Full opinion text
AINSWORTH, Circuit Judge: This case involves the petition for a writ of habeas corpus by a Florida state inmate under sentence of death. On February 4, 1973, petitioner John A. Spenkelink, a 24-year-old white male and twice convicted felon, who had escaped from a California correctional camp, murdered his traveling companion, Joseph J. Szymankiewicz, a white male, in their Tallahassee, Florida motel room. Spenkelink shot Szymankiew-icz, who was asleep in bed, once in the head just behind the left ear and a second time in the back, which fragmented the spine, ruptured the aorta, and resulted in the victim’s death. The petitioner then recounted a cover story to the motel proprietor in order to delay discovery of the body and left. Authorities apprehended him less than one week later in Buena Park, California. On December 20, 1973, subsequent to a jury verdict of guilty of first degree murder, Spenkelink was sentenced to the death penalty by a Florida state court trial judge on the jury’s recommendation. Now, five years later, following an unsuccessful direct appeal and unsuccessful collateral review in the Florida state courts, and two unsuccessful petitions for certiorari to the United States Supreme Court, Spenkelink seeks federal habeas corpus relief. He asks this Court, in effect, to reverse his conviction and annul the decision that he must die for his premeditated act of murder. After reviewing the record with painstaking care and considering each of the petitioner’s contentions, we have determined that Spenkel-ink’s conviction and sentence were proper. Accordingly, we affirm the district court’s dismissal of his petition for habeas corpus. I. Statement of the Case A. State Court Proceedings Spenkelink was found guilty of first degree murder by a jury in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Under Florida law first degree murder is a capital felony, Fla.Stat. Ann. § 782.04(1), punishable either by life imprisonment with eligibility for parole after twenty-five years or by death, Fla.Stat. Ann. § 775.082(1), which in Florida is by electrocution. Fla.Stat.Ann. § 922.10. See id. § 922.11. In response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Florida by legislative act has provided that a defendant convicted of a capital felony must be provided a bifurcated trial, with a separate sentencing proceeding following his conviction to determine whether he shall receive the death penalty or life imprisonment. The relevant statute, Fla.Stat.Ann. § 921.141, which is set forth in footnote below, requires that the sentencing proceeding be held before the trial jury, which is to reach its decision by a majority vote after considering whether there are sufficient statutorily-defined aggravating circumstances and, if so, whether sufficient statutorily-defined mitigating circumstances exist that outweigh the aggravating circumstances. The jury’s determination is advisory only. That recommendation notwithstanding, the trial court must make the final sentencing decision, but if the court imposes a sentence of death, it must set forth written findings of fact to support its decision. Thus the trial court, in order to impose the death penalty, must find that sufficient statutorily-defined aggravating circumstances exist to justify the death penalty and that there are insufficient statutorily-defined mitigating circumstances to outweigh the aggravating circumstances found to exist. Additionally, “[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). The Florida Supreme Court automatically reviews each conviction and sentence of death on an expedited basis. The trial jury recommended that Spen-kelink receive the death penalty. The trial court agreed. Pursuant to Fla.Stat.Ann. § 921.141(3), it found that the felony “was committed for pecuniary gain, either for another person’s money or to re-coup his own,” that the crime “was especially heinous, atrocious and cruel,” that Spenkelink “was previously convicted of a felony involving the use, or threat of violence to another, to-wit: armed robbery,” and that Spenkelink committed the crime while “under sentence of imprisonment: mitigating circumstance found by the trial court was “that possibly the defendant was under the influence of extreme mental or emotional disturbance,” a consideration which, “based on the record as a whole,” the court did not regard “as a substantial factor.” See Fla.Stat.Ann. §§ 921.141(5), (6). The Supreme Court of Florida affirmed both the conviction and sentence. Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). With respect to the sentence of death, the Florida Supreme Court stated: The only As more fully set out above the record shows this crime to be premeditated, especially cruel, atrocious, and heinous and in connection with robbery of the victim to secure return of money claimed by Appellant. The aggravating circumstances justify imposition of the death sentence. Both Appellant and his victim were career criminals and Appellant showed no mitigating factors to require a more lenient sentence. 313 So.2d at 671. The United States Supreme Court denied certiorari. Spenkelink v. Florida, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The petitioner next sought executive clemency. Article IV, section 8(a) of the Florida Constitution provides that the governor of Florida, with the approval of three members of the cabinet, may commute punishment. Pursuant to rules adopted by the governor and the cabinet regarding executive clemency, Spenkelink appeared first before the Florida Parole and Probation Commission, which recommended to the governor that clemency be denied. Counsel for Spenkelink and for the State then appeared before the governor and cabinet to argue the clemency issue. On September 12, 1977, the governor denied clemency and signed a death warrant setting Spenkelink’s electrocution for 8:30 a. m. on September 19, 1977. On September 13, the petitioner, pursuant to Fla.R.Crim.P. 3.850, filed a motion to vacate, set aside or correct sentence in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. The motion was dismissed and the Supreme Court of Florida affirmed. Spenkelink v. State, 350 So.2d 85 (Fla.1977). The United States Supreme Court denied certiorari. Spenkelink v. Florida, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). B. Federal Court Proceedings Having exhausted his state court remedies, Spenkelink turned to federal court. On September 14 he filed a petition for habeas corpus, 28 U.S.C. § 2254, in the United States District Court for the Middle District of Florida, which transferred the case