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SUPREME COURT OF THE UNITED STATES
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No. 91-7580
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1993.SCT.40616 <http://www.versuslaw.com>; 113 S. Ct. 892, 122
L. Ed. 2d 260, 61 U.S.L.W. 4127
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decided: January 25, 1993.
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GARY GRAHAM, PETITIONER
v.
JAMES A. COLLINS, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
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ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT.
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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.
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Author: White
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JUSTICE WHITE delivered the opinion of the Court.
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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.
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I
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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).
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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."
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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.
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In accord with the capital-sentencing statute then in effect,*fn1 Graham's jury was instructed that it was to
answer three "special issues":
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"(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;
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(2) whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to
society; and
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(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).
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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.
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In 1987, Graham unsuccessfully sought post-conviction relief in the
Texas state courts. The following year, Graham petitioned for a writ of
habeas corpus in Federal District Court pursuant to 28 U.S.C. § 2254,
contending, inter alia, that his sentencing jury had been unable to give
effect to his mitigating evidence within the confines of the statutory
"special issues." The District Court denied relief and the Court of
Appeals for the Fifth Circuit denied Graham's petition for a certificate
of probable cause to appeal. Graham v. Lynaugh, 854 F.2d 715 (1988). The Court of Appeals found Graham's claim to be
foreclosed by our recent decision in Franklin v. Lynaugh, 487
U.S. 164, 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.
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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).
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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.
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We granted certiorari, 504 U.S. . . . (1992), and now
affirm.
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II
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A
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Because this case is before us on Graham's petition for a writ of
federal habeas corpus, "we must determine, as a threshold matter, whether
granting him the relief he seeks would create a 'new rule'" of
constitutional law. Penry v. 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).
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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.
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B
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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.
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1
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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.).
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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.
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The opinion then recognized that the Texas Court of Criminal Appeals
had held:
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"'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.
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Based on this assurance, the opinion characterized the Texas
sentencing procedure as follows:
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"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.
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"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.
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The opinion's ultimate conclusion was
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"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.
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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).
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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 [sentencing] decision is
essential in capital cases," the plurality concluded:
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"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.
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Obviously, the plurality did not believe the Texas statute suffered
this infirmity.
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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.
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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.
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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
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"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).
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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.
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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.
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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:
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"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.
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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).
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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
[three] questions, lead you to believe that the death penalty should not
be imposed?'" The Franklin plurality rejected precisely this contention,
finding it irreconcilable with the 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.
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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.
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2
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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.
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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.
|
| [58] |
The judgment of the Court of Appeals is therefore
|
| [59] |
Affirmed.
|
| [60] |
Disposition
|
| [61] |
950 F.2d 1009, affirmed.
|
| [62] |
JUSTICE THOMAS, concurring.
|
| [63] |
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.
|
| [64] |
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.
|
| [65] |
I
|
| [66] |
A
|
| [67] |
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 [was] disproportionately imposed and carried out on
the poor, the Negro, and the members of unpopular groups," especially in
cases of rape, id., at 249-250 (internal quotation marks omitted), Justice
Douglas concluded that
|
| [68] |
"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.
|
| [69] |
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).
|
| [70] |
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
|
| [71] |
In mustering every conceivable argument -- "ethical, legal, polemical,
theological, speculative, [and] statistical" -- for abolishing capital
punishment, id., at 59, the Fund lawyers and other civil rights advocates
supplied the empirical and rhetorical support for the observations of
Justices Douglas, Marshall, and Stewart with respect to race bias. See
Brief for Petitioner in Aikens v. California, O. T. 1971, No. 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
|
| [72] |
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, [to] refuse to impose
the death penalty no matter what the circumstances of the crime." Id., at
313, 314 (WHITE, J., concurring).
|
| [73] |
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.
|
| [74] |
B
|
| [75] |
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 [will] 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
[will] focus on the particularized circumstances of the crime and the
defendant." Gregg, 428 U.S., at 199. The jury should
be "given guidance regarding the factors about the crime and the defendant
that the State, representing organized society, deems particularly
relevant to the sentencing decision." Id., at 192. "Otherwise, the system
cannot function in a consistent and a rational manner." Id., at 189
(internal quotation marks omitted).
