*2 Before GARWOOD, REAVLEY and Judges.* Circuit REAVLEY, Judge: Circuit This is a collateral attack upon the death by sentence a Texas court of Johnny Paul Penry. exception one all the con- With tentions advanced on Penry’s behalf are easily rejected. exceptional contention is that did permit law consider, and apply, Penry’s all of per- sonal prior circumstances reaching the verdict that mandated his death sentence. We are superior bound 19, 1987, *Due to his death on Judge October sion. being quorum. case decided Robert M. participate Hill did not 46(d). in this deci- 28 U.S.C. § contention, authority reject but we ment was read back to Penry front of witnesses, fully non-police demonstrate two problem and it contained discuss the Miranda warnings consideration. why may merit further a statement rights being were waived. The second statement told of the crime even I. more detail and contained confessions of morning of October On Penry’s previous crimes. beaten, Carpenter brutally Pamela *3 These two statements formed the heart pair with a of scissors raped, and stabbed prosecution against of the Penry. The Livingston, home in Polk Coun- in her own statements were consistent with the other later, ty, She died a few Texas. hours but evidence, including proof Penry had relay description a of her she was able Carpenter’s before, been at Ms. house once police to the first assailant officer Carpenter’s Ms. being statement about hospital. to the doctor in the scene and stabbed, raped and bloody scissors description The led two local sheriffs scene, position found at the and the deputies suspect Penry. They went to clothing victim’s by described the ambu- father, Penry’s Penry the house of where However, lance attendant. there was no staying. Penry was denied involve- physical (blood, semen, evidence finger- agreed voluntarily go ment but to with the prints samples) linking hair Penry to the police officers to the station. scene of the crime. police At the station the officers and competency At a hearing trial, before Penry by a were met number of other local Penry was shown to have limited mental agents. They enforcement Penry law read ability. write, He having could not read or Miranda rights questioned his him grade. IQ never finished the first His indi- being about a wound on his back. After cated mild to moderate retardation. He again, Penry signed warned a consent to had been in and out of a number of state Everybody search form. then went back to schools. His relatives testified that he was Penry home to retrieve a shirt he had beaten as a child strange- and had behaved day. worn earlier that ly as teenager. both a child and a Never- Penry accompanied police then offi- theless, competent a found him cers to the scene of the crime. There Pen- stand trial. ry, time, for the first stated that he had guilt/innocence phase trial, At the of his immediately arrested, “done it.” He was Penry’s capacity evidence of limited mental handcuffed, rights again. and read his He disagree- was reintroduced. There was brought police was back to the station and among ment testifying psychia- the three magistrate. taken before a Penry was for- Penry trists whether was insane: the de- mally charged capital with murder. The was, psychiatrist opined fense that he but magistrate questioned read and Penry psychiatrists disagreed. the state’s two rights. about whether he understood his disagreement There was also over the de- Penry rights stated that he understood his gree Penry’s mental limitation and the signed warning forms. However, cause of the limitations. all of Police Bill questioned agreed Chief Smith then psychiatrists Penry had Penry again warning limitations, after Penry him. mental whether caused a agreed give a statement. Smith took birth trauma or childhood environmental the statement in notes and beatings being turned it over to factors such as locked secretary type. After the statement in his periods room for extended of time. read, typed, Penry was because They agreed could not Penry’s problems also was read to him in non-police themselves, front of among ways, two manifested other witnesses. That statement described the inability an to learn from his mistakes. detail, Penry signed crime it. jury rejected Penry’s insanity de- Ranger Cook took a guilty second state- fense and found him mur- ment following day. Again, (Vernon the state- der. Tex.Penal Code Ann. 19.03 §