to the Northern District of Florida. Judge William Stafford of the Northern District stayed the execution and scheduled an evidentiary hearing for September 21. At that time a hearing was held, which began during late morning and lasted into the evening, and which produced over 300 pages of testimony. On September 23 the district court dismissed the petition and ordered that the stay of execution expire at noon on September 30. The district court also granted Spenkelink a certificate of probable cause to appeal, pursuant to 28 U.S.C. § 2253. This Court then stayed the execution pending further order. II. The Petitioner’s Contentions On appeal Spenkelink urges three general contentions through which he asserts the contentions in his habeas corpus petition. First, he contends that the district court erroneously denied him the right to submit evidence during the evidentiary hearing on some of the contentions in his petition, which the district court found to “have been authoritatively disposed of by the United States Supreme Court.” Second, he contends that the district court erroneously denied his motion for a continuance and therefore denied him an adequate opportunity to present evidence during the eviden-tiary hearing on other contentions in his petition. Third, he asserts that the district court erroneously ruled against him on the merits of several of the contentions in his petition. In support of his contentions that the trial court erred in not holding an evidentiary hearing on some of his claims and that the trial court held an inadequate hearing on others, the petitioner points to Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), where the Supreme Court set forth the circumstances under which a federal district court must hold an evidentiary hearing on allegations in a habeas corpus petition. The requirements of Townsend as to when a hearing must be held are now codified in 28 U.S.C. § 2254. When, however, it affirmatively appears from the petition that a petitioner is not entitled to the writ, an evidentiary hearing is unnecessary. Guillory v. Allgood, 5 Cir., 1967, 379 F.2d 273, 274. See also Coco v. United States, 5 Cir., 1978, 569 F.2d 367, 369. For example, if a petitioner’s habeas corpus allegations raise legal questions only, a district court’s refusal to hold an evidentiary hearing does not violate the directives of Townsend or Section 2254(d). Anderson v. Maggio, 5 Cir., 1977, 555 F.2d 447, 453. This rule would also apply when a trial court holds an inadequate evidentiary hearing, for if only questions of law áre involved, an evidentiary hearing to develop fully the facts underlying a petitioner’s complaints would be pointless. This Court views those of Spen-kelink’s contentions on which the trial court did not conduct a hearing and those on which the court conducted an allegedly inadequate hearing as containing legal questions only. We assume for the sake of argument that the factual allegations underlying these contentions are true, because, even if they are, the petitioner cannot prevail on them as a matter of law for reasons soon to be discussed. Accordingly, the trial court did not err in its conduct with respect to the evidentiary hearing. With this procedural question behind us, we turn to the substantive contentions urged in the petition for habeas corpus. A. Exclusion of Veniremen Spenkelink contends first that at his trial the exclusion for cause of two veniremen who had conscientious scruples against the death penalty (1) violated the requirements of the Sixth and Fourteenth Amendments set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), (2) violated his right under the Sixth and Fourteenth Amendments to trial by an impartial jury, (3) violated his rights under the Sixth and Fourteenth Amendments to trial by a jury selected from a representative cross-section of the community, and (4) subjected him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. During the voir dire examination of the jury, counsel for Spenkelink contemporaneously objected to the exclusion for cause of the two veniremen in question. His counsel did not, however, raise any of these contentions regarding the veniremen’s exclusion on direct appeal to the Florida Supreme Court. Additionally, although a court reporter recorded the voir dire testimony, neither Spenkelink nor his trial attorney requested the court reporter to transcribe it, and his trial attorney even expressly excluded the voir dire examination from testimony designated to be transcribed for the appellate record. The Florida Supreme Court on collateral review, Spenkelink v. State, supra, and the district court below, both relying on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), found that Spenkelink had waived his contentions regarding the exclusion of the two veniremen. In Wainwright v. Sykes, supra, the United States Supreme Court held that a defendant who did not contemporaneously object, and whose attorney did not contemporaneously object, during the defendant’s state trial to the involuntariness of the defendant’s confession waived his objection- and could not thereafter raise the issue on federal habeas corpus review. Justice Rehnquist, writing for the majority, stated: We therefore conclude that Florida procedure did, consistently with the United States Constitution, require that petitioner’s confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). We thus come to the crux of this ease. Shall the rule of Francis v. Henderson, supra [425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149] barring federal habeas review absent a showing of “cause” and “prejudice” attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial? We answer that question in the affirmative. 433 U.S. at 86, 97 S.Ct. at 2506. The Supreme Court made clear that federal habeas corpus review would not be barred if a defendant could show actual “prejudice” from or “cause” for his failure to follow the state procedural rule. Id. See Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, 1711, 48 L.Ed.2d 149 (1976). As to whether the defendant in Wainwright v. Sykes had shown cause or prejudice, the Court stated that “[wjhatever precise content may be given those terms by later cases, we feel confident in holding without further elaboration that they do not exist here.” 433 U.S. at 91, 97 S.Ct. at 2508. Compare Sincox v. United States, 5 Cir., 1978, 571 F.2d 876; Jiminez v. Estelle, 5 Cir., 1977, 557 F.2d 506. Whether Spenkelink’s procedural default actually falls within the ambit of Wainwright v. Sykes, supra, and, concomitantly, whether sufficient cause or prejudice exists in this case so as not to bar federal habeas corpus review, are difficult questions on which we need not pass. Spenkelink’s contentions regarding the exclusion of the two veniremen must fail on their merits as a matter of law for reasons to be discussed; the petitioner thus is not entitled to relief on the basis of these contentions even if Wainwright v. Sykes does not prevent him from raising them. Therefore, we proceed to a consideration of the merits of the contentions themselves. 