JUSTICE MARSHALL delivered the opinion of the Court.
In this case we address the constitutionality of the unanimity requirement in North Carolina's capital sentencing scheme. That requirement prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find. We hold that under our decision in Mills v. Maryland, 486 U.S. 367 (1988), North Carolina's unanimity requirement violates the Constitution by preventing the sentencer from considering all mitigating evidence. We therefore vacate petitioner's death sentence and remand for resentencing.
Petitioner Dock McKoy, Jr., was convicted in Stanly County, North Carolina, of first-degree murder. During the sentencing phase of McKoy's trial, the trial court instructed the jury, both orally and in a written verdict form, to answer four questions in determining its sentence. Issue One asked:
Issue Two asked: "Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?" Id., at 8, 24. The judge submitted to the jury eight possible mitigating circumstances. With respect to each circumstance, the judge orally instructed the jury as follows: "If you do not unanimously find this mitigating circumstance by a preponderance of the evidence, so indicate by having your foreman write, `No,' in that space" on the verdict form. Id., at 10-13. The verdict form reiterated the unanimity requirement: "In the space after each mitigating circumstance, write `Yes,' if you unanimously find that mitigating circumstance by a preponderance of the evidence. Write, `No,' if you do not unanimously find that mitigating circumstance by a preponderance of the evidence." Id., at 24.
The jury unanimously found the statutory mitigating circumstance that McKoy's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired."
Because the jury found the existence of mitigating circumstances, it was instructed to answer Issue Three, which asked: "Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found by you is, or are, insufficient to outweigh the aggravating circumstance or circumstances found by you?" Id., at 13, 26 (emphasis added). The jury answered this issue "Yes," and so proceeded to the final issue. Issue Four asked: "Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances found by you is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by you?" Id., at 14, 26 (emphasis added). The jury again responded "Yes." Pursuant to the verdict form and the court's instructions, the jury therefore made a binding recommendation of death.
During the pendency of petitioner's direct appeal to the North Carolina Supreme Court, this Court decided Mills v.
Petitioner challenged his sentence on the basis of Mills. The North Carolina Supreme Court, in a split decision, purported to distinguish Mills on two grounds and therefore denied relief. First, it noted that "Maryland's procedure required the jury to impose the death penalty if it `found' at least one aggravating circumstance and did not `find' any mitigating circumstances" or "if it unanimously found that the mitigating circumstances did not out weigh the aggravating circumstances." 323 N.C. 1, 40, 372 S.E.2d 12, 33 (1988). In contrast, the court stated, Issue Four in North Carolina's scheme allows the jury to recommend life imprisonment "if it feels that the aggravating circumstances are not sufficiently substantial to call for the death penalty, even if it has found several aggravating circumstances and no mitigating circumstances." Ibid.
Second, the court asserted that whereas in Maryland's scheme evidence remained "legally relevant" as long as one or more jurors found the presence of a mitigating circumstance supported by that evidence, id., at 41, 372 S. E. 2d, at 34, "in North Carolina evidence in effect becomes legally irrelevant to prove mitigation if the defendant fails to prove to the satisfaction of all the jurors that such evidence supports the finding of a mitigating factor," id., at 40, 372 S. E. 2d, at 33. The North Carolina Supreme Court believed that we
Despite the state court's inventive attempts to distinguish Mills, our decision there clearly governs this case. First, North Carolina's Issue Four does not ameliorate the constitutional infirmity created by the unanimity requirement. Issue Four, like Issue Three, allows the jury to consider only mitigating factors that it unanimously finds under Issue Two. Although the jury may opt for life imprisonment even where it fails unanimously to find any mitigating circumstances, the fact remains that the jury is required to make its decision based only on those circumstances it unanimously finds. The unanimity requirement thus allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a " `sentence less than death.' " Eddings v. Oklahoma, 455 U.S. 104, 110 (1982), quoting Lockett, supra, at 604 (plurality opinion). Moreover, even if all 12 jurors agree that there are some mitigating circumstances, North Carolina's scheme prevents them from giving effect to evidence supporting any of those circumstances in their deliberations under Issues Three and Four unless they unanimously find the existence of the same circumstance. This is the precise defect that compelled us to strike down the Maryland scheme in Mills. See 486 U. S., at 374. Our decision in Mills was not limited to cases in which the jury is required