1974). “yes” (5th then answered to all Cir.1982). F.2d Stone bars issues,” “special Penry three relitigation sen of the issue here. to death. tenced Ann. Tex.Crim.Proc.Code Penry argues also that his confes (Vernon art. 37.071 Supp.1987). & sion involuntary and that he did not Appeals The Texas Court of Criminal af voluntarily waive his rights. Miranda firmed the Penry conviction and sentence. Penry’s Most of argument on both issues State, (Tex.Crim.App.1985), S.W.2d centers on his inability low intellect and denied, 1073, 106 t. cer freely confess or rights. waive his How ever, police activity “coercive is a neces sary predicate finding to the that a confes II. sion is not ‘voluntary’ meaning within the Penry argues that it would cruel of the Due Process Clause of the Four punishment and unusual to execute men teenth Amendment.” Colorado v. Connel tally person retarded such as himself. He —ly, U.S. -, -, cites Wainwright, Ford v. *4 (1986). Similarly, "Mi -, 106 S.Ct. protects randa against govern defendants (1986), for the proposition that “idiots and ment leading coercion them to surrender chargeable lunatics are not for their own rights protected by Amendment; the Fifth acts.” An recently identical claim has been goes no further than that.” Connelly, rejected by Butler, this Brogdon court. v. 107 at 524. We carefully have exam (5th Cir.1987). 824 F.2d 341 Penry’s record, ined the as is duty, our see Miller v. claim is without merit. Fenton, 474 88 Penry raises a number of (1985) issues re (ultimate 405 L.Ed.2d of garding his two confessions. He first voluntariness of subject ple confession they claims that sup should have been nary by review court), federal habeas
pressed they because were the fruit of an can find no police evidence of misconduct illegal A arrest. Fourth Amendment claim that taint would the confessions or waiver illegal of arrest is foreclosed in rights. habeas Both the confession and waiver “provided the state opportunity an for full rights Miranda voluntary. were litigation” and fair of the claim. v. Stone Penry challenges also the exclusion Powell, 465, 493-95, of one venireman for Citing cause. Wain 49 Recogniz L.Ed.2d wright Sykes, v. ing bar, the Stone Penry argues he that did argues L.Ed.2d the state have a not “full fair” suppression hear Penry procedurally defaulted on the issue. ing. He claims that the state limited his When opinion the state court is silent as to investigator’s fees, police that a officer bar, whether it used procedural who testified at suppression both the hear this Court will consider “whether ing and trial suppression lied hear state court has procedural used default ing, and that the provide state failed to him in similar preclude cases to review of the previous with one of his confessions. Pen merits, claim’s history whether the of the ry’s claims are without merit. Penry does suggest case would that the state court point not out what difference more investi procedural was of the default, aware gator’s fees, having previous confes whether the state opinions sug- court’s sion, would have police made. The offi gest upon reliance procedural grounds or testimony cer’s suppression at the hearing a determination of the merits.” not was inconsistent with his trial testimo ny. We “independent have an made evalu Ortega McCotter, (5th 808 F.2d ation the state court record” Cir.1987) and are (quoting Preston v. Maggio, 105 satisfied that Penry’s “opportunity (5th to con F.2d Cir.1983)). In the state test of incriminating introduction here, evi habeas claim only time that issue resulting dence from his arrest raised, was the state simply court denied circumscribed.” Billiot v. Maggio, 694 the writ without an opinion. However, consistently applied procedural Texas has a der.1 The Texas statutory bifurcated bar to exclusion of veniremen without provides ob- scheme then for the jury to decide State, Hawkins jection. answering sentence S.W.2d “Special three (Tex.Crim.App.1983). Similarly, Issues”: procedural state court was aware of the (1) whether the conduct of the defendant bar this case since the state raised that caused the death of the deceased reply Penry’s bar in its state habeas was committed deliberately with the Therefore, test, claim. under the Preston expectation reasonable that the death of Penry object the claim is barred if failed to the deceased or result; another would to the exclusion at trial. (2) whether there is a probability that the defendant would trial, commit Penry’s
At criminal acts originally counsel ob- violence jected to the motion to constitute a continu- state’s exclude ing threat However, society; and venireman for cause. after rehabilitation, attempts (3) number of coun- evidence, if raised whether the objection sel withdrew his and the chal- conduct of the killing defendant lenge granted. for cause was Penry ar- deceased was response unreasonable in gues attorney’s argument provocation, to the if any, by the de- expressed “an objection of the withdrawal ceased. resignation but a statement of to the fact 37.071(b) Tex.Crim.Proc.Code Ann. art. going grant Court was (Vernon & Supp.1987). If the jury challenge State’s spite cause in unanimously “yes” answers to all three objection.” disagree. reading We Our questions, the court must sentence the de- *5 part that of the voir dire convinces us that fendant to death. Tex.Crim.Proc.Code counsel expressly did objec- withdraw his 37.071(c)-(e)(Vernon Ann. art. 1981 Supp. & tion. He “regretfully” did so because he 1987). Otherwise, the defendant must be juror
wanted the
but
juror
knew that
the
sentenced to
imprisonment.
