Respondent Parks' state court capital murder conviction and
death sentence became final in 1983. The Federal District Court
denied his habeas corpus petition, which was based on the argument
that,
inter alia, an instruction delivered in the penalty
phase of his trial, telling the jury to "avoid any influence of
sympathy," violated the Eighth Amendment. The Court of Appeals
reversed, holding that the instruction was unconstitutional because
it in effect told the jury to disregard the mitigating evidence
that Parks had presented.
Held: Parks is not entitled to federal habeas relief.
The principle he urges is a "new rule" of federal constitutional
law that can neither be announced nor applied in a case on
collateral review unless it comes within one of two narrow -- and
here inapplicable -- exceptions.
Teague v. Lane,
489 U. S. 288;
Penry v. Lynaugh, 492 U. S. 302. Pp.
492 U. S.
487-495.
(a) Parks' contention that the Eighth Amendment requires that
the jury be allowed to base the sentencing decision upon the
sympathy they feel for the defendant after hearing his mitigating
evidence constitutes a "new rule" as defined in
Teague and
Penry, since a state court considering his claim at the
time his conviction became final would not have concluded that it
was compelled by existing precedent to adopt it.
Lockett v.
Ohio, 438 U. S. 586, and
Eddings v. Oklahoma, 455 U. S. 104,
which were both decided before 1983, do not dictate the result
urged by Parks, since those cases hold only that the State cannot
bar relevant mitigating evidence from being presented and
considered during a capital trial's penalty phase, and do not speak
to how the State may guide the jury in considering and weighing
that evidence. The holding in
Penry, supra, at
492 U. S. 315
-- that the relief sought there did not call for the creation of a
new rule -- does not compel a similar result here. Nor does the
antisympathy instruction run afoul of
Lockett and
Eddings on the theory that jurors who react
sympathetically to mitigating evidence may interpret the
instruction as barring them from considering that evidence
altogether. At the very least, nothing in those cases prevents the
State from attempting to ensure reliability and nonarbitrariness by
requiring that the jury consider and give effect to the defendant's
mitigating evidence in the form of a reasoned
moral
response, rather than an emotional one based on the whims or
caprice of jurors. Similarly,
California
v.
Page 494 U. S. 485
Brown, 479 U. S. 538,
479 U. S. 542
-- which approved an antisympathy instruction that prevented jurors
from considering emotional responses not based on the evidence --
is of no assistance to Parks. It is doubtful that a constitutional
rule requiring that the jury be allowed to consider and give effect
to emotions based on mitigating evidence may be inferred from
Brown or is consistent with the Court's precedents.
Moreover, since
Brown was decided after 1983, Parks can
gain its benefit, if any, only by pursuing the untenable argument
that
Brown's reasoning, if not its result, was dictated by
Lockett and
Eddings. Pp.
494 U. S.
487-494.
(b) The new rule sought by Parks does not come within either of
the two exceptions set forth in
Teague and
Penry.
The first exception cannot be invoked, since Parks' proposed rule
would neither decriminalize a class of private conduct nor prohibit
the imposition of capital punishment on a particular class of
persons. The second exception is also inapplicable, since Parks'
rule has none of the primacy and centrality of the type of
"watershed rule of criminal procedure" that the exception
contemplates. The objectives of fairness and accuracy are more
likely to be threatened than promoted by a rule allowing the
sentence to turn not on whether the defendant, in the eyes of the
community, is morally deserving of the death sentence, but on
whether the defendant can strike an emotional chord in a juror. Pp.
494 U. S.
494-495.
860 F.2d 1545, reversed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, and in all but Part IV of which BLACKMUN and STEVENS, JJ.,
joined,
post, p.
494 U. S.
495.
JUSTICE KENNEDY delivered the opinion of the Court.
The issue before us is whether respondent Robyn Leroy Parks,
whose conviction and death sentence became final in
Page 494 U. S. 486
1983, is entitled to federal habeas relief. His claim is that an
instruction in the penalty phase of his trial, telling the jury to
avoid any influence of sympathy, violates the Eighth Amendment. In
Penry v. Lynaugh, 492 U. S. 302
(1989), we held that a new rule of constitutional law will not be
applied in cases on collateral review unless the rule comes within
one of two narrow exceptions. This limitation on the proper
exercise of habeas corpus jurisdiction applies to capital and
noncapital cases.
See id. at
492 U. S. 314.
We hold that Parks is not entitled to federal habeas relief. The
principle he urges is a new rule within the meaning of
Teague
v. Lane, 489 U. S. 288
(1989). It is not dictated by our prior cases and, were it to be
adopted, it would contravene well-considered precedents. We also
hold that the rule petitioner asks us to adopt does not come within
either of the two exceptions set forth in
Teague.
A passing motorist found Abdullah Ibrahim, a native of
Bangladesh, dead inside the Oklahoma City gas station where Ibrahim
worked. The victim died from a single chest wound inflicted by a
.45-caliber pistol. Parks admitted the murder to a friend, and the
police obtained tapes of that statement. Parks said that he shot
Ibrahim because he was afraid Ibrahim would tell the police that
Parks used a stolen credit card to purchase gasoline.
In 1978, a jury found Parks guilty of capital murder. During the
sentencing phase of the trial, Parks offered as mitigating evidence
the testimony of his father, who described Parks' background and
character. Parks' counsel relied upon this testimony in his closing
argument, arguing that Parks' youth, race, school experiences, and
broken home were mitigating factors that the jury should consider
in making its sentencing decision. He asked the jury to show
"kindness" to Parks in consideration of his background.
After instructing the jury that it must consider all of the
mitigating circumstances, statutory or nonstatutory, proffered by
Parks, and that it could consider any mitigating circumstances
Page 494 U. S. 487
that it found from the evidence, the trial court delivered the
following instruction:
"You are the judges of the facts. The importance and worth of
the evidence is for you to determine. You must avoid any influence
of sympathy, sentiment, passion, prejudice, or other arbitrary
factor when imposing sentence. You should discharge your duties as
jurors impartially, conscientiously and faithfully under your oaths
and return such verdict as the evidence warrants when measured by
these Instructions."
App. 13. After finding as an aggravating circumstance that the
murder was "committed for the purpose of avoiding or preventing a
lawful arrest or prosecution," Okla.Stat., Tit. 21, § 701.12
(1981), the jury sentenced Parks to death.
Parks' conviction and sentence were affirmed on direct appeal by
the Oklahoma Court of Criminal Appeals,
Parks v.
State, 651 P.2d
686 (1982), and we denied certiorari, 459 U.S. 1155 (1983).
After seeking postconviction relief in the state courts, Parks
filed a petition for a writ of habeas corpus in Federal District
Court arguing,
inter alia, that the antisympathy
instruction delivered in the penalty phase violated the Eighth
Amendment because it in effect told the jury to disregard the
mitigating evidence that Parks had presented. The District Court
denied relief, and a divided panel of the Court of Appeals for the
Tenth Circuit affirmed.
Parks v. Brown, 840 F.2d 1496
(1988). On rehearing, the Tenth Circuit, sitting en banc, reversed,
holding that the antisympathy instruction was unconstitutional for
the reasons advanced by Parks.
Parks v. Brown, 860 F.2d
1545 (1988). We granted certiorari, 490 U.S. 1034 (1989), and now
reverse.
Parks petitions the federal courts for a writ of habeas corpus.
As he is before us on collateral review, we must first determine
whether the relief sought would create a new rule under our
holdings in
Teague v. Lane, supra, at
489 U. S.
299-301, and
Penry, supra, at
492 U. S. 313.
If so, we will neither announce nor apply the new rule sought by
Parks unless it would fall
Page 494 U. S. 488
into one of two narrow exceptions.
Teague, supra, at
489 U. S. 307;
Penry, supra, at
492 U. S.
329.
