| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 91-7580 |
| [3] | 1993.SCT.615 <http://www.versuslaw.com>, 113
S. Ct. 892, 122 L. Ed. 2d 260, 61 U.S.L.W. 4127 |
| [4] | January 25, 1993 |
| [5] | GARY GRAHAM, PETITIONER v. JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION |
| [6] | ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT. |
| [7] | White, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a
Concurring opinion. Stevens, J., filed a Dissenting opinion. Souter, J.,
filed a Dissenting opinion, in which Blackmun, Stevens, and O'connor, JJ.,
joined. |
| [8] | The opinion of the court was delivered by: White |
| [9] | Petitioner Graham's capital murder conviction and death sentence
became final in 1984. After unsuccessfully seeking post-conviction relief
in the Texas state courts, he filed this action in Federal District Court,
alleging, inter alia, that the three "special issues" his sentencing jury
was required to answer under the state capital-sentencing statute then in
existence prevented the jury from giving effect, consistent with the
Eighth and Fourteenth Amendments, to mitigating evidence of his youth,
unstable family background, and positive character traits. In affirming
the District Court's denial of relief, the Court of Appeals reviewed this
Court's holdings on the constitutional requirement that a sentencer be
permitted to consider and act upon any relevant mitigating evidence put
forth by a capital defendant, and then ruled that Graham's jury could give
adequate mitigating effect to the evidence in question by way of answering
the special issues. |
| [10] | Held: Graham's claim is barred because the relief he seeks would
require announcement of a new rule of constitutional law, in contravention
of the principles set forth in Teague v. Lane, 489 U.S. 288, 301, 103 L.
Ed. 2d 334, 109 S. Ct. 1060 (plurality opinion). Pp. 5-17. |
| [11] | (a) A holding that was not " dictated by precedent existing at the
time the defendant's conviction became final" constitutes a "new rule,"
ibid., which, absent the applicability of one of two exceptions, cannot be
applied or announced in a case on collateral review, Penry v. Lynaugh, 492
U.S. 302, 313, 106 L. Ed. 2d 256, 109 S. Ct. 2934. Thus, the determinative
question is whether reasonable jurists hearing Graham's claim in 1984
"would have felt compelled by existing precedent" to rule in his favor.
See Saffle v. Parks, 494 U.S. 484, 488, 108 L. Ed. 2d 415, 110 S. Ct.
1257. Pp. 5-6. |
| [12] | (b) It cannot be said that reasonable jurists hearing Graham's claim
in 1984 would have felt that existing precedent "dictated" vacatur of his
death sentence within Teague 's meaning. To the contrary, the joint opinion of Justices Stewart,
Powell, and STEVENS, in Jurek v. Texas, 428 U.S. 262, 270-276, 49 L. Ed.
2d 929, 96 S. Ct. 2950, could reasonably be read as having upheld the
constitutionality of the very statutory scheme under which Graham was
sentenced, including the so-called "special issues," only after being
satisfied that the petitioner's mitigating evidence, including his age,
would be given constitutionally adequate consideration in the course of
the jury's deliberation on the special issues. Moreover, Lockett v. Ohio,
438 U.S. 586, 605-606, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (plurality
opinion), expressly embraced the Jurek holding, and Eddings v. Oklahoma,
455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869, signaled no retreat from
that Conclusion. Thus, it is likely that reasonable jurists in 1984 would
have found that, under these cases, the Texas statute satisfied the
commands of the Eighth Amendment: it permitted Graham to place before the
jury whatever mitigating evidence he could show, including his age, while
focusing the jury's attention upon what that evidence revealed about his
capacity for deliberation and prospects for rehabilitation. Nothing in
this Court's post-1984 cases, to the extent they are relevant, would
undermine this analysis. Even if Penry, supra, upon which Graham chiefly
relies, reasonably could be read to suggest that his mitigating evidence
was not adequately considered under the Texas procedures, that does not
answer the determinative question under Teague. Pp. 6-16. |
| [13] | (c) The new rule that Graham seeks would not fall within either of the
Teague exceptions. The first exception plainly has no application here
because Graham's rule would neither decriminalize a class of conduct nor
prohibit the imposition of capital punishment on a particular class of
persons. See Saffle, supra, at 495. The second exception, for watershed
rules implicating fundamental fairness and accuracy, is also inapplicable,
since denying Graham special jury instructions concerning his mitigating
evidence would not seriously diminish the likelihood of obtaining an
accurate determination in his sentencing proceeding. See Butler v.
McKellar, 494 U.S. 407, 416, 108 L. Ed. 2d 347, 110 S. Ct. 1212. Pp.
16-17. |
| [14] | 950 F.2d 1009, affirmed. |
| [15] | JUSTICE WHITE delivered the opinion of the Court. |
| [16] | In this case, we are asked to decide whether the jury that sentenced
petitioner, Gary Graham, to death was able to give effect, consistent with
the Eighth and Fourteenth Amendments, to mitigating evidence of Graham's
youth, family background, and positive character traits. Because this case
comes to us on collateral review, however, we must first decide whether
the relief that petitioner seeks would require announcement of a new rule
of constitutional law, in contravention of the principles set forth in
Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).
Concluding that Graham's claim is barred by Teague, we
affirm. |
| [17] | I |
| [18] | On the night of May 13, 1981, Graham accosted Bobby Grant Lambert in
the parking lot of a Houston, Texas, grocery store and attempted to grab
his wallet. When Lambert resisted, Graham drew a pistol and shot him to
death. Five months later, a jury rejected Graham's defense of mistaken
identity and convicted him of capital murder in violation of Tex. Penal
Code Ann. § 19.03(a)(2) (1989). |
| [19] | At the sentencing phase of Graham's trial, the State offered evidence
that Graham's murder of Lambert commenced a week of violent attacks during
which the 17-year-old Graham committed a string of robberies, several
assaults, and one rape. Graham did not contest this evidence. Rather, in
mitigation, the defense offered testimony from Graham's stepfather and
grandmother concerning his upbringing and positive character traits. The
stepfather, Joe Samby, testified that Graham, who lived and worked with
his natural father, typically visited his mother once or twice a week and
was a "real nice, respectable" person. Samby further testified that Graham
would pitch in on family chores and that Graham, himself a father of two
young children, would "buy . . . clothes for his children and try to give
them food." |
| [20] | Graham's grandmother, Emma Chron, testified that Graham had lived with
her off and on throughout his childhood because his mother had been
hospitalized periodically for a "nervous condition." Chron also stated
that she had never known Graham to be violent or disrespectful, that he
attended church regularly while growing up, and that "he loved the Lord."
In closing arguments to the jury, defense counsel depicted Graham's
criminal behavior as aberrational and urged the jury to take Graham's
youth into account in deciding his punishment. |
| [21] | In accord with the capital-sentencing statute then in effect, *fn1 Graham's jury was instructed that it
was to answer three "special issues": |
| [22] | "(1) whether the conduct of the defendant that caused the death of the
deceased was committed deliberately and with the reasonable expectation
that the death of the deceased or another would result; |
| [23] | (2) whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to
society; and |
| [24] | (3) if raised by the evidence, whether the conduct of the defendant in
killing the deceased was unreasonable in response to the provocation, if
any, by the deceased." Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon
1981). |
| [25] | The jury unanimously answered each of these questions in the
affirmative, and the court, as required by the statute, sentenced Graham
to death. Art. 37.071(e). The Texas Court of Criminal Appeals affirmed
Graham's conviction and sentence in an unpublished opinion. |
| [26] | In 1987, Graham unsuccessfully sought post-conviction relief in the
Texas state courts. The following year, Graham petitioned for a writ of in
Federal District Court pursuant to 28 U.S.C. § 2254, contending, inter
alia, that his sentencing jury had been unable to give effect to his
mitigating evidence within the confines of the statutory "special issues."
The District Court denied relief and the Court of Appeals for the Fifth
Circuit denied Graham's petition for a certificate of probable cause to
appeal. Graham v. Lynaugh, 854 F.2d 715 (1988). The Court of Appeals found
Graham's claim to be foreclosed by our recent decision in Franklin v.
Lynaugh, 487 U.S. 164, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988), which
held that a sentencing jury was fully able to consider and give effect to
mitigating evidence of a defendant's clean prison disciplinary record by
way of answering Texas' special issues. 854 F.2d, at
719-720. |
| [27] | While Graham's petition for a writ of certiorari was pending here, the
Court announced its decision in Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed.
2d 256, 109 S. Ct. 2934 (1989), holding that evidence of a defendant's
mental retardation and abused childhood could not be given mitigating
effect by a jury within the framework of the special issues. *fn2 We then granted Graham's petition,
vacated the judgment below, and remanded for reconsideration in light of
Penry. Graham v. Lynaugh, 492 U.S. 915, 106 L. Ed. 2d 585, 109 S. Ct. 3237
(1989). On remand, a divided panel of the Court of Appeals reversed the
District Court and vacated Graham's death sentence. 896 F.2d 893 (CA5
1990). |
| [28] | On rehearing en banc, the Court of Appeals vacated the panel's
decision and reinstated its prior mandate affirming the District Court.
950 F.2d 1009 (1992). The court reviewed our holdings on the
constitutional requirement that a sentencer be permitted to consider and
act upon any relevant mitigating evidence put forward by a capital
defendant, and then rejected Graham's claim on the merits. The court noted
that this Court had upheld the Texas capital-sentencing statute against a
facial attack in Jurek v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct.
2950 (1976), after acknowledging that "'the constitutionality of the Texas
procedures turns on whether the enumerated questions allow consideration
of particularized mitigating factors.'" 950 F.2d, at 1019 (quoting Jurek,
supra, at 272). Noting that the petitioner in Jurek had himself proferred
mitigating evidence of his young age, employment history, and aid to his
family, the Court of Appeals concluded that "at the very least, Jurek must
stand for the proposition that these mitigating factors -- relative youth
and evidence reflecting good character traits such as steady employment
and helping others -- are adequately covered by the second special issue,"
concerning the defendant's risk of future dangerousness. 950 F.2d, at
1029. " Penry cannot hold otherwise," the court observed, "and at the same
time not be a 'new rule' for Teague purposes." Ibid. Accordingly, the
court ruled that the jury that sentenced Graham could give adequate
mitigating effect to his evidence of youth, unstable childhood, and
positive character traits by way of answering the Texas special
issues. |
| [29] | We granted certiorari, 504 U.S. . . . (1992), and now
affirm. |
| [30] | II |
| [31] | A |
| [32] | Because this case is before us on Graham's petition for a writ of
federal , "we must determine, as a threshold matter, whether granting him
the relief he seeks would create a 'new rule'" of constitutional law.
