*1 pro- initially limit maximum excess never GRAHAM, Petitioner-Appellant, has Gary plan administrator

vided. interpret the last sentence called on been We provision. limited amendment COLLINS, Director, A. James administra- predict whether decline to Justice, Dept. Institutional of Criminal Grego- sequela of construe tor will Division, Respondent-Appellee. prior arising injury as ry’s 1983 “claim[s] pro- that are any future amendments to” No. 88-2168. or other- to reduce seek posed would Appeals, Court of United States $500,000 maximum lifetime limit the wise Fifth Circuit. determines If the administrator benefit. Gregory incurs expenses which covered 3, 1992. Jan. amendment, arising prior claims right reimbursement would Gregory’s lan- amendment limited

protected Any such prejudiced. cannot be

guage and ERISA, flow,

entitlement plan. Until from the terms on the to rule required is

administrator by Gregory, made claim

status of a covered declaratory relief

however, grant of premature.

would be

III. reasons, judgment foregoing

For the Tan- treatment at

awarding benefits judgment is REVERSED

gram of Halliburton favor

RENDERED subroga- plan’s plan; dismissal of is VACATED

tion counterclaim determination, for a claim REMANDED of whether opinion, with this

consistent relief; the award

plan is entitled VACATED; dec- and the

attorneys’ fees is to future entitlement Gregory’s

laration of accordance is VACATED

benefits opinion. in this set

the views forth part, RENDERED

REVERSED and

and, and REMANDED. part, VACATED *3 O’Brien, Houston, Tex., for

Douglas M. petitioner-appellant. Gen., Austin, Walt, Atty. Asst.

Robert S. Tex., respondent-appellee. CLARK, Judge, Chief Before GARWOOD, KING, POLITZ, REAVLEY, HIGGINBOTHAM, DAVIS, JOLLY, WIENER, SMITH, DUHÉ, JONES, BARKSDALE, Judges.* Circuit GARWOOD, Judge: Circuit previously affirmed Court panel A of this Gary Graham’s of denial the district court’s Tex challenging his corpus petition habeas sen death capital conviction murder 715 F.2d Lynaugh, v. tence. Graham Thereafter, United Cir.1988). (5th Ly Court, in Graham States 3237, 106 U.S. naugh, 492 per curiam (1989), a issued L.Ed.2d 585 petition granted Graham’s order judgment certiorari, vacated writ to this the case Court, remanded this light consideration “for further Court 302, 109S.Ct. Lynaugh,” 492 Penry v. (1989). Pursuant 106 L.Ed.2d order, Court panel a that remand and, case, by a divided reconsidered sentence, the vote, Graham’s vacated * participate DeMoss, and elected En Banc Harold R. Judges M. Garza Emilio decision. en argued in this banc this case was in after were sworn Jr. History Procedural Texas determining that

