Lead Opinion
delivered the opinion of the Court.
In this case, we are asked to decide whether the jury that sentenced petitioner, Gary Graham, to death was able to give effect, consistent with the Eighth and Fourteenth Amendments, to mitigating evidence of Graham’s youth, family background, and positive character traits. Because this case comes to us on collateral review, however, we must first decide whether the relief that petitioner seeks would require announcement of a new rule of constitutional law, in contravention of the principles set forth in Teague v. Lane,
I
On the night of May 13, 1981, Graham accosted Bobby Grant Lambert in the parking lot of a Houston, Texas, grocery store and attempted to grab his wallet. When Lambert resisted, Graham drew a pistol and shot him to death. Five months later, a jury rejected Graham’s defense of mistaken identity and convicted him of capital murder in violation of Tex. Penal Code Ann. § 19.03(a)(2) (1989).
At the sentencing phase of Graham’s trial, the State offered evidence that Graham’s murder of Lambert commenced a week of violent attacks during which the 17-year-old Graham committed a string of robberies, several assaults, and one rape. Graham did not contest this evidence. Rather, in mitigation, the defense offered testimony from Graham’s stepfather and grandmother concerning his upbringing and positive character traits. The stepfather, Joe Samby, testified that Graham, who lived and worked with his natural father, typically visited his mother once or twice a
Graham’s grandmother, Emma Chron, testified that Graham had lived with her off and on throughout his childhood because his mother had been hospitalized periodically for a “nervous condition.” Chron also stated that she had never known Graham to be violent or disrespectful, that he attended church regularly while growing up, and that “[h]e loved the Lord.” In closing arguments to the jury, defense counsel depicted Graham’s criminal behavior as aberrational and urged the jury to take Graham’s youth into account in deciding his punishment.
In accord with the capital sentencing statute then in effect,
“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981).
The jury unanimously answered each of these questions in the affirmative, and the court, as required by the statute,
In 1987, Graham unsuccessfully sought postconviction relief in the Texas state courts. The following year, Graham petitioned for a writ of habeas corpus in Federal District Court pursuant to 28 U. S. C. § 2254, contending, inter alia, that his sentencing jury had been unable to give effect to his mitigating evidence within the confines of the statutory “special issues.” The District Court denied relief and the Court of Appeals for the Fifth Circuit denied Graham’s petition for a certificate of probable cause to appeal. Graham v. Lynaugh,
While Graham’s petition for a writ of certiorari was pending here, the Court announced its decision in Penry v. Lynaugh,
We granted certiorari,
H-t > — (
A
Because this case is before us on Graham’s petition for a writ of federal habeas corpus, “we must determine, as a threshold matter, whether granting him the relief he seeks would create a ‘new rule’ ” of constitutional law. Penry v.
A holding constitutes a “new rule” within the meaning of Teague if it “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 301 (emphasis in original). While there can be no dispute that a decision announces a new rule if it expressly overrules a prior decision, “it is more difficult... to determine whether we announce a new rule when a decision extends the reasoning of our prior cases.” Saffle v. Parks,
B
Petitioner’s conviction and sentence became final on September 10,1984, when the time for filing a petition for certio-rari from the judgment affirming his conviction expired.
1
In the years since Furman v. Georgia,
Four years after Furman, and on the same day that Wood-son was announced, the Court in Jurek v. Texas, supra, examined the very statutory scheme under which Graham was sentenced and concluded that it struck an appropriate balance between these constitutional concerns. The Court thus rejected an attack on the entire statutory scheme for imposing the death penalty and in particular an attack on the so-called “special issues.” It is well to set out how the Court arrived at its judgment. The joint opinion of Justices Stewart, Powell, and Stevens observed that while Texas had not adopted a list of aggravating circumstances that would justify the imposition of the death penalty, “its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose.” Id., at 270. The joint opinion went on to say
The joint opinion then recognized that the Texas Court of Criminal Appeals had held:
“Tn determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.’522 S. W. 2d, at 939-940 .” Id., at 272-273.
Based on this assurance, the opinion characterized the Texas sentencing procedure as follows:
“Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individualoffender before it can impose a sentence of death.” Id., at 273-274.
“What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.” Id., at 276. '
The joint opinion’s ultimate conclusion was:
“Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution. Furman v. Georgia,408 U. S., at 310 (Stewart, J., concurring).” Ibid.
It is plain enough, we think, that the joint opinion could reasonably be read as having arrived at this conclusion only after being satisfied that the mitigating evidence introduced by the defendant, including his age, would be given constitutionally adequate consideration in the course of the jury’s deliberation on the three special issues. Three other Justices concurred in the holding that the Texas procedures for
Two years after Jurek, in another splintered decision, Lockett v. Ohio,
“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 that may call for a less severe penalty.”438 U. S., at 605 .
Obviously, the plurality did not believe the Texas statute suffered this infirmity.