|
| [76] |
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.
|
| [77] |
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.
|
| [78] |
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.
|
| [79] |
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 [jury] 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.
|
| [80] |
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).
|
| [81] |
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).
|
| [82] |
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)").
|
| [83] |
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.
|
| [84] |
I realize, of course, that Eddings is susceptible to more expansive
interpretations. See, e. g., Walton, 497 U.S., at 661, 667 (SCALIA, J., concurring in part and concurring in
judgment) (Eddings rule "has completely exploded whatever coherence the
notion of 'guided discretion' once had" by making "random mitigation" a
constitutional requirement); McCleskey v. Kemp, 481 U.S., at 306 ("States cannot limit the sentencer's consideration of any
relevant circumstance that could cause it to decline to impose the [death]
penalty. In this respect, the State cannot channel the sentencer's
discretion, but must allow it to consider any relevant information offered
by the defendant"). And even under the narrow reading of Eddings, there is
still a tension in our case law, because Eddings implies something of an
outer boundary to the primary Furman principle: the sentencing standards
chosen by the State may not be so stingy as to prevent altogether the
consideration of constitutionally relevant mitigating
evidence.
|
| [85] |
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).
|
| [86] |
This understanding preserves our original rationale for upholding the
Texas sentencing statute -- that it "guides and focuses the jury's
objective consideration of the particularized circumstances" while
allowing the defendant "to bring to the jury's attention whatever
[relevant] mitigating circumstances he may be able to show." Jurek, 428 U.S., at 272, 274. Thus, in reaffirming the
constitutionality of Texas'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).
|
| [87] |
II
|
| [88] |
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.
|
| [89] |
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).
|
| [90] |
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).
|
| [91] |
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").
|
| [92] |
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 [also] is the power to discriminate.'" McCleskey v. Kemp, supra,
at 312 (quoting K. Davis, Discretionary Justice 170 (1973)). See also
Roberts, 428 U.S., at 346 (WHITE, J., dissenting)
("It is undeniable that the unfettered discretion of the jury to save the
defendant from death was a major contributing factor in the developments
which led us to invalidate the death penalty in Furman v. Georgia ").*fn9
|
| [93] |
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
[to] 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
non-arbitrary").
|
| [94] |
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
|
| [95] |
III
|
| [96] |
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.).
|
| [97] |
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.
|
| [98] |
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).
|
| [99] |
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.
|
| [100] |
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.
|
| [101] |
For all these reasons, I would not disturb the effectiveness of
Texas's former system.
|
| [102] |
JUSTICE STEVENS, dissenting.
|
| [103] |
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.
|
| [104] |
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).
|
| [105] |
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
|
| [106] |
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.
|
| [107] |
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.
|
| [108] |
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.
|
| [109] |
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.
|
| [110] |
JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JUSTICE STEVENS, and
JUSTICE O'CONNOR join, dissenting.
|
| [111] |
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[a] 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.
|
| [112] |
I
|
| [113] |
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 [could]
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).
|
| [114] |
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").
|
| [115] |
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.
|
| [116] |
Our description of Penry's claim applies, indeed, almost precisely to
Graham's claim in this case. Of Penry, we said:
|
| [117] |
"[He] does not challenge the facial validity of the Texas death
penalty statute, which was upheld against an Eighth Amendment challenge in
Jurek v. Texas, 428 U.S. 262, 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,
[he] argues that, on the facts of this case, the jury was unable to fully
consider and give effect to the mitigating evidence . . . in answering the
three special issues." Ibid.
|
| [118] |
In deciding whether he sought benefit of a "new rule," we went on to
say:
|
| [119] |
" 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.
|
| [120] |
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,
|
| [121] |
"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.
|
| [122] |
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 [his] mitigating evidence . . . in rendering its sentencing
decision." 492 U.S., at 318. (emphasis in original).
