OCTOBER TERM, 1992
Syllabus
GRAHAM
v. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 91-7580. Argued October 14, 1992-Decided January 25,1993
Petitioner Graham's capital murder conviction and death sentence
became final in 1984. After unsuccessfully seeking postconviction
relief in the Texas state courts, he filed this habeas corpus
action in Federal District Court, alleging,
inter alia, that
the three "special issues" his sentencing jury was required to
answer under the state capital sentencing statute then in existence
prevented the jury from giving effect, consistent with the Eighth
and Fourteenth Amendments, to mitigating evidence of his youth,
unstable family background, and positive character traits. In
affirming the District Court's denial of relief, the Court of
Appeals reviewed this Court's holdings on the constitutional
requirement that a sentencer be permitted to consider and act upon
any relevant mitigating evidence put forth by a capital defendant,
and then ruled that Graham's jury could give adequate mitigating
effect to the evidence in question by way of answering the special
issues.
Held: Graham's claim is barred because the relief he
seeks would require announcement of a new rule of constitutional
law, in contravention of the principles set forth in
Teague
v.
Lane, 489
U. S. 288, 301 (plurality opinion). pp. 466-478.
(a) A holding that was not
"dictated by precedent
existing at the time the defendant's conviction became final"
constitutes a "new rule," 489 U. S., at 301, which, absent the
applicability of one of two exceptions, cannot be applied or
announced in a case on collateral review,
Penry v.
Lynaugh, 492
U. S. 302, 313. Thus, the determinative question is whether
reasonable jurists hearing Graham's claim in 1984 "would have felt
compelled by existing precedent" to rule in his favor. See
Saffle v.
Parks, 494 U. S. 484, 488. Pp.
466-467.
(b) It cannot be said that reasonable jurists hearing Graham's
claim in 1984 would have felt that existing precedent
"dictated" vacatur of his death sentence within
Teague's meaning. To the contrary, the joint opinion of
Justices Stewart, Powell, and STEVENS, in
Jurek v.
Texas, 428 U.
S. 262, 270-276, could reasonably be read as having upheld the
constitutionality of the very statutory scheme under which Graham
was sentenced, including the so-called "special issues," only after
being satis-
462
Syllabus
fied that petitioner's mitigating evidence, including his age,
would be given constitutionally adequate consideration in the
course of the jury's deliberation on the special issues. Moreover,
Lockett v.
Ohio, 438 U. S. 586, 605-606
(plurality opinion), expressly embraced the
Jurek holding,
and
Eddings v.
Oklahoma, 455 U. S. 104, signaled
no retreat from that conclusion. Thus, it is likely that reasonable
jurists in 1984 would have found that, under these cases, the Texas
statute satisfied the commands of the Eighth Amendment: It
permitted Graham to place before the jury whatever mitigating
evidence he could show, including his age, while focusing the
jury's attention upon what that evidence revealed about his
capacity for deliberation and prospects for rehabilitation. Nothing
in this Court's post-1984 cases, to the extent they are relevant,
would undermine this analysis. Even if
Penry, supra, upon
which Graham chiefly relies, reasonably could be read to suggest
that his mitigating evidence was not adequately considered under
the Texas procedures, that does not answer the determinative
question under
Teague. Pp. 467-477.
(c) The new rule that Graham seeks would not fall within either
of the
Teague exceptions. The first exception plainly has no
application here because Graham's rule would neither decriminalize
a class of conduct nor prohibit the imposition of capital
punishment on a particular class of persons. See
Saffle,
supra, at 495. The second exception, for watershed rules
implicating fundamental fairness and accuracy, is also
inapplicable, since denying Graham special jury instructions
concerning his mitigating evidence would not seriously diminish the
likelihood of obtaining an accurate determination in his sentencing
proceeding. See
Butler v.
McKellar, 494 U. S. 407, 416. Pp.
477-478.
950 F.2d
1009, affirmed.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
THOMAS, J., filed a concurring opinion,
post, p. 478.
STEVENS, J., filed a dissenting opinion,
post, p. 500.
SOUTER, J., filed a dissenting opinion, in which BLACKMUN, STEVENS,
and O'CONNOR, JJ., joined,
post, p. 504.
Michael E. Tigar argued the cause for petitioner. With
him on the briefs was
Jeffrey J.
Pokorak.
Charles A. Palmer, Assistant Attorney General of Texas,
argued the cause for respondent. With him on the brief were
Dan
Morales, Attorney General,
William C.
Zapalac,
Assistant Attorney General,
Will Pryor, First Assistant
At-
463
torney General,
Mary F. Keller, Deputy Attorney General,
and
Michael P. Hodge, Assistant Attorney General. *
JUSTICE WHITE delivered the opinion of the Court.
In this case, we are asked to decide whether the jury that
sentenced petitioner, Gary Graham, to death was able to give
effect, consistent with the Eighth and Fourteenth Amendments, to
mitigating evidence of Graham's youth, family background, and
positive character traits. Because this case comes to us on
collateral review, however, we must first decide whether the relief
that petitioner seeks would require announcement of a new rule of
constitutional law, in contravention of the principles set forth in
Teague v.
Lane, 489 U. S. 288 (1989). Concluding that
Graham's claim is barred by
Teague, we affirm.
I
On the night of May 13, 1981, Graham accosted Bobby Grant
Lambert in the parking lot of a Houston, Texas, grocery store and
attempted to grab his wallet. When Lambert resisted, Graham drew a
pistol and shot him to death. Five months later, a jury rejected
Graham's defense of mistaken identity and convicted him of capital
murder in violation of Tex. Penal Code Ann. § 19.03(a)(2)
(1989).
At the sentencing phase of Graham's trial, the State offered
evidence that Graham's murder of Lambert commenced a week of
violent attacks during which the 17-yearold Graham committed a
string of robberies, several assaults, and one rape. Graham did not
contest this evidence. Rather, in mitigation, the defense offered
testimony from Graham's stepfather and grandmother concerning his
upbringing and positive character traits. The stepfather, Joe
Samby, testified that Graham, who lived and worked with his natural
father, typically visited his mother once or twice a
*Steven B. Rosenfeld and
Allen Cazier filed a
brief for Miguel A. Richardson as
amicus curiae urging
reversal.
464
week and was a "real nice, respectable" person. Samby further
testified that Graham would pitch in on family chores and that
Graham, himself a father of two young children, would "buy ...
clothes for his children and try to give them food."
Graham's grandmother, Emma Chron, testified that Graham had
lived with her off and on throughout his childhood because his
mother had been hospitalized periodically for a "nervous
condition." Chron also stated that she had never known Graham to be
violent or disrespectful, that he attended church regularly while
growing up, and that "[h]e loved the Lord." In closing arguments to
the jury, defense counsel depicted Graham's criminal behavior as
aberrational and urged the jury to take Graham's youth into account
in deciding his punishment.
In accord with the capital sentencing statute then in effect,l
Graham's jury was instructed that it was to answer three "special
issues":
"(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;
(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and
(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased." Tex. Code Crim. Proc.
Ann., Art. 37.071(b) (Vernon 1981).
The jury unanimously answered each of these questions in the
affirmative, and the court, as required by the statute,
1 The Texas Legislature amended the statute in 1991. Those
changes are set forth in the opinion of the Court of Appeals.
950 F.2d
1009, 1012, n. 1 (CA5 1992) (en bane).
465
sentenced Graham to death. Art. 37.071(e). The Texas Court of
Criminal Appeals affirmed Graham's conviction and sentence in an
unpublished opinion.
In 1987, Graham unsuccessfully sought postconviction relief in
the Texas state courts. The following year, Graham petitioned for a
writ of habeas corpus in Federal District Court pursuant to 28 U.
s. C. § 2254, contending,
inter alia, that his sentencing
jury had been unable to give effect to his mitigating evidence
within the confines of the statutory "special issues." The District
Court denied relief and the Court of Appeals for the Fifth Circuit
denied Graham's petition for a certificate of probable cause to
appeal.
Graham v.
Lynaugh, 854
F.2d 715 (1988). The Court of Appeals found Graham's claim to
be foreclosed by our recent decision in
Franklin v.
Lynaugh, 487
U. S. 164 (1988), which held that a sentencing jury was fully
able to consider and give effect to mitigating evidence of a
defendant's clean prison disciplinary record by way of answering
Texas' special issues. 854 F. 2d, at 719-720.
While Graham's petition for a writ of certiorari was pending
here, the Court announced its decision in
Penry v.
Lynaugh, 492
U. S. 302 (1989), holding that evidence of a defendant's mental
retardation and abused childhood could not be given mitigating
effect by a jury within the framework of the special issues.2 We
then granted Graham's petition, vacated the judgment below, and
remanded for reconsideration in light of
Penry. Graham v.
Lynaugh, 492 U. S. 915 (1989). On remand, a divided panel of
the Court of Appeals reversed the District Court and vacated
Graham's death sentence.
896 F.2d
893 (CA5 1990).
2 Penry further held that its result was dictated by the
Court's prior decisions in
Eddings v.
Oklahoma,
455 U. S. 104
(1982), and
Lockett v.
Ohio, 438 U. S. 586 (1978)
(plurality opinion), within the sense required by
Teague v.
Lane, 489 U.
S. 288 (1989), and thus that its rule applied to cases on
collateral review. See
Penry, 492 U. S., at 314-319.
466
On rehearing en banc, the Court of Appeals vacated the panel's
decision and reinstated its prior mandate affirming the District
Court.
950 F.2d
1009 (1992). The court reviewed our holdings on the
constitutional requirement that a sentencer be permitted to
consider and act upon any relevant mitigating evidence put forward
by a capital defendant, and then rejected Graham's claim on the
merits. The court noted that this Court had upheld the Texas
capital sentencing statute against a facial attack in
Jurek
v.
Texas, 428
U. S. 262 (1976), after acknowledging that "'the
constitutionality of the Texas procedures turns on whether the
enumerated questions allow consideration of particularized
mitigating factors.'" 950 F. 2d, at 1019 (quoting
Jurek,
supra, at 272). Noting that the petitioner in
Jurek had
himself proffered mitigating evidence of his young age, employment
history, and aid to his family, the Court of Appeals concluded that
"[a]t the very least,
Jurek must stand for the proposition
that these mitigating factors-relative youth and evidence
reflecting good character traits such as steady employment and
helping others-are adequately covered by the second special issue"
concerning the defendant's risk of future dangerousness. 950 F. 2d,
at 1029.
"Penry cannot hold otherwise," the court observed,
"and at the same time not be a 'new rule' for
Teague
purposes."
Ibid. Accordingly, the court ruled that the jury
that sentenced Graham could give adequate mitigating effect to his
evidence of youth, unstable childhood, and positive character
traits by way of answering the Texas special issues.
We granted certiorari, 504 U. S. 972 (1992), and now affirm.
II A
Because this case is before us on Graham's petition for a writ
of federal habeas corpus, "we must determine, as a threshold
matter, whether granting him the relief he seeks would create a
'new rule'" of constitutional law.
Penry v.
467
Lynaugh, supra, at 313; see also
Teague v.
Lane, 489 U. S., at 301 (plurality opinion). "Under
Teague, new rules will not be applied or announced in cases
on collateral review unless they fall into one of two exceptions."
Penry, supra, at 313. This restriction on our review applies
to capital cases as it does to those not involving the death
penalty. 492 U. S., at 314;
Stringer v.
Black,
503 U. S. 222
(1992);
Sawyer v.
Smith, 497 U. S. 227 (1990);
Saffle v.
Parks, 494 U. S. 484 (1990);
Butler v.
McKellar, 494 U. S. 407 (1990).
A holding constitutes a "new rule" within the meaning of
Teague if it "breaks new ground," "imposes a new obligation
on the States or the Federal Government," or was not
"dictated by precedent existing at the time the defendant's
conviction became final."
Teague, supra, at 301 (emphasis in
original). While there can be no dispute that a decision announces
a new rule if it expressly overrules a prior decision, "it is more
difficult ... to determine whether we announce a new rule when a
decision extends the reasoning of our prior cases."
Saffle
v.
Parks, 494 U. S., at 488. Because the leading purpose of
federal habeas review is to "ensur[e] that state courts conduct
criminal proceedings in accordance with the Constitution as
interpreted at the time of th[ose] proceedings,"
ibid., we
have held that "[t]he 'new rule' principle ... validates
reasonable, good-faith interpretations of existing precedents made
by state courts."
Butler v.
McKellar, 494 U. S., at
414. This principle adheres even if those goodfaith interpretations
"are shown to be contrary to later decisions."
Ibid. Thus,
unless reasonable jurists hearing petitioner's claim at the time
his conviction became final "would have felt compelled by existing
precedent" to rule in his favor, we are barred from doing so now.
Saffle v.
Parks, supra, at 488.
B
Petitioner's conviction and sentence became final on September
10, 1984, when the time for filing a petition for certiorari from
the judgment affirming his conviction expired.
468
See
Griffith v.
Kentucky, 479 U. S. 314, 321, n. 6
(1987). Surveying the legal landscape as it then existed, we
conclude that it would have been anything but clear to reasonable
jurists in 1984 that petitioner's sentencing proceeding did not
comport with the Constitution.
1
In the years since
Furman v.
Georgia, 408 U. S. 238 (1972), the
Court has identified, and struggled to harmonize, two competing
commandments of the Eighth Amendment. On one hand, as
Furman
itself emphasized, States must limit and channel the discretion of
judges and juries to ensure that death sentences are not meted out
"wantonly" or "freakishly."
Id., at 310 (Stewart, J.,
concurring). On the other, as we have emphasized in subsequent
cases, States must confer on the sentencer sufficient discretion to
take account of the "character and record of the individual
offender and the circumstances of the particular offense" to ensure
that "death is the appropriate punishment in a specific case."
Woodson v.
North Carolina, 428 U. S. 280, 304-305
(1976) (plurality opinion of Stewart, Powell, and STEVENS,
JJ.).
Four years after
Furman, and on the same day that
Woodson was announced, the Court in
Jurek v.
