Judgment of the Court, and opinion of
Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stevens.
The question in this case is whether the imposition of the sentence of death for the crime of first-degree murder under the law of Louisiana violates the Eighth and Fourteenth Amendments.
I
On August 18, 1973, in the early hours of the morning, Richard G. Lowe was found dead in the office of the Lake Charles, La., gas station where he worked. He had been shot four times in the head. Four men — the petitioner, Huey Cormier, Everett Walls, and Calvin Arceneaux — were arrested for complicity in the murder. The petitioner was subsequently indicted by a grand jury on a presentment that he “[d]id unlawfully with the specific intent to kill or to inflict great bodily harm, while engaged in the armed robbery of Richard G. Lowe, commit first degree murder by killing one Richard G. Lowe, in violation of Section One (1) of LSA-R. S. 14:30.”
At the petitioner’s trial, Cormier, Walls, and Arceneaux testified for the prosecution. Their testimony established that just before midnight on August 17, the petitioner discussed with Walls and Cormier the subject of “ripping off that old man at the station,” and that on the early morning of August 18, Arceneaux and the petitioner went to the gas station on the pretext of seeking employment. After Lowe told them that there were no jobs available they surreptitiously made their way into the office of the station, where Arceneaux removed a pistol from a desk drawer. The petitioner insisted on taking possession of the pistol. When Lowe returned to the office, the petitioner and Arceneaux assaulted him and then shoved him into a small back room. Shortly thereafter a car drove up. Arceneaux went out and, posing as the station attendant, sold the motorist about three dollars’ worth of gasoline. While still out in front, Arceneaux heard four shots from inside the station. He went back inside and found the petitioner gone and Lowe lying bleeding on the floor. Arceneaux grabbed some empty “money bags” and ran.
The jury found the petitioner guilty as charged. As required by state law, the trial judge sentenced him to death. The Supreme Court of Louisiana affirmed the judgment. 319 So. 2d 317 (1975). We granted certiorari, 423 U. S. 1082 (1976), to consider whether the imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments of the United States Constitution.
II
The Louisiana Legislature in 1973 amended the state statutes relating to murder and the death penalty in apparent response to this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972). Before these amendments, Louisiana law defined the crime of “murder” as the killing of a human being by an offender with a specific intent to kill or to inflict great bodily harm, or by an offender engaged in the perpetration or attempted perpetration of certain serious felonies, even without an intent to kill. The jury was free to return any of four ver-diets: guilty, guilty without capital punishment, guilty of manslaughter, or not guilty.
In the 1973 amendments, the legislature changed this discretionary statute to a wholly mandatory one, requiring that the death penalty be imposed whenever the jury finds the defendant guilty of the newly defined crime of first-degree murder. The revised statute, under which the petitioner was charged, convicted, and sentenced, provides in part that first-degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnaping, aggravated rape, or armed robbery. In a first-degree murder case, the four responsive verdicts are now guilty, guilty of second-degree murder, guilty of manslaughter, and not guilty. La. Code Crim. Proc. Ann., Art. 814 (A)(1) (Supp. 1975). The jury must be instructed on all these verdicts, whether or not raised by the evidence or requested by the defendant.
Under the former statute, the jury had the unfettered choice in any case where it found the defendant guilty of murder of returning either a verdict of guilty, which required the imposition of the death penalty, or a verdict of guilty without capital punishment, in which case the punishment was imprisonment at hard labor for life. Under the new statute the jury is required to determine only whether both conditions existed at the time of the killing; if there was a specific intent to kill or to inflict great bodily harm, and the offender was engaged in an armed robbery, the offense is first-degree murder and the mandatory punishment is death. If only one of these conditions existed, the offense is second-degree murder and the mandatory punishment is imprisonment at hard labor for life. Any qualification or recommendation which a jury might add to its verdict — such as a recommendation of mercy where the verdict is guilty of first-degree murder' — -is without any effect.
III
The petitioner argues that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, ante, at 168-187.
IV
Louisiana, like North Carolina, has responded to Fur-man by replacing discretionary jury sentencing in capital cases with mandatory death sentences. Under the present Louisiana law, all persons found guilty of first-degree murder, aggravated rape, aggravated kidnaping, or treason are automatically sentenced to death. See La. Rev. Stat. Ann. §§ 14:30, 14:42, 14:44, 14:113 (1974).