Penry v. Lynaugh, supra, at 313; see also Teague v. Lane, 489 U.S., at 301
(plurality opinion). "Under Teague, new rules will not be applied or
announced in cases on collateral review unless they fall into one of two
exceptions." Penry, (supra) , at 313. This restriction on our review
applies to capital cases as it does to those not involving the death
penalty. 492 U.S., at 314; Stringer v. Black, 503 U.S. . . . (1992);
Sawyer v. Smith, 497 U.S. 227, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (1990);
Saffle v. Parks, 494 U.S. 484, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990);
Butler v. McKellar, 494 U.S. 407, 108 L. Ed. 2d 347, 110 S. Ct. 1212
(1990). |
| [33] | A holding constitutes a "new rule" within the meaning of Teague if it
"breaks new ground," "imposes a new obligation on the States or the
Federal Government," or was not " dictated by precedent existing at the
time the defendant's conviction became final." Teague, (supra) , at 301
(emphasis in original). While there can be no dispute that a decision
announces a new rule if it expressly overrules a prior decision, "it is
more difficult . . . to determine whether we announce a new rule when a
decision extends the reasoning of our prior cases." Saffle v. Parks,
(supra) , at 488. Because the leading purpose of federal habeas review is
to "ensure that state courts conduct criminal proceedings in accordance
with the Constitution as interpreted at the time of those proceedings,"
ibid., we have held that "the 'new rule' principle . . . validates
reasonable, good-faith interpretations of existing precedents made by
state courts." Butler v. McKellar, (supra) , at 414. This principle
adheres even if those good-faith interpretations "are shown to be contrary
to later decisions." Ibid. Thus, unless reasonable jurists hearing
petitioner's claim at the time his conviction became final "would have
felt compelled by existing precedent" to rule in his favor, we are barred
from doing so now. Saffle v. Parks, (supra) , at 488. |
| [34] | B |
| [35] | Petitioner's conviction and sentence became final on September 10,
1984, when the time for filing a petition for certiorari from the judgment
affirming his conviction expired. See Griffith v. Kentucky, 479 U.S. 314,
321, n. 6, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). Surveying the legal
landscape as it then existed, we conclude that it would have been anything
but clear to reasonable jurists in 1984 that petitioner's sentencing
proceeding did not comport with the Constitution. |
| [36] | 1 |
| [37] | In the years since Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346,
92 S. Ct. 2726 (1972), the Court has identified, and struggled to
harmonize, two competing commandments of the Eighth Amendment. On one
hand, as Furman itself emphasized, States must limit and channel the
discretion of Judges and juries to ensure that death sentences are not
meted out "wantonly" or "freakishly." Id., at 310 (Stewart,
J., Concurring). On the other, as we have emphasized in subsequent cases,
States must confer on the sentencer sufficient discretion to take account
of the "character and record of the individual offender and the
circumstances of the particular offense" to ensure that "death is the
appropriate punishment in a specific case." Woodson v. North Carolina, 428
U.S. 280, 304-305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) (plurality
opinion of Stewart, Powell, and STEVENS, JJ.). |
| [38] | Four years after Furman, and on the same day that Woodson was
announced, the Court in Jurek v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929, 96
S. Ct. 2950 (1976), examined the very statutory scheme under which Graham
was sentenced and concluded that it struck an appropriate balance between
these constitutional concerns. The Court thus rejected an attack on the
entire statutory scheme for imposing the death penalty and in particular
an attack on the so-called "special issues." It is well to set out how the
Court arrived at its judgment. The joint opinion of Justices
Stewart, Powell, and STEVENS observed that while Texas had
not adopted a list of aggravating circumstances that would justify the
imposition of the death penalty, "its action in narrowing the categories
of murders for which a death sentence may ever be imposed serves much the
same purpose." Id., at 270. The opinion went on to say that because the
constitutionality of a capital sentencing system also requires the
sentencing authority to consider mitigating circumstances and since the
Texas statute did not speak of mitigating circumstances and instead
directs only that the jury answer three questions, "the constitutionality
of the Texas procedures turns on whether the enumerated questions allow
consideration of particularized mitigating factors." Id., at
272. |
| [39] | The opinion then recognized that the Texas Court of Criminal Appeals
had held: |
| [40] | "'In determining the likelihood that the defendant would be a
continuing threat to society, the jury could consider whether the
defendant had a significant criminal record. It could consider the range
and severity of his prior criminal conduct. It could further look to the
age of the defendant and whether or not at the time of the commission of
the offense he was acting under duress or under the domination of another.
It could also consider whether the defendant was under an extreme form of
mental or emotional pressure, something less, perhaps, than insanity, but
more than the emotions of the average man, however inflamed, could
withstand.' 522 S.W.2d, at 939-940." Id., at 272-273. |
| [41] | Based on this assurance, the opinion characterized the Texas
sentencing procedure as follows: |
| [42] | "Thus, Texas law essentially requires that one of five aggravating
circumstances be found before a defendant can be found guilty of capital
murder, and that in considering whether to impose a death sentence the
jury may be asked to consider whatever evidence of mitigating
circumstances the defense can bring before it. It thus appears that, as in
Georgia and Florida, the Texas capital-sentencing procedure guides and
focuses the jury's objective consideration of the particularized
circumstances of the individual offense and the individual offender before
it can impose a sentence of death." Id., at 273-274. |
| [43] | "What is essential is that the jury have before it all possible
relevant information about the individual defendant whose fate it must
determine. Texas law clearly assures that all such evidence will be
adduced." Id., at 276. |
| [44] | The opinion's ultimate Conclusion was |
| [45] | "that Texas' capital-sentencing procedures, like those of Georgia and
Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing
its definition of capital murder, Texas has essentially said that there
must be at least one statutory aggravating circumstance in a first-degree
murder case before a death sentence may even be considered. By authorizing
the defense to bring before the jury at the separate sentencing hearing
whatever mitigating circumstances relating to the individual defendant can
be adduced, Texas has ensured that the sentencing jury will have adequate
guidance to enable it to perform its sentencing function. By providing
prompt judicial review of the jury's decision in a court with statewide
jurisdiction, Texas has provided a means to promote the evenhanded,
rational, and consistent imposition of death sentences under law. Because
this system serves to assure that sentences of death will not be
'wantonly' or 'freakishly' imposed, it does not violate the Constitution.
Furman v. Georgia, 408 U.S., at 310 (STEWART, J.,
Concurring)." Id., at 276. |
| [46] | It is plain enough, we think, that the joint opinion could reasonably
be read as having arrived at this Conclusion only after being satisfied
that the mitigating evidence introduced by the defendant, including his
age, would be given constitutionally adequate consideration in the course
of the jury's deliberation on the three special issues. Three other
Justices concurred in the holding that the Texas procedures for imposing
the death penalty were constitutional. Id., at 278-279 (WHITE, J.,
Concurring in judgment). |
| [47] | Two years after Jurek, in another splintered decision, Lockett v.
Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Court
invalidated an Ohio death penalty statute that prevented the sentencer
from considering certain categories of relevant mitigating evidence. In
doing so, a plurality of the Court consisting of Chief Justice Burger and
Justices Stewart, Powell, and STEVENS, stated that the
constitutional infirmities in the Ohio statute could "best be understood
by comparing it with the statutes upheld in Gregg, Proffitt, and Jurek."
Id., at 606. This the plurality proceeded to do, recounting in the process
that the Texas statute had been held constitutional in Jurek because it
permitted the sentencer to consider whatever mitigating circumstances the
defendant could show. Emphasizing that "an individualized decision is
essential in capital cases," the plurality concluded: |
| [48] | "There is no perfect procedure for deciding in which cases
governmental authority should be used to impose death. But a statute that
prevents the sentencer in all capital cases from giving independent weight
to aspects of the defendant's character and record and to circumstances of
the offense proffered in mitigation creates the risk that the death
penalty will be imposed in spite of factors that may call for a less
severe penalty." 438 U.S., at 605. |
| [49] | Obviously, the plurality did not believe the Texas statute suffered
this infirmity. |
| [50] | The plurality's rule was embraced by a majority of the Court four
years later in Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S.
Ct. 869 (1982). There, the Court overturned a death sentence on the
grounds that the Judge who entered it had felt himself bound by state law
to disregard mitigating evidence concerning the defendant's troubled youth
and emotional disturbance. The Court held that, "just as the State may not
by statute preclude the sentencer from considering any mitigating factor,
neither may the sentencer refuse to consider, as a matter of law, any
relevant mitigating evidence." Id., at 113-114 (emphasis omitted); see
also Hitchcock v. Dugger, 481 U.S. 393, 394, 95 L. Ed. 2d 347, 107 S. Ct.
1821 (1987); Skipper v. South Carolina , 476 U.S. 1, 4-5, 90 L. Ed. 2d 1,
106 S. Ct. 1669 (1986). The Eddings opinion rested on Lockett and made no
mention of Jurek. |
| [51] | We cannot say that reasonable jurists considering petitioner's claim
in 1984 would have felt that these cases " dictated " vacatur of
petitioner's death sentence. See Teague, 489 U.S., at 301. To the
contrary, to most readers at least, these cases reasonably would have been
read as upholding the constitutional validity of Texas' capital-sentencing
scheme with respect to mitigating evidence and otherwise. Lockett
expressly embraced the Jurek holding, and Eddings signaled no retreat from
that Conclusion. It seems to us that reasonable jurists in 1984 would have
found that, under our cases, the Texas statute satisfied the commands of
the Eighth Amendment: it permitted petitioner to place before the jury
whatever mitigating evidence he could show, including his age, while
focusing the jury's attention upon what that evidence revealed about the
defendant's capacity for deliberation and prospects for
rehabilitation. |
| [52] | We find nothing in our more recent cases, to the extent they are
relevant, that would undermine this analysis. In 1988, in Franklin v.
Lynaugh , 487 U.S. 164, 101 L. Ed. 2d 155, 108 S. Ct. 2320, we rejected a
claim that the Texas special issues provided an inadequate vehicle for
jury consideration of evidence of a defendant's clean prison disciplinary
record. There, a plurality of the Court observed that "in resolving the
second Texas Special Issue, the jury was surely free to weigh and evaluate
petitioner's disciplinary record as it bore on his 'character' -- that is,
his 'character' as measured by his likely future behavior." Id., at 178.
Moreover, the plurality found |
| [53] | "unavailing petitioner's reliance on this Court's statement in
Eddings, 455 U.S., at 114, that the sentencing jury may not be precluded
from considering 'any relevant, mitigating evidence.' This statement
leaves unanswered the question: relevant to what? While Lockett, (supra) ,
at 604, answers this question at least in part -- making it clear that a
State cannot take out of the realm of relevant sentencing considerations
the questions of the defendant's 'character,' 'record,' or the
'circumstances of the offense' -- Lockett does not hold that the State has
no role in structuring or giving shape to the jury's consideration of
these mitigating factors." Id., at 179 (citations omitted). |
| [54] | To be sure, JUSTICE O'CONNOR's opinion Concurring in the judgment in
Franklin expressed "doubts" about the validity of the Texas death penalty
statute as that statute might be applied in future cases. Id., at 183. The
Justice agreed, however, that the special issues adequately accounted for
the mitigating evidence presented in that case. Ibid. |
| [55] | This brings us to Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256,
109 S. Ct. 2934 (1989), upon which petitioner chiefly relies. In that
case, the Court overturned a prisoner's death sentence, finding that the
Texas special issues provided no genuine opportunity for the jury to give
mitigating effect to evidence of his mental retardation and abused
childhood. The Court considered these factors to be mitigating because
they diminished the defendant's ability "to control his impulses or to
evaluate the consequences of his conduct," and therefore reduced his moral
culpability. Id., at 322. The Texas special issues permitted the jury to
consider this evidence, but not necessarily in a way that would benefit
the defendant. Although Penry's evidence of mental impairment and
childhood abuse indeed had relevance to the "future dangerousness"
inquiry, its relevance was aggravating only. "Penry's mental retardation
and history of abuse is thus a two-edged sword: it may diminish his
blameworthiness for his crime even as it indicates that there is a
probability that he will be dangerous in the future." Id., at 324.
Whatever relevance Penry's evidence may have had to the other two special
issues was too tenuous to overcome this aggravating potential. Because it
was impossible to give meaningful mitigating effect to Penry's evidence by
way of answering the special issues, the Court concluded that Penry was
constitutionally entitled to further instructions "informing the jury that
it could consider and give effect to [Penry's] evidence . . . by declining
to impose the death penalty." Id., at 328. |
| [56] | We do not read Penry as effecting a sea change in this Court's view of
the constitutionality of the former Texas death penalty statute; it does
not broadly suggest the invalidity of the special issues framework. *fn3 Indeed, any such reading of Penry
would be inconsistent with the Court's Conclusion in that case that it was
not announcing a "new rule" within the meaning of Teague v. Lane, 489 U.S.
