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Yummy. I could almost subsist on stills alone for this drama, to tell you the truth. Who knows, it might even save me heartache in case it's a trainwreck. But it's not likely I'm going to pass up watching a whole bunch of this *looks up* and that *looks down.* No siree. More stills for action spy rom-com Level 7 Civil Servant, comin' right atcha.
So… what I'm getting from these stills is: violent but pretty. Choi Kang-hee's really going to be put through the wringer with both guys, from the looks of things. Do you suppose that the headlock will be this drama's wrist-grab? Because OW. She gets her licks in though, judging by Joo-won's bloody nose. It only seems fair.
The more I see of this drama's promo stuff, the more I think it'll be like Runaway, and not like Level 7 Civil Servant the movie at all. I'm not even sure if the leads have a chance to be spies without the other one knowing it, if they're entering the ranks and training together. I suppose I'm fine with a rewrite as long as the tone stays light and fun — just because you have guns, don't forget you're a rom-com, Show.
Level 7 Civil Servant premieres next Wednesday on MBC.
Via TV Report
- Level 7 Civil Servant's ballroom flirting and agent training
- Uhm Tae-woong's Level 7 Civil Servant guest appearance
- Winks, finger guns, and blind dates for Level 7 Civil Servant
- The bickering begins on Level 7 Civil Servant
- Joo-won shoots (hur hur) for Level 7 Civil Servant
- Level 7 Civil Servant starts shooting
- Level 7 Civil Servant adds to its spy count


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We put all new applicants through their paces.
Toronto Thumbs is a gaming news site that takes gaming seriously. We aim to make people think, laugh, and feel what we feel via our detailed and often personal recollections of gaming experiences. Sincerity, therefore, is a huge facet of our approach to video game journalism. Our team of writers is comprised of seasoned (but not jaded) gamers from various walks of life. We are dedicated to discussing and deconstructing what works and what doesn't in gaming without hiding behind irony or facetiousness.
As fans of video gaming, we see that video game journalism has come a long way but also realize there is still much to accomplish. We will never just cut and paste from press releases for the sake of reporting breaking news because our readers expect and deserve more than that.
Another aim of Toronto Thumbs is to talk about and generate interest in games that might be overlooked by the general gaming public. Our article topics aren't restricted to just current-generation games, however. We cover games for classic consoles, tabletop and board games, and browser-based games. Because gamers are interested in more than just games, we also occasionally cover other forms of entertainment (such as music, movies, and gadgets).
For more information on Toronto Thumbs, please email us at firstname.lastname@example.com.
Main Ninja Team
Jorge Figueiredo
– Editor-in-Chief, Sniper, Naruto Freak
– Writer, RTS Guru, WAAAAAAAAAAAGHHH!!!
Seán O'Sullivan
Writer, Griper, Vagabond, Sesquipedalian
Secondary Ninja Team
Kat Armstrong
– Writer, Pac-Man Addict, Mom
Evan Bergstra
Writer, Photographer, Wanderer, Idiot
Sharad Hirjee
– Writer, Duty Caller, Future Assassin, Offensive Line Man
Malcolm Inglis
– Writer, Traveler, Backlog Curator
Jarita Lee
– Writer, Caprican, Hipster, Starcrafty
Ricky Lima
– Furious Writer, Fox Hound Operative
Dave McLean
– Writer, Carjacker, Beard Enthusiast
Cody Orme
– Writer, Aspiring Game Journalist, Platforming Perfectionist
Dana Russo
– Writer, Social Media Pro, Head Awesome of Awesome Enterprises
Jayson Young
– Writer, Foreign Correspondent, Shenmue Apologist, Real-Life Level-Grinder
Ninja Allies
Christopher Calzonetti
– Keen Observer, Nodder, Shrugger
Mike Croft
– Writer, One-Thumbed Ninja
Mike Jackson
– Writer, Chiptunes Guy, Completionist, Torchlight Specialist
Shaun Hatton
– Superstar, Handsome Devil
Tim Krynicki
– Writer, Lord of Shadow, Monado's Heir, That Other Doctor
Kevin Hickey
Rebecca Laroque
– Writer, Bookworm, Wii Lover
Mehran Malek
– Writer, Human Garburator, Mighty Pirate

subset: commoncrawl


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By Indra Widi
11 Dec 2011
A continuation of the mini project exhibition concept that we've done through the installation works of our previous photo - 'Playstic Land', held at the Tourism College - Youthteria 2011 at Halfway Kuta Beach Bali. Further reinforce the concept of plastic and meaning contained in it, namely a silence, wrapped in a plastic bag dialog.
There is a dialogue that we want to work through the installation of this photo. Photo series that we put in plastic bags filled with water that sunlight is biased, implying about the silent conversation - without words (untitle). We invite connoisseurs appreciate with their self when they saw the series of photos that were in it.
Like screaming in the water, but without any further statement, like to show you of something, but without instructions, so easy if we look at and say, so close, yet choked by plastic walls and the volume of the surrounding water. As if the meaning is easy to translate the contents of each photo in a plastic bag, but turns into a question as the sun that makes the display of the installation work into silhouettes and shadows.
Luminescence that allowed sunlight to enter through the works of those sometimes lead to another when there is a perception that crying face photo to be funny because of the distortion effects of the plastic bag. The red color on a sinister leg to orange when the sun shone on it from falling right back. All the teachings change function when a closer look and may hold, rotate, or reverse such works.
This mini project will be the mainstay of the work of our dialogue through the medium of transparent plastic in the form of series in it. In our exhibition series this time, transparency in silent dialogue is an interesting theme, when we liberate visitors interact with and appreciate themselves, without the need we point to a particular title or description.
More Interviews
More stories by Indra Widi
When the Day: Nameless
Photo Essay — 9 Aug 2014
My eyes see the heart sign - Still and Continuous colour series


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Home › Forums › General Forums › General Lightweight Backpacking Discussion › Montbell UL Spiral Long#1 vs WM Alpinlte Long
Dec 27, 2012 at 6:01 am #1297396
I purchased the Montbell bag but was wondering if anyone has experience with both bags. I own a WM Megalite and love it but am really impressed with this Montbell bag although I haven't used as of yet. I am a cold sleeper. The specs are similar with the Montbell bag having 23 oz of down fill and the Alpinlite 21 oz. The MB bag weighs 2 more ozs. Again anyone have experience with these two bags or a WM Versalite which I am also interested in.
Thanks for weighing in.Dec 27, 2012 at 7:07 am #1938540How about the Versalite?
Dec 27, 2012 at 12:01 pm #1938615Anybody?
Dec 27, 2012 at 12:05 pm #1938616I own 2 MB bags and have fondled various WM bags. I probably would have bought the WM Summerlite but hated its hideous red color (yes, subjective, of course). In any case, my MB UL down No. 3 is also a wonderful bag that I find true to its temp rating.
For me, both brands are winners. I wouldn't fret over which brand to buy — it's hard to lose, either way.
Dec 27, 2012 at 12:20 pm #1938619Hi Bill, I will offer my 2 cents. First, there are a lot of personal factors that make one bag better than another for any particular person. For me, the 59 inch girth of the WM ultralite is too small and restrictive. The 64 inch girth of the Megalite is too big and hence cold. The Versalite at 62 inch girth fits just right, but is frequently more bag than is needed. Really what I want is a 62 inch girth bag with about 16 oz of down. Unfortunately no such thing seems to be available.
I have an older MB 3# and like the stretch feature because it keeps the down close to the body. Its sort of a variable girth except better cause it stays close to the whole body. There used to be a large weight penalty for the stretch feature but it looks like they have pared that down to the point it is worthwhile. I expect the MB will be a great bag for the temperatures it is intended for. If they ever get around to making a #2 bag again I may have to give that a try.
Dec 27, 2012 at 12:20 pm #1938620I LOVE my versalite.
Owned FF bags, a Marmot Helium.. etc . this is / has been my favorite bag !
warm enough, when it's cold outside .. cool enough ( e.g. totally unzipped ) when it's warmer outside.
And, ( subjectively) I love the color
You must be logged in to reply to this topic.


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The Let's Learn series of Puzzle Doubles! combines a puzzle with additional activities to create a highly educational, interactive learning experience for children. The Let's Learn puzzles introduce numbers, letters, animals, transportation, foods, and colors and shapes in a bright and colorful way. After assembling the colorful "talk about" puzzle, turn the puzzle over for an entertaining learning activity! Color in the illustrations using the enclosed write-on/wipe-off crayons, and practice handwriting skills by tracing and writing the letters and words as shown. Each 50-piece puzzle measures a giant 3' X 2'! Ages 3+ years.
Rewards: Get 5% Back
Pieces | 50 |
Age | 3+ |
Manufacturer | The Learning Journey |
Theme | Educational |
Product Type | Floor Puzzle |
Mfg. Part Number | 437339 |
UPC Number | 657092437339 |
Release Year | 2012 |
Item Number | 63067 |


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Brandon.moss necessitava di un nuovo design di logo e ha lanciato un contest su 99designs.
È stato scelto un vincitore tra 58 design presentati da 20 designer.
This project is for a automotive dealership who serves the growing portion of the marketplace that has credit issues. The dealer has a one stop web solution that includes inventory financing, and credit approval. The solution also has a phone hotline option, so it is not 100% exclusive to online users.
Target audience tends to be 21-49, both male and female. These people are car buyers who have few options due to their financial situation. The dealership's web site and hot line is a solution for those people.
We do want to market this as a separate entity, therefore no mention of the parent dealership is needed in the logo, just the DriveMyCarHome.com brand. The logo should be somewhat fun, but not too goofy. Obviously, the entity deals in the automotive sector, so I'm open to that type of imagery. The website is the product so we do want to feature the URL somewhat prominently in the logo, although it doesn't have to be the exclusive focal point. Colors are up to you. This is an existing entity that is getting a 100% face lift, so we'll be working the colors and elements of the selected design into the revamped website. I'd like to be provided .eps files compatible with CS2 as well as font files for use in video production, if possible.


