Petitioner was convicted in a North Carolina court of
first-degree murder. In the trial's sentencing phase, the jury made
a binding recommendation of death after finding unanimously, as
required by instructions given both orally and in a written verdict
form: (1) the existence of two statutory aggravating circumstances;
(2) the existence of two of eight possible mitigating
circumstances; (3) that the mitigating circumstances found were
insufficient to outweigh the aggravating circumstances found; and
(4) that the aggravating circumstances found were sufficiently
substantial to call for the imposition of the death penalty when
considered with the mitigating circumstances found. The State
Supreme Court rejected petitioner's challenge to his sentence,
distinguishing
Mills v. Maryland, 486 U.
S. 367. In
Mills, this Court reversed a death
sentence imposed under Maryland's capital punishment scheme because
that scheme precluded a jury from considering any mitigating
evidence unless all 12 jurors agreed on the existence of a
particular circumstance supported by that evidence. In contrast to
the Maryland procedure, which required the jury to impose a death
penalty if it found at least one aggravating circumstance and no
mitigating circumstances or unanimously agreed that the mitigating
circumstances did not outweigh the aggravating ones, the court
emphasized that Issue Four in North Carolina's scheme allowed the
jury to recommend life imprisonment if it felt that the aggravating
circumstances did not call for the death penalty even if it had
found several aggravating circumstances and no mitigating ones. The
court also reasoned that, whereas in Maryland's scheme evidence
remained "legally relevant" as long as one or more jurors found the
presence of a mitigating circumstance supported by that evidence,
in North Carolina's system, any evidence introduced to support a
mitigating factor that the jury did not unanimously find is legally
"irrelevant" and can be excluded from jurors' consideration.
Held: North Carolina's unanimity requirement
impermissibly limits jurors' consideration of mitigating evidence,
and hence is contrary to this Court's decision in
Mills,
supra. The State's Issue Four does not ameliorate the
constitutional infirmity created by the requirement. Although the
jury can opt for life imprisonment without finding any mitigating
circumstances, it is required to make its decision based only on
the circumstances it unanimously finds in Issue Two. Thus, one
holdout
Page 494 U. S. 434
juror can prevent the others from giving effect to evidence they
feel calls for a lesser sentence; moreover, even if all the jurors
agree that there are
some mitigating circumstances, they
can not give effect to evidence supporting any of those
circumstances unless they agree unanimously on the
same
circumstance. In addition, the state court's holding distorts the
concept of relevance. The mitigating circumstances not unanimously
found to be present by the jury did not become "irrelevant" to
mitigation merely because one or more jurors either did not believe
that the circumstance had been proved as a factual matter or did
not think that the circumstance, though proved, mitigated the
offense. Furthermore, the mere declaration that evidence is
"legally irrelevant" cannot bar the consideration of that evidence
if the sentencer could reasonably find that it warrants a sentence
less than death.
Skipper v. South Carolina, 476 U. S.
1;
Eddings v. Oklahoma, 455 U.
S. 104. The State misplaces its reliance on
Patterson v. New York, 432 U. S. 197, to
support its view that the unanimity requirement is a standard of
proof intended to ensure the reliability of mitigating evidence, as
Patterson did not involve the validity of a capital
sentencing procedure under the Eighth Amendment, which requires
States to allow consideration of mitigating evidence. It is no
answer that the jury is permitted to "consider" mitigating evidence
when it decides colt is primarily concerned with policy
considerations. . . . Conversely, adjudication is concerned with
the determination of past and present rights and liabilities.
Id. at 13-14.
These statements cannot conceivably be reconciled with the
Secretary's pion that may not be foreclosed by one or more jurors'
failure to find a mitigating circumstance under Issue Two.
Moreover, requiring unanimity on mitigating factors is not
constitutional merely because the State also requires unanimity on
aggravating circumstances.
Penry v. Lynaugh, 492 U.
S. 302. Pp.
494 U. S.
439-444.
323 N.C. 1,
372
S.E.2d 12 (1988), vacated and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. WHITE, J.,
post, p.
494 U. S. 444,
and BLACKMUN, J.,
post, p.
494 U. S. 445,
filed concurring opinions. KENNEDY, J., filed an opinion concurring
in the judgment,
post, p.
494 U. S. 452.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and O'CONNOR, J., joined,
post, p.
494 U. S.
457.
Page 494 U. S. 435
Justice MARSHALL delivered the opinion of the Court.
In this case, we address the constitutionality of the unanimity
requirement in North Carolina's capital sentencing scheme. That
requirement prevents the jury from considering, in deciding whether
to impose the death penalty, any mitigating factor that the jury
does not unanimously find. We hold that, under our decision in
Mills v. Maryland, 486 U. S. 367
(1988), North Carolina's unanimity requirement violates the
Constitution by preventing the sentencer from considering all
mitigating evidence. We therefore vacate petitioner's death
sentence and remand for resentencing.
I
Petitioner Dock McKoy, Jr., was convicted in Stanley County,
North Carolina, of first-degree murder. During the sentencing phase
of McKoy's trial, the trial court instructed the jury, both orally
and in a written verdict form, to answer four questions in
determining its sentence. Issue One asked:
Page 494 U. S. 436
"Do you unanimously find from the evidence, beyond a reasonable
doubt, the existence of one or more of the following aggravating
circumstances?"
App. 6, 23. The jury found two statutory aggravating
circumstances: that McKoy "had been previously convicted of a
felony involving the use or threat of violence to the person"
[
Footnote 1] and that the
murder was committed against a deputy sheriff who was "engaged in
the performance of his official duties." [
Footnote 2] The jury therefore answered "Yes" to Issue
One and was instructed to proceed to the next Issue.
Issue Two asked: "Do you unanimously find from the evidence the
existence of one or more of the following mitigating
circumstances?"
Id. at 8, 24. The judge submitted to the
jury eight possible mitigating circumstances. With respect to each
circumstance, the judge orally instructed the jury as follows:
"If you do not unanimously find this mitigating circumstance by
a preponderance of the evidence, so indicate by having your foreman
write, 'No,' in that space"
on the verdict form.
Id. at 10-13. The verdict form
reiterated the unanimity requirement:
"In the space after each mitigating circumstance, write 'Yes,'
if you unanimously find that mitigating circumstance by a
preponderance of the evidence. Write, 'No,' if you do not
unanimously find that mitigating circumstance by a preponderance of
the evidence."
Id. at 24.
The jury unanimously found the statutory mitigating circumstance
that McKoy's capacity "to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was impaired."
[
Footnote 3] It also
unanimously found the nonstatutory mitigating circumstance that
McKoy had a "borderline intellectual functioning with a IQ test
score of 74."
Id. at 25. The jury did not, however,
unanimously
Page 494 U. S. 437
find the statutory mitigating circumstances that McKoy committed
the crime while "under the influence of mental or emotional
disturbance" [
Footnote 4] or
that McKoy's age at the time of the crime, 65, was a mitigating
factor. [
Footnote 5] The jury
also failed to find unanimously four nonstatutory mitigating
circumstances: that for several decades, McKoy exhibited signs of
mental or emotional disturbance or defect that went untreated; that
McKoy's mental and emotional disturbance was aggravated by his poor
physical health; that McKoy's ability to remember the events of the
day of the murder was actually impaired; and that there was any
other circumstance arising from the evidence that had mitigating
value. [
Footnote 6]
Because the jury found the existence of mitigating
circumstances, it was instructed to answer Issue Three, which
asked:
"Do you unanimously find beyond a reasonable doubt that the
mitigating circumstance or circumstances
found by you is,
or are, insufficient to outweigh the aggravating circumstance or
circumstances found by you?"
Id. at 13, 26 (emphasis added). The jury answered this
issue "Yes," and so proceeded to the final issue. Issue Four
asked:
"Do you unanimously find beyond a reasonable doubt that the
aggravating circumstance or circumstances found by you is, or are,
sufficiently substantial to call for the imposition of the death
penalty when considered with the mitigating circumstance or
circumstances
found by you?"
Id. at 14, 26 (emphasis added). The jury again
responded "Yes." Pursuant to the verdict form and the court's
instructions, the jury therefore made a binding recommendation of
death.
During the pendency of petitioner's direct appeal to the North
Carolina Supreme Court, this Court decided
Mills v.
Page 494 U. S. 438
Maryland, supra. There, we reversed a death sentence
imposed under Maryland's capital punishment scheme because the jury
instructions and verdict form created
"a substantial probability that reasonable jurors . . . well may
have thought they were precluded from considering any mitigating
evidence unless all 12 jurors agreed on the existence of a
particular such circumstance."
Id. at
486 U. S. 384.
We reasoned that allowing a "holdout" juror to prevent the other
jurors from considering mitigating evidence violated the principle
established in
Lockett v. Ohio, 438 U.
S. 586 (1978), that a sentencer may not be precluded
from giving effect to all mitigating evidence. 486 U.S. at
486 U. S.
375.