1. In Witherspoon v. Illinois, supra, the Supreme Court held that the jury impartiality to which a criminal defendant is entitled under the Sixth and Fourteenth Amendments precludes a state from executing a person if the jury that imposed or recommended the death penalty “was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 391 U.S. at 518, 522, 88 S.Ct. at 1775, 1777. It cannot be assumed, the Court stated, that such veniremen will never vote in favor of the death penalty or would not consider doing so in the case from which they were excluded. Consequently, to exclude them for cause results in the selection of “a tribunal organized to return a verdict of death.” 391 U.S. at 515 n. 9, 521, 88 S.Ct. 1773 n. 9, 1776. Only when a venireman is “irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings” can he be struck for cause. 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21. The Witherspoon Court more carefully defined its holding through a paragraph in footnote 21 of its opinion: We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case. Id. [emphasis in original] The transcript of the voir dire examination of the two excluded veniremen is set forth in Appendix A. A reading of the transcript demonstrates that both veniremen stated unambiguously that they could fairly judge Spenkelink’s guilt or innocence. However, both veniremen also made it “unmistakably clear . . . that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.” Id. In response to the question “[W]ould you automatically vote against the imposition of capital punishment without regard to the evidence?”, venireman Ferrell stated, “Capital punishment, yes.” In response to the same question venireman Colson replied, “I would.” The record could not be clearer. The veniremen were properly excluded for cause and there was no Witherspoon violation. See, e. g., Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Note, Jury Selection and the Death Penalty: Witherspoon in the Lower Courts, 37 U.Chi.L.Rev. 759, 762-63 (1970). 2. The petitioner's second argument is that even if the two veniremen were properly excluded for cause under Witherspoon from recommending his sentence, their exclusion for cause still violated his right under the Sixth and Fourteenth Amendments to trial by an impartial jury, because the exclusion of the two veniremen resulted in the selection of a “death-qualified” jury that was “prosecution-prone” with respect to the question of guilt or innocence. Spenkelink acknowledges that this contention was submitted to the Supreme Court in Wither-spoon and that the Court expressly declined to embrace it, stating: We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. Witherspoon v. Illinois, supra, 391 U.S. at 518, 88 S.Ct. at 1774-75. Spenkelink suggests nonetheless that if this Court will remand his case for an additional evidentia-ry hearing, he will develop a more complete record than the one before the Supreme Court in Witherspoon and prove the contention. The petitioner complains of jury partiality. He alleges that the exclusion for cause of the two veniremen resulted in a “death-qualified” jury that was “prosecution-prone." From this he concludes, by implication, that a nondeath-qualified jury — in this case a jury which includes the two excluded veniremen — would be impartial with respect to the question of guilt or innocence. This is not necessarily so. When the petitioner asserts that a death-qualified jury is prosecution-prone, he means that a death-qualified jury is more likely to convict than a nondeath-qualified jury. Proof that this proposition is true is far from conclusive, but for the moment we will assume its validity. Even if it is true, the petitioner’s contention still must fail. That a death-qualified jury is more likely to convict than a nondeath-qualified jury does not demonstrate which jury is impartial. It indicates only that a death-qualified jury might favor the prosecution and that a nondeath-qualified jury might favor the defendant. The pivotal question, therefore, is which appearance most closely reflects reality. In the instant ease a reading of the transcript of the voir dire examination demonstrates that those veniremen who were chosen to be jurors in no way indicated that they were biased for the prosecution or against the defendant. None of the veniremen indicated, for example, that he had a preconceived opinion as to the petitioner’s guilt or innocence, compare Williams v. Wainwright, 5 Cir., 1970, 427 F.2d 921, 924, modified, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972), or that he believed it would be his duty in every case to recommend that the trial court sentence a defendant found guilty of first degree murder to capital punishment. Compare Stroud v. United States, 251 U.S. 15, 20-21, 40 S.Ct. 50, 52, 64 L.Ed. 103 (1919); Crawford v. Bounds, 4 Cir., 1968, 395 F.2d 297, 301-04, cert. denied, 397 U.S. 936, 90 S.Ct. 941, 25 L.Ed.2d 117 (1970); United States v. Puff, 2 Cir., 211 F.2d 171, 184, cert. denied, 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106 (1954). Had a venireman expressed either attitude, he could appropriately be described as prosecution-prone and would properly have been struck for cause. E. g., Witherspoon v. Illinois, supra, 391 U.S. at 521, 88 S.Ct. at 1776; Fay v. People of State of New York, 332 U.S. 261, 294, 67 S.Ct. 1613, 1630, 91 L.Ed. 2043 (1947); Glasser v. United States, 315 U.S. 60, 83-87, 62 S.Ct. 457, 471-72, 86 L.Ed. 680 (1942); Stroud v. United States, supra, 251 U.S. at 20-21, 40 S.Ct. at 52; Williams v. Wainwright, supra, 427 F.2d at 923-24; Crawford v. Bounds, supra, 395 F.2d at 303-04; United States v. Puff, supra, 211 F.2d at 184; Fla.R.Crim.P. 3.330, 3.340. Instead, the veniremen chosen to be jurors indicated only that they had no conscientious scruples against the death penalty and that in a proper case they would recommend capital punishment which, as the Supreme Court made clear in, e. g., Proffitt v. Florida, supra, and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), is constitutional if administered through a properly drawn statute. In