Petitioner was convicted of capital murder and rape after a jury
trial in a South Carolina court. The State sought the death
penalty, and a separate sentencing hearing was held before the
trial jury. Following the State's introduction of evidence in
aggravation of the offense, petitioner presented as mitigating
evidence his own testimony and that of his former wife, his mother,
his sister, and his grandmother. He then sought to introduce
testimony of two jailers and a "regular visitor" to the effect that
he had "made a good adjustment" during the 7 1/2 months he had
spent in jail between his arrest and trial. The trial court ruled
such evidence irrelevant and inadmissible, and petitioner was
sentenced to death. The South Carolina Supreme Court affirmed the
death sentence, rejecting petitioner's contention that the trial
court had committed constitutional error in excluding the testimony
of the jailers and visitor.
Held: The trial court's exclusion from the sentencing
hearing of the testimony of the jailers and the visitor denied
petitioner his right to place before the sentencing jury all
relevant evidence in mitigation of punishment.
Lockett v.
Ohio, 438 U. S. 586;
Eddings v. Oklahoma, 455 U. S. 104. Pp.
476 U. S. 4-9.
(a) The record does not support the State's contention that the
trial court's ruling was no more than an application of rules
restricting the use of lay opinion testimony. Pp.
476 U. S. 5-6.
(b) Nor is there any support in the record for the State's
contention that the trial court's ruling was not improper because
it did not prevent petitioner from introducing evidence of past
good conduct in jail, but
Page 476 U. S. 2
only foreclosed the introduction of "irrelevant" evidence of his
future adaptability to prison life. Pp.
476 U. S. 6-7.
(c) And, contrary to the State's suggestion, it is implausible,
on the facts, to characterize the excluded evidence as cumulative,
and its exclusion as harmless error. Pp.
476 U. S. 7-9.
285 S.C. 42,
328 S.E.2d
68, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J.,
filed an opinion concurring in the judgment, in which BURGER, C.J.,
and REHNQUIST, J., joined,
post, p. 9.
JUSTICE WHITE delivered the opinion of the Court.
Petitioner Ronald Skipper was convicted in a South Carolina
trial court of capital murder and rape. The State sought the death
penalty, and a separate sentencing hearing was held before the
trial jury under S.C.Code ยง 16-3-20 (1985), which provides for a
bifurcated trial and jury sentencing in capital cases. Following
introduction by the State of evidence in aggravation of the offense
(principally evidence of petitioner's history of sexually
assaultive behavior), petitioner presented as mitigating evidence
his own testimony and that of his former wife, his mother, his
sister, and his grandmother. This testimony, for the most part,
concerned
Page 476 U. S. 3
the difficult circumstances of his upbringing. Petitioner and
his former wife, however, both testified briefly that petitioner
had conducted himself well during the 7 1/2 months he spent in jail
between his arrest and trial. Petitioner also testified that,
during a prior period of incarceration, he had earned the
equivalent of a high school diploma, and that, if sentenced to life
imprisonment rather than to death, he would behave himself in
prison, and would attempt to work so that he could contribute money
to the support of his family.
Petitioner also sought to introduce testimony of two jailers and
one "regular visitor" to the jail to the effect that petitioner had
"made a good adjustment" during his time spent in jail. The trial
court, however, ruled that, under the South Carolina Supreme
Court's decision in
State v. Koon, 278 S.C. 528,
298 S.E.2d
769 (1982) (
Koon I), such evidence would be
irrelevant, and hence inadmissible. The decision in
Koon
I, the judge stated, stood for the rule that "whether
[petitioner] can adjust or not adjust" was "not an issue in this
case." App. 11.
After hearing closing arguments -- during the course of which
the prosecutor contended that petitioner would pose disciplinary
problems if sentenced to prison, and would likely rape other
prisoners,
id. at 13-14 -- the jury sentenced petitioner
to death. On appeal, petitioner contended that the trial court had
committed constitutional error in excluding the testimony of the
jailers and the visitor: the testimony of these witnesses,
petitioner argued, would have constituted relevant mitigating
evidence, and exclusion of such evidence was improper under this
Court's decisions in
Lockett v. Ohio, 438 U.
S. 586 (1978), and
Eddings v. Oklahoma,
455 U. S. 104
(1982). The Supreme Court of South Carolina rejected petitioner's
contention, stating:
"The trial judge properly refused to admit evidence of
[petitioner's]
future adaptability to prison life.