Petitioner challenged his sentence on the basis of
Mills. The North Carolina Supreme Court, in a split
decision, purported to distinguish
Mills on two grounds,
and therefore denied relief. First, it noted that
"Maryland's procedure required the jury to impose the death
penalty if it 'found' at least one aggravating circumstance and did
not 'find' any mitigating circumstances"
or "if it unanimously found that the mitigating circumstances
did not outweigh the aggravating circumstances." 323 N.C. 1, 40,
372
S.E.2d 12, 33 (1988). In contrast, the court stated, Issue Four
in North Carolina's scheme allows the jury to recommend life
imprisonment
"if it feels that the aggravating circumstances are not
sufficiently substantial to call for the death penalty, even if it
has found several aggravating circumstances and no mitigating
circumstances."
Ibid.
Second, the court asserted that, whereas in Maryland's scheme
evidence remained "legally relevant" as long as one or more jurors
found the presence of a mitigating circumstance supported by that
evidence,
id. at 41, 372 S.E.2d at 34,
"in North Carolina, evidence in effect becomes legally
irrelevant to prove mitigation if the defendant fails to prove to
the satisfaction of all the jurors that such evidence supports the
finding of a mitigating factor,"
id. at 40, 372 S.E.2d at 33. The North Carolina Supreme
Court believed that we
Page 494 U. S. 439
had found the "relevance" of the evidence in
Mills a
significant factor because we had stated in a footnote that
""[n]o one has argued here, nor did the Maryland Court of
Appeals suggest, that mitigating evidence can be rendered legally
irrelevant' by one holdout vote.""
Id. at 41, 372 S.E.2d at 34 (quoting
Mills,
486 U.S. at
486 U. S. 375,
n. 7). The court thus interpreted
Mills as allowing States
to define as "irrelevant" and to exclude from jurors' consideration
any evidence introduced to support a mitigating circumstance that
the jury did not unanimously find. Accordingly, the State Supreme
Court upheld McKoy's death sentence.
II
Despite the state court's inventive attempts to distinguish
Mills, our decision there clearly governs this case.
First, North Carolina's Issue Four does not ameliorate the
constitutional infirmity created by the unanimity requirement.
Issue Four, like Issue Three, allows the jury to consider only
mitigating factors that it unanimously finds under Issue Two.
Although the jury may opt for life imprisonment even where it fails
unanimously to find any mitigating circumstances, the fact remains
that the jury is required to make its decision based only on those
circumstances it unanimously finds. The unanimity requirement thus
allows one holdout juror to prevent the others from giving effect
to evidence that they believe calls for a "
sentence less than
death.'" Eddings v. Oklahoma, 455 U.
S. 104, 455 U. S. 110
(1982), quoting Lockett, supra, at 438 U. S. 604
(plurality opinion). Moreover, even if all 12 jurors agree that
there are some mitigating circumstances, North Carolina's
scheme prevents them from giving effect to evidence supporting any
of those circumstances in their deliberations under Issues Three
and Four unless they unanimously find the existence of the
same circumstance. This is the precise defect that
compelled us to strike down the Maryland scheme in Mills.
See 486 U.S. at 486 U. S. 374.
Our decision in Mills was not limited to cases in which
the jury is required
Page 494 U. S. 440
to impose the death penalty if it finds that aggravating
circumstances outweigh mitigating circumstances or that no
mitigating circumstances exist at all. Rather, we held that it
would be the "height of arbitrariness to allow
or require
the imposition of the death penalty" where 1 juror was able to
prevent the other 11 from giving effect to mitigating evidence.
Ibid. (emphasis added).
Second, the State Supreme Court's holding that mitigating
evidence is "relevant" only if the jury unanimously finds that it
proves the existence of a mitigating circumstance distorts the
concept of relevance.
"[I]t is universally recognized that evidence, to be relevant to
an inquiry, need not conclusively prove the ultimate fact in issue,
but only have"
"any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence."
New Jersey v. T.L.0., 469 U. S. 325,
469 U. S. 345
(1985), quoting Fed.Rule Evid. 401. The meaning of relevance is no
different in the context of mitigating evidence introduced in a
capital sentencing proceeding. As the Chief Justice of the North
Carolina Supreme Court stated in dissent in this case:
"Relevant mitigating evidence is evidence which tends logically
to prove or disprove some fact or circumstance which a factfinder
could reasonably deem to have mitigating value. Whether the
factfinder accepts or rejects the evidence has no bearing on the
evidence's relevancy. The relevance exists even if the factfinder
fails to be persuaded by that evidence. It is not necessary that
the item of evidence alone convinces the trier of fact or be
sufficient to convince the trier of fact of the truth of the
proposition for which it is offered."
323 N.C., at 55-56, 372 S.E.2d at 45 (Exum, C. J., dissenting),
citing M. Graham, Handbook of Federal Evidence § 401.1, n. 12 (2d
ed. 1986). Clearly, then, the mitigating circumstances not
unanimously found to be present by the jury did not become
"irrelevant"
Page 494 U. S. 441
to mitigation merely because one or more jurors either did not
believe that the circumstance had been proved as a factual matter
or did not think that the circumstance, though proved, mitigated
the offense. [
Footnote 7]
Furthermore, our holdings in
Skipper v. South Carolina,
476 U. S. 1 (1986),
and
Eddings v. Oklahoma, supra, show that the mere
declaration that evidence is "legally irrelevant" to mitigation
cannot bar the consideration of that evidence if the sentencer
could reasonably find that it warrants a sentence less than death.
In
Skipper, the trial court had excluded as irrelevant to
mitigation evidence that the defendant had adjusted well to prison
life. This Court reversed the death sentence on the ground that
such evidence was "by its nature relevant to the sentencing
determination" because it might convince the jury that the
defendant "would pose no undue danger to his jailers or fellow
prisoners and could lead a useful life behind bars if sentenced to
life imprisonment." 476 U.S. at
476 U. S. 7.
Similarly, in
Eddings, the sentencing court had ruled that
it was precluded by law from considering evidence of the
defendant's troubled childhood and emotional disturbance. The State
Court of Criminal Appeals affirmed, holding that such evidence was
irrelevant to mitigation because it did not support a legal excuse
from criminal liability. This Court reversed on the ground that
such evidence was undoubtedly relevant to mitigation even if it did
not
excuse the defendant's conduct. 455 U.S. at
455 U. S.
113-116.
Nor can the State save the unanimity requirement by
characterizing it as a standard of proof intended to ensure the
reliability of mitigating evidence. The State's reliance on
Page 494 U. S. 442
Patterson v. New York, 432 U.
S. 197 (1977), is misplaced. In that case, this Court
rejected a due process challenge to a New York law requiring a
defendant charged with second-degree murder to prove by a
preponderance of the evidence the affirmative defense of extreme
emotional disturbance in order to reduce the crime to manslaughter.
The Court reasoned that a State is not constitutionally required to
provide that affirmative defense. But if a State
"nevertheless chooses to recognize a factor that mitigates the
degree of criminality or punishment, . . . the State may assure
itself that the fact has been established with reasonable
certainty."
Id. at
432 U. S. 209.
Patterson, however, did not involve the validity of a
capital sentencing procedure under the Eighth Amendment. The
Constitution
requires States to allow consideration of
mitigating evidence in capital cases. Any barrier to such
consideration must therefore fall. As we stated in
Mills:
"Under our decisions, it is not relevant whether the barrier to
the sentencer's consideration of all mitigating evidence is
interposed by statute,
Lockett v. Ohio, supra; Hitchcock v.
Dugger, 481 U. S. 393 (1987); by the
sentencing court,
Eddings v. Oklahoma, supra; or by an
evidentiary ruling,
Skipper v. South Carolina, supra. The
same must be true with respect to a single juror's holdout vote
against finding the presence of a mitigating circumstance. Whatever
the cause, . . . the conclusion would necessarily be the same:"
"Because the [sentencer's] failure to consider all of the
mitigating evidence risks erroneous imposition of the death
sentence, in plain violation of
Lockett, it is our duty to
remand this case for resentencing."
"
Eddings v. Oklahoma, 455 U.S. at
455 U. S.
117, n. * (O'CONNOR, J., concurring)."
486 U.S. at
486 U. S.
375.
It is no answer, of course, that the jury is permitted to
"consider" mitigating evidence when it decides collectively, under
Issue Two, whether any mitigating circumstances exist. Rather,
Mills requires that each juror be permitted
Page 494 U. S. 443
to consider and give effect to mitigating evidence when deciding
the ultimate question whether to vote for a sentence of death. This
requirement means that, in North Carolina's system, each juror must
be allowed to consider all mitigating evidence in deciding Issues
Three and Four: whether aggravating circumstances outweigh
mitigating circumstances, and whether the aggravating
circumstances, when considered with any mitigating circumstances,
are sufficiently substantial to justify a sentence of death. Under
Mills, such consideration of mitigating evidence may not
be foreclosed by one or more jurors' failure to find a mitigating
circumstance under Issue Two.
Finally, we reject the State's contention that requiring
unanimity on mitigating circumstances is constitutional because the
State also requires unanimity on aggravating circumstances. The
Maryland scheme in
Mills also required unanimity on both
mitigating and aggravating circumstances.
See id. at
486 U. S.
384-389. Such consistent treatment did not, however,
save the unanimity requirement for mitigating circumstances in that
case. A State may not limit a sentencer's consideration of
mitigating evidence merely because it places the same limitation on
consideration of aggravating circumstances. As the Court stated in
Penry v. Lynaugh, 492 U. S. 302
(1989):
"'In contrast to the carefully defined standards that must
narrow a sentencer's discretion to
impose the death
sentence, the Constitution limits a State's ability to narrow a
sentencer's discretion to consider relevant evidence that might
cause it to decline to impose the death sentence.'