Texas, supra, examined the very statutory scheme under which
Graham was sentenced and concluded that it struck an appropriate
balance between these constitutional concerns. The Court thus
rejected an attack on the entire statutory scheme for imposing the
death penalty and in particular an attack on the so-called "special
issues." It is well to set out how the Court arrived at its
judgment. The joint opinion of Justices Stewart, Powell, and
STEVENS observed that while Texas had not adopted a list of
aggravating circumstances that would justify the imposition of the
death penalty, "its action in narrowing the categories of murders
for which a death sentence may ever be imposed serves much the same
purpose."
Id., at 270. The joint opinion went on to say
469
that because the constitutionality of a capital sentencing
system also requires the sentencing authority to consider
mitigating circumstances and since the Texas statute did not speak
of mitigating circumstances and instead directs only that the jury
answer three questions, "the constitutionality of the Texas
procedures turns on whether the enumerated questions allow
consideration of particularized mitigating factors."
Id., at
272.
The joint opinion then recognized that the Texas Court of
Criminal Appeals had held:
"'In determining the likelihood that the defendant would be a
continuing threat to society, the jury could consider whether the
defendant had a significant criminal record. It could consider the
range and severity of his prior criminal conduct. It could further
look to the age of the defendant and whether or not at the time of
the commission of the offense he was acting under duress or under
the domination of another. It could also consider whether the
defendant was under an extreme form of mental or emotional
pressure, something less, perhaps, than insanity, but more than the
emotions of the average man, however inflamed, could withstand.'
522 S. W. 2d, at 939-940." Id., at 272-273.
Based on this assurance, the opinion characterized the Texas
sentencing procedure as follows:
"Thus, Texas law essentially requires that one of five
aggravating circumstances be found before a defendant can be found
guilty of capital murder, and that in considering whether to impose
a death sentence the jury may be asked to consider whatever
evidence of mitigating circumstances the defense can bring before
it. It thus appears that, as in Georgia and Florida, the Texas
capital-sentencing procedure guides and focuses the jury's
objective consideration of the particularized circumstances of the
individual offense and the individual
470
offender before it can impose a sentence of death."
Id.,
at 273-274.
"What is essential is that the jury have before it all possible
relevant information about the individual defendant whose fate it
must determine. Texas law clearly assures that all such evidence
will be adduced."
Id., at 276.
The joint opinion's ultimate conclusion was:
"Texas' capital-sentencing procedures, like those of Georgia and
Florida, do not violate the Eighth and Fourteenth Amendments. By
narrowing its definition of capital murder, Texas has essentially
said that there must be at least one statutory aggravating
circumstance in a first-degree murder case before a death sentence
may even be considered. By authorizing the defense to bring before
the jury at the separate sentencing hearing whatever mitigating
circumstances relating to the individual defendant can be adduced,
Texas has ensured that the sentencing jury will have adequate
guidance to enable it to perform its sentencing function. By
providing prompt judicial review of the jury's decision in a court
with statewide jurisdiction, Texas has provided a means to promote
the evenhanded, rational, and consistent imposition of death
sentences under law. Because this system serves to assure that
sentences of death will not be 'wantonly' or 'freakishly' imposed,
it does not violate the Constitution. Furman v.
Georgia, 408 U. S., at 310 (STEWART, J., concurring)."
Ibid.
It is plain enough, we think, that the joint opinion could
reasonably be read as having arrived at this conclusion only after
being satisfied that the mitigating evidence introduced by the
defendant, including his age, would be given constitutionally
adequate consideration in the course of the jury's deliberation on
the three special issues. Three other Justices concurred in the
holding that the Texas procedures for
471
imposing the death penalty were constitutional.
Id., at
278279 (WHITE, J., concurring in judgment).
Two years after
Jurek, in another splintered decision,
Lockett v.
Ohio, 438 U. S. 586 (1978), the
Court invalidated an Ohio death penalty statute that prevented the
sentencer from considering certain categories of relevant
mitigating evidence. In doing so, a plurality of the Court
consisting of Chief Justice Burger and Justices Stewart, Powell,
and STEVENS stated that the constitutional infirmities in the Ohio
statute could "best be understood by comparing it with the statutes
upheld in
Gregg, Proffitt, and
Jurek." Id., at 606.
This the plurality proceeded to do, recounting in the process that
the Texas statute had been held constitutional in
Jurek
because it permitted the sentencer to consider whatever mitigating
circumstances the defendant could show. Emphasizing that "an
individualized [sentencing] decision is essential in capital
cases," the plurality concluded:
"There is no perfect procedure for deciding in which cases
governmental authority should be used to impose death. But a
statute that prevents the sentencer in all capital cases from
giving independent mitigating weight to aspects of the defendant's
character and record and to circumstances of the offense proffered
in mitigation creates the risk that the death penalty will be
imposed in spite of factors that may call for a less severe
penalty." 438 U. S., at 605.
Obviously, the plurality did not believe the Texas statute
suffered this infirmity.
The plurality's rule was embraced by a majority of the Court
four years later in
Eddings v.
Oklahoma, 455 U. S. 104 (1982).
There, the Court overturned a death sentence on the ground that the
judge who entered it had felt himself bound by state law to
disregard mitigating evidence concerning the defendant's troubled
youth and emotional disturbance. The Court held that, "[j]ust as
the State may not by
472
statute preclude the sentencer from considering any mitigating
factor, neither may the sentencer refuse to consider, as a matter
of law, any relevant mitigating evidence."
Id., at 113-114
(emphasis omitted); see also
Hitchcock v.
Dugger,
481 U. S. 393,
394 (1987);
Skipper v.
South Carolina, 476 U. S. 1, 4-5 (1986).
The
Eddings opinion rested on
Lockett and made no
mention of
Jurek.
We cannot say that reasonable jurists considering petitioner's
claim in 1984 would have felt that these cases
"dictated"
vacatur of petitioner's death sentence. See
Teague, 489 U.
S., at 301. To the contrary, to most readers at least, these cases
reasonably would have been read as upholding the constitutional
validity of Texas' capital sentencing scheme with respect to
mitigating evidence and otherwise.
Lockett expressly
embraced the
Jurek holding, and
Eddings signaled no
retreat from that conclusion. It seems to us that reasonable
jurists in 1984 would have found that, under our cases, the Texas
statute satisfied the commands of the Eighth Amendment: It
permitted petitioner to place before the jury whatever mitigating
evidence he could show, including his age, while focusing the
jury's attention upon what that evidence revealed about the
defendant's capacity for deliberation and prospects for
rehabilitation.
We find nothing in our more recent cases, to the extent they are
relevant, that would undermine this analysis. In 1988, in
Franklin v.
Lynaugh, 487 U. S. 164, we
rejected a claim that the Texas special issues provided an
inadequate vehicle for jury consideration of evidence of a
defendant's clean prison disciplinary record. There, a plurality of
the Court observed that "[i]n resolving the second Texas Special
Issue, the jury was surely free to weigh and evaluate petitioner's
disciplinary record as it bore on his 'character' -that is, his
'character' as measured by his likely future behavior."
Id.,
at 178. Moreover, the plurality found
"unavailing petitioner's reliance on this Court's statement in
Eddings, 455 U. S., at 114, that the sentencing
473
jury may not be precluded from considering 'any relevant,
mitigating evidence.' This statement leaves unanswered the
question: relevant to what? While Lockett, supra, at 604,
answers this question at least in part-making it clear that a State
cannot take out of the realm of relevant sentencing considerations
the questions of the defendant's 'character,' 'record,' or the
'circumstances of the offense' -Lockett does not hold that
the State has no role in structuring or giving shape to the jury's
consideration of these mitigating factors." Id., at 179
(citations omitted).
To be sure, JUSTICE O'CONNOR'S opinion concurring in the
judgment in
Franklin expressed "doubts" about the validity
of the Texas death penalty statute as that statute might be applied
in future cases.
Id., at 183. The Justice agreed, however,
that the special issues adequately accounted for the mitigating
evidence presented in that case.
Ibid.
This brings us to
Penry v.
Lynaugh, 492 U. S. 302 (1989),
upon which petitioner chiefly relies. In that case, the Court
overturned a prisoner's death sentence, finding that the Texas
special issues provided no genuine opportunity for the jury to give
mitigating effect to evidence of his mental retardation and abused
childhood. The Court considered these factors to be mitigating
because they diminished the defendant's ability "to control his
impulses or to evaluate the consequences of his conduct," and
therefore reduced his moral culpability.
Id., at 322. The
Texas special issues permitted the jury to consider this evidence,
but not necessarily in a way that would benefit the defendant.
Although Penry's evidence of mental impairment and childhood abuse
indeed had relevance to the "future dangerousness" inquiry, its
relevance was
aggravating only. "Penry's mental retardation
and history of abuse is thus a two-edged sword: it may diminish his
blameworthiness for his crime even as it indicates that there is a
probability that he will be dangerous in the future."
Id.,
at 324. Whatever relevance Penry's evidence
474
may have had to the other two special issues was too tenuous to
overcome this aggravating potential. Because it was impossible to
give meaningful mitigating effect to Penry's evidence by way of
answering the special issues, the Court concluded that Penry was
constitutionally entitled to further instructions "informing the
jury that it could consider and give effect to [Penry's] evidence
... by declining to impose the death penalty."
Id., at
328.
We do not read
Penry as effecting a sea change in this
Court's view of the constitutionality of the former Texas death
penalty statute; it does not broadly suggest the invalidity of the
special issues framework.3 Indeed, any such reading of
Penry
would be inconsistent with the Court's conclusion in that case that
it was not announcing a "new rule" within the meaning of
Teague v.
Lane, 489 U. S. 288 (1989). See
Penry, supra, at 318-319. As we have explained in subsequent
cases:
"To the extent that Penry's claim was that the Texas system
prevented the jury from giving any mitigating effect to the
evidence of his mental retardation and abuse in childhood, the
decision that the claim did not require the creation of a new rule
is not surprising. Lockett and Eddings command that
the State must allow the jury to give effect to mitigating evidence
in making the sentencing decision; Penry's contention was that
Texas barred the jury from so acting. Here, by contrast,
3 To the contrary, the Court made clear in that case the limited
nature of the question presented: "Penry does not challenge the
facial validity of the Texas death penalty statute, which was
upheld against an Eighth Amendment challenge in
Jurek v.
Texas, 428 U.
S. 262 (1976). Nor does he dispute that some types of
mitigating evidence can be fully considered by the sentencer in the
absence of special jury instructions. See
Franklin v.
Lynaugh, 487
U. S. 164,175 (1988) (plurality opinion);
id., at
185-186 (O'CONNOR, J., concurring in judgment). Instead, Penry
argues that, on the facts of this case, the jury was unable to
fully consider and give effect to the mitigating evidence of his
mental retardation and abused background in answering the three
special issues." 492 U. S., at 315.
475
there is no contention that the State altogether prevented
Parks' jury from considering, weighing, and giving effect to all of
the mitigating evidence that Parks put before them; rather, Parks'
contention is that the State has unconstitutionally limited the
manner in which his mitigating evidence may be considered. As we
have concluded above, the former contention would come under the
rule of Lockett and Eddings; the latter does not."
Saffle v. Parks, 494 U. S., at 491.
In our view, the rule that Graham seeks is not commanded by the
cases upon which
Penry rested. In those cases, the
constitutional defect lay in the fact that relevant mitigating
evidence was placed beyond the effective reach of the sentencer. In
Lockett, Eddings, Skipper, and
Hitchcock, the
sentencer was precluded from even considering certain types of
mitigating evidence. In
Penry, the defendant's evidence was
placed before the sentencer but the sentencer had no reliable means
of giving mitigating effect to that evidence. In this case,
however, Graham's mitigating evidence was not placed beyond the
jury's effective reach. Graham indisputably was permitted to place
all of his evidence before the jury and both of Graham's two
defense lawyers vigorously urged the jury to answer "no" to the
special issues based on this evidence. Most important, the jury
plainly could have done so consistent with its instructions. The
jury was not forbidden to accept the suggestion of Graham's lawyers
that his brief spasm of criminal activity in May 1981 was properly
viewed, in light of his youth, his background, and his character,
as an aberration that was not likely to be repeated. Even if
Graham's evidence, like Penry's, had significance beyond the scope
of the first special issue, it is apparent that Graham's
evidence-unlike Penry's-had mitigating relevance to the
second special issue concerning his likely future dangerousness.
Whereas Penry's evidence compelled an affirmative answer to that
inquiry, despite its mitigating significance, Graham's evidence
quite readily could have
476
supported a negative answer. This distinction leads us to
conclude that neither
Penry nor any of its predecessors
"dictates" the relief Graham seeks within the meaning
required by
Teague. See
Stringer v.
Black, 503
U. S., at 238 (SOUTER, J., dissenting): "The result in a given case
is not dictated by precedent if it is 'susceptible to debate among
reasonable minds,' or, put differently, if 'reasonable jurists may
disagree'" (citations omitted).
Moreover, we are not convinced that
Penry could be
extended to cover the sorts of mitigating evidence Graham suggests
without a wholesale abandonment of
Jurek and perhaps also of
Franklin v.
Lynaugh. As we have noted,
Jurek
is reasonably read as holding that the circumstance of youth is
given constitutionally adequate consideration in deciding the
special issues. We see no reason to regard the circumstances of
Graham's family background and positive character traits in a
different light. Graham's evidence of transient upbringing and
otherwise nonviolent character more closely resembles Jurek's
evidence of age, employment history, and familial ties than it does
Penry's evidence of mental retardation and harsh physical abuse. As
the dissent in
Franklin made clear, virtually
any
mitigating evidence is capable of being viewed as having some
bearing on the defendant's "moral culpability" apart from its
relevance to the particular concerns embodied in the Texas special
issues. See
Franklin, 487 U. S., at 190 (STEVENS, J.,
dissenting). It seems to us, however, that reading
Penry as
petitioner urges-and thereby holding that a defendant is entitled
to special instructions whenever he can offer mitigating evidence
that has
some arguable relevance beyond the special
issues-would be to require in all cases that a fourth "special
issue" be put to the jury: "'Does any mitigating evidence before
you, whether or not relevant to the above [three] questions, lead
you to believe that the death penalty should not be imposed?'" The
Franklin plurality rejected precisely this contention,
finding it irreconcilable with the
477
Court's holding in
Jurek, see
Franklin, supra, at
180, n. 10, and we affirm that conclusion today. Accepting Graham's
submission would unmistakably result in a new rule under
Teague. See
Saffle v.