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Just as humans require good grooming habits, so do our dogs. Besides being a healthy habit for our dogs, grooming is an important part of the relationship we have with them. Regular grooming sessions are beneficial because they:
When you and your puppy are learning how to groom, come armed with a great attitude, lots of patience, and in the beginning, lots of treats. Always start slowly and add more as your puppy accepts what you're doing. If you start getting frustrated, stop and come back to it later. Remember to keep it positive and fun.
Consulting a professional groomer is important for owners of dogs needing to be clipped or trimmed on a regular basis.
How often?
Unless your dog has gotten into something smelly or dirty, she will need to be bathed only every two to four months. Bathing her too frequently will dry out her skin and strip the natural oils from her coat.
How to get started?
Make sure to use a shampoo that's made for dogs. Human shampoo can be too harsh for your puppy's skin and coat. Put a non-slip surface, such as a bath mat or towel, in the bottom of your tub (or sink, kiddie pool, or wherever you are doing your bathing). Lather up the coat, and then rinse thoroughly. Be sure to rinse completely or the shampoo will leave a dull residue on puppy's fur. Avoid getting shampoo and water directly in the eyes, mouth and inside the ears.
Regular brushing is great, regardless of the length of your dog's coat, because it removes dead hair, distributes the natural oils for a clean and healthy coat, stimulates the surface of the skin, sloughs off dead and dry skin, and helps you become very familiar with your dog's body.
How often?
You should brush your dog every couple of days no matter what the length of the coat. Sometimes your brushing can have a specific purpose, such as removing hair mats or helping them shed their seasonal coat, but most often you'll just be doing a general purpose brushing or combing.
How to get started?
There are many types of brushes and combs available. Some are general purpose and others have specific uses. Examples of general-purpose tools include combs, pin-head brushes and the "Zoom Groom". Shedding blades and universal slicker brushes are great for helping remove dead coat and hair mats, but can be too harsh for general purpose brushing. Finishing slicker brushes are great for making fringe hair look fluffy, but may not have long or sturdy enough bristles to do much good for general purpose brushing. When shopping for tools, consider what you want to accomplish and choose your tools accordingly.
Many puppies will want to chew on the brush or won't like being brushed in the beginning. Let them see and smell the brush, then begin brushing while you reward them with treats and praise. In the beginning, keep your sessions short and increase the length of time as your puppy learns to enjoy it. Remember to keep it positive and fun for both of you!
Keeping your dog's feet trimmed up nice and neat is beneficial, not only because it looks nice, but because it will help reduce the amount of tar, stickers, rocks, iceballs, salt, etc. that will get caught in the feet, all of which can be uncomfortable for your dog.
How to get started?
Use a scissors to trim over the top of your dog's foot and even with the pads on the bottom of the foot. Do not try to trim in between the toes or the pads of the foot.
Since dog's nails grow in a curve, allowing them to get too long will cause the "fingers" and "toes" to splay or twist when the dog walks. This can be very uncomfortable and can ultimately lead to broken fingers and toes. Regular nail clipping can prevent this, as well as reduce the risk of torn nails. It can also save on wear and tear of your floors and carpeting.
How often?
Nails should be checked and clipped approximately every two weeks. They are probably too long if you can hear them "click" as your dog walks across the floor.
How to get started?
There are two styles of nail clippers made just for pets. Either style is acceptable as long as you are comfortable with how it feels in your hands, you have a clear line of sight to exactly where the blade is cutting, and the clipper has a sharp blade on it. Keep a jar of styptic powder handy to stop the bleeding in case you accidentally clip the vein.
Where to clip?
If your puppy has white nails, you can see the pink vein through the nail. Clip off the tip of the nail, but not so much as to clip the vein. If your puppy has black nails, you will need to clip off a little at a time, looking at the nail tip straight on after each clip. When you start seeing a pale oval in the tip, it means you are near the vein and should stop clipping. If you keep the nails clipped on a regular basis, you will notice a hook at the end of a thicker part of the nail. The hook portion is what can be clipped off. Don't forget to clip the dew claws if your dog has them!
Remember to start slow
In the beginning, let your puppy sniff the clipper, hear the sound it makes, and feel it against the paw and nail before you start clipping. If you get just one nail done, that's a success! When you're just starting out, it may take a week or longer to do all four paws. Keep the sessions positive and reward your puppy with lots of treats and praise while you're clipping.
Keeping the inside surfaces of your dog's ears clean will not only feel good to your dog, but is good way to help prevent ear infections. Examining the outside surface will also alert you to the presence of wood ticks, fleas, or anything else unusual.
How often?
Clean your dog's ears about once a week.
How to get started?
You can use either a cotton ball or a piece of gauze with ear cleaning solution, or you can use a baby wipe wrapped around your finger. Don't use water because it doesn't evaporate very easily. Wipe the inside surface of your dog's ear, going down only as far as your finger easily fits. Don't use Q-tips or try to put anything further down the ear canal or you will risk causing a painful ear injury.
If you notice an unusual smell or a discharge coming from your dog's ears, bring it to your veterinarian's attention.
Dogs can suffer from many of the same dental problems as humans (i.e., cavities, gum disease, tartar buildup, etc.) Bacteria from gum disease can also get in your dog's bloodstream causing other health problems. Regular teeth cleaning will save you vet expenses and eliminate the stress of having your dog anesthetized for the cleaning procedures.
How often?
Clean your dog's teeth two to three times per week.
How to get started?
You can use either a piece of gauze wrapped around your finger, a finger cap scrubber made for pet teeth cleaning, or a toothbrush designed for dogs. Do not use human toothpaste because it foams too much and can upset your dog's stomach. Use either toothpaste formulated for dogs, baking soda, or just water. You only need to clean the outside surface of the teeth. Your dog's tongue will keep the top and inside surfaces clean.
In the beginning you may need to start by just getting the puppy used to your rubbing her gums with your finger, and then moving on to one of the tools.
Here's to good health, fun and enjoyment of this time together with your dog!
This material is copyright of Animal Humane Society and can only be used with written permission.


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interesting article.
bug: the fedora core 3 link goes to an ipspec article. I don't see a FC3 article at the site right now. |
That should point here: http://fedora.redhat.com/ I guess I didn't look at my clipboard. duh.
What's the reason you unfreeze only after mounting the snapshot? Shouldn't you be able to unfreeze as soon as you've taken the snapshot?
in addition to the question above:
how long does it take to take a snapshot and mount? during that time, what happens if someone tries to use the mailserver? does it continue to work seamlessly, or do they get some preconfigured 'please call back in 10minutes' message? |
My logo is gone. This is a sad day in Spungy land...
quote: Why is the lvremove path different from the lvcreate path, and what relationship does the mount path have to them? |
quote: It doesn't really matter, I just wait until it can be mounted successfully. |
quote: Everyone's mail client hangs between the xfs_freeze -f and xfs_freeze -u so it appears that it was just a short (5 or 6 second) hiccup. It's really cool |
quote: Very good question: The devmapper device of the "real" filesystem is /dev/mapper/cgpro-prod which is symlinked from /dev/cgpro/prod. So when I take the snapshot, the devmapper node is /dev/mapper/cgpro-snap, and symlinked from /dev/cgpro/snap. I could have used either to mount it. I honestly don't remember why I chose the /dev/mapper for the snapshot and /dev/cgpro/prod for the production. Here's how it looks in the filesystem: |
Cool application of a great technology.
I tried to use LVM with RedHat 9.0 on a terabyte compaq box without any luck. Thanks for the info. I'll try again sometime soon. |
Why isn't Linux.Ars called GNU/Linux.Ars?
Beware of losing the snapshot when the file system is nearing capacity. If the drive fills with the snapshot present, the snapshot will be sacrificed by LVM to free up some space.
I have had it happen to me. Be very aware of this if you have capacity issues. SP |
quote: Because it's "Linux" and not GNU/Linux. |
quote: [linux newbie] I assume that the lvcreate command in 2. creates a snapshot of the filesystem frozen in 1.? [/linux newbie] |
quote: It had a good run. |
quote: $diety help us if RMS ever signs up for Ars. |
quote: This is misleading. Netatalk 2 is much more about supporting Mac OS X than OS9. Appletalk is optional with support for OpenSLP. For people who believe that the Apple Filing Protocol is strictly "legacy", can I point out that Apple continue to move it forward, bringing to it a nice combination of the best features of NFS and SMB (yes, it does have one or two!) |


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Snow Crest Inn
Snow Crest Inn Dharamsala, in the scenic of Naddi, sits among the peaks and valleys of the mighty Himalaya Dhauladhar range. The hotel is just a short distance from the temple and residence of His Holiness the Dalai Lama, and is the perfect 'home base' for exploring the peaceful environment of Dharamsala and the magnificent Kangra Valley of Himachal Pradesh, northern India. The Snow Crest Inn's tranquil atmosphere, beautiful decor, spacious accommodations, and knowledgeable and attentive staff, ensure that each guest's stay is pleasant and comfortable. |
Disponibilité et tarifs
Pour vérifier la disponibilité et les prix, veuillez sélectionner vos dates puis cliquez sur "Mettre à jour les dates"Installations & Politiques Hôtel
- Accueil 24h/24
- Sécurité 24h/24
- Climatisation
- Les transferts depuis ou vers l'aéroport
- Échange de livres
- Télévision par câble
- Ventilateur de plafond
- Cartes bancaires acceptées
- Bureau de change
- Téléphone/Fax
- Accès gratuit à Internet
- Parking gratuit
- Wifi gratuit
- Sèche-cheveux
- Nettoyage et entretien
- Accès à Internet
- Blanchisserie
- Linge de lit inclus
- Casiers à bagages
- Salle de réunion
- Terrasse extérieure
- Parking
- Service postal
- Restaurant
- Service de chambres (24/24)
- Coffre-fort
- Equipement pour se faire du café ou du thé
- Bureau des excursions
- Serviettes incluses
- Service de réveil
- Wifi
Politique d'annulation
Cette propriété a une politique d'annulation de 1 jours. Si vous n'annulez pas dans cet intervalle de temps, vous devrez payer des frais d'annulation du montant de la première nuit de votre séjour.ItinéraireVoir le planCacher la carte
Snow Crest Inn Dharamsala
Dal Lake, Naddi, Upper Dharamsala
Himachal Pradesh, India
By Air from Delhi to Dharamsala
Air Deccan offers daily flights from Delhi to Dharamsala. Delhi to Dharamsala flights depart daily at 1:45 PM, arriving at DHM Dharamsala/Gaggal at 3:35 PM.
