SAWYER v. SMITH, INTERIM WARDEN
No. 89-5809
Supreme Court of the United States
Argued April 25, 1990-Decided June 21, 1990
497 U.S. 227
Catherine Hancock argued the cause for petitioner. With her on the briefs was Elizabeth W. Cole.
Dorothy A. Pendergast argued the cause for respondent. With her on the brief were John M. Mamoulides and Terry M. Boudreaux.*
JUSTICE KENNEDY delivered the opinion of the Court.
We must decide in this case whether a prisoner whose murder conviction became final before our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985), is entitled to use that decision to challenge his capital sentence in a federal habeas corpus action. We hold that he cannot, for Caldwell announced a new rule as defined by Teague v. Lane, 489 U. S. 288 (1989), and the new rule does not come within Teague‘s exception for watershed rules fundamental to the integrity of the criminal proceeding.
I
Over 10 years ago, petitioner Robert Sawyer murdered Frances Arwood, a visitor in the New Orleans, Louisiana, residence petitioner shared with his girlfriend, Cynthia
Petitioner was convicted and sentenced to death for the crime by a Louisiana jury in September 1980. At issue in this case are remarks made by the prosecutor in his closing argument during the sentencing phase of the trial. The prosecutor first stated, after discussing the proof of aggravating circumstances under Louisiana law:
“The law provides that if you find one of those circumstances then what you are doing as a juror, you yourself will not be sentencing Robert Sawyer to the electric chair. What you are saying to this Court, to the people of this Parish, to any appellate court, the Supreme Court of this State, the Supreme Court possibly of the United States, that you the people as a fact finding body from all the facts and evidence you have heard in relationship to this man‘s conduct are of the opinion that there are aggravating circumstances as defined by the statute, by
the State Legislature that this is a type of crime that deserves that penalty. It is merely a recommendation so try as he may, if Mr. Weidner tells you that each and every one of you I hope can live with your conscience and try and play upon your emotions, you cannot deny, it is a difficult decision. No one likes to make those type of decisions but you have to realize if but for this man‘s actions, but for the type of life that he has decided to live, if of his own free choosing, I wouldn‘t be here presenting evidence and making argument to you. You wouldn‘t have to make the decision.” Tr. 982.
After emphasizing the brutal nature of the crime for which they had convicted petitioner, the prosecutor told the jury:
“There is really not a whole lot that can be said at this point in time that hasn‘t already been said and done. The decision is in your hands. You are the people that are going to take the initial step and only the initial step and all you are saying to this court, to the people of this Parish, to this man, to all the Judges that are going to review this case after this day, is that you the people do not agree and will not tolerate an individual to commit such a heinous and atrocious crime to degrade such a fellow human being without the authority and the impact, the full authority and impact of the law of Louisiana. All you are saying is that this man from his actions could be prosecuted to the fullest extent of the law. No more and no less.” Id., at 984.
Finally, the prosecutor emphasized again that the jury‘s decision would be reviewed by later decisionmakers:
“It‘s all [you‘re] doing. Don‘t feel otherwise. Don‘t feel like you are the one, because it is very easy for defense lawyers to try and make each and every one of you feel like you are pulling the switch. That is not so. It is not so and if you are wrong in your decision believe me, believe me there will be others who will be behind
you to either agree with you or to say you are wrong so I ask that you do have the courage of your convictions.” Id., at 985.
The Louisiana Supreme Court affirmed petitioner‘s conviction and sentence. State v. Sawyer, 422 So. 2d 95 (1982). This Court granted certiorari and remanded the case with instructions to the Louisiana Supreme Court to reconsider its decision in light of Zant v. Stephens, 462 U. S. 862 (1983). Sawyer v. Louisiana, 463 U. S. 1223 (1983). The Louisiana Supreme Court reaffirmed the capital sentence on remand, Sawyer v. Louisiana, 442 So. 2d 1136 (1983). His conviction and sentence became final on April 2, 1984, when we denied certiorari, Sawyer v. Louisiana, 466 U. S. 931. Petitioner sought state collateral relief, which was denied. Sawyer v. Maggio, 479 So. 2d 360 (La. 1985); Sawyer v. Maggio, 480 So. 2d 313 (La. 1985).