Parks, supra, at 488;
Butler v.
McKellar, 494 U. S., at 412.
In sum, even if
Penry reasonably could be read to suggest
that Graham's mitigating evidence was not adequately considered
under the former Texas procedures, that is not the relevant inquiry
under
Teague. Rather, the determinative question is whether
reasonable jurists reading the case law that existed in 1984 could
have concluded that Graham's sentencing was not constitutionally
infirm. We cannot say that all reasonable jurists would have deemed
themselves compelled to accept Graham's claim in 1984. Nor can we
say, even with the benefit of the Court's subsequent decision in
Penry, that reasonable jurists would be of one mind in
ruling on Graham's claim today. The ruling Graham seeks, therefore,
would be a "new rule" under
Teague.
2
Having decided that the relief Graham seeks would require
announcement of a new rule under
Teague, we next consider
whether that rule nonetheless would fall within one of the two
exceptions recognized in
Teague to the "new rule" principle.
"The first exception permits the retroactive application of a new
rule if the rule places a class of private conduct beyond the power
of the State to proscribe, see
Teague, 489 U. S., at 311, or
addresses a 'substantive categorical guarante[e] accorded by the
Constitution,' such as a rule 'prohibiting a certain category of
punishment for a class of defendants because of their status or
offense.'"
Saffle v.
Parks, supra, at 494 (quoting
Penry, 492 U. S., at 329, 330). Plainly, this exception has
no application here because the rule Graham seeks "would neither
decriminalize a class of conduct nor prohibit the imposition of
capital punishment on a particular class of persons." 494 U. S., at
495.
478
The second exception permits federal courts on collateral review
to announce" 'watershed rules of criminal procedure' implicating
the fundamental fairness and accuracy of the criminal proceeding."
Ibid. Whatever the precise scope of this exception, it is
clearly meant to apply only to a small core of rules requiring
"observance of 'those procedures that ... are "implicit in the
concept of ordered liberty."'"
Teague, supra, at 311
(quoting
Mackey v.
United States, 401 U. S. 667, 693
(1971) (Harlan, J., concurring in judgments in part and dissenting
in part) (in turn quoting
Palko v.
Connecticut,
302 U. S. 319,
325 (1937))); see also
Butler v.
McKellar, supra, at
416. As the plurality cautioned in
Teague, "[b]ecause we
operate from the premise that such procedures would be so central
to an accurate determination of innocence or guilt, we believe it
unlikely that many such components of basic due process have yet to
emerge." 489 U. S., at 313. We do not believe that denying Graham
special jury instructions concerning his mitigating evidence of
youth, family background, and positive character traits "seriously
diminish[ed] the likelihood of obtaining an accurate determination"
in his sentencing proceeding. See
Butler v.
M cKellar,
supra, at 416. Accordingly, we find the second
Teague
exception to be inapplicable as well.
The judgment of the Court of Appeals is therefore
Affirmed.
JUSTICE THOMAS, concurring.
By deciding this case on the basis of
Teague v.
Lane,
489 U. S. 288 (1989), the Court has avoided a direct
reconsideration of
Penry v.
Lynaugh, 492 U. S. 302 (1989). I
join the Court's opinion because I agree that the holding sought by
Graham is not compelled by the cases upon which
Penry rests
and would therefore, if adopted, be a new rule for
Teague
purposes. I write separately, however, to make clear that I believe
Penry was wrongly decided.
479
Several Members of the Court have commented on the "tension"
between our cases on the constitutional relevance of mitigating
circumstances in capital sentencing and those decisions applying
the principle, first articulated in
Furman v.
Georgia, 408
U. S. 238 (1972), that the Eighth and Fourteenth Amendments
prohibit States from giving sentencers unguided discretion in
imposing the death penalty. E. g.,
Franklin v.
Lynaugh, 487
U. S. 164, 182 (1988) (plurality opinion);
California v.
Brown, 479 U.
S. 538, 544 (1987) (O'CONNOR, J., concurring);
McCleskey
v.
Kemp, 481
U. S. 279, 363 (1987) (BLACKMUN, J., dissenting). In my view,
Texas had largely resolved this tension through the use of the
three special issues repeatedly approved by this Court.
Penry, however, is at war with the former Texas scheme. As
the most extreme statement in our "mitigating" line,
Penry
creates more than an unavoidable tension; it presents an evident
danger.
I A
It is important to recall what motivated Members of this Court
at the genesis of our modern capital punishment case law.
Furman v.
Georgia was decided in an atmosphere
suffused with concern about race bias in the administration of the
death penalty-particularly in Southern States, and most
particularly in rape cases. The three petitioners were black. 1
Lucious Jackson was a 21-year-old black man sentenced to death by
Georgia for raping a white woman. Elmer Branch was sentenced to
death by Texas for the rape of a 65-year-old white widow. William
Henry Furman faced the death penalty in Georgia for unintentionally
killing a white homeowner during a burglary. See 408 U. S., at
252-
1 The Court decided two cases together with
Furman v.
Georgia, 408 U. S. 238 (1972):
Jackson v.
Georgia, No. 69-5030, and
Branch v.
Texas, No.
69-5031. A fourth case,
Aikens v.
California, No.
68-5027, was argued with
Furman but was dismissed as moot.
406 U. S. 813
(1972).
480
253 (Douglas, J., concurring).2 In his opinion concurring in the
Court's judgment that the death penalty in these cases was
unconstitutional, Justice Douglas stressed the potential role of
racial and other illegitimate prejudices in a system where
sentencing juries have boundless discretion. He thought it cruel
and unusual to apply the death penalty "selectively to minorities
... whom society is willing to see suffer though it would not
countenance general application of the same penalty across the
board."
Id., at 245. Citing studies and reports suggesting
that "[t]he death sentence [was] disproportionately imposed and
carried out on the poor, the Negro, and the members of unpopular
groups," especially in cases of rape, id., at 249-250 (internal
quotation marks omitted), Justice Douglas concluded that
"the discretion of judges and juries in imposing the death
penalty enables the penalty to be selectively applied, feeding
prejudices against the accused if he is poor and despised, and
lacking political clout, or if he is a member of a suspect or
unpopular minority, and saving those who by social position may be
in a more protected position." Id., at 255.
Justice Marshall echoed these concerns. See id., at 364366
(concurring opinion). He wrote that "[r]acial or other
discriminations [in sentencing] should not be surprising," because,
in his view, the Court's earlier decision in McGautha v.
California, 402 U. S. 183 (1971),
upholding a procedure that had "committ[ed] to the untrammeled
discretion of the jury the power to pronounce life or death," id.,
at 207, was "an open invitation to discrimination," 408 U. S., at
365. Justice Stewart also agreed that "if any basis can be
discerned
2 Furman was surprised to discover the victim at home and, while
trying to escape, accidentally tripped over a wire, causing his
pistol to fire a single shot through a closed door, thereby killing
the victim. See 408 U. S., at 294-295, n. 48 (Brennan, J.,
concurring).
481
for the selection of these few to be sentenced to die, it is the
constitutionally impermissible basis of race."
Id., at 310
(concurring opinion).
The unquestionable importance of race in Furman is reflected in
the fact that three of the original four petitioners in the Furman
cases were represented by the NAACP Legal Defense and Educational
Fund, Inc. This representation was part of a concerted "national
litigative campaign against the constitutionality of the death
penalty" waged by a small number of ambitious lawyers and academics
on the Fund's behalf. Burt, Disorder in the Court: The Death
Penalty and the Constitution, 85 Mich. L. Rev. 1741, 1745 (1987).
Although their efforts began rather modestly, assisting indigent
black defendants in isolated criminal cases-usually rape
cases-where racial discrimination was suspected, the lawyers at the
Fund ultimately devised and implemented (not without some prompting
from this Court) an all-out strategy of litigation against the
death penalty. See generally M. Meltsner, Cruel and Unusual: The
Supreme Court and Capital Punishment (1973) (hereinafter Meltsner);
Muller, The Legal Defense Fund's Capital Punishment Campaign: The
Distorting Influence of Death, 4 Yale L. & Pol'y Rev. 158
(1985).3 This campaign was part of a larger movement carried on in
the 1960's by "abolitionist lawyers" whose
3 According to the published account of one Legal Defense Fund
lawyer who participated in the campaign, the Fund-though it had had
experience with racial discrimination in rape cases in the
South-did not seriously consider a broader offensive against the
death penalty until three Members of this Court, in an opinion
dissenting from a denial of certiorari, offered a "strong
foundation" for such a strategy. Meltsner 27-35. See Rudolph v.
Alabama,
375 U. S.
889 (1963) (Goldberg, J., joined by Douglas and Brennan, JJ.,
dissenting from denial of certiorari) (calling on the Court to
decide "whether the Eighth and Fourteenth Amendments ... permit the
imposition of the death penalty on a convicted rapist who has
neither taken nor endangered human life" and suggesting several
lines of argument in the form of questions that "seem relevant and
worthy of ... consideration").
482
agenda for social and legal change depended on an activist
judiciary; their "unmistakable preference for the courts,
especially the federal courts," came as a direct "response to the
Supreme Court's willingness to redraw America's ethical and legal
map, a task state houses and executive mansions were slow to
tackle." Meltsner 25, 71.4
In mustering every conceivable argument-"ethical, legal,
polemical, theological, speculative, [and] statistical"-for
abolishing capital punishment, id., at 59, the Fund lawyers and
other civil rights advocates supplied the empirical and rhetorical
support for the observations of Justices Douglas, Marshall, and
Stewart with respect to race bias. See Brief for Petitioner in
Aikens v.
California, o. T. 1971, No. 685027, pp.
50-54; Brief for Petitioner in
Jackson v.
Georgia, O.
T. 1971, No. 69-5030, p. 15 ("The racial figures for all men
executed in the United States for the crime of rape since 1930 are
as follows: 48 white, 405 Negro, 2 other. In Georgia, the figures
are: 3 white, 58 Negro") (footnotes omitted). See also Brief for
NAACP et al. as
Amici Curiae in
Aikens v.
California, supra, at 13-18, and App. A (discussing, in
particular, history of South's use of death penalty in rape cases
prior to Civil War, when it was typical for rapes or attempted
rapes committed by black men upon white women to be punishable by
mandatory death or castration, while rapes committed by whites were
not punishable by death); Brief for Synagogue Council of America et
al. as
Amici Curiae in
Aikens v.
California,
supra, at 31 ("The positive relationship between the death
penalty and race is strong, but where the crime involved is rape
and more particularly, as
4 See also Meltsner 25: "[L]awyers attempting to thrust
egalitarian or humanitarian reforms on a reluctant society prefer
to use the courts because lifetime-appointed federal judges are
somewhat more insulated from the ebb and flow of political power
and public opinion than legislators or executives."
483
in two of the present cases, the rape of white women by Negroes,
the relationship is almost uncontrovertible").5
In the end, Justice Douglas and the other Members of the Court
concluded that "[w]e cannot say from facts disclosed in these
records that these defendants were sentenced to death because they
were black." Furman, 408 U. S., at 253 (Douglas, J., concurring).
See id., at 310 (Stewart, J., concurring) ("racial discrimination
has not been proved"). The Court focused more generally on the
uncontrolled discretion placed in judges and juries. Such unbridled
discretion, it was argued, practically invited sentencers to vent
their personal prejudices in deciding the fate of the accused. See
Brief for Petitioner in Furman v. Georgia, O. T. 1971, No. 69-5003,
p. 12 ("The jury knew nothing else about the man they sentenced,
except his age and race"). "Under these laws no standards govern
the selection of the penalty. People live or die, dependent on the
whim of one man or of 12." 408 U. S., at 253 (Douglas, J.,
concurring). Justice Stewart observed that "the petitioners are
among a capriciously selected random handful upon whom the sentence
of death has in fact been imposed," and concluded that the Eighth
and Fourteenth Amendments cannot tolerate sentencing procedures
that allow the penalty to be "so wantonly and so freakishly"
inflicted.
Id., at 309-310 (concurring opinion). The
practice of delegating unguided authority-a practice "largely
motivated by the desire to mitigate the harshness
5 The Federal Government later acknowledged before this Court
that in 11 Southern States between 1945 and 1965, "[t]he data
revealed that among all those convicted of rape, blacks were
selected disproportionately for the death sentence." App. to Brief
for United States as
Amicus Curiae in
Gregg v.
Georgia, O. T. 1975, No. 74-6257, p. 4a. Furthermore, the
Government stated, "we do not question [the] conclusion that during
the 20 years in question, in southern states, there was
discrimination in rape cases."
Id., at 5a. We eventually
struck down the death penalty for convicted rapists under the
Eighth Amendment, not on the basis of discriminatory application,
but as an excessive and disproportionate punishment.
Coker
v.
Georgia, 433 U. S. 584 (1977).
484
of the law and to bring community judgment to bear on the
sentence"-actually allowed a jury, "in its own discretion and
without violating its trust or any statutory policy, [to] refuse to
impose the death penalty no matter what the circumstances of the
crime."
Id., at 313, 314 (WHITE, J., concurring).
In sum, the Court concluded that in a standardless sentencing
scheme there was no "rational basis," as Justice Brennan put it, to
distinguish "the few who die from the many who go to prison."
Id., at 294 (concurring opinion). See also id., at 313
(WHITE, J., concurring) ("no meaningful basis for distinguishing").
It cannot be doubted that behind the Court's condemnation of
unguided discretion lay the specter of racial prejudice-the
paradigmatic capricious and irrational sentencing factor.