In
Teague, we defined a new rule as a rule that "breaks
new ground," "imposes a new obligation on the States or the Federal
Government," or was not "
dictated by precedent existing at
the time the defendant's conviction became final."
Teague,
supra, at
489 U. S. 301
(emphasis in original). The explicit overruling of an earlier
holding no doubt creates a new rule; it is more difficult, however,
to determine whether we announce a new rule when a decision extends
the reasoning of our prior cases. As we recognized in
Butler v.
McKellar, ante at
494 U. S.
412-414, the question must be answered by reference to
the underlying purposes of the habeas writ. Foremost among these is
ensuring that state courts conduct criminal proceedings in
accordance with the Constitution as interpreted at the time of the
proceedings.
See id. at
494 U. S.
413.
"'[T]he threat of habeas serves as a necessary additional
incentive for trial and appellate courts throughout the land to
conduct their proceedings in a manner consistent with established
constitutional standards. In order to perform this deterrence
function, . . . the habeas court need only apply the constitutional
standards that prevailed at the time the original proceedings took
place.'"
Teague, supra, at
489 U. S. 306
(quoting
Desist v. United States, 394 U.
S. 244,
394 U. S.
262-263 (1969) (Harlan, J., dissenting)).
See also
Solem v. Stumes, 465 U. S. 638,
465 U. S. 653
(1984) (Powell, J., concurring in judgment).
"The 'new rule' principle therefore validates reasonable, good
faith interpretations of existing precedents made by state courts
even though they are shown to be contrary to later decisions."
Butler, ante at
494 U. S. 414.
Under this functional view of what constitutes a new rule, our task
is to determine whether a state court considering Parks' claim at
the time his conviction became final would have felt compelled by
existing precedent to conclude that the rule Parks seeks was
required by the Constitution.
Parks contends that the result he seeks does not involve the
creation of a new rule. Relying upon our decisions in
Page 494 U. S. 489
Lockett v. Ohio, 438 U. S. 586
(1978), and
Eddings v. Oklahoma, 455 U.
S. 104 (1982), both decided before his conviction became
final in 1983, and our decision in
California v. Brown,
479 U. S. 538
(1987), decided after his conviction became final, Parks argues
that the Eighth Amendment, as interpreted in 1983, required, and
still requires, that jurors be allowed to base the sentencing
decision upon the sympathy they feel for the defendant after
hearing his mitigating evidence. We disagree, and conclude that
adoption of this principle would create a new rule as defined in
Teague and
Penry.
In
Lockett, a plurality of the Court decided that an
Ohio death penalty statute that limited the jury's consideration to
specified mitigating circumstances violated the constitutional
requirement of individualized sentencing in capital cases.
See 438 U.S. at
438 U. S. 605.
The plurality based its conclusion on the view that
"the Eighth and Fourteenth Amendments require that 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."
Id. at
438 U. S. 604
(emphasis in original; footnotes omitted).
In
Eddings, the view adopted by the
Lockett
plurality ripened into a holding of the Court. We ruled that a
sentencing judge's refusal, as a matter of law, to consider
mitigating evidence presented by a capital defendant concerning his
family history and upbringing was constitutional error. Relying on
the plurality opinion in
Lockett, the Court reasoned:
"Just as the State may not by statute preclude the sentencer
from considering any mitigating factor, neither may the sentencer
refuse to consider,
as a matter of law, any relevant
mitigating evidence. In this instance, it was as if the trial judge
had instructed a jury to disregard the mitigating evidence
Eddings proffered on his behalf. The sentencer . . . may
determine the weight to be given relevant mitigating evidence. But
they may not give it no weight by excluding such evidence from
Page 494 U. S. 490
their consideration."
Eddings, 455 U.S. at
455 U. S. 13-115
(emphasis in original).
Review of our decisions in
Lockett and
Eddings
convinces us that the two cases do not dictate the result urged by
Parks. There is no dispute as to the precise holding in each of the
two cases: that the State cannot bar relevant mitigating evidence
from being presented and considered during the penalty phase of a
capital trial. These two cases place clear limits on the ability of
the State to define the factual bases upon which the capital
sentencing decision must be made. Indeed, that is how we have
interpreted these decisions in later cases.
See Hitchcock v.
Dugger, 481 U. S. 393,
481 U. S.
398-399 (1987) (instruction to advisory jury not to
consider nonstatutory mitigating circumstances, and refusal by
sentencing judge to consider the same);
Skipper v. South
Carolina, 476 U. S. 1,
476 U. S. 4-5
(1986) (exclusion of evidence regarding defendant's post-offense
conduct).
Lockett and
Eddings do not speak directly, if
at all, to the issue presented here: whether the State may instruct
the sentencer to render its decision on the evidence without
sympathy. Parks asks us to create a rule relating, not to
what mitigating evidence the jury must be permitted to
consider in making its sentencing decision, but to
how it
must consider the mitigating evidence. There is a simple and
logical difference between rules that govern what factors the jury
must be permitted to consider in making its sentencing decision and
rules that govern how the State may guide the jury in considering
and weighing those factors in reaching a decision. We thus cannot
say that the large majority of federal and state courts that have
rejected challenges to antisympathy instructions similar to that
given at Parks' trial have been unreasonable in concluding that the
instructions do not violate the rule of
Lockett and
Eddings. See Byrne v. Butler, 847 F.2d 1135,
1138-1140 (CA5 1988);
People v. Emerson, 122 Ill. 2d
411, 442-443,
522 N.E.2d
1109, 1122 (1987),
cert. denied, 488 U.S. 900 (1988);
State v. Ramseur, 106 N.J. 123, 295-299,
Page 494 U. S. 491
524 A.2d
188, 275-277 (1987);
State v. Steffen, 31 Ohio St.3d
111, 125, 509 N.E.2d 383, 396 (1987),
cert. denied,
485 U. S. 916
(1988);
State v. Owens, 293 S.C. 161, 169,
359 S.E.2d
275, 279,
cert. denied, 484 U.S. 982 (1987);
State
v. Porterfield, 746
S.W.2d 441, 450-451 (Tenn.),
cert. denied, 486 U.S.
1017 (1988). Even were we to agree with Parks' assertion that our
decisions in
Lockett and
Eddings inform, or even
control or govern, the analysis of his claim, it does not follow
that they compel the rule that Parks seeks.
See Butler,
ante at
494 U. S.
414-415.
Parks contends that our decision in
Penry that the
relief sought there did not call for the creation of a new rule
compels a similar result in this case. We disagree. In
Penry, we held that resolution of a claim that the Texas
death penalty scheme prevented the jury from considering and giving
effect to certain types of mitigating evidence did not involve the
creation of a new rule under
Teague. See Penry,
492 U.S. at
492 U. S. 315.
To the extent that
Penry's claim was that the Texas system
prevented the jury from giving any mitigating effect to the
evidence of his mental retardation and abuse in childhood, the
decision that the claim did not require the creation of a new rule
is not surprising.
Lockett and
Eddings command
that the State must allow the jury to give effect to mitigating
evidence in making the sentencing decision;
Penry's
contention was that Texas barred the jury from so acting. Here, by
contrast, there is no contention that the State altogether
prevented Parks' jury from considering, weighing, and giving effect
to all of the mitigating evidence that Parks put before them;
rather, Parks' contention is that the State has unconstitutionally
limited the manner in which his mitigating evidence may be
considered. As we have concluded above, the former contention would
come under the rule of
Lockett and
Eddings; the
latter does not.
Penry's claim, moreover, did not ask us to apply the
reasoning of
Lockett and
Eddings so much as it
required us to apply our decision in
Jurek v. Texas,
428 U. S. 262
(1976).