Petitioner then filed the federal habeas corpus petition now before us, raising a host of constitutional claims. Relevant here is petitioner‘s claim that the prosecutor‘s closing argument violated the
The District Court denied relief, concluding that the prosecutor‘s remarks were of a different character from those in Caldwell, and that there was no reasonable probability that the sentence would have been different in the absence of the comments. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 848 F. 2d 582 (1988). The panel held that the facts in this case were “a far cry from those in Caldwell,” in large part due to the absence of any judicial approval of the prosecutor‘s comments. Id., at 596. Following the panel decision, the Fifth Circuit granted rehearing en banc. Id., at 606.
We granted certiorari, 493 U. S. 1042 (1990), to resolve a conflict among the Courts of Appeals, see Hopkinson v. Shillinger, 888 F. 2d 1286 (CA10 1989), and now affirm.
II
We must address first whether, in relying on Caldwell, petitioner claims the benefit of a new rule, as defined by our decision in Teague. In Caldwell, we held that the
At the outset we note that the parties dispute whether Caldwell, even if its rule applies, could support any claim for relief in petitioner‘s case. The State emphasizes that the judge in this case, unlike Caldwell, see id., at 339, did not approve the prosecutor‘s argument, and that the remarks
Our review of the relevant precedents that preceded Caldwell convinces us that it is a new rule for purposes of Teague. On this point we are in accord with the Court of Appeals, as well as the other two Courts of Appeals that have addressed the question. See Clark v. Dugger, 901 F. 2d 908 (CA11 1990); Hopkinson v. Shillinger, supra. The rule of Teague serves to “validat[e] reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v. McKellar, 494 U. S. 407, 414 (1990). Thus, we have defined new rules as those that were not “dictated by precedent existing at the time the defendant‘s conviction became final.” Teague, supra, at 301 (plurality opinion). The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. This is but a recognition that the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.
Caldwell, of course, was not decided upon a clean slate. As the Court in Caldwell recognized, we had earlier ad-
Examination of our Eighth Amendment authorities that preceded Caldwell shows that it was not dictated by prior precedent existing at the time the defendant‘s conviction became final. In Caldwell itself we relied on Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion); Gardner v. Florida, 430 U. S. 349 (1977) (plurality opinion); and Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), in support of the result. We cited these decisions for the general proposition that capital sentencing must have guarantees of reliability, and must be carried out by jurors who would view all of the relevant characteristics of the crime and the criminal, and take their task as a serious one. Petitioner, too, cites these and other cases in support of the argument that Caldwell was
We do not doubt that our earlier Eighth Amendment cases lent general support to the conclusion reached in Caldwell. But neither this fact, nor petitioner‘s contention that state courts “would have found Caldwell to be a predictable development in Eighth Amendment law,” Brief for Petitioner 8, suffices to show that Caldwell was not a new rule. In petitioner‘s view, Caldwell was dictated by the principle of reliability in capital sentencing. But the test would be meaningless if applied at this level of generality. Cf. Anderson v. Creighton, 483 U. S. 635, 639 (1987) (“[I]f the test of ‘clearly established law’ were to be applied at this level of generality, [p]laintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights“).