McCleskey v.
Kemp, 481 U. S. 279,
481 U. S.
304 (1987) (emphasis in original). Indeed, it is
precisely because the punishment should be directly related to the
personal culpability of the defendant that the jury must be allowed
to consider and give effect to mitigating evidence relevant to a
defendant's character or record or the circumstances of the
offense."
Id. at
492 U. S.
327-328.
Page 494 U. S. 444
III
We conclude that North Carolina's unanimity requirement
impermissibly limits jurors' consideration of mitigating evidence
and hence is contrary to our decision in
Mills. [
Footnote 8] We therefore vacate the
petitioner's death sentence and remand this case to the North
Carolina Supreme Court for further proceedings not inconsistent
with this opinion.
It is so ordered.
[
Footnote 1]
N.C.Gen.Stat. § 15A-2000(e)(3) (1988).
[
Footnote 2]
§ 15A-2000(e)(8).
[
Footnote 3]
§ 15A-2000(f)(6).
[
Footnote 4]
§ 15A-2000(f)(2).
[
Footnote 5]
§ 15A-2000(f)(7).
[
Footnote 6]
§ 15A-2000(f)(9). Although this "catch-all" provision is
provided by statute, it is grouped with the nonstatutory
circumstances because it allows for the consideration of mitigating
factors not statutorily specified.
[
Footnote 7]
In North Carolina's capital sentencing scheme, if the jury finds
a statutory mitigating circumstance to be present, that
circumstance is deemed to have mitigating value as a matter of law.
State v. Stokes, 308 N.C. 634, 653,
304 S.E.2d
184, 196 (1983). For nonstatutory mitigating circumstances, the
jury must decide both whether the circumstance has been proved and
whether it has mitigating value.
See State v. Pinch, 306
N.C. 1, 26,
292 S.E.2d
203, 223,
cert. denied, 459 U.
S. 1056 (1982), citing
State v. Johnson, 298
N.C. 47, 72-74,
257 S.E.2d
597, 616-617 (1979).
[
Footnote 8]
In fact, this case presents an even clearer case for reversal
than
Mills v. Maryland, 486 U. S. 367
(1988). In
Mills, the Court divided over the issue whether
a reasonable juror could have interpreted the instructions in that
case as allowing individual jurors to consider only mitigating
circumstances that the jury unanimously found.
Compare id.
at
486 U. S.
375-384,
with id. at
486 U. S.
391-395. (REHNQUIST C.J., dissenting). Indeed, the
dissent in
Mills did not challenge the Court's holding
that the instructions, if so interpreted, were unconstitutional. In
this case, by contrast, the instructions and verdict form expressly
limited the jury's consideration to mitigating circumstances
unanimously found.
Justice WHITE, concurring.
There is nothing in the Court's opinion, as I understand it,
that would invalidate on federal constitutional grounds a jury
instruction that does not require unanimity with respect to
mitigating circumstances but requires a juror to consider a
mitigating circumstance only if he or she is convinced of its
existence by a preponderance of the evidence. Under such an
instruction, any juror must weigh in the balance any mitigating
circumstance that in his or her mind is established by a
preponderance of the evidence, whether or not any other jurors are
likewise convinced. Neither does the Court's opinion hold or infer
that the Federal Constitution forbids a state from placing on the
defendant the burden of persuasion with respect to mitigating
circumstances. On this basis, I concur in the Court's opinion.
Page 494 U. S. 445
Justice BLACKMUN, concurring.
I join the Court's opinion, but write separately only to
underscore my conviction that
Mills v. Maryland,
486 U. S. 367
(1988), controls this case and that
Mills was correctly
decided.
I
In the dissent's view, the Court in
Mills simply
assumed, but did not decide, the invalidity of a
requirement that mitigating factors could be considered by the jury
only if they were found unanimously. That characterization cannot
be squared with the text of the
Mills opinion. Part II of
that opinion directly addressed the question whether such a
requirement was permissible. The Court concluded that a rule
mandating unanimous agreement before any juror could consider a
particular mitigating factor was forbidden by our decisions in
Lockett v. Ohio, 438 U. S. 586
(1978), and
Eddings v. Oklahoma, 455 U.
S. 104 (1982). That conclusion was an essential step in
the Court's rationale for overturning the Maryland statute.
Ambiguous jury instructions, even in a capital case, do not violate
the Eighth Amendment simply because they are ambiguous. And the
question addressed in Part III of the opinion -- whether a
reasonable juror might have interpreted the instructions as
precluding his consideration of any mitigating factor not found
unanimously -- would have been wholly lacking in constitutional
significance if such a rule were permissible. Rather, the Maryland
instructions were held to be invalid because they were susceptible
of two plausible interpretations,
and under one of those
interpretations the instructions were unconstitutional.
The dissent acknowledges that "there is language in
[
Mills] suggesting that a unanimity requirement would
contravene this Court's decisions."
Post at
494 U. S. 459.
The dissent contends, however, that any such suggestions were
dicta. In the dissent's view, the propriety of a unanimity
requirement was not properly before the Court, since Maryland had
conceded that such a requirement would be unconstitutional, and
Page 494 U. S. 446
argued only that its instructions imposed no such rule. That
position is untenable.
First, even if the issue had not been disputed, the Court's
resolution of the question would constitute a binding precedent. It
is unusual, but hardly unheard of, for this Court to decide
significant legal questions on which the parties have not joined
issue.
See, e.g., Teague v. Lane, 489 U.
S. 288 (1989);
Penry v. Lynaugh, 492 U.
S. 302,
492 U. S.
313-314 (1989) (holding that
Teague principles
apply to capital sentencing). Although the wisdom of deciding such
issues without briefing and argument has been questioned,
see
Teague, 489 U.S. at
489 U. S.
326-327. (BRENNAN, J., dissenting);
Penry, 492
U.S. at
492 U. S. 349.
(STEVENS, J., concurring in part and dissenting in part), it has
not been suggested heretofore that such decisions are lacking in
precedential value. The dissent's approach to
stare
decisis would allow a respondent before this Court, by means
of a timely concession, to avoid resolution of a recurring legal
question so that it might be litigated at a more propitious time.
[
Footnote 2/1] This approach would
require that litigants seeking to rely on a decision of this Court
must scour the briefs in order to determine what points were and
were not contested. That is not and cannot be the law.
Moreover, the dissent distorts the record in contending that the
propriety of a unanimity requirement was not at issue in
Mills. The argument section of the petitioner's brief in
Mills began:
"The underlying question is whether the Maryland Legislature may
constitutionally require unanimous agreement by the jurors before
any mitigating circumstance may be considered in the weighing
process."
Brief for Petitioner, O.T.1987, No. 87-5367, p. 9. The bulk of
the State's response was devoted to the argument that no
Page 494 U. S. 447
reasonable juror would interpret the instructions in the manner
that
Mills suggested was possible. The State also
contended, however, that
"[u]nder the interpretation of the statute proffered by
Petitioner, an unconstitutional restriction existed in that
unanimity on a particular mitigating circumstance was required
before it could be weighed in determining the appropriate sentence.
However,
Lockett and
Eddings relate to
restrictions on
input,' not the subsequent deliberative
process. Although a jury has twelve component parts, it is a single
entity. The rejection of a mitigating circumstance, after
introduction and full consideration of the evidence, is simply a
factual determination. There is no legal impediment to the
consideration of the evidence. The requirement of jury unanimity is
simply not the type of restriction found unconstitutional in
Lockett and Eddings. See State v.
Kirkley, 308 N.C. 196, 302 S.E.2d
144, 157 (1983)."
(footnotes omitted). Brief for Respondent 19-20.
The dissent quotes the first sentence of this passage,
characterizing it as a "concession" by the State that a unanimity
requirement would be invalid.
Post at
494 U. S. 459.
But since the remainder of the paragraph sets forth precisely the
same argument in defense of the unanimity requirement that the
dissent advances today,
compare post at
494 U. S.
465-466, [
Footnote 2/2]
the suggestion that Maryland conceded the point is rather
peculiar.
Page 494 U. S. 448
Indeed, the paragraph quoted above concludes with a citation to
Kirkley -- the North Carolina case which first upheld
against constitutional attack the requirement that a jury could
consider only those mitigating factors unanimously found. Read in
context, the sentence quoted by the dissent is plainly a
summary of
Mills's argument, not an admission of
its correctness. The Maryland Court of Appeals had concluded that a
unanimity requirement would violate the Eighth Amendment, but had
determined that the challenged instructions imposed no such
requirement. The State, however, was clearly entitled to defend the
Court of Appeals' judgment on the alternative ground that, even if
a reasonable jury might have read the instructions as requiring a
unanimous finding before any mitigating factor could be considered,
that requirement would not contravene the dictates of
Lockett and
Eddings. The State raised precisely
this argument, and this Court rejected it. [
Footnote 2/3]
II
I remain convinced, moreover, that
Mills was correctly
decided. It is apparent to me that the rule at issue here
implicates the concerns expressed in
Lockett and
Eddings. In my view, it is pointless to ask whether the
sentencer in this case is the jury or the jurors. The jurors are
the jury, and if 11 of them are forbidden to give effect to
mitigating evidence which they deem persuasive, then the right
guaranteed by
Lockett has been effectively negated, even
if the restriction is imposed by the twelfth member of the
sentencing body. If state law provided that all mitigating evidence
was first to be presented to the foreperson, who could then decide
what portions
Page 494 U. S. 449
of it other jurors would be allowed to view, I have no doubt
that the sentencer's ability to give effect to the evidence would
be impaired. The fact that North Carolina permits any one of 12
individuals to exercise the veto hardly makes the impairment less
severe.
