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IV. To overturn a quarter century of consistent
precedent despite massive reliance would be a
monumental betrayal of public confidence in this Court.

"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). Yet 26 years after this Court held that jury sentencing is not constitutionally required, while reviewing a system where the sentencing included the finding of at least one aggravating circumstance, see Proffitt v. Florida, 428 U. S. 242, 250, 252 (1976) (lead opinion), that holding is still questioned. Cf. Casey, supra, at 844. It is astonishing that this question can even be seriously asked, given the duration, number, and consistency of precedents, but there is no doubt of the proper answer. The precedents should be emphatically reaffirmed.

A. The Precedents.

In 1976, this Court considered together five post-Furman capital sentencing systems. The pertinent case for present purposes is Proffitt, supra. The holdings of Proffitt are found in the joint opinion of Justices Stewart, Powell, and Stevens under the "narrowest grounds" rule. See Marks v. United States, 430 U. S. 188, 193 (1977). The Proffitt Court fully understood that, given the jury override feature of Florida law, "[t]he sentencing authority in Florida [is] the trial judge . . . ." 428 U. S., at 251. The Proffitt Court further understood that the trial judge had to make the finding of an aggravating circumstance. See id., at 250. As the plurality noted later in Barclay v. Florida, 463 U. S. 939, 954 (1983), this passage of Proffitt means that "the Florida statute . . . requires the sentencer [i.e., the judge] to find at least one valid aggravating circumstance before the death penalty may even be considered . . . ." The Barclay concurring opinion agreed, stating, "the trial judge must make three separate determinations in order to impose the death sentence: (1) that at least one statutory aggravating circumstance has been proved beyond a reasonable doubt . . . ." Id., at 961 (Stevens, J., concurring) (emphasis added). With this unmistakable understanding of what the sentencing phase in Florida required, Proffitt held that it was constitutionally permissible for this function to be performed by the judge rather than the jury. 428 U. S., at 252.

If Proffitt itself were not clear enough, the Court expressly addressed a Sixth Amendment challenge in Spaziano v. Florida, 468 U. S. 447, 458 (1984). This was a year after the further clarification of the Florida system in Barclay, supra. Spaziano's jury returned only a general recommendation of life imprisonment by majority vote, see id., at 451, meaning that there was no jury finding of any aggravating circumstance. With the awareness that sentencing included the finding of an aggravating circumstance, the Court rejected the claim that the Sixth Amendment required it be done by a jury. Seeid., at 459. The Court further noted it had already upheld the Florida system twice and then upheld it a third time. Id., at 464-465.

Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam) addressed the precise issue before the Court in the present case in unmistakable terms. "This case presents us once again with the question whether the Sixth Amendment requires a jury to specify the aggravating factors that permit the imposition of capital punishment in Florida." Id., at 638 (emphasis added). The question could not be stated more clearly. The answer is no. Id., at 640-641. Hildwinfurther noted that this holding was necessarily included in the holding of Spaziano. See id., at 640.

The Hildwin opinion was joined by seven Justices, including Justice Stevens, author of the Spaziano dissent. Justices Brennan and Marshall expressed no disagreement with the holding of the Court, but stated only their standard continuing refusal to abide by a landmark precedent, see id., at 641 (Brennan, J., dissenting), and with the summary disposition. Ibid. (Marshall, J., dissenting). The question presented today was regarded 13 years ago as so well settled as to be appropriate for summary affirmance, i.e., "the judgment below is thought to be so obviously correct and the conflicting decision so clearly wrong that the Court feels further consideration is unnecessary . . . ." R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 256 (7th ed. 1993). ⁽⁵⁾ The conflicting and clearly wrong decision was Adamson v. Ricketts, 865 F. 2d 1011, 1027 (CA9 1988), cert. denied sub. nom Lewis v. Adamson, 497 U. S. 1031 (1990) (Rehnquist, C. J., and White and Scalia, JJ., dissenting, O'Connor and Kennedy, JJ., not participating).

