Mu'Min v. Virginia/Dissent Marshall
|←Mu'Min v. Virginia/Opinion of the Court||Mu'Min v. Virginia by
Justice MARSHALL, with whom Justice BLACKMUN and Justice STEVENS join as to all but Part IV, dissenting.
Today's decision turns a critical constitutional guarantee the Sixth Amendment's right to an impartial jury-into a hollow formality. Petitioner Dawud Majid Mu'Min's capital murder trial was preceded by exceptionally prejudicial publicity, and at jury selection 8 of the 12 jurors who ultimately convicted Mu'Min of murder and sentenced him to death admitted exposure to this publicity. Nonetheless, the majority concludes that the trial court was under no obligation to ask what these individuals knew about the case before seating them on the jury. Instead, the majority holds that the trial court discharged its obligation to ensure the jurors' impartiality by merely asking the jurors whether they thought they could be fair.
The majority's reasoning is unacceptable. When a prospective juror has been exposed to prejudicial pretrial publicity, a trial court cannot realistically assess the juror's impartiality without first establishing what the juror already has learned about the case. The procedures employed in this case were wholly insufficient to eliminate the risk that two-thirds of Mu'Min's jury entered the jury box predisposed against him. I dissent.
* The majority concedes that the charges against Mu'Min "engendered substantial publicity," ante, at 417, and that "news reports about Mu'Min were not favorable," ante, at 429, but seeks to minimize the impact of the pretrial publicity by arguing that it was not as extensive as in other cases that have come before this Court, ibid. The majority's observation is completely beside the point. Regardless of how widely disseminated news of the charges against Mu'Min might have been, the simple fact of the matter is that two-thirds of the persons on Mu'Min's jury admitted having read or heard about the case. While the majority carefully avoids any discussion of the specific nature of the pretrial publicity, it is impossible to assess fairly Mu'Min's claim without first examining precisely what was written about the case prior to trial.
On September 22, 1988, Gladys Nopwasky was stabbed to death in the retail carpet and flooring store she owned in Dale City, Virginia. Several weeks later, Mu'Min, an inmate serving a 48-year sentence for first-degree murder, was indicted for murdering Nopwasky. Facts developed at trial established that Mu'Min had committed the murder after escaping from the site of a Virginia Department of Transportation work detail. See 239 Va. 433, 437-438, 389 S.E.2d 886, 889-890 (1990).
The circumstances of the murder generated intense local interest and political controversy. The press focused on the gross negligence of the corrections officials responsible for overseeing the work detail from which Mu'Min had escaped. It was reported, for instance, that the facility to which Mu'Min was assigned had been enclosed by only a four-foot high fence, with a single strand of barbed wire across the top. See App. in No. 890899 (Va.Sup.Ct.), p. 963 (hereinafter App.). It was also reported that the lax supervision at the facility allowed the inmates to have ready access to alcohol, drugs, and weapons and to slip away from the work detail for extended periods without detection. Id., at 922, 939, 963-964. Shortly after the charges against Mu'Min became public, the state official in charge of administering both corrections and highway programs issued a public apology. Id., at 927. Not satisfied, a number of area residents wrote editorials demanding that all state officials responsible for the inmate work-release program be fired, id., at 930, 931, 937, 974, and area leaders pushed for increased controls on inmate-release programs, see id., at 933, 935, 936, 958. Officials responded with the introduction of stiffer restrictions on prison work crews, id., at 922, 938, and with the suspension of furloughs for inmates convicted of violent crimes, id., at 970. In explaining the new policies, the director of Virginia's Department of Corrections acknowledged that the explosive public reaction to the charges against Mu'Min had been intensified by the case of Willie Horton, whose rape and assault of a Maryland woman while on furlough became a major issue in the 1988 presidential campaign. " 'The world's in an uproar right now,' " the official was quoted as stating. Ibid.
Naturally, a great deal of the media coverage of this controversy was devoted to Mu'Min and the details of his crime. Most of the stories were carried on the front pages of local papers, and almost all of them were extremely prejudicial to Mu'Min. Readers of local papers learned that Nopwasky had been discovered in a pool of blood, with her clothes pulled off and semen on her body. Id., at 925. In what was described as a particularly "macabre" side of the story, a local paper reported that, after raping and murdering Nopwasky, Mu'Min returned to the work site to share lunch with other members of the prison detail. Id., at 963.
