At issue in this case is the validity of the death sentence imposed by an Arizona trial court after a jury found petitioner Jeffrey Walton guilty of committing first-degree murder.

The Arizona statutes provide that a person commits first-degree murder if "[i]ntending or knowing that his conduct will cause death, such person causes the death of another with premeditation" or if in the course of committing certain specified offenses and without any mental state other than what is required for the commission of such offenses, he causes the death of any person. Ariz.Rev.Stat.Ann. § 13-1105 (1989). After a person has been found guilty of first-degree murder, the sentence for such crime is determined in accordance with the provisions of § 13-703(B). It is there directed that a "separate sentencing hearing . . . shall be conducted before the court alone" to determine whether the sentence shall be death or life imprisonment. In the course of such hearing, the judge is instructed to determine the existence or nonexistence of any of the aggravating or mitigating circumstances defined in subsections (F) and (G) of § 13-703. Subsection (F) defines 10 aggravating circumstances that may be considered. One of them is whether the offense was committed with the expectation of receiving anything of pecuniary value. § 13-703(F)(5). Another is whether the defendant committed the offense in an especially heinous, cruel, or depraved manner. § 13-703(F)(6). Subsection (G) defines mitigating circumstances as any factors "which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character, propensities or record and any of the circumstances of the offense, including but not limited to" five specified factors.1 The burden of establishing the existence of any of the aggravating circumstances is on the prosecution, while the burden of establishing mitigating circumstances is on the defendant. § 13-703(C). The court is directed to return a special verdict setting forth its findings as to aggravating and mitigating circumstances and then "shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in subsection (F) of this section and that there are no mitigating circumstances sufficiently substantial to call for leniency." § 13-703(E).

* Petitioner Walton and his two codefendants, Robert Hoover and Sharold Ramsey, went to a bar in Tucson, Arizona, on the night of March 2, 1986, intending to find and rob someone at random, steal his car, tie him up, and leave him in the desert while they fled the State in the car. In the bar's parking lot, the trio encountered Thomas Powell, a young, off-duty Marine. The three robbed Powell at gunpoint and forced him into his car which they then drove out into the desert. While driving out of Tucson, the three asked Powell questions about where he lived and whether he had any more money. When the car stopped, Ramsey told a frightened Powell that he would not be hurt. Walton and Hoover then forced Powell out of the car and had him lie face down on the ground near the car while they debated what to do with him. Eventually, Walton instructed Hoover and Ramsey to sit in the car and turn the radio up loud. Walton then took a .22 caliber derringer and marched Powell off into the desert. After walking a short distance, Walton forced Powell to lie down on the ground, placed his foot on Powell's neck, and shot Powell once in the head. Walton later told Hoover and Ramsey that he had shot Powell and that he had "never seen a man pee in his pants before." Powell's body was found approximately a week later, after Walton was arrested and led police to the murder site. A medical examiner determined that Powell had been blinded and rendered unconscious by the shot but was not immediately killed. Instead, Powell regained consciousness, apparently floundered about in the desert, and ultimately died from dehydration, starvation, and pneumonia approximately a day before his body was found.

A jury convicted Walton of first-degree murder after being given instructions on both premeditated and felony murder. See Ariz.Rev.Stat.Ann. § 13-1105 (1989). The trial judge then conducted the separate sentencing hearing required by § 13-703(B). The State argued that two aggravating circumstances were present: (1) The murder was committed "in an especially heinous, cruel or depraved manner," § 13-703(F)(6), and (2) the murder was committed for pecuniary gain. § 13-703(F)(5). In mitigation Walton presented testimony from a psychiatrist who opined that Walton had a long history of substance abuse which impaired his judgment, see § 13-703(G)(1), and that Walton may have been abused sexually as a child. Walton's counsel also argued Walton's age, 20 at the time of sentencing, as a mitigating circumstance. See § 13-703(G)(5). At the conclusion of the hearing, the trial court found "beyond any doubt" that Walton was the one who shot Powell. The court also found that the two aggravating circumstances pressed by the State were present. The court stated that it had considered Walton's age and his capacity to appreciate the wrongfulness of his conduct, as well as all of the mitigating factors urged by defendant's counsel. The court then concluded that there were "no mitigating circumstances sufficiently substantial to call for leniency." App. 61. See § 13-703. The court sentenced Walton to death.

The Arizona Supreme Court affirmed Walton's conviction and sentence. 159 Ariz. 571, 769 P.2d 1017 (1989). Relying on its prior decisions, the court rejected various specific challenges to the constitutionality of the Arizona death penalty statute, some of which are pressed here, and then proceeded to conduct its independent review of Walton's sentence in order to "ensure that aggravating factors were proven beyond a reasonable doubt and all appropriate mitigation was considered." Id., at 586, 769 P.2d, at 1032.2 The court began by examining the "especially heinous, cruel or depraved" aggravating circumstance found by the trial judge. The court pointed out that it previously had determined that a murder is committed in an especially cruel manner when "the perpetrator inflicts mental anguish or physical abuse before the victim's death," id., at 586, 769 P.2d, at 1032, (citations omitted), and that "[m]ental anguish includes a victim's uncertainty as to his ultimate fate." Ibid. In this case, the court concluded that there was ample evidence that Powell suffered mental anguish prior to his death.3 The Arizona Supreme Court also found the evidence sufficient to conclude that the crime was committed in an especially depraved manner, pointing out that it had defined a depraved murder as one where "the perpetrator relishes the murder, evidencing debasement or perversion." Id., at 587, 769 P.2d, at 1033.4 Additionally, the court found that the pecuniary gain circumstance was present. Id., at 588, 769 P.2d, at 1034. After examining Walton's mitigating evidence regarding his substance abuse and his youth, the court concluded that there were "no mitigating circumstances sufficient to call for lenience." Id., at 589, 769 P.2d, at 1035. Finally, the court conducted its proportionality review and determined that Walton's death sentence was "proportional to sentences imposed in similar cases." Id., at 590, 769 P.2d, at 1036.

Because the United States Court of Appeals for the Ninth Circuit has held the Arizona death penalty statute to be unconstitutional for the reasons submitted by Walton in this case, see Adamson v. Ricketts, 865 F.2d 1011 (1988) (en banc), we granted certiorari, 493 U.S. 808, 110 S.Ct. 49, 107 L.Ed.2d 18 (1989), to resolve the conflict and to settle issues that are of importance generally in the administration of the death penalty. We now affirm the judgment of the Arizona Supreme Court.

Walton's first argument is that every finding of fact underlying the sentencing decision must be made by a jury, not by a judge, and that the Arizona scheme would be constitutional only if a jury decides what aggravating and mitigating circumstances are present in a given case and the trial judge then imposes sentence based on those findings. Contrary to Walton's assertion, however: "Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court." Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725 (1990).

We repeatedly have rejected constitutional challenges to Florida's death sentencing scheme, which provides for sentencing by the judge, not the jury. Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (per curiam); Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In Hildwin, for example, we stated that "[t]his case presents us once again with the question whether the Sixth Amendment requires a jury to specify the aggravating factors that permit the imposition of capital punishment in Florida," 490 U.S., at 638, 109 S.Ct., at 2056, and we ultimately concluded that "the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury." Id., at 640-641, 109 S.Ct., at 2057.

The distinctions Walton attempts to draw between the Florida and Arizona statutory schemes are not persuasive. It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury's findings of fact with respect to sentencing issues than does a trial judge in Arizona.

