Petitioner Sawyer's conviction and death sentence for a brutal
murder became final in 1984. The Federal District Court denied his
habeas corpus petition, which was based in relevant part on the
argument that the prosecutor's closing argument during the penalty
phase of his trial diminished the jury's sense of responsibility
for the capital sentencing decision, in violation of this Court's
1985 decision in
Caldwell v. Mississippi, 472 U.
S. 320. While his appeal of the denial of habeas relief
was pending, this Court decided
Teague v. Lane,
489 U. S. 288,
under which a new rule of constitutional law established after a
petitioner's conviction has become final may not be used to attack
the conviction on federal habeas corpus unless the rule (1) places
an entire category of primary conduct beyond the reach of criminal
law,
id. at
489 U. S. 311,
or prohibits imposition of a certain type of punishment for a class
of defendants because of their status or offense,
see Penry v.
Lynaugh, 492 U. S. 302,
492 U. S. 330,
or (2) applies a new watershed rule of criminal procedure that
enhances accuracy and is necessary to the fundamental fairness of
the criminal proceeding, 489 U.S. at
489 U. S.
312-313. The Court of Appeals affirmed the denial of
relief, holding that
Caldwell announced a new rule within
the meaning of
Teague and did not fall within
Teague's second exception.
Held: Petitioner is not entitled to federal habeas
relief, because
Caldwell announced a new rule, as defined
by
Teague, that does not come within either of the
Teague exceptions. Pp.
497 U. S.
233-245.
(a)
Caldwell's result was not dictated by Eighth
Amendment precedent existing at the time petitioner's conviction
became final. No case prior to
Caldwell invalidated a
prosecutorial argument as impermissible under the Eighth Amendment.
The discussion of improper prosecutorial comment in
Donnelly v.
DeChristoforo, 416 U. S. 637, a
noncapital murder case, was based on the Due Process Clause's
guarantees of fundamental fairness, not the Eighth Amendment's more
particular guarantees of sentencing reliability.
Eddings v.
Oklahoma, 455 U. S. 104;
Lockett v. Ohio, 438 U. S. 586;
Gardner v. Florida, 430 U. S. 349; and
Woodson v. North Carolina, 428 U.
S. 280, earlier Eighth Amendment cases, spoke to the
general issue of sentencing reliability, but not to the issue
decided in
Caldwell, and
Teague would be
meaningless if applied at such a level of generality. In 1984, from
a state court's point of view,
Page 497 U. S. 228
there were indications that
Caldwell was not an Eighth
Amendment requirement,
see California v. Ramos,
463 U. S. 992;
Maggio v. Williams, 464 U. S. 46, and
there was some doubt as to this Court's view concerning a major
premise of
Caldwell, that misleading prosecutorial comment
might cause a bias in favor of death sentences,
see Dobbert v.
Florida, 432 U. S. 282,
432 U. S. 294,
and n. 7. It cannot be said that state cases were anticipating the
Caldwell rule when they prohibited similar prosecutorial
statements, because their decisions were based on state law, and
did not purport to construe the Eighth Amendment. Reliance on these
cases misapprehends the function of federal habeas relief, which
serves to ensure that state convictions comport with established
federal law at the time a petitioner's conviction becomes final. To
the extent that post-
Caldwell Louisiana cases reflect
state court recognition that general Eighth Amendment principles
pointed toward adoption of a
Caldwell rule, or that
Caldwell is congruent with preexisting state law, they
cannot serve to show that
Caldwell was dictated by this
Court's Eighth Amendment precedents, since courts can be expected
to apply principles announced in prior Eighth Amendment decisions
that are susceptible to debate among reasonable minds. Petitioner's
argument that state courts would not have provided protection
against misleading prosecutorial comment unless they had been
compelled to do so by federal precedent and the threat of federal
habeas review is premised on a skepticism of state courts that this
Court declines to endorse. Pp.
497 U. S.
233-241.
(b)
Caldwell does not come within either of the
Teague exceptions. The first exception has no
applicability here. Petitioner's argument that the second exception
should be read to include new rules of capital sentencing that
preserve the accuracy and fairness of judgments looks only to the
first half of the exception's definition. To qualify under
Teague, a rule must not only improve the accuracy of
trial; it must also be essential to the fairness of the proceeding.
There would be no limit to the second exception if it were to be
recast as suggested by petitioner, since almost all Eighth
Amendment jurisprudence concerning capital sentencing is directed
toward the enhancement of reliability or accuracy in some sense.
Caldwell is a systemic rule designed as an enhancement of
the accuracy of capital sentencing. However, this measure of
protection against error in the context of capital sentencing was
added to the already existing due process guarantee of fundamental
fairness afforded by
Donnelly, supra.
"[T]he only defendants who need to rely on
Caldwell
rather than
Donnelly are those who must concede that the
prosecutorial argument in their case was not so harmful as to
render their sentencing trial 'fundamentally unfair.'"
881 F.2d at 1293. Thus, it cannot be said that
Caldwell
is the type of absolute prerequisite to
Page 497 U. S. 229
fundamental fairness that may come within
Teague's
second exception.
Cf., e.g., Dugger v. Adams, 489 U.
S. 401. Pp.
497 U. S.
241-245.
881 F.2d 1273 (CA5 1989) affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined; in which BLACKMUN, J., joined as to Parts I, II, III, and
IV; and in which STEVENS, J., joined as to Parts I, II, and III,
post, p.
497 U. S.
245.
Justice KENNEDY delivered the opinion of the Court.
We must decide in this case whether a prisoner whose murder
conviction became final before our decision in
Caldwell v.
Mississippi, 472 U. S. 320
(1985), is entitled to use that decision to challenge his capital
sentence in a federal habeas corpus action. We hold that he cannot,
for
Caldwell announced a new rule as defined by
Teague
v. Lane, 489 U. S. 288
(1989), and the new rule does not come within
Teague's
exception for watershed rules fundamental to the integrity of the
criminal proceeding.
I
Over 10 years ago, petitioner Robert Sawyer murdered Frances
Arwood, a visitor in the New Orleans, Louisiana, residence
petitioner shared with his girlfriend, Cynthia
Page 497 U. S. 230
Shano. On September 29, 1979, petitioner and his accomplice
Charles Lane arrived at the residence after a night of drinking.
They argued with Arwood and accused her of giving drugs to Shano's
children. For reasons that are not clear, petitioner and Lane
struck Arwood repeatedly with their fists, and dragged her by the
hair into the bathroom. There they stripped the victim naked,
literally kicked her into the bathtub, and subjected her to
scalding, dunkings, and additional beatings. Petitioner left Lane
to guard the victim, and apparently to rape her, while petitioner
went to the kitchen to boil water to scald her. Petitioner kicked
Arwood in the chest, causing her head to strike the tub or a
windowsill and rendering her unconscious. The pair then dragged
Arwood into the living room, where they continued to beat and kick
her. Petitioner poured lighter fluid on the unconscious victim,
particularly her torso and genital area, and set the lighter fluid
afire. He told Lane that he had done this to show "just how cruel
he could be." There were further brutalities we do not recount.
Arwood later died of her injuries.
Petitioner was convicted and sentenced to death for the crime by
a Louisiana jury in September, 1980. At issue in this case are
remarks made by the prosecutor in his closing argument during the
sentencing phase of the trial. The prosecutor first stated, after
discussing the proof of aggravating circumstances under Louisiana
law:
"The law provides that, if you find one of those circumstances,
then what you are doing as a juror, you yourself will not be
sentencing Robert Sawyer to the electric chair. What you are saying
to this Court, to the people of this Parish, to any appellate
court, the Supreme Court of this State, the Supreme Court possibly
of the United States, that you the people as a factfinding body,
from all the facts and evidence you have heard in relationship to
this man's conduct, are of the opinion that there are aggravating
circumstances as defined by the statute, by
Page 497 U. S. 231
the State Legislature, that this is a type of crime that
deserves that penalty. It is merely a recommendation, so, try as he
may, if Mr. Weidner tells you that each and every one of you, I
hope, can live with your conscience, and try and play upon your
emotions, you cannot deny, it is a difficult decision. No one likes
to make those type of decisions, but you have to realize, if, but
for this man's actions, but for the type of life that he has
decided to live, if of his own free choosing, I wouldn't be here
presenting evidence and making argument to you. You wouldn't have
to make the decision."
