On petitions for writs of certiorari to the Supreme Court of
The petitions for writs of certiorari are denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
In spite of this Court's repeated declarations that a capital "
'sentencer . . . not be precluded from considering, as a mitigating
factor, any aspect of a defendant's character . . . that the
Page 471 U.S.
defendant proffers as a basis for a sentence less than death,' "
Eddings v. Oklahoma, 455 U.S.
, 110, 874 (1982) ( quoting Lockett v. Ohio, 438 U.S.
, 604, 2964d 973 (1978)), the South Carolina Supreme Court
has determined that evidence of a capital defendant's likely
nondangerousness within a prison environment is legally irrelevant
to the capital sentencer's choice between death or life in prison.
In these cases, the petitioners were sentenced to death. They had
offered such evidence in mitigation of death but were denied the
opportunity of submitting the evidence to their sentencing
The death sentences in these cases were imposed in glaring
violation of two lines of this Court's capital sentencing
jurisprudence. First, and most obviously, the sentences are
contrary to the Lockett-Eddings line of authority, which makes
unmistakably clear that it is for the sentencer to determine the
weight to be given to proffered evidence of mitigation. Second,
they are equally in conflict with those decisions of this Court
that make equally clear that the question of a capital defendant's
future dangerousness is a legitimate penological concern relevant
to a capital sentencing hearing. See California v. Ramos, 463 U.S. 992
3453-3454 (1983); Barefoot v. Estelle, 463 U.S.
, 896-905, 3396-3401 (1983); Jurek v. Texas, 428 U.S. 262
2957-2958 ( 1976).
While this latter group of cases affirmed the penological
relevance of future dangerousness in contexts in which the State
urged it as a factor in aggravation, the hitherto relevant factor
of future dangerousness cannot become suddenly and cruelly
"irrelevant" as a matter of law when a defendant wishes to assert
its absence as a factor in mitigation. As was declared in a
precursor to Lockett and Eddings, "a jury must be allowed to
consider on the basis of all relevant evidence not only why a death
sentence should be imposed, but also why it should not be imposed."
Jurek v. Texas, supra, at 271. Rather than allow Lockett and
Eddings to be eroded through such a cruelly inequitable view of
relevance, I would grant these petitions. [Footnote 1
Page 471 U.S.
At the time of the sentencing hearings in question the South
Carolina Supreme Court's view of the relevance of predictive
evidence as to a defendant's future non-dangerousness in a prison
environment was clear:
"The penalty phase of a capital
murder case is concerned with the existence or nonexistence of
mitigating or aggravating circumstances involved in or arising out
of the murder, not the convicted murderer's adaptability to prison
life. The jury is concerned with the circumstances of the crime and
the characteristics of the individual defendant as they bear
logical relevance to the crime . . . . In Lockett v. Ohio, . . .
cited as controlling in Eddings v. Oklahoma, . . . the United
States Supreme Court retained the court's traditional authority to
exclude irrelevant evidence which did not bear on a defendant's
character, prior record, or the circumstances of his offense. We
conclude that the evidence of appellant's future conformity to
prison life was properly excluded as irrelevant." State v. Koon,
278 S.C. 528, 536, 537, 298 S.E.2d
, 773-774 (1982) ( hereinafter Koon I).2
At Koon's hearing below, his counsel sought to develop a number
of avenues of mitigating evidence. First, he sought to call two
prison officials to testify as to petitioner's excellent record in
prison and his demonstrated ability to adapt to prison life. Record
in No. 84-5850, pp. 922-927. Second, he sought to call psychiatric
experts to testify as to Koon's mental condition. Those
psychiatrists had examined him and were prepared to testify that he
suffered from a severe mental disorder, and that partly as a result
of that disorder he was extremely capable of
Page 471 U.S.
adapting to prison life. They would have testified that, within
the highly structured and regulated context of life in prison, Koon
would be unlikely to present any problem of future dangerousness,
and that indeed, he might live a more productive life than he was
capable of living outside of confinement. Id., at 925-928. See also
id., at 1062-1066.3
The trial court, relying on Koon I, excluded all of the prison
officers' testimony, and all psychiatric evidence of Koon's ability
to adapt to prison life or of his likely future nondangerousness
within the prison environment. Although Koon was allowed to
Page 471 U.S.
call a psychiatric witness to testify about his general
psychiatric makeup, questions concerning adaptability or future
nondangerousness were prohibited. The witness did briefly refer to
petitioner's successful adaptation to prison life in responding to
a question only tangentially related to that issue; petitioner's
counsel was obviously unable to either develop this issue to any
extent or to draw the jury's attention to it in his summation.