The plurality’s rule was embraced by a majority of the Court four years later in Eddings v. Oklahoma,
We cannot say that reasonable jurists considering petitioner’s claim in 1984 would have felt that these cases “dictated” vacatur of petitioner’s death sentence. See Teague,
We find nothing in our more recent cases, to the extent they are relevant, that would undermine this analysis. In 1988, in Franklin v. Lynaugh,
“unavailing petitioner’s reliance on this Court’s statement in Eddings,455 U. S., at 114 , that the sentencingjury may not be precluded from considering ‘any relevant, mitigating evidence.’ This statement leaves unanswered the question: relevant to what? While Lockett, supra, at 604, answers this question at least in part — making it clear that a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant’s ‘character,’ ‘record,’ or the ‘circumstances of the offense’ — Lockett does not hold that the State has no role in structuring or giving shape to the jury’s consideration of these mitigating factors.” Id., at 179 (citations omitted).
To be sure, Justice O’Connor’s opinion concurring in the judgment in Franklin expressed “doubts” about the validity of the Texas death penalty statute as that statute might be applied in future cases. Id., at 183. The Justice agreed, however, that the special issues adequately accounted for the mitigating evidence presented in that case. Ibid.
This brings us to Penry v. Lynaugh,
We do not read Penry as effecting a sea change in this Court’s view of the constitutionality of the former Texas death penalty statute; it does not broadly suggest the invalidity of the special issues framework.
“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. Lock-ett 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.” Saffle v. Parks, 494 U. S., at 491 .
In our view, the rule that Graham seeks is not commanded by the cases upon which Penry rested. In those cases, the constitutional defect lay in the fact that relevant mitigating evidence was placed beyond the effective reach of the sen-tencer. In Lockett, Eddings, Skipper, and Hitchcock, the sentencer was precluded from even considering certain types of mitigating evidence. In Penry, the defendant’s evidence was placed before the sentencer but the sentencer had no reliable means of giving mitigating effect to that evidence. In this case, however, Graham’s mitigating evidence was not placed beyond the jury’s effective reach. Graham indisputably was permitted to place all of his evidence before the jury and both of Graham’s two defense lawyers vigorously urged the jury to answer “no” to the special issues based on this evidence. Most important, the jury plainly could have done so consistent with its instructions. The jury was not forbidden to accept the suggestion of Graham’s lawyers that his brief spasm of criminal activity in May 1981 was properly viewed, in light of his youth, his background, and his character, as an aberration that was not likely to be repeated. Even if Graham’s evidence, like Penry’s, had significance beyond the scope of the first special issue, it is apparent that Graham’s evidence — unlike Penry’s — had mitigating relevance to the second special issue concerning his likely future dangerousness. Whereas Penry’s evidence compelled an affirmative answer to that inquiry, despite its mitigating significance, Graham’s evidence quite readily could have
Moreover, we are not convinced that Penry could be extended to cover the sorts of mitigating evidence Graham suggests without a wholesale abandonment of Jurek and perhaps also of Franklin v. Lynaugh. As we have noted, 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. As the dissent in Franklin made clear, virtually any mitigating evidence is capable of being viewed as having some bearing on the defendant’s “moral culpability” apart from its relevance to the particular concerns embodied in the Texas special issues. See Franklin,
In sum, even if Penry reasonably could be read to suggest that Graham’s mitigating evidence was not adequately considered under the former Texas procedures, that is not the relevant inquiry under Teague. Rather, the determinative question is whether reasonable jurists reading the case law that existed in 1984 could have concluded that Graham’s sentencing was not constitutionally infirm. We cannot say that all reasonable jurists would have deemed themselves compelled to accept Graham’s claim in 1984. Nor can we say,' even with the benefit of the Court’s subsequent decision in Penry, that reasonable jurists would be of one mind in ruling on Graham’s claim today. The ruling Graham seeks, therefore, would be a “new rule” under Teague.
2
Having decided that the relief Graham seeks would require announcement of a new rule under Teague, we next consider whether that rule nonetheless would fall within one of the two exceptions recognized in Teague to the “new rule” principle. “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,
The judgment of the Court of Appeals is therefore
Affirmed.
Notes
The Texas Legislature amended the statute in 1991. Those changes are set forth in the opinion of the Court of Appeals.
Penry further held that its result was dictated by the Court’s prior decisions in Eddings v. Oklahoma,
To the contrary, the Court made clear in that case the limited nature of the question presented: “Penry does not challenge the facial validity of the Texas death penalty statute, which was upheld against an Eighth Amendment challenge in Jurek v. Texas,
Concurrence Opinion
concurring.
By deciding this case on the basis of Teague v. Lane,
I
A
It is important to recall what motivated Members of this Court at the genesis of our modern capital punishment case law. Furman v. Georgia was decided in an atmosphere suffused with concern about race bias in the administration of the death penalty — particularly in Southern States, and most particularly in rape cases. The three petitioners were black.