Tr. 982.
After emphasizing the brutal nature of the crime for which they
had convicted petitioner, the prosecutor told the jury,
"There is really not a whole lot that can be said at this point
in time that hasn't already been said and done. The decision is in
your hands. You are the people that are going to take the initial
step, and only the initial step, and all you are saying to this
court, to the people of this Parish, to this man, to all the Judges
that are going to review this case after this day, is that you, the
people, do not agree, and will not tolerate an individual to commit
such a heinous and atrocious crime, to degrade such a fellow human
being, without the authority and the impact, the full authority and
impact, of the law of Louisiana. All you are saying is that this
man, from his actions, could be prosecuted to the fullest extent of
the law. No more and no less."
Id. at 984.
Finally, the prosecutor emphasized again that the jury's
decision would be reviewed by later decisionmakers,
"It's all [you're] doing. Don't feel otherwise. Don't feel like
you are the one, because it is very easy for defense lawyers to try
and make each and every one of you feel like you are pulling the
switch. That is not so. It is not so, and if you are wrong in your
decision, believe me, believe me there will be others who will be
behind
Page 497 U. S. 232
you to either agree with you or to say you are wrong, so I ask
that you do have the courage of your convictions."
Id. at 985.
The Louisiana Supreme Court affirmed petitioner's conviction and
sentence.
State v. Sawyer, 422
So. 2d 95 (1982). This Court granted certiorari and remanded
the case with instructions to the Louisiana Supreme Court to
reconsider its decision in light of
Zant v. Stephens,
462 U. S. 862
(1983).
Sawyer v. Louisiana, 463 U.S. 1223 (1983). The
Louisiana Supreme Court reaffirmed the capital sentence on remand,
Sawyer v. Louisiana, 442 So. 2d
1136 (1983). His conviction and sentence became final on April
2, 1984, when we denied certiorari, 466 U.S. 931. Petitioner sought
state collateral relief, which was denied.
Sawyer v.
Maggio, 479 So. 2d
360 (La.1985);
Sawyer v. Maggio, 480 So. 2d 313
(La.1985).
Petitioner then filed the federal habeas corpus petition now
before us, raising a host of constitutional claims. Relevant here
is petitioner's claim that the prosecutor's closing argument
violated the Eighth Amendment of the United States Constitution by
diminishing the jury's sense of responsibility for the capital
sentencing decision, in violation of our decision in
Caldwell
v. Mississippi, 472 U. S. 320
(1985).
Caldwell was decided over one year after
petitioner's conviction became final.
The District Court denied relief, concluding that the
prosecutor's remarks were of a different character from those in
Caldwell, and that there was no reasonable probability
that the sentence would have been different in the absence of the
comments. A divided panel of the Court of Appeals for the Fifth
Circuit affirmed. 848 F.2d 582 (1988). The panel held that the
facts in this case were "a far cry from those in
Caldwell," in large part due to the absence of any
judicial approval of the prosecutor's comments.
Id. at
596. Following the panel decision, the Fifth Circuit granted
rehearing en banc.
Id. at 606.
Page 497 U. S. 233
After the en banc court heard oral argument, but while the case
was pending, we held in
Teague v. Lane, 489 U.
S. 288 (1989), that a rule of constitutional law
established after a petitioner's conviction has become final may
not be used to attack the conviction on federal habeas corpus
unless the rule falls within one of two narrow exceptions. The
Fifth Circuit requested supplemental briefing from the parties on
the question whether
Teague barred petitioner's claim for
relief under
Caldwell. The en banc court held that
Caldwell announced a new rule within the meaning of
Teague, a rule not within
Teague's second
exception for watershed rules of criminal procedure that guarantee
the accuracy of a criminal proceeding. Accordingly, the Court of
Appeals affirmed the denial of habeas corpus relief. 881 F.2d 1273
(1989).
We granted certiorari, 493 U.S. 1042 (1990), to resolve a
conflict among the Courts of Appeals,
see Hopkinson v.
Shillinger, 888 F.2d 1286 (CA10 1989), and now affirm.
II
We must address first whether, in relying on
Caldwell,
petitioner claims the benefit of a new rule, as defined by our
decision in
Teague. In
Caldwell, we held that the
Eighth Amendment prohibits the imposition of a death sentence by a
sentencer that has been led to the false belief that the
responsibility for determining the appropriateness of the
defendant's capital sentence rests elsewhere.
See 472 U.S.
at
472 U. S.
328-329;
id. at
472 U. S. 342
(opinion of O'CONNOR, J.). We determined that false information of
this type might produce "substantial unreliability as well as bias
in favor of death sentences."
Id. at
472 U. S.
330.
At the outset we note that the parties dispute whether
Caldwell, even if its rule applies, could support any
claim for relief in petitioner's case. The State emphasizes that
the judge in this case, unlike
Caldwell, see id. at
472 U. S. 339,
did not approve the prosecutor's argument, and that the remarks
Page 497 U. S. 234
in this case were less likely to mislead. Petitioner, on the
other hand, contends that the prosecutor's remarks were similar to
those in
Caldwell, and were not cured by the judge's
instructions to the jury. We need not address the significant
questions concerning the merits of petitioner's
Caldwell
claim on these facts, or the question whether application of
Caldwell to the facts presented here would itself involve
a new rule of law. Rather, we address only whether
Caldwell is available to petitioner as a ground upon which
he may seek relief.
Cf. Dugger v. Adams, 489 U.
S. 401,
489 U. S. 408,
n. 4 (1989) (merit of
Caldwell claim immaterial to
disposition of case on procedural bar grounds).
Our review of the relevant precedents that preceded
Caldwell convinces us that it is a new rule for purposes
of
Teague. On this point, we are in accord with the Court
of Appeals, as well as the other two courts of appeals that have
addressed the question.
See Clark v. Dugger, 901 F.2d 908
(CA11 1990);
Hopkinson v. Shillinger, supra. The rule of
Teague serves to
"validat[e] reasonable, good-faith interpretations of existing
precedents made by state courts even though they are shown to be
contrary to later decisions."
Butler v. McKellar, 494 U. S. 407,
494 U. S. 414
(1990). Thus, we have defined new rules as those that were not
"dictated by precedent existing at the time the defendant's
conviction became final."
Teague, supra, 489 U.S. at
489 U. S. 301.
The principle announced in
Teague serves to ensure that
gradual developments in the law over which reasonable jurists may
disagree are not later used to upset the finality of state
convictions valid when entered. This is but a recognition that the
purpose of federal habeas corpus is to ensure that state
convictions comply with the federal law in existence at the time
the conviction became final, and not to provide a mechanism for the
continuing reexamination of final judgments based upon later
emerging legal doctrine.
Caldwell, of course, was not decided upon a clean
slate. As the Court in
Caldwell recognized, we had earlier
addressed
Page 497 U. S. 235
the question of improper prosecutorial comment in
Donnelly
v. DeChristoforo, 416 U. S. 637
(1974). We stated in
Donnelly that improper remarks by a
prosecutor could at some point "so infec[t] the trial with
unfairness as to make the resulting conviction a denial of due
process."
Id. at
416 U. S. 643.
No such pervasive error was established in that case, and we took
the occasion to warn against "holding every improper and unfair
argument of a state prosecutor to be a federal due process
violation."
Caldwell, supra, 472 U.S. at
472 U. S. 338.
Caldwell, unlike
Donnelly, was a capital case,
and while noting the principle set forth in
Donnelly, the
Court in
Caldwell determined to rely not on the Due
Process Clause but on more particular guarantees of sentencing
reliability based on the Eighth Amendment. In
Donnelly, we
had reversed a court of appeals opinion vacating a conviction
because prosecutorial comments were "potentially" misleading, 416
U.S. at
416 U. S. 641,
but in
Caldwell we found that the need for reliable
sentencing in capital cases required a new sentencing proceeding
because false prosecutorial comment created an "unacceptable risk
that
the death penalty [may have been] meted out arbitrarily or
capriciously,'" 472 U.S. at 472 U. S. 343
(opinion of O'CONNOR, J.).
Examination of our Eighth Amendment authorities that preceded
Caldwell shows that it was not dictated by prior precedent
existing at the time the defendant's conviction became final. In
Caldwell itself, we relied on
Eddings v.
