*1 STRINGER BLACK, COMMISSIONER, MISSISSIPPI CORRECTIONS,
DEPARTMENT OF et al. 9, 1991 Argued 9, 1992 No. 90-6616. December March Decided *2 Kennedy, J., opinion Court, Rehnquist, delivered the in which J., White, Blackmun, Stevens, O’Connor, JJ., C. joined. Sou- *3 ter, J., dissenting opinion, Thomas, JJ., in joined, filed which Scalia and post, p. 238. Rose,
Kenneth J. of Court, S. by appointment for cause With him the brief argued petitioner. on were James W. and Louis D. Bilionis. Craig Jr., White,
Marvin L. of Attorney Assistant General Mis the cause for With him on sissippi, argued respondents. Mike Moore, brief was General.* Attorney Kennedy delivered the of opinion the Court. Justice The death sentence of the in this case was petitioner de- creed by judgment became final before we decided urging *Briefs of amici curiae affirmance were filed for State of by Morales, Attorney Texas et Dan Texas, Pryor, al. of General Will First General, Keller, Attorney Mary Assistant Deputy Attorney General, F. Hodge, Parker, and P. Margaret Michael Dana E. Griffey, and Portman Attorneys General, by Attorneys Assistant and for General their re spective as Alabama, States follows: James H. Evans of Grant Woods of Arizona, California, Lungren Linley Indiana, Daniel of E. Pearson of Kentucky, Missouri, Cowan of Frederic J. William B. Webster of Marc Montana, Papa Nevada, Racicot of Sue Del Lacy Thornburg Frankie of H. Carolina, Oklahoma, of Loving Preate, Jr., North Susan B. of D. Ernest Pennsylvania, Mary Terry of Virginia, Joseph Meyer Sue and B. Wyoming; Legal and the Criminal Justice Foundation Kent S. Scheidegger. (1988), Maynard Cartwright, or 486 U. S. Clem-
either
v.
(1990).
petitioner
Mississippi,
The
ar-
Under death “capital designated by murder.” for murders statute 1991). 97-3-19(2) § killing (Supp. A Miss. Code Ann. robbery burglary included within that cate- course *4 jury Following capital gory. the in the conviction, murder sentencing phase Mississippi system proceeds capital For a who has been convicted of case. defendant jury the find at sentence, to must murder receive statutory eight aggravating factors, and then least one of or factor factors are must determine that the any. outweighed by mitigating circumstances, the if not §99-19-101. capital jury petitioner guilty of murder in the
The found sentencing phase jury robbery. found In the the course of statutory The three factors. that there were jury instructions, the as defined in factors statutory wording, following part were: the for the most contemplated that life would be The “1. Defendant intentionally capital was com- the murder taken and/or engaged in an at- the Defendant and that mitted robbery; pecu- tempt and was committed for to commit a niary gain. pur- capital for murder was committed the The
“2. preventing pose avoiding the and lawful or detection Stringer, the Defendant. R. arrest of James especially capital atro- heinous, The murder was “3. Respondents Brief for 4. or cious cruel.” not the in did further define court its instructions trial meaning the third factor. affirmed. review the
On direct Stringer respect supra. State, sentence, With to v. pas- “imposed court under the influence of it was not found arbitrary prejudice any id., at “the sion, factor,” 478; or other statutorily fully jury’s finding supported] re- evidence quired aggravating 479; and the death circumstances,” imposed disproportionate to sentences in sentence was Petitioner’s conviction became final when cases, other ibid. Stringer February 19,1985. Mis- we denied certiorari on sissippi, relief was 1230. Postconviction denied S. Stringer in the 485 So. 2d state courts. proceedings begun peti- to us from when This case comes petition his federal habeas tioner filed first United District of District Court the Southern Missis- States sippi. petitioner’s The relevant claim contention that the aggravating factor found third and considered sentencing proceeding, “heinous, atrocious cruel” factor, was so render arbitrary, proscrip- violation of Amendment’s punishment. tion cruel and unusual The District Court subject procedural and, found the claim bar the alter-
227 Scroggy, Stringer v. 675 it had no merit. native, ruled (1987). Supp. 356, F. procedural question, the bar
Without consideration
finding
Appeals
no constitu
merits,
affirmed on the
Court
aggra
infirmity
jury’s
third
consideration
tional
vating
factors were un
factor because two other
1988).