Return flights depart Dharamsala/Gaggal everyday at 4:00 PM, arriving at Delhi DEL at 5:50 PM. Flight time is just under 2 hours, with rates from about 2500 INR to 5000 INR.
Air Deccan is currently the only airline offering service to and from Dharamsala/Gaggal DHM.
From Dharamsala/Gaggal airport it is about 20 kilometers/12.4 miles to the Snow Crest Inn in Naddi, upper Dharamsala.
By Train from Delhi to Pathankot
If youre coming by train, a convenient place to buy your ticket is the International Tourist Bureau in New Delhi Railway Station. You can buy your ticket online if you have the option to print out the ticket.
You can also buy a ticket at the Railway Booking Counter at Delhi DEL Airport if you arrive during business hours.
The journey will take from 10 to 13 hours by day or overnight train. Once you arrive in Pathankot, you can go by taxi to Dharamsala, which will take about 3 hours, or by bus which will take about 4 hours. Once you reach lower Dharamsala by bus, you can take another bus or taxi up to Naddi.
By Bus from Delhi to Mcleod Ganj and Dharamsala
There are a number of buses departing Delhi for Dharamsala each day. Most stop in lower Dharamsala and you will need to catch another bus or taxi up to Mcleodganj and Naddi.
Buses departing from the Tibetan area of Majnukatilla in the early evening, arrive in Mcleodganj early in the morning. Getting to Dharamsala by bus trip usually takes about 12 hours, including several stops during the night.
Tickets for Dehli to Dharamsala buses can be purchased through any travel agent.
For buses direct to Mcleodganj, tickets can be purchased from travel agents in Majnukatilla. Tickets cost 550 INR (about $14).
The buses can be quite cramped, with little leg room, and even painful when the person in front of you tips their seat back. If you're able to make your reservations in advance, request seats 1, 2, 3, or 4 for the most comfortable ride.
And although the buses may be cramped, the ride can be very peaceful, as Tibetan monks frequently take the bus from Majnukatilla to Dharamsala.
By Taxi from Delhi to Dharamsala
Getting to Dharamsala by taxi can take from 8 - 14 hours. A large air conditioned taxi with capacity up to nine people can be arranged for approximately 7000 INR (about $179).


text: I've been asked to make a Cher-themed cake. Trouble enough…but then..they requested Cher in her Half-breed regalia. ???? How do I make a feather headdress? I am making Cher out of modelling chocolate from the waist up and I would like to have the head dress cascade down the side of the two-tiered cake. I just need help in how to create the feathers. I can't find molds small enough and I don't know how to make the furry part of the head band. Any and ALL suggestions are very welcomed!!!


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After respondent and his friend Tucker accepted Dickson's offer of a ride home, a fight developed between Tucker and Dickson, and Dickson stopped the car. Respondent held Dickson's head as Tucker struck Dickson in the face with a whiskey bottle. Tucker then pummeled Dickson with his fists until Dickson fell to the ground and lay helpless, at which point Tucker killed him by smashing his skull with a concrete block. Respondent and Tucker disposed of the body, and respondent kept Dickson's car for himself. Respondent was arrested the next day and was charged with capital murder under a Mississippi statute. The jury found him guilty and, following a separate sentencing hearing, sentenced him to death. The Mississippi Supreme Court affirmed, finding that the capital murder verdict and death sentence were sustainable under a Mississippi law making an accomplice equally responsible with the principal offender. After exhausting state postconviction remedies, respondent filed a petition for a writ of habeas corpus in Federal District Court, which denied the writ. The Court of Appeals reversed on the ground that respondent's death sentence was invalid under the intervening decision in Enmund v. Florida, 458 U.S. 782 , that the Eighth Amendment forbids the imposition of the death penalty on "one . . . who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id., at 797. The court based its conclusion solely upon its reading of the jury instructions at respondent's state trial, reasoning that under those instructions the jury may well have found respondent guilty and sentenced him to death despite concluding that he had neither killed nor intended to kill or without ever coming to any conclusion on those questions. Accordingly, the court granted a writ of habeas corpus and vacated respondent's death sentence but permitted the State, at its option, to impose a life sentence or conduct a new sentencing hearing at which, with the proper findings, a death sentence could be reimposed. [474 U.S. 376, 377]
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 392. BRENNAN, J., filed a dissenting opinion, post, p. 393. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 394. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 407.
Marvin L. White, Jr., Special Assistant Attorney General of Mississippi, argued the cause for petitioners. With him on the brief were Edwin Lloyd Pittman, Attorney General, Amy D. Whitten, Special Assistant Attorney General, and William S. Boyd III.
Joseph T. McLaughlin argued the cause for respondent. With him on the briefs were Henry Weisburg and Daniel Levin. *
[ Footnote * ] Michael J. Bowers, Attorney General of Georgia, Marion O. Gordon, First Assistant Attorney General, William B. Hill, Jr., Senior Assistant Attorney General, Mary Beth Westmoreland, Assistant Attorney General, Jim Smith, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, and Archie G. McClintock, Attorney General of Wyoming, filed a brief for the State of Georgia et al. as amici curiae urging reversal.
Robert Glass and Timothy K. Ford filed a brief for the National Association of Criminal Lawyers as amicus curiae.
JUSTICE WHITE delivered the opinion of the Court.
In Enmund v. Florida, 458 U.S. 782 (1982), we ruled that the Eighth Amendment forbids the imposition of the death penalty on "one . . . who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id., at 797. This case requires us to determine in whose hands the decision that a defendant possesses the requisite degree of culpability properly lies. [474 U.S. 376, 379]
Early in the morning of September 22, 1978, respondent Crawford Bullock and his friend Ricky Tucker accepted Mark Dickson's offer of a ride home from a bar in Jackson, Mississippi. During the course of the ride, Tucker and Dickson began to argue about some money Dickson supposedly owed Tucker. The argument became a fight: Dickson stopped the car, and Dickson and Tucker exchanged blows. Bullock attempted to grab Dickson, but Dickson eluded his grasp and fled from the car. Tucker gave chase and succeeded in tackling Dickson, while Bullock, who had a cast on his leg, followed more slowly. When Bullock caught up with the struggling men, he held Dickson's head as Tucker struck Dickson in the face with a whiskey bottle. Tucker then pummeled Dickson with his fists until Dickson fell to the ground. As Dickson lay helpless, Tucker killed him by smashing his skull with repeated blows from a concrete block. Bullock and Tucker together disposed of Dickson's body, and Bullock kept Dickson's car for himself. Bullock was arrested the next day when police spotted him driving the car. Under questioning at the police station, he confessed to his participation in the course of events just described.
Bullock was charged with capital murder under a Mississippi statute that provided that "[t]he killing of a human being without the authority of law by any means or in any manner shall be capital murder . . . [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of . . . robbery . . . or in any attempt to commit such." Miss. Code Ann. 97-3-19(2)(e) (Supp. 1985). Under Mississippi law, a participant in a robbery could be convicted of capital murder under the statute for a murder committed in the course of the robbery by an accomplice notwithstanding the defendant's own lack of intent that any killing take place, for "[i]t is . . . familiar law that when two or more persons act in concert, with a common design, in committing a crime of violence upon others, and a [474 U.S. 376, 380] homicide committed by one of them is incident to the execution of the common design, both are criminally liable for the homicide." Price v. State, 362 So.2d 204, 205 (Miss. 1978). In accordance with this doctrine of accomplice liability, the court instructed the jury at the conclusion of the guilt phase of Bullock's trial as follows:
On appeal to the Mississippi Supreme Court, Bullock argued, inter alia, that the evidence was insufficient as a matter of law to allow submission of the capital murder charge to the jury and that the imposition of the death penalty on him would be so disproportionate to his level of involvement in the crime as to violate the Eighth Amendment. The court rejected both contentions. Bullock v. State, 391 So.2d 601 (1980), cert. denied, 452 U.S. 931 (1981). The court ruled that the verdict of capital murder was sustainable in view of the "overwhelming" evidence "that [Bullock] was present, aiding and assisting in the assault upon, and slaying of, Dickson . . . and in the taking of the T-bird automobile, which was in the lawful possession and use of Dickson." 391 So.2d, at 606. With respect to Bullock's claim that the punishment of death was disproportionate to his degree of culpability, the court noted that "[t]he law is well settled in this state that any person who is present, aiding and abetting another in the commission of a crime, is equally guilty with the principal offender." Because Bullock was "an active participant in the assault and homicide committed upon Mark Dickson," the court concluded that the punishment was not disproportionate to his guilt. Id., at 614.
After exhausting state postconviction remedies, Bullock filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Mississippi. The District Court denied the writ, but the Court of Appeals for the Fifth Circuit reversed on the ground that Bullock's death sentence was invalid under our decision in Enmund, which was handed down during the pendency of the District Court proceedings. Bullock v. Lucas, 743 F.2d 244 (1984). The [474 U.S. 376, 382] court based this conclusion solely upon its reading of the jury instructions given at Bullock's trial. The court reasoned that under the instructions offered at the guilt phase and quoted in pertinent part above, the jury could have found Bullock guilty of capital murder solely on the basis of his participation in a robbery in which he had aided and abetted someone else who had killed: the instructions did not require a finding of any intent to kill on Bullock's part, nor did they require the jury to find that Bullock had actually killed. In addition, the court noted that the instructions offered the jury at the sentencing phase nowhere required the jury to make any further findings regarding Bullock's personal involvement in the killing. Thus, it was quite possible that the jury had sentenced Bullock to death without ever finding that he had killed, attempted to kill, or intended to kill. In the court's view, Enmund prohibited execution of a defendant absent such findings by the trier of fact; accordingly, the court granted a writ of habeas corpus vacating Bullock's death sentence, but permitting the State, "at its option, to either impose a sentence of life imprisonment or, within a reasonable period of time, conduct a new sentencing hearing" at which with the proper findings a death sentence could be reimposed. 743 F.2d, at 248.
