OCTOBER TERM, 1991
Syllabus
MORGAN
v. ILLINOIS
CERTIORARI TO THE SUPREME COURT OF ILLINOIS No. 91-5118. Argued
January 21, 1992-Decided June 15, 1992
The trial of a capital offense in Illinois is conducted in two
phases, with the same jury determining both a defendant's guilt and
whether the death penalty should be imposed. In accordance with
state law, the trial court conducted the
voir dire to select
the jury for petitioner Morgan's capital murder trial. The State
requested, pursuant to
Witherspoon v.
Illinois,
391 U. S. 510,
that the court ask the jurors whether they would automatically vote
against the death penalty no matter what the facts of the case
were. However, the court refused Morgan's request to ask if any
jurors would automatically vote to impose the death penalty
regardless of the facts, stating that it had asked substantially
that question. In fact, every empaneled juror was asked generally
whether each could be fair and impartial, and most were asked
whether they could follow "instructions on the law." Morgan was
convicted and sentenced to death. The State Supreme Court affirmed,
ruling that a trial court is not required to include in
voir
dire a "life qualifying" or "reverse-
Witherspoon"
question upon request.
Held: The trial court's refusal to inquire whether
potential jurors would automatically impose the death penalty upon
convicting Morgan is inconsistent with the Due Process Clause of
the Fourteenth Amendment. Pp.725-739.
(a) Due process demands that a jury provided to a capital
defendant at the sentencing phase must stand impartial and
indifferent to the extent commanded by the Sixth Amendment. See,
e. g., id., at 518. Pp. 726-728.
(b) Based on this impartiality requirement, a capital defendant
may challenge for cause any prospective juror who will
automatically vote for the death penalty. Such a juror will fail in
good faith to consider the evidence of aggravating and mitigating
circumstances as the instructions require. Cf.,
e. g.,
Wainwright v.
Witt, 469 U. S. 412, 424.
Pp.728-729.
(c) On
voir dire a trial court must, at a defendant's
request, inquire into the prospective jurors' views on capital
punishment. Part of the guarantee of a defendant's right to an
impartial jury is an adequate
voir dire to identify
unqualified jurors. Morgan could not exercise intelligently his
challenge for cause against prospective jurors who would
unwaveringly impose death after a finding of guilt unless he was
given the
720
Syllabus
opportunity to identify such persons by questioning them at
voir dire about their views on the death penalty. Cf.
Lockhart v.
McCree, 476 U. S. 162, 170, n. 7. Absent
that opportunity, his right not to be tried by those who would
always impose death would be rendered as nugatory and
meaningless as the State's right, in the absence of questioning, to
strike those who
never do so. Pp. 729-734.
(d) The trial court's
voir dire was insufficient to
satisfy Morgan's right to make inquiry. The State's own request for
questioning under
Witherspoon and
Witt belies its
argument that the general fairness and "follow the law" questions
asked by the trial court were enough to detect those in the venire
who would automatically impose death. Such jurors could in all
truth and candor respond affirmatively to both types of questions,
personally confident that their dogmatic views are fair and
impartial, while leaving the specific concern unprobed. More
importantly, the belief that death should be imposed
ipso
facto upon conviction reflects directly on an individual's
inability to follow the law. Pp. 734-736.
(e) A juror to whom mitigating evidence is irrelevant is plainly
saying that such evidence is not worth consideration, a view which
has long been rejected by this Court and which finds no basis in
Illinois statutory or decisional law. Here, the instruction accords
with the State's death penalty statute, which requires that the
jury be instructed to consider any relevant aggravating and
mitigating factors, lists certain relevant mitigating factors, and
directs the jury to consider whether the mitigating factors are
"sufficient to preclude" the death penalty's imposition. Since the
statute plainly indicates that a lesser sentence is available in
every case where mitigating evidence exists, a juror who would
invariably impose the death penalty would not give the mitigating
evidence the consideration the statute contemplates. Pp.
736-739.
142 Ill. 2d 410, 568 N. E. 2d 755, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J.,
and THOMAS, J., joined,
post, p. 739.
Allen H. Andrews I II argued the cause and filed briefs
for petitioner.
Kenneth L. Gillis argued the cause for respondent. With
him on the brief were
Roland W Burris, Attorney General of
Illinois,
Terence M. Madsen, Assistant Attorney General,
721
Jack O'Malley, Randall E. Roberts, Sally L. Dilgart, William D.
Carroll, and Marie Quinlivan Czech.
*
JUSTICE WHITE delivered the opinion of the Court.
We decide here whether, during
voir dire for a capital
offense, a state trial court may, consistent with the Due Process
Clause of the Fourteenth Amendment, refuse inquiry into whether a
potential juror would automatically impose the death penalty upon
conviction of the defendant.
I
The trial of a capital offense in Illinois is conducted in two
phases. The defendant must first be convicted of firstdegree
murder, as defined in Ill. Rev. Stat., ch. 38, , 9-1(a) (Supp.
1990). Illinois law uses the same jury that decided guilt to
determine whether the death penalty shall be imposed,l and upon
conviction, a separate sentencing hearing commences to determine
the existence of aggravating and mitigating factors. , 9-1(d)(1).
To be eligible for the death penalty, the jury must find
unanimously, , 9-1(g), and beyond a reasonable doubt, , 9-1(f),
that the defendant was at least 18 years old at the time of the
murder, and that at least 1 of 10 enumerated aggravating factors
exists, , 9-1(b). See,
e. g., , 9-1(b)(5) (murder for
hire or by contract); , 9-1(b)(10) (premeditated murder by
preconceived plan). If the jury finds none of the statutory
aggravating factors to exist, the defendant is sentenced to a term
of imprisonment. , 9-1(g). "If there is a unanimous finding by the
jury that one or more
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
Robert L. Graham,
Laura A. Kaster, Harvey Grossman, John A. Powell, Steven
Shapiro, and
Diann Rust-Tierney; and for the National
Association of Criminal Defense Lawyers by
Andrea
1 The defendant may, however, elect to waive sentencing by the
jury.
Ill. Rev. Stat., ch. 38, H-1(d)(3) (Supp. 1990). The procedure
and standards that guide a sentencing judge, , 9-1(h), are
identical to those that guide a jury, , 9-1(g).
722
of the factors set forth in subsection (b) exist, the jury shall
consider aggravating and mitigating factors as instructed by the
court and shall determine whether the sentence of death shall be
imposed."
Ibid. As part of this balance, the jury is
instructed to consider mitigating factors existing in the case,
five of which are enumerated, but which are not exclusive. ,
9-1(c). The State may also present evidence of relevant aggravating
factors beyond those enumerated by statute.
Ibid. "If the
jury determines unanimously that there are no mitigating factors
sufficient to preclude the imposition of the death sentence, the
court shall sentence the defendant to death." , 9-1(g).
Petitioner Derrick Morgan was convicted in Cook County,
Illinois, of first-degree murder and sentenced to death. The
evidence at trial amply proved that petitioner was hired to kill a
narcotics dealer apparently competing with the EI Rukns, one of
Chicago's violent inner-city gangs. For $4,000, petitioner lured
the dealer, who was a friend, into an abandoned apartment and shot
him in the head six times. Upon consideration of factors in
aggravation and mitigation, the jury sentenced him to death.
Three separate venires were required to be called before the
jury was finally chosen. In accordance with Illinois law, the trial
court, rather than the attorneys, conducted
voir dire.
People v.
Gacy, 103 Ill. 2d 1, 36-37, 468 N. E. 2d 1171,
1184-1185 (1984). The State, having elected to pursue capital
punishment, requested inquiry permitted by
Witherspoon v.
Illinois, 391
U. S. 510 (1968), to determine whether any potential juror
would in all instances refuse to impose the death penalty upon
conviction of the offense. Accordingly, the trial court, over
opposition from the defense, questioned each venire whether any
member had moral or religious principles so strong that he or she
could not impose the death penalty "regardless of the facts." App.
9, 78, 90. Seventeen potential jurors were excused when they
ex-
723
pressed substantial doubts about their ability to follow
Illinois law in deciding whether to impose a sentence of death.
Id., at 9-22, 79-83, 90-94. All of the jurors eventually
empaneled were also questioned individually under
Witherspoon, each receiving and responding in the negative
to this question or a slight variation: "Would you automatically
vote against the death penalty no matter what the facts of the case
were?" App. 33; see
id., at 36, 41, 48, 55, 59, 64, 69, 76,
88,97,103.
After seven members of the first venire had been questioned,
including three who eventually became jurors, petitioner's counsel
requested the trial court to ask all prospective jurors the
following question: "If you found Derrick Morgan guilty, would you
automatically vote to impose the death penalty no matter what the
facts are?"
Id., at 44. The trial court refused this
request, stating that it had "asked the question in a different
vein substantially in that nature."
Ibid.
Prior to the
voir dire of the three venires, the trial
court had explained in general terms the dictates of Illinois
procedure in capital trials, as outlined above. See
id., at
24, 7778, 90. During
voir dire, the trial court received
from 9 of the 12 jurors empaneled an affirmative response to
variations of this question: "Would you follow my instructions on
the law even though you may not agree?"
Id., at 30; see
id., at 38, 43, 49, 56, 60, 64, 69, 107. However, the trial
court did not ask three of the jurors this question in any way. See
id., at 73-77, 83-89,94-100. Every juror eventually
empaneled was asked generally whether each could be fair and
impartia1.2 Each juror responded appropriately to at least one
2 Such questioning led to the removal for cause of one
prospective juror, following this exchange:
"Q Would you follow my instructions on the law in the case even
though you might not agree?
"A Yes.
[Footnote 2 is continued on
p. 724]
724
of these questions, or a variation: (1) "Do you know of any
reason why you cannot be fair and impartial?",
id., at 33;
see
id., at 41, 49, 64, 68, 75, 88, 99; (2) "Do you feel you
can give both sides a fair trial?",
id., at 70; see
id., at 35, 38, 43, 49, 56, 61, 65, 77, 100, 110. When
empaneled, each member of the jury further swore an oath to "well
and truly try the issues joined herein and true deliverance make
between the People of the State of Illinois and the defendant at
the bar and a true verdict render according to the law and the
evidence." 1 Tr. 601-602; see
id., at 264, 370, 429, 507,
544, 575-576.
On appeal, the Illinois Supreme Court affirmed petitioner's
conviction and death sentence, rejecting petitioner's claim that,
pursuant to
Ross v.
Oklahoma, 487 U. S. 81 (1988),
voir dire must include the "life qualifying" or "reverse-
Witherspoon" question upon request. The Illinois Supreme
Court concluded that nothing requires a trial court to question
potential jurors so as to identify and exclude any who would vote
for the death penalty in every case after conviction for a capital
offense. 142 Ill. 2d 410, 470, 568 N. E. 2d 755, 778 (1991).3 That
court also found no violation
"Q Do you know any reason why you cannot give this defendant a
fair trial?
"A I would have no problem during the trial. If it came-I had a
friend's parents murdered twelve years ago before capital
punishment. I would give a fair trial. If he is found guilty, I
would want him hung.
"Q You couldn't be fair and impartial throughout the
proceedings? "A No.
"Q You are excused." App.72-73.
3 The Illinois Supreme Court has subsequently emphasized that
decision in this case was not meant "to imply that the 'reverse-
Witherspoon' question is inappropriate. Indeed, given the
type of scrutiny capital cases receive on review, one would think
trial courts would go out of their way to afford a defendant every
possible safeguard. The 'reverse
Witherspoon' question may
not be the only means of ensuring defendant an impartial jury, but
it is certainly the most direct. The best way to ensure that a
prospective juror would not automatically vote for the death
penalty is to ask."
People v.
Jackson, 145 Ill. 2d
43, 110, 582 N. E. 2d
725
of
Ross, concluding instead that petitioner's jury "was
selected from a fair cross-section of the community, each juror
swore to uphold the law regardless of his or her personal feelings,
and no juror expressed any views that would call his or her
impartiality into question." 142 Ill. 2d, at 470, 568 N. E. 2d, at
778.
We granted certiorari because of the considerable disagreement
among state courts of last resort on the question at issue in this
case.4 502 U. S. 905 (1991). We now reverse the judgment of the
Illinois Supreme Court.
II
We have emphasized previously that there is not "any one right
way for a State to set up its capital sentencing
125, 156 (1991). See also
State v.
Atkins, 303 S.
C. 214, 222-223, 399 S. E. 2d 760, 765 (1990).
4 Delaware and South Carolina agree with Illinois that the
"reverse
Witherspoon" inquiry is unnecessary so long as, by
questions and oath, each juror swears to be fair and impartial and
to follow the law. See
Riley v.
State, 585 A. 2d 719,
725-726 (Del. 1990), cert. denied, 501 U. S. 1223 (1991);
State v.
Hyman, 276 S. C. 559, 563, 281 S. E. 2d 209,
211-212 (1981), cert. denied, 458 U. S. 1122 (1982). Missouri
appears to be of this view as well.
State v.
McMillin, 783 S. W. 2d 82, 94 (Mo.), cert. denied, 498 U. S.
881 (1990). California, Georgia, Louisiana, New Jersey, North
Carolina, Utah, and Virginia disagree, see
People v.
Bittaker, 48 Cal. 3d 1046, 1083-1084, 774 P. 2d 659, 679
(1989);
Skipper v.
State, 257 Ga. 802, 806-807,364 S.
E. 2d 835, 839 (1988);
State v.
Henry, 196 La. 217,
232-234, 198 So. 910, 914-916 (1940);
State v.
Williams, 113 N. J. 393, 415-417, 550 A. 2d 1172, 1182-1184
(1988);
State v.
Rogers, 316 N. C. 203, 216-218, 341
S. E. 2d 713, 722 (1986);
State v.
Norton, 675 P. 2d
577, 588-589 (Utah 1983), cert. denied, 466 U. S. 942 (1984);
Patterson v.
Commonwealth, 222 Va. 653, 657-660, 283
S. E. 2d 212, 214-216 (1981), as apparently do Arkansas, Florida,
and Kentucky, see
Pickens v.
State, 292 Ark. 362,
366-367, 730 S. W. 2d 230, 233-234, cert. denied, 484 U. S. 917
(1987);
Gore v.
State, 475 So. 2d 1205, 1206-1208
(Fla. 1985), cert. denied, 475 U. S. 1031 (1986);
Morris v.
Commonwealth, 766 S. W. 2d 58, 60 (Ky. 1989). Lower courts
in Alabama also follow this latter view. See
Bracewell v.
State, 506 So. 2d 354, 358 (Ala. Crim. App. 1986); cf.
Henderson v.
State, 583 So. 2d 276, 283-284 (Ala.
Crim. App. 1990) (no "plain error" in trial court's failure
sua
sponte to "life qualify" the prospective jurors), aff'd, 583
So. 2d 305 (1991).
726
scheme,"
Spaziano v.
Florida, 468 U. S. 447, 464 (1984)
(citations omitted), and that no State is constitutionally required
by the Sixth Amendment or otherwise to provide for jury
determination of whether the death penalty shall be imposed on a
capital defendant,
ibid. Illinois has chosen, however, to
delegate to the jury this task in the penalty phase of capital
trials in addition to its duty to determine guilt or innocence of
the underlying crime. The issue, therefore, is whether petitioner
is entitled to relief under the Due Process Clause of the
Fourteenth Amendment. We conclude that he is, and in the course of
doing so we deal with four issues: whether a jury provided to a
capital defendant at the sentencing phase must be impartial;
whether such defendant is entitled to challenge for cause and have
removed on the ground of bias a prospective juror who will
automatically vote for the death penalty irrespective of the facts
or the trial court's instructions of law; whether on
voir
dire the court must, on defendant's request, inquire into the
prospective jurors' views on capital punishment; and whether the
voir dire in this case was constitutionally sufficient.
A
Duncan v.
Louisiana, 391 U. S. 145 (1968),
held that the Fourteenth Amendment guaranteed a right of jury trial
in all state criminal cases which, were they tried in a federal
court, would come within the Sixth Amendment's guarantee of trial
by jury. Prior to this decision applying the Sixth Amendment's jury
trial provision to the States, we recognized in
Irvin v.
Dowd, 366 U.
S. 717 (1961), and in
Turner v.
Louisiana,
379 U. S. 466
(1965), that the Fourteenth Amendment's Due Process Clause itself
independently required the impartiality of any jury empaneled to
try a cause:
"Although this Court has said that the Fourteenth Amendment does
not demand the use of jury trials in a State's criminal procedure,
Fay v. New York, 332 U. S. 261 [(1947)];
Palko v. Connecticut, 302 U. S. 319
[(1937)],
727
every State has constitutionally provided trial by jury. See
Columbia University Legislative Drafting Research Fund, Index
Digest of State Constitutions, 578-579 (1959). In essence, the
right to jury trial guarantees to the criminally accused a fair
trial by a panel of impartial, 'indifferent' jurors. The failure to
accord an accused a fair hearing violates even the minimal
standards of due process.
In re Oliver, 333 U. S. 257 [(1948)];
Tumey v.
Ohio, 273 U. S. 510 [(1927)].
'A fair trial in a fair tribunal is a basic requirement of due
process.'
In re Murchison, 349 U. S. 133, 136
[(1955)]. In the ultimate analysis, only the jury can strip a man
of his liberty or his life. In the language of Lord Coke, a juror
must be as 'indifferent as he stands unsworne.' Co. Litt. 155b. His
verdict must be based upon the evidence developed at the trial. Cf.
Thompson v.
City of Louisville, 362 U. S. 199
[(1960)]. This is true, regardless of the heinousness of the crime
charged, the apparent guilt of the offender or the station in life
which he occupies. It was so written into our law as early as 1807
by Chief Justice Marshall in 1 Burr's Trial 416 (1807). 'The theory
of the law is that a juror who has formed an opinion cannot be
impartial.'
Reynolds v.
United States, 98 U. S. 145, 155
[(1879)]."
Irvin v.
Dowd, supra, at 721-722 (footnote
omitted).
In
Turner v.
Louisiana, we relied on this passage
to delineate "the nature of the jury trial which the Fourteenth
Amendment commands when trial by jury is what the State has
purported to accord." 379 U. S., at 471. In short, as reflected in
the passage above, due process alone has long demanded that, if a
jury is to be provided the defendant, regardless of whether the
Sixth Amendment requires it, the jury must stand impartial and
indifferent to the extent commanded by the Sixth Amendment.
Id., at 472, and n. 10; cf.
Groppi v.
Wisconsin, 400
U. S. 505, 508-511 (1971).
728
Thus it is that our decisions dealing with capital sentencing
juries and presenting issues most analogous to that which we decide
here today,
e. g., Witherspoon v.
Illinois, 391 U.
S., at 518;
Adams v.
Texas, 448 U. S. 38, 40 (1980);
Wainwright v.
Witt, 469 U. S. 412, 423
(1985);
Ross v.
Oklahoma, 487 U. S., at 85, have
relied on the strictures dictated by the Sixth
and
Fourteenth Amendments to ensure the impartiality of any jury that
will undertake capital sentencing. See also
Turner v.
Murray, 476 U.
S. 28, 36, and n. 9 (1986) (plurality opinion).
B
Witt held that "the proper standard for determining when
a prospective juror may be excluded for cause because of his or her
views on capital punishment ... is whether the juror's views would
'prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.'" 469 U.
S., at 424 (quoting
Adams v.
Texas, supra, at 45).
Under this standard, it is clear from
Witt and
Adams,
the progeny of
Witherspoon, that a juror who in no case
would vote for capital punishment, regardless of his or her
instructions, is not an impartial juror and must be removed for
cause.
Thereafter, in
Ross v.
Oklahoma, supra, a state
trial court refused to remove for cause a juror who declared he
would vote to impose death automatically if the jury found the
defendant guilty. That juror, however, was removed by the
defendant's use of a peremptory challenge, and for that reason the
death sentence could be affirmed. But in the course of reaching
this result, we announced our considered view that because the
Constitution guarantees a defendant on trial for his life the right
to an impartial jury, 487 U. S., at 85, the trial court's failure
to remove the juror for cause was constitutional error under the
standard enunciated in
Witt. We emphasized that "[h]ad [this
juror] sat on the jury that ultimately sentenced petitioner to
death, and had petitioner properly preserved his right to challenge
the trial court's
729
failure to remove [the juror] for cause, the sentence would have
to be overturned." 487 U. S., at 85 (citing
Adams,
supra).
We reiterate this view today. A juror who will automatically
vote for the death penalty in every case will fail in good faith to
consider the evidence of aggravating and mitigating circumstances
as the instructions require him to do. Indeed, because such a juror
has already formed an opinion on the merits, the presence or
absence of either aggravating or mitigating circumstances is
entirely irrelevant to such a juror. Therefore, based on the
requirement of impartiality embodied in the Due Process Clause of
the Fourteenth Amendment, a capital defendant may challenge for
cause any prospective juror who maintains such views. If even one
such juror is empaneled and the death sentence is imposed, the
State is disentitled to execute the sentence.
C
Illinois, in fact, raises no challenge to the foregoing
precepts, but argues instead that the trial court, in its
discretion, may refuse direct inquiry into this matter, so long as
its other questioning purports to assure the defendant a fair and
impartial jury able to follow the law. It is true that
"[v]oir
dire 'is conducted under the supervision of the court, and a
great deal must, of necessity, be left to its sound discretion.'"
Ristaino v.
Ross, 424 U. S. 589, 594 (1976)
(quoting
Connors v.
United States, 158 U. S. 408, 413
(1895)). The Constitution, after all, does not dictate a catechism
for
voir dire, but only that the defendant be afforded an
impartial jury. Even so, part of the guarantee of a defendant's
right to an impartial jury is an adequate
voir dire to
identify unqualified jurors.
Dennis v.
United States,
339 U. S. 162,
171-172 (1950);
Morford v.
United States, 339 U. S. 258, 259
(1950). "Voir dire plays a critical function in assuring the
criminal defendant that his [constitutional] right to an impartial
jury will be honored. Without an adequate
voir dire the
730
trial judge's responsibility to remove prospective jurors who
will not be able impartially to follow the court's instructions and
evaluate the evidence cannot be fulfilled."
RosalesLopez v.
United States, 451 U. S. 182, 188 (1981)
(plurality opinion). Hence, "[t]he exercise of [the trial court's]
discretion, and the restriction upon inquiries at the request of
counsel, [are] subject to the essential demands of fairness."
Aldridge v.
United States, 283 U. S. 308, 310
(1931).5
The adequacy of
voir dire is not easily the subject of
appellate review,
Rosales-Lopez, supra, at 188, but we have
not hesitated, particularly in capital cases, to find that certain
inquiries must be made to effectuate constitutional protections,
see,
e. g., Turner v.
Murray, supra, at 36-37;
Ham v.
South Carolina, 409 U. S. 524, 526-527
(1973). Our holding in
Ham, for instance, was as
follows:
"Since one of the purposes of the Due Process Clause of the
Fourteenth Amendment is to insure these 'essential demands of
fairness,' e. g., Lisenba v. California, 314 U. S.
219, 236 (1941), and since a principal purpose of the adoption of
the Fourteenth Amendment was to prohibit the States from
invidiously discriminating on the basis of race, Slaughter-House
Cases, 16 Wall. 36, 81 (1873), we think that the Fourteenth
Amendment required the judge in this case to interrogate the jurors
upon the subject of racial prejudice. South Carolina law permits
challenges for cause, and authorizes the trial judge to conduct
voir dire examination of potential jurors. The State having
created this statutory framework for the selection of juries, the
essential fairness required by the Due Process Clause of the
Fourteenth Amendment requires that under the facts shown by this
record the
5 See
Mu'Min v.
Virginia, 500 U. S. 415, 425-426
(1991): "To be constitutionally compelled ... it is not enough that
such questions might be helpful. Rather, the trial court's failure
to ask these questions must render the defendant's trial
fundamentally unfair."
731
petitioner be permitted to have the jurors interrogated on the
issue of racial bias." Id., at 526-527.
We have also come to recognize that the principles first
propounded in
Witherspoon v.
Illinois, 391 U. S. 510 (1968), the
reverse of which are at issue here, demand inquiry into whether the
views of prospective jurors on the death penalty would disqualify
them from sitting.6 At its inception,
Witherspoon conferred
no "right" on a State, but was in reality a limitation of a State's
making unlimited challenges for cause to exclude those jurors who
"might hesitate" to return a verdict imposing death.
Id., at
512-513; see
Adams v.
Texas, 448 U. S., at 47-49.
Upon consideration of the jury in
Witherspoon, drawn as it
was from a venire from which the State struck any juror expressing
qualms about the death penalty,
6 Illinois argues that, because of the changed structure in
death penalty jurisprudence since
Furman v.
Georgia,
408 U. S. 238
(1972),
Witherspoon principles should no longer guide this
area. But analogous arguments have been previously raised and
rejected.
Adams v.
Texas, 448 U. S. 38, 45-47
(1980). When considering the Texas death penalty scheme in light of
Witherspoon, we stated: "[J]urors in Texas must determine
whether the evidence presented by the State convinces them beyond
reasonable doubt that each of the three questions put to them must
be answered in the affirmative. In doing so, they must consider
both aggravating and mitigating circumstances, whether appearing in
the evidence presented at the trial on guilt or innocence or during
the sentencing proceedings. Jurors will characteristically know
that affirmative answers to the questions will result in the
automatic imposition of the death penalty, and each of the jurors
whose exclusion is challenged by petitioner was so informed. In
essence, Texas juries must be allowed to consider 'on the basis of
all relevant evidence not only why a death sentence should be
imposed, but also why it should not be imposed.'
Jurek v.
Texas, 428 U.
S. 262, 271 (1976) (opinion of Stewart, Powell, and STEVENS,
JJ.). This process is not an exact science, and the jurors under
the Texas bifurcated procedure unavoidably exercise a range of
judgment and discretion while remaining true to their instructions
and their oaths."
Adams, supra, at 46 (citation omitted).
The balancing approach chosen by Illinois vests considerably more
discretion in the jurors considering the death penalty, and, with
stronger reason,
Witherspoon's general principles apply. Cf.
Turner v.
Murray, 476 U. S. 28, 34-35 (1986)
(plurality opinion).
732
we found it "self-evident that, in its role as arbiter of the
punishment to be imposed, this jury fell woefully short of that
impartiality to which the petitioner was entitled under the Sixth
and Fourteenth Amendments." 391 U. S., at 518. To preserve this
impartiality,
Witherspoon constrained the State's exercise
of challenges for cause:
"[A] State may not entrust the determination of whether a man
should live or die to a tribunal organized to return a verdict of
death. Specifically, we hold that a sentence of death cannot be
carried out if the jury that imposed or recommended it was chosen
by excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or
religious scruples against its infliction. No defendant can
constitutionally be put to death at the hands of a tribunal so
selected." Id., at 520-523 (footnotes omitted).
See also
Lockhart v.
McCree, 476 U. S. 162, 179-180
(1986).
Witherspoon limited a State's power broadly to
exclude jurors hesitant in their ability to sentence a defendant to
death, but nothing in that decision questioned "the power of a
State to execute a defendant sentenced to death by a jury from
which the only veniremen who were in fact excluded for cause were
those who made unmistakably clear ... that they would
automatically vote against the imposition of capital
punishment without regard to any evidence that might be developed
at the trial of the case before them .... " 391 U. S., at 522, n.
21 (emphasis in original); see also
id., at 513-514.
In
Wainwright v.
Witt, 469 U. S. 412 (1985), we
revisited footnote 21 of
Witherspoon, and held affirmatively
that "the State may exclude from capital sentencing juries that
'class' of veniremen whose views would prevent or substantially
impair the performance of their duties in accord-
733
ance with their instructions or their oaths." 469 U. S., at 424,
n. 5; see also
Lockett v.
Ohio, 438 U. S. 586, 595-596
(1978). Indeed, in
Lockhart v.
McCree we thereafter
spoke in terms of
"'Witherspoon-excludables'" whose removal
for cause "serves the State's entirely proper interest in obtaining
a single jury that could impartially decide all of the issues in [a
capital] case." 476 U. S., at 180. From
Witt, moreover, it
was but a very short step to observe as well in
Lockhart:
"[T]he State may challenge for cause prospective jurors whose
opposition to the death penalty is so strong that it would prevent
them from impartially determining a capital defendant's guilt or
innocence. Ipso facto, the State must be given the
opportunity to identify such prospective jurors by questioning them
at voir dire about their views of the death penalty." 476 U.
S., at 170, n. 7.
This passage in
Lockhart expanded but briefly upon what
we had already recognized in
Witt: "As with any other trial
situation where an adversary wishes to exclude a juror because of
bias, then, it is the adversary seeking exclusion who must
demonstrate,
through questioning, that the potential juror
lacks impartiality. It is then the trial judge's duty to determine
whether the challenge is proper." 469 U. S., at 423 (citation
omitted; emphasis added).
We deal here with petitioner's ability to exercise intelligently
his complementary challenge for cause against those biased persons
on the venire who as jurors would unwaveringly impose death after a
finding of guilt. Were
voir dire not available to lay bare
the foundation of petitioner's challenge for cause against those
prospective jurors who would
always impose death following
conviction, his right not to be tried by such jurors would be
rendered as nugatory and
734
meaningless as the State's right, in the absence of questioning,
to strike those who would
never do SO.7
D
The only issue remaining is whether the questions propounded by
the trial court were sufficient to satisfy petitioner's right to
make inquiry. As noted above, Illinois suggests that general
fairness and "follow the law" questions, of the like employed by
the trial court here, are enough to detect those in the venire who
automatically would vote for the death penalty.8 The State's own
request for questioning under
Witherspoon and
Witt of
course belies this argument.
Witherspoon and its succeeding
cases would be in large measure superfluous were this Court
convinced that such general inquiries could detect those jurors
with views pre-
7 As the Fifth Circuit has observed
obiter dictum: "All
veniremen are potentially biased. The process of voir dire is
designed to cull from the venire persons who demonstrate that they
cannot be fair to
either side of the case. Clearly, the
extremes must be eliminated-i.
e., those who, in spite of
the evidence, would automatically vote to convict or impose the
death penalty or automatically vote to acquit or impose a life
sentence."
Smith v.
Balkcom, 660
F.2d 573, 578 (1981) (emphasis in original), modified,
671 F.2d
858, cert. denied, 459 U. S. 882 (1982).
8 Almost in passing the State also suggests that the
"reverse
Witherspoon" inquiry is inapposite because of a
putative "quantitative difference." Illinois requires a unanimous
verdict in favor of imposing death, see
supra, at 721-722;
thus anyone juror can nullify the imposition of the death penalty.
"Persons automatically for the death penalty would not carry the
same weight," Illinois argues, "because persons automatically for
the death penalty would still need to persuade the remaining eleven
jurors to vote
for the death penalty." Brief for Respondent
27. The dissent chooses to champion this argument,
post, at
750, although it is clearly foreclosed by
Ross v.
Oklahoma, 487
U. S. 81, 85 (1988), where we held that even one such juror on
the panel would be one too many. See
supra, at 728-729. In
any event, the measure of a jury is taken by reference to the
impartiality of each, individual juror. Illinois has chosen to
provide a capital defendant 12 jurors to decide his fate, and each
of these jurors must stand equally impartial in his or her ability
to follow the law.
735
venting or substantially impairing their duties in accordance
with their instructions and oath. But such jurors-whether they be
unalterably in favor of, or opposed to, the death penalty in every
case-by definition are ones who cannot perform their duties in
accordance with law, their protestations to the contrary
notwithstanding.
As to general questions of fairness and impartiality, such
jurors could in all truth and candor respond affirmatively,
personally confident that such dogmatic views are fair and
impartial, while leaving the specific concern unprobed. More
importantly, however, the belief that death should be imposed
ipso facto upon conviction of a capital offense reflects
directly on that individual's inability to follow the law. See
supra, at 729. Any juror who would impose death regardless
of the facts and circumstances of conviction cannot follow the
dictates of law. See
Turner v.
Murray, 476 U. S., at
34-35 (plurality opinion). It may be that a juror could, in good
conscience, swear to uphold the law and yet be unaware that
maintaining such dogmatic beliefs about the death penalty would
prevent him or her from doing SO.9 A defendant on trial for his
life must be permitted on
voir dire
9 That certain prospective jurors maintain such inconsistent
beliefsthat they can follow the law, but that they will always vote
to impose death for conviction of a capital offense-has been
demonstrated, even in this case. See n. 2,
supra. Indeed, in
Wainwright v.
Witt, 469 U. S. 412 (1985), we
set forth the following exchange, highlighting this inconsistency
in beliefs in regards to
Witherspoon v.
Illinois,
391 U. S. 510
(1968):
"THE COURT: Wait a minute, ma'am. I haven't made up my mind yet.
Just have a seat. Let me ask you these things. Do you have any
prefixed ideas about this case at all?
"[A]: Not at all.
"THE COURT: Will you follow the law that I give you? "[A]: I
could do that.
"THE COURT: What I am concerned about is that you indicated that
you have a state of mind that might make you be unable to follow
the law of this State.
"[A]: I could not bring back a death penalty.
"THE COURT: Step down." 469 U. S., at 432, n. 12.
736
to ascertain whether his prospective jurors function under such
misconception. The risk that such jurors may have been empaneled in
this case and "infected petitioner's capital sentencing [is]
unacceptable in light of the ease with which that risk could have
been minimized."
Id., at 36 (footnote omitted). Petitioner
was entitled, upon his request, to inquiry discerning those jurors
who, even prior to the State's case in chief, had predetermined the
terminating issue of his trial, that being whether to impose the
death penalty.
III
JUSTICE SCALIA, in dissent, insists that Illinois is entitled to
try a death penalty case with 1 or even 12 jurors who upon inquiry
announce that they would automatically vote to impose the death
penalty if the defendant is found guilty of a capital offense, no
matter what the so-called mitigating factors, whether statutory or
nonstatutory, might be.
Post, at 742-746. But such jurors
obviously deem mitigating evidence to be irrelevant to their
decision to impose the death penalty: They not only refuse to give
such evidence any weight but are also plainly saying that
mitigating evidence is not worth their consideration and that they
will not consider it. While JUSTICE SCALIA'S jaundiced view of our
decision today may best be explained by his rejection of the line
of cases tracing from
Woodson v.
North Carolina, 428
U. S. 280 (1976), and
Lockett v.
Ohio, 438 U. S. 586 (1978), and
developing the nature and role of mitigating evidence in the trial
of capital offenses, see
Walton v.
Arizona, 497 U. S. 639, 669-673
(1990) (SCALIA, J., concurring in part and concurring in judgment);
Payne v.
Tennessee, 501 U. S. 808, 833 (1991)
(SCALIA, J., concurring);
Sochor v.
Florida, ante, at
554 (SCALIA, J., concurring in part and dissenting in part), it is
a view long rejected by this Court. More important to our purposes
here, however, his view finds no support in either the statutory or
decisional law of Illinois because that law is consistent with the
requirements concerning mitigating evi-
737
dence described in this Court's cases. See
Turner v.
Murray, supra, at 34-35 (plurality opinion).
The Illinois death penalty statute provides that "[t]he court
shall consider, or shall instruct the jury to consider any
aggravating and any mitigating factors which are relevant to the
imposition of the death penalty," Ill. Rev. Stat., ch. 38, , 9-1(c)
(Supp. 1990), and lists certain mitigating factors that the
legislature must have deemed relevant to such imposition,
ibid.10 The statute explicitly directs the procedure
controlling this jury deliberation:
"If there is a unanimous finding by the jury that one or more of
the factors [enumerated in aggravation] exist, the jury shall
consider aggravating and mitigating factors as instructed by the
court and shall determine whether the sentence of death shall be
imposed. If the jury determines unanimously that there are no
mitigating factors sufficient to preclude the imposition of the
death sentence, the court shall sentence the defendant to death." ,
9-1(g).
In accord with this statutory procedure, the trial judge in this
case instructed the jury:
"In deciding whether the Defendant should be sentenced to death,
you should consider all the aggravating
10 Illinois Rev. Stat., ch. 38, , 9-1(c) (Supp. 1990),
provides:
"Mitigating factors may include but need not be limited to the
following: "(1) the defendant has no significant history of prior
criminal activity; "(2) the murder was committed while the
defendant was under the influence of extreme mental or emotional
disturbance, although not such as to constitute a defense to
prosecution;
"(3) the murdered individual was a participant in the
defendant's homicidal conduct or consented to the homicidal
act;
"(4) the defendant acted under the compulsion of threat or
menace of the imminent infliction of death or great bodily
harm;
"(5) the defendant was not personally present during commission
of the act or acts causing death."
738
factors supported by the evidence and all the mitigating factors
supported by the evidence.
"If you unanimously find, from your consideration of all the
evidence, that there are no mitigating factors sufficient to
preclude imposition of the death sentence, then you should sign the
verdict requiring the Court sentence the Defendant to death." App.
122-123.
Any juror who states that he or she will automatically vote for
the death penalty without regard to the mitigating evidence is
announcing an intention not to follow the instructions to consider
the mitigating evidence and to decide if it is
sufficient to
preclude imposition of the death penalty. Any contrary reading of
this instruction, or more importantly, the controlling statute,
renders the term "sufficient" meaningless. The statute plainly
indicates that a lesser sentence is available in every case where
mitigating evidence exists; thus any juror who would invariably
impose the death penalty upon conviction cannot be said to have
reached this decision based on all the evidence. While JUSTICE
SCALIA chooses to argue that such a "merciless juro[r]" is not a
"lawless" one,
post, at 751, he is in error, for such a
juror will not give mitigating evidence the consideration that the
statute contemplates. Indeed, the Illinois Supreme Court recognizes
that jurors are not impartial if they would automatically vote for
the death penalty, and that questioning in the manner petitioner
requests is a direct and helpful means of protecting a defendant's
right to an impartial jury. See n. 3,
supra. The State has
not suggested otherwise in this Court.
Surely if in a particular Illinois case the judge, who imposes
sentence should the defendant waive his right to jury sentencing
under the statute, see n. 1,
supra, was to announce that, to
him or her, mitigating evidence is beside the point and that he or
she intends to impose the death penalty without regard to the
nature or extent of mitigating evidence
739
if the defendant is found guilty of a capital offense, that
judge is refusing in advance to follow the statutory direction to
consider that evidence and should disqualify himself or herself.
Any juror to whom mitigating factors are likewise irrelevant should
be disqualified for cause, for that juror has formed an opinion
concerning the merits of the case without basis in the evidence
developed at trial. Accordingly, the defendant in this case was
entitled to have the inquiry made that he proposed to the trial
judge.
IV
Because the "inadequacy of
voir dire" leads us to doubt
that petitioner was sentenced to death by a jury empaneled in
compliance with the Fourteenth Amendment, his sentence cannot
standY
Turner v.
Murray, 476 U. S., at 37.
Accordingly, the judgment of the Illinois Supreme Court affirming
petitioner's death sentence is reversed, and the case is remanded
for further proceedings not inconsistent with this opinion.
So ordered.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS
join, dissenting.
The Court today holds that a juror who will always impose the
death penalty for capital murder is not "impartial" in the sense
required by the Sixth Amendment; that the Constitution requires
that
voir dire directed to this specific "bias" be provided
upon the defendant's request; and that the more general questions
about "fairness" and ability to "follow the law" that were asked
during
voir dire in this case were inadequate. Because these
conclusions seem to me jointly and severally wrong, I dissent.
11 Our decision today has no bearing on the validity of
petitioner's conviction.
Witherspoon, 391 U. S., at 523, n.
21.
740
I
The Court today reaffirms our oft-repeated holding that the
Sixth Amendment (which is binding on the States through the
Fourteenth Amendment) does not require a jury trial at the
sentencing phase of a capital case.
Ante, at 726. See
Clemons v.
Mississippi, 494 U. S. 738, 745-746
(1990);
Walton v.
Arizona, 497 U. S. 639, 647-649
(1990);
Cabana v.
Bullock, 474 U. S. 376, 385
(1986);
Spaziano v.
Florida, 468 U. S. 447, 464
(1984); see also
McMillan v.
Pennsylvania, 477 U. S. 79,93 (1986) (no
right to jury sentencing in noncapital case). In a separate line of
cases, however, we have said that the exclusion of persons who
merely "express serious reservations about capital punishment" from
sentencing juries violates the right to an
"impartial jury"
under the
Sixth Amendment. Witherspoon v.
Illinois,
391 U. S. 510,
518 (1968); see also
Adams v.
Texas, 448 U. S. 38, 40 (1980);
Wainwright v.
Witt, 469 U. S. 412, 423
(1985). The two propositions are, of course, contradictory: If
capital sentencing is not subject to the Sixth Amendment jury
guarantee, then neither is it subject to the subsidiary requirement
that the requisite jury be impartial.
The Court effectively concedes that the Sixth Amendment does not
apply here, relying instead upon the Due Process Clause of the
Fourteenth Amendment, which it says requires that any sentencing
jury be "impartial"
to the same extent that the Sixth
Amendment requires a jury at the guilt phase to be impartial.
Ante, at 727. I agree with that. See
Gardner v.
Florida, 430
U. S. 349, 358 (1977) (plurality opinion) (sentencing
procedures must comply with the requirements of the Due Process
Clause). I do not agree, however, that unconstitutional
"partiality," for either Sixth Amendment or Fourteenth Amendment
purposes, is established by the fact that a juror's standard of
judgment-which he applies to the defendant on trial as he would to
all othershappens to be the standard least favorable to the
defense. Assume, for example, a criminal prosecution in which
the
741
State plans to prove only elements of circumstantial evidence
x, y, and
z. Surely counsel for the defendant cannot
establish unconstitutional partiality (and hence obtain mandatory
recusal) of a juror by getting him to state, on
voir dire,
that if, in a prosecution for this crime, elements
x, y, and
z were shown, he would always vote to convict. Such an
admission would simply demonstrate that particular juror's standard
of judgment regarding how evidence deserves to be weighedand even
though application of that standard will, of a certainty, cause the
juror to vote to convict in the case at hand, the juror is not
therefore "biased" or "partial" in the constitutionally forbidden
sense. So also, it seems to me, with jurors' standards of judgment
concerning appropriateness of the death penalty. The fact that a
particular juror thinks the death penalty proper
whenever
capital murder is established does not disqualify him. To be sure,
the law governing sentencing verdicts says that a jury
may
give less than the death penalty in such circumstances, just as, in
the hypothetical case I have propounded, the law governing guilt
verdicts says that a jury
may acquit despite proof of
elements
x, y, and
z. But in neither case does the
requirement that a more defense-favorable option be left available
to the jury convert into a requirement that all jurors must, on the
facts of the case, be amenable to entertaining that option.
A State in which the jury does the sentencing no more violates
the due process requirement of impartiality by allowing the seating
of jurors who favor the death penalty than does a State with
judge-imposed sentencing by permitting the people to elect (or the
executive to appoint) judges who favor the death penalty. Cf.
United States v.
Grinnell Corp., 384 U. S. 563, 583
(1966);
United States v.
Richards, 737 F.2d
1307, 1311 (CA4 1984), cert. denied, 469 U. S. 1106
(1985);
United States v.
Thompson, 483 F.2d
527, 530-531 (CA3 1973) (Adams, J., dissenting); 2 W. LaFave
& J. Israel, Criminal Procedure §21.4(b), p. 747 (1984)
(adherence to a particular legal principle is not a basis for
challenging impar-
742
tiality of a judge). Indeed, it is precisely because such
individual juror "biases"
are constitutionally permissible
that
Witherspoon v.
Illinois imposed the limitation
that a State may not skew the makeup of the jury
as a whole
by excluding all death-scrupled jurors. 391 U. S., at 519-523.
II
In the Court's view, a juror who will always impose the death
penalty upon proof of the required aggravating factors 1 "will fail
in good faith to consider the evidence of aggravating and
mitigating circumstances
as the instructions require him to do."
Ante, at 729 (emphasis added); see also
ante, at
738-739. I would agree with that if it were true that the
instructions required jurors to deem certain evidence to be
"mitigating" and to weigh that evidence in deciding the penalty. On
that hypothesis, the juror's firm attachment to the death penalty
would demonstrate an absence of the constitutionally requisite
impartiality, which requires that the decisionmaker be able
"conscientiously [to] apply the law and find the facts."
Witt,
supra, at 423; see also
Lockhart v.
McCree,
476 U. S. 162,
178 (1986);
Adams, supra, at 45. The hypothesis, however, is
not true as applied to the facts of the present case. Remarkably,
the Court rests its
1 It is important to bear in mind that the juror who will ignore
the requirement of finding an aggravating factor is not at issue
here. Petitioner does not contend that the
voir dire
question he seeks is necessary because the death-inclined juror
will not impartially make the strictly factual determination, at
the first stage of Illinois' two-part sentencing procedure, that
the defendant is
eligible for the death penalty because one
of the statutorily required aggravating factors exists (in this
case, the fact that the murder was a contract killing). Obviously,
the standard question whether the juror can obey the court's
instructions is enough to disclose that difficulty. Petitioner's
theory-which the Court accepts,
ante, at 735-736-is that the
special
voir dire question is necessary to identify those
veniremen who, at the second, weighing stage, after having properly
found the aggravating factor, "will never find enough mitigation to
preclude imposing death." Brief for Petitioner 8.
743
judgment upon a juror's inability to comply with instructions,
without bothering to describe the key instructions. When one
considers them, it is perfectly clear that they do not preclude a
juror from taking the view that, for capital murder, a death
sentence is always warranted.
The jury in this case was instructed that "[a]ggravating factors
are reasons why the Defendant should be sentenced to death"; that
"[m]itigating factors are reasons why the Defendant should not be
sentenced to death"; that the jury must "consider all the
aggravating factors supported by the evidence and all the
mitigating factors supported by the evidence"; and that the jury
should impose a death sentence if it found, "from [its]
consideration of all the evidence, that there are no mitigating
factors sufficient to preclude imposition of a death sentence,"
App. 122-123.2 The instructions did not in any way further define
what constitutes a "mitigating" or an "aggravating" factor, other
than to point out that the jury's finding, at the death-eligibility
stage, that petitioner committed a contract killing was necessarily
an aggravator. As reflected in these instructions, Illinois law
permitted each juror to define for himself whether a particular
item of evidence was mitigating, in the sense that it provided a
"reaso[n] why the Defendant should not be sentenced to death."
Thus, it is simply not the case that Illinois law precluded a juror
from taking the bright-line position that there are no valid
reasons why a defendant who has committed a contract killing should
not be sentenced to death. Such a juror does not "fail ... to
consider the evidence,"
ante, at
2 The Court attaches great weight to the use of the term
"sufficient" in these instructions and in the governing statute.
The Court views this term as implicitly establishing that the
jurors
must find some mitigation. (How else, the Court
reasons, could the jury determine whether there is "sufficient"
mitigation?)
Ante, at 738. The inference is plainly
fallacious:
A direction to a person to consider whether there are
"sufficient" reasons to do something does not logically imply that
in
some circumstance he
must find something to be a
"reason," and must find that reason to be "sufficient. "
744
729; cf. Ill. Rev. Stat., ch. 38, , 9-1(c) (Supp. 1990) ("The
court ... shall instruct the jury to consider any aggravating and
any mitigating factors which are relevant ... "); he simply fails
to give it the effect the defendant desires.3
Nor can the Court's exclusion of these death-inclined jurors be
justified on the theory that-regardless of what Illinois law
purports to permit-the
Eighth Amendment prohibits a juror
from always advocating a death sentence at the weighing stage. Our
cases in this area hold, not that the sentencer
must give effect
to (or even that he
must consider) the evidence offered
by the defendant as mitigating, but rather that he must "not be
precluded from considering" it,
Lockett v.
Ohio, 438 U.
S. 586, 604 (1978) (plurality opinion) (emphasis added);
Bell v.
Ohio, 438 U. S. 637, 642 (1978)
(plurality opinion) (same). See also
Walton, 497 U. S., at
652 (plurality opinion) (" '[T]he requirement of individualized
sentencing in capital cases is satisfied by
allowing the
jury to
3 The Court notes that the Illinois statute lists certain
potentially mitigating factors, see Ill. Rev. Stat., ch. 38, H-1(c)
(Supp. 1990), and therefore concludes that the legislature "must
have deemed [them] relevant" to the imposition of the death
penalty.
Ante, at 737. It is of course true that the listed
factors are "relevant" in the sense that a juror "may" find them to
be mitigating, , 9-1(c), and also in the sense that the defendant
must be allowed to introduce evidence concerning these factors. But
the statute's permissive and nonexhaustive list clearly does not
establish what the Court needs to show, viz., that jurors
must deem these (or some other factors) to be actually
"mitigating." The fact that the jury has the discretion to deem
evidence to be mitigating cannot establish that there is an
obligation to do so. Indeed, it is impossible in principle to
distinguish between a juror who does not believe that
any
factor can be mitigating from one who believes that a
particular factor-e.
g., "extreme mental or emotional
disturbance," , 9-1 (c)(2)-is not mitigating. (Presumably, under
today's decision a juror who thinks a "bad childhood" is never
mitigating must also be excluded.) In any event, in deciding
whether to vacate petitioner's sentence on account of juror
impartiality-i.
e., on the basis that one or more of
petitioner's jurors may have refused to follow the instructions-we
must be guided, not by the instructions that (perhaps)
should have been given (a question of state law which we
have no authority to review), but by the instructions that
were given.
745
consider all relevant mitigating evidence''') (emphasis added)
(quoting
Blystone v.
Pennsylvania, 494 U. S. 299, 307
(1990));
Saffle v.
Parks, 494 U. S. 484, 490 (1990)
("[T]he State cannot
bar relevant mitigating evidence")
(emphasis added);
McKoy v.
North Carolina, 494 U. S. 433, 442-443
(1990) ("[E]ach juror [must] be
permitted to consider and
give effect to mitigating evidence") (emphasis added);
Penry
v.
Lynaugh, 492 U. S. 302, 318 (1989)
(a State may not
"prevent the sentencer from considering and
giving effect to [mitigating] evidence") (emphasis added);
id., at 328 (jury must be
"provided with a vehicle
for expressing its 'reasoned moral response' to that evidence in
rendering its sentencing decision") (emphasis added);
Mills
v.
Maryland, 486 U. S. 367, 375 (1988)
(State may not impose any"
barrier to the sentencer's
consideration of all mitigating evidence") (emphasis added);
Turner v.
Murray, 476 U. S. 28, 34 (1986)
(plurality opinion) (sentencer
"must be free to weigh
relevant mitigating evidence") (emphasis added);
Roberts v.
Louisiana, 431
U. S. 633, 637 (1977) (mandatory death penalty statute is
unconstitutional because it "does not
allow for
consideration of particularized mitigating factors") (emphasis
added);
Woodson v.
North Carolina, 428 U. S. 280, 303 (1976)
(plurality opinion) (same);
Jurek v.
Texas, 428 U. S. 262, 271 (1976)
(opinion of Stewart, Powell, and STEVENS, JJ.) ("A jury must be
allowed to consider ... all relevant [mitigating] evidence")
(emphasis added). Similarly, where the judge is the final sentencer
we have held, not that he
must consider mitigating evidence,
but only that he may not, on
legal grounds, refuse to
consider it,
Hitchcock v.
Dugger, 481 U. S. 393, 394,
398-399 (1987);
Eddings v.
Oklahoma, 455 U. S. 104, 113-114
(1982) (a sentencing judge may not "refuse to consider,
as a
matter of law, any relevant mitigating evidence") (emphasis in
original).
Woodson and
Lockett meant to ensure that
the sentencing jury would function as a "link between contemporary
community values and the penal system,"
Witherspoon, 391 U.
S., at 519, n. 15; they did
not mean to specify what the
content of those values
746
must be.4 The "conscience of the community,"
id., at 519,
also includes those jurors who are not swayed by mitigating
evidence.
The Court relies upon dicta contained in our opinion in
Ross v.
Oklahoma, 487 U. S. 81 (1988).
Ante, at 728-729. In that case, the defendant challenged for
cause a juror who stated during
voir dire that he would
automatically vote to impose a death sentence if the defendant were
convicted. The trial court rejected the challenge, and Ross used a
peremptory challenge to remove the juror. Although we noted that
the state appellate court had assumed that such a juror would not
be able to follow the law, 487 U. S., at 84-85 (citing
Ross
v.
State, 717 P. 2d 117, 120 (Okla. Crim. App. 1986)), we
held that Ross was not deprived of an impartial jury because none
of the jurors who actually sat on the petit jury was partial. 487
U. S., at 86-88. In reaching that conclusion, however, we expressed
the view that had the challenged juror actually served, "the
sentence would have to be overturned."
Id., at 85. The Court
attaches great weight to this dictum, which it describes as
"announc[ing] our considered view,"
ante, at 728. This is
hyperbole. It is clear on the face of the opinion that the dictum
was based entirely on the fact that the state court had assumed
that such a juror was unwilling to follow the law at the penalty
phase-a point we did not purport to examine independently. 487 U.
S., at 84-85. The
Ross dictum thus merely reflects the quite
modest proposition that a juror who will not follow the law is not
impartial.
Because Illinois would not violate due process by seating a
juror who will not be swayed by mitigating evidence at the weighing
stage, the Constitution does not entitle petitioner to identify
such jurors during
voir dire.
4 The Court's only response to this point is the suggestion that
it somehow rests upon my rejecting the
Woodson-Lockett line
of cases.
Ante, at 736. That is not so, as my quotations
from over a dozen
Woodson-Lockett cases make painfully
clear.
747
III
Even if I agreed with the Court, however, that jurors who will
always advocate a death sentence for capital murder are not
"impartial" and must be excused for cause, I would not agree with
the further conclusion that the Constitution requires a trial court
to make specific inquiries on this subject during
voir
dire.
In
Mu'Min v.
Virginia, 500 U. S. 415 (1991), we
surveyed our cases concerning the requirements of
voir dire
and concluded that, except where interracial capital crimes are at
issue, trial courts "retai[n] great latitude in deciding what
questions should be asked on
voir dire," id., at 424; see
also
Ristaino v.
Ross, 424 U. S. 589, 594
(1976). We emphasized that our authority to require specific
inquiries on
voir dire is particularly narrow with respect
to state-court trials, where we may not exercise supervisory
authority and are "limited to enforcing the commands of the United
States Constitution,"
Mu'Min, 500 U. S., at 422. We
concluded, as a general matter, that a defendant was entitled to
specific questions only if the failure to ask them would render his
trial "fundamentally unfair,"
id., at 426. Thus, we have
held that absent some "special circumstance,"
Turner, supra,
at 37, a "generalized but thorough inquiry into the impartiality of
the veniremen" is a constitutionally adequate
voir dire.
Ristaino, supra, at 598. Finally, we have long acknowledged
that, in light of the credibility determinations involved, a trial
court's finding that a particular juror is impartial may "be
overturned only for 'manifest error,'"
Patton v.
Yount, 467 U.
S. 1025, 1031 (1984) (quoting
Irvin v.
Dowd,
366 U. S. 717,
723 (1961)); see also
Mu'Min, supra, at 428.
Were the Court today extending
Witherspoon's
jurybalancing rule so as to require affirmatively that a capital
sentencing jury contain a mix of views on the death penalty, that
requirement would of course constitute a "special circumstance"
necessitating specific inquiry into the subject on
voir
dire. But that is not what petitioner has sought, and it
748
is not what the Court purports to decree. Its theory, as I have
described, is that a juror who will always impose the death penalty
for capital murder is one who "will fail in good faith to consider
the evidence of aggravating and mitigating circumstances
as the
instructions require him to do," ante, at 729 (emphasis added).
Even assuming (contrary to the reality) that that theory fits the
facts of this case (i.
e., that the instructions required
jurors to be open to voting against the death penalty on the basis
of allegedly mitigating circumstances), I see no reason why jurors
who will defy this element of the instructions, like jurors who
will defy other elements of the instructions, see,
e. g., n.
1,
supra, cannot be identified by more general questions
concerning fairness and willingness to follow the law. In the
present case, the trial court on
voir dire specifically
asked nine of the jurors who ultimately served whether they would
follow the court's instructions even if they disagreed with them,
and all nine answered affirmatively. Moreover, all the veniremen
were informed of the nature of the case and were instructed that,
if selected, they would be required to follow the court's
instructions; subsequently, all 12 jurors responded negatively to a
specific question whether there was any reason why they did not
think they could be fair and impartial in this case. These
questions, which were part of an extensive
voir dire,
succeeded in identifying one juror who would be unable to follow
the court's instructions at the penalty phase: The juror admitted
that, because of the anger he felt over the murder of his friend's
parents, his sentiments in favor of the death penalty were so
strong that he did not believe he could be fair to petitioner at
the sentencing hearing. Taking appropriate account of the
opportunity for the trial court to observe and evaluate the
demeanor of the veniremen, I see no basis for concluding that its
finding that the 12 jurors were impartial was manifestly
erroneous.
The Court provides two reasons why a specific question must be
asked, but neither passes the most gullible scrutiny.
749
First, the Court states that general questions would be
insufficient because "such jurors could in all truth and candor
respond affirmatively, personally confident that such dogmatic
views are fair and impartial .... "
Ante, at 735. In other
words, jurors who would always impose the death penalty would be
violating the instructions without realizing that that is what they
are doing. It seems to me quite obvious that solution of this
problem does not require a specific question of each juror, but can
be achieved by simply changing the instructions so that these
well-intentioned jurors will understand that an
aggravators-always-outweigh-mitigators view is prohibited. The
record does not reflect that petitioner made any objection to the
clarity of the instructions in this regard.
Second, the Court asserts that the adequacy of general
voir
dire questions is belied by "[t]he State's own request for
questioning under
Witherspoon and
Witt." Ante, at
734. Without such questioning, we are told,
"Witherspoon and
its succeeding cases would be in large measure superfluous."
Ibid. But
Witherspoon did
not, as this
reasoning assumes, give the State a right to exclude jurors ("[I]t
is clear beyond peradventure that
Witherspoon is not a
ground for challenging any prospective juror,"
Adams, 448 U.
S., at 47-48), and it is therefore quite impossible that anything
we say on that subject today could render the holding of
Witherspoon "superfluous." What the Court describes,
ante, at 733, as a "very short step" from
Witherspoon,
Adams, and
Witt, is in fact a great leap over an
unbridgeable chasm of logic.
Witherspoon and succeeding
cases held that the State was not constitutionally
prevented
from excluding jurors who would on no facts impose death; from
which the Court today concludes that a State is constitutionally
compelled to exclude jurors who would, on the facts
establishing the particular aggravated murder, invariably impose
death. The Court's argument that because the Constitution requires
one it must re-
750
quire the other obviously rests on a false premise.5 In any
event, the mere fact that Illinois sees fit to request one or
another question on
voir dire in order to discover
one-resultonly jurors cannot, as a logical matter, establish that
more general questioning is
constitutionally inadequate to
do the job.
For similar reasons, I reject petitioner's argument that it is
"fundamentally unfair" to allow Illinois to make specific inquiries
concerning those jurors who will always vote against the death
penalty but to preclude the defendant from discovering (and
excluding) those jurors who will always vote in favor of death.
Brief for Petitioner 14 (citing
Wardius v.
Oregon,
412 U. S. 470
(1973)). Even if it were unfair, of course, the State should be
given the option, which today's opinion does not provide, of
abandoning the
Witherspoon qualification. (Where the death
penalty statute does not contain a unanimity requirement, I am
confident prosecutors would prefer that to the wholesale
elimination of jurors favoring the death penalty that will be the
consequence of today's decision.) But in fact there is no
unfairness in the asymmetry. By reason of Illinois' death penalty
unanimity requirement, Ill. Rev. Stat., ch. 38, , 9-1(g) (Supp.
1990), the practical consequences of allowing the two types of
jurors to serve are vastly different: A single death penalty
opponent can block that punishment, but 11 unwavering advocates
cannot impose it. And more fundamentally, the asymmetry is not
unfair because, under Illinois law as reflected in the
5 If, as the Court claims, this case truly involved "the
reverse" of the principles established in
Witherspoon v.
Illinois, 391
U. S. 510 (1968), and the cases following it,
ante, at
731, then it is difficult to understand why petitioner would not be
entitled to challenge, not just those jurors who will
"automatically" impose the death penalty, but also those whose
sentiments on the subject are sufficiently strong that their
faithful service as jurors will be
"substantially
impaired"-the reformulated standard we adopted in
Adams
v.
Texas, 448
U. S. 38 (1980), and
Wainwright v.
Witt, 469 U. S. 412 (1985). The
Court's failure to carry its premise to its logical conclusion
suggests its awareness that the premise is wrong.
751
statute and instructions in this case, the
Witherspoondisqualified juror is a lawless juror, whereas
the juror to be disqualified under the Court's new rule is not. In
the first stage of Illinois' two-part sentencing hearing, jurors
must determine, on the facts, specified aggravating factors,
and at the second, weighing stage, they
must impose the
death penalty for murder with particular aggravators if they find
"no mitigating factors sufficient to preclude [its] imposition."
But whereas the finding of aggravation is mandatory, the finding of
mitigation is optional; what constitutes mitigation is not defined
and is left up to the judgment of each juror. Given that there will
always be aggravators to be considered at the weighing
stage, the juror who says he will never vote for the death penalty,
no matter what the facts, is saying that he will not apply the law
(the classic case ofpartiality)since the facts may show no
mitigation. But the juror who says that he will always vote for the
death penalty is
not promising to be lawless, since there is
no case in which he is by law
compelled to find a mitigating
fact "sufficiently mitigating." The people of Illinois have
decided, in other words, that murder with certain aggravators will
be punished by death, unless the jury chooses to extend mercy. That
scheme complies with our (ever-expanding) death penalty
jurisprudence as it existed yesterday. The Court has, in effect,
now added the
new rule that no merciless jurors can sit.
***
Sixteen years ago, this Court decreed-by a sheer act of will,
with no pretense of foundation in constitutional text or American
tradition-that the People (as in We, the People) cannot decree the
death penalty, absolutely and categorically, for
any
criminal act, even (presumably) genocide; the jury must always be
given the option of extending mercy.
Woodson, 428 U. S., at
303-305. Today, obscured within the fog of confusion that is our
annually improvised Eighth Amendment, "death is different"
jurisprudence, the Court strikes a
752
further blow against the People in its campaign against the
death penalty. Not only must mercy be allowed, but now only the
merciful may be permitted to sit in judgment. Those who agree with
the author of Exodus, or with Immanuel Kant,6 must be banished from
American juries-not because the People have so decreed, but because
such jurors do not share the strong penological preferences of this
Court. In my view, that not only is not required by the
Constitution of the United States; it grossly offends it.
6 See Exodus 21:12 ("He that smiteth a man, so that he die,
shall be surely put to death"); I. Kant, The Philosophy of Law 198
[1796] (w. Hastie transl. 1887) ("[W]hoever has committed Murder,
must
die .... Even if a Civil Society resolved to dissolve
itself with the consent of all its members[,] ... the last Murderer
lying in the prison ought to be executed before the resolution was
carried out. This ought to be done in order that every one may
realize the desert of his deeds ... ").
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