ABDUL-KABIR, FKA COLE v. QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
No. 05-11284
Supreme Court of the United States
Argued January 17, 2007—Decided April 25, 2007
550 U.S. 233
Robert C. Owen, by appointment of the Court, 549 U. S. 1029, argued the cause for petitioner. With him on the briefs were Jordan M. Steiker and Raoul D. Schonemann.
Edward L. Marshall, Assistant Attorney General of Texas, argued the cause for respondent. With him on the briefs were Greg Abbott, Attorney General, Kent C. Sullivan, First Assistant Attorney General, Eric J. R. Nichols, Deputy Attorney General, and Gena Bunn and Carla E. Eldred, Assistant Attorneys General.*
JUSTICE STEVENS delivered the opinion of the Court.
Petitioner Jalil Abdul-Kabir, formerly known as Ted Calvin Cole,1 contends that there is a reasonable likelihood that the trial judge‘s instructions to the Texas jury that sentenced him to death prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence. He further contends that the judgment of the Texas Court of Criminal Appeals (CCA) denying his application for postconviction relief on November 24, 1999, misapplied the law as clearly established by earlier decisions of this Court, thereby warranting relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
I
In December 1987, Cole, his stepbrother Michael Hickey, and Michael‘s wife, Kelly, decided to rob and kill Kelly‘s grandfather, Raymond Richardson, to obtain some cash. Two days later they did so. Cole strangled Richardson with a dog leash; the group then searched the house and found $20 that they used to purchase beer and food. The next day, Michael and Kelly surrendered to the police and confessed. The police then arrested Cole who also confessed.
Cole was tried by a jury and convicted of capital murder. After a sentencing hearing, the jury was asked to answer two special issues:
“Was the conduct of the defendant, TED CALVIN COLE, that caused the death of the deceased, RAYMOND C. RICHARDSON, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
“Is there a probability that the defendant, TED CALVIN COLE, would commit criminal acts of violence that would constitute a continuing threat to society?” App. 127, 128.2
At the sentencing hearing, the State introduced evidence that Cole pleaded guilty to an earlier murder when he was only 16. Shortly after being released on parole, Cole pleaded guilty to charges of aggravated sexual assault on two boys and was sentenced to 15 more years in prison. As evidence of Cole‘s propensity for future dangerousness, the State introduced Cole‘s diary which, according to the State‘s expert psychiatrist, Dr. Richard Coons, revealed a compulsive attraction to young boys and an obsession with criminal activity. Dr. Coons described Cole as a sociopath who lacked remorse and would not profit or learn from his experiences.
In response, Cole presented two categories of mitigating evidence. The first consisted of testimony from his mother and his aunt, who described his unhappy childhood. Cole‘s parents lived together “off and on” for 10 years, over the course of which they had two children, Cole, and his younger sister, Carla. App. 35. Shortly after Cole was born, his father was arrested for robbing a liquor store. Cole‘s father deserted the family several times, abandoning the family completely before Cole was five years old. On the last occasion that Cole saw his father, he dropped Cole off a block from where he thought Cole‘s mother lived, told Cole to “go
The second category of mitigating evidence came from two expert witnesses—a psychologist and the former chief mental health officer for the Texas Department of Corrections—who discussed the consequences of Cole‘s childhood neglect and abandonment. Dr. Jarvis Wright, the psychologist, spent 8 to 10 hours interviewing Cole and administering an “extensive battery of psychological tests.” Id., at 63. He testified that Cole had “real problems with impulse control” apparently resulting from “central nervous damage” combined with “all the other factors of [his] background.” Id., at 69. He also testified that Cole had likely been depressed for much of his life, that he had a “painful” background, and that he had “never felt loved and worthwhile in his life.” Id., at 73, 86. Providing an analogy for Cole‘s early development, Dr. Wright stated that “the manufacturing process [had] botched the raw material horribly.” Id., at 73.
When specifically asked about future dangerousness, Dr. Wright acknowledged that “if Ted were released today on the street, there‘s a much greater probability of dangerous behavior than with the rest of us.” Id., at 74. Although he acknowledged the possibility of change or “burn out,” he admitted that Cole would likely pose a threat of
Dr. Wendell Dickerson, a psychologist who had not previously examined Cole, observed that it was difficult to predict future dangerousness, but that “violent conduct is predominantly, overwhelmingly the province of the young” with the risk of violence becoming rare as people grow older. Id., at 95. On cross-examination, in response to a hypothetical question about a person with Cole‘s character and history, Dr. Dickerson acknowledged that he would be “alarmed” about the future conduct of such a person because “yes, there absolutely is a probability that they would commit . . . future acts of violence.” Id., at 113. In sum, the strength of Cole‘s mitigating evidence was not its potential to contest his immediate dangerousness, to which end the experts’ testimony was at least as harmful as it was helpful. Instead, its strength was its tendency to prove that his violent propensities were caused by factors beyond his control—namely, neurological damage and childhood neglect and abandonment.
It was these latter considerations, however, that the prosecutor discouraged jurors from taking into account when formulating their answers to the special issues. During the voir dire, the prosecutor advised the jurors that they had a duty to answer the special issues based on the facts, and the extent to which such facts objectively supported findings of deliberateness and future dangerousness, rather than their views about what might be an appropriate punishment for this particular defendant. For example, juror Beeson was asked:
“[I]f a person had a bad upbringing, but looking at those special issues, you felt that they [sic] met the standards regarding deliberateness and being a continuing threat
“[T]hat would not keep you from answering ‘yes,’ just because a person had a poor upbringing, would it?” XI Voir Dire Statement of Facts filed in No. CR88-0043-A (Dist. Ct. Tom Green Cty., Tex., 51st Jud. Dist.), p. 1588.