In Penry, we held that nothing foreclosed such a claim:
|
| [123] |
"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.
|
| [124] |
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.
|
| [125] |
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[a] 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.
|
| [126] |
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[a]
|
| [127] |
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[a] 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.
|
| [128] |
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.
|
| [129] |
II
|
| [130] |
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.
|
| [131] |
A
|
| [132] |
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.
|
| [133] |
B
|
| [134] |
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 [nonetheless] limits a State's ability to narrow a
sentencer's discretion to consider relevant evidence that might cause it
to decline to impose the death sentence." 481 U.S., at 304 (emphasis in original). It is this latter limitation that
concerns us today.
|
| [135] |
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 . . . [cannot] be precluded from considering as a mitigating
factor, any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a
sentence less than death." Lockett , 438 U.S., at 604
(plurality opinion) (emphasis in original; footnote omitted). This is
understood to follow from our conclusion that "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)).
|
| [136] |
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.
|
| [137] |
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
|
| [138] |
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.
|
| [139] |
C
|
| [140] |
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.
|
| [141] |
1
|
| [142] |
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.
|
| [143] |
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)).
|
| [144] |
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.
|
| [145] |
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.
|
| [146] |
Finally, because Graham was convicted of shooting and killing a man
during a robbery, the situation with respect to the third special issue in
this case is the same as it was for petitioner in Penry. The evidence of
youth was irrelevant to the reasonableness of any provocation by the
deceased of which there was no evidence in any event.
|
| [147] |
A juror could thus have concluded that the responses to the special
issues required imposition of the death penalty even though he believed
that Graham, by reason of his youth, "lacked the moral culpability to be
sentenced to death." Penry, 492 U.S., at 324. Without
more, the case is controlled by Penry, and additional instruction was
required.
|
| [148] |
2
|
| [149] |
The next category of evidence at issue is that of Graham's difficult
upbringing, of his mother's mental illness and repeated hospitalization,
and his shifting custody to one family relation or another. We have
specifically held that such circumstances may be considered in mitigation,
particularly on the conduct of a defendant so young, see, e. g., Eddings, 455 U.S., at 115, where upbringing might be deforming
enough to affect the capacity for culpability. Where, as here, however,
that is not obviously the case, and deliberateness is said to turn on
intention, there is no assurance that the first issue allows the full
scope of its mitigating effect to be considered. As with youth itself,
upbringing could be treated as aggravating under the future dangerousness
issue, and it has no mitigating potential under the third issue of
provocation. Again, as with youth, there is no room in the former Texas
special issues as applied in this case to take full account of such
mitigating relevance as the jury might find.
|
| [150] |
3
|
| [151] |
Finally, Graham argues that the jury was unable to take account of
redeeming character traits revealed by evidence that growing up he had
voluntarily helped his parents and grandparents with household chores,
that he was a religious person who had attended church regularly with his
grandmother, and that he had contributed to the support of his own
children with money earned from a job with his father.
|
| [152] |
I do not accept petitioner's contention that the jury could not give
adequate consideration to the testimony on these matters. Insofar as the
evidence tended to paint Graham as a person unlikely to pose a future
danger, the jury could consider it under the second special issue. Insofar
as the jury was unable, as Graham alleges, to give the evidence further
effect to diminish Graham's "moral culpability," Brief for Petitioner 36,
37, 39, it is enough to say that the relevance of the evidence to moral
culpability was simply de minimis. Voluntary chores for and church
attendance with a relative, and supplying some level of support for one's
children have virtually no bearing on one's culpability for crime in the
way that immaturity or permanent damage due to events in childhood may.