288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989). See Penry, 492 U.S., at
318-319. As we have explained in subsequent cases: |
| [57] | "To the extent that Penry's claim was that the Texas system prevented
the jury from giving any mitigating effect to the evidence of his mental
retardation and abuse in childhood, the decision that the claim did not
require the creation of a new rule is not surprising. Lockett and Eddings
command that the State must allow the jury to give effect to mitigating
evidence in making the sentencing decision; Penry's contention was that
Texas barred the jury from so acting. Here, by contrast, there is no
contention that the State altogether prevented Parks' jury from
considering, weighing, and giving effect to all of the mitigating evidence
that Parks put before them; rather, Parks' contention is that the State
has unconstitutionally limited the manner in which his mitigating evidence
may be considered. As we have concluded above, the former contention would
come under the rule of Lockett and Eddings ; the latter does not." Saffle
v. Parks, 494 U.S., at 491. |
| [58] | In our view, the rule that Graham seeks is not commanded by the cases
upon which Penry rested. In those cases, the constitutional defect lay in
the fact that relevant mitigating evidence was placed beyond the effective
reach of the sentencer. In Lockett, Eddings, Skipper, and Hitchcock, the
sentencer was precluded from even considering certain types of mitigating
evidence. In Penry, the defendant's evidence was placed before the
sentencer but the sentencer had no reliable means of giving mitigating
effect to that evidence. In this case, however, Graham's mitigating
evidence was not placed beyond the jury's effective reach. Graham
indisputably was permitted to place all of his evidence before the jury
and both of Graham's two defense lawyers vigorously urged the jury to
answer "no" to the special issues based on this evidence. Most important,
the jury plainly could have done so consistent with its instructions. The
jury was not forbidden to accept the suggestion of Graham's lawyers that
his brief spasm of criminal activity in May 1981 was properly viewed, in
light of his youth, his background, and his character, as an aberration
that was not likely to be repeated. Even if Graham's evidence, like
Penry's, had significance beyond the scope of the first special issue, it
is apparent that Graham's evidence -- unlike Penry's -- had mitigating
relevance to the second special issue concerning his likely future
dangerousness. Whereas Penry's evidence compelled an affirmative answer to
that inquiry, despite its mitigating significance, Graham's evidence quite
readily could have supported a negative answer. This distinction leads us
to conclude that neither Penry nor any of its predecessors " dictates "
the relief Graham seeks within the meaning required by Teague. See
Stringer v. Black, 503 U.S., at . . .- . . . (slip op., at 1-2) (SOUTER,
J., Dissenting): "The result in a given case is not dictated by precedent
if it is 'susceptible to debate among reasonable minds,' or, put
differently, if 'reasonable jurists may disagree'" (citations
omitted). |
| [59] | Moreover, we are not convinced that Penry could be extended to cover
the sorts of mitigating evidence Graham suggests without a wholesale
abandonment of Jurek and perhaps also of Franklin v. Lynaugh, (supra) . As
we have noted, Jurek is reasonably read as holding that the circumstance
of youth is given constitutionally adequate consideration in deciding the
special issues. We see no reason to regard the circumstances of Graham's
family background and positive character traits in a different light.
Graham's evidence of transient upbringing and otherwise nonviolent
character more closely resembles Jurek's evidence of age, employment
history, and familial ties than it does Penry's evidence of mental
retardation and harsh physical abuse. As the Dissent in Franklin made
clear, virtually any mitigating evidence is capable of being viewed as
having some bearing on the defendant's "moral culpability" apart from its
relevance to the particular concerns embodied in the Texas special issues.
See Franklin, 487 U.S., at 190 (STEVENS, J., Dissenting). It seems to us,
however, that reading Penry as petitioner urges -- and thereby holding
that a defendant is entitled to special instructions whenever he can offer
mitigating evidence that has some arguable relevance beyond the special
issues -- would be to require in all cases that a fourth "special issue"
be put to the jury: "'Does any mitigating evidence before you, whether or
not relevant to the above questions, lead you to believe that the death
penalty should not be imposed?'" The Franklin plurality rejected precisely
this contention, finding it irreconcilable with the Court's holding in
Jurek, see Franklin, 487 U.S., at 180, n. 10, and we affirm that
Conclusion today. Accepting Graham's submission would unmistakably result
in a new rule under Teague. See Saffle v. Parks, (supra) , at 488; Butler
v. McKellar, 494 U.S., at 412. |
| [60] | In sum, even if Penry reasonably could be read to suggest that
Graham's mitigating evidence was not adequately considered under the
former Texas procedures, that is not the relevant inquiry under Teague.
Rather, the determinative question is whether reasonable jurists reading
the case law that existed in 1984 could have concluded that Graham's
sentencing was not constitutionally infirm. We cannot say that all
reasonable jurists would have deemed themselves compelled to accept
Graham's claim in 1984. Nor can we say, even with the benefit of the
Court's subsequent decision in Penry, that reasonable jurists would be of
one mind in ruling on Graham's claim today. The ruling Graham seeks,
therefore, would be a "new rule" under Teague. |
| [61] | 2 |
| [62] | Having decided that the relief Graham seeks would require announcement
of a new rule under Teague, we next consider whether that rule nonetheless
would fall within one of the two exceptions recognized in Teague to the
"new rule" principle. "The first exception permits the retroactive
application of a new rule if the rule places a class of private conduct
beyond the power of the State to proscribe, see Teague, 489 U.S., at 311,
or addresses a 'substantive categorical guarantee accorded by the
Constitution,' such as a rule 'prohibiting a certain category of
punishment for a class of defendants because of their status or offense.'"
Saffle v. Parks, 494 U.S., at 494 (quoting Penry, 492 U.S., at 329, 330).
Plainly, this exception has no application here because the rule Graham
seeks "would neither decriminalize a class of conduct nor prohibit the
imposition of capital punishment on a particular class of persons." 494
U.S., at 495. |
| [63] | The second exception permits federal courts on collateral review to
announce "'watershed rules of criminal procedure' implicating the
fundamental fairness and accuracy of the criminal proceeding." Ibid.
Whatever the precise scope of this exception, it is clearly meant to apply
only to a small core of rules requiring "observance of 'those procedures
that . . . are "implicit in the concept of ordered liberty." '" Teague,
489 U.S., at 311 (quoting Mackey v. United States, 401 U.S. 667, 693, 28
L. Ed. 2d 404, 91 S. Ct. 1160 (1971) (Harlan, J., Concurring in judgments
in part and Dissenting in part) (in turn quoting Palko v. Connecticut, 302
U.S. 319, 325, 82 L. Ed. 288, 58 S. Ct. 149 (1937))); see also Butler v.
McKellar, (supra) , at 416. As the plurality cautioned in Teague, "because
we operate from the premise that such procedures would be so central to an
accurate determination of innocence or guilt, we believe it unlikely that
many such components of basic due process have yet to emerge." 489 U.S.,
at 313. We do not believe that denying Graham special jury instructions
concerning his mitigating evidence of youth, family background, and
positive character traits "seriously diminished the likelihood of
obtaining an accurate determination" in his sentencing proceeding. See
Butler v. McKellar, (supra) , at 416. Accordingly, we find the second
Teague exception to be inapplicable as well. |
| [64] | The judgment of the Court of Appeals is therefore |
| [65] | Affirmed. |
| [66] | JUSTICE THOMAS, Concurring. |
| [67] | By deciding this case on the basis of Teague v. Lane, 489 U.S. 288,
103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), the Court has avoided a direct
reconsideration of Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109
S. Ct. 2934 (1989). I join the Court's opinion because I agree that the
holding sought by Graham is not compelled by the cases upon which Penry
rests and would therefore, if adopted, be a new rule for Teague purposes.
I write separately, however, to make clear that I believe Penry was
wrongly decided. |
| [68] | Several members of the Court have commented on the "tension" between
our cases on the constitutional relevance of mitigating circumstances in
capital sentencing and those decisions applying the principle, first
articulated in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S.
Ct. 2726 (1972), that the Eighth and Fourteenth Amendments prohibit States
from giving sentencers unguided discretion in imposing the death penalty.
E. g., Franklin v. Lynaugh, 487 U.S. 164, 182, 101 L. Ed. 2d 155, 108 S.
Ct. 2320 (1988) (plurality opinion); California v. Brown, 479 U.S. 538,
544, 93 L. Ed. 2d 934, 107 S. Ct. 837 (1987) (O'CONNOR, J., Concurring);
McCleskey v. Kemp, 481 U.S. 279, 363, 95 L. Ed. 2d 262, 107 S. Ct. 1756
(1987) (BLACKMUN, J., Dissenting). In my view, Texas had largely resolved
this tension through the use of the three special issues repeatedly
approved by this Court. Penry, however, is at war with the former Texas
scheme. As the most extreme statement in our "mitigating" line, Penry
creates more than an unavoidable tension; it presents an evident
danger. |
| [69] | I |
| [70] | A |
| [71] | It is important to recall what motivated Members of this Court at the
genesis of our modern capital punishment case law. Furman v. Georgia was
decided in an atmosphere suffused with concern about race bias in the
administration of the death penalty -- particularly in Southern States,
and most particularly in rape cases. The three petitioners were black. *fn1 Lucious Jackson was a 21-year-old
black man sentenced to death by Georgia for raping a white woman. Elmer
Branch was sentenced to death by Texas for the rape of a 65-year-old white
widow. William Henry Furman faced the death penalty in Georgia for
unintentionally killing a white homeowner during a burglary. See 408 U.S.,
at 252-253 (Douglas, J., Concurring). *fn2 In his opinion Concurring in the Court's judgment
that the death penalty in these cases was unconstitutional, Justice
Douglas stressed the potential role of racial and other illegitimate
prejudices in a system where sentencing juries have boundless discretion.
He thought it cruel and unusual to apply the death penalty "selectively to
minorities . . . whom society is willing to see suffer though it would not
countenance general application of the same penalty across the board."
Id., at 245. Citing studies and reports suggesting that "the death
sentence disproportionately imposed and carried out on the poor, the
Negro, and the members of unpopular groups," especially in cases of rape,
id., at 249-250 (internal quotation marks omitted), Justice Douglas
concluded that |
| [72] | "the discretion of Judges and juries in imposing the death penalty
enables the penalty to be selectively applied, feeding prejudices against
the accused if he is poor and despised, and lacking political clout, or if
he is a member of a suspect or unpopular minority, and saving those who by
social position may be in a more protected position." Id., at
255. |
| [73] | Justice Marshall echoed these concerns. See id., at 364-366
(concurring opinion). He wrote that "racial or other discriminations [in
sentencing] should not be surprising," because, in his view, the Court's
earlier decision in McGautha v. California, 402 U.S. 183, 28 L. Ed. 2d
711, 91 S. Ct. 1454 (1971), upholding a procedure that had "committed to
the untrammeled discretion of the jury the power to pronounce life or
death," id., at 207, was "an open invitation to discrimination." 408 U.S.,
at 365. Justice Stewart also agreed that "if any basis can
be discerned for the selection of these few to be sentenced to die, it is
the constitutionally impermissible basis of race." Id., at 310 (concurring
opinion). |
| [74] | The unquestionable importance of race in Furman is reflected in the
fact that three of the original four petitioners in the Furman cases were
represented by the NAACP Legal Defense and Educational Fund, Inc. This
representation was part of a concerted "national litigative campaign
against the constitutionality of the death penalty" waged by a small
number of ambitious lawyers and academics on the Fund's behalf. Burt,
Disorder in the Court: The Death Penalty and the Constitution, 85 Mich. L.