The prosecutor began his final closing argument with a reminder to the jury that during the voir dire they had “promised the State that, if it met its burden of proof,” they would answer “yes” to both special issues. App. 145. The trial judge refused to give any of several instructions requested by Cole that would have authorized a negative answer to either of the special issues on the basis of “any evidence which, in [the jury‘s] opinion, mitigate[d] against the imposition of the Death Penalty, including any aspect of the Defendant‘s character or record.” Id., at 115; see also id., at 117-124. Ultimately, the jurors answered both issues in the affirmative, and Cole was sentenced to death.
On direct appeal, the sole issue raised by Cole was that the evidence was insufficient to support the jury‘s verdict. The CCA rejected Cole‘s claim and affirmed the judgment of the trial court on September 26, 1990.
II
On March 2, 1992, the lawyer who then represented Cole filed an application for a writ of habeas corpus in the Texas trial court, alleging 21 claims of error.3 Counsel later with-
Three of Cole‘s 21 claims related to the jury‘s inability to consider mitigating evidence. The trial judge rejected the first—“that his mitigating evidence was not able to be properly considered and given effect by the jury under the special issues,” id., at 157—because he concluded that the record, and “especially” the testimony of the two expert witnesses, “provide[d] a basis for the jury to sufficiently consider the mitigating evidence offered by petitioner,”4 id., at 161. With respect to Cole‘s second claim, the judge agreed that appellate counsel had been ineffective for failing to assign error based on “the trial court‘s failure to instruct the jury on mitigating evidence as contemplated by the Pendry [sic] decision.” Id., at 166. He nevertheless found that the result on appeal would have been the same had the point been raised. Ibid. On the third claim relating to mitigating evidence, the judge rejected Cole‘s argument that the trial court‘s failure to specifically instruct the jury to consider
Over the dissent of two members of the court, and after adopting the trial court‘s findings of fact and conclusions of law with only minor changes, the CCA denied Cole‘s application for state collateral relief. Ex parte Cole, No. 41,673-01 (Nov. 24, 1999) (per curiam), App. 178-179.
III
After the Federal District Court granted Cole‘s motion for the appointment of counsel, he filed a timely petition for a federal writ of habeas corpus pursuant to
In its opinion denying relief, the District Court began by summarizing Cole‘s mitigating evidence, highlighting his “destructive family background.” Ibid. The court then correctly described our decision in Penry I, 492 U. S. 302 (1989), in these words:
“In [Penry] the Supreme Court found that when the defendant places mitigating evidence before the jury, Texas juries must be given instructions which allow the jury to give effect to that mitigating evidence and to express its reasoned moral response to that evidence in determining whether to impose the death penalty.”5 Civ. Action No. 6:00-CV-014-C, at 8-9, App. 188.
The court next noted that the Fifth Circuit had formulated its own analysis for evaluating Penry claims. Under that
The Court of Appeals denied Cole‘s application for a certificate of appealability (COA), Cole v. Dretke, 99 Fed. Appx. 523 (CA5 2004), holding that “reasonable jurists would not debate the district court‘s conclusion that Cole‘s evidence was not constitutionally relevant mitigating evidence,” Cole v. Dretke, 418 F. 3d 494, 498 (CA5 2005). Shortly thereafter, however, we held that the Fifth Circuit‘s “screening test” for determining the “constitutional relevance” of mitigating evidence had “no foundation in the decisions of this Court.” Tennard v. Dretke, 542 U. S. 274, 284 (2004). Accordingly, we vacated its order denying a COA in this case and remanded for further proceedings. Abdul-Kabir v. Dretke, 543 U. S. 985 (2004). On remand, the Court of Appeals reviewed Cole‘s Penry claim on the merits and affirmed the District Court‘s judgment denying the writ.
Focusing primarily on the testimony of petitioner‘s two experts rather than that of his mother and his aunt, the Court of Appeals reviewed our recent decisions and concluded “that the Texas special issues allowed the jury to give ‘full consideration and full effect’ to the mitigating evidence that Cole presented at the punishment phase of his trial.”6
IV
Because Cole filed his federal habeas petition after the effective date of AEDPA, the provisions of that Act govern the scope of our review. We must therefore ask whether the CCA‘s adjudication of Cole‘s claim on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
A careful review of our jurisprudence in this area makes clear that well before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future. Three of the five cases decided on the same day in 1976—Woodson v. North Carolina, 428 U. S. 280, Proffitt v. Florida, 428 U. S. 242, and Jurek v. Texas, 428 U. S. 262—identified the background principles we would apply in later cases to evaluate specific rules inhibiting the jury‘s ability to give meaningful effect to such mitigating evidence.
Two years later, in Lockett v. Ohio, 438 U. S. 586 (1978), a plurality concluded “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 defend-
While Chief Justice Burger‘s opinion in Lockett was joined by only three other Justices, the rule it announced was endorsed and broadened in our subsequent decisions in Eddings v. Oklahoma, 455 U. S. 104 (1982), and Skipper v. South Carolina, 476 U. S. 1 (1986). In those cases, we emphasized the severity of imposing a death sentence and that “the sentencer in capital cases must be permitted to consider any relevant mitigating factor.”10 Eddings, 455 U. S., at 112 (emphasis added).