(CA5
challenged. Stringer
Jackson, 862 2d
v.
F.
Appeals
we had not decided
affirmed,
When the Court of
opinion
Mississippi,
and we later vacated its
Clemons v.
(1990).
remand
consideration.
I—i I—l
petition
exceptions,
Subject
after a
a case decided
two
may
final
not be the
er’s
and sentence became
conviction
corpus
predicate
relief unless the decision
for federal habeas
existing
judgment
by precedent
when
was dictated
question
McKellar,
v.
A Maynard and an- A determination whether Clemons begin Godfrey Georgia, 446 nounced a new rule must with Godfrey In we invalidated a death sen- U. S. 420 upon circumstance that the kill- tence based “outrageously wantonly ing vile, or horrible and inhu- Id., at 428-429. The formulation was deemed man.” inviting arbitrary capricious application imprecise, and and penalty in violation of Amendment. analysis applied reasoning May- We later the same and Maynard nard. In circumstance under an applied killing “especially Oklahoma statute to a that was found heinous, atrocious, cruel.” U. 359. We language gave guidance more than did the statute in no Godfrey, and we invalidated the formulation. 486 Oklahoma S., at 363-364. argue
In the case now before us does not Maynard appears To itself announced a new rule. us this Godfrey Maynard wise concession. did indeed involve language. mistake to somewhat different But it would be a Godfrey vagueness ruling of was limited conclude that the applying language precise before us in that case. Maynard, language Godfrey we did before us in supra, ground.” “brea[k] McKellar, at 412. Butler v. new purposes Teague, Maynard controlled therefore, for was, Godfrey, a new rule. it did not announce
B *7 that it was a is the State’s contention Of more substance Maynard holdings Godfrey apply to the the and new rule to argues process. Mississippi sentencing The this must State petitioner’s open question sentence be- an when have been acknowledge yet We undecided. final, came with Clemons aggravating use factors under of there are differences capital sentencing system Mississippi use in and their the system Godfrey. Georgia view, those however, In our the in deny- a basis for been considered differences could not have petition- existing precedent ing light time the in of relief the Indeed, to the extent that er’s sentence became final. application significant, they suggest that differences are sentencing process Mississippi Godfrey principle to the the Georgia system. application to the from its follows, a fortiori, sentencing principal schemes between the difference Georgia Mississippi Mississippi is we have is what that Georgia “weighing” See Clem while not. termed Dugger, Mississippi, 745; Parker ons v. jury Mississippi law, after has 308, 318 Under U. S. capital guilty and found the a defendant murder found statutory aggravating factor, it must at least one existence of mitigat aggravating against weigh the factor or factors the By Georgia ing the must find the contrast, evidence. imposing aggravating the factor before existence of one spe penalty, have no factors such death but jury’s a defendant who whether cificfunction in decision penalty eligible death should for the has been found be receive it under all the circumstances of the Instead, case. “ Georgia ‘[i]n making under scheme, the decision as to penalty, the factfinder takes into consideration all cir- guilt-innocence cumstances before it from both the and the phases of the trial. These circumstances relate both Stephens, to the offense and the defendant.’” Zant v. (1983)(quoting response Georgia question). Court to our certified Mississippi weighing only gives
That emphasis is a State requirement factors be defined with degree precision. By express language some in Zant we open possibility left that in a State infection process with might an invalid factor re- quire invalidation of the death Id., sentence. at 890. Al- though we later held Clemons v. that under appellate reweigh such circumstances a state court could mitigating circumstances or undertake analysis, suggested harmless-error we have not permits appellate Amendment the state court in a *8 weighing State to affirm a death sentence without a thor- ough analysis played of the role an invalid factor sentencing process. require appellate scrutiny import
We close of the and ef fect of implement invalid factors to the well- requirement established Amendment of individual sentencing ized penalty determinations in death cases. See supra, Eddings Zant, at 879; Oklahoma, v. 104, S. (1982); (1978) 110-112 Ohio, Lockett v. 586, 438 601-605 (plurality opinion); Louisiana, Roberts v. 431 U. 633, S. 636- (1977);Gregg (1976) Georgia, (joint 428 U. S. opinion JJ.); of Stewart, Powell, and Stevens, Woodson v. (1976) North ion). (plurality Carolina, opin 428 U. S. 280, 303-304 appellate In order for a state court to affirm a death sentence after the sentencer was instructed to consider an invalid factor, the court must determine what the sentencer would have done absent the factor. Otherwise, the defend- deprived precision ant is that individualized consider- Godfrey Maynard ation demands under the line of cases. principles appellate These review were illustrated Barclay Florida, our decision in Flor- U. S. 939 Mississippi, weighing Dugger, ida, like is a Parker v. supra, judge imposes and the trial the sentence based upon