State v. Koon, supra. However, evidence of his past
adaptability was admitted through testimony of his former wife,
Page 476 U. S. 4
his mother, and his own testimony. This contention is without
merit."
285 S.C. 42, 48,
328
S.E.2d 58, 61-62 (1985). We granted certiorari, 474 U.S. 900
(1985), to consider petitioner's claim that the South Carolina
Supreme Court's decision is inconsistent with this Court's
decisions in
Lockett and
Eddings, and we now
reverse.
There is no disputing that this Court's decision in
Eddings requires that, in capital cases,
"'the sentencer . . . 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 that the defendant
proffers as a basis for a sentence less than death.'"
Eddings, supra, at
455 U. S. 110
(quoting
Lockett, supra, at
438 U. S. 604
(plurality opinion of BURGER, C.J.)) (emphasis in original).
Equally clear is the corollary rule that the sentencer may not
refuse to consider or be precluded from considering "any relevant
mitigating evidence." 455 U.S. at
455 U. S. 114.
These rules are now well established, and the State does not
question them.
Accordingly, the only question before us is whether the
exclusion from the sentencing hearing of the testimony petitioner
proffered regarding his good behavior during the over seven months
he spent in jail awaiting trial deprived petitioner of his right to
place before the sentencer relevant evidence in mitigation of
punishment. It can hardly be disputed that it did. The State does
not contest that the witnesses petitioner attempted to place on the
stand would have testified that petitioner had been a well-behaved
and well-adjusted prisoner, nor does the State dispute that the
jury could have drawn favorable inferences from this testimony
regarding petitioner's character and his probable future conduct if
sentenced to life in prison. Although it is true that any such
inferences would not relate specifically to petitioner's
culpability for the crime he committed,
see Koon I, supra,
at 536, 298 S.E.2d at 774, there is no question but that such
inferences would be "mitigating" in the sense that
Page 476 U. S. 5
they might serve "as a basis for a sentence less than death."
Lockett, supra, at
438 U. S. 604.
Consideration of a defendant's past conduct as indicative of his
probable future behavior is an inevitable and not undesirable
element of criminal sentencing:
"any sentencing authority must predict a convicted person's
probable future conduct when it engages in the process of
determining what punishment to impose."
Jurek v. Texas, 428 U. S. 262, 275
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). The Court
has therefore held that evidence that a defendant would in the
future pose a danger to the community if he were not executed may
be treated as establishing an "aggravating factor" for purposes of
capital sentencing,
Jurek v. Texas, supra; see also Barefoot v.
Estelle, 463 U. S. 880
(1983). Likewise, evidence that the defendant would not pose a
danger if spared (but incarcerated) must be considered potentially
mitigating. [
Footnote 1] Under
Eddings, such evidence may not be excluded from the
sentencer's consideration.
The State advances several arguments as to why the exclusion of
petitioner's proffered evidence was, nonetheless, not erroneous.
First, the State contends that the trial court ruled only that
petitioner's witnesses could not offer incompetent lay opinion
testimony regarding petitioner's ability to adjust to prison life
in the future.
Eddings, the State argues, does not
displace reasonable state law rules regarding the competency of
testimony. The record does not, however, support the State's
contention that the trial court's
Page 476 U. S. 6
ruling was no more than an evenhanded application of rules
restricting the use of opinion testimony. It is true that
petitioner's request for a ruling on the admissibility of the
testimony of the two jailers and the "regular visitor" was
immediately preceded by an attempt to introduce his former wife's
opinion (ruled inadmissible by the trial judge, App. 10) regarding
his prospects for adjustment to prison life. In seeking a ruling on
the testimony of the three witnesses at issue here, however,
petitioner made it clear that he expected them "to testify that
[petitioner]
has made a good adjustment" to jail.
Id. at 11 (emphasis added). Defense counsel was not
offering opinion testimony regarding future events. Under these
circumstances, any ruling premised on the assumption that
petitioner planned to present incompetent opinion testimony would
have been -- as the State conceded at oral argument -- a "mistake."
Such a misunderstanding could by no means justify the exclusion of
nonopinion evidence bearing on the defendant's ability to adjust to
prison life.