The dissent suggests that the rule announced in
Mills
is an aberration, a quirk of our Eighth Amendment jurisprudence. In
fact, however, it is the North Carolina unanimity requirement which
represents an extraordinary departure from the way in which juries
customarily operate. Juries are typically called upon to render
unanimous verdicts on the ultimate issues of a given case. But it
is understood that different jurors may be persuaded by different
pieces of evidence, even when they agree upon the bottom line.
[
Footnote 2/4] Plainly, there is no
general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict. [
Footnote 2/5]
Page 494 U. S. 450
We might compare, for example, a criminal trial in which the
defendant presents the testimony of an alibi witness. It surely
could not be supposed that the State could enforce an evidentiary
rule requiring a preliminary jury determination as to the
credibility of this evidence, and providing that no juror could
give it weight unless
every juror deemed it worthy of
belief. Such a rule would plainly interfere with the ability of the
accused to present a defense to the factfinder, just as the rule at
issue here impairs the defendant's right to have evidence in
mitigation considered by the sentencer.
As the dissent points out, our cases have upheld state rules
that place upon criminal defendants the burden of proving
affirmative defenses.
See, e.g., Patterson v. New York,
432 U. S. 197
(1977). For two reasons, however, these cases are not on point.
First, the Court's reasoning in the affirmative defense cases
appears to rest upon a "greater power includes the lesser"
argument: since the State is not constitutionally required to
recognize the defense at all, it may take the lesser step of
placing the burden of proof upon the defendant.
See id. at
432 U. S. 209.
But since the State may not exercise the greater power of
prohibiting a capital defendant from introducing mitigating
evidence, that reasoning is inapposite here. Second, the dissent's
analogy to the affirmative-defense cases confuses the concepts of
unanimity and burden of proof. To say that the burden of proof may
be placed upon the defendant says nothing at all about the
situation in which some jurors, but not others, believe that the
burden has been satisfied. The dissent's analogy presumes that once
the elements of an offense have been proved, the jury's failure to
agree as
Page 494 U. S. 451
to an affirmative defense results in a conviction (just as a
North Carolina jury's failure to agree as to the presence of a
given mitigating factor creates a "finding" that the factor is not
present); but our cases do not say that, and it is not at all clear
that a conviction, rather than a hung jury, would be the outcome.
See State v. Harris, 89 R.I. 202, 207,
152
A.2d 106, 109 (1959) (although the defendant bears the burden
of proof as to insanity, "there is a vast difference between an
instruction as to the persuasiveness of evidence and an instruction
as to
agreement. If the jury could not agree upon
defendant's sanity then no verdict could be reached.") (emphasis in
original). The peculiar infirmity of the North Carolina sentencing
procedure is not simply that it places the burden of proving
mitigation upon the defendant, but that all disagreements among the
jurors as to whether that burden has been satisfied must be
resolved in favor of the State.
III
In
Mills, the Court described two scenarios in which
the operation of the unanimity requirement would result in a
sentence of death, even though 11 (in the first scenario) or all 12
of the jurors believed that the mitigating circumstances outweighed
those in aggravation. In the first hypothetical, 11 jurors believed
that six mitigating factors were present, but the twelfth juror's
veto prevented any of the evidence in mitigation from being
considered at the final stage of the sentencing process. 486 U.S.
at
486 U. S.
373-374. In the second scenario, all 12 jurors agreed
that
some mitigating factors were present, and outweighed
the factors in aggravation, but the jury was not unanimous as to
the existence of any particular mitigating circumstance.
Id. at
486 U. S. 374.
We concluded that
"it would certainly be the height of arbitrariness to allow or
require the imposition of the death penalty under the circumstances
so postulated."
Ibid. That assessment seems to me unanswerable.
Page 494 U. S. 452
Of course, the North Carolina statute also requires that the
jury be unanimous as to the existence of a given
aggravating factor, and as to the appropriateness of the
death penalty in light of the aggravating and mitigating
circumstances unanimously found. The possibility that a single
juror with aberrational views will thwart the majority therefore
sometimes may work in favor of the capital defendant. But the
injustice of a capital sentence in a case where 11 jurors believe
that mitigation outweighs aggravation is hardly compensated for by
the possibility that, in some
other case, a defendant will
escape the death penalty when 11 jurors believe death to be
appropriate. The State's reliance on the "symmetry" of its law
seems to me to be the very antithesis of the constitutional command
that the sentencer be allowed to consider the
"character and record of the individual offender and the
circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of
death."
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S. 304
(1976) (plurality opinion). I therefore agree that petitioner's
death sentence must be vacated, and I join the opinion of the
Court.
[
Footnote 2/1]
Cf. United States v. W.T. Grant Co., 345 U.
S. 629,
345 U. S. 632
(1953) ("voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case,
i.e., does not make the case moot").
[
Footnote 2/2]
Also compare Mills, Brief for Respondent 20, n. 7
("Petitioner views a jury as twelve independent sentencers
operating free of the views of the others. Such a view is
completely contrary to any notion of guided discretion.")
with
post at
494 U. S. 468
("Likewise incompatible with the Court's theory is the principle of
guided discretion that we have previously held to be essential to
the validity of capital sentencing. . . . There is little guidance
in a system that requires each individual juror to bring to the
ultimate decision his own idiosyncratic notion of what facts are
mitigating, untempered by the discipline of group deliberation and
agreement.").
[
Footnote 2/3]
Nor does Justice WHITE's separate opinion in
Mills, 486
U.S. at
486 U. S. 389,
provide a basis for recharacterizing the holding of the Court. I am
far from certain that Justice WHlTE's concurrence will bear the
construction that the dissent places upon it. In any event, the
meaning of a majority opinion is to be found within the opinion
itself; the gloss that an individual Justice chooses to place upon
it is not authoritative.
[
Footnote 2/4]
Moreover, the jury's inability to agree as to an ultimate issue
typically results in a deadlock or hung jury. Here the inability to
agree requires the jury to proceed upon the assumption that a
particular mitigating circumstance has been proved
not to
exist.
[
Footnote 2/5]
There is one significant exception to this principle, but it
does not support the dissent's position. In federal criminal
prosecutions, where a unanimous verdict is required, the Courts of
Appeals are in general agreement that
"[u]nanimity . . . means more than a conclusory agreement that
the defendant has violated the statute in question; there is a
requirement of substantial agreement as to the principal factual
elements underlying a specified offense."
United States v. Ferris, 719 F.2d 1405, 1407 (CA9
1983).
Accord, United States v. Duncan, 850 F.2d 1104,
1110-1115 (CA6 1988);
United States v. Beros, 833 F.2d
455, 461 (CA3 1987);
United States v. Schiff, 801 F.2d
108, 114 (1986),
cert. denied, 480 U.S. 945 (1987);
United States v. Gipson, 553 F.2d 453, 456-459 (CA5 1977).
But see United States v. Bouquett, 820 F.2d 165, 169 (CA6
1987) (
questioned in Duncan, 850 F.2d at 1112-1113). This
rule does not require that each bit of evidence be unanimously
credited or entirely discarded, but it does require unanimous
agreement as to the nature of the defendant's violation, not simply
the fact that a violation has occurred. The North Carolina
requirement that aggravating circumstances be found unanimously
therefore has some analogue, albeit imperfect, in another area of
the law. This principle is a protection for the defendant, however;
its premise is that
"[r]equiring the vote of twelve jurors to convict a defendant
does little to ensure that his right to a unanimous verdict is
protected unless this prerequisite of jury consensus as to the
defendant's course of action is also required."
Gipson, 553 F.2d at 458. There is no analogous
principle requiring that jurors voting to acquit must agree upon
the basis for their reasonable doubt.
Justice KENNEDY, concurring in the judgment.
Jury unanimity, it is true, is an accepted, vital mechanism to
ensure that real and full deliberation occurs in the jury room, and
that the jury's ultimate decision will reflect the conscience of
the community. Yet the unique interaction of the elements of the
sentencing statute in issue here can allow the same requirement of
unanimity to produce a capital sentence that lacks unanimous
support of the jurors, and, more than this, is thought to be
inappropriate by eleven of the twelve.
As a consequence, the statute here can operate in the same
manner as the jury instructions in
Mills v. Maryland,
486 U. S. 367
(1988), as construed by the majority in that case, to produce a
result that is "the height of arbitrariness." On this sole
rationale, I concur in the judgment here. The
Page 494 U. S. 453
Court's reliance on our decisions in
Lockett v. Ohio,
438 U. S. 586
(1978), and
Eddings v. Oklahoma, 455 U.
S. 104 (1982), to support today's result stretches those
cases beyond their proper bounds and threatens to add confusion to
an already troubled area of our jurisprudence.