jury. Barclay In recommendation from the the sen- judge tencing relied on an factor that was not legitimate sentence, one under state law. We affirmed the but because it clear that the Florida was Court had determined that the sentence would have been the same sentencing judge given weight had the no to the invalid fac- (plurality opinion); at 958 tor. See 973-974 concurring judgment). contrary J., Therefore, (Stevens, suggestion, post, at 245-247, dissent’s the fact that principal opinions Barclay weight both focused on the gave sentencer to an invalid factor demon- reviewing may strates that a court in a State assumption make the automatic that such a factor has not weighing process. may short, infected the not make assumption Stringer the automatic claims the Missis- sippi Supreme made in this case. Court general requirement
In view of the in- well-established sentencing specific requirement dividualized and the more improper that a sentence based on an factor be reassessed proper given, with care to assure that consideration was arguable support there was no basis view of the Court Appeals petitioner’s that at the time sentence became final Mississippi Supreme permitted apply a rule any supported by of automatic affirmance to death sentence multiple aggravating factors, when one is invalid. *9 respect reviewing
With to the function of a state court in determining upheld despite whether the can be improper aggravating use of an factor, the be- difference nonweighing tween a and a is State State not one Appeals thought, Stringer of “semantics,” as the of importance. Jackson, 862 F. 2d, 1115,but of critical In a nonweighing long body sentencing so as the finds at aggravating one least valid fact it factor, also finds proc- an invalid does factor not infect the formal deciding appropriate penalty. ess whether death is an As- suming by appellate a determination the state court jury’s invalid factor would not have made a difference to the resulting determination, there is no constitutional violation stage from the introduction of the invalid factor in an earlier proceedings. sentencing body But when told weigh reviewing may an invalid decision, factor its court not assume it would have made no if difference the thumb had been removed from death’s side of the scale. When the weighing process skewed, itself has been constitutional analysis reweighing appel- harmless-error at the trial or guarantee level late suffices to that the defendant received principle emerges an individualized sentence. This clear any single require, post, from case, as the dissent would long authority setting 243-247, but from our line of forth precise the dual constitutional criteria of and individualized sentencing. principal Thus, the difference between the sen- tencing systems Georgia, Mississippi the different role played States, factors the two underscores applicability Godfrey Maynard Mississippi system.
Although argument it made no similar itself, Clemons the State contends now that before Clemons was reason- requirement able to believe there was no constitutional precision define factors with in system. points It to the fact that in order to find guilty capital a defendant murder it must find that the precise statutory crime fits within the narrow and definition Any of that offense. additional consideration of during sentencing phase, factors under view, this is of no significance requisite constitutional because the differentia- *10 purposes penalty has taken among for death defendants tion guilt. respect jury’s during with place deliberation the Phelps, 484 in our decision cites The State Lowenfield (1988), analysis. support Lowenfield, But of its applicable arising and does here law, is not under Louisiana imposed a new rule. not indicate that Clemons penalty eligible person the death In Louisiana, a is not category guilty first-degree more homicide, a unless found category S., general 484 U. of homicide. narrow than the first-degree guilty if homicide A defendant is at 241. killing five statu- jury fits one of that the finds the Louisiana (quoting Ann. tory Stat. La. Rev. criteria. See (West 1986)). determining § that a defendant After 14:30A jury next must guilty first-degree a Louisiana murder, statutory aggravating least one decide whether there is at any mitigating considering circum- and, after circumstance appropriate. penalty is determine whether stances, Mississippi process, in Louisi- the S., at 242. Unlike aggravating against weigh required jury is not ana the mitigating factors. argued sen petitioner his death Lowenfield, aggravating factor found invalid because
tence was
already
duplicated
had found
by
jury
the elements
rejected
first-degree
determining
We
homicide.
there was a
consequence,
sen
the Louisiana
argument
that, the class of death-
tencing procedures
narrow
had failed to
predictable
We observed
eligible
manner.
in a
defendants
‘aggravating
is not an end
“[t]he use of
circumstances’
narrowing
genuinely
the class of
a means of
itself,
but
channeling
jury’s
thereby
persons
dis
death-eligible
may
narrowing
why
function
reason
this
We see no
cretion.
sentencing
findings
performed
at either
not be
phase.”
guilt
Id.,
244-246. We
phase
the trial or
Texas
compare
with the
scheme
the Louisiana
went on to
narrowing
at the
required
occurs
which the
under
scheme,
(discussing
Texas, 428 U. S.
guilt phase.
