JUSTICE BRENNAN, dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976), I would vacate the death sentence in this case.
JUSTICE MARSHALL, dissenting.
Adhering to my view that capital punishment is unconstitutional under all circumstances, I would grant certiorari and vacate petitioner's death sentence. However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would vacate the death sentence in this case because both the trial court's instructions concerning the standard of proof and the State Supreme Court's standard for reviewing the sufficiency of the evidence failed to assure a reliable sentencing determination.
Following petitioner Horace Butler's conviction for murder, the trial court conducted a separate sentencing proceeding in accordance with South Carolina law, S. C. Code § 16-3-20(B) (Supp. 1981). In order to impose the death penalty, the State was required to prove beyond a reasonable doubt the existence of at least one statutory aggravating circumstance. § 16-3-20(C). The State alleged two aggravating circumstances: that the murder occurred during the commission of a rape and that the murder occurred during the
commission of a kidnaping. See §§ 16-3-20(C)(a)(1)(a) and (c). The trial judge initially stated that he was "extremely dubious" whether the State had presented sufficient evidence of either rape or kidnaping.*fn1 He subsequently changed his mind concerning the sufficiency of the evidence of rape and submitted that aggravating circumstance to the jury, but he ruled that the evidence of kidnaping did not suffice as a matter of law. The jury then found that the State had established the aggravating circumstance of rape, and sentenced petitioner to death. The South Carolina Supreme Court affirmed the conviction and sentence. 277 S. C. 452, 290 S. E. 2d 1 (1982).
Recognizing the extraordinary consequences of the capital sentencing process, this Court has stressed "the 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) (opinion of Stewart, POWELL, and STEVENS, JJ.) (footnote omitted). See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (opinion of BURGER, C. J.). Accordingly, "we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination." Beck v. Alabama, 447 U.S. 625, 638 (1980). In this case, errors committed by the trial judge at the sentencing stage and by the State Supreme Court on appeal seriously undermined the reliability of the sentencing determination.
The sentencing court's instructions to the jury concerning reasonable doubt impermissibly lowered the standard of proof required to establish the aggravating circumstance of rape. South Carolina's death penalty statute requires that proof of aggravating circumstances be established beyond a
reasonable doubt. In my view the reasonable-doubt standard is constitutionally mandated. We have previously recognized that a capital sentencing proceeding is in many respects analogous to a trial on the issue of guilt or innocence. Bullington v. Missouri, 451 U.S. 430, 438 (1981). Since the death penalty may be imposed only if the State proves at least one aggravating circumstance, an aggravating circumstance is functionally an element of the crime of capital murder and, like any other element of a crime, its existence must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The magnitude of the individual interest at stake in a capital sentencing proceeding requires a standard of proof "designed to exclude as nearly as possible the likelihood of erroneous judgment." Addington v. Texas, 441 U.S. 418, 423 (1979).
Here the sentencing judge's instructions significantly undercut the full constitutional protection afforded by the reasonable-doubt standard. The jury was told that reasonable doubt means "a substantial doubt for which an honest person seeking the truth can give a real reason," and is "not a weak or slight doubt, but . . . a serious or strong or substantial well-founded doubt as to the truth of the matters asserted by the state." See 277 S. C., at 458, 290 S. E. 2d, at 4. At a minimum, instructions equating reasonable doubt with "substantial doubt" can confuse the jury about the proper standard of proof. See Taylor v. Kentucky, 436 U.S. 478, 488 (1978). When the instructions also define reasonable doubt as a "serious or strong or substantial ...