B
At its inception, our "mitigating" line of cases sprang in part
from the same concerns that underlay
Furman. In response to
Furman, 35 States enacted new death penalty statutes. See
Gregg v.
Georgia, 428 U. S. 153, 179-180
(1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). In
five cases decided on a single day in 1976, we passed on the
constitutionality of a representative sample of the new laws.6 The
principal opinion in each case was a joint opinion of Justices
Stewart, Powell, and STEVENS. In the lead case,
Gregg v.
Georgia, these Justices squarely rejected the argument that
the death penalty is cruel and unusual under all circumstances.
Id., at 176-187. Rather, they focused on the States' capital
sentencing procedures, distilling from
Furman two
complementary rationalizing principles about sentencing discretion:
The discretion given the sentencer must be "directed and limited"
to avoid "wholly arbitrary
6 Gregg v. Georgia,
428 U. S. 153 (1976);
Proffitt v. Florida,
428 U. S. 242 (1976);
Jurek v. Texas,
428
U. S. 262 (1976); Woodson v. North Carolina,
428 U. S. 280 (1976);
Roberts v. Louisiana,
428 U. S. 325 (1976).
485
and capricious action,"
Gregg, 428 U. S., at 189, and
this discretion must be exercised "in an informed manner,"
ibid. Furman was read as holding that "to minimize the risk
that the death penalty [will] be imposed on a capriciously selected
group of offenders, the decision to impose it ha[s] to be guided by
standards so that the sentencing authority [will] focus on the
particularized circumstances of the crime and the defendant."
Gregg, 428 U. S., at 199. The jury should be "given guidance
regarding the factors about the crime and the defendant that the
State, representing organized society, deems particularly relevant
to the sentencing decision."
Id., at 192. "Otherwise, the
system cannot function in a consistent and a rational manner."
Id., at 189 (internal quotation marks omitted).
Gregg's requirement that the sentencer be guided by
information about the particular defendant and the particular
circumstances of the crime-in other words, by traditionally
accepted sentencing criteria, see id., at 189-190-added a second
dimension to Furman's rule against open-ended discretion. The
jury's discretion must be focused on rational factors, and its
decision should be based on information about the circumstances of
the crime and about the accused as an individual, not merely as a
member of a group. In Furman itself, for example, the jury was
given almost no particularized information about the accused:
"About Furman himself, the jury knew only that he was black and
that, according to his statement at trial, he was 26 years old and
worked at 'Superior Upholstery.' It took the jury one hour and 35
minutes to return a verdict of guilt and a sentence of death."
Furman, 408 U. S., at 295, n. 48 (Brennan, J., concurring)
(citations omitted). Moreover, it was irrelevant to the jury's
determination that the killing committed by Furman was accidental.
Ibid. Without a focus on the characteristics of the
defendant and the circumstances of his crime, an uninformed jury
could be tempted to resort to irrational considerations, such as
class or race animus.
486
Justices Stewart, Powell, and STEVENS applied these principles
in upholding the guided discretion procedures of Georgia, Florida,
and Texas, and in striking down the mandatory death penalty
provisions of North Carolina and Louisiana. The Georgia, Florida,
and Texas schemes were held constitutional because they "guide[d]
and focuse[d] the jury's objective consideration of the
particularized circumstances of the individual offense and the
individual offender."
Jurek v.
Texas, 428 U. S. 262, 273-274
(1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). The
"essential" factor was that "the jury ha[d] before it all possible
relevant information about the individual defendant whose fate it
must determine."
Id., at 276. Moreover, the Georgia statute
featured "an important additional safeguard against arbitrariness
and caprice": a provision for automatic appeal of a death sentence
that required the State Supreme Court to determine,
inter
alia, whether the sentence was imposed under the influence of
passion or prejudice and whether it was disproportionate to other
sentences imposed in similar cases.
Gregg, supra, at
198.
The mandatory death penalty statutes, on the other hand, were
held to violate the Eighth and Fourteenth Amendments for three
reasons. First, the Justices believed, a mandatory death penalty
departed from "contemporary standards" of punishment.
Woodson v.
North Carolina, 428 U. S. 280, 301 (1976)
(plurality opinion). Second, experience had suggested that such
statutes "simply papered over the problem of unguided and unchecked
jury discretion" by provoking arbitrary jury nullification.
Id., at 302-303. Thus, "[i]nstead of rationalizing the
sentencing process, a mandatory scheme may well exacerbate the
problem identified in
Furman by resting the penalty
determination on the particular jury's willingness to act
lawlessly."
Id., at 303; see
Roberts v.
Louisiana, 428
U. S. 325, 335 (1976) (plurality opinion). Third, the mandatory
nature of the penalty prevented the sentencer from considering "the
character and record of the individual
487
offender or the circumstances of the particular offense," and
thus treated all convicted persons "not as uniquely individual
human beings, but as members of a faceless, undifferentiated mass."
Woodson, supra, at 304. The latter concern echoed Justice
Douglas' suggestion that sentences of death might have fallen
disproportionately upon the "member[s] of a suspect or unpopular
minority."
Furman, supra, at 255.
One would think, however, that by eliminating explicit jury
discretion and treating all defendants equally, a mandatory death
penalty scheme was a perfectly reasonable legislative response to
the concerns expressed in
Furman. See
Roberts, supra,
at 346 (WHITE, J., dissenting). See also
Walton v.
Arizona, 497
U. S. 639, 662 (1990) (SCALIA, J., concurring in part and
concurring in judgment). JUSTICE WHITE was surely correct in
concluding that "a State is not constitutionally forbidden to
provide that the commission of certain crimes conclusively
establishes that the criminal's character is such that he deserves
death."
Roberts, supra, at 358. See also
Roberts v.
Louisiana, 431
U. S. 633, 649 (1977) (REHNQUIST, J., dissenting);
Sumner v.
Shuman, 483 U. S. 66, 86 (1987) (WHITE, J.,
dissenting). I would also agree that the plurality in
Woodson and
Roberts erred in equating the "raw power
of [jury] nullification" with the unlimited sentencing discretion
condemned in
Furman. Roberts, supra, at 347 (WHITE, J.,
dissenting). The curious and counterintuitive outcomes of our 1976
cases-upholding sentences of death imposed under statutes that
explicitly preserved the sentencer's discretion while vacating
those imposed under mandatory provisions precisely because of a
perceived potential for arbitrary and uninformed discretion-might
in some measure be attributable, once again, to the powerful
influence of racial concerns.7 Be that as it may,
7 As in Furman, the NAACP Legal Defense Fund represented the
three petitioners in
Woodson and
Roberts, who were
black. In addition to contending that the death penalty was a cruel
and unusual punishment, the Fund lawyers argued in these cases that
despite the mandatory nature of
488
we are not now confronted with a mandatory sentencing provision,
and I have no occasion here to flesh out my disagreement with the
Court's prohibition of such schemes.
The significant point for present purposes is that
Woodson and
Sumner's invalidation of the mandatory
death penalty guaranteed that sentencers would exercise some degree
of discretion in every capital case. And under our precedents, in
turn, any such exercise of discretion is unavoidably bound up with
the two requirements of
Furman, as identified in
Gregg: first and foremost, that the sentencing authority be
"provided with standards to guide its use of the information"
developed at sentencing, and second, in support of this principle,
that the sentencer be "apprised of the information relevant to the
imposition of sentence."
Gregg, 428 U. S., at 195. By
discovering these two requirements in the Constitution, and by
ensuring in
Woodson and its progeny that they would always
be in play, the Court has put itself in the seemingly permanent
business of supervising capital sentencing procedures. While the
better view is that the Cruel and Unusual Punishments Clause was
intended to place only substantive limitations on punishments, not
procedural requirements on sentencing, see
Hudson v.
McMillian, 503 U. S. 1, 18-20 (1992) (THOMAS, J.,
dissenting);
Gardner v.
Florida, 430 U. S. 349, 371 (1977)
(REHNQUIST, J., dissenting),
stare decisis requires that we
make efforts to adhere to the Court's Eighth Amendment precedents,
see
Walton v.
North Carolina's and Louisiana's statutes, the process of
imposing the penalty on these petitioners was infected at key
junctures with the potential for selective and discriminatory
discretion, most importantly the possibility that sentencing juries
in cases involving sympathetic defendants would acquit or convict
on lesser charges. See Brief for Petitioners in
Woodson v.
North Carolina, O. T. 1975, No. 75-5491, pp. 22-39; Brief
for Petitioner in
Roberts v.
Louisiana, O. T. 1975,
No. 75-5844, pp. 30-65. The unsuccessful petitioners in
Gregg,
Proffitt, and
Jurek were white. See Brief for United
States as
Amicus Curiae in
Gregg v.
Georgia,
O. T. 1975, No. 74-6257, p. 68.
489
Arizona, supra, at 672 (SCALIA, J., concurring in part
and concurring in judgment).
The mitigating branch of our death penalty jurisprudence began
as an outgrowth of the second of the two
Furman/ Gregg
requirements. The plurality's conclusion in
Lockett v.
Ohio, 438 U.
S. 586 (1978)-that the sentencer in a capital case must "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," id., at 604 (opinion of Burger, C. J.) (emphasis
deleted)-effectively guarantees the sentencer's access to
categories of information favorable to the defendant. Thus,
Lockett was built on the premise, given credence in
Gregg, that "where sentencing discretion is granted, it
generally has been agreed that the sentencing judge's possession of
the fullest information possible concerning the defendant's life
and characteristics is [h]ighly relevant." 438 U. S., at 602-603
(internal quotation marks omitted). The sentencing statute at issue
in
Lockett failed to satisfy this requirement, in the
plurality's view, because it eliminated from the jury's
consideration significant facts about the defendant and her
"comparatively minor role in the offense."
Id., at 608.8 The
Court's adoption in
Eddings v.
Oklahoma, 455 U. S. 104 (1982), of
the
Lockett rule and its corollary-that the sentencer may
not categorically refuse to consider relevant mitigating
circumstances-again drew upon
Gregg's notion that capital
sentencing is less likely to be arbitrary where the jury's exercise
of discretion is focused on the particularized circumstances of the
offender and the crime. See
Eddings, supra, at 112 (relying
on
Gregg, supra, at 197).
8 Lockett aided and abetted an armed robbery that resulted in a
murder.
She drove the getaway car but did not carry out the robbery and
did not intend to bring about the murder. See 438 U. S., at
589-591; id., at 613617 (BLACKMUN, J., concurring in part and
concurring in judgment). Lockett was represented by the same
lawyers from the Legal Defense Fund who had represented the
petitioners in
Furman, Woodson, and
Roberts.
490
Therefore, although it is said that
Lockett and
Eddings represent an "about-face" and "a return to the
pre-Furman days,"
Lockett, supra, at 622, 623 (WHITE,
J., concurring in part, dissenting in part, and concurring in
judgments), there was at root a logical-if by now
attenuated-connection between the rationalizing principle of
Furman and the prophylactic rule of
Eddings. Eddings
protects the accused's opportunity to "appris[e]" the jury of his
version of the information relevant to the sentencing decision. Our
early mitigating cases may thus be read as doing little more than
safeguarding the adversary process in sentencing proceedings by
conferring on the defendant an affirmative right to place his
relevant evidence before the sentencer. See
Skipper v.
South Carolina, 476 U. S. 1, 4 (1986). Cf.
id., at 5, n. 1 (comparing
Eddings with "the
elemental due process requirement that a defendant not be sentenced
to death 'on the basis of information which he had no opportunity
to deny or explain.'
Gardner v.
Florida, 430 U. S. 349, 362
(1977)").
Consistent with this (admittedly narrow) reading, I would
describe
Eddings as a kind of rule of evidence: It governs
the admissibility of proffered evidence but does not purport to
define the substantive standards or criteria that sentencers are to
apply in considering the facts. By requiring that sentencers be
allowed to "consider" all "relevant" mitigating circumstances, we
cannot mean that the decision whether to impose the death penalty
must be based upon all of the defendant's evidence, or that such
evidence must be considered the way the defendant wishes. Nor can
we mean to say that circumstances are necessarily relevant for
constitutional purposes if they have any conceivable mitigating
value. Such an application of
Eddings would eclipse the
primary imperative of
Furman-that the State define the
relevant sentencing criteria and provide rational "standards to
guide [the sentencer's] use" of the evidence. That aspect of
Furman must operate for the most part independently of the
Eddings rule. This is essential to the effectiveness
491
of
Furman, since providing all relevant information for
the sentencer's consideration does nothing to avoid the central
danger that sentencing discretion may be exercised
irrationally.
I realize, of course, that
Eddings is susceptible to more
expansive interpretations. See,
e. g., Walton, 497 U. S., at
661, 667 (SCALIA, J., concurring in part and concurring in
judgment)
(Eddings rule "has completely exploded whatever
coherence the notion of 'guided discretion' once had" by making
"random mitigation" a constitutional requirement);
McCleskey
v.
Kemp, 481 U. S., at 306 ("States cannot limit the
sentencer's consideration of any relevant circumstance that could
cause it to decline to impose the [death] penalty. In this respect,
the State cannot channel the sentencer's discretion, but must allow
it to consider any relevant information offered by the defendant").
And even under the narrow reading of
Eddings, there is still
a tension in our case law, because
Eddings implies something
of an outer boundary to the primary
Furman principle: The
sentencing standards chosen by the State may not be so stingy as to
prevent altogether the consideration of constitutionally relevant
mitigating evidence.
But with the exception of
Penry v.
Lynaugh,
492 U. S. 302
(1989), our most recent mitigating cases have been careful to read
Eddings narrowly in an effort to accommodate the "competing
commandments" of
Eddings and
Furman, ante, at 468. We
have held that States must be free to channel and direct the
sentencer's consideration of all evidence (whether mitigating or
aggravating) that bears on sentencing, provided only that the State
does not categorically preclude the sentencer from considering
constitutionally relevant mitigating circumstances. See
Walton,
supra, at 652 ("[T]here 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
492
death penalty") (internal quotation marks omitted);
Boyde
v.