Page 494 U. S. 492
Penry interpreted
Jurek as holding that the
Texas death penalty statute is constitutional so long as it is
interpreted by the Texas courts to permit the jury to consider
mitigating circumstances proffered by the defendant.
See Penry,
supra, at
492 U. S. 316.
Having thus construed
Jurek, we concluded that resolution
of
Penry's claim that "those assurances were not fulfilled
in his particular case," 492 U.S. at
492 U. S. 318
(emphasis in original), did not involve the creation of a new
rule:
"In our view, the relief
Penry seeks does not 'impos[e]
a new obligation' on the State of Texas. Rather,
Penry
simply asks the State to fulfill the assurance upon which
Jurek was based: namely, that the special issues would be
interpreted broadly enough to permit the sentencer to consider all
of the relevant mitigating evidence a defendant might present in
imposing sentence."
Id. at
492 U. S. 315
(citations omitted). The
Penry Court's conclusion that
Lockett and
Eddings dictated the rule sought by
Penry, see 492 U.S. at
492 U. S.
318-319, must be understood in terms of the Court's
ruling in
Jurek, and its application in later cases. We
did not view
Lockett and
Eddings as creating a
rule different from that relied upon in
Jurek; rather, we
indicated that
Lockett and
Eddings reaffirmed the
reasoning in
Jurek, see 492 U.S. at
492 U. S.
317-319, and confirmed the necessity of its application
to
Penry's claim.
We also reject Parks' contention that the antisympathy
instruction runs afoul of
Lockett and
Eddings
because jurors who react sympathetically to mitigating evidence may
interpret the instruction as barring them from considering that
evidence altogether. This argument misapprehends the distinction
between allowing the jury to consider mitigating evidence and
guiding their consideration. It is no doubt constitutionally
permissible, if not constitutionally required,
see Gregg v.
Georgia, 428 U. S. 153,
428 U. S.
189-195 (1976) (opinion of Stewart, Powell, and STEVENS,
JJ.), for the State to insist that
"the individualized assessment of the appropriateness of the
death penalty [be] a moral inquiry into the culpability
Page 494 U. S. 493
of the defendant, and not an emotional response to the
mitigating evidence."
California v. Brown, 479 U.S. at
479 U. S. 545
(O'CONNOR, J., concurring). Whether a juror feels sympathy for a
capital defendant is more likely to depend on that juror's own
emotions than on the actual evidence regarding the crime and the
defendant. It would be very difficult to reconcile a rule allowing
the fate of a defendant to turn on the vagaries of particular
jurors' emotional sensitivities with our longstanding recognition
that, above all, capital sentencing must be reliable, accurate, and
nonarbitrary.
See Gregg, supra, at
428 U. S.
189-195;
Proffitt v. Florida, 428 U.
S. 242,
428 U. S. 252-253
(1976) (opinion of Stewart, Powell, and STEVENS, JJ.);
Jurek v.
Texas, supra, at
428 U. S.
271-272 (same);
Woodson v. North Carolina,
428 U. S. 280,
428 U. S.
303-305 (1976) (plurality opinion);
Roberts v.
Louisiana, 428 U. S. 325,
428 U. S.
333-335 (1976) (plurality opinion). At the very least,
nothing in
Lockett and
Eddings prevents the State
from attempting to ensure reliability and nonarbitrariness by
requiring that the jury consider and give effect to the defendant's
mitigating evidence in the form of a "reasoned moral response,"
Brown, 479 U.S. at
479 U. S. 545
(emphasis in original), rather than an emotional one. The State
must not cut off full and fair consideration of mitigating
evidence; but it need not grant the jury the choice to make the
sentencing decision according to its own whims or caprice.
See
id. at
479 U. S.
541-543.
Given the above discussion, it is obvious that our decision in
California v. Brown is of no assistance to Parks. In
Brown, we held that an instruction telling the jury not to
be "swayed by
mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion or public feeling'" during the sentencing
phase did not violate the Eighth Amendment. See id. at
479 U. S. 542.
We reasoned that a reasonable juror would interpret the instruction
to ignore mere sympathy "as an admonition to ignore emotional
responses that are not rooted in the aggravating and mitigating
evidence," and that it was not unconstitutional for a State to
"prohibi[t] juries from basing
Page 494 U. S. 494
their sentencing decisions on factors not presented at the
trial."
Id. at
479 U. S.
542-543. Although we approved of the use of the
antisympathy instruction given in
Brown, Parks attempts to
transform our reasoning in that case into a rule that the
instruction given in his case violates the Eighth Amendment.
Parks' argument relies upon a negative inference: because we
concluded in
Brown that it was permissible under the
Constitution to prevent the jury from considering emotions not
based upon the evidence, it follows that the Constitution requires
that the jury be allowed to consider and give effect to emotions
that are based upon mitigating evidence. For the reasons discussed
above,
see supra at
494 U. S.
488-491, we doubt that this inference follows from
Brown or is consistent with our precedents. The same
doubts are shared by the clear majority of federal and state courts
that have passed upon the constitutionality of antisympathy
instructions after
Brown. See supra, at
494 U. S.
490-491. The fact remains, however, that even if we
accept Parks' arguments,
Brown itself was decided nearly
four years after Parks' conviction became final. In order to gain
the benefit, if any, of
Brown, Parks must establish that
the decision in
Brown did not create a new rule. To do so,
Parks must contend that
Lockett and
Eddings
dictated our reasoning, albeit perhaps not the result, in
Brown. Our discussion above makes it evident that they do
not.
Having decided that the relief Parks seeks would necessitate the
creation of a new rule, we must determine whether the rule would
come within either of the two exceptions to the general principle
that new rules will not be applied on collateral review. The first
exception permits the retroactive application of a new rule if the
rule places a class of private conduct beyond the power of the
State to proscribe,
see Teague, 489 U.S. at
489 U. S. 311,
or addresses a "substantive categorical guarante[e] accorded by the
Constitution," such as a rule "prohibiting a certain category of
punishment for a class of defendants because of their status or
offense."
Penry,
Page 494 U. S. 495
492 U.S. at
492 U. S. 329,
492 U. S. 330.
Parks cannot invoke this exception. The rule sought by Parks would
neither decriminalize a class of conduct nor prohibit the
imposition of capital punishment on a particular class of persons.
See Butler, ante at
494 U. S. 415;
cf. Penry, supra, at
492 U. S.
329-330.
The second exception is for "watershed rules of criminal
procedure" implicating the fundamental fairness and accuracy of the
criminal proceeding.
See Teague, supra, at
489 U. S. 311;
Butler, ante at
494 U. S. 416.
This exception is also inapplicable here. Although the precise
contours of this exception may be difficult to discern, we have
usually cited
Gideon v. Wainwright, 372 U.
S. 335 (1963), holding that a defendant has the right to
be represented by counsel in all criminal trials for serious
offenses, to illustrate the type of rule coming within the
exception.
See, e.g., Teague, supra, at
489 U. S.
311-312;
Stumes, 465 U.S. at
465 U. S.
653-654, and n. 4 (Powell, J., concurring in judgment).
Whatever one may think of the importance of respondent's proposed
rule, it has none of the primacy and centrality of the rule adopted
in
Gideon or other rules which may be thought to be within
the exception. The objectives of fairness and accuracy are more
likely to be threatened than promoted by a rule allowing the
sentence to turn not on whether the defendant, in the eyes of the
community, is morally deserving of the death sentence, but on
whether the defendant can strike an emotional chord in a Juror.
The judgment of the Court of Appeals is therefore reversed.
It is so ordered.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom
JUSTICE BLACKMUN and JUSTICE STEVENS join except at to Part IV,
dissenting.