Walton also suggests that in Florida aggravating factors are only sentencing "considerations" while in Arizona they are "elements of the offense." But as we observed in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), an Arizona capital punishment case: "Aggravating circumstances are not separate penalties or offenses, but are 'standards to guide the making of [the] choice' between the alternative verdicts of death and life imprisonment. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself 'convict' a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not 'acquit' a defendant (i.e., preclude the death penalty)." Id., at 156, 106 S.Ct., at 1755 (citation omitted).

Our holding in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), provides further support for our conclusion. Cabana held that an appellate court could constitutionally make the Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), finding—that the defendant killed, attempted to kill, or intended to kill—in the first instance. We noted that "Enmund, 'does not affect the state's definition of any substantive offense, even a capital offense,' " 474 U.S., at 385, 106 S.Ct., at 696 (citations omitted), and 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." Id., at 385, n. 3, 106 S.Ct., at 385, n. 3. Enmund only places "a substantive limitation on sentencing, and like other such limits it need not be enforced by the jury." 474 U.S., at 386, 106 S.Ct., at 697. If the Constitution does not require that the Enmund finding be proved as an element of the offense of capital murder, and does not require a jury to make that finding, we cannot conclude that a State is required to denominate aggravating circumstances "elements" of the offense or permit only a jury to determine the existence of such circumstances.

We thus conclude that the Arizona capital sentencing scheme does not violate the Sixth Amendment.

Also unpersuasive is Walton's contention that the Arizona statute violates the Eighth and Fourteenth Amendments because it imposes on defendants the burden of establishing, by a preponderance of the evidence, the existence of mitigating circumstances sufficiently substantial to call for leniency. See Ariz.Rev.Stat.Ann. §§ 13-703(C) and 13-703(E) (1989). It is true that the Court has refused to countenance state-imposed restrictions on what mitigating circumstances may be considered in deciding whether to impose the death penalty. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (1978) (plurality opinion). But Walton is not complaining that the Arizona statute or practice excludes from consideration any particular type of mitigating evidence; and it does not follow from Lockett and its progeny that a State is precluded from specifying how mitigating circumstances are to be proved. Indeed, in Lockett itself, we expressly reserved opinion on whether "it violates the Constitution to require defendants to bear the risk of nonpersuasion as to the existence of mitigating circumstances in capital cases." Id., at 609, and n. 16, 98 S.Ct., at 2967, and n. 16 (plurality opinion).

In Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), we upheld the Ohio practice of imposing on a capital defendant the burden of proving by a preponderance of the evidence that she was acting in self-defense when she allegedly committed the murder. In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), the Court upheld, in a capital case, a requirement that the defense of insanity be proved beyond a reasonable doubt by the defendant, see also Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976), and in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), we rejected the argument that a State violated due process by imposing a preponderance of the evidence standard on a defendant to prove the affirmative defense of extreme emotional disturbance.

The basic principle of these cases controls the result in this case. So long as a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), is not to the contrary. Mullaney struck down on due process grounds a state statute that required a convicted murder defendant to negate an element of the offense of murder in order to be entitled to a sentence for voluntary manslaughter. No such burden is placed on defendants by Arizona's capital sentencing scheme. We therefore decline to adopt as a constitutional imperative a rule that would require the court to consider the mitigating circumstances claimed by a defendant unless the State negated them by a preponderance of the evidence.

Neither does Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), lend support to Walton's position. There this Court reversed a death sentence because it concluded that the jury instructions given at the sentencing phase likely led the jury to believe that any particular mitigating circumstance could not be considered unless the jurors unanimously agreed that such circumstance was present. The Court's focus was on whether reasonable jurors would have read the instructions to require unanimity and, if so, the possible consequences of such an understanding. Here, of course, the judge alone is the sentencer, and Mills is therefore beside the point.

Furthermore, Mills did not suggest that it would be forbidden to require each individual juror, before weighing a claimed mitigating circumstance in the balance, to be convinced in his or her own mind that the mitigating circumstance has been proved by a preponderance of the evidence. To the contrary, the jury in that case was instructed that it had to find that any mitigating circumstances had been proved by a preponderance of the evidence. Id., at 387, 108 S.Ct., at 1871-1872. Neither the petitioner in Mills nor the Court in its opinion hinted that there was any constitutional objection to that aspect of the instructions.

We therefore reject Walton's argument that Arizona's allocation of the burdens of proof in a capital sentencing proceeding violates the Constitution.

Walton insists that because § 13-703(E) provides that the court "shall" impose the death penalty if one or more aggravating circumstances are found and mitigating circumstances are held insufficient to call for leniency, the statute creates an unconstitutional presumption that death is the proper sentence. Our recent decisions in Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), foreclose this submission. Blystone rejected a challenge to a jury instruction based on a Pennsylvania statute requiring the imposition of the death penalty if aggravating circumstances were found to exist but no mitigating circumstances were present. We pointed out that "[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence," 494 U.S., at 307, 110 S.Ct., at 1083 (footnote omitted), and concluded that because the Pennsylvania statute did not preclude the sentencer from considering any type of mitigating evidence, id., at 308, 110 S.Ct., at 1084, it was consonant with that principle. In addition, the Court concluded that the statute was not "impermissibly 'mandatory' as that term was understood" in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), because it did not automatically impose death upon conviction for certain types of murder. 494 U.S., at 305, 110 S.Ct., at 1082. The same is true of the Arizona statute.

Similarly, Boyde v. California, supra, upheld a pattern jury instruction which stated that "[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death." See 494 U.S., at 374, 110 S.Ct., at 1195 (emphasis omitted). The Court specifically noted that "there is no . . . constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty.' " Id., at 377, 110 S.Ct., at 1196 (quoting Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988) (plurality opinion) ). Walton's arguments in this case are no more persuasive than those made in Blystone and Boyde.

Walton's final contention is that the especially heinous, cruel, or depraved aggravating circumstance as interpreted by the Arizona courts fails to channel the sentencer's discretion as required by the Eighth and Fourteenth Amendments. Walton contends that the Arizona factor fails to pass constitutional muster for the same reasons this Court found Oklahoma's "especially heinous, atrocious, or cruel" aggravating circumstance to be invalid in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and Georgia's "outrageously or wantonly vile, horrible or inhuman" circumstance to be invalid in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

Maynard v. Cartwright and Godfrey v. Georgia, however, are distinguishable in two constitutionally significant respects. First, in both Maynard and Godfrey the defendant was sentenced by a jury and the jury either was instructed only in the bare terms of the relevant statute or in terms nearly as vague. See 486 U.S., at 358-359, 363-364, 108 S.Ct., at 1856-1857, 1858-1859; 446 U.S., at 426, 100 S.Ct., at 1763-1764. Neither jury was given a constitutional limiting definition of the challenged aggravating factor. Second, in neither case did the state appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition of the aggravating circumstance to the facts presented. 486 U.S., at 364, 108 S.Ct., at 1859; 446 U.S., at 429, 100 S.Ct., at 1765 (plurality opinion). These points were crucial to the conclusion we reached in Maynard. See 486 U.S., at 363-364, 108 S.Ct., at 1858-1859. They are equally crucial to our decision in this case.

When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process. It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face. That is the import of our holdings in Maynard and Godfrey. But the logic of those cases has no place in the context of sentencing by a trial judge. Trial judges are presumed to know the law and to apply it in making their decisions. If the Arizona Supreme Court has narrowed the definition of the "especially heinous, cruel or depraved" aggravating circumstance, we presume that Arizona trial judges are applying the narrower definition. It is irrelevant that the statute itself may not narrow the construction of the factor. Moreover, even if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather, as we held in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty.