That this case may be resolved on a ground more consistent with
our precedents is evident from the
Mills opinion itself.
The relevant section of that decision begins:
"Petitioner's argument is straightforward, and well illustrated
by a hypothetical situation he contends is possible under the
Maryland capital-sentencing scheme:"
" If eleven jurors agree that there are six mitigating
circumstances, the result is that no mitigating circumstance is
found. Consequently, there is nothing to weigh against any
aggravating circumstance found and the judgment is death even
though eleven jurors think the death penalty wholly inappropriate.
Brief for Petitioner 11."
486 U.S. at
486 U. S.
373-374. Petitioner's counsel emphasized this point in
the brief discussion of constitutionality in the
Mills
Oral argument:
"The problem with the constitutionality is that . . . you have
the possibility of not 12 jurors agreeing but one juror deciding
it's death. And our position, of course, is it's difficult to
imagin[e] a more arbitrary system than luck of the draw: do I get
one juror?"
Tr. of Oral Arg., O.T.1987, No. 87-5367, pp. 23-24. The central
idea of these passages is that the death penalty should not be
imposed on the basis of a single juror's vote where 11 jurors think
the penalty undeserved. The Court stated:
"The possibility that a single juror could block [consideration
of a mitigating factor,]Before discussing the constitutional and
consequently require the jury to impose the death penalty,
is one we dare not risk."
486 U.S. at
486 U. S. 384.
(emphasis added).
Page 494 U. S. 454
Application of the death penalty on the basis of a single
juror's vote is "intuitively disturbing."
Id. at
486 U. S. 374.
More important, it represents imposition of capital punishment
through a system that can be described as arbitrary or capricious.
The Court in
Mills described such a result as the "height
of arbitrariness."
Ibid. Given this description, it is
apparent that the result in
Mills fits within our line of
cases forbidding the imposition of capital punishment on the basis
of "caprice," in "an arbitrary and unpredictable fashion," or
through "arbitrary" or "freakish" means.
See, e.g., Franklin v.
Lynaugh, 487 U. S. 164,
487 U. S. 181
(1988);
California v. Brown, 479 U.
S. 538,
479 U. S. 541
(1987).
A holdout juror incident can occur under North Carolina's
statute if all jurors find an aggravating factor they agree to be
of sufficient gravity to support a penalty of death, and eleven
jurors find an outweighing mitigating factor that one juror
refuses, for whatever reason, to accept. If the jurors follow their
instructions, as we must assume they will, the eleven must
disregard the mitigating circumstance. After the balancing step of
the statute is performed, there can be only one result. The
"
judgment is death even though eleven jurors think the death
penalty wholly inappropriate.'" Mills, 486 U.S. at
486 U. S. 374.
Given the reasoned moral judgment inherent in capital sentencing by
the jury, the extreme arbitrariness of this potential result is
evident.
This said, it must be stressed that much in the opinion for the
Court in today's case goes, without cause, much further. It is true
that, in addition to discussing the extreme arbitrariness of the
statute at issue, the
Mills opinion went on to state that
the unanimity requirement was inconsistent with our holdings in
Lockett, Eddings, Hitchcock v. Dugger, 481 U.
S. 393 (1987), and
Skipper v. South Carolina,
476 U. S. 1 (1986).
Even so, the Court stressed that the unanimity requirement there,
combined with the final stage of the Maryland statute, could
produce an arbitrary result:
"a jury that does not unanimously agree on the existence of any
mitigating
Page 494 U. S. 455
circumstance may not give mitigating evidence any effect
whatsoever, and
must impose the sentence of death."
486 U.S. at
486 U. S. 375.
(emphasis added).
I cannot agree with the Court's statement today that
"Our decision in
Mills was not limited to cases in
which the jury is
required to impose the death penalty if
it finds that aggravating circumstances outweigh mitigating
circumstances or that no mitigating circumstances exist at all.
*"
Ante at
494 U. S.
439-440 (emphasis in original). The statute in
Mills did include such a requirement, and the statute here
also, albeit in more limited circumstances, can allow one juror's
decision to override that of eleven others as to the defendant's
ultimate sentence. It is for this reason only that I concur in the
judgment vacating the sentence.
I would recognize the arbitrary operation of the North Carolina
system as the exclusive basis of our decision, for the unanimity
requirement, standing alone, is not invalid under our
Lockett line of cases. In
Lockett itself, we
invalidated an Ohio statute that precluded presentation of certain
types of mitigating evidence to the jury. In
Eddings,
Skipper, and
Hitchcock, we applied the same rule to
judicial instructions that barred consideration of certain
nonstatutory evidence bearing on the defendant's character. More
recently, in
Penry v. Lynaugh, 492 U.
S. 302 (1989), we held that
Lockett's
requirements were not met in a statutory scheme that provided no
avenue through which mitigating evidence could be considered, no
matter how clearly the evidence in mitigation might have been
established for the jury, thereby making its presentation
meaningless.
Page 494 U. S. 456
Lockett and its progeny stand only for the proposition
that a state may not cut off in an absolute manner the presentation
of mitigating evidence, either by statute or judicial instruction,
or by limiting the inquiries to which it is relevant so severely
that the evidence could never be part of the sentencing decision at
all. The requirement that a jury unanimously find mitigating
circumstances in itself does none of these things. In a State where
there is no final mandatory or balancing stage in the sentencing
process that could allow a single juror to control the ultimate
outcome, it simply imposes a proof requirement that must be met
before the evidence can be used as a mitigating factor specifically
found by the jury as a whole. As we stated in
Saffle v. Parks,
post, there is a
"simple and logical difference between rules that govern
what factors the jury must be permitted to consider in
making the sentencing decision, and rules that govern
how
the State may guide the jury in considering and weighing those
factors in reaching a decision."
The extreme control given to one juror in the North Carolina
scheme in effect can allow that juror alone to impose a capital
sentence. It is that fact, and not a novel application of
Lockett to requirements intended to enhance the
reliability of the jury's findings, that is dispositive.
The description of a "one juror veto" system in
Mills
as the "height of arbitrariness" supports the result here, and I
would decide this case on that basis alone. I agree with Justice
WHITE,
ante at
494 U. S. 444,
that the discussion of
Lockett in today's opinion casts no
doubt on evidentiary requirements for presentation of mitigating
evidence such as assigning the burden of proof to the defendant or
requiring proof of mitigating circumstances by a preponderance of
the evidence. His opinion and our other cases already make clear
that the discussion of
Lockett in today's opinion has no
application beyond the issue presented in this case. Because of my
concern that the opinion itself might otherwise have spawned
confusing capital litigation over novel and unsupportable
Page 494 U. S. 457
Lockett claims in the lower courts, I can concur only
in the Court's judgment.
* Indeed, the broad language of today's opinion might be read to
suggest that a scheme requiring jury unanimity as to the presence
or absence of a mitigating factor could violate the
Constitution. Such a requirement, however, enhances the reliability
of the jury's decision without any risk that a single holdout juror
may impose a sentence against the views of the other eleven.
Maryland claimed that its unanimity requirement operated this way
in
Mills. It is no surprise that the majority in
Mills assumed such a scheme would be constitutional.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR
join, dissenting.
Today the Court holds that the Eighth Amendment prohibits a
State from structuring its capital sentencing scheme to channel
jury discretion by requiring that mitigating circumstances be found
unanimously. Because I believe that holding is without support in
either the Eighth Amendment or our previous decisions, I
dissent.
I
Under North Carolina's capital sentencing scheme, once a
defendant is found guilty of capital murder, a separate sentencing
hearing is held at which the State is permitted to introduce
evidence of aggravating circumstances, and the defendant evidence
of mitigating circumstances. Specific aggravating and mitigating
circumstances are defined by statute, but the defendant is
permitted to put forward any other mitigating circumstance he
wishes. The State must prove the existence of the specified
aggravating circumstances beyond a reasonable doubt, and the
defendant must prove the existence of mitigating factors by a
preponderance of the evidence. For any aggravating or mitigating
circumstance to be given operative effect, it must be found
unanimously by the jury. Absent unanimity, the proponent of the
circumstance has failed to meet his burden of persuasion and the
circumstance will be considered not proven.
In this case, the jury was given a special verdict form on which
it was asked to answer four questions. First, whether it
unanimously found beyond a reasonable doubt one or more specified
statutory aggravating circumstances. The jury answered yes with
respect to two aggravating circumstances. Second, whether it
unanimously found by a preponderance
Page 494 U. S. 458
of the evidence any statutory or nonstatutory mitigating
circumstances. The jury answered yes with respect to one statutory,
and one nonstatutory, mitigating circumstance. Third, whether it
unanimously found beyond a reasonable doubt that the mitigating
circumstances it found were insufficient to outweigh the
aggravating circumstances it found. The jury answered yes. Fourth,
whether it unanimously found beyond a reasonable doubt that the
aggravating circumstances it found were sufficiently substantial to
call for the imposition of the death penalty when considered with
the mitigating circumstances it found. The jury answered yes.
I think this scheme, taken as a whole, satisfies the due process
and Eighth Amendment concerns enunciated by this Court. By
requiring that the jury find at least one statutory aggravating
circumstance, North Carolina has adequately narrowed the class of
death-eligible murderers.