“the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.” Id., at 255.
Justice Marshall echoed these concerns. See id., at 364-366 (concurring opinion). He wrote that “[rjacial or other discriminations [in sentencing] should not be surprising,” because, in his view, the Court’s earlier decision in McGautha v. California,
The unquestionable importance of race in Furman is reflected in the fact that three of the original four petitioners in the Furman cases were represented by the NAACP Legal Defense and Educational Fund, Inc. This representation was part of a concerted “national litigative campaign against the constitutionality of the death penalty” waged by a small number of ambitious lawyers and academics on the Fund’s behalf. Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 Mich. L. Rev. 1741,1745 (1987). Although their efforts began rather modestly, assisting indigent black defendants in isolated criminal cases — usually rape cases — where racial discrimination was suspected, the lawyers at the Fund ultimately devised and implemented (not without some prompting from this Court) an all-out strategy of litigation against the death penalty. See generally M. Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (1973) (hereinafter Meltsner); Muller, The Legal Defense Fund’s Capital Punishment Campaign: The Distorting Influence of Death, 4 Yale L. & Pol’y Rev. .158 (1985).
In mustering every conceivable argument — “ethical, legal, polemical, theological, speculative, [and] statistical” — for abolishing capital punishment, id., at 59, the Fund lawyers and other civil rights advocates supplied the empirical and rhetorical support for the observations of Justices Douglas, Marshall, and Stewart with respect to race bias. See Brief for Petitioner in Aikens v. California, O. T. 1971, No. 68-5027, pp. 50-54; Brief for Petitioner in Jackson v. Georgia, O. T. 1971, No. 69-5030, p. 15 (“The racial figures for all men executed in the United States for the crime of rape since 1930 are as follows: 48 white, 405 Negro, 2 other. In Georgia, the figures are: 3 white, 58 Negro”) (footnotes omitted). See also Brief for NAACP et al. as Amici Curiae in Aikens v. California, supra, at 13-18, and App. A (discussing, in particular, history of South’s use of death penalty in rape cases prior to Civil War, when it was typical for rapes or attempted rapes committed by black men upon white women to be punishable by mandatory death or castration, while rapes committed by whites were not punishable by death); Brief for Synagogue Council of America et al. as Amici Curiae in Aikens v. California, supra, at 31 (“The positive relationship between the death penalty and race is strong, but where the crime involved is rape and more particularly, as
In the end, Justice Douglas and the other Members of the Court concluded that “[w]e cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black.” Furman,
In sum, the Court concluded that in a standardless sentencing scheme there was no “rational basis,” as Justice Brennan put it, to distinguish “the few who die from the many who go to prison.” Id., at 294 (concurring opinion). See also id., at 313 (White, J., concurring) (“no meaningful basis for distinguishing”). It cannot be doubted that behind the Court’s condemnation of unguided discretion lay the specter of racial prejudice — the paradigmatic capricious and irrational sentencing factor.
B
At its inception, our “mitigating” line of cases sprang in part from the same concerns that underlay Furman. In response to Furman, 35 States enacted new death penalty statutes. See Gregg v. Georgia,
Gregg’s requirement that the sentencer be guided by information about the particular defendant and the particular circumstances of the crime — in other words, by traditionally accepted sentencing criteria, see id., at 189-190 — added a second dimension to Furman’s rule against open-ended discretion. The jury’s discretion must be focused on rational factors, and its decision should be based on information about the circumstances of the crime and about the accused as an individual, not merely as a member of a group. In Furman itself, for example, the jury was given almost no particularized information about the accused: “About Furman himself, the jury knew only that he was black and that, according to his statement at trial, he was 26 years old and worked at ‘Superior Upholstery.’ It took the jury one hour and 35 minutes to return a verdict of guilt and a sentence of death.” Furman,
The mandatory death penalty statutes, on the other hand, were held to violate the Eighth and Fourteenth Amendments for three reasons. First, the Justices believed, a mandatory death penalty departed from “contemporary standards” of punishment. Woodson v. North Carolina,
One would think, however, that by eliminating explicit jury discretion and treating all defendants equally, a mandatory death penalty scheme was a perfectly reasonable legislative response to the concerns expressed in Furman. See Roberts, supra, at 346 (White, J., dissenting). See also Walton v. Arizona,
The significant point for present purposes is that Woodson and Sumner's, invalidation of the mandatory death penalty guaranteed that sentencers would exercise some degree of discretion in every capital case. And under our precedents, in turn, any such exercise of discretion is unavoidably bound up with the two requirements of Furman, as identified in Gregg: first and foremost, that the sentencing authority be “provided with standards to guide its use of the information” developed at sentencing, and second, in support of this principle, that the sentencer be “apprised of the information relevant to the imposition of sentence.” Gregg,
The mitigating branch of our death penalty jurisprudence began as an outgrowth of the second of the two Furman/Gregg requirements. The plurality’s conclusion in Lockett v. Ohio,