This well-settled state of the law was resoundingly reaffirmed the next year. Rejecting a Sixth Amendment argument, Clemons v. Mississippi, 494 U. S. 738, 745 (1990) stated, "Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court." (Emphasis added). Thus, an appellate court could affirm a death sentence despite a vague definition of an aggravating circumstance by finding itself that the circumstance was true under the proper definition. See id., at 751. ⁽⁶⁾

By the time this Court addressed the present question in an Arizona case, there was not much left to say. The Florida cases were on point and controlling. See Walton v. Arizona, 497 U. S. 639, 647-648 (1990). Walton's claim that aggravating circumstances are "elements" in Arizona and not in Florida was squarely rejected. Id., at 648.

The opinion of the Arizona Supreme Court in the present case, on which the defendant places such reliance, see Brief for Petitioner 17-18, tells us nothing the Court has not long known. Of course the finding of an aggravating circumstance is a prerequisite to the imposition of a death sentence. See State v.Ring, 25 P. 3d 1139, 1152 (Ariz. 2001). That has been fully understood from the beginning to be true in Arizona, see Arizona v. Rumsey, 467 U. S. 203, 206 (1984), as well as Florida, see supra, at 14, Mississippi, California, see Pulley v. Harris, 465 U. S. 37, 51 (1984), and every other jurisdiction that has chosen to narrow its death penalty with aggravating (or "special") circumstances instead of defining a higher degree of murder. See Lowenfield v. Phelps, 484 U. S. 231, 246 (1988) (noting two acceptable ways of narrowing); id., at 244 (noting most states have gone the "aggravating circumstances" route). The correctness of Justice O'Connor's description of the Arizona system in Apprendi v. New Jersey, 530 U. S. 466, 538 (2000) (dissenting opinion), is not in doubt, so the Arizona Supreme Court's confirmation does not change anything. What is in doubt is her interpretation of the majority opinion as saying "the jury makes all of the findings necessary to expose the defendant to a death sentence." Ibid. The opinion of the Court in Apprendi does not say that. The relevant passage, id., at 497, quotes Justice Scalia's dissent in Almendarez-Torres v. United States, 523 U. S. 224, 257, n. 2 (1998). That footnote says, "What the cited cases [Walton, Hildwin, and Spaziano] hold is that once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed--even where that decision is constrained by a statutory requirement that certain 'aggravating factors' must exist." (Last emphasis added, other emphases in original).

Apprendi thus distinguished Walton on exactly the basis that the state distinguishes this case from Apprendi. If Walton was not controlling in Apprendi, asApprendi itself flatly states, 530 U. S., at 496, then Apprendi cannot be controlling precedent in a case indistinguishable from Walton.

If a b and a = c then b c.

B. Reliance.

One of the most important considerations in deciding whether to overrule a precedent is the extent of reliance on the existing rule. See Casey, 505 U. S., at 855-856. It is sometimes said that the reliance interest is not strong in cases involving procedural rules, see Payne v. Tennessee, 501 U. S. 808, 828 (1991), but that is not universally true. Certainly, criminal defendants have very little reliance interest in rules which favor them, because of their unique privilege against appeal under the Double Jeopardy Clause. A defendant who successfully relies on a favorable procedural rule is acquitted, or, in the penalty phase, escapes the death penalty, and that judgment can never be reversed, no matter how patently erroneous it may later be seen to be. See Rumsey, 467 U. S., at 212.

Quite the opposite is true for the prosecution. Under Griffith v. Kentucky, 479 U. S. 314, 328 (1987) every new constitutional rule applies fully retroactively to every judgment not yet final on direct appeal, regardless of how faithfully the trial court followed then-controlling precedent at the time of trial. Even a practice defendant did not object to may be reversed as "plain error," even if it was plainly correct under the law existing at the time of trial. See Johnson v. United States, 520 U. S. 461, 468 (1997).