Because I do not understand petitioner to be arguing that the jury should
have been allowed to consider the evidence as revealing some element of
value unrelated to the circumstances of the crime, see Franklin, 487 U.S., at 186 (O'CONNOR, J., concurring in
judgment); id., at 189 (STEVENS, J., dissenting), I do not address that
issue.
|
| [153] |
III
|
| [154] |
I would hold that Penry and preceding Eighth Amendment cases of this
Court require petitioner's death sentence to be vacated, and would remand
the case for resentencing by the state courts.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [155] |
*fn1 The Texas Legislature amended the statute
in 1991. Those changes are set forth in the opinion of the Court of
Appeals. 950 F.2d 1009, 1012, n. 1 (CA5 1992) (en
banc).
|
| [156] |
*fn2 Penry further held that its result was
dictated by the Court's prior decisions in Eddings v. Oklahoma,
455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982), and Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (plurality opinion), within the
sense required by Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), and thus that its rule applied to cases on
collateral review. See Penry, 492 U.S., at
314-319.
|
| [157] |
*fn3 To the contrary, the Court made clear in
that case the limited nature of the question presented: "Penry does not
challenge the facial validity of the Texas death penalty statute, which
was upheld against an Eighth Amendment challenge in Jurek v. Texas, 428 U.S. 262, 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,
Penry argues that, on the facts of this case, the jury was unable to fully
consider and give effect to the mitigating evidence of his mental
retardation and abused background in answering the three special issues." 492 U.S., at 315.
|
| |
|
| |
Concurrence Footnotes
|
| |
|
| [158] |
*fn1 The Court decided two cases together with
Furman v. Georgia, 408 U.S. 238, 33 L. Ed.
2d 346, 92 S. Ct. 2726 (1972): Jackson v.
Georgia, No. 69-5030, and Branch v. Texas, No. 69-5031. A fourth case,
Aikens v. California, No. 68-5027, was argued with Furman but was
dismissed as moot. 406 U.S. 813, 92 S. Ct.
1931, 32 L. Ed. 2d 511
(1972).
|
| [159] |
*fn2 Furman was surprised to discover the victim
at home and, while trying to escape, accidentally tripped over a wire,
causing his pistol to fire a single shot through a closed door, thereby
killing the victim. See 408 U.S., at 294-295, n. 48
(Brennan, J., concurring).
|
| [160] |
*fn3 According to the published account of one
Legal Defense Fund lawyer who participated in the campaign, the Fund --
though it had had experience with racial discrimination in rape cases in
the South -- did not seriously consider a broader offensive against the
death penalty until three Members of this Court, in an opinion dissenting
from a denial of certiorari, offered a "strong foundation" for such a
strategy. Meltsner 27-35. See Rudolph v. Alabama, 375 U.S. 889, 11 L. Ed. 2d 119, 84 S. Ct.
155 (1963) (Goldberg, J., joined by Douglas and Brennan, JJ.,
dissenting) (calling on the Court to decide "whether the Eighth and
Fourteenth Amendments . . . permit the imposition of the death penalty on
a convicted rapist who has neither taken nor endangered human life" and
suggesting several lines of argument in the form of questions that "seem
relevant and worthy of . . . consideration").
|
| [161] |
*fn4 See also Meltsner 25: "Lawyers attempting
to thrust egalitarian or humanitarian reforms on a reluctant society
prefer to use the courts because lifetime-appointed federal judges are
somewhat more insulated from the ebb and flow of political power and
public opinion than legislators or executives."
|
| [162] |
*fn5 The Federal Government later acknowledged
before this Court that in 11 Southern States between 1945 and 1965, "the
data revealed that among all those convicted of rape, blacks were selected
disproportionately for the death sentence." App. to Brief for United
States as Amicus Curiae in Gregg v. Georgia, O. T. 1975, No. 74-6257, p.
4a. Furthermore, the Government stated, "we do not question [the]
conclusion that during the 20 years in question, in southern states, there
was discrimination in rape cases." Id., at 5a. We eventually struck down
the death penalty for convicted rapists under the Eighth Amendment, not on
the basis of discriminatory application, but as an excessive and
disproportionate punishment. Coker v. Georgia, 433 U.S. 584, 53 L. Ed. 2d 982, 97 S. Ct.
2861 (1977).
|
| [163] |
*fn6 Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct.
2909 (1976); Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct.