Consistent with this (admittedly narrow) reading, I would describe Eddings as a kind of rule of evidence: It governs the admissibility of proffered evidence but does not purport to define the substantive standards or criteria that sentences are to apply in considering the facts. By requiring that sentencers be allowed to “consider” all “relevant” mitigating circumstances, we cannot mean that the decision whether to impose the death penalty must be based upon all of the defendant’s evidence, or that such evidence must be considered the way the defendant wishes. Nor can we mean to say that circumstances are necessarily relevant for constitutional purposes if they have any conceivable mitigating value. Such an application of Eddings would eclipse the primary imperative of Furman — that the State define the relevant sentencing criteria and provide rational “standards to guide [the sentencer’s] use” of the evidence. That aspect of Furman must operate for the most part independently of the Eddings rule. This is essential to the effectiveness
I realize, of course, that Eddings is susceptible to more expansive interpretations. See, e. g., Walton,
But with the exception of Penry v. Lynaugh,
This understanding preserves our original rationale for upholding the Texas sentencing statute — that it “guides and focuses the jury’s objective consideration of the particularized circumstances” while allowing the defendant “to bring to the jury’s attention whatever [relevant] mitigating circumstances he may be able to show.” Jurek,
i — I t — I
Unfortunately, the narrow reading of Eddings is virtually impossible after Penry. Whatever contribution to rationality and consistency we made in Furman, we have taken back with Penry. In the process, we have upset the careful balance that Texas had achieved through the use of its special issues.
Together, these notions render meaningless any rational standards by which a State may channel or focus the jury’s discretion and thus negate the central tenet of Furman and all our death penalty cases since 1972. Penry imposes as a constitutional imperative “a scheme that simply dumps before the jury all sympathetic factors bearing upon the defendant’s background and character, and the circumstances of the offense, so that the jury may decide without further guidance” whether the defendant deserves death. Penry,
Any determination that death is or is not the fitting punishment for a particular crime will necessarily be a moral one, whether made by a jury, a judge, or a legislature. But beware the word “moral” when used in an opinion of this Court. This word is a vessel of nearly infinite capacity— just as it may allow the sentencer to express benevolence, it may allow him to cloak latent animus. A judgment that some will consider a “moral response” may secretly be based on caprice or even outright prejudice. When our review of death penalty procedures turns on whether jurors can give “full mitigating effect” to the defendant’s background and character, post, at 510, and on whether juries are free to disregard the State's chosen sentencing criteria and return a verdict that a majority of this Court will label “moral,” we have thrown open the back door to arbitrary and irrational sentencing. See Penry, supra, at 360 (Scalia, J., concurring in part and dissenting in part) (“The decision whether to impose the death penalty is a unitary one; unguided discretion not to impose is unguided discretion to impose as well. In holding that the jury had to be free to deem Penry’s mental retardation and sad childhood relevant for whatever purpose it wished, the Court has come full circle, not only permitting but requiring what Furman once condemned”).
The Court in Penry denied that its holding signaled a return to unbridled jury discretion because, it reasoned, “so long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant.” 492 U. S.,
Penry reintroduces the very risks that we had sought to eliminate through the simple directive that States in all events provide rational standards for capital sentencing. For 20 years, we have acknowledged the relationship be
Ill
The major emphasis throughout our Eighth Amendment jurisprudence has been on “reasoned” rather than “moral” sentencing. We have continually sought to verify that States’ capital procedures provide a “rational basis” for predictably determining which defendants shall be sentenced to death. Furman, supra, at 294 (Brennan, J., concurring). See also Spaziano v. Florida,
The rule of Eddings may be an important procedural safeguard that complements Furman, but Eddings cannot promote consistency, much less rationality. Quite the opposite, as Penry demonstrates. It is imperative, therefore, that we give full effect to the standards designed by state legislatures for focusing the sentencer’s deliberations. This Court has long since settled the question of the constitutionality of the death penalty. We have recognized that “capital punishment is an expression of society’s moral outrage at particularly offensive conduct” and that a process for “ ‘channeling th[e] instinct [for retribution] in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.’” Gregg,
In my view, we should enforce a permanent truce between Eddings and Furman. We need only conclude that it is consistent with the Eighth Amendment for States to channel the sentencer’s consideration of a defendant’s arguably mitigating evidence so as to limit the relevance of that evidence in any reasonable manner, so long as the State does not deny
As a predicate, moreover, I believe this Court should leave it to elected state legislators, “representing organized society,” to decide which factors are “particularly relevant to the sentencing decision.” Gregg, supra, at 192. Although Lockett and Eddings indicate that as a general matter, “a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant’s ‘character,’ ‘record,’ or the ‘circumstances of the offense,’ ” they do “not hold that the State has no role in structuring or giving shape to the jury’s consideration of these mitigating factors.” Franklin v. Lynaugh,
Every month, defendants who claim a special victimization file with this Court petitions for certiorari that ask us to declare that some new class of evidence has mitigating relevance “beyond the scope” of the State’s sentencing criteria. It may be evidence of voluntary intoxication or of drug use. Or even — astonishingly—evidence that the defendant suffers from chronic “antisocial personality disorder” — that is, that he is a sociopath. See Pet. for Cert. in Demouchette v. Collins, O. T. 1992, No. 92-5914, p. 4, cert. denied,
For all these reasons, I would not disturb the effectiveness of Texas’ former system.