Second, the State echoes the South Carolina Supreme Court in
arguing that the trial court's ruling was not improper, because it
did not prevent petitioner from introducing evidence of past good
conduct in jail for purposes of establishing his good character,
but only foreclosed the introduction of "irrelevant" evidence of
his
future adaptability to prison life. There is no clear
support for this contention in the record of this case, as the
trial court did not explicitly rely on any such distinction, and
appears to have excluded petitioner's evidence of good conduct for
any purpose whatsoever. The State's proposed distinction between
use of evidence of past good conduct to prove good character and
use of the same evidence to establish future good conduct in prison
seems to be drawn from the decision of the South Carolina Supreme
Court in another case altogether,
State v. Koon, 285 S.C.
1,
328 S.E.2d
625 (
Koon II),
cert. denied, 471 U.
S. 1036 (1985). There, the court stated that
although
"future
Page 476 U. S. 7
adaptability to prison [is] irrelevant evidence because it does
not bear on a defendant's character, prior record, or the
circumstances of his offense[,] . . . [p]ast behavior in prison
does bear on a defendant's character and, therefore, is
relevant."
285 S.C. at 3, 328 S.E.2d at 626. This distinction is elusive.
As we have explained above, a defendant's disposition to make a
well-behaved and peaceful adjustment to life in prison is itself an
aspect of his character that is, by its nature, relevant to the
sentencing determination. [
Footnote
2] Accordingly, the precise meaning and practical significance
of the decision in
Koon II and of the State's argument is
difficult to assess. Assuming, however, that the 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. Since the trial court's ruling in this case --
whether or not it can credibly be said to be consistent with
Koon II, at least had this effect, it cannot stand under
Eddings.
Finally, the State seems to suggest that exclusion of the
proffered testimony was proper because the testimony was merely
cumulative of the testimony of petitioner and his former
Page 476 U. S. 8
wife that petitioner's behavior in jail awaiting trial was
satisfactory, and of petitioner's testimony that, if sentenced to
prison rather than to death, he would attempt to use his time
productively, and would not cause trouble. We think, however, that
characterizing the excluded evidence as cumulative and its
exclusion as harmless is implausible on the facts before us. The
evidence petitioner was allowed to present on the issue of his
conduct in jail was the sort of evidence that a jury naturally
would tend to discount as self-serving. The testimony of more
disinterested witnesses -- and, in particular, of jailers who would
have had no particular reason to be favorably predisposed toward
one of their charges -- would quite naturally be given much greater
weight by the jury. Nor can we confidently conclude that credible
evidence that petitioner was a good prisoner would have had no
effect upon the jury's deliberations. The prosecutor himself, in
closing argument, made much of the dangers petitioner would pose if
sentenced to prison, and went so far as to assert that petitioner
could be expected to rape other inmates. Under these circumstances,
it appears reasonably likely that the exclusion of evidence bearing
upon petitioner's behavior in jail (and hence, upon his likely
future behavior in prison) may have affected the jury's decision to
impose the death sentence. Thus, under any standard, the exclusion
of the evidence was sufficiently prejudicial to constitute
reversible error.
The exclusion by the state trial court of relevant mitigating
evidence impeded the sentencing jury's ability to carry out its
task of considering all relevant facets of the character and record
of the individual offender. The resulting death sentence cannot
stand, although the State is of course not precluded from again
seeking to impose the death sentence, provided that it does so
through a new sentencing hearing at which petitioner is permitted
to present any and all relevant mitigating evidence that is
available.
Eddings, 455 U.S. at
455 U. S. 117.
The judgment of the Supreme Court of South Carolina
Page 476 U. S. 9
is therefore reversed insofar as it affirms the death sentence,
and the case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
[
Footnote 1]
The relevance of evidence of probable future conduct in prison
as a factor in aggravation or mitigation of an offense is
underscored in this particular case by the prosecutor's closing
argument, which urged the jury to return a sentence of death in
part because petitioner could not be trusted to behave if he were
simply returned to prison. Where the prosecution specifically
relies on a prediction of future dangerousness in asking for the
death penalty, it is not only the rule of
Lockett and
Eddings that requires that the defendant be afforded an
opportunity to introduce evidence on this point; it is also 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,
430 U. S. 362
(1977).
[
Footnote 2]
We do not hold that all facets of the defendant's ability to
adjust to prison life must be treated as relevant and potentially
mitigating. For example, we have no quarrel with the statement of
the Supreme Court of South Carolina that "how often [the defendant]
will take a shower" is irrelevant to the sentencing determination.