In the wake of our decision in Lockett, Ohio amended its capital sentencing statute to give effect to Lockett‘s holding.11 Neither Florida nor Texas did so, however, until after our unanimous decision in Hitchcock v. Dugger, 481 U. S. 393 (1987), unequivocally confirmed the settled quality of the Lockett rule. As JUSTICE SCALIA‘s opinion for the Court
“In the sentencing phase of this case, petitioner‘s counsel introduced before the advisory jury evidence that as a child petitioner had the habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that thereafter his mind tended to wander; that petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers.” 481 U. S., at 397.
As the opinion further explained, the Florida courts had construed the state statute to preclude consideration of mitigating factors unmentioned in the statute. Accordingly, despite our earlier decision in Proffitt upholding the statute against a facial challenge, it was necessary to set aside Hitchcock‘s death sentence. We explained:
“We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U. S. 1 (1986), Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See Skipper, supra (evidence that defendant had adapted well to prison life); Eddings, supra (evidence of 16-year-old defendant‘s
Of course, our reference to “exclusion” of the evidence did not refer to its admissibility, but rather to its exclusion from meaningful consideration by the jury. Had Jurek and Proffitt truly stood for the proposition that the mere availability of relevant mitigating evidence was sufficient to satisfy the Constitution‘s requirements, Hitchcock could never have been decided as it was.12
In the year following our decision in Hitchcock, we made clear that sentencing under the Texas statute, like that under the Florida statute, must accord with the Lockett rule. In Franklin v. Lynaugh, 487 U. S. 164, 172, 177, 183 (1988), the plurality rejected the claim that the judge‘s instructions did not allow the jury to give adequate weight to whatever “residual doubts” it may have had concerning the defendant‘s guilt, or to evidence of the petitioner‘s good behavior while in prison. That particular holding is unremarkable because we have never held that capital defendants have an
“In my view, the principle underlying Lockett, Eddings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant.
“[E]vidence 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
“In light of this principle it is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant‘s background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, 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.
“Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant‘s future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant‘s moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its ‘reasoned moral response’ to that evidence.” 487 U. S., at 184-185 (opinion concurring in judgment) (emphasis added).
Justice O‘Connor‘s opinion for the Court in Penry I endorsed the views she had expressed in Franklin and unques-
tionably governs the facts of this ease.14 Penry contended that his mitigating evidence of mental retardation and an abusive childhood provided a basis for a sentence of life imprisonment rather than death and that the jury should have been instructed that it could consider that evidence when making its sentencing decision. In response to that contention, our opinion first held that Penry was not asking us to make new law because he was relying on a rule that was “dictated” by earlier cases, see n. 10, supra, and explained why Justice O‘Connor‘s separate opinion in Franklin correctly defined the relevant rule of law.15 In Franklin, we
Applying that standard, we held that neither the “deliberateness” nor the “future dangerousness” special issue provided the jury with a meaningful opportunity to give effect to Penry‘s mitigating evidence. With respect to the former, we explained:
“In the absence of jury instructions defining ‘deliberately’ in a way that would clearly direct the jury to consider fully Penry‘s mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry‘s mental retardation and history of abuse in answering the first special issue. Without such a special instruction, a juror who believed that Penry‘s retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime ‘deliberately.’ Thus, we cannot be sure that the jury‘s answer to the first special issue reflected a ‘reasoned moral response’ to Penry‘s mitigating evidence.” 492 U. S., at 323.
With respect to the future dangerousness issue, we emphasized the fact that Penry‘s evidence of mental retardation was relevant only as an aggravating factor. Id., at 323-324.
V
In recommending denial of Cole‘s application for collateral relief, the Texas trial judge did not analyze Penry I itself. Under the framework set forth in Penry I,17 the testimony of Cole‘s mother and aunt, as well as the portions of the expert testimony suggesting that his dangerous character may have been the result of his rough childhood and possible neurological damage, were not relevant to either of the special verdict questions, except, possibly, as evidence supporting the
Instead of relying on Penry I, the trial judge relied on three later Texas cases and on our opinion in Graham v. Collins, 506 U. S. 461 (1993), as having held that nine different categories of mitigating evidence—including a troubled family background, bipolar disorder, low IQ, substance abuse, paranoid personality disorder, and child abuse—were sufficiently considered under the Texas special issues.18 App. 159-160. Applying those cases, the judge defined the legal issue “whether the mitigating evidence can be sufficiently considered” as one that “must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given.” Id., at 160. As we have noted, in endorsing this formulation of
The state court‘s primary reliance on Graham, to the exclusion of our other cases in this line of jurisprudence, was misguided. In Graham, we held that granting collateral relief to a defendant who had been sentenced to death in 1984 would require the announcement of a new rule of constitutional law in contravention of Teague v. Lane, 489 U. S. 288 (1989). In reaching that conclusion we relied heavily on the fact that in 1984 it was reasonable for judges to rely on the interpretation of Jurek that the plurality had espoused in Franklin. See 506 U. S., at 468-472; see also n. 15, supra. But as we have explained, in both Franklin and Penry I, a majority of the Court ultimately rejected the plurality‘s interpretation of Jurek. Neither Franklin nor Penry I was inconsistent with Graham‘s narrow holding, but they do suggest that our later decisions—including Johnson v. Texas, 509 U. S. 350 (1993), in which we refused to adopt the rule that Graham sought19—are of more relevance to Cole‘s case than Graham. The relevance of those cases lies not in their results—in several instances, we concluded, after applying the relevant law, that the special issues provided for adequate consideration of the defendant‘s mitigating evi-