Second, the State Supreme Court's holding that mitigating evidence is "relevant" only if the jury unanimously finds that it proves the existence of a mitigating circumstance distorts the concept of relevance. "[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' " New Jersey v. T. L. O., 469 U.S. 325, 345 (1985), quoting Fed. Rule Evid. 401. The meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding. As the Chief Justice of the North Carolina Supreme Court stated in dissent in this case:
Clearly, then, the mitigating circumstances not unanimously found to be present by the jury did not become "irrelevant"
Furthermore, our holdings in Skipper v. South Carolina, 476 U.S. 1 (1986), and Eddings v. Oklahoma, supra, show that the mere declaration that evidence is "legally irrelevant" to mitigation cannot bar the consideration of that evidence if the sentence could reasonably find that it warrants a sentence less than death. In Skipper, the trial court had excluded as irrelevant to mitigation evidence that the defendant had adjusted well to prison life. This Court reversed the death sentence on the ground that such evidence was "by its nature relevant to the sentencing determination" because it might convince the jury that the defendant "would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to life imprisonment." 476 U. S., at 7. Similarly, in Eddings, the sentencing court had ruled that it was precluded by law from considering evidence of the defendant's troubled childhood and emotional disturbance. The State Court of Criminal Appeals affirmed, holding that such evidence was irrelevant to mitigation because it did not support a legal excuse from criminal liability. This Court reversed on the ground that such evidence was undoubtedly relevant to mitigation even if it did not excuse the defendant's conduct. 455 U. S., at 113-116.
Nor can the State save the unanimity requirement by characterizing it as a standard of proof intended to ensure the reliability of mitigating evidence. The State's reliance on
It is no answer, of course, that the jury is permitted to "consider" mitigating evidence when it decides collectively, under Issue Two, whether any mitigating circumstances exist. Rather, Mills requires that each juror be permitted
Finally, we reject the State's contention that requiring unanimity on mitigating circumstances is constitutional because the State also requires unanimity on aggravating circumstances. The Maryland scheme in Mills also required unanimity on both mitigating and aggravating circumstances. See id., at 384-389. Such consistent treatment did not, however, save the unanimity requirement for mitigating circumstances in that case. A State may not limit a sentencer's consideration of mitigating evidence merely because it places the same limitation on consideration of aggravating circumstances. As the Court stated in Penry v. Lynaugh, 492 U.S. 302 (1989):
We conclude that North Carolina's unanimity requirement impermissibly limits jurors' consideration of mitigating evidence and hence is contrary to our decision in Mills.
It is so ordered.
JUSTICE WHITE, concurring.
There is nothing in the Court's opinion, as I understand it, that would invalidate on federal constitutional grounds a jury instruction that does not require unanimity with respect to mitigating circumstances but requires a juror to consider a mitigating circumstance only if he or she is convinced of its existence by a preponderance of the evidence. Under such an instruction, any juror must weigh in the balance any mitigating circumstance that in his or her mind is established by a preponderance of the evidence, whether or not any other jurors are likewise convinced. Neither does the Court's opinion hold or infer that the Federal Constitution forbids a State to place on the defendant the burden of persuasion with respect to mitigating circumstances. On this basis, I concur in the Court's opinion.
I join the Court's opinion, but write separately only to underscore my conviction that Mills v. Maryland, 486 U.S. 367 (1988), controls this case and that Mills was correctly decided.
In the dissent's view, the Court in Mills simply assumed, but did not decide, the invalidity of a requirement that mitigating factors could be considered by the jury only if they were found unanimously. That characterization cannot be squared with the text of the Mills opinion. Part II of that opinion directly addressed the question whether such a requirement was permissible. The Court concluded that a rule mandating unanimous agreement before any juror could consider a particular mitigating factor was forbidden by our decisions in Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982). That conclusion was an essential step in the Court's rationale for overturning the Maryland statute. Ambiguous jury instructions, even in a capital case, do not violate the Eighth Amendment simply because they are ambiguous. And the question addressed in Part III of the opinion — whether a reasonable juror might have interpreted the instructions as precluding his consideration of any mitigating factor not found unanimously — would have been wholly lacking in constitutional significance if such a rule were permissible. Rather, the Maryland instructions were held to be invalid because they were susceptible of two plausible interpretations, and under one of those interpretations the instructions were unconstitutional.