After Furman v. Georgia, 408 U. S. 238 (1972) the states had to change their laws and guess what procedures would pass constitutional muster. Those that guessed wrong had to change them again after Woodson v. North Carolina, 428 U. S. 280, 305 (1976). Still further changes were required by Lockett v.Ohio,438 U. S. 586, 604 (1978) (plurality opinion). Other new rules have not required legislation, but they have invalidated practices used in nearly every case in a state and previously considered perfectly acceptable. See, e.g., Mills v. Maryland, 486 U. S. 367, 395 (1988) (Rehnquist, C. J., dissenting).

A new rule overturning a statewide practice is a disaster. In terms of dollars alone, the cost of trying and reviewing a capital case is much larger than a run-of-the-mill felony. Part of that cost is necessary, and part is generated by the unnecessarily complex and constantly changing law of capital sentencing. See G. Kanner, Hurdles Erected by Death Penalty Foes Haunt Underpaid Capital Case Counsel, L. A. Daily Journal, April 13, 1992, p. 6. But there are other costs that, although less tangible, are even more important.

When capital cases are overturned, the prosecution must choose between the financial and human expense of putting families and witnesses through another cycle of trial and review or, alternatively, letting a murderer among the most brutal get off with an inadequate, unjust sentence. Even if they decide to go forward, the staleness of the case may result in a life sentence where death was truly warranted.

That is not all. A major reason for capital punishment is deterrence. The existence of a deterrent effect has always been debated, but a flurry of recent studies confirm what common sense has long told us: the death penalty will have some deterrent effect if it is actually enforced. See Cloninger & Marchesini, Execution and deterrence: a quasi-controlled group experiment, 33 Applied Econ. 569 (2001); Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Post-moratorium Panel Data, Emory University Working Paper 01-01 (January 2001), <http://userwww.service.emory.edu/~cozden/Dezhbakhsh_01_01_paper.pdf>; Mocan & Gittings, Pardons, Executions and Homicide, NBER Working Paper No. w8639 (December 2001), <http://www.nber.org/papers/w8639>. For a less sophisticated but more easily understood study, see Tucker, Capital Punishment Works, The Weekly Standard at page 27 (Aug. 13, 2001).

The Cloninger and Marchesini article is particularly revealing for its indication of the impact of legal turmoil affecting all cases in a state. Ex parte Davis, 947 S. W. 2d 216 (Tex. Crim. App. 1996) created a de facto moratorium in Texas lasting about a year. 33 Applied Econ., at 569-570. The authors estimate that the lost deterrent effect killed over 200 people. See id., at 575.

Turmoil in this important area of the law has a high cost in dollars, but it has an even higher cost beyond monetary measure. If the change being proposed were necessary to correct some monstrous evil, it might be debatable whether the cost was justified. Underlying Furman was the well-founded fear that the death penalty was being administered discriminatorily against black defendants. See Graham v. Collins, 506 U. S. 461, 479-481 (1993) (Thomas, J., concurring). No such issue is presented here. Proffitt v. Florida, 428 U. S., at 252, long ago rejected the claim that judge sentencing would be more arbitrary. The State of Nebraska, a state with judge sentencing, recently commissioned a study and, surprisingly, named the well-known anti-death-penalty partisan Dr. David Baldus ⁽⁷⁾ to lead it. Even so, the study concluded, "There is no significant evidence of the disparate treatment of defendants based on the race of the defendant or the race of the victim." D. Baldus, G. Woodworth, G. Young, & A. Christ, The Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973-1999); A Legal and Empirical Analysis; Executive Summary 14 (2001), <http://www.nol.org/home/ crimecom/homicide/execsum.pdf> (capitalization normalized). Change would also be warranted to prevent the execution of innocent people, but the change proposed here has nothing whatever to do with the accuracy of the guilt determination. ⁽⁸⁾

Twenty-six years ago, this Court reviewed a system where the trial judge made the finding of the death-eligibility circumstance, with a jury that was merely advisory and gave its advice by a simple majority vote. If there were a Sixth Amendment problem with that system, it would have been obvious at the time. If this Court had said so, Florida and the other court-sentencing states could have changed their laws then. Instead, they relied on this Court's repeated and unambiguous holdings to the contrary. The State of Colorado relied on these holdings to switch to court sentencing. See Colo. Stat. §16-11-103(2)(a) (three-judge panel finds aggravating circumstances).

