[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
[t]he basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. 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.
[1] murder of a peace officer or fireman; [2] murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; [3] murder committed for remuneration; [4] murder committed while escaping or attempting to escape from a penal institution; and [5] murder committed by a prison inmate when the victim is a prison employee.
(1) whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result, and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
[w]hile Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose.
Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.
It seems clear to us ... that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, *1455 as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.
In analyzing the three statutes in question in this case, it is important to bear in mind that all of them were enacted pre–Furman, so that in enacting the statutes, no Congress person sat down and sought to *1456 find language to meet the concerns articulated by the Supreme Court in Furman. The most that could be said is that in subsequent decisions of the U.S. Supreme Court, and particularly the Lowenfield decision, sufficiently backtracked on Furman to make a Furman response unnecessary. The Court is not prepared to find that.
Harper correctly notes that the Supreme Court has expressly required statutory aggravating circumstances in a death sentencing scheme. McKenzie apparently reads Harper as requiring similar explicit statutory provisions for consideration of mitigating circumstances, including detailed procedures for implementing this review. Such a reading of Harper would, of course, conflict with Jurek. We therefore decline to so interpret Harper.
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