Readers also learned that Mu'Min had confessed to the crime. Under the banner headlines, "Murderer confesses to killing woman," id., at 975-976, and "Inmate Said to Admit to Killing," id., at 925, the press accompanied the news of Mu'Min's indictment with the proud announcement of Virginia's Secretary of Transportation and Public Safety that the State had already secured Mu'Min's acknowledgment of responsibility for the murder. See id., at 975, 981. Subsequent stories reported that, upon being confronted with the charges, Mu'Min initially offered the incredible claim that he had entered the store only to help Nopwasky after witnessing another man attempting to rape her. Id., at 932, 945. However, according to these reports, Mu'Min eventually abandoned this story and confessed to having stabbed Nopwasky twice with a steel spike, once in the neck and once in the chest, after having gotten into a dispute with her over the price of Oriental rugs. Id., at 945, 955. One of these stories was carried under the front-page headline: "Accused killer says he stabbed Dale City woman after argument." Id., at 945.
Another story reported that Mu'Min had admitted at least having contemplated raping Nopwasky. According to this article, Mu'Min had told authorities, " 'The thought did cross my mind, but I did not have sex with her.' " Id., at 959. This item was reported as a front-page story, captioned by the headline: "Mu'Min Says He Decided against Raping Nopwasky." Ibid. See also id., at 922 (headline reading "Laxity was factor in sex killing").
Those who read the detailed reporting of Mu'Min's background would have come away with little doubt that Mu'Min was fully capable of committing the brutal murder of which he was accused. One front-page story set forth the details of Mu'Min's 1973 murder of a cab driver. See id., at 951. Another, entitled "Accused killer had history of prison trouble," stated that between 1973 and 1988, Mu'Min had been cited for 23 violations of prison rules and had been denied parole six times. Id., at 942. It was also reported that Mu'Min was a suspect in a recent prison beating. Id., at 921. Several stories reported that Mu'Min had strayed from the Dale City work detail to go on numerous criminal forays before murdering Nopwasky, sometimes stealing beer and wine, id., at 932, 956, 959, and on another occasion breaking into a private home, id., at 964. As quoted in a local paper, a Department of Corrections report acknowledged that Mu'Min " 'could not be described as a model prisoner.' " Id., at 939, 969. Contacted by a reporter, one of Mu'Min's fellow inmates described Mu'Min as a " 'lustful' " individual who did " 'strange stuff.' " " 'Maybe not this,' " the inmate was quoted as saying, " 'but I knew something was going to happen.' " Id., at 964.
Indeed, readers learned that the murder of Nopwasky could have been avoided if the State had been permitted to seek the death penalty in Mu'Min's 1973 murder case. In a story headlined "Mu'Min avoided death for 1973 murder in Va.," one paper reported that but for this Court's decision a year earlier in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which temporarily invalidated the death penalty, the prosecutor at the earlier trial "would have had a case of capital murder." App., at 951. As reported in the press, the prosecutor who indicted Mu'Min for murdering Nopwasky concurred that the case underscored the need for " 'more and swifter capital punishment.' " Id., at 980.
Finally, area residents following the controversy were told in no uncertain terms that their local officials were already convinced of Mu'Min's guilt. The local Congressman announced that he was "deeply distressed by news that my constituent Gladys Nopwasky was murdered by a convicted murderer serving in a highway department work program" and demanded an explanation of the "decisions that allowed a person like Dawud Mu'Min to commit murder." Id., at 981. His opponent in the 1988 congressional election, a member of the Virginia House of Delegates, likewise wrote an editorial in which he stated, "I am outraged that a Department of Corrections inmate apparently murdered a resident of Dale City." Id., at 984. Assuring the public that the right person had been charged with the crime, the local police chief explained, " 'We haven't lost very many [murder cases] lately. . . . All of the evidence will come out at some point.' " Id., at 979. Indeed, by virtue of the intense media coverage, that "point" was reached long before trial.
The question before us is whether, in light of the charged atmosphere that surrounded this case, the trial court was constitutionally obliged to ask the eight jurors who admitted exposure to pretrial publicity to identify precisely what they had read, seen, or heard. The majority answers this question in the negative. According to the majority, the trial court need ask no more of a prospective juror who has admitted exposure to pretrial publicity than whether that prospective juror views himself as impartial. Our cases on juror-bias, the majority asserts, have never gone so far as to require trial courts to engage in so-called "content questioning," and to impose such a requirement would prove unduly burdensome to the administration of justice. I cannot accept this analysis.
This Court has long and repeatedly recognized that exposure to pretrial publicity may undermine a defendant's Sixth Amendment guarantee to trial by an impartial jury. E.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).  In order for the jury to fulfill its constitutional role, each juror must set aside any preconceptions about the case and base his verdict solely on the evidence at trial. Irvin v. Dowd, supra, 366 U.S., at 722, 81 S.Ct., at 1642. "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907).