Oklahoma, 455 U. S. 104
(1982);
Lockett v. Ohio, 438 U. S. 586
(1978) (plurality opinion);
Gardner v. Florida,
430 U. S. 349
(1977) (plurality opinion); and
Woodson v. North Carolina,
428 U. S. 280
(1976), in support of the result. We cited these decisions for the
general proposition that capital sentencing must have guarantees of
reliability, and must be carried out by jurors who would view all
of the relevant characteristics of the crime and the criminal, and
take their task as a serious one. Petitioner, too, cites these and
other cases in support of the argument that
Caldwell
was
Page 497 U. S. 236
"rooted" in the Eighth Amendment command of reliable sentencing,
and that application of these cases to misleading prosecutorial
comment "by analogy" would lead to the predictable
Caldwell result. Brief for Petitioner 16.
We do not doubt that our earlier Eighth Amendment cases lent
general support to the conclusion reached in
Caldwell. But
neither this fact nor petitioner's contention that state courts
"would have found
Caldwell to be a predictable development
in Eighth Amendment law," Brief for Petitioner 8, suffices to show
that
Caldwell was not a new rule. In petitioner's view,
Caldwell was dictated by the principle of reliability in
capital sentencing. But the test would be meaningless if applied at
this level of generality.
Cf. Anderson v. Creighton,
483 U. S. 635,
483 U. S. 639
(1987) ("[I]f the test of
clearly established law' were to be
applied at this level of generality, . . . [p]laintiffs would be
able to convert the rule of qualified immunity that our cases
plainly establish into a rule of virtually unqualified liability
simply by alleging violation of extremely abstract
rights").
It is beyond question that no case prior to
Caldwell
invalidated a prosecutorial argument as impermissible under the
Eighth Amendment.
Eddings and
Lockett invalidated
statutory schemes that imposed an absolute prohibition against
consideration of certain mitigating evidence by the sentencer.
Woodson invalidated a capital sentencing statute providing
for mandatory capital sentencing.
Gardner invalidated a
capital sentence based on information of which the defendant had no
notice or opportunity to respond. These cases do not speak to the
issue we decided in
Caldwell. What we said in
Saffle
v. Parks, 494 U. S. 484,
494 U. S. 491
(1990), applies here:
"Even were we to agree with [petitioner's] assertion that our
decisions in
Lockett and
Eddings inform, or even
control or govern, the analysis of his claim, it does not follow
that they compel the rule that [petitioner] seeks."
Certainly
Caldwell was not seen as compelled by the
three Justices of this Court who found a "lack of authority" in
our
Page 497 U. S. 237
Eighth Amendment precedents for the approach taken there.
See 472 U.S. at
472 U. S. 350
(REHNQUIST, J., dissenting).
From the point of view of a state court considering petitioner's
claim at the time his conviction became final,
Saffle,
supra, 494 U.S. at
494 U. S. 488,
there were in fact indications in our decisions that the
Caldwell rule was not a requirement of the Eighth
Amendment. In a previous case raising an Eighth Amendment challenge
to prosecutorial comment, we had rejected the petitioner's claim.
California v. Ramos, 463 U. S. 992
(1983). Indeed, the Mississippi Supreme Court had held without
dissent in
Caldwell that
Ramos stood for the
proposition that "states may decide whether it is error to mention
to jurors the matter of appellate review."
See Caldwell v.
State, 443 So. 2d
806, 813 (1983). The Mississippi Court's characterization of
Ramos, of course, later proved to be incorrect. But this
nonetheless suggests that, prior to
Caldwell, our cases
did not put other courts on notice that the Eighth Amendment
compelled the
Caldwell result.
Our opinion in
Maggio v. Williams, 464 U. S.
46 (1983), provides more direct evidence that the rule
of
Caldwell cannot be described as dictated by existing
law at the time petitioner's claim became final. In
Williams, we vacated a stay of execution in a case
presenting a claim very similar to that in
Caldwell.
Justice STEVENS' opinion concurring in the judgment described at
length the prosecutor's argument in that case, 464 U.S. at
464 U. S. 53-54,
one similar to the argument made in
Caldwell. The Court,
however, found that the prisoner's challenge to the prosecutor's
statements "warrant[ed] little discussion." 464 U.S. at
464 U. S. 49.
Although we stated that the failure to raise the claim of improper
prosecutorial argument in an earlier habeas petition was
"inexcusable," we noted that the district court in the second
petition had given the claim "full consideration" under the
"standard established in
Donnelly v. DeChristoforo,
416 U. S. 637
(1974)," and had found that the prosecutor's closing argument "did
not render Williams' trial fundamentally unfair."
Id., 464
U.S. at
464 U. S. 49-50.
Our
Page 497 U. S. 238
opinion concluded by describing this and other claims raised by
Williams as "insubstantial."
Id. at
464 U. S. 52.
Williams, of course, did not represent a rejection on the
merits of the rule announced in
Caldwell. But, given our
statements concerning so similar a claim in
Williams, we
do not think a state court viewing petitioner's case at the time
his conviction became final could have concluded that our Eighth
Amendment precedents compelled such rule.
We note also that, when petitioner's conviction became final,
there was some reason for doubt as to this Court's view concerning
what became a major premise of
Caldwell, that misleading
prosecutorial comment might cause a "bias in favor of death
sentences." 472 U.S. at
472 U. S. 330.
At the time of petitioner's trial and appeal, there was at least
"some suggestion,"
see Dugger v. Adams, 489 U.S. at
489 U. S. 409,
that comments tending to diminish the jury's sense of sentencing
responsibility would skew the result toward leniency rather than a
death sentence.
See Dobbert v. Florida, 432 U.
S. 282,
432 U. S. 294,
and n. 7 (1977) (Florida's change to a system in which jury's
verdict was advisory might benefit defendants, as the jury "may
have chosen leniency when they knew [the sentencing] decision
rested ultimately on the shoulders of the trial judge, but might
not have followed the same course if their vote were final").
Petitioner places primary reliance on numerous state cases,
decided prior to the finality of his conviction, that prohibited
prosecutorial statements of the type later held to violate the
Eighth Amendment in
Caldwell. See, e.g., Ward v.
Commonwealth, 695
S.W.2d 404, 408 (Ky.1985);
Ice v.
Commonwealth, 667
S.W.2d 671, 676 (Ky.),
cert. denied, 469 U.S. 860
(1984);
Wiley v. State, 449 So. 2d
756, 762 (Miss.1984),
cert. denied, 479 U.
S. 906 (1986);
Williams v.
State, 445 So. 2d
798, 811-812 (Miss.1984),
cert. denied, 469 U.
S. 1117 (1985);
State v.
Robinson, 421 So. 2d
229, 233-234 (La.1982);
State v.
Willie, 410 So.
2d 1019, 1033-1035 (La.1982),
cert. denied, 465 U.S.
1051 (1984);
State v. Jones, 296
Page 497 U. S. 239
N.C. 495, 501-502,
251 S.E.2d
425, 427-429 (1979);
State v. Gilbert, 273 S.C. 690,
696-698,
258 S.E.2d
890, 894 (1979);
State v. Tyner, 273 S.C. 646,
659-660,
258 S.E.2d
559, 566 (1979);
Hawes v. State, 240 Ga. 327, 334-335,
240 S.E.2d
833, 839 (1977);
Fleming v. State, 240 Ga. 142,
145-146,
240 S.E.2d 37,
40 (1977),
cert. denied, 444 U.S. 885 (1979);
State v.
White, 286 N.C. 395, 403-404,
211 S.E.2d
445, 450 (1975);
Prevatte v. State, 233 Ga. 929,
932-933,
214 S.E.2d
365, 367-368 (1975);
State v. Hines, 286 N.C. 377,
381-386,
211 S.E.2d
201, 204-207 (1975). Petitioner argues that these authorities
show that state courts anticipated the rule of
Caldwell,
and that no state reliance interest could be upset by retroactive
application of the federal rule to overturn a state conviction that
became final before
Caldwell was decided.
The flaw in this argument is that "the availability of a claim
under state law does not of itself establish that a claim was
available under the United States Constitution."
Dugger v.
