source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Marshall,

license: Public Domain

text:
    ALABAMA v. SMITH
    No. 88-333.
    Argued April 24, 1989
    Decided June 12, 1989

      Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Stevens, O’Connor, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, post, p. 803.
    P. David Bjurberg, Assistant Attorney General of Alabama, argued the cause for petitioner. With him on the briefs were Don Siegelman, Attorney General, and Rosa Hamlett Davis and J. Randall McNeill, Assistant Attorneys General.

      Paid J. Larkin, Jr., argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Bryson, Assistant Attorney General Dennis, and Lawrence S. Robbins.

      Delores R. Boyd, by appointment of the Court, 489 U. S. 1063, argued the cause and filed a brief for respondent.
   Chief Justice Rehnquist

delivered the opinion of the Court.

James Lewis Smith pleaded guilty to charges of burglary and rape. In exchange for the plea, a sodomy charge was dropped. Later, Smith succeeded in having his guilty plea vacated. He went to trial on the three original charges, was convicted on each, and received a longer sentence on the burglary conviction than had been given after his guilty plea. The Alabama Supreme Court held that this increased sentence created a presumption of vindictiveness similar to that set forth in North Carolina v. Pearce, 395 U. S. 711 (1969). We hold that no presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second sentence follows a trial.

In 1985, an Alabama grand jury indicted Smith for burglary, rape, and sodomy. All the charges related to a single assault. Smith agreed to plead guilty to the burglary and rape charges in exchange for the State’s agreement to dismiss the sodomy charge. The trial court granted the State’s motion to dismiss the sodomy charge, accepted respondent’s guilty plea, and sentenced him to concurrent terms of 30-years’ imprisonment on each conviction. Later, respondent moved to withdraw his guilty plea, claiming that he had not entered it knowingly and voluntarily. The trial court denied this motion, but the Alabama Court of Criminal Appeals reversed, finding that respondent had not been properly informed of the penalties associated with the crimes to which he had pleaded guilty. 494 So. 2d 182 (1986).

The case was reassigned to the same trial judge. The State moved to reinstate the charge of first-degree sodomy; the trial court granted that motion, and respondent went to trial on all three original charges. At trial, the victim testified that respondent had broken into her home in the middle of the night, clad only in his underwear and a ski mask and wielding a kitchen knife. Holding the knife to her chest, he had raped and sodomized her repeatedly and forced her to engage in oral sex with him. The attack, which lasted for more than an hour, occurred in the victim’s own bedroom, just across the hall from the room in which her three young children lay sleeping. The State also offered respondent’s post-arrest statement, in which he admitted many of the details of the offenses. Respondent later took the stand and repudiated his postarrest statement, testifying instead that he had been in bed with his girl friend at the time the attack took place.

The jury returned a verdict of guilty on all three counts. This time, the trial judge imposed a term of life imprisonment for the burglary conviction, plus a concurrent term of life imprisonment on the sodomy conviction and a consecutive term of 150 years’ imprisonment on the rape conviction. The trial court explained that it was imposing a harsher sentence than it had imposed following respondent’s guilty plea because the evidence presented at trial, of which it had been unaware at the time it imposed sentence on the guilty plea, convinced it that the original sentence had been too lenient. See App. to Pet. for Cert. 28-30. As the court explained, at the time it imposed sentence on the guilty plea, it had heard only “[respondent’s] side of the story”; whereas now, it “has had a trial and heard all of the evidence,” including testimony that respondent had raped the victim at least five times, forced her to engage in oral sex with him, and threatened her life with a knife. Ibid. The court stated that this new information about the nature of respondent’s crimes and their impact on the victim, together with its observations of his “mental outlook on [the offenses] and [his] position during the trial,” convinced it that it was “proper to increase the sentence beyond that which was given to [him] on the plea bargain.” Id., at 30.

The Alabama Court of Criminal Appeals affirmed respondent’s convictions, as well as the life sentences imposed for burglary and sodomy, but remanded the rape conviction for resentencing. The Supreme Court of Alabama then granted respondent’s request for review of the burglary sentence, and reversed and remanded by a divided vote. Ex parte Smith, 557 So. 2d 13 (1988). The majority held that under our decision in North Carolina v. Pearce, supra, there can be no increase in sentence “upon reconviction at [a] second trial after the first conviction has been overturned on appeal and remanded for a new trial,” unless the increase is justified by “‘events subsequent to the first trial.’” 557 So. 2d, at 15. Because the majority thought the trial court had increased respondent’s sentence for the burglary conviction based on new information about events occurring prior to the imposition of the original sentence — e. g., new information about the nature of the crime and its effect on the victim — the majority held that Pearce required it to set aside that sentence.

The three dissenting justices argued that the Pearce presumption of vindictiveness did not apply where the original sentence is entered after a guilty plea. Id., at 16. In their view, a defendant “should not be allowed to receive sentence concessions in return for a guilty plea and then, after a successful attack on that plea, bind the State to its original sentencing bargain if he is later convicted after a trial.” Id., at 17. Were it otherwise, they argued, a defendant “could go to trial and chance an acquittal knowing he could receive a sentence no harsher than he was originally given.” Ibid.

Because of the conflicting results reached by the lower courts on the question whether the Pearce presumption of vindictiveness applies when a sentence imposed after trial is greater than that previously imposed after a guilty plea, we granted certiorari, 488 U. S. 1003 (1989), and now reverse.

While sentencing discretion permits consideration of a wide range of information relevant to the assessment of punishment, see Williams v. New York, 337 U. S. 241, 245-249 (1949), we have recognized it must not be exercised with the purpose of punishing a successful appeal. Pearce, 395 U. S., at 723-725. “Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Id., at 725. “In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for him doing so must affirmatively appear.” Id. at 726. Otherwise, a presumption arises that a greater sentence has been imposed for a vindictive purpose — a presumption that must be rebutted by “‘objective information . . . justifying the increased sentence.’” Texas v. McCullough, 475 U. S. 134, 142 (1986) (quoting United States v. Goodwin, 457 U. S. 368, 374 (1982)).

While the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness “do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial. ” Texas v. McCullough, 475 U. S., at 138. As we explained in Texas v. McCullough, “the evil the [Pearce] Court sought to prevent” was not the imposition of “enlarged sentences after a new trial” but “vindictiveness of a sentencing judge.” Ibid. See also Chaffin v. Stynchcombe, 412 U. S. 17, 25 (1973) (the Pearce presumption was not designed to prevent the imposition of an increased sentence on retrial “for some valid reason associated with the need for flexibility and discretion in the sentencing process,” but was “premised on the apparent need to guard against vindictiveness in the resentencing process”). Because the Pearce presumption “may operate in the absence of any proof of an improper motive and thus . . . block a legitimate response to criminal conduct,” United States v. Goodwin, supra, at 373, we have limited its application, like that of “other ‘judicially created means of effectuating the rights secured by the [Constitution],’” to circumstances “where its ‘objectives are thought most efficaciously served,’” Texas v. McCullough, supra, at 138, quoting Stone v. Powell, 428 U. S. 465, 482, 487 (1976). Such circumstances are those in which there is a “reasonable likelihood,” United States v. Goodwin, supra, at 373, that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness, see Wasman v. United States, 468 U. S. 559, 569 (1984).

In Colten v. Kentucky, 407 U. S. 104 (1972), for example, we refused to apply the presumption when the increased sentence was imposed by the second court in a two-tiered system which gave a defendant convicted of a misdemeanor in an inferior court the right to trial de novo in a superior court. We observed that the trial de novo represented a “completely fresh determination of guilt or innocence” by a court that was not being “asked to do over what it thought it had already done correctly.” Id., at 117. If the de novo trial resulted in a greater penalty, we said that “it no more follows that such a sentence is a vindictive penalty . . . than that the inferior court imposed a lenient penalty.” Ibid. Consequently, we rejected the proposition that greater penalties on retrial were explained by vindictiveness “with sufficient frequency to warrant the imposition of a prophylactic rule.” Id., at 116. Similarly, in Chaffin v. Stynchcombe, 412 U. S. 17 (1973), we held that no presumption of vindictiveness arose when a second jury, on retrial following a successful appeal, imposed a higher sentence than a prior jury. We thought that a second jury was unlikely to have a “personal stake” in the prior conviction or to be “sensitive to the institutional interests that might occasion higher sentences.” Id., at 26-28.

We think the same reasoning leads to the conclusion that when a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge. Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial. A guilty plea must be both “voluntary” and “intelligent,” Boykin v. Alabama, 395 U. S. 238, 242 (1969), because it “is the defendant’s admission in open court that he committed the acts charged in the indictment,” Brady v. United States, 397 U. S. 742, 748 (1970). But the sort of information which satisfies this requirement will usually be far less than that brought out in a full trial on the merits.

As this case demonstrates, supra, at 796-797, in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. Supra, at 797. See United States v. Grayson, 438 U. S. 41, 53 (1978) (sentencing authority’s perception of the truthfulness of a defendant testifying on his own behalf may be considered in sentencing). Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present. See Brady v. United States, supra, at 752. Here, too, although the same judge who sentenced following the guilty plea also imposes sentence following trial, in conducting the trial the court is not simply “do[ing] over what it thought it had already done correctly.” Colten, supra, at 117. Each of these factors distinguishes the present case, and others like it, from cases like Pearce. There, the sentencing judge who presides at both trials can be expected to operate in the context of roughly the same sentencing considerations after the second trial as he does after the first; any unexplained change in the sentence is therefore subject to a presumption of vindictiveness. In cases like the present one, however, we think there are enough justifications for a heavier second sentence that it cannot be said to be more likely than not that a judge who imposes one is motivated by vindictiveness.