panel majority sentencing system was unconstitu- capital plea guilty, Graham Over case tionally applied Graham’s October convicted court of his sentencing phase jury at murder, the offense of 1981 of special instruc- trial, given no having been killing Bobby Lam May intentional tions, adequately consider was not able shooting pistol him while bert youth as to Graham’s give effect robbing attempting to rob the course Collins, Graham factor. 19.03(a)(2). Code, Texas Penal art. him. Cir.1990). Having ordered (5th F.2d trial, sentencing phase At the (5th id. banc, 903 F.2d 1014 rehearing en each of the affirmative jury answered again Cir.1990), reconsidered we have provided for the three issues *4 and, disagreeing light in of case Procedure, 37.- of Criminal art. Texas Code in majority’s determination panel the with 071(b), accordingly sen and Graham was our former respect, now reinstate we appeal, to death.1 On Gra tenced direct denial of district court’s of the affirmance af conviction and sentence were ham’s relief. habeas “(2) may any issue ‘no’unless it answer panel opinions in this case 1990 1. The 1988 and jurors agree. first two 10 more erroneously or the indicated 37.071(b) “(e) jury submitted. an affirmative find- specified were If the in art. returns issues See, id., article, 4 and 854 F.2d at 898 n. under this 896 F.2d on each issue submitted (e) 1991, (a) defendant to through art. shall the of court sentence sections the Until 1981, finding jury negative they as a provided, did also If the returns as death. 37.071 any submitted is to answer issue follows: on or unable "(a) finding article, Upon that the defendant shall sentence the under this the court offense, capital the court shall guilty aof the Texas De- confinement defendant partment sentencing proceeding separate conduct a for life.” of Corrections be sen- the defendant shall whether determine provisions when the are the same as The above imprisonment. The life tenced proceeding (except by statute was first enacted in the trial practica- be conducted in shall inserted the “three” was 1981 amendment word jury soon as trial as court before the (b)). opening of clause section the may proceeding, be ble. In the Legislature passed May two In the Texas any the court presented matter 838, 880, amending ch. art. S.B. bills 37.071. This subsection to sentence. deems relevant R.S.1991, extensively Leg., amends the 72nd the intro- to authorize shall not be construed including sentencing procedure, Texas any secured violation duction of 37.071, specifies date of an effective art. United or of of the States of the Constitution 1, 1991, appli- September expressly made but is the defen- of Texas. The state and the State "only” on or after offenses "committed cable September permitted his counsel shall dant or 880, 1, 5. The § 1991." S.B. against argument present for or sentence by changes 1 to art. 37.071 § made S.B. 880 death. of the former the entire elimination include “(b) presentation of On conclusion (the special second former first and third issues evidence, fol- shall the the court submit the cases), special in all issue is retained verbatim jury: lowing to the three issues jury provision special issue where for a new "(1) defendant the conduct of the whether guilty found charge to be allowed the defendant was the death deceased that caused provision in all parties, under the law of deliberately the reason- and with committed following issue: cases for the new expectation death of the de- able "Whether, taking all of consideration into result; would ceased another evidence, including circumstances "(2) probability that the there is a whether offense, character the defendant's the background criminal acts of vio- commit defendant would culpabili- personal moral continuing constitute a lence defendant, miti- ty is a sufficient there society; and threat to gating to war- or circumstances circumstance evidence, “(3) by if whether raised imprisonment rath- that a sentence life rant killing the de- defendant conduct imposed." er than a death sentence response was ceased unreasonable adversely to submitted are answered If all issues any, by provocation, if deceased. death; otherwise, defendant, the sentence “(c) prove issue must each sub- The state imprisonment. S.B. 880 was doubt, is life the sentence finally passed beyond and the a reasonable mitted 17, 1991, May and was filed with- 'yes' verdict shall return signature on June Governor’s out the each issue submitted. 'no' on bill, Leg., 72nd The other H.B. ch. “(d) charge jury that: shall The court 27, 1991, R.S.1991, finally passed May ‘yes’ “(1) issue unless not answer by signed June 1991. Sec- the Governor unanimously; agrees issues, penalty the death if Ap which mandate of Criminal Court by the firmed see affirmatively, note are answered opinion. Graham all unpublished in an peals supra, adequately corpus permit relief do not sought habeas subsequently for holding an evi- circumstances weigh mitigating After when courts. in the Texas Id. at 718-20. allegations, mulating answers. hearing on Graham’s their dentiary de court recommended relied on convicting trial The factors Graham relief, transmitting to the Court seven youth primarily nial of were —he findings and conclusions offense —and certain Appeals time of the teen Criminal The Court concerning contentions. rejecting Graham’s reflected matters re childhood.2 denied Appeals partic thereafter panel relied of Criminal opinion. Lynaugh, unpublished ularly upon Franklin an pursuant lief (1988), L.Ed.2d 155 present pro- brought Graham then jury’s holding that “the and concluded ceedings U.S.C. under § the constitu ... is consistent verdict relief court denied That court. district in Franklin outlined requirements tional hearing, and denied evidentiary without Id. at 719.3 precedents.” and other proba- certificate stay of execution granted panel A of this cause. ble Supreme Court’s Following the *5 ultimately denied Gra- stay, but interim of Pen light for reconsideration remand probable of for certificate application ham’s ny, the with this diffi panel again grappled Graham, Judge 854 F.2d cause. panel Reavley, for the Judge cult issue.4 consisting panel opinion for the Jolly, in his that: majority, held King, Reavley and Judges of himself and Graham mitigating evidence that “The of seriatim each rejected and considered sentencing included during introduced part of In IIB claims. several Graham’s childhood. difficult youth and his with Graham’s panel dealt opinion, the the relevant evidence is argues this Graham statutory special the Texas that contention 2.The amended put into its section the tion 9 before ning state tember changes imprisonment changes that commences rections nation law made this this teen express committed date.” offenses provided mitted when Graham's contention ment We judge its Act Act, of section years seeks prohibited execution merely note these 1991 penalty; panel for the same form of May section no (a are in section apply committed to read in S.B. whether controlling H.B. shall new old. the death before, also, 1991) the defendant Section former Texas if the state 15(a) 2(a) section as its effective the remainder 9 sentence the on or after as follows” Id. 854 the trial of among provides "upon” as it the trial with 2(e)). with and on, states: stated 1-9 form § penalty; 1 is added using 1 H.B. respect to or after only existed F,2d other 9H.B. for an offense that the effective date "(a) of art. 37.071 Department was setting it out does not seek after is for an offense “on” defendant the current date 11, 12, minor, apply enactments, of art. 37.071 Eighth things, the art. 37.071 less than previously 717-718. providing that September specifies at the whether, (section only changes in only and 13 9.§ technical effective rejected Amend- offense begin- desig- other if com- is as eigh- Sep- Cor- full 16), life the (or the “is 3. The 4. With 720, the 1990 We panel ilarly deny relief with tentions is devoid has retardation closely cert. ted this evidence to ing with allow 925.” neither our 101 agree, and reinstate “We "In nn. n. section panel opinion. recently granted L.Ed.2d 930 1988 opinion. For the the prior granted, relating respect 8): remanding doubt whether statutory addressed in do 7 & scrutinized panel expressed nor Lynaugh, exception sentencing part panel jury to of wrinkles. opinion.” Id. 896 F.2d IIB of circumstances, and ^[487] to Graham’s suggest opinion of our sentencing procedure does not did, this (1988). concluded 832 consider footnotes Id 854 be considered other questions. 832 however, respect the prior opinion certiorari in case, that this area section suggested F.2d 915 observed: opinion. same [1233], Texas statute In portion of the 1990 which is issues the argument fully of F.2d at to Graham’s Penry, IIB, 5, 7, reason, that Supreme Court observe Penry’s (5th disagreement Accordingly, we the case of at 894. in answer there was other of the law Cir.1987), our court discussed 718 n. the reinstate that we F.2d at 9 of the permit mental (id. at case, than con- sim- So far as Lambert did. before special questions scope beyond the Only alone. showed, acted perpetrator instruc that, no additional Skillern, witnesses, Mrs. was one Texas statute was given, the tions were perpetrat identify as Graham able in his case. applied unconstitutionally Graham ultimately so identified She or.6 agree.” age, we of Graham’s Because in a display and May photographic in a at 897.5 Id. “line-up,” as May police station well dissent, concluded Jolly, in his 1990 Judge testimony. Defense open in her trial court adequately special issue second identifica attacked Mrs. Skillern’s counsel aspects of any mitigating encompassed tion, vigorous cross-examination both constitutionally must youth that argument the fail by emphasizing in youthful- consider, Graham’s free to witnesses, at least one ure of other only to the extent a factor was such ness question, was closer to the events whom it, youth product offense was However, make an identification.7 transitory condition that necessarily a was In clos presented. defense evidence “by account fully into take jury could sug did not argument defense counsel to the future negative answer giving failed to show gest that the evidence spe- of the second inquiry dangerousness committed, charged had been offense issue.” cial Gra failed to show that rather that it Facts Context it. the one committed ham was who trial, phase guilt-innocence theAt hearing, no evidence At the essentially defense Graham’s concerning the offense introduced The state identification. of insufficient extensive The state introduced conviction. the shoot- several witnesses presented showing on five different *6 p.m. 9:30 on about which occurred at ing, following his murder during the days week 13, 1981, parking Wednesday, May Lambert, robberies committed Graham of Houston, Safeway Food Store of a lot and in separate locations of at a total nine wearing man perpetrator, a The pis- Texas. a either Graham leveled each instance bumped jacket, pants and a white shotgun black on the sawed-off victim. tol or a Lambert, carrying a sack of was who May and the into was on The first these store, attempted and of the groceries out May 20. These offenses involved on last of the testi- victims, including Some grab Lambert’s wallet. thirteen different some there was a brief mony eighteen indicated that and and aged fifty-seven women eighteen, two. Lambert fifty-seven, the struggle aged sixty-four, between men and each respect to a few pushed perpetrator, ages. the With and other back; produced perpetrator occasions, a indicated Gra- stepped the these chest, using and In addition it at Lambert’s marihuana. pistol, leveled ham was effects, personal from a distance of five vehicles money him in the heart shot pis- were perpetrator The the victims three feet. stolen. Two of two to were about being shot in the being apprehended. whipped, one of them fled tol then without physical store, only serious These staggered toward neck. were back Lambert struck anoth- glancingly fell, spot. perpetrator injuries. Graham died on the man, victim, with sixty-four-year-old Lam- er store when observed had been apparently try- stealing, there, the vehicle he was had left a few minutes but bert was (or enough good they get look though majority, summarizing did not panel 5. The 1990 recall) perpetrator’s respecting face presented sufficiently Graham the evidence childhood, id., address whether that did not his an identification. make itself, evidence, required would beyond submission instruction further that sought suppress Skil- Mrs. defense also 7.The issue, panel given. As to the photo- testimony the basis on Iern's age." "Graham’s addressed unduly sugges- line-up display graphic were hearing pres- out After an tive. extensive testify anything witnesses not 6. The other did jury, was overruled. this motion (or ence did not suggesting that was Graham resemble) merely perpetrator, stated Samby stated type.” nervous is the fifty-seven-year- She him. run over ing to to be a known Graham never he had after raped, kidnapped and was woman old had “real been that Graham person, apartment, asleep her violent fell Graham and, re when him nice, with respectable” and he was arrest- police contacted she house, Samby’s around spree help out bringing his there, quested crime thus ed “clean grass or to cutting Graham occasions five these such On an end. mother,” an “would alone; others Graham his help four up and acted apparently different me.” Graham of a it for glad to be to do (not shown accomplice it and do nearby, brothers, sis Graham) present and had was four age from one was least At weapon. his own wielded children Samby three but Graham had ters. incidents, including that chil separate had two Graham six his living in house. two and the year old sixty-four two. Graham with the the other dren, four olds, involved year fifty-seven with his children and for “buy clothes ... would decep- successful initial practicing Graham food.”8 give them try intro- also The state victim. on the tion Gra- grandson that her testified Chron Council Youth of Texas testimony duced intermittently, staying with her began ham since familiar been she had employee three,” around he was beginning “when Graham’s in 1979 with time unspecified hospi- frequently was mother his being a community reputation in condition” “nervous talized citizen, law-abiding and that peaceful and He illness.” “mental was Chron said specif- elaboration bad; gave no she she was mother when stay his with would she how not state and did ics whatever However, age at about hospitalized. information, except that acquired to live with went Graham twelve eleven or personal obser- own on her not based father “he has been his father entirety of the state’s was the This vation. been mother Graham’s since.” ever stage. punishment at the twenty times.” least “at hospitalized de- by the presented only evidence Graham while stated that Chron further stage consisted at the fense school, “he he attended living with her Joe stepfather, Graham’s testimony of every- the time all go to church Erma Chron. grandmother, Samby, and Lord,” he didn’t loved the thing. He married had been Samby testified or trouble.” “any problems *7 give Chron years, five for about mother to Graham’s never had that Graham testified also Chron five for about Graham had known vio- been never “he has weapons, and when fifteen was He said Graham years. lent.” lived him. Graham (Samby) first met he testimony that he Samby’s Apart from him, but father, with worked his with years and five about known Graham had of work kind what know did not Samby fifteen, was Graham him when first knew by Sam- come would did. Graham Graham was Graham indicate which would his visit a week or twice by’s house once was the offense twenty when or nineteen respect “real, real had Graham mother. before committed, no there was moth- He cared about mother. for his age.9 Neverthe as to Graham’s His mama.” close to his real He was er. attorneys, in two less, of Graham’s each courtroom, but present was mother punishment arguments at closing their nothing be- do can’t “she Samby explained prosecu- jury, without argued to stage, nervous. on medication she is cause years and seventeen thus was sel. Graham Graham’s where as to no There was was com- offense age when the eight or months was Graham or whether lived children line-ups May the late Records mitted. married. been identified, were which Graham in However, undisputed that Graham it is put in jury but were not before 5, 1963, being re- this September on born fact presence of the hearings only out in ex- psychiatric pretrial report a in a flected motions, Gra- also reflect suppression on papers of the case filed in amination August time. at that seventeen ham was having or- been the examination coun- of defense motion court dered argued in other counsel a sim- seventeen Graham’s that Graham was objection, tion vein, stating: ilar committed. when his offense answers, only two “... there are in- argument counsel’s The first defense that is a choice. Life or death. Life following: cluded the age penitentiary years at the of 18 make a decision on “We have meaning punish- is the old. What man, do we Gary Graham. What young Why punish.... ment? do we We are thing Gary One Graham? know about gets leaving. Everyone all here to leave Gary is from Graham we know about goes him. He either to live for life in reaped through May 20th he May 13 penitentiary prepared or be for death May people. hell on a lot havoc and by injection, you and when look at a 14, 15, 16, days. 18 and 20th five young age, you man of his what do think Gary about do know Pure hell. What we you do think about about? What age he that at know Graham? We years you think about death. You when his Grandmother be- went to live with finishing years your think about placed in a mental cause his Mother was your you point are at a life back when herself in mental placed institution direction. people life some have no when know he lived on and off institution. We knowledge people Some she his Grandmother when they going or where their what [sic] hospital come out would would of us are more fortu- want to do. Some go changes her and when she would live with nate. You also have to look at See, ages. go society. Changes live with his Grand- be- back he would upon to your you own conclusions to cause what are called do mother. Draw predict time in the future that, life You whether some type of he lived. what person fit Gary could become Step-father. Graham He stated heard from society. At least he is alive. to return to Gary would come to his Graham See, 20, you are you when are 17 every his Mother now house and visit going You are to set young, hot-to-trot. You heard from his Grand- and then. other, way on fire or the the world mother, Gary Graham has children right wrong. people When come Gary young Graham is a of his own.... 30’s, it_ their middle 20’s and middle young A man. No doubt about change your more radical a little bit man, years reached 20 old. hasn’t even pos- upright to a more somewhat stands years goes old. He on a Not even 20 you ture have had not time rage days, days out of his life. for 7 think, is in the world. but to see what forget.... I going He is not to ever by young Most of the crime is committed hope something on the that it was you get to 25 or people. By the time you witness stand that either heard above_because it’s different. 35 and redeeming Something value. show *8 something about human nature there is say possi- Gary in life to that Graham’s you, you only changes but slows that Possibly. bly rehabilitated. he can be you you you If live. If down as live. urge every I each and one of And would live....” glimmer you that there is a or a all argument did not refer change, given prosecution’s his life can The possibility that Graham, age any way except in to once to Graham’s opportunity.... Gary 17 prosecution The acknowledge youth.” “his old, rage days. 7 years went on a for killing stressed Graham’s of Lambert and people. he do? He harassed What did in many his other serious offenses the fol- guns in face. He shot an He stuck their week, lowing stating part: in killed and he another individu- individual Why direction, response it in to? “Gary al. What was Graham does have and aggressive? you He has did he so What he has shown that direction. become way go rage you every for 7 an individual on a shown that direction makes you possibly look at.... Drugs? Maybe. Alcohol? Life? can days? ” in our so- are certain individuals Maybe.... [T]here life,” that in an penitentiary And the look at. got to have ciety that we they could swering fit to the three issues are not got realize have we sub beyond a all the evidence The evidence take into consideration us. with live Gary stage guilt-innocence Gra- shows that mitted both at reasonable doubt society, that in this stage.10 fit to live The three punishment is not ham and at the continuing threat to 37.071(b) constitute he will art. special issues called ask for They Compassion? society. submitted, answered and each was were life_ you for ask compassion. We objected to Neither side the affirmative. society. of this individuals Rights of the or re charge issues or the submitted They Lambert. Bobby Grant The life of further instructions quested any other or does a When youth. say look or issues.11 took that way he life taken the human cease to Lambert Bobby Grant life of Discussion to have mean- meaning? It ceases degradation and the the terror when Texas, 96 S.Ct. 428 U.S. In Jurek v. life in holds that as him of a man such (1976), 49 L.Ed.2d Compassion? Care? his hand.... capital sentenc- the Texas sustained ... Death at him? you just looked Have This case of art. 37.071. ing procedure you, as the only protection is the what, if anything, requires us to examine people society protect can jury, after Pen- and art. 37.071 remains Jurek The seeds Gary especially Graham. this examina- provide context for ry. To the harvest past our are other tion, of some an overview plant- Gary Graham has and what seeds Supreme Court leading decisions those he sowed has ed? And where appropriate. area is No. He earth? In the fertile seeds? cases Context Bobby Grant Lambert buried Pain. Suf- death. are His seeds earth. 408 U.S. Georgia, In Furman v. Degradation. fering. Humiliation. (1972), the Court L.Ed.2d bring? But things do those What punish- down all effectively struck is. Gary Graham you what thing tell crucial place. then ment statutes You have his actions. seen You have of Justices were those votes Furman people. mouths these from the heard White, who, Justice Scalia Stewart — conduct....” Deliberate Arizona, Walton observed 3047, 3061, L.Ed.2d 511 -, 110 S.Ct. any objections side Neither made (concurring opinion), “focused (1990) instructed argument. court other’s seeming randomness” 37.071, infrequency and article with jury in accordance imposed sentence was the death which sentence informing them that the including discretionary sys- existing in under the then “death confinement either would be both the leaves with 37.071 plained that "Article the state also instructed discretion jury a residue judge vas[t] proof, shift- never which had the burden still Supreme Court in defendant, precisely what the issue and that “each ed to the beyond Georgia, proved must state [v. submitted Furman argued (1972) answered none condemned” ] could reasonable doubt” L.Ed.2d 346 beyond a jurors inquiry article "yes" were convinced "[cjonsequently, [of unless all so answered. that it should be dis- fraught reasonable doubt with standardless issues] 37.071 *9 jury.” the hands cretion in trial, defense the court denied Prior to 11. or motion suggestion There was no un- ... to “hold article 37.071 motion counsel’s in- complained of that defendant memorandum motion was This void.” and constitutional (or vehicle an insufficient sufficient discretion contention that grounded on the it) defen- that the determine give to effect to “vague indefi- and too were called for issues nite,” penalty, or receive the death dant would not jury total discretion thus “allow adequate basis to given jury that the was findings against a Defen- make unfavorable con- give effect to its conclusions or consider dant, findings may based on and such background. The age or cerning have, defendant’s individually as a or prejudice complaint indeed reverse. ex- supporting memorandum whole.” a substantial system that does not create thirty-five Following Furman tem.12 sentencing caprice.” Id. at capital stat risk of arbitrariness adopted new states applied rationale Gregg the sentenc or narrowed that reduced utes Proffitt determining uphold whether the somewhat similar Florida er’s discretion The Su penalty. Woodson, however, impose the death struck down not to scheme. of these statutes ruled on five preme Court North Carolina statute under which the 2, Gregg Georgia, v. July mandatory on for penalty was made death 2909, 153, 49 L.Ed.2d 859 96 S.Ct. murder, murder degree that case first Florida, Jurek; 428 U.S. (1976); during robbery. the course The Court Proffitt (1976); 2960, 49 L.Ed.2d 96 S.Ct. among the “constitutional short- noted that Carolina, 428 U.S. v. North Woodson this statute “its failure coming[s]” of (1976); Rob 49 L.Ed.2d 944 96 S.Ct. particularized consideration of to allow Louisiana, 96 S.Ct. erts aspects of the character and Gregg sus- (1976). 49 L.Ed.2d defendant,” convicted record of each statute, directed Georgia tained the Eighth Amend- capital cases the and unlist- to consider listed the sentencer the charac- “requires consideration of ment mitigating circum- aggravating and ed individual offender record of the ter and stances, only a death sentence but allowed particular of- and the circumstances aggravating circum- listed if at least one Id., at 2991. 96 S.Ct. Roberts fense.” found. The Court observed stance were applied the same rationale invalidate capital that “Furman mandates” under which the death Louisiana statute suitably must be di- “discretion sentencer’s mandatory first likewise for penalty was to minimize the rected and limited so as degree murder. arbitrary capricious ac- wholly risk Jurek, decided the same turn now to We tion,” and warned 96 S.Ct. at id. uphold justices voted to day. There seven vague “so against standards in art. 37.- the Texas scheme as embodied adequately to channel they fail opinion attracted more than but no patterns juries sentencing decision judgment of the Court three votes. pattern arbitrary the result that a opin announced in Justice Stewart’s sentencing like that found capricious ion, Stevens which Justices Powell and in Furman could occur.” unconstitutional note, opinion generally been joined, and this has goes on to Gregg 2935 n. 46. Id. at expressing the rationale of however, a understood as “the isolated decision of action.13 Justice Stewart’s render un- the Court’s mercy afford does not adduced at imposed opinion summarizes the facts sentences constitutional death trial, “22 including that Jurek under a were sentenced defendants who Stewart, juries discretionary power dis- example, that of not extend to observed 12. Justice “many just mercy, pense as and it should not be assumed crimes those convicted reprehensible these, petitioners juries disobey nullify are their instructions.” will Id., among capriciously selected random handful upon of death has in fact whom the sentence White, joined by Chief Justice Justice then imposed” the Constitution could been and that Blackmun, Burger, then Justice Justice "permit unique systems not tolerate Roberts, id., Rehnquist, 96 S.Ct. at dissented freakishly wantonly penalty so be so 3008-3020, Black- and also in Justice Woodson. Furman, imposed.” S.Ct. at 2762-63. separate dissent in Woodson mun wrote at issue under the statutes White observed that Id., join there. Justice White’s dissent did not distinguishing meaningful "there is no basis Blackmun at 2992-93. In Jurek Justice penalty] in which it [the the few cases judgment, with separately concurred imposed many it is cases in which Jurek, dissent. a brief reference to his Furman not.” Id. at 2764. and Marshall Justices Brennan 96 S.Ct. at 2960. Jurek, Gregg and as in dissented in well White, then 13. Justice in an in which penalty grounds Proffitt, the death on the Burger Rehnquist Chief Justice and then Justice per se. 96 S.Ct. 2971- was unconstitutional joined, statute consti- likewise found the Texas *10 Woodson, They result in Id., concurred in the 2977. id., 96 S.Ct. at 2959-60. tutional. Roberts, id., S.Ct. at statutory special 96 S.Ct. at opinion quotes is- White's basis. on the same statute does “[t]he and observes that sues in full could, however, questions compre- time, drinking tions the had been at the years old offense, and inquiry.” of the hend such an Id. at 2956 n. 7. in the afternoon” beer steadily issue, em- always been turning special he “had In to the second that he he had left school and ployed since opinion notes that Texas Court of “[t]he Id., family’s support.” to his contributed yet precise- Appeals Criminal has to define describing the Texas 2954. In 96 S.Ct. at meaning of ly the such terms ‘criminal opinion states sentencing procedure, the ‘continuing acts of violence’ or threat ” jury is punishment phase the that at the society.’ goes It on to state Id. three) (sometimes “presented with two (96 2956-57): S.Ct. determine the answers to which questions, however, case, present “In the it [the imposed.” will be a death sentence whether Appeals] Texas Court of Criminal indi- omitted). (footnote It observes Id. interpret this second cated that it will in art. specified first two issues only the question so as to allow a defendant submitted, both were an- were 37.071 bring jury’s attention whatever therefore, in judge, yes, “and swered circumstances he be able statute, sentenced the accordance with show: opinion The then death.” Id. petitioner to “ determining ‘In the likelihood that three full text of the quotes verbatim the continuing would be a defendant 37.071, and contin- specified in art. issues society, jury threat to could consid- stating finds that ues “[i]f signifi- the defendant had a er whether beyond a reasonable proved has State criminal record. It could consider cant of the three answer to each doubt that the range prior crimi- severity of his yes, then the death sentence questions is look to the nal conduct. It could further imposed.” Id. at 2955. age and whether or not defendant evaluating constitutionality of the In of the at the time of the commission scheme, notes that Justice Stewart Texas acting duress or offense he was under jury must and Roberts under Woodson “[a] It the domination of another. under of all to consider on the basis be allowed could also consider whether the defen- only why a death relevant evidence under an extreme dant was form of why it imposed, but also sentence should be pressure, some- or emotional mental imposed.” at 2956. The not be Id. should less, insanity, perhaps, than but thing Texas opinion then observes “[t]he average than the emotions more mitigat- explicitly speak of statute does not inflamed, man, could withstand.’ however circumstances; only directs [934], at 522 S.W.2d State] [Jurek “[t]hus, questions,” and three answer (empha- [Tex.Crim.App.1975].” 939-940 proce- Texas constitutionality added). sis the enumerated turns on whether dures considering other Texas briefly After particular- consideration of questions allow decision,14Jus Appeals Court of Criminal mitigating factors.” ized “the Texas opinion states tice Stewart’s inquiry in the af- proceeds to answer guides and fo procedure capital-sentencing firmative, regard to sec- jury’s objective consideration cuses the is- dangerousness ond—the — of the indi particularized circumstances sue, Court of Crimi- because “[t]he offender offense and the individual vidual the first yet has not construed Appeals nal of death.” impose sentence it can before yet thus it is as questions third ... by ob concludes Id. at 2957. jury’s not the undetermined whether serving: questions of those consideration bring authorizing the mitigat- “By properly include consideration defense separate sentenc- jury at the situa- In at least some ing circumstances. before State, support jury’s sufficiency of the evidence to Smith v. case considered was 14. (Tex.Crim.App.1976), issue. cert. second answer to the 696-97 affirmative S.W.2d denied, Jurek, L.Ed.2d S.Ct. at 2957. (1977), court examined the where the Texas *11 mitigating mitigating circum- consideration hearing whatever scope defen- Id. at 2967. relating to the factors.” individual stances adduced, Texas has ensured is unclear. It on opinion focuses plurality can be dant have ade- the sentencing will the Ohio fact that under statute that the the perform it to its to enable kill “is guidance specific intent to quate defendant’s lack Because sentencing purposes only function.... if it mitigating relevant for that sentences to assure system light serves that it sheds is determined ‘wantonly’ or ‘freak- not be mitigating of death will statutory the three one of the not violate imposed, it does ishly’ a defen- that “consideration of factors” and (emphasis add- Id. at Constitution. in the of- comparatively minor role dant’s ed). per- fense, age, generally not or such, mitted, affect the as Ohio, later, Lockett years Two Similarly, the at 2966-67. Id. decision.” L.Ed.2d 973 586, 98 S.Ct. “con- plurality notes that the Ohio statute’s Ohio death considered an (1978),the Court be under- infirmities can best of a stitutional for the murder imposed sentence statutes by comparing it with of an arm- stood the in the operator course pawnshop Jurek,” defendant, at Gregg, id. upheld in shop while the robbery of his ed Proffitt geta- “the statute now us in the before outside accomplice, waited law, statutes. significantly different” than those Court way Under Ohio vehicle. however, sentencing judge broadly, re- More it, Id. construed for the impose the death sentence that: quired opinion states found, by preponder- unless offense prevents sentenc- statute that “... a evidence, statu- one of the three ance giving inde- capital cases from er in all factors, (1) namely that the mitigating tory mitigating weight aspects pendent offense, or facilitated induced victim character and record the defendant’s the of- (2) defendant committed proffered the offense to circumstances “duress, coercion, strong fense under mitigation creates the risk (3) “primarily that it provocation,” or imposed spite of will be penalty death “psychosis defendant’s product of” the may call for a severe which less factors deficiency.” Id. or mental unacceptable that risk is penalty. ... pawn- planned to kill 2966. “No incompatible the command course of the rob- shop operator Amend- Eighth and Fourteenth presentence re- bery.” Id. Id. ments.” defendant, twenty- port reflected concerning language “inde- quoted If the female, “no had committed one-year-old weight understood pendent” of a and that major offenses” sense, the Lock- apparent literal in its most “prognosis her rehabilita- psychologist wholly incon- plurality would seem be ett 2959. The favorable.” Id. at tion ... clear Jurek, it is Jurek sistent with the offense sentencing judge found what understood mental psychosis product was not obviously facially pro- statute so the Texas the other two deficiency, did not address range although a wide vides, namely that factors, sentenced statutory concerning the defendant’s of evidence death, stating “that he the defendant and the circumstances record character and alternative, whether [he] like[d] ‘no in deter- is to be considered of the offense penal- impose the death not’ but to law or impose the death or not to mining whether plurality opinion Chief ty.” consideration of that penalty, the Stewart, Burger, joined by Justices of such “independent” relevance is not Stevens, held that limited “[t]he Powell may find it has to the range mitigating circumstances Lockett such a construction of issues. But under the sentencer considered facts only much broader than the is not with the statute is inconsistent the Ohio there, plurality’s is also at war with ... Fourteenth Amendments. Eighth and “sig- the Ohio statute was preclude statement statute must not penalty a *12 ’ nificantly different than the Texas enact- turbed and his mental and emotional devel- the former’s deficiencies ment and that opment were years at a level several below by comparing it understood “can best be chronological age, and that the offense Texas statute. the valid with” product awas of these circumstances. 102 S.Ct. at 873 & nn. 1 & 877. The specially in concurred Justice Blackmun opinion also observed that the Oklahoma Lockett, reason more limited than “for a Appeals, Court Criminal reviewing espouses,” namely plurality that which sentence, had noted that imposition of defendant’s con- the Constitution forbids “ tention killing ‘that the actuality sentence for a defendant was in “the death who murder, product only aided and abetted a without inevitable of the way he was ” “ raised,’ permitting any consideration the sen petitioner’s but held that ‘the tencing authority of in the extent of her family history explaining, is useful in why volvement, degree rea, or the of her mens way did, he behaved the he but does not ” in the commission of the homicide.” Id. at excuse his behavior.’ Id. at 874. The (initial added). emphasis Mar Justice plurality opinion states that under Lockett adhering specially, shall concurred likewise “the sentencer in cases must be penalty to his view that the death was permitted mitigat- to consider unconstitutional, observing always but also factor,” ing id. at and that “the evi- that the defendant “was sentenced to death Eddings dence offered was relevant miti- killing actually for a that she did not com gating evidence.” Id. at 877. The rule of pursuant to commit” mit or intend to “a Lockett was violated because the trial statutory precluded any scheme that effec judge “found that as a matter lawof degree consideration of her of involve tive was unable even to consider the evidence” crime, age, pros ment in the her or her appellate and the state court “took the (em pects for at 2972 rehabilitation.” Id. approach,” same id. at so that “it was added). phasis Justice White concurred if judge the trial instructed a specially, expressly disagreeing with the disregard Eddings plurality opinion, concluding that “it but proffered on his behalf.” Id. at 877. Eighth impose Amendment violates Justice join O’Connor did not Justice penalty finding of death a without concurred, opinion, specially Powell’s possessed purpose defendant a to cause stating reasoning that “the plurality the death of the victim.” Id. at 2983.15 compels Lockett remand so dissented, Rehnquist Then Justice and Jus penalty that we do not ‘risk that the death participate. tice Brennan did not imposed spite will of factors which significant in this con- next decision ” penalty.’ call less severe Ed- Oklahoma, Eddings text is 455 U.S. (quoting Lockett). dings, at 879 A remand (1982), 71 L.Ed.2d 1 S.Ct. where necessary for this reason because “it struck down a death sentence the Court appears judge that the trial believed old, imposed year on a sixteen whom the mitigat- he could not consider some of the continuing sentencing judge posed found imposing evidence in sentence.” Id. There, society. threat of violence to Jus- Burger, joined by Then Chief Justice Jus- plurality opinion tice Powell’s focused on White, tices Blackmun and then Justice sentencing judge appeared the fact that the Rehnquist, dissented. following determined that “in judice, In the case sub was no permitted law” he was not to “consider” excluded, by the evidence tendered defense background, the defendant’s troubled court’s expressly but the trial instructions showing neglect- the defendant’s environment, authorized consideration of all evidence ad- family ful and turbulent ex- father, answering issues, and, mitted in physical punishment by cessive emotionally nothing dis- there is Eddings, the defendant was unlike to affirm- Arizona, (1982); subsequently A version of this view Tison v. modified gained majority support. (1987). See Enmund v. Flor- 95 L.Ed.2d 127 ida. 458 U.S. 782. 102 S.Ct. 3368. 73 L.Ed.2d Powell, Chief Justice with then they Justice jury believed atively indicate joined, Eehnquist and then Burger any of the not consider could re result, conceding that concurred purpose. *13 process on due required versal Skipper in v. Eddings applied Court The had sentence the death because grounds 1, 106 S.Ct. Carolina, 476 South the defen sought on factual basis a been a death reverse (1986), to L.Ed.2d rebut, but not allowed had been dant hearing sentencing at the sentence and Eddings that the notion rejecting irrelevant as had excluded judge trial Justice applied. Id. at 1673-1675. Lockett “testimony of two proffered defense’s Eddings plurality— jail Powell—author ‘regular visitor’ and jailers good authori a that the States retained had ‘made concluded petitioner that effect jail,” spent in particular evidence during his time what ty “to determine adjustment’ ar in nevertheless categories had described prosecutor the broad and within would petitioner jury “that first gued Eddings Lockett if sentenced problems disciplinary pose should instance,” determinations that these prison rape other likely prison would fore “they do not provided respected be Justice 1670. Id. may ers.” that factors consideration close that states Court for the opinion White’s culpability defendant’s to reduce the tend may capital “sentencer Eddings the under that crime,” “States id. at for his from precluded consider or refuse not those factors consider only bound to are evi ‘any relevant considering justice the fundamental central to that are ” (quoting Ed- Skipper dence.’ Nothing in at 1675. Id. of execution.” to hold: on went White Justice dings). inconsist opinion appears White’s Justice past con of a defendant’s “Consideration premises.17 general these ent with future probable of his as indicative duct Dugger, In Hitchcock undesir an inevitable behavior (1987),Jus 1821, L.Ed.2d 347 107 S.Ct. ‘any sentencing: of criminal element able Court, re Scalia, a unanimous for tice a con predict authority must sentence where Florida death versed conduct future probable person’s victed clearer that advis not be record “could of deter process engages in the when consider, and not to instructed ory impose.’ Ju punishment mining what consider, refused to sentencing judge 96 S.Ct. Texas, 428 U.S. rek cir nonstatutory mitigating evidence (1976).... 49 L.Ed.2d cumstances.” Id. the defendant [Ejvidence tak there be requested defendant (but incarcerat spared danger if pose concerning testimony “the account en into miti potentially ed) considered must be his ca background and family petitioner’s evidence such Eddings, Under gating. rehabilitation,” matters which pacity sentenc from the excluded may not be mitigat statutory included were not (footnote omitt Id. consideration.” er’s 1824.18 Id. at ing circumstances. ed).16 statutory circum- 18.The Florida ex- that because opinion concludes 16. The 3,n. opinion, at 1823 id. as set out stances was the cluded potential rehabilitation not include did lack tending to contradict witnesses disinterested analogous dangerousness or reasonably appears argument, “it prosecutor's (nor miti- any general residual consideration bearing of evidence likely the exclusion they category). include matters gation Nor did hence, (and jail upon petitioner’s behavior history family or turbulent troubled such as upbringing prison) likely future behavior upon his (here, child the that as a impose the jury's decision affected in- the habit of twenty-year-old defendant had 1673. Id. at sentence.” fumes, apparent haling gasoline result as wander, and that tended to his mind family Indeed, poor evi- indicates White’s children of Justice one of seven cancer), they although hygiene did personal good father died that of whose dence such while committed crime was might properly be whether the include prison practices while or emo- mental of extreme the influence “under at 1672 n. irrelevant. treated mitigat- consideration of ... mitigat jury’s exclusion that “the held factors,” id., have never here ren “we issue of the sort at ing evidence invalid,” citing of miti- suggested that sentence consideration the death ders or un- Eddings. gating Id.19 evidence must be undirected Skipper Recognizing Id. at 2331. focused.” revisited year the Court next Eddings lines of and Lockett “two cases”— Franklin, where it found statute Gregg the one hand and on Proffitt in the refusal of a error no constitutional other—“are somewhat in ‘tension’ with any of the jury instruction requested other,” White notes that each negatively could answered special issues *14 capital sentencing “the Texas nevertheless Defendant’s aspect the you any find of “if system upheld by has been this Court ... circum- any of the or record or character precisely way of the in which the factors which offense as stances Texas of these scheme accommodates both death imposition against mitigate by stating: Id. He continues 4. concerns.” & n. at 2325 penalty.” Id. that de- mitigating evidence only The origi- “Doubtlessly why this is this Court years several prison service fendant’s nally approved Special use of Is- Texas’ was with- after offense before and both guide jury discretion in the sen- sues to at 2324. Id. disciplinary incident. any out notwithstanding tencing phase, joined by opinion, plurality White’s Justice plurali- to in the expressly averted fact— Scalia and and Justices Justice the Chief mitigating ty opinion for the Court—that Texas courts that “the Kennedy, observed in the Texas employed evidence is to Lock- resolute adherence expressed have jury’s scheme to inform the consid- ” decided, id. since was in the decade ett Special eration of answers contention, based rejected the and at added). (emphasis questions.” Issue Id. “ weight” ‘independent’ on Stevens, joined by Justices Bren- Justice Lockett, defendant’s language Marshall, dissented, concluding the and nan pos- so disciplinary reflected “prison record from disci- of freedom defendant’s that the instruc- his ‘character’ itively on years during several plinary violations jury provided the have ... should tions mitigation in imprisonment was im- relevant through which to ‘mechanism with a simply on his respects other than as bore if the other- life even pose a sentence’ indi- dangerousness. Such evidence Special Issues future that both wise believed ” character was not petitioner’s “that ‘yes.’ Id. cated answered have been should redeeming features” some expressly reject- without also White 2329. Justice fairly virtues that can “may have required that he claim that the Constitution ed the against society’s interest spe- balanced if it jury, even answered that the for his violent killing him in retribution “still entitled affirmatively, be cial issues 2335, and, crimes,” by suggesting id. at against the ‘independent’ vote to cast the offense was his commission stating “this submis- penalty,” death qualities ... usual keeping with his Jurek, held that “not foreclosed sion is fruits,” “culpability” for the on his bore constitutionally impose the could dangerous- on future as well as ‘yes’ an- offense returned penalty if a Stevens con- at 2336. Justice Id. Issues” and that ness. Special to the two swers special instruction overruled; that absent and we are cluded not has been “Jurek requested had “it is as the defendant action now.” such to take such not inclined jury misapprehended probable that the opinion asserts plurality 2330. Id. at it could attach significance the state does hold that “Lockett descriptive petition- that was giving shape structuring has no role "family factors to the of these latter ca- relevance defendant’s disturbance” whether tional background" petitioner. criminality claims con- appreciate of his pacity requirements of law it to the or to conform duct error no harmless opinion observes that "substantially impaired.” con- argument possible was made. no discussion whatever tains old and defendant, years predictive than rather character er’s rape conviction at prior from a parole This in Id. at behavior.” offense, “suffered charged sen- time rendered view Stevens’ Justice damage moderate Eddings organic brain from Lockett under invalid tence impulse poor retardation, which resulted cases. related expe- from learn inability to and in control Justice O’Connor, whom The brain Id. 109 rience.” concurred. specially joined, Blackmun birth, “but likely present damage was Lockett, Ed- considered She 2332-2335. beatings and caused been standing for the Hitchcock dings and early at an to the brain injuries multiple be di- should “punishment proposition “frequently Penry’s mother age.” Id. culpability personal rectly related when with belt the head him over beaten concluded and she defendant, of” “routinely child,” he was he was constitutionally prevent may state “a to a toilet access room without in his locked giving effect body from unable He “was of time.” long periods back- the defendant’s finished never in school to learn circumstances or the character ground *15 twelve, Penry “was age Until grade.” first against the mitigates that offense of the schools of state number out of a in and In Justice 2333. at penalty.” Id. death him Thereafter, it took hospitals.” Id. defen- view, evidence the O’Connor’s Id. name. print his learn year to over to a no rele- “had prison conduct good dant’s testifying psychiatrists The two petitioner’s aspect any other to vance Penry was that opined both State for the dangerousness. than his character” his “ex- acknowledged sane, also they re- was instruction Hence, special no Id. ability, and that mental tremely limited contrasted “[t]he O’Connor quired. Justice mistakes,” his from to learn unable particular that seemed value” probative limited inability “an Penry had indicating that volun- “[ejvidence of one to evidence mitigating tendency to and a others, experience of reli- from to learn to service, kindness tary society’s violate and to might impulsive demonstrate be gious devotion [which] unsuccess- counsel miti- Defense might Id. that norms.” traits character positive charge on Her to the objected Id. penalty.” fully the against death gate to including failure its grounds, several states: also opinion first “deliberately” as used define had introduced however, petitioner “If, to “authorize issue, its failure special his back- about evidence mitigating upon mercy based discretionary grant of circumstances or the or character ground circumstances,” mitigating to the the existence not relevant that was crime of the sentence a death condition had failure and its or that questions, verdict special aggravating any “that cul- moral on a determination the relevance defendant’s mitigating outweigh special ... circumstances scope beyond pability sentencing, de- At Id. jury instructions circumstances.” questions, verdict things, among other argued, jury counsel fense provided would have mor- ‘reasoned its expressing vehicle Penry, be- juror believed if “that this If evidence. response’ al mitigating of the cause have to case, we would then were such back- and abused retardation mental inability jury’s whether decide put to not deserve ground, did amounted to that give effect ‘no’ on vote death, juror should Id. violation.” Eighth Amendment an if believed even special issues of the added). (emphasis the answer proved had the State ” express- did not However, Justice O’Connor ‘yes.’ Id. should be question. to that an ly proffer answer prosecutor noted response, In Penry argued the counsel defense had failed the state how issues shown deci- crucial to the last, turn long we At them. proof its burden meet showed Penry. There sion Court, response moral defendant’s back- ” character, ground, O’Connor, respect by Justices and crime.’ joined Stevens, Marshall, Brennan, Penry’s again contention is de- Blackmun sentence, concluding: being scribed as that the Texas statute the death set aside applied “precluding jury in a manner argument, light prosecutor’s “In acting upon particular mitigating appropriate jury and in the absence of again, evidence he introduced.” Yet instructions, juror could a reasonable his claim is characterized as follows: there was no well have believed expressing “Penry argues mitigating the view that Pen- that his evi- vehicle for sentenced to dence of mental retardation ry did not deserve to be and child- upon mitigating evidence.”hood abuse has relevance to his moral death based culpability beyond scope spe- Id. issues, cial and that the was unable determined that Justice O’Connor first express response” its “reasoned moral Penry sought rule to establish—that determining to that evidence in whether of the defendant’s “mental where evidence appropriate punishment. childhood ... retardation and abused Thus, agree. reject the We we State’s must, juries upon re- presented, Texas argument contrary that make quest, given jury instructions give able to consider and effect to all of give possible for them to effect to that “ Penry’s mitigating answering evidence in not a ‘new evidence”—was ” any jury in- issues without Lane, purposes Teague rule’ structions on evidence.” Id. 103 L.Ed.2d 334 *16 (1989), by opinion goes explain on to this con Eddings it is dictated “because issue, Respecting special Penry opinion at 2947. The clusion. the first and Lockett.” opinion, though suggesting some goes explain “Eddings to that makes the doubt on assumes, matter, enough simply arguendo, that clear that it is not to allow about ” “ by present mitigating ‘deliberately’ evi- was understood the defendant to “something jury The sentencer this connection to mean dence to the sentencer. “ ” (which simply ‘intentionally’ give to consider and more than” must also be able already guilty imposing sen- had been established effect to verdict). Quoting It concedes that tence.” Id. at 2947. her concur- Id. Brown, relevant opinion “Penry’s v. mental retardation was ring California capable acting of he was 107 S.Ct. 93 L.Ed.2d 934 ... whether U.S. ” Nevertheless, ‘deliberately.’ at (1987), states that “defen- Id. 2949. Justice O’Connor solely “[pjersonal culpability is not a func criminal acts that are dants who commit capacity defendant’s to act ‘delib disadvantaged back- tion of a attributable to a ” juror” prob- erately.’ A “rational could have to emotional and mental ground, or light Penry’s “in of confession” lems, culpable than defendants concluded may be less “deliberately escape capi- that he killed ... no such excuse” and that a who have “ However, juror “that same reasoned detection.”21 ‘should reflect a tal sentence disagreeing Scalia, Kennedy agreed (although joined by it Chief Justice and with 20. Justice reasoning Kennedy, portion O’Connor’s dissented from with a of Justice Justices White aspect holding. respect). of Id. at 2963-68. in this Id at 2963-64. This this present Penry implicated is not in our consider- opinion also held that the Justice O’Connor’s judice. of the case sub prohibit ation execution of the did not Constitution retarded, although recognizing mentally opinion does not detail the content of exception to the was within the first that issue However, described in the confession. it is Lane, Teague of doctrine Appeals opinion Criminal of the Court of (1989), barring ret- 103 L.Ed.2d 334 State, appeal, Penry S.W.2d 636 direct application of new rules. Id. at habeas roactive denied, (Tex.Crim.App.1985),cert. Teag- in the All Justices concurred 2952-2958. (1986), Brennan, as reflect 88 L.Ed.2d 805 holding: aspect but Justices ue planning Marshall, for months "had been Stevens dissented from Blackmun and 2958-2963, somebody rape and that in the three weeks holding, while substantive id. White, appellant prior had fo- to the instant offense Scalia Chief Justice and Justices major Penry”— jury not consider a allow have concluded could also Penry’s him mitigating made evidence as his “mental retardation” thrust because (footnote to control at 925 adult evidence.’ F.2d than normal “less able omitted) (emphasis original).” the conse impulses or evaluate Id. his conduct,” (initial added). emphasis and “because quences less history childhood abuse”—“was briefly then Justice O’Connor turns defendants morally ‘culpable than who issue, concerning special third whether excuse,’ who acted such ‘delib have no killing response “was unreasonable commonly under erately’ as that term provocation, any, by if de to the Thus, in the of a absence stood.” Although recites ceased.” deliberately sufficiently definition broad supporting the affirmative answer that the was able “we cannot sure issue,23 say expressly not to this does mitigating evidence of to the give effect suggest even history of retardation and Penry’s mental (nor question any to the does relevance answering first issue.” abuse asserted such it recite that State Id.22 relevance). Id. at dealing special issue As to the second concludes that resen- Justice O’Connor dangerousness, Justice O’Con- with future tencing required because “the mitigation Penry’s evi- nor observes provided expressing with a vehicle for aggravating “is dence response’ ‘reasoned to” the evi- its moral ‘yes’ suggests answer factor because Penry’s dence of “mental retardation dangerousness.” question “rendering background” in its sen- abused added). (initial emphasis She Id. at 2949 tencing decision.” Id. at 2952. stating that the evidence continues history of propo retardation and Penry’s Penry clearly “mental stands for the diminishing abuse,” his blamewor- though merely sition that probabili- thiness, is a negative “indicates that there any relevance to a evidence has future,” ty dangerous he will to one of the issues does answer Judge quotes approval from and then necessarily suffice in all cases sustain *17 in Reavley’s opinion for this court Penry’s application of the Texas statute. following: case, including the had such relevance to the evidence “ question it anything, the made more first issue. more difficult ‘If evidence operate can likely, likely, not less would whether the Texas statute mitigating question yes. any It did in case where the the second written answer possible writing Judge Reavley, our for the court in [another] cused on the deceased and 22. victims,” morning concerning Penry, of the the id. at that on consideration of observed go decided to to the victim’s offense when he deliberateness issue: in) (where rape way and house he forced Penry “Having just guilty of an inten- found I over to the chick’s "I that if went her knew insanity killing, rejecting de- tional fense, and raped I have to kill and her that would house was first] issue [the the answer to who I was to the because she would tell her Penry’s Although likely yes. some of go pen," police to the I want to back and didn’t mitigating retardation evidence mental 641, 652-53, was and that while the victim id. at considering might play in deliber- come into following rape helpless "I lying floor ateness, major of his evidence thrust I her her stomach. told came back and sat on abuse, logically, background does and child going and that I hated to to kill her that I was Penry Lynaugh, F.2d not.” (5th Cir.1987) thought squeal on me." Id at she would but I added), rev’d, (emphasis 641. Lynaugh, 109 S.Ct. 492 U.S. Clinton, concurring of Justice (1989). L.Ed.2d 256 espouses appeal, the result on the direct "deliberately” "Penry’s he ... was own confession indicated that view that the failure to define (the error), struggle ended and she majority was not her held it killed her after error lying helpless.” See n. 21 the fact that also was harmless “due to error uncontested, killing (indicating detec- supra was to avoid ‘deliberateness’ was the evidence of overwhelming gleaned contemplated purpose large part for this from tion beginning). appellant’s Id at 657. written admissions.” evidence, though clearly sup- all relevant to al distress incident to one many of life’s subject crises to which all are negative answer to one or more of such as port a issues, job— divorce or loss of a loved one or any miti- nevertheless also has may, they offense, when committed an beyond the gating relevance whatever have been less able than those not so af- scope special Penny of the issues. can flicted to control themselves evaluate precluding use of fairly read as consequences. their conduct and its If any such situa- statutory scheme Penny broadly, is read then in none of But, fairly can be read as Penny tion. also statutory these cases can the Texas scheme addressing only a situation where some pass Every muster. one of these cases— major mitigating thrust of the evidence is previously case where a month beyond scope any substantially up girl defendant broke with his friend or That, indeed, was the case in the issues. job, lost his youth the case where as a as to the third issue the Penny, where defendant neighbor’s volunteered to mow a essentially ir- was all yard early or was in his twenties when the relevant, it was only as to the second issue committed, offense was and all the oth- defense, affirmatively harmful system ers—would demand some other its relevance as to the first issue favorable statutory trial. The Texas “major essentially minor but its essentially meaningless scheme would be scope of the issue beyond thrust” was and Jurek would have in substance been (see supra). *18 that, commonly accepted is a truism It penalty the statu able but also answer good, of us is all so also none just none tory questions without conscious distortion probably us—not even those who will of bias,” recognizing or while nevertheless commit criminal acts of violence constitut- procedure “jurors under the Texas ... society continuing threat all range judgment unavoidably exercise a of —is of crime defen- bad. number remaining true to their and discretion while in nothing dants who have their back- Godfrey v. oaths.” Id. at See also posi- ground might tend to reflect a 1759, 1764, which 420, 100 446 Georgia, U.S. S.Ct. per- character trait —who have never (1980). tive previ have 64 L.Ed.2d 398 As we voluntary any formed service or exhibited noted, ously states that the defi Lockett supported to others or their any kindness statute “can best be ciencies of the Ohio family, possible to, alia, three exam- comparing to mention but by understood” inter this, ples miniscule at most. And “significantly different” Texas statute —must course, Lockett, along. upheld. has been obvious all So 98 S.Ct. at which Jurek 2965, many plurality always Eddings has it been obvious that 2966. While the too Jurek, transitory many of some does not cite decisions defendants —because youth We have noted the such as relative or emotion- Court since then have. condition 1028 (1990), by in Jus joined L.Ed.2d 255 Skipper, 106 108 given to Jurek in prominence O’Connor, Kennedy, White, Scalia tices post-Eddings deci- Other S.Ct. system Jurek the Texas describes include approval Jurek citing with sions wholly inap obviously would way which 231, 108 Phelps, 484 v.