Here,
life
could not be rehabilitated. The Sykes bar
additional evidence was introduced in the
precludes our consideration of the merits of
phase.
sentencing
jury
The
was then in-
the issue.
structed,
inter alia:
You
further
are
instructed that in deter-
III.
mining each of
Special
these
you
Issues
into
take
all
consideration
of the
A.
you
evidence submitted to
in the full trial
jury rejected
The
Penry’s insanity
case,
is,
de-
of the
that
all of the evidence
fense and found him guilty
capital
mur-
guilt
submitted to determine the
or inno-
offense,
Penry’s
(4)
1. At the time of
person
section 19.03of
commits
the
the murder while
(Vernon 1974)
escaping
attempting
the Texas
pro-
escape
penal
Penal Code Ann.
or
to
from a
institution; or
vided:
(5)
person,
penal
the
while incarcerated in a
(a) person
A
commits an offense [of
institution,
employed
murders another
iswho
if he
murder]
under Section
commits murder as defined
operation
penal
in the
of the
institution.
19.02(a)(1)
of this code and:
Penry
guilty
was found
of a violation of subsec-
(1)
person
peace
the
murders a
or
officer
(a)(2),
committing
tion
"in the course of
acting
discharge
fireman who is
of an official
in the lawful
attempting
aggravated
to commit the
offense
duty
person
and who the
knows
State,
rape.” Penry v.
it on has in the Eighth effect been by Amendment’s answered mandate of Supreme application individualized opinion Court’s in of mitigation all v. Jurek Tex as, along 262, aggravation 428 U.S. with in 2950, 96 the sentencing 49 decision. (1976), 929 In order explain L.Ed.2d upholding concern, our this State’s we statutory must look scheme for further at imposing Supreme capital Court’s writings murder. Our on statutory capital punishment. scheme allows for broad consideration of aggravating B. mitigating factors. V.T.C.A. Penal Code, Sec. 19.03 ensures imposition The Court, Gregg v. Georgia, of the death is sentence possi even a 428 153, 2909, 96 S.Ct.
bility certain aggravating (1976), circumstanc laid the foundations for post- 2 es proven are not beyond a reasonable Furman era of punishment. by the doubt State. plurality3 Gregg held that the Georgia Georgia, 238, 2. Furman v. 2726, 408 U.S. Only 92 Court, 3. three members of the Justices (1972). 33 Stewart, L.Ed.2d 346 Stevens, effectively Furman Powell and majori were in the ty punishment struck down all capital Gregg as well as the statutes in four other death place penalty Texas, at that day. time. cases decided that Jurek v. 262, 2950, 428 U.S. 96 S.Ct. (1976); Florida, 242, v. 428 U.S. 96 S.Ct. Proffitt
921
reasons,
capital punishment statute
constitu-
found
be
unconstitutional.
207,
96
Louisiana,
tional.
U.S. at
S.Ct. at 2941. Roberts v.
325, 332,
428 U.S.
provided
3001,
That statute
for a bifurcated
3005,
trial
96 S.Ct.
3007, 49
guilt/innocence
(1976).
L.Ed.2d 974
phase
by
with
followed
punishment
195,
stage.