There are two major differences between the Louisiana and North Carolina statutes governing first-degree murder cases. First, the crime of first-degree murder in North Carolina includes any willful, deliberate, and premeditated homicide and any felony murder, whereas Louisiana limits first-degree murder to five categories of homicide — killing in connection with the commission of certain felonies; killing of a fireman or a peace officer in the performance of his duties; killing for remuneration; killing with the intent to inflict harm on more than one person; and killing by a person with a prior murder conviction or under a current life sentence. Second, Louisiana employs a unique system of responsive verdicts under which the jury in every first-degree murder case must be instructed on the crimes of first-degree murder, second-degree murder, and manslaughter and must be provided with the verdicts of guilty, guilty of second-degree murder, guilty of manslaughter, and not guilty. See La. Code Crim. Proc. Ann., Arts. 809, 814 (Supp. 1975); State v. Cooley, 260 La. 768, 771, 257 So. 2d 400, 401 (1972). By contrast, in North Carolina instructions on lesser included offenses must have a basis in the evidence adduced at trial. See State v. Spivey, 151 N. C. 676, 65 S. E. 995 (1909); cf. State v. Vestal, 283 N. C. 249, 195 S. E. 2d 297 (1973).
That Louisiana has adopted a different and somewhat narrower definition of first-degree murder than North Carolina is not of controlling constitutional significance. The history of mandatory death penalty statutes indicates a firm societal view that limiting the scope of capital murder is an inadequate response to the harshness and inflexibility of a mandatory death sentence statute. See Woodson v. North Carolina, ante, at 289-296. A large group of jurisdictions first responded to- the unacceptable severity of the common-law rule of automatic death sentences for all murder convictions by narrowing the definition of capital homicide. Each of these jurisdictions found that approach insufficient and subsequently substituted discretionary sentencing for mandatory death sentences. See Woodson v. North Carolina, ante, at 290-292.
The futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the capital offense stems from our society’s rejection of the belief that “every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.” Williams v. New York, 337 U. S. 241, 247 (1949). See also Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937). As the dissenting Justices in Furman noted, the 19th century movement away from mandatory death sentences was rooted hi the recognition that “individual culpability is not always measured by the category of crime committed.” 408 U. S., at 402 (Burgee, C. J., joined by Blackmun, Powell, and Rehnquist, JJ., dissenting).
The constitutional vice of mandatory death sentence statutes — lack of focus on the circumstances of the particular offense and the character and propensities of the offender — is not resolved by Louisiana’s limitation of first-degree murder to various categories of killings. The diversity of circumstances presented in cases falling within the single category of killings during the commission of a specified felony, as well as the variety of possible offenders involved in such crimes, underscores the rigidity of Louisiana’s enactment and its similarity to the North Carolina statute. Even the other more narrowly drawn categories of first-degree murder in the Louisiana law afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender.
Louisiana’s mandatory death sentence statute also fails to comply with Furman’s requirement that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences. The State claims that it has adopted satisfactory procedures by taking all sentencing authority from juries in capital murder cases. This was accomplished, according to the State, by deleting the jury’s pre-Furman authority to return a verdict of guilty without capital punishment in any murder case. See La. Rev. Stat. Ann. § 14:30 (1974); La. Code Crim. Proc. Ann., Arts. 814, 817 (Supp. 1975).
Under the current Louisiana system, however, every jury in a first-degree murder case is instructed on the crimes of second-degree murder and manslaughter and permitted to considér those verdicts even if there is not a scintilla of evidence to support the lesser verdicts. See La. Code Crim. Proc. Ann., Arts. 809, 814 (Supp. 1975). And, if a lesser verdict is returned, it is treated as an acquittal of all greater charges. See La. Code Crim. Proc. Ann., Art. 598 (Supp. 1975). This responsive verdict procedure not only lacks standards to guide the jury in selecting among first-degree murderers, but it plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate. There is an element of capriciousness in making the jurors' power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge’s instructions. The Louisiana procedure neither provides standards to channel jury judgments nor permits review to check the arbitrary exercise of the capital jury’s de facto sentencing discretion. See Woodson v. North Carolina, ante, at 302-303.
The Louisiana statute thus suffers from constitutional deficiencies similar to those identified in the North Carolina statute in Woodson v. North Carolina, ante, p. 280. As in North Carolina, there are no standards provided to guide the jury in the exercise of its power to select, those first-degree murderers who will receive death sentences, and there is no meaningful appellate review of the jury’s decision. As in North Carolina, death sentences are mandatory upon conviction for first-degree murder. Louisiana’s mandatory death sentence law employs a procedure that was rejected by that State’s legislature 130 years ago and that subsequently has been renounced by legislatures and juries in every jurisdiction in this Nation. See Woodson v. North Carolina, ante, at 291-296. The Eighth Amendment, which draws much of its meaning from “the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), simply cannot tolerate the reintroduction of a practice so thoroughly discredited.