other words, the veniremen indicated only that they would be willing to perform their civic obligation as jurors and obey the law. Such persons cannot accurately be branded prosecution-prone. Consider in this regard the comments of the late Judge Prettyman of the D.C. Circuit: [O]ur own inquiry has brought to our attention another thesis in this area of the law. It is that persons who are not opposed to capital punishment are psychologically inclined against criminals and therefore a jury composed of such persons is not an impartial jury. We understand that this thesis has not as yet received the sanction of any court. We cannot accept it. We examine it because this is a serious case, and if the thesis were tenable it might cause reversal. No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not opposed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. We think the premise for the thesis has no substance. Tuberville v. United States, supra, 112 U.S. App.D.C. at 409, 303 F.2d at 420-21. See Pope v. United States, 8 Cir., 1967, 372 F.2d 710, 724-25, vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); United States v. Puff, supra, 211 F.2d at 184-85. See also Witherspoon v. Illinois, supra, 391 U.S. at 520, 88 S.Ct. at 1776; Clarke v. Grimes, 5 Cir., 1967, 374 F.2d 550, 552. The two excluded veniremen, on the other hand, stated that they would automatically vote against imposition of the death penalty regardless of any evidence that might be developed at trial. They also represented that they would fairly judge the petitioner’s guilt or innocence. The state trial court, nonetheless, struck them for cause, thus excluding them completely from the trial. We find nothing constitutionally impermissible by a state following such a procedure. Florida apparently has concluded that, if for whatever noble reason — religious conviction, philosophical posture, intellectual stance, or some other reason — a venireman clings so steadfastly to the belief that capital punishment is wrong that he would never under any circumstances agree to recommend the sentence of death, it is entirely possible — perhaps even probable — that such a venireman could not fairly judge a defendant’s guilt or innocence when a capital felony is charged. Suppose, for example, that the evidence at trial proved the defendant’s guilt beyond a reasonable doubt and demonstrated, within the meaning of the Florida death penalty statute, that capital punishment could be warranted. A juror who had such deeply-seated conscientious scruples against the death penalty might find himself confronting a grisly choice. If, because of his scruples, he votes to acquit, he must risk hanging the jury. Similarly motivated votes by other jurors in subsequent trials and retrials could, in effect, result in near immunity from crimes for which the death penalty can be imposed, which would frustrate Florida’s interest in the just and evenhanded application of its laws, including its death penalty statute. If the juror votes to convict, he must risk betrayal of his principles should the death penalty eventually be imposed. Even under Florida’s bifurcated trial procedure in these cases, the situation would be no less problematic. Although the juror could be excused from the jury during the sentencing phase of the trial, during the guilt-determination phase he still would know that a vote to convict could eventually mean the death penalty, a result to which he would have contributed, if only indirectly. His choices as to how to vote on the defendant’s guilt or innocence would remain equally troublesome. The right under the- Sixth and Fourteenth Amendments to trial by a jury guarantees to the criminally accused “a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, supra, 366 U.S. at 722, 81 S.Ct. at 1642. Accord, e. g., Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). But the state also enjoys the right to an impartial jury, Williams v. Wainwright, supra, 427 F.2d at 923, and impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887). See Comment, 21 Vand.L.Bev. 864, 865 (1968). Florida has reasoned that a person may so cherish his conscientious scruples against the death penalty that he would favor the acquittal of a defendant charged with a capital felony. This is not, of course, necessarily true of all persons who would refuse under any circumstances to recommend death. Some such veniremen might be able to subordinate their personal views to their duty to abide by their oaths as jurors and to obey the law of Florida. Witherspoon v. Illinois, supra, 391 U.S. at 514 n. 7, 88 S.Ct. at 1773 n. 7, and cases cited therein. Florida, however, has determined that even though a venireman states he can fairly judge guilt or innocence, if he also states that he is irrevocably committed before the trial has begun to vote against the penalty of death, regardless of the facts and circumstances that might emerge at trial, he must be excluded completely. The state has decided that the parties’ right under the Sixth and Fourteenth Amendments to an impartial trial and the state’s interest in the just and evenhanded application of its laws, including Florida’s death penalty statute, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. The Constitution does not prohibit this judgment. See Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429 (1892); Pope v. United States, supra, 372 F.2d at 724-25; Tur-berville v. United States, supra, 112 U.S. App.D.C. 407-10, 303 F.2d at 418-21; United States v. Puff, supra, 211 F.2d at 182-86. See also Witherspoon v. Illinois, supra, 391 U.S. at 520, 88 S.Ct. at 1776. But see Crawford v. Bounds, supra. The jury that emerges after excluding such veniremen, having been carefully examined to exclude also for cause those veniremen who are biased against the defendant, either as to guilt or as to punishment, is impartial. To call it prosecution-prone is to misunderstand the meaning of impartiality. Accordingly, the petitioner’s contention is without merit. 3. Spenkelink’s third contention is that the exclusion for cause of the two veniremen violated his right under the sixth and fourteenth amendments to trial by a jury selected from a representative cross-section of the community. Similarly, he contends also that the exclusion for cause of the two veniremen violated Fourteenth Amendment equal protection and due process. For reasons already detailed, the petitioner’s contentions must be rejected. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court struck down as unconstitutional Louisiana’s jury selection process whereby women, who represented 53 per cent of the eligible jurors in the parishes in question, had to register in order to be called for jury duty, a requirement that systematically excluded- most eligible women from the jury venire. The Court held that such a jury selection system violated the criminal defendant's right under the Sixth and Fourteenth Amendments to trial by a jury selected from a representative cross-section of the community, which is “an essential component” of the fundamental right under the Sixth Amendment to trial by a jury in non-petty criminal cases. 419 U.S. at 525-26, 528, 530-31, 537-38, 95 S.Ct. at 695, 697-98, 701-02. See Duncan v. Louisiana, supra. As justification for its exclusion of women, Louisiana argued “that women as a class serve a distinctive role in society” as the center of home and family life and “that jury service would . . . substantially interfere with that function.” 419 U.S. at 533, 534 n. 15, 535 n. 17, 95 S.Ct. at 699 & n. 15, 700 n. 17. To this argument the Court responded: The right to a proper jury cannot be overcome on merely rational grounds. There must be weightier reasons if a distinctive class representing 53% of the eligible jurors is for all practical purposes to be excluded from jury service. No such balance has been tendered here. 419 U.S. at 534, 95 S.Ct. at 699-700. Assuming for the moment that veniremen who are properly excluded under Witherspoon because they would automatically vote against the death penalty no matter what evidence was proved at trial constitute a “distinctive class,” cf. Witherspoon v. Illinois, supra, 391 U.S. at 519-20, 88 S.Ct. at 1775-76, we believe that Florida in the instant case has satisfactorily shown the “weightier reasons” required by the Supreme Court in Taylor for the exclusion of such veniremen. See generally Ballew v. Georgia, supra; Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). As we have already noted, Florida has reached the reasoned determination that the parties’ right under the sixth and fourteenth amendments to an impartial jury and the state’s interest in the just and evenhanded application of its laws, including Florida’s death penalty statute, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. As the petitioner in his brief concedes, a defendant would be unjustified in objecting, for instance, to the exclusion for cause of a class composed of veniremen who are related to him, even if the veniremen stated they could impartially judge his guilt or innocence, because the chance that such veniremen would be biased in favor of the defendant is too great. Petitioner’s Brief at 57. Such danger is no less real when the excluded class is those veniremen properly struck under Witherspoon because of their conscientious scruples against capital punishment. The exclusion of such veniremen, therefore, does not violate the representative cross-section requirement of the Sixth and Fourteenth Amendments. See Brown v. Allen, 344 U.S. 443, 467-74, 73 S.Ct. 397, 412-16, 97 L.Ed. 469 (1953); United States v. Gordon-Nikkar, 5 Cir., 1975, 518 F.2d 972; Pope v. United States, supra, 372 F.2d at 724-25; Turberville v. United States, supra, 112 U.S. App.D.C. 407-10, 303 F.2d at 418-21; United States v. Puff, supra, 211 F.2d at ISO-186. Compare Glasser v. United States, supra, 315 U.S. at 83-87, 62 S.Ct. at 471-72; Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967). 4. The petitioner’s final contention with regard to the exclusion of the two veniremen is that their exclusion for cause resulted in the selection of a jury that was incapable of “ ‘maintaining] a link between contemporary community values and the penal system,’ ” Woodson v. North Carolina, 428 U.S. 280, 295, 96 S.Ct. 2978, 2987, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), quoting Wither-spoon v. Illinois, supra, 391 U.S. at 519 n.15, 88 S.Ct. at 1775 n.15, which thus subjected him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Spenkelink points to Wood-son, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and Gregg v. Georgia, supra, in which the Court held, as it did in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Proffitt v. Florida, supra, that capital punishment, if imposed through a properly drawn statute by a properly guided sentencing body, does not constitute cruel and unusual punishment, and contends that the Court in those decisions “relied upon the notion that juries’ reflections of enduring community attitudes in regard to the propriety of capital punishment would keep infliction of the death penalty in line with the enduring standards of decency which are the measure of the Eighth Amendment.” Petitioner’s Brief at 58-59. See Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion) (“The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”) According to Spenkelink, the exclusion of the two veniremen who were irrevocably against capital punishment under all circumstances resulted in the selection of a jury that did not reflect the full panoply of these “enduring community attitudes” about capital punishment, a deficiency that allegedly violates the Eighth Amendment’s ban against cruel and unusual punishment as interpreted in Woodson, Roberts, and Gregg, as well as in Jurek and Proffitt. This is so, says the petitioner, even if the veniremen were properly excluded under the Witherspoon rationale. We have carefully reviewed the Supreme Court’s pronouncements in all five of these decisions and find no support for the petitioner’s contention. While the Court in these decisions indicated its approval of properly guided jury participation in the capital punishment sentencing process, see, e. g., Roberts v. Louisiana, supra, 428 U.S. at 335, 96 S.Ct. at 3007 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, supra, 428 U.S. at 302, 96 S.Ct. at 2990 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, supra, 428 U.S. at 269-75, 96 S.Ct. at 2955-57 (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, supra, 428 U.S. at 253, 96 S.Ct. at 2966 (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, supra, 428 U.S. at 188-98, 96 S.Ct. at 2932-36 (opinion of Stewart, Powell, and Stevens, JJ.), nowhere in the cited cases did the Court allude to the question of appropriate jury composition in the context of the Eighth and Fourteenth Amendments, much less address the specific contention raised here by the petitioner. In any event, as has already been demonstrated, the jury composition in the instant case was constitutional. Accordingly, the contention is without merit. B. The Florida Death Penalty Statute Spenkelink’s next series of contentions are directed against