Id. at
96 S.Ct. at
The Florida statute was
considered
punishment stage,
2935. At the
the Court in
Florida,
v.
428 U.S.
Proffitt
aggravating
had
find at least
cir-
one
242,
2960,
impose
cumstance
before
could
the death
statute,
That
Georgia’s,
required
similar
197,
penalty. Id. at
Although since the aggravating the Court warned “each factors serve to narrow system distinct the focus on be examined on an the crime and basis,” individual id. at factors force the S.Ct. at sentencer to “focus on the principles First, two basic individual stand out. circumstances of each pass muster, in order to homicide and each constitutional defendant.” 96 S.Ct. at sentencer’s4 discretion must be narrowed. accomplished That can finding Court, on the day same Gregg, as aggravating circumstances either about the Roberts, Proffitt, Woodson, considered Second, or the crime defendant involved. the Texas statute at issue here. The Court
the sentencer must consider the circum- first held that the Texas capi- definition of and the stances defendant involved. That tal murder equivalent 19.03 was the § usually through done consideration of finding “a statutory aggravating circum- mitigating circumstances. stance before the penalty may death imposed.” Texas, The other four Jurek cases decided the same day Gregg all application involved L.Ed.2d (1976). The Court principles. two then addressed the basic issue Woodson North circumstances; Carolina, L.Ed.2d struck down But a sentencing system that allowed a North Carolina law that mandated the only aggravating consider penalty death category “a broad certainly circumstances would almost fall homicidal offenses.” 428 U.S. at short of providing the individualized sen- S.Ct. at 2983. The Court found that one of tencing today determination that we statute’s “constitutional shortcom- have held in Woodson v. North Carolina ing[s]” was that it failed “to allow the required Eighth to be by the and Four- *7 particularized consideration of relevant as- teenth system Amendments. For such a pects of the character approach and record of each mandatory would laws that convicted defendant imposition today before we hold unconstitutional Wood- upon him of a sentence son and of death.” Id. at Roberts A jury v. Louisiana. Likewise, S.Ct. at must be allowed the Louisi- consider on to the basis mandatory ana penalty, death all relevant though only even awhy evidence it death considerably sentence imposed, narrower than North should be but why also provided imposed. Carolina’s and it not be should instruction on lesser included Thus, even if not offenses war- requirement order to meet the evidence, was, ranted for similar Eighth of the and Fourteenth Amend- (1976); Woodson v. North 4. The judge sentencer be a instead aof Carolina, jury. concerning Proffitt, See discussion infra (1976); Louisiana, Roberts v. p. 921. (1976). 96 49 L.Ed.2d Those opinions, decisions, by subsequent as confirmed represent the law involved.
ments,
system
capital-sentencing
271-73,
Id. at
(citations
form of mental or
pressure,
emotional
less,
something
perhaps, than insanity,
In Eddings
Oklahoma,
v.
but more than the
emotions of the
102
(1982),
L.Ed.2d
average man,
inflamed,
however
defendant,
could the
years
at the
old
time of
S.W.2d,
withstand. 522
murder,
939-940.
offered evidence of his trou-
(11th Cir.1985) (en
bling family background
banc),
and his emotional
rev’d sub
—
nom.,
sentencing Eddings
Dugger,
U.S. -,
disturbance.
In
Hitchcock v.
“
death,
judge
(1987).
‘in
the trial
stated that
fol
A
Supreme
law,’
unanimous
lowing
he
not ‘consider
could
reversed.
Hitchcock,
proached capital
cases
two different whether there is a probability of future
First,
ends.
“a
State
‘narrow the
criminal acts of violence.” Cordova v.
class of
subject
capital pun
murderers
State,
733 S.W.2d
190 (Tex.Crim.App.
ishment,’ by providing ‘specificand detailed
1987)
Quinones
(quoting
State,
guidance’ to the sentencer.” McCleskey v.
S.W.2d
947 (Tex.Crim.App.), cert. de
—Kemp,
U.S. -, -,
nied,
1772-73, 95
(1987) (citations
L.Ed.2d 262
(1980)).