Our conclusion here is not consistent with Simpson v. Rice, the companion case to North Carolina v. Pearce. In Simpson v. Rice, the complained-of sentence followed trial after Rice had successfully attacked his previous guilty plea. 395 U. S., at 714. We found that a presumption of vindictiveness arose when the State offered “no evidence attempting to justify the increase in Rice’s original sentences . . . .” Id., at 726. With respect, it does not appear that the Court gave any consideration to a possible distinction between the Pearce case, in which differing sentences were imposed after two trials, and the Rice case, in which the first sentence was entered on a guilty plea.

The failure in Simpson v. Rice to note the distinction just described stems in part from that case’s having been decided before some important developments in the constitutional law of guilty pleas. A guilty plea may justify leniency, Brady v. United States, supra; a prosecutor may offer a “recommendation of a lenient sentence or a reduction of charges” as part of the plea bargaining process, Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978), and we have upheld the prosecutorial practice of threatening a defendant with increased charges if he does not plead guilty, and following through on that threat if the defendant insists on his right to stand trial, ibid.; we have recognized that the same mutual interests that support the practice of plea bargaining to avoid trial may also be pursued directly by providing for a more lenient sentence if the defendant pleads guilty, Corbitt v. New Jersey, 439 U. S. 212, 221-223 (1978).

Part of the reason for now reaching a conclusion different from that reached in Simpson v. Rice, therefore, is the later development of this constitutional law relating to guilty pleas. Part is the Court’s failure in Simpson to note the greater amount of sentencing information that a trial generally affords as compared to a guilty plea. Believing, as we do, that there is no basis for a presumption of vindictiveness where a second sentence imposed after a trial is heavier than a first sentence imposed after a guilty plea, we overrule Simpson v. Rice, supra, to that extent. Respondent contends that there is evidence to support a finding of actual vindictiveness on the part of the sentencing judge in this case. This is not the question upon which we granted certiorari, and we decline to reach it here although it may be open to respondent on our remand to the Supreme Court of Alabama.

The judgment of the Supreme Court of Alabama is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Marshall,

dissenting.

After successfully challenging the validity of his plea bargain on the ground that the trial judge had misinformed him about the penalties he could face, respondent Smith went to trial. He was convicted and resentenced to a drastically longer sentence than the one he had initially received as a result of his plea bargain. The majority today finds no infirmity in this result. I, however, continue to believe that, “if for any reason a new trial is granted and there is a conviction a second time, the second penalty imposed cannot exceed the first penalty, if respect is had for the guarantee against double jeopardy.” North Carolina v. Pearce, 395 U. S. 711, 726-727 (1969) (Douglas, J., concurring, joined by Marshall, J.) (emphasis added). I therefore dissent.

       The State filed an application for rehearing, which the Supreme Court of Alabama denied. App. to Pet. for Cert. 15. This time four justices dissented.

       Compare, for example, the Alabama Supreme Court’s decision in the instant case, Ex parte Smith, 557 So. 2d 13 (1988), State v. Sutton, 197 Conn. 485, 498 A. 2d 65 (1985), and United States v. Gilliss, 645 F. 2d 1269 (CA8 1981), with State v. Bawdon, 386 N. W. 2d 484 (S. D. 1986), and McKenzie v. Risley, 842 F. 2d 1525, 1536-1537 (CA9 1988) (en banc).

       We adopted a similar prophylactic rule to guard against vindictiveness by the prosecutor at the postconviction stage in Blackledge v. Perry, 417 U. S. 21 (1974). There the prosecutor charged the defendant with a felony when the latter availed himself of de novo review of his initial conviction of a misdemeanor for the same conduct. He received a sentence of five to seven years for the felony compared to the 6-month sentence he had received for the misdemeanor. On these facts, we concluded that a presumption of vindictiveness arose analogous to that in Pearce because the “prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing.” Id., at 27. We made clear, however, that “the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ ” Ibicl. And in our other cases dealing with pretrial prosecutorial decisions to modify the charges against a defendant, we have continued to stress that “a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.” United States v. Goodwin, 457 U. S. 368, 384 (1982); Bordenkircher v. Hayes, 434 U. S. 357 (1978).


author: Justice Brennan Justice White, Justice O’Connor, Justice Scalia,

text:
    SOUTH CAROLINA v. GATHERS
    No. 88-305.
    Argued March 28, 1989
    Decided June 12, 1989
    Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined. White, J., filed a concurring opinion, post, p. 812. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined, post, p. 812. Scalia, J., filed a dissenting opinion, post, p. 823.

      Donald J. Zelenka, Chief Deputy Attorney General of South Carolina, argued the cause for petitioner. With him on the briefs were T. Travis Medlock, Attorney General, and Charles M. Condon.

      William Isaac Diggs argued the cause for respondent. With him on the brief was Joseph L. Savitz III

      Briefs of amici curiae urging reversal were filed for the Center for Civil Rights et al. by Clint Bolick, Jerald L. Hill, and Mark Bredemeier; and for the Washington Legal Foundation et al. by Richard K. Willard, Daniel J. Popeo, and Paul D. Kamenar.

      Briefs of amici curiae urging affirmance were filed for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius LeVonne Chambers, George Kendall, Eric Schnapper, and Vivian Berger; and for the South Carolina Public Defenders’ Association et al. by David I. Brack and John H. Blume.

      Briefs of amici curiae were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Steve White, Chief Assistant Attorney General, and Michael D. Wellington and Frederick R. Millar, Jr., Supervising Deputy Attorneys General, Don Siegelman, Attorney General of Alabama, John J. Kelly, Chief State’s Attorney of Connecticut, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Frederic J. Cowan, Attorney General of Kentucky, J. Joseph Curran, Attorney General of Maryland, William L. Webster, Attorney General of Missouri, Brian McKay, Attorney General of Nevada, W. Cary Edwards, Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Robert H. Henry, Attorney General of Oklahoma, Dave Frohnmayer, Attorney General of Oregon, Mary Sue Terry, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, and Joseph B. Meyer, Attorney General of Wyoming; for the Mid-America Legal Foundation by Joseph A. Morris; for Barbara Babcock et al. by Dean Hill Rivkin; and for SOLACE et al. by Paul L. Hoffman, Joan W. Howarth, and Michael Laurence.

   Justice Brennan

delivered the opinion of the Court.

Respondent Demetrius Gathers was convicted of murder and sentenced to death for the killing of Richard Haynes. The evidence at trial showed that Gathers and three companions encountered Haynes, a stranger to them, at a park bench one evening. When Haynes rebuffed Gathers’ attempt to initiate a conversation, Gathers and his friends assaulted Haynes, beating and kicking him severely and smashing a bottle over his head. Before leaving the scene, Gathers beat Haynes with an umbrella, which he then inserted into the victim’s anus. Some time later Gathers apparently returned to the scene and stabbed Haynes with a knife.

Richard Haynes was about 31 years old and unemployed. For two years prior to his death he had been experiencing “some mental problems” and had been “in and out of [a] mental hospital” three times. App. 4. Although without formal religious training, Haynes considered himself a preacher and referred to himself as “Reverend Minister”; his mother testified that he would he would “tal[k] to people all the time about the Lord.” Id., at 5-6. He generally carried with him several bags containing articles of religious significance, including two Bibles, rosary beads, plastic statues, olive oil, and religious tracts. Among these items, on the evening of his murder, was a tract entitled “The Game Guy’s Prayer.” Relying on football and boxing metaphors, it extolled the virtues of the good sport. After Haynes was beaten, his assailants went through his belongings, looking (apparently in vain) for something worth stealing. In rummaging through his personal effects they scattered on the ground the contents of his wallet and bags, including the just-mentioned tract.