Jurek v.
at 246
Id.,
(1976)).
We also contrasted the Louisiana scheme with
Georgia
and Florida
schemes. 484 U.
at 246.
*11
sentencing
premise
The
that
State’s
the
comparable
scheme
The
is
to Louisiana’sis in error.
Missis
sippi Supreme Court itself has stated in no uncertain terms
exception
that, with the
of one distinction not relevant here,
system
sentencing
operates
its
in the same manner as the
system;
subject
Florida
Florida,
course, is
to the rule
forbidding
appellate
automatic affirmance
the state
court
aggravating
upon.
if an invalid
factor is
In
relied
consider
ing Godfrey
claim based on the same factor at issue here,
Mississippi Supreme
Court considered decisions of the
Supreme
appropriate
Florida
to be
Court
the most
source of
guidance.
(1983),
State,
576,
Gilliard v.
428
2d
So.
586
Mississippi Supreme
compared
Court
the claim before it
(Fla. 1979),
to the claim in
State,
Dobbert v.
As a matter of federal apply Godfrey’s sissippi Supreme dictates to its sentencing capital procedure is Indeed, so evi- correct. not mentioned in Clemons. dent that the issue was even challenge, granted, There for and the State did we took proposition factors that if a State uses eligible penalty deciding or who shall be who *12 penalty, cannot factors which it use shall receive death guide practical the sentencer’s discretion. a matter fail to (opinion Blackmun, J., of Clemons, n. concurring joined Brennan, Marshall, JJ., and Stevens, dissenting part) (noting part that the unconstitutional- implicit ity vague aggravating in the is Court’s factor opinion). Mississippi ignore to
Even were we free way understanding its own law we works, of Court’s reject suggestion could form the would that Lowenfield argument Godfrey apply to does not basis for an Missis- require sippi. Although precedents do not the use of our permitted they not State have factors, use of factors are decisive to factors which vague aggravating vague imprecise factor content. A determining purpose employed whether defend- for penalty eligible is fails to channel the sen- ant the death vague aggravating factor used in the A tencer’s discretion. weighing process worse, for it creates the risk is in a sense deserving as more that the will treat the defendant by relying penalty might otherwise be he than illusory upon Because the an circumstance. the existence of weighing process vague aggravating factor use of a possibility of bias not of randomness but also creates the penalty, we cautioned in Zant that there in favor of the death weighing process might requirement has when the be a vague must with a factor the death sentence been infected be invalidated. suggests proscription
Nothing that the in Lowenfield apply capital to a sen- factors does tencing system Mississippi’s. did not in- like Lowenfield statutory aggravating ambig- was volve a claim that a factor Godfrey, to which it did not find uous, and its relevance Godfrey, necessary following line of cases from cite, to or the slight at best. reliance on to We also note that State’s Lowenfield Godfrey’sapplication anticipated that it could not have show all, For after Lowenfield, to is somewhat odd. petitioner’s decided when the conviction already fiction for the to contend were final. It is a State on a 1988 This is not that in 1984its courts relied decision. rely say announced that a could not on a decision State petitioner’s and sentence became final to after a conviction the merits. It could. Insofar as our defeat his claim on good-faith jurisprudence in- reasonable, rule “validates new terpretations existing precedents,” McKellar, Butler v. may little cause to 414, however, the State have S.,U. rely deciding petitioner upon complain to allow a if in *13 precedents federal courts look to those decision the any which the courts knew at the relevant time. state the anachronism inherent in the event, we need not dwell on argument because, concluded, as we have State’s Lowenfield concluding provide a that it was that case does not basis for system. apply Godfrey Mississippi a new rule to argues application that of God- The State next Clemons’ by precedent frey Mississippi not have been dictated to could prior that the Fifth Circuit concluded because to Clemo'ns Mississippi. Thigpen, Godfrey apply Evans v. did not (1987);Johnson v. denied, S. 1033 239, 809 F. 2d cert. (1986), Thigpen, denied, 480 U. S. cert. 806 F. 2d argument addressing we of this the merits Before has not been Fifth the rationale of the Circuit reiterate that by Mississippi Supreme a adopted Court, which, ás state Teague beneficiary primary doctrine. court, is the recognized Supreme it is has The g., by Godfrey. 2d v. 464 So. See, e. Mhoon bound (1985) capital Godfrey, (requiring, sentenc on based given narrowing “heinous, of the ing jury construction be factor). cruel” or atrocious our pre-Clemons relevant to views are Circuit’s