L.Ed.2d 121
omitted) (citing Gregg,
issue, then,
S.Ct. at 2936 and
is
Proffitt,
questions,
whether the
We that specifically up- Jurek be a continuing statute, threat society. held the Texas as The argues. the miti- state gating Supreme evidence shows Developing law, however, Penry Court that could not learn recognizes a his right constitutional mistakes. suggests that the That an jury some affirmative have discretion to decline to answer question. im- the second pose the death penalty. What was ques- jury There is a the to do if it decided that tion Penry, whether the permits Texas scheme the because of retardation, arrested full range of Supreme discretion which the emotional development and a troubled may require.6 Perhaps, youth,8 it is time to should not be executed? If any- light reconsider in Jurek developing thing, the evidence made it more likely, not law.7 less likely, that the would answer the second yes. It did not allow Penry’s good conviction is a example of jury to consider a major thrust of Penry’s mitigating pose prob- circumstances that evidence as mitigating lem evidence. We under the do Texas scheme. Penry intro- not see how the Penry’s evidence of duced evidence of arrest- his mental retardation ed development and emotional inability his and read troubled write. He had youth could, under never grade. finished the instructions first His and emo- special issues, development fully tional upon acted that of a child. He jury. child, had been There is place beaten as a the jury say locked in his room “no” to without to a penalty access toilet death princi- for consid- based on a lengths pal erable mitigating time. He had force been and of those circumstanc- out of a number es. of state schools. One
effect
his
retardation was
inability
argues
state
that Penry’s counsel
learn from his mistakes.
could,
did, argue
the mitigating circum-
The evidence is similar to that in
stances to
jury.
Hitch-
attorney
defense
cock and Eddings. Those
arguably
cases
argued
Hitchcock also
to the jury to
teach
us
must be considered
“consider
picture,
whole
the whole ball
Penry
sentencer. Yet the
jury was allowed of wax.” 107 S.Ct. at
prosecu-
1824. The
Eddings:
Questions Regarding
Some
(citations
Con
omitted).
After
stitutional
S.Ct. at 2983
It was the
Validity,
(1982);
23 S.Tex.L.J. 315
same
approved
Florida statute that was
in Prof
Green,
Punishment,
Capital
Psychiatric Experts,
applied
that was
unconstitutionally in Hitch
fitt
Dangerousness,
and Predictions
Capital
cock.
(1984).
argues
U.L.Rev. 533
Green
that once
prosecutor’s psychiatrist pronounces
a de
7.
The United States
recently
Court has
sociopath,
fendant a
usually happens,
granted
Lynaugh,
certiorari
in Franklin v.
dangerousness
answer to the future
issue is
(5th Cir.1987),
F.2d 98
granted,
cert.
56 U.S.L.W.
preordained.
Id. at 553.
(U.S.
9, 1987) (No. 87-5546),
Oct.
limited
question:
White, concurring
6.Justice
part, dissenting
Whether the
must be instructed
part
concurring
judgment
in the
in Lock
effect of
evidence under the Texas
states,
ett
"[i]t...
to me
plurality
seems
capital punishment scheme.
very
strains
hard
unsuccessfully
to avoid
eviscerating the handiwork in
Penry,
apparently,
Florida
approximately
years
Proffitt
Lockett,
Jurek Texas...."
438 U.S. at
old at the time of the crime.
up
argued
strong argument
tor in
then stood
We think that a
Hitchcock
cir-
developing law, see,
to the
to consider
can be made
e.g.,
Likewise,
by number.
Hitchcock,
However,
cumstances
is inconsistent.
even
*11
here,
prosecutor
trump
able to
if we were free to decide that inconsistency
argument:
defense counsel’s
result,
and reach a different
see Brock v.
Wright McCotter,
1152,
I didn’t
Mr. Newman or Mr.
(5th
hear
781 F.2d
1157 n. 5
—
attorneys] say anything
you
Cir.),
denied,
U.S. -,
[defense
cert.