2960 (1976); Jurek v. Texas, 428 U.S. 262,
49 L. Ed. 2d 929, 96 S. Ct. 2950
(1976); Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978
(1976); Roberts v. Louisiana, 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001
(1976).
|
| [164] |
*fn7 As in Furman, the NAACP Legal Defense Fund
represented the three petitioners in Woodson and Roberts, who were black.
In addition to contending that the death penalty was a cruel and unusual
punishment, the Fund lawyers argued in these cases that despite the
mandatory nature of North Carolina's and Louisiana's statutes, the process
of imposing the penalty on these petitioners was infected at key junctures
with the potential for selective and discriminatory discretion, most
importantly the possibility that sentencing juries in cases involving
sympathetic defendants would acquit or convict on lesser charges. See
Brief for Petitioners in Woodson v. North Carolina, O. T. 1975, No.
75-5491, pp. 22-39; Brief for Petitioner in Roberts v. Louisiana, O. T.
1975, No. 75-5844, pp. 30-65. The unsuccessful petitioners in Gregg,
Proffitt, and Jurek were white. See Brief for United States as Amicus
Curiae in Gregg v. Georgia, O. T. 1975, No. 74-6257, p. 68.
|
| [165] |
*fn8 Lockett aided and abetted an armed robbery
that resulted in a murder. She drove the getaway car but did not carry out
the robbery and did not intend to bring about the murder. See
438 U.S., at 589-591; id., at 613-617 (BLACKMUN, J.,
concurring in part and concurring in judgment). Lockett was represented by
the same lawyers from the Legal Defense Fund who had represented the
petitioners in Furman, Woodson, and Roberts.
|
| [166] |
*fn9 The Texas special issues involved here did
a considerably better job of rationalizing sentencing discretion than even
the elaborate Georgia system approved in Gregg, where juries still
retained power "to return a sentence of life, rather than death, for no
reason whatever, simply based upon their own subjective notions of what is
right and what is wrong." Woodson, 428 U.S., at 314-315 (REHNQUIST, J., dissenting). As a regrettable but
predictable consequence of Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S.
Ct. 2934 (1989), the Texas Legislature has since amended its
sentencing statute, which now invites the jury to react subjectively to
"all" circumstances, including "the personal moral culpability of the
defendant." See 3A Tex. Code Crim. Proc. Ann., Art. 37.071(e) (Vernon
Supp. 1993) (applicable to offenses committed on or after September 1,
1991).
|
| [167] |
*fn10 Indeed, it can be argued that we have
already implicitly overruled Penry in significant respects. In Saffle v.
Parks, 494 U.S. 484, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990), we gave a
dramatically narrow reading to Penry, reaffirming that under Lockett and
Eddings v. Oklahoma, 455 U.S. 104, 71 L.
Ed. 2d 1, 102 S. Ct. 869 (1982), the State
is free to "limit the manner in which [a defendant's] mitigating evidence
may be considered." 494 U.S., at 491. And in Boyde v.
California, 494 U.S. 370, 108 L. Ed. 2d
316, 110 S. Ct. 1190 (1990), we expressly
rejected the significance of Penry 's conclusion that "'a reasonable juror
could well have believed that there was no vehicle for expressing the view
that Penry did not deserve to be sentenced to death based upon his
mitigating evidence.'" Id., at 379 (emphasis in original) (quoting Penry,
supra, at 326). Boyde held instead that a jury instruction will run afoul
of Eddings only if "there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence," and the Court made
it clear that "a capital sentencing proceeding is not inconsistent with
the Eighth Amendment if there is only a possibility of such an
inhibition." 494 U.S., at 380.