The dissent acknowledges that "there is language in Mills. . . suggesting that a unanimity requirement would contravene this Court's decisions." Post, at 459. The dissent contends, however, that any such suggestions were dicta. In the dissent's view the propriety of a unanimity requirement was not properly before the Court, since Maryland had conceded that such a requirement would be unconstitutional and
First, even if the issue had not been disputed, the Court's resolution of the question would constitute a binding precedent. It is unusual, but hardly unheard of, for this Court to decide significant legal questions on which the parties have not joined issue. See, e. g., Teague v. Lane, 489 U.S. 288 (1989); Penry v. Lynaugh, 492 U.S. 302, 313-314 (1989) (holding that Teague principles apply to capital sentencing). Although the wisdom of deciding such issues without briefing and argument has been questioned, see Teague, 489 U. S., at 326-327 (BRENNAN, J., dissenting); Penry, 492 U. S., at 349 (STEVENS, J., concurring in part and dissenting in part), it has not been suggested heretofore that such decisions are lacking in precedential value. The dissent's approach to stare decisis would allow a respondent before this Court, by means of a timely concession, to avoid resolution of a recurring legal question so that it might be litigated at a more propitious time.
Moreover, the dissent distorts the record in contending that the propriety of a unanimity requirement was not at issue in Mills. The argument section of the petitioner's brief in Mills began: "The underlying question is whether the Maryland Legislature may constitutionally require unanimous agreement by the jurors before any mitigating circumstance may be considered in the weighing process." Brief for Petitioner, O. T. 1987, No. 87-5367, p. 9. The bulk of the State's response was devoted to the argument that no
The dissent quotes the first sentence of this passage, characterizing it as a "concession" by the State that a unanimity requirement would be invalid. Post, at 459. But since the remainder of the paragraph sets forth precisely the same argument in defense of the unanimity requirement that the dissent advances today, compare post, at 465-466,
I remain convinced, moreover, that Mills was correctly decided. It is apparent to me that the rule at issue here implicates the concerns expressed in Lockett and Eddings. In my view it is pointless to ask whether the sentence in this case is the jury or the jurors. The jurors are the jury: and if 11 of them are forbidden to give effect to mitigating evidence which they deem persuasive, then the right guaranteed by Lockett has been effectively negated, even if the restriction is imposed by the 12th member of the sentencing body. If state law provided that all mitigating evidence was first to be presented to the foreperson, who could then decide what portions
The dissent suggests that the rule announced in Mills is an aberration, a quirk of our Eighth Amendment jurisprudence. In fact, however, it is the North Carolina unanimity requirement which represents an extraordinary departure from the way in which juries customarily operate. Juries are typically called upon to render unanimous verdicts on the ultimate issues of a given case. But it is understood that different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.
As the dissent points out, our cases have upheld state rules that place upon criminal defendants the burden of proving affirmative defenses. See, e. g., Patterson v. New York, 432 U.S. 197 (1977). For two reasons, however, these cases are not on point. First, the Court's reasoning in the affirmative-defense cases appears to rest upon a "greater power includes the lesser" argument: since the State is not constitutionally required to recognize the defense at all, it may take the lesser step of placing the burden of proof upon the defendant. See id., at 209. But since the State may not exercise the greater power of prohibiting a capital defendant from introducing mitigating evidence, that reasoning is inapposite here. Second, the dissent's analogy to the affirmative-defense cases confuses the concepts of unanimity and burden of proof. To say that the burden of proof may be placed upon the defendant says nothing at all about the situation in which some jurors, but not others, believe that the burden has been satisfied. The dissent's analogy presumes that once the elements of an offense have been proved, the jury's failure to agree as
In Mills, the Court described two scenarios in which the operation of the unanimity requirement would result in a sentence of death, even though 11 (in the first scenario) or all 12 of the jurors believed that the mitigating circumstances outweighed those in aggravation. In the first hypothetical, 11 jurors believed that six mitigating factors were present, but the twelfth juror's veto prevented any of the evidence in mitigation from being considered at the final stage of the sentencing process. 486 U. S., at 373-374. In the second scenario, all 12 jurors agreed that some mitigating factors were present, and outweighed the factors in aggravation, but the jury was not unanimous as to the existence of any particular mitigating circumstance. Id., at 374. We concluded that "it would certainly be the height of arbitrariness to allow or require the imposition of the death penalty under the circumstances so postulated." Ibid. That assessment seems to me unanswerable.