Before turning to those more recent cases, it is appropriate to identify the reasons why the CCA‘s ruling was not a reasonable application of Penry I itself. First, the ruling ignored the fact that even though Cole‘s mitigating evidence may not have been as persuasive as Penry‘s, it was relevant to the question of Cole‘s moral culpability for precisely the same reason as Penry‘s. Like Penry‘s evidence, Cole‘s evidence of childhood deprivation and lack of self-control did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing a death sentence. Second, the judge‘s assumption that it would be appropriate to look at “other testimony in the record” to determine whether the jury could give mitigating effect to the testimony of Cole‘s mother and aunt is neither reasonable nor supported by the Penry opinion. App. 160. Third, the fact that the jury could give mitigating effect to some of the experts’ testimony, namely, their predictions that Cole could be expected to become less dangerous as he aged, provides no support for the conclusion
VI
The same principles originally set forth in earlier cases such as Lockett and Eddings have been articulated explicitly by our later cases, which explained that the jury must be permitted to “consider fully” such mitigating evidence and that such consideration “would be meaningless” unless the jury not only had such evidence available to it, but also was permitted to give that evidence meaningful, mitigating effect in imposing the ultimate sentence. Penry I, 492 U. S., at 321, 323 (internal quotation marks omitted); Graham, 506 U. S., at 475 (acknowledging that a “constitutional defect” has occurred not only when a jury is “precluded from even considering certain types of mitigating evidence,” but also when “the defendant‘s evidence [i]s placed before the sentencer but the sentencer ha[s] no reliable means of giving mitigating effect to that evidence“).
Four of our more recent cases lend support to the conclusion that the CCA‘s decision was unsupported by either the text or the reasoning of Penry I.22 In Johnson v. Texas, we held that the Texas special issues allowed adequate consideration of the petitioner‘s youth as a mitigating circumstance. Indeed, we thought it “strain[ed] credulity to suppose that
Evidence of youth, moreover, has special relevance to the question of future dangerousness. A critical assumption motivating the Court‘s decision in Johnson was that juries would in fact be able to give mitigating effect to the evidence, albeit within the confines of the special issues. See 509 U. S., at 370 (“If any jurors believed that the transient qualities of petitioner‘s youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner‘s future dangerousness“). Prosecutors in some subsequent cases, however, have undermined this assumption, taking pains to convince jurors that the law compels them to disregard the force of evidence offered in mitigation. Cole‘s prosecution is illustrative: The State made jurors “promise” they would look only at the questions posed by the special issues, which, according to the prosecutor, required a juror to “put ... out of [his] mind” Cole‘s mitigating evidence and “just go by the facts.” Supra, at 242. Arguments like these are at odds with the Court‘s understanding in Johnson that juries could and would reach mitigating evidence proffered by a defendant. Nothing in Johnson forecloses relief in these circumstances. See 509 U. S., at 369 (”Penry remains the law and must be given a fair reading“).
This conclusion derives further support from the fact that, in Johnson, the Court understood that the defendant‘s evidence of youth—including testimony from his father that
In three later cases, we gave Penry I the “fair reading” required by Johnson and repudiated several Fifth Circuit precedents providing the basis for its narrow reading of that case. First, in our review of Penry‘s resentencing, at which the judge had supplemented the special issues with a nullification instruction, we again concluded that the jury had not been provided with an adequate “‘vehicle for expressing‘” its “reasoned moral response” to his mitigating evidence. Penry v. Johnson, 532 U. S. 782, 797 (2001) (Penry II). Indeed, given that the resentencing occurred after the enactment of AEDPA, we concluded (contrary to the views of the Fifth Circuit, which had denied Penry a COA) that the CCA‘s judgment affirming the death sentence was objectively unreasonable. Id., at 803-804. Second, and as we have already noted, in Tennard we held that the Fifth Circuit‘s test for identifying relevant mitigating evidence was incorrect. 542 U. S., at 284. Most recently, in Smith v. Texas, 543 U. S. 37 (2004) (per curiam), and again contrary to the views of the Fifth Circuit, we held that a nullification instruction that was different from the one used in Penry‘s second sentencing hearing did not foreclose the defendant‘s claim that the special issues had precluded the jury from “expressing a ‘reasoned moral response’ to all of the evidence relevant to the defendant‘s culpability.” Id., at 46.
VII
Our line of cases in this area has long recognized that before a jury can undertake the grave task of imposing a death sentence, it must be allowed to consider a defendant‘s moral culpability and decide whether death is an appropriate punishment for that individual in light of his personal history
“There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant‘s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” 438 U. S., at 605.
Our cases following Lockett have made clear that when the jury is not permitted to give meaningful effect or a “reasoned moral response” to a defendant‘s mitigating evidence—because it is forbidden from doing so by statute or a judicial interpretation of a statute—the sentencing process is fatally flawed.25 For that reason, our post-Penry cases
It is so ordered.