Because the Fifth Circuit's holding that Enmund can be satisfied only by findings made at the guilt-innocence or sentencing phase of a trial (see also Reddix v. Thigpen, 728 F.2d 705 (CA5 1984)) conflicts with the interpretation of Enmund adopted by the Eleventh Circuit, see Ross v. Kemp, 756 F.2d 1483 (1985), 1 we granted certiorari, 471 U.S. 1052 (1985). [474 U.S. 376, 383]
The Court of Appeals was correct in concluding that neither the jury's verdict of guilt nor its imposition of the death sentence necessarily reflects a finding that Bullock killed, attempted to kill, or intended to kill. The jury instructions at the guilt phase were, to say the least, confusing, and they do not lend themselves easily to any particular interpretation. A fair-minded juror, however, could have understood them to mean that the jury could find Bullock guilty of capital murder without regard to his intent and solely by virtue of his having aided his accomplice at some point in the assault that led to the killing. 2 This interpretation of the instructions is buttressed, [474 U.S. 376, 384] as Judge Garwood pointed out in his concurring opinion below, by the fact that "the entire case was essentially tried on the theory, in full accordance with the then law of Mississippi, that it was not necessary, either for the felony murder conviction or for the sentence to death, to find that Bullock had either the intent to kill or any personal participation in the killing." 743 F.2d, at 248. Thus, the jury may well have sentenced Bullock to death despite concluding that he had neither killed nor intended to kill; or it may have reached its decision without ever coming to any conclusion whatever on those questions.
But the conclusion that the jury may not have found that the defendant killed, attempted to kill, or intended that a killing take place or that lethal force be employed does not end the inquiry into whether Enmund bars the death sentence; rather, it is only the first step. In focusing only on the jury instructions - and in requiring a new sentencing hearing before a jury before the death penalty might be reimposed - the Fifth Circuit apparently proceeded upon the premise that Enmund can be satisfied only at a sentencing hearing and by a jury's decision (presumably based upon proof beyond reasonable doubt) that the defendant possessed the requisite culpability. Examination of the nature of our ruling in Enmund reveals that this premise is erroneous.
A defendant charged with a serious crime has the right to have a jury determine his guilt or innocence, Duncan v. Louisiana, 391 U.S. 145 (1968), and a jury's verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, Sandstrom v. Montana, 442 U.S. 510 (1979). Findings [474 U.S. 376, 385] made by a judge cannot cure deficiencies in the jury's finding as to the guilt or innocence of a defendant resulting from the court's failure to instruct it to find an element of the crime. See Connecticut v. Johnson, 460 U.S. 73, 95 , and n. 3 (1983) (POWELL, J., dissenting); cf. Beck v. Alabama, 447 U.S. 625, 645 (1980); Presnell v. Georgia, 439 U.S. 14 (1978); id., at 22 (POWELL, J., dissenting). But our ruling in Enmund does not concern the guilt or innocence of the defendant - it establishes no new elements of the crime of murder that must be found by the jury. Rather, as the Fifth Circuit itself has recognized, Enmund "does not affect the state's definition of any substantive offense, even a capital offense." Reddix v. Thigpen, 728 F.2d, at 709; see also Enmund, 458 U.S., at 810 , n. 19 (O'CONNOR, J., dissenting). Enmund holds only that the principles of proportionality embodied in the Eighth Amendment bar imposition of the death penalty upon a class of persons who may nonetheless be guilty of the crime of capital murder as defined by state law: that is, the class of murderers who did not themselves kill, attempt to kill, or intend to kill. 3
The decision whether a particular punishment - even the death penalty - is appropriate in any given case is not one that we have ever required to be made by a jury. Indeed, in Spaziano v. Florida, 468 U.S. 447 (1984), we specifically rejected the argument that the Sixth Amendment or any other constitutional provision provides a defendant with the right [474 U.S. 376, 386] to have a jury consider the appropriateness of a capital sentence. Moreover, the decision whether a sentence is so disproportionate as to violate the Eighth Amendment in any particular case, like other questions bearing on whether a criminal defendant's constitutional rights have been violated, has long been viewed as one that a trial judge or an appellate court is fully competent to make. See, e. g., Solem v. Helm, 463 U.S. 277 (1983); Weems v. United States, 217 U.S. 349 (1910).
The determination whether the death sentence is permissible under Enmund is different in a significant respect both from the general exercise of sentencing discretion and from the type of Eighth Amendment proportionality inquiry undertaken in Solem v. Helm. The latter two determinations typically involve case-by-case, totality-of-the-circumstances decisionmaking. Enmund, by contrast, imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death. Nonetheless, the rule remains a substantive limitation on sentencing, and like other such limits it need not be enforced by the jury.
Indeed, Enmund does not impose any particular form of procedure upon the States. The Eighth Amendment is satisfied so long as the death penalty is not imposed upon a person ineligible under Enmund for such punishment. If a person sentenced to death in fact killed, attempted to kill, or intended to kill, the Eighth Amendment itself is not violated by his or her execution regardless of who makes the determination of the requisite culpability; by the same token, if a person sentenced to death lacks the requisite culpability, the Eighth Amendment violation can be adequately remedied by any court that has the power to find the facts and vacate the sentence. At what precise point in its criminal process a State chooses to make the Enmund determination is of little concern from the standpoint of the Constitution. The State has considerable freedom to structure its capital sentencing [474 U.S. 376, 387] system as it sees fit, for "[a]s the Court has several times made clear, we are unwilling to say that there is any one right way for a State to set up its capital sentencing scheme." Spaziano, supra, at 464; see also Pulley v. Harris, 465 U.S. 37 (1984); Zant v. Stephens, 462 U.S. 862 (1983); Gregg v. Georgia, 428 U.S. 153, 195 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
Accordingly, when a federal habeas court reviews a claim that the death penalty has been imposed on one who has neither killed, attempted to kill, nor intended that a killing take place or lethal force be used, the court's inquiry cannot be limited to an examination of jury instructions. Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant's culpability has been made. 4 If [474 U.S. 376, 388] it has, the finding must be presumed correct by virtue of 28 U.S.C. 2254(d), see Sumner v. Mata, 449 U.S. 539 (1981), and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund is not offended by the death sentence. 5 [474 U.S. 376, 389]
The Court of Appeals thus erred in focusing exclusively on the jury and in ordering a new sentencing hearing without inquiring whether the necessary finding of intent had been made by the trial court or by the state appellate court. The State argues that the Mississippi Supreme Court itself made a finding sufficient to satisfy Enmund in the course of its direct review of Bullock's conviction and sentence. It relies on two separate statements in the court's opinion. First, in responding to the claim of insufficient evidence, the court said that "[t]he evidence is overwhelming that appellant was present, aiding and assisting in the assault upon, and slaying of, Dickson." 391 So.2d, at 606. Second, in determining that the death penalty was not disproportionate to the sentences imposed in other cases, the court stated that "[t]he evidence is overwhelming that appellant was an active participant in the assault and homicide committed upon Mark Dickson." Id., at 614.
We are very doubtful, however, that these assessments of the record were sufficient in themselves to constitute a finding that Bullock killed, attempted to kill, or intended to kill Dickson. The Mississippi Supreme Court obviously was not addressing the specific requirements set forth in Enmund, for that case had not yet been decided. Rather, the court's remarks are better read as stating the court's conclusion that Bullock's participation in the assault and robbery were sufficient to make him liable for the murder and deserving of the death penalty in light of Mississippi law under which one who takes some overt act in aid of an assault that leads to a killing by his accomplice is equally responsible with the accomplice for the killing. Indeed, immediately before its statement with respect to proportionality, the court said that "[t]he law is well settled in this state that any person who is present, [474 U.S. 376, 390] aiding and abetting another in the commission of a crime, is equally guilty with the principal offender." 391 So.2d, at 614. In other words, the Mississippi court's statements represent at most a finding that, as the District Court put it, Bullock "by legal definition actually killed." App. to Pet. for Cert. A30-A31 (emphasis added). Such a finding does not satisfy Enmund, for Enmund holds that the Eighth Amendment does more than require that a death-sentenced defendant be legally responsible for a killing as a matter of state law; it requires that he himself have actually killed, attempted to kill, or intended that lethal force be used.
There remains the question of the appropriate course of action for a federal court faced with a petition for habeas corpus raising an Enmund claim when the state courts have failed to make any finding regarding the Enmund criteria. Two possibilities come immediately to mind. The federal court could itself make the factual determination whether the defendant killed, attempted to kill, or intended to kill, and either grant or deny the writ depending on the outcome of that inquiry. Alternatively, the federal court could take steps to require the State's own judicial system to make the factual findings in the first instance. Such findings would, of course, be presumptively correct as a result of 28 U.S.C. 2254(d) in any subsequent federal habeas proceedings.