When a federal court is asked to review a state court's application of an individual statutory aggravating or mitigating circumstance in a particular case, it must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer. If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms, and if they have done so, whether those definitions are constitutionally sufficient, i.e., whether they provide some guidance to the sentencer. In this case there is no serious argument that Arizona's "especially heinous, cruel or depraved" aggravating factor is not facially vague. But the Arizona Supreme Court has sought to give substance to the operative terms, and we find that its construction meets constitutional requirements.

The Arizona Supreme Court stated that "a crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim's death," and that "[m]ental anguish includes a victim's uncertainty as to his ultimate fate." 159 Ariz., at 586, 769 P.2d, at 1032. The court rejected the State's argument that the six days Powell suffered after being shot constituted cruelty within the meaning of the statute. The court pointed out that it had limited the cruelty circumstance in prior cases to situations where the suffering of the victim was intended by or foreseeable to the killer. Id., at 587, 769 P.2d, at 1033.

In Maynard v. Cartwright, we expressed approval of a definition that would limit Oklahoma's "especially heinous, atrocious, or cruel" aggravating circumstance to murders involving "some kind of torture or physical abuse," 486 U.S., at 364-365, 108 S.Ct., at 1859-1860, but we also noted that such a construction was not the only one "that would be constitutionally acceptable." Id., at 365, 108 S.Ct., at 1859. The construction given by the Arizona Supreme Court to the cruelty aspect of the Arizona aggravating circumstance is virtually identical to the construction we approved in Maynard.

The Arizona Supreme Court's construction also is similar to the construction of Florida's "especially heinous, atrocious, or cruel" aggravating circumstance that we approved in Proffitt v. Florida, 428 U.S., at 255-256, 96 S.Ct., at 2968 (joint opinion of Stewart, Powell, and STEVENS, JJ.). Recognizing that the proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision, we conclude that the definition given to the "especially cruel" provision by the Arizona Supreme Court is constitutionally sufficient because it gives meaningful guidance to the sentencer. Nor can we fault the state court's statement that a crime is committed in an especially "depraved" manner when the perpetrator "relishes the murder, evidencing debasement or perversion," or "shows an indifference to the suffering of the victim and evidences a sense of pleasure" in the killing. See 159 Ariz., at 587, 769 P.2d, at 1033.

Walton nevertheless contends that the heinous, cruel, or depraved factor has been applied in an arbitrary manner and, as applied, does not distinguish his case from cases in which the death sentence has not been imposed. In effect Walton challenges the proportionality review of the Arizona Supreme Court as erroneous and asks us to overturn it. This we decline to do, for we have just concluded that the challenged factor has been construed by the Arizona courts in a manner that furnishes sufficient guidance to the sentencer. This being so, proportionality review is not constitutionally required, and we "lawfully may presume that [Walton's] death sentence was not 'wantonly and freakishly' imposed— and thus that the sentence is not disproportionate within any recognized meaning of the Eighth Amendment." McCleskey v. Kemp, 481 U.S. 279, 306, 308, 107 S.Ct. 1756, 1774, 1775, 95 L.Ed.2d 262 (1987); Pulley v. Harris, 465 U.S. 37, 43, 104 S.Ct. 871, 875-876, 79 L.Ed.2d 29 (1984). Furthermore, the Arizona Supreme Court plainly undertook its proportionality review in good faith and found that Walton's sentence was proportional to the sentences imposed in cases similar to his. The Constitution does not require us to look behind that conclusion.

The judgment of the Arizona Supreme Court is affirmed.

It is so ordered.

Justice SCALIA, concurring in part and concurring in the judgment.

Today a petitioner before this Court says that a state sentencing court (1) had unconstitutionally broad discretion to sentence him to death instead of imprisonment, and (2) had unconstitutionally narrow discretion to sentence him to imprisonment instead of death. An observer unacquainted with our death penalty jurisprudence (and in the habit of thinking logically) would probably say these positions cannot both be right. The ultimate choice in capital sentencing, he would point out, is a unitary one—the choice between death and imprisonment. One cannot have discretion whether to select the one yet lack discretion whether to select the other. Our imaginary observer would then be surprised to discover that, under this Court's Eighth Amendment jurisprudence of the past 15 years, petitioner would have a strong chance of winning on both of these antagonistic claims, simultaneously—as evidenced by the facts that four Members of this Court think he should win on both, see post, at 677 (BLACKMUN, J., dissenting), and that an en banc panel of a Federal Court of Appeals so held in an essentially identical case, see Adamson v. Ricketts, 865 F.2d 1011, 1029-1044 (CA9 1988). But that just shows that our jurisprudence and logic have long since parted ways. I write separately to say that, and explain why, I will no longer seek to apply one of the two incompatible branches of that jurisprudence. I agree with the Court's analysis of petitioner's first claim, and concur in its opinion as to Parts I, II, and V. As to the second claim, I concur only in the judgment.

* A.

Over the course of the past 15 years, this Court has assumed the role of rulemaking body for the States' administration of capital sentencing—effectively requiring capital sentencing proceedings separate from the adjudication of guilt, see, e.g., Woodson v. North Carolina, 428 U.S. 280, 301-305, 96 S.Ct. 2978, 2989-2992, 49 L.Ed.2d 944 (1976) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 2935-2936, 49 L.Ed.2d 859 (1976) (opinion announcing judgment), dictating the type and extent of discretion the sentencer must and must not have, see, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), requiring that certain categories of evidence must and must not be admitted, see, e.g., Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), undertaking minute inquiries into the wording of jury instructions to ensure that jurors understand their duties under our labyrinthine code of rules, see, e.g., Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and prescribing the procedural forms that sentencing decisions must follow, see, e.g., McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). The case that began the development of this Eighth Amendment jurisprudence was Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam ), which has come to stand for the principle that a sentencer's discretion to return a death sentence must be constrained by specific standards, so that the death penalty is not inflicted in a random and capricious fashion.

In Furman, we overturned the sentences of two men convicted and sentenced to death in state courts for murder and one man so convicted and sentenced for rape, under statutes that gave the jury complete discretion to impose death for those crimes, with no standards as to the factors it should deem relevant. The brief per curiam gave no reasons for the Court's decision, other than to say that "the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Id., at 239-240, 92 S.Ct., at 2727. To uncover the reasons underlying the decision in Furman, one must turn to the opinions of the five Justices forming the majority, each of whom wrote separately and none of whom joined any other's opinion. Of these opinions, two rested on the broadest possible ground—that the death penalty was cruel and unusual punishment in all circumstances. See id., at 305, 92 S.Ct., at 2760 (BRENNAN, J., concurring); id., at 369-371, 92 S.Ct., at 2792-2794 (MARSHALL, J., concurring). A third, that of Justice Douglas, rested on a narrower ground—that the discretionary capital sentencing systems under which the petitioners had been sentenced were operated in a manner that discriminated against racial minorities and unpopular groups. See id., at 256-257, 92 S.Ct., at 2735-2736 (concurring opinion).

The critical opinions, however, in light of the subsequent development of our jurisprudence, were those of Justices Stewart and WHITE. They focused on the infrequency and seeming randomness with which, under the discretionary state systems, the death penalty was imposed. Justice Stewart wrote:

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." Id., at 309-310, 92 S.Ct., at 2762-2763 (concurring opinion) (footnotes omitted).