Accordingly, we find that the death sentence imposed upon the petitioner under Louisiana’s mandatory death sentence statute violates the Eighth and Fourteenth Amendments and must be set aside. The judgment of the Supreme Court of Louisiana is reversed insofar as it upheld the death sentence imposed upon the petitioner, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
La. Rev. Stat. Ann. § 14:30 (1951). The felonies were aggravated arson, aggravated burglary, aggravated kidnaping, aggravated rape, armed robbery, and simple robbery.
La. Code Crim. Proe. Ann., Art. 814 (1967).
La. Rev. Stat. Ann. § 14:30 (1974):
“First degree murder
“First degree murder is the killing of a human being:
“(1) When the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated rape or armed robbery; or
“(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties; or
“(3) Where the offender has a specific intent to kill or to inflict great bodily harm and has previously been convicted of an unrelated murder or is serving a life sentence; or
“(4) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person;, [or]
“(5) When the offender has specific intent to commit murder and has been offered or has received anything of value for committing the murder.
“For the purposes of Paragraph (2) herein, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys’ investigator.
“Whoever commits the crime of first degree murder shall be punished by death.”
(In 1975, § 14:30 (1) was amended to add the crime of aggravated burglary as a predicate felony for first-degree murder. La. Acts 1975, No. 327, § 1.)
Louisiana Rev. Stat. Ann. § 14:30.1 (1974) provides:
“Second degree murder
“Second degree murder is the killing of a human being:
“(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
“(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.
“Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty years.”
(In 1975, § 14:30.1 was amended to increase the period of parole ineligibility from 20 to 40 years following a conviction for second-degree murder. La. Acts 1975, No. 380.)
See State v. Cooley, 260 La. 768, 257 So. 2d 400 (1972).
Louisiana Code Crim. Proc. Ann., Art. 814 (1967), enumerated “guilty without capital punishment” as one of the responsive verdicts available in a murder case. Article 817 provided that the jury in a capital case could qualify its verdict of guilty with the phrase “without capital punishment.”
La. Code Crim. Proc. Ann., Art. 817 (Supp. 1975).
At least 27 jurisdictions first limited the scope of their capital homicide laws by dividing murder into degrees and then later made death sentences discretionary even in first-degree murder cases.
Only the third category of the Louisiana first-degree murder statute, covering intentional killing by a person serving a life sentence or by a person previously convicted of an unrelated murder, defines the capital crime at least in significant part in terms of the character or record of the individual offender. Although even this narrow category does not permit the jury to consider possible mitigating factors, a prisoner serving a life sentence presents a unique problem that may justify such a law. See Gregg v. Georgia, ante, at 186; Woodson v. North Carolina, ante, at 287 n. 7, 292-293, n. 25.
Louisiana juries are instructed to return a guilty verdict for the offense charged if warranted by the evidence and to consider lesser verdicts only if the evidence does not justify a conviction on the greater offense. See State v. Iiill, 297 So. 2d 660, 662 (La. 1974); cf. State v. Selman, 300 So. 2d 467, 471-473 (La. 1974).
While it is likely that many juries will follow their instructions and consider only the question of guilt in reaching their verdict, it is only reasonable to assume, in light of past experience with mandatory death sentence statutes, that a significant number of juries will take into account the fact that thg death sentence is an automatic consequence of any first-degree murder conviction in Louisiana. See Woodson v. North Carolina, ante, at 302-303. Those juries that do consider sentencing consequences are given no guidance in deciding when the ultimate sanction of death is an appropriate punishment and will often be given little or no evidence concerning the personal characteristics and previous record of an individual defendant. Moreover, there is no judicial review to safeguard against capricious sentencing determinations. Indeed, there is no judicial review of the sufficiency of the evidence to support a conviction. See State v. Brumfield, 319 So. 2d 402, 404 (La. 1975); State v. Evans, 317 So. 2d 168, 170 (La. 1975); State v. Douglas, 278 So. 2d 485, 491 (La. 1973).
See La. Laws 1846, c. 139.
See La. Rev. Stat. Ann. § 14:30 (1974), set forth at n. 3, supra.
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