OCTOBER TERM, 1992
Syllabus
JOHNSON
v. TEXAS
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS No.
92-5653. Argued April 26, 1993-Decided June 24, 1993
A jury found petitioner Johnson guilty of capital murder for a
crime he committed when he was 19 years old. In conformity with the
Texas capital sentencing statute then in effect, the trial court
instructed the jury during the trial's penalty phase to answer two
special issues: (1) whether Johnson's conduct was committed
deliberately and with the reasonable expectation that death would
result, and (2) whether there was a probability that he would
commit criminal acts of violence that would constitute a continuing
threat to society. The jury was also instructed,
inter alia,
that in determining each of these issues, it could take into
consideration all the evidence submitted to it, whether aggravating
or mitigating, in either phase of the trial. A unanimous jury
answered yes to both special issues, and the trial court sentenced
Johnson to death, as required by law. Shortly after the State Court
of Criminal Appeals affirmed the conviction and sentence, this
Court issued
Penry v.
Lynaugh, 492 U. S. 302. In denying
Johnson's motion for rehearing, the state appellate court rejected
his contentions that the special issues did not allow his jury to
give adequate mitigating effect to evidence of his youth and that
Penry required a separate instruction on the question.
Held: The Texas procedures as applied in this case were
consistent with the Eighth and Fourteenth Amendments under this
Court's precedents. Pp. 359-373.
(a) A review of the Court's relevant decisions demonstrates the
constitutional requirements regarding consideration of mitigating
circumstances by sentencers in capital cases. Although the
sentencer cannot be precluded from considering, as a mitigating
factor, any aspect of the defendant's character or record and any
of the circumstances of the particular offense that the defendant
proffers as a basis for a sentence less than death, see,
e. g.,
Lockett v.
Ohio, 438 U. S. 586, 604
(plurality opinion);
Eddings v.
Oklahoma, 455 U. S. 104, States are
free to structure and shape consideration of mitigating evidence in
an effort to achieve a more rational and equitable administration
of the death penalty, see,
(b) The Texas law under which Johnson was sentenced has been the
principal concern of a series of opinions in this Court. Although,
in
Jurek v.
Texas, 428 U. S. 262, 276, 277,
six Justices agreed that, as a
351
general matter, the special issues system satisfied the
foregoing constitutional requirements, the Court later held, in
Penry v.
Lynaugh, supra, that the system did not
allow for sufficient consideration of the defendant's mitigating
evidence of his mental retardation and childhood abuse in light of
his particular circumstances,
id., at 320-323, and that the
trial court erred in not instructing the jury that it could
consider and give effect to that mitigating evidence by declining
to impose the death penalty,
id., at 328. However, the Court
concluded that it was not creating a new rule, and characterized
its holding as a straightforward application of
Jurek,
Lockett, and
Eddings, making it clear that these cases
can stand together with
Penry, see 492 U. S., at 314-318.
The Court confirmed this limited view of
Penry and its scope
in
Graham v.
Collins, 506 U. S. 461, 474, and
held that the defendant's mitigating evidence of his youth, family
background, and positive character traits was not placed beyond the
jury's effective reach by the Texas scheme,
id., at 475. Pp.
362-366.
(c) The Texas special issues allowed adequate consideration of
Johnson's youth. There is no reasonable likelihood, see
Boyde,
supra, at 380, that Johnson's jury would have found itself
foreclosed from considering the relevant aspects of his youth,
since it received the second special issue instruction and was told
to consider all mitigating evidence. That there is ample room in
the future dangerousness assessment for a juror to take account of
youth as a mitigating factor is what distinguishes this case from
Penry, supra, at 323. There, the second special issue did
not allow the jury to give mitigating effect to expert medical
testimony that the defendant's mental retardation prevented him
from learning from experience, since that evidence could only
logically be considered within the future dangerousness inquiry as
an aggravating factor. In contrast, youth's ill effects are subject
to change as a defendant ages and, as a result, are readily
comprehended as a mitigating factor in consideration of the second
special issue. Because such consideration is a comprehensive
inquiry that is more than a question of historical fact, the Court
rejects Johnson's related arguments that the second special issue's
forward-looking perspective and narrowness prevented the jury from,
respectively, taking account of how his youth bore upon his
personal culpability and making a "reasoned moral response" to the
evidence of his youth. For the Court to find a constitutional
defect in Johnson's sentence, it would have to overrule
Jurek by requiring a further instruction whenever a
defendant introduced mitigating evidence that had
some
arguable relevance beyond the special issues; alter the rule of
Lockett and
Eddings to require that a jury be able to
give effect to mitigating evidence in every conceivable manner in
which it might be
352
relevant; and remove the States' power to structure the
consideration of mitigating evidence under,
e. g., Boyde.
Pp. 366-373.
773 S. W. 2d 322, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, SCALIA, and THOMAS, JJ., joined.
SCALIA, J.,
post, p. 373, and THOMAS, J.,
post, p.
374, filed concurring opinions. O'CONNOR, J., filed a dissenting
opinion, in which BLACKMUN, STEVENS, and SOUTER, JJ., joined,
post, p. 374.
Michael E. Tigar argued the cause for petitioner. With
him on the briefs were
Robert C.
Owen and
Jeffrey J. Pokorak.
Dana E. Parker, Assistant Attorney General of Texas,
argued the cause for respondent. With her on the brief were
Dan
Morales, Attorney General,
Will Pryor, First Assistant
Attorney General,
Mary F. Keller, Deputy Attorney General,
and
Michael P. Hodge, Assistant Attorney General. *
JUSTICE KENNEDY delivered the opinion of the Court. For the
second time this Term, we consider a constitutional challenge to
the former Texas capital sentencing system. Like the condemned
prisoner in
Graham v.
Collins, 506 U. S. 461 (1993), the
petitioner here claims that the Texas special issues system in
effect until 1991 did not allow his jury to give adequate
mitigating effect to evidence of his youth.
Graham was a
federal habeas corpus proceeding where the petitioner had to
confront the rule of
Teague v.
Lane, 489 U. S. 288 (1989),
barring the application of new rules of law on federal habeas
corpus. In part because the relief sought by Graham would have
required a new rule within the meaning of
Teague, we denied
relief. The instant case comes to us on direct review of
petitioner's conviction and sentence, so we consider it without the
constraints of
Teague, though of course with the customary
respect for the
* Kent S.
Scheidegger filed a brief for the
Criminal Justice Legal Foundation as
amicus curiae urging
affirmance.
353
doctrine of
stare decisis. Based upon our precedents,
including much of the reasoning in
Graham, we find the Texas
procedures as applied in this case were consistent with the Eighth
and Fourteenth Amendments.
I
Petitioner, then 19 years of age, and his companion, Amanda
Miles, decided to rob Allsup's convenience store in Snyder, Texas,
on March 23, 1986. After agreeing that there should be no witnesses
to the crime, the pair went to the store to survey its layout and,
in particular, to determine the number of employees working in the
store that evening. They found that the only employee present
during the predawn hours was a clerk, Jack Huddleston. Petitioner
and Miles left the store to make their final plans.
They returned to Allsup's a short time later. Petitioner, a
handgun in his pocket, reentered the store with Miles. After
waiting for other customers to leave, petitioner asked Huddleston
whether the store had any orange juice in one gallon plastic jugs
because there were none on the shelves. Saying he would check,
Huddleston went to the store's cooler. Petitioner followed
Huddleston there, told Huddleston the store was being robbed, and
ordered him to lie on the floor. After Huddleston complied with the
order and placed his hands behind his head, petitioner shot him in
the back of the neck, killing him. When petitioner emerged from the
cooler, Miles had emptied the cash registers of about $160. They
each grabbed a carton of cigarettes and fled.
In April 1986, a few weeks after this crime, petitioner was
arrested for a subsequent robbery and attempted murder of a store
clerk in Colorado City, Texas. He confessed to the murder of Jack
Huddleston and the robbery of Allsup's and was tried and convicted
of capital murder. The homicide qualified as a capital offense
under Texas law because petitioner intentionally or knowingly
caused Huddleston's death
354
and the murder was carried out in the course of committing a
robbery. Tex. Penal Code Ann. §§ 19.02(a)(1), 19.03(a)(2)
(1989).
After the jury determined that petitioner was guilty of capital
murder, a separate punishment phase of the proceedings was
conducted in which petitioner's sentence was determined. In
conformity with the Texas capital sentencing statute then in
effect, see Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon
1981),1 the trial court instructed the jury that it was to answer
two special issues:
"[(1)] Was the conduct of the Defendant, Dorsie Lee Johnson,
Jr., that caused the death of the deceased, committed deliberately
and with the reasonable expectation that the death of the deceased
or another would result?
