But in the latter case two judges relied on Tedder in separate opinions, one in support of reversing the death sentence and one in support of affirming it.

       In one case the Florida court upheld a death sentence where the trial judge had simply listed six aggravating factors as justification for the sentence he imposed. Sawyer v. State, 313 So. 2d 680 (1975). Since there were no mitigating factors, and since some of these aggravating factors arguably fell within the statutory categories, it is unclear whether the Florida court would uphold a death sentence that rested entirely on nonstatutory aggravating circumstances. It seems unlikely that it would do so, since the capital-sentencing statute explicitly provides that “[aggravating circumstances shall be limited to the following [eight specified factors].” §921.141(5) (Supp. 1976-1977). (Emphasis added.) There is no such limiting language introducing the list of statutory mitigating factors. See § 921.141 (6) (Supp. 1976-1977). See also n. 14, infra.

       Because the trial judge imposes sentence, the Florida court has ruled that he may order preparation of a presentence investigation report to assist him in determining the appropriate sentence. See Swan v. State, 322 So. 2d 485, 488-489 (1975); Songer v. State, 322 So. 2d 481, 484 (1975). These reports frequently contain much information relevant to sentencing. See Gregg v. Georgia, ante, at 189 n. 37.

       See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 1.1, Commentary, pp. 43-48 (Approved Draft 1968); President’s Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). See also Gregg v. Georgia, ante, at 189-192. In the words of the Florida court, “a trial judge with experience in the facts of criminality possesses the requisite knowledge to balance the facts of the case against the standard criminal activity which can only be developed by involvement with the trials of numerous defendants.” State v. Dixon, 283 So. 2d 1, 8 (1973).

       As in Gregg, we examine the claims of vagueness and over-breadth in the statutory criteria only insofar as it is necessary to determine whether there is a substantial risk that the Florida capital-sentencing system, when viewed in its entirety, will result in the capricious or arbitrary imposition of the death penalty. See Gregg v. Georgia, ante, at 201 n. 51.

       The Supreme Court of Florida has affirmed death sentences in several cases, including the instant case, where this eighth statutory aggravating factor was found, without specifically stating that the homicide was “pitiless” or “torturous to the victim.” See, e. g., Hallman v. State, 305 So. 2d 180 (1974) (victim's throat slit with broken bottle); Spinkellink v. State, 313 So. 2d 666 (1975) (“career criminal” shot sleeping traveling companion); Gardner v. State, 313 So. 2d 675 (1975) (brutal beating and murder); Alvord v. State, 322 So. 2d 533 (1975) (three women killed by strangulation, one raped); Douglas v. State, 328 So. 2d 18 (1976) (depraved murder); Henry v. State, 328 So. 2d 430 (1976) (torture murder); Dobbert v. State, 328 So. 2d 433 (1976) (torture and killing of two children). But the circumstances of all of these cases could accurately be characterized as “pitiless” and ‘'unnecessarily torturous,” and it thus does not appear that the Florida Court has abandoned the definition that it announced in Dixon and applied in Alford, Tedder, and Halliwell.

       While it might be argued that this case broadens that construction, since only one person other than the victim was attacked at all and then only by being hit with a fist, this would be to read more into the State Supreme Court’s opinion than is actually there. That court considered 11 claims of error advanced by the petitioner, including the trial judge’s finding that none of the statutory mitigating circumstances existed. It did not, however, consider whether the findings as to each of the statutory aggravating circumstances were supported by the evidence. If only one aggravating circumstance had been found, or if some mitigating circumstance had been found to exist but not to outweigh the aggravating circumstances, we would be justified in concluding that the State Supreme Court had necessarily decided this point even though it had not expressly done so. However, in the circumstances of this case, when four separate aggravating circumstances were found and where each mitigating circumstance was expressly found not to exist, no such holding on the part of the State Supreme Court can be implied.

       The petitioner notes further that Florida’s sentencing system fails to channel the discretion of the jury or judge because it allows for consideration of nonstatutory aggravating factors. In the only ease to approve such a practice, Sawyer v. State, 313 So. 2d 680 (1975), the Florida court recast the trial court’s six non-statutory aggravating factors into four aggravating circumstances— two of them statutory. As noted earlier, it is unclear that the Florida court would ever approve a death sentence based entirely on nonstatutory aggravating circumstances. See n. 8, supra.

         State v. Dixon, 283 So. 2d, at 10.