The Fifth dispositive. supra, inquiry, but not Butler, see reasonable purpose to validate rule doctrine is of the new precedents. existing Reasonableness, in interpretations of objective many standard, an contexts, is other this as was dictated whether Clemons the ultimate decision reading objective relevant precedent an is based on argument is that the short the State’s cases. The answer Thigpen mistake in Evans a serious Fifth made Circuit ignored Thigpen. the Mis- The Fifth Circuit and Johnson sissippi its law and characterization of own Court’s Mississippi aggra- significance that in to the fact accorded no phase capital weighing vating of a central in the factors are explained, proceeding. when these sentencing have As we precedents significance, proper accorded their facts are prin- yield Maynard a well-settled Clemons even before imprecise factor ciple: Use very at the weighing process sentence and invalidates analysis or re- requires harmless-error constitutional least system. judicial the state Appeals and re- the Court decision of We reverse the proceedings this with consistent for further mand the case opinion.
It so ordered. *14 238 Souter, with whom Justice Scalia
Justice Jus- tice Thomas join, dissenting.
Today
jurist
that no reasonable
could have
the Court holds
Stephens,
years
two
after Zant v.
462
1985,
believed
(1983),
holding
apply
of that case would
to a so-
862
that the
“weighing”
maintains,
called
on the con
State.
Court
weighing
trary, that in 1985it was obvious that a sentencer’s
vague aggravating
deprives
of a
circumstance
a defendant of
may
sentencing.
be obvious after
individualized
While
(1988),
Maynard
Cartwright,
I
I Teague principle Lane, first Under the announced v. (1989), seeking corpus prisoner habeas relief in U. S. 288 generally cannot benefit from a new rule an- federal court prisoner’s conviction became final, nounced after the (plurality opinion), exhausting ap- is, after all direct (1989). peals, Penry Lynaugh, A 302, see S. “if decision announces a new rule the result was not dictated existing precedent at the time the defendant’s conviction (em- Teague,supra, (plurality opinion) became final.” at 301 omitted). given phasis The result case is not dictated by precedent “susceptible among if it debate reasonable (1990), put McKellar, Butler v. 494 U. S. minds,” or, differently, jurists may disagree,” Sawyer if “reasonable Smith, 497 U. S. Teague purposes
Petitioner’s conviction became final for February 19,1985. on He now claims the benefit of the rule that an Amendment violation occurs when a sen- vague aggravating in a tencer State considers even if the sentencer has also found the exist- circumstance, ence of at least one other circumstance that is otherwise Because this neither nor infirm. February position before will 19,1985,1 never endorsed that pre-1985 decisions, I-A, Part infra, discuss the relevant
239 implicitly post-1985 least, at announced that, the decisions Finally, petitioner I will Part I-B. invokes, infra, rule the pre-1985 deci- enquire was the rule dictated whether this Part II. sions, infra,
A determining apposite start the law before 1985 cases The (1980). Godfrey Georgia, the 446 420 Under with given Georgia sentencing life sen- scheme, a is a defendant jury more circum- unless finds one or tence the jury that, circum- Once the does stances. jury longer play is to no the instructed role: stances sen- should receive a death whether the defendant determine aggravation by considering in in and all the evidence tence weigh any aggra- jury mitigation. to is not instructed The mitigating vating against circumstances. circumstances jury Godfrey, Georgia had a death verdict on the returned just strength the circumstance, that one wantonly “outrageously vile, horrible or murder ' “[a] (plurality opinion). Saying Id., inhuman.” fairly sensibility categorize ordinary person almost could wantonly ‘outrageously every horrible and vile, murder as ” held circum- id., 428-429, this that this inhuman,’ Court any arbitrary impose the failed “restraint on to stance capricious sentence,” at 428. Ac- id., infliction of death cordingly, Georgia’s sentencing applied, scheme, violated way same as the scheme Amendment (1972): Georgia, 408 it down in Furman v. U. S. 238 struck “provide meaningful distinguishing basis failed many imposed [the penalty] few cases which from (internal quota- at 427 in which it is cases not.” 446 U. omitted). marks tion (1983), Godfrey Stephens,
After came Zant v. 462 U. 862 S. arising jury’s Georgia from a death verdict on a show- based ing aggravating circumstances, of several one which was respondent history of had “a substantial assaul- serious Shortly respond- tive criminal convictions,” at 866. after Georgia, sentencing, Supreme a differ ent’s history” held that the “substantial circumstance left case, ent in a as to whether or “a wide latitude of discretion penalty,” rendering impose a death sentence upon strength history” imposed of the “substantial cir under alone unconstitutional Furman. Arnold cumstance 2d 534, 541, S. E. Ga. Georgia nevertheless refused to vacate Court of holding adequately supported by Stephens’ sentence, *16 unchallenged, aggravating Stephens other, circumstances. 261-262, 261, 263, 227 S. E. 2d State, 237 Ga. cert. (1976). agreed, holding This 986 Court denied, U. S. Godfrey distinguishable case, because, to be in that the sin gle aggravating failed to narrow the class of circumstance penalty, required by persons eligible as the for Stephens, Eighth Amendment, S., 462 U. at while in the remaining aggravating properly discharged circumstances vagueness narrowing obligation, id., at 879. The of one among aggravating circumstances was therefore held several adequate to be and the scheme itself under Fur irrelevant, long mandatory as it included man, 888-889, so appellate any disproportionality review for arbitrariness or stemming source, id., from some other at 890. pre-1985 Barclay Florida,
The last relevant decision is (1983). schéme, The Florida like the one Georgia, requires impose the sentencer to a life sentence if aggravating present. But, no circumstances unlike finds Georgia, Florida is a in which the sentencer aggravating one or more exist who finds that circumstances by weighing aggravating must determine Barclay, judge imposed mitigating had circumstances. finding after several circum- death sentence petitioner of which was that the had a criminal stances, one recognize 944-945, which Florida did record, id., at law id., circumstance, as an at 946. This Court held Eighth resulting death sentence did not violate the Stephens sentence in same Amendment, for the reason remaining aggravating circumstances satisfied did not: the requirement. narrowing id., Amendment’s opinion); (plurality J., con- id., at 966-967 at 957 (Stevens, (plurality curring judgment); 947-948, also n. see aggra- Godfrey involving (distinguishing opinion) one circumstance). vating
B
applied
rule from
this
The first case which
Maynard
petitioner
v. Cart
benefit was
which
seeks to
jury had
wright,
an
There, Oklahoma
This Court “especially or cruel” circum- heinous, atrocious, cause the “outrageously gave guidance or than the stance no more made reason this distinction opinion in its There are hints id., (individualized sentencing); 2d, 1480-1481 a 822 F. at difference. See (narrowing). at 1485
wantonly vile, horrible and circumstance in inhuman” God frey, rejected 363-364. Court Oklahoma’s argument Cartwright’s adequately sup that sentence was ported by unchallenged aggravating circumstance, ob serving highest practice court had a of not Oklahoma’s attempting penalty to “save the death when one of several aggravating invalid,” id., circumstances ... was found at 365. (Instead, simply any that court would commute death sen imposed finding tence after an “invalid” circum 359.) imprisonment, stance id., into a sentence of life see Appeals The Court said that “the cannot be faulted undertaking for not itself what the state courts themselves refused to do,” at 365.