Rev. 1741, 1745 (1987). Although their efforts began rather modestly,
assisting indigent black defendants in isolated criminal cases -- usually
rape cases -- where racial discrimination was suspected, the lawyers at
the Fund ultimately devised and implemented (not without some prompting
from this Court) an all-out strategy of litigation against the death
penalty. See generally M. Meltsner, Cruel and Unusual: The Supreme Court
and Capital Punishment (1973) (hereinafter Meltsner); Muller, The Legal
Defense Fund's Capital Punishment Campaign: The Distorting Influence of
Death, 4 Yale L. & Policy Rev. 158 (1985). *fn3 This campaign was part of a larger movement carried
on in the 1960s by "abolitionist lawyers" whose agenda for social and
legal change depended on an activist judiciary; their "unmistakable
preference for the courts, especially the federal courts," came as a
direct "response to the Supreme Court's willingness to redraw America's
ethical and legal map, a task state houses and executive mansions were
slow to tackle." Meltsner 25, 71. *fn4 |
| [75] | In mustering every conceivable argument -- "ethical, legal, polemical,
theological, speculative, statistical" -- for abolishing capital
punishment, id., at 59, the Fund lawyers and other civil rights advocates
supplied the empirical and rhetorical support for the observations of
Justices Douglas, Marshall, and Stewart with respect to race
bias. See Brief for Petitioner in Aikens v. California, O. T. 1971, No.
68-5027, pp. 50-54; Brief for Petitioner in Jackson v. Georgia, O. T.
1971, No. 69-5030, p. 15 ("The racial figures for all men executed in the
United States for the crime of rape since 1930 are as follows: 48 white,
405 Negro, 2 other. In Georgia, the figures are: 3 white, 58 Negro")
(footnotes omitted). See also Brief for NAACP et al. as Amici Curiae in
Aikens v. California, (supra) , at 13-18, and App. A (discussing, in
particular, history of South's use of death penalty in rape cases prior to
Civil War, when it was typical for rapes or attempted rapes committed by
black men upon white women to be punishable by mandatory death or
castration, while rapes committed by whites were not punishable by death);
Brief for Synagogue Council of America et al. as Amici Curiae in Aikens v.
California, (supra) , at 31 ("The positive relationship between the death
penalty and race is strong, but where the crime involved is rape and more
particularly, as in two of the present cases, the rape of white women by
Negroes, the relationship is almost uncontrovertible"). *fn5 |
| [76] | In the end, Justice Douglas and the other Members of the Court
concluded that "we cannot say from facts disclosed in these records that
these defendants were sentenced to death because they were black." Furman,
408 U.S., at 253 (Douglas, J., Concurring). See id., at 310
(Stewart, J., Concurring) ("racial discrimination has not
been proved"). The Court focused more generally on the uncontrolled
discretion placed in Judges and juries. Such unbridled discretion, it was
argued, practically invited sentencers to vent their personal prejudices
in deciding the fate of the accused. See Brief for Petitioner in Furman v.
Georgia, O. T. 1971, No. 69-5003, p. 12 ("The jury knew nothing else about
the man they sentenced, except his age and race"). "Under these laws no
standards govern the selection of the penalty. People live or die,
dependent on the whim of one man or of 12." 408 U.S., at 253 (Douglas, J.,
Concurring). Justice Stewart observed that "the petitioners
are among a capriciously selected random handful upon whom the sentence of
death has in fact been imposed," and concluded that the Eighth and
Fourteenth Amendments cannot tolerate sentencing procedures that allow the
penalty to be "so wantonly and so freakishly" inflicted. Id., at 309-310
(Stewart, J., Concurring). The practice of delegating
unguided authority -- a practice "largely motivated by the desire to
mitigate the harshness of the law and to bring community judgment to bear
on the sentence" -- actually allowed a jury, "in its own discretion and
without violating its trust or any statutory policy, refuse to impose the
death penalty no matter what the circumstances of the crime." Id., at 313,
314 (WHITE, J., Concurring). |
| [77] | In sum, the Court concluded that in a standardless sentencing scheme
there was no "rational basis," as Justice Brennan put it, to distinguish
"the few who die from the many who go to prison." Id., at 294 (concurring
opinion). See also id., at 313 (WHITE, J., Concurring) ("no meaningful
basis for distinguishing"). It cannot be doubted that behind the Court's
condemnation of unguided discretion lay the specter of racial prejudice --
the paradigmatic capricious and irrational sentencing
factor. |
| [78] | B |
| [79] | At its inception, our "mitigating" line of cases sprang in part from
the same concerns that underlay Furman. In response to Furman, 35 States
enacted new death penalty statutes. See Gregg v. Georgia, 428 U.S. 153,
179-180, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (opinion of
Stewart, Powell, and STEVENS, JJ.). In five cases decided on
a single day in 1976, we passed on the constitutionality of a
representative sample of the new laws. *fn6 The controlling opinion in each case was a joint
opinion of Justices Stewart, Powell, and STEVENS. In the
lead case, Gregg v. Georgia, these Justices squarely rejected the argument
that the death penalty is cruel and unusual under all circumstances. Id.,
at 176-187. Rather, they focused on the States' capital sentencing
procedures, distilling from Furman two complementary rationalizing
principles about sentencing discretion: The discretion given the sentencer
must be "directed and limited" to avoid "wholly arbitrary and capricious
action," Gregg, 428 U.S., at 189, and this discretion must be exercised
"in an informed manner." Ibid. Furman was read as holding that "to
minimize the risk that the death penalty be imposed on a capriciously
selected group of offenders, the decision to impose it has to be guided by
standards so that the sentencing authority focus on the particularized
circumstances of the crime and the defendant." Gregg, 428 U.S., at 199.
The jury should be "given guidance regarding the factors about the crime
and the defendant that the State, representing organized society, deems
particularly relevant to the sentencing decision." Id., at 192.
"Otherwise, the system cannot function in a consistent and a rational
manner." Id., at 189 (internal quotation marks omitted). |
| [80] | Gregg 's requirement that the sentencer be guided by information about
the particular defendant and the particular circumstances of the crime --
in other words, by traditionally accepted sentencing criteria, see id., at
189-190 -- added a second dimension to Furman 's rule against open-ended
discretion. The jury's discretion must be focused on rational factors, and
its decision should be based on information about the circumstances of the
crime and about the accused as an individual, not merely as a member of a
group. In Furman itself, for example, the jury was given almost no
particularized information about the accused: "About Furman himself, the
jury knew only that he was black and that, according to his statement at
trial, he was 26 years old and worked at 'Superior Upholstery.' It took
the jury one hour and 35 minutes to return a verdict of guilt and a
sentence of death." Furman, 408 U.S., at 295, n. 48 (Brennan, J.,
Concurring) (citations omitted). Moreover, it was irrelevant to the jury's
determination that the killing committed by Furman was accidental. Ibid.
Without a focus on the characteristics of the defendant and the
circumstances of his crime, an uninformed jury could be tempted to resort
to irrational considerations, such as class or race animus. |
| [81] | Justices Stewart, Powell, and STEVENS applied these
principles in upholding the guided discretion procedures of Georgia,
Florida, and Texas, and in striking down the mandatory death penalty
provisions of North Carolina and Louisiana. The Georgia, Florida, and
Texas schemes were held constitutional because they "guided and focused
the jury's objective consideration of the particularized circumstances of
the individual offense and the individual offender." Jurek v. Texas, 428
U.S. 262, 273-274, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976) (opinion of
Stewart, Powell, and STEVENS, JJ.). The "essential" factor
was that "the jury had before it all possible relevant information about
the individual defendant whose fate it must determine." Id., at 276.
Moreover, the Georgia statute featured "an important additional safeguard
against arbitrariness and caprice": a provision for automatic appeal of a
death sentence that required the State Supreme Court to determine, inter
alia, whether the sentence was imposed under the influence of passion or
prejudice and whether it was disproportionate to other sentences imposed
in similar cases. Gregg, (supra) , at 198. |
| [82] | The mandatory death penalty statutes, on the other hand, were held to
violate the Eighth and Fourteenth Amendments for three reasons. First, the
Justices believed, a mandatory death penalty departed from "contemporary
standards" of punishment. Woodson v. North Carolina, 428 U.S. 280, 301, 49
L. Ed. 2d 944, 96 S. Ct. 2978 (1976) (opinion of Stewart,
Powell, and STEVENS, JJ.). Second, experience had suggested that such
statutes "simply papered over the problem of unguided and unchecked jury
discretion" by provoking arbitrary jury nullification. Id., at 302-303.
Thus, "instead of rationalizing the sentencing process, a mandatory scheme
may well exacerbate the problem identified in Furman by resting the
penalty determination on the particular jury's willingness to act
lawlessly." Id., at 303; see Roberts v. Louisiana, 428 U.S. 325, 335, 49
L. Ed. 2d 974, 96 S. Ct. 3001 (1976) (opinion of Stewart,
Powell, STEVENS, JJ.). Third, the mandatory nature of the penalty
prevented the sentencer from considering "the character and record of the
individual offender or the circumstances of the particular offense," and
thus treated all convicted persons "not as uniquely individual human
beings, but as members of a faceless, undifferentiated mass." Woodson,
(supra) , at 304. The latter concern echoed Justice Douglas's suggestion
that sentences of death might have fallen disproportionately upon the
"members of a suspect or unpopular minority." Furman, (supra) , at
255. |
| [83] | One would think, however, that by eliminating explicit jury discretion
and treating all defendants equally, a mandatory death penalty scheme was
a perfectly reasonable legislative response to the concerns expressed in
Furman. See Roberts, (supra) , at 346 (WHITE, J., Dissenting). See also
Walton v. Arizona, 497 U.S. 639, 662, 111 L. Ed. 2d 511, 110 S. Ct. 3047
(1990) (SCALIA, J., Concurring in part and Concurring in judgment).
JUSTICE WHITE was surely correct in concluding that "a State is not
constitutionally forbidden to provide that the commission of certain
crimes conclusively establishes that the criminal's character is such that
he deserves death." Roberts, (supra) , at 358. See also Roberts v.
Louisiana, 431 U.S. 633, 649, 52 L. Ed. 2d 637, 97 S. Ct. 1993 (1977)
(REHNQUIST, J., Dissenting); Sumner v. Shuman, 483 U.S. 66, 86, 97 L. Ed.
