Zant v. Stephens

462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235, 1983 U.S. LEXIS 79, 51 U.S.L.W. 4891

• Court: Supreme Court of the United States
• Decided: June 22, 1983
• Docket: 81-89
• Status: Published

Opinions

Justice Stevens

delivered the opinion of the Court.

The question presented is whether respondent’s death penalty must be vacated because one of the three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the Supreme Court of Georgia, although the other two aggravating circumstances were specifically upheld. The answer depends on the function of the jury’s finding of an aggravating circumstance under Georgia’s capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be invalid.

In January 1975 a jury in Bleckley County, Georgia, convicted respondent of the murder of Roy Asbell and sentenced him to death. The evidence received at the guilt phase of his trial, which included his confessions and the testimony of a number of witnesses, described these events: On August 19, 1974, while respondent was serving sentences for several burglary convictions and was also awaiting trial for escape, he again escaped from the Houston County Jail. In the next two days he committed two auto thefts, an armed robbery, and several burglaries. On August 21st, Roy Asbell interrupted respondent and an accomplice in the course of burglarizing the home of Asbell’s son in Twiggs County. Respondent beat Asbell, robbed him, and, with the aid of the accomplice, drove him in his own vehicle a short distance into Bleckley County. There they killed Asbell by shooting him twice through the ear at point blank range.

At the sentencing phase of the trial the State relied on the evidence adduced at the guilt phase and also established that respondent’s prior criminal record included convictions on two counts of armed robbery, five counts of burglary, and one count of murder. Respondent testified that he was “sorry” and knew he deserved to be punished, that his accomplice actually shot Asbell, and that they had both been “pretty high” on drugs. The State requested the jury to impose the death penalty and argued that the evidence established the aggravating circumstances identified in subparagraphs (b)(1), (b)(7), and (b)(9) of the Georgia capital sentencing statute.¹

The trial judge instructed the jury that under the law of Georgia “every person [found] guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case.” App. 18. He explained that the jury was authorized to consider all of the evidence received during the trial as well as all facts and circumstances presented in extenuation, mitigation, or aggravation during the sentencing proceeding. He then stated:

“You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious as-saultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death.”²

The jury followed the court’s instruction and imposed the death penalty. It designated in writing that it had found the aggravating circumstances described as “One” and “Three” in the judge’s instruction.³ It made no such finding with respect to “Two.”⁴ It should be noted that the jury’s finding under “One” encompassed both alternatives identified in the judge’s instructions and in subsection (b)(1) of the statute— that respondent had a prior conviction of a capital felony and that he had a substantial history of serious assaultive convictions. These two alternatives and the finding that the murder was committed by an escapee are described by the parties as the three aggravating circumstances found by the jury, but they may also be viewed as two statutory aggravating circumstances, one of which rested on two grounds.

In his direct appeal to the Supreme Court of Georgia respondent did not challenge the sufficiency of the evidence supporting the aggravating circumstances found by the jury. Nor did he argue that there was any infirmity in the statutory definition of those circumstances. While his appeal was pending, however, the Georgia Supreme Court held in Arnold v. State, 236 Ga. 584, 539-542, 224 S. E. 2d 386, 391-392 (1976), that the aggravating circumstance described in the second clause of (b)(1) — “a substantial history of serious assaultive criminal convictions” — was unconstitutionally vague.⁵ Because such a finding had been made by the jury in this case, the Georgia Supreme Court, on its own motion, considered whether it impaired respondent’s death sentence. It concluded that the two other aggravating circumstances adequately supported the sentence. Stephens v. State, 287 Ga. 259, 261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U. S. 986 (1976). The state court reaffirmed this conclusion in a subsequent appeal from the denial of state habeas corpus relief. Stephens v. Hopper, 241 Ga. 596, 603-604, 247 S. E. 2d 92, 97-98, cert. denied, 439 U. S. 991 (1978).⁶

After the Federal District Court had denied a petition for habeas corpus, the United States Court of Appeals for the Fifth Circuit considered two constitutional challenges to respondent’s death sentence. 631 F. 2d 397 (1980). That court first rejected his contention that the jury was not adequately instructed that it was permitted to impose life imprisonment rather than the death penalty even if it found an aggravating circumstance.⁷ The court then held, however, that the death penalty was invalid because one of the aggravating circumstances found by the jury was later held unconstitutional.

The Court of Appeals gave two reasons for that conclusion. First, it read Stromberg v. California, 283 U. S. 359 (1931), as requiring that a jury verdict based on multiple grounds be set aside if the reviewing court cannot ascertain whether the jury relied on an unconstitutional ground. The court concluded:

“It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground.” 631 F. 2d, at 406.