Adams, supra, 489 U.S. at
489 U. S. 409.
All of the cases cited by respondent, with one arguable exception,
are decisions of
state law, and do not purport to construe
the Eighth Amendment. These cases, moreover, apply state common law
rules prohibiting
any mention of appellate review; they do
not condemn false prosecutorial statements under the Eighth
Amendment analysis employed in
Caldwell. Reliance on state
law cases for the proposition that the rule adopted in
Caldwell was an old one misapprehends the function of
federal habeas corpus. As we have said, the "
relevant frame of
reference'" for the new rule inquiry
"'is not the purpose of the new rule whose benefit the
[defendant] seeks, but instead the purposes for which the writ of
habeas corpus is made available.'"
Teague, 489 U.S. at
489 U. S. 306
(quoting
Mackey v. United States, 401 U.
S. 667,
401 U. S. 682
(1971)). Federal habeas corpus serves to ensure that state
convictions comport with the
federal law that was
established at the time the petitioner's conviction became
final.
Page 497 U. S. 240
Petitioner points out, to support his argument that
Caldwell applied an old rule, that our opinion there was
based in part on the adoption by many state courts of rules that
prohibited prosecutorial comments that could diminish the jury's
sense of sentencing responsibility. Brief for Petitioner 11;
see 472 U.S. at
472 U. S.
333-334, and n. 4. It is true that our cases have looked
to the decisions of state courts and legislatures to inform Eighth
Amendment analysis. But petitioner's attempt to use this fact to
show that
Caldwell is an old rule is untenable. Under this
view, state court decisions would both inform this Court's
decisions on the substantive content of the Eighth Amendment and,
by simultaneous effect, impose those standards back upon the states
themselves with retroactive effect. This view is also inconsistent
with our citation in
Penry v. Lynaugh, 492 U.
S. 302,
492 U. S.
329-330 (1989), of
Ford v. Wainwright,
477 U. S. 399
(1986), which relied for its Eighth Amendment analysis on the
statutory or common law of a majority of the States,
see
id. at
477 U. S.
408-409, as an example of a new rule.
One Louisiana case cited by petitioner disapproving
prosecutorial comment on appellate review does discuss Eighth
Amendment principles rather than relying solely on state law. Even
in this case, however, the court cited Eighth Amendment cases only
in its discussion of prosecutorial reference to the possibility of
pardon. Its discussion of prosecutorial comment on appellate
review, the issue before us here, referred to state law rules.
See State v. Willie, supra, at 1033, (La.1982),
cert.
denied, 465 U.S. 1051. Petitioner also cites
post-
Caldwell Louisiana cases, which cite
Caldwell and state cases interchangeably, and state that
Caldwell did not change prior law in the state.
See
State v. Smith, 554 So. 2d
676, 685 (1989);
State v. Clark, 492 So. 2d
862, 870-871 (1986);
State ex rel. Busby v. Butler,
538 So 2d 164, 173 (1988). To the extent these cases reflect state
court recognition that general Eighth Amendment principles pointed
toward adoption of a
Caldwell rule, or that
Caldwell
Page 497 U. S. 241
is congruent with preexisting state law, they cannot serve to
show that
Caldwell was dictated by our Eighth Amendment
precedent. State courts as well as federal can be expected to
engage in application of the principles announced in prior Eighth
Amendment decisions that are "susceptible to debate among
reasonable minds."
Butler, 494 U.S. at
494 U. S.
415.
Petitioner appears to contend that state courts will recognize
federal constitutional protections only if they are compelled to do
so by federal precedent and the threat of federal habeas review.
Since some state courts had recognized a principle similar to
Caldwell, this argument goes, the result in
Caldwell must have been compelled by Eighth Amendment
precedent. This argument is premised on a skepticism of state
courts that we decline to endorse. State courts are coequal parts
of our national judicial system, and give serious attention to
their responsibilities for enforcing the commands of the
Constitution. It is not surprising that state courts, whether
applying federal constitutional protections or seeking fair
administration of their own state capital punishment law, would
have taken care to exclude misleading prosecutorial comment. But
this conscientious exercise of their powers of supervision and
review could not dictate
Caldwell as a principle of
federal law under the Eighth Amendment.
III
Under
Teague, new rules may be applied in habeas corpus
proceedings only if they come within "one of two narrow
exceptions."
Saffle, 494 U.S. at
494 U. S. 486.
The first of these applies to new rules that place an entire
category of primary conduct beyond the reach of the criminal law,
Teague, supra, 489 U.S. at
489 U. S. 311,
or new rules that prohibit imposition of a certain type of
punishment for a class of defendants because of their status or
offense,
Penry, supra, 492 U.S. at
492 U. S. 330.
This exception has no application here. The second
Teague
exception applies to new "watershed rules of criminal procedure"
that are necessary to the fundamental fairness of the
Page 497 U. S. 242
criminal proceeding.
Saffle, supra, 494 U.S. at
494 U. S. 495;
Teague, supra, 489 U.S. at
489 U. S.
311-313. Petitioner here challenges the Court of
Appeals' conclusion that
Caldwell does not come within
this exception.
Petitioner contends that the second
Teague exception
should be read to include new rules of capital sentencing that
"preserve the accuracy and fairness of capital sentencing
judgments." Brief for Petitioner 30. But this test looks only to
half of our definition of the second exception. Acceptance of
petitioner's argument would return the second exception to the
broad definition that Justice Harlan first proposed in
Desist, but later abandoned in
Mackey, under
which new rules that "significantly improve the preexisting
factfinding procedures are to be retroactively applied on habeas."
Desist v. United States, 394 U. S. 244,
394 U. S. 262
(1969). In
Teague, we modified Justice Harlan's test to
combine the accuracy element of the
Desist test with the
Mackey limitation of the exception to watershed rules of
fundamental fairness. It is thus not enough under
Teague
to say that a new rule is aimed at improving the accuracy of trial.
More is required. A rule that qualifies under this exception must
not only improve accuracy, but also "alter our understanding of the
bedrock procedural elements" essential to the fairness of
a proceeding.
Teague, 489 U.S. at
489 U. S. 311
(quoting
Mackey, 401 U.S. at 693).
The scope of the
Teague exceptions must be consistent
with the recognition that
"[a]pplication of constitutional rules not in existence at the
time a conviction became final seriously undermines the principle
of finality which is essential to the operation of our criminal
justice system."
Teague, 489 U.S. at
489 U. S. 309
(citing Friendly, Is Innocence Irrelevant? Collateral Attacks on
Criminal Judgments, 38 U.Chi.L.Rev. 142, 150 (1970)). The
"costs imposed upon the State[s] by retroactive application of
new rules of constitutional law on habeas corpus thus generally far
outweigh the benefits of this application."
Solem v.
Page 497 U. S. 243
Stumes, 465 U.
S. 638,
465 U. S. 654
(1984) (opinion of Powell, J.). As we stated in
Teague,
because the second exception is directed only at new rules
essential to the accuracy and fairness of the criminal process, it
is "unlikely that many such components of basic due process have
yet to emerge." 489 U.S. at
489 U. S.
313.
It is difficult to see any limit to the definition of the second
exception if cast as proposed by petitioner. All of our Eighth
Amendment jurisprudence concerning capital sentencing is directed
toward the enhancement of reliability and accuracy in some sense.
Indeed, petitioner has not suggested any Eighth Amendment rule that
would not be sufficiently "fundamental" to qualify for the proposed
definition of the exception, and, at oral argument in this case,
counsel was unable to provide a single example. Tr. of Oral Arg.
17. In practical effect, petitioner asks us to overrule our
decision in
Penry that
Teague applies to new
rules of capital sentencing. This we decline to do.
At the time of petitioner's trial and appeal, the rule of
Donnelly was in place to protect any defendant who could
show that a prosecutor's remarks had in fact made a proceeding
fundamentally unfair. It was always open to this petitioner to
challenge the prosecutor's remarks at his sentencing proceeding, by
making the showing required by
Donnelly. See Dugger v.
Adams, 489 U.S. at
489 U. S. 410
(defendant whose trial and appeal occurred prior to
Caldwell "could have challenged the improper remarks by
the trial judge at the time of his trial as a violation of due
process.
See Donnelly v. DeChristoforo, 416 U.