       The petitioner also argues that since the Florida Court does not review sentences of life imprisonment imposed in capital cases or sentences imposed in cases where a capital crime was charged but where the jury convicted of a lesser offense, it will have an unbalanced view of the way that the typical jury treats a murder case and it will affirm death sentences under circumstances where the vast majority of judges would have imposed a sentence of life imprisonment. As we noted in Gregg v. Georgia, ante, at 204 n. 56, this problem is not sufficient to raise a serious risk that the state capital-sentencing system will result in arbitrary and capricious imposition of the death penalty.


author: Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stevens. Mr. Chief Justice Burger, Mr. Justice White, Mr. Justice Blackmun,

text:
    JUREK v. TEXAS
    No. 75-5394.
    Argued March 30, 1976
    Decided July 2, 1976

      Anthony G. Amsterdam argued the cause for petitioner. With him on the brief were Jack Greenberg, James M. Nabrit III, and Peggy C. Davis.

      John L. Hill, Attorney General of Texas, argued the cause for respondent. With him on the brief were Bert W. Pluymen, Assistant Attorney General, and Jim D. V oilers.

      Solicitor General Bork argued the cause for the United States as amicus curiae. With him on the brief was Deputy Solicitor General Randolph. William E. James, Assistant Attorney General, argued the cause for the State of California as amicus curiae. With him on the brief were Evelle J. Younger, Attorney General, and Jack R. Winkler, Chief Assistant Attorney General.

        Arthur M. Michaelson filed a brief for Amnesty International as amicus curiae.

   Judgment of the Court, and opinion of

Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stevens.

The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Texas violates the Eighth and Fourteenth Amendments to the Constitution.

I

The petitioner in this case, Jerry Lane Jurek, was charged by indictment with the killing of Wendy Adams “by choking and strangling her with his hands, and by drowning her in water by throwing her into a river . . . in the course of committing and attempting to commit kidnapping of and forcible rape upon the said Wendy Adams.”

The evidence at his trial consisted of incriminating statements made by the petitioner, the testimony of several people who saw the petitioner and the deceased during the day she was killed, and certain technical evidence. This evidence established that the petitioner, 22 years old at the time, had been drinking beer in the afternoon. He and two young friends later went driving together in his old pickup truck. The petitioner expressed a desire for sexual relations with some young girls they saw, but one of his companions said the girls were too young. The petitioner then dropped his two friends off at a pool hall. He was next seen talking to Wendy, who was 10 years old, at a public swimming pool where her grandmother had left her to swim. Other witnesses testified that they later observed a man resembling the petitioner driving an old pickup truck through town at a high rate of speed, with a young blond girl standing screaming in the bed of the truck. The last witness who saw them heard the girl crying “help me, help me.” The witness tried to follow them, but lost them in traffic. According to the petitioner’s statement, he took the girl to the river, choked her, and threw her unconscious body in the river. Her drowned body was found downriver two days later.

At the conclusion of the trial the jury returned a verdict of guilty.

Texas law requires that if a defendant has been convicted of a capital offense, the trial court must conduct a separate sentencing proceeding before the same jury that tried the issue of guilt. Any relevant evidence may be introduced at this proceeding, and both prosecution and defense may present argument for or against the sentence of death. The jury is then presented with two (sometimes three) questions, the answers to which determine whether a death sentence will be imposed.

During the punishment phase of the petitioner’s trial, several witnesses for the State testified to the petitioner’s bad reputation in the community. The petitioner’s father countered with testimony that the petitioner had always been steadily employed since he had left school and that he contributed to his family’s support.

The jury then considered the two statutory questions relevant to this case: (1) whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result, and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The jury unanimously answered “yes” to both questions, and the judge, therefore, in accordance with the statute, sentenced the petitioner to death. The Court of Criminal Appeals of Texas affirmed the judgment. . 522 S. W. 2d 934 (1975).

We granted certiorari, 423 U. S. 1082, to consider whether the imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments of the United States Constitution.

II

The petitioner argues that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, ante, at 168-187.

III

A

After this Court held Texas’ system for imposing capital punishment unconstitutional in Branch v. Texas, decided with Furman v. Georgia, 408 U. S. 238 (1972), the Texas Legislature narrowed the scope of its laws relating to capital punishment. The new Texas Penal Code limits capital homicides to intentional and knowing murders committed in five situations: murder of a peace officer or fireman; murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder committed by a prison inmate when the victim is a prison employee. See Tex. Penal Code § 19.03 (1974).