Respondent Robyn Parks was sentenced to death for the murder of
a gas station attendant. After his conviction became
Page 494 U. S. 496
final in 1983, respondent brought a petition for writ of habeas
corpus under 28 U.S.C. § 2254 (1982 ed.) challenging his conviction
and death sentence. He alleged,
inter alia, that an
instruction given at the sentencing phase of his trial that told
the jury to avoid "any influence of sympathy, sentiment, passion,
prejudice or other arbitrary factor when imposing sentence," App.
13, deprived him of an individualized sentencing determination
because a reasonable juror could have understood the instruction to
bar consideration of relevant mitigating evidence. The Tenth
Circuit, sitting en banc, agreed and vacated respondent's death
sentence.
Parks v. Brown, 860 F.2d 1545 (1988). Today, the
Court holds that respondent is not entitled to relief because his
claim would require the application of a "new rule" that may not be
applied retroactively on collateral review. [
Footnote 1] The Court displays undue eagerness to
apply the new standard for retroactivity announced in
Butler v.
McKellar, ante p.
494 U. S. 407, at
the expense of thoughtful legal analysis. I cannot countenance such
carelessness when a life is at stake. I dissent.
Page 494 U. S. 497
I
In
Teague v. Lane, 489 U. S. 288
(1989), the Court dramatically altered retroactivity doctrine as it
applies to defendants challenging their confinement by the State
through the collateral remedy of habeas corpus. The Court held that
a habeas petitioner may not obtain relief from an unconstitutional
conviction or sentence if his claim would require the recognition
of a "new rule" of criminal procedure.
Id. at
489 U. S. 310
(plurality opinion);
id. at
489 U. S. 320
(STEVENS, J., joined by BLACKMUN, J., concurring). Today, in
Butler v. McKellar, ante at
494 U. S. 415,
the Court defines a "new rule" as one that was "susceptible to
debate among reasonable minds" under law prevailing at the time the
habeas petitioner's conviction became final. As I argued in my
dissent in
Butler, the Court's novel "reasonableness"
review of state court convictions is incompatible with the
fundamental purposes of habeas corpus.
See Butler, ante at
494 U. S.
424-430 (BRENNAN, J., dissenting).
The Court's decisions in the instant case and in
Butler
leave no doubt that the Court has limited drastically the scope of
habeas corpus relief through the application of a virtually
all-encompassing definition of "new rule." In this case, the Court
concludes that respondent seeks a "new rule" because it determines
that the few lower courts that have rejected similar challenges to
an antisympathy instruction were not "unreasonable" for doing so.
Ante at
494 U. S. 490
("We thus cannot say that the large majority of federal and state
courts that have rejected challenges to antisympathy instructions
similar to that given at Park's trial have been unreasonable").
[
Footnote 2] The majority's
conclusion, however, is based on a
Page 494 U. S. 498
fundamental misreading of
Lockett v. Ohio, 438 U.
S. 586 (1978),
Eddings v. Oklahoma,
455 U. S. 104
(1982), and
Penry v. Lynaugh, 492 U.
S. 302 (1989).
A
Most of the majority opinion addresses the retroactivity of a
claim not even raised by respondent. The majority mischaracterizes
respondent's claim as one demanding that "jurors be allowed to base
the sentencing decision upon the sympathy they feel for the
defendant after hearing his mitigating evidence,"
ante at
494 U. S. 489,
and holds that claim barred by
Teague. See ante
at
494 U. S.
488-494. But as counsel for respondent argued before
this Court:
"Mr. Parks asserts no constitutional right to a sympathetic or
emotional jury. What he does assert under
Woodson, Lockett,
Eddings and their progeny is the entirely familiar claim
upheld consistently by this Court of a right to a sentencer who has
not been precluded from considering as a mitigating factor any
aspect of a defendant's background, character or record in addition
to the circumstances of his offense that he proffers as a basis for
a sentence less than death."
Tr. of Oral Arg.19-20. Respondent concedes the State's
contention that a decision to impose the death penalty must reflect
a "reasoned moral response" to the defendant's culpability.
See, e.g., Brief for Respondent 9. What he argues is that
his jury could have interpreted the antisympathy instruction as
barring consideration
Page 494 U. S. 499
of mitigating evidence. More specifically, he claims that,
because much of the mitigating evidence relevant to his culpability
also evoked sympathy, a juror who reacted sympathetically to the
evidence would have believed that he was not entitled to consider
that evidence
at all -- not even for its "moral" weight.
[
Footnote 3]
See id.
at 10 ("[A]n antisympathy charge by the court, exploited by the
prosecutor's remarks, erected a barrier to full consideration of
mitigating proof about [respondent's] background. Since these
circumstances compromised respondent's chance to obtain a reasoned
moral response from the jurors who held his life in the balance,
his sentence is too unreliable to stand"). Respondent's actual
claim, therefore, alleges nothing more than a violation of the rule
recognized in
Lockett, supra, and
Eddings, supra,
that a jury may not be prohibited from considering and giving
effect
Page 494 U. S. 500
to all relevant mitigating evidence when deciding whether to
impose the death penalty.
It was on this claim that the Tenth Circuit granted respondent
habeas corpus relief. 860 F.2d at 1556. The court reasoned as
follows:
"'Mercy,' 'humane' treatment, 'compassion,' and consideration of
the unique 'humanity' of the defendant, which have all been
affirmed as relevant considerations in the penalty phase of a
capital case, all inevitably involve sympathy or
are
sufficiently intertwined with sympathy that they cannot be
parsed without significant risk of confusion in the mind of a
reasonable juror. . . ."
"Without placing an undue technical emphasis on definitions, it
seems to us that sympathy is likely to be perceived by a reasonable
juror as an essential or important ingredient of, if not a synonym
for, 'mercy,' 'humane' treatment, 'compassion' and a full
'individualized' consideration of the 'humanity' of the defendant
and his 'character.'"
Id. at 1556 (emphasis added). In holding that the
antisympathy instruction "undermined the jury's ability to consider
fully [respondent's] mitigating evidence," the Tenth Circuit was
careful to distinguish the claim at issue from the distorted
version of respondent's claim that the Court revives today:
"That argument misconstrues the issue. The issue is not whether
unbridled sympathy itself is a proper mitigating factor. Rather,
the issue is whether an
absolute antisympathy instruction
presents an impermissible danger of interfering with the jury's
consideration of proper mitigating evidence. We hold that it does.
The Supreme Court has made it clear that such a risk is
'unacceptable and incompatible with the commands of the Eighth and
Fourteenth Amendments.'"
Id. at 1557 (quoting
Lockett, 438 U.S. at
438 U. S. 605)
(emphasis in original).
Page 494 U. S. 501
B
Under
Teague, respondent's claim must be decided
according to the "prevailing law" at the time his conviction became
final in 1983 unless his claim falls within one of the two
exceptions to the general nonretroactivity presumption.
See
Teague, 489 U.S. at
489 U. S. 311.
By 1983, this Court had unequivocally held that a sentencer may
"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."
Lockett, supra, at
438 U. S.
see also Eddings, 455 U.S. at
455 U. S.
113-114 ("Just as the State may not by statute preclude
the sentencer from considering any mitigating factor, neither may
the sentencer refuse to consider, as a matter of law, any relevant
mitigating evidence");
id. at
438 U. S. 115,
n. 10 (when state law allows defendant to present any relevant
mitigating evidence, "
Lockett requires the sentencer to
listen"). Despite the fact that respondent's conviction was final
after both
Lockett and
Eddings were decided, the
Court today holds that respondent is not entitled to habeas corpus
relief because his claim requires the application of a "new rule"
of criminal procedure. The majority states that, although
Lockett and
Eddings may "inform, or even control
or govern" such a claim, they do not "
compel" the rule
Parks seeks.
Ante at
494 U. S. 491.
The Court reasons that
Lockett and
Eddings
answered only the question "
what mitigating evidence the
jury must be permitted to consider in making the sentencing
decision" and not "
how it must consider the mitigating
evidence."