"[(2)] Is there a probability that the Defendant, Dorsie Lee
Johnson, Jr., would commit criminal acts of violence that would
constitute a continuing threat to society?" 2 App. 148-149.
The trial court made clear to the jury the consequences of its
answers to the special issues:
"You are further instructed that if the jury returns affirmative
or 'yes' answer [sic] to all the Issues submitted, this
Court shall sentence the Defendant to death. If the jury returns a
negative or 'no' answer to any Issue submitted, the Court shall
sentence the Defendant to life in prison." Id., at 146.
1 The Texas Legislature amended the statute in 1991. See Art.
37.071(2) (Vernon Supp. 1992-1993).
2 The statute also required that a third special issue, asking
whether the defendant's act was "unreasonable in response to the
provocation, if any, by the deceased," be submitted to the jury "if
raised by the evidence." Art. 37.071(b)(3) (Vernon 1981).
Petitioner does not contest the trial court's decision not to
submit the third special issue in this case.
355
The jury was instructed not to consider or discuss the
possibility of parole.
Id., at 147. The trial court also
instructed the jury as follows concerning its consideration of
mitigating evidence:
"In determining each of these Issues, you may take into
consideration all the evidence submitted to you in the trial of
this case, whether aggravating or mitigating in nature, that is,
all the evidence in the first part of the trial when you were
called upon to determine the guilt or innocence of the Defendant
and all the evidence, if any, in the second part of the trial
wherein you are called upon to determine the answers to the Special
Issues." Ibid.
Although petitioner's counsel filed various objections to the
jury charge, there was no request that a more expansive instruction
be given concerning any particular mitigating circumstance,
including petitioner's youth.
In anticipation of the trial court's instructions, the State
during the punishment phase of the proceedings presented numerous
witnesses who testified to petitioner's violent tendencies. The
most serious evidence related to the April convenience store
robbery in Colorado City. Witnesses testified that petitioner had
shot that store clerk in the face, resulting in the victim's
permanent disfigurement and brain damage. Other witnesses testified
that petitioner had fired two shots at a man outside a restaurant
in Snyder only six days after the murder of Huddleston, and a
sheriff's deputy who worked in the jail where petitioner was being
held testified that petitioner had threatened to "get" the deputy
when he got out of jail.
Petitioner's acts of violence were not limited to strangers.
A longtime friend of petitioner, Beverly Johnson, testified that
in early 1986 petitioner had hit her, thrown a large rock at her
head, and pointed a gun at her on several occasions. Petitioner's
girlfriend, Paula Williams, reported that, after
356
petitioner had become angry with her one afternoon in 1986, he
threatened her with an axe. There were other incidents, of less
gravity, before 1986. One of petitioner's classmates testified that
petitioner cut him with a piece of glass while they were in the
seventh grade. Another classmate testified that petitioner also cut
him with glass just a year later, and there was additional evidence
presented that petitioner had stabbed a third classmate with a
pencil.
The State established that the crimes committed in 1986 were not
petitioner's first experience with the criminal justice system.
Petitioner had been convicted in 1985 of a store burglary in Waco,
Texas. Petitioner twice violated the terms of probation for that
offense by smoking marijuana. Petitioner was still on probation
when he committed the Huddleston murder.
The defense presented petitioner's father, Dorsie Johnson, Sr.,
as its only witness. The elder Johnson attributed his son's
criminal activities to his drug use and his youth. When asked by
defense counsel whether his son at the age of 19 was "a real mature
person," petitioner's father answered:
"No, no. Age of nineteen? No, sir. That, also, I find to be a
foolish age. That's a foolish age. They tend to want to be macho,
built-up, trying to step into manhood. You're not mature-lized for
it." Id., at 27.
At the close of his testimony, Johnson summarized the role that
he thought youth had played in his son's crime:
"[A]ll I can say is I still think that a kid eighteen or
nineteen years old has an undeveloped mind, undeveloped sense of
assembling not-I don't say what is right or wrong, but the
evaluation of it, how much, you know, that might be-well, he just
don't-he just don't evaluate what is worth-what's worth and what's
isn't like he should like a thirty or thirty-five year old man
would. He would take under consideration a lot of things that a
younger person that age wouldn't." Id., at 47.
357
The father also testified that his son had been a regular
churchgoer and his problems were attributable in large part to the
death of his mother following a stroke in 1984 and the murder of
his sister in 1985. Finally, the senior Johnson testified to his
son's remorse over the killing of Huddleston.
At the voir dire phase of the proceedings, during which more
than 90 prospective jurors were questioned over the course of 15
days, petitioner's counsel asked the venirepersons whether they
believed that people were capable of change and whether the
venirepersons had ever done things as youths that they would not do
now. See,
e. g., Tr. of Voir Dire in No. 5575 (132d
Jud. Dist. Ct., Scurry County, Tex.), pp. 1526-1529 (Juror
Swigert);
id., at 1691-1692 (Juror Freeman);
id., at
2366 (Juror Witte);
id., at 2630-2632 (Juror Raborn).3
Petitioner's counsel returned to this theme in his closing
argument:
"The question-the real question, I think, is whether you believe
that there is a possibility that he can change. You will remember
that that was one thing every one of you told me you agreed-every
one of you agreed with me that people can change. If you agree that
people can change, then that means that Dorsie can change and that
takes question two [regarding future dangerousness] out of the
realm of probability and into possibility,
3 The colloquy on this point between petitioner's counsel and
Juror Raborn is illustrative of the discussions had with the other
jurors:
"Q. Okay. Do you feel that-let me ask you this. Do you feel a
person who is-or a young person will do things that they will not
do in later years, thirty or forty-
"A. I believe that.
"Q. Do you believe that people can change?
"A. Yes, I believe they can. I've known some that have.
"Q. Do you think that the way a person acts in the present or
the past or how he has acted in the past is an absolute indicator
of what he will do in the future, thirty or forty years down the
road?
"A. No, not on down the line. Like I say, you can change." Tr.
of Voir Dire, at 2630-2631.
358
you see, because if he can change, then it is no longer probable
that he will do these things, but only possible that he can and
will do these things, you see.
"If people couldn't change, if you could say I know people
cannot change, then you could say probably. But every one of you
knows in your heart and in your mind that people can and people do
change and Dorsie Johnson can change and, therefore, the answer to
question two should be no." App.81.
Counsel also urged the jury to remember the testimony of
petitioner's father.
Id., at 73-74.
The jury was instructed that the State bore the burden of
proving each special issue beyond a reasonable doubt.
Id.,
at 145. A unanimous jury found that the answer to both special
issues was yes, and the trial court sentenced petitioner to death,
as required by law. Tex. Code Crim. Proc. Ann., Art. 37.071(e)
(Vernon 1981).
On appeal, the Texas Court of Criminal Appeals affirmed the
conviction and sentence after rejecting petitioner's seven
allegations of error, none of which involved a challenge to the
punishment-phase jury instructions. 773 S. W. 2d 322 (1989). Five
days after that state court ruling, we issued our opinion in
Penry v.
Lynaugh, 492 U. S. 302 (1989).
Petitioner filed a motion for rehearing in the Texas Court of
Criminal Appeals arguing, among other points, that the special
issues did not allow for adequate consideration of his youth.
Citing
Penry, petitioner claimed that a separate instruction
should have been given that would have allowed the jury to consider
petitioner's age as a mitigating factor. Although petitioner had
not requested such an instruction at trial and had not argued the
point prior to the rehearing stage on appeal, no procedural bar was
interposed. Instead, the Court of Criminal Appeals considered the
argument on the merits and rejected it. After noting that it had
already indicated in
Lackey v.
State, 819 S. W. 2d
111, 134 (Tex. Crim. App. 1989), that youth was relevant to the
jury's consider-
359
ation of the second special issue, the court reasoned that "[i]f
a juror believed that [petitioner's] violent actions were a result
of his youth, that same juror would naturally believe that
[petitioner] would cease to behave violently as he grew older."
App. 180. The court concluded that "the jury was able to express a
reasoned moral response to [petitioner's] mitigating evidence
within the scope of the art. 37.071 instructions given to them by
the trial court."
Id., at 180-181.
Petitioner filed a petition for certiorari, which we granted.