In addition, Texas adopted a new capital-sentencing procedure. See Tex. Code Crim. Proc., Art. 37.071 (Supp. 1975-1976). That procedure requires the jury to answer three questions in a proceeding that takes place subsequent to the return of a verdict finding a person guilty of one of the above categories of murder. The questions the jury must answer are these:

“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Art. 37.071 (b) (Supp. 1975-1976).

If the jury finds that the State has proved beyond a reasonable doubt that the answer to each of the three questions is yes, then the death sentence is imposed. If the jury finds that the answer to any question is no, then a sentence of life imprisonment results. Arts. 37.071 (c), (e) (Supp. 1975-1976). The law also provides for an expedited review by the Texas Court of Criminal Appeals. See Art. 37.071 (f) (Supp. 1975-1976).

The Texas Court of Criminal Appeals has thus far affirmed only two judgments imposing death sentences under its post-Forman law — in this case and in Smith v. State, No. 49,809 (Feb. 18, 1976) (rehearing pending; initially reported in advance sheet for 534 S. W. 2d but subsequently withdrawn from bound volume). In the present case the state appellate court noted that its law "limits the circumstances under which the State may seek the death penalty to a small group of narrowly defined and particularly brutal offenses. This insures that the death penalty will only be imposed for the most serious crimes [and] . . . that [it] will only be imposed for the same type of offenses which occur under the same types of circumstances.” 522 S. W. 2d, at 939.

While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. See McGautha v. California, 402 U. S. 183, 206 n. 16 (1971); Model Penal Code § 201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. For example, the Texas statute requires the jury at the guilt-determining stage to consider whether the crime was committed in the course of a particular felony, whether it was committed for hire, or whether the defendant was an inmate of a penal institution at the time of its commission. Cf. Gregg v. Georgia, ante, at 165-166, n. 9; Proffitt v. Florida, ante, at 248-249, n. 6. Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option — even potentially — for a smaller class of murders in Texas. Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime.

But a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, post, at 303-305, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, post, p. 325. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.

Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances. In Gregg v. Georgia, we today hold constitutionally valid a capital-sentencing system that directs the jury to consider any mitigating factors, and in Proffitt v. Florida we likewise hold constitutional a system that directs the judge and advisory jury to consider certain enumerated mitigating circumstances. The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.

The second Texas statutory question asks the jury to determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” if he were not sentenced to death. The Texas Court of Criminal Appeals has yet to define precisely the meanings of such terms as “criminal acts of violence” or “continuing threat to society.” In the present case, however, it indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show:

“In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.” 522 S. W. 2d, at 939-940.

In the only other case in which the Texas Court of Criminal Appeals has upheld a death sentence, it focused on the question of whether any mitigating factors were present in the case. See Smith v. State, No. 49,809 (Feb. 18, 1976). In that case the state appellate court examined the sufficiency of the evidence to see if a “yes” answer to question 2 should be sustained. In doing so it examined the defendant’s prior conviction on narcotics charges, his subsequent failure to attempt to rehabilitate himself or obtain employment, the fact that he had not acted under duress or as a result of mental or emotional pressure, his apparent willingness to kill, his lack of remorse after the killing, and the conclusion of a psychiatrist that he had a sociopathic personality and that his patterns of conduct would be the same in the future as they had been in the past.

Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.

B

As in the Georgia and Florida cases, however, the petitioner contends that the substantial legislative changes that Texas made in response to this Court’s Furman decision are no more than cosmetic in nature and have in fact not eliminated the arbitrariness and caprice of the system -held in Furman to violate the Eighth and Fourteenth Amendments.

The petitioner first asserts that arbitrariness still pervades the entire criminal justice system of Texas — from the prosecutor's decision whether to charge a capital offense in the first place and then whether to engage in plea bargaining, through the jury's consideration of lesser included offenses, to the Governor’s ultimate power to commute death sentences. This contention fundamentally misinterprets the Furman decision, and we reject it for the reasons set out in our opinion today in Gregg v. Georgia, ante, at 199.

(2)

Focusing on the second statutory question that Texas requires a jury to answer in considering whether to impose a death sentence, the petitioner argues that it is impossible to predict future behavior and that the question is so vague as to be meaningless. It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge’s prediction of the defendant’s future conduct. And any sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.