It is beyond question that no case prior to Caldwell invalidated a prosecutorial argument as impermissible under the
From the point of view of a state court considering petitioner‘s claim at the time his conviction became final, Saffle, supra, at 488, there were in fact indications in our decisions that the Caldwell rule was not a requirement of the
Our opinion in Maggio v. Williams, 464 U. S. 46 (1983), provides more direct evidence that the rule of Caldwell cannot be described as dictated by existing law at the time petitioner‘s claim became final. In Williams we vacated a stay of execution in a case presenting a claim very similar to that in Caldwell. JUSTICE STEVENS’ opinion concurring in the judgment described at length the prosecutor‘s argument in that case, 464 U. S., at 53-54, one similar to the argument made in Caldwell. The Court, however, found that the prisoner‘s challenge to the prosecutor‘s statements “warrant[ed] little discussion.” 464 U. S., at 49. Although we stated that the failure to raise the claim of improper prosecutorial argument in an earlier habeas petition was “inexcusable,” we noted that the District Court in the second petition had given the claim “full consideration” under the “standard established in Donnelly v. DeChristoforo, 416 U. S. 637 (1974),” and had found that the prosecutor‘s closing argument “did not render Williams’ trial fundamentally unfair.” Id., at 49-50. Our
We note also that, when petitioner‘s conviction became final, there was some reason for doubt as to this Court‘s view concerning what became a major premise of Caldwell, that misleading prosecutorial comment might cause a “bias in favor of death sentences.” 472 U. S., at 330. At the time of petitioner‘s trial and appeal there was at least “some suggestion,” see Dugger v. Adams, 489 U. S., at 409, that comments tending to diminish the jury‘s sense of sentencing responsibility would skew the result toward leniency rather than a death sentence. See Dobbert v. Florida, 432 U. S. 282, 294, and n. 7 (1977) (Florida‘s change to a system in which jury‘s verdict was advisory might benefit defendants, as the jury “may have chosen leniency when they knew [the sentencing] decision rested ultimately on the shoulders of the trial judge, but might not have followed the same course if their vote were final“).
Petitioner places primary reliance on numerous state cases, decided prior to the finality of his conviction, that prohibited prosecutorial statements of the type later held to violate the
The flaw in this argument is that “the availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, supra, at 409. All of the cases cited by petitioner, with one arguable exception, are decisions of state law, and do not purport to construe the
One Louisiana case cited by petitioner disapproving prosecutorial comment on appellate review does discuss Eighth Amendment principles rather than relying solely on state law. Even in this case, however, the court cited Eighth Amendment cases only in its discussion of prosecutorial reference to the possibility of pardon. Its discussion of prosecutorial comment on appellate review, the issue before us here, referred to state-law rules. See State v. Willie, supra, at 1033 (La. 1982), cert. denied, 465 U. S. 1051. Petitioner also cites post-Caldwell Louisiana cases, which cite Caldwell and state cases interchangeably, and state that Caldwell did not change prior law in the State. See State v. Smith, 554 So. 2d 676, 685 (La. 1989); State v. Clark, 492 So. 2d 862, 870-871 (La. 1986); State ex rel. Busby v. Butler, 538 So. 2d 164, 173 (La. 1988). To the extent these cases reflect state-court recognition that general Eighth Amendment principles pointed toward adoption of a Caldwell rule, or that Caldwell
Petitioner appears to contend that state courts will recognize federal constitutional protections only if they are compelled to do so by federal precedent and the threat of federal habeas review. Since some state courts had recognized a principle similar to Caldwell‘s, this argument goes, the result in Caldwell must have been compelled by Eighth Amendment precedent. This argument is premised on a skepticism of state courts that we decline to endorse. State courts are coequal parts of our national judicial system and give serious attention to their responsibilities for enforcing the commands of the Constitution. It is not surprising that state courts, whether applying federal constitutional protections or seeking fair administration of their own state capital punishment law, would have taken care to exclude misleading prosecutorial comment. But this conscientious exercise of their powers of supervision and review could not dictate Caldwell as a principle of federal law under the
III
Under Teague, new rules may be applied in habeas corpus proceedings only if they come within “one of two narrow exceptions.” Saffle, 494 U. S., at 486. The first of these applies to new rules that place an entire category of primary conduct beyond the reach of the criminal law, Teague, supra, at 311 (plurality opinion), or new rules that-prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense, Penry, supra, at 330. This exception has no application here. The second Teague exception applies to new “watershed rules of criminal procedure” that are necessary to the fundamental fairness of the
Petitioner contends that the second Teague exception should be read to include new rules of capital sentencing that “preserve the accuracy and fairness of capital sentencing judgments.” Brief for Petitioner 30. But this test looks only to half of our definition of the second exception. Acceptance of petitioner‘s argument would return the second exception to the broad definition that Justice Harlan first proposed in Desist, but later abandoned in Mackey, under which new rules that “significantly improve the pre-existing fact-finding procedures are to be retroactively applied on habeas.” Desist v. United States, 394 U. S. 244, 262 (1969). In Teague, we modified Justice Harlan‘s test to combine the accuracy element of the Desist test with the Mackey limitation of the exception to watershed rules of fundamental fairness.