JUSTICE KENNEDY, concurring in the judgment.
Jury unanimity, it is true, is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury's ultimate decision will reflect the conscience of the community. Yet the unique interaction of the elements of the sentencing statute in issue here can allow the same requirement of unanimity to produce a capital sentence that lacks unanimous support of the jurors, and, more than this, is thought to be inappropriate by 11 of the 12.
As a consequence, the statute here can operate in the same manner as the jury instructions in Mills v. Maryland, 486 U.S. 367 (1988), as construed by the majority in that case, to produce a result that is "the height of arbitrariness." On this sole rationale, I concur in the judgment here. The
That this case may be resolved on a ground more consistent with our precedents is evident from the Mills opinion itself. The relevant section of that decision begins:
Petitioner's counsel emphasized this point in the brief discussion of constitutionality in the Mills oral argument:
The central idea of these passages is that the death penalty should not be imposed on the basis of a single juror's vote where 11 jurors think the penalty undeserved. The Court stated: "The possibility that a single juror could block [consideration of a mitigating factor], and consequently require the jury to impose the death penalty, is one we dare not risk." 486 U. S., at 384 (emphasis added).
A holdout juror incident can occur under North Carolina's statute if all jurors find an aggravating factor they agree to be of sufficient gravity to support a penalty of death, and 11 jurors find an outweighing mitigating factor that one juror refuses, for whatever reason, to accept. If the jurors follow their instructions, as we must assume they will, the 11 must disregard the mitigating circumstance. After the balancing step of the statute is performed, there can be only one result. The " `judgment is death even though eleven jurors think the death penalty wholly inappropriate.' " Mills, supra, at 374. Given the reasoned, moral judgment inherent in capital sentencing by the jury, the extreme arbitrariness of this potential result is evident.
This said, it must be stressed that much in the opinion for the Court in today's case goes, without cause, much further. It is true that, in addition to discussing the extreme arbitrariness of the statute at issue, the Mills opinion went on to state that the unanimity requirement was inconsistent with out holdings in Lockett, Eddings, Hitchcock v. Dugger, 481 U.S. 393 (1987), and Skipper v. South Carolina, 476 U.S. 1 (1986). Even so, the Court stressed that the unanimity requirement there, combined with the final stage of the Maryland statute, could produce an arbitrary result: "a jury that does not unanimously agree on the existence of any mitigating
I cannot agree with the Court's statement today that "[o]ur decision in Mills was not limited to cases in which the jury is required to impose the death penalty if it finds that aggravating circumstances outweigh mitigating circumstances or that no mitigating circumstances exist at all."
I would recognize the arbitrary operation of the North Carolina system as the exclusive basis of our decision, for the unanimity requirement, standing alone, is not invalid under our Lockett line of cases. In Lockett itself, we invalidated an Ohio statute that precluded presentation of certain types of mitigating evidence to the jury. In Eddings, Skipper, and Hitchcock, we applied the same rule to judicial instructions that barred consideration of certain nonstatutory evidence bearing on the defendant's character. More recently, in Penry v. Lynaugh, 492 U.S. 302 (1989), we held that Lockett's requirements were not met in a statutory scheme that provided no avenue through which mitigating evidence could be considered, no matter how clearly the evidence in mitigation might have been established for the jury, thereby making its presentation meaningless.