IV

We conclude that Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution. Furman v. Georgia, 408 U. S., at 310 (Stewaut, J., concurring). Accordingly, the judgment of the Texas Court of Criminal Appeals is affirmed.

It is so ordered.

[For dissenting opinion of Mr. Justice Brennan, see ante, p. 227.]

[For dissenting opinion of Mr. Justice Marshall, see ante, p. 231,]

Mr. Chief Justice Burger,

concurring in judgment.

I concur in the judgment. See Furman v. Georgia, 408 U. S. 238, 375 (1972) (Burger, C. J., dissenting).

Mr. Justice White,

with whom The Chief Justice and Mr. Justice Rehnquist join,

concurring in the judgment.

Following the invalidation of the Texas capital punishment statute in Branch v. Texas, decided with Furman v. Georgia, 408 U. S. 238 (1972), the Texas Legislature re-enacted the death penalty for five types of murder, including murders committed in the course of certain felonies and required that it be imposed providing that, after returning a guilty verdict in such murder cases and after a sentencing proceeding at which all relevant evidence is admissible, the jury answers two questions in the affirmative — and a third if raised by the evidence:

“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Tex. Code Crim. Proc., Art. 37.071 (b) (Supp. 1975-1976).

The question in this case is whether the death penalty imposed on Jerry Lane Jurek for the crime of felony murder may be carried out consistently with the Eighth and Fourteenth Amendments.

The opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens describes, and I shall not repeat, the facts of the crime and proceedings leading to the imposition of the death penalty when the jury unanimously gave its affirmative answers to the relevant questions posed in the judge’s post-verdict instructions. I also agree with that opinion that the judgment of the Texas Court of Criminal Appeals, which affirmed the conviction and judgment, must be affirmed here. 522 S. W. 2d 934 (1975).

For the reasons stated in my dissent in Roberts v. Louisiana, post, at 350-356, I cannot conclude that the Eighth Amendment forbids the death penalty under any and all circumstances. I also cannot agree with petitioner’s other major contention that under the new Texas statute and the State’s criminal justice system in general, the criminal jury and other law enforcement officers exercise such a range of discretion that the death penalty will be imposed so seldom, so arbitrarily, and so freakishly that the new statute suffers from the infirmities which Branch v. Texas found in its predecessor. Under the revised law, the substantive crime of murder is defined; and when a murder occurs in one of the five circumstances set out in the statute, the death penalty must be imposed if the jury also makes the certain additional findings against the defendant. Petitioner claims that the additional questions upon which the death sentence depends are so vague that in essence the jury possesses standardless sentencing power; but I agree with Justices Stewart, Powell, and Stevens that the issues posed in the sentencing proceeding have a common-sense core of meaning and that criminal juries should be capable of understanding them. The statute does not extend to juries discretionary power to dispense mercy, and it should not be assumed that juries will disobey or nullify their instructions. As of February of this year, 33 persons, including petitioner, had been sentenced to death under the Texas murder statute. I cannot conclude at this juncture that the death penalty under this system will be imposed so seldom and arbitrarily as to serve no useful penological function and hence fall within reach of the decision announced by five Members of the Court in Furman v. Georgia.

Nor, for the reasons I have set out in Roberts, post, at 348-350, and Gregg, ante, at 224-225, am I convinced that this conclusion should be modified because of the alleged discretion which is exercisable by other major functionaries in the State’s criminal justice system. Furthermore, as Justices Stewart, Powell, and Stevens state and as the Texas Court of Criminal Appeals has noted, the Texas capital punishment statute limits the imposition of the death penalty to a narrowly defined group of the most brutal crimes and aims at limiting its imposition to similar offenses occurring under similar circumstances. 522 S. W. 2d, at 939.

I concur in the judgment of affirmance.

Mr. Justice Blackmun,

concurring in the judgment.

I concur in the judgment. See Furman v. Georgia, 408 U. S. 238, 405-414 (1972) (Blackmun, J., dissenting), and id., at 375, 414, and 465.