See Zant v. Stephens,
462 U. S. 862,
462 U. S.
877-879 (1983). On the other hand, by permitting the
jury to consider evidence of, and find,
any mitigating
circumstance offered by the defendant, North Carolina has ensured
that the jury will "be able to consider and give effect to that
evidence in imposing sentence."
Penry v. Lynaugh,
492 U. S. 302,
492 U. S. 319
(1989). By requiring both aggravating circumstances to be found
unanimously (beyond a reasonable doubt) and mitigating
circumstances to be found unanimously (by only a preponderance of
the evidence), North Carolina has "reduc[ed] the likelihood that
[the jury] will impose a sentence that fairly can be called
capricious or arbitrary."
Gregg v. Georgia, 428 U.
S. 153,
428 U. S.
194-195 (1976) (opinion of Stewart, Powell, and STEVENS,
JJ.). Finally, by requiring the jury unanimously to find beyond a
reasonable doubt not only that the aggravating circumstances
outweigh the mitigating circumstances, but also that they are
sufficiently substantial in light of the mitigating circumstances
to justify the death penalty, North Carolina has
Page 494 U. S. 459
provided even an extra measure of assurance that death will not
be lightly or mechanically imposed.
II
Before discussing the constitutional issue petitioner raises, I
wish to address briefly the Court's assertion that we have already
addressed and resolved this very issue in the past -- that "our
decision [in
Mills] clearly governs this case."
Ante at
494 U. S. 439.
Although there is language in
Mills v. Maryland,
486 U. S. 367
(1988), suggesting that a unanimity requirement would contravene
this Court's decisions in
Lockett v. Ohio, 438 U.
S. 586 (1978), and
Eddings v. Oklahoma,
455 U. S. 104
(1982), that issue plainly was not presented in
Mills, and
can therefore not have been decided.
The Court's opinion in
Mills begins by recounting that
the Maryland Court of Appeals
"did not dispute that if the statute and [verdict] form were
read as petitioner suggested [
i.e., to require mitigating
factors to be found unanimously], jurors
would be
improperly prevented from giving due consideration to mitigating
evidence."
Mills, supra, at
486 U. S. 372
(emphasis in original). The State itself made the same concession
in its brief before this Court. ("Under the interpretation of the
statute proffered by Petitioner, an unconstitutional restriction
existed in that unanimity on a particular mitigating circumstance
was required before it could be weighed in determining the
appropriate sentence." Brief for Respondent in
Mills v.
Maryland, O.T.1987, No. 87-5367, p. 19.) [
Footnote 3/1]
Page 494 U. S. 460
Accordingly, no controversy regarding the question that the
Court today holds to have been decided by
Mills was even
before the Court -- for the very simple reason that no statute
Page 494 U. S. 461
raising that question was before the Court. The
Maryland court had adopted what it regarded as a saving
construction of the statute (
i.e., permitting a single
juror's view to preclude rejection of a mitigating circumstance)
and had said that the verdict form should be understood in that
fashion. Before this Court, "[t]he critical question," and the only
question disputed by the parties, was
"whether petitioner's interpretation of the sentencing process
is one a reasonable jury could have drawn from the instructions
given by the trial judge and from the verdict form employed in this
case."
Mills, 486 U.S. at
486 U. S.
375-376. [
Footnote 3/2]
On the answer to
that question, the Court was divided.
Five Justices found a substantial risk that the jury would have
understood its instructions
Page 494 U. S. 462
as requiring it to reject all mitigating circumstances that it
failed to find unanimously, and (as the State understood would be
the necessary consequence of such a finding) vacated the judgment
and remanded for further proceedings.
Id. at
486 U. S.
381-384. The four dissenting Justices thought the risk
that a reasonable jury would have misunderstood the instructions
was negligible, and thus would have affirmed.
Id. at
486 U. S.
391-393 (REHNQUIST, C.J., dissenting).
The Court's characterization of
Mills as "holding that
the instructions, if [interpreted to require unanimity], were
unconstitutional,"
ante at
494 U. S. 444,
n. 8, and "strik[ing] down the Maryland scheme,"
ante at
494 U. S. 439,
is pure revisionism. No Maryland scheme existed except the one
authoritatively described by the Maryland Court of Appeals,
see
Mullaney v. Wilbur, 421 U. S. 684,
421 U. S.
690-691 (1975) -- which did
not require a
unanimous finding of mitigation for the defendant to receive a life
sentence. To be sure,
Mills contains language suggesting
that a unanimity requirement would contravene
Lockett and
Eddings. See Mills, 486 U.S. at
486 U. S.
374-375. But, under the circumstances, these suggestions
were plainly dicta. Any doubt is resolved by JUSTICE WHITE's
separate concurrence, which states in its entirety:
"The issue in this case is how reasonable jurors would have
understood and applied their instructions. That is the issue the
Court's opinion addresses, and I am persuaded that the Court
reaches the correct solution. Hence, I join the Court's
opinion."
Id. at
486 U. S.
389-390. [
Footnote
3/3]
Page 494 U. S. 463
Because JUSTICE WHITE provided the fifth vote to remand in
Mills, it is impossible to regard
Mills as
resolving an issue he did not believe to have been before the
Court.
III
The constitutional issue conceded in
Mills is both
presented and contested in the present case. North Carolina's
capital sentencing statute unambiguously provides that mitigating
circumstances must be found by the jury unanimously. The Court
finds this scheme constitutionally defective because it prevents
individual jurors "from giving effect to evidence that they believe
calls for a sentence less than death."
Ante at
494 U. S. 439
(citing
Eddings, supra, at
455 U. S. 110,
and
Lockett, supra, at
438 U. S. 604)
(internal quotations omitted). This is so because each juror's
answers to the ultimately dispositive Issues Three and Four can
take account of only those mitigating circumstances found by the
jury unanimously under Issue Two. Thus, any juror who concludes
that the defendant has proved additional mitigating circumstances
is precluded by his colleagues' disagreement from giving that
conclusion effect. The Court several times refers to the prospect
that one "
holdout' juror" will prevent the other eleven from
reaching the decision they wish, ante at 494 U. S. 438,
but the reader should not be misled: the constitutional principle
appealed to is not majority rule but just the opposite. According
to the Court, North Carolina's system in which one juror can
prevent the others from giving effect to a mitigating circumstance
is invalid only because the Constitution requires, in the
context
Page 494 U. S. 464
of the North Carolina statute, a system in which one juror can
prevent the others from
denying effect to a mitigating
circumstance. The "`holdout' juror" scenario provides attractive
atmosphere, but the alleged constitutional principle upon which the
decision rests is that
"
each juror [must] be permitted to consider
and
give effect to mitigating evidence when deciding the ultimate
question whether to vote for a sentence of death,"
ante at
494 U. S. 442
(emphasis added), and "may not be foreclosed by one
or
more jurors' failure,"
ante at
494 U. S. 443
(emphasis added), to find that those mitigating facts existed, or
that those existing facts were mitigating. Such a scheme, under
which (at least where the statute requires the jury's
recommendation of death to be unanimous) a single juror's finding
regarding the existence of mitigation
must control, is
asserted to be demanded by "the principle established in
Lockett v. Ohio, 438 U. S. 586
(1978), that a sentencer may not be precluded from giving effect to
all mitigating evidence."
Ante at
494 U. S.
438.
With respect, "the principle established in
Lockett"
does not remotely support that conclusion. In
Lockett, the
Court vacated a death sentence imposed under a statute that limited
the sentencing judge's consideration of mitigating factors to three
statutory circumstances. A plurality of the Court reasoned that
"the Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, 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."
438 U.S. at
438 U. S. 604
(Opinion of Burger, C.J.) (emphasis omitted; footnotes omitted).
Similarly, in
Eddings, also relied upon by the Court, we
vacated a death sentence because the sentencing judge refused to
consider evidence proffered by the defendant of his unhappy
upbringing. We reasoned:
"Just as the State may not by statute preclude the sentencer
from considering any mitigating factor, neither may the sentencer
refuse
Page 494 U. S. 465
to consider,
as a matter of law, any relevant
mitigating evidence."
455 U.S. at
455 U. S.
113-114 (emphasis in original).
Accord, Penry v.
Lynaugh, 492 U.S. at
492 U. S. 328
(failure to instruct Texas jury that it could consider and give
effect to mitigating evidence beyond the scope of three statutory
special issues inconsistent with
Lockett and
Eddings);
Hitchcock v. Dugger, 481 U.
S. 393 (1987) (trial judge's belief that Florida law
prohibited consideration of nonstatutory mitigating circumstances
and corresponding instruction to the jury contravened
Lockett );
Skipper v. South Carolina,
476 U. S. 1 (1986)
(trial judge's failure to permit jury to consider evidence of
defendant's good behavior in prison inconsistent with
Lockett and
Eddings).
The principle established by these cases is that a State may not
preclude
the sentencer from considering and giving effect
to evidence of any relevant mitigating circumstance proffered by
the defendant.