2d 56, 107 S. Ct. 2716 (1987) (WHITE, J., Dissenting). I would also agree
that the plurality in Woodson and Roberts erred in equating the "raw power
of nullification" with the unlimited sentencing discretion condemned in
Furman. Roberts, 428 U.S., at 347 (WHITE, J., Dissenting). The curious and
counterintuitive outcomes of our 1976 cases -- upholding sentences of
death imposed under statutes that explicitly preserved the sentencer's
discretion while vacating those imposed under mandatory provisions
precisely because of a perceived potential for arbitrary and uninformed
discretion -- might in some measure be attributable, once again, to the
powerful influence of racial concerns. *fn7 Be that as it may, we are not now confronted with a
mandatory sentencing provision, and I have no occasion here to flesh out
my disagreement with the Court's prohibition of such
schemes. |
| [84] | The significant point for present purposes is that Woodson and Sumner
's invalidation of the mandatory death penalty guaranteed that sentencers
would exercise some degree of discretion in every capital case. And under
our precedents, in turn, any such exercise of discretion is unavoidably
bound up with the two requirements of Furman, as identified in Gregg:
first and foremost, that the sentencing authority be "provided with
standards to guide its use of the information" developed at sentencing,
and second, in support of this principle, that the sentencer be "apprised
of the information relevant to the imposition of sentence." Gregg, 428
U.S., at 195. By discovering these two requirements in the Constitution,
and by ensuring in Woodson and its progeny that they would always be in
play, the Court has put itself in the seemingly permanent business of
supervising capital sentencing procedures. While the better view is that
the Cruel and Unusual Punishment Clause was intended to place only
substantive limitations on punishments, not procedural requirements on
sentencing, see Hudson v. McMillian, 503 U.S. . . ., . . . (1992) (THOMAS,
J., Dissenting) (slip op., at 2-3); Gardner v. Florida, 430 U.S. 349, 371,
51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977) (REHNQUIST, J., Dissenting), stare
decisis requires that we make efforts to adhere to the Court's Eighth
Amendment precedents, see Walton v. Arizona, (supra) , at 672 (SCALIA, J.,
Concurring in part and Concurring in judgment). |
| [85] | The mitigating branch of our death penalty jurisprudence began as an
outgrowth of the second of the two Furman / Gregg requirements. The
plurality's Conclusion in Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973,
98 S. Ct. 2954 (1978) -- that the sentencer in a capital case must "not be
precluded from considering, as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances of the
offense," id., at 604 (opinion of Burger, C. J.) (emphasis removed) --
effectively guarantees the sentencer's access to categories of information
favorable to the defendant. Thus, Lockett was built on the premise, given
credence in Gregg, that "where sentencing discretion is granted, it
generally has been agreed that the sentencing Judge's possession of the
fullest information possible concerning the defendant's life and
characteristics is highly relevant." 438 U.S., at 602-603 (internal
quotation marks omitted). The sentencing statute at issue in Lockett
failed to satisfy this requirement, in the plurality's view, because it
eliminated from the jury's consideration significant facts about the
defendant and her "comparatively minor role in the offense." Id., at 608.
*fn8 The Court's adoption in Eddings v.
Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), of the
Lockett rule and its corollary -- that the sentencer may not categorically
refuse to consider relevant mitigating circumstances -- again drew upon
Gregg 's notion that capital sentencing is less likely to be arbitrary
where the jury's exercise of discretion is focused on the particularized
circumstances of the offender and the crime. See Eddings, (supra) , at 112
(relying on Gregg, (supra) , at 197). |
| [86] | Therefore, although it is said that Lockett and Eddings represent an
"about-face" and "a return to the pre- Furman days," Lockett, (supra) , at
622, 623 (WHITE, J., Concurring in part, Dissenting in part, and
Concurring in judgments), there was at root a logical -- if by now
attenuated -- connection between the rationalizing principle of Furman and
the prophylactic rule of Eddings. Eddings protects the accused's
opportunity to "apprise" the jury of his version of the information
relevant to the sentencing decision. Our early mitigating cases may thus
be read as doing little more than safeguarding the adversary process in
sentencing proceedings by conferring on the defendant an affirmative right
to place his relevant evidence before the sentencer. See Skipper v. South
Carolina, 476 U.S. 1, 4, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986). Cf. id.,
at 5, n. 1 (comparing Eddings with "the elemental due process requirement
that a defendant not be sentenced to death 'on the basis of information
which he had no opportunity to deny or explain.' Gardner v. Florida, 430
U.S. 349, 362, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977)"). |
| [87] | Consistent with this (admittedly narrow) reading, I would describe
Eddings as a kind of rule of evidence: it governs the admissibility of
proffered evidence but does not purport to define the substantive
standards or criteria that sentencers are to apply in considering the
facts. By requiring that sentencers be allowed to "consider" all
"relevant" mitigating circumstances, we cannot mean that the decision
whether to impose the death penalty must be based upon all of the
defendant's evidence, or that such evidence must be considered the way the
defendant wishes. Nor can we mean to say that circumstances are
necessarily relevant for constitutional purposes if they have any
conceivable mitigating value. Such an application of Eddings would eclipse
the primary imperative of Furman -- that the State define the relevant
sentencing criteria and provide rational "standards to guide [the
sentencer's] use" of the evidence. That aspect of Furman must operate for
the most part independently of the Eddings rule. This is essential to the
effectiveness of Furman, since providing all relevant information for the
sentencer's consideration does nothing to avoid the central danger that
sentencing discretion may be exercised irrationally. |
| [88] | I realize, of course, that Eddings is susceptible to more expansive
interpretations. See, e. g., Walton, 497 U.S., at 661, 667 (SCALIA, J.,
Concurring in part and Concurring in judgment) (Eddings rule "has
completely exploded whatever coherence the notion of 'guided discretion'
once had" by making "random mitigation" a constitutional requirement);
McCleskey v. Kemp, 481 U.S., at 306 ("States cannot limit the sentencer's
consideration of any relevant circumstance that could cause it to decline
to impose the penalty. In this respect, the State cannot channel the
sentencer's discretion, but must allow it to consider any relevant
information offered by the defendant"). And even under the narrow reading
of Eddings, there is still a tension in our case law, because Eddings
implies something of an outer boundary to the primary Furman principle:
the sentencing standards chosen by the State may not be so stingy as to
prevent altogether the consideration of constitutionally relevant
mitigating evidence. |
| [89] | But with the exception of Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed.
2d 256, 109 S. Ct. 2934 (1989), our most recent mitigating cases have been
careful to read Eddings narrowly in an effort to accommodate the
"competing commandments" of Eddings and Furman, ante, at 6. We have held
that States must be free to channel and direct the sentencer's
consideration of all evidence (whether mitigating or aggravating) that
bears on sentencing, provided only that the State does not categorically
preclude the sentencer from considering constitutionally relevant
mitigating circumstances. See Walton, (supra) , at 652 ("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") (internal quotation marks omitted);
Boyde v. California, 494 U.S. 370, 377, 108 L. Ed. 2d 316, 110 S. Ct. 1190
(1990) (to the same effect); Franklin v. Lynaugh, 487 U.S. 164, 181, 101
L. Ed. 2d 155, 108 S. Ct. 2320 (1988) (plurality) (same); see also Walton,
(supra) , at 652 (requirement of individualized sentencing in capital
cases satisfied as long as State does not altogether prevent sentencer
from considering any type of relevant mitigating evidence); Blystone v.
Pennsylvania, 494 U.S. 299, 307-308, 108 L. Ed. 2d 255, 110 S. Ct. 1078
(1990) (same); Saffle v. Parks, 494 U.S. 484, 490-491, 108 L. Ed. 2d 415,
110 S. Ct. 1257 (1990) (same). |
| [90] | This understanding preserves our original rationale for upholding the
Texas sentencing statute -- that it "guides and focuses the jury's
objective consideration of the particularized circumstances" while
allowing the defendant "to bring to the jury's attention whatever
mitigating circumstances he may be able to show." Jurek, 428 U.S., at 272,
274. Thus, in reaffirming the constitutionality of Texas's system of
special issues, we have expressed satisfaction that the former Texas
scheme successfully reconciled any tension that exists between Eddings and
Furman. See Franklin v. Lynaugh, (supra) , at 182 (plurality). In the
context of the Texas system, therefore, I am unprepared at present to
sweep away our entire mitigating line of precedent. By the same token,
however, if the more expansive reading of Eddings were ultimately to
prevail in this Court, I would be forced to conclude that the Eddings
rule, as so construed, truly is "rationally irreconcilable with Furman "
and, on that basis, deserving of rejection. See Walton, (supra) , at 673
(SCALIA, J., Concurring in part and Concurring in judgment). |
| [91] | II |
| [92] | Unfortunately, the narrow reading of Eddings is virtu-ally impossible
after Penry. Whatever contribution to rationality and consistency we made
in Furman, we have taken back with Penry. In the process, we have upset
the careful balance that Texas had achieved through the use of its special
issues. |
| [93] | Penry held that the Texas special issues did not allow a jury to
"consider and give effect to" mitigating evidence of mental retardation
and childhood abuse, 492 U.S., at 328, because, even though the defendant
had a full and unfettered opportunity to present such evidence to the
jury, the evidence had "relevance to [Penry's] moral culpability beyond
the scope of the special issues." Id., at 322 (emphasis added). Thus, the
Court was persuaded that the jury might have been "unable to express its '
reasoned moral response ' to that evidence in determining whether death
was the appropriate punishment." Ibid. (emphasis added). See post, at 16.
Contrary to the Dissent's view, see post, at 4-9, these notions -- that a
defendant may not be sentenced to death if there are mitigating
circumstances whose relevance goes "beyond the scope" of the State's
sentencing criteria, and that the jury must be able to express a "reasoned
moral response" to all evidence presented -- have no pedigree in our prior
holdings. They originated entirely from whole cloth in two recent
Concurring opinions. See Franklin, (supra) , at 185 (O'CONNOR, J.,
Concurring in judgment); California v. Brown, 479 U.S. 538, 545, 93 L. Ed.
2d 934, 107 S. Ct. 837 (1987) (O'CONNOR, J., Concurring). |
| [94] | Together, these notions render meaningless any rational standards by
which a State may channel or focus the jury's discretion and thus negate
the central tenet of Furman and all our death penalty cases since 1972.
Penry imposes as a constitutional imperative "a scheme that simply dumps
before the jury all sympathetic factors bearing upon the defendant's
background and character, and the circumstances of the offense, so that
the jury may decide without further guidance" whether the defendant
deserves death. Penry, 492 U.S., at 359 (SCALIA, J., Concurring in part
and Dissenting in part). "It is an unguided, emotional 'moral response'
that the Court demands be allowed -- an outpouring of personal reaction to
all the circumstances of a defendant's life and personality, an unfocused
sympathy." Ibid. The Dissent's reading of Penry bears out these fears. The
Dissent would require that the special issues be "construed with enough
scope to allow the full consideration of mitigating potential," post, at
12, and that the jury be free to give full effect to the defendant's
sympathetic evidence "for all purposes, including purposes not
specifically permitted by the questions," post, at 8 (internal quotation
marks and emphasis omitted). |
| [95] | Any determination that death is or is not the fitting punishment for a
particular crime will necessarily be a moral one, whether made by a jury,
a Judge, or a legislature. But beware the word "moral" when used in an
opinion of this Court. This word is a vessel of nearly infinite capacity
-- just as it may allow the sentencer to express benevolence, it may allow
him to cloak latent animus. A judgment that some will consider a "moral
response" may secretly be based on caprice or even outright prejudice.