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.*
A jury imposed a sentence of death in each of these cases, despite hearing mitigating evidence from the defendants about their troubled backgrounds. The convictions and sentences were upheld on direct review. On state collateral review, each defendant claimed that the jury instructions did not allow sufficient consideration of the mitigating evidence. This Court had considered similar challenges to the same instructions no fewer than five times in the years before the state habeas courts considered the challenges at issue here. See Jurek v. Texas, 428 U. S. 262 (1976); Franklin v. Lynaugh, 487 U. S. 164 (1988); Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I); Graham v. Collins, 506 U. S. 461 (1993); Johnson v. Texas, 509 U. S. 350 (1993). Four of the cases rejected the defendant‘s challenge. Only one—Penry I—upheld it. The guidance the Court gave in these five cases on whether the jury instructions at issue allowed sufficient consideration of mitigating evidence amounted to—it depends. It depends on the particular characteristics of the evidence in a specific case. The state courts here rejected
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), however, a state-court decision can be set aside on federal habeas review only if it is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
I suppose the Court today is free to ignore the import of Graham and Johnson on the question of what Penry I means, but in 1999 or 2001, respectively—when petitioners were denied collateral relief—the state courts did not have that luxury. They should not be faulted today for concluding—exactly as the Graham and Johnson dissenters did—that the Court had cut back significantly on Penry I.
We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to “clearly established” federal law. If the law were indeed clearly established by our decisions “as of the
I
In 1987, Jalil Abdul-Kabir—referred to by his given name, Ted Calvin Cole, throughout this opinion, ante, at 237, n. 1—was convicted of capital murder after he confessed to strangling 66-year-old Raymond Richardson with a dog leash to steal $20 from him. Among the 21 claims Cole raised on state collateral review was a challenge under Penry I, supra, to the application of Texas‘s special issue jury instructions. In evaluating Cole‘s challenge, the state habeas trial court stated:
“The issue is whether the sentencing jury had been unable to give effect to [Cole‘s] mitigating evidence within the confines of the statutory ‘special issues.’ While [Penry I] held that evidence of a defendant‘s mental retardation and abused childhood could not be given mitigating effect by a jury within the framework of the special issues, the cases that followed such as Graham v. Collins, [506 U. S. 461] (1993), Garcia v. State, 919 S. W. 2d 370 (1996), Mines v. State, 888 S. W. 2d 816
(1994), and Zimmerman v. State, 881 S. W. 2d 360 (1994) held that the mitigating evidence of alcoholism, drug abuse, bad family background, bipolar disorder, low I.Q., substance abuse, head injury, paranoid personality disorder and child abuse were sufficiently considered under the special issues. The issue of whether the mitigating evidence can be sufficiently considered must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given.” App. in No. 05-11284, pp. 159-160.
Applying that standard, the state court concluded that “[t]he evidence presented at the punishment stage of the trial, especially evidence from [Cole‘s] expert witnesses, provide[d] a basis for the jury to sufficiently consider the mitigating evidence.” Id., at 161. The Texas Court of Criminal Appeals adopted the trial court‘s findings without substantive comment, and denied Cole‘s application for habeas corpus relief on November 24, 1999. Id., at 178-179.
In finding that the state court‘s decision was objectively unreasonable, the Court begins by stating that the principle the state court violated was “firmly established,” based on “[a] careful review of our jurisprudence in this area.” Ante, at 246. The only thing clear about our jurisprudence on the pertinent question in 1999, however, is that it was unsettled and confused.
In Jurek, the Court upheld Texas‘s use of the special issues as facially constitutional, with the controlling opinion noting that “the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.” 428 U. S., at 272 (joint opinion of Stewart, Powell, and STEVENS, JJ.). In so doing, Jurek left open the possibility that some mitigating evidence might not be within the reach of the jury under the special issues; other types of mitigating evidence, of course, would
The next occasion the Court had to consider mitigating evidence under the Texas special issues arose in Franklin, in which the Court concluded that the defendant‘s mitigating evidence of good behavior in prison was taken into account under the future dangerousness special issue. 487 U. S., at 178-179 (plurality opinion); id., at 186-187 (O‘CONNOR, J., concurring in judgment). A plurality of the Court also rejected the argument that a jury must be permitted to give “independent” effect to mitigating evidence—beyond the special issues—concluding that “this submission is foreclosed by Jurek” and rejecting the dissent‘s argument to the contrary. Id., at 179-180, and n. 10; see also id., at 199-200 (STEVENS, J., dissenting).
The Court today places great weight on the opinion by Justice O‘Connor concurring in the judgment in Franklin, an opinion joined only by Justice Blackmun. Ante, at 251-254. That separate opinion expressed “doubts” about the plurality‘s view that mitigating evidence need not be given effect beyond the special issues, noting that if the petitioner in Franklin had introduced evidence not covered by the special issues, “we would have to decide whether the jury‘s inability to give effect to that evidence amounted to an Eighth Amendment violation.” 487 U. S., at 183, 185. The separate opinion concluded, however, that “this is not such a case.” Id., at 185. According to the Court today, a discerning state judge should have seen that federal law was “clearly established” on the point by the concurring and dissenting opinions, not the plurality. Ante, at 251-254.