S. 637 (1974)");
Maggio v. Williams, 464 U.S.
at
464 U. S. 49-50
(discussing application of
Donnelly to improper remarks at
sentencing). Petitioner has not contested the Court of Appeals'
finding that he has no claim for relief under the
Donnelly
standard. And as the Court of Appeals stated:
"[T]he only defendants who need to rely on
Caldwell
rather than
Donnelly are those who must concede that the
prosecutorial argument in their case was not so harmful as
Page 497 U. S. 244
to render their sentencing trial 'fundamentally unfair.'"
881 F.2d at 1293.
Rather than focusing on the prejudice to the defendant that must
be shown to establish a
Donnelly violation, our concern in
Caldwell was with the "unacceptable risk" that misleading
remarks could affect the reliability of the sentence.
See
472 U.S. at
472 U. S. 343
(opinion of O'CONNOR, J.).
Caldwell must therefore be read
as providing an additional measure of protection against error,
beyond that afforded by
Donnelly, in the special context
of capital sentencing.
See Darden v. Wainwright,
477 U. S. 168,
477 U. S.
183-184, n. 14 (1986). The
Caldwell rule was
designed as an enhancement of the accuracy of capital sentencing, a
protection of systemic value for state and federal courts charged
with reviewing capital proceedings. But given that it was added to
an existing guarantee of due process protection against fundamental
unfairness, we cannot say this systemic rule enhancing reliability
is an "absolute prerequisite to fundamental fairness," 489 U.S. at
489 U. S. 314,
of the type that may come within
Teague's second
exception.
Discussions of the nature of
Caldwell error from other
contexts also support our conclusion. In
Dugger v. Adams,
supra, we held that failure to consider a
Caldwell
claim would not come within a "fundamental miscarriage of justice"
exception to the doctrine of procedural default.
Id., 489
U.S. at
489 U. S. 412,
n. 6;
see Murray v. Carrier, 477 U.
S. 478 (1986). We rejected the dissent's contention that
a fundamental miscarriage of justice had been shown in that "the
very essence of a
Caldwell claim is that the accuracy of
the sentencing determination has been unconstitutionally
undermined."
Dugger, supra, 489 U.S. at
489 U. S. 412,
n. 6. Similarly, in
Williams, supra, Justice STEVENS
concluded his discussion of a
Caldwell-type claim by
stating,
"I question whether it can be said that this trial was
fundamentally unfair.
See Rose v. Lundy, supra, at 543,
and n. 8 (STEVENS, J., dissenting)."
464 U.S. at
464 U. S. 56.
These cases, of course, involved different
Page 497 U. S. 245
rules and contexts. Yet we think their rationale reflects a
rejection of the argument that
Caldwell represents a rule
fundamental to the criminal proceeding.
Because petitioner seeks the benefit of a new rule that does not
come within either of the
Teague exceptions, his claim for
habeas corpus relief is without merit. The judgment of the Court of
Appeals is therefore
Affirmed.
Justice MARSHALL, with whom Justice BRENNAN joins, Justice
BLACKMUN joins as to Parts I-IV, and Justice STEVENS joins as to
Parts I-III, dissenting.
In his closing argument in the sentencing phase of Robert
Sawyer's trial, the prosecutor emphatically argued to the jury that
a sentence of death would be "merely a recommendation," and that
"others" would be able to correct the decision if it turned out to
be "wrong." This argument misrepresented the scope of appellate
review of capital sentences under Louisiana law. La.Code
Crim.Proc.Ann., Art. 905.9 (West 1984) (review by state supreme
court is limited to question whether sentence of death is
"excessive"). The prosecutor's effort to minimize the jury's sense
of responsibility is precisely the type of misleading argument that
we condemned in
Caldwell v. Mississippi, 472 U.
S. 320 (1985), and is therefore
"fundamentally incompatible with the Eighth Amendment's
heightened 'need for reliability in the determination that death is
the appropriate punishment.'"
Id. at
472 U. S. 340
(quoting
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S. 305
(1976) (plurality opinion)).
The Court refuses to address Sawyer's
Caldwell claim on
the merits. Instead, it holds that
Caldwell created a
"new" rule within the meaning of
Teague v. Lane,
489 U. S. 288
(1989),
ante at
497 U. S. 234,
and that
Caldwell's protection against misleading
prosecutorial argument is not a "
watershed rul[e] of criminal
procedure'" essential to the fundamental fairness of a capital
proceeding, ante at 497 U. S. 241
(quoting Saffle v. Parks, 494 U.
S. 484, 494 U. S. 495
(1990)). To reach this result, the majority
Page 497 U. S. 246
misrepresents the source and function of
Caldwell's
prohibitions, thereby applying its newly-crafted retroactivity bar
to a case in which the State has no legitimate interest in the
finality of the death sentence it obtained through intentional
misconduct. I dissent.
I
In
Teague, the plurality declared that a case announces
a new rule "if the result was not dictated by precedent existing at
the time the defendant's conviction became final." 489 U.S. at
489 U. S. 301.
This Term, the Court held that the
"'new rule' principle . . . validates reasonable, good-faith
interpretations of existing precedents made by state courts even
though they are shown to be contrary to later decisions."
Butler v. McKellar, 494 U. S. 407,
494 U. S. 414
(1990).
Accord, Parks, supra, 494 U.S. at
494 U. S. 488
(quoting
Butler, supra, 494 U.S. at
494 U. S.
414). I continue to regard the Court's effort to curtail
the scope of federal habeas as inconsistent with Congress's intent
to provide state prisoners with an opportunity to redress "unlawful
state deprivations of their liberty interests through a fresh and
full review of their claims by an Article III court."
Butler,
supra, at
494 U. S. 427
(BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ.,
dissenting). Even under the majority's standard, though, if the
answer to a legal question is not "susceptible to debate among
reasonable minds,"
Butler, supra, at
494 U. S. 415,
or if existing precedent would have "compelled" state courts to
provide relief at the time the defendant's conviction became final,
Parks, supra, 494 U.S. at
494 U. S. 488,
then the decision does not announce a "new" legal rule within the
meaning of
Teague. In such circumstances, a defendant is
entitled to the retroactive benefit of the decision he seeks to
invoke.
A
The "new rule" inquiry spelled out in
Teague, Butler,
and
Parks confirms that
Caldwell did not create a
new rule. The roots of the
Caldwell rule can be traced
directly to this Court's Eighth Amendment decisions demanding
heightened
Page 497 U. S. 247
reliability in capital sentencing.
Woodson v. North
Carolina, supra, (plurality opinion);
Lockett v.
Ohio, 438 U. S. 586
(1978) (plurality opinion);
Eddings v. Oklahoma,
455 U. S. 104,
455 U. S.
118-119 (1982) (O'CONNOR, J., concurring). In
Woodson, Lockett, and
Eddings, the Court
considered and rejected States' efforts after
Furman v.
Georgia, 408 U. S. 238
(1972), to eliminate arbitrariness in the administration of the
death penalty by limiting or withdrawing the sentencer's
discretion. These decisions, as well as the post-
Furman
decisions in which the Court upheld capital sentencing schemes,
see, e.g., Gregg v. Georgia, 428 U.
S. 153 (1976);
Proffitt v. Florida,
428 U. S. 242
(1976);
Jurek v. Texas, 428 U. S. 262
(1976), emphasized that sentencers must confront their "truly
awesome responsibility of decreeing death for a fellow human . . .
with due regard for the consequences of their decision."
Lockett, supra, 438 U.S. at
438 U. S. 598
(plurality opinion) (internal quotation marks and citation
omitted). By the time of
Caldwell,
"this Court's Eighth Amendment jurisprudence ha[d] taken as a
given that capital sentencers would view their task as the serious
one of determining whether a specific human being should die at the
hands of the State."
472 U.S. at
472 U. S.
329.
The majority nonetheless insists that the "principle of
reliability in capital sentencing" is framed at such a high "level
of generality" that treating it as the relevant principle for
determining whether
Caldwell is new law would render
Teague "meaningless."
Ante at
497 U. S. 236.
This argument ignores the centrality of the
Caldwell rule
to reliability in capital sentencing.
Caldwell error
affects not just the consideration of some relevant sentencing
factors but the entire decisionmaking process itself. When a
prosecutor misleadingly tells the jury that its verdict may be
corrected on appeal, the prosecutor invites the jury to shirk its
sentencing responsibility. The prosecutor essentially informs the
jury that its verdict is less important because no execution will
occur without the independent approval of higher authorities. To
the extent
Page 497 U. S. 248
the prosecutor's comments are "focused, unambiguous, and
strong,"
Caldwell, supra, at
472 U. S. 340,
such misconduct casts irredeemable doubt on the resulting
verdict.