State v. Plath, 281 S.C. 1, 15,
313
S.E.2d 619, 627,
cert. denied, 467 U.
S. 1265 (1984). In the case before us, there is no
credible suggestion that petitioner sought to introduce evidence of
his personal hygiene practices. Rather, petitioner apparently
attempted to introduce evidence suggesting that he had been a
well-behaved and disciplined prisoner. Such evidence of
adjustability to life in prison unquestionably goes to a feature of
the defendant's character that is highly relevant to a jury's
sentencing determination.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, concurring in the judgment.
Although I agree that petitioner's death sentence must be
vacated, that result is not required by our decisions in
Lockett v. Ohio, 438 U. S. 586
(1978), and
Eddings v. Oklahoma, 455 U.
S. 104 (1982). I would reverse the judgment below, not
because the trial court excluded "relevant mitigating evidence"
within the meaning of those decisions,
id. at
455 U. S. 114;
see Lockett, supra, at
438 U. S.
604-605, but because petitioner was not allowed to rebut
evidence and argument used against him.
See Gardner v.
Florida, 430 U. S. 349
(1977).
I
In the course of cross-examining petitioner at his sentencing
proceeding, the prosecutor adduced testimony that petitioner had
kicked the bars of his cell following his arrest. [
Footnote 2/1] In closing argument, the prosecutor
contended that petitioner was likely to commit violent crimes in
prison if allowed to live, and referred to the incident in
petitioner's cell to support his characterization of petitioner as
a hopelessly violent man:
"[Petitioner's] wife said he told her . . . that he had been
raped in prison. With his history and what you know about him, who
do you think the raper was and who do
Page 476 U. S. 10
you think the rapee was? And if given the opportunity again with
this four-time sexual abusing loser, who do you think will get
raped in prison? Will it be Ronald Skipper, big old robust Ronald
Skipper who knocks woman [
sic] in the side of the head, or
will it be some little boy in prison?"
"
* * * *"
"These are the mitigating circumstances submitted by the
defendant. . . . That the defendant has shown significant and
positive adjustments to confinement and education and employment
skills that enable him to be a stable and productive prisoner.
Didn't he admit kicking on the bars over there? That's the kind of
prisoner he is. Kicking on the bar. Kicking on the bars. . . ."
App. 14.
Petitioner had offered evidence that would undermine this line
of argument: the testimony of two guards and a prison visitor, all
of whom would have testified that petitioner had behaved well while
in prison awaiting trial. The trial court excluded that evidence,
relying on the Supreme Court of South Carolina's decision in
State v. Koon, 278 S.C. 528,
298 S.E.2d
769 (1982). Petitioner was sentenced to death, and the Supreme
Court of South Carolina affirmed the sentence. 285 S.C. 42,
328 S.E.2d
58 (1985).
II
The Court correctly concludes that the exclusion of the
proffered testimony violated due process.
Ante at
476 U. S. 5, n. 1.
In
Gardner v. Florida, supra, we vacated a death sentence
on the ground that the sentencing judge had considered a
confidential presentence report without permitting the defendant to
see the report. The plurality concluded that the defendant was
denied due process because "the death sentence was imposed, at
least in part, on the basis of information which he had no
opportunity to deny or explain."
Id. at
430 U. S. 362
(opinion of STEVENS, J.).
See also id. at
430 U. S. 364
(WHITE, J., concurring in judgment) (applying the same analysis
Page 476 U. S. 11
under the Eighth Amendment). As in
Gardner, petitioner
in this case was not permitted to "deny or explain" evidence on
which his death sentence may, in part, have rested. This error was
aggravated by the prosecutor's closing argument, which emphasized
and exaggerated petitioner's misconduct in prison after his arrest.
Therefore, petitioner's death sentence violates the rule in
Gardner.
III
A
The Court unnecessarily abandons this narrow ground of decision
for a broader one, holding that the proffered testimony was
mitigating evidence that must be admitted under the Eighth
Amendment. In my view, the Court's reasoning is flawed. The Eighth
Amendment requires that the sentencing authority consider "relevant
mitigating evidence" concerning the defendant's "character or
record" and "the circumstances of the offense."
Eddings v.