Penry I, decided the following Term, concluded that in that case the Texas instructions did not allow the jury to give mitigating effect to evidence of Penry‘s mental retardation and abusive childhood. 492 U. S., at 315, 328 (“Penry
A state court looking at our pertinent precedents on the Texas special issue instructions would next have to consider the significance of Saffle v. Parks, 494 U. S. 484 (1990). That case—issued less than nine months after Penry I—considered Oklahoma instructions, but extensively analyzed Penry I in doing so. See 494 U. S., at 491-492. The Court concluded that the mitigating evidence in that case could be adequately considered by the jury under the instructions given. The four dissenters in Saffle—including the author of today‘s opinion—complained that the majority‘s discussion of Penry I was “strangely reminiscent” of the position of the Penry I dissenters. 494 U. S., at 504 (opinion of Brennan, J.). The Saffle dissenters asserted that the majority‘s failure to reject the position of the Penry I dissenters “creates considerable
In Graham, decided three years later, the Court sought to clarify the interplay between Jurek, Franklin, and Penry I:
“It seems to us, however, that reading Penry as petitioner urges—and thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues—would be to require in all cases that a fourth ‘special issue’ be put to the jury:
‘“Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?“’
The Franklin plurality rejected precisely this contention, finding it irreconcilable with the Court‘s holding in Jurek, and we affirm that conclusion today.” 506 U. S., at 476-477 (citation omitted; second emphasis added).
Thus, in Graham the Court rejected the reading of Franklin and Penry I that the Court today endorses, reasoning that it would require a new sentencing in every case, and would be impossible to square with Jurek.1
Although the Court today tells us it was clear that the applicable federal law was established by the Franklin concurrence and dissent, and that Penry I had to be read in that light, ante, at 252-254, the Court majority in Graham specifically relied instead upon the Franklin plurality in re-
Later the same Term, in Johnson, the Court reaffirmed the “limited view of Penry” it had adopted in Graham. 509 U. S., at 365. Once again the Court majority specifically relied on the Franklin plurality—not the concurrence and dissent. See 509 U. S., at 370-371. And once again the dissenters—including every remaining Member of the Penry I majority—lamented the Court‘s asserted failure to adhere to Penry I. 509 U. S., at 385-386 (opinion of O‘Connor, J., joined by Blackmun, STEVENS, and SOUTER, JJ.). The dissent—by the Penry I author—made precisely the same point made by the Court today about how to read the Franklin concurrence and dissent. 509 U. S., at 385-386. The difference, of course, was that in Johnson the point was made in dissent. It cannot have been “objectively unreasonable” for a state court, in 1999, to have been guided by the Johnson majority on this question, rather than by the dissent.
In short, a state court reading our opinions would see an ongoing debate over the meaning and significance of Penry I. That state court would see four dissenters in Graham and Johnson—including every remaining Member of the Penry I majority—arguing that the Court was failing to fol-
low or sharply limiting Penry I in those cases. On the flip side, the state court would see four dissenters in Penry I—every one later joining the majorities in Graham and Johnson—suggesting that the Penry I majority departed from Jurek. It is in that context that the Court today tells us that the state courts should have regarded Penry I as “clearly established Federal law, as determined by the Supreme Court of the United States.”The Court asserts that Graham and Johnson did not “disturb the basic legal principle” at issue, ante, at 259, and that we cite no post-Penry I cases inconsistent with its reading of that case, ante, at 253, n. 14. I do not understand how the author of today‘s opinion can say that Graham did not disturb the principle of Penry I, however, when he joined a dissent in Graham stating that “[Graham‘s] position is identical to that of Penry” and that Graham‘s case “is controlled by Penry.” 506 U. S., at 508, 520 (opinion of SOUTER, J.) (emphasis added). That would seem to suggest that Graham was inconsistent with Penry I. I do not understand how the author of today‘s opinion can say that Johnson had no effect on Penry I, when he joined a dissent in Johnson stating that the majority opinion “upset our settled Eighth Amendment jurisprudence.” 509 U. S., at 382 (opinion of O‘CONNOR, J.). Now Johnson is dismissed as just an application of “basic legal principle[s],” over which Justices can disagree, ante, at 259; back then it “upset our settled Eighth Amendment jurisprudence.” And what of Saffle? There the author of today‘s opinion joined a dissent claiming that the majority was adopting the rule rejected in Penry I. 494 U. S., at 504 (opinion of BRENNAN, J.). Again, that would seem to suggest inconsistency with Penry I.2
In fact, Penry I is not even consistent with the reading the Court ascribes to it—in that case the Court concluded that a jury could only view Penry‘s mitigating evidence as aggravating, and thus could not give the evidence any mitigating effect. 492 U. S., at 323 (Penry‘s evidence was “relevant only as an aggravating factor” (emphasis in original)); see also Graham, supra, at 473 (“Although Penry‘s evidence of mental impairment and childhood abuse indeed had relevance to the ‘future dangerousness’ inquiry, its relevance was aggravating only” (emphasis in original)). The Court concedes that Cole‘s evidence in the present case was not purely aggravating, see ante, at 259 (“[T]he jury could give mitigating effect to some of the experts’ testimony“), thus drawing into even starker contrast the rule that was established by a fair reading of Penry I in 1999 versus the rule the Court today reads Penry I to have “clearly established.”
As might be expected in light of the foregoing, judges called upon to apply these precedents were confused by the ambiguity of this Court‘s pronouncements. See, e. g., Mines v. Texas, 888 S. W. 2d 816, 820 (Tex. Crim. App. 1994) (Baird, J., concurring) (“The Supreme Court‘s holdings in Penry, Graham and Johnson do not provide an analytical framework to determine when our capital sentencing scheme fails to allow the jury to consider and give effect to mitigating evidence . . . “); see also Brewer v. Dretke, 442 F. 3d 273, 279, n. 16 (CA5 2006) (per curiam) (remarking, in applying Graham and Penry I, that “[t]here is no easy way to locate [the defendant] at either pole“). Commentators at the time likewise concluded that Graham and Johnson “put a cap on Penry‘s principles.” Denno, Testing Penry and Its Progeny,
It is a familiar adage that history is written by the victors, but it goes too far to claim that the meaning and scope of Penry I was “clearly established” in 1999, especially in the wake of Graham and Johnson. In applying AEDPA, we have recognized that “[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U. S. 12, 17 (2003) (per curiam); see also Lockyer v. Andrade, 538 U. S. 63, 72-73 (2003) (declining to find federal law “clearly established” when “our precedents in [the] area have not been a model of clarity“).