106 S.Ct.
responsibilities
your
about what
are.
2259,
(1986),
men,
you
I submit to
we’ve met our
GARWOOD,
Judge,
Circuit
burden.
concurring:
Hitchcock,
As in
the mere fact that de-
I join Judge Reavley’s thoughtful opin-
argued mitigating
fense counsel
circum-
ion,
append
merely
these remarks
stances does not conclude the matter. The
explore,
further
may
my
from what
is whether the
could act on slightly
perspective,
different
some of the
circumstances and
im-
possible
ramifications
Jurek and its rela-
pose
penalty.
prosecutor’s
the death
tionship
Supreme
to other
Court decisions
argument would exclude that considera- of the kind called
by Judge
attention to
tion.
Reavley.
Undoubtedly,
Judge Reavley
so co-
C.
gently explains, there is a tension between
expressly
Jurek
held that the Texas stat
major
the two
themes of the
Jurek,
ute is constitutional. After
capital sentencing
Court’s recent
jurispru-
Court has reiterated that stance a number
dence, and
certainly
it is
not inconceivable
example,
of times. For
in
Lockett
that the ultimate resolution of that tension
Court stated that the Texas statute “sur
However,
undermine Jurek.
I do not
petitioner’s Eighth
vived the
and Four
suggest,
understand us to
and I do not
teenth Amendment attack because three
believe, that such a result is either inev-
Justices concluded that the Texas Court of
itable
desirable.
Appeals
broadly
Criminal
had
interpreted
That the
doing
Court knew what it
question despite
the second
its facial nar
—
in Jurek must
permit
only
rowness—so as to
be assumed not
the sentencer
out of
proper respect
Court,
consider
‘whatever
but also
circumstanc
be-
concurring
es’ the
cause of
might
opinion
defendant
be able to
therein of
show.”
Lockett,
607,
(joined by
438 U.S. at
Justice White
each involved
where
categories
general
of homicide.
imposed
for certain
death sentence was
on “a de-
Roberts,
the Court decried
Louisiana
only
fendant who
aided and abetted a mur-
on the circumstanc
der,
statute’s “lack of focus
permiting any
without
consideration
particular offense and the charac
es of the
sentencing authority
of the extent
propensities
ter and
of the offender.” 96
involvement,
degree
of her
or the
of her
Woodson, the
not
at 8006. In
Court
rea, in
mens
the commission of the homi-
statute,
ed that the North Carolina
which
Marshall,
cide.” Id. at 2969.
Justice
doctrine,
felony murder
“ac
embraced the
concurrence, pointed out that the defendant
significance
cords
relevant
killing
facets
“was sentenced to death for a
the character and record of
individual
actually
she did not
commit or intend to
partic
offender or the circumstances
commit”
“pre-
and that the Ohio statute
(emphasis
ular offense.” 96 S.Ct. at
cluded
effective consideration of her
added).
substantially
Neither criticism is
degree
crime,
of involvement in the
her
applicable
(Harry)
In Roberts
Jurek.
age,
prospects
or her
of rehabilitation.”
Louisiana,
Id. at 2972.
following
L.Ed.2d
decided the
apparent
It is
that none of the considera-
year,
mandatory capital sentencing
another
tions which Lockett held must be taken
scheme was struck
ob
down.
*13
determining
into account in
whether a sen-
youth
served: “Circumstances such as the
tence of
imposed,
death should be
were
offender,
any prior
of the
of
absence
precluded
being given
effective con-
conviction,
alcohol,
drugs,
influence
sideration
in Penry’s case.
disturbance,
or extreme emotional
and even
Each of these considerations is relevant to
the existence of circumstances
which
either the
sentencing
first or second
in-
provided
offender reasonably believed
a
quiry under
the Texas scheme as an-
justification
moral
for his conduct are all
applied
nounced in Jurek and
in this case.
examples mitigating
might
facts which
killing
attend
peace
of a
officer” but
It is also to be noted that Justice White
which the Louisiana statute did not take
concurred in the result in
on
Lockett
sub
added).