Either alternative would, in theory, be adequate to remedy any hypothesized Eighth Amendment violation, for either approach would prevent the execution of any defendant who did not in fact kill, attempt to kill, or intend the use of lethal force. We believe, however, that the second course of action is the sounder one. Two considerations underlie this conclusion. First, to the extent that Enmund recognizes that a defendant has a right not to face the death penalty absent a particular factual predicate, it also implies that the State's judicial process leading to the imposition of the death penalty [474 U.S. 376, 391] must at some point provide for a finding of that factual predicate. Accordingly, Bullock "is entitled to a determination [of the issue] in the state courts in accordance with valid state procedures." Jackson v. Denno, 378 U.S. 368, 393 (1964). Second, the State itself has "a weighty interest in having valid federal constitutional criteria applied in the administration of its criminal law by its own courts." Rogers v. Richmond, 365 U.S. 534, 548 (1961). Considerations of federalism and comity counsel respect for the ability of state courts to carry out their role as the primary protectors of the rights of criminal defendants, see Younger v. Harris, 401 U.S. 37 (1971); these same considerations indicate the appropriateness of allowing the Mississippi courts an opportunity to carry out in the first instance the factual inquiry called for by Enmund. To paraphrase our opinion in Jackson v. Denno, supra, at 393-394, it is Mississippi, therefore, not the federal habeas corpus court, which should first provide Bullock with that which he has not yet had and to which he is constitutionally entitled - a reliable determination as to whether he is subject to the death penalty as one who has killed, attempted to kill, or intended that a killing take place or that lethal force be used. 6 [474 U.S. 376, 392]
The proceeding that the state courts must provide Bullock need not take the form of a new sentencing hearing before a jury. As indicated above, the Eighth Amendment does not require that a jury make the findings required by Enmund. Moreover, the sentence currently in force may stand provided only that the requisite findings are made in an adequate proceeding before some appropriate tribunal - be it an appellate court, a trial judge, or a jury. 7 A new hearing devoted to the identification and weighing of aggravating and mitigating factors is thus, as far as we are concerned, unnecessary.
Accordingly, the District Court should be directed to issue the writ of habeas corpus vacating Bullock's death sentence but leaving to the State of Mississippi the choice of either imposing a sentence of life imprisonment or, within a reasonable time, obtaining a determination from its own courts of the factual question whether Bullock killed, attempted to kill, intended to kill, or intended that lethal force would be used. If it is determined that Bullock possessed the requisite culpability, the death sentence may be reimposed. The judgment of the Court of Appeals is modified to this extent, and the case is remanded to that court for further proceedings consistent with this opinion.
[ Footnote 2 ] An instruction offered after the one quoted supra, at 380, informed the jury that to find Bullock guilty of capital murder, it must find that he "did in fact kill Mark Dickson without malice, without authority of law, and not in necessary self defense." App. 90-91. This instruction does not change our view that the jury's verdict does not necessarily reflect a finding that Bullock killed. The preceding instruction had explicitly informed the jury that it could find Bullock guilty if his accomplice had done the actual killing. The jury could well have concluded, reading the instructions together, that the instruction that Bullock must have "in fact killed" referred only to a requirement that Bullock have committed acts that rendered him legally accountable for the killing under the previous instruction. Under this reading of the instructions, the earlier, more specific instruction would be read as defining the legal meaning of the requirement that Bullock must have "in fact killed."
Even if the second instruction is read as simply irreconcilable with the first, however, we cannot conclude that the jury followed the second instruction. As was the case last Term in Francis v. Franklin, 471 U.S. 307, 322 (1985), "[n]othing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Moreover, to the extent that one can speculate as to which of the [474 U.S. 376, 384] instructions the jurors followed in this case, it seems more likely that they would have chosen the earlier instruction, which, though somewhat harder to follow, appears to be more comprehensive and more specifically tied to the facts presented to the jury.
[ Footnote 3 ] We are unable to understand JUSTICE BLACKMUN'S statement that we have failed to grasp "the distinction . . . between defining an offense and being entitled to execute a defendant." Post, at 403. As stated in the text, we recognize that there is a class of persons whom the State may define as having committed capital murder but whom the State may not permissibly execute. The point we are making, however, is that while the Eighth Amendment prohibits the execution of such defendants, it does not supply a new element of the crime of capital murder that must be found by the jury; hence, such cases as Cole v. Arkansas, 333 U.S. 196 (1948), which hold that the inadequacy of a jury's findings on the issue of guilt or innocence may not be corrected by an appellate court, are inapposite.
[ Footnote 4 ] JUSTICE BLACKMUN'S reliance on Hicks v. Oklahoma, 447 U.S. 343 (1980), and Presnell v. Georgia, 439 U.S. 14 (1978), for the proposition that state appellate courts may not supply essential findings that the jury has omitted is, as applied in this case, misguided. In Hicks, we held only that where state law creates for the defendant a liberty interest in having the jury make particular findings, the Due Process Clause implies that appellate findings do not suffice to protect that entitlement. Unlike the defendant in Hicks, Bullock had no state-law entitlement at the time of his trial to have the jury (or, indeed, anyone at all) make the Enmund findings. Of course, federal law, as later established by Enmund, does entitle Bullock to a determination whether he killed, attempted to kill, intended to kill, or intended that lethal force be used; but, for the reasons explained in the text, the federal-law entitlement, unlike the state-law entitlement involved in Hicks, does not specify who must make the findings.
In Presnell, the defendant was convicted on charges of murder and kidnaping with bodily injury, and was sentenced to death by the jury. The sole aggravating factor supporting the death penalty for murder was that the defendant was also guilty of kidnaping with bodily injury. The Georgia Supreme Court found that the jury had been wrongly instructed on the elements of kidnaping with bodily injury, but affirmed both the conviction for that crime and the use of the crime as an aggravating factor on the ground that the evidence was sufficient to support the jury's findings under a theory on which the jury had not been instructed. We set aside both the [474 U.S. 376, 387] conviction and the death sentence on the authority of Cole v. Arkansas, 333 U.S. 196 (1948), which held that it was constitutional error for a state court to affirm a conviction for one offense on the basis of evidence in the record indicating that the defendant had committed another offense on which the jury had not been instructed. Insofar as it merely applied Cole in setting aside the defendant's conviction for kidnaping with bodily injury, Presnell is unremarkable and has little to do with this case. See n. 3, supra. But in reversing as well the death sentence on the ground that the Georgia Supreme Court could not find an aggravating factor on a theory on which the jury had not been instructed, the Presnell Court appeared to assume that the jury's constitutional role in determining sentence was equivalent to its role in determining guilt or innocence. This assumption, of course, is no longer tenable in light of our holding in Spaziano v. Florida, 468 U.S. 447 (1984).
[ Footnote 5 ] Sumner, of course, establishes that the presumption applies to facts found by appellate as well as trial courts. 449 U.S., at 545 -547. There might be instances, however, in which the presumption would not apply to appellate factfinding regarding the Enmund criteria because appellate factfinding procedures were not "adequate," see 28 U.S.C. 2254(d)(2). For example, the question whether the defendant killed, attempted to kill, or intended to kill might in a given case turn on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record, cf. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985); Wainwright v. Witt, 469 U.S. 412, 429 (1985). The possibility that such cases falling within the 2254(d)(2) exception may exist, however, does not excuse the habeas court of its obligation to examine the entire state process to determine whether the Enmund findings have been made, for it is by no means apparent that appellate factfinding will always be inadequate. For example, in some cases it may be possible to determine the Enmund issue adversely to the defendant even if credibility issues and other ambiguities in the record are resolved in his or her favor. See, e. g., Ross v. Kemp, 756 F.2d 1483, 1488-1490 (CA11 1985). We shall not now attempt to determine what factfinding procedures would be adequate in the particular case before us, for, as we shall see, the state courts have not yet purported [474 U.S. 376, 289] to engage in the requisite factfinding, and we decline to decide the hypothetical question of the adequacy of that which has not yet occurred.
[ Footnote 6 ] There may be some cases in which the jury instructions would theoretically have permitted the jury to find the defendant guilty of a capital offense and sentence him to death without finding the Enmund factors, but in which the theory on which the case was tried and the evidence received leave no doubt that the jury's verdict rested on a finding that the defendant killed or intended to kill. For example, where a defendant conceded that he committed the killing and defended against the charge of murder only by claiming self-defense, a jury verdict of guilty would necessarily satisfy Enmund even if, for some reason, the trial court's instructions did not explicitly require a finding that the defendant killed, attempted to kill, or intended to kill. In such a case, a federal habeas court would be justified in treating the state courts' failure to make explicit Enmund findings as harmless beyond a reasonable doubt; the court would therefore simply deny the writ without requiring further proceedings in the state courts. Cf. Ross v. Kemp, 756 F.2d, at 1499-1500 (Clark, J., concurring in part and dissenting in part).
[ Footnote 7 ] Mississippi has adopted a post-Enmund capital sentencing statute, under which the task of determining whether the defendant killed, attempted to kill, intended to kill, or intended that lethal force be used is delegated to the jury, Miss. Code Ann. 99-19-101(7) (Supp. 1985). Whether this provision has any application where, as in this case, trial occurred prior to the passage of the statute, is a matter of state law that we do not attempt to resolve.
CHIEF JUSTICE BURGER, concurring.
Although I see no need for remanding for further findings in the State's courts, I join the Court's opinion. It is true that the Mississippi Supreme Court did not have Enmund's [474 U.S. 376, 393] findings explicitly in mind when it reviewed the sentence of death imposed on respondent Bullock, because the Mississippi courts had completed their review before Enmund was decided. Nevertheless, the Mississippi Supreme Court's opinion makes it clear that Enmund's concerns have been fully satisfied in this case.
In rejecting respondent's claim that there was insufficient evidence to support his capital murder conviction because he "was an unwilling participant in the robbery-homicide," that court explicitly found "[t]he evidence is overwhelming that appellant was present, aiding and assisting in the assault upon, and slaying of, Dickson." Bullock v. State, 391 So.2d 601, 606 (1980) (emphasis added), cert. denied, 452 U.S. 931 (1981). That court further rejected a claim that the death penalty was disproportionate to sentences imposed in similar cases, after again finding that "[t]he evidence is overwhelming that appellant was an active participant in the assault and homicide committed upon Mark Dickson." 391 So.2d, at 614.
Surely these statements reflect a conclusion of the state court that respondent actively participated in the actual killing, which is far more than Enmund requires. In these circumstances, I see no need to expend finite judicial resources by remanding and calling for the Mississippi Supreme Court to tell us what it has already made clear, i. e., that respondent's culpability more than satisfies any proportionality concerns dictated by Enmund.
JUSTICE BRENNAN, dissenting.