Second, it believed that the presence of the invalid circumstance “made it possible for the jury to consider several prior convictions of [respondent] which otherwise would not have been before it.” Ibid.

In a petition for rehearing, the State pointed out that the evidence of respondent’s prior convictions would have been admissible at the sentencing hearing even if it had not relied on the invalid circumstance.⁸ The Court of Appeals then modified its opinion by deleting its reference to the possibility that the jury had relied on inadmissible evidence. 648 F. 2d 446 (1981). It maintained, however, that the reference in the instructions to the invalid circumstance “may have unduly directed the jury’s attention to his prior convictions.” Ibid. The court concluded: “It cannot be determined with the degree of certainty required in capital cases that the instruction did not make a critical difference in the jury’s decision to impose the death penalty.” Ibid.

We granted Warden Zant’s petition for certiorari, 454 U. S. 814 (1981). The briefs on the merits revealed that different state appellate courts have reached varying conclusions concerning the significance of the invalidation of one of multiple aggravating circumstances considered by a jury in a capital case.⁹ Although the Georgia Supreme Court had consistently stated that the failure of one aggravating circumstance does not invalidate a death sentence that is otherwise adequately supported,¹⁰ we concluded that an exposition of the state-law premises for that view would assist in framing the precise federal constitutional issues presented by the Court of Appeals' holding. We therefore sought guidance from the Georgia Supreme Court pursuant to Georgia’s statutory certification procedure. Ga. Code §24-4536 (Supp. 1980). Zant v. Stephens, 456 U. S. 410 (1982).¹¹

In its response to our certified question, the Georgia Supreme Court first distinguished Stromberg as a case in which the jury might have relied exclusively on a single invalid ground, noting that the jury in this case had expressly relied on valid and sufficient grounds for its verdict. The court then explained the state-law premises for its treatment of aggravating circumstances by analogizing the entire body of Georgia law governing homicides to a pyramid. It explained:

“All cases of homicide of every category are contained within the pyramid. The consequences flowing to the perpetrator increase in severity as the cases proceed from the base to the apex, with the death penalty applying only to those few cases which are contained in the space just beneath the apex. To reach that category a case must pass through three planes of division between the base and the apex.

“The first plane of division above the base separates from all homicide cases those which fall into the category of murder. This plane is established by the legislature in statutes defining terms such as murder, voluntary manslaughter, involuntary manslaughter, and justifiable homicide. In deciding whether a given case falls above or below this plane, the function of the trier of facts is limited to finding facts. The plane remains fixed unless moved by legislative act.

“The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances. The function of the factfinder is again limited to making a determination of whether certain facts have been established. Except where there is treason or aircraft hijacking, a given case may not move above this second plane unless at least one statutory aggravating circumstance exists. Code Ann. §27-2534.1(c).

“The third plane separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed. There is an absolute discretion in the factfinder to place any given case below the plane and not impose death. The plane itself is established by the factfinder. In establishing the plane, the factfinder considers all evidence in extenuation, mitigation and aggravation of punishment. Code Ann. §27-2503 and § 27-2534.1. There is a final limitation on the imposition of the death penalty resting in the automatic appeal procedure: This court determines whether the penalty of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the statutory aggravating circumstances are supported by the evidence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Code Ann. § 27-2587. Performance of this function may cause this court to remove a case from the death penalty category but can never have the opposite result.

“The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder’s discretion. Unless at least one of the ten statutory aggravating circumstances exists, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason. Waters v. State, 248 Ga. 355, 369, 283 S. E. 2d 238 (1981); Hawes v. State, 240 Ga. 327, 334, 240 S. E. 2d 833 (1977); Fleming v. State, 240 Ga. 142, 240 S. E. 2d 37 1977). In making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant.

“A case may not pass the second plane into that area in which the death penalty is authorized unless at least one statutory aggravating circumstance is found. However, this plane is passed regardless of the number of statutory aggravating circumstances found, so long as there is at least one. Once beyond this plane, the case enters the area of the factfinder’s discretion, in which all the facts and circumstances of the case determine, in terms of our metaphor, whether or not the case passes the third plane and into the area in which the death penalty is imposed.” 250 Ga. 97, 99-100, 297 S. E. 2d 1, 3-4 (1982).

The Georgia Supreme Court then explained why the failure of the second ground of the (b)(1) statutory aggravating circumstance did not invalidate respondent’s death sentence. It first noted that the evidence of respondent’s prior convictions had been properly received and could properly have been considered by the jury. The court expressed the opinion that the mere fact that such evidence was improperly designated “statutory” had an “inconsequential impact” on the jury’s death penalty decision. Finally, the court noted that a different result might be reached if the failed circumstance had been supported by evidence not otherwise admissible or if there was reason to believe that, because of the failure, the sentence was imposed under the influence of an arbitrary factor. Id., at 100, 297 S. E. 2d, at 4.