Justice WHITE took a similar view. In his opinion the death sentences under review violated the Eighth Amendment because "as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice." Id., at 313, 92 S.Ct., at 2764. "[T]here is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not," ibid., so that it constitutes a "pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes," id., at 312, 92 S.Ct., at 2764. The opinions of both Justice Stewart and Justice WHITE went out of the way to say that capital punishment was not in itself a cruel and unusual punishment, and that a mandatory system of capital sentencing, in which everyone convicted of a particular crime received that punishment, would "present quite different issues." Id., at 310-311, 92 S.Ct., at 2762-2763 (WHITE, J., concurring); see also id., at 307-308, 92 S.Ct., at 2761-2762 (Stewart, J., concurring).

Furman led at least 35 States to adopt new capital sentencing procedures that eliminated some of the discretion previously conferred to impose or withhold the death penalty. See Gregg v. Georgia, supra, 428 U.S., at 179, 96 S.Ct., at 2928. In 1976, we upheld against Eighth Amendment challenge three "guided discretion" schemes representative of these measures, which, in varying forms, required the sentencer to consider certain specified aggravating and mitigating circumstances in reaching its decision. In the principal case, Gregg v. Georgia, supra, the three-Justice opinion announcing the judgment read Furman as "mandat[ing] that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action," id., at 189, 96 S.Ct., at 2932 (joint opinion of Stewart, Powell, and STEVENS, JJ.) (emphasis added). See also id., at 221-222, 96 S.Ct., at 2947-2948 (WHITE, J., joined by Burger, C.J., and REHNQUIST, J., concurring in judgment); Proffitt v. Florida, 428 U.S. 242, 251, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.); id., at 260, 96 S.Ct., at 2970 (WHITE, J., joined by Burger, C.J., and REHNQUIST, J., concurring in judgment); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.); id., at 279, 96 S.Ct., at 2959-2960 (WHITE, J., joined by Burger, C.J., and REHNQUIST, J., concurring in judgment).

Since the 1976 cases, we have routinely read Furman as standing for the proposition that "channelling and limiting . . . the sentencer's discretion in imposing the death penalty" is a "fundamental constitutional requirement," Maynard v. Cartwright, 486 U.S. 356, 362, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988), and have insisted that States furnish the sentencer with " 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death,' " Godfrey v. Georgia, 446 U.S., at 428, 100 S.Ct., at 1765 (footnotes omitted). Only twice since 1976 have we actually invalidated a death sentence because of inadequate guidance to the sentencer, see Maynard, supra, 486 U.S., at 362-364, 108 S.Ct., at 1858-1859; Godfrey, supra, 446 U.S., at 428-429, 433, 100 S.Ct., at 1764-1765, 1767, but we have repeatedly incanted the principle that "unbridled discretion" is unacceptable, Penry v. Lynaugh, 492 U.S. 302, 326, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256 (1989), that capital sentencing procedures must constrain and guide the sentencer's discretion to ensure "that the death penalty is not meted out arbitrarily and capriciously," California v. Ramos, 463 U.S. 992, 999, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983), that "the State must establish rational criteria that narrow the decisionmaker's judgment," McCleskey v. Kemp, 481 U.S. 279, 305, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987), that "death penalty statutes [must] be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion," California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987), that our cases require "procedural protections . . . to ensure that the death penalty will be imposed in a consistent, rational manner," Barclay v. Florida, 463 U.S. 939, 960, 103 S.Ct. 3418, 3430, 77 L.Ed.2d 1134 (1983) (STEVENS, J., concurring in judgment), and that "[States] must administer [the death] penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not," Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 3162, 82 L.Ed.2d 340 (1984). See also Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982); Pulley v. Harris, 465 U.S. 37, 51, 104 S.Ct. 871, 879-880, 79 L.Ed.2d 29 (1984); Booth v. Maryland, 482 U.S., at 502, 107 S.Ct., at 2532-2533; Mills v. Maryland, 486 U.S., at 374, 108 S.Ct., at 1865; Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988).

Shortly after introducing our doctrine requiring constraints on the sentencer's discretion to "impose" the death penalty, the Court began developing a doctrine forbidding constraints on the sentencer's discretion to "decline to impose" it. McCleskey v. Kemp, supra, 481 U.S., at 304, 107 S.Ct., at 1773 (emphasis deleted). This second doctrine—counterdoctrine would be a better word—has completely exploded whatever coherence the notion of "guided discretion" once had.

Some States responded to Furman by making death the mandatory punishment for certain categories of murder. We invalidated these statutes in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), a plurality of the Court concluding that the sentencing process must accord at least some consideration to the "character and record of the individual offender." Woodson, supra, 428 U.S., at 304, 96 S.Ct., at 2991 (plurality opinion). Other States responded to Furman by leaving the sentencer some discretion to spare capital defendants, but limiting the kinds of mitigating circumstances the sentencer could consider. We invalidated these statutes in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a plurality saying the Eighth Amendment requires that the sentencer "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death," id., at 604, 98 S.Ct., at 2964-2965 (opinion of Burger, C.J., joined by Stewart, Powell, and STEVENS, JJ.) (emphasis omitted and added). The reasoning of the pluralities in these cases was later adopted by a majority of the Court. See Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (embracing Woodson ); Eddings v. Oklahoma, supra (embracing Lockett ).

These decisions, of course, had no basis in Furman. One might have supposed that curtailing or eliminating discretion in the sentencing of capital defendants was not only consistent with Furman, but positively required by it—as many of the States, of course, did suppose. But in Woodson and Lockett, it emerged that uniform treatment of offenders guilty of the same capital crime was not only not required by the Eighth Amendment, but was all but prohibited. Announcing the proposition that "[c]entral to the application of the [Eighth] Amendment is a determination of contemporary standards regarding the infliction of punishment," Woodson, supra, 428 U.S., at 288, 96 S.Ct., at 2983, and pointing to the steady growth of discretionary sentencing systems over the previous 150 years (those very systems we had found unconstitutional in Furman ), Woodson, supra, at 291-292, 96 S.Ct., at 2984-2985, the pluralities in those cases determined that a defendant could not be sentenced to death unless the sentencer was convinced, by an unconstrained and unguided evaluation of offender and offense, that death was the appropriate punishment, id., at 304-305, 96 S.Ct., at 2991-2992; Lockett, supra, 438 U.S., at 604-605, 98 S.Ct., at 2964-2965. In short, the practice which in Furman had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required.