Some rules in capital proceedings do not contribute
fundamentally to reliability; as to such rules, the majority's
rejection of the reliability principle as too general may be apt.
For example, the rule of
Batson v. Kentucky, 476 U. S.
79 (1986), prohibiting the State from exercising
peremptory challenges in a racially discriminatory manner, does not
have a fundamental impact on the accuracy -- as opposed to the
integrity -- of the criminal process.
See Allen v. Hardy,
478 U. S. 255,
478 U. S. 259
(1986). The
Caldwell rule, though, is a prerequisite to
reliability in capital sentencing. Not unlike the right to counsel,
the right to a jury that understands the gravity of its task is
essential to the vindication of the other sentencing guarantees.
Meticulous presentation of evidence and careful instruction on the
law are of minimal value to a defendant whose jury has been led to
believe that its verdict is of little or no consequence. The
majority's observation that
Caldwell's prohibition against
misleading prosecutorial argument is specific thus does not
undermine Sawyer's assertion that it was dictated by the Eighth
Amendment's general insistence on reliability in capital
sentencing.
B
The majority's assertion that "there were in fact indications in
our decisions that the
Caldwell rule was not a requirement
of the Eighth Amendment,"
ante at
497 U. S. 237,
is unsupported by the cases on which the majority relies. In
California v. Ramos, 463 U. S. 992
(1983), the defendant had challenged California's requirement that
trial courts instruct capital juries about the Governor's power to
commute life sentences. In rejecting the Eighth Amendment
challenge, the Court emphasized that the challenged instruction was
accurate. The Court distinguished
Gardner v. Florida,
430 U. S. 349
(1977), in which the Court had struck down a death
Page 497 U. S. 249
sentence based in part on information contained in a presentence
report that had not been disclosed to defense counsel. Unlike
Gardner, where there was a "risk that some of the
information [relied on in sentencing] . . . may [have] be[en]
erroneous,"
id. at
430 U. S. 359
(plurality opinion), the sentencing decision in
Ramos did
not rest "in part on erroneous or inaccurate information." 463 U.S.
at
463 U. S.
1004.
See also ibid. (the "need for reliability
in capital sentencing" did not require reversal because the
challenged instruction gave the jury "accurate information").
Cf. Caldwell, 472 U.S. at
472 U. S. 342
(O'CONNOR, J., concurring in part and concurring in judgment) ("In
my view, the prosecutor's remarks were impermissible because they
were inaccurate and misleading in a manner that diminished the
jury's sense of responsibility. I agree that there can be no
valid state penological interest' in imparting inaccurate or
misleading information that minimizes the importance of the jury's
deliberations in a capital sentencing case") (quoting id.
at 472 U. S. 336
(majority opinion)). The Ramos Court's approval of
California's decision to provide capital juries with accurate
information respecting commutation cannot reasonably be read as an
approval of misleading or inaccurate prosecutorial argument
concerning the scope of appellate review.
That the Mississippi Supreme Court in
Caldwell
erroneously read
Ramos so broadly does not, as the
majority argues, "sugges[t] that prior to
Caldwell our
cases did not put other courts on notice that the Eighth Amendment
compelled the
Caldwell result."
Ante at
497 U. S. 237.
Some courts will misconstrue our precedents notwithstanding their
clarity,
see, e.g., McKoy v. North Carolina, 494 U.
S. 433,
494 U. S.
439-441 (1990) (state court failed to adhere to clear
direction of
Mills v. Maryland, 486 U.
S. 367 (1988)), and the mere fact that a single court
adopts a position contrary to the one dictated by our precedents
does not confirm that the case law was unclear. Indeed, if that
were the standard, almost every Supreme Court decision would
announce a new rule, as we
Page 497 U. S. 250
seldom take cases to resolve issues as to which the lower courts
are in universal agreement. Moreover, under the majority's view,
state court decisions, by misconstruing the scope of this Court's
Eighth Amendment decisions, would simultaneously limit the reach of
those decisions as a matter of federal law.
Cf. ante at
497 U. S.
240.
Ironically, the majority regards one errant decision by the
Mississippi Supreme Court as evidence of uncertainty, and yet
dismisses as irrelevant to its "new rule" inquiry the States'
near-unanimous rejection of
Caldwell-type prosecutorial
argument prior to
Caldwell, supra, 472 U.S. at
472 U. S.
333-334, and n. 4 (collecting cases). Even the
Mississippi Supreme Court declared that "[a]ny argument by the
state which distorts or minimizes the solemn obligation and
responsibility of the jury is serious error."
Hill v.
State, 432 So. 2d
427, 439 (Miss.1983) (refusing to rule on defendant's
Caldwell-type claim, however, because of the absence of a
contemporaneous objection). State decisions, even if they are not
premised on federal law, play a part in determining the status of
constitutional protections under the Eighth Amendment. That
Amendment "draw[s] its meaning from the evolving standards of
decency that mark the progress of a maturing society,"
Trop v.
Dulles, 356 U. S. 86,
356 U. S. 101
(1958) (plurality opinion), and this Court has often looked to the
laws of the States as a barometer of contemporary values,
see,
e.g., Penry v. Lynaugh, 492 U. S. 302,
492 U. S.
330-331 (1989);
Ford v. Wainwright,
477 U. S. 399,
477 U. S.
408-409 (1986). Of course, the recognition of a right
under state law does not translate automatically into the existence
of federal constitutional protection. But a consensus among States
regarding an essential ingredient to "a fair trial in the
sentencing phase,"
State v. Berry, 391 So.
2d 406, 418 (La.1980) (opinion on rehearing), is evidence that
the right is cognizable under the federal Constitution. The States'
strong pre-
Caldwell condemnation of misleading
prosecutorial argument regarding the scope of appellate review
Page 497 U. S. 251
is thus additional evidence that our Eighth Amendment decisions
compelled the result in
Caldwell.
Moreover, the majority's contention that the state courts based
their decisions solely on "state common law,"
ante at
497 U. S. 239,
assumes that States' capital punishment jurisprudence has evolved
independently of our Eighth Amendment decisions. But state
decisions regarding capital sentencing procedures -- even those
that do not explicitly mention federal law -- are surely informed
by federal principles, and should thus be accorded some weight in
discerning the scope of federal protections. Only an especially
condescending federalism would protect States from retroactive
application of federal law by dismissing state decisions concerning
capital sentencing as irrelevant to the lineage of the federal law.
[
Footnote 1]
C
This Court's approach to improper prosecutorial comments in
Donnelly v. DeChrstoforo, 416 U.
S. 637 (1974), also supports a finding that
Caldwell did not establish a new rule. In
Donnelly, the prosecutor hinted that the defendant might
have been willing to accept a lesser penalty for his crime,
implicitly suggesting that the defendant had acknowledged his
guilt. The Court held that this comment did not violate the Due
Process Clause because it was ambiguous, corrected by the trial
court, and too fleeting to have influenced the jury.
Id.
at
416 U. S.
643-645. The
Donnelly Court specifically
Page 497 U. S. 252
confined its decision to prosecutorial comments that did not
implicate "specific guarantees of the Bill of Rights."
Id.
at
416 U. S. 643.
Had the claim implicated such rights, the Court acknowledged that
"special care" would be required "to assure that prosecutorial
conduct in no way impermissibly infringe[d] them."
Ibid.
Donnelly was decided prior to the Court's explicit
recognition in the cases following
Gregg that the Eighth
Amendment affords special protections to defendants facing the
death penalty. The Court's decisions in the decade after
Donnelly but before
Caldwell made unmistakably
clear that the death penalty's qualitatively different character
from all other punishments necessitates "a corresponding difference
in the need for reliability in the determination that death is the
appropriate punishment in a specific case."
Woodson, 428
U.S. at
428 U. S. 305
(plurality opinion).
See also Beck v. Alabama,
447 U. S. 625,
447 U. S.
637-638 (1980) (quoting
Gardner, 430 U.S. at
430 U. S.
357-358 (plurality opinion)). Moreover, our
jurisprudence by the time of
Caldwell indicated
unambiguously that the Eighth Amendment protects against the
risk that the death penalty would be imposed in an
arbitrary or capricious manner.