Ante at
494 U. S. 490
(emphasis in original);
see ibid. ("There is a simple and
logical difference between rules that govern what factors the jury
must be permitted to consider . . . and rules that govern how the
State may guide the jury in considering and weighing those factors
in reaching a decision").
Respondent does not, however, raise a claim challenging
how the jury considered mitigating evidence. As
explained
Page 494 U. S. 502
above, he argues that his jury could have believed it could not
consider his mitigating evidence's bearing on moral culpability
at all. Thus, his claim clearly falls within the the
holdings of
Lockett and
Eddings even under the
majority's reading of those cases. The
real question in
this case is whether the rule of
Lockett and
Eddings was violated. Resolution of respondent's claim
involves only the otherwise familiar inquiry into the sufficiency
of the jury instructions, not the recognition of a new principle of
law.
See, e.g., Hitchcock v. Dugger, 481 U.
S. 393,
481 U. S. 397
(1987);
California v. Brown, 479 U.
S. 538 (1987). The Court's conclusion that respondent
seeks a "new rule" when he claims that the jury was
"prevent[ed] . . . from giving independent mitigating weight to
aspects of [his] character and record and to circumstances of the
offense proferred in mitigation,"
Lockett, supra at
438 U. S. 605,
is disingenuous.
Moreover, the majority's limited reading of
Lockett and
Eddings was rejected last Term in
Penry v.
Lynaugh, 492 U. S. 302
(1989). In that case, we held that
Teague did not bar a
habeas petitioner from raising the claim that the Texas death
penalty statute deprived him of an individualized sentencing
determination by limiting the
effect the jury could give
to relevant mitigating evidence. 492 U.S. at
492 U. S. 318.
We explained:
"[I]t was clear from
Lockett and
Eddings that
a State could not, consistent with the Eighth and Fourteenth
Amendments, prevent the sentencer from considering and giving
effect to evidence relevant to the defendant's background or
character or the circumstances of the offense that mitigate against
imposing the death penalty."
Ibid. Penry argued that, although a Texas jury
was able to give some effect to the evidence of mental retardation,
the evidence
"ha[d] relevance to his moral culpability beyond the
Page 494 U. S. 503
scope of the special issues, and . . . the jury was unable to
express its 'reasoned moral response' to that evidence in
determining whether death was the appropriate punishment."
Penry, supra, at
492 U. S. 322.
[
Footnote 4] In sustaining
Penry's challenge, we expressly rejected the argument
that, although the State may not bar "consideration" of all
relevant mitigating evidence, it may channel the "effect" the
sentencer gives the evidence. We stated that
"'the right to have the sentencer consider and weigh relevant
mitigating evidence would be meaningless unless the sentencer was
also permitted to give effect to its consideration' in imposing
sentence.'"
492 U.S. at
492 U. S. 321
(quoting
Franklin v. Lynaugh, 487 U.
S. 164,
487 U. S. 185
(1988) (O'CONNOR, J., concurring)). [
Footnote 5]
See also Penry, supra, at
492 U. S.
327
Page 494 U. S. 504
("
I
n 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'") (quoting
McCleskey v. Kemp, 481 U. S. 279,
481 U. S. 304
(1987)).
The majority struggles mightily to distinguish rules that govern
a jury's ability to "consider," "weigh," and "give effect to"
mitigating evidence from rules relating to the "
manner in
which [the] mitigating evidence can be considered."
Ante
at
494 U. S. 491
(emphasis added). This distinction is meaningless for a rule that
limits the
manner in which the jury considers mitigating
evidence is unconstitutional if it limits the jury's ability to
consider and give effect to that evidence. But under the majority's
approach, a law requiring the jury to discount the weight of all,
or of certain, mitigating factors would be consistent with
Lockett so long as the majority could describe the statute
as relating to the "manner" in which the jury considers the
evidence despite such a statute's obvious preclusive effect.
Cf. McKoy v. North Carolina, ante at
481 U. S. 465-466
(SCALIA, J., dissenting) (requirement that jury unanimously agree
that mitigating circumstance exists is not a restriction on the
jury's ability to give effect to mitigating evidence, but only on
the "
manner in which it was allowed to do so --
viz., only unanimously") (citing
ante at
494 U. S.
490).
Indeed, the majority's language is strangely reminiscent of the
argument trumpeted by JUSTICE SCALIA in
Penry. JUSTICE
SCALIA, writing for four Members of the Court, argued that
"it could not be clearer that
Jurek adopted the
constitutional rule that the instructions had to render all
mitigating circumstances relevant to the jury's verdict, but that
the precise manner of their relevance -- the precise
effect of their consideration -- could be channeled by
law."
Penry, 492 U.S. at
492 U. S. 355
(opinion concurring in part and dissenting in part). The Court
correctly rejected that position in
Penry, and its failure
to do so today creates considerable ambiguity
Page 494 U. S. 505
about which
Lockett claims a federal court may
hereafter consider on habeas corpus review.
C
Because the majority concludes that the claim respondent presses
would constitute a "new rule," it must proceed to consider whether
the claim fits within the second exception to the
Teague
doctrine of nonretroactivity. [
Footnote 6] A plurality of the Court in
Teague
concluded that only those new rules that amount to "bedrock
procedural" rules "without which the likelihood of an accurate
conviction is seriously diminished" should be applied
retroactively.
Teague, 489 U.S. at
489 U. S. 313.
Today, a majority of the Court adopts this crabbed construction of
the second exception, and holds that the exception is limited to
"
watershed rules of criminal procedure' implicating the
fundamental fairness and accuracy of the criminal proceeding."
Ante at 494 U. S. 495
(quoting Teague, supra, at 489 U. S.
311); see also Butler, ante at 494 U. S. 416.
Beyond such generalities, the majority offers no guidance despite
its concession that the "precise contours of this exception may be
difficult to discern." Ante at 494 U. S.
495.
The determination with which the Court refuses to apply this
exception to a capital sentencing error is most disturbing, and is
remarkably insensitive to the fundamental premise upon which our
Eighth Amendment jurisprudence is built. This Court has
consistently
"recognized that the qualitative difference of death from all
other punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination."
California v. Ramos, 463 U. S. 992,
463 U. S.
998-999 (1983). If the irrevocable nature of the death
penalty is not sufficient to counsel against application of Justice
Harlan's doctrine of limited retroactivity for collateral
review
Page 494 U. S. 506
altogether, [
Footnote 7] it
should at least inform the determination of the proper scope of the
second
Teague exception in capital cases. [
Footnote 8] Moreover, the majority's
insistence that a rule must enhance the accuracy of the
factfinding process in order to fit within the second
exception is difficult to justify in the context of capital
sentencing. The decision whether to impose the death penalty
represents a moral judgment about the defendant's culpability, not
a factual finding.
See Teague, supra, at
489 U. S. 321
(STEVENS, J., concurring in part and concurring in judgment) ("[A]
touchstone of factual innocence would provide little guidance in .
. . cases, such as those challenging the constitutionality of
capital sentencing hearings").
Cf. Smith v. Murray,
477 U. S. 527,
477 U. S. 537
(1986). Thus, the scope of the exception should be tailored to the
unique nature of the sentencing decision.
Page 494 U. S. 507
The foremost concern of the Eighth Amendment is that the death
sentence not be imposed in an arbitrary and capricious manner.
See, e.g., Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 188
(1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). To
comply with this command, a State must narrow the class of
defendants eligible for the death penalty, and must also ensure
that the decision to impose the death penalty is individualized.
See California v. Brown, 479 U.S. at
479 U. S. 541.
The right to an individualized sentencing determination is perhaps
the most fundamental right recognized at the capital sentencing
hearing.
See Woodson v. North Carolina, 428 U.