Congress itself relied on the holding that eligibility circumstances are not "elements" when it enacted the federal death penalty law in 1994. Although it provided for a unanimous jury finding beyond a reasonable doubt as a matter of policy, see 18 U. S. C. §3593(c), (d), it did not require the factors to be specified in the indictment. See 18 U. S. C. §3593(a) (notice by the government). If these factors were elements, this would be unconstitutional. SeeAlmendarez-Torres, 523 U. S., at 228; United States v. Allen, 247 F. 3d 741, 763-764 (CA8 2001), cert. pending, No. 01-7310 (rejectingApprendi/Indictment Clause attack on federal death penalty, citing Walton).

If defendant's argument is accepted, it means a new sentencing trial for every capital case not yet final in Arizona, Alabama, Colorado, Delaware, Florida, Idaho, Indiana, Montana, and Nebraska and a new indictment, trial, and sentencing for every such case in the federal system. It means a huge cost in dollars wasted, years wasted, justice long delayed and probably denied, and the likely loss of innocent lives through diminished deterrence. And all for what? To correct a supposed "defect" in current procedure so far removed from fundamental fairness that it was not perceived in a quarter century of the most intense and demanding scrutiny that any legal procedure has ever been subjected to in the history of law. The benefit from this change, if any, does not remotely approach the cost.

C. Public Confidence.

In Casey, 505 U. S., at 861, the Court noted that in cases involving major national controversies there are additional reasons to adhere to precedent. Capital punishment is such a controversy, and the reasons discussed in Casey apply with full force.

1. Frequent overruling.

"There is, first, a point beyond which frequent overruling would overtax the country's belief in the Court's good faith . . . . The legitimacy of the Court would fade with the frequency of its vacillation." Id., at 866. For capital punishment, unlike abortion, this concern is not hypothetical. Cf. ibid. That point is at hand.

For over three decades now, the American people have trudged the switchback trail of capital punishment jurisprudence. In their quest for a real, enforced death penalty for the very worst murderers, they have been led first one direction, then the opposite, based on conflicting signals of what the Constitution is supposed to require.

Witherspoon v. Illinois, 391 U. S. 510 (1968) disapproved a widespread practice in jury selection which had been expressly approved by this Court inLogan v. United States, 144 U. S. 263, 298 (1892). See Witherspoon, supra, at 536-537 (Black, J., dissenting). This decision brought executions to a halt as states went about retrying cases tried in reliance on long-established precedent. The majority opinion mentioned Logan only in a footnote and inexplicably referred to the clear holding of that case as "dictum." Id., at 523, n. 22.

The next major battle was discretionary sentencing. In McGautha v. California, 402 U. S. 183, 196 (1971), the Court addressed the claim "that the absence of standards to guide the jury's discretion on the punishment issue is constitutionally intolerable." Justice Harlan, writing for the majority, traced the history of capital punishment and discretionary sentencing, id., at 197-206, before reaching the conclusion. "In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution." Id., at 207 (emphasis added).

The sentencing method that had been perfectly valid in May of 1971 suddenly became unconstitutional 13 months later. Furman v. Georgia, 408 U. S. 238 (1972). For the second time in four years the existing sentences, tried in a manner this Court had expressly said was constitutional, were wiped out. Again, the people had to pick up the pieces and start over.