When our review of death penalty procedures turns on whether jurors can
give "full mitigating effect" to the defendant's background and character,
post, at 7, and on whether juries are free to disregard the State's chosen
sentencing criteria and return a verdict that a majority of this Court
will label "moral," we have thrown open the back door to arbitrary and
irrational sentencing. See Penry, (supra) , at 360 (SCALIA, J., Concurring
in part and Dissenting in part) ("The decision whether to impose the death
penalty is a unitary one; unguided discretion not to impose is unguided
discretion to impose as well. In holding that the jury had to be free to
deem Penry's mental retardation and sad childhood relevant for whatever
purpose it wished, the Court has come full circle, not only permitting but
requiring what Furman once condemned"). |
| [96] | The Court in Penry denied that its holding signaled a return to
unbridled jury discretion because, it reasoned, "so long as the class of
murderers subject to capital punishment is narrowed, there is no
constitutional infirmity in a procedure that allows a jury to recommend
mercy based on the mitigating evidence introduced by a defendant." 492
U.S., at 327 (citing Gregg, 428 U.S., at 197-199, 203 (joint opinion), and
222 (WHITE, J., Concurring in judgment)). Cf. McCleskey v. Kemp, 481 U.S.,
at 311 (discussing the benefits to the defendant of discretionary
leniency). Thus, the Dissent suggests that once the State has sufficiently
narrowed the class of death-eligible murderers, the jury's discretion to
select those individuals favored to live must remain effectively
unbounded. See post, at 10-13, 16. It turns reason on its head, however,
to argue that just because we have approved sentencing systems that
continue to permit juries to exercise a degree of discretionary leniency,
the Eighth Amendment necessarily requires that that discretion be unguided
and unlimited with respect to "the class of murderers subject to capital
punishment." To withhold the death penalty out of sympathy for a defendant
who is a member of a favored group is no different from a decision to
impose the penalty on the basis of negative bias, and it matters not how
narrow the class of death-eligible defendants or crimes. Surely that is
exactly what the petitioners and the Legal Defense Fund argued in Woodson
and Roberts. See n. 7, (supra) . It is manifest that "'the power to be
lenient is the power to discriminate.'" McCleskey v. Kemp, (supra) , at
312 (quoting K. Davis, Discretionary Justice 170 (1973)). See also
Roberts, 428 U.S., at 346 (WHITE, J., Dissenting) ("It is undeniable that
the unfettered discretion of the jury to save the defendant from death was
a major contributing factor in the developments which led us to invalidate
the death penalty in Furman v. Georgia "). *fn9 |
| [97] | We have consistently recognized that the discretion to accord mercy --
even if "largely motivated by the desire to mitigate" -- is
indistinguishable from the discretion to impose the death penalty. Furman,
408 U.S., at 313, 314 (WHITE, J., Concurring) (condemning unguided
discretion because it allows the jury to " refuse to impose the death
penalty no matter what the circumstances of the crime") (emphasis added).
See also Jurek, 428 U.S., at 279 (WHITE, J., Concurring in judgment)
(Texas's scheme is constitutional because it "does not extend to juries
discretionary power to dispense mercy"); Roberts, (supra) , at 335 (joint
opinion) (Louisiana's statute "plainly invites" jurors to "choose a
verdict for a lesser offense whenever they feel the death penalty is
inappropriate"). For that reason, we have twice refused to disapprove
instructions directing jurors "'not be swayed by mere . . . sympathy,'"
because, we have emphasized, such instructions "foster the Eighth
Amendment's 'need for reliability in the determination that death is the
appropriate punishment in a specific case.'" California v. Brown, 479
U.S., at 539, 543 (quoting Woodson, 428 U.S., at 305 (joint opinion)).
Accord, Saffle v. Parks, 494 U.S., at 493 ("Whether a juror feels sympathy
for a capital defendant is more likely to depend on that juror's own
emotions than on the actual evidence regarding the crime and the
defendant. It would be very difficult to reconcile a rule allowing the
fate of a defendant to turn on the vagaries of particular jurors'
emotional sensitivities with our longstanding recognition that, above all,
capital sentencing must be reliable, accurate, and
nonarbitrary"). |
| [98] | Penry reintroduces the very risks that we had sought to eliminate
through the simple directive that States in all events provide rational
standards for capital sentencing. For 20 years, we have acknowledged the
relationship between undirected jury discretion and the danger of
discriminatory sentencing -- a danger we have held to be inconsistent with
the Eighth Amendment. When a single holding does so much violence to so
many of this Court's settled precedents in an area of fundamental
constitutional law, it cannot command the force of stare decisis. In my
view, Penry should be overruled. *fn10 |
| [99] | III |
| [100] | The major emphasis throughout our Eighth Amendment jurisprudence has
been on "reasoned" rather than "moral" sentencing. We have continually
sought to verify that States' capital procedures provide a "rational
basis" for predictably determining which defendants shall be sentenced to
death. Furman, (supra) , at 294 (Brennan, J., Concurring). See also
Spaziano v. Florida, 468 U.S. 447, 460, 82 L. Ed. 2d 340, 104 S. Ct. 3154
(1984); California v. Brown, (supra) , at 541; Barclay v. Florida, 463
U.S. 939, 960, 77 L. Ed. 2d 1134, 103 S. Ct. 3418 (1983) (STEVENS, J.,
Concurring in judgment) ("A constant theme of our cases . . . has been
emphasis on procedural protections that are intended to ensure that the
death penalty will be imposed in a consistent, rational manner");
McCleskey v. Kemp, 481 U.S., at 323 (Brennan, J., Dissenting) ("Concern
for arbitrariness focuses on the rationality of the system as a whole, and
. . . a system that features a significant probability that sentencing
decisions are influenced by impermissible considerations cannot be
regarded as rational"). And in the absence of mandatory sentencing, States
have only one means of satisfying Furman 's demands -- providing objective
standards to ensure that the sentencer's discretion is "guided and
channeled by . . . examination of specific factors." Proffitt v. Florida,
428 U.S. 242, 258, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976) (opinion of
Stewart, Powell, and STEVENS, JJ.). |
| [101] | The rule of Eddings may be an important procedural safeguard that
complements Furman, but Eddings cannot promote consistency, much less
rationality. Quite the opposite, as Penry demonstrates. It is imperative,
therefore, that we give full effect to the standards designed by state
legislatures for focusing the sentencer's deliberations. This Court has
long since settled the question of the constitutionality of the death
penalty. We have recognized that "capital punishment is an expression of
society's moral outrage at particularly offensive conduct" and that a
process for "'channeling the instinct [for retribution] in the
administration of criminal Justice serves an important purpose in
promoting the stability of a society governed by law.'" Gregg, 428 U.S.,
at 183 (joint opinion) (quoting Furman, (supra) , at 308
(Stewart, J., Concurring)). If the death penalty is
constitutional, States must surely be able to administer it pursuant to
rational procedures that comport with the Eighth Amendment's most basic
requirements. |
| [102] | In my view, we should enforce a permanent truce between Eddings and
Furman. We need only conclude that it is consistent with the Eighth
Amendment for States to channel the sentencer's consideration of a
defendant's arguably mitigating evidence so as to limit the relevance of
that evidence in any reasonable manner, so long as the State does not deny
the defendant a full and fair opportunity to apprise the sentencer of all
constitutionally relevant circumstances. The three Texas special issues
easily satisfy this standard. "In providing for juries to consider all
mitigating circumstances insofar as they bear upon (1) deliberateness, (2)
future dangerousness, and (3) provocation, . . . Texas had adopted a
rational scheme that meets the two concerns of our Eighth Amendment
jurisprudence." Penry, 492 U.S., at 358-359 (SCALIA, J., Concurring in
part and Dissenting in part). |
| [103] | As a predicate, moreover, I believe this Court should leave it to
elected state legislators, "representing organized society," to decide
which factors are "particularly relevant to the sentencing decision."
Gregg, (supra) , at 192. Although Lockett and Eddings indicate that as a
general matter, "a State cannot take out of the realm of relevant
sentencing considerations the questions of the defendant's 'character,'
'record,' or the 'circumstances of the offense,'" they do "not hold that
the State has no role in structuring or giving shape to the jury's
consideration of these mitigating factors." Franklin v. Lynaugh, 487 U.S.,
at 179 (plurality). Ultimately, we must come back to a recognition that
"the States, and not this Court, retain 'the traditional authority' to
determine what particular evidence within the broad categories described
in Lockett and Eddings is relevant in the first instance," Skipper v.
South Carolina, 476 U.S., at 11 (Powell, J., Concurring in judgment)
(quoting Lockett, 438 U.S., at 604, n. 12), since "this Court has no
special expertise in deciding whether particular categories of evidence
are too speculative or insubstantial to merit consideration by the
sentencer." 476 U.S., at 15. *fn11
Accordingly, I also propose that the Court's appropriate role is to review
only for reasonableness a State's determinations as to which specific
circumstances -- within the broad bounds of the general categories
mandated under Eddings -- are relevant to capital
sentencing. |
| [104] | Every month, defendants who claim a special victimization file with
this Court petitions for certiorari that ask us to declare that some new
class of evidence has mitigating relevance "beyond the scope" of the
State's sentencing criteria. It may be evidence of voluntary intoxication
or of drug use. Or even -- astonishingly -- evidence that the defendant
suffers from chronic "antisocial personality disorder" -- that is, that he
is a sociopath. See Pet. for Cert. in Demouchette v. Collins, O. T. 1992,
No. 92-5914, p. 4, cert. denied, 505 U.S. . . . (1992). We cannot carry on
such a business, which makes a mockery of the concerns about racial
discrimination that inspired our decision in Furman. |
| [105] | For all these reasons, I would not disturb the effectiveness of
Texas's former system. |
| [106] | JUSTICE STEVENS, Dissenting. |
| [107] | Neither the race of the defendant nor the race of the victim should
play a part in any decision to impose a death sentence. As JUSTICE THOMAS
points out, there is reason to believe that this imperative was routinely
violated in the years before the Court first held that capital punishment
may violate the Eighth Amendment, when racial discrimination infected the
administration of the death penalty "particularly in Southern States, and
most particularly in rape cases." Ante, at 2. And JUSTICE THOMAS is surely
correct that concern about racial discrimination played a significant role
in the development of our modern capital sentencing jurisprudence. Ante,
at 3-7. Where I cannot agree with JUSTICE THOMAS is in the remarkable
suggestion that the Court's decision in Penry v. Lynaugh, 492 U.S. 302,
106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989), somehow threatens what progress
we have made in eliminating racial discrimination and other arbitrary
considerations from the capital sentencing determination. |
| [108] | In recent years, the Court's capital punishment cases have erected
four important safeguards against arbitrary imposition of the death
penalty. First, notwithstanding a minority view that proportionality
should play no part in our analysis, *fn1 we have concluded that death is an impermissible
punishment for certain offenses. Specifically, neither the crime of rape
nor the kind of unintentional homicide referred to by JUSTICE THOMAS,
ante, at 7, may now support a death sentence. See Enmund v. Florida, 458
U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982); Coker v. Georgia, 433
U.S. 584, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977). |
| [109] | Second, as a corollary to the proportionality requirement, the Court
has demanded that the States narrow the class of individuals eligible for
the death penalty, either through statutory definitions of capital murder,
or through statutory specification of aggravating circumstances. This
narrowing requirement, like the categorical exclusion of the offense of
rape, has significantly minimized the risk of racial bias in the
sentencing process. *fn2 Indeed, as I
pointed out in my Dissent in McCleskey v. Kemp, 481 U.S. 279, 95 L. Ed. 2d
262, 107 S. Ct. 1756 (1987), there is strong empirical evidence that an
adequate narrowing of the class of death-eligible offenders would
eradicate any significant risk of bias in the imposition of the death
penalty. *fn3 |
| [110] | Third, the Court has condemned the use of aggravating factors so vague
that they actually enhance the risk that unguided discretion will control
the sentencing determination. See, e. g., Maynard v. Cartwright, 486 U.S.
356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988) (invalidating "especially
heinous, atrocious, or cruel" aggravating circumstance); Godfrey v.
Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980)
(invalidating "outrageously or wantonly vile, horrible or inhuman"
aggravating circumstance). An aggravating factor that invites a judgment
as to whether a murder committed by a member of another race is especially
"heinous" or "inhuman" may increase, rather than decrease, the chance of
arbitrary decisionmaking, by creating room for the influence of personal
prejudices. In my view, it is just such aggravating factors, which fail to
cabin sentencer discretion in the determination of death-eligibility, that
pose the "evident danger" of which JUSTICE THOMAS warns. See ante, at
2. |
| [111] | Finally, at the end of the process, when dealing with the narrow class
of offenders deemed death-eligible, we insist that the sentencer be
permitted to give effect to all relevant mitigating evidence offered by
the defendant, in making the final sentencing determination. See, e. g.,
Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982);
Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). I
have already explained my view that once the class of death-eligible
offenders is sufficiently narrowed, consideration of relevant, individual
mitigating circumstances in no way compromises the "rationalizing
principle," ante, at 12, of Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d
346, 92 S. Ct. 2726 (1972). See Walton v. Arizona, 497 U.S. 639, 715-719,
111 L. Ed. 2d 511, 110 S. Ct. 3047 (STEVENS, J., Dissenting). To the
contrary, the requirement that sentencing decisions be guided by
consideration of relevant mitigating evidence reduces still further the
chance that the decision will be based on irrelevant factors such as race.