S. 280,
428 U. S. 304
(1976) (plurality opinion) ("[T]he fundamental respect for humanity
underlying the Eighth Amendment . . . requires consideration of 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") (citation omitted).
"The nonavailability of corrective or modifying mechanisms with
respect to an executed capital sentence underscores the need for
individualized consideration as a constitutional requirement in
imposing the death sentence."
Lockett, 438 U.S. at
438 U. S. 605
(plurality opinion);
see Blystone v. Pennsylvania, ante at
494 U. S. 307
("The requirement of individualized sentencing in capital cases is
satisfied by allowing the jury to consider all relevant mitigating
evidence"). Rules ensuring the jury's ability to consider
mitigating evidence guarantee that the jury acts with full
information when formulating a moral judgment about the defendant's
conduct. Because such rules are integral to the proper functioning
of the capital sentencing hearing, they must apply retroactively
under the second
Teague exception. Thus, even if
respondent's claim constitutes a "new rule," it must fall within
the second exception. I fear that the majority's failure to provide
any principled analysis explaining why the second
Teague
exception does not apply in this case reflects the Court's growing
displeasure with the litigation of capital cases on collateral
review.
Page 494 U. S. 508
II
For the same reasons that
Lockett and
Eddings
compel the conclusion that respondent does not seek a "new rule"
under
Teague, these cases also compel the conclusion that
respondent was denied an individualized sentencing determination as
required by the Eighth Amendment. As JUSTICE O'CONNOR has
recognized,
"one difficulty with attempts to remove emotion from capital
sentencing through [antisympathy] instructions . . . is that juries
may be misled into believing that mitigating evidence about a
defendant's background or character also must be ignored."
California v. Brown, 479 U.S. at
479 U. S.
545-546 (concurring opinion) (citing
id. at
479 U. S. 555
(BRENNAN, J., dissenting)). That is exactly what happened in this
case: in all likelihood, the jury interpreted the antisympathy
instruction as a command to ignore the mitigating evidence.
When reviewing the validity of particular jury instructions, the
Court has consistently held that
"[t]he question . . . is not what [this Court] declares the
meaning of the charge to be, but rather what a reasonable juror
could have understood the charge as meaning."
Francis v. Franklin, 471 U. S. 307,
471 U. S.
315-316 (1985) (citing
Sandstrom v. Montana,
442 U. S. 510,
442 U. S.
516-517 (1979)). Until this Term, there had been little
disagreement with this standard. Today, however, a majority of the
Court reformulates the appropriate inquiry as "whether there is a
reasonable likelihood that the jury has applied the challenged
instruction" in an unconstitutional manner.
Boyde v.
California, ante at
494 U. S. 380.
[
Footnote 9] Under
Page 494 U. S. 509
either the
Francis or
Boyde approach, the
antisympathy instruction given in this case was unconstitutional
because it interfered with the jury's ability to consider
mitigating evidence presented by respondent.
A
"To determine how a reasonable juror could interpret an
instruction, we 'must focus initially on the specific language
challenged.' . . . If the specific instruction fails constitutional
muster, we then review the instructions as a whole to see if the
entire charge delivered a correct interpretation of the law."
California v. Brown, supra, at
479 U. S. 541
(quoting
Francis, supra, at
471 U. S.
315-316). [
Footnote
10] In this case, the jury was instructed to "avoid
any influence of sympathy, sentiment, passion, prejudice
or other arbitrary factor when imposing sentence." App. 13
(emphasis added). This instruction is distinguishable from the one
upheld in
California v. Brown, supra. In that case, the
Court rejected the argument that a reasonable juror could have
interpreted an instruction not to be "swayed by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion or public
feeling" as a command not to consider mitigating evidence. The
Court held instead that a reasonable juror would have
understood
"the instruction not to rely on '
mere sympathy' as a
directive to ignore only the sort of sympathy that would be totally
divorced from the evidence adduced during the penalty phase."
479 U.S. at
479 U. S.
542
Page 494 U. S. 510
(emphasis added). Because the jury in this case was told not to
consider
any sympathy -- rather than "mere sympathy" -- it
is more likely that the jury at respondent's trial understood that,
when making a moral judgment about respondent's culpability, it was
forbidden from taking into account any evidence that evoked a
sympathetic response.
The context of the sentencing proceedings bolsters this
conclusion. The only mitigating evidence proffered by respondent
was testimony about his deprived background from his father.
Although this evidence was relevant to the sentencing decision,
because it bore on respondent's culpability, a juror's initial
reaction to this evidence might have been to feel sympathy for
respondent because of his hardship. A juror who conscientiously
followed the instruction to avoid
any sympathy would have
believed that he was required to ignore the father's testimony
altogether, since only by excluding it completely from
consideration could he eliminate all feelings of sympathy for
respondent. Moreover, because the father's testimony did not fit
within the mitigating circumstances listed by the judge, it was all
the more likely that a juror believed that the father's testimony
was irrelevant to the sentencing decision. [
Footnote 11]
See California v. Brown,
supra,
Page 494 U. S. 511
at
479 U. S. 550
(BRENNAN, J., dissenting) ("It is . . . likely . . . that jurors
instructed not to rely on sympathy would conclude that the
defendant had simply gone too far in his presentation, and that, as
in other trial contexts, the jury must look to the judge for
guidance as to that portion of the evidence that appropriately
could be considered").
Indeed, the prosecutor's closing argument maintained that
respondent's presentation at the sentencing phase constituted an
illegitimate sympathy ploy, and that the jury was
required
to ignore it. [
Footnote 12]
After explaining that none of the minimum mitigating circumstances
were supported by the evidence, the prosecutor argued:
"[Defense counsel's] closing arguments are really a pitch to you
for sympathy -- sympathy, or sentiment or prejudice; and you told
me in
voir dire you wouldn't do that."
"Well it's just cold turkey. He either did it or he didn't. He
either deserves the death penalty or he doesn't, you know. You
leave the sympathy, and the sentiment and prejudice part out of
it."
App. 75. Given the sparse amount of evidence presented at the
sentencing phase and the prosecutor's theme that the jury's
deliberations
Page 494 U. S. 512
were to be purely mechanical, [
Footnote 13] there is a reasonable likelihood that the
jury believed that the antisympathy instruction barred it from
considering respondent's deprived background as a valid reason not
to impose the death penalty.
Nothing in the other instructions ensured that the antisympathy
instruction would be correctly understood. The trial judge did
instruct the jury that it was required to consider a list of
minimum mitigating circumstances, and that it was free to consider
any other factor it deemed mitigating, [
Footnote 14] but these instructions did not cure the
infirmity of the anti-sympathy
Page 494 U. S. 513
instruction. Although the judge informed the jury in broad terms
that it could consider all relevant mitigating evidence, he never
defined the concept of mitigation for the jury. But the jury was
told that it could not consider "sympathy," and nothing in the jury
instructions explained that the command to avoid sympathy did not
preclude the consideration of mitigating evidence. At best, then,
the instructions sent contradictory messages.
"Language that merely contradicts and does not explain a
constitutionally infirm instruction will not suffice to absolve the
infirmity. A reviewing court has no way of knowing which of the two
irreconcilable instructions the jurors applied in reaching their
verdict."
Francis, 471 U.S. at
471 U. S.
322.
"Unless we can rule out the substantial possibility that the
jury may have rested its verdict on the 'improper' ground, we must
remand for resentencing."
Mills v. Maryland, 486 U. S. 367,
486 U. S. 377
(1988).