It is thus not enough under Teague to say that a new rule is aimed at improving the accuracy of trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also “‘alter our understanding of the bedrock procedural elements‘” essential to the fairness of a proceeding. Teague, supra, at 311 (plurality opinion) (quoting Mackey, 401 U. S., at 693).
The scope of the Teague exceptions must be consistent with the recognition that “[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” Teague, supra, at 309 (plurality opinion) (citing Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Chi. L. Rev. 142, 150 (1970)). The “costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.” Solem v. Stumes, 465 U. S. 638, 654 (1984) (opinion of Powell, J.). As we stated in Teague, because the second exception is directed only at new rules essential to the accuracy and fairness of the criminal process, it is “unlikely that many such components of basic due process have yet to emerge.” 489 U. S., at 313 (plurality opinion).
It is difficult to see any limit to the definition of the second exception if cast as proposed by petitioner. All of our Eighth Amendment jurisprudence concerning capital sentencing is directed toward the enhancement of reliability and accuracy in some sense. Indeed, petitioner has not suggested any Eighth Amendment rule that would not be sufficiently “fundamental” to qualify for the proposed definition of the exception, and at oral argument in this case counsel was unable to provide a single example. Tr. of Oral Arg. 17. In practical effect, petitioner asks us to overrule our decision in Penry that Teague applies to new rules of capital sentencing. This we decline to do.
At the time of petitioner‘s trial and appeal, the rule of Donnelly was in place to protect any defendant who could show that a prosecutor‘s remarks had in fact made a proceeding fundamentally unfair. It was always open to this petitioner to challenge the prosecutor‘s remarks at his sentencing proceeding, by making the showing required by Donnelly. See Dugger v. Adams, 489 U. S., at 410 (defendant whose trial and appeal occurred prior to Caldwell “could have challenged the improper remarks by the trial judge at the time of his trial as a violation of due process. See Donnelly v. DeChristoforo, 416 U. S. 637 (1974)“); Maggio v. Williams, 464 U. S., at 49-50 (discussing application of Donnelly to improper remarks at sentencing). Petitioner has not contested the Court of Appeals’ finding that he has no claim for relief under the Donnelly standard. And as the Court of Appeals stated: “[T]he only defendants who need to rely on Caldwell rather than Donnelly are those who must concede that the prosecutorial argument in their case was not so harmful as
Rather than focusing on the prejudice to the defendant that must be shown to establish a Donnelly violation, our concern in Caldwell was with the “unacceptable risk” that misleading remarks could affect the reliability of the sentence. See 472 U. S., at 343 (opinion of O‘CONNOR, J.). Caldwell must therefore be read as providing an additional measure of protection against error, beyond that afforded by Donnelly, in the special context of capital sentencing. See Darden v. Wainwright, 477 U. S. 168, 183-184, n. 14 (1986). The Caldwell rule was designed as an enhancement of the accuracy of capital sentencing, a protection of systemic value for state and federal courts charged with reviewing capital proceedings. But given that it was added to an existing guarantee of due process protection against fundamental unfairness, we cannot say this systemic rule enhancing reliability is an “absolute prerequisite to fundamental fairness,” 489 U. S., at 314, of the type that may come within Teague‘s second exception.