Lowenfield as still valid if were propriate either viewed (1988); 554-55, L.Ed.2d 568 546, 98 S.Ct. minority of cases. a small in no than more Shuman, 66, 107 S.Ct. 483 U.S. v. Sumner opinion of for the said can be same (1987); Lockhart 2721, 56 2716, L.Ed.2d 97 by the Chief Kennedy, joined Justice 1758, 162, 106 S.Ct. McCree, 476 U.S. v. White, O’Connor and and Justices Har- Pulley v. (1986); 1770, 137 90 L.Ed.2d Parks, 494 U.S. 484, 110 v. Scalia, in 879, 871, 876, 37, 79 ris, Saffle 104 S.Ct. 465 U.S. (1990), 1257, 1261-62, 108 415 L.Ed.2d S.Ct. “effectively (declining to (1984) 29 L.Ed.2d pertinent language the here Ramos, v. Jurek”)', overrule California margin.24 Plainly, Justice quoted 3453-54, 3446, 77 992, 103 463 U.S. Penry as the exception Kennedy regards Estelle, v. (1983); L.Ed.2d 1171 Barefoot Penry. Jurek, exception to not Jurek 77 880, 103 S.Ct. 463 U.S. Stephens, and Zant (1983); L.Ed.2d 1090 Kennedy points out Moreover, as Justice n. 103 S.Ct. 462 U.S. supra), a broad (see note in Saffle (1983). The Franklin plurali- with Pen- L.Ed.2d Penry is inconsistent reading of on Jurek and observed principally ty relied result was “dictated ry 's holding that its for providing “method Texas purposes Eddings Lockett by” mitigating evidence the consideration Teague. with favor.” repeatedly cited has been require rejection considerations Similar omitted). Nei- (footnote at 108 S.Ct. reading of Pen- that a broad notion the Franklin concurrence nor ther decisis ry stare with consistent Although Pen- jettison Jurek. purports to kept the “assur- the Texas courts Jurek, exception ry clearly makes an Jurek, Texas scheme is or the ance” of excep- that the indication gives express appears on its face than it really different recognized or made is conceived tion the Texas courts been described itself, rule being vastly broader than decision in prior Court’s will the Texas scheme that Jurek opinion Jurek —rendered Jurek. very only in the valid thereafter remain required “partic- day as Woodson the same rarest of cases. aspects consideration ularized of each convict- and record of the character Penry, has continued Since explicitly recognizes Thus, Chief ed approval. Jurek cite defendant” — to answer jury is Pennsylva- allowed Blystone Texas opinion Justice’s questions statutory 1078, 1081-82, “no” to three “yes” nia, prof- mitigating circumstances to consider Kennedy’s states: 24. Justice defendant_ Having thus con- fered Penry’s claim was "To the extent Jurek, that resolution of we concluded strued giving system prevented the Penry’s assurances were not claim that ‘those any mitigating to the evidence effect U.S., case,’ particular fulfilled childhood, abuse mental retardation S.Ct., origi- [318], (emphasis in require the did not the claim the decision that nal), rule_ of a involve creation new did not surprising. is not a new rule creation of *19 Penry, be understood in ... must State Eddings command that Lockett and Jurek, ruling in the Court’s its terms mitigating jury give effect to must allow the We did not view application in later cases. decision; sentencing making the evidence in creating Eddings a rule differ- as Lockett Penry’s that Texas barred contention rather, Jurek; upon we relied ent from that acting.... jury from so Eddings reaffirmed that Lockett and indicated moreover, claim, not ask us “Penry’s did Jurek_” reasoning Id. Eddings so reasoning apply Lockett added). (initial emphasis 1261-62 apply our decision us to required much as it Kennedy goes on to cite Jurek as an Texas, in Jurek v. that, long-standing recognition “our example of interpreted (1976). Penry Ju- 49 L.Ed.2d 929 reliable, all, sentencing be must penalty above accurate, holding that the Texas death rek as nonarbitrary.” Id. 110 S.Ct. at long is inter- as so statute is constitutional jury permit by preted courts to the Texas “yes” helping adequately answered others—are if these are cover- The exact automatic. penalty by special ed the second issue. Penry can- is reflected questions wording of not hold and at otherwise the same time holds that the The Court opinion. Court’s not Teague purposes. be “new rule” for specific “enumerat- these is whether issue Eddings decisions in and Lockett do particu- consideration of allow questions ed justify conclusion, a contrary as Saffle mitigating factors.” Id. at larized says did not view Lockett and Ed- “[w]e gives an affirmative answer The Court dings creating a rule different from that special in- assumed basis on the upon in Jurek; relied rather” these cases being given to the definitions structions “reaffirmed reasoning in Jurek.” Saf- entirely on what evidence jury, but rather fle may brought said the Texas courts have jury in an- and considered before repre We believe that what Penry (future dangerousness) swering the second atypical sents is a set of circumstances Thus, relies on the question. the Court that, quite understandably, kind neither the it describes as Texas court Appeals Texas Court of Criminal nor the question to allow interpreting “the second Supreme mind, Court Jurek had in jury’s atten- bring a defendant namely circumstances where the defense’s mitigating circumstances tion whatever mitigating evidence would have either no (emphasis add- may to show.” Id. be able substantial relevance adverse rele ed). quotes next the Texas The Court Typical vance to the second issue. says language in which it “the court’s character, ly, good evidence of or of trans consider” various items of evidence— could itory being youth conditions such as presence or including matters such as ab- particular under some emotional burden at conduct, “age past criminal sence of time, will tend to indicate that pres- or emotional defendant” and “mental question truly representa crime is not determining the likelihood “[i]n sure” — the defendant’s tive of what normal behav continuing defendant time, may ior is or become over and that added). (emphasis society.” threat the defendant be rehabilitable so as says “[b]y autho- Supreme Court then continuing society. not to be a threat rizing bring defense before cannot con The core of Jurek —which we re- whatever circumstances ... that the miti clude has been abandoned—is lating defendant can be to the individual gating force of this kind adduced, ensured that the sen- Texas has adequately accounted for the second guidance tencing jury adequate will have issue. But Court sentencing func- perform it to its enable wholly dif added). faced for the first time with a (emphasis This Id. at 2958 tion.” type ferent evidence. Not has not been broken or even “assurance” bent, character, slightly contrary good on the has been of bad evidence of but has continued to fully performed. character; potential not evidence of exactly interpret just statute absence; its rehabilitation, but of its not evi Supreme Jurek assumed condition, transitory dence of a but of a would. one; permanent but nonetheless evidence strongly mitigating which was opinion in Court’s Ju these characteristics were due to the there was reflects that the defendant rek permanent handicaps uniquely severe old, drinking years had been twenty-two through which the defendant was burdened offense, day earlier in the beer own, retardation, of his mental fault steadily employed and contribut had been damage child organic brain and an abused At family’s support. Id. at 2954. ed to his *20 way type of evi hood. There was no this least, the very must stand for the Jurek given mitigating force any could be dence mitigating proposition that these factors— recog special issue. To good under the second reflecting youth and evidence relative that, did, necessarily is not employment Penry nize as steady such as character traits 1030 State, 794, v. 1977); Earvin applies 582 S.W.2d it Jurek validity of as deny the v. (Tex.Crim.App.1979); case. 798-99 typical the more Brasfield State, 288, (Tex.Crim. 293 600 S.W.2d n. 3 the core of Jurek re-

