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decided: June 11, 1985.



Marshall, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, IV-B, IV-C, and V, in which Brennan, Blackmun, Stevens, and O'connor, JJ., joined, and an opinion with respect to Part IV-A, in which Brennan, Blackmun, and Stevens, JJ., joined. O'connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 341. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and White, J., joined, post, p. 343. Powell, J., took no part in the decision of the case.

Author: Marshall

[ 472 U.S. Page 323]

 JUSTICE MARSHALL delivered the opinion of the Court, except as to Part IV-A.

This case presents the issue whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case. In this case, a prosecutor urged the jury not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the State Supreme Court. We granted certiorari, 469 U.S. 879 (1984), to consider petitioner's contention that the prosecutor's argument rendered the capital sentencing proceeding inconsistent with the Eighth Amendment's heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). Agreeing with the contention, we vacate the sentence.*fn1

[ 472 U.S. Page 324]


Petitioner shot and killed the owner of a small grocery store in the course of robbing it. In a bifurcated proceeding conducted pursuant to Mississippi's capital punishment statute, petitioner was convicted of capital murder and sentenced to death.

In their case for mitigation, petitioner's lawyers put on evidence of petitioner's youth, family background, and poverty, as well as general character evidence. In their closing arguments they referred to this evidence and then asked the jury to show mercy. The arguments were in large part pleas that the jury confront both the gravity and the responsibility of calling for another's death, even in the context of a capital sentencing proceeding.

"[Every] life is precious and as long as there's life in the soul of a person, there is hope. There is hope, but life is one thing and death is final. So I implore you to think deeply about this matter. It is his life or death -- the decision you're going to have to make, and I implore you to exercise your prerogative to spare the life of Bobby Caldwell. . . . I'm sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It's going to be your decision. I don't know what else I can say to you but we live in a society where we are taught that an eye for an eye is not the solution. . . . You are the judges and you will have to decide his fate. It is an awesome responsibility, I know -- an awesome responsibility." App. 18-19.

[ 472 U.S. Page 325]

     In response, the prosecutor sought to minimize the jury's sense of the importance of its role. Indeed, the prosecutor forcefully argued that the defense had done something wholly illegitimate in trying to force the jury to feel a sense of responsibility for its decision. The prosecutor's argument, defense counsel's objection, and the trial court's ruling were as follows:

"ASSISTANT DISTRICT ATTORNEY: Ladies and gentlemen, I intend to be brief. I'm in complete disagreement with the approach the defense has taken. I don't think it's fair. I think it's unfair. I think the lawyers know better. Now, they would have you believe that you're going to kill this man and they know -- they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet they . . .

"COUNSEL FOR DEFENDANT: Your Honor, I'm going to object to this statement. It's out of order.

"ASSISTANT DISTRICT ATTORNEY: Your Honor, throughout their argument, they said this panel was going to kill this man. I think that's terribly unfair.

"THE COURT: Alright, go on and make the full expression so the Jury will not be confused. I think it proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.

"ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said 'Thou shalt not kill.' If that applies to him, it applies to you, insinuating that your decision is the final decision and that they're gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically

[ 472 U.S. Page 326]

     reviewable by the Supreme Court. Automatically, and I think it's unfair and I don't mind telling them so." Id., at 21-22.

On review, the Mississippi Supreme Court unanimously affirmed the conviction but divided 4-4 on the validity of the death sentence, thereby affirming the sentence by an equally divided court. 443 So. 2d 806 (1983). Relying on this Court's decision in California v. Ramos, 463 U.S. 992 (1983), the prevailing opinion flatly rejected the contention that the prosecutor's comments could constitute a violation of the Eighth Amendment: "By [Ramos'] reasoning, states may decide whether it is error to mention to jurors the matter of appellate review." 443 So. 2d, at 806. The dissent did not dispute this view of Ramos, but did argue that as a matter of state law the prosecutor's argument was sufficiently unfair as to require that the death sentence be vacated. 443 So. 2d, at 815 (Lee, J., dissenting). The prevailing justices, however, found no basis in state law for disturbing the sentence. Id., at 806-807. Petitioner argues to this Court, as he argued below, that Ramos does not control this case and that the prosecutor's comments violated the Eighth Amendment.


Respondent first argues that this Court lacks jurisdiction to decide this issue because the decision of the Mississippi Supreme Court rests on adequate and independent state grounds. See Herb v. Pitcairn, 324 U.S. 117 (1945). Although petitioner interposed a contemporaneous objection to the prosecutor's argument, he did not initially assign the issue as error on appeal. Under Mississippi rules, "[no] error not distinctly assigned shall be argued by counsel, except upon request of the Court, but the Court may, at its option, notice a plain error not assigned or distinctly specified." Miss. Sup. Ct. Rule 6(b) (1976). In this case, the State Supreme Court raised the issue of the prosecutor's

[ 472 U.S. Page 327]

     comments sua sponte. It was discussed at oral argument, in postargument briefs submitted by both sides, and in the opinion of the State Supreme Court. Respondent nevertheless argues that the decision below rests on the state-law ground of failure to comply with Rule 6.