|
| [168] |
*fn11 Under the Federal Sentencing Reform Act,
for example, Congress has instructed the United States Sentencing
Commission to study the difficult question whether certain specified
offender characteristics "have any relevance" in sentencing. 28 U.S.C. §
994(d). In response to this directive, the Sentencing Commission has
issued guidelines providing, among other things, that race, sex, national
origin, creed, religion, and socio-economic status "are not relevant in
the determination of a sentence." United States Sentencing Commission,
Guidelines Manual § 5H1.10 (Nov. 1992). Congress has also concluded that a
defendant's education, vocational skills, employment record, and family
and community ties are inappropriate sentencing factors. 28 U.S.C. §
994(e). Thus, the Sentencing Guidelines declare that these and other
factors "are not ordinarily relevant in determining whether a sentence
should be outside the applicable guideline range." See USSG ch. 5, pt. H,
intro. comment. Similar guidelines, it seems to me, could be applied in
capital sentencing consistent with the Eighth Amendment, as long as they
contributed to the rationalization of the process.
|
| |
|
| |
Dissent Footnotes
|
| |
|
| [169] |
*fn1 See Harmelin v. Michigan, 501 U.S. . . ., 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991).
|
| [170] |
*fn2 As an indication of the difference such
narrowing can make, it is worthwhile to note that at the time we decided
Furman v. Georgia, 408 U.S. 238, 33 L. Ed.
2d 346, 92 S. Ct. 2726 (1972), in addition
to defendants convicted of first-degree murder, almost all defendants
convicted of forcible rape, armed robbery, and kidnaping were eligible for
the death penalty. See Walton v. Arizona, 497 U.S. 639, 715, 111 L. Ed. 2d 511, 110
S. Ct. 3047 (STEVENS, J., dissenting).
|
| [171] |
*fn3 "The Court's decision appears to be based
on a fear that the acceptance of McCleskey's claim would sound the death
knell for capital punishment in Georgia. If society were indeed forced to
choose between a racially discriminatory death penalty (one that provides
heightened protection against murder 'for whites only') and no death
penalty at all, the choice mandated by the Constitution would be plain.
But the Court's fear is unfounded. One of the lessons of the Baldus study
is that there exist certain categories of extremely serious crimes for
which prosecutors consistently seek, and juries consistently impose, the
death penalty without regard to the race of the victim or the race of the
offender. If Georgia were to narrow the class of death-eligible defendants
to those categories, the danger of arbitrary and discriminatory imposition
of the death penalty would be significantly decreased, if not eradicated.
As JUSTICE BRENNAN has demonstrated in his dissenting opinion, such a
restructuring of the sentencing scheme is surely not too high a price to
pay." McCleskey v. Kemp, 481 U.S. 279, 367, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987) (STEVENS, J., dissenting) (internal citation
omitted).
|
| [172] |
*fn4 See Brief for Petitioner in Lockett v.
Ohio, O. T. 1977, No. 76-6997, p. 10.
1[a] After Texas' capital punishment statute was invalidated in Branch
v. Texas, one of the cases decided with Furman v. Georgia, 408
U.S. 238, 33 L. Ed. 2d 346, 92
S. Ct. 2726 (1972), Texas enacted a new capital sentencing
statute. This statute, under which petitioner Gary Graham was sentenced,
provides that: "(b) On conclusion of the presentation of the evidence [at
the sentencing phase of a capital murder trial], the court shall submit
the following issues to the jury: "(1) whether the conduct of the
defendant that caused the death of the deceased was committed deliberately
and with the reasonable expectation that the death of the deceased or
another would result; "(2) whether there is a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society; and "(3) if raised by the evidence, whether
the conduct by the defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deceased. . . . .. "(e) If the
jury returns an affirmative finding on each issue submitted under this
article, the court shall sentence the defendant to death." Tex. Code Crim.
Proc. Ann. Art. 37.071 (Vernon 1981). Following our decision in Penry,
Texas adopted a new capital sentencing procedure which is not at issue
here. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1992).