In Patterson, the facts are quite similar. Petitioner proffered
evidence from prison authorities that he had an exemplary prison
record during the period of almost three years since his earlier
trial, and proffered evidence from a psychiatrist that individuals
exhibiting a personality pattern similar to petitioner's "usually
make a satisfactory adjustment to prison life" so that the
likelihood of future violence by such persons "diminishes with the
passing of time." Record in No. 84-5843, p. 1442. The trial court
excluded all this evidence as irrelevant under the authority of
Koon I. Thus, the sentencing jury was given no opportunity at all
to consider either petitioner's behavior in prison or the issue of
petitioner's likely future nondangerousness within a prison
On appeal, both of these petitioners' death sentences were
affirmed by the State Supreme Court on a slight variation of the
Koon I rationale. 285 S.C. 5, 327 S.E.2d
(1984); 285 S.C. 1, 328 S.E.2d
(1984). Following Koon I, the court held that all
predictive evidence of Patterson's future behavior in prison was
simply irrelevant. It modified Koon I only to the extent that it
held that the bare facts of Patterson's past prison record would
now be considered admissible as general personal history. It read
Lockett and Eddings as saying that a defendant's " character" was
relevant mitigating evidence that can be shown through evidence of
past behavior. It thus found that it had been error for the trial
court to exclude the prison officers' testimony concerning
Patterson's prior prison behavior. But since such behavior was
relevant only to show a generally good character, the court held
that it was merely cumulative of other general character evidence
submitted by the petitioner. 4
Page 471 U.S.
Similarly, in Koon's appeal below, the State Supreme Court held
that the evidence of future nondangerousness was properly excluded.
Prison officials' testimony as to Koon's prison record was
relevant, but again, was properly excluded as cumulative since the
psychiatrist had briefly, in an unresponsive answer, stated that
petitioner had been doing quite well in prison.
In both of these cases, the capital defendants were limited to
argue the most vague and general theories of mitigation. Their
chosen theories were completely excluded from the jury's
consideration. The State Supreme Court declared that it was
irrelevant, as a matter of law, to argue that a death sentence
might be inappropriate where a defendant could be relied on to lead
an unthreatening life, and even a somewhat productive life, if kept
in prison. [Footnote 5
The constitutionality of these sentences rests on the premise
that a State can make irrelevant to the capital sentencing process,
as a matter of law, the theory of future non-dangerousness that was
proffered in mitigation by petitioners. The State's reasoning was
that the proffered factor does not "aris[e] out of the murder" nor
"bear logical relevance to the crime." Koon I, 278 S.C., at 536,
298 S.E.2d, at 774. Put another way, the State viewed the factor as
irrelevant because its proof would not reduce the moral culpability
of the defendant. But this Court has never limited the
circumstances relevant to a capital sentencing determination to
those going to moral culpability. Quite the contrary, this Court
has repeatedly treated predictive evidence relating to future
dangerousness as highly relevant to sentencing concerns.
Page 471 U.S.
The most glaring is Jurek v. Texas, 428 U.S. 262
, 49 L. Ed.
2d 929 (1976), where this Court upheld a state law requiring
capital sentencing juries to consider the issue of future
dangerousness. The opinion announcing the judgment there
"It is, of course, not easy to
predict future behavior. The fact that such a determination is
difficult, however, does not mean that it cannot be made. Indeed,
prediction of future criminal conduct is an essential element in
many of the decisions rendered throughout our criminal justice
system. . . . And any sentencing authority must predict a convicted
person's probable future conduct when it engages in the process of
determining what punishment to impose. . . . The task that a
[capital sentencing] jury must perform in answering the statutory
question in issue is thus basically no different from the task
performed countless times each day throughout the American system
of criminal justice. What is essential is that the jury have before
it all possible relevant information about the individual defendant
whose fate it must determine." Id., at 274-276-2958 (emphasis
The Court has treated evidence of future dangerousness as
relevant even where the evidence at issue seemed of much less
predictive value than the evidence at issue here. In both the
instant cases, the witnesses who were excluded had all had
extensive contact with the defendants and were testifying only to
the likely behavior of the defendants within the same environment
as that in which they had made their observations. In contrast, in
Barefoot v. Estelle, 463 U.S. 880
Court approved of the relevance of expert psychiatric predictions
of future dangerousness even where the expert witness was
testifying based on hypotheticals without ever having examined the
defendant. Id., at 903-906-3401. If that evidence was relevant to
capital sentencing, how can the evidence at issue in the instant
cases be deemed irrelevant? See also California v. Ramos, 463 U.S. 992
Of course there are two differences between these earlier cases
and the instant cases. First, relevance in the earlier cases was
urged on the sentencers by prosecutors, who called for death
sentences on the theory that the defendants at issue might be
violent in the future. Here, evidence of the absence of future
Page 471 U.S.
ness is offered as a reason for urging that the defendants not
be sent to die. But this difference can hardly be a relevant one. A
system of punishment would certainly be fundamentally unfair if it
accepted the validity of a call for death where a factor was
present, but declared that that factor's absence could not be
offered as a reason for life. Such situation cannot be tolerated by
the Eighth Amendment.