We conclude State, 58, App.1980); Keeton v. S.W.2d 724 it intact, apply now and we mains (Tex.Crim.App.1987). 61 judice. sub circumstances opinion in Jurek Supreme The Court’s Youth affirmatively reflects that the defendant years “22 old at the time” of the factor primary offense, 2954, and, id. at upholding the urges adequately was not Graham which scheme, death sentence and the Texas special the issues is encompassed in quotes portion the of Criminal Court disagree. youth. We stating answering Appeals’ opinion years Graham’s five before For at least the second issue can consider trial, Texas law that it was established “ ” age ‘the of the defendant.’ at issue, special answering second jury, question Jurek squarely thus answers age of the defendant.” “the could consider “youth” adequately is taken whether 934, (Tex.Crim.App.1975), State, 522 S.W.2d 940 Jurek v. If into account the second issue. v. sub nom. Jurek 'd aff result, compels a different would 2950, Texas, 262, 49 96 S.Ct. 428 U.S. Teag- purposes been a new rule for then, (1976). the Texas Since L.Ed.2d ue, as Indeed, if Jurek makes clear. Saffle consistently this followed decisions have apply very type not case State, Roney v. example, in rule. For Court, then before the has been (Tex.Crim.App.1982), Court S.W.2d But, noted, Supreme overruled. as noting that the defen Appeals, of Criminal Moreover, not so treated it. Court has age “the and that dant was seventeen Penry itself involved a twenty-two-year-old deciding “relevant the defendant” was 2941, defendant, id. and the con id. issue,” punishment the second suggestion that this fact tains whatever record, considering entire in held that adequately was one which could “young age,” the cluding the defendant’s answering into account in the statu taken support insufficient evidence was tory issues.25 to the second jury’s affirmative answer also, Penry, the Texas Court of Criminal e.g., Robinson Id. at 603. See Since issue. State, (Tex.Crim.App. Appeals has continued to hold that the sec- v. 548 S.W.2d (see closing argument accept twenty-two statements in note 28 can the notion that Nor we youthful purposes of constitution infra; supra). is for do see also text at note 9 call We capital sentencer ally rule that the purpose mandated categorical not believe that for this take into account defen must be able to age, proper specific is based on distinction "youth” of the offense. Texas dant’s at the time eighteen, age is such which often regards early clearly twenties as those in their (in majority eigh- Texas minors are those under See, e.g., Lackey youthful purpose. v. for married; who have never been Pro- teen Tex. State, (Tex.Crim.App.1991) 819 S.W.2d 3(t)) age pur- Code § bate or the minimum "youth (describing mitigating circumstance as a (cf. engaging poses of in certain conduct offense”); (23) age Trevino ful at the time XXVI). rejected Const.Am. State, (Tex.Crim.App. 815 S.W.2d holding approach such an Constitu- 1991) (“There ap mitigating evidence of is also does not of- tion forbid the death sentence for twenty-one years pellant’s youth; appellant was age fenses committed at sixteen or seventeen. offense"); Madden v. old at State, time Kentucky, Stanford 1990) (Tex.Crim.App. 799 S.W.2d Moreover, (1989). 106 L.Ed.2d 306 such however, ("Appellant, substantial introduced approach concept be at war with the only twenty-one evidence. He un- of individualized offense”). years of this old at the time Penry. knowledge It derlies is common "youth" mitigating— which make salient factors develop individuals rates, at different mature inexperience principally with resultant dimin case, frequently will and it be the gener judgment all and self-control—are ished and, example, eighteen say, two twenties, early present among ally those in their months, actually more less "mature" and degree those still to a lesser than in albeit this, indeed, "youthful" than another who is seventeen and approach younger. tak And counsel, eight in his months. en Graham’s reflected