We are indebted to the Georgia Supreme Court for its helpful response to our certified question. That response makes it clear that we must confront three separate issues in order to decide this case. First, does the limited purpose served by the finding of a statutory aggravating circumstance in Georgia allow the jury a measure of discretion that is forbidden by Furman v. Georgia, 408 U. S. 238 (1972), and subsequent cases? Second, has the rule of Stromberg v. California, 283 U. S. 359 (1931), been violated? Third, in this case, even though respondent’s prior criminal record was properly admitted, does the possibility that the reference to the invalid statutory aggravating circumstance in the judge’s instruction affected the jury’s deliberations require that the death sentence be set aside? We discuss these issues in turn.

I

In Georgia, unlike some other States,¹² the jury is not instructed to give any special weight to any aggravating circumstance, to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty. For this reason, respondent argues that Georgia’s statutory scheme is invalid under the holding in Furman v. Georgia.

A fair statement of the consensus expressed by the Court in Furman is that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). After thus summarizing the central mandate of Furman, the joint opinion in Gregg set forth a general exposition of sentencing procedures that would satisfy the concerns of Furman. 428 U. S., at 189-195. But it expressly stated: “We do not intend to suggest that only the above-described procedures would be permissible under Fur-man or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Fur-man, for each distinct system must be examined on an individual basis.” Id., at 195. The opinion then turned to specific consideration of the constitutionality of Georgia’s capital sentencing procedures. Id., at 196-207.

Georgia’s scheme includes two important features which the joint opinion described in its general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia has a bifurcated procedure, see id., at 190-191, and its statute also mandates meaningful appellate review of every death sentence, see id., at 195. The statute does not, however, follow the Model Penal Code’s recommendation that the jury’s discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. See id., at 193. Instead, as the Georgia Supreme Court has unambiguously advised us, the aggravating circumstance merely performs the function of narrowing the category of persons convicted of murder who are eligible for the death penalty.

Respondent argues that the mandate of Furman is violated by a scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute. But that argument could not be accepted without overruling our specific holding in Gregg. For the Court approved Georgia’s capital sentencing statute even though it clearly did not channel the jury’s discretion by enunciating specific standards to guide the jury’s consideration of aggravating and mitigating circumstances.¹³

The approval of Georgia’s capital sentencing procedure rested primarily on two features of the scheme: that the jury was required to find at least one valid statutory aggravating circumstance and to identify it in writing, and that the State Supreme Court reviewed the record of every death penalty proceeding to determine whether the sentence was arbitrary or disproportionate. These elements, the opinion concluded, adequately protected against the wanton and freakish imposition of the death penalty.¹⁴ This conclusion rested, of course, on the fundamental requirement that each statutory aggravating circumstance must satisfy a constitutional standard derived from the principles of Furman itself. For a system “could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” 428 U. S., at 195, n. 46. To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.¹⁵

Thus in Godfrey v. Georgia, 446 U. S. 420 (1980), the Court struck down an aggravating circumstance that failed to narrow the class of persons eligible for the death penalty. Justice Stewart’s opinion for the plurality concluded that the aggravating circumstance described in subsection (b)(7) of the Georgia statute, as construed by the Georgia Supreme Court, failed to create any “inherent restraint on the arbitrary and capricious infliction of the death sentence,” because a person of ordinary sensibility could find that almost every murder fit the stated criteria. Id., at 428-429.¹⁶ Moreover, the facts of the case itself did not distinguish the murder from any other murder. The plurality concluded that there was “no principled way to distinguish this case, in which the death penalty was imposed, from the many in which it was not.” Id., at 433.

Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death.¹⁷ What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. See Eddings v. Oklahoma, 455 U. S. 104, 110-112 (1982); Lockett v. Ohio, 438 U. S. 586, 601-605 (1978) (plurality opinion); Roberts (Harry) v. Louisiana, 431 U. S. 633, 636-637 (1977); Gregg, 428 U. S., at 197 (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U. S., at 251-252 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976) (plurality opinion).¹⁸

The Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. We therefore remain convinced, as we were in 1976, that the structure of the statute is constitutional. Moreover, the narrowing function has been properly achieved in this case by the two valid aggravating circumstances upheld by the Georgia Supreme Court — that respondent had escaped from lawful confinement, and that he had a prior record of conviction for a capital felony. These two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed. Moreover, the Georgia Supreme Court in this case reviewed the death sentence to determine whether it was arbitrary, excessive, or disproportionate.¹⁹ Thus the absence of legislative or court-imposed standards to govern the jury in weighing the significance of either or both of those aggravating circumstances does not render the Georgia capital sentencing statute invalid as applied in this case.