2[a] This distinction does not even apply to Graham's claim that the
sentencing jury could not give full mitigating effect to the evidence of
his unfortunate background. Of course, in this regard, despite their
mitigating force, Penry's evidence of an abused childhood and Graham's
evidence of an unfortunate background both have the same tendency to
support only an affirmative answer to the future dangerousness special
issue. The Court does not explain why, under its reasoning, Graham's claim
concerning evidence of his background is barred by Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334,
109 S. Ct. 1060 (1989) (plurality opinion). See ante
at 14 (undifferentiated references to all of "Graham's evidence"). 3[a]
Respondent's only argument concerning the application of Teague is that
petitioner's claim is Teague -barred if "his claim is so extensive as to
constitute a facial challenge to the Texas statute." Brief for Respondent
13. In other words, "if sustaining Graham's claim would necessarily
require that Jurek be overruled, it is barred by Teague." Id., at 29, n.
10. However, petitioner does not ask that Jurek v. Texas, 428
U.S. 262, 49 L. Ed. 2d 929, 96
S. Ct. 2950 (1976), be overruled. Indeed, he concedes that the
Texas statute has been applied constitutionally in those cases such as
Franklin v. Lynaugh, 487 U.S. 164, 101 L.
Ed. 2d 155, 108 S. Ct. 2320 (1988), in
which the mitigating evidence can be given "full" mitigating weight under
the special issues. See Brief for Petitioner 15 and n. 12. Thus,
respondent's Teague argument has no application to this case. 4[a] See
also Penry, 492 U.S., at 356 (SCALIA, J., dissenting
in part) (arguing, contrary to the holding of the Court, that after Jurek
"there remains available, in an as-applied challenge to the Texas
statute," only "the contention that a particular mitigating circumstance
is in fact irrelevant to any of the three questions it poses, and hence
could not be considered").
|
| [173] |
*fn5 The full Court may do the same in
responding to several pending petitions for certiorari presenting the same
question involved in this case, but on direct review. See, e. g., Johnson
v. Texas, (cert. pending) No. 92-5653; Jackson v. Texas, (cert. pending);
No. 91-7399; Boggess v. Texas, (cert. pending) No. 91-5862.
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| [174] |
*fn6 At trial petitioner did not seek the
additional Penry instruction that he now says is required. Whether the
failure to request such an instruction is a bar to a subsequent challenge
is a question of state procedure; if the conviction were affirmed by the
state appellate courts on the ground that petitioner failed to raise his
claim before the trial court, that affirmance could rest on an independent
and adequate state-law ground. Here, the Texas Court of Criminal Appeals
appears to have addressed petitioner's challenge on the merits in a state
post-conviction proceeding. See App. 37. In any event, under Texas law, a
Penry claim is not procedurally barred even if no additional
mitigating-evidence instruction is requested or there is no objection made
at trial to the jury instructions. See Selvage v. Collins,
816 S.W.2d 390, 392 (Tex. Crim. App. 1991); Black v. State, 816 S.W.2d
350, 362-369 (Tex. Crim. App. 1991); id., at 367-374 (Campbell, J.,
concurring). The adequacy of the Texas special issues in this case is
therefore properly before us.
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| [175] |
*fn7 Or, indeed, all the ways in which evidence
may mitigate against imposition of a death sentence previously mentioned
by Members of this Court. See Franklin v. Lynaugh, 487 U.S., at
186 (O'CONNOR, J., joined by BLACKMUN, J., concurring in
judgment) (referring to "positive character traits that might mitigate
against the death penalty"); id., at 189 (STEVENS, J., joined by Brennan
and Marshall, JJ., dissenting) (character evidence of "redeeming features"
may reveal "virtues that can fairly be balanced against society's interest
in killing [a defendant] in retribution for his violent crime"). My
analysis today does not require extended consideration of the category
suggested in Franklin. See, infra, at 17.
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| [176] |
*fn8 See also Jurek, 428 U.S., at 272 (joint opinion of Stewart, Powell and STEVENS, JJ.) ("The
constitutionality of the Texas procedures turns on whether the enumerated
questions allow consideration of particularized mitigating
factors").