Gathers was tried in the Court of General Sessions for Charleston County, South Carolina. During the guilt phase the articles found at the scene of the crime were admitted into evidence without objection. The jury found Gathers guilty of murder and first-degree criminal sexual conduct. All of the testimony and exhibits from the guilt phase were readmitted into evidence at the sentencing phase. The State presented no other evidence at the sentencing phase, but the prosecutor’s closing argument included the following remarks, which are the basis for the present controversy:

“We know from the proof that Reverend Minister Haynes was a religious person. He had his religious items out there. This defendant strewn [sic] them across the bike path, thinking nothing of that.
“Among the many cards that Reverend Haynes had among his belongings was this card. It’s in evidence. Think about it when you go back there. He had this [sic] religious items, his beads. He had a plastic angel. Of course, he is now with the angels now, but this defendant Demetrius Gathers could care little about the fact that he is a religious person. Cared little of the pain and agony he inflicted upon a person who is trying to enjoy one of our public parks.
“But look at Reverend Minister Haynes’ prayer. It’s called the Game Guy’s Prayer. ‘Dear God, help me to be a sport in this little game of life. I don’t ask for any easy place in this lineup. Play me anywhere you need me. I only ask you for the stuff to give you one hundred percent of what I have got. If all the hard drives seem to come my way, I thank you for the compliment. Help me to remember that you won’t ever let anything come my way that you and I together can’t handle. And help me to take the bad break as part of the game. Help me to understand that the game is full of knots and knocks and trouble, and make me thankful for them. Help me to be brave so that the harder they come the better I like it. And, oh God, help me to always play on the square. No matter what the other players do, help me to come clean. Help me to study the book so that I’ll know the rules, to study and think a lot about the greatest player that ever lived and other players that are portrayed in the book. If they ever found out the best part of the game was helping other guys who are out of luck, help me to find it out, too. Help me to be regular, and also an inspiration with the other players. Finally, oh God, if fate seems to uppercut me with both hands, and I am laid on the shelf in sickness or old age or something, help me to take that as part of the game, too. Help me not to whimper or squeal that the game was a frameup or that I had a raw deal. When in the falling dusk I get the final bell, I ask for no lying, complimentary tombstones. I’d only like to know that you feel that I have been a good guy, a good game guy, a saint in the game of life.’
“Reverend Minister Haynes, we know, was a very smairperson. He had his mental problems. Unable to keep a regular job. And he wasn’t blessed with fame or fortune. And he took things as they came along. He was prepared to deal with tragedies that he came across in his life.
“You will find some other exhibits in this case that tell you more about a just verdict. Again this is not easy. No one takes any pleasure from it, but the proof cries out from the grave in this case. Among the personal effects that this defendant could care little about when he went through it is something that we all treasure. Speaks a lot about Reverend Minister Haynes. Very simple yet very profound. Voting. A voter’s registration card.
“Reverend Haynes believed in this community. He took part. And he believed that in Charleston County, in the United States of America, that in this country you could go to a public park and sit on a public bench and not be attacked by the likes of Demetrius Gathers.” Id., at 41-43.

Finding that these “extensive comments to the jury regarding the victim’s character were unnecessary to an understanding of the circumstances of the crime,” the Supreme Court of South Carolina concluded that the prosecutor’s remarks “conveyed the suggestion appellant deserved a death sentence because the victim was a religious man and a registered voter.” 295 S. C. 476, 484, 369 S. E. 2d 140, 144 (1988). Relying on our decision in Booth v. Maryland, 482 U. S. 496 (1987), the court reversed Gathers’ sentence of death and remanded for a new sentencing proceeding. We granted certiorari, 488 U. S. 888 (1988), and we now affirm.

Our capital cases have consistently recognized that “[f]or purposes of imposing the death penalty . . . [the defendant’s] punishment must be tailored to his personal responsibility and moral guilt.” Enmund v. Florida, 458 U. S. 782, 801 (1982). See also id., at 825 (O’Connor, J., dissenting) (“[Proportionality requires a nexus between the punishment imposed and the defendant’s blameworthiness”); Tison v. Arizona, 481 U. S. 137, 149 (1987) (“The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender”). Two Terms ago, in Booth v. Maryland, supra, we addressed the question whether use of “victim impact statements” in capital sentencing proceedings violated this principle that a sentence of death must be related to the moral culpability of the defendant. We held that such statements introduced factors that might be “wholly unrelated to the blameworthiness of a particular defendant.” 482 U. S., at 504.

The statements placed before the jury in Booth included descriptions of the victims’ personal characteristics, statements concerning the emotional impact of the crime on the victims’ family, and the family members’ opinions about the crime and the defendant. At issue in the present case is a statement of the first sort — one concerning personal characteristics of the victim. While in this case it was the prosecutor rather than the victim’s survivors who characterized the victim’s personal qualities, the statement is indistinguishable in any relevant respect from that in Booth. As in Booth, “[allowing the jury to rely on [this information] . . . could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill.” Id., at 505.

Our opinion in Booth, however, left open the possibility that the kind of information contained in victim impact statements could be admissible if it “relate [d] directly to the circumstances of the crime.” Id., at 507, n. 10. South Carolina asserts that such is the case here. Brief for Petitioner 25-41. It contends that the various personal effects which were “maliciously strewn around [the victim’s] body during the event” were “relevant to the circumstances of the crime or reveal certain personal characteristics of the defendant.” Id., at 28.

We disagree. The fact that Gathers scattered Haynes’ personal papers around his body while going through them looking for something to steal was certainly a relevant circumstance of the crime, and thus a proper subject for comment. But the prosecutor’s argument in this case went well beyond that fact: he read to the jury at length from the religious tract the victim was carrying and commented on the personal qualities he inferred from Haynes’ possession of the “Game Guy’s Prayer” and the voter registration card. The content of these cards, however, cannot possibly have been relevant to the “circumstances of the crime. ” There is no evidence whatever that the defendant read anything that was printed on either the tract or the voter card. Indeed, it is extremely unlikely that he did so. The testimony at trial was that Gathers went through Haynes’ bags very quickly, “just throwing [his belongings] everywhere, looking through things,” App. 27, and that he spent not more than a minute doing so, id., at 28. The crime took place, moreover, at night, along a dark path through a wooded area. Id., at 17; Record 621-622, 926-927. Nor did the assailants have flashlights. Id., at 622-623. Under these circumstances, the content of the various papers the victim happened to be carrying when he was attacked was purely fortuitous and cannot provide any information relevant to the defendant’s moral culpability. Notwithstanding that the papers had been admitted into evidence for another purpose, their content cannot be said to relate directly to the circumstances of the crime.

The judgment of the Supreme Court of South Carolina is therefore

Affirmed.

Justice White,

concurring.

Unless Booth v. Maryland, 482 U. S. 496 (1987), is to be overruled, the judgment below must be affirmed. Hence, I join Justice Brennan’s opinion for the Court.

Justice O’Connor,

with whom The Chief Justice and Justice Kennedy join,

dissenting.

In Booth v. Maryland, 482 U. S. 496 (1987), this Court held that the Eighth Amendment prohibited a jury from considering a victim impact statement during the sentencing phase of a capital trial. The document at issue in Booth was compiled by the Maryland Division of Parole and Probation on the basis of extensive interviews with the two murder victims’ son, daughter, son-in-law, and granddaughter. In addition to evidence relating to the personal qualities of the victims themselves, the statement in Booth described the emotional impact of the crime on the victims’ family members, including their resulting sleeplessness, fear, depression, and constant painful memories. The statement also described the family members’ opinions about the crime, the defendant, and the proper penalty to be imposed. Id., at 509-515. The majority in Booth took the view that such information “may be wholly unrelated to the blameworthiness of a particular defendant,” id., at 504, and could divert the capital sentencer’s attention from the circumstances of the crime and the defendant’s background and record, id., at 505. The majority noted that introduction of evidence of a victim’s good character would entitle the defendant to rebut this evidence, resulting in “a ‘mini-trial’ on the victim’s character.” Id., at 507. The Court also expressed concern that the opinions of family members regarding the crime and the defendant could serve to “inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” Id., at 508.

Since our decision in Booth, there has been considerable confusion in the lower courts about the precise scope of its holding. Some courts, like the South Carolina Supreme Court in this case, have read Booth for the broad proposition that “the injection of the victim’s personal characteristics into the sentencing determination” violates the Eighth Amendment. 295 S. C. 476, 484, 369 S. E. 2d 140, 144 (1988). Other courts have declined to read Booth so broadly, holding that it does not prohibit prosecutorial argument at the penalty phase concerning the personal characteristics of the victim. See, e. g., Daniels v. State, 528 N. E. 2d 775, 782 (Ind. 1988); Moon v. State, 258 Ga. 748, 756, 375 S. E. 2d 442, 450 (Ga. 1988). See also People v. Rich, 45 Cal. 3d 1036, 1089-1090, 755 P. 2d 960, 993-994 (1988); People v. Ghent, 43 Cal. 3d 739, 771-772, 739 P. 2d 1250, 1271 (1987).

I joined both dissents in Booth, see Booth, 482 U. S., at 515 (White, J., dissenting); id., at 519 (Scalia, J., dissenting), believing that the case was wrongly decided on its facts and rested on a misinterpretation of the Eighth Amendment and this Court’s cases thereunder. Although I remain persuaded that Booth was wrong when decided and stand ready to overrule it if the Court would do so, we can reach a proper disposition in this case without such action. Booth’s central holding that statements about the harm to a victim’s family have no place in capital sentencing does not control the case before us today. At issue here are solely prosecutorial comments about the victim himself. Thus, we must decide whether to adopt a broad reading of Booth as establishing a rigid Eighth Amendment rule eliminating virtually all consideration of the victim at the penalty phase, or a narrower reading of that decision which would allow jury consideration of information about the victim and the extent of the harm caused in arriving at its moral judgment concerning the appropriate punishment. See Mills v. Maryland, 486 U. S., 367, 398 (1988) (Rehnquist, C. J., dissenting) (“I do not interpret Booth as foreclosing the introduction of all evidence, in whatever form, about a murder victim”).