II

Respondent contends that under the rule of Stromberg v. California, 283 U. S. 359 (1931), and subsequent cases, the invalidity of one of the statutory aggravating circumstances underlying the jury’s sentencing verdict requires that its entire death sentence be set aside. In order to evaluate this contention, it is necessary to identify two related but different rules that have their source in the Stromberg case.

In Stromberg, a member of the Communist Party was convicted of displaying a red flag in violation of the California Penal Code. The California statute prohibited such a display (1) as a “sign, symbol or emblem” of opposition to organized government; (2) as an invitation or stimulus to anarchistic action; or (3) as an aid to seditious propaganda. This Court held that the first clause of the statute was repugnant to the Federal Constitution and found it unnecessary to pass on the validity of the other two clauses because the jury’s guilty verdict might have rested exclusively on a conclusion that Stromberg had violated the first. The Court explained:

“The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause.” Id., at 367-368.

“The first clause of the statute being invalid upon its face, the conviction of the appellant, which so far as the record discloses may have rested upon that clause exclusively, must be set aside.” Id., at 369-370.

One rule derived from the Stromberg case is that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. The cases in which this rule has been applied all involved general verdicts based on a record that left the reviewing court uncertain as to the actual ground on which the jury’s decision rested. See, e. g., Williams v. North Carolina, 317 U. S. 287, 292 (1942); Cramer v. United States, 325 U. S. 1, 36, n. 45 (1945); Terminiello v. Chicago, 337 U. S. 1, 5-6 (1949); Yates v. United States, 354 U. S. 298, 311-312 (1957). This rule does not require that respondent’s death sentence be vacated, because the jury did not merely return a general verdict stating that it had found at least one aggravating circumstance. The jury expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty.

The second rule derived from the Stromberg case is illustrated by Thomas v. Collins, 323 U. S. 516, 528-529 (1945), and Street v. New York, 394 U. S. 576, 586-590 (1969). In those cases we made clear that the reasoning of Stromberg encompasses a situation in which the general verdict on a single-count indictment or information rested on both a constitutional and an unconstitutional ground. In Thomas v. Collins, a labor organizer’s contempt citation was predicated both upon a speech expressing a general invitation to a group of nonunion workers, which the Court held to be constitutionally protected speech, and upon solicitation of a single individual. The Court declined to consider the State’s contention that the judgment could be sustained on the basis of the individual solicitation alone,²⁰ for the record showed that the penalty had been imposed on account of both solicitations. “The judgment therefore must be affirmed as to both or as to neither.” 323 U. S., at 529. Similarly, in Street, the record indicated that petitioner’s conviction on a single-count indictment could have been based on his protected words as well as on his arguably unprotected conduct, flag burning. We stated that, “unless the record negates the possibility that the conviction was based on both alleged violations,” the judgment could not be affirmed unless both were valid. 394 U. S., at 588.

The Court’s opinion in Street explained:

“We take the rationale of Thomas to be that when a single-count indictment or information charges the commission of a crime by virtue of the defendant’s having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as ‘intertwined’ and have rested the conviction on both together. See 323 U. S., at 528-529, 540-541. There is no comparable hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of these counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others.” Ibid, (footnote omitted).

The rationale of Thomas and Street applies to cases in which there is no uncertainty about the multiple grounds on which a general verdict rests. If, under the instructions to the jury, one way of committing the offense charged is to perform an act protected by the Constitution, the rule of these cases requires that a general verdict of guilt be set aside even if the defendant’s unprotected conduct, considered separately, would support the verdict. It is a difficult theoretical question whether the rule of Thomas and Street applies to the Georgia death penalty scheme. The jury’s imposition of the death sentence after finding more than one aggravating circumstance is not precisely the same as the jury’s verdict of guilty on a single-count indictment after finding that the defendant has engaged in more than one type of conduct encompassed by the same criminal charge, because a wider range of considerations enters into the former determination. On the other hand, it is also not precisely the same as the imposition of a single sentence of imprisonment after guilty verdicts on each of several separate counts in a multiple-count indictment,²¹ because the qualitatively different seritence of death is imposed only after a channeled sentencing procedure. We need not answer this question here. The second rule derived from Stromberg, embodied in Thomas and Street, applies only in cases in which the State has based its prosecution, at least in part, on a charge that constitutionally protected activity is unlawful. No such charge was made in respondent’s sentencing proceeding.