Discussions of the nature of Caldwell error from other contexts also support our conclusion. In Dugger v. Adams, supra, we held that failure to consider a Caldwell claim would not come within a “fundamental miscarriage of justice” exception to the doctrine of procedural default. Id., at 412, n. 6; see Murray v. Carrier, 477 U. S. 478 (1986). We rejected the dissent‘s contention that a fundamental miscarriage of justice had been shown in that “the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined.” Dugger, supra, at 412, n. 6. Similarly, in Williams, supra, JUSTICE STEVENS concluded his discussion of a Caldwell-type claim by stating: “I question whether it can be said that this trial was fundamentally unfair. See Rose v. Lundy, [455 U. S. 509,] 543, and n. 8 [(1982)] (STEVENS, J., dissenting).” 464 U. S., at 56. These cases, of course, involved different
Because petitioner seeks the benefit of a new rule that does not come within either of the Teague exceptions, his claim for habeas corpus relief is without merit. The judgment of the Court of Appeals is therefore
Affirmed.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, JUSTICE BLACKMUN joins as to Parts I-IV, and JUSTICE STEVENS joins as to Parts I-III, dissenting.
In his closing argument in the sentencing phase of Robert Sawyer‘s trial, the prosecutor emphatically argued to the jury that a sentence of death would be “merely a recommendation” and that “others” would be able to correct the decision if it turned out to be “wrong.” This argument misrepresented the scope of appellate review of capital sentences under Louisiana law.
The Court refuses to address Sawyer‘s Caldwell claim on the merits. Instead, it holds that Caldwell created a “new” rule within the meaning of Teague v. Lane, 489 U. S. 288 (1989), ante, at 234, and that Caldwell‘s protection against misleading prosecutorial argument is not a “‘watershed rul[e] of criminal procedure‘” essential to the fundamental fairness of a capital proceeding, ante, at 241 (quoting Saffle v. Parks, 494 U. S. 484, 495 (1990)). To reach this result, the majority
I
In Teague, the plurality declared that a case announces a new rule “if the result was not dictated by precedent existing at the time the defendant‘s conviction became final.” 489 U. S., at 301. This Term, the Court held that the “‘new rule’ principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v. McKellar, 494 U. S. 407, 414 (1990). Accord, Parks, supra, at 488 (quoting Butler, supra, at 414). I continue to regard the Court‘s effort to curtail the scope of federal habeas as inconsistent with Congress’ intent to provide state prisoners with an opportunity to redress “unlawful state deprivations of their liberty interests through a fresh and full review of their claims by an Article III court.” Butler, supra, at 427 (BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting). Even under the majority‘s standard, though, if the answer to a legal question is not “susceptible to debate among reasonable minds,” Butler, supra, at 415, or if existing precedent would have “compelled” state courts to provide relief at the time the defendant‘s conviction became final, Parks, supra, at 488, then the decision does not announce a “new” legal rule within the meaning of Teague. In such circumstances, a defendant is entitled to the retroactive benefit of the decision he seeks to invoke.
A
The “new rule” inquiry spelled out in Teague, Butler, and Parks confirms that Caldwell did not create a new rule. The roots of the Caldwell rule can be traced directly to this Court‘s Eighth Amendment decisions demanding heightened
The majority nonetheless insists that the “principle of reliability in capital sentencing” is framed at such a high “level of generality” that treating it as the relevant principle for determining whether Caldwell is new law would render Teague “meaningless.” Ante, at 236. This argument ignores the centrality of the Caldwell rule to reliability in capital sentencing. Caldwell error affects not just the consideration of some relevant sentencing factors, but the entire decisionmaking process itself. When a prosecutor misleadingly tells the jury that its verdict may be corrected on appeal, the prosecutor invites the jury to shirk its sentencing responsibility. The prosecutor essentially informs the jury that its verdict is less important because no execution will occur without the independent approval of higher authorities. To the extent
Some rules in capital proceedings do not contribute fundamentally to reliability; as to such rules, the majority‘s rejection of the reliability principle as too general may be apt. For example, the rule of Batson v. Kentucky, 476 U.S. 79 (1986), prohibiting the state from exercising peremptory challenges in a racially discriminatory manner does not have a fundamental impact on the accuracy—as opposed to the integrity—of the criminal process. See Allen v. Hardy, 478 U.S. 255, 259 (1986). The Caldwell rule, though, is a prerequisite to reliability in capital sentencing. Not unlike the right to counsel, the right to a jury that understands the gravity of its task is essential to the vindication of the other sentencing guarantees. Meticulous presentation of evidence and careful instruction on the law are of minimal value to a defendant whose jury has been led to believe that its verdict is of little or no consequence. The majority‘s observation that Caldwell‘s prohibition against misleading prosecutorial argument is specific thus does not undermine Sawyer‘s assertion that it was dictated by the Eighth Amendment‘s general insistence on reliability in capital sentencing.