Because the Eighth Amendment itself requires “that the penalty imposed in a capital case be proportional to the harm caused and the defendant’s blameworthiness,” Enmund v. Florida, 458 U. S. 782, 823 (1982) (O’Connor, J., dissenting), I would reject a rigid Eighth Amendment rule which prohibits a sentencing jury from hearing argument or considering evidence concerning the personal characteristics of the victim. I would thus reverse the judgment of the South Carolina Supreme Court in this case. I also would decline respondent’s invitation that this Court comb the record for indications that the prosecutor “misrepresented the evidence” in his closing argument or appealed to religious bias in violation of the Due Process Clause of the Fourteenth Amendment. See Brief for Respondent 21-24. Instead, I would remand the case to the South Carolina Supreme Court for that particular inquiry.

I

On a Saturday evening in September 1986, Richard Haynes sat peacefully on a park bench near his mother’s home with a Bible and various religious items at his side. A vulnerable man with a history of mental problems, Haynes called himself “Reverend Minister” and shared his religious views with those who would listen. Haynes was approached by respondent Demetrius Gathers and three companions who sat down on the bench next to him and drank beer. After Haynes told Gathers he did not wish to converse with him, Gathers and two of his companions beat Haynes brutally, and Gathers smashed a bottle over his head. App. 18-22. As Haynes lay helpless, Gathers and one of his compatriots rummaged through the various religious and other items in Haynes’ possession, strewing them around on the ground as they looked for something to steal. Id., at 27-28, 34-35. Gathers’ companions then left, but Gathers remained at the scene striking the unconscious Haynes with an umbrella and then forcing the umbrella into his anus. Id., at 23-26. Gathers then departed and walked to a nearby apartment complex. Id., at 26. Sometime later, Gathers and one other companion returned to the park with a knife. Gathers admitted that he then stabbed Haynes to death. Id., at 30, 36.

At Gathers’ trial for murder and criminal sexual conduct, Richard Haynes’ mother testified without objection about her son’s mental problems and his practice of carrying a Bible and other religious items and “talking] to people all the time about the Lord.” Id., at 5. One of Gathers’ companions testified that Haynes’ Bible was clearly visible on the park bench as they approached him on the night of the murder. Id., at 26-27. All the items Haynes carried with him that night — including olive oil, plastic angels, rosary beads, two Bibles, a voter registration card, and the “Game Guy’s Prayer” — were introduced into evidence without objection during the guilt phase of the trial. Id., at 8-10; Record 565-567, 782-783, 785-787. Those items were reintroduced into evidence without objection at the penalty phase. Id., at 1167.

The jury convicted respondent of murder and first degree criminal sexual conduct. During his closing argument at the penalty phase, the prosecutor referred to the fact that Richard Haynes was a religious person as well as a vulnerable man with mental problems who was unable to keep a regular job. The prosecutor referred to several of the religious items that had been introduced into evidence. He also read the “Game Guy’s Prayer” in its entirety, suggesting that Haynes was the sort of person who “took things as they came along” and “was prepared to deal with tragedies that he came across in his life.” App. 43. The prosecutor also referred to Haynes’ voter registration card found beside his body, arguing that the card “[sjpeaks a lot about Reverend Minister Haynes” who “believed in this community” and believed “that in this country you could go to a public park and sit on a public bench and not be attacked by the likes of Demetrius Gathers.” Ibid.

The sentencing jury was then given instructions which are not challenged here and returned a recommendation that the death sentence be imposed. The South Carolina Supreme Court reversed Gathers’ death sentence, finding that the prosecutor’s closing argument at the sentencing proceeding violated the Eighth Amendment “by focusing extensively on the personal characteristics of the victim.” 295 S. C., at 482, 369 S. E. 2d, at 143.

II

Booth should not be read, in my view, to preclude prosecutorial comment which gives the sentencer a “glimpse of the life” a defendant “chose to extinguish.” Mills v. Maryland, supra, at 397 (Rehnquist, C. J., dissenting). “The fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of ‘circumstances of the crime’ that mere mention will always be problematic.” Brooks v. Kemp, 762 F. 2d 1383, 1409 (CA11 1985) (en banc), vacated on other grounds, 478 U. S. 1016 (1986), judgment reinstated, 809 F. 2d 700 (CA11) (en banc), cert. denied, 483 U. S. 1010 (1987). In my view, nothing in the Eighth Amendment precludes the prosecutor from conveying to the jury a sense of the unique human being whose life the defendant has taken.

More fundamentally, this case illustrates the one-sided nature of the moral judgment that the Court’s broad reading of Booth would require of the capital sentencer. This Court has consistently required that a jury at the penalty phase be allowed to consider a wide range of information concerning the background of the defendant. Thus, not merely the circumstances of the crime are relevant, but as we stated in Lockett v. Ohio, 438 U. S. 586, 604 (1978): “[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death” (emphasis in original; footnote omitted). See also Eddings v. Oklahoma, 455 U. S. 104 (1982). Our decisions in Lockett and Eddings were based on the proposition that the decision of the capital sentencer is a profoundly moral one and must reflect the moral judgment of the community regarding the proper penalty to be inflicted on a particular individual for his or her actions. Evidence extraneous to the crime itself is deemed relevant and indeed, constitutionally so, “because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring). In this case, the sentencing jury heard testimony from respondent’s mother, his sister, and his cousin, all indicating that he was an affectionate and caring person. Record 1183, 1187, 1199. Gathers’ sixth grade teacher testified that he was a quiet and affectionate child but that he was not given sufficient guidance and discipline at home. Id., at 1193, 1195. None of this evidence was directly relevant to the events of September 13, 1986, but all of it was relevant to the jury’s assessment of respondent himself and his moral blameworthiness.

Similarly, one of the factors that has long entered into society’s conception of proper punishment is the harm caused by the defendant’s actions. Thus, we have long recognized that retribution itself is a valid penological goal of the death penalty. See Gregg v. Georgia, 428 U. S. 153, 183 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Indeed, we have expressly noted that while “retribution is an element of all punishments society imposes,” it “clearly plays a more prominent role in a capital case.” Spaziano v. Florida, 468 U. S. 447, 462 (1984). “The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.” Tison v. Arizona, 481 U. S. 137, 149 (1987). Moreover, one essential factor in determining the defendant’s culpability is the extent of the harm caused.

That the harm caused by a defendant’s actions is relevant to the capital sentencer’s moral judgment concerning the appropriate penalty, even if the defendant did not specifically intend that harm, is a principle recognized both in the decisions of this Court and in legislative decisions concerning appropriate levels of punishment. In Tison v. Arizona, supra, we held that the Eighth Amendment did not preclude imposing the death penalty on two brothers who participated substantially in their father’s armed prison breakout and in a related kidnaping and robbery that resulted in four murders, even though neither defendant “took any act which he desired to, or was substantially certain would, cause death.” Id., at 150. We found that the Tisons’ involvement in the crime was such that “both subjectively appreciated that their acts were likely to result in the taking of innocent life,” id., at 152, and that “the record would support a finding of the culpable mental state of reckless indifference to human life,” id., at 151. We noted that “reckless indifference to the value of human life may be every bit as shocking to the moral sense as an ‘intent to kill,’” id., at 157, and we remanded the case to the Supreme Court of Arizona for a specific determination whether the Tisons possessed that mental state, id., at 158. What was critical to the defendants’ eligibility for the death penalty in Tison was the harm they helped bring about: the death of four innocent human beings. In a similar manner, society punishes reckless driving differently from vehicular homicide; the distinction rests not on any difference in the defendant’s mental state but on the notion that one of the legitimate concerns of any sentencer is the harm that the defendant’s actions have caused. See Booth, 482 U. S., at 516 (White, J., dissenting) (“There is nothing aberrant in a juror’s inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused”). In the death penalty context, no State authorizes infliction of the penalty for attempted murder, yet the criminal defendant who has attempted to kill another human being has the same mental state as the actual killer. Indeed, as Justice Scalia noted in dissent in Booth, the difference between murder and attempted murder may often hinge on a fortuity over which the defendant has no control at all. See id., at 519. The only distinction is the harm to the community which results from the defendant’s actions, and this distinction is deemed sufficient to support a difference in punishment between a sentence of years and the ultimate penalty.

Nothing in the Eighth Amendment precludes a State, if it chooses, from “including] as a sentencing consideration the particularized harm that an individual’s murder causes to the rest of society,” id., at 517 (White, J., dissenting). Indeed, precisely because the harm caused to society by a particular victim’s death is relevant to society’s moral judgment concerning the proper punishment, I would decline to read Booth for the broad proposition that the victim’s personal characteristics are irrelevant at the sentencing phase of a capital trial. A rigid Eighth Amendment rule which excludes all such considerations is not supported by history or societal consensus, and it withholds information which a State may clearly deem relevant to the reasoned moral judgment of a capital sentencer.

Thus, I would reverse the judgment of the South Carolina Supreme Court on this issue. In his closing argument in this case, the prosecutor focused on the heinous nature of respondent’s crime. App. 40-41. The prosecutor brought the jury’s attention to the fact that Richard Haynes was a religious person whose religious belongings were callously ransacked by Gathers during the attack. Id., at 41. The prosecutor commented on some of the specific items introduced into evidence, and he read the “Game Guy’s Prayer,” which was found at the scene of the murder. That “Prayer,” which invokes sports metaphors and stresses the virtues of being an accepting and resilient “good sport” in the game of life, was used by the prosecutor to stress the vulnerability and simple humanity of the victim. As the prosecutor argued: “Reverend Minister Haynes, we know, was a very small person. He had his mental problems. Unable to keep a regular job. And he wasn’t blessed with fame or fortune.” Id., at 42. The prosecutor also commented on the victim’s possession of a voter registration card at the time of his death, indicating that it “[sjpeaks a lot about Reverend Minister Haynes,” and exemplified the victim’s “belie[f] in this community.” In sum, the prosecutor stressed that the victim was an ordinary citizen who trusted that he could sit quietly on a public park bench without the risk of death.