the Florida death penalty statute, Fla.Stat.Ann. § 921.141. The petitioner attacks the statute as applied, pointing out that the United States Supreme Court’s comprehensive review of the statute in Proffitt v. Florida, supra, resulted only in a declaration that Section 921.141 was constitutional on its face. Specifically, Spenkelink contends (1) that the death penalty under Section 921.141 is being applied arbitrarily, capriciously, excessively, and disproportionately in violation of the Eighth and Fourteenth Amendments, (2) that the death penalty under Section 921.141 is being systematically administered so as to induce guilty pleas from defendants charged with capital felonies, which allegedly penalizes these defendants’ exercise of their right under the Fifth and Fourteenth Amendments to plead not guilty, (3) that Section 921.141 contains unreliable procedures and standards for determining aggravating circumstances in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, (4) that the death penalty under Section 921.-141 is being applied in a discriminatory fashion against defendants convicted of murdering whites, as opposed to blacks, in violation of the Eighth and Fourteenth Amendments and in violation of Fourteenth Amendment equal protection, (5) that electrocution, which is Florida’s method of carrying out a sentence of capital punishment, is unnecessarily torturous and wantonly cruel in violation of the Eighth and Fourteenth Amendments, and (6) that the death penalty under Section 921.141 is being applied in a discriminatory fashion against males and poor persons in violation of Fourteenth Amendment equal protection. 1. In his first contention the petitioner charges that the death penalty under Section 921.141 is being applied arbitrarily and capriciously, as well as excessively and disproportionately, in violation of the prohibition against cruel and unusual punishment in the eighth and fourteenth amendments. Spenkelink points to his own case as evidence of these allegations, contending that “it is apparent that virtually every death sentence reversed by the Florida Supreme Court has involved a more gruesome set 'of facts than the instant case.” Petitioner’s Brief at 37. He contends further that “[i]f the homicide in this case occurred today, it is inconceivable that [he] would be sentenced to death, for a plethora of Florida cases — all decided after Spinkelink — indicate that this sort of homicide is not deemed sufficiently heinous in Florida to merit the penalty of death.” Id. at 40. The Florida Legislature enacted Section 921.141 at least in part as a response to Furman v. Georgia, supra. In Furman the Supreme Court held that statutes which grant a jury unbridled discretion in the imposition of the death penalty allow the penalty to be imposed arbitrarily and capriciously, thus violating the ban under the eighth and fourteenth amendments against cruel and unusual punishment. Furman was a 5-4 per curiam decision with each Justice writing a separate opinion in which none of the others joined. Justices Douglas, Brennan, Stewart, White, and Marshall were in the majority, while Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist dissented. Of those in the majority, only Justices Brennan and Marshall found the death penalty unconstitutional per se. 408 U.S. at 370-71, 92 S.Ct. at 2793-94 (Marshall, J., concurring); 408 U.S. at 305-06, 92 S.Ct. at 2760 (Brennan, J., concurring). Justice Douglas, on the other hand, emphasized that standardless capital punishment statutes allow the death penalty to be inflicted in a discriminatory fashion; as he put it, such statutes “are pregnant with discrimination.” 408 U.S. at 257, 92 S.Ct. at 2735 (Douglas, J., concurring). Justice White stressed that discretionary statutes result in the death penalty being extracted so infrequently, even for the most atrocious crimes, “that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not,” which causes the penalty to lose its deterrent effect. 408 U.S. at 312-13, 92 S.Ct. at 2764 (White, J., concurring). Justice Stewart felt that such statutes allow the death penalty to be applied “wantonly” and “freakishly” to “a capriciously selected random handful.” 408 U.S. at 309-10, 92 S.Ct. at 2762-63 (Stewart, J., concurring). See The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 63 & n.3 (1976). Fur-man, then, did not hold that imposition of the death penalty per se violates the Constitution, but only that the manner in which it was being imposed — arbitrarily and capriciously — was unconstitutional. See, e. g., Roberts v. Louisiana, supra, 428 U.S. at 335, 92 S.Ct. at 3007 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, supra, 428 U.S. at 302, 96 S.Ct. at 2990 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, supra, 428 U.S. at 276, 96 S.Ct. at 2958 (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Georgia, supra, 428 U.S. at 259, 96 S.Ct. at 2970 (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. at 2932 (opinion of Stewart, Powell, and Stevens, JJ.) That was 1972. In 1976 the Court returned to the subject of capital punishment in Roberts v. Louisiana, supra; Woodson v. North Carolina, supra; Jurek v. Texas, supra; Proffitt v. Florida, supra; and Gregg v. Georgia, supra. In Gregg, Proffitt, and Jurek the Court found constitutional, in light of Furman, death penalty statutes that articulated standards in the form of aggravating and mitigating circumstances concerning the nature of the crime as well as the nature of the criminal, which judges and juries were to follow in exercising their discretion as to which convicted murderers were to die for their crimes and which were to receive life sentences. In Woodson and Roberts the Court struck down statutes that made the death penalty mandatory for the commission of certain crimes; such statutes, stated the Court, necessarily run afoul of Furman’s proscription of unbridled jury discretion in the imposition of capital punishment. The Florida statute held constitutional in Proffitt v. Florida, supra, was Section 921.