B
The majority‘s assertion that “there were in fact indications in our decisions that the Caldwell rule was not a requirement of the Eighth Amendment,” ante, at 237, is unsupported by the cases on which the majority relies. In California v. Ramos, 463 U.S. 992 (1983), the defendant had challenged California‘s requirement that trial courts instruct capital juries about the Governor‘s power to commute life sentences. In rejecting the
That the Mississippi Supreme Court in Caldwell erroneously read Ramos so broadly does not, as the majority argues, “sugges[t] that prior to Caldwell our cases did not put other courts on notice that the Eighth Amendment compelled the Caldwell result.” Ante, at 237. Some courts will misconstrue our precedents notwithstanding their clarity, see, e. g., McKoy v. North Carolina, 494 U.S. 433, 439-441 (1990) (state court failed to adhere to clear direction of Mills v. Maryland, 486 U.S. 367 (1988)), and the mere fact that a single court adopts a position contrary to the one dictated by our precedents does not confirm that the case law was unclear. Indeed, if that were the standard, almost every Supreme Court decision would announce a new rule, as we
Ironically, the majority regards one errant decision by the Mississippi Supreme Court as evidence of uncertainty and yet dismisses as irrelevant to its “new rule” inquiry the States’ near-unanimous rejection of Caldwell-type prosecutorial arguments prior to Caldwell, supra, at 333-334, and n. 4 (collecting cases). Even the Mississippi Supreme Court declared that “[a]ny argument by the state which distorts or minimizes the solemn obligation and responsibility of the jury is serious error.” Hill v. State, 432 So. 2d 427, 439 (1983) (refusing to rule on defendant‘s Caldwell-type claim, however, because of the absence of a contemporaneous objection). State decisions, even if they are not premised on federal law, play a part in determining the status of constitutional protections under the Eighth Amendment. That Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion), and this Court has often looked to the laws of the States as a barometer of contemporary values, see, e. g., Penry v. Lynaugh, 492 U.S. 302, 330-331 (1989); Ford v. Wainwright, 477 U.S. 399, 408-409 (1986). Of course, the recognition of a right under state law does not translate automatically into the existence of federal constitutional protection. But a consensus among States regarding an essential ingredient to “a fair trial in the sentencing phase,” State v. Berry, 391 So. 2d 406, 418 (La. 1980) (opinion on rehearing), is evidence that the right is cognizable under the Federal Constitution. The States’ strong pre-Caldwell condemnation of misleading prosecutorial arguments regarding the scope of appellate review
Moreover, the majority‘s contention that the state courts based their decisions solely on “state common law,” ante, at 239, assumes that States’ capital punishment jurisprudence has evolved independently of our Eighth Amendment decisions. But state decisions regarding capital sentencing procedures—even those that do not explicitly mention federal law—are surely informed by federal principles and should thus be accorded some weight in discerning the scope of federal protections. Only an especially condescending federalism would protect States from retroactive application of federal law by dismissing state decisions concerning capital sentencing as irrelevant to the lineage of the federal law.1
C
This Court‘s approach to improper prosecutorial comments in Donnelly v. DeChristoforo, 416 U.S. 637 (1974), also supports a finding that Caldwell did not establish a new rule. In Donnelly, the prosecutor hinted that the defendant might have been willing to accept a lesser penalty for his crime, implicitly suggesting that the defendant had acknowledged his guilt. The Court held that this comment did not violate the
Donnelly was decided prior to the Court‘s explicit recognition in the cases following Gregg that the
The majority‘s contrary conclusion rests on a misunderstanding of the relationship between Caldwell and Donnelly. The majority endorses the Fifth Circuit‘s view that “[t]he only defendants who need to rely on Caldwell rather than Donnelly are those who must concede that the prosecutorial argument in their case was not so harmful as to render their