As elaborated in the years since, the Woodson-Lockett principle has prevented States from imposing all but the most minimal constraints on the sentencer's discretion to decide that an offender eligible for the death penalty should nonetheless not receive it. We have, in the first place, repeatedly rebuffed States' efforts to channel that discretion by specifying objective factors on which its exercise should rest. It would misdescribe the sweep of this principle to say that "all mitigating evidence" must be considered by the sentencer. That would assume some objective criterion of what is mitigating, which is precisely what we have forbidden. Our cases proudly announce that the Constitution effectively prohibits the States from excluding from the sentencing decision any aspect of a defendant's character or record, or any circumstance surrounding the crime: that the defendant had a poor and deprived childhood, or that he had a rich and spoiled childhood; that he had a great love for the victim's race, or that he had a pathological hatred for the victim's race; that he has limited mental capacity, or that he has a brilliant mind which can make a great contribution to society; that he was kind to his mother, or that he despised his mother. Whatever evidence bearing on the crime or the criminal the defense wishes to introduce as rendering the defendant less deserving of the death penalty must be admitted into evidence and considered by the sentencer. See, e.g., Lockett, supra, at 597, 98 S.Ct., at 2961 ("character, prior record, age, lack of specific intent to cause death, and . . . relatively minor part in the crime"); Eddings v. Oklahoma, supra, 455 U.S., at 107, 102 S.Ct., at 872-873 (inter alia, that the defendant's "parents were divorced when he was 5 years old, and until he was 14 [he] lived with his mother without rules or supervision"); Hitchcock v. Dugger, 481 U.S. 393, 397, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987) (inter alia, that "petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle"); Skipper v. South Carolina, 476 U.S., at 4, 106 S.Ct., at 1670 (that "petitioner had been a well-behaved and well-adjusted prisoner" while awaiting trial). Nor may States channel the sentencer's consideration of this evidence by defining the weight or significance it is to receive—for example, by making evidence of mental retardation relevant only insofar as it bears on the question whether the crime was committed deliberately. See Penry v. Lyn- augh, 492 U.S. 302, 322-323, 328, 109 S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989). Rather, they must let the sentencer "give effect," McKoy v. North Carolina, 494 U.S. 433, 442-443, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990), to mitigating evidence in whatever manner it pleases. Nor, when a jury is assigned the sentencing task, may the State attempt to impose structural rationality on the sentencing decision by requiring that mitigating circumstances be found unanimously, see id., at 443, 110 S.Ct., at 1233; each juror must be allowed to determine and "give effect" to his perception of what evidence favors leniency, regardless of whether those perceptions command the assent of (or are even comprehensible to) other jurors.

To acknowledge that "there perhaps is an inherent tension" between this line of cases and the line stemming from Furman, McCleskey v. Kemp, 481 U.S., at 363, 107 S.Ct., at 1804 (BLACKMUN, J., dissenting), is rather like saying that there was perhaps an inherent tension between the Allies and the Axis Powers in World War II. And to refer to the two lines as pursuing "twin objectives," Spaziano v. Florida, 468 U.S., at 459, 104 S.Ct., at 3161-3162, is rather like referring to the twin objectives of good and evil. They cannot be reconciled. Pursuant to Furman, and in order "to achieve a more rational and equitable administration of the death penalty," Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988), we require that States "channel the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' " Godfrey v. Georgia, 446 U.S., at 428, 100 S.Ct., at 1764-1765. In the next breath, however, we say that "the State cannot channel the sentencer's discretion . . . to consider any relevant [mitigating] information offered by the defendant," McCleskey v. Kemp, supra, 481 U.S., at 306, 107 S.Ct., at 1774 (emphasis added), and that the sentencer must enjoy unconstrained discretion to decide whether any sympathetic factors bearing on the defendant or the crime indicate that he does not "deserve to be sentenced to death," Penry v. Lynaugh, supra, 492 U.S., at 326, 109 S.Ct., at 2951. The latter requirement quite obviously destroys whatever rationality and predictability the former requirement was designed to achieve.*

The Court has attempted to explain the contradiction by saying that the two requirements serve different functions: The first serves to "narrow" according to rational criteria the class of offenders eligible for the death penalty, while the second guarantees that each offender who is death eligible is not actually sentenced to death without "an individualized assessment of the appropriateness of the death penalty." Penry v. Lynaugh, supra, at 317, 109 S.Ct., at 2946; see also Zant v. Stephens, 462 U.S., at 878-879, 103 S.Ct., at 2743-2744. But it is not "individualized assessment" that is the issue here. No one asserts that theCon stitution permits condemnation en masse. The issue is whether, in the process of the individualized sentencing determination, the society may specify which factors are relevant, and which are not—whether it may insist upon a rational scheme in which all sentencers making the individualized determinations apply the same standard. That is precisely the issue that was involved in Furman, no more and no less. Having held, in Furman, that the aggravating factors to be sought in the individualized determination must be specified in advance, we are able to refer to the defendants who will qualify under those factors as a "class of death eligibles"—from among whom those actually to receive death will be selected on the basis of unspecified mitigating factors. But if we had held in Lockett that the mitigating factors to be sought in the individualized determination must be specified in advance, we would equally have been able to refer to the defendants who will qualify under those factors as a "class of mercy eligibles"—from among whom those actually to receive mercy will be selected on the basis of unspecified aggravating factors. In other words, classification versus individuation does not explain the opposite treatment of aggravating and mitigating factors; it is merely one way of describing the result of that opposite treatment. What is involved here is merely setting standards for individualized determinations, and the question remains why the Constitution demands that the aggravating standards and mitigating standards be accorded opposite treatment. It is impossible to understand why. Since the individualized determination is a unitary one (does this defendant deserve death for this crime?) once one says each sentencer must be able to answer "no" for whatever reason it deems morally sufficient (and indeed, for whatever reason any one of 12 jurors deems morally sufficient), it becomes impossible to claim that the Constitution requires consistency and rationality among sentencing determinations to be preserved by strictly limiting the reasons for which each sentencer can say "yes." In fact, randomness and "freakishness" are even more evident in a system that requires aggravating factors to be found in great detail, since it permits sentencers to accord different treatment, for whatever mitigating reasons they wish, not only to two different murderers, but to two murderers whose crimes have been found to be of similar gravity. It is difficult enough to justify the Furman requirement so long as the States are permitted to allow random mitigation; but to impose it while simultaneously requiring random mitigation is absurd. I agree with Justice WHITE's observation that the Lockett rule represents a sheer "about-face" from Furman, an outright negation of the principle of guided discretion that brought us down the path of regulating capital sentencing procedure in the first place. Lockett v. Ohio, 438 U.S., at 622, 98 S.Ct., at 2982 (opinion concurring in part, dissenting in part, and concurring in judgments).

The simultaneous pursuit of contradictory objectives necessarily produces confusion. As THE CHIEF JUSTICE has pointed out, in elaborating our doctrine "the Court has gone from pillar to post, with the result that the sort of reasonable predictability upon which legislatures, trial courts, and appellate courts must of necessity rely has been all but completely sacrificed." Lockett v. Ohio, supra, at 629, 98 S.Ct., at 2973 (REHNQUIST, J., dissenting). Repeatedly over the past 20 years state legislatures and courts have adopted discretion-reducing procedures to satisfy the Furman principle, only to be told years later that their measures have run afoul of the Lockett principle. Having said in Furman that unconstrained discretion in capital sentencing was unacceptable, see Furman v. Georgia, 408 U.S., at 256-257, 92 S.Ct., at 2735 (Douglas, J., concurring); id., at 309-310, 92 S.Ct., at 2762-2763 (Stewart, J., concurring); id., at 311-312, 92 S.Ct., at 2763-2764 (WHITE, J., concurring), we later struck down mandatory schemes, adopted in response to Furman, because they constrained sentencing discretion. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Having sustained specific state sentencing schemes in 1976 because they provided the constitutionally necessary degree of "guided discretion" in the form of objective sentencing criteria, see, e.g., Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), we later struck down those very schemes because they required the sentencer to confine itself to the factors contained in those objective criteria, see Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (Florida); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Texas). Having encouraged the States to adopt the "important additional safeguard against arbitrariness" of requiring specific jury findings supporting its sentencing decision, Gregg v. Georgia, 428 U.S., at 198, 96 S.Ct., at 2937 (joint opinion of Stewart, Powell, and STEVENS, JJ.), we later made such findings impossible as to mitigating circumstances (and thus meaningless as a whole) by prohibiting a requirement that the jury agree on mitigating circumstances, McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). For state lawmakers, the lesson has been that a decision of this Court is nearly worthless as a guide for the future; though we approve or seemingly even require some sentencing procedure today, we may well retroactively prohibit it tomorrow.