In my view, no aspect of the prosecutor’s argument in this case violated the Eighth Amendment. The jury found at the guilt phase that Gathers made a conscious decision to kill another human being. Just as Gathers’ own background was important to the jury’s assessment of him as a “uniquely individual human bein[g],” see Woodson v. North Carolina, 428 U. S. 280, 304 (1976), so information about his equally unique victim was relevant to the jury’s assessment of the harm he had caused and the appropriate penalty. Nothing in the Eighth Amendment precludes the community from considering its loss in assessing punishment nor requires that the victim remain a faceless stranger at the penalty phase of a capital trial. That the victim in this case was a deeply religious and harmless individual who exhibited his care for his community by religious proselytization and political participation in its affairs was relevant to the community’s loss at his demise, just as society would view with grief and anger the killing of the mother or father of small children. See Booth, supra, at 516 (White, J., dissenting). The Eighth Amendment stands as a shield against those practices and punishments which are either inherently cruel or which so offend the moral consensus of this society as to be deemed “cruel and unusual.” Trop v. Dulles, 356 U. S. 86, 101 (1958). Because neither aspect of the Eighth Amendment was offended by the prosecutor’s remarks, I would reverse the judgment below.

Ill

As an alternative ground supporting the judgment below, Gathers argues that the prosecutor engaged in “manipulation of the evidence and outright fabrication” in his portrait of the victim’s personal characteristics based on inferences from the “Game Guy’s Prayer” and the voter registration card. Brief for Respondent 22. Gathers also contends that the prosecutor’s closing argument impermissibly invited the jury to impose the death sentence on the basis of the victim’s religion and political affiliation in violation of the Due Process Clause. Id., at 23. It would indeed be improper for a prosecutor to urge that the death penalty be imposed because of the race, religion, or political affiliation of the victim. As Justice White wrote in dissent in Booth, “It is no doubt true that the State may not encourage the sentencer to rely on a factor such as the victim’s race in determining whether the death penalty is appropriate. Cf. McCleskey v. Kemp, 481 U. S. 279 (1987).” Booth, 482 U. S., at 517. See also Zant v. Stephens, 462 U. S. 862, 885 (1983) (if a State “attached the ‘aggravating’ label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant . . . due process of law would require that the jury’s decision to impose death be set aside”); Furman v. Georgia, 408 U. S. 238, 242 (1972) (Douglas, J., concurring); Brooks v. Kemp, 762 F. 2d, at 1409.

Evaluation of Gathers’ claim requires consideration of the entire record to determine whether any allegedly erroneous or improper remarks so infected the entire proceedings with unfairness as to render the resulting sentence a denial of due process. See Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974); Darden v. Wainwright, 477 U. S. 168 (1986). Because the “Game Guy’s Prayer” was already in evidence without objection and could have been read by the jury even if the prosecutor never mentioned it, the prosecutor’s reading of that document during his closing argument may constitute harmless error. Nevertheless, I would remand this case to the South Carolina Supreme Court to conduct this inquiry in the first instance.

Gathers also argues that he did not have the opportunity to rebut the prosecutor’s positive statements about the victim’s characteristics, and thus that his death sentence violates the dictates of Gardner v. Florida, 430 U. S. 349, 362 (1977) (opinion of Stevens, J.) (due process precludes imposition of the death penalty on the basis of information in a presentence report which the defendant had no opportunity to rebut). Brief for Respondent 18-20. “No doubt a capital defendant must be allowed to introduce relevant evidence in rebuttal to a victim impact statement.” Booth, 482 U. S., at 518 (White, J., dissenting); id., at 506-507 (opinion of the Court). In this case, however, respondent has pointed to no evidence introduced at the penalty phase that he was precluded from rebutting. Rather, the prosecutor commented upon evidence introduced without objection at the guilt phase of the trial and drew various inferences from that evidence. Just as the prosecutor could comment upon evidence in the record about the victim during his closing argument, so could defense counsel. In fact, defense counsel did comment upon the prosecutor’s repeated reference to Haynes as “Reverend Minister.” App. 45. But, like respondent’s other due process claim, this issue is best addressed by the South Carolina Supreme Court on remand. Because the majority instead adopts an Eighth Amendment barrier to virtually any discussion of the victim’s personal characteristics at the penalty phase of a murder trial, I respectfully dissent.

Justice Scalia,

dissenting.

Two Terms ago, when we decided Booth v. Maryland, 482 U. S. 496 (1987), I was among four Members of the Court who believed that the decision imposed a restriction upon state and federal criminal procedures that has no basis in the Constitution. See id., at 515 (White, J., dissenting); id., at 519 (Scalia, J., dissenting). I continue to believe that Booth was wrongly decided, and my conviction that it does perceptible harm has been strengthened by subsequent writings pointing out the indefensible consequences of a rule that the specific harm visited upon society by a murderer may not be taken into account when the jury decides whether to impose the sentence of death. See ante, at 816-820 (O’Connor, J., dissenting); Mills v. Maryland, 486 U. S. 367, 397 (1988) (Rehnquist, C. J., dissenting). Once it is accepted, moreover, that the nature of the specific harm may be considered, I see no basis for drawing a distinction for Eighth Amendment purposes between the admirable personal characteristics of the particular victim and the particular injury caused to the victim’s family and fellow citizens. Indeed, I would often find it impossible to tell which was which. (Would the fact that the victim was a dutiful husband and father be a personal characteristic or an indication of injury to others?) I therefore think the present case squarely calls into question the validity of Booth, and I would overrule that case.

It has been argued that we should not overrule so recent a decision, lest our action “appear to be . . . occasioned by nothing more than a change in the Court’s personnel,” and the rules we announce no more than “ ‘the opinions of a small group of men who temporarily occupy high office.’” Brief for Barbara Babcock et al. as Amici Curiae 29-30 (quoting Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U. S. 147, 154 (1981) (Stevens, J., concurring)). I doubt that overruling Booth will so shake the citizenry’s faith in the Court. Overrulings of precedent rarely occur without a change in the Court’s personnel. The only distinctive feature here is that the overruling would follow not long after the original decision. But that is hardly unprecedented. See, e. g., Daniels v. Williams, 474 U. S. 327, 330-331 (1986) (overruling Parratt v. Taylor, 451 U. S. 527 (1981)); United States v. Scott, 437 U. S. 82, 86-87 (1978) (overruling United States v. Jenkins, 420 U. S. 358 (1975)); West Virginia Board of Education v. Barnette, 319 U. S. 624, 642 (1943) (overruling Minersville School District Board of Education v. Gobitis, 310 U. S. 586 (1940)). Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long-established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it. That is particularly true with respect to a decision such as Booth, which is in that line of cases purporting to reflect “evolving standards of decency” applicable to capital punishment. Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion). Once a law-abiding society has revised its laws and practices to comply with such an erroneous decision, the existence of a new “consensus” can be appealed to — or at least the existence of the pre-existing consensus to the contrary will no longer be evident — thus enabling the error to triumph by our very failure promptly to correct it. Cf. Thompson v. Oklahoma, 487 U. S. 815, 854-855 (1988) (O’Connor, J., concurring in judgment).

In any case, I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face. With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible (a description that surely does not apply to Booth), I agree with Justice Douglas: “A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.” Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949). Or as the Court itself has said: “[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.” Smith v. Allwright, 321 U. S. 649, 665 (1944).

Booth has not even an arguable basis in the common-law background that led up to the Eighth Amendment, in any longstanding societal tradition, or in any evidence that present society, through its laws or the actions of its juries, has set its face against considering the harm caused by criminal acts in assessing responsibility. The Court’s opinion in Booth, like today’s opinion, did not even try to assert the contrary. We provide far greater reassurance of the rule of law by eliminating than by retaining such a decision.

I respectfully dissent.

      The objects found scattered around Haynes’ body were, for the most part, admitted into evidence during the testimony of Charleston police officer Anthony Hazel. Record 768-790. At no time then, or otherwise during the guilt phase, was there any reference to the content of the papers Haynes had with him. For example, the following was the entire colloquy at the time many of the papers were admitted:

        “Q. Okay____ What else?
      “A. Point C, we found some personal papers.
      “Q. Personal papers that appeared to belong to the victim?
      “A. Yes, sir.
      “Q. That would be State’s Exhibit 19?
      “A. Yes.” Id., at 782.
      See also id., at 787.


author:
Justice Marshall
      Justice Kennedy,

text:
    NEWMAN-GREEN, INC. v. ALFONZO-LARRAIN et al.
    No. 88-774.
    Argued April 24, 1989
    Decided June 12, 1989

      Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, Stevens, and O’Connor, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 839.

      Phil C. Neal argued the cause for petitioner. With him on the briefs were Rowe W. Snider and Michael D. Sher.

      Frank K. Heap argued the cause for respondents. With him on the brief were Charles G. Albert and William L. Barr, Jr.