The Court decided two eases together with Furman v. Georgia,
Furman was surprised to discover the victim at home and, while trying to escape, accidentally tripped over a wire, causing his pistol to fire a single shot through a closed door, thereby killing the victim. See
According to the published account of one Legal Defense Fund lawyer who participated in the campaign, the Fund — though it had had experience with racial discrimination in rape cases in the South — did not seriously consider a broader offensive against the death penalty until three Members of this Court, in an opinion dissenting from a denial of certiorari, offered a “strong foundation” for such a strategy. Meltsner 27-35. See Rudolph v. Alabama,
See also Meltsner 25: “[L]awyers attempting to thrust egalitarian or humanitarian reforms on a reluctant society prefer to use the courts because lifetime-appointed federal judges are somewhat more insulated from the ebb and flow of political power and public opinion than legislators or executives.”
The Federal Government later acknowledged before this Court that in 11 Southern States between 1945 and 1965, “[t]he data revealed that among all those convicted of rape, blacks were selected disproportionately for the death sentence.” App. to Brief for United States as Amicus Curiae in Gregg v. Georgia, O. T. 1975, No. 74-6257, p. 4a. Furthermore, the Government stated, “we do not question [the] conclusion that during the 20 years in question, in southern states, there was discrimination in rape cases.” Id., at 5a. We eventually struck down the death penalty for convicted rapists under the Eighth Amendment, not on the basis of discriminatory application, but as an excessive and disproportionate punishment. Coker v. Georgia,
Gregg v. Georgia,
As in Furman, the NAACP Legal Defense Fund represented the three petitioners in Woodson and Roberts, who were black. In addition to contending that the death penalty was a cruel and unusual punishment, the Fund lawyers argued in these cases that despite the mandatory nature of
Lockett aided and abetted an armed robbery that resulted in a murder. She drove the getaway car but did not carry out the robbery and did not intend to bring about the murder. See
The Texas special issues involved here did a considerably better job of rationalizing sentencing discretion than even the elaborate Georgia system approved in Gregg, where juries still retained power “to return a sentence of life, rather than death, for no reason whatever, simply based upon their own subjective notions of what is right and what is wrong.” Woodson,
Indeed, it can be argued that we have already implicitly overruled Penry in significant respects. In Saffle v. Parks,
Under the Federal Sentencing Reform Act, for example, Congress has instructed the United States Sentencing Commission to study the difficult question whether certain specified offender characteristics “have any relevance” in sentencing. 28 U. S. C. § 994(d). In response to this directive, the Sentencing Commission has issued guidelines providing, among other
Dissenting Opinion
dissenting.
Neither the race of the defendant nor the race of the victim should play a part in any decision to impose a death sentence. As Justice Thomas points out, there is reason to believe that this imperative was routinely violated in the
In recent years, the Court’s capital punishment cases have erected four important safeguards against arbitrary imposition of the death penalty. First, notwithstanding a minority view that proportionality should play no part in our analysis,
Second, as a corollary to the proportionality requirement, the Court has demanded that the States narrow the class of individuals eligible for the death penalty, either through statutory definitions of capital murder, or through statutory specification of aggravating circumstances. This narrowing requirement, like the categorical exclusion of the offense of rape, has significantly minimized the risk of racial bias in the sentencing process.
Third, the Court has condemned the use of aggravating factors so vague that they actually enhance the risk that unguided discretion will control the sentencing determination. See, e. g., Maynard v. Cartwright,
Finally, at the end of the process, when dealing with the narrow class of offenders deemed death eligible, we insist that the sentencer be permitted to give effect to all relevant mitigating evidence offered by the defendant, in making the final sentencing determination. See, e. g., Eddings v. Oklahoma,
I remain committed to our “mitigating” line of precedent, as a critical protection against arbitrary and discriminatory capital sentencing that is fully consonant with the principles of Furman. Nothing in Justice Thomas’ opinion explains
Justice Souter, in whose dissent I join, has demonstrated that the decision in Penry is completely consistent with our capital sentencing jurisprudence. In my view, it is also faithful to the goal of eradicating racial discrimination in capital sentencing, which I share with Justice Thomas.
with whom Justice Blackmun, Justice Stevens, and Justice O’Connor join, dissenting.