       At the time of the charged offense, Texas law provided:
      “Whoever shall -voluntarily kill an3r person within this State shall be guilty of murder. Murder shall be distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or which excuse or justify the killing.” Tex. Penal Code, Art. 1256 (1973).
      Under the new Texas Penal Code (effective Jan. 1, 1974), murder is now defined by § 19.02 (a):
      “A person commits an offense if he:
      “(1) intentionally or knowingly causes the death of an individual; “(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
      “(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate- flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”
      Texas law prescribed the punishment for murder as follows:
      “(a) Except as provided in subsection (b) of this Article, the punishment for murder shall be confinement in the penitentiary for life or for any term of years not less than two.
      “(b) The punishment for murder with malice aforethought shall be death or imprisonment for life if:
      “(1) the person murdered a peace officer or fireman who was acting in the lawful discharge of an official duty and who the defendant knew was a peace officer or fireman;
      “(2) the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson;
      “(3) the person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration;

        “ (4) the person committed the murder while escaping or attempting to escape from a penal institution;
      "(5) the person, while incarcerated in a penal institution, murdered another who was employed in the operation of the penal institution.
      “(c) If the jury does not find beyond a reasonable doubt that the murder was committed under one of the circumstances or conditions enumerated in Subsection (b) of this Article, the defendant may be convicted of murder, with or without malice, under Subsection (a) of this Article or of any other lesser included offense.” Tex. Penal Code, Art. 1257 (1973).
      Article 1257 has been superseded by § 19.03 of the new Texas Penal Code, which is substantially similar to Art. 1257.

       The court held a separate hearing to determine whether these statements were given voluntarily, and concluded that they were. The question of the voluntariness of the confessions was also submitted to the jury. The Court of Criminal Appeals affirmed the admissibility of the statements. 522 S. W. 2d 934, 943 (1975).

       The petitioner originally stated that he started choking Wendy when she angered him by criticizing him and his brother for their drinking. In a later statement he said that he choked her after she refused to have sexual relations with him and started screaming.

       See infra, at 269.

       The jury can answer “yes” only if all members agree; it can answer “no” if 10 o-f 12 members agree. Art. 37.071 (d) (Supp. 1975-1976). Texas law is unclear as to the procedure .to be followed in the event that the jury is unable to answer the questions. See Vernon’s Texas Codes Ann. — Penal § 19.03, Practice Commentary, p. 107 (1974).

       When the drafters of the Model Penal Code considered a proposal that would have simply listed aggravating factors as sufficient reasons for imposition of the death penalty, they found the proposal unsatisfactory:
      “Such an approach has the disadvantage, however, of according disproportionate significance to the enumeration of aggravating circumstances when what is rationally necessary is . . . the balancing of any aggravations against any mitigations that appear. The object sought is better attained, in our view, by requiring a finding that an aggravating circumstance has been established and a finding that there are no substantial mitigating circumstances.” Model Penal Code §201.6, Comment 3, p. 72 (Tent. Draft No. 9, 1959) (emphasis in original).

       The Texas Court of Criminal Appeals has not yet construed the first and third questions (which are set out in the text, supra, at 269); thus it is as yet undetermined whether or not the jury's consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. For example, the third question asks whether the conduct of the defendant was unreasonable in response to any provocation by the deceased. This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty — a claim, for example, that a woman who hired an assassin to kill her husband was driven to it by his continued cruelty to her. We cannot, however, construe the statute; that power is reserved to the Texas courts.

       See Branch v. Texas, decided with Furman v. Georgia, 408 U. S. 238 (1972).

       See, e. g., American Bar Association Project on Standards for Criminal Justice, Pretrial Release § 5.1 (a) (Approved Draft 1968): “It should be presumed that the defendant is entitled to be released on order to appear or on his own recognizance. The presumption may be overcome by a finding that there is substantial risk of nonappearance .... In capital cases, the defendant may be detained pending trial if the facts support a finding that the defendant is likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice or will flee if released.”

       See, e. g., id., Sentencing Alternatives and Procedures § 2.5 (c): “A sentence not involving total confinement is to be preferred in the absence of affirmative reasons to the contrary. Examples of legitimate reasons for the selection of total confinement in a given case are:
      “(i) Confinement is necessary in order to protect the public from further criminal activity by the defendant . . . .”
      A similar conclusion was reached by the drafters of the Model Penal Code:
      “The Court shall deal with a person who has been convicted of a crime without imposing sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for protection of the public because:
      “(a) there is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.” Model Penal Code §7.01 (1) (Proposed Official Draft 1962).

       See, e. g., id., § 305.9 (1):
      “Whenever the Board of Parole considers the first release of a prisoner who is eligible for release on parole, it shall be the policy of the Board to order his release, unless the Board is of the opinion that his release should be deferred because:
      “(a) there is substantial risk that he will not conform to the conditions of parole . . . .”