The process of starting over was infinitely complicated by the inability or unwillingness of the Justices in the Furman majority to agree on a single opinion. Legislatures across America were told that vitally important statutes were unconstitutional but not told why or how to fix them. They had to guess.

The National Association of Attorneys General formed a committee to try to cope with Furman. See Rockwell v. Superior Court, 18 Cal. 3d 420, 447, 556 P. 2d 1101, 1117 (1976) (Clark, J., concurring in the judgment). The consensus of the nation's top prosecutors was that mandatory sentencing was needed to comply with Furman and that the states which had enacted "guided discretion" statutes were on shaky ground. Ibid., 556 P. 2d, at 1117-1118.

This view was not limited to prosecutors. In 1976, the discretionary systems were attacked for being discretionary. See Gregg v. Georgia, 428 U. S. 153, 199 (1976) (lead opinion); Proffitt v. Florida, 428 U. S. 242, 254 (1976) (lead opinion); Jurek v. Texas, 428 U. S. 262, 274 (1976) (lead opinion). The mandatory systems were attacked for being only "ostensibly" mandatory while actually "invit[ing] the exercise of sentencing discretion." Brief for Petitioners in Woodson v. North Carolina, O. T. 1975, No. 75-5491, pp. 18-19; Brief for Petitioner in Roberts v. Louisiana, O. T. 1975, No. 75-5844, p. 19 ("de facto sentencing discretion").

The "better" view turned out to be a wrong guess. Mandatory sentences were banned in Woodson v. North Carolina, 428 U. S. 280 (1976). In justifying this result, the Woodson lead opinion relied on McGautha, the very precedent so unceremoniously dumped in Furman. Id., at 297. The lead opinion also relied on Chief Justice Burger's dissent in Furman, ibid., and it noted without apology that the statutes it was striking down were enacted in an effort to comply with Furman. Id., at 298.

Sweeping up the broken glass once again, the states endeavored to comply with what the Constitution "required" in 1976, as opposed to what it had "required" in 1972 or 1971. Unfortunately, cases tried in 1976 would later be reviewed to determine if they complied with what the Constitution would "require" in 1987.

Proffitt rejected the main attack on Florida's system, that it was unconstitutional "because it allows discretion to be exercised at each stage of a criminal proceeding . . . ." 428 U. S., at 254 (lead opinion) (emphasis added). Proffitt then went on to review the essential features of the Florida system and approve the system so described.

The Florida statute specified the mitigating factors. Id., at 249, n. 6. There was no catch-all factor. "On their face these procedures . . . appear to meet the constitutional deficiencies identified in Furman. The sentencing authority in Florida, the trial judge, is directed to weigh eight aggravating factors against seven mitigating factors to determine whether the death penalty shall be imposed." Id., at 251 (emphasis added).

If that were not clear enough, the Proffitt Court modified its quotation of the Florida statute to insert "statutory" before "mitigating." Id., at 250. Thus, theProffitt Court understood the Florida system to weigh on the mitigating side a specified list of enumerated factors. If the lack of a "catch-all" factor was a constitutional defect, it was apparent on the face of the statute. Yet Proffitt did not see it as a defect. The Constitution did not require consideration of circumstances beyond the statutory list on July 2, 1976.

Twenty-nine days later, James Hitchcock strangled and murdered 13-year-old Cynthia Driggers. Hitchcock had molested her, and he killed her when she said she would tell. Hitchcock v. Dugger, 481 U. S. 393, 394 (1987). He was tried for that crime under the eminently reasonable belief that Florida law limited mitigating circumstances to the statutory list and that Proffitt had upheld that system. ⁽⁹⁾

Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion) declared, out of the blue, a constitutional mandate to consider whatever factors the defendant may offer in mitigation. In an attempt to distinguish Proffitt, the plurality observed that Proffitt had noted that while the statute did not include a catch-all factor, it also did not expressly preclude nonstatutory mitigation as opposed to nonstatutory aggravation, which was precluded. This, said Lockett, showed that Proffitt understood Florida to allow nonstatutory mitigation, ignoring the clear, contrary language in the body of the opinion, noted above. Id., at 606, n. 15. The transparency of this evasion did not escape the Justices dissenting from Lockett's new rule. Id., at 629-630 (Rehnquist, J., dissenting); id., at 623-624 (White, J., concurring in the judgment).