(emphasis
into account.
at
Id.
grounds, namely,
stantive
Eighth
Again,
subject
is not
Jurek
this criti
prohibited capital punishment
Amendment
cism. These statutes all had in common for one who did not intend the death of the
prohibition
any
considerations other
victim. Id. at 2983.
largely
This view was
guilt
particular
than
offense.
Florida,
vindicated in Enmund v.
beyond
catego-
The Court first went
where the Court held that the death sen
ry
year
Ohio,
of case the next
in Lockett v.
tence could
constitutionally
imposed
be
on one who
attempt
did not kill or
to kill or
(1978),which involved a death sentence im-
participating
have
intention of
in or
posed
twenty-one-year-old
on a
woman who
facilitating
killing.
a
Id. at 3377. En
accomplice
was an
to the murder but did
placed principal
mund
reliance on
Lockett
actually kill the victim. There was
“
and Woodson.
Id. The Enmund Court
prognosis
evidence that
‘her
for rehabili-
noted that “Enmund’s
favorable,”
own conduct” must
tation’ ... was
and she had no
punishment
basis for
major offenses
on her record. Id. at 2959.
“[t]he
(em
focus must be on
sentencing
culpability.”
his
statute
Id.
was held invalid
phasis
original).
permit
because it “did not
Consideration of the
sentencing
judge
consider,
justification
mitigating factors,
punishment
deterrence
for
character, prior record,
her
made
age,
particular
defendant’s state of mind
lack of
specific
death,
ly
intent to
relevant.
cause
and her rela-
Id. The Court observed that
tively
part
minor
in the
for
justification
crime.”
at
retribution as a
Id.
for
“[a]s
Enmund,
2961.
placed
executing
Particular reliance was
we think
very
this
Woodson, and
appar-
depends
Jurek
cited with
much
degree
on the
of Enmund’s
approval.
ent
at
Id.
2963. Justice
culpability
intentions,
Blaek-
Enmund’s
ex-
—what
”
were,”
pectations, and actions
evidence that is available.’
Id.
“Enmund’s
culpability
criminal
must be
(emphasis added). Most recently, in Sum-
participation
limited to
robbery,
and ner, the Court struck down Nevada’s man-
punishment
his
per-
be tailored to his
datory death sentence for those committing
responsibility
guilt.”
sonal
moral
degree
first
murder while under a sentence
passages,
at 3378. In these
the Court is
imprisonment
life
without possibility of
obviously measuring personal responsibili- parole. The Court noted
prior
that its
deci-
by the circumstances
ty
guilt
and moral
sions,
including
Tison,
Enmund estab-
particular
and the defendant’s
offense
lished that “the level of
responsi-
criminal
participation and state of mind with refer- bility
person
of a
convicted of murder may
ence to it. These
appear
considerations
vary according to the extent of that individ-
adequately
taken into account in the
participation
ual’s
crime,”
in the
and that
sentencing
scheme. The Enmund
this consideration was not adequately re-
Tison,
analysis
was reconfirmed in
107 flected in the Nevada
statute.
S.Ct. at
1724. Sumner also
possible
noted as a
Likewise, in other cases where the Su mitigating factor
excluded
the Nevada
“
preme Court has struck
down a
law ‘even the existence of circumstances
sentencing scheme because of its mandato which the offender reasonably believed
ry
preclusion
nature or its
of consideration
provided
justification
a moral
for his con-
”
mitigating factors,
significant
per
duct.’