1031 provides adequate says an ve that evidence of a defendant’s special issue back ond into account the jury ground for the to take hicle and character is relevant because “ McGee, parte youth. See Ex defendant’s ‘defendants who commit criminal acts 77, (Tex.Crim.App.1991); 817 S.W.2d are disadvantaged attributable to a (Tex.Crim. State, 819 Lackey v. S.W.2d background, or to emotional and mental State, 815 S.W.2d App.1991); Trevino v. problems, may culpable be less than defen ” We, too, ap (Tex.Crim.App.1991). dants who have no such excuse.’ Id. at recognized this. DeLuna pear to have See (quoting Justice O’Connor’s concur (5th 890 F.2d Cir. Lynaugh, v. Brown, rence in California 1989)(evidence twenty- that defendant was 837, 841, 93 L.Ed.2d 934 one when offense committed would (1987)) added). (emphasis Boyde also See Penry). him bring within California, dissent each panel majority As (1990) (same).26 108 L.Ed.2d 316 To mitigating youth is correctly recognized, the extent that Graham’s criminal conduct not al- experience has because insufficient product youth was a of his he was for that fully judgment and self-control lowed but, culpable reason not less to the attributable to develop, but the limitations extent, likely danger same also less to be necessarily transitory. all Gra- youth are longer young. ous when no To the extent Therefore, ham, is 899. whatever Graham’s criminal conduct was not attrib sup- lend mitigating youth tends to about youth, youth utable to his neither re the second port to a “no” answer to culpability danger nor his duced future issue, tendency to do so is essential- and its Nothing in present ousness. record degree proportional to the to which ly suggests jury might here have influ- jury concludes such factors were any light.27 viewed the matter other criminal conduct. ential in the defendant’s role such attributes of greater here, Finally, the evidence and the man- played to have in the de- youth are found approached ner in the case conduct, stronger criminal fendant’s respect, suggest any tried do not that, youth passes, as his the inference militating special factor circumstance longer danger society. will no be against application of what conceive to we Thus, special issue affords an the second rule, namely appropriate general give adequate which the can vehicle mitigating force of the defendant’s mitigating aspect youth. effect to the may of the offense youth at the time answering adequately taken into account reject contention that the We special issue. In marked con- the second inadequate for this special issue is second nothing to Penry, trast there is here purpose believe suggest that defense counsel desired to mitigated culpability defendant’s youth youth present- force of though dangerousness. But not his than any ed or considered other manner respect to con is not with youth Thus, negative Penry to it. as a basis for a answer duct not attributable Moreover, juror might say hypothetical that the second issue is true that a It always inappropriate youth inadequate that death is conclude penalty is for this reason to take into capital account, a sev- murder committed necessarily say it is to also year simply old because the offender enteen seventeen, inadequate any to take into other miti- account regardless of whether the of- gating wholly coterminous factor which is not attributable to his fense was to extent dangerousness. synonymous and Yet, with future However, youth. is not based such a conclusion indicated, previously be con- that would of the offender on individualized consideration Jurek, trary holding and would core precisely merely on a characteristic which up- render Jurek the Texas statute effect every human him as for other the same for being read held a dead letter. We do not age, amounts who attains that and as such going far. disagreement the Texas more than to no year seventeen which allows execution of law murder. olds *22 2103 Lowenfield, 108 stepfather, cared and was close to about issue.28 special second Cf. mother, objec gave grandmother prob- of (even where absence his his 552 may posture trouble, violent, reflect or never never not waiver lems was