When the state court rejected Cole‘s claim, it knew that mitigating evidence of mental retardation and severe childhood abuse could not be given effect under the special issues, Penry I, 492 U. S., at 328, but that evidence of youth and a transient upbringing could be, Graham, supra, at 476; Johnson, supra, at 368. The court concluded that Cole‘s mitigating evidence—a troubled childhood and “impulse control” disorder—was more like that considered in Johnson and Graham than in Penry I. And because Cole‘s mitigating evidence was not as troubling as that at issue in Penry I, the state court did not act unreasonably in concluding that the collateral damage of his upbringing and impulse control disorder would, like youth in Johnson, dissipate over time, so that Cole would be less of a danger in the future. It is irrelevant that the ill effects of Cole‘s upbringing and impulse control disorder might not wear off for some time—there was no suggestion in Johnson that the petitioner in that case would become less dangerous any time soon.
The state court‘s approach to the question was plainly correct; indeed, we engaged in a similar comparison in Graham itself in determining that the evidence presented in that case was cognizable under the special issues:
”Jurek is reasonably read as holding that the circumstance of youth is given constitutionally adequate consideration in deciding the special issues. We see no reason to regard the circumstances of Graham‘s family background and positive character traits in a different light. Graham‘s evidence of transient upbringing and otherwise nonviolent character more closely resembles Jurek‘s evidence of age, employment history, and familial ties than it does Penry‘s evidence of mental retardation and harsh physical abuse.” 506 U. S., at 476.
The state court thought that Cole‘s evidence “more closely resemble[d]” Johnson and Graham than Penry I. That cannot be said to be “contrary to, or . . . an unreasonable applica-
The Court further holds that the jury instructions did not permit Cole‘s evidence to have “mitigating force beyond the scope of the special issues,” ante, at 257, as it now reads Penry I to require. At the time the state court ruled, however, Graham and Johnson, decided after Penry I, had expressly rejected the notion that a jury must “be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant,” so long as the jury could consider “in some manner all of a defendant‘s relevant mitigating evidence.” Johnson, 509 U. S., at 372-373. The state court found that Cole‘s mitigating evidence could be “sufficiently consider[ed]” by the jury “within the confines of the statutory ‘special issues,‘” App. in No. 05-11284, at 161, 159, a holding consistent with this Court‘s precedents as of 1999—and certainly not contrary to clearly established federal law.
In reaching today‘s result, the Court also takes advantage of eight years of hindsight and relies on three cases that postdate the state court‘s ruling. Ante, at 263 (citing Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), Tennard v. Dretke, 542 U. S. 274 (2004), and Smith v. Texas, 543 U. S. 37 (2004) (per curiam)). What is pertinent under AEDPA, however, is whether federal law was clearly established by our decisions when the state court acted. Williams, supra, at 412.3 AEDPA requires state courts to reasonably apply
clearly established federal law. It does not require them to have a crystal ball.
II
In 1991, petitioner Brent Ray Brewer was convicted of murder committed during the course of a robbery. Like Cole, Brewer claims that the Texas special issues prevented the jury from giving effect to mitigating evidence that he suffered from depression and had been abused as a teenager. The Texas courts rejected these claims on both direct and collateral review.
In evaluating Brewer‘s claim, the Court focuses on the so-called “two-edged sword” nature of the evidence found to be beyond the jury‘s reach in Penry I, and concludes that Brewer‘s mitigating evidence is similarly double edged. The state court distinguished Penry I, however, stating that “a stay in a mental hospital does not evidence a long term mental illness which would affect appellant‘s ability to conform to the requirements of society,” App. in No. 05-11287, p. 141 (internal quotation marks omitted), in contrast to Penry‘s “organic brain disorder . . . which made it impossible for him to appreciate the wrongfulness of his conduct or to conform his conduct to the law,” Penry I, 492 U. S., at 309. The state court determined that the nature of Brewer‘s evidence allowed the jury to find that he would not be a future danger, whereas Penry‘s did not.
The Court rejects this distinction, noting that while Brewer‘s mitigating evidence may have been less compelling than Penry‘s, “that difference does not provide an acceptable justification for refusing to apply the reasoning in Penry I to this case.” Brewer v. Quarterman, post, at 293, and n. 5. This misses the point. The state court‘s distinction goes not to the relative strength of the mitigating evidence, but rather its character—an episodic rather than permanent
The Court concedes that “[t]he transient quality of [Brewer‘s] mitigating evidence may make it more likely to fall in part within the ambit of the special issues,” and yet still finds the state court‘s decision unreasonable because the evidence may have had relevance beyond the special issues. Brewer, post, at 294. As in Cole‘s case, this conclusion squarely conflicts with the Court‘s rejection in Graham of the proposition that “a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues.” 506 U. S., at 476 (emphasis in original). That rejection was confirmed in Johnson, see 509 U. S., at 372-373 (rejecting a rule that “would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant” in favor of the rule “that a jury be able to consider in some manner all of a defendant‘s relevant mitigating evidence“). Once again, the Court rejects the state court‘s reasonable reading of existing cases in favor of its own revisionist reading of this Court‘s doctrine, heavily informed by subsequent decisions that the state court had no means to predict.