Oklahoma, supra, at
455 U. S. 114;
Lockett v. Ohio, supra, at
438 U. S. 604.
But 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. 438 U.S. at
438 U. S. 604,
n. 12. As long as those determinations are reasonable -- as long as
they do not foreclose consideration of factors that may tend to
reduce the defendant's culpability for his crime,
see Eddings,
supra, at
455 U. S.
115-116 -- this Court should respect them.
I see no reason why a State could not, consistent with these
principles, exclude evidence of a defendant's good behavior in jail
following his arrest, as long as the evidence is not offered to
rebut testimony or argument such as that tendered by the
prosecution here. Such evidence has no bearing at all on the
"circumstances of the offense," since it concerns the defendant's
behavior after the crime has been committed. Nor does it say
anything necessarily relevant
Page 476 U. S. 12
about a defendant's "character or record," as that phrase was
used in
Lockett and Eddings.
Those decisions clearly focus on evidence that lessens the
defendant's culpability for the crime for which he was convicted.
The sentencing jury in
Lockett was barred from considering
evidence of the defendant's youth, her "lack of specific intent to
cause death," and "her relatively minor part in the crime." 438
U.S. at
438 U. S. 597.
Such evidence obviously bore strongly on the degree to which the
defendant was morally responsible for her crime; indeed, we have
since held that similar evidence
precludes application of
the death penalty for precisely this reason.
Enmund v.
Florida, 458 U. S. 782,
458 U. S.
798-801 (1982). In
Eddings, the judge refused
to consider the defendant's youth and history of "beatings by a
harsh father, and of severe emotional disturbance." 455 U.S. at
455 U. S. 115.
We emphasized that this evidence tended to diminish the defendant's
responsibility for his acts, noting that youths "are less mature
and responsible than adults,"
id. at
455 U. S. 116,
and that they
"'deserve less punishment, because adolescents may have less
capacity to control their conduct and to think in long-range terms
than adults.'"
Id. at
455 U. S. 115,
n. 11, quoting Twentieth Century Fund Task Force on Sentencing
Policy Toward Young Offenders, Confronting Youth Crime 7 (1978).
The type of evidence required to be admitted under
Lockett
and
Eddings thus pertained to conduct and circumstances
prior to the crime, and to the nature and extent of the
defendant's participation in the crime. In this case, for the first
time, the Court classifies as "mitigating" conduct that occurred
after the crime, and after the accused has been charged.
Almost by definition, such conduct neither excuses the defendant's
crime nor reduces his responsibility for its commission. It cannot,
therefore, properly be considered "mitigating evidence" that the
sentencer must consider under the Constitution.
Page 476 U. S. 13
B
It is useful to recall the origins of the rule the Court applies
today. Ten years ago, in
Woodson v. North Carolina,
428 U. S. 280
(1976), we determined that States could not carry out the death
penalty without some "particularized consideration of relevant
aspects of the character and record of each convicted defendant."
Id. at
428 U. S. 303
(plurality opinion).
See also Roberts v. Louisiana,
428 U. S. 325,
428 U. S.
333-336 (1976) (plurality opinion). That determination
flowed from the conviction that "individual culpability is not
always measured by the category of the crime committed."
Furman
v. Georgia, 408 U. S. 238,
408 U. S. 402
(1972) (BURGER, C.J., dissenting), quoted in
Woodson,
supra, at
428 U. S. 298.
See also Roberts, supra, at
428 U. S. 333.
Thus, we reasoned, it was unconstitutionally arbitrary to execute a
man or woman without considering factors showing that death was not
a "just and appropriate sentence."
Woodson, supra, at
428 U. S. 304.
Cf. Enmund v. Florida, supra.
Lockett and
Eddings followed naturally from
our decision in
Woodson. But it also follows from
Woodson and its companion cases that States are only bound
to consider those factors that are central to the fundamental
justice of execution. We have recognized that society has important
and legitimate interests in retribution and deterrence, and that
these interests provide the necessary justification for imposing
the death penalty.
Gregg v. Georgia, 428 U.
S. 153,
428 U. S.
183-187 (1976) (joint opinion). Society's legitimate
desire for retribution is less strong with respect to a defendant
who played a minor role in the murder for which he was convicted.
Cf. Lockett, 438 U.S. at
438 U. S. 597.
Similarly, the death penalty has little deterrent force against
defendants who have reduced capacity for considered choice.
Cf.