Nonetheless, before today, this Court had not been called upon to address in any great detail the procedures necessary to assure the protection of the right to an impartial jury under the Sixth Amendment. In particular, although our cases indicate that the trial court's conclusion that a particular juror has not been overwhelmed by pretrial publicity is reviewable only for " 'manifest error,' " Patton v. Yount, supra, 467 U.S., at 1031, 104 S.Ct., at 2889, quoting Irvin v. Dowd, supra, 366 U.S., at 723, 81 S.Ct., at 1643, we have never indicated the type of voir dire that the trial court must undertake in order for its findings to merit this " 'special deference,' " Patton v. Yount, supra, 467 U.S., at 1038, 104 S.Ct., at 2892, quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500, 104 S.Ct. 1949, 1959, 80 L.Ed.2d 502 (1984). Because the issue in today's case is essentially one of first impression, the majority's observation that our racial-bias cases have never "gone so far" as to require content questioning, see ante, at 431, is irrelevant. Even assuming that the scope of voir dire in the pretrial-publicity setting need be no greater than the scope of voir dire in the racial-bias setting, no inference can be drawn from the failure of decisions like Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), and Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), to "require questioning of individual jurors about facts or experiences that might have led to racial bias," ante, at ----, because the sole issue in those cases was whether any inquiry into racial bias was required.
Indeed, the only firm conclusion that can be drawn from our impartial-jury jurisprudence is that a prospective juror's own "assurances that he is equal to the task cannot be dispositive of the accused's rights." Murphy v. Florida, supra, 421 U.S., at 800, 95 S.Ct., at 2036. As Justice O'CONNOR has observed, an individual "juror may have an interest in concealing his own bias . . . [or] may be unaware of it." Smith v. Phillips, 455 U.S. 209, 221-222, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982) (concurring opinion). "Natural human pride would suggest a negative answer to whether there was a reason the juror could not be fair and impartial." United States v. Dellinger, 472 F.2d 340, 375 (CA7 1972); compare Irvin v. Dowd, supra, 366 U.S., at 728, 81 S.Ct., at 1645 ("No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father"). It is simply impossible to square today's decision with the established principle that, where a prospective juror admits exposure to pretrial publicity, the trial court must do more than elicit a simple profession of open-mindedness before swearing that person into the jury.
To the extent that this Court has considered the matter, it has emphasized that where a case has been attended by adverse pretrial publicity, the trial court should undertake "searching questioning of potential jurors . . . to screen out those with fixed opinions as to guilt or innocence." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 564, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (1976) (emphasis added); accord, id., at 602, 96 S.Ct., at 2823 (Brennan, J., concurring in judgment). Anything less than this renders the defendant's right to an impartial jury meaningless. See Ham v. South Carolina, supra, 409 U.S., at 532, 93 S.Ct., at 853 (MARSHALL, J., concurring in part and dissenting in part). As this Court has recognized, "[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." Dennis v. United States, 339 U.S. 162, 171-172, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950). The fact that the defendant bears the burden of establishing juror partiality, see, e.g., Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985); Irvin v. Dowd, supra, 366 U.S., at 723, 81 S.Ct., at 1643, makes it all the more imperative that the defendant be entitled to meaningful examination at jury selection in order to elicit potential biases possessed by prospective jurors.
In my view, once a prospective juror admits exposure to pretrial publicity, content questioning must be part of the voir dire for at least three reasons. First, content questioning is necessary to determine whether the type and extent of the publicity to which a prospective juror has been exposed would disqualify the juror as a matter of law. Our cases recognize that, under certain circumstances, exposure to particularly inflammatory publicity creates so strong a presumption of prejudice that "the jurors' claims that they can be impartial should not be believed." Patton v. Yount, supra, 467 U.S., at 1031, 104 S.Ct., at 2889; see Murphy v. Florida, 421 U.S., at 798-799, 95 S.Ct., at 2035-36. For instance, in Irvin v. Dowd, supra, we concluded that a capital defendant was constitutionally entitled to a change of venue because no one who had been exposed to the inflammatory media descriptions of his crime and confession could possibly have fairly judged his case, and because this publicity had saturated the community in which the defendant was on trial. See id., 366 U.S., at 725-729, 81 S.Ct., at 1644-46. Similarly, in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), we presumed community prejudice mandating a change in venue when petitioner's filmed confession obtained during a police interrogation was broadcast on local television over three consecutive days. See id., at 724, 726-727, 83 S.Ct., at 1418, 1419-20. An individual exposed to publicity qualitatively akin to the publicity at issue in Irvin and Rideau is necessarily disqualified from jury service no matter how earnestly he professes his impartiality.  But unless the trial court asks a prospective juror exactly what he has read or heard about a case, the court will not be able to determine whether the juror comes within this class. Cf. Murphy v. Florida, supra, 421 U.S., at 800-802, 95 S.Ct., at 2036-37 (performing careful analysis of content of pretrial publicity to which jurors had been exposed before rejecting impartiality challenge); Sheppard v. Maxwell, 384 U.S., at 357, 86 S.Ct., at 1519 (observing that jurors had been exposed to prejudicial publicity during trial and criticizing trial court's failure to ask the jurors "whether they had read or heard specific prejudicial comment about the case"). 