506 U. S. 1090 (1993).
II A
This is the latest in a series of decisions in which the Court
has explained the requirements imposed by the Eighth and Fourteenth
Amendments regarding consideration of mitigating circumstances by
sentencers in capital cases. The earliest case in the decisional
line is
Furman v.
Georgia, 408 U. S. 238 (1972). At
the time of
Furman, sentencing juries had almost complete
discretion in determining whether a given defendant would be
sentenced to death, resulting in a system in which there was "no
meaningful basis for distinguishing the few cases in which [death
was] imposed from the many cases in which it [was] not."
Id., at 313 (WHITE, J., concurring). Although no two
Justices could agree on a single rationale, a majority of the Court
in
Furman concluded that this system was "cruel and unusual"
within the meaning of the Eighth Amendment. The guiding principle
that emerged from
Furman was that States were required to
channel the discretion of sentencing juries in order to avoid a
system in which the death penalty would be imposed in a "wanto[n]"
and "freakis[h]" manner.
Id., at 310 (Stewart, J.,
concurring).
Four Terms after
Furman, we decided five cases, in
opinions issued on the same day, concerning the constitutionality
of various capital sentencing systems.
Gregg v.
Georgia,
360
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). In
the wake of
Furman, at least 35 States had abandoned
sentencing schemes that vested complete discretion in juries in
favor of systems that either (i) "specif[ied] the factors to be
weighed and the procedures to be followed in deciding when to
impose a capital sentence," or (ii) "ma[de] the death penalty
mandatory for certain crimes."
Gregg, supra, at 179-180
(opinion of Stewart, Powell, and STEVENS, JJ.). In the five cases,
the controlling joint opinion of three Justices reaffirmed the
principle of
Furman that "discretion must be suitably
directed and limited so as to minimize the risk of wholly arbitrary
and capricious action." 428 U. S., at 189; accord,
Proffitt,
supra, at 258 (opinion of Stewart, Powell, and STEVENS,
JJ.).
Based upon this principle, it might have been thought that
statutes mandating imposition of the death penalty if a defendant
was found guilty of certain crimes would be consistent with the
Constitution. But the joint opinions of Justices Stewart, Powell,
and STEVENS indicated that there was a second principle, in some
tension with the first, to be considered in assessing the
constitutionality of a capital sentencing scheme. According to the
three Justices, "consideration of the character and record of the
individual offender and the circumstances of the particular offense
[is] a constitutionally indispensable part of the process of
inflicting the penalty of death."
Woodson, supra, at 304
(plurality opinion); accord,
Gregg, supra, at 189-190, n. 38
(opinion of Stewart, Powell, and STEVENS, JJ.);
Jurek,
supra, at 273-274 (opinion of Stewart, Powell, and STEVENS,
JJ.);
Roberts, supra, at 333 (plurality opinion of Stewart,
Powell, and STEVENS, JJ.). Based upon this second principle, the
Court struck down mandatory imposition of the death penalty for
specified crimes as inconsistent with the requirements of the
Eighth and Fourteenth
361
Amendments. See Woodson, supra, at 305; Roberts, supra, at
335-336.
Two Terms later, a plurality of the Court in
Lockett
v.
Ohio, 438
U. S. 586 (1978), refined the requirements related to the
consideration of mitigating evidence by a capital sentencer. Unlike
the mandatory schemes struck down in
Woodson and
Roberts in which all mitigating evidence was excluded, the
Ohio system at issue in
Lockett permitted a limited range of
mitigating circumstances to be considered by the sentencer.4 The
plurality nonetheless found this system to be unconstitutional,
holding that "the Eighth and Fourteenth Amendments require that the
sentencer ... not be precluded from considering,
as a mitigating
factor, any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers as
a basis for a sentence less than death." 438 U. S., at 604. A
majority of the Court adopted the
Lockett rule in
Eddings v.
Oklahoma, 455 U. S. 104 (1982);
accord,
Hitchcock v.
Dugger, 481 U. S. 393, 398-399
(1987);
Skipper v.
South Carolina, 476 U. S. 1,4 (1986), and
we have not altered the rule's central requirement.
"Lockett
and its progeny stand only for the proposition that a State may not
cut off in an absolute manner the presentation of mitigating
evidence, either by statute or judicial instruction, or by limiting
the inquiries to which it is relevant so severely that the evidence
could never be part of the sentencing decision at all."
McKoy v.
North Carolina, 494 U. S. 433, 456 (1990)
(KENNEDY, J., concurring
4 Once an Ohio defendant was found guilty of aggravated murder
involving at least one of seven aggravating circumstances, the
judge was required to sentence the defendant to death unless at
least one of three mitigating circumstances was present: (1) the
victim induced or facilitated the offense; (2) it is unlikely the
crime would have been committed but for the fact that the defendant
was acting under duress, coercion, or strong provocation; or (3)
the offense was primarily the product of the defendant's psychosis
or mental deficiency. See
Lockett, 438 U. S., at
607-608.
362
in judgment); see also
Graham, 506 U. S., at 475;
Saffle v.
Parks, 494 U. S. 484, 490-491
(1990).
Although
Lockett and
Eddings prevent a State from
placing relevant mitigating evidence "beyond the effective reach of
the sentencer,"
Graham, supra, at 475, those cases and
others in that decisional line do not bar a State from guiding the
sentencer's consideration of mitigating evidence. Indeed, we have
held that "there is no ... constitutional requirement of unfettered
sentencing discretion in the jury, and States are free to structure
and shape consideration of mitigating evidence 'in an effort to
achieve a more rational and equitable administration of the death
penalty,'"
Boyde v.
California, 494 U. S. 370, 377 (1990)
(quoting
Franklin v.
Lynaugh, 487 U. S. 164, 181 (1988)
(plurality opinion)); see also
Saffle, supra, at 490.
B
The Texas law under which petitioner was sentenced has been the
principal concern of four previous opinions in our Court. See
Jurek v.
Texas, supra; Franklin v.
Lynaugh, supra;
Penry v.
Lynaugh, 492 U. S. 302 (1989);
Graham, supra. As we have mentioned,
Jurek was
included in the group of five cases addressing the
post-Furman statutes in 1976.
In
Jurek, the joint opinion of Justices Stewart, Powell,
and STEVENS first noted that there was no constitutional deficiency
in the means used to narrow the group of offenders subject to
capital punishment, the statute having adopted five different
classifications of murder for that purpose. See
Jurek, 428
U. S., at 270-271. Turning to the mitigation side of the sentencing
system, the three Justices said: "[T]he constitutionality of the
Texas procedures turns on whether the enumerated [special issues]
allow consideration of particularized mitigating factors."
Id., at 272. In assessing the constitutionality of the
mitigation side of this scheme, the three Justices examined in
detail only the second special issue, which asks whether" 'there is
a probability that the defend-
363
ant would commit criminal acts of violence that would constitute
a continuing threat to society.'" Although the statute did not
define these terms, the joint opinion noted that the Texas Court of
Criminal Appeals had indicated that it would interpret the question
in a manner that allowed the defendant to bring all relevant
mitigating evidence to the jury's attention:
"'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.'
[Jurek v. State,] 522 S. W. 2d [934],939-940 [(Tex.
Crim. App. 1975)]." Id., at 272-273.
The joint opinion determined that the Texas system satisfied the
requirements of the Eighth and Fourteenth Amendments concerning the
consideration of mitigating evidence: "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."
Id., at 276. Three other Justices
agreed that the Texas system satisfied constitutional requirements.
See
id., at 277 (WHITE, J., concurring in judgment).
We next considered a constitutional challenge involving the
Texas special issues in
Franklin v.
Lynaugh, supra.
Although the defendant in that case recognized that we had
364
upheld the constitutionality of the Texas system as a general
matter in
Jurek, he claimed that the special issues did not
allow the jury to give adequate weight to his mitigating evidence
concerning his good prison disciplinary record and that the jury,
therefore, should have been instructed that it could consider this
mitigating evidence independent of the special issues. 487 U. S.,
at 171-172. A plurality of the Court rejected the defendant's
claim, holding that the second special issue provided an adequate
vehicle for consideration of the defendant's prison record as it
bore on his character.
Id., at 178. The plurality also noted
that
Jurek foreclosed the defendant's argument that the jury
was still entitled to cast an "independent" vote against the death
penalty even if it answered yes to the special issues. 487 U. S.,
at 180. The plurality concluded that, with its special issues
system, Texas had guided the jury's consideration of mitigating
evidence while still providing for sufficient jury discretion. See
id., at 182. Although JUSTICE O'CONNOR expressed
reservations about the Texas scheme for other cases, she agreed
that the special issues had not inhibited the jury's consideration
of the defendant's mitigating evidence in that case. See
id., at 183-186 (opinion concurring in judgment).
