Jordan Berman

Document Type



In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year after Bullock, White joined in the majority in Tison v. Arizona to hold that the Eighth Amendment does not prohibit the death penalty even where the defendant’s mental state is one of reckless indifference. That standard exists to this day and is a marked departure from Justice White’s stand in Lockett. It suggests a pattern of increasing and sometimes case-specific compromises that the Court made in order to reach the death penalty as it now exists.