In Penry v. Lynaugh,
I
The doctrine of Teague v. Lane, supra, that a state prisoner seeking federal habeas relief may not receive retroactive benefit of a “new rule” of law, has proven hard to apply. We have explained its crucial term a number of ways. Justice O’Connor wrote in Teague itself that “[i]n general.. . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. ... To put it differently, a case announces a new rule if the result was not dictated by precedent at the time the defendant’s conviction became final.” 489 U. S., at
One general rule that has emerged under Teague is that application of existing precedent in a new factual setting will not amount to announcing a new rule. See Wright v. West,
That said, it can be a difficult question whether a particular holding presents simply a new setting for an old rule, or announces a new one. The question is not difficult in this case, however, for its answer is governed by Penry, supra, at 313, 329, the first case in which a majority of the Court adopted the approach to retroactivity put forward by the plurality in Teague. See
Our description of Penry’s claim applies, indeed, almost precisely to Graham’s claim in this case. Of Penry, we said:
“[He] does not challenge the facial validity of the Texas death penalty statute, which was upheld against an Eighth Amendment challenge in Jurek v. Texas,428 U. S. 262 (1976). Nor does he dispute that some types of mitigating evidence can be fully considered by the sentencer in the absence of special jury instructions. See Franklin v. Lynaugh,487 U. S. 164 , 175 (1988) (plurality opinion); id., at 185-186 (O’Connor, J., concurring in judgment). Instead, [he] argues that, on the facts of this case, the jury was unable to fully consider and give effect to the mitigating evidence ... in answering the three special issues.” Ibid.
In deciding whether he sought benefit of a “new rule,” we went on to say:
“Lockett underscored Jurek’s recognition that the constitutionality of the Texas scheme ‘turns on whether the enumerated questions allow consideration of particularized mitigating factors.’ Jurek,428 U. S., at 272 . The plurality opinion in Lockett indicated that the Texasdeath penalty statute had ‘survived the petitioner’s Eighth and Fourteenth Amendment attack [in Jurek] because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question — despite its facial narrowness — so as to permit the sentencer to consider “whatever mitigating circumstances” the defendant might be able to show.’ 438 U. S., at 607 .” Id., at 317.
We then reviewed the reaffirmation in Eddings v. Oklahoma,
“it 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 to the circumstances of the offense that mitigate against imposing the death penalty. Moreover, the facial validity of the Texas death penalty statute had been upheld in Jurek on the basis of assurances that the special issues would be interpreted broadly enough to enable sentencing juries to consider all of the relevant mitigating evidence a defendant might present.”492 U. S., at 318 .
Graham contends that Jurek v. Texas,
“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 Ed-dings and Lockett. Moreover, in light of the assurances upon which Jurek was based, we conclude that the relief Penry seeks does not ‘imposte] a new obligation’ on the State of Texas. Teague,489 U. S., at 301 .” Id., at 318-319.
Thus in Penry we held that petitioner sought nothing but the application to his case of the rule announced in Eddings and Lockett, 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 to the circumstances of the offense that mitigate against imposing the death penalty.”
The first distinction between Penry’s claim and that of Graham is the type of mitigating evidence involved. Penry’s went to “mental retardation and abused childhood”; Graham’s involves youthfulness, unfortunate background, and traits of decent character. But any assertion that this should make any difference flies in the face of Justice Kennedy’s opinion from last Term, quoted before, that “a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts [will only infrequently] yiel[d] a result so novel that it forges a new rule, one not dictated by precedent.” Wright v. West,
Thus, from our conclusion that the rule from which the petitioner sought to benefit in Penry was not “new,” it necessarily follows that the rule petitioner Graham seeks here is not new either. Indeed, that is the conclusion reached even by respondent who concedes that “if Graham is asserting the existence of a constitutional defect that can be cured by supplemental instructions, his claim likewise is not barred.” Brief for Respondent 29, n. 10.
Penry plainly answered the Teague question that the majority answers differently today, a question that even re
II
I therefore turn to the merits of the claim,
A
Following the first grant of certiorari in this case, after we vacated the judgment and remanded for reconsideration in light of Penry, see Graham v. Lynaugh,
B
Our cases have construed the Eighth Amendment to impose two limitations upon a state capital sentencing system. First, in determining who is eligible for the death penalty, the “State must ‘narrow the class of murderers subject to capital punishment,’ ... by providing ‘specific and detailed guidance’ to the sentencer.” McCleskey v. Kemp,
Our cases require that a sentencer in a capital case be permitted to give a “reasoned moral response” to the defendant’s mitigating evidence. See California v. Brown,
As we first described it in Jurek, the Texas scheme to be measured against this obligation assesses mitigating (as well as aggravating) evidence by looking both backward to the defendant’s moral culpability for the crime itself, as distinct from strictly legal guilt, and forward to his likely behavior if his life is not taken. Thus the first issue requires the sen-tencer to determine whether the defendant acted deliberately, and the third asks for assessment of any provocation as mitigating the fault of any response. Each issue demands an examination of past fact as bearing on the moral significance of a past act. The second issue, on the other hand, calls for a prediction of future behavior, prompting a judgment that is moral in the utilitarian sense that society may legitimately prefer to preserve the lives of murderers unlikely to endanger others in the future, as against the lives of the guilty who pose continuing threats.