The third case in which we considered the Texas statute is the
pivotal one from petitioner's point of view, for there we set aside
a capital sentence because the Texas special issues did not allow
for sufficient consideration of the defendant's mitigating
evidence.
Penry v.
Lynaugh, supra. In
Penry,
the condemned prisoner had presented mitigating evidence of his
mental retardation and childhood abuse. We agreed that the jury
instructions were too limited for the appropriate consideration of
this mitigating evidence in light of Penry's particular
circumstances. We noted that "[t]he jury was never instructed that
it could consider the evidence offered by Penry as
mitigating evidence and that it could give mitigating effect
to that evidence in imposing sentence." 492 U. S., at 320. Absent
any definition for the term "delib-
365
erately," we could not "be sure that the jury was able to give
effect to the mitigating evidence ... in answering the first
special issue,"
id., at 323, so we turned to the second
special issue, future dangerousness. The evidence in the case
suggested that Penry's mental retardation rendered him unable to
learn from his mistakes. As a consequence, we decided the
mitigating evidence was relevant to the second special issue "only
as an
aggravating factor because it suggests a 'yes' answer
to the question of future dangerousness."
Ibid. The Court
concluded that the trial court had erred in not instructing the
jury that it could "consider and give effect to the mitigating
evidence of Penry's mental retardation and abused background by
declining to impose the death penalty."
Id., at 328. The
Court was most explicit in rejecting the dissent's concern that
Penry was seeking a new rule, in contravention of
Teague v.
Lane, 489 U.
S. 288 (1989). Indeed, the Court characterized its holding in
Penry as a straightforward application of our earlier
rulings in
Jurek, Lockett, and
Eddings, making it
clear that these cases can stand together with
Penry. See
Penry, 492 U. S., at 314-318.
We confirmed this limited view of
Penry and its scope in
Graham v.
Collins. There we confronted a claim by a
defendant that the Texas system had not allowed for adequate
consideration of mitigating evidence concerning his youth, family
background, and positive character traits. In rejecting the
contention that
Penry dictated a ruling in the defendant's
favor, we stated that
Penry did not "effec[t] a sea change
in this Court's view of the constitutionality of the former Texas
death penalty statute," 506 U. S., at 474, and we noted that a
contrary view of
Penry would be inconsistent with the
Penry Court's conclusion that it was not creating a "new
rule," 506 U. S., at 474. We also did not accept the view that the
Lockett and
Eddings line of cases, upon which
Penry rested, compelled a holding for the defendant in
Graham:
366
"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, 506
U. S., at 475.
In addition, we held that Graham's case differed from
Penry in that "Graham's
evidence-unlike Penry's-had
mitigating relevance to the second special issue concerning his
likely future dangerousness." 506 U. S., at 475. We concluded that,
even with the benefit of the subsequent
Penry decision,
reasonable jurists at the time of Graham's sentencing "would [not]
have deemed themselves compelled to accept Graham's claim." 506 U.
S., at 477. Thus, we held that a ruling in favor of Graham would
have required the impermissible application of a new rule under
Teague. 506 U. S., at 477.
III
Today we are asked to take the step that would have been a new
rule had we taken it in
Graham. Like Graham, petitioner
contends that the Texas sentencing system did not allow the jury to
give adequate mitigating effect to the evidence of his youth.
Unlike Graham, petitioner comes here on direct review, so
Teague presents no bar to the rule he seeks. The force of
stare decisis, though, which rests on considerations
parallel in many respects to
Teague, is applicable here. The
interests of the State of Texas, and of the victims whose rights it
must vindicate, ought not to be turned aside when the State relies
upon an interpretation of the Eighth Amendment approved by this
Court, absent demonstration that our earlier cases were themselves
a mis-
367
interpretation of some constitutional command. See,
e.
g., Vasquez v.
Hillery, 474 U. S. 254, 265-266
(1986);
Arizona v.
Rumsey, 467 U. S. 203, 212
(1984).
There is no dispute that a defendant's youth is a relevant
mitigating circumstance that must be within the effective reach of
a capital sentencing jury if a death sentence is to meet the
requirements of
Lockett and
Eddings. See,
e. g.,
Sumner v.
Shuman, 483 U. S. 66, 81-82
(1987);
Eddings, 455 U. S., at 115;
Lockett, 438 U.
S., at 608 (plurality opinion). Our cases recognize that "youth is
more than a chronological fact. It is a time and condition of life
when a person may be most susceptible to influence and to
psychological damage."
Eddings, supra, at 115. A lack of
maturity and an underdeveloped sense of responsibility are found in
youth more often than in adults and are more understandable among
the young. These qualities often result in impetuous and
illconsidered actions and decisions. A sentencer in a capital case
must be allowed to consider the mitigating qualities of youth in
the course of its deliberations over the appropriate sentence.
The question presented here is whether the Texas special issues
allowed adequate consideration of petitioner's youth. An argument
that youth can never be given proper mitigating force under the
Texas scheme is inconsistent with our holdings in
Jurek,
Graham, and
Penry itself. The standard against which we
assess whether jury instructions satisfy the rule of
Lockett
and
Eddings was set forth in
Boyde v.
California, 494 U. S. 370 (1990).
There we held that a reviewing court must determine "whether there
is a reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence."
Id., at 380. Although
the reasonable likelihood standard does not require that the
defendant prove that it was more likely than not that the jury was
prevented from giving effect to the evidence, the standard requires
more than a mere possibility of such a bar.
368
Ibid. In evaluating the instructions, we do not engage in
a technical parsing of this language of the instructions, but
instead approach the instructions in the same way that the jury
would-with a "commonsense understanding of the instructions in the
light of all that has taken place at the trial."
Id., at
381.
We decide that there is no reasonable likelihood that the jury
would have found itself foreclosed from considering the relevant
aspects of petitioner's youth. Pursuant to the second special
issue, the jury was instructed to decide whether there was "a
probability that [petitioner] would commit criminal acts of
violence that would constitute a continuing threat to society."
App. 149. The jury also was told that, in answering the special
issues, it could consider all the mitigating evidence that had been
presented during the guilt and punishment phases of petitioner's
trial.
Id., at 147. Even on a cold record, one cannot be
unmoved by the testimony of petitioner's father urging that his
son's actions were due in large part to his youth. It strains
credulity to suppose that the jury would have viewed the evidence
of petitioner's youth as outside its effective reach in answering
the second special issue. The relevance of youth as a mitigating
factor derives from the fact that the signature qualities of youth
are transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside. We
believe that there is ample room in the assessment of future
dangerousness for a juror to take account of the difficulties of
youth as a mitigating force in the sentencing determination. As we
recognized in
Graham, the fact that a juror might view the
evidence of youth as aggravating, as opposed to mitigating, does
not mean that the rule of
Lockett is violated.
Graham, 506 U. S., at 475-476. As long as the mitigating
evidence is within "the effective reach of the sentencer," the
requirements of the Eighth Amendment are satisfied.
Ibid.
369
That the jury had a meaningful basis to consider the relevant
mitigating qualities of petitioner's youth is what distinguishes
this case from
Penry. In
Penry, there was expert
medical testimony that the defendant was mentally retarded and that
his condition prevented him from learning from experience. 492 U.
S., at 308-309. Although the evidence of the mental illness fell
short of providing Penry a defense to prosecution for his crimes,
the Court held that the second special issue did not allow the jury
to give mitigating effect to this evidence. Penry's condition left
him unable to learn from his mistakes, and the Court reasoned that
the only logical manner in which the evidence of his mental
retardation could be considered within the future dangerousness
inquiry was as an aggravating factor.
Id., at 323.
Penry remains the law and must be given a fair reading. The
evidence of petitioner's youth, however, falls outside
Penry's ambit. Unlike Penry's mental retardation, which
rendered him unable to learn from his mistakes, the ill effects of
youth that a defendant may experience are subject to change and, as
a result, are readily comprehended as a mitigating factor in
consideration of the second special issue.