California, 494 U. S. 370, 377 (1990)
(to the same effect);
Franklin v.
Lynaugh, 487 U. S.,
at 181 (plurality opinion) (same); see also
Walton, supra,
at 652 (requirement of individualized sentencing in capital cases
satisfied as long as State does not altogether prevent sentencer
from considering any type of relevant mitigating evidence);
Blystone v.
Pennsylvania, 494 U. S. 299, 307-308
(1990) (same);
Saffle v.
Parks, 494 U. S. 484, 490-491
(1990) (same).
This understanding preserves our original rationale for
upholding the Texas sentencing statute-that it "guides and focuses
the jury's objective consideration of the particularized
circumstances" while allowing the defendant "to bring to the jury's
attention whatever [relevant] mitigating circumstances he may be
able to show."
Jurek, 428 U. S., at 272, 274. Thus, in
reaffirming the constitutionality of Texas' system of special
issues, we have expressed satisfaction that the former Texas scheme
successfully reconciled any tension that exists between
Eddings and
Furman. See
Franklin v.
Lynaugh, supra, at 182 (plurality opinion). In the context
of the Texas system, therefore, I am unprepared at present to sweep
away our entire mitigating line of precedent. By the same token,
however, if the more expansive reading of
Eddings were
ultimately to prevail in this Court, I would be forced to conclude
that the
Eddings rule, as so construed, truly is "rationally
irreconcilable with
Furman" and, on that basis, deserving of
rejection. See
Walton, supra, at 673 (SCALIA, J., concurring
in part and concurring in judgment).
II
Unfortunately, the narrow reading of
Eddings is virtually
impossible after
Penry. Whatever contribution to rationality
and consistency we made in
Furman, we have taken back with
Penry. In the process, we have upset the careful balance
that Texas had achieved through the use of its special issues.
493
Penry held that the Texas special issues did not allow a
jury to "consider and give effect to" mitigating evidence of mental
retardation and childhood abuse, 492 U. S., at 328, because, even
though the defendant had a full and unfettered opportunity to
present such evidence to the jury, the evidence had "relevance to
[Penry's] moral culpability
beyond the scope of the special
issues,"
id., at 322 (emphasis added). Thus, the Court was
persuaded that the jury might have been "unable to express its
'reasoned moral response' to that evidence in determining
whether death was the appropriate punishment."
Ibid.
(emphasis added). See
post, at 518519. Contrary to the
dissent's view, see
post, at 506-512, these notions-that a
defendant may not be sentenced to death if there are mitigating
circumstances whose relevance goes "beyond the scope" of the
State's sentencing criteria, and that the jury must be able to
express a "reasoned moral response" to all evidence presented-have
no pedigree in our prior holdings. They originated entirely from
whole cloth in two recent concurring opinions. See
Franklin,
supra, at 185 (O'CONNOR, J., concurring in judgment);
California v.
Brown, 479 U. S. 538, 545 (1987)
(O'CONNOR, J., concurring).
Together, these notions render meaningless any rational
standards by which a State may channel or focus the jury's
discretion and thus negate the central tenet of
Furman and
all our death penalty cases since 1972.
Penry imposes as a
constitutional imperative "a scheme that simply dumps before the
jury all sympathetic factors bearing upon the defendant's
background and character, and the circumstances of the offense, so
that the jury may decide without further guidance" whether the
defendant deserves death.
Penry, 492 U. S., at 359 (SCALIA,
J., concurring in part and dissenting in part). "It is an unguided,
emotional 'moral response' that the Court demands be allowed-an
outpouring of personal reaction to all the circumstances of a
defendant's life and personality, an unfocused sympathy."
Ibid. JUSTICE SOUTER'S reading of
Penry bears out
these fears. His dis-
494
sent would require that the special issues be "construed with
enough scope to allow the full consideration of mitigating
potential,"
post, at 515, and that the jury be free to give
full effect to the defendant's sympathetic evidence "for all
purposes, including purposes not specifically permitted by the
questions,"
post, at 511 (internal quotation marks and
emphasis omitted).
Any determination that death is or is not the fitting punishment
for a particular crime will necessarily be a moral one, whether
made by a jury, a judge, or a legislature. But beware the word
"moral" when used in an opinion of this Court. This word is a
vessel of nearly infinite capacityjust as it may allow the
sentencer to express benevolence, it may allow him to cloak latent
animus. A judgment that some will consider a "moral response" may
secretly be based on caprice or even outright prejudice. When our
review of death penalty procedures turns on whether jurors can give
"full mitigating effect" to the defendant's background and
character,
post, at 510, and on whether juries are free to
disregard the State's chosen sentencing criteria and return a
verdict that a majority of this Court will label "moral," we have
thrown open the back door to arbitrary and irrational sentencing.
See
Penry, supra, at 360 (SCALIA, J., concurring in part and
dissenting in part) ("The decision whether to impose the death
penalty is a unitary one; unguided discretion not to impose is
unguided discretion to impose as well. In holding that the jury had
to be free to deem Penry's mental retardation and sad childhood
relevant for whatever purpose it wished, the Court has come full
circle, not only permitting but requiring what
Furman once
condemned").
The Court in
Penry denied that its holding signaled a
return to unbridled jury discretion because, it reasoned, "so long
as the class of murderers subject to capital punishment is
narrowed, there is no constitutional infirmity in a procedure that
allows a jury to recommend mercy based on the mitigating evidence
introduced by a defendant." 492 U. S.,
495
at 327 (citing
Gregg, 428 U. S., at 197-199, 203 (joint
opinion), and 222 (WHITE, J., concurring in judgment)). Cf.
McCleskey v.
Kemp, 481 U. S., at 311 (discussing the
benefits to the defendant of discretionary leniency). Thus, the
dissent suggests that once the State has sufficiently narrowed the
class of death-eligible murderers, the jury's discretion to select
those individuals favored to live must remain effectively
unbounded. See
post, at 513-515, 518-519. It turns reason on
its head, however, to argue that just because we have approved
sentencing systems that continue to permit juries to exercise a
degree of discretionary leniency, the Eighth Amendment necessarily
requires that that discretion be unguided and unlimited with
respect to "the class of murderers subject to capital punishment."
To withhold the death penalty out of sympathy for a defendant who
is a member of a favored group is no different from a decision to
impose the penalty on the basis of negative bias, and it matters
not how narrow the class of death-eligible defendants or crimes.
Surely that is exactly what the petitioners and the Legal Defense
Fund argued in
Woodson and
Roberts. See n. 7,
supra. It is manifest that" 'the power to be lenient [also]
is the power to discriminate.'''
McCleskey v.
Kemp,
supra, at 312 (quoting K. Davis, Discretionary Justice 170
(1973)). See also
Roberts, 428 U. S., at 346 (WHITE, J.,
dissenting) ("It is undeniable that the unfettered discretion of
the jury to save the defendant from death was a major contributing
factor in the developments which led us to invalidate the death
penalty in
Furman v.
Georgia").9
9 The Texas special issues involved here did a considerably
better job of rationalizing sentencing discretion than even the
elaborate Georgia system approved in
Gregg, where juries
still retained power "to return a sentence of life, rather than
death, for no reason whatever, simply based upon their own
subjective notions of what is right and what is wrong."
Woodson, 428 U. S., at 314-315 (REHNQUIST, J., dissenting).
As a regrettable but predictable consequence of
Penry v.
Lynaugh, 492
U. S. 302 (1989), the Texas Legislature has since amended its
sentencing statute, which now invites the jury to react
subjectively to "all" circumstances, including "the
496
We have consistently recognized that the discretion to accord
mercy-even if "largely motivated by the desire to mitigate"-is
indistinguishable from the discretion to impose the death penalty.
Furman, 408 U. S., at 313, 314 (WHITE, J., concurring)
(condemning unguided discretion because it allows the jury to
"refuse to impose the death penalty no matter what the
circumstances of the crime") (emphasis added). See also
Jurek, 428 U. S., at 279 (WHITE, J., concurring in judgment)
(Texas' scheme is constitutional because it "does not extend to
juries discretionary power to dispense mercy");
Roberts,
supra, at 335 (joint opinion) (Louisiana's statute "plainly
invites" jurors to "choose a verdict for a lesser offense whenever
they feel the death penalty is inappropriate"). For that reason, we
have twice refused to disapprove instructions directing jurors"
'not [to] be swayed by mere ... sympathy,'" because, we have
emphasized, such instructions "foste[r] the Eighth Amendment's
'need for reliability in the determination that death is the
appropriate punishment in a specific case.'''
California v.
Brown, 479 U. S., at 539, 543 (quoting
Woodson, 428
U. S., at 305 (joint opinion)). Accord,
Saffle v.
Parks, 494 U. S., at 493 ("Whether a juror feels sympathy
for a capital defendant is more likely to depend on that juror's
own emotions than on the actual evidence regarding the crime and
the defendant. It would be very difficult to reconcile a rule
allowing the fate of a defendant to turn on the vagaries of
particular jurors' emotional sensitivities with our longstanding
recognition that, above all, capital sentencing must be reliable,
accurate, and nonarbitrary").
Penry reintroduces the very risks that we had sought to
eliminate through the simple directive that States in all events
provide rational standards for capital sentencing. For 20 years, we
have acknowledged the relationship be-
personal moral culpability of the defendant." See Tex. Code
Crim. Proc. Ann., Art. 37.0711(2)(e) (Vernon Supp. 1993)
(applicable to offenses committed on or after September 1,
1991).
497
tween undirected jury discretion and the danger of
discriminatory sentencing-a danger we have held to be inconsistent
with the Eighth Amendment. When a single holding does so much
violence to so many of this Court's settled precedents in an area
of fundamental constitutional law, it cannot command the force of
stare decisis. In my view,
Penry should be overruled.
10
III
The major emphasis throughout our Eighth Amendment jurisprudence
has been on "reasoned" rather than "moral" sentencing. We have
continually sought to verify that States' capital procedures
provide a "rational basis" for predictably determining which
defendants shall be sentenced to death.
Furman, supra, at
294 (Brennan, J., concurring). See also
Spaziano v.
Florida, 468
U. S. 447, 460 (1984);
California v.
Brown,
supra, at 541;
Barclay v.
Florida, 463 U. S. 939, 960 (1983)
(STEVENS, J., concurring in judgment) ("A constant theme of our
cases ... has been emphasis on procedural protections that are
intended to ensure that the death penalty will be imposed in a
consistent, rational manner");
McCleskey v.
Kemp, 481
U. S., at 323 (Brennan, J., dissent-
10 Indeed, it can be argued that we have already implicitly
overruled
Penry in significant respects. In
Saffle v.
Parks, 494 U.
S. 484 (1990), we gave a dramatically narrow reading to
Penry, reaffirming that under
Lockett v.
Ohio,
438 U. S. 586
(1978), and
Eddings v.
Oklahoma, 455 U. S. 104 (1982), the
State is free to "limi[t] the manner in which [a defendant's]
mitigating evidence may be considered." 494 U. S., at 491. And in
Boyde v.
California, 494 U. S. 370 (1990), we
expressly rejected the significance of
Penry's conclusion
that "'a reasonable juror
could well have believed that
there was no vehicle for expressing the view that Penry did not
deserve to be sentenced to death based upon his mitigating
evidence.' " 494 U. S., at 379 (emphasis in original) (quoting
Penry, supra, at 326).
Boyde held instead that a jury
instruction will run afoul of
Eddings only if "there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence," and the Court made it clear
that "a capital sentencing proceeding is not inconsistent with the
Eighth Amendment if there is only a possibility of such an
inhibition." 494 U. S., at 380.
498
ing) ("[C]oncern for arbitrariness focuses on the rationality of
the system as a whole, and ... a system that features a significant
probability that sentencing decisions are influenced by
impermissible considerations cannot be regarded as rational"). And
in the absence of mandatory sentencing, States have only one means
of satisfying
Furman's demands-providing objective standards
to ensure that the sentencer's discretion is "guided and channeled
by ... examination of specific factors."
Proffitt v.
Florida, 428
U. S. 242, 258 (1976) (joint opinion of Stewart, Powell, and
STEVENS, JJ.).
The rule of
Eddings may be an important procedural
safeguard that complements
Furman, but
Eddings cannot
promote consistency, much less rationality. Quite the opposite, as
Penry demonstrates. It is imperative, therefore, that we
give full effect to the standards designed by state legislatures
for focusing the sentencer's deliberations. This Court has long
since settled the question of the constitutionality of the death
penalty. We have recognized that "capital punishment is an
expression of society's moral outrage at particularly offensive
conduct" and that a process for" 'channeling thee] instinct [for
retribution] in the administration of criminal justice serves an
important purpose in promoting the stability of a society governed
by law.'"
Gregg, 428 U. S., at 183 (joint opinion) (quoting
Furman, supra, at 308 (Stewart, J., concurring)). If the
death penalty is constitutional, States must surely be able to
administer it pursuant to rational procedures that comport with the
Eighth Amendment's most basic requirements.
In my view, we should enforce a permanent truce between
Eddings and
Furman. We need only conclude that it is
consistent with the Eighth Amendment for States to channel the
sentencer's consideration of a defendant's arguably mitigating
evidence so as to limit the relevance of that evidence in any
reasonable manner, so long as the State does not deny
499
the defendant a full and fair opportunity to apprise the
sentencer of all constitutionally relevant circumstances. The three
Texas special issues easily satisfy this standard. "In providing
for juries to consider all mitigating circumstances insofar as they
bear upon (1) deliberateness, (2) future dangerousness, and (3)
provocation, ... Texas had adopted a rational scheme that meets the
two concerns of our Eighth Amendment jurisprudence."
Penry,
492 U. S., at 358-359 (SCALIA, J., concurring in part and
dissenting in part).
As a predicate, moreover, I believe this Court should leave it
to elected state legislators, "representing organized society," to
decide which factors are "particularly relevant to the sentencing
decision."