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| [177] |
*fn9 JUSTICE THOMAS argues, ante at 16, that
the rule applied in Penry "originated entirely from whole cloth in two
recent concurring opinions," California v. Brown, 479 U.S. 538, 545, 93 L. Ed. 2d 934, 107
S. Ct. 837 (O'CONNOR, J., concurring), and Franklin v. Lynaugh,
supra, at 185 (O'CONNOR, J., concurring in judgment), and that it requires
"unbridled" jury discretion, even to the point that the death penalty may
be withheld on the basis of race, ante, at 17.
As to the first contention, Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct.
2954 (1978),was understood at the time it was handed down to
require that constitutionally-relevant mitigating evidence (the definition
of which is given below) be given full consideration and effect. See,
e.g., id., at 623 (WHITE, J., concurring in part, dissenting in part, and
concurring in judgments) (emphasis added) (Lockett "requires as a matter
of constitutional law that sentencing authorities be permitted to consider
and in their discretion to act upon any and all mitigating
circumstances"). This is the understanding upon which Lockett and Eddings
have consistently been applied by the Court. See Skipper v. South
Carolina, 476 U.S. 1, 7, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986) ("Assuming . . .
that [a State Supreme Court] rule would in any case have the effect of
precluding the defendant from introducing otherwise admissible evidence
for the explicit purpose of convincing the jury that he should be spared
the death penalty because he would pose no undue danger to his jailers or
fellow prisoners and could lead a useful life behind bars if sentenced to
life imprisonment, the rule would not pass muster under Eddings ");
McCleskey v. Kemp, 481 U.S. 279, 306, 95 L.
Ed. 2d 262, 107 S. Ct. 1756 (1987)
(emphasis added) ("States cannot limit the sentencer's consideration of
any relevant circumstance that could cause it to decline to impose the
[death] penalty"); Franklin v. Lynaugh, supra, at 184-185 (O'CONNOR, J.,
joined by BLACKMUN, J., concurring in judgment); id., at 191-192 (STEVENS,
J., joined by Brennan and Marshall, JJ., dissenting). While one may argue
that this aspect of our Eighth Amendment jurisprudence is in tension with
the sentence in Gregg that the State should give the jury guidance as to
what factors it "'deems particularly relevant to the sentencing
decision,'" ante, at 7 (THOMAS, J., concurring) (quoting Gregg v. Georgia,
428 U.S. 153, 192, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)), any such
tension dates, at the latest, from Eddings, decided in 1982, not from
Penry in 1989. There was one novelty in the concurring opinions in Brown
and Franklin, however, in the use of the phrase "reasoned moral response,"
see supra, at 11, to which JUSTICE THOMAS adverts in his concurring
opinion. But as the concurring opinion explained in Brown, this is just a
shorthand for the individual assessment of personal culpability that
Lockett and Eddings mandate. See Brown, supra, at 545. It is, indeed,
appropriate shorthand. JUSTICE THOMAS himself acknowledges, as I think
everyone must, "that 'capital punishment is an expression of society's
moral outrage at particularly offensive conduct,'" ante, at 21 (quoting
Gregg v. Georgia, 428 U.S., at 183 (joint opinion)),
and he reminds us that "any determination that death is or is not the
fitting punishment for a particular crime will necessarily be a moral
one." Ante, at 14. JUSTICE THOMAS's second concern, about "sympathy for a
defendant who is a member of a favored group," ante, at 18, involves an
issue of very great seriousness. But the Lockett - Eddings rule is not one
of "unbridled" or "unbounded" discretion. See ante, at 17-18.
Constitutionally-relevant mitigating evidence is limited to "any aspects
of a defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than
death." Lockett, supra, at 604 (plurality opinion). A defendant's race as
such is not mitigating as an aspect of his character or record, or as a
circumstance of any offense he may have committed.
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| [178] |
*fn10 I note in this regard that the trial
judge's remarks at voir dire may have inappropriately left the jury to
consider whether Graham would have been dangerous in the future if he were
set free. See Brief for Petitioner at 8, n. 4. In light of my conclusion
that Graham's death sentence should be vacated, I need not address here
the propriety of a sentence imposed on the basis of future dangerousness
to the public when there is no possibility that a defendant will be
sentenced to a term less than life without the possibility of
parole.
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