Although I join JUSTICE BLACKMUN'S and JUSTICE STEVENS' dissents, 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, 227 (1976) (BRENNAN, J., dissenting). Accordingly, I would vacate the death sentence and remand the case so that the state court can determine what sentence - other than death - may be appropriate. [474 U.S. 376, 394]
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
Last Term, in Caldwell v. Mississippi, 472 U.S. 320 (1985) (a case not even cited by the Court in its controlling opinion, ante, p. 376), we recognized institutional limits on an appellate court's ability to determine whether a defendant should be sentenced to death:
Bullock testified both at his trial and at his sentencing proceeding. He explicitly denied that he killed, attempted to kill, or intended to kill Dickson. See, e. g., Tr. 956, 983, 996, 1190. The jury's verdict and sentence are entirely consistent under Mississippi law with Bullock's testimony. As the Court recognizes, that law and the trial court's instructions permitted the jury to convict him and to sentence him to death without finding any particular degree of personal participation in the killing. Ante, at 383-384.
The Court also recognizes that the Mississippi Supreme Court failed to make the required Enmund findings. That court affirmed Bullock's conviction and death sentence based on its view of Bullock's culpability under Mississippi's law of aiding and abetting, which establishes a threshold far below Enmund's constitutional minimum. Ante, at 389-390. The Mississippi Supreme Court explicitly based its account of the crime on Bullock's written confession, see Bullock v. State, 391 So.2d 601, 605, cert. denied, 452 U.S. 931 (1981), in which Bullock stated only that Tucker killed Dickson, and that he, Bullock, had no intention of robbing Dickson. Tr. 387-390. That confession provides no evidence that Bullock killed, attempted to kill, or intended to kill Dickson. Thus, the Court properly concludes that none of the required Enmund findings has been made.
The central message of Enmund is that the death penalty cannot constitutionally be imposed without an intensely individual [474 U.S. 376, 396] appraisal of the "personal responsibility and moral guilt" of the defendant. 458 U.S., at 801 .
Put simply, Enmund establishes a constitutionally required factual predicate for the valid imposition of the death penalty. Cf. ante, at 390. Like the statutory aggravating circumstances discussed in Zant v. Stephens, 462 U.S. 862 (1983), the Enmund findings "circumscribe the class of persons eligible for the death penalty." 462 U.S., at 878 . Just as, absent the finding of a statutory aggravating circumstance, "`[a] case may not pass . . . into that area in which the death penalty is authorized'" under Georgia law, id., at 872, quoting Zant v. Stephens, 250 Ga. 97, 100, 297 S. E. 2d 1, 4 (1982), so too, absent a finding of one of the Enmund factors, a case may not pass into that area in which the death penalty is authorized by the Eighth Amendment.
The Court agrees that it would be wrong for Mississippi to execute Bullock without first determining that he killed, attempted to kill, or intended to kill Dickson. See, e. g., ante, at 378, 385, 386. But if that is so, then it was also wrong for the Mississippi jury to discharge "the truly awesome responsibility of decreeing death for a fellow human," McGautha v. California, 402 U.S. 183, 208 (1971), without first considering the fundamental issue of his personal culpability. By condemning Bullock to die, the jury announced [474 U.S. 376, 397] that he was not fit to live. This expression of the community's ultimate outrage, unaccompanied as it was by any finding that Bullock possessed the degree of culpability required by Enmund, involved the kind of deprivation of human dignity which the Eighth Amendment forbids. Cf., e. g., Trop v. Dulles, 356 U.S. 86, 100 -102 (1958) (plurality opinion); Weems v. United States, 217 U.S. 349, 366 (1910).
The question of how to cure this constitutional violation remains. The Court holds that an adequate remedy for the absence of Enmund findings can be supplied by "any court that has the power to find the facts and vacate the sentence." Ante, at 386. I believe that, in this case, only a new sentencing proceeding before a jury can guarantee the reliability which the Constitution demands. But the Court's decision today goes beyond a simple determination of how to cure an error that has already occurred. It tells the States, in effect, that it is no error for a jury or a trial judge to say that a defendant should die without first considering his personal responsibility and moral guilt, as Enmund requires. By turning the jury or trial court's determination into what can be viewed only as a preliminary stage in the capital-sentencing process, the Court's holding poses the threat of diffusing the sentencer's sense of responsibility in the manner condemned in Caldwell. The Court thus ignores both the proper institutional roles of trial and appellate courts and the pragmatic and constitutional concerns with reliability that underlie those roles. In short, the Court's holding rests on an improper equation of the wholly dissimilar functions of finding facts and of vacating a sentence because no facts have been found. Enmund established a clear constitutional imperative that a death sentence not be imposed by a sentencer who fails to make one of the Enmund findings. The Court confuses this imperative with the guarantee it purports to [474 U.S. 376, 398] make today that a death sentence will not be carried out before someone makes an Enmund finding.
That this ignores a distinction with a constitutional difference is made clear by the Court's decisions in Cole v. Arkansas, 333 U.S. 196 (1948), and Presnell v. Georgia, 439 U.S. 14 (1978). In Cole, the Court reversed a state appellate decision that had affirmed the defendants' sentences by finding they had violated a different statutory provision from the one with which they had been charged. It recognized that the Due Process Clause requires that defendants "have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court." 333 U.S., at 202 . In Presnell, the Court acknowledged that the "fundamental principles of procedural fairness" announced in Cole "apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial." 439 U.S., at 16 . It thus reversed a death sentence which the Georgia Supreme Court had affirmed on the basis of its own finding that evidence in the record would support a statutory aggravating circumstance that had not been found by the jury. Notably, in neither Cole nor Presnell did this Court consider whether the State Supreme Courts' evidentiary findings were correct; whether their findings were right was entirely irrelevant to the question whether the Due Process Clause gave them the power to make such findings. The Court's decision today gives a state appellate court carte blanche to engage in factfinding concerning issues that no one at trial thought to be relevant. Here, as the Court recognizes, "`the entire case was essentially tried on the theory . . . that it was not necessary, either for the felony murder conviction or for the sentence to death, to find that Bullock had either the intent to kill or any personal participation in the killing.'" Ante, at 384, quoting Bullock v. Lucas, 743 F.2d 244, 248 [474 U.S. 376, 399] (CA5 1984) (concurring opinion); see also, e. g., Tr. 1155. The critical issue was never determined in the trial court. 1
Far more than "[c]onsiderations of federalism and comity," ante, at 391, should prevent this Court, and other federal habeas courts, from examining trial transcripts and making Enmund findings themselves. Considerations of reliability provide a compelling reason for requiring state trial courts to address this issue in the first instance. And, with respect to the question of reliability, the Mississippi Supreme Court is in no better position than is this Court to determine Bullock's credibility.
The Court's conclusion that we should allow the States to adopt capital punishment schemes that depend on appellate factfinding because "it is by no means apparent that appellate factfinding will always be inadequate," ante, at 388, n. 5 (emphasis added), turns on its head the heightened concern with reliability that has informed our review of the death penalty over the past decade. 2 See, e. g., Caldwell v. Mississippi, [474 U.S. 376, 400] 472 U.S., at 328 -329; California v. Ramos, 463 U.S. 992, 998 -999 (1983); Beck v. Alabama, 447 U.S. 625, 637 -638 (1980); Lockett v. Ohio, 438 U.S., at 604 (plurality opinion); Gardner v. Florida, 430 U.S. 349, 358 -359 (1977) (opinion announcing judgment); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). I believe that the Eighth Amendment not only requires that the sentencer make Enmund findings before it decides that a defendant must die, but also requires that the Enmund factfinder be present at the trial, to see and hear the witnesses.
The Court long has recognized the special competence of trial courts which formed the basis for Caldwell's discussion of the "institutional limits on what an appellate court can do." 472 U.S., at 330 . In a variety of contexts, the Court has relied upon the New York Court of Appeals' explanation [474 U.S. 376, 401] in Boyd v. Boyd, 252 N. Y. 422, 429, 169 N. E. 632, 634 (1930):
Our precedents are not to the contrary. Although we held in Spaziano v. Florida, 468 U.S. 447 (1984), that neither the Sixth nor the Eighth Amendment required jury sentencing in capital cases, we made that determination in the face of a Florida statute which "plac[ed] responsibility on the trial judge to impose the sentence in a capital case." Id., at 465 (emphasis added). In the relevant respects, a trial judge in a capital case is more like a jury than he is like an appellate court. Like the jury, he has seen the witnesses, and is well positioned to make those "determinations of demeanor and credibility that are peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S., at 428 . 3 [474 U.S. 376, 402]
The Court's discussion of "the nature of our ruling in Enmund," ante, at 384, reveals a reliance on three premises: first, Enmund "does not impose any particular form of procedure upon the States," ante, at 386 (emphasis omitted); second, Enmund "`does not affect the state's definition of any substantive offense, even a capital offense,'" ante, at 385, quoting Reddix v. Thigpen, 728 F.2d 705, 709 (CA5), cert. denied, 469 U.S. 990 (1984); and, third, Enmund is a "substantive limitation on sentencing" amenable to traditional proportionality review, ante, at 386. None of these propositions justifies the Court's holding today.
That we have refused "`to say that there is any one right way for a State to set up its capital sentencing scheme,'" ante, at 387, quoting Spaziano, 468 U.S., at 464 , does not mean that there are no wrong ways. As has been shown, a capital-sentencing scheme that permits an appellate court to [474 U.S. 376, 403] make Enmund findings sacrifices reliability needlessly to no discernible end, and cannot satisfy the Eighth Amendment.