The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case. See Ulster County Court v. Allen, 442 U.S. 140, 152-154 (1979). Moreover, we will not assume that a state-court decision rests on adequate and independent state grounds when the "state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion." Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983). "If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision." Id., at 1041

An examination of the decision below reveals that it contains no clear or express indication that "separate, adequate, and independent" state-law grounds were the basis for the court's judgment. Indeed, the reference to the waiver issue in the prevailing opinion below, although somewhat cryptic, argues against the position urged by respondent. The State Supreme Court stated:

"Prueitt v. State, 261 So. 2d 119 (Miss. 1972), is a case in which we dealt with the situation where counsel sought to argue a question not raised by the assignment of error. Writing for the Court in that case, Justice Jones states 'We do not deem these matters [those not assigned] plain error . . . .' Bell v. State, 360 So. 2d 1206 (Miss. 1978) . . . is analogous to the present case, in

[ 472 U.S. Page 328]

     that Bell dealt with errors 'not urged or argued in the briefs . . . .'" 443 So. 2d, at 814.

Prueitt was a non-capital case decided by the Mississippi Supreme Court on the basis of procedural bar. But in Bell, a capital case, that court refused to rest on the procedural bar, raising on its own motion certain claims not assigned as error on appeal. It then decided those claims on the merits, explicitly holding that they were unmeritorious. 360 So. 2d, at 1215. Because Bell explicitly rested on the merits, and because the court below described Bell as "analogous to the present case in that that [it] dealt with errors 'not urged or argued in the briefs,'" 443 So. 2d, at 814 (emphasis added), we can read the opinion below only as meaning that procedural waiver was not the basis of the decision.

This conclusion is substantially bolstered by the fact that the Mississippi court discussed the challenge to the prosecutor's argument at some length, evaluating it as a matter of both federal and state law before rejecting it as unmeritorious. Moreover, this conclusion is consistent with the Mississippi Supreme Court's behavior in other capital cases, where it has a number of times declined to invoke procedural bars. See, e. g., Williams v. State, 445 So. 2d 798, 810 (1984) (explicitly citing Bell as authority for the proposition that "we have in death penalty cases the prerogative of relaxing our contemporaneous objection and plain error rules when the interests of justice so require"); Culberson v. State, 379 So. 2d 499, 506 (1979) (reaching merits "only because this is a capital case" where counsel failed to follow Rule requiring prior objections to jury instructions). Given the standards of Michigan v. Long and Ulster County Court, it is apparent that we have jurisdiction.



On reaching the merits, we conclude that it is constitutionally impermissible to rest a death sentence on a determination

[ 472 U.S. Page 329]

     made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. This Court has repeatedly said that under the Eighth Amendment "the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S., at 998-999. Accordingly, many of the limits that this Court has placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion. See, e. g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion); Gardner v. Florida, 430 U.S. 349 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280 (1976).*fn2

In evaluating the various procedures developed by States to determine the appropriateness of death, this Court's Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State. Thus, as long ago as the pre- Furman case of McGautha v. California, 402 U.S. 183 (1971), Justice Harlan, writing for the Court, upheld a capital sentencing scheme in spite of its reliance on jury discretion. The sentencing scheme's premise, he assumed, was "that jurors confronted with the truly awesome responsibility of decreeing

[ 472 U.S. Page 330]

     death for a fellow human will act with due regard for the consequences of their decision . . . ." Id., at 208. Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an "awesome responsibility" has allowed this Court to view sentencer discretion as consistent with -- and indeed as indispensable to -- the Eighth Amendment's "need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, supra, at 305 (plurality opinion). See also Eddings v. Oklahoma, supra; Lockett v. Ohio, supra.


In the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.


Bias against the defendant clearly stems from the institutional limits on what an appellate court can do -- limits that jurors often might not understand. The "delegation" of sentencing responsibility that the prosecutor here encouraged would thus not simply postpone the defendant's right to a fair determination of the appropriateness of his death; rather it would deprive him of that right, for an appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance. Whatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record. This inability to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of what this Court has termed "[those] compassionate or mitigating factors stemming from the diverse frailties of humankind." Woodson, supra, at 304. When we held that a defendant has a constitutional right to the consideration of such factors, Eddings, supra; Lockett, supra, we

[ 472 U.S. Page 331]

     clearly envisioned that that consideration would occur among sentencers who were present to hear the evidence and arguments and see the ...

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