Gregg, supra, at 192. Although
Lockett and
Eddings indicate that as a general matter, "a State cannot
take out of the realm of relevant sentencing considerations the
questions of the defendant's 'character,' 'record,' or the
'circumstances of the offense,'" they do "not hold that the State
has no role in structuring or giving shape to the jury's
consideration of these mitigating factors."
Franklin v.
Lynaugh, 487 U. S., at 179 (plurality opinion). Ultimately,
we must come back to a recognition that "the States, and not this
Court, retain 'the traditional authority' to determine what
particular evidence within the broad categories described in
Lockett and
Eddings is relevant in the first
instance,"
Skipper v.
South Carolina, 476 U. S., at
11 (Powell, J., concurring in judgment) (quoting
Lockett,
438 U. S., at 604, n. 12), since "[t]his Court has no special
expertise in deciding whether particular categories of evidence are
too speculative or insubstantial to merit consideration by the
sentencer," 476 U. S., at 15.11 Accordingly, I also propose
11 Under the Federal Sentencing Reform Act, for example,
Congress has instructed the United States Sentencing Commission to
study the difficult question whether certain specified offender
characteristics "have any relevance" in sentencing. 28 U. S. C. §
994(d). In response to this directive, the Sentencing Commission
has issued guidelines providing, among other
500
that the Court's appropriate role is to review only for
reasonableness a State's determinations as to which specific
circumstances-within the broad bounds of the general categories
mandated under
Eddings-are relevant to capital
sentencing.
Every month, defendants who claim a special victimization file
with this Court petitions for certiorari that ask us to declare
that some new class of evidence has mitigating relevance "beyond
the scope" of the State's sentencing criteria. It may be evidence
of voluntary intoxication or of drug use. Or
even-astonishingly-evidence that the defendant suffers from chronic
"antisocial personality disorder"-that is, that he is a sociopath.
See Pet. for Cert. in
Demouchette v.
Collins, O. T.
1992, No. 92-5914, p. 4, cert. denied, 505 U. S. 1246 (1992). We
cannot carry on such a business, which makes a mockery of the
concerns about racial discrimination that inspired our decision in
Furman.
For all these reasons, I would not disturb the effectiveness of
Texas' former system.
JUSTICE STEVENS, dissenting.
Neither the race of the defendant nor the race of the victim
should play a part in any decision to impose a death sentence. As
JUSTICE THOMAS points out, there is reason to believe that this
imperative was routinely violated in the
things, that race, sex, national origin, creed, religion, and
socioeconomic status "are not relevant in the determination of a
sentence." United States Sentencing Commission, Guidelines Manual §
5H1.1O (Nov. 1992). Congress has also concluded that a defendant's
education, vocational skills, employment record, and family and
community ties are inappropriate sentencing factors. 28 U. S. C. §
994(e). Thus, the Sentencing Guidelines declare that these and
other factors "are not ordinarily relevant in determining whether a
sentence should be outside the applicable guideline range." See
USSG ch. 5, pt. H, intro. comment. Similar guidelines, it seems to
me, could be applied in capital sentencing consistent with the
Eighth Amendment, as long as they contributed to the
rationalization of the process.
501
years before the Court first held that capital punishment may
violate the Eighth Amendment, when racial discrimination infected
the administration of the death penalty "particularly in Southern
States, and most particularly in rape cases."
Ante, at 479
(concurring opinion). And JusTICE THOMAS is surely correct that
concern about racial discrimination played a significant role in
the development of our modern capital sentencing jurisprudence.
Ante, at 479484. Where I cannot agree with JUSTICE THOMAS is
in the remarkable suggestion that the Court's decision in
Penry v.
Lynaugh, 492 U. S. 302 (1989),
somehow threatens what progress we have made in eliminating racial
discrimination and other arbitrary considerations from the capital
sentencing determination.
In recent years, the Court's capital punishment cases have
erected four important safeguards against arbitrary imposition of
the death penalty. First, notwithstanding a minority view that
proportionality should play no part in our analysis/ we have
concluded that death is an impermissible punishment for certain
offenses. Specifically, neither the crime of rape nor the kind of
unintentional homicide referred to by JUSTICE THOMAS,
ante,
at 485, may now support a death sentence. See
Enmund v.
Florida, 458
U. S. 782 (1982);
Coker v.
Georgia, 433 U. S. 584 (1977).
Second, as a corollary to the proportionality requirement, the
Court has demanded that the States narrow the class of individuals
eligible for the death penalty, either through statutory
definitions of capital murder, or through statutory specification
of aggravating circumstances. This narrowing requirement, like the
categorical exclusion of the offense of rape, has significantly
minimized the risk of racial bias in the sentencing process.2
Indeed, as I pointed out in my dissent
1 See Harmelin v. Michigan,
501 U. S. 957 (1991).
2 As an indication of the difference such narrowing can make, it
is worthwhile to note that at the time we decided Furman v.
Georgia,
408 U. S.
238 (1972), in addition to defendants convicted of first-degree
murder, al-
502
in
McCleskey v.
Kemp, 481 U. S. 279 (1987),
there is strong empirical evidence that an adequate narrowing of
the class of death-eligible offenders would eradicate any
significant risk of bias in the imposition of the death
penalty.3
Third, the Court has condemned the use of aggravating factors so
vague that they actually enhance the risk that unguided discretion
will control the sentencing determination. See,
e. g.,
Maynard v.
Cartwright, 486 U. S. 356 (1988)
(invalidating "especially heinous, atrocious, or cruel" aggravating
circumstance);
Godfrey v.
Georgia, 446 U. S. 420 (1980)
(invalidating "outrageously or wantonly vile, horrible or inhuman"
aggravating circumstance). An aggravating factor that invites a
judgment as to whether a murder committed by a member of another
race is especially "heinous" or "inhuman" may increase, rather than
decrease, the chance of arbitrary decisionmaking, by creating room
for the influence of personal prejudices. In my view, it is just
such aggravating factors, which fail to cabin sentencer
discretion
most all defendants convicted of forcible rape, armed robbery,
and kidnaping were eligible for the death penalty. See
Walton v.
Arizona, 497 U. S. 639, 715 (1990)
(STEVENS, J., dissenting).
3 "The Court's decision appears to be based on a fear that the
acceptance of McCleskey's claim would sound the death knell for
capital punishment in Georgia. If society were indeed forced to
choose between a racially discriminatory death penalty (one that
provides heightened protection against murder 'for whites only')
and no death penalty at all, the choice mandated by the
Constitution would be plain. But the Court's fear is unfounded. One
of the lessons of the Baldus study is that there exist certain
categories of extremely serious crimes for which prosecutors
consistently seek, and juries consistently impose, the death
penalty without regard to the race of the victim or the race of the
offender. If Georgia were to narrow the class of death-eligible
defendants to those categories, the danger of arbitrary and
discriminatory imposition of the death penalty would be
significantly decreased, if not eradicated. As JUSTICE BRENNAN has
demonstrated in his dissenting opinion, such a restructuring of the
sentencing scheme is surely not too high a price to pay."
McCleskey v. Kemp,
481 U. S. 279, 367 (1987)
(STEVENS, J., dissenting) (internal citation omitted).
503
in the determination of death eligibility, that pose the
"evident danger" of which JUSTICE THOMAS warns. See
ante, at
479.
Finally, at the end of the process, when dealing with the narrow
class of offenders deemed death eligible, we insist that the
sentencer be permitted to give effect to all relevant mitigating
evidence offered by the defendant, in making the final sentencing
determination. See,
e. g., Eddings v.
Oklahoma,
455 U. S. 104
(1982);
Lockett v.
Ohio, 438 U. S. 586 (1978). I
have already explained my view that once the class of
death-eligible offenders is sufficiently narrowed, consideration of
relevant, individual mitigating circumstances in no way compromises
the "rationalizing principle,"
ante, at 490 (THOMAS, J.,
concurring), of
Furman v.
Georgia, 408 U. S. 238
(1972). See
Walton v.
Arizona, 497 U. S. 639, 715719
(1990) (STEVENS, J., dissenting). To the contrary, the requirement
that sentencing decisions be guided by consideration of relevant
mitigating evidence reduces still further the chance that the
decision will be based on irrelevant factors such as race.
Lockett itself illustrates this point. A young black woman,4
Lockett was sentenced to death because the Ohio statute "did not
permit the sentencing judge to consider, as mitigating factors, her
character, prior record, age, lack of specific intent to cause
death, and her relatively minor part in the crime." 438 U. S., at
597. When such relevant facts are excluded from the sentencing
determination, there is more, not less, reason to believe that the
sentencer will be left to rely on irrational considerations like
racial animus.
I remain committed to our "mitigating" line of precedent, as a
critical protection against arbitrary and discriminatory capital
sentencing that is fully consonant with the principles of
Furman. Nothing in JUSTICE THOMAS' opinion explains
4 See Brief for Petitioner in
Lockett v.
Ohio, O.
T. 1977, No. 76-6997, p.1O.
504
why the requirement that sentencing decisions be based on
relevant mitigating evidence, as applied by
Penry,
increases the risk that those decisions will be based on the
irrelevant factor of race. More specifically, I do not see
how permitting full consideration of a defendant's mental
retardation and history of childhood abuse, as in
Penry, or
of a defendant's youth, as in this case, in any way increases the
risk of race-based or otherwise arbitrary decisionmaking.
JUSTICE SOUTER, in whose dissent I join, has demonstrated that
the decision in
Penry is completely consistent with our
capital sentencing jurisprudence. In my view, it is also faithful
to the goal of eradicating racial discrimination in capital
sentencing, which I share with JUSTICE THOMAS.
JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JusTICE STEVENS, and
JUSTICE O'CONNOR join, dissenting.
In
Penry v.
Lynaugh, 492 U. S. 302 (1989), we
concluded that a petitioner did not seek the benefit of a "new
rule" in claiming that the Texas special issues did not permit the
sentencing jury in his case to give full mitigating effect to
certain mitigating evidence, and we therefore held that the
retroactivity doctrine announced in
Teague v.
Lane,
489 U. S. 288,
301 (1989) (plurality opinion), did not bar the claim. See 492 U.
S., at 314-319. The only distinctions between the claim in
Penry and those presented here go to the kind of mitigating
evidence presented for the jury's consideration, and the distance
by which the Texas scheme stops short of allowing full effect to be
given to some of the evidence considered. Neither distinction makes
a difference under
Penry or the prior law on which
Penry stands. Accordingly, I would find no bar to the
present claims and would reach their merits: whether the mitigating
force of petitioner's youth, unfortunate background, and traits of
decent character could be considered adequately by a jury
instructed only
505
on the three Texas special issues.1 I conclude they could not
be, and I would reverse the sentence of death and remand for
resentencing. From the Court's contrary judgment, I respectfully
dissent.
I
The doctrine of
Teague v.
Lane, supra, that a
state prisoner seeking federal habeas relief may not receive
retroactive benefit of a "new rule" of law, has proven hard to
apply. We have explained its crucial term a number of ways. JusTICE
O'CONNOR wrote in
Teague itself that "[i]n general ... a
case announces a new rule when it breaks new ground or imposes a
new obligation on the States or the Federal Government .... To put
it differently, a case announces a new rule if the result was not
dictated by precedent at the time the defendant's conviction
became final." 489 U. S., at
1 After Texas' capital punishment statute was invalidated in
Branch v.
Texas, one of the cases decided with
Furman v.
Georgia, 408
U. S. 238 (1972), Texas enacted a new capital sentencing
statute. This statute, under which petitioner Gary Graham was
sentenced, provides that:
"(b) [o]n conclusion of the presentation of the evidence [at the
sentencing phase of a capital murder trial], the court shall submit
the following issues to the jury:
"(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;
"(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and
"(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased.
"(e) If the jury returns an affirmative finding on each issue
submitted under this article, the court shall sentence the
defendant to death." Tex. Code Crim. Proc. Ann., Art. 37.071
(Vernon 1981).
Following our decision in
Penry v.
Lynaugh,
492 U. S. 302
(1989), Texas adopted a new capital sentencing procedure which is
not at issue here. See Tex. Code Crim. Proc. Ann., Art. 37.071
(Vernon Supp. 1992).
506
301 (plurality opinion) (emphasis in original). We have said
that novelty turns on whether the rule would represent a
"developmen[t] in the law over which reasonable jurists [could]
disagree,"
Sawyer v.
Smith, 497 U. S. 227, 234
(1990), and we have emphasized that reasonableness is not a wholly
deferential standard, by making it clear that the existence of
conflicting authority does not alone imply that any rule resolving
that conflict is a new one,
Stringer v.
Black, 503 U.
S. 222, 236-237 (1992).
One general rule that has emerged under
Teague is that
application of existing precedent in a new factual setting will not
amount to announcing a new rule. See
Wright v.
West,
505 U. S. 277,
304 (1992) (O'CONNOR, J., joined by BLACKMUN and STEVENS, JJ.,
concurring in judgment) ("If a proffered factual distinction
between the case under consideration and pre-existing precedent
does not change the force with which the precedent's underlying
principle applies, the distinction is not meaningful, and any
deviation from precedent is not reasonable"); id., at 309 (KENNEDY,
J., concurring in judgment) ("Where the beginning point is a rule
of this general application, a rule designed for the specific
purpose of evaluating a myriad of factual contexts, it will be the
infrequent case that yields a result so novel that it forges a new
rule, one not dictated by precedent"); id., at 313 (SOUTER, J.,
concurring in judgment)
(Teague "does not mean, of course,
that a habeas petitioner must be able to point to an old case
decided on facts identical to the facts of his own").
That said, it can be a difficult question whether a particular
holding presents simply a new setting for an old rule, or announces
a new one. The question is not difficult in this case, however, for
its answer is governed by
Penry, supra, at 313, 329, the
first case in which a majority of the Court adopted the approach to
retroactivity put forward by the plurality in
Teague. See
492 U. S., at 313. The circumstances in which petitioner Penry
sought relief, and the rule that he sought to have applied, are
virtually indistinguish-
507
able from the circumstances presented and the rule of decision
sought by Graham in this case. We denied certiorari in Penry's
direct appeal in 1986.