That Enmund does not restrict the State's power to define offenses is equally beside the point. A State's decision to define a crime as "capital" cannot "automatically . . . dictate what should be the proper penalty," Lockett v. Ohio, 438 U.S., at 602 (plurality opinion), and does not empower the State to execute a defendant who neither killed, nor attempted to kill, nor intended to kill. In Coker v. Georgia, 433 U.S. 584 (1977), for example, Georgia's definition of rape as a capital offense did not dispose of the Eighth Amendment issue. Both JUSTICE O'CONNOR'S dissent in Enmund and the Court of Appeals' opinion in Reddix - the authorities upon which the Court relies - recognize the distinction, which seems to elude the Court, between defining an offense and being entitled to execute a defendant. See Enmund, 458 U.S., at 810 , and n. 19 (O'CONNOR, J., dissenting) (Enmund did not contest his conviction for felony murder; his "sole challenge is to the penalty imposed"); Reddix, 728 F.2d, at 709 (the State may convict a defendant of a capital crime without requiring an instruction on intent; "Enmund, however, will `bar a death penalty'" absent such an instruction, quoting Skillern v. Estelle, 720 F.2d 839, 847 (CA5 1983) (emphasis in Skillern), cert. denied, 469 U.S. 873 (1984)). A State remains free to define felony murder as it wishes; but it can execute a felony murderer who has been sentenced to death only by a sentencer who has determined that he possesses the degree of culpability discussed in Enmund.
The Court also would justify its holding by reference to the discussion of Eighth Amendment principles of proportionality in Solem v. Helm, 463 U.S. 277 (1983). The Court's discussion mistakenly amalgamates review and essentially de novo factfinding. Certainly, the Court is correct that "the decision whether a sentence is so disproportionate as to violate the Eighth Amendment in any particular case . . . has long been viewed as one that a trial judge or an appellate [474 U.S. 376, 404] court is fully competent to make." Ante, at 386. But the Eighth Amendment demands more than that the reviewing court decide whether the sentencer has properly weighed the seriousness of the offense and the severity of the punishment. The Eighth Amendment binds the sentencer as well. The joint opinions in Gregg v. Georgia, 428 U.S. 153 (1976), Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), all explicitly rested their approval of the capital-sentencing schemes before them on the combination of channeled factfinding by the sentencer and appellate review. In Gregg, an "important additional safeguard" was provided by the Georgia Supreme Court's review of "whether the evidence supports the jury's finding of a statutory aggravating circumstance," as well as by the exercise of comparative proportionality review. 428 U.S., at 198 . In Proffitt, "meaningful appellate review" was provided because the appellate court had before it written findings justifying the imposition of the death penalty. 428 U.S., at 251 . In Jurek, the jury had to make specific findings, which were then subject to appellate review. 428 U.S., at 269 , 276. To permit States to collapse factfinding and review into one proceeding is to abandon one of the most critical protections afforded by every capital-sentencing scheme to which the Court previously has given its approval.
Enmund "insist[ed] on `individualized consideration as a constitutional requirement in imposing the death sentence,'" 458 U.S., at 798 (emphasis added), quoting Lockett v. Ohio, 438 U.S., at 605 , and not merely in reviewing the sentence imposed. The sentencer is not relieved of the duty to consider whether the severity of the defendant's crime justifies the death penalty by the availability of proportionality review. Enmund places a substantive limitation on a process that precedes proportionality review.
This case demonstrates graphically why a trial-court sentencer must make the Enmund determination. Under [474 U.S. 376, 405] Mississippi law, "the jury is the sole player in the judicial process who may vote to send an accused to die." Wiley v. State, 449 So.2d 756, 762 (Miss. 1984); see also Williams v. State, 445 So.2d 798, 811 (Miss. 1984), cert. denied, 469 U.S. 1117 (1985). To the extent that Enmund places a substantive limitation on sentencing, then, Bullock is entitled to insist that the sentencing jury heed its limits. Caldwell suggests that to postpone Bullock's right to an Enmund determination is effectively to deprive him of that right because, in Mississippi, capital review is "conducted with a presumption of . . . correctness." Wiley, 449 So.2d, at 762; see Caldwell, 472 U.S., at 331 ; see also Miss. Code Ann. 99-19-105 (Supp. 1985). The Mississippi Supreme Court examines the record solely to see whether a reasonable jury could have concluded that Bullock killed, attempted to kill, or intended to kill, rather than whether Bullock in fact did any of those things. Saying that Bullock might have acted with the requisite culpability does not satisfy the constitutional requirement that Bullock actually have acted with that degree of blameworthiness.
Hicks v. Oklahoma, 447 U.S. 343 (1980), makes clear that the former inquiry is simply insufficient to satisfy due process. In Hicks, the Court vacated a sentence imposed, as Oklahoma law required, by a jury which had relied upon an invalid statutory provision despite the fact that the Court of Criminal Appeals had affirmed the sentence as within the permissible range. Hicks held that when a State vests the sentencing power in the trial jury, a defendant has "a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion." Id., at 346. A state appeals court cannot reform a defendant's sentence, thus denying him the right actually to be sentenced by a jury "simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that [affirmed by the appellate court]. Such an arbitrary disregard of the petitioner's right [474 U.S. 376, 406] to liberty is a denial of due process of law." Ibid. (emphasis in original).
As for reliability, the Court buries in a footnote an acknowledgment that "the question whether the defendant killed, attempted to kill, or intended to kill might in a given case turn on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record, cf. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985); Wainwright v. Witt, 469 U.S. 412, 429 (1985)." Ante, at 388, n. 5. The Court fails to notice that this is that "given case": Bullock took the stand, at both the guilt and penalty phases of his trial, to deny having killed, having attempted to kill, or having intended to kill Dickson. See Tr. 956, 983, 996, 1190. I have read the trial transcript. Although I think the evidence is consistent with Bullock's claim that the killing of Mark Dickson resulted from a drunken brawl between Tucker and Dickson that tragically got out of hand, cf. Bullock v. Lucas, 743 F.2d, at 248 (concurring opinion), I must concede that a jury or judge who saw Bullock testify might well think he lied. I fail, however, to see how an appellate court confidently could conclude, without any indication from anyone who actually saw him testify, that Bullock's account was so unworthy of belief that he was properly condemned to death.
Moreover, nothing in the Court's opinion suggests that this case is at all unusual in this respect. 4 To permit the States [474 U.S. 376, 407] to construct capital-sentencing schemes that by their very nature will be inadequate in cases such as this strikes me as an abdication of our responsibility under the Eighth Amendment to ensure that the system of capital punishment, as well as the imposition of the penalty on individual defendants, meets the Constitution's requirements. 5
Here, Bullock had a legitimate expectation that the sentencing jury would consider his personal responsibility and moral guilt before deciding to send him to die. Under Enmund, the only way to guarantee that such consideration has been given is to require the sentencer to determine that the defendant either killed, or attempted to kill, or intended to kill. That a jury might or could have made such a determination hardly provides a guarantee that this jury did. Because I believe every defendant is entitled to that guarantee, I would vacate the death sentence and remand the case with instructions to provide Bullock with a sentencing hearing before a jury. Inasmuch as the majority refuses to take this essential step, I dissent.
[ Footnote 1 ] The Court's attempt to distinguish Presnell on the ground that Spaziano v. Florida, 468 U.S. 447 (1984), rejected the assumption that juries have equivalent constitutional roles in determining guilt or innocence and in determining capital sentences, see ante, at 387-388, n. 4, is misplaced. Cole and Presnell hold that the Due Process Clause requires that appellate courts review convictions and sentences "as [they] were determined in the trial court." Cole, 333 U.S., at 202 (emphasis added). Spaziano simply held that the Constitution permits trial judges, rather than trial juries, to make sentencing determinations. See infra, at 401, and n. 3.
[ Footnote 2 ] The Court's reliance on Sumner v. Mata, 449 U.S. 539 (1981), is misplaced. There, the Court held that the presumption of correctness accorded state-court findings of fact under 28 U.S.C. 2254(d) extends to appellate findings as well as trial-court findings. 449 U.S., at 545 -547. But the presumption of correctness is defeated by a showing that "the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing." 28 U.S.C. 2254(d)(2). The question whether state procedures are "adequate" involves two distinct inquiries. The first is whether the procedure employed in a particular case in fact afforded the defendant a full and fair hearing. The second is whether the procedure itself comports with due process. Bullock raises both those [474 U.S. 376, 400] questions: he claims that in his case the Mississippi Supreme Court failed to use adequate procedures for making Enmund findings, and that a procedure which places the responsibility for making Enmund findings on the Mississippi Supreme Court is inherently inadequate. Sumner v. Mata does nothing to answer the latter question, because it assumes that the appellate court is constitutionally a proper factfinder. In Mata, this Court explicitly acknowledged that the trial-court record on which the California Court of Appeal based its findings concerning the suggestiveness of a photographic lineup was "completely adequate" for that purpose. 449 U.S., at 543 . Sumner v. Mata therefore says nothing about how state-court findings are to be treated when the record on which they are based, by its very nature, is inadequate to permit factfinding in the first instance.
Moreover, the opinion in Mata does not concern itself with explaining when an appellate court is constitutionally incompetent to find facts. That an appellate court is not always a proper factfinder is clear beyond doubt. Surely, the Court would not read Sumner v. Mata to foreclose habeas relief in cases where an essential element of the offense was not found at trial. Cf. ante, at 384. In 2254(d)(2)'s terms, a "factfinding procedure" that vested in appellate courts the responsibility for determining an element of the offense would not be constitutionally "adequate." Similarly, I believe, the Enmund findings concern the kind of facts that can be found only by someone who has actually seen and heard the witnesses when they testified.
[ Footnote 3 ] Every State with a death penalty statute has implicitly recognized this essential point, even though not all of them have explicitly held that Enmund findings must be made by the trial court. The seven States whose schemes involve judge sentencing all vest the power to impose sentence in a judge who actually has seen the presentation of evidence and confronted the defendant. See Ala. Code 13A-5-46 (1982); Ariz. Rev. Stat. Ann. 13-703 (Supp. 1985); Fla. Stat. 921.141 (1985); Idaho Code 19-2515 (Supp. 1985); Ind. Code 35-50-2-9 (Supp. 1985); Mont. Code Ann. 46-18-301 (1985); Neb. Rev. Stat. 29-2520 and 29-2521 [474 U.S. 376, 402] (1979). No State has placed the sentencing power, as opposed to the power to review sentences, in an appellate court. Every State provides for an evidentiary sentencing hearing, to be conducted in front of the sentencing authority, be it judge or jury.