The majority‘s claim that Maggio v. Williams, 464 U.S. 46 (1983), provides more “direct evidence” that the rule of Caldwell was not clear at the time petitioner‘s conviction became final, ante, at 237, is likewise unconvincing. In Williams, the Court vacated the Fifth Circuit‘s entry of a stay in a capital case because Williams’ contentions were “insubstantial.” 464 U.S., at 52. Williams alleged, inter alia, that the prosecutor‘s closing argument had “elicited a decision based on passion rather than reason.” Id., at 49. Some, but not all, of the prosecutor‘s argument referred to the scope of appellate review. See id., at 53-54 (STEVENS, J., concurring in judgment). When the motion to vacate the stay came to this Court, the sole issue was whether there was “a reasonable probability” that four Members of the Court would vote to grant certiorari. Id., at 48 (internal quotation marks omitted). In view of Williams’ prior unsuccessful efforts to secure relief on similar claims, the Court applied “a strict standard of review” to Williams’ application. Id., at 55 (STEVENS, J., concurring in judgment). The Court did not discuss the
II
Even if Caldwell established a “new rule,” that rule nonetheless is available on federal habeas because it is a rule “without which the likelihood of an accurate [verdict] is seriously diminished,” Teague, 489 U.S., at 313 (plurality opinion). The devastating impact of prosecutorial argument that diminishes jurors’ sense of responsibility is revealed in the state-court decisions condemning such argument. See, e. g., Fleming v. State, 240 Ga. 142, 146, 240 S. E. 2d 37, 40 (1977) (holding that “this type of remark has an unusual potential for corrupting the death sentencing process“); State v. Berry, 391 So. 2d, at 418 (“If the reference conveys the message that the jurors’ awesome responsibility is lessened by the fact that their decision is not the final one, or if the reference contains inaccurate or misleading information, then the defendant has not had a fair trial in the sentencing phase, and the penalty should be vacated“); Ward v. Commonwealth, 695 S.W. 2d 404, 408 (Ky. 1985) (holding that “the prosecutor clearly sought to divert from the minds of the jurors their true responsibility in this case by implying that the ultimate responsibility would fall to the trial judge, this court, [or] other appellate courts . . . . This is clearly an error of reversible magnitude“); Hill v. State, 432 So. 2d, at 439 (“Any argument by the state which distorts or minimizes this solemn obligation and responsibility of the jury is serious error. . . . [I]n a death penalty case a jury should never be given false comfort that any decision they make will, or can be, corrected“); Wiley v. State, 449 So. 2d 756, 762 (Miss. 1984) (“While a jury is not literally ‘the hangman,’ only they [sic] may supply the hangman‘s victims. All notions of justice require that the jurors as individuals, and as a body, recognize and appreciate the gravity of their role“).
The majority‘s underestimation of Caldwell‘s importance rests on the defect discussed above, supra, at 252-253, namely, the view that a Caldwell error will not render a trial fundamentally unfair.3 The majority‘s vague suggestion that Caldwell serves as “a protection of systemic value for state and federal courts charged with reviewing capital proceedings,” ante, at 244, does not disguise its inability to identify, in concrete terms, a situation in which Caldwell error occurs and yet the capital proceeding can be described as fun-
Nor does Dugger v. Adams, 489 U.S. 401 (1989), undermine Caldwell‘s status as a fundamental rule. The issue there was whether a particular defendant who had failed to object to misleading prosecutorial argument at sentencing had suffered sufficient prejudice to justify overlooking a state procedural bar. 489 U.S., at 406. The Court‘s denial of relief rested largely on the importance of the State‘s “interest in having the defendant challenge a faulty instruction in a timely manner so that it can correct the misstatement.” Id., at 409; see also Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The stringent standard for excusing procedural defaults against a particular defendant is premised on “the dual notion that, absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel, and that defense counsel may not flout state procedures and then turn around and seek refuge in federal court from the consequences of such conduct.” Reed v. Ross, 468 U.S. 1, 13 (1984) (citations omitted).