In a jurisprudence containing the contradictory commands that discretion to impose the death penalty must be limited but discretion not to impose the death penalty must be virtually unconstrained, a vast number of procedures support a plausible claim in one direction or the other. Conscientious counsel are obliged to make those claims, and conscientious judges to consider them. There has thus arisen, in capital cases, a permanent floodtide of stay applications and petitions for certiorari to review adverse judgments at each round of direct and collateral review, alleging novel defects in sentencing procedure arising out of some permutation of either Furman or Lockett. State courts, attempting to give effect to the contradictory principles in our jurisprudence and reluctant to condemn an offender without virtual certainty that no error has been committed, often suspend the normal rules of procedural bar to give ear to each new claim that the sentencer's discretion was overconstrained or underconstrained. An adverse ruling typically gives rise to yet another round of federal habeas review—and by the time that is concluded we may well have announced yet another new rule that will justify yet another appeal to the state courts. The effects of the uncertainty and unpredictability are evident in this Court alone, even though we see only the tip of a mountainous iceberg. Since granting certiorari in McKoy v. North Carolina, supra, on February 21, 1989 (the first of this Term's capital cases to have certiorari granted), we have received over 350 petitions for certiorari in capital cases; 8 were granted, and 84 were held for the 9 cases granted for this Term; 37 were held for this case alone. Small wonder, then, that the statistics show a capital punishment system that has been approved, in many States, by the democratic vote of the people, that has theoretically been approved as constitutional by this Court, but that seems unable to function except as a parody of swift or even timely justice. As of May 1990 there were 2,327 convicted murderers on death row; only 123 have been executed since our 1972 Furman decision. NAACP Legal Defense and Educational Fund, Death Row, U.S.A. 1 (1990). Those executions that have been carried out have occurred an average of eight years after the commission of the capital crime. See E. Carnes & S. Stewart, Summary of Post-Furman Capital Punishment Data § VIII (unpublished report by Alabama Assistant Attorneys General on file with Harvard Law School Library, 1988), cited in Powell, Commentary, 102 Harv.L.Rev. 1013, 1038, n. 26 (1989).

In my view, it is time for us to reexamine our efforts in this area and to measure them against the text of the constitutional provision on which they are purportedly based.

The Eighth Amendment, made applicable to the States by the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The requirement as to punishments stands in stark contrast to the requirement for bail and fines, which are invalid if they are "excessive." When punishments other than fines are involved, the Amendment explicitly requires a court to consider not only whether the penalty is severe or harsh, but also whether it is "unusual." If it is not, then the Eighth Amendment does not prohibit it, no matter how cruel a judge might think it to be. Moreover, the Eighth Amendment's prohibition is directed against cruel and unusual punishments. It does not, by its terms, regulate the procedures of sentencing as opposed to the substance of punishment. As THE CHIEF JUSTICE has observed, "[t]he prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed." Gardner v. Florida, 430 U.S. 349, 371, 97 S.Ct. 1197, 1211, 51 L.Ed.2d 393 (1977) (REHNQUIST, J., dissenting). Thus, the procedural elements of a sentencing scheme come within the prohibition, if at all, only when they are of such a nature as systematically to render the infliction of a cruel punishment "unusual."

Our decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), was arguably supported by this text. As I have already described, see Part I-A, supra, the critical opinions of Justice Stewart and Justice WHITE in that case rested on the ground that discretionary capital sentencing had made the death sentence such a random and infrequent event among capital offenders ("wanto[n] and freakis[h]," as Justice Stewart colorfully put it) that its imposition had become cruel and unusual. As far as I can discern (this is not the occasion to explore the subject), that is probably not what was meant by an "unusual punishment" in the Eighth Amendment—that is to say, the text did not originally prohibit a traditional form of punishment that is rarely imposed, as opposed to a form of punishment that is not traditional. But the phrase can bear the former meaning. Moreover, since in most States, until the beginning of this century, the death penalty was mandatory for the convictions for which it was prescribed, see H. Bedau, The Death Penalty in America 10-11 (3d ed. 1982); W. Bowers, Executions in America 8 (1974), it cannot be said that the Furman interpretation of the phrase is contradicted by the clear references to a permissible death penalty in the Constitution, see U.S. Const., Amdt. 5; U.S. Const., Amdt. 14, § 1. I am therefore willing to adhere to the precedent established by our Furman line of cases, and to hold that when a State adopts capital punishment for a given crime but does not make it mandatory, the Eighth Amendment bars it from giving the sentencer unfettered discretion to select the recipients, but requires it to establish in advance, and convey to the sentencer, a governing standard. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

The Woodson-Lockett line of cases, however, is another matter. As far as I can discern, that bears no relation whatever to the text of the Eighth Amendment. The mandatory imposition of death—without sentencing discretion—for a crime which States have traditionally punished with death cannot possibly violate the Eighth Amendment, because it will not be "cruel" (neither absolutely nor for the particular crime) and it will not be "unusual" (neither in the sense of being a type of penalty that is not traditional nor in the sense of being rarely or "freakishly" imposed). It is quite immaterial that most States have abandoned the practice of automatically sentencing to death all offenders guilty of a capital crime, in favor of a separate procedure in which the sentencer is given the opportunity to consider the appropriateness of death in the individual case, see Woodson v. North Carolina, 428 U.S., at 294-295, 96 S.Ct., at 2986-2987 (plurality opinion); still less is it relevant that mandatory capital sentencing is (or is alleged to be) out of touch with " 'contemporary community values' " regarding the administration of justice, id., at 295, 96 S.Ct., at 2987 (citation omitted).

I am aware of the argument, see id., at 302-303, 96 S.Ct., at 2990; Roberts v. Louisiana, 428 U.S., at 333-335, 96 S.Ct., at 3006-3007 (plurality opinion), that mandatory capital sentencing schemes may suffer from the same defects that characterize absolutely discretionary schemes. In mandatory systems, the argument goes, juries frequently acquit offenders whom they find guilty but believe do not deserve the death penalty for their crime; and because this "jury nullification" occurs without the benefit of any guidance or standards from the State, the result is the same "arbitrary and capricious imposition of death sentences" struck down in Furman. One obvious problem with this argument is that it proves too much, invalidating Furman at the same time that it validates Woodson. If juries will ignore their instructions in determining guilt in a mandatory capital sentencing scheme, there is no reason to think they will not similarly chafe at the " 'clear and objective standards' . . . provid[ing] 'specific and detailed guidance,' " Godfrey v. Georgia, supra, 446 U.S., at 428, 100 S.Ct., at 1765 (footnotes omitted), that Furman requires. The Furman approach must be preferred, since it is facially implausible that the risk of arbitrariness arising from juries' ignoring their instructions is greater than the risk of arbitrariness from giving them no instructions at all. The theory of "unusualness" adopted in Furman is tenuous enough when used to invalidate explicitly conferred standardless sentencing discretion; I am unwilling to extend that theory to situations in which the sentencer is denied that discretion, on the basis of a conjecture (found nowhere else in the law) that juries systematically disregard their oaths.