tion is a participants). understanding trial willingly of weapons, help had out house, to school to around the went that, contention in reject Graham’s We Lord,” church, worked con- “loved Penry, force of his light of of his two children. support tributed given adequately be effect youth not could special issues. answering in appears principal to us that miti- It sug- Other circumstances this is gating thrust all to May gest the events 13-20 were Although pri factor atypical of Graham’s true aberrational youth, is Graham also con marily at issue potential character and that he thus had Penry testimony tends that under rehabilitation, and would not be a con- Samby, grandmoth stepfather, his his such, tinuing society. threat to As er, Chron, mitigating evidence constituted mitigating force of this ade- evidence can adequately given effect which could not given quately be effect under the second special in issues. We dis answering the special issue. agree. This not evidence does seem different noted, exception the testi- one to be With kind from that before the simply consti- mony Samby and Chron Jurek, tes- normal, where the defendant’s father mild evidence tuted rather petitioner good— always tified that “the had exceptionally been good—though not steadily employed part: he re- since had left school on had character Graham’s sup- to spect family’s to his mother and and that he contributed his for and was nice reject argued that Graham's We Graham's contention this court Counsel in essence youth explained May spree to crime his 20 his is case like because here young grow "A out of it: and that he would prosecutor’s argument (especially respect to man, years goes old. He hasn't even reached past") "direction” and "seeds of our amounted to rage days, days out of his life. He on a for 7 implied youth an assertion that Graham's itself Graham, Gary forget_ going ever is not to favored an answer to the second affirmative old, rage days," years for 7 and: went on a disagree. clearly We most issue. predict upon is you are to do "... what called understanding unobjected reasonable of this to Gary Gra- time in the future whether some argument is that it is no more than the mere person to to become a fit return ham could society. assertion that Graham’s criminal conduct was See, you alive. when At least he is predictor most reliable of the direction 20, you young, hot-to-trot. You are 17 or are absolutely nothing take. future would There way going on fire one or are to set world implies any argument in the that this is other, wrong. people right When come 13-20, likely May more so because the events of 30’s, change 20’s middle in their middle 1981 occurred while Graham was seventeen as your radical stands to a a little bit from more to, (nor opposed say, thirty-five even that this you upright posture because more somewhat likely as so as it would have been if Gra- think, only but to to see not time thirty-five May 1981). ham had been Most of the crime is what is in the world. prosecutor required just not to concede that by young people. By you committed time youth because of Graham’s he would get not it’s different. And, something danger society. future be a there is about above.... because there only changes you, that, nothing human nature inconsistent in the assertions you you you hand, live. If live. If slows down youthful criminals you mature, live....” danger pose and, society they even after expressed counsel dissatisfaction hand, on the other that criminal acts by pre-trial charge special issues was youths likely predictive are less of future asserting special issues too left motion part such behavior on adult their as a mature jury. See discretion to the much standardless already are than similar are acts those who 11, supra. note Moreover, mature adults. we are aware any Nothing indicates basis in the evidence nothing suggest that Texas has ever treated charged believing offense youth anything than this connection other (or less) youth product than of Graham’s more any (albeit tending necessarily a factor favor by the criminal conduct shown other require) a "no” answer the second evidence, suggested ever other- and neither side issue. either trial or in court. wise appropri- In illness.” or “mental dition” this sort Nor does Id. at 2954. port.” *23 general of this kind context, evidence wholly ate than seem other evidence character proper Penry part of a form might well in vast expected might be typical of what that it does not conclude We presentation. noted, evidence As were of cases. number case, was no There in however. so this Penry, then do to invoke held kind of this Graham, this had any effect statutory evidence scheme and Jurek it, and no part on his any reaction wholly or be purposes practical for all would explore that even attempt made to was Further, of evi sort this eviscerated.29 in Further, entire context subject. in that in kind is different dence presented, from testimony was of which to each its relevance Penry, as volved testimony of Chron’s point of view both sec issues, particularly the special evidence and of all the defense a whole nega of a ond, entirely the direction is hearing, sentencing suggests that tendency to at answer, has no tive Graham. effect on adverse was no crime there particular for the culpability reduce was un- suggestion that he no There was with encompassed way not any charged withdrawn, moody, con- difficult happy, Un special issues. more in one or any mental like, had or the that evidence, trol disability Penry type like entire problems. The psychological it is inferred culpability where reduce can evidence, both from defense thrust to the disabili is attributable crime that the opposite, Chron, the exact Samby and no have offenders other similar ty while stable, good, awas namely Graham that evidence “excuse,” good character such is youth. There no nonviolent, ordinary Further, variety of “excuse.” provides crimi- substantia] Graham’s evidence of an essen indication unusual absent a disad- was “attributable conduct char nal change in adverse tially permanent or to emotional background, vantaged damage), to the extent (e.g., brain acter O’Connor problems,” as the mental convincing that is testimony at 2947. Penry. Id. those terms used is indeed character general defendant's In this 110 Boyde, also essentially the same See also, to good it will simply is as a whole respect, the evidence con convincing he will not extent, or Ed- Penry to that comparable not society. a threat to be tinue dings. to consider There remains youth sum, only Graham’s not In Chron testimony of portion brief could mitigating evidence other also his hos but frequently mother that Graham’s in an account into taken adequately be approx commencing he was when pitalized, issues, particularly swering special character three, what Chron imately with con- second.30 “nervous as a elaboration ized without (Tex.Crim.App.1991), the 111-112 S.W.2d courts Penry, the Texas since We observe that appellant "was a court considered good Penry not is kind of evidence that this have held always promoted," “was worker and departure from mandate does “always in a helpful," behaved polite, nice Baldree, See, e.g., parte Ex format. the Jurek manner," helped "with his sister respectful (Tex.Crim.App.1991) 216-17 S.W.2d 810 hurt her she mother "when and his asthma” her kind, caring, been (evidence “has defendant claim, rejecting a 111. In Id. at ankle.” is ... reflective others ... and nonviolent given full evidence “was that this court said propensity, or upon his bears character and special ”[t]o issue" second within the effect thereof, committing acts" violent lack declar- be tantamount hold otherwise by the second adequately covered is and thus facially un- scheme instructions); further without issue omitted). (footnote at 112 constitutional.” (Tex.Crim. State, WL 99949 v. Richardson 68934) ("evidence throughout on the second No. App. We have focused June respect evi Franklin is with religious because it devotion issue appellant’s apparent and by jury the most properly addressed Graham’s evidence and could dence relevance, State, two’’); and because Mooney strongest answering issue number do (same). We in Jurek. addressed (Tex.Crim.App.1991) is the issue S.W.2d however, lacked State, imply, that Graham's S.W.2d Trevino See abo (Tex.Crim.App.1991). (or even State, the first mitigating relevance to Boyd v. In Penry rule and exclusion to the duces an Conclusion decision that no instruction holds Court, we by the directed As mit- transitory circumstances of needed previous af- our considered further says that circum- igation. This court court’s denial the district firmance of the defendant is to whether stance relevant Penry. We con- light relief habeas adequately treated may be rehabilitable disposition is consistent prior our clude that Contrary second issue. the answer that it remain convinced Penry, and wrote, Supreme Court to what *24 our Accordingly, we reinstate proper. atypical an explains Penry as Fifth Circuit affirming court’s the district