Enmund identified 17 States in which the then-existing death penalty statutes potentially countenanced the execution of defendants who neither killed, attempted to kill, or intended to kill: Arizona, California, Connecticut, Florida, Georgia, Idaho, Indiana, Mississippi, Montana, Nebraska, Nevada, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Wyoming. See 458 U.S., at 789 , n. 5; id., at 792, nn. 12 and 13. Since Enmund, seven of those States have addressed the issue and apparently have concluded that the sentencer must make Enmund findings before imposing sentence. See State v. McDaniel, 136 Ariz. 188, 199, 665 P.2d 70, 81 (1983); People v. Garcia, 36 Cal. 3d 539, 556-557, 684 P.2d 826, 835-837 (1984), cert. denied, 469 U.S. 1229 (1985); Allen v. State, 253 Ga. 390, 395, n. 3, 321 S. E. 2d 710, 715, n. 3 (1984), cert. denied, 470 U.S. 1059 (1985); Miss. Code Ann. 99-19-101(7) (Supp. 1985); State v. Stokes, 308 N.C. 634, 651-652, 304 S. E. 2d 184, 195 (1983); Hatch v. Oklahoma, 662 P.2d 1377, 1382-1383 (Okla. Crim. App. 1983); State v. Peterson, 287 S. C. 244, 248, 335 S. E. 2d 800, 802 (1985). Five others - Connecticut, Montana, Nebraska, Nevada, and South Dakota - have not yet considered cases raising an Enmund claim.
[ Footnote 4 ] I assume that many capital defendants who neither killed, attempted to kill, nor intended to kill take the stand, at least at the sentencing hearing, since they know that if they convince the sentencer of their diminished level of personal culpability their lives will be spared. The considerations of federalism and comity identified by the Court are hardly best served by allowing the State to construct capital-sentencing schemes that require federal habeas courts to examine in every case the nature of the evidence presented in order to determine whether the State's regular capital-sentencing procedure is satisfactory. It is far better, it seems to me, to establish a bright-line rule requiring the findings to be made by the trial court, especially since the Court has failed to identify a single reason why a [474 U.S. 376, 407] State legitimately could prefer to vest the factfinding function in an appellate court.
[ Footnote 5 ] The Court's refusal to "determine what factfinding procedures would be adequate in the particular case before us," ante, at 388, n. 5, strikes me as somewhat perverse. Although most of the cases we hear concern broad legal questions the resolution of which will affect many persons other than the actual parties, this should not blind us to the fact that our authority to reach those questions rests on the presence of a concrete case. The question as to what procedures would be adequate in this case is not, as the Court suggests, "hypothetical." Ibid. The believability of Bullock's testimony is the critical factor, and the credibility judgment can be made, in the first instance, only by someone who has seen him testify. If anything is "hypothetical," it is the Court's assumption that an appellate factfinding procedure that is clearly inadequate for the actual case before it will be adequate in hypothetical cases not before it.
JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, dissenting.
The justification for executing the defendant depends on the degree of his culpability - "what [his] intentions, expectations, [474 U.S. 376, 408] and actions were. American criminal law has long considered a defendant's intention - and therefore his moral guilt - to be critical to `the degree of [his] criminal culpability,' Mullaney v. Wilbur, 421 U.S. 684, 698 (1975), and the Court has found criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing." Enmund v. Florida, 458 U.S. 782, 800 (1982). The Eighth Amendment therefore precludes the imposition of a death sentence upon a defendant whose "crime did not reflect `a consciousness materially more "depraved" than that of any person guilty of murder.'" Id., at 800-801.
Because the finding of moral culpability required by Enmund is but one part of a judgment that "is ultimately understood only as an expression of the community's outrage - its sense that an individual has lost his moral entitlement to live," * I believe that the decision whether a death sentence is the only adequate response to the defendant's moral culpability must be made by a single decisionmaker, be it the trial court or the jury. The State of Mississippi has wisely decided that the jury is the decisionmaker that is best able to "express the conscience of the community on the ultimate question of life or death." Witherspoon v. Illinois, 391 U.S. 510, 519 (1968). As the Court points out, ante, at 383-384, a Mississippi jury has not found that respondent Bullock killed, attempted to kill, or intended that a killing take place or that lethal force be used. It follows, in my view, that a Mississippi jury has not determined that a death sentence is the only response that will satisfy the outrage of the community, and that a new sentencing hearing must be conducted if respondent is ultimately to be sentenced to die. In accordance with this reasoning, I would affirm the judgment of the Court of Appeals.
[ Footnote * ] Spaziano v. Florida, 468 U.S. 447, 467 (1984) (STEVENS, J., concurring in part and dissenting in part). [474 U.S. 376, 409]


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Myanmar's official name is The Republic of the Union of Myanmar, named such in 1989. We use "Myanmar" as much as possible, balancing it with the reality that much of the world still surfs the net for "Burma" and we want everyone to find us easily so they can discover Myanmar. In addition, when we talk about the years the land was called Burma, we call it by its historical name. In this way, we can convey the rich past of the country now known as Myanmar and better reach potential visitors all over the world.
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Listen Up! Rhino Horn is no Substitute for Viagra! 14 Aug 2013 Weird & Wonderful | 0 comments
Rhinos are one of the most critically endangered creatures on the planet. Of the five remaining rhino species, the Sumatran rhino is one of the most endangered. The situation is so dire that perhaps fewer than 200 are left in the wild. The worldwide rhino population is believed to number less than 28,000, which includes both wild and captive animals.
90% Loss in 50 Years
Captive breeding programs have been largely unsuccessful as rhinos are private creatures and are not inclined to get frisky while zookeepers spy on them, thus contributing to the population decline. Today the rhino population is 10% of what it was half a century ago, and it is entirely possible that no rhinos are left in Myanmar at all.
The Sumatran rhino is not the long-horned type that most people remember from picture books and childhood field trips to the zoo. It is a two-horned variety whose longest horn rarely exceeds 10 inches in length. Behind the main horn, it has a smaller one, which would be better described as a bony lump. The horns are composed of keratin, the same substance found in human hair and fingernails.
The Sumatran rhino also has the distinction of being the only species of rhino that grows hair on its body. During hot weather, the rhino wallows in the mud, which clings to its hair to create a low-tech, non-greasy version of sunscreen.
The greatest threats to all rhino populations are habitat loss and poaching. Hunting of rhinos for their horns continues despite bans on buying and selling them mainly because poachers are unable to resist the promise of a big payday. On the black market, a poacher can expect to rake in $34,000 or more for just over two pounds of rhino horn. The majority of rhinos are slaughtered just so people can use their horns in concoctions they think will enhance their virility.
Rhino horns have been used for many purposes throughout history, from providing material for the carved hilts of Yemeni ceremonial daggers known as jambiya, to headache relief when ingested in powdered form.
False Libido Claim
One of the most popular uses, however, is as a libido booster in traditional Chinese medicine. The idea of making mojo-maximizers from powdered rhino horn has been around a lot longer than any of the popular "male enhancement" products available today. Unfortunately its supposed uplifting properties are only based on its appearance and not on any proven medicinal value. The worst part is that the rhino will not grow a new horn.
Today, there are both local and international organizations dedicated to rhino preservation through education and the active protection of these amazing animals. The threat to rhinos is so severe that some communities have gone so far as tranquilizing rhinos to remove their horns with a chainsaw, rendering then worthless to poachers.
In some areas of rhino territory, RPUs (Rhino Protection Units) have been formed to actively monitor rhino populations and teach any poachers they get their hands on a well-earned lesson. And make no mistake, these well-trained troops travel locked and loaded.
The best way to help save rhinos from extinction is to donate to organizations that train local people to enforce laws protecting rhinos.
International Rhino Foundation: http://rhinos.org/
Save the Rhino: http://www.savetherhino.org/
Rhino Horn is Not Medicine: http://www.rhinoconservation.org/
Read more about the weird and the wonderful of Myanmar (Burma).


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Original URL: http://www.theregister.co.uk/2007/05/01/orange_bank/
Orange becomes more like bank: launches overdraft facility
Pay £1 to get £2.50 into debt
Posted in Networks, 1st May 2007 07:02 GMT
Mobile phone customers signing up to Orange's new Speakeasy pre-pay tariff can get themselves £2.50 worth of overdraft facility to keep them connected when their credit runs out, though they'll have to pay £1 to sign up for it.
The overdraft facility, branded "Reserve Tank", is part of the new tariff which also includes three "Magic Numbers" that are only charged at 15p an hour, and a flat 15p a minute rate for calling anyone else.
Pre-pay systems already put the mobile phone operators in danger of becoming banks. It's OK in principle for a company to take pre-payment for one product - phone calls or books, for example. But mobile phone credit is used for all sorts of things including buying ringtones and games, downloading music, and entering dodgy TV quizzes.
This makes the mobile phone companies look suspiciously like banks - they store your money for you and allow convenient access to buy things. The only thing they don't do is pay interest.
If the mobile networks became banks they'd have to sign up to the banking code of practice and open their accounts to a lot more scrutiny. The UK's financial services regulator has been very cautious about imposing more regulation on such a dynamic industry. But if companies are offering overdrafts, this will draw attention to the fact that they are operating as banks in all but name.
Perhaps if they were banks they could start paying interest. ®


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Article: |
Location, Location, Location: Tips for Storing Web Site Files | |
Subject: | Name-based virtualhosting made easy | |
Date: | 2003-05-16 18:48:19 | |
From: | opatrickly | |
I have written a script that I use to add name-based virtualhosts to my Mac OS X machine. It uses NetInfoManager to add the name into the system, and Apache's NameVirtualHost directive. All the virtualhosts the scripts add are strictly local, so you don't have to worry about others snooping about your work. If you care to try it out, you can read more about it here: http://patrickg.com/virtualhost
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Name-based virtualhosting made easy
2003-11-15 13:18:54 anonymous2 [View]
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