-141, the identical statute the petitioner challenges in the case at hand. See also State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974) (Section 921.141 held constitutional by Florida Supreme Court). Although the Court in Proffitt indicated that its concern was with the constitutionality of the statute on its face, 428 U.S. at 251-54, 96 S.Ct. at 2966-67 (opinion of Stewart, Powell, and Stevens, JJ.), we find quite instructive certain Proffitt passages in considering Spenkelink’s contention that the death penalty under Section 921.141 is now being applied arbitrarily, capriciously, excessively, and disproportionately. In Proffitt the Court stated: The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida’s appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida “to determine independently whether the imposition of the ultimate penalty is warranted.” Songer v. State, 322 So.2d 481, 484 (Fla.1975). See also Sullivan v. State, 303 So.2d 632, 637 (Fla.1974). The Supreme Court of Florida, like that of Georgia, has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. Indeed, it has vacated eight of the 21 death sentences that it has reviewed to date. See Taylor v. State, 294 So.2d 648 (Fla.1974); Lamadline v. State, 303 So.2d 17 (Fla.1974); Slater v. State, 316 So.2d 539 (Fla.1974); Swan v. State, 322 So.2d 485 (Fla.1975); Tedder v. State, 322 So.2d 908 (Fla.1975); Halliwell v. State, 323 So.2d 557 (Fla.1975); Thompson v. State, 328 So.2d 1 (Fla. 1976); Messer v. State, 330 So.2d 137 (Fla.1976). Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentence imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is “ ‘no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases where it is not.’ ” Gregg v. Georgia, ante, 428 U.S. p. 188, 96 S.Ct. p. 2932, quoting Furman v. Georgia, 408 U.S., at 313, 92 S.Ct., at 2764 (White, J., concurring). On its face the Florida system thus satisfies the constitutional deficiencies identified in Fur-man. 428 U.S. at 253, 96 S.Ct. at 2967 (opinion of Stewart, Powell, and Stevens, JJ.). Later the Court added: Nonetheless the petitioner attacks the Florida appellate review process because the role of the Supreme Court of Florida in reviewing death sentences is necessarily subjective and unpredictable. While it may be true that that Court has not chosen to formulate a rigid objective test as its standard of review for all cases, it does not follow that the appellate review process is ineffective or arbitrary. In fact, it is apparent that the Florida Court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. See, e. g., Alford v. State, 307 So.2d 433, 445 (Fla.1975); Alvord v. State, 322 So.2d 533, 540-541 (Fla.1975). By following this procedure the Florida Court has in effect adopted the type of proportionality review mandated by the Georgia statute. Cf. Gregg v. Georgia, ante, 428 U.S. 204, 206, 96 S.Ct. pp. 2939-2941. And any suggestion that the Florida Court engages in only cursory or rubber stamp review of death penalty cases is totally controverted by the fact that it has vacated over one-third of the death sentences that have come before it. See p. 2967, supra. 428 U.S. at 258, 96 S.Ct. at 2969-70 (opinion of Stewart, Powell, and Stevens, JJ.). Finally, in responding to the argument that Section 921.141’s eighth aggravating circumstance was unconstitutionally vague and overbroad, the Court in Proffitt even mentioned the case of petitioner Spenkel-ink: The Supreme Court of Florida has affirmed death sentences in several cases, including the instant case, where this eighth statutory aggravating factor was found, without specifically stating that the homicide was “pitiless” or “torturous to the victim.” See, e. g., Hallman v. State, 305 So.2d 180 (1974) (victim’s throat slit with broken bottle); Spinkel-link v. State, 313 So.2d 666 (1975) (“career criminal” shot sleeping traveling companion); Gardner v. State, 313 So.2d 675 (1975) (brutal beating and murder); Alvord v. State, 322 So.2d 533 (1975) (three women killed by strangulation, one raped); Douglas v. State, 328 So.2d 18 (1976) (depraved murder); Henry v. State, 328 So.2d 430 (1976) (torture murder); Dobbert v. State, 328 So.2d 433 (1976) (torture and killing of two children). But the circumstances of all of these cases could accurately be characterized as “pitiless” and “unnecessarily torturous,” and it thus does not appear that Florida Court has abandoned the definition that it announced in Dixon and applied in Alford, Tedder, and Halliwell. 428 U.S. at 255 n. 12, 96 S.Ct. at 2968 n. 12 (opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added). Nonetheless, Spenkelink contends that his crime, in comparison to the crimes in other Florida death penalty cases, was insufficiently gruesome or heinous to warrant the death penalty. In this regard, the district court stated: Petitioner next claims that the death penalty is being imposed in an arbitrary, capricious, and irrational manner. In support of this contention petitioner points to other cases in which the Florida Supreme Court has commuted death sentences to life imprisonment and claims that his case is no worse than the majority of these and cannot, therefore, be reconciled with them. As the court noted at the beginning of the September 21 hearing, this line of inquiry has apparently been foreclosed by the decision rendered in Proffitt v. Florida, 428 U.S. 242, [96 S.Ct. 2960, 49 L.Ed.2d 913] (1976) . . . Even if this issue had not been previously decided by the United States Supreme Court, petitioner has shown no basis to conclude that the Florida Supreme Court has failed to discharge its statutory duties responsibly. This court has considered the other death cases decided by the Florida Supreme Court and has compared the facts involved in those cases with the facts of petitioner’s crime. In those instances where a sentence of death has been reversed by the Florida court, there appear significant mitigating circumstances that serve to fairly distinguish those cases from petitioner’s. Thus, the petitioner has not shown anything to indicate that the death penalty has been imposed by the Florida judicial system in an irrational, arbitrary or capricious fashion, and the petitioner cannot prevail on this point. It was not necessary for the district court to undertake such a case-by-case comparison. This conclusion rests upon which we believe the Supreme Court meant in Prof-fitt when it found Section 921.141 constitutional “on its face.” The Court used the expression only twice. On the first occasion the Court stated that “[o]n their face these procedures [provided for in Section 921.141], like .those used in Georgia, appear to meet the constitutional deficiencies identified in Furman.” 428 U.S. at 251, 96 S.Ct. at 2966 (opinion of Stewart, Powell, and Stevens, JJ.). On the second occasion the Court stated that “[o]n its face the Florida system thus satisfies the constitutional deficiencies identified in Furman.” 428 U.S. at 253, 96 S.Ct. at 2967 (opinion of Stewart, Powell, and Stevens, JJ.). The second quotation implies that on its face Section 921.