Petitioner does not contest that the evidence of youth could be
given some effect under the second special issue. Instead,
petitioner argues that the forward-looking perspective of the
future dangerousness inquiry did not allow the jury to take account
of how petitioner's youth bore upon his personal culpability for
the murder he committed. According to petitioner, "[a] prediction
of future behavior is not the same thing as an assessment of moral
culpability for a crime already committed." Brief for Petitioner
38. Contrary to petitioner's suggestion, however, this
forward-looking inquiry is not independent of an assessment of
personal culpability. It is both logical and fair for the jury to
make its determination of a defendant's future dangerousness by
asking the extent to which youth influenced the defendant's
conduct. See
Skipper, 476 U. S., at 5 ("Consideration of a
de-
370
fendant's past conduct as indicative of his probable future
behavior is an inevitable and not undesirable element of criminal
sentencing"). If any jurors believed that the transient qualities
of petitioner's youth made him less culpable for the murder, there
is no reasonable likelihood that those jurors would have deemed
themselves foreclosed from considering that in evaluating
petitioner's future dangerousness. It is true that Texas has
structured consideration of the relevant qualities of petitioner's
youth, but in so doing, the State still "allow[s] the jury to give
effect to [this] mitigating evidence in making the sentencing
decision."
Saffle, 494 U. S., at 491. Although Texas might
have provided other vehicles for consideration of petitioner's
youth, no additional instruction beyond that given as to future
dangerousness was required in order for the jury to be able to
consider the mitigating qualities of youth presented to it.
In a related argument, petitioner, quoting a portion of our
decision in
Penry, supra, at 328, claims that the jurors
were not able to make a "reasoned moral response" to the evidence
of petitioner's youth because the second special issue called for a
narrow factual inquiry into future dangerousness. We, however, have
previously interpreted the Texas special issues system as requiring
jurors to "exercise a range of judgment and discretion."
Adams v.
Texas, 448 U. S. 38, 46 (1980).
This view accords with a "commonsense understanding" of how the
jurors were likely to view their instructions and to implement the
charge that they were entitled to consider all mitigating evidence
from both the trial and sentencing phases.
Boyde, 494 U. S.,
at 381. The crucial term employed in the second special
issue-"continuing threat to society" -affords the jury room for
independent judgment in reaching its decision. Indeed, we cannot
forget that "a Texas capital jury deliberating over the Special
Issues is aware of the consequences of its answers, and is likely
to weigh mitigating evidence as it formulates these answers in a
manner similar to that employed by capital juries in
371
'pure balancing' States."
Franklin, 487 U. S., at 182, n.
12 (plurality opinion). In
Blystone v.
Pennsylvania,
494 U. S. 299
(1990), four Members of the Court in dissent used the Texas statute
as an example of a capital sentencing system that permitted the
exercise of judgment. That opinion stated:
"[The two special issues] require the jury to do more than find
facts supporting a legislatively defined aggravating circumstance.
Instead, by focusing on the deliberateness of the defendant's
actions and his future dangerousness, the questions compel the jury
to make a moral judgment about the severity of the crime and the
defendant's culpability. The Texas statute directs the imposition
of the death penalty only after the jury has decided that the
defendant's actions were sufficiently egregious to warrant death."
Id., at 322 (Brennan, J., dissenting).
The Texas Court of Criminal Appeals' view of the future
dangerousness inquiry supports our conclusion that consideration of
the second special issue is a comprehensive inquiry that is more
than a question of historical fact. In reviewing death sentences
imposed under the former Texas system, that court has consistently
looked to a nonexclusive list of eight factors, which includes the
defendant's age, in deciding whether there was sufficient evidence
to support a yes answer to the second special issue. See,
e.
g., Ellason v.
State, 815 S. W. 2d 656, 660
(1991);
Brasfield v.
State, 600 S. W. 2d 288
(1980).
There might have been a juror who, on the basis solely of
sympathy or mercy, would have opted against the death penalty had
there been a vehicle to do so under the Texas special issues
scheme. But we have not construed the
Lockett line of cases
to mean that a jury must be able to dispense mercy on the basis of
a sympathetic response to the defendant. Indeed, we have said that
"[i]t would be very difficult
372
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."
Saffle v.
Parks, 494 U. S., at 493; see also
California v.
Brown, 479 U.
S. 538, 542-543 (1987) (permitting an instruction that the jury
could not base its sentencing decision on sympathy).
For us to find a constitutional defect in petitioner's death
sentence, we would have to alter in significant fashion this
Court's capital sentencing jurisprudence. The first casualty of a
holding in petitioner's favor would be
Jurek. The inevitable
consequence of petitioner's argument is that the Texas special
issues system in almost every case would have to be supplemented by
a further instruction. As we said in
Graham:
"[H]olding 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?"'" 506 U. S., at 476
(quoting Franklin, supra, at 180, n. 10).
In addition to overruling
Jurek, accepting petitioner's
arguments would entail an alteration of the rule of
Lockett
and
Eddings. Instead of requiring that a jury be able to
consider in some manner all of a defendant's relevant mitigating
evidence, the rule would require that a jury be able to give effect
to mitigating evidence in every conceivable manner in which the
evidence might be relevant.
The fundamental flaw in petitioner's position is its failure to
recognize that "[t]here is a simple and logical difference between
rules that govern what factors the jury must be
373
permitted to consider in making its sentencing decision and
rules that govern how the State may guide the jury in considering
and weighing those factors in reaching a decision."
Saffle,
supra, at 490. To rule in petitioner's favor, we would have to
require that a jury be instructed in a manner that leaves it free
to depart from the special issues in every case. This would, of
course, remove all power on the part of the States to structure the
consideration of mitigating evidence-a result we have been
consistent in rejecting. See,
e. g., Boyde, 494 U. S., at
377;
Saffle, supra, at 493;
Franklin, supra, at 181
(plurality opinion).
The reconciliation of competing principles is the function of
law. Our capital sentencing jurisprudence seeks to reconcile two
competing, and valid, principles in
Furman, which are to
allow mitigating evidence to be considered and to guide the
discretion of the sentencer. Our holding in
Jurek reflected
the understanding that the Texas sentencing scheme "accommodates
both of these concerns."
Franklin, supra, at 182
(plurality opinion). The special issues structure in this regard
satisfies the Eighth Amendment and our precedents that interpret
its force. There was no constitutional infirmity in its application
here.
The judgment of the Texas Court of Criminal Appeals is
affirmed.
It is so ordered.
JUSTICE SCALIA, concurring.
In my view the
Lockett-Eddings principle that the
sentencer must be allowed to consider "all relevant mitigating
evidence" is quite incompatible with the
Furman principle
that the sentencer's discretion must be channeled. See
Walton v.
Arizona, 497 U. S. 639, 656 (1990)
(SCALIA, J., concurring in part and concurring in judgment). That
will continue to be true unless and until the sort of "channeling"
of mitigating discretion that Texas has engaged in here is not
merely
permitted (as the Court today holds), but
positively
374
required-a further elaboration of our intricate Eighth
Amendment jurisprudence that I neither look forward to nor would
support.
Today's decision, however, is simply a clarification (and I
think a plainly correct one) of this Court's opinions in
Franklin v.
Lynaugh, 487 U. S. 164 (1988)
(plurality opinion), and
Boyde v.
California,
494 U. S. 370
(1990), which I joined. In fact, the essence of today's holding (to
the effect that discretion
may constitutionally be
channeled) was set forth in my dissent in
Penry v.
Lynaugh, 492
U. S. 302, 350 (1989) (SCALIA, J., concurring in part and
dissenting in part). Accordingly, I join the opinion of the
Court.
JUSTICE THOMAS, concurring.
Although
Penry v.
Lynaugh, 492 U. S. 302 (1989),
"remains the law,"
ante, at 369, in the sense that it has
not been expressly overruled, I adhere to my view that it was
wrongly decided.
Graham v.
Collins, 506 U. S. 461, 478 (1993)
(THOMAS, J., concurring). I also continue to believe it has been
substantially narrowed by later opinions.
Id., at 497, n.
10. Because petitioner's youth had mitigating relevance to the
second special issue, however, this case is readily distinguishable
from
Penry and does not compel its reconsideration. I
therefore join the Court's opinion.
JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN, JUSTICE STEVENS,
and JUSTICE SOUTER join, dissenting.
Dorsie Lee Johnson was 19 years old when he committed the murder
that led to his death sentence. Today, the Court upholds that
sentence, even though the jurors who considered Johnson's case were
not allowed to give full effect to his strongest mitigating
evidence: his youth. The Court reaches this result only by invoking
a highly selective version of
stare decisis and misapplying
our habeas precedents to a case on direct review. Therefore, I
respectfully dissent.
375
I
By all accounts, Dorsie Johnson was not a model youth.