Gregg, 428 U.S. at
428 U. S. 188
(joint opinion of Stewart, Powell, and STEVENS, JJ.);
see also
Lockett, 438 U.S. at
438 U. S. 605
(plurality opinion). In light of the Court's repeated emphasis on
indispensable safeguards guaranteed in capital sentencing by a
provision of the Bill of Rights, a court faced with misleading
prosecutorial comments about the jury's sentencing role just prior
to
Caldwell could not reasonably have concluded on the
basis of
Donnelly that such comments would survive this
Court's scrutiny.
The majority's contrary conclusion rests on a misunderstanding
of the relationship between
Caldwell and
Donnelly. The majority endorses the Fifth Circuit's view
that
"[t]he only defendants who need to rely on
Caldwell
rather than
Donnelly are those who must concede that the
prosecutorial argument in their case was not so harmful as to
render their
Page 497 U. S. 253
sentencing trial 'fundamentally unfair.'"
Ante at
497 U.S.
243-244 (quoting 881 F.2d 1273, 1293 (1989)). But
Caldwell is not, as the majority argues, "an additional
measure of protection against error, beyond that afforded by
Donnelly, in the special context of capital sentencing."
Ante at
497 U. S. 244.
This analysis erroneously presumes precisely what
Caldwell
denies, that "focused, unambiguous, and strong," prosecutorial
arguments that mislead a jury about its sentencing role in the
capital context can ever be deemed harmless.
Caldwell
rests on the view that any strong, uncorrected, and unequivocal
prosecutorial argument minimizing the jury's sense of
responsibility for its capital sentencing decision "presents an
intolerable danger that the jury will in fact choose to minimize
the importance of its role." 472 U.S. at
472 U. S. 333.
Caldwell thus tells us that a capital trial in which the
jury has been misled about its sentencing role is fundamentally
unfair, and therefore violates
Donnelly as well.
The majority's claim that
Maggio v. Williams,
464 U. S. 46
(1983), provides more "direct evidence" that the rule of
Caldwell was not clear at the time petitioner's conviction
became final,
ante at
497 U. S. 237,
is likewise unconvincing. In
Williams, the Court vacated
the Fifth Circuit's entry of a stay in a capital case because
Williams' contentions were "insubstantial." 464 U.S. at
464 U. S. 52.
Williams alleged,
inter alia, that the prosecutor's
closing argument had "elicited a decision based on passion rather
than reason."
Id. at
464 U. S. 49.
Some, but not all, of the prosecutor's argument referred to the
scope of appellate review.
See id. at
464 U. S. 53-54
(STEVENS, J., concurring in judgment). When the motion to vacate
the stay came to this Court, the sole issue was whether there was
"a reasonable probability" that four members of the Court would
vote to grant certiorari.
Id. at
464 U. S. 48
(internal quotation marks omitted). In view of Williams' prior
unsuccessful efforts to secure relief on similar claims, the Court
applied "a strict standard of review" to Williams' application.
Id. at
464 U. S. 55
(STEVENS, J., concurring in judgment). The Court did not discuss
the
Page 497 U. S. 254
merits of Williams' claim regarding the prosecutorial argument
other than to note that the District Court had given it "full
consideration,"
id. at
464 U. S. 49,
and had found "that it did not render Williams' trial fundamentally
unfair,"
id. at
464 U. S. 50.
The Court's vacation of the stay in these circumstances thus
reflects only the Court's view that Williams' claims, in such a
posture, did not "warrant certiorari and plenary consideration."
Id. at
464 U. S. 48.
[
Footnote 2] In sum, because
the cases that dictated the result in
Caldwell were
decided before Sawyer's conviction became final in 1984, he is
entitled to careful review of the merits of his
Caldwell
claim.
II
Even if
Caldwell established a "new rule," that rule
nonetheless is available on federal habeas because it is a rule
"without which the likelihood of an accurate [verdict] is seriously
diminished,"
Teague, 489 U.S. at
489 U. S. 313.
The devastating impact of prosecutorial argument that diminishes
jurors' sense of responsibility is revealed in the state court
decisions condemning such argument.
See, e.g., Fleming v.
State, 240 Ga. 142, 146,
240 S.E.2d 37,
40 (1977) (holding that "this type of remark has an unusual
potential for corrupting the death sentencing process");
State
v. Berry, 391 So. 2d at 418 ("If the reference conveys the
message that the jurors' awesome responsibility is lessened by the
fact that their decision is not the final one, or if the reference
contains inaccurate or misleading information, then the defendant
has not had a fair trial in the sentencing phase, and the penalty
should be vacated");
Ward v. Commonwealth, 695 S.W.2d
Page 497 U. S. 255
404, 408 (Ky.1985) (holding that "the prosecutor clearly sought
to divert from the minds of the jurors their true responsibility in
this case by implying that the ultimate responsibility would fall
to the trial judge, this court, [or] other appellate courts. . . .
This is clearly an error of reversible magnitude");
Hill v.
State, 432 So. 2d at 439 ("Any argument by the state which
distorts or minimizes this solemn obligation and responsibility of
the jury is serious error. . . . [I]n a death penalty case, a jury
should never be given false comfort that any decision they make
will, or can be, corrected");
Wiley v.
State, 449 So. 2d
756, 762 (Miss.1984) ("While a jury is not literally
the
hangman,' only they [sic] may supply the hangman's victims. All
notions of justice require that the jurors as individuals, and as a
body, recognize and appreciate the gravity of their
role").
The majority's underestimation of
Caldwell's importance
rests on the defect discussed above,
supra, at
497 U. S.
252-253, namely, the view that a
Caldwell error
will not render a trial fundamentally unfair. [
Footnote 3] The majority's vague suggestion that
Caldwell serves as "a protection of systemic value for
state and federal courts charged with reviewing capital
proceedings,"
ante at
497 U. S. 244,
does not disguise its inability to identify, in concrete terms, a
situation in which
Caldwell error occurs and yet the
capital proceeding can be described as fundamentally
Page 497 U. S. 256
fair.
See Caldwell, 472 U.S. at
472 U. S. 341
(holding that if improper prosecutorial comment occurs, the
sentencing decision "does not meet the standard of reliability that
the Eighth Amendment requires").
Nor does
Dugger v. Adams, 489 U.
S. 401 (1989), undermine
Caldwell's status as a
fundamental rule. The issue there was whether a particular
defendant who had failed to object to misleading prosecutorial
argument at sentencing had suffered sufficient prejudice to justify
overlooking a state procedural bar. 489 U.S. at
489 U. S. 406.
The Court's denial of relief rested largely on the importance of
the State's "interest in having the defendant challenge a faulty
instruction in a timely manner so that it can correct the
misstatement."
Id. at
489 U. S. 409;
see also Wainwright v. Sykes, 433 U. S.
72,
433 U. S. 87
(1977). The stringent standard for excusing procedural defaults
against a particular defendant is premised on
"the dual notion that, absent exceptional circumstances, a
defendant is bound by the tactical decisions of competent counsel,
and that defense counsel may not flout state procedures and then
turn around and seek refuge in federal court from the consequences
of such conduct."
Reed v. Ross, 468 U. S. 1,
468 U. S. 13
(1984) (citations omitted).
No such concern with enforcing state procedural rules against a
particular defendant is at stake when we decide whether to apply
new constitutional principles retroactively to all federal habeas
cases. Our inquiry instead focuses on the importance of the new
principle generally to the fairness and accuracy of the proceedings
in which that principle went unobserved. Whereas the
Teague inquiry focuses on the general necessity of a rule
to ensure an accurate verdict in all cases, the Court will overlook
a clear procedural default only if the error has "probably resulted
in the conviction of one who is actually innocent," 489 U.S. at
489 U. S. 412,
n. 6 (internal quotation marks omitted). The strict procedural
default rule is designed in part to protect the State's interest --
unique in
Page 497 U. S. 257
the context of procedural default -- in correcting error in the
first instance.
Sykes, supra, 433 U.S. at
433 U. S.
88-90.
Finally, the fundamental importance of
Caldwell cannot
be denied on the ground that "it is
unlikely that many [new
rules] of basic due process [essential to accuracy and fairness]
have yet to emerge.'" Ante at 497 U.S. 243 (quoting Teague,
489 U.S. at 489 U. S.
313). The majority cannot bind the future to present
constitutional understandings of what is essential for due process.