Cartwright Mississippi, was followed Clemons v. Mississippi U. Oklahoma, S. Like ais jury finding State, and a had returned a death verdict (one present two circumstances were of which “especially had been that the crime was heinous, atrocious, cruel”), finding that these two circum- outweighed any mitigating stances circumstances. The distinguishing affirmed, Court of had Cartwright ground, alia, on the that, inter while Oklahoma procedure salvaging resting had no a death sentence part vague aggravating on a circumstance, there was an es- procedure Mississippi. aggravat- “[W]hen tablished one ing remaining circumstance is found to be ..., invalid valid support circumstance will nonetheless penalty (internal quotation verdict.” 494 at S., 743-744 omitted). argued marks Court, this Clemons that where jury originally imposed had a death sentence, the Consti- resentencing by jury tution demanded whenever a state appellate court found that the had considered an uncon- *18 stitutionally vague aggravating Id., circumstance. at 744. rejected argument, This saying nothing the that the appellate Constitution salvage forbade a state court to an although, sentence, unconstitutional id., at 745-750, at a reweigh appellate would have court the state minimum, id., at 751-752. review, perform harmless-error or requir- “authorizing or rejecting rule a more relaxed long remains so as there ing of a death affirmance aggravating the Court circumstance,” valid least one at explained: weighing in a State of affirmance rule
“An automatic Ohio, 438 S. v. invalid under Lockett would be (1982), (1978), Eddings Oklahoma, and treat- give individualized the defendants for it would reweighing of from actual result ment that would aggravating mitigating circum- of factors the mix [supra, 958].” Barclay Id., at Florida, stances. Cf. at 752. Dugger, 321-322 S. also Parker v. by explanation
Today reason- to Clemons’ Court adds the vague cir- weighing of a ing a sentencer’s that deprives sentenc- of individualized the defendant cumstance possibility randomness.” ... of ing it “creates because weighing says a sentencer’s The Court Ante, at 236. weigh- may “ske[w]” vague circumstance [on] by placing a “thumb death’s ing process, ante, treating] “creating] [of] by the risk ibid., scale,” side of penalty,” deserving ante, more the defendant possibility “creating] of bias in ... 235-236, penalty,” ibid.2 of the death favor petitioner Like Godfrey Stephens, in the instant II vague aggra- finding of a to death after case was sentenced inclines senteneer fact an circumstance The mere course, cannot, penalty violate the imposing the towards death more object majority opinion to I therefore read Eighth Amendment. they because skew circumstances application from case to case. by their random operation of the scheme *19 vating Stephens, Godfrey, circumstance. Like but unlike he aggravat- on sentenced the basis more than one ing challenged. circumstance, one of which he case, issue in this it then, whether would have been reason- weighing able in a to believe 1985 that sentencer’s vague3 aggravating circumstance does not offend long Amendment so as the sentencer has found at least one differently, other valid circumstance.4 Put question is whether it would have been to reasonable believe holding Stephens apply weigh- 1985that the could to ing majority questions neg- State. The answers these saying jurist ative, 1985, that in no reasonable could have failed to discover concern with randomness in this Court’s individualized-sentencing cases, or have failed to realize that weighing a sentencer’s of a circumstance deprives sentencing. a defendant of individualized I think jurist prescience, this answer endues the with not reasonableness. Stephens judgment
It is true that the Court in reserved question holding apply on the weigh- whether its would to a ing State:
3 1say vague
not,
majority does, invalid,
ante,
230,231.
see
might
There
indeed have been
invalid
circumstances whose
consideration,
ones,
even with one or more valid
would have tainted an
ensuing
any
Thus,
death sentence in
reasonable
view
1985.
would
have been
unreasonable
believe in 1985 that a capital sentence could
stand,
more,
without
if the
instructed, say,
sentencer had been
to consider
constitutionally protected
aggravation.
behavior in
Barclay
v. Flor
ida,
(1983)
(plurality
463 U. S.
opinion); Zant v. Stephens, 462
(1983).
apply
But I would
proposition
nonweighing States alike.