   Justice Marshall

delivered the opinion of the Court.

We decide today that a court of appeals may grant a motion to dismiss a dispensable party whose presence spoils statutory diversity jurisdiction.

I

Petitioner Newman-Green, Inc., an Illinois corporation, brought this state-law contract action in District Court against a Venezuelan corporation, four Venezuelan citizens, and William L. Bettison, a United States citizen domiciled in Caracas, Venezuela. Newman-Green’s complaint alleged that the Venezuelan corporation had breached a licensing agreement, and that the individual defendants, joint and several guarantors of royalty payments due under the agreement, owed money to Newman-Green. Several years of discovery and pretrial motions followed. The District Court ultimately granted partial summary judgment for the guarantors and partial summary judgment for Newman-Green. 590 F. Supp. 1083 (ND Ill. 1984). Only Newman-Green appealed.

At oral argument before a panel of the Seventh Circuit Court of Appeals, Judge Easterbrook inquired as to the statutory basis for diversity jurisdiction, an issue which had not been previously raised either by counsel or by the District Court Judge. In its complaint, Newman-Green had invoked 28 U. S. C. § 1332(a)(3), which confers jurisdiction in the District Court when a citizen of one State sues both aliens and citizens of a State (or States) different from the plaintiff’s. In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State. See Robertson v. Cease, 97 U. S. 646, 648-649 (1878); Brown v. Keene, 8 Pet. 112, 115 (1834). The problem in this case is that Bettison, although a United States citizen, has no domicile in any State. He is therefore “stateless” for purposes of § 1332(a)(3). Subsection 1332(a)(2), which confers jurisdiction in the District Court when a citizen of a State sues aliens only, also could not be satisfied because Bettison is a United States citizen.

When a plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the requirements of the diversity statute for each defendant or face dismissal. Strawbridge v. Curtiss, 3 Cranch 267 (1806). Here, Bettison’s “stateless” status destroyed complete diversity under § 1332(a)(3), and his United States citizenship destroyed complete diversity under § 1332(a)(2). Instead of dismissing the case, however, the Court of Appeals panel granted Newman-Green’s motion, which it had invited, to amend the complaint to drop Bettison as a party, thereby producing complete diversity under § 1332(a)(2). 832 F. 2d 417 (1987). The panel, in an opinion by Judge Easterbrook, relied both on 28 U. S. C. § 1653 and on Rule 21 of the Federal Rules of Civil Procedure as sources of its authority to grant this motion. The panel noted that, because the guarantors are jointly and severally liable, Bettison is not an indispensable party and dismissing him would not prejudice the remaining guarantors. 832 F. 2d, at 420, citing Fed. Rule Civ. Proc. 19(b). The panel then proceeded to the merits of the case, ruling in Newman-Green’s favor in large part but remanding to allow the District Court to quantify damages and to resolve certain minor issues.

The Court of Appeals granted the remaining guarantors’ motion for rehearing en banc and reversed the panel decision. 854 F. 2d 916 (1988). Writing for the en banc majority, Judge Posner concluded that neither § 1653 nor Rule 21 empowers appellate courts to dismiss a dispensable party whose presence spoils statutory diversity jurisdiction. The court did not, however, order the dismissal of the lawsuit. Recognizing that Rule 21 permits district courts to drop a dispensable nondiverse party, the court remanded the case to the District Court for it to determine whether it would be prudent to drop Bettison from the litigation. Judge Easter-brook, joined by the other two members of the original panel, wrote a dissenting opinion in which he elaborated on the panel opinion. Id., at 927.

Unlike the Seventh Circuit, the Courts of Appeals for the Second, Third, Ninth, and District of Columbia Circuits have held that appellate courts have the power to dismiss jurisdictional spoilers like Bettison. We granted Newman-Green’s petition for certiorari in order to resolve this conflict, 488 U. S. 1003 (1989), and now reverse.

II

The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed. See, e. g., Smith v. Sperling, 354 U. S. 91, 93, n. 1 (1957). Like most general principles, however, this one is susceptible to exceptions, and the two that are potentially applicable here are reflected in 28 U. S. C. § 1653 and Rule 21 of the Federal Rules of Civil Procedure. We discuss each potential exception in turn.

A

Title 28 U. S. C. § 1653, enacted as part of the revision of the Judicial Code in 1948, provides that “[defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” At first blush, the language of this provision appears to cover the situation here, where the complaint is amended to drop a nondiverse party in order to preserve statutory jurisdiction. But § 1653 speaks of amending “allegations of jurisdiction,” which suggests that it addresses only incorrect statements about jurisdiction that actually exists, and not defects in the jurisdictional facts themselves. Under this reading of the statute, which we believe is correct, § 1653 would apply if Bettison were, in fact, domiciled in a State other than Illinois or was, in fact, not a United States citizen, but the complaint did not so allege. It does not apply to the instant situation, where diversity jurisdiction does not, in fact, exist.

This interpretation of § 1653 is consistent with the language of its predecessor statute, enacted in 1915, which expressly limited jurisdictional amendments to cases in which diversity jurisdiction “in fact existed at the time the suit was brought or removed, though defectively alleged.” § 274(c), Act of Mar. 3, 1915, 38 Stat. 956, 28 U. S. C. § 399 (1946 ed.). There is nothing in the 1948 legislative history to indicate that, in changing the wording of this statute, Congress intended to abandon the limitation just quoted. On the contrary, the only legislative guide available — the Revision Note to § 1653 — explains that the predecessor statute was changed solely to expand the power to cure defective allegations of jurisdiction from diversity cases to all cases. Historical and Revision Notes to 28 U. S. C. §1653. Other than that, “[cjhanges were made in phraseology.” Ibid. Surely a change that would empower federal courts to amend a complaint so as to produce jurisdiction where none actually existed before is much more than a change in phraseology. Furthermore, every Court of Appeals that has considered the scope of § 1653 has held that it allows appellate courts to remedy inadequate jurisdictional allegations, but not defective jurisdictional facts. We decline to reject this longstanding interpretation of the statute.

B

We turn next to the other source of authority discussed by the Court of Appeals, Rule 21 of the Federal Rules of Civil Procedure, which provides that “[pjarties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” As both the en banc majority and dissent recognized below, it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered. Although the Federal Rules of Civil Procedure strictly apply only in the district courts, Fed. Rule Civ. Proc. 1, the policies informing Rule 21 may apply equally to the courts of appeals. The narrow question before us, therefore, is whether a court of appeals may do what a district court can do and dismiss a dispensable nondiverse party itself, or whether a court of appeals must remand the case to the district court, leaving it to the district court’s discretion to dismiss the party?

Almost every modern Court of Appeals faced with this issue has concluded that it has the authority to dismiss a dispensable nondiverse party by virtue of Rule 21. As with § 1653, we are reluctant to disturb this well-settled judicial construction, particularly when there is no evidence that this authority has been abused by the courts of appeals (or the district courts for that matter). Furthermore, we have ourselves exercised a similar authority under Rule 21. In Mullaney v. Anderson, 342 U. S. 415 (1952), the defendant first questioned the plaintiff-union’s standing to bring suit when the case reached this Court. Relying explicitly on Rule 21, we avoided deciding the standing issue by granting the union’s motion to add as parties two of its members. Although we did not discuss extensively Rule 21’s applicability in the appellate setting, we did note that the change in the parties would not have “affected the course of the litigation” if it had occurred at some earlier point, and would not “embarrass the defendant.” Id., at 417. The Court further remarked that dismissing the petition and thereby requiring the plaintiffs to start over in the District Court “would entail needless waste and runs counter to effective judicial administration.” Ibid. Finally, the Court expressed confidence that amendments at such a late stage “will rarely come into play.” Ibid; cf. Rogers v. Paul, 382 U. S. 198, 198-199 (1965) (per curiam)

The motion granted in Mullaney represented the exercise of an appellate power that long predates the enactment of the Federal Rules. In Anonymous, 1 F. Cas. 996, 997 (No. 444) (CC Mass. 1812), Justice Story, sitting as Circuit Justice, wrote that “[t]here is then, in the nature of an appellate jurisdiction, nothing which forbids the granting of amendments.” Justice Story derived this appellate power from “the course of the common law,” which permitted “‘the superior court . . . [to] make such amendments, as the court below may.’” Ibid., quoting King v. Ponsonby, 1 Wils. 303, 95 Eng. Rep. 631 (K. B. 1751); see also 1 F. Cas, at 997, citing Pease v. Morgan, 7 Johns. 468, 469 (N. Y. 1811). He also looked to § 32 of the Judiciary Act of 1789, which provided that a federal court “may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion and by their rules prescribe.” 1 Stat. 91, formerly codified at 28 U. S. C. §777 (1946 ed.). He cautioned, however, that this amendment power should be used in such a way that “no unfair advantage shall be taken by one party, and no oppression practised by the other.” 1 F. Cas., at 998.

While Justice Story’s opinion dealt generally with the amendment power of appellate courts, Chief Justice Marshall’s opinion for this Court in Carneal v. Banks, 10 Wheat. 181 (1825), dealt with the issue at hand — the power of appellate courts to grant motions to dismiss dispensable non-diverse parties. The case involved a suit by plaintiff Banks against two groups of defendants, the heirs of Harvie and the heirs of Carneal. Only the heirs of Carneal had citizenship diverse from the plaintiff. After noting this jurisdictional problem, the Court stated: “The bill... as to Harvie’s heirs, may be dismissed, without in any manner affecting the suit against Carneal’s heirs. That they have been improperly made defendants in his bill, cannot affect the jurisdiction of the Court as between those parties who are properly before it.” Id., at 188. The Court predicated this ruling, in part, on the fact that it was not “indispensable to bring Harvie’s heirs before the Court.” Ibid. Although the Court did not state explicitly whether the Circuit Court in which the case arose had dismissed Harvie’s heirs, a review of the Circuit Court’s opinion in Carneal reveals that the lower court never dismissed the nondiverse parties. Thus, this Court itself dismissed the nondiverse parties while acting in an appellate capacity.

By contrast, Horn v. Lockhart, 17 Wall. 570 (1873), clearly involved a trial court’s decision to dismiss dispensable non-diverse parties. In approving such action, however, the Court used language that is strikingly reminiscent of that employed in Carneal: “[T]he question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether . . . they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them.” 17 Wall., at 579. This similarity of language is not surprising; the considerations implicit in a trial court’s exercise of this power are equally applicable when an appellate court exercises the same power. Moreover, once it is recognized that trial courts have this amendment power, it is exceedingly difficult to argue that a similar power exercised by appellate courts presents the risk of jurisdiction retroactively conferred.

Although these 19th-century cases were decided in a procedural era different from our own, it is apparent that the weight of authority favored the view that appellate courts possessed the authority to grant motions to dismiss dispensable nondiverse parties. Courts relied then on §32 of the Judiciary Act of 1789 or on the inherent power of appellate courts. Today courts rely on Mullaney or Federal Rule 21. We decline to disturb that deeply rooted understanding of appellate power, particularly when requiring dismissal after years of litigation would impose unnecessary and wasteful burdens on the parties, judges, and other litigants waiting for judicial attention. See Mullaney, 342 U. S., at 417. Appellate-level amendments to correct jurisdictional defects may not be the most intellectually satisfying approach to the spoiler problem, but, as Judge Posner eloquently noted, because “law is an instrument of governance rather than a hymn to intellectual beauty, some consideration must be given to practicalities.” 854 F. 2d, at 925.

In this case, the practicalities weigh heavily in favor of the decision made by the Court of Appeals panel to grant Newman-Green’s motion to dismiss Bettison as a party. If the entire suit were dismissed, Newman-Green would simply refile in the District Court against the Venezuelan corporation and the four Venezuelans and submit the discovery materials already in hand. The case would then proceed to a preordained judgment. See id., at 932, 939-940 (Easter-brook, J., dissenting). Newman-Green should not be compelled to jump through these judicial hoops merely for the sake of hypertechnical jurisdictional purity.

Although we hold that the courts of appeals have the authority to dismiss a dispensable nondiverse party, we emphasize that such authority should be exercised sparingly. In each case, the appellate court should carefully consider whether the dismissal of a nondiverse party will prejudice any of the parties in the litigation. It may be that the presence of the nondiverse party produced a tactical advantage for one party or another. If factual disputes arise, it might be appropriate to remand the case to the district court, which would be in a better position to make the prejudice determination. But we decline to erect a per se rule that the district court must first make such a determination in every case.

In the instant case, it is evident that none of the parties will be harmed by Bettison’s dismissal. First, Bettison’s presence did not provide Newman-Green with a tactical advantage. Discovery directed to Bettison while he was a party would have been available even if he had not been a party. See, e. g., Fed. Rule Civ. Proc. 30(a); 28 U. S. C. § 1783. Second, given that all of the guarantors (including Bettison) are jointly and severally liable, it cannot be argued that Bettison was indispensable to the suit. Fed. Rule Civ. Proc. 19(b); see 854 F. 2d, at 938 (Easterbrook, J., dissenting). The only person who faces any prejudice is Bettison himself, who has participated in this litigation from the start, and who would face the possibility of suit in a state or Venezuelan court. The panel solved this problem by terminating the litigation against Bettison with prejudice, thus leaving the other guarantors with the burden of pursuing Bettison to obtain contribution or indemnity. 832 F. 2d, at 420. The panel’s disposition was entirely appropriate. Nothing but a waste of time and resources would be engendered by remanding to the District Court or by forcing these parties to begin anew.

Ill

For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Kennedy,

with whom Justice Scalia joins,

dissenting.

Our colleagues on the Court of Appeals disagree about whether 28 U. S. C. § 1653, which provides that “[defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate court[,]” empowers a court of appeals to dismiss a party who spoils complete diversity. The Court holds today that § 1653 does not give an appellate court the power to cure actual defects in jurisdiction, but extends only to defects in its allegation. See ante, at 830. I agree that this is the correct interpretation of § 1653.

That should end the case. For if Congress thought it necessary to provide by affirmative statutory grant the rather ministerial power to cure defective allegations in jurisdiction, the more awesome power of curing actual defects in jurisdiction ought not be presumed, absent a statutory grant just as explicit. The balance of the Court’s opinion in effect demonstrates that no such clear source of authority can be found to rebut the strong negative implication from the Court’s interpretation of § 1653. The Court nevertheless holds that the power in question exists, though it cannot provide us with its precise location.

As an initial matter, it is disturbing that the Court does not address in a substantive way the grave, brooding question whether Federal Rule of Civil Procedure 21 affords even the district courts the power to confer jurisdiction retroactively by dismissing a nondiverse party. On this critical point, the Court states only that this question is “well settled” in the lower courts. See ante, at 832. But it has never been the rule that federal courts, whose jurisdiction is created and limited by statute, see Finley v. United States, ante, at 547-548, acquire power by adverse possession. Indeed, I have some doubts that Rule 21 provides this power to district courts. For one thing, it is important to note that Rule 21 governs only misjoinder and nonjoinder. But that is not what is at issue in this case. There is no claim here that Bettison is an improper party to this action, only that his presence defeats federal jurisdiction. It must be remembered, moreover, that Federal Rule of Civil Procedure 82 expressly provides that the other Rules must not be construed to extend or limit the jurisdiction of the district courts. Since dismissing a nondiverse party confers jurisdiction retroactively on the district court, it is questionable whether relying on Rule 21 is consistent with Rule 82’s clear admonition. Finally, 28 U. S. C. § 1653 governs the power of not only appellate courts but also trial courts, and if, as the Court holds, that section confers only the authority to cure defective allegations of jurisdiction, then the same negative implication which I discuss above clouds the district courts’ ability to cure actual jurisdictional defects under the vague authority of Rule 21. The charming utility of the nunc pro tunc device cannot obscure its outright fiction.

Even on the assumption, however, that Rule 21 provides the district courts with the necessary authority to dismiss a nondiverse party at any stage of the litigation for the sole purpose of creating jurisdiction where none existed before, it is just not possible to rely on that Rule as the source of authority for appellate courts. For notwithstanding some rather odd language to the contrary in Mullaney v. Anderson, 342 U. S. 415, 417 (1952) (“Rule 21 will rarely come into play at this [i. e., in the Supreme Court] stage of a litigation”) (emphasis added), it is well settled that “the Federal Rules of Civil Procedure . . . apply only in the federal district courts.” Automobile Workers v. Scofield, 382 U. S. 205, 217, n. 10 (1965).

The two 19th-century cases relied upon by the Court, Horn v. Lockhart, 17 Wall. 570 (1873), and Carneal v. Banks, 10 Wheat. 181 (1825), do not establish the authority of an appellate court to dismiss a nondiverse party to preserve jurisdiction. Both the majority and the dissent in the Court of Appeals recognized that, at most, Horn speaks of the powers of a trial court, see 854 F. 2d 916, 921 (1988) (Posner, J.); id., at 931 (Easterbrook, J.), and the Court concedes as much, see ante, at 835-836. Nor does Carneal establish in any explicit way, or even by necessary inference, the authority of an appellate court to preserve jurisdiction by dismissing a non-diverse party who defeats complete diversity.

The majority’s reliance on Carneal proceeds from a premise that is -most questionable. It assumes that Cameal involved a single action in which this Court dismissed on its own the nondiverse parties. Judge Posner, however, observed that the Court in Carneal may have in fact “treated the suit as if it were two suits, one satisfying the requirement of complete diversity, the other dismissable and dismissed.” 854 F. 2d, at 921. Judge Posner, perhaps, understated his own case. Carneal involved a contract in which the plaintiff, Banks, “agreed to transfer to Carneal the right of the said Banks in 30,000 acres of land purchased by him from John Harvie,” in exchange for which Carneal promised to convey to Banks “a tract of 2,000 acres of land on Green River.” 10 Wheat., at 182. Banks claimed that “Carneal was guilty of fraud in pretending to have a good title to the said 2,000 acres of land.” Id., at 182-183. Because the contract involved a conveyance of the 30,000 acres from Harvie to Carneal, in order for Banks to obtain complete relief, he prayed both “that the contract [between Carneal and Banks] ... be rescinded” and “that the heirs of John Harvie ... , in whom the legal title to the said 30,000 acres remains, ... be decreed to convey the same to [Banks].” Id., at 183. The jurisdictional problem was that, although there was complete diversity between Banks and Carneal’s heirs, there was no diversity between Banks and Harvie’s heirs. See id., at 187-188. The Court appears to have treated the claims against Harvie’s heirs (the nondiverse parties) as a separate suit which in no way affected jurisdiction over Banks’ suit against Carneal’s heirs. The Court stated: “If the validity of this objection [the lack of diversity], so far as respects Harvie’s heirs, be unquestionable, it cannot affect the suit against Carneal’s heirs . . . Id., at 188 (emphasis added). Because the Court concluded that Harvie’s heirs were not indispensable to the suit against Carneal’s heirs, the Court held that “[t]he bill ... , as to Harvie’s heirs, may be dismissed without in any manner affecting the suit against Carneal’s heirs.” Ibid, (emphasis added). The more plausible interpretation of Carneal is that the Court did not dismiss the nondiverse parties in a single action and then proceed to the merits, but rather dismissed the suit against the nondiverse parties for want of jurisdiction and went on to decide the merits of the separate suit that met the requirements of complete diversity. Seen in this light, Carneal does not establish the authority of an appellate court to preserve jurisdiction by dismissing a nondiverse party, but rather evidences only the usual appellate power to dismiss an action in which the federal courts lack jurisdictional authority.