Penry v.
Texas, 474 U. S. 1073 (1986).
The Texas Court of Criminal Appeals affirmed Graham's conviction
and sentence of death in 1984,
Graham v.
State, No.
68,916, and Graham did not seek certiorari in this Court. In both
cases, therefore, under the reasoning employed by the majority, see
ante, at 467, "[t]his Court's decisions in
Lockett v.
Ohio, 438 U.
S. 586 (1978), and
Eddings v.
Oklahoma, 455 U. S. 104 (1982),
were rendered before [petitioners'] conviction[s] became final."
Penry, 492 U. S., at 314-315. Because Penry was "entitled to
the benefit of those decisions," id., at 315, so, on a comparable
claim, is Graham.
Our description of Penry's claim applies, indeed, almost
precisely to Graham's claim in this case. Of Penry, we said:
"[He] does not challenge the facial validity of the Texas death
penalty statute, which was upheld against an Eighth Amendment
challenge in Jurek v. Texas, 428 U. S. 262 (1976).
Nor does he dispute that some types of mitigating evidence can be
fully considered by the sentencer in the absence of special jury
instructions. See Franklin v. Lynaugh, 487 U. S. 164, 175 (1988)
(plurality opinion); id., at 185-186 (O'CONNOR, J., concurring in
judgment). Instead, [he] argues that, on the facts of this case,
the jury was unable to fully consider and give effect to the
mitigating evidence ... in answering the three special issues."
Ibid.
In deciding whether he sought benefit of a "new rule," we went
on to say:
"Lockett underscored Jurek's recognition that the
constitutionality of the Texas scheme 'turns on whether the
enumerated questions allow consideration of particularized
mitigating factors.' Jurek, 428 U. S., at 272. The plurality
opinion in Lockett indicated that the Texas
508
death penalty statute had 'survived the petitioner's Eighth and
Fourteenth Amendment attack [in Jurek] because three
Justices concluded that the Texas Court of Criminal Appeals had
broadly interpreted the second question-despite its facial
narrowness-so as to permit the sentencer to consider "whatever
mitigating circumstances" the defendant might be able to show.' 438
U. S., at 607." Id., at 317.
We then reviewed the reaffirmation in
Eddings v.
Oklahoma, 455
U. S. 104 (1982), of the principle that "a sentencer may not be
precluded from considering, and may not refuse to consider, any
relevant mitigating evidence offered by the defendant as the basis
for a sentence less than death." Thus, we said, "at the time
Penry's conviction became final," as at the time Graham's did,
"it was clear from Lockett and Eddings that a
State could not, consistent with the Eighth and Fourteenth
Amendments, prevent the sentencer from considering and giving
effect to evidence relevant to the defendant's background or
character or to the circumstances of the offense that mitigate
against imposing the death penalty. Moreover, the facial validity
of the Texas death penalty statute had been upheld in Jurek
on the basis of assurances that the special issues would be
interpreted broadly enough to enable sentencing juries to consider
all of the relevant mitigating evidence a defendant might present."
492 U. S., at 318.
Graham contends that
Jurek v.
Texas, 428 U. S. 262 (1976),
Lockett v.
Ohio, 438 U. S. 586 (1978), and
Eddings v.
Oklahoma, supra, were not honored in the
application of the Texas special issues on the facts of his case,
and, in this respect, too, his position is identical to that of
Penry, who argued that "those assurances [on which
Jurek
rests] were not fulfilled
in his particular case because,
without appropriate instructions, the jury could not fully consider
and give effect
509
to [his] mitigating evidence ... in rendering its sentencing
decision." 492 U. S., at 318 (emphasis in original). In
Penry, we held that nothing foreclosed such a claim:
"The rule Penry seeks-that when such mitigating evidence is
presented, Texas juries must, upon request, be given jury
instructions that make it possible for them to give effect to that
mitigating evidence in determining whether the death penalty should
be imposed-is not a 'new rule' under Teague because it is
dictated by Eddings and Lockett. Moreover, in light
of the assurances upon which Jurek was based, we conclude
that the relief Penry seeks does not 'impos[e] a new obligation' on
the State of Texas. Teague, 489 U. S., at 301." Id.,
at 318-319.
Thus in
Penry we held that petitioner sought nothing but
the application to his case of the rule announced in
Eddings
and
Lockett, that "a State could not, consistent with the
Eighth and Fourteenth Amendments, prevent the sentencer from
considering and giving effect to evidence relevant to the
defendant's background or character or to the circumstances of the
offense that mitigate against imposing the death penalty." 492 U.
S., at 318.
The first distinction between Penry's claim and that of Graham
is the type of mitigating evidence involved. Penry's went to
"mental retardation and abused childhood"; Graham's involves
youthfulness, unfortunate background, and traits of decent
character. But any assertion that this should make any difference
flies in the face of JUSTICE KENNEDY'S opinion from last Term,
quoted before, that "a rule of this general application, a rule
designed for the specific purpose of evaluating a myriad of factual
contexts [will only infrequently] yiel[d] a result so novel that it
forges a new rule, one not dictated by precedent."
Wright v.
West, 505 U. S., at 309 (opinion concurring in judgment).
Nor is the second distinction any more material, that Penry's
evidence
510
of retardation could claim no mitigating effect under the second
Texas issue, which asks the jury to assess a defendant's future
dangerousness, whereas Graham's evidence of youth and decency could
claim some.2 The point under
Lockett, Eddings, and
Penry is that sentencing schemes must allow the sentencer to
give full mitigating effect to evidence; Graham's claim that his
evidence could receive only partial consideration is just as much a
claim for application of the preexisting rule demanding the
opportunity for full effect as was Penry's claim that his
retardation could be given no effect under the second Texas special
issue.
Thus, from our conclusion that the rule from which the
petitioner sought to benefit in
Penry was not "new," it
necessarily follows that the rule petitioner Graham seeks here is
not new either. Indeed, that is the conclusion reached even by
respondent who concedes that "if Graham is asserting the existence
of a constitutional defect that can be cured by supplemental
instructions, his claim likewise is not barred." Brief for
Respondent 29, n. 10.3
2 This distinction does not even apply to Graham's claim that
the sentencing jury could not give full mitigating effect to the
evidence of his unfortunate background. Of course, in this regard,
despite their mitigating force, Penry's evidence of an abused
childhood and Graham's evidence of an unfortunate background both
have the same tendency to support only an affirmative answer to the
future dangerousness special issue. The Court does not explain why,
under its reasoning, Graham's claim concerning evidence of his
background is barred by
Teague v.
Lane, 489 U. S. 288 (1989)
(plurality opinion). See
ante, at 475 (undifferentiated
references to all of "Graham's evidence").
3 Respondent's only argument concerning the application of
Teague is that petitioner's claim is
Teague-barred if
"his claim is so extensive as to constitute a facial challenge to
the Texas statute." Brief for Respondent 13. In other words, "if
sustaining Graham's claim would necessarily require that
Jurek be overruled, it is barred by
Teague." Id., at
29, n. 10. However, petitioner does not ask that
Jurek v.
Texas, 428 U.
S. 262 (1976), be overruled. Indeed, he concedes that the Texas
statute has been applied constitutionally in those cases such as
Franklin v.
Lynaugh, 487 U. S. 164 (1988), in which
the mitigating evidence can be given "full" miti-
511
The Court's conclusion to the contrary rests on the assumption
that an additional instruction is required under
Penry only
where there is mitigating evidence without any "mitigating
relevance" to the second, future dangerousness special issue. See
ante, at 475. But that was not the holding of
Penry,
which reiterates the Eighth Amendment requirement expressed in
Lockett and
Eddings that the jury be able "to
consider fully [the defendant's] mitigating evidence,"
Penry, 492 U. S., at 323, and requires a separate
instruction whenever such evidence "has relevance to ... moral
culpability beyond the scope of the special issues," id., at 322.
Indeed, JUSTICE SCALIA'S dissent in
Penry recognized that
"[w]hat the Court means by 'fully consider' (what it must mean to
distinguish
Jurek) is to consider
for all purposes,
including purposes not specifically permitted by the questions."
Id., at 355 (opinion dissenting in relevant part) (emphasis in
original). That dissent argued that this was not what was required
by the Constitution, see id., at 358-360,4 but it correctly
described the holding in the Court's opinion in
Penry
itself. Nothing in
Penry aside from JUSTICE SCALIA'S
dissent, and nothing in the controlling opinions in
Lockett
or
Eddings, suggested that this Eighth Amendment requirement
will be obviated by the happenstance that a defendant's particular
mitigating evidence is relevant to one of the special issues, even
though it may have mitigating force beyond the scope of that
issue.
Penry plainly answered the
Teague question that
the majority answers differently today, a question that even
re-
gating weight under the special issues. See Brief for Petitioner
15, and
4 See also
Penry, 492 U. S., at 356 (SCALIA, J.,
dissenting in part) (arguing, contrary to the holding of the Court,
that after
Jurek "there remains available, in an as-applied
challenge to the Texas statute," only "the contention that a
particular mitigating circumstance is in fact irrelevant to any of
the three questions it poses, and hence could not be
considered").
512
spondent did not see fit to raise again.
Penry controls
in this respect, and we should adhere to it.
II
I therefore turn to the merits of the claim,5 which are properly
before us.6
Penry again controls, for reasons already
anticipated in the
Teague analysis, but bearing some
expansion here.
A
Following the first grant of certiorari in this case, after we
vacated the judgment and remanded for reconsideration in light of
Penry, see
Graham v.
Lynaugh, 492 U. S. 915
(1989), a panel of the Court of Appeals for the Fifth Circuit
decided to vacate Graham's death sentence and remand.
Graham
v.
Collins, 896 F.2d
893 (1990). The Court of Appeals then took the case en bane,
however, and, by a vote of 7 to 6, construed
Penry to
require no additional instruction "in instances where no major
mitigating thrust of the evidence is
5 The full Court may do the same in responding to several
pending petitions for certiorari presenting the same question
involved in this case, but on direct review. See,
e. g.,
Johnson v.
Texas, cert. pending, No. 92-5653;
Jackson v.
Texas, cert. pending, No. 91-7399;
Boggess v.
Texas, cert. pending, No. 91-5862.
6 At trial petitioner did not seek the additional
Penry
instruction that he now says is required. Whether the failure to
request such an instruction is a bar to a subsequent challenge is a
question of state procedure; if the conviction were affirmed by the
state appellate courts on the ground that petitioner failed to
raise his claim before the trial court, that affirmance could rest
on an independent and adequate state-law ground. Here, the Texas
Court of Criminal Appeals appears to have addressed petitioner's
challenge on the merits in a state postconviction proceeding. See
App. 37. In any event, under Texas law, a
Penry claim is not
procedurally barred even if no additional mitigating-evidence
instruction is requested or there is no objection made at trial to
the jury instructions. See
Selvage v.
Collins, 816 S.
W. 2d 390, 392 (Tex. Crim. App. 1991);
Black v.
State, 816 S. W. 2d 350, 362-369 (Tex. Crim. App. 1991);
id., at 367-374 (Campbell, J., concurring). The adequacy of
the Texas special issues in this case is therefore properly before
us.
513
substantially beyond the scope of all the special issues."
950 F.2d
1009, 1027 (CA5 1992) (en bane). It also limited the
application of
Penry to mitigating evidence of circumstances
that were not "transitory," but were "uniquely severe permanent
handicaps with which the defendant was burdened through no fault of
his own." See 950 F. 2d, at 1029.
Penry lends no support for
these limitations, however, and they are plainly at odds with other
controlling Eighth Amendment precedents, which the Court does not
purport to disturb.
B
Our cases have construed the Eighth Amendment to impose two
limitations upon a state capital sentencing system. First, in
determining who is eligible for the death penalty, the "State must
'narrow the class of murderers subject to capital punishment,' ...
by providing 'specific and detailed guidance' to the sentencer."
McCleskey v.
Kemp, 481 U. S. 279, 303 (1987)
(quoting
Gregg v.
Georgia, 428 U. S. 153, 196
(1976), and
Proffitt v.
Florida, 428 U. S. 242, 253
(1976)). Second, "the Constitution [nonetheless] limits a State's
ability to narrow a sentencer's discretion to consider relevant
evidence that might cause it to
decline to impose the death
sentence." 481 U. S., at 304 (emphasis in original). It is this
latter limitation that concerns us today.
Our cases require that a sentencer in a capital case be
permitted to give a "reasoned moral response" to the defendant's
mitigating evidence. See
California v.
Brown,
479 U. S. 538,
545 (1987) (O'CONNOR, J., concurring) (emphasis deleted). In so
doing, "[t]he sentencer ... [cannot] 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."
Lockett, 438 U. S., at 604 (plurality opinion)
(emphasis in original; footnote omitted). This is understood to
follow from our conclusion that "[a]ny exclusion of the
'compassionate or mitigating factors stem-
514
ming from the diverse frailties of humankind' that are relevant
to the sentencer's decision would fail to treat all persons as
'uniquely individual human beings.'"
McCleskey, supra, at
304 (quoting
Woodson v.
North Carolina, 428 U. S. 280, 304
(1976)).
As we first described it in
Jurek, the Texas scheme to be
measured against this obligation assesses mitigating (as well as
aggravating) evidence by looking both backward to the defendant's
moral culpability for the crime itself, as distinct from strictly
legal guilt, and forward to his likely behavior if his life is not
taken. Thus the first issue requires the sentencer to determine
whether the defendant acted deliberately, and the third asks for
assessment of any provocation as mitigating the fault of any
response. Each issue demands an examination of past fact as bearing
on the moral significance of a past act. The second issue, on the
other hand, calls for a prediction of future behavior, prompting a
judgment that is moral in the utilitarian sense that society may
legitimately prefer to preserve the lives of murderers unlikely to
endanger others in the future, as against the lives of the guilty
who pose continuing threats.