As an adolescent he frequently missed school, and when he did
attend, he often was disruptive. He was drinking and using drugs by
the time he was 16, habits that had intensified by the time he was
19. Johnson's father testified that the deaths of Johnson's mother
and sister in 1984 and 1985 had affected Johnson deeply, but he
primarily attributed Johnson's behavior to drug use and youth. A
jury hearing this evidence easily could conclude, as Johnson's jury
did, that the answer to the second Texas special question-whether
it was probable that Johnson "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)-was
yes. It is possible that the jury thought Johnson might outgrow his
temper and violent behavior as he matured, but it is more likely
that the jury considered the pattern of escalating violence to be
an indication that Johnson would become even more dangerous as he
grew older. Even if the jurors viewed Johnson's youth as a
transient circumstance, the dangerousness associated with that
youth would not dissipate until sometime in the future, and it is
reasonably likely that the jurors still would have understood the
second question to require an affirmative answer. See
Graham
v.
Collins, 506 U. S. 461, 519-520
(1993) (SOUTER, J., dissenting). Thus, to the extent that Johnson's
youth was relevant at all to the second Texas special issue, there
is a reasonable likelihood that it was an aggravating factor.
But even if the jury could give some mitigating effect to youth
under the second special issue, the Constitution still would
require an additional instruction in this case. The additional
instruction would be required because not one of the special issues
under the former Texas scheme, see Art. 37.071, allows a jury to
give effect to the most relevant mitigating aspect of youth: its
relation to a defendant's "culpability for the crime he committed."
Skipper v.
South Caro-
376
lina, 476 U.
S. 1, 4 (1986). A violent and troubled young person mayor may
not grow up to be a violent and troubled adult, but what happens in
the future is unrelated to the
culpability of the defendant
at the time he committed the crime. A jury could conclude that a
young person acted "deliberately," Art. 37.071(b)(1), and that he
will be dangerous in the future, Art. 37.071(b)(2), yet still
believe that he was less culpable
because of his youth than
an adult. I had thought we made clear in
Eddings v.
Oklahoma, 455
U. S. 104 (1982), that the vicissitudes of youth bear directly
on the young offender's culpability and responsibility for the
crime:
"[Y]outh is more than a chronological fact. It is a time and
condition of life when a person may be most susceptible to
influence and to psychological damage. Our history is replete with
laws and judicial recognition that minors, especially in their
earlier years, generally are less mature and responsible than
adults. Particularly during the formative years of childhood and
adolescence, minors often lack the experience, perspective, and
judgment expected of adults." Id., at 115-116 (footnotes and
internal quotation marks omitted).
See also
Graham, supra, at 518 (SOUTER, J., dissenting)
("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"). * In my view, the jury could not express
*Of the 36 States that have death penalty statutes, 30 either
specifically list the age of the defendant as a mitigating
circumstance or prohibit the execution of those under 18. See Ala.
Code § 13A-5-51(7) (1982); Ariz. Rev. Stat. Ann. § 13-703(G)(5)
(1989); Ark. Code Ann. § 5-4-605(4) (1987); Cal. Penal Code Ann. §
190.3(i) (West 1988); Colo. Rev. Stat. §§ 16-11802(1)(a), (4)(a)
(Supp. 1992); Conn. Gen. Stat. § 53a-46a(g)(1) (1985); Fla. Stat.
§§ 921.141(6)(g), 921.142(7)(f) (Supp. 1992); Ill. Rev. Stat., ch.
720, , 5/ 9-1(c) (1992); Ind. Code §35-50-2-9(c)(7) (Supp. 1992);
Ky. Rev. Stat. Ann. § 532.025(2)(b)(8) (Baldwin 1989); La. Code
Crim. Proc. Ann., Art. 905.5(f) (West 1984); Md. Ann. Code, Art.
27, §413(g)(5) (Supp. 1992); Miss. Code
377
a "reasoned moral response" to this aspect of Johnson's youth in
answering any of the special issues.
Penry v.
Lynaugh, 492
U. S. 302, 328 (1989) (internal quotation marks omitted).
II
In
Graham v.
Collins, supra, the Court held that
the relief Johnson seeks today was not"
'dictated by
precedent'" and therefore not available on collateral review.
Id., at 467 (quoting
Teague v.
Lane, 489 U. S. 288, 301 (1989)
(plurality opinion)). The issue in
Graham was not whether an
additional instruction to allow the jury to give full effect to
Graham's youth was constitutionally mandated. It was only whether
the need for such an instruction was "susceptible to debate among
reasonable minds." 506 U. S., at 476 (internal quotation marks
omitted). I did not agree with the Court's conclusion in
Graham, see
id., at 504-505 (SOUTER, J., dissenting),
but even if I had, I would not find
Graham controlling
today.
Teague v.
Lane, supra, states a rule of collateral
review:
New constitutional rules will not be applied retroactively to
invalidate final state convictions on federal habeas review.
Teague analysis is a threshold issue, see
id., at
300-301 (plu-
Ann. § 99-19-101(6)(g) (Supp. 1992); Mo. Rev. Stat. §
565.032.3(7) (Supp. 1992); Mont. Code Ann. §46-18-304(7) (1991);
Neb. Rev. Stat. §292523(2)(d) (1989); Nev. Rev. Stat. §200.035(6)
(1992); N. H. Rev. Stat. Ann. § 630:5(VI)(d) (Supp. 1992); N. J.
Stat. Ann. § 2C:11-3(c)(5)(c) (West 1982); N. M. Stat. Ann.
§31-20A-6(I) (1990); N. C. Gen. Stat. § 15A-2000(f)(7) (1988); Ohio
Rev. Code Ann. §2929.04(B)(4) (1993); Ore. Rev. Stat. § 163.
150(1)(c)(A) (1991); Pa. Stat. Ann., Tit. 42, § 9711(e)(4) (Purdon
1982); S. C. Code Ann. § 16-3-20(C)(b)(7) (Supp. 1992); Tenn. Code
Ann. §39-13204(j)(7) (1991); Utah Code Ann. § 76-3-207(3)(e) (Supp.
1992); Va. Code Ann. § 19.2-264.4(B)(v) (1990); Wash. Rev. Code §
10.95.070(7) (1992). The remaining six States allow the jury to
consider any evidence in mitigation without specifying examples.
See Del. Code Ann., Tit. 11, § 4209(c) (1987 and Supp. 1992); Ga.
Code Ann. § 17-10-30(b) (1990); Idaho Code § 192515(c) (1987);
Okla. Stat., Tit. 21, § 701.10(C) (Supp. 1992); S. D. Codified Laws
§23A-27A-1 (Supp. 1993); current Tex. Code Crim. Proc. Ann., Art.
37.071, § 2(e) (Vernon Supp. 1993).
378
rality opinion), however, and cases that reject a claim as
requiring a new rule cannot constitute
stare decisis on
direct review. The purpose of
Teague is to accommodate the
competing demands of constitutional imperatives and the "principle
of finality which is essential to the operation of our criminal
justice system,"
id., at 309. See
Desist v.
United
States, 394 U. S.
244, 260-269 (1969) (Harlan, J., dissenting). But the finality
concerns of
Teague come into play only after this Court has
denied certiorari or the time for filing a petition for certiorari
from the judgment affirming the conviction has expired. See
Griffith v.
Kentucky, 479 U. S. 314, 321, n. 6
(1987). Until that time, the interests of finality and comity that
caused us to implement the
Teague standards of retroactivity
are not at issue. The only demands with which we need, indeed,
must, concern ourselves are those of the Constitution. On direct
review, it is our constitutionally imposed duty to resolve "all
cases before us ... in light of our best understanding of governing
constitutional principles,"
Mackey v.
United States,
401 U. S. 667,
679 (1971) (Harlan, J., concurring in judgment), without regard to
reliance interests of the State.
The analysis of our collateral review doctrine, as well as its
purpose, makes the majority's emphasis on cases decided under
Teague inappropriate in a direct review case. When
determining whether a rule is new, we do not ask whether it fairly
can be discerned from our precedents; we do not even ask if most
reasonable jurists would have discerned it from our precedents. We
ask only whether the result was
dictated by past cases, or
whether it is "susceptible to debate among reasonable minds,"
Butler v.
McKellar, 494 U. S. 407, 415
(1990). And we have recognized that answering this question is
difficult, especially when we are faced with the application of
settled law to new facts.
Id., at 414-415.