(quoting
Roberts
haps crucial aspect of the
has been
decision
(Harry)) (emphasis added). The Sumner
relating
that matters
to the accused’s own Court went on to observe that in the case
crime,
participation
or his own state
possible
before it a
mitigating factor which
it,
in respect
of mind
potential
or his
ignored
Nevada law
defend-
rehabilitation or lack of
dangerous
future
ant’s
during
“behavior
years
of in-
ness, have been
legally
deemed
irrelevant.
carceration, including whether the inmate
Thus, in Skipper, the Court held that
it murder was an isolated incident of violent
*14
was
error
constitutional
evi
exclude
behavior or merely the
recent in
most
a
dence relevant to
“probable
the accused’s
long line of such incidents.” Id. at 2726.
future conduct if sentenced to life in pris These
clearly
are
factors
consistent with
on,” and that “evidence that the defendant
Jurek, which,
noted,
as previously
Sumner
pose
danger
(but
would
a
if spared
cites
approval.
with
incarcerated)
potential
must be considered
Of
area,
all the
in
cases
this
Eddings
is
ly mitigating.”
It is also assertedly mitigating place consideration of some other limits on the sentencer’s appropriately discretion, defended as a factors can be at least those limits subserve leading away one-way purposes. Surely street penological Fur- valid argument is not re punishment. Such an penological us that a valid man teaches min sponsive desirability the asserted purpose fostering predictability, consist- indiscriminacy. imizing arbitrariness and ency, objectivity, rationality, and reviewa- Moreover, the street it is doubtful that will capital sentencing. purpose bility That really one-way. The Court has held that be by affording would seem to fostered be may prove po the nonexistence of a state jurors by give a vehicle which to deci- circumstances, see Bar tential effect to the sort of sive considerations 3418 at and where the clay, by Penry, advanced insofar only as potentially mitigating range of factors is jurors may deem those considerations whol- may almost unlimited what one sentencer ly irrelevant to either of the two Texas regard mitigating may another view as capital sentencing special issues. aggravating. Accordingly, while there is indeed a ten- if, appears Finally, even as now to be the expressions sion between Jurek and in oth- case, principles plurali of the Furman Court, er recent decisions of the it is ty require put any do not a state to limits means clear that has Jurek been or should may on the factors which the sentencer fatally undermined. mitigating, determine to be nevertheless that a state this does mean has no voice choosing factors rele “substantive penalty
vant to the determination.” Ra
mos,
cretion a state have in this excluding
does not extend to from all con potential
sideration the defendant’s for re
habilitation, dangerousness, his lack of or participation
the nature of his in or state of respecting charged,
mind crime never- Ohio, companion text, Crampton punishments appears, case of usual from its con- noted, in, text, suggested substantive, history, but no error the in- to be at least apart, " procedural struction to the that it ‘must not be influ- from whatever connotations “un- ” by any sympathy.’ may enced may consideration of usual" have. The latter be consistent By year, during procedural at 1461. the next approach Gregg which Jus- with the and of Court, Stewart, departed Douglas, tices Harlan and Black Justices and White in Fur- holding McGautha's "absolute unprecedented discretion” procedural man. But the then Furman, substantially rendered a dead letter reading Eighth given by Amendment years Gregg, as was confirmed four later in entirely opposite Lockett thrusts in the di- rapidi- S.Ct. at 2936 n. 47. This reflect the rection. That the Court has since embraced ty, perhaps ambiguity, evolving” of "the Lockett-type procedural requirement such a as a decency” of "standards of referenced in Chief component Eighth of its current Amendment Dulles, opinion Trop Justice Warren’s jurisprudence cannot be doubted. Nor can it be doubted, however, component that such a is not proclaimed which had likewise the constitution- only opposite Gregg from that of and the Fur- ality capital punishment. Id. at three, 597-98. man but is also distinct from the tradi- Now, later, years a few still has McGautha re- procedural process approach tional due exem- turned, though in the altered form of a manda- plified, among post-Gregg capital punish- extent, answer, tory requirement? To some cases, by ment decisions such as Gardner v. light post-Gregg opinions, of the Court’s Florida, "yes,” just fully but to what extent is not Thus, though we know that the clear. exists, Lockett-type procedural component there *17 Answering particularly guideposts by the latter are fewer of the normal which to light Eighth principled gauging difficult of the fact that make a of its limits and proscription Amendment's of “cruel and un- contours.