While these issues do not exhaust the categories of mitigating fact,
C
Graham’s evidence falls into three distinct categories. As to. each, our task is to take the same analytical steps we undertook in Penry, to see whether the sentencing jury could give it full mitigating effect.
1
First, there was the evidence of Graham’s youth. He was 17 when he committed the murder for which he was convicted, and he was sentenced less than six months after the
As with Penry’s evidence of mental retardation, the mitigating force of Graham’s youth could not be fully accounted for under the first, “deliberateness” issue, given the trial judge’s explanation of that issue to the jury. While no formal jury instruction explained what “deliberate” meant, the judge emphasized at voir dire that “deliberate” meant simply “intentional,” see App. 90, 127, 169, 205-206, 246, 291, 319-320, 353, 420, a definition that hardly allowed exhaustion of the mitigating force of youth. A young person may perfectly well commit a crime “intentionally,” but our prior cases hold that his youth may nonetheless be treated as limiting his moral culpability because he “‘lack[s] the experience, perspective, and judgment’ expected of adults.” Eddings, supra, at 116 (quoting Bellotti v. Baird,
We have already noted that the Court of Appeals answered this difficulty by reasoning that the “major mitigating thrust” of the evidence could be given effect under the second special issue calling for assessment of future dangerousness. The errors of this view we have also seen. First, nothing in Penry suggests that partial consideration of the mitigating effect of the evidence satisfies the Constitution. Penry, like Eddings and the Lockett plurality before that, states an Eighth Amendment demand that the sentencer “consider and give effect to . . . mitigating evidence” “fully,”
The Court of Appeals also erred in thinking the second special issue adequate even to take account of the possibility that Graham may be less dangerous as he ages. The issue is stated in terms of the statutory question “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann., Art. 37.071(b)(2) (Vernon 1981). Because a boy who killed at 17 and was promptly tried (as Graham was) could well be held dangerous in the future by reason of continuing youth, it was error to limit Penry to cases in which a mitigating condition is permanent. See
Finally, because Graham was convicted of shooting and killing a man during a robbery, the situation with respect to the third special issue in this case is the same as it was for petitioner in Penry. The evidence of youth was irrelevant to the reasonableness of any provocation by the deceased of which there was no evidence in any event.
A juror could thus have concluded that the responses to the special issues required imposition of the death penalty even though he believed that Graham, by reason of his youth, “lacked the moral culpability to be sentenced to death.” Penry,
2
The next category of evidence at issue is that of Graham’s difficult upbringing, of his mother’s mental illness and repeated hospitalization, and his shifting custody to one family relation or another. We have specifically held that such circumstances may be considered in mitigation, particularly on the conduct of a defendant so young, see, e. g., Eddings, supra, at 115, where upbringing might be deforming enough to affect the capacity for culpability. Where, as here, however, that is not obviously the case, and deliberateness is said to turn on intention, there is no assurance that the first issue allows the full scope of its mitigating effect to be considered. As with youth itself, upbringing could
3
Finally, Graham argues that the jury was unable to take account of redeeming character traits revealed by evidence that growing up he had voluntarily helped his parents and grandparents with household chores, that he was a religious person who had attended church regularly with his grandmother, and that he had contributed to the support of his own children with money earned from a job with his father.
I do not accept petitioner’s contention that the jury could not give adequate consideration to the testimony on these matters. Insofar as the evidence tended to paint Graham as a person unlikely to pose a future danger, the jury could consider it under the second special issue. Insofar as the jury was unable, as Graham alleges, to give the evidence further effect to diminish Graham’s “moral culpability,” Brief for Petitioner 36,37,39, it is enough to say that the relevance of the evidence to moral culpability was simply de minimis. Voluntary chores for and church attendance with a relative, and supplying some level of support for one’s children have virtually no bearing on one’s culpability for crime in the way that immaturity or permanent damage due to events in childhood may. Because I do not understand petitioner to be arguing that the jury should have been allowed to consider the evidence as revealing some element of value unrelated to the circumstances of the crime, see Franklin,
I would hold that Penry and preceding Eighth Amendment cases of this Court require petitioner’s death sentence to be vacated, and would remand the case for resentencing by the state courts.
See Harmelin v. Michigan,
As an indication of the difference such narrowing can make, it is worthwhile to note that at the time we decided Furman v. Georgia,
“The Court’s decision appears to be based on a fear that the acceptance of McCleskey’s claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder ‘for whites only’) and no death penalty at all, the choice mandated by the Constitution would be plain. But the Court’s fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated. As Justice Brennan has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a,price to pay.” McCleskey v. Kemp,
See Brief for Petitioner in Lockett v. Ohio, O. T. 1977, No. 76-6997, p. 10.