4 Because,
case,
in this
valid aggravating
remained,
circumstances
I need
respondents’
not
argument
discuss
that it was reasonable to believe in
1985 that
the Mississippi
performed
murder statute
constitutionally
all
required narrowing in
guilt phase
petitioner’s
trial. Cf. Lowenfield
Phelps,
“[I]n this case we do concerning possible significance holding that a of a particular ‘invalid’under a circumstance is *20 statutory judge specifi- scheme in which the weigh cally statutory aggravating and instructed to mitigating exercising circumstances in its discretion impose penalty.” atS., whether to 890. ju- agree put have
I that this statement would a reasonable might weigh- Stephens’ apply rist on notice that rule to question ing was no State, but the to the reserved answer remembering foregone that conclusion. It is worth Georgia jury simply Stephens in to “con- was instructed mitigating id., evidence, all and see at sider” 871, leaving respondent with what the described as “unbri- stage sentencing, id., discretion” at final of at dled no which this Court found to be violation of unguided id., created Amendment, at If discretion 875-880. hardly this risk no risk of was obvious that randomness, it weighed. when a circumstance was arose Cartwright Stephens To conclude after that the in outcome leap Clemons dictated is reason. lengthens Barclay, leap for I The one considers when jurist, that think a reasonable in could have concluded question Stephens when resolved reserved in this Court Barclay, strongly implied Stephens it decided which that principle applied weighing to like Florida. See States (plurality opinion); id., J., at at 957 966-967 S.,U. (Stevens, judgment). majority attempts concurring mini- to The Barclay by Barclay upheld saying mize that the Court Supreme “only that because it was clear the Florida have been had the sentence would Court determined that given weight sentencing judge the same had the no (citing (plural- at Ante, invalid factor.” at 231 explained ity opinion)). Barclay But I not think can be do easily. away so opinion plurality Supreme
It is true that the noted that the performed Court of Florida harmless-error review. Ibid. point merely responded opinion’s But the discussion this Barclay’s argument Supreme to that the Court Florida apply precedent properly, had which, failed state-law Bar- clay required maintained, harmless-error review. See plurality rejected argument, saying that 957. fail- apply ure to those cases would be “mere errors of state law any [that] Court,” are not the concern of this that, contrary peti- event, had, Florida performed tioner’s assertions, Id., harmless-error review. Nothing opinion plurality’s suggests 957-958. constitutionally required would harmless-error review be weighed where the sentencer had an “invalid” *21 circumstance.
It is also true that the concurrence of Justice Stevens deciding Barclay, and cast Powell, Justice who the votes in required Supreme stated that Florida law the of Flor- reweigh aggravating mitigating ida to and circumstances. (opinion concurring judgment). See 974 at in But that simply responded Barclay’s argument Supreme to that the perform quantum appellate Court of Florida to failed of requires every capital review that the Constitution in case (regardless of whether trial court commits state-law error). opinion id., at See 972-973. Justice Stevens’ merely principal opinion noted that the in Florida, v. Proffitt (1976) (joint opinion 428 242, 253 Stewart, Powell, JJ.), reweighing and had held that satisfied Stevens, appellate-review obligation imposed by the Constitution. 463 at 974. Justice never said that re- S.,U. Stevens weighing constitutionally required would be the minimum weighed where the sentencer had an “invalid” circumstance.
Although Barclay may assuming ap- be read as that some pellate passed test must be if a death verdict is to stand in a weighing despite finding State anof invalid
247 opinions circumstance, do the state that the State nowhere proportionality review would not mandated Court’s satisfy required Proffitt, constitutional minimum. See (joint opinion supra, Stewart, Powell, at 258 and Ste- JJ.) (“The Supreme each Court of Florida reviews vens, in that results are reached death sentence to ensure similar cases”). just requires review. similar law such ante, 226. jurist Stephens Barclay, sum, after mindful reasonably weighing in- have assumed that one caveat could along with or more valid circumstance one valid enough significant to as to amount ones need not be treated provided appel- in that least constitutional error a State dispositive proportionality. That is under late review Barclay reading Teague: bars the conclusion a reasonable Cartwright Clemons was dictated that result in the cases on our books in 1985. recently 1988that held as as Circuit, indeed,
The Fifth Stringer Stephens applied State. See rule (1988); Scroggy, Edwards v. 2d Jackson, 1108, 862 F. (1988).5 its view The conflictbetween 2d 849 F. Maynard, Cartwright v. Circuit, see that of the Tenth (1987) (en banc), is itself evidence 2d F. Stephens would in 1985 not unreasonable to believe McKellar, govern Butler result this case. See my analysis, light can the Fifth Cir- Nor, S., at 415. having arguable opinion “no basis be dismissed cuit’s *22 expressed, support” ante, 231. view precedent dictated think that III I do not In sum, weighing vague neees- circumstance rule that Cartwright. The Fifth Circuit distin This was after we announced distin way same guished that case in the 1113; Ed Stringer, 2d, at Cartwright 862 F. in Clemons. guished wards, 2d, 211, n. F. 7. sarily long violates the Amendment as as there ais finding unobjectionable, aggravating of at other, least one circumstance. It follows that I think it reasonable to .was reweighing believe that neither nor harmless-error review required would be in that situation.