If the rule the petitioner sought in
Graham was a new
rule, it was one only because we had never squarely held that the
former Texas special issues required an additional instruction
regarding youth. That we have not addressed
379
this particular combination of circumstances on direct review
until today, however, cannot create an insurmountable reliance
interest in the State of Texas, as the Court suggests. See
ante, at 366-367. To allow our failure to address an issue
to create such an interest would elevate our practice of letting
issues "percolate" in the 50 States in the interests of federalism
over our responsibility to resolve emerging constitutional issues.
On direct review, the question is what the Constitution, read in
light of our precedents, requires. In my view, the Eighth Amendment
requires an additional instruction in this case.
III A
There is considerable support in our early cases for the
proposition that the sentencer in a capital case must be able to
give
full effect to all mitigating evidence concerning the
defendant's character and record and the circumstances of the
crime. The Court first recognized the need to give effect to
mitigating circumstances in the group of capital cases decided
after
Furman v.
Georgia, 408 U. S. 238 (1972). In
three of those cases, Justices Stewart, Powell, and STEVENS upheld
capital sentencing laws against facial challenges, in large part
because they believed that the statutes narrowed the category of
defendants subject to the death penalty at the same time that they
allowed for consideration of the mitigating circumstances regarding
the individual defendant and the particular crime. See
Gregg
v.
Georgia, 428 U. S. 153, 196-197
(1976) (joint opinion);
Proffitt v.
Florida, 428 U. S. 242, 250-253
(1976) (joint opinion);
Jurek v.
Texas, 428 U. S. 262, 270-274
(1976) (joint opinion). In two other cases, the joint opinions
found mandatory death penalty statutes unconstitutional. See
Woodson v.
North Carolina, 428 U. S. 280, 303-305
(1976) (plurality opinion);
Roberts v.
Louisiana,
428 U. S. 325,
333-336 (1976) (plurality opinion). A mandatory death penalty
certainly limited the discretion of the sentencer, but it was not
"consistent with the Constitution."
380
Ante, at 360. The plurality opinion in
Woodson
recognized that allowing a sentencer to consider, but not to give
effect to, mitigating circumstances would result in the arbitrary
and capricious jury nullification that prevailed prior to
Furman. See
Woodson, 428 U. S., at 303. Furthermore,
"[a] process that accords no significance to relevant facets of the
character and record of the individual offender or the
circumstances of the particular offense excludes from consideration
in fixing the ultimate punishment of death the possibility of
compassionate or mitigating factors stemming from the diverse
frailties of humankind."
Id., at 304.
We returned to the issue of mitigating circumstances two Terms
later. The Ohio death penalty statute required the sentencer to
impose the death penalty on a death-eligible defendant unless one
of three mitigating circumstances was established by a
preponderance of the evidence. See
Lockett v.
Ohio,
438 U. S. 586,
599, n. 7, and 607 (1978) (plurality opinion). In determining the
existence of the three circumstances, the sentencer was to
consider" 'the nature and circumstances of the offense and the
history, character, and condition of the offender.'''
Id.,
at 612 (quoting Ohio Rev. Code Ann. § 2929.04(B) (1975)). The Ohio
Supreme Court had held that the mitigating circumstances were to be
construed liberally, but a plurality of this Court nevertheless
found the statute too narrow to pass constitutional muster. 438 U.
S., at 608. The
Lockett plurality concluded from the
post-Furman cases that "the Eighth and Fourteenth Amendments
require that the sentencer, in all but the rarest kind of capital
case, not be precluded from considering,
as a mitigating
factor, any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers as
a basis for a sentence less than death." 438 U. S., at 604
(footnote omitted). The statute at issue specifically directed the
sentencer to
consider those very factors. N evertheless, the
plurality found the statute unconstitutional because it provided no
method by which such consideration
381
could "affect the sentencing decision."
Id., at 608.
Accord,
Bell v.
Ohio, 438 U. S. 637, 641-642
(1978) (petitioner's counsel offered a wide range of mitigating
evidence at the penalty phase, and according to the Ohio statute,
the sentencer was to consider that evidence; petitioner's death
sentence reversed nevertheless because the statute
unconstitutionally limited consideration of the evidence as
mitigating factors).
The Court next addressed the constitutional requirement that a
sentencer be allowed to give
full consideration and
full effect to mitigating circumstances in
Eddings v.
Oklahoma, 455
U. S. 104 (1982). Although the Oklahoma death penalty statute
contained no specific restrictions on the types of mitigating
evidence that could be considered, neither the Oklahoma trial court
nor the Court of Criminal Appeals believed that it could consider,
as mitigating factors, the evidence of petitioner's unhappy
upbringing and emotional disturbance. See
id., at 109-110.
The Court reversed petitioner's death sentence. In so doing, it
reaffirmed the rule of
Lockett: The sentencer in a capital
case must be permitted to consider relevant mitigating factors in
ways that can affect the sentencing decision. This rule, the Court
explained, accommodated the twin objectives of our Eighth Amendment
jurisprudence: "measured, consistent application and fairness to
the accused." 455 U. S., at 111.
Four years later, the Court again made plain that
Lockett
and
Eddings meant what they said. In
Skipper v.
South Carolina, 476 U. S. 1 (1986), we
reiterated that evidence, even if not "relate[d] specifically to
petitioner's culpability for the crime he committed,"
id.,
at 4, must be treated as relevant mitigating evidence if it serves
"'as a basis for a sentence less than death,'"
id., at 5
(quoting
Lockett, supra, at 604). We summarized the
"constitutionally permissible range of discretion in imposing the
death penalty" the following Term in
McCleskey v.
Kemp, 481 U.
S. 279, 305-306 (1987):
382
"First, there is a required threshold below which the death
penalty cannot be imposed. In this context, the State must
establish rational criteria that narrow the decisionmaker's
judgment as to whether the circumstances of a particular
defendant's case meet the threshold .... Second, States cannot
limit the sentencer's consideration of any relevant
circumstance that could cause it to decline to impose the 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." Id., at 305-306 (emphases
added).
We have adhered to this "constitutionally permissible range of
discretion" again and again in the years since we decided
McCleskey, most recently in
McKoy v.
North
Carolina, 494 U.
S. 433 (1990). Accord,
Hitchcock v.
Dugger, 481
U. S. 393, 398-399 (1987);
Penry v.
Lynaugh, 492 U. S. 302, 319-328
(1989). The Court attempts to limit these cases by relying on
plurality opinions, concurrences, and dicta, see,
e. g.,
ante, at 361-362, but until today a majority of this Court has
declined to upset our settled Eighth Amendment jurisprudence.
B
Despite the long line of precedent supporting Johnson's argument
that the State impermissibly limited the effect that could be given
to his youth, the Court, like respondent and the Texas Court of
Criminal Appeals, clings doggedly to
Jurek v.
Texas,
428 U. S. 262
(1976) (joint opinion). The interpretation on which the Court today
relies, however, has nothing to do with what the Court actually
decided in
Jurek. Jurek was one of five cases in which this
Court evaluated the States' attempts after
Furman to enact
constitutional death penalty statutes. The statutes at issue had
been applied a limited number of times, and, of necessity, the
challenges were all facial. The Texas Court of Criminal
383
Appeals, for example, had examined the application of the Texas
statute only twice: in
Jurek itself, and in one other case.
428 U. S., at 273. Because of the posture of the case and the
limited history of the statute's application, the Court could not,
and did not, determine the statute's constitutionality in all
circumstances. Instead, the joint opinion, which contained the
narrowest ground of decision in the case, read the Texas court's
interpretation of the statute as allowing the jury to consider the
"particularized circumstances of the individual offense and the
individual offender" before death is imposed.
Id., at 274.
Therefore, the joint opinion held that the statute fell within what
we later called the "constitutionally permissible range of
discretion in imposing the death penalty,"
McCleskey v.
Kemp, supra, at 305.
Jurek, supra, at 276.
Because
Jurek involved only a facial challenge to the
Texas statute, the constitutionality of the statute as implemented
in particular instances was not at issue. Nor was the "asapplied"
constitutionality of the statute implicated in any of our cases
until
Franklin v.
Lynaugh, 487 U. S. 164 (1988). In
Adams v.
Texas, 448 U. S. 38 (1980), for
example, the Court still expressed the view that the statute
allowed members of the jury to consider
all relevant
evidence, and to use that evidence in answering the special
questions, "while remaining true to their instructions and their
oaths."
Id., at 46. The same is true of the plurality
opinion in
Lockett, which stated that the joint opinion in
Jurek had approved the Texas statute because it "concluded
that the Texas Court of Criminal Appeals had broadly interpreted
the second question-despite its facial narrowness." 438 U. S., at
607.