See Penry, supra, at
492 U. S. 319
("
The sentencer must . . . be able to consider and give
effect to [mitigating] evidence in imposing sentence") (emphasis
added);
Hitchcock, supra, at
481 U. S. 394
("
the sentencer may not refuse to consider or be precluded
from considering any relevant mitigating evidence") (internal
quotations omitted; citations omitted; emphasis added);
Skipper, supra, at
476 U. S. 5
(mitigating "evidence may not be excluded from
the
sentencer's consideration") (emphasis added);
Eddings, 455 U.S. at
455 U. S. 114
("
the sentencer [may not] refuse to consider . . . any
relevant mitigating evidence") (emphasis added);
Lockett,
supra, at
438 U. S. 604
("Eighth and Fourteenth Amendments require that
the
sentencer . . . not be precluded from considering" mitigating
evidence) (emphasis added; footnote omitted). The sentencer in this
case was the North Carolina jury, which has not been precluded from
considering and giving effect to all mitigating circumstances.
What petitioner complains of here is not a limitation upon
what the sentencer was allowed to give effect to, but
rather a limitation upon the
manner in which it was
allowed to do so --
Page 494 U. S. 466
viz., only unanimously. As the Court observed earlier
this Term, that is a crucial distinction.
"There is a simple and logical difference between rules that
govern
what factors the jury must be permitted to consider
in making the sentencing decision, and rules that govern
how the State may guide the jury in considering and
weighing those factors in reaching a decision."
Saffle v. Parks, post, at
494 U. S. 490
(emphasis added). In holding that a rule invalidating an
antisympathy instruction would be a new rule under
Teague v.
Lane, 489 U. S. 288
(1989), we concluded that
Lockett and
Eddings "do
not speak directly, if at all, to" "
how [the jury] must
consider the mitigating evidence," as opposed to "
what
mitigating evidence the jury must be permitted to consider in
making its sentencing decision."
Saffle, post, at
494 U. S. 490.
Accord, Franklin v. Lynaugh, 487 U.
S. 164,
487 U. S. 181
(1988) (plurality opinion) ("we have never suggested that jury
consideration of mitigating evidence must be undirected or
unfocused"). In short,
Lockett and
Eddings are
quite simply irrelevant to the question before us, and cannot be
pressed into service by describing them as establishing that
"
a sentencer [by which the reader is invited to
understand an individual member of the jury] may not be precluded
from giving effect to all mitigating evidence."
Ante at
494 U. S. 438
(emphasis added).
IV
Nothing in our prior cases, then, supports the rule the Court
has announced; and, since the Court does not even purport to rely
upon constitutional text or traditional practice, nothing remains
to support the result. There are, moreover, some affirmative
indications in prior cases that what North Carolina has done is
constitutional. Those indications are not compelling -- for the
perverse reason that the less support exists for a constitutional
claim, the less likely it is that the claim has been raised or
taken seriously before, and hence the less likely that this Court
has previously rejected it. If petitioner should seek reversal of
his sentence because
Page 494 U. S. 467
two jurors were wearing green shirts, it would be impossible to
say anything against the claim except that there is nothing to be
said
for it -- neither in text, tradition, nor
jurisprudence. That is the point I have already made here, and that
alone suffices.
With the caution, however, that it is entirely superfluous, I
may mention several aspects of our jurisprudence that appear to
contradict the Court's result. To begin with, not only have we
never before invalidated a jury unanimity requirement, but we have
approved schemes imposing such a requirement in contexts of great
importance to the criminal defendant -- for example, as a condition
to establishing the defense of self-defense in a capital murder
case,
see Martin v. Ohio,480 U.S.
228 (1987); Ohio Rev.Code §§ 2903.01, 2929.02 (1987); Ohio Rule
Crim.Proc. 31(A), as a condition to establishing the defense of
extreme emotional disturbance in a second-degree murder case,
see Patterson v. New York, 432 U.
S. 197 (1977); N.Y.Crim.Proc.Law § 310.80 (McKinney
1971), and as a condition to establishing the defense of insanity
in a second-degree murder case,
see Rivera v. Delaware,
429 U. S. 877
(1976); Del.Super.Ct.Crim.Rule 31(a), Del.Code Ann., vol. 17, p.
227 (1975). [
Footnote 3/4]
Page 494 U. S. 468
Of course the Court's holding today -- and its underlying thesis
that each individual juror must be empowered to "give effect" to
his own view -- invalidates not just a requirement of unanimity for
the defendant to benefit from a mitigating factor, but a
requirement of any number of jurors more than one. Thus, it is also
in tension with
Leland v. Oregon, 343 U.
S. 790 (1952), which upheld, in a capital case, a
requirement that the defense of insanity be proved (beyond a
reasonable doubt) to the satisfaction of at least 10 of the
12-member jury. Even with respect to proof of the substantive
offense, as opposed to an affirmative defense, we have approved
verdicts by less than a unanimous jury.
See Apodaca v.
Oregon, 406 U. S. 404
(1972) (upholding state statute providing for conviction by 10-to-2
vote). We have, to be sure, found that a criminal verdict by less
than all of a six-person jury is unconstitutional -- not, however,
because of any inherent vice in nonunanimity, but because a 5-to-1
verdict, no less than a 5-to-0 verdict,
see Ballew v.
Georgia, 435 U. S. 223
(1978), "presents a . . . threat to preservation of the substance
of the jury trial guarantee."
Burch v. Louisiana,
441 U. S. 130,
441 U. S. 138
(1979).
The Court discusses briefly one of the above cases
(Patterson), in which we said that if a State
"chooses to recognize a factor that mitigates the degree of
criminality or punishment, . . . the State may assure itself that
the fact has been established with reasonable certainty."
432 U.S. at
432 U. S. 209.
It distinguishes that case, and presumably would distinguish the
rest I have cited, as follows:
"The Constitution
requires States to allow
consideration of mitigating evidence in capital cases. Any barrier
to such consideration must therefore fall."
Ante at
494 U. S. 442.
But surely the Constitution also requires States to allow
consideration of all evidence bearing
Page 494 U. S. 469
upon the substantive criminal offense, and consideration of all
evidence bearing upon affirmative defenses. If, in those contexts,
it is not regarded as a "barrier" to such consideration to require
unanimity before any single juror's evaluation of the evidence can
be "given effect" to the defendant's advantage, I do not understand
why a comparable requirement constitutes a "barrier" to
consideration of mitigation. Or why, in the latter context,
assuring "reasonable certainty" is no longer a legitimate
objective.
Likewise incompatible with the Court's theory is the principle
of guided discretion that we have previously held to be essential
to the validity of capital sentencing. States, we have said,
"must channel the sentencer's discretion by 'clear and objective
standards' that provide 'specific and detailed guidance' and that
'make rationally reviewable the process for imposing a sentence of
death.'"
Godfrey v. Georgia, 446 U. S. 420,
446 U. S. 428
(1980) (plurality opinion) (footnotes omitted). There is little
guidance in a system that requires each individual juror to bring
to the ultimate decision his own idiosyncratic notion of what facts
are mitigating, untempered by the discipline of group deliberation
and agreement. Until today, I would have thought that North
Carolina's scheme was a model of guided discretion. The requirement
that the jury determine four specific issues operates like a
special verdict -- a device long recognized as enhancing the
reliability and rationality of jury determinations.
See,
e.g., Sunderland, Verdicts, General and Special, 29 Yale L.J.
253, 261 (1920). Moreover, by enabling the reviewing court to
examine the specific findings underlying the verdict it facilitates
appellate review, which we have described as "an important
additional safeguard against arbitrariness and caprice."
Gregg
v. Georgia, 428 U.S. at
428 U. S.
198.
"Where the sentencing authority is required to specify the
factors it relied upon in reaching its decision, the further
safeguard of meaningful appellate review is available to ensure
that death sentences are not imposed capriciously or
Page 494 U. S. 470
in a freakish manner."
Id. at
428 U. S. 195.
Accord, Zant v. Stephens, 462 U.S. at
462 U. S. 890;
Proffitt v. Florida, 428 U. S. 242,
428 U. S. 253
(1976) (opinion of Stewart, Powell, and STEVENS, JJ.).
The Court strikes down this eminently reasonable scheme. The
quality of what it substitutes is conveniently evaluated by
considering how future North Carolina juries will behave under the
Court's own doomsday hypothetical, in which all jurors believe the
defendant has proved one mitigating circumstance, but each believes
a different one.
Ante at
494 U. S.
439-440. A jury, of course, is not a collection of
individuals who are asked separately about their independent views,
but a body designed to deliberate and decide collectively.
See
Williams v. Florida, 399 U. S. 78,
399 U. S. 100
(1970) (Sixth Amendment requires a jury "large enough to promote
group deliberation");
Ballew v. Georgia, 435 U.
S. 223 (1978) (five-person jury too small);
id.
at
435 U. S.
232-234 (opinion of BLACKMUN, J.) (small juries impede
group deliberation). But after today's decision, in the
hypothetical the Court has posed, it will be quite impossible for
North Carolina sentencing juries to "deliberate" on the dispositive
questions (Issues Three and Four -- whether the aggravating
circumstances outweigh the mitigating circumstances, and whether in
light of the mitigating circumstances the aggravating circumstances
justify death), because no two jurors agree on the identity of the
"mitigating circumstances." Each juror must presumably decide in
splendid isolation, on the basis of his uniquely determined
mitigating circumstance, whether death should be imposed. What was
supposed to be jury trial has degenerated into a poll. It seems to
me inconceivable that such a system should be -- not just tolerated
under the Constitution -- but constitutionally prescribed.