While these issues do not exhaust the categories of mitigating
fact,7 at the time
Jurek was decided the Court of Criminal
Appeals of Texas had indicated that the second special issue would
be given a wide enough compass to allow jury consideration of such
diverse facts as prior record and the character of past crimes,
duress, or emotional pressure
7 Or, indeed, all the ways in which evidence may mitigate
against imposition of a death sentence previously mentioned by
Members of this Court. See
Franklin v.
Lynaugh, 487
U. S., at 186 (O'CONNOR, J., joined by BLACKMUN, J., concurring in
judgment) (referring to "positive character traits that might
mitigate against the death penalty"); id., at 189 (STEVENS, J.,
joined by Brennan and Marshall, JJ., dissenting) (character
evidence of "redeeming features" may reveal "virtues that can
fairly be balanced against society's interest in killing [a
defendant] in retribution for his violent crime"). My analysis
today does not require extended consideration of the category
suggested in
Franklin. See
infra, at 521.
515
associated with the instant crime, and the age of the defendant.
Jurek, 428 U. S., at 272-273. Thus, we had a reasonable
expectation that the sentencer would have authority to give
comprehensive effect to each defendant's mitigating evidence. As
Penry revealed, however, and as the facts of this case
confirm, neither the second nor the other special issues have been
construed with enough scope to allow the full consideration of
mitigating potential that
Lockett and
Eddings
confirmed are required, and challenges to the Texas statute as
applied may be sustained despite the statute's capacity to
withstand
Jurek's facial challenge. In its holding that a
death sentence resulting from the application of the Texas special
issues could not be upheld unless the jury was able "to consider
fully [the defendant's] mitigating evidence," 492 U. S., at 323,8
Penry is a perfectly straightforward application of the
Eighth Amendment's requirement of individualized sentencing.9
8 See also
Jurek, 428 U. S., at 272 (joint opinion of
Stewart, Powell, and STEVENS, JJ.) ("[T]he constitutionality of the
Texas procedures turns on whether the enumerated questions allow
consideration of particularized mitigating factors").
9 JUSTICE THOMAS argues,
ante, at 493, that the rule
applied in
Penry "originated entirely from whole cloth in
two recent concurring opinions,"
California v.
Brown,
479 U. S. 538,
545 (1987) (O'CONNOR, J., concurring), and
Franklin v.
Lynaugh, supra, at 185 (O'CONNOR, J., concurring in
judgment), and that it requires "unbridled" jury discretion, even
to the point that the death penalty may be withheld on the basis of
race,
ante, at 494.
As to the first contention,
Lockett v.
Ohio, 438
U. S 586 (1978), was understood at the time it was handed down to
require that constitutionally relevant mitigating evidence (the
definition of which is given below) be given full consideration
and effect. See,
e. g., id., at 623 (WHITE, J.,
concurring in part, dissenting in part, and concurring in
judgments) (emphasis added)
(Lockett "requir[es] as a matter
of constitutional law that sentencing authorities be permitted to
consider
and in their discretion to act upon any and all
mitigating circumstances"). This is the understanding upon which
Lockett and
Eddings have consistently been applied by
the Court. See
Skipper v.
South Carolina, 476 U. S. 1, 7 (1986)
("Assuming ... that [a State Supreme Court] rule would in any case
have the effect of precluding the defendant from introducing
otherwise admissible evi-
516
The specific question in
Penry itself was whether the
mitigating evidence of Penry's mental retardation and history of
abuse "as it bears on [Penry's] personal culpability" could be
dence for the explicit purpose of convincing the jury that he
should be spared the death penalty because he would pose no undue
danger to his jailers or fellow prisoners and could lead a useful
life behind bars if sentenced to life imprisonment, the rule would
not pass muster under
Eddings"); McCleskey v.
Kemp,
481 U. S. 279,
306 (1987) ("States cannot
limit the sentencer's
consideration of any relevant circumstance that could cause it
to decline to impose the [death] penalty" (emphasis added));
Franklin v.
Lynaugh, supra, at 184-185 (O'CONNOR, J.,
joined by BLACKMUN, J., concurring in judgment); id., at 191-192
(STEVENS, J., joined by Brennan and Marshall, JJ., dissenting).
While one may argue that this aspect of our Eighth Amendment
jurisprudence is in tension with the sentence in
Gregg that
the State should give the jury guidance as to what factors it
"'deems particularly relevant to the sentencing decision,'"
ante, at 485 (THOMAS, J., concurring) (quoting
Gregg
v.
Georgia, 428 U. S. 153, 192
(1976)), any such tension dates, at the latest, from
Eddings, decided in 1982, not from
Penry in 1989.
There was one novelty in the concurring opinions in
Brown
and
Franklin, however, in the use of the phrase "reasoned
moral response," see
supra, at 513, to which JUSTICE THOMAS
adverts in his concurring opinion. But as the concurring opinion
explained in
Brown, this is just a shorthand for the
individual assessment of personal culpability that
Lockett
and
Eddings mandate. See
Brown, supra, at 545. It is,
indeed, appropriate shorthand. JUSTICE THOMAS himself acknowledges,
as I think everyone must, "that 'capital punishment is an
expression of society's moral outrage at particularly offensive
conduct,'"
ante, at 498 (quoting
Gregg v.
Georgia,
supra, at 183 (joint opinion of Stewart, Powell, and STEVENS,
JJ.)), and he reminds us that "[a]ny determination that death is or
is not the fitting punishment for a particular crime will
necessarily be a moral one,"
ante, at 494.
JUSTICE THOMAS'S second concern, about "sympathy for a defendant
who is a member of a favored group,"
ante, at 495, involves
an issue of very great seriousness. But the
Lockett-Eddings
rule is not one of "unbridled" or "unbounded" discretion. See
ante, at 494-495. Constitutionally relevant mitigating
evidence is limited to "any aspects 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, supra, at 604 (plurality opinion). A defendant's
race as such is not mitigating as an aspect of his character or
record, or as a circumstance of any offense he may have
committed.
517
taken account of under the Texas special issues, ibid., and in
deciding that case, we examined each special issue in turn. We
concluded first that the jury instruction barred full consideration
of the evidence of retardation and personal abuse under the first,
or "deliberate[ness]," special issue, see ibid., and second that
insofar as the evidence bore on personal culpability, it could not
be given mitigating effect under the issue of "future
dangerousness." As to the latter, indeed, it could have been
considered only as an aggravating factor. Although we described
Penry's evidence as a "two-edged sword ... diminish[ing] his
blameworthiness for his crime even as it indicates that there is a
probability that he will be dangerous in the future," id., at 324,
the dilemma thus presented was not essential to our conclusion that
the second special issue failed to meet the State's constitutional
obligations. The point was simply that the special issue did not
allow the jury to give effect to the mitigating force of Penry's
evidence as it bore on his personal culpability. Finally we
concluded that "a juror who believed Penry lacked the moral
culpability to be sentenced to death could not express that view in
answering the third ['provocation'] special issue if she also
concluded that Penry's action was not a reasonable response to
provocation."
Id., at 324-325. In sum, full consideration of
the tendency of retardation and a history of abuse to mitigate
moral culpability was impossible.
c
Graham's evidence falls into three distinct categories. As to
each, our task is to take the same analytical steps we undertook in
Penry, to see whether the sentencing jury could give it full
mitigating effect.
1
First, there was the evidence of Graham's youth. He was 17 when
he committed the murder for which he was convicted, and he was
sentenced less than six months after the
518
crime. Youth may be understood to mitigate by reducing a
defendant's moral culpability for the crime, for which emotional
and cognitive immaturity and inexperience with life render him less
responsible, see
Eddings v.
Oklahoma, 455 U. S., at
115-116, and youthfulness may also be seen as mitigating just
because it is transitory, indicating that the defendant is less
likely to be dangerous in the future.
As with Penry's evidence of mental retardation, the mitigating
force of Graham's youth could not be fully accounted for under the
first, "deliberateness" issue, given the trial judge's explanation
of that issue to the jury. While no formal jury instruction
explained what "deliberate" meant, the judge emphasized at
voir
dire that "deliberate" meant simply "intentional," see App. 90,
127, 169, 205-206, 246, 291, 319320, 353, 420, a definition that
hardly allowed exhaustion of the mitigating force of youth. A young
person may perfectly well commit a crime "intentionally," but our
prior cases hold that his youth may nonetheless be treated as
limiting his moral culpability because he "'lack[s] the experience,
perspective, and judgment' expected of adults."
Eddings,
supra, at 116 (quoting
Bellotti v.
Baird,
443 U. S. 622,
635 (1979)).
We have already noted that the Court of Appeals answered this
difficulty by reasoning that the "major mitigating thrust" of the
evidence could be given effect under the second special issue
calling for assessment of future dangerousness. The errors of this
view we have also seen. First, nothing in
Penry suggests
that partial consideration of the mitigating effect of the evidence
satisfies the Constitution.
Penry, like
Eddings and
the
Lockett plurality before that, states an Eighth
Amendment demand that the sentencer "consider and give effect to
... mitigating evidence" "fully," 492 U. S., at 318, and when such
evidence "has relevance to ... moral culpability beyond the scope
of the special issues," constitutional standards require a separate
instruction au-
519
thorizing that complete effect be given,
id., at 322. See
McCleskey, 481 U. S., at 304 ("[A]ny exclusion" of
mitigating evidence is inconsistent with the Eighth Amendment's
individualized sentencing requirements). Thus, even if the future
dangerousness issue allowed the jury to recognize Graham's
evanescent youth as tending to mitigate any danger if he were
imprisoned for life, it would still fail the test of the Eighth
Amendment because the jury could not give effect to youth as
reducing Graham's moral culpability.lO The Eighth Amendment
requires more than some consideration of mitigating evidence.
The Court of Appeals also erred in thinking the second special
issue adequate even to take account of the possibility that Graham
may be less dangerous as he ages. The issue is stated in terms of
the statutory question "whether there is a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society." Tex. Code Crim. Proc.
Ann., Art. 37.071(b)(2) (Vernon 1981). Because a boy who killed at
17 and was promptly tried (as Graham was) could well be held
dangerous in the future by reason of continuing youth, it was error
to limit
Penry to cases in which a mitigating condition is
permanent. See 950 F. 2d, at 1029. It is no answer to say youth is
fleeting; it may not be fleeting enough, and a sufficiently young
defendant may have his continuing youth considered under the second
issue as aggravating, not mitigating. In this case, moreover, the
possibility of taking youth as aggra-
10 I note in this regard that the trial judge's remarks at
voir dire may have inappropriately left the jury to consider
whether Graham would have been dangerous in the future
if he
were set free. See Brief for Petitioner 8, n. 4. In light of my
conclusion that Graham's death sentence should be vacated, I need
not address here the propriety of a sentence imposed on the basis
of future dangerousness to the public when there is no possibility
that a defendant will be sentenced to a term less than life without
the possibility of parole.
520
vating without any recognition of mitigating effect was vastly
intensified by remarks of the trial judge permitting a finding of
future dangerousness based even on the probability that petitioner
might commit minor acts of criminal vandalism to property such as
scratching someone's car or tearing up the lawn of a high school by
riding a motorcycle over it. See App. 128-129, 172, 210, 247-248,
295, 321-322, 354-355,389-390,422,455.
Finally, because Graham was convicted of shooting and killing a
man during a robbery, the situation with respect to the third
special issue in this case is the same as it was for petitioner in
Penry. The evidence of youth was irrelevant to the
reasonableness of any provocation by the deceased of which there
was no evidence in any event.
A juror could thus have concluded that the responses to the
special issues required imposition of the death penalty even though
he believed that Graham, by reason of his youth, "lacked the moral
culpability to be sentenced to death."
Penry, 492 U. S., at
324. Without more, the case is controlled by
Penry, and
additional instruction was required.
2
The next category of evidence at issue is that of Graham's
difficult upbringing, of his mother's mental illness and repeated
hospitalization, and his shifting custody to one family relation or
another. We have specifically held that such circumstances may be
considered in mitigation, particularly on the conduct of a
defendant so young, see,
e. g., Eddings, supra, at 115,
where upbringing might be deforming enough to affect the capacity
for culpability. Where, as here, however, that is not obviously the
case, and deliberateness is said to turn on intention, there is no
assurance that the first issue allows the full scope of its
mitigating effect to be considered. As with youth itself,
upbringing could
521
be treated as aggravating under the future dangerousness issue,
and it has no mitigating potential under the third issue of
provocation. Again, as with youth, there is no room in the former
Texas special issues as applied in this case to take full account
of such mitigating relevance as the jury might find.
3
Finally, Graham argues that the jury was unable to take account
of redeeming character traits revealed by evidence that growing up
he had voluntarily helped his parents and grandparents with
household chores, that he was a religious person who had attended
church regularly with his grandmother, and that he had contributed
to the support of his own children with money earned from a job
with his father.
I do not accept petitioner's contention that the jury could not
give adequate consideration to the testimony on these matters.
Insofar as the evidence tended to paint Graham as a person unlikely
to pose a future danger, the jury could consider it under the
second special issue. Insofar as the jury was unable, as Graham
alleges, to give the evidence further effect to diminish Graham's
"moral culpability," Brief for Petitioner 36, 37, 39, it is enough
to say that the relevance of the evidence to moral culpability was
simply
de minimis. Voluntary chores for and church
attendance with a relative, and supplying some level of support for
one's children have virtually no bearing on one's culpability for
crime in the way that immaturity or permanent damage due to events
in childhood may. Because I do not understand petitioner to be
arguing that the jury should have been allowed to consider the
evidence as revealing some element of value unrelated to the
circumstances of the crime, see
Franklin, 487 U. S., at 186
(O'CONNOR, J., concurring in judgment); id., at 189 (STEVENS, J.,
dissenting), I do not address that issue.
522
III
I would hold that
Penry and preceding Eighth Amendment
cases of this Court require petitioner's death sentence to be
vacated, and would remand the case for resentencing by the state
courts.
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