Second, even when pretrial publicity is not so extreme as to make a juror's exposure to it per se disqualifying, content questioning still is essential to give legal depth to the trial court's finding of impartiality. One of the reasons that a "juror may be unaware of" his own bias, Smith v. Phillips, 455 U.S., at 222, 102 S.Ct., at 948 (O'CONNOR, J., concurring), is that the issue of impartiality is a mixed question of law and fact, see Irvin v. Dowd, 366 U.S., at 723, 81 S.Ct., at 1643, the resolution of which necessarily draws upon the trial court's legal expertise. Where, as in this case, a trial court asks a prospective juror merely whether he can be "impartial," the court may well get an answer that is the product of the juror's own confusion as to what impartiality is.  By asking the prospective juror in addition to identify what he has read or heard about the case and what corresponding impressions he has formed, the trial court is able to confirm that the impartiality that the juror professes is the same impartiality that the Sixth Amendment demands.
Third, content questioning facilitates accurate trial court factfinding. As this Court has recognized, the impartiality "determination is essentially one of credibility." Patton v. Yount, 467 U.S., at 1038, 104 S.Ct., at 2892. Where a prospective juror acknowledges exposure to pretrial publicity, the precise content of that publicity constitutes contextual information essential to an accurate assessment of whether the prospective juror's profession of impartiality is believable. If the trial court declines to develop this background, its finding of impartiality simply does not merit appellate deference.
In my view, the circumstances of this case presented a clear need for content questioning. Exactly two-thirds of the persons on Mu'Min's jury admitted having been exposed to information about the case before trial. As I have shown, see supra, at 435-438, the stories printed prior to trial were extraordinarily prejudicial, and were made no less so by the inflammatory headlines typically used to introduce them. Much of the pretrial publicity was of the type long thought to be uniquely destructive of a juror's ability to maintain an open mind about a case-in particular, reports of Mu'Min's confession, see Nebraska Press Assn. v. Stuart, 427 U.S., at 541, 563, 96 S.Ct., at 2794, 2804; id., at 602, 96 S.Ct., at 2823 (Brennan, J., concurring in judgment); Rideau v. Louisiana, supra, Irvin v. Dowd, supra, 366 U.S., at 725-726, 81 S.Ct., at 1644; statements by prominent public officials attesting to Mu'Min's guilt, see Nebraska Press Assn. v. Stuart, supra, 427 U.S., at 602, 96 S.Ct., at 2823 (Brennan, J., concurring in judgment); Sheppard v. Maxwell, supra, 384 U.S., at 340, 349, 86 S.Ct., at 1511, 1515; and reports of Mu'Min's unsavory past, see Irvin v. Dowd, supra, 366 U.S., at 725-726, 81 S.Ct., at 1644. Because of the profoundly prejudicial nature of what was published in the newspapers prior to trial, any juror exposed to the bulk of it certainly would have been disqualified as a matter of law under the standards set out in Irvin and Rideau. Indeed, the single story headlined "Murderer confesses to killing woman," App. 975-976, or alternatively the story headlined "Accused killer says he stabbed Dale City woman after argument," id., at 945, in my opinion would have had just as destructive an effect upon the impartiality of anyone who read it as did the filmed confession in Rideau upon the members of the community in which it was broadcast. At minimum, without inquiry into what stories had been read by the eight members of the jury who acknowledged exposure to pretrial publicity, the trial court was in no position to credit their individual professions of impartiality.