There is, moreover, a more basic reason not to place heavy reliance on Carneal and Horn. As the Court concedes, these cases “were decided in a procedural era different from our own,” ante, at 836. The powers of the district courts and courts of appeals are now governed by Federal Rules of Procedure and various other provisions in Title 28. In my view, these cases do not establish an authority in the appellate courts so clear that it survives the plain negative implication from the one statutory provision on point (§ 1653). Whatever may be implied from Carneal, the present statutory authority permits appellate courts to cure only defective allegations of jurisdiction and not jurisdictional flaws.

I am not at all persuaded, either, that practical considerations in the case warrant our holding that courts of appeals have the power to dismiss nondiverse parties. The dissent in the Court of Appeals, and the opinion for the Court here, each assume it would be quite a waste to remand the case to the District Court so that it may determine whether an amendment to the complaint ought to be allowed. But if, as the Court and the dissent below contend, there would be no prejudice to respondents from amending the complaint to dismiss the nondiverse party, how long could it take for the District Court to decide this and reenter its judgment? I should think a limited remand for this purpose, with the appellate panel to resume jurisdiction if amendment is permitted, would be most expeditious. The overriding practical consideration is that the District Court, which managed the process of discovery and the presentation of evidence at trial, is in the much better position to determine whether the dismissal of the nondiverse party, after judgment, would prejudice the defendant.

For these reasons, and with all due respect, I dissent from the opinion and judgment of the Court.

       This complete diversity requirement is based on the diversity statute, not Article III of the Constitution. State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 530-531 (1967).

       The panel’s merits determination has no bearing on the jurisdictional question presently before us. We note nonetheless that the panel decision, combined with the partial summary judgment granted Newman-Green in the District Court, provided the guarantors with a strong incentive to have the ease dismissed for want of jurisdiction.

       See, e. g., Long v. District of Columbia, 261 U. S. App. D. C. 1, 8-9, 820 F. 2d 409, 416-417 (1987); Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F. 2d 1519, 1523, and n. 3 (CA9 1987); Caspary v. Louisiana Land & Exploration Co., 725 F. 2d 189, 191-192 (CA2 1984) (per curiam); Underwood v. Maloney, 256 F. 2d 334, 339 (CA3), cert. denied, 358 U. S. 864 (1958); cf. Reed v. Robilio, 376 F. 2d 392, 394 (CA6 1967).

       Although Revision Notes are not conclusive evidence of congressional intent, we have previously stated that no change in law should be presumed from the 1948 revision of the Judicial Code “unless an intent to make such changes is clearly expressed.” Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957). No such intent is clearly expressed with regard to § 1653.

       See, e. g., Rockwell Int’l Credit Corp. v. United States Aircraft Ins. Group, 823 F. 2d 302, 304 (CA9 1987); Sarnoff v. American Home Products Corp., 798 F. 2d 1075, 1079 (CA7 1986); Aetna Casualty & Surety Co. v. Hillman, 796 F. 2d 770, 775-776 (CA5 1986); Boelens v. Redman Homes, Inc., 759 F. 2d 504, 512 (CA5 1985); Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co., 700 F. 2d 889, 893 (CA2), cert. dism’d, 463 U. S. 1233 (1983); Field v. Volkswagenwerk AG, 626 F. 2d 293, 305-306 (CA3 1980); cf. Carson v. Allied News Co., 511 F. 2d 22, 24 (CA7 1975); Thomas v. Anderson, 223 F. 41, 43 (CA8 1915).

       See, e. g., Fritz v. American Home Shield Corp., 751 F. 2d 1152, 1154-1155 (CA11 1985); Publicker Industries, Inc. v. Roman Ceramics Corp., 603 F. 2d 1065, 1068-1069 (CA3 1979); Caperton v. Beatrice Pocahontas Coal Co., 585 F. 2d 683, 691-692, and n. 23 (CA4 1978).

       See, e. g., Long, 820 F. 2d, at 416-417; Ross v. Int'l Brotherhood of Electrical Workers, 634 F. 2d 453, 456-457 (CA9 1980); Fidelity & Casualty Co. v. Reserve Ins. Co., 596 F. 2d 914, 918 (CA9 1979); Underwood, 256 F. 2d, at 339; cf. Caspary, 725 F. 2d, at 191-192 (relying on Fed. Rule Civ. Proc. 15). Other courts have remanded the ease to the district court with mandatory instructions to allow an amendment dismissing the non-diverse party in order to preserve diversity jurisdiction. See, e. g., Jaser v. Neiv York Property Ins. Underwriting Assn., 815 F. 2d 240, 244 (CA2 1987). The cases holding that appellate courts are powerless to remedy such jurisdictional defects are few and far between. See, e. g., Field, supra, at 306; Dollar S. S. Lines, Inc. v. Merz, 68 F. 2d 594, 595 (CA9 1934).

         Mullaney v. Anderson, 342 U. S. 415 (1952), cannot be explained as a case involving a technical change to identify the real parties in interest. The addition of the union members was considered necessary to establish the existence of a justiciable case. At the time, it was not clear that unions had standing to sue on behalf of their members. See NAACP v. Button, 371 U. S. 415, 428 (1963).

       Section 32 of the Judiciary Act was repealed with the passage of the Federal Rules of Civil Procedure. Act of June 25, 1948, Pub. L. 773, 62 Stat. 869, 993.

       We recognize that copies of the Circuit Court opinion in Carneal are not easily available; however, a handwritten copy resides in the National Archives.

       In Kennedy v. Bank of Georgia, 8 How. 586 (1850), the Court rejected the argument that its prior judgment in the same case was void for want of jurisdiction because it lacked the power to accept a stipulation amending the pleadings to reflect correctly the existence of diversity jurisdiction. In so doing, the Court stated: “[I]t has been the practice of this court, where amendments are necessary, to remand the cause to the Circuit Court for that purpose. The only exception to this rule has been, where counsel on both sides have agreed to the amendment.” Id., at 611. This passage suggests that the Court viewed this limitation on its amendment power as discretionary. There is no indication that the Court thought it lacked the authority to permit such amendments. On the contrary, in discussing the proper course of action in the case, the Court incorporated Justice Story’s broad view of the common-law power of appellate courts to accept amendments. See ibid., citing Anonymous, 1 F. Cas. 996 (No. 444) (CC Mass. 1812). Although there is language in several 19th-century cases that can be read to suggest that the Court did not have the authority to allow such amendments, see Denny v. Pironi, 141 U. S. 121, 124 (1891); Menard v. Goggan, 121 U. S. 253, 254 (1887); Peper v. Fordyce, 119 U. S. 469, 471 (1886); Halsted v. Buster, 119 U. S. 341, 342 (1886); Continental Ins. Co. v. Rhoads, 119 U. S. 237, 240 (1886), we believe these cases are best understood as examples of the discretionary practice referred to in Kennedy v. Bank of Georgia, supra. See Norton v. Larney, 266 U. S. 511, 515-516 (1925).

       The en banc Court of Appeals thought it would require a “crystal ball” to determine the fate of this litigation in the District Court upon remand, speculating that Newman-Green might abandon its federal-court action and move to state court or even to a Venezuelan court. 854 F. 2d, at 925. We agree with Judge Easterbrook, however, that “[a] great many zeros precede the first significant digit in the probability of this.” Id., at 940 (dissenting opinion). As he cogently explained:
      “After the panel of our court flagged the jurisdictional problem, [Newman-Green] had to decide what it wanted to do. [Newman-Green] had lost the bulk of its case in the district court (although it had won some $200,000 on a portion of the case no longer in dispute). It was guaranteed a new run at the subject in state court, against all defendants, by retaining Bettison as a defendant. [Newman-Green] instead filed a motion to dismiss Bettison and take its chances on the merits. If it was willing to pursue this suit in federal court without Bettison when all it had to show for itself was a loss, and to abandon any hope of reaching Bettison’s assets if it should prevail, what is it going to do now that it has an opinion in its favor on the merits? Go to state court, where things could get worse but are not likely to get better? If this suit is dismissed, it will be refiled in federal court. The only question is just how much time will be lost along the way.” Ibid.