The second difference is that discussions of future
dangerousness in our prior cases have emphasized the defendant's
dangerousness to the society outside of jail, while here the
emphasis was on the likely non- dangerousness of the defendants'
future behavior within jail. But although this might be viewed as
an important distinction by a sentencer, it cannot be rationally
viewed as a distinction that makes nondangerousness in prison
irrelevant as a matter of law. If a jury can base a sentencing
determination on predictions of the possible dangerousness of a
defendant at the point far in the future when, after a long
confinement, he might be paroled or pardoned, a jury cannot be
precluded from considering the more immediate issue of his future
dangerousness during that quite lengthy period when he will remain
in jail . Similarly, it would be the ultimate cynicism to adopt a
conclusive presumption that a sentencing jury would simply be
wholly uninterested in the possible dangers that a killer who
continues to be violent might present to other inmates-or
conversely-that the jury would be wholly unimpressed by the fact
that a different criminal might present no dangers to those
Ultimately, the evidence offered in mitigation here was premised
on the proper notion that a jury might confront in a serious and
humane way the question of what is actually to be gained and lost
by a verdict of death. While in some cases the cry for moral
retribution may sound clear to the jury, in others it may not. In
the latter cases, it may be quite effective, as it would always be
legitimate, to remind the jury that an execution may generate
little social benefit and, indeed, may generate substantial social
loss. A jury may come to see that a prisoner's life in prison has
some substantial social worth. He may adapt to his environment,
find some degree of community in it, and contribute in some way to
that community. He may even come to live a life of greater meaning
than that which he knew before his confinement. Should a sentencer
believe that there is a chance that these may be the consequences
of a rejection of a death sentence, these factors may
Page 471 U.S.
become powerful factors of mitigation. South Carolina's
determination that they are simply irrelevant cannot stand.
I continue to
adhere to my view that the death penalty is in all circumstances
cruel and unusual punishment prohibited by the Eighth and
Fourteenth Amendments. Gregg v. Georgia, 428 U.S.
, 231, 2973 (1976) (MARSHALL, J., dissenting). But even if I
did not take this view, I would grant review in these cases because
of the important issue raised concerning the proper interpretation
of Lockett and Eddings.
Unfortunately, this case is illustrative of a disturbing trend
in a number of state courts to read our holdings in Eddings and
Lockett in an unjustifiably narrow manner, and to declare, in spite
of these holdings, that an increasing number of proffered bases of
mitigation are simply irrelevant. See Boyd v. North Carolina,
471 U.S. 1030
(MARSHALL, J., dissenting from denial of certiorari); Eutzy v.
Florida, 471 U.S.
(MARSHALL, J., dissenting from denial of certiorari).
This ruling by
the South Carolina Supreme Court occurred in an appeal of an
earlier sentencing of petitioner Koon. In both of these cases the
capital defendants had previously been sentenced to death pursuant
to proceedings that were later found by the South Carolina Supreme
Court to violate state law. State v. Patterson, 278 S.C. 319,
(1982); Koon I. Both had thus been imprisoned for a
substantial period at the time of their resentencing hearings.
At the sentencing
hearing at issue in the instant case, Koon made a proffer that his
psychiatric expert would testify to substantially the same effect
as the expert had done in the hearing that resulted in Koon I,
supra. The following testimony by Dr. Pattison, an expert
psychiatric witness, was proffered in mitigation at that earlier
"Q: You have observed Paul in his
prison environment-his jail environment. Do you have an opinion as
to his ability to adapt to a long term institutional
"A: Yes. Both from the records and
from observing him in the jail and talking with him it is, I think,
quite clear in my professional opinion that he adapts very well to
an institutional environment. As a matter of fact, in my
professional judgment, in an institutional environment he has
performed at probably his highest levels of function during his
adult life, in as much as that environment is supportive,
protective and has a relatively low level of stress compared to
life in the outside world. Therefore, in this case I would be
willing to risk a professional prediction in that I would predict
that he would make an overall excellent institutional adjustment on
a long term basis. . . .
"Q: Do you think Paul would be a
violent person in an institutionalized environment?
"A: Again, in my professional opinion
I feel confident in a reasonable frame to conclude that he would
not be violent or dangerous within a custodial institution. The
basis for my opinion is his past record within the custodial
environment, his ability to conform within that environment, not
only to maximum seclusion, but also conforming to the rules and
regulations when he was under minimal supervision. Furthermore, his
past history and his present state suggests that he performs
interpersonally much better with men. That his major provocations
of explosive and assaultive behavior is with women rather than with
men. Therefore, I conclude that he would be a very good risk for
good adjustment in an institution and a very low risk for
assaultive or violent behavior in an institutional setting.
"Q: He could be, in your opinion,
could he be a contributive [sic] member to a prison
"A: Again, for the same reasons, I
would say yes, in my professional opinion." Pet. for Cert. in No.
84-5850, pp. 6-7.
evidence that the court found was cumulative to Patterson's
evidence of his prison record was the testimony of a former
employer that Patterson was a good and responsible worker and
general testimony by Patterson's relatives to the effect that he
had been a good child and was still a "wonderful person" who had
been led by bad influences to commit a murder that was out of
character for him.
The fact that in
both of these cases the state court held that the proffered
evidence of prior prison behavior was "cumulative" cannot save
either of these decisions from review. In both cases, the theory of
future nondangerousness was deemed irrelevant and the evidence and
argument which would have been necessary to its proof were
excluded. The determinations of "cumulativeness" whatever their
merits, cf. Chapman v. California, 386 U.S. 18
determinations that rested on the predicate federal determination
that the only basis for the relevance of the evidence was to show
general good character.