B
The majority suggests that
Lockett and
Eddings
do not compel the invalidation of the antisympathy instruction
because the instruction ensures that the decision to impose the
death penalty is "a
reasoned moral response,' rather
than an emotional one." Ante at 494 U. S. 493
(citation omitted; emphasis in original). Although some recent
cases have stated that the decision to impose the death penalty
must be a moral decision, see Brown, 479 U.S. at
479 U. S. 545
(O'CONNOR, J., concurring); Penry, 492 U.S. at
492 U. S. 319;
Franklin v. Lynaugh, 487 U.S. at 487 U. S. 184,
487 U. S. 185
(O'CONNOR, J., concurring), those cases have not clearly defined
the difference between a "reasoned moral response" and an
"emotional" one. Indeed, our earlier cases recognized that
"sympathy" is an important ingredient in the Eighth Amendment's
requirement of an individualized sentencing determination. In
Woodson v. North Carolina, 428 U.
S. 280 (1976), a plurality of the Court held
that
"[a] process that accords no significance to relevant facets of
the character and record of the individual offender or the
circumstances
Page 494 U. S. 514
of the particular offense excludes from consideration in fixing
the ultimate punishment of death the possibility of
compassionate or
mitigating factors stemming from
the diverse frailties of humankind."
Id. at
428 U. S. 304
(emphasis added). The description of "mitigating evidence" as
"compassionate or mitigating factors" necessarily includes the
concept of sympathy, because "sympathy" is fairly regarded as a
synonym for "compassion." Webster's New International Dictionary
544 (2d ed.1957); Funk & Wagnalls New Standard Dictionary 541
(1952).
We can debate whether sympathy is an emotional reaction that has
no place in a decision to impose the death penalty, or whether
sympathy, although an emotion, plays an important role in forming
the jury's
moral response to the defendant's actions. But
this debate is an irrelevant academic exercise if, in a particular
case, the jury is not
informed of the distinction between
the type of reaction to mitigating evidence that is an invalid
emotional response and the type of reaction that is an acceptable
"reasoned moral response." This Court's incantation of that
talismanic phrase cannot hide the fact that the jury instructions
in this case did not clearly inform the jurors that their decision
whether to impose the death penalty -- the most severe sanction
available to society -- should represent a moral judgment about the
defendant's culpability in light of all the available evidence. I
would think the Court would at least ensure that its views about
the propriety of the death penalty were the ones actually
transmitted to the jury.
III
The instructions at the sentencing phase of respondent's trial
may well have misled the jury about its duty to consider the
mitigating evidence respondent presented. Until today, the Court
consistently has vacated a death sentence and remanded for
resentencing when there was any ambiguity about whether the
sentencer actually considered mitigating evidence.
See Eddings
v. Oklahoma, 455 U.S. at
455 U. S.
119
Page 494 U. S. 515
(O'CONNOR, J., concurring) ("
Woodson and
Lockett require us to remove any legitimate basis for
finding ambiguity concerning the factors actually considered by the
[sentencer]").
See also Penry, supra, at
492 U. S. 328;
Mills, supra, at
486 U. S. 377;
Hitchcock, 481 U.S. at
481 U. S. 399;
Skipper v. South Carolina, 476 U. S.
1,
476 U. S. 8
(1986);
Lockett, 438 U.S. at
438 U. S. 608.
The Court's failure to adhere to this fundamental Eighth Amendment
principle is inexcusable. Distorting respondent's claim and our
precedents in order to hide behind the smokescreen of a new
standard of retroactivity is even more so.
IV
Even if I did not believe that the antisympathy instruction
interfered with the jury's ability to consider and give effect to
mitigating evidence, I would vacate respondent's death sentence. I
adhere to my view that the death penalty is in all circumstances
cruel and unusual punishment.
Gregg v. Georgia,
428 U. S. 153,
428 U. S. 227
(1976).
[
Footnote 1]
The Court of Appeals for the Tenth Circuit granted respondent
relief before we decided
Teague v. Lane, 489 U.
S. 288 (1989). Although the case was briefed and argued
after
Teague, neither of the parties nor any
amicus briefed the retroactivity issue.
See also
Tr. of Oral Arg. 11 ("Well you really haven't come here prepared to
argue the
Teague point, and it's probably not fair to
press you on it"). In such circumstances, I question the propriety
of the Court's addressing the retroactivity issue in the first
instance.
Cf. Teague, supra, at
489 U. S. 300
(amicus briefed issue). The wiser course would be to vacate the
Tenth Circuit's decision and remand for reconsideration in light of
Teague and the novel standard adopted in
Butler v.
McKellar, ante p.
494 U. S. 407.
See Zant v. Moore, 489 U. S. 836
(1989) (remanding case after oral argument for reconsideration in
light of
Teague);
see ibid. (BRENNAN, J.,
concurring) (appellate court should consider in first instance
whether State waived any claim relating to retroactivity). The
Court's application of the new doctrine of retroactivity adopted in
Teague to bar relief on a claim that was litigated prior
to that decision is contrary to basic fairness.
See Butler,
ante at
494 U. S. 422,
n. 4 (BRENNAN, J., dissenting).
[
Footnote 2]
As in
Butler, the majority looks to decisions from
other courts to discern the meaning of our precedents.
See
Butler, ante at
494 U. S.
412-415 (
Arizona v. Roberson, 486 U.
S. 675 (1988), not "dictated" by
Edwards v.
Arizona, 451 U. S. 477
(1981), because of Federal Circuit and state court split). The mere
recitation of lower court cases does little to resolve the
question, however, because ultimately it is this Court's
responsibility to clarify the scope of its own holdings. In
addition, the majority omits any reference to state court decisions
holding that an antisympathy instruction violated the Eighth
Amendment.
See, e.g., People v. Lanphear, 36 Cal. 3d
163, 165-166,
680 P.2d 1081,
1082-1083 (1984);
Legare v. State, 250 Ga. 875, 877-878,
302 S.E.2d
351, 353-354 (1983). The Court must do more than simply cite
cases rejecting a similar claim to support its conclusion that a
state court decision was "reasonable."
See Butler, ante at
494 U. S.
420-421 (BRENNAN, J., dissenting).
[
Footnote 3]
As JUSTICE O'CONNOR has explained,
"evidence about the defendant's background and character is
relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems, may
be less culpable than defendants who have no such excuse."
California v. Brown, 479 U. S. 538
479 U. S. 545
(1987) (concurring opinion);
see also Penry, 492 U.
S. 302,
492 U. S. 322
(1989) ("Because
Penry was mentally retarded . . . and
thus less able than a normal adult to control his impulses or to
evaluate the consequences of his conduct, and because of his
history of childhood abuse, [a] juror could . . . conclude that
Penry was less morally
culpable than defendants who
have no such excuse'"). Yet the fact that the evidence is relevant
to the jury's moral judgment about the defendant's actions does not
rule out the possibility that the evidence may also evoke sympathy
in the jurors. See California v. Brown, supra, at
479 U. S. 548
(BRENNAN, J., dissenting) ("In forbidding the sentencer to take
sympathy into account, this language on its face precludes
precisely the response that a defendant's evidence of character and
background is designed to elicit, thus effectively negating the
intended effect of the Court's requirement that all mitigating
evidence be considered"). JUSTICE O'CONNOR's concurrence in
California v. Brown, supra, implicitly recognized this
possibility. See id. at 479 U. S.
545-546 ("[O]ne difficulty with attempts to remove
emotion from capital sentencing . . . is that juries may be misled
into believing that mitigating evidence about a defendant's
background or character also must be ignored").
[
Footnote 4]
The majority's contention that
Penry's "claim was that
the Texas system prevented the jury from giving
any
mitigating effect to the evidence of his mental retardation,"
ante at
494 U. S. 491
(emphasis added), is simply incorrect.
Penry, 492 U.S. at
492 U. S. 318.
In addition, the majority's effort to premise
Penry solely
on
Jurek v. Texas, 428 U. S. 262
(1976), rather than on
Lockett and
Eddings as
well, is unavailing.
Jurek dictated the result in
Penry because
Jurek held that a State may not
limit the jury's ability to consider and give effect to mitigating
evidence.