Lockett itself illustrates this point. A young black woman, *fn4 Lockett was sentenced to death
because the Ohio statute "did not permit the sentencing Judge to consider,
as mitigating factors, her character, prior record, age, lack of specific
intent to cause death, and her relatively minor part in the crime." 438
U.S., at 597. When such relevant facts are excluded from the sentencing
determination, there is more, not less, reason to believe that the
sentencer will be left to rely on irrational considerations like racial
animus. |
| [112] | I remain committed to our "mitigating" line of precedent, as a
critical protection against arbitrary and discriminatory capital
sentencing that is fully consonant with the principles of Furman. Nothing
in JUSTICE THOMAS' opinion explains why the requirement that sentencing
decisions be based on relevant mitigating evidence, as applied by Penry,
increases the risk that those decisions will be based on the irrelevant
factor of race. More specifically, I do not see how permitting full
consideration of a defendant's mental retardation and history of childhood
abuse, as in Penry, or of a defendant's youth, as in this case, in any way
increases the risk of race-based or otherwise arbitrary
decisionmaking. |
| [113] | JUSTICE SOUTER, in whose Dissent I join, has demonstrated that the
decision in Penry is completely consistent with our capital sentencing
jurisprudence. In my view, it is also faithful to the goal of eradicating
racial discrimination in capital sentencing, which I share with JUSTICE
THOMAS. |
| [114] | JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JUSTICE STEVENS, and
JUSTICE O'CONNOR join, Dissenting. |
| [115] | In Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934
(1989), we concluded that a petitioner did not seek the benefit of a "new
rule" in claiming that the Texas special issues did not permit the
sentencing jury in his case to give full mitigating effect to certain
mitigating evidence, and we therefore held that the retroactivity doctrine
announced in Teague v. Lane, 489 U.S. 288, 301, 103 L. Ed. 2d 334, 109 S.
Ct. 1060 (1989) (plurality opinion), did not bar the claim. See 492 U.S.,
at 314-319. The only distinctions between the claim in Penry and those
presented here go to the kind of mitigating evidence presented for the
jury's consideration, and the distance by which the Texas scheme stops
short of allowing full effect to be given to some of the evidence
considered. Neither distinction makes a difference under Penry or the
prior law on which Penry stands. Accordingly, I would find no bar to the
present claims and would reach their merits: whether the mitigating force
of petitioner's youth, unfortunate background, and traits of decent
character could be considered adequately by a jury instructed only on the
three Texas special issues.1 I conclude they could not be, and I would
reverse the sentence of death and remand for resentencing. From the
Court's contrary judgment, I respectfully Dissent. |
| [116] | I |
| [117] | The doctrine of Teague v. Lane, (supra) , that a state prisoner
seeking federal habeas relief may not receive retroactive benefit of a
"new rule" of law, has proven hard to apply. We have explained its crucial
term a number of ways. JUSTICE O'CONNOR wrote in Teague itself that "in
general . . . a case announces a new rule when it breaks new ground or
imposes a new obligation on the States or the Federal Government. . . . To
put it differently, a case announces a new rule if the result was not
dictated by precedent at the time the defendant's conviction became
final." 489 U.S., at 301 (plurality opinion) (emphasis in original). We
have said that novelty turns on whether the rule would represent a
"development in the law over which reasonable jurists disagree." Sawyer v.
Smith, 497 U.S. 227, 234, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (1990), and
we have emphasized that reasonableness is not a wholly deferential
standard, by making it clear that the existence of conflicting authority
does not alone imply that any rule resolving that conflict is a new one.
Stringer v. Black, 503 U.S. . . ., . . . (1992) (slip op., at
13-14). |
| [118] | One general rule that has emerged under Teague is that application of
existing precedent in a new factual setting will not amount to announcing
a new rule. See Wright v. West, 505 U.S. . . ., . . . (1992) (slip op., at
8) O'CONNOR, J., joined by BLACKMUN and STEVENS, JJ., Concurring in
judgment) ("If a proffered factual distinction between the case under
consideration and pre-existing precedent does not change the force with
which the precedent's underlying principle applies, the distinction is not
meaningful, and any deviation from precedent is not reasonable"); id., at
. . . (slip op., at 4) (KENNEDY, J., Concurring in judgment) ("Where the
beginning point is a rule of this general application, a rule designed for
the specific purpose of evaluating a myriad of factual contexts, it will
be the infrequent case that yields a result so novel that it forges a new
rule, one not dictated by precedent"); id., at . . ., (slip op., at 4)
(SOUTER, J., Concurring in judgment) (Teague "does not mean, of course,
that a habeas petitioner must be able to point to an old case decided on
facts identical to the facts of his own"). |
| [119] | That said, it can be a difficult question whether a particular holding
presents simply a new setting for an old rule, or announces a new one. The
question is not difficult in this case, however, for its answer is
governed by Penry, 492 U.S., at 313, 329, the first case in which a
majority of the Court adopted the approach to retroactivity put forward by
the plurality in Teague. See 492 U.S., at 313. The circumstances in which
petitioner Penry sought relief, and the rule that he sought to have
applied, are virtually indistinguishable from the circumstances presented
and the rule of decision sought by Graham in this case. We denied
certiorari in Penry's direct appeal in 1986. Penry v. Texas, 474 U.S.
1073, 88 L. Ed. 2d 805, 106 S. Ct. 834 (1986). The Texas Court of Criminal
Appeals affirmed Graham's conviction and sentence of death in 1984, Graham
v. State, No. 68,916, and Graham did not seek certiorari in this Court. In
both cases, therefore, under the reasoning employed by the majority, see
ante, at 6, "this Court's decisions in Lockett v. Ohio, 438 U.S. 586, 57
L. Ed. 2d 973, 98 S. Ct. 2954 (1978), and Eddings v. Oklahoma, 455 U.S.
104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), were rendered before
[petitioners'] convictions became final." Penry, 492 U.S., at 314-315.
Because Penry was "entitled to the benefit of those decisions," id. at
315, so, on a comparable claim, is Graham. |
| [120] | Our description of Penry's claim applies, indeed, almost precisely to
Graham's claim in this case. Of Penry, we said: |
| [121] | " does not challenge the facial validity of the Texas death penalty
statute, which was upheld against an Eighth Amendment challenge in Jurek
v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976). Nor does
he dispute that some types of mitigating evidence can be fully considered
by the sentencer in the absence of special jury instructions. See Franklin
v. Lynaugh, 487 U.S. 164, 175, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988)
(plurality opinion); id., at 185-186 (O'CONNOR, J., Concurring in
judgment). Instead, argues that, on the facts of this case, the jury was
unable to fully consider and give effect to the mitigating evidence . . .
in answering the three special issues." Ibid. |
| [122] | In deciding whether he sought benefit of a "new rule," we went on to
say: |
| [123] | " Lockett underscored Jurek 's recognition that the constitutionality
of the Texas scheme 'turns on whether the enumerated questions allow
consideration of particularized mitigating factors.' Jurek, 428 U.S., at
272. The plurality opinion in Lockett indicated that the Texas death
penalty statute had 'survived the petitioner's Eighth and Fourteenth
Amendment attack [in Jurek ] because three Justices concluded that the
Texas Court of Criminal Appeals had broadly interpreted the second
question -- despite its facial narrowness -- so as to permit the sentencer
to consider "whatever mitigating circumstances" the defendant might be
able to show.' 438 U.S., at 607." Id., at 317. |
| [124] | We then reviewed the reaffirmation in Eddings of the principle that "a
sentencer may not be precluded from considering, and may not refuse to
consider, any relevant mitigating evidence offered by the defendant as the
basis for a sentence less than death." Thus, we said, "at the time Penry's
conviction became final," as at the time Graham's did, |
| [125] | "it was clear from Lockett and Eddings that a State could not,
consistent with the Eighth and Fourteenth Amendments, prevent the
sentencer from considering and giving effect to evidence relevant to the
defendant's background or character or to the circumstances of the offense
that mitigate against imposing the death penalty. Moreover, the facial
validity of the Texas death penalty statute had been upheld in Jurek on
the basis of assurances that the special issues would be interpreted
broadly enough to enable sentencing juries to consider all of the relevant
mitigating evidence a defendant might present." Id., at 318. |
| [126] | Graham contends that Jurek, v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929,
96 S. Ct. 2950 (1976), Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98
S. Ct. 2954 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1,
102 S. Ct. 869 (1982), were not honored in the application of the Texas
special issues on the facts of his case, and, in this respect, too, his
position is identical to that of Penry, who argued that "those assurances
[on which Jurek rests] were not fulfilled in his particular case because,
without appropriate instructions, the jury could not fully consider and
give effect to mitigating evidence . . . in rendering its sentencing
decision." 492 U.S., at 318. (emphasis in original). In Penry, we held
that nothing foreclosed such a claim: |
| [127] | "The rule Penry seeks -- that when such mitigating evidence is
presented, Texas juries must, upon request, be given jury instructions
that make it possible for them to give effect to that mitigating evidence
in determining whether the death penalty should be imposed -- is not a
'new rule' under Teague because it is dictated by Eddings and Lockett.
Moreover, in light of the assurances upon which Jurek was based, we
conclude that the relief Penry seeks does not 'impose a new obligation' on
the State of Texas. Teague, 489 U.S., at 301." Id., at
318-319. |
| [128] | Thus in Penry we held that petitioner sought nothing but the
application to his case of the rule announced in Eddings and Lockett, that
"a State could not, consistent with the Eighth and Fourteenth Amendments,
prevent the sentencer from considering and giving effect to evidence
relevant to the defendant's background or character or to the
circumstances of the offense that mitigate against imposing the death
penalty." 492 U.S., at 318. |
| [129] | The first distinction between Penry's claim and that of Graham is the
type of mitigating evidence involved. Penry's went to "mental retardation
and abused childhood"; Graham's involves youthfulness, unfortunate
background, and traits of decent character. But any assertion that this
should make any difference flies in the face of JUSTICE KENNEDY's opinion
from last Term, quoted before, that "a rule of this general application, a
rule designed for the specific purpose of evaluating a myriad of factual
contexts [will only infrequently] yield a result so novel that it forges a
new rule, one not dictated by precedent." Wright v. West, 505 U.S., at . .
. (slip op., at 4) (KENNEDY, J., Concurring in judgment). Nor is the
second distinction any more material, that Penry's evidence of retardation
could claim no mitigating effect under the second Texas issue, which asks
the jury to assess a defendant's future dangerousness, whereas Graham's
evidence of youth and decency could claim some.2 The point under Lockett,
Eddings, and Penry is that sentencing schemes must allow the sentencer to
give full mitigating effect to evidence; Graham's claim that his evidence
could receive only partial consideration is just as much a claim for
application of the pre-existing rule demanding the opportunity for full
effect as was Penry's claim that his retardation could be given no effect
under the second Texas special issue. |
| [130] | Thus, from our Conclusion that the rule from which the petitioner
sought to benefit in Penry was not "new," it necessarily follows that the
rule petitioner Graham seeks here is not new either. Indeed, that is the
Conclusion reached even by respondent who concedes that "if Graham is
asserting the existence of a constitutional defect that can be cured by
supplemental instructions, his claim likewise is not barred." Brief for
Respondent 29, n. 10.3 |
| [131] | The Court's Conclusion to the contrary rests on the assumption that an
additional instruction is required under Penry only where there is
mitigating evidence without any "mitigating relevance" to the second,
future dangerousness special issue. See ante, at 14. But that was not the
holding of Penry, which reiterates the Eighth Amendment requirement
expressed in Lockett and Eddings that the jury be able "to consider fully
[the defendant's] mitigating evidence," Penry, 492 U.S., at 323, and
requires a separate instruction whenever such evidence "has relevance to .