Eddings, 455 U.S. at
455 U. S. 115,
n. 11. Evidence concerning the degree of the defendant's
participation in the crime, or his age and emotional history, thus
bear directly on the fundamental justice
Page 476 U. S. 14
of imposing capital punishment. That simply cannot be said of
the defendant's behavior in prison following his arrest. Society's
interest in retribution can hardly be lessened by the knowledge
that a brutal murderer, for self-interested reasons, has been a
model of deportment in prison while awaiting trial or sentence. Nor
is society's important interest in deterrence served by allowing
such a murderer to avoid the death penalty by following his
counsel's advice to behave himself in a tightly controlled prison
environment. [
Footnote 2/2]
IV
Even if a defendant's apparent capacity to adjust well to prison
fell within the scope of the mitigating factors that must be
considered under
Lockett and
Eddings, a State
should have the right to exclude evidence of conduct in prison
while awaiting trial or sentencing. One arrested for a capital
crime, and particularly a convicted defendant awaiting sentencing,
has every incentive to behave flawlessly in prison if good behavior
might cause the sentencing authority to spare his life. [
Footnote 2/3] Good behavior in those
circumstances would
Page 476 U. S. 15
rarely be predictive as to the conduct of the prisoner after
sentence has been imposed. For this further reason, state courts
reasonably could determine that such evidence has little or no
probative value. Certainly it will not aid the sentencer in
"distinguishing the few cases in which [the death penalty] is
imposed from the many cases in which it is not."
Furman v.
Georgia, supra, at
408 U. S. 313
(WHITE, J., concurring), quoted in
Gregg v. Georgia,
supra, at
428 U. S.
188.
The Court's contrary determination apparently rests on the
notion that the States have little or no authority to decide that
certain types of evidence may have insufficient probative value to
justify their admission.
But cf. ante at
476 U. S. 7, n. 2.
Lockett explicitly rejected such an approach, 438 U.S. at
438 U. S. 604,
n. 12, and for good reason. This Court has no special expertise in
deciding whether particular categories of evidence are too
speculative or insubstantial to merit consideration by the
sentencer.
Cf. Barefoot v. Estelle, 463 U.
S. 880,
463 U. S.
899-902 (1983). It makes little sense, then, to
substitute our judgment of relevance for that of state courts and
legislatures. Nor is such intrusive review necessary in this
context to guard against fundamentally unjust executions. One
cannot plausibly equate the type of evidence at issue in
Lockett and
Eddings with evidence that a capital
defendant has refrained from assaulting anyone in prison while
awaiting trial or sentencing. I would therefore leave the
disposition of evidence of the kind involved here to the States,
subject to the requirements of due process.
[
Footnote 2/1]
The following colloquy took place at the close of the
cross-examination:
"Q: You are the fellow that, when you got to the Horry County
jail went to kicking the cell, right?"
"A: Yes, Sir."
"Q: That's you. [T]hat's the kind of fellow you are, but you are
nice today, right?"
App. 7.
[
Footnote 2/2]
We have noted that, for many types of murders, "the death
penalty undoubtedly is a significant deterrent."
Gregg v.
Georgia, 428 U. S. 153,
428 U. S.
185-186 (1976).
See also id. at
428 U. S. 186
(actual deterrent value of death penalty in particular contexts "is
a complex factual issue, the resolution of which properly rests
with the legislatures"). This deterrent value inevitably is diluted
when defendants are allowed to escape execution based on factors
that have nothing to do with their criminal responsibility. The
consequences of such mistakes extend further than the cases in
which they occur, for when some defendants are able to avoid
execution based on irrelevant criteria, there is a far graver risk
of injustice in executing others.
See Furman v. Georgia,
408 U. S. 238,
408 U. S.
311-314 (1972) (WHITE, J., concurring). I thus find it
difficult to accept the proposition that the Constitution compels
States to consider factors, such as a defendant's willingness to
conform to prison rules, that plainly undermine deterrence without
advancing retributive goals.
[
Footnote 2/3]
After today's decision, competent defense counsel in capital
cases will instruct their clients to behave like Eagle Scouts while
awaiting trial, and particularly while awaiting sentencing. In
capital cases, this will be more important to a defendant than the
customary advice of counsel in a criminal trial to advise his
client to behave himself while in the courtroom. It is indeed novel
doctrine that compliance with this advice by a defendant charged
with capital murder becomes a "mitigating factor" that the
sentencing judge or jury must -- as a matter of constitutional law
-- consider in passing sentence.