The description of a "one juror veto" system in Mills as the "height of arbitrariness" supports the result here, and I would decide this case on that basis alone. I agree with JUSTICE WHITE, ante, at 444, that the discussion of Lockett in today's opinion casts no doubt on evidentiary requirements for presentation of mitigating evidence such as assigning the burden of proof to the defendant or requiring proof of mitigating circumstances by a preponderance of the evidence. His opinion and our other cases already make clear that the discussion of Lockett in today's opinion has no application beyond the issue presented in this case. Because of my concern that the opinion itself might otherwise have spawned confusing capital litigation over novel and unsupportable
Today the Court holds that the Eighth Amendment prohibits a State from structuring its capital sentencing scheme to channel jury discretion by requiring that mitigating circumstances be found unanimously. Because I believe that holding is without support in either the Eighth Amendment or our previous decisions, I dissent.
Under North Carolina's capital sentencing scheme, once a defendant is found guilty of capital murder, a separate sentencing hearing is held at which the State is permitted to introduce evidence of aggravating circumstances, and the defendant evidence of mitigating circumstances. Specific aggravating and mitigating circumstances are defined by statute, but the defendant is permitted to put forward any other mitigating circumstance he wishes. The State must prove the existence of the specified aggravating circumstances beyond a reasonable doubt, and the defendant must prove the existence of mitigating factors by a preponderance of the evidence. For any aggravating or mitigating circumstance to be given operative effect, it must be found unanimously by the jury. Absent unanimity, the proponent of the circumstance has failed to meet his burden of persuasion, and the circumstance will be considered not proved.
In this case, the jury was given a special verdict form on which it was asked to answer four questions. First, whether it unanimously found beyond a reasonable doubt one or more specified statutory aggravating circumstances. The jury answered "Yes" with respect to two aggravating circumstances. Second, whether it unanimously found by a preponderance
I think this scheme, taken as a whole, satisfies the due process and Eighth Amendment concerns enunciated by this Court. By requiring that the jury find at least one statutory aggravating circumstance, North Carolina has adequately narrowed the class of death-eligible murderers. See Zant v. Stephens, 462 U.S. 862, 877-879 (1983). On the other hand, by permitting the jury to consider evidence of, and find, any mitigating circumstance offered by the defendant, North Carolina has ensured that the jury will "be able to consider and give effect to that evidence in imposing sentence." Penry v. Lynaugh, 492 U.S. 302, 319 (1989). By requiring both aggravating circumstances to be found unanimously (beyond a reasonable doubt) and mitigating circumstances to be found unanimously (by only a preponderance of the evidence), North Carolina has "reduc[ed] the likelihood that [the jury] will impose a sentence that fairly can be called capricious or arbitrary." Gregg v. Georgia, 428 U.S. 153, 194-195 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Finally, by requiring the jury unanimously to find beyond a reasonable doubt not only that the aggravating circumstances outweigh the mitigating circumstances, but also that they are sufficiently substantial in light of the mitigating circumstances to justify the death penalty. North Carolina has
Before discussing the constitutional issue petitioner raises, I wish to address briefly the Court's assertion that we have already addressed and resolved this very issue in the past — that "our decision [in Mills] clearly governs this case." Ante, at 439. Although there is language in Mills v. Maryland, 486 U.S. 367 (1988), suggesting that a unanimity requirement would contravene this Court's decisions in Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), that issue plainly was not presented in Mills, and can therefore not have been decided.
The Court's opinion in Mills begins by recounting that the Maryland Court of Appeals "did not dispute that if the statute and [verdict] form were read as petitioner suggested [i. e., to require mitigating factors to be found unanimously], jurors would be improperly prevented from giving due consideration to mitigating evidence." Mills, supra, at 372 (emphasis in original). The State itself made the same concession in its brief before this Court. ("Under the interpretation of the statute proffered by Petitioner, an unconstitutional restriction existed in that unanimity on a particular mitigating circumstance was required before it could be weighed in determining the appropriate sentence." Brief for Respondent in Mills v. Maryland, O. T. 1987, No. 87-5367, p. 19.)
The Court's characterization of Mills as "holding that the instructions, if [interpreted to require unanimity], were unconstitutional," ante, at 444, n. 8, and "strik[ing] down the Maryland scheme," ante, at 439, is pure revisionism. No Maryland scheme existed except the one authoritatively described by the Maryland Court of Appeals, see Mullaney v. Wilbur, 421 U.S. 684, 690-691 (1975) — which did not require a unanimous finding of mitigation for the defendant to receive a life sentence. To be sure, Mills contains