[
Footnote 3/5]
Page 494 U. S. 471
* * * *
In sum, the constitutional prohibition asserted by the
petitioner was not decided in
Mills, and is not supported
by
Lockett and
Eddings. Since nothing else is
adduced to support it, there is no basis for believing that it
exists. It is, moreover, contrary to the constitutional principles
governing jury trial in other contexts, contrary to the principle
of guided discretion that launched our modern incursion into the
field of capital sentencing, and destructive of sound jury
deliberation. When we abandon text and tradition, and in addition
do not restrict prior cases to their holdings, knowing and
observing the law of the land becomes impossible. State officials
sworn to uphold the Constitution we expound rush to comply with one
of our newly designed precepts, only to be told that by complying
they have violated another one that points in the opposite
direction. Compare
Furman v. Georgia, 408 U.
S. 238 (1972) (invalidating discretionary death
penalty), with
Woodson v. North Carolina, 428 U.
S. 280 (1976) (invalidating mandatory death penalty
enacted in light of
Furman ). I dissent from today's
decision, and from the unpredictable jurisprudence of capital
sentencing that it represents.
[
Footnote 3/1]
JUSTICE BLACKMUN contends that the State
"defend[ed] the Court of Appeals' judgment on the alternate
ground that, even if a reasonable jury might have read the
instructions as requiring a unanimous finding before any mitigating
factor could be considered, that requirement would not contravene
the dictates of
Lockett and
Eddings."
Ante at
494 U. S. 448.
Presumably that defense would have gone somewhat as follows:
"Even though the Court of Appeals has authoritatively determined
that Maryland law entitled this defendant to a jury instruction
requiring a life sentence if any single juror found sufficient
mitigation; and even though, as petitioner contends, the
instruction here mistakenly required unanimity on mitigation; you
must nevertheless uphold the death sentence because, even though
Maryland law did not in fact require unanimity, requiring it would
not be unconstitutional."
It is facially implausible that Maryland's Attorney General
would be rash enough to make this argument -- and even more
implausible that we would entertain it on its merits, rejecting it
only because a unanimity requirement would, too, be
unconstitutional. Quite obviously, the constitutional issue is
irrelevant.
Whether or not Maryland law could
constitutionally require unanimity, the Court of Appeals
authoritatively determined that it did not do so; and a death
sentence based upon an erroneous instruction to that effect would
have to be set aside. JUSTICE BLACKMUN is correct that
"[a]mbiguous jury instructions, even in a capital case, do not
violate the Eighth Amendment simply because they are ambiguous . .
. ."
Ante at
494 U. S. 445,
but they do violate the Due Process Clause if they misstate the law
to the defendant's detriment -- and it is not essential to that
violation that the law as misstated be an unconstitutional law.
Thus, to take the most extreme example, if state law, as
authoritatively interpreted by the State's supreme court, does not
authorize the death penalty for a certain offense, the Due Process
Clause would not permit a state trial court to impose it even if
the jury instructions comported with the Eighth Amendment.
See
Hicks v. Oklahoma, 447 U. S. 343
(1980) (where state law requires jury sentencing, state courts may
not enforce sentence not imposed by Jury).
The single passage JUSTICE BLACKMUN relies upon from the State's
brief does not support the unlikely proposition that the State made
the previously described argument. It is plainly addressing the
constitutionality, not of the erroneous instruction the petitioner
asserted had been given, but of the instruction provided by
Maryland law as interpreted by the Court of Appeals. This is clear
because it discusses the constitutionality of requiring unanimity
for "[t]he
rejection of a mitigating circumstance," Brief
for Respondent in
Mills 19 (emphasis added). That was the
Court of Appeals' theory of what Maryland law required, whereas
petitioner had argued that the instruction actually given required
a mitigating circumstance to be rejected if even a single juror
objected. The quoted passage appears, moreover, in a section of the
Brief entitled "
The Maryland Court of Appeals'
interpretation of the statutory scheme is constitutional,"
id. at 14 (emphasis added), which is a subdivision of a
part of the Brief entitled:
"THE MARYLAND CAPITAL PUNISHMENT STATUTE AS INTERPRETED BY THE
MARYLAND COURT OFAPPEALS PERMITS FULL CONSIDERATION OF EVIDENCE
PRESENTED IN MITIGATION OF SENTENCE"
id. at 8 (emphasis added). JUSTICE BLACKMUN is correct
that
State v. Kirkley, 308 N.C. 196, 218-219 (1983),
could be cited for the proposition that the trial court's
instructions, interpreted as
Mills would have it (and if
Maryland law provided for such instructions), would be
constitutional. But in fact Maryland's Brief cited it for the more
limited point that the unanimity requirements in the law as
interpreted by the Court of Appeals (for both acceptance
and
rejection of mitigation, but with an automatic life sentence
in the event of deadlock) do not interfere with the "consideration
of evidence" and thus do not for that reason violate
Lockett and
Eddings Brief for Respondent in
Mills 20. Finally, if JUSTICE BLACKMUN were correct that
the State had sought to defend the constitutionality of Mills'
interpretation of the scheme, one would have expected the State
at
least to have mentioned that significant point at oral argument;
it did not.
[
Footnote 3/2]
JUSTICE BLACKMUN's citation of cases in which we decided an
issue that was not argued,
ante at
494 U. S. 446,
is irrelevant. Deciding what was not argued is quite different from
deciding what was not presented. The situation in
Mills
was not merely that no one spoke in defense of the
constitutionality of a statute similar to the one now before us;
nor even merely that no one had an
interest to speak in
its defense; but that the constitutionality of such a statute was
irrelevant to the outcome of the case.
No such statute was
presented by the facts, the Maryland Court of Appeals having
interpreted its statute differently. It is extraordinary to suggest
that we could pronounce authoritatively upon the constitutionality
of a statute that did not exist.
[
Footnote 3/3]
JUSTICE BLACKMUN states that "the meaning of a majority opinion
is to be found within the opinion itself; the gloss that an
individual Justice chooses to place upon it is not authoritative."
Ante, at
494 U. S. 448,
n. 3. That is certainly true where the individual Justice is not
needed for the majority. But where he is, it begs the question: the
opinion is
not a majority opinion except to the extent
that it accords with his views. What he writes is not a "gloss,"
but the least common denominator. To be sure, the separate writing
cannot add to what the majority opinion holds, binding the other
four Justices to what they have not said; but it can assuredly
narrow what the majority opinion holds, by explaining the more
limited interpretation adopted by a necessary member of that
majority. If the author of the opinion finds what the "glossator"
says inconsistent with his own understanding of the opinion, he may
certainly decline, at the outset of the opinion, to show that
Justice as joining; and if the "glossator" nonetheless insists upon
purporting to join, I suppose the author can explicitly disclaim
his company. But I have never heard it asserted that four Justices
of the Court have the power to fabricate a majority by binding a
fifth to their interpretation of what they say, even though he
writes separately to explain his own more narrow understanding.
[
Footnote 3/4]
JUSTICE BLACKMUN finds the analogy to affirmative defenses less
than persuasive because he says that "it is not at all clear" that
"the jury's failure to agree as to an affirmative defense results
in a conviction," "rather than a hung jury."
Ante at
494 U. S.
450-451. It would be interesting to know the basis for
that doubt with respect to the jurisdictions I have cited. Under
New York law, for example, the jury's verdict -- whether guilty or
not guilty -- must be unanimous.
See N.Y.Crim.Proc.Law §
310.80 (McKinney 1982). When an affirmative defense is raised,
"the court must carefully instruct the jury that they must be
satisfied of defendant's guilt of the offense beyond a reasonable
doubt before they may consider the affirmative defense."
Practice Commentary following N.Y.Penal Law § 25.00, p. 77
(McKinney 1987);
see People v. Morris, 68 App.Div.2d 893,
413 N.Y.S.2d 757 (1979); 31 N.Y.Jur.2d Criminal Law § 188, pp.
335-336 (1983) ("guilt must be established beyond a reasonable
doubt before the jury can even consider an affirmative defense").
If the jurors follow their instructions, it would appear that the
jury that has considered but not unanimously found an affirmative
defense must return a verdict of guilty. One wonders what
proportion of the jury JUSTICE BLACKMUN believes is necessary to
find an affirmative defense (if not all twelve) in those States
where the law does not explicitly specify a majority.
[
Footnote 3/5]
JUSTICE BLACKMUN believes that this grotesque distortion of
normal jury deliberations cannot be blamed upon the rule the Court
today announces, but is rather North Carolina's own fault, because
the scheme it has adopted represents "an extraordinary departure
from the way in which juries customarily operate."
Ante at
494 U. S. 449.
Typically, he points out, juries "are . . . called upon to render
unanimous verdicts on the ultimate issues of a given case," with
"no general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict."
Ibid. This is the sort of argument that causes state
legislators to pull their hair. A general verdict is of course the
usual practice.
But it is this Court that has pushed the States
to special verdicts in the capital sentencing field. We have
intimated that requiring "the sentencing authority . . . to specify
the factors it relied upon in reaching its decision" may be
necessary to ensure, through "meaningful appellate review . . .
that death sentences are not imposed capriciously or in a freakish
manner."
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 195
(1976). Disparaging a practice we have at least encouraged, if not
indeed coerced, gives new substance to the charge that we have been
administering a "bait and switch" capital sentencing
jurisprudence.