-141 conclusively removes the arbitrariness and capriciousness which Furman held vio-lative of the Eighth and Fourteenth Amendments. If this is so, our concern here in this attack on Section 921.141 as applied would be whether the Florida courts have followed the statute in imposing Spenkel-ink’s death sentence, and a comparison of Spenkelink’s case with other Florida death penalty cases would be unnecessary. The first quotation, on the other hand, implies that Section 921.141 only potentially satisfies Furman’s concern for arbitrariness and capriciousness. If this is so, our task in the instant case would be to compare Spenkel-ink’s case with all other Florida death penalty cases in order to determine if Spenkei-ink was sentenced to death when other convicted murders, equally or more deserving to die, were given life imprisonment. If this latter interpretation is the correct reading of Proffitt, serious problems arise. First, every criminal defendant sentenced to death under Section 921.141 could through federal habeas corpus proceedings attack the statute as applied by alleging that other convicted murderers, equally or more deserving to die, had been spared, and thus that the death penalty was being applied arbitrarily and capriciously, as evidenced by his own case. The federal courts then would be compelled continuously to question every substantive decision of the Florida criminal justice system with regard to the imposition of the death penalty. The intrusion would not be limited to the Florida Supreme Court. It would be necessary also, in order to review properly the Florida Supreme Court’s decisions, to review the determinations of the trial courts. And in order to review properly those determinations, a careful examination of every trial record would be in order. A thorough review would necessitate looking behind the decisions of jurors and prosecutors, as well. Additionally, unsuccessful litigants could, before their sentences were carried out, challenge their sentences again and again as each later-convicted murderer was given life imprisonment, because the circumstances of each additional defendant so sentenced would become additional factors to be considered. The process would be never-ending and the benchmark for comparison would be chronically undefined. Further, there is no reason to believe that the federal judiciary can render better justice. As the Florida Supreme Court itself so candidly admits, see Provence v. State, supra, 337 So.2d at 787, reasonable persons can differ over the fate of every criminal defendant in every death penalty case. If the federal courts retried again and again the aggravating and mitigating circumstances in each of these cases, we may at times reach results different from those reached in the Florida state courts, but our conclusions would be no more, nor no less, accurate. Such is the human condition. Cf. Stone v. Powell, 428 U.S. 465, 493 n. 35, 96 S.Ct. 3037, 3051-3052 n. 35, 49 L.Ed.2d 1067 (1976) (condemning the respondents’ “basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights.”). The Supreme Court in Proffitt, or in Furman, Gregg, Jurek, Woodson, or Roberts, could not have intended these results. We understand these decisions to hold that capital punishment is not unconstitutional per se, and that a state, if it chooses, can punish murderers and seek to protect its citizenry by imposing the death penalty — so long as it does so through a statute with appropriate standards to guide discretion. If a state has such a properly drawn statute — and there can be no doubt that Florida has — -which the state follows in determining which convicted defendants receive the death penalty and which receive life imprisonment, then the arbitrariness and capriciousness condemned in Furman have been conclusively removed. For us to read these cases otherwise would thrust this Court and the district courts into the substantive decision making of the state court sentencing process which is rightfully reserved to the Florida state judiciary under Section 921.141. Under the Constitution, as well as fundamental notions of federalism and comity, that is not the role of the federal courts. Cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). A review of the record demonstrates dramatically that the Florida state trial court and the Florida Supreme Court performed their unenviable duty of sentencing Spenkelink under Section 921.141 with care and concern. Our inquiry must end there. As for Spenkelink’s contention that this Court should go further, we think the remarks of Justice White in his concurring opinion in Gregg v. Georgia, supra, 428 U.S. at 226, 96 S.Ct. at 2949 (White, J., concurring), are responsive: Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment a lesser penalty or are acquitted or never charged seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued in effect that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner. The petitioner’s contention is without merit. 2. In his second contention Spenkelink asserts that the death penalty under Section 921.141 is being systematically administered so as to induce guilty pleas from defendants charged with capital felonies, which allegedly penalizes exercise by these defendant? of their right under the fifth and fourteenth amendments to plead not guilty. According to the petitioner, this has the same effect as the federal statute condemned in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 128 (1968), and thus is unconstitutional. Succinctly stated, Spenkelink complains of abuse of discretion. Charles William Proffitt and Troy Gregg had similar complaints. In Proffitt v. Florida, supra, 428 U.S. 254, 96 S.Ct. at 2967 (opinion of Stewart, Powell, and Stevens, JJ.), the Supreme Court responded: The petitioner first argues that arbitrariness is inherent in the Florida criminal justice system because it allows discretion to be exercised at each stage of a criminal proceeding — the prosecutor’s decision whether to charge a capital offense in the first place, his decision whether to accept a plea to a lesser offense, the jury’s consideration of lesser included offenses, and, after conviction and unsuccessful appeal, the Executive’s decision whether to commute a death sentence. As we noted in Gregg, this argument is based on a fundamental misinterpretation of Furman, and we reject it for the reasons expressed in Gregg. See ante, p. 2937. In Gregg v. Georgia, supra, 428 U.S. at 199, 96 S.Ct. at 2937 (opinion of Stewart, Powell, and Stevens, JJ.), the Court stated: First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles. The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the deat