Despite the fact that I think Woodson and Lockett find no proper basis in the Constitution, they have some claim to my adherence because of the doctrine of stare decisis. I do not reject that claim lightly, but I must reject it here. My initial and my fundamental problem, as I have described it in detail above, is not that Woodson and Lockett are wrong, but that Woodson and Lockett are rationally irreconcilable with Furman. It is that which led me into the inquiry whether either they or Furman was wrong. I would not know how to apply them—or, more precisely, how to apply both them and Furman—if I wanted to. I cannot continue to say, in case after case, what degree of "narrowing" is sufficient to achieve the constitutional objective enunciated in Furman when I know that that objective is in any case impossible of achievement because of Woodson-Lockett. And I cannot continue to say, in case after case, what sort of restraints upon sentencer discretion are unconstitutional under Woodson-Lockett when I know that the Constitution positively favors constraints under Furman. Stare decisis cannot command the impossible. Since I cannot possibly be guided by what seem to me incompatible principles, I must reject the one that is plainly in error.

The objectives of the doctrine of stare decisis are not furthered by adhering to Woodson-Lockett in any event. The doctrine exists for the purpose of introducing certainty and stability into the law and protecting the expectations of individuals and institutions that have acted in reliance on existing rules. As I have described, the Woodson-Lockett principle has frustrated this very purpose from the outset contradicting the basic thrust of much of our death penalty jurisprudence, laying traps for unwary States, and generating a fundamental uncertainty in the law that shows no signs of ending or even diminishing.

I cannot adhere to a principle so lacking in support in constitutional text and so plainly unworthy of respect under stare decisis. Accordingly, I will not, in this case or in the future, vote to uphold an Eighth Amendment claim that the sentencer's discretion has been unlawfully restricted.

I turn, finally, to petitioner's Eighth Amendment claims in the present case.

With respect to the Furman claim, I agree with the Court's analysis and conclusion, and join those portions of its opinion. The aggravating circumstance found to exist in this case, that the murder was committed in an "especially heinous, cruel or depraved" manner—cruelty being defined as involving the infliction of mental anguish or physical abuse, and depravity defined as involving the relishing of the murder or the victim's suffering—defines with reasonable specificity certain elements that distinguish the death-eligible offense from other murders. They are precise enough, in my view, both to guide the sentencer and to enable review of the sentence.

As to petitioner's claim that in two respects the Arizona procedure deprived the sentencer of discretion to consider all mitigating circumstances: For the reasons stated above I do not believe that claim, if correct, states an Eighth Amendment violation.

I therefore concur in part and concur in the judgment.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.*

The Court's most cavalier application today of longstanding Eighth Amendment doctrines developed over the course of two decades of careful and sustained inquiry, when added to the host of other recent examples of crabbed application of doctrine in the death penalty context, see, e.g., Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); cf. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193, suggests that this Court is losing sight of its responsibility to ensure that the ultimate criminal sanction is meted out only in accordance with constitutional principle. While I join Justice BLACKMUN's dissenting opinions in today's decisions, I also adhere to my view that the death penalty is in all circumstances a cruel and unusual punishment:

"The fatal constitutional infirmity in the punishment of death is that it treats 'members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the [Cruel and Unusual Punishments] Clause that even the vilest criminal remains a human being possessed of common human dignity.' As such it is a penalty that 'subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause].' I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. 'Justice of this kind is obviously no less shocking than the crime itself, and the new "official" murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first.' " Gregg v. Georgia, 428 U.S. 153, 230-231, 96 S.Ct. 2909, 2972-2973, 49 L.Ed.2d 859 (1976) (dissenting opinion) (citations and footnote omitted).

See also Furman v. Georgia, 408 U.S. 238, 257-306, 92 S.Ct. 2726, 2735-2760, 33 L.Ed.2d 346 (1972) (concurring opinion).

Even if I did not believe that the death penalty is wholly inconsistent with the constitutional principle of human dignity, I would agree that the concern for human dignity lying at the core of the Eighth Amendment requires that a decision to impose the death penalty be made only after an assessment of its propriety in each individual case.

"A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.).

Thus "a system of capital punishment at once [must be] consistent and principled but also humane and sensible to the uniqueness of the individual." Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982).*

In the past, "this Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake." Id., at 118, 102 S.Ct., at 878 (O'CONNOR, J., concurring). But today's decisions reflect, if anything, the opposing concern that States ought to be able to executepris oners with as little interference as possible from our established Eighth Amendment doctrine.

Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting.

In my view, two Arizona statutory provisions, pertinent here, run afoul of the established Eighth Amendment principle that a capital defendant is entitled to an individualized sentencing determination which involves the consideration of all relevant mitigating evidence. The first is the requirement that the sentencer may consider only those mitigating circumstances proved by a preponderance of the evidence. The second is the provision that the defendant bears the burden of establishing mitigating circumstances "sufficiently substantial to call for leniency." I also conclude that Arizona's "heinous, cruel or depraved" aggravating circumstance, as construed by the Arizona Supreme Court, provides no meaningful guidance to the sentencing authority and, as a consequence, is unconstitutional.

I therefore dissent from the Court's affirmance of Jeffrey Alan Walton's sentence of death.

* During the past 15 years, this Court's death penalty jurisprudence consistently has stressed the importance of an individualized-sentencing process, one that permits "the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion). Such a procedure is required because "[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind." Id., at 304, 96 S.Ct., at 2991. A plurality of this Court stated in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), that a capital sentencer may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (Emphasis in original.) In Eddings v. Oklahoma, 455 U.S. 104, 114-115, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982), a majority held that "[t]he sentencer, and the [state appellate court] on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration."1 The Court, moreover, has insisted that the substance as well as the form of Lockett must be respected. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) ("[I]t is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence").

From those holdings two closely related principles emerge. The first is that the "qualitative difference" between death and all other penalties necessitates a greater degree of "reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S., at 305, 96 S.Ct., at 2991 (plurality opinion). The second is that the particularized sentencing procedure mandated by the Eighth Amendment requires that the sentencer be allowed to consider "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S., at 604, 98 S.Ct., at 2965 (plurality opinion). Only if the defendant is allowed an unrestricted opportunity to present relevant mitigating evidence will a capital sentencing procedure be deemed sufficiently reliable to satisfy constitutional standards. The Court said in Eddings that "the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency." 455 U.S., at 112, 102 S.Ct., at 875.

The Court today upholds an Arizona statute which (a) excludes from the sentencer's consideration all mitigating circumstances that the defendant has failed to prove by a preponderance of the evidence, and (b) places upon the capital defendant the burden of demonstrating that the mitigating circumstances so proved are "sufficiently substantial to call for leniency." The plurality makes no effort to explain how these provisions are consistent with the Eighth Amendment principles announced in Woodson, Lockett, and their progeny.2 Indeed, the plurality's analysis of these issues includes virtually no discussion of capital cases, and those that the majority does discuss are demonstrably inapposite. Rather, the plurality relies on "analogous" cases that do not involve the death penalty. Its analysis thereby ignores what I had thought to be settled principles regarding the distinctive nature of capital sentencing.

The Arizona capital sentencing statute flatly provides: "[T]he burden of establishing the existence of the [mitigating] circumstances included in subsection G of this section is on the defendant." Ariz.Rev.Stat.Ann. § 13-703(C) (1989). The Arizona Supreme Court has construed the statute to require that any mitigating circumstances must be proved by a preponderance of the evidence. See, e.g., State v. McMurtrey, 143 Ariz. 71, 73, 691 P.2d 1099, 1101 (1984). There can be no doubt that this provision of Arizona law excludes from the sentencer's consideration relevant mitigating evidence that might affect the determination whether the death penalty is appropriate. Exclusion of that evidence is unsupported by this Court's decisions and serves no legitimate state interest.