See Penry, supra, at
492 U. S.
318-319 ("The rule
Penry seeks -- that, when
such mitigating evidence is presented, Texas juries must, upon
request, be given jury instructions that make it possible for them
to give effect to that mitigating evidence in determining whether
the death penalty should be imposed -- is not a
new rule' under
Teague, because it is dictated by Eddings and
Lockett. Moreover, in light of the assurances upon which
Jurek was based, we conclude that the relief
Penry seeks does not `impos[e] a new obligation' on the
State of Texas") (quoting Teague, 489 U.S. at 489 U. S.
301).
[
Footnote 5]
See also Franklin v. Lynaugh, 487 U.S. at
487 U. S. 193
(STEVENS, J., dissenting) ("There is no constitutionally meaningful
distinction between allowing the jury to hear all the evidence the
defendant would like to introduce and then telling the jury to
consider that evidence only to the extent that it is probative of
one of the enumerated mitigating circumstances, which we held
unconstitutional in both
Lockett and
Hitchcock [v.
Dugger, 481 U. S. 393
(1987)], and allowing the jury to hear whatever evidence the
defendant would like to introduce and then telling the jury to
consider that evidence only to the extent that it is probative of
[one of the Texas special issues]").
[
Footnote 6]
The first exception permits the retroactive application that a
rule that places primary conduct beyond the power of the State to
punish.
Teague, supra, at
489 U. S. 311.
This exception is not relevant here.
[
Footnote 7]
But see Teague, 489 U.S. at
489 U. S. 321,
n. 3 (STEVENS, J., concurring in part and concurring in judgment)
(explaining that one of the main reasons for limited retroactivity
on habeas -- promoting rehabilitation -- is "wholly inapplicable"
in capital cases) (citing
Mackey v. United States,
401 U. S. 667,
401 U. S.
690-691 (1971)).
[
Footnote 8]
In
Penry, the Court refined the scope of the first
Teague exception in light of the unique nature of the
death penalty.
"Although
Teague read [the first] exception as focusing
solely on new rules according constitutional protection to an
actor's primary conduct, . . . [i]n our view, a new rule placing a
certain class of individuals beyond the State's power to punish by
death is analogous to a new rule placing certain conduct beyond the
State's power to punish at all."
Penry, 492 U.S. at
492 U. S.
329-330. The scope of the second exception also should
reflect the unique consequences of errors at the sentencing phase
of a capital trial.
In addition, the plurality in
Teague implied that the
scope of the second exception was narrow because most fundamental
rules of procedure have already been established. The Court today
apparently rests its cursory treatment of this issue on that same
assumption. Regardless of the validity of that premise with respect
to rules pertaining to the guilt phase, that understanding is
unsupportable when dealing with issues in the capital sentencing
context. "In capital cases, the finality of the sentence imposed
warrants protections that may or may not be required in other
cases."
Ake v. Oklahoma, 470 U. S. 68,
470 U. S. 87
(1985) (Burger, C.J., concurring in judgment).
[
Footnote 9]
As JUSTICE MARSHALL ably demonstrates in his dissent in
Boyde, the majority engages in a sleight of hand to
justify the reformulation of the standard of review.
See Boyde,
ante at
494 U. S. 387
(MARSHALL, J., dissenting). But in the end, it is unclear how the
majority's "reasonable likelihood" standard differs from the prior
inquiry into how a reasonable juror could have interpreted the
instruction.
See Boyde, ante at
494 U. S. 392
(MARSHALL, J., dissenting) ("It is difficult to conceive how a
reasonable juror
could interpret an instruction
unconstitutionally where there is no
reasonable likelihood'
that a juror would do so"). To the extent that this new standard is
stricter than the standard set forth in Francis, I believe
it is "irreconcilable with bedrock due process principles."
Francis, 471 U.S. at 471 U. S.
322-323, n. 8. Moreover, a stricter standard is
especially inappropriate when reviewing the instructions at the
sentencing stage of a capital trial. "In death cases, doubts
[concerning a juror's interpretation of an instruction] should be
resolved in favor of the accused." Andres v. United
States, 333 U. S. 740,
333 U. S. 752
(1948). See also Boyde, ante at 494 U. S.
392-394 (MARSHALL, J., dissenting).
[
Footnote 10]
"This analysis 'requires careful attention to the words actually
spoken to the jury, . . . for whether a defendant has been accorded
his constitutional rights depends on the way in which a reasonable
juror could have interpreted the instruction.'"
Francis, supra, at
471 U. S. 315
(quoting
Sandstrom v. Montana, 442 U.
S. 510,
442 U. S. 514
(1979)).
[
Footnote 11]
The trial judge instructed the jury as follows:
"The minimum mitigating circumstances are:"
"1. The defendant has no significant history of prior criminal
activity;"
"2. The murder was committed while the defendant was under the
influence of extreme mental or emotional disturbance;"
"3. The victim was a participant in the defendant's homicidal
conduct or consented to the homicidal act;"
"4. The murder was committed under circumstances which the
defendant believed to provide a moral justification or extenuation
for his conduct"
"5. The defendant was an accomplice in a murder committed by
another person and his participation in the homicidal act was
relatively minor;"
"6. The defendant acted under duress or under the domination of
another person;"
"7. At the time of the murder, the capacity of the defendant to
appreciate the criminality (wrongfulness) of his conduct or to
conform his conduct to the requirement of the law was impaired as a
result of mental disease or intoxication;"
"8. The age of the defendant at the time of the crime."
App. 11-12.
[
Footnote 12]
Although the prosecutor's comments do not have the force of law,
they often are a useful aid in determining how a reasonable juror
could have interpreted a particular instruction.
See Boyde,
ante at
494 U. S. 385
("[A]rguments of counsel, like the instructions of the court, must
be judged in the context in which they are made");
see also
Brown, 479 U.S. at
479 U. S. 553
(BRENNAN, J., dissenting). This is especially true in the instant
case, because the trial court instructed the jury on the law before
the prosecutor and defense counsel gave closing argument. 5 Tr.
694-733. Thus, the prosecutor's argument was the last thing the
jury heard before it began its deliberations.
[
Footnote 13]
The prosecutor stressed this theme from the beginning of the
trial. At
voir dire, he told the jury,
"[o]f course, the Court will instruct you that you should not
allow sympathy, sentiment or prejudice to enter into your
deliberations. And frankly, that's just as cold-blooded as you can
put it. . . . [Y]ou can be as sympathetic as you want to . . . be,
but you can't do it and sit on this jury."
App. 8-9. The rest of his closing argument was calculated to
assure the jury that their conscience should not bother them,
because the criminal justice system required that the decision to
put respondent to death be "cold-blooded." He argued:
"[Y]ou're not yourself putting Robyn Parks to death. You just
have become a part of the criminal justice system that says, when
anyone does this, that he
must suffer death. So all you
are doing is you're just following the law, and what the law says,
and on your verdict -- once your verdict comes back in, the law
takes over. The law does all of these things, so it's not on your
conscience. You're just part of the criminal justice system that
says, when this type of thing happens, that whoever does such a
horrible, atrocious thing
must suffer death."
"Now that's man's law. But God's law is the very same. God's law
says that the murderer shall suffer death. So don't let it bother
your conscience, you know."
Id. at 39-40 (emphasis added).
[
Footnote 14]
The jury was told:
"You must consider all the following minimum mitigating
circumstances and determine whether any one or more of them apply
to all of the evidence, facts and circumstances of this case. You
are not limited in your consideration of the minimum mitigating
circumstances set out herein, and you may consider any other or
additional mitigating circumstances, if any, that you may find from
the evidence to exist in this case. What facts or evidence that may
constitute an additional mitigating circumstance is for the jury to
determine."
Id. at 10-11.