III
In AEDPA, Congress “work[ed] substantial changes” to the power of federal courts to grant habeas corpus relief. Felker v. Turpin, 518 U. S. 651, 654 (1996). In today‘s decisions, the Court trivializes AEDPA‘s requirements and overturns decades-old sentences on the ground that they were contrary to clearly established federal law at the time—even
Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented “clearly established” federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority‘s determination that the future can change the past, I respectfully dissent.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and with whom JUSTICE ALITO joins as to Part I, dissenting.*
I remain of the view “that limiting a jury‘s discretion to consider all mitigating evidence does not violate the Eighth Amendment.” Ayers v. Belmontes, 549 U. S. 7, 24 (2006) (SCALIA, J., concurring) (citing Walton v. Arizona, 497 U. S. 639, 673 (1990) (SCALIA, J., concurring in part and concurring in judgment)).
I
But even under this Court‘s precedents to the contrary, the state-court decisions in these two cases were hardly objectively unreasonable under the Antiterrorism and Effective Death Penalty Act of 1996, as THE CHIEF JUSTICE‘S dissenting opinion demonstrates. That is all which is needful to demonstrate the error of today‘s judgments. The full truth is worse than that, however. There was in fact clearly established law that governed these cases, and it favored the State. When the state courts rendered their decisions, Johnson v. Texas, 509 U. S. 350 (1993), was this Court‘s most recent pronouncement on the Texas special issues. And in that case, the Court unambiguously drew back from the
*[This opinion applies also to No. 05-11287, Brewer v. Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division, post, p. 286.]
The dissenters in Johnson very much disagreed with that analysis. They read Penry I for the more expansive proposition that “the Texas special issues violated the Eighth Amendment to the extent they prevented the jury from giving full consideration and effect to a defendant‘s relevant mitigating evidence.” 509 U. S., at 385 (opinion of O‘CONNOR, J.) (citing Penry I, supra; emphasis added and deleted). “[H]aving some relevance to [a special] issue,” the dissent said, “was not sufficient.” 509 U. S., at 385. And because youth (the mitigating feature in Johnson) had obvious relevance beyond the special issues, an additional instruction was needed. Id., at 375. The differences between the Johnson majority and dissenters could not have been more pronounced.
Today the Court overrules Johnson sub silentio, and reinstates the “full effect” interpretation of Penry I. For as THE CHIEF JUSTICE explains, ante, at 275-276, 279 (dissent-
The Fifth Circuit in both of these cases relied heavily on Johnson when denying relief. See Cole v. Dretke, 418 F. 3d 494, 505 (2005); Brewer v. Dretke, 442 F. 3d 273, 278, 281 (2006) (per curiam) (relying on Cole). How does the Court manage to distinguish it? The Court tries two main lines of argument. First, the Court explains:
“A critical assumption motivating the Court‘s decision in Johnson was that juries would in fact be able to give mitigating effect to the evidence, albeit within the confines of the special issues. . . . Prosecutors in some subsequent cases, however, have undermined this assumption, taking pains to convince jurors that the law compels them to disregard the force of evidence offered in mitigation.” Ante, at 261.
Because Johnson‘s “critical assumption” has now been “undermined,” the Court says, Johnson cannot be said to “foreclos[e] relief in these circumstances.” Ante, at 261.
This attempt to “distinguish” Johnson wilts under even the mildest scrutiny. Since when does this Court craft con-
Second, the Court explains that “the consideration of the defendant‘s mitigating evidence of youth in Johnson could easily have directed jurors toward a ‘no’ answer with regard to the question of future dangerousness,” whereas a juror considering petitioners’ mitigating evidence “could feel compelled to provide a ‘yes’ answer to the same question.” Ante, at 262. But it is quite apparent that jurors considering youth in Johnson could also have “fe[lt] compelled to provide a ‘yes’ answer” to the future dangerousness question. While one can believe that “the impetuousness and recklessness that may dominate in younger years can subside,” Johnson, 509 U. S., at 368, one can also believe that a person who kills even in his younger years is fundamentally depraved, and more prone to a life of violent crime. Johnson itself explicitly recognized this point, denying relief despite “the fact that a juror might view the evidence of youth as aggravating, as opposed to mitigating.” Ibid.
As the Court‘s opinion effectively admits, nothing of a legal nature has changed since Johnson. What has changed
II
The individuals duly tried and executed between Johnson and today‘s decisions were not, in my view (my view at the time of Johnson, and my view now), entitled to federal judicial invalidation of their state-imposed sentences. That is because in my view the meaning of the Eighth Amendment is to be determined not by the moral perceptions of the Justices du jour, but by the understanding of the American people who adopted it—which understanding did not remotely include any requirement that a capital jury be permitted to consider all mitigating factors. If, however, a majority of the Justices are going to govern us by their moral perceptions, in this area at least they ought to get their moral perceptions right the first time. Whether one regards improvised death-is-different jurisprudence with disdain or with approval, no one can be at ease with the stark reality that this Court‘s vacillating pronouncements have produced grossly inequitable treatment of those on death row. Relief from sentence of death because of the jury‘s inability to give