No such concern with enforcing state procedural rules against a particular defendant is at stake when we decide whether to apply new constitutional principles retroactively to all federal habeas cases. Our inquiry instead focuses on the importance of the new principle generally to the fairness and accuracy of the proceedings in which that principle went unobserved. Whereas the Dugger inquiry focuses on the general necessity of a rule to ensure an accurate verdict in all cases, the Court will overlook a clear procedural default only if the error has “probably resulted in the conviction of one who is actually innocent,” 489 U.S., at 412, n. 6 (internal quotation marks omitted). The strict procedural default rule is designed in part to protect the State‘s interest—unique in
Finally, the fundamental importance of Caldwell cannot be denied on the ground that “it is ‘unlikely that many [new rules] of basic due process [essential to accuracy and fairness] have yet to emerge.‘” Ante, at 243 (quoting Teague, 489 U.S., at 313 (plurality opinion)). The majority cannot bind the future to present constitutional understandings of what is essential for due process. See, e. g., Hurtado v. California, 110 U.S. 516, 530-531 (1884). We would rightly regard such a statement as an expression of hubris were we to discover it in a volume of the United States Reports from 100, 50, or even 20 years ago, at which time, incidentally, this Court, “[i]n light of history, experience, and the present limitations of human knowledge,” rejected the argument “that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.” McGautha v. California, 402 U.S. 183, 207 (1971) (footnote omitted); cf. Gregg, 428 U.S., at 189 (joint opinion of Stewart, Powell, and STEVENS, JJ.) (”Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action“). Moreover, the notion that we have already discovered all those procedures central to fundamental fairness is squarely inconsistent with our Eighth Amendment methodology, under which “bedrock” Eighth Amendment principles emerge in light of new societal understandings and experience. See, e. g., Coker v. Georgia, 433 U.S. 584, 593-597 (1977) (plurality opinion).
III
The Court‘s refusal to allow Sawyer the benefit of Caldwell reveals the extent to which Teague and its progeny unjustifi-
The state prosecutor in this case surely could not claim a good-faith belief in the legitimacy of the conduct proscribed in Caldwell—misleading and inaccurate argument designed to minimize the jury‘s sentencing responsibility. Indeed, respondent seems to concede as much, framing the State‘s reliance interest, beyond its general interest in the finality of its convictions, as the right to have “misleading prosecutorial remarks . . . reviewed under the fundamental fairness standard of due process” rather than the Eighth Amendment. Brief for Respondent 16. This purported reliance interest depends on the erroneous view that Caldwell error could survive review under the Due Process Clause. See, supra, at 257. But even granting a distinction in the degree of scrutiny applied by Donnelly and Caldwell, the State‘s claimed interest in having its intentional misconduct reviewed under a less demanding standard is hardly worth crediting.
No such balancing of the competing concerns occurs today. The Court instead simply elevates its preference for finality in state proceedings over Congress’ commitment “to provide a federal forum for state prisoners . . . by extending the habeas corpus powers of the federal courts to their constitutional maximum,” Fay v. Noia, 372 U.S. 391, 426 (1963). This raw preference for finality is unjustified. Although a State undoubtedly possesses a legitimate interest in the finality of its convictions, when the State itself undermines the accuracy of a capital proceeding, that general interest must give way to the demands of justice.
IV
The jury that sentenced Sawyer to death was deliberately misled about the significance of its verdict. That Sawyer
I dissent.
V
Even if I did not believe that Sawyer was entitled to federal habeas review of his Caldwell claim, I would nonetheless vacate his death sentence. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment. Gregg v. Georgia, 428 U.S., at 231 (MARSHALL, J., dissenting).