. . moral culpability beyond the scope of the special issues." Id., at
322. Indeed, JUSTICE SCALIA's Dissent in Penry recognized that "what the
Court means by 'fully consider' (what it must mean to distinguish Jurek)
is to consider for all purposes, including purposes not specifically
permitted by the questions." 492 U.S., at 355 (opinion Dissenting in
relevant part) (emphasis in original). That Dissent argued that this was
not what was required by the Constitution, see id., at 358-360,4 but it
correctly described the holding in the Court's opinion in Penry itself.
Nothing in Penry aside from JUSTICE SCALIA's Dissent, and nothing in the
controlling opinions in Lockett or Eddings, suggested that this Eighth
Amendment requirement will be obviated by the happenstance that a
defendant's particular mitigating evidence is relevant to one of the
special issues, even though it may have mitigating force beyond the scope
of that issue. |
| [132] | Penry plainly answered the Teague question that the majority answers
differently today, a question that even respondent did not see fit to
raise again. Penry controls in this respect, and we should adhere to
it. |
| [133] | II |
| [134] | I therefore turn to the merits of the claim, *fn5 which are properly before us. *fn6 Penry again controls, for reasons already
anticipated in the Teague analysis, but bearing some expansion
here. |
| [135] | A |
| [136] | Following the first grant of certiorari in this case, after we vacated
the judgment and remanded for reconsideration in light of Penry, see
Graham v. Lynaugh, 492 U.S. 915, 106 L. Ed. 2d 585, 109 S. Ct. 3237
(1989), a panel of the Court of Appeals for the Fifth Circuit decided to
vacate Graham's death sentence and remand. Graham v. Collins, 896 F.2d 893
(1990). The Court of Appeals then took the case en banc, however, and, by
a vote of 7 to 6, construed Penry to require no additional instruction "in
instances where no major mitigating thrust of the evidence is
substantially beyond the scope of all the special issues." 950 F.2d 1009,
1027 (CA5 1992) (en banc). It also limited the application of Penry to
mitigating evidence of circumstances that were not "transitory," but were
"uniquely severe permanent handicaps with which the defendant was burdened
through no fault of his own." See id., at 1029. Penry lends no support for
these limitations, however, and they are plainly at odds with other
controlling Eighth Amendment precedents, which the Court does not purport
to disturb. |
| [137] | B |
| [138] | Our cases have construed the Eighth Amendment to impose two
limitations upon a state capital sentencing system. First, in determining
who is eligible for the death penalty, the "State must 'narrow the class
of murderers subject to capital punishment,' . . . by providing 'specific
and detailed guidance' to the sentencer." McCleskey v. Kemp, 481 U.S. 279,
303, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987) (quoting Gregg v. Georgia,
428 U.S. 153, 196, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), and Proffitt
v. Florida, 428 U.S. 242, 253, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976)).
Second, "the Constitution limits a State's ability to narrow a sentencer's
discretion to consider relevant evidence that might cause it to decline to
impose the death sentence." 481 U.S., at 304 (emphasis in original). It is
this latter limitation that concerns us today. |
| [139] | Our cases require that a sentencer in a capital case be permitted to
give a "reasoned moral response" to the defendant's mitigating evidence.
See California v. Brown, 479 U.S. 538, 545, 93 L. Ed. 2d 934, 107 S. Ct.
837 (1987) (O'CONNOR, J., Concurring) (emphasis deleted). In so doing,
"the sentencer . . . be precluded from considering as a mitigating factor,
any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a
sentence less than death." Lockett , 438 U.S., at 604 (plurality opinion)
(emphasis in original; footnote omitted). This is understood to follow
from our Conclusion that "any exclusion of the 'compassionate or
mitigating factors stemming from the diverse frailties of humankind' that
are relevant to the sentencer's decision would fail to treat all persons
as 'uniquely individual human beings.'" McCleskey, (supra) , at 304
(quoting Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944,
96 S. Ct. 2978 (1976)). |
| [140] | As we first described it in Jurek, the Texas scheme to be measured
against this obligation assesses mitigating (as well as aggravating)
evidence by looking both backward to the defendant's moral culpability for
the crime itself, as distinct from strictly legal guilt, and forward to
his likely behavior if his life is not taken. Thus the first issue
requires the sentencer to determine whether the defendant acted
deliberately, and the third asks for assessment of any provocation as
mitigating the fault of any response. Each issue demands an examination of
past fact as bearing on the moral significance of a past act. The second
issue, on the other hand, calls for a prediction of future behavior,
prompting a judgment that is moral in the utilitarian sense that society
may legitimately prefer to preserve the lives of murderers unlikely to
endanger others in the future, as against the lives of the guilty who pose
continuing threats. |
| [141] | While these issues do not exhaust the categories of mitigating fact,
*fn7 at the time Jurek was decided the
Court of Criminal Appeals of Texas had indicated that the second special
issue would be given a wide enough compass to allow jury consideration of
such diverse facts as prior record and the character of past crimes,
duress, or emotional pressure associated with the instant crime, and the
age of the defendant. Jurek, 428 U.S., at 272-273. Thus, we had a
reasonable expectation that the sentencer would have authority to give
comprehensive effect to each defendant's mitigating evidence. As Penry
revealed, however, and as the facts of this case confirm, neither the
second nor the other special issues have been construed with enough scope
to allow the full consideration of mitigating potential that Lockett and
Eddings confirmed are required, and challenges to the Texas statute as
applied may be sustained despite the statute's capacity to withstand Jurek
's facial challenge. In its holding that a death sentence resulting from
the application of the Texas special issues could not be upheld unless the
jury was able "to consider fully [the defendant's] mitigating evidence,"
492 U.S., at 323, *fn8 Penry is a
perfectly straightforward application of the Eighth Amendment's
requirement of individualized sentencing. *fn9 |
| [142] | The specific question in Penry itself was whether the mitigating
evidence of Penry's mental retardation and history of abuse "as it bears
on [Penry's] personal culpability" could be taken account of under the
Texas special issues, ibid., and in deciding that case, we examined each
special issue in turn. We concluded first that the jury instruction barred
full consideration of the evidence of retardation and personal abuse under
the first, or "deliberateness," special issue, see ibid., and second that
insofar as the evidence bore on personal culpability, it could not be
given mitigating effect under the issue of "future dangerousness." As to
the latter, indeed, it could have been considered only as an aggravating
factor. Although we described Penry's evidence as a "two-edged sword . . .
diminishing his blameworthiness for his crime even as it indicates that
there is a probability that he will be dangerous in the future," id., at
324, the dilemma thus presented was not essential to our Conclusion that
the second special issue failed to meet the State's constitutional
obligations. The point was simply that the special issue did not allow the
jury to give effect to the mitigating force of Penry's evidence as it bore
on his personal culpability. Finally we concluded that "a juror who
believed Penry lacked the moral culpability to be sentenced to death could
not express that view in answering the third ["provocation"] special issue
if she also concluded that Penry's action was not a reasonable response to
provocation." Id., at 324-325. In sum, full consideration of the tendency
of retardation and a history of abuse to mitigate moral culpability was
impossible. |
| [143] | C |
| [144] | Graham's evidence falls into three distinct categories. As to each,
our task is to take the same analytical steps we undertook in Penry, to
see whether the sentencing jury could give it full mitigating
effect. |
| [145] | 1 |
| [146] | First, there was the evidence of Graham's youth. He was 17 when he
committed the murder for which he was convicted, and he was sentenced less
than six months after the crime. Youth may be understood to mitigate by
reducing a defendant's moral culpability for the crime, for which
emotional and cognitive immaturity and inexperience with life render him
less responsible, see Eddings v. Oklahoma, 455 U.S., at 115-116, and
youthfulness may also be seen as mitigating just because it is transitory,
indicating that the defendant is less likely to be dangerous in the
future. |
| [147] | As with Penry's evidence of mental retardation, the mitigating force
of Graham's youth could not be fully accounted for under the first,
"deliberateness" issue, given the trial Judge's explanation of that issue
to the jury. While no formal jury instruction explained what "deliberate"
meant, the Judge emphasized at voir dire that "deliberate" meant simply
"intentional," see App. 90, 127, 169, 205-206, 246, 291, 319-320, 353,
420, a definition that hardly allowed exhaustion of the mitigating force
of youth. A young person may perfectly well commit a crime
"intentionally," but our prior cases hold that his youth may nonetheless
be treated as limiting his moral culpability because he "'lacks the
experience, perspective, and judgment,' expected of adults." Eddings,
supra, at 116 (quoting Bellotti v. Baird, 443 U.S. 622, 635, 61 L. Ed. 2d
797, 99 S. Ct. 3035 (1979)). |
| [148] | We have already noted that the Court of Appeals answered this
difficulty by reasoning that the "major mitigating thrust" of the evidence
could be given effect under the second special issue calling for
assessment of future dangerousness. The errors of this view we have also
seen. First, nothing in Penry suggests that partial consideration of the
mitigating effect of the evidence satisfies the Constitution. Penry, like
Eddings and the Lockett plurality before that, states an Eighth Amendment
demand that the sentencer "consider and give effect to . . . mitigating
evidence" "fully," 492 U.S., at 318, and when such evidence "has relevance
to . . . moral culpability beyond the scope of the special issues,"
constitutional standards require a separate instruction authorizing that
complete effect be given. Id., at 322. See McCleskey, 481 U.S., at 304
("Any exclusion" of mitigating evidence is inconsistent with the Eighth
Amendment's individualized sentencing requirements). Thus, even if the
future dangerousness issue allowed the jury to recognize Graham's
evanescent youth as tending to mitigate any danger if he were imprisoned
for life, it would still fail the test of the Eighth Amendment because the
jury could not give effect to youth as reducing Graham's moral
culpability. *fn10 The Eighth
Amendment requires more than some consideration of mitigating
evidence. |
| [149] | The Court of Appeals also erred in thinking the second special issue
adequate even to take account of the possibility that Graham may be less
dangerous as he ages. The issue is stated in terms of the statutory
question "whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to
society." Tex. Code Crim. Proc. Ann., Art. 37.071 (b)(2) (Vernon 1981).
Because a boy who killed at 17 and was promptly tried (as Graham was)
could well be held dangerous in the future by reason of continuing youth,
it was error to limit Penry to cases in which a mitigating condition is
permanent. See 950 F.2d at 1029. It is no answer to say youth is fleeting;
it may not be fleeting enough, and a sufficiently young defendant may have
his continuing youth considered under the second issue as aggravating, not
mitigating. In this case, moreover, the possibility of taking youth as
aggravating without any recognition of mitigating effect was vastly
intensified by remarks of the trial Judge permitting a finding of future
dangerousness based even on the probability that petitioner might commit
minor acts of criminal vandalism to property such as scratching someone's
car or tearing up the lawn of a high school by riding a motorcycle over
it. See App. 128-129, 172, 210, 247-248, 295, 321-322, 354-355, 389-390,
422, 455. |
| [150] | Finally, because Graham was convicted of |