prior mandate either mitigating evidence case where petition. of Graham’s habeas dismissal relevance, or no adverse had no substantial AFFIRMED. of relevance, special second issue my I col- dangerousness. believe REAVLEY, Judge, with whom contrary Circuit to gone beyond and leagues have the, WIENER, KING, DAVIS, POLITZ, Supreme Court directions dissenting: Judges, join, superiors. role of our usurped Circuit old, mi- years legally to a directed this court Supreme The Court Graham was light nor, of the crime. It is petition he committed Graham’s when reconsider shape mitigat- or to that this fact was a modify Penry beyond dispute not to Penry, circumstance, In “moral fit material to the for a comfortable with Jurek. Penry jury’s for the The culpability” wrote of the defendant. Penry, Justice O’Connor fully to role is to consider such factors jury that the must be able Court “evidence the defendant is give effect to all whether consider and and determine morally culpable. against penalty” mitigates personally indeed punishment phase “culpability” to a defendant’s back at the is relevant But character, question guilt circumstances of of or “blame- simply or the a ground, is worthiness,” question If rather a the crime. 109 S.Ct. State, important mitigating Lackey factor— v. is an See youth “deathworthiness.” (Tex.Crim.App.1991) it is1—then has said that and the Court 819 S.W.2d mitigates sentencing jury (en banc). say be requires that the To that evidence Penry penalty say is that he culpability that the death is not to to decide defendant’s allowed blame, deserving penalty Gary guilty Graham. inappropriate is less given deserving of death. could not have been he is less See That decision but that (a case, could juror should be at 2950 Penry, effect in his writ 109 S.Ct. culpa- moral “Penry lacked the granted. believe that death”). bility to sentenced to be Penry rule majority stated the panel The of the Texas statute special issues jury sentencing a “a as follows: can relevant how evidence be about his demonstrate provides evidence defendant who guilty culpability. to a defendant’s character, background, or the circum- deserving of death less may to defendant offense that is relevant stances of the that he did scope shows beyond the of because the evidence culpability personal pose he does not deliberately, or that receive in- act statutory questions must society, or that his give continuing effect threat structions that allow response not unreasonable F.2d at 896. The conduct was such evidence.” 896 Indeed, months, by the deceased. pro- provocation majority, after en banc relevance, respon- issue; suggest an absence of third) does not special such “All this it does have murder, deliberately strengthens sibility our conclusion relevance the crime and that Rather, adequate special say in this issues were case. it is to in this committed case; to issues other but whether such relevance chronological age just of a minor is itself suffice to take this second would alone than the weight, mitigating great factor of so scope Penry/s another matter. is case out of development background and emotional must sentencing.” duly 102 S.Ct. at considered in In panel opinion; F.2d at 897-98. 1. See said: Eddings Oklahoma weigh that factor in have been allowed only because mitigating much deserved to be deciding Graham whether of these issues. more is relevant sentenced death. Lynaugh, Franklin See (1988) 2333, 101 L.Ed.2d 155 108 S.Ct. insists banc court majority en (evidence of the concurring) J., (O’Connor, follow- crafting own exclusion upon its prison conduct good defendant’s “major is a ing Penry only where there outside character to his relevance sub- ... mitigating thrust message issues). But the spe- scope of all the beyond the stantially defen make the is that youth declares that It even cial issues.” for reasons deserving of death dant less at- to conduct respect issues.” scope of the “beyond and that age, tributable The evidence Penry, offense time youth factor of history of mental retardation Penry’s by a taken into account adequately may be less his crime may not have made abuse of future answering issue *25 socie continuing threat or his deliberate Supreme Court But the dangerousness. may nevertheless it probable, but less ty assessing sentencer, before requires the deserving of less him have made all penalty, to consider the death able him “less made may have mitigating factors that evidence, not impulses his to control adult a normal than criminal conduct. to particular contributed his con consequences the or to evaluate weigh “thrust” the And the Court does the with Presented Id. at 2949. duct.” spe- as between mitigating evidence the ab and “in questions, verdict to sentence the decision cial issues instructions, a jury appropriate sence death. have believed juror could well reasonable crip- Youth, like mental retardation expressing for vehicle that there defendant’s the circumstances pling to be not deserve Penry did that view to deliberate- may related background, mitigat upon his based to death sentenced those dangerousness, but to future ness or Id. at 2950. ing evidence.” may also affect life defendant’s facts aof same dilemma. presents This case and decision. “thrust” entirely different did youth Graham’s found that jury The ultimate much broader They may reach or his less deliberate his crime not make re- appropriate Is death question: But probable. society less threat future considering his being, human sponse to this deter- also juror could a reasonable Graham’s person? as a culpability moral Gra- that opportunity, mined, given if consider it could not told jury was be- sentence a death not deserve ham did give it could light in this able age less cause, at imposing sentence. to it mitigating effect conse- or evaluate impulses control heavy schol majority is conduct, of other or because quences of It un legal argument. fine arship and majority seems reasons. reviewing problems doubtedly alleviates constitu- is no “there fact that overlook row. on death prisoners Texas the cases allows procedure that infirmity ain tional problems. The fully appreciate I on the mercy based recommend jury to struggling is Appeals of Criminal by a defen- introduced State, Black too. See with them case, this In Id. dant.” parte Ex (Tex.Crim.App.1991); S.W.2d in- of instructions “in the absence Penry, (Tex.Crim. Earvin, 816 S.W.2d Harvey consider could forming State, 819 S.W.2d Lackey v. App.1991); mitigating evidence give effect This does not (Tex.Crim.App.1991). impose declining to youth] [Graham’s the dictate follow the failure justify jury was penalty, ... the death I follow that Court. its expressing with a vehicle provided Court, alone has dictate unless to that response’ moral ‘reasoned in modify our authority, chooses sentencing decision.” rendering its structions. jury should Penry, 2952. Under culpabilit HIGGINBOTHAM, moral Circuit decision for the E. PATRICK —his dissenting: y.3 Judge, case is question this The ultimate upon jury’s The state insist mitigating value Graham’s whether the decision, but the contri- “reasoned” moral age sev- family youth and circumstances— cul- youth of Graham’s to his moral bution fully of the offense—is time enteen at the beyond pability, the issues of deliberate- to two jury in its answer expressed by the dangerousness, and future has no in- ness deliberately and act did Graham questions: objective weight. measure or There trinsic danger. present a future does Graham point accept at which we must that the is concluding first opinion, after majority culpability particular person moral of a questions deficiency in the two jury says particular crime is what the substantial, answer holds that the must be deference, quintes- it is. With all jury’s unpersuaded yes. I am is yields logi- sential blackbox decision to no culpability moral of Graham’s assessment explainable youth cal or divison whether majority has substantially as the fully, “mitigating force after has some residual concluding that he acted it, exhausted questions the Texas have been answered.” danger. presents a deliberately and all, “legal” question It is not a response could be jury's A reasoned asking judges rather like not to reason but deliberately, and is although acted Graham sky, presumably, to look to the and react. again, when Graham’s likely do so inquiries discrete Rorschach-like do Such are *26 family circumstances years and tender produce upon normative rules. or draw culpability, of moral in the account entered perform That we are asked to such tasks is not warranted. sentence is a death powerful signal something wrong. is a Penry It was true before “[t]he wrong to As is not difficult locate. the sen- preclude may not statute state put Harlan it in Justice McGautha: considering any ... tencer 1 That did not neces grips evidence.” Those who have come to however, mean, the state could sarily attempting actually hard task of to draft There mitigation. the effects of not limit sentencing channeling capital means of that, given argument Jú- powerful was a the lesson discretion have confirmed rele, allowed Eighth Amendment taught history by the recounted above. might a sentencer limit the effects state to identify To before the fact those charac Scalia give mitigating evidence. to teristics of criminal homicides and their but his was argument Penry, made the pen perpetrators which call for the death dissenting view. alty express these characteristics majority’s language fairly I no criticism which can be under intend persuaded struggle, I am applied by able but au stood again the freedom to define we have the thority, appear to be tasks which are say I sentencing role in Texas. jury’s (empha present ability beyond human of the Su “again” two decisions supplied).4 sis preme control this case. first Court McGautha, repudiated but Jus- Furman effect, state, fettering without Harlan’s wisdom is validated with each tice express jury the means for give must resulting of dead ends in the encounter response.2 The sec ing moral its reasoned puzzle. puzzle it is. conceptual And a youth and fami ond that Graham’s decides example, to the core For Ca- are relevant ly circumstances 104, 113-115, Oklahoma, Oklahoma, Thompson v. 487 U.S. 108 S.Ct. Eddings 455 U.S. 1. v. 876-877, (1982). 2687, 2698, (1988). 71 L.Ed.2d 102 S.Ct. 101 L.Ed.2d 702 Lynaugh, 109 S.Ct. 2. v. 183, 204, California, 4. McGautha v. 402 U.S. (1989). 106 L.Ed.2d 1454, 1466, (1971). 28 L.Ed.2d 711 Kentucky, Stanford (1989); abo see 106 L.Ed.2d 306 death sen upheld the v. Bullock5 baña SKELTON, observing that “the David Kenneth while tence de to death Petitioner-Appellant, Bullock sentenced have well killed he had neither concluding that spite despite the kill.”6 This intended nor WHITLEY, Warden, P. Louisiana John the court v. Florida7 in Enmund fact that al., Penitentiary, et State Amendment forbids Eighth that the held Respondents-Appellees. “one ... who aids penalty for a felony in the course which and abets No. 90-3904. but by others who is committed murder Appeals, United States Court kill, kill, attempt not himself does Fifth Circuit. place, or that killing takes that a intend I employed.”8 would force will be lethal 6, Jan. an accused that whether supposed heart moral kill lies intended kill finding intent to