See, e.g., Hurtado v. California, 110 U.
S. 516, 110 U. S.
530-531 (1884). We would rightly regard such a statement
as an expression of hubris were we to discover it in a volume of
the United States Reports from 100, 50, or even 20 years ago, at
which time, incidentally, this Court, "[i]n light of history,
experience, and the present limitations of human knowledge,"
rejected the argument
"that committing to the untrammeled discretion of the jury the
power to pronounce life or death in capital cases is offensive to
anything in the Constitution."
McGautha v. California, 402 U.
S. 183,
402 U. S. 207
(1971) (footnote omitted);
cf. Gregg, 428 U.S. at
428 U. S. 189
(joint opinion of Stewart, Powell, and STEVENS, JJ.) ("Furman
mandates that where discretion is afforded a sentencing body on a
matter so grave as the determination of whether a human life should
be taken or spared, that discretion must be suitably directed and
limited so as to minimize the risk of wholly arbitrary and
capricious action"). Moreover, the notion that we have already
discovered all those procedures central to fundamental fairness is
squarely inconsistent with our Eighth Amendment methodology, under
which "bedrock" Eighth Amendment principles emerge in light of new
societal understandings and experience.
See, e.g., Coker v.
Georgia, 433 U. S. 584,
433 U. S.
593-597 (1977) (plurality opinion).
III
The Court's refusal to allow Sawyer the benefit of
Caldwell reveals the extent to which
Teague and
its progeny unjustifiably
Page 497 U. S. 258
limit the retroactive application of accuracy-enhancing criminal
rules. Prior to
Teague, our retroactivity jurisprudence
always recognized a difference between rules aimed primarily at
deterring police conduct and those designed to promote the accuracy
of criminal proceedings. Although the former generally were not
applied retroactively,
see, e.g., Linkletter v. Walker,
381 U. S. 618,
381 U. S.
636-637 (1965), the Court routinely afforded defendants
the benefit of
"new constitutional doctrine [whose purpose] is to overcome an
aspect of the criminal trial that substantially impairs its
truth-finding function and so raises serious questions about the
accuracy of guilty verdicts in past trials."
Williams v. United States, 401 U.
S. 646,
401 U. S. 653
(1971) (plurality opinion). We departed from the general rule
favoring retroactive application of accuracy-enhancing rules only
in special cases in which retroactivity would have undermined
substantial reliance interests of law enforcement officials and
prosecutors who acted in good faith prior to the change in the law.
See, e.g., Stovall v. Denno, 388 U.
S. 293 (1967).
The state prosecutor in this case surely could not claim a
good-faith belief in the legitimacy of the conduct proscribed in
Caldwell -- misleading and inaccurate argument designed to
minimize the jury's sentencing responsibility. Indeed, the State
seems to concede as much, framing its reliance interest, beyond its
general interest in the finality of its convictions, as the right
to have "misleading prosecutorial remarks . . . reviewed under the
fundamental fairness standard of due process" rather than the
Eighth Amendment. Brief for Respondent 16. This purported reliance
interest depends on the erroneous view that
Caldwell error
could survive review under the Due Process Clause.
See
supra at
497 U. S. 257.
But even granting a distinction in the degree of scrutiny applied
by
Donnelly and
Caldwell, the State's claimed
interest in having its intentional misconduct reviewed under a less
demanding standard is hardly worth crediting.
Page 497 U. S. 259
The State is thus left to rely solely on its general interest in
the finality in its criminal proceedings. Before today, such an
interest was never alone sufficient to preclude vindication of
constitutional rights on federal habeas.
See Reed v. Ross,
468 U.S. at
468 U. S. 15.
Teague itself, of course, stated that it was departing
from our traditional approach. But that case, as well as
Butler and
Parks, involved rules that the Court
did not recognize as contributing meaningfully to the accuracy of
criminal proceedings.
See Teague, 489 U.S. at
489 U. S. 315
(failure to apply rule does not "seriously diminish the likelihood
of obtaining an accurate conviction");
Butler, 494 U.S. at
494 U. S. 416
(failure to apply rule "would not seriously diminish the likelihood
of obtaining an accurate determination -- indeed, it may increase
that likelihood");
Parks, 494 U.S. at
494 U. S. 495
("[t]he objectives of fairness and accuracy are more likely to be
threatened than promoted" by the rule);
cf. ante at
497 U. S. 244
(acknowledging that
Caldwell's central purpose is to
enhance "the accuracy of capital sentencing"). Those cases thus
could have been decided in the same way under our prior
retroactivity doctrine, which weighed the State's finality and
reliance interests against the defendant's interests protected by
the new rule.
No such balancing of the competing concerns occurs today. The
Court instead simply elevates its preference for finality in state
proceedings over Congress's commitment "to provide a federal forum
for state prisoners . . . by extending the habeas corpus powers of
the federal courts to their constitutional maximum,"
Fay v.
Noia, 372 U. S. 391,
372 U. S. 426
(1963). This raw preference for finality is unjustified. Although a
State undoubtedly possesses a legitimate interest in the finality
of its convictions, when the State itself undermines the accuracy
of a capital proceeding, that general interest must give way to the
demands of justice.
IV
The jury that sentenced Sawyer to death was deliberately misled
about the significance of its verdict. That Sawyer
Page 497 U. S. 260
was thus denied a fundamentally fair trial was as apparent when
Sawyer's conviction became final as it is today. The Court's
refusal to allow a federal habeas court to correct this error is
yet another indication that the Court is less concerned with
safeguarding constitutional rights than with speeding defendants,
deserving or not, to the executioner. I dissent.
V
Even if I did not believe that Sawyer was entitled to federal
habeas review of his
Caldwell claim, I would nonetheless
vacate his death sentence. I adhere to my view that the death
penalty is in all circumstances cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. at
428 U. S. 231
(MARSHALL, J., dissenting).
[
Footnote 1]
That
Penry v. Lynaugh, 492 U.
S. 302,
492 U. S. 329
(1989), and
Teague v. Lane, 489 U.
S. 288,
489 U. S. 301
(1989), cite
Ford v. Wainwright, 477 U.
S. 399 (1986), as crafting a "new" rule does not
establish that state decisions are irrelevant in assessing the
status of a right under the federal Constitution.
Cf. ante
at
497 U. S. 240.
Neither of these opinions discussed the citation to
Ford,
and the force of their conclusions is undermined by this Court's
subsequent reliance on state decisions in
Saffle v. Parks,
494 U. S. 484
(1990), to determine whether the rule invoked in that case was
compelled by our Eighth Amendment decisions,
see id. at
494 U. S.
490-491 (citing state decisions). State decisions cannot
be deemed relevant to the
Teague inquiry only to the
extent that they
disprove the rootedness of a
constitutional right.
[
Footnote 2]
The majority nonetheless views
Williams as casting some
doubt on the ultimate disposition of
Caldwell v.
Mississippi, 472 U. S. 320
(1975), because the prosecutor's argument in
Williams was
"very similar to [the argument] in
Caldwell."
Ante at
497 U. S. 237.
That position, though, is overbroad. The district court's finding
that Williams' trial was not fundamentally unfair under
Donnelly v. DeChristoforo, 416 U.
S. 637 (1974), was tantamount to a finding that
Williams' jury was not misled about its sentencing role.
See
Williams v. King, 573 F.
Supp. 525, 530 531 (M.D.La.1983).
[
Footnote 3]
The majority's rejection of the States' view that
Caldwell's prohibitions are vital to the fairness of a
capital proceeding reveals a tension in the Court's retroactivity
doctrine. At the same time that the majority insists that
Caldwell was not dictated by our Eighth Amendment
decisions, the majority also argues that
Caldwell is not a
fundamental rule because it affected only an incremental change in
capital sentencing.
See ante at
497 U. S. 244
(stating that
Caldwell provides merely an "additional
measure of protection against error, beyond that afforded by
Donnelly"). A rule may be "new" even if it is designed to
serve interests substantially similar to an "old" rule. The
majority's extensive effort in its "new rule" analysis to
demonstrate that
Caldwell's "additional" protections
marked a departure in our Eighth Amendment jurisprudence, however,
seems disingenuous in light of its conclusion that the departure
did not amount to much.