Eleven years after the crime, James Hitchcock's sentence was overturned because his trial judge committed the "error" of taking Proffitt at its word. Cynthia Driggers, dead at 13, would have been 24 by then. This Court cannot undo the damage done in the past by its repeated disapproval of previously approved practices. It can, however, refrain from causing such damage again.

"There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term." Casey, 505 U. S., at 866. Large segments of the American public have already justifiably concluded that the incessant disapproval of previously approved practices is the product of simple hostility to capital punishment rather than genuine application of principles really in the Constitution. The last thing the Court, the country, or the rule of law needs is yet another wholesale uprooting.

2. Intensely divisive controversy.

Furman v. Georgia, Gregg v. Georgia, 428 U. S. 153 (1976), and the Gregg companion cases, taken together, represent one of the resolutions of an "intensely divisive controversy" of the sort discussed in Casey, 505 U. S., at 866. Those cases resolved that capital punishment could not continue in America as it had been, but that it would not be abolished by the judiciary. The cases further sketched the outline of what was allowable. Many subsidiary rules have sprouted since then, a few of which we have discussed, but defendant in this case asks for something qualitatively different.

Defendant asks that a major structural feature of one of the systems approved in Proffitt, adopted in many states, and expressly upheld multiple times now be disapproved. The Court should not disapprove major features of the approved systems any more then it should go back and authorize the mandatory or unguided discretionary systems it previously disapproved. The broad outlines of Gregg and the companion cases represent a great compromise which neither side likes, but which has created at least a workable set of rules. Those who struggle to implement those rules are betrayed when the rules are suddenly changed. See Casey, supra, at 868. It would take an extraordinarily compelling need to justify such a betrayal, and no such need is present in this case.

"Finally, this Court has previously considered and rejected the argument that the principles guiding [Apprendi] render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death." Apprendi, 530 U. S., at 496. Nothing has changed. That argument should be rejected again.

CONCLUSION

The judgment of the Supreme Court of Arizona should be affirmed.

March, 2002

Respectfully submitted,

Kent S. Scheidegger

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5. Stern, et al. proceed to discuss several other reasons why summary affirmance might be appropriate, none of which applies to Hildwin. See id., at 256-257.

6. Aggravating circumstances serve the same function in Mississippi as they do in Florida, i.e. at least one must be found for eligibility and then they are "weighed" against the mitigating. See Stringer v. Black, 503 U. S. 222, 229 (1992); id., at 234 (same as Florida).

7. See McCleskey v. Zant, 580 F. Supp. 338, 368 (ND Ga. 1984), aff'd in part, 753 F. 2d 877 (CA11 1985), aff'd, 481 U. S. 279 (1987) (noting "partisan bias" of the witnesses, including Baldus).

8. It is worth noting at this point that the common claim that nearly 100 former death-row inmates have been released after being "proven innocent" is bogus. The list includes such people as Jeremy Sheets, who was released because the principal witness against him is dead, see State v. Sheets, 260 Neb. 325, 332-333, 352, 618 N. W. 2d 117, 125, 137 (2000), and Jerry Bigelow, whose jury inexplicably acquitted him of murder despite finding true every element of the crime. See Bigelow v. Superior Court, 208 Cal. App. 3d 1127, 1129, 256 Cal. Rptr. 528, 529-530 (1989). These cases illustrate the extreme lengths our system goes to favor the defendant.

9. The actual state of Florida law at that point was somewhat ambiguous, see id., at 396-397, but that is not material to the point under discussion here. Hitchcock's trial judge understood the law to be as Proffitt understood it.