culpability; Stated sentencer. left with the procedures must if state’s way,

another mitigating evidence a defendant’s

allow puzzling it is verdict in its expression

find supply court to appellate a state allow kill, find finding of intent the critical is a It jury’s verdict. missing from Penry,

long road from McGautha perverse in resulting jurisprudence response reasoned moral insists on a

that it assignment jurists have we jury, an

failed. left to the must be solution one where

Court, as this least in cases In meaningful latitude. left no

we are already postmarked

event, so case is judges re- scattering of predictable

by the react, not reason.

quired to L.Ed.2d 1140 U.S. 7. 458 L.Ed.2d 704 106 S.Ct. 5. 474 (1982). (1986). at 3376. 102 S.Ct. U.S. at 8. 458 U.S. at 6. notes overruled. Penny conclude that does not We We doubt that the Court intend scheme, statutory invalidate the Texas only ed this. Not has the Court not ex apply, continues to instances Jurek Jurek, pressly overruled but to the con major mitigating where no thrust trary approval it has cited Jurek with nu substantially beyond scope early example, merous times. As an particular all the issues. That is Texas, Adams v. this, ly appropriate in a case such as where (1980), 65 L.Ed.2d 581 the Court not “major there is no thrust” of upheld statutory ed that the Texas Jurek which is not scheme which “mandates a sentence of support negative answer to the second “statutory penalty ques death” if the three issue, only special issue which affirmatively, tions” are answered id. 100 Any holding, addressed. other Jurek at 2524 n. that Texas observed us, effectively seems to render Ju properly could ensure that its case rek, statutory and the Texas scheme which jurors willing accept “be sustained, dead letters. accept certain circumstances death is an