In the case of Cabana, Superintendent, Mississippi State Penitentiary, et al. v. Bullock (1985), the U.S Supreme Court ruled that a death sentence could not be imposed unless it was found beyond reasonable doubt that the defendant killed, attempted to kill or intended for killing to occur. The court held that this finding did not necessarily have to be made by a jury and could instead be determined in an appellate review or other post-trial proceedings by judges. This ruling came after Edward Earl Johnson had been sentenced to death for murder during an armed robbery in 1979; however there was no explicit determination at trial whether he had actually shot the victim himself.

In the dissenting opinion for Cabana v. Bullock, Justice William Brennan Jr., joined by Justices Thurgood Marshall and John Paul Stevens, argued that the majority's decision was inconsistent with previous rulings of the Court. They contended that a sentencing judge or jury must make specific findings about a defendant's intent before imposing capital punishment. The dissenters believed that this requirement could not be satisfied merely by an appellate court reviewing evidence after conviction to determine if it supports such findings. Furthermore, they disagreed with the majority’s view on harmless error analysis in death penalty cases; arguing instead that any failure to follow proper procedures should automatically result in reversal of a death sentence without further review for harmlessness.