When the Court addressed its first as-applied challenge to the
Texas death penalty statute in
Franklin, it was clear that
any statements in
Jurek regarding the statute's
constitutionality were conditioned on a particular understanding of
state law.
Jurek simply had not upheld the Texas death
penalty statute in all circumstances. In fact, five Members
384
of the Court rejected the
Franklin plurality's reliance
on
Jurek and disagreed with the plurality's suggestion that
a State constitutionally could limit the "ability of the sentencing
authority to give
effect to mitigating evidence relevant to
a defendant's character or background or to the circumstances of
the offense." 487 U. S., at 183-185 (O'CONNOR, J., joined by
BLACKMUN, J., concurring in judgment) (emphasis added);
id.,
at 194-200 (STEVENS, J., joined by Brennan and Marshall, JJ.,
dissenting). See also
Penry v.
Lynaugh, 492 U. S., at
320-321 ("[B]oth the concurrence and the dissent [in
Franklin] understood
Jurek as resting fundamentally
on the express assurance that the special issues would permit the
jury to fully consider all the mitigating evidence a defendant
introduced").
The view of the five concurring and dissenting Justices that the
facial review in
Jurek did not decide the issue presented in
Franklin is not surprising. After all, the same day we
approved the Texas death penalty statute in
Jurek, we also
approved the death penalty statutes of Georgia and Florida. See
Gregg v.
Georgia, 428 U. S. 153 (1976)
(joint opinion);
Proffitt v.
Florida, 428 U. S. 242 (1976)
(joint opinion). Yet after
Gregg and
Proffitt and
prior to
Franklin, we held unconstitutional specific
applications of the same Georgia and Florida statutes we earlier
had approved. See
Godfrey v.
Georgia, 446 U. S. 420 (1980)
(vague and overly broad construction of aggravating factor rendered
death sentence unconstitutional);
Hitchcock v.
Dugger,
supra (holding it unconstitutional to restrict jury's
consideration of mitigating factors to those enumerated in the
statute). Despite this majority view of
Jurek and the Texas
death penalty statute, the Court today relies on the minority view
in
Franklin. It goes so far as to note with approval the
minority position that
"Jurek foreclosed the defendant's
argument that the jury was still entitled to cast an 'independent'
vote against the death penalty even if it answered yes to the
special is-
385
sues."
Ante, at 364 (citing
Franklin, supra, at
180). This reading of
Franklin turns
stare decisis on
its head.
Although the majority of Justices in
Franklin did not
accept the contention that the State constitutionally could limit a
sentencer's ability to give effect to mitigating evidence, two
Justices concurred in the judgment because they believed that on
the facts of that case the State had not limited the effect the
evidence could be given. 487 U. S., at 185 (O'CONNOR, J., joined by
BLACKMUN, J., concurring in judgment). Thus, resolution of the
issue was left open. The following Term, however, the Court
squarely addressed the constitutionality of limiting the effect a
Texas jury could give to relevant mitigating evidence, and contrary
to the majority opinion today, we plainly held that the Texas
special issues violated the Eighth Amendment to the extent they
prevented the jury from giving full consideration
and effect
to a defendant's relevant mitigating evidence.
Penry v.
Lynaugh, 492
U. S. 302 (1989).
Penry was in no way limited to evidence that is only
aggravating under the "future dangerousness" issue. We stated there
that
"Eddings makes clear that it is not enough simply to
allow the defendant to present mitigating evidence to the
sentencer. The sentencer must also be able to consider and give
effect to that evidence in imposing sentence."
Id., at 319.
That we meant "full effect" is evident from the remainder of our
discussion. We first determined that Penry's evidence of mental
retardation and his abused childhood was relevant to the question
whether he acted deliberately under the first special issue.
Id., at 322. But having
some relevance to an issue
was not sufficient, and the problem was not, as the Court today
suggests, see
ante, at 364-365, simply that no jury
instruction defined the term "deliberately." Instead, we noted that
the jury must be able to give effect to the evidence as it related
to Penry's "[p]ersonal culpability," which "is not solely a
function of a defendant's capacity to act 'deliberately.''' 492 U.
S., at 322. The jury could not
386
give full effect to Penry's evidence under the first special
issue because "deliberately" was not defined "in a way that would
clearly direct the jury to consider fully Penry's mitigating
evidence
as it bears on his personal culpability." Id., at
323 (emphasis added). That is, the evidence had relevance beyond
the scope of the first issue.
Id., at 322.
We concluded that the second special issue, like the first, did
not allow a jury to give effect to a mitigating aspect of mental
retardation: the diminution of culpability.
Id., at 323-324.
The Court today makes much of our finding that the "only" relevance
of Penry's evidence to the second issue was as an aggravating
factor, see
id., at 323.
Ante, at 365. But in so
doing, it takes our factual description of Penry's evidence as a
"two-edged sword" out of context. The second special issue was not
inadequate because the evidence worked only against Penry; it was
inadequate because it did not allow the jury to give full effect to
Penry's mitigating evidence.
Penry, 492 U. S., at 323. Our
discussion of the third special issue-whether the defendant's
conduct was unreasonable in response to the provocation-also
focused on the inability of a juror to express the view that Penry
lacked "the moral culpability to be sentenced to death" in
answering the question.
Id., at 324-325. The point of
Penry is clear: A death sentence resulting from application
of the Texas special issues cannot be upheld unless the jurors are
able to consider fully a defendant's mitigating evidence. Accord,
id., at 355 (SCALIA, J., concurring in part and dissenting
in part) (The Court today holds that "the constitutionality turns
on whether the [special] questions allow mitigating factors not
only to be considered ... ,
but also to be given effect in all
possible ways, including ways that the questions do not
permit").
C
Our recent cases are not to the contrary. In
Boyde v.
California, 494 U. S. 370 (1990), for
example, the Court relied on two straightforward propositions to
reject petition-
387
er's claim that the California death penalty was
unconstitutional. First, we rejected the argument that requiring
the jury to weigh aggravating and mitigating factors, and then
sentence petitioner accordingly, violated the requirement of
individualized sentencing. The petitioner in
Boyde did not
allege that the instruction interfered with the jury's
consideration of mitigating evidence; instead, he essentially
argued for the constitutional right to an instruction on jury
nullification. See
id., at 377. We also addressed (and
rejected) petitioner's challenge to a "catch-all" instruction that
told the jury to consider "[a]ny other circumstance which
extenuates the gravity of the crime even though it is not a legal
excuse for the crime."
Id., at 374 (internal quotation marks
omitted). We reiterated our long-time understanding that the
"Eighth Amendment requires that the jury be able to consider and
give effect to all relevant mitigating evidence offered by
petitioner,"
id., at 377-378, but found that the challenged
instruction did not "restrict impermissibly [the] jury's
consideration of relevant evidence,"
id., at 378. Accord,
id., at 382-384. Our holding in
Boyde did not
constrict or limit our prior cases on the requirements of the
Eighth Amendment.
The Court's reliance on
Saffle v.
Parks, 494 U. S. 484 (1990),
also is misplaced. In
Saffle, the only issue was whether it
would be a new rule under the standards of
Teague v.
Lane, 489 U.
S. 288 (1989), for a defendant to be entitled to an instruction
allowing the jury to decline to impose the death penalty based on
mere sympathy. We held that it would. 494 U. S., at 489. To be
sure, there is language in
Saffle suggesting that a State
may limit a sentencer's consideration of mitigating evidence so
long as the sentencer may give some effect to the evidence. See,
e. g., id., at 490-491. But to the extent
Saffle suggests anything more than that the State may
prevent the sentencer from declining to impose the death penalty
based on mere sympathy, the language is dictum and cannot be
construed as over-
388
ruling 17 years of precedent. Limiting a sentencer's discretion
to react based on unfocused sympathy is not the equivalent of
preventing a sentencer from giving a "reasoned
moral
response,"
id., at 493 (internal quotation marks omitted),
based on "any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers as
a basis for a sentence less than death,"
id., at 489
(internal quotation marks omitted). This Court has reaffirmed
continually since 1976 that the Constitution prohibits the latter
limitation.
***
"[Y]outh is more than a chronological fact."
Eddings, 455
U. S., at 115. The emotional and mental immaturity of young people
may cause them to respond to events in ways that an adult would
not. Because the jurors in Johnson's case could not give effect to
this aspect of Johnson's youth, I would vacate Johnson's sentence
and remand for resentencing.
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