The plurality does not analyze this case within the framework established by our Eighth Amendment decisions. Rather, the plurality relies almost exclusively on noncapital cases upholding the State's right to place upon the defendant the burden of proving an affirmative defense. See ante, at 3055. Reliance on these cases is misplaced, however, since those decisions rest upon a premise that is wholly inapplicable in the capital sentencing context. In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court explained the justification in a noncapital case for allowing the burden of persuasion as to affirmative defenses to be placed upon the defendant rather than the State:

"The Due Process Clause, as we see it, does not put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.

. . . . .

". . . [I]n each instance of a murder conviction under the present law, New York will have proved beyond a reasonable doubt that the defendant has intentionally killed another person, an act which it is not disputed the State may constitutionally criminalize and punish. If the State nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, we think the State may assure itself that the fact has been established with reasonable certainty. To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate." Id., 432 U.S., at 207-209, 97 S.Ct., at 2326 (emphasis added).

The Court's decision thus rested upon an argument that "the greater power includes the lesser": since the State constitutionally could decline to recognize the defense at all, it could take the lesser step of placing the burden of proof upon the defendant. That reasoning is simply inapposite when a capital defendant introduces mitigating evidence, since the State lacks the greater power to exclude the evidence entirely.3

But it makes no sense to analyze petitioner's claim of Lockett error by drawing on "analogous" cases outside the sphere of capital sentencing. In developing the requirement of individualized capital sentencing (with unlimited presentation of relevant mitigating evidence), this Court has not purported to rely on principles applicable to criminal prosecutions generally. Instead, the Court's Eighth Amendment jurisprudence explicitly has proceeded from the premise "that death is a punishment different from all other sanctions in kind rather than degree." Woodson v. North Carolina, 428 U.S., at 303-304, 96 S.Ct., at 2991 (plurality opinion).4 To suggest that the principles announced in Lockett and Eddings are applicable only insofar as they are consistent with the constitutional rules governing noncapital cases is to deprive those decisions of all significance.

Application of the preponderance standard in this context is especially problematic in light of the fact that the "existence" of a mitigating factor frequently is not a factual issue to which a "yes" or "no" answer can be given. See Stebbing v. Maryland, 469 U.S. 900, 902-904, 105 S.Ct. 276, 277-279, 83 L.Ed.2d 212 (1984) (MARSHALL, J., dissenting from denial of certiorari). The statute, for example, lists as a first mitigating circumstance the fact that "[t]he defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. . . ." Ariz.Rev.Stat.Ann. § 13-703(G)(1) (1989). Petitioner offered evidence of childhood sexual abuse. Presumably, no individual who suffers such treatment is wholly unaffected; at the same time, it is rare that such an individual is so deeply traumatized that his impairment furnishes a complete defense for his actions. The question whether an individual's capacity to behave lawfully is "impaired" is one of degree, not an either/or proposition. The preponderance standard, however, encourages the sentencer to conclude that unless some vaguely defined threshold of "significance" has been reached, the evidence of abuse and consequent impairment cannot be considered at all.

Indeed, it appears that the Arizona Supreme Court has applied the statute in just this fashion. See, e.g., State v. Wallace, 151 Ariz. 362, 369, 728 P.2d 232, 239 (1986) ("[W]e find that neither defendant's 'difficult earlier years' nor his use of 'various drugs' so affected his capacity to conform to the requirements of law that they constitute mitigating factors under § 13-703(G)(1)"), cert. denied, 483 U.S. 1011, 107 S.Ct. 3243, 97 L.Ed.2d 748 (1987); State v. Rossi, 146 Ariz. 359, 367, 706 P.2d 371, 379 (1985) (intoxication or duress is not a mitigating circumstance unless it is substantial); State v. Woratzeck, 134 Ariz. 452, 458, 657 P.2d 865, 871 (1982) (same); State v. Nash, 143 Ariz. 392, 406, 694 P.2d 222, 236 (State acknowledged some degree of mental impairment but argued that "it was not significant enough to be a mitigating circumstance"), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985). The Arizona Supreme Court has not simply held that duress or impairment which falls below the threshold should be given reduced weight at the final stage of the sentencing process, when aggravating and mitigating circumstances are balanced. Rather, it has held that duress or impairment which falls below the threshold is not a mitigating factor. It is therefore misleading, in many instances, to characterize an Arizona court's rejection of proffered mitigating evidence as a determination that the evidence should not be credited. The trial judge instead may be acting upon the belief that a defendant's impairment, though proved, is not "significant" within the meaning of the statute. Thus, under Arizona law, a sentencing judge is entitled to give no weight to mitigating evidence on the ground that the evidence is not mitigating enough. Under the guise of a burden of proof, the statute provides that some mitigating evidence is not to be considered at all.5

Even when the trial judge's rejection of a particular mitigating circumstance is based on credibility determinations, application of the preponderance standard is unwarranted. Mitigating evidence that fails to meet this standard is not so unreliable that it has no proper place in the sentencing decision: Decisions as to punishment, like decisions as to guilt or innocence, will often be based on the cumulative effect of several pieces of evidence, no one of which by itself is fully persuasive. The problems with the preponderance standard are compounded when the defendant presents several possible mitigating factors. A trial judge might be 49% convinced as to each of 10 mitigating circumstances; yet he would be forced to conclude, as a matter of law, that there was no mitigation to weigh against the aggravating factors.

The Arizona Supreme Court has articulated two closely related justifications for placing upon the capital defendant the burden of proving that a mitigating circumstance exists. The court has asserted that "[f]acts which would tend to show mitigation are peculiarly within the knowledge of a defendant," State v. Smith, 125 Ariz. 412, 416, 610 P.2d 46, 50 (1980), and that "[t]o require the State to negate every mitigating circumstance would place an impermissible burden on the State," State v. Watson, 120 Ariz. 441, 447, 586 P.2d 1253, 1259 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979). Until today, this Court has never identified a state interest which outweighs the capital defendant's right to unrestricted presentation of mitigating evidence. Even if such an interest could exist, however, the interests advanced by the State in support of the preponderance standard do not withstand scrutiny.

The State's justifications are not without force when a criminal defendant offers an affirmative defense in a trial to determine guilt or innocence. A jury's decision as to an affirmative defense is a binary choice: either the defense is accepted or it is not. Since the jury's acceptance of the defense automatically results in an acquittal (or in conviction on a lesser charge), the State may suffer real prejudice if the defense is established on the basis of minimally persuasive evidence which the State has no practical opportunity to rebut—especially if it is difficult to anticipate the defenses that a particular individual may offer. In contrast, if a capital sentencer believes that certain mitigating evidence has some persuasive value, but does not meet the preponderance standard, the sentencer simply may give that evidence reduced weight—weight proportional to its persuasiveness—at the final balancing stage.6 No legitimate interest is served by forbidding the sentencer to give such evidence any effect at all.

The Arizona rule at issue here falls well within the prohibition announced in Lockett and its progeny. The statute defines a wide range of relevant mitigating evidence—evidence with some degree of persuasiveness which has not been proved by a preponderance—that cannot be given effect by the capital sentencer. That rule finds no support in this Court's precedents, and it serves no legitimate governmental interest. I therefore conclude that the Arizona death penalty statute, as construed by the Supreme Court of Arizona, impermissibly limits the sentencer's consideration of relevant mitigating evidence, and thereby violates the Eighth Amendment.7

I also believe that the Constitution forbids the State of Arizona to place upon the capital defendant the burden of proving mitigating circumstances that are "sufficiently substantial to call for leniency." Ariz.Rev.Stat.Ann. § 13-703(E) (1989). Once an aggravating circumstance has been established, the Arizona statute mandates that death is to be deemed the appropriate penalty unles