After Texas’ capital punishment statute was invalidated in Branch v. Texas, one of the cases decided with Furman v. Georgia,
“(b) [o]n conclusion of the presentation of the evidence [at the sentencing phase of a capital murder trial], the court shall submit the following issues to the jury:
“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
“(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death.” Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 1981).
Following our decision in Penry v. Lynaugh,
This distinction does not even apply to Graham’s claim that the sentencing jury could not give full mitigating effect to the evidence of his unfortunate background. Of course, in this regard, despite their mitigating force, Penry’s evidence of an abused childhood and Graham’s evidence of an unfortunate background both have the same tendency to support only an affirmative answer to the future dangerousness special issue. The Court does not explain why, under its reasoning, Graham’s claim concerning evidence of his background is barred by Teague v. Lane,
Respondent’s only argument concerning the application of Teague is that petitioner’s claim is Teague-barred if “his claim is so extensive as to constitute a facial challenge to the Texas statute.” Brief for Respondent 13. In other words, “if sustaining Graham’s claim would necessarily require that Jurek be overruled, it is barred by Teague." Id., at 29, n. 10. However, petitioner does not ask that Jurek v. Texas,
See also Penry,
The full Court may do the same in responding to several pending petitions for certiorari presenting the same question involved in this case, but on direct review. See, e. g., Johnson v. Texas, cert. pending, No. 92-5653; Jackson v. Texas, cert. pending, No. 91-7399; Boggess v. Texas, cert. pending, No. 91-5862.
At trial petitioner did not seek the additional Penry instruction that he now says is required. Whether the failure to request such an instruction is a bar to a subsequent challenge is a question of state procedure; if the conviction were affirmed by the state appellate courts on the ground that petitioner failed to raise his claim before the trial court, that affirmance could rest on an independent and adequate state-law ground. Here, the Texas Court of Criminal Appeals appears to have addressed petitioner’s challenge on the merits in a state postconviction proceeding. See App. 37. In any event, under Texas law, a Penry claim is not procedurally barred even if no additional mitigating-evidence instruction is requested or there is no objection made at trial to the jury instructions. See Selvage v. Collins,
Or, indeed, all the ways in which evidence may mitigate against imposition of a death sentence previously mentioned by Members of this Court. See Franklin v. Lynaugh,
See also Jurek,
Justice Thomas argues, ante, at 493, that the rule applied in Penry “originated entirely from whole cloth in two recent concurring opinions,” California v. Brown,
As to the first contention, Lockett v. Ohio, 438 U. S 586 (1978), was understood at the time it was handed down to require that constitutionally relevant mitigating evidence (the definition of which is given below) be given full consideration and effect. See, e. g., id., at 623 (White, J., concurring in part, dissenting in part, and concurring in judgments) (emphasis added) (Lockett “requir[es] as a matter of constitutional law that sentencing authorities be permitted to consider and in their discretion to act upon any and all mitigating circumstances”). This is the understanding upon which Lockett and Eddings have consistently been applied by the Court. See Skipper v. South Carolina,
There was one novelty in the concurring opinions in Brown and Franklin, however, in the use of the phrase “reasoned moral response,” see supra, at 513, to which Justice Thomas adverts in his concurring opinion. But as the concurring opinion explained in Brown, this is just a shorthand for the individual assessment of personal culpability that Lockett and Eddings mandate. See Brown, supra, at 545. It is, indeed, appropriate shorthand. Justice Thomas himself acknowledges, as I think everyone must, “that ‘capital punishment is an expression of society’s moral outrage at particularly offensive conduct,’ ” ante, at 498 (quoting Gregg v. Georgia, supra, at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.)), and he reminds us that “[a]ny determination that death is or is not the fitting punishment for a particular crime will necessarily be a moral one,” ante, at 494.
Justice Thomas’s second concern, about “sympathy for a defendant who is a member of a favored group,” ante, at 495, involves an issue of very great seriousness. But the LocketLEddings rule is not one of “unbridled” or “unbounded” discretion. See ante, at 494-495. Constitutionally relevant mitigating evidence is limited to “any aspects 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 604 (plurality opinion). A defendant’s race as such is not mitigating as an aspect of his character or record, or as a circumstance of any offense he may have committed.
I note in this regard that the trial judge’s remarks at voir dire may have inappropriately left the jury to consider whether Graham would have been dangerous in the future if he were set free. See Brief for Petitioner 8, n. 4. In light of my conclusion that Graham’s death sentence should be vacated, I need not address here the propriety of a sentence imposed on the basis of future dangerousness to the public when there is no possibility that a defendant will be sentenced to a term less than life without the possibility of parole.