In Stromberg, Thomas, and Street, the trial courts’ judgments rested, in part, on the fact that the defendant had been found guilty of expressive activity protected by the First Amendment. In contrast, in this case there is no suggestion that any of the aggravating circumstances involved any conduct protected by the First Amendment or by any other provision of the Constitution. Accordingly, even if the Strom-berg rules may sometimes apply in the sentencing context, a death sentence supported by at least one valid aggravating circumstance need not be set aside under the second Strom-berg rule simply because another aggravating circumstance is “invalid” in the sense that it is insufficient by itself to support the death penalty. In this case, the jury’s finding that respondent was a person who has a “substantial history of serious assaultive criminal convictions” did not provide a sufficient basis for imposing the death sentence. But it raised none of the concerns underlying the holdings in Stromberg, Thomas, and Street, for it did not treat constitutionally protected conduct as an aggravating circumstance.

HH h-( f — <

Two themes have been reiterated in our opimons discussing the procedures required by the Constitution in capital sentencing determinations. On the one hand, as the general comments in the Gregg joint opinion indicated, 428 U. S., at 192-195, and as The Chief Justice explicitly noted in Lockett v. Ohio, 438 U. S., at 605 (plurality opinion), there can be “no perfect procedure for deciding in which cases governmental authority should be used to impose death.” See also Beck v. Alabama, 447 U. S. 625, 638, n. 13 (1980). On the other hand, because there is a qualitative difference between death and any other permissible form of punishment, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U. S., at 305. “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 358 (1977). Thus, although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.

Respondent contends that the death sentence was impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a “substantial history of serious assaultive criminal convictions,” for these instructions may have affected the jury’s deliberations. In analyzing this contention it is essential to keep in mind the sense in which that aggravating circumstance is “invalid.” It is not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. Georgia has not, for example, sought to characterize the display of a red flag, cf. Stromberg v. California, the expression of unpopular political views, cf. Terminiello v. Chicago, 337 U. S. 1 (1949), or the request for trial by jury, cf. United States v. Jackson, 390 U. S. 570 (1968), as an aggravating circumstance. Nor has Georgia 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, cf. Herndon v. Lowry, 301 U. S. 242 (1937), or to conduct that actually should militate in favor of a lesser penalty, such as perhaps the defendant’s mental illness. Cf. Miller v. Florida, 373 So. 2d 882, 885-886 (Fla. 1979). If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury’s decision to impose death be set aside.

But the invalid aggravating circumstance found by the jury in this case was struck down in Arnold because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. See nn. 5 and 16, supra. The underlying evidence is nevertheless fully admissible at the sentencing phase. As we noted in Gregg, 428 U. S., at 163, the Georgia statute provides that, at the sentencing hearing, the judge or jury

“‘shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible.’” Ga. Code §27-2503 (1975) (emphasis supplied).²²

We expressly rejected petitioner’s objection to the wide scope of evidence and argument allowed at presentence hearings.

“We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument.... So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.” 428 U. S., at 203-204.

See id., at 206-207; see also n. 17, supra.

Thus, any evidence on which the jury might have relied in this case to find that respondent had previously been convicted of a substantial number of serious assaultive offenses, as he concedes he had been, was properly adduced at the sentencing hearing and was fully subject to explanation by the defendant.²³ Cf. Gardner v. Florida, supra (requiring that the defendant have the opportunity to rebut evidence and State’s theory in sentencing proceeding); Presnell v. Georgia, 439 U. S. 14, 16, n. 3 (1978) (same).²⁴ This case involves a statutory aggravating circumstance, invalidated by the State Supreme Court on grounds of vagueness, whose terms plausibly described aspects of the defendant’s background that were properly before the jury and whose accuracy was unchallenged. Hence the erroneous instruction does not implicate our repeated recognition that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U. S., at 604 (opinion of Burger, C. J.).

Although the Court of Appeals acknowledged on rehearing that the evidence was admissible, it expressed the concern that the trial court’s instructions “may have unduly directed the jury’s attention to his prior conviction.” 648 F. 2d, at 446. But, assuming that the instruction did induce the jury to place greater emphasis upon the respondent’s prior criminal record than it would otherwise have done, the question remains whether that emphasis violated any constitutional right. In answering this question, it is appropriate to compare the instruction that was actually given, see supra, at 866, with an instruction on the same subject that would have been unobjectionable. Cf. Henderson v. Kibbe, 431 U. S. 145, 154-157 (1977). Nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant's prior criminal record in making its sentencing determination, see n. 17, supra, even though the defendant’s prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence. There would have been no constitutional infirmity in an instruction stating, in substance: “If you find beyond a reasonable doubt that the defendant is a person who has previously been convicted of a capital felony, or that he has escaped from lawful confinement, you will be authorized to impose the death sentence, and in deciding whether or not that sentence is appropriate you may consider the remainder of his prior criminal record.”

The effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label “aggravating circumstance.” That label arguably might have caused the jury to give somewhat greater weight to respondent’s prior criminal record than it otherwise would have given. But we do not think the Georgia Supreme Court erred in its conclusion that the “mere fact that some of the aggravating circumstances presented were improperly designated ‘statutory’ ” had “an inconsequential impact on the jury’s decision regarding the death penalty.” 250 Ga., at 100, 297 S. E. 2d, at 4. The instructions, see supra, at 866, did not place particular emphasis on the role of statutory aggravating circumstances in the jury’s ultimate decision. Instead the trial court instructed the jury to “consider all of the evidence received in court throughout the trial before you” and to “consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense.” App. 18. More importantly, for the reasons discussed above, any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process.²⁵

Our decision in this case depends in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality.²⁶ We accept that court’s view that the subsequent invalidation of one of several statutory aggravating circumstances does not automatically require reversal of the death penalty, having been assured that a death sentence will be set aside if the invalidation of an aggravating circumstance makes the penalty arbitrary or capricious. 250 Ga., at 101, 297 S. E. 2d, at 4. The Georgia Supreme Court, in its response to our certified question, expressly stated: “A different result might be reached in a case where evidence was submitted in support of a statutory aggravating circumstance which was not otherwise admissible, and thereafter the circumstance failed.” Ibid. As we noted in Gregg, 428 U. S., at 204-205, we have also been assured that a death sentence will be vacated if it is excessive or substantially disproportionate to the penalties that have been imposed under similar circumstances.

Finally, we note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is “invalid” under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty. See n. 12, supra. As we have discussed, see supra, at 873-880, the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration- of aggravating and mitigating circumstances, and Georgia has not adopted such a system. Under Georgia’s sentencing scheme, and under the trial judge’s instructions in this case, no suggestion is made that the presence of more than one aggravating circumstance should be given special weight. Whether or not the jury had concluded that respondent’s prior record of criminal convictions merited the label “substantial” or the label “assaultive,” the jury was plainly entitled to consider that record, together with all of the other evidence before it, in making its sentencing determination.

The judgment of the Court of Appeals is

Reversed.

1 Georgia Code §27-2534.1(b) (1978) provided, in part:

“In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:

“(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.

“(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

“(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.”

2 The instruction to the sentencing jury, App. 18-19, is quoted in full in our opinion in Zant v. Stephens, 456 U. S. 410, 412-413, n. 1 (1982).

3 The jury made the following special findings:

“(1) The offense of Murder was committed by a person with a prior record of conviction for a capital felony. The offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. (2) The offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer and place of lawful confinement.” App. 23.

4 Thus, this case does not implicate our holding in Godfrey v. Georgia, 446 U. S. 420 (1980), that the (b)(7) aggravating circumstance as construed by the Georgia Supreme Court was unconstitutionally broad and vague.

5 The defendant in Arnold had been sentenced to death by a jury which found no other aggravating circumstance. On appeal, he contended that the language of the clause “does not provide the sufficiently ‘clear and objective standards’ necessary to control the jury’s discretion in imposing the death penalty. Coley v. State, [231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974)]; Furman v. Georgia, 408 U. S. 238 (1971).” The Georgia Supreme Court agreed that the statutory language was too vague and nonspecific to be applied evenhandedly by a jury. 236 Ga., at 540-542, 224 S. E. 2d, at 391-392.

6 In his state habeas petition, respondent unsuccessfully challenged the aggravating circumstance that he had a prior conviction for a capital felony. He was admittedly under such a conviction at the time of his trial in this case, but not at the time of the murder. The Supreme Court of Georgia interpreted the statute, Ga. Code § 27-2584.1(b)(1) (1978), as referring to the defendant’s record at the time of sentencing. Accordingly, respondent’s contention was rejected. 241 Ga., at 602-603, 247 S. E. 2d, at 96-97. Respondent renewed his challenge to that aggravating circumstance in his federal habeas petition, but the Court of Appeals correctly recognized that it had no authority to question the Georgia Supreme Court’s interpretation of state law. 631 F. 2d 397, 405 (CA5 1980). The contention is not renewed here.

7 Id., at 404-405. This aspect of the Court of Appeals’ decision is not before us.

8 Ga. Code §27-2503(a) (1978); 241 Ga., at 603-604, 247 S. E. 2d, at 97-98; see infra, at 886-887.

9 Brief for Respondent 40-45; Brief for State of Alabama et al. as Amici Curiae 13-15.

10 456 U. S., at 414; cf. Gregg v. Georgia, 428 U. S. 153, 201, n. 53 (1976) (noting cases in which the Georgia Supreme Court had not explicitly relied on one of several aggravating circumstances when it upheld the death sentence).