According to Justice O'CONNOR, the trial court was not obliged to pose content questions because "the trial judge himself was familiar with the potentially prejudicial publicity to which the jurors might have been exposed." Ante, at 433 (concurring opinion). I find this observation perplexing. The judge's awareness of the contents of the extraordinarily prejudicial stories written about Mu'Min is not a substitute for knowledge of whether the prospective jurors were aware of the content of these stories. As I have explained, it is the judge's ignorance of the jurors' exposure to particular stories that renders his findings of juror impartiality unworthy of appellate deference. Indeed, because at least two of the stories would have rendered any person who read them per se unqualified to sit on the jury, the trial judge's awareness of these stories makes even more inexcusable his willingness to seat the jurors without first ascertaining what they had read about the case.  Nor is it any answer to protest, as Justice O'CONNOR does, that the trial court "repeatedly" asked the prospective jurors whether they thought they could be fair. Ibid. When a prospective juror admits exposure to pretrial publicity, the juror's assertion of impartiality, on its own, is insufficient to establish his impartiality for constitutional purposes. I do not see how the juror's assertion of impartiality becomes any more sufficient merely through repetition.
Finally, I reject the majority's claim that content questioning should be rejected because it would unduly burden trial courts. See ante, at 425. Sixty years ago, Chief Justice Hughes rejected a similar contention:
"The argument is advanced on behalf of the Government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute." Aldridge v. United States, 283 U.S., at 314-315, 51 S.Ct., at 473.
This reasoning is fully applicable here.
In any case, the majority's solicitude for administrative convenience is wholly gratuitous. Numerous Federal Circuits and States have adopted the sorts of procedures for screening juror bias that the majority disparages as being excessively intrusive. See United States v. Addonizio, 451 F.2d 49, 67 (CA3 1971) (content questioning and sequestered voir dire ), cert. denied, 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 812 (1972); United States v. Davis, 583 F.2d 190, 196 (CA5 1978) (content questioning); Silverthorne v. United States, 400 F.2d 627, 639 (CA9 1968) (content questioning); Minn.Rule Crim.Proc. 26.02, Subd. 4(2)(b) (sequestered voir dire ); State v. Pokini, 55 Haw. 640, 643-644, 526 P.2d 94, 100-101 (1974) (content questioning); State v. Goodson, 412 So.2d 1077, 1081 (La.1982) (content questioning and sequestered voir dire ); State v. Claybrook, 736 S.W.2d 95, 99-100 (Tenn.1987) (sequestered voir dire ); State v. Herman, 93 Wash.2d 590, 593-594, 611 P.2d 748, 750 (1980) (sequestered voir dire ); State v. Finley, --- W.Va. ---, ---- - ----, 355 S.E.2d 47, 50-51 (1987) (sequestered voir dire ). See also United States v. Colabella, 448 F.2d 1299, 1303 (CA2 1971) (recommending sequestered voir dire in cases involving prejudicial pretrial publicity); United States v. Harris, 542 F.2d 1283, 1295 (CA7 1976) (same), cert. denied sub. nom. Clay v. United States, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977), American Bar Association Standards for Criminal Justice 8-3.5(a) (2d ed. 1980) (same), Judicial Conference of the United States, Revised Report of the Judicial Conference Committee on the Operation of the Jury System on the "Free Press-Fair Trial" Issue, 87 F.R.D. 519, 532-533 (1980) (same). Additionally, two other States guarantee criminal defendants sequestered voir dire as a matter of right in all capital cases. See Ky. Rule Crim.Proc. 9.38; Tex.Code Crim.Proc.Ann., Art. 35.17 (Vernon 1989). In short, the majority's anxiety is difficult to credit in light of the number of jurisdictions that have concluded that meaningful steps can be taken to insulate the proceedings from juror bias without compromising judicial efficiency. 
"Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S., at 362, 86 S.Ct., at 1522. The reason for this is simple and compelling: In our system of justice, "only the jury may strip a man of his liberty or his life." Irvin v. Dowd, 366 U.S., at 722, 81 S.Ct., at 1642.
Eight of the twelve jurors who voted to strip Dawud Majid Mu'Min of his life may well have been rendered incapable of reaching any other verdict after reading of the grisly accusations against Mu'Min and the succession of stories indicating that he was guilty. The majority holds that the trial court was entitled to seat those jurors-entirely blind to what they in fact already knew about the case-based solely upon their assertions of impartiality. Far from "tak[ing] strong measures to ensure that the balance [was not] weighed against the accused," the procedures undertaken in this case amounted to no more than the trial court going through the motions. I cannot accept that a defendant's Sixth Amendment right to an impartial jury means so little. I dissent.
Even if I were to believe that the procedures employed at Mu'Min's jury selection satisfied the requirements of the Sixth Amendment, I still would vacate his death sentence. I adhere 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, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting).