It is so ordered.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR
join, dissenting.
Today the Court grants certiorari and summarily reverses a
decision of the South Carolina Supreme Court that had refused to
apply
Skipper v. South Carolina, 476 U. S.
1 (1986), retroactively to cases that were final at the
time
Skipper was decided. I continue to believe that the
appropriate test for applying this Court's criminal law decisions
retroactively to federal habeas corpus petitions is the analysis
set forth by Justice Harlan in
Mackey v. United States,
401 U. S. 667,
401 U. S.
681-695 (1971) (opinion concurring in judgment in
Mackey and dissenting from judgment in
Williams v.
United States, 401 U. S. 646
(1971)).
See Griffith v. Kentucky, 479 U.
S. 314,
479 U. S.
328-329 (1987) (POWELL, J., concurring). In
Mackey, Justice Harlan argued that
"it is sounder, in adjudicating habeas petitions, generally to
apply the law prevailing at the time a conviction became final than
it is to seek to dispose of
Page 480 U. S. 528
all these cases on the basis of intervening changes in
constitutional interpretation."
401 U.S. at
401 U. S. 689.
[
Footnote 1]
Application of these principles to this case is not simple.
Lockett v. Ohio, 438 U. S. 586
(1978), and
Eddings v. Oklahoma, 455 U.
S. 104 (1982), were decided before petitioner's
conviction became final. Accordingly, under the retroactivity
principles adopted in our recent decision in
Griffith v.
Kentucky, supra, petitioner is entitled to the benefit of
those decisions. The Court appears to think that
Skipper,
supra, merely applied the settled principles of
Lockett and
Eddings to a new fact situation, and
thus that petitioner also is entitled to the benefit of the Court's
decision in
Skipper. [
Footnote 2]
I do not agree that petitioner is entitled to the benefit of our
decision in
Skipper. I continue to think that the result
in
Skipper was "not required by our decisions in
Lockett and
Eddings,"
Skipper, supra, at
476 U. S. 9
(POWELL, J., concurring in judgment) (citations omitted). In
Lockett and
Eddings, the Court held that the
Eighth Amendment prohibits States from excluding, at a capital
sentencing proceeding, relevant evidence that tends to lessen the
defendant's culpability.
Lockett v. Ohio, supra, at
438 U. S. 604;
Eddings v. Oklahoma, supra, at
455 U. S. 114.
In
Skipper, this rule was extended to require admission of
evidence that was unrelated to culpability. Rather, the State was
required to admit evidence relevant to the defendant's
Page 480 U. S. 529
probable future conduct as a prisoner. [
Footnote 3] Neither the author of the plurality opinion
in
Lockett nor the author of the Court's opinion in
Eddings agreed with the Court's decision in
Skipper. Although I am of course bound by the Court's
decision on the merits in
Skipper, this is not
incompatible with my view that
Skipper broke new ground.
Therefore, I do not believe this petitioner's conviction was
incorrect under the law existing when the conviction became final.
The South Carolina court decided this case in accord with the
precedents existing at the time of petitioner's conviction.
I acknowledge that we cannot determine with certainty how the
Court would have decided this case at the time petitioner was
convicted. [
Footnote 4] Because
of the inherent subjectivity of this determination, I do not find
summary disposition of this case appropriate. Moreover, there are
several questions related to this case that have not been decided
by this Court's decisions. At least in the context of habeas
petitions, we have not addressed the standards by which a court
should determine the retroactive effect of cases like
Skipper that arguably follow from preexisting precedents.
Nor has the Court decided whether the same retroactivity rules
should apply to state postconviction proceedings that apply to
Page 480 U. S. 530
federal habeas proceedings. A substantial argument could be made
that this is a question of state procedural law, and that --
whatever the federal rule eventually may become -- state courts
considering such petitions need not consider developments in
constitutional law that occur after the conviction became final. Of
course, we should not resolve these questions without full briefing
and consideration.
If these questions were properly presented, I would vote to
grant the petition for a writ of certiorari. As the more important
questions are not directly raised, my vote is to deny the petition.
It seems to me that summary reversal is wholly inappropriate, and
accordingly I dissent.
[
Footnote 1]
Justice Harlan identified two exceptions to this rule: cases
that "place . . . certain kinds of primary, private individual
conduct beyond the power of the criminal lawmaking authority," 401
U.S. at
401 U. S. 692,
and where there are "claims of nonobservance of those procedures
that . . . are
implicit in the concept of ordered liberty,'"
id. at 401 U. S. 693
(quoting Palko v. Connecticut, 302 U.
S. 319, 302 U. S. 325
(1937)). Neither of these exceptions is applicable to this
case.
[
Footnote 2]
The Court supports this conclusion by reference to the statement
in
United States v. Johnson, 457 U.
S. 537 (1982), that
"when a decision of this Court merely has applied settled
precedents to new and different factual situations, no real
question has arisen as to whether the later decision should apply
retrospectively, . . . because the later decision has not, in fact,
altered that rule in any material way."
Id. at
457 U. S.
549.
[
Footnote 3]
The Court in
Skipper explained:
"Consideration of a defendant's past conduct as indicative of
his probable future behavior is an inevitable and not undesirable
element of criminal sentencing:"
"any sentencing authority must predict a convicted person's
probable future conduct when it engages in the process of
determining what punishment to impose."
Skipper v. South Carolina, 476 U. S.
1,
476 U. S. 5 (1986)
(quoting
Jurek v. Texas, 428 U. S. 262,
428 U. S. 275
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.)). The
"past conduct" to which the
Skipper Court referred was
Skipper's good behavior after his conviction and death
sentence.
[
Footnote 4]
I am not the first to note the difficulty of making these
determinations.
See Desist v. United States, 394 U.
S. 244,
394 U. S.
263-269 (1969) (Harlan, J., dissenting);
Mackey v.
United States, 401 U. S. 667,
401 U. S. 695
(1971) (opinion of Harlan, J., concurring in judgment in
Mackey and dissenting from judgment in
Williams v.
United States, 401 U. S. 646
(1971)).
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