11 We certified the following question:

“What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury?” 456 U. S., at 416-417.

12 See, e. g., Williams v. State, 274 Ark. 9, 10, 621 S. W. 2d 686, 687 (1981); State v. Irwin, 304 N. C. 93, 107-108, 282 S. E. 2d 439, 448-449 (1981); State v. Moore, 614 S. W. 2d 348, 351-352 (Tenn. 1981); Hopkinson v. State, 632 P. 2d 79, 90, n. 1, 171-172 (Wyo. 1981). In each of these cases, the State Supreme Court set aside a death sentence based on both valid and invalid aggravating circumstances. Respondent advances these cases in support of his contention that a similar result is required here. However, examination of the relevant state statutes shows that in each of these States, not only must the jury find at least one aggravating circumstance in order to have the power to impose the death sentence; in addition, the law requires the jury to weigh the aggravating circumstances against the mitigating circumstances when it decides whether or not the death penalty should be imposed. See Ark. Stat. Ann. § 41-1302(1) (1977); N. C. Gen. Stat. §15A-2000(b) (1978); Tenn. Code Ann. §39-2-203(g) (1982); Wyo. Stat. § 6-2-102(d)(i) (1983).

13 The joint opinion specifically described the Georgia scheme in these terns:

“Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1(b) (Supp. 1975). The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp. 1975), but it must find a statutory aggravating circumstance before recommending a sentence of death.” 428 U. S., at 196-197; see also id., at 161, 165, 206-207. Cf. id., at 208, 218, 222 (opinion of White, J., concurring in judgment).

The joint opinion issued the same day in Jurek v. Texas, 428 U. S. 262 (1976), makes clear that specific standards for balancing aggravating against mitigating circumstances are not constitutionally required. In Jurek we held that the State’s action in “narrowing the categories of murders for which a death sentence may ever be imposed” served much the same purpose as the lists of statutory aggravating circumstances that Georgia and Florida had adopted. Id., at 270. We also held that one of the three questions presented to the sentencing jury permitted the defendant to bring mitigating circumstances to the jury’s attention. Id., at 273-274. Thus, in Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution and certainly were not explicitly balanced against each other.

14 “While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.” 428 U. S., at 206-207.

15 These standards for statutory aggravating circumstances address the concerns voiced by several of the opinions in Furman v. Georgia. See 408 U. S., at 248, n. 11 (Douglas, J., concurring); id., at 294 (Brennan, J., concurring) (“it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment”); id., at 309-310 (Stewart, J., concurring) (“of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed”); id., at 313 (WHITE, J., concurring) (“there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not”).

In Gregg, the joint opinion again recognized the need for legislative criteria to limit the death penalty to certain crimes: “[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” 428 U. S., at 184. The opinion also noted with approval the efforts of legislatures to “define those crimes and those criminals for which capital punishment is most probably an effective deterrent.” Id., at 186. The opinion of Justice White concurring in the judgment in Gregg asserted that, over time, as the aggravating circumstance requirement was applied, “the types of murders for which the death penalty may be imposed [would] become more narrowly defined and [would be] limited to those which are particularly serious or for which the death penalty is peculiarly appropriate.” Id., at 222. Cf. Roberts (Harry) v. Louisiana, 431 U. S. 633, 636 (1977) (the State may consider as an aggravating circumstance the fact that the murder victim was a peace officer performing his regular duties, because there is “a special interest in affording protection to those public servants who regularly must risk their lives in order to guard the safety of other persons and property”).

16 This Court's conclusion in Godfrey was analogous to the Georgia Supreme Court's holding in Arnold v. State that the second clause of the (b)(1) aggravating circumstance, which is at issue in this case, was “too vague and nonspecific to be applied evenhandedly by a jury.” 236 Ga., at 541, 224 S. E. 2d, at 391. The defendant in that case, who had two prior convictions, had been sentenced to death by the jury solely on a finding that he had a “ ‘substantial history’ of ‘serious assaultive criminal convictions.’ ” The court concluded that the words “substantial history” were so highly subjective as to be unconstitutional. Id., at 542, 224 S. E. 2d, at 392; see n. 5, supra. That aggravating circumstance, in the view of the Georgia Supreme Court, did not provide a principled basis for distinguishing Arnold’s case from the many other murder cases in which the death penalty was not imposed under the statute.

17 See Gregg, 428 U. S., at 164, 196-197, 206; Proffitt v. Florida, 428 U. S. 242, 256-257, n. 14 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Similarly, the Model Penal Code draft discussed in Gregg, supra, at 192-195, sets forth lists of aggravating and mitigating circumstances but also provides that the sentencer “shall take into account . . . any other facts that it deems relevant . . . .” ALI, Model Penal Code §201.6 (Prop. Off. Draft, 1962).

A State is, of course, free to decide as a matter of state law to limit the evidence of aggravating factors that the prosecution may offer at the sentencing hearing. A number of States do not permit the sentencer to consider aggravating circumstances other than those enumerated in the statute. See Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 101-119 (1980); see, e. g., Ark. Stat. Ann. §41-1301(4) (1977); 42 Pa. Cons. Stat. § 9711(a)(2) (1980).

18 See Gillers, supra n. 17, at 26-27.

19 The Georgia Supreme Court conducts an independent review of the propriety of the sentence even when the defendant has not specifically raised objections at trial. See Stephens v. State, 237 Ga. 259, 260, 227 S. E. 2d 261, 262, cert. denied, 429 U. S. 986 (1976). In this case, the Georgia Supreme Court explained:

“In performing the sentence comparison required by Code Ann. § 27-2537(c)(3), this court uses for comparison purposes not only similar cases in which death was imposed, but similar cases in which death was not imposed.” 237 Ga., at 262, 227 S. E. 2d, at 263.

As an appendix to the opinion it provided a list of the similar cases it had considered, as the statute requires. Id., at 263, 227 S. E. 2d, at 264. See also Ross v. State, 233 Ga. 361, 364-367, 211 S. E. 2d 356, 358-360 (1974); Tucker v. State, 245 Ga. 68, 74, 263 S. E. 2d 109, 113 (1980).

20 The State neither conceded nor unequivocally denied that the sentence was imposed on account of both acts. “Nevertheless the State maintains that the invitation to O’Sullivan in itself is sufficient to sustain the judgment and sentence and that nothing more need be considered to support them.” 323 U. S., at 528, n. 14.

21 In this situation the Court has held that the single sentence may stand, even if one or more of the counts is invalid, as long as one of the counts is valid and the sentence is within the range authorized by law. See Claassen v. United States, 142 U. S. 140 (1891); Pinkerton v. United States, 328 U. S. 640 (1946); Barenblatt v. United States, 360 U. S. 109 (1959).

22 See Fair v. State, 245 Ga. 868, 873, 268 S. E. 2d 316, 321 (1980) (“Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of the statute”).

23 “The purpose of Code Ann. § 27-2503(a) is to allow a defendant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” Herring v. State, 238 Ga. 288, 290, 232 S. E. 2d 826, 828 (1977). See Franklin v. State, 245 Ga. 141, 149-150, 263 S. E. 2d 666, 671-672 (1980). As we held in United States v. Tucker, 404 U. S. 443, 447-449 (1972), even in a noncapital sentencing proceeding, the sentence must be set aside if the trial court relied at least in part on “misinformation of constitutional magnitude” such as prior uncounseled convictions that were unconstitutionally imposed. See Townsend v. Burke, 334 U. S. 736, 740-741 (1948) (reversing a sentence imposed on uncounseled defendant because it was based on “extensively and materially false” assumptions concerning the defendant’s prior criminal record).

24 Petitioner acknowledges that, if an invalid statutory aggravating circumstance were supported by material evidence not properly before the jury, a different case would be presented. Brief for Petitioner 13; Supplemental Memorandum for Petitioner 18; Tr. of Oral Arg. 14, 18-20. We need not decide in this case whether the death sentence would be impaired in other circumstances, for example, if the jury’s finding of an aggravating circumstance relied on materially inaccurate or misleading information.

25 The Georgia Supreme Court’s affirmance of this case on direct appeal implicitly approves the jury instructions as an accurate reflection of state law. Moreover, the instructions are entirely consistent with the explanation of Georgia’s statutory scheme given in the Georgia Supreme Court’s response to our certified question. According to the response, see supra, at 872,“[u]nless at least one of the ten statutory aggravating circumstances exists, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason. ... In making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial.” 250 Ga., at 100, 297 S. E. 2d, at 3-4. This is precisely what the trial court told the jury: “Now in arriving at your determinations in this regard you are authorized to consider all of the evidence received in court throughout the trial before you. You are further authorized to consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense. . . . Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death. ... If you fix punishment at death by electrocution you would recite in the exact words which I have given you the one or more circumstances you found to be proven beyond a reasonable doubt. ... [If you recommend life imprisonment] it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find, and you would simply state in your verdict, We fix punishment at life in prison.” App. 18-19. See Zant v. Stephens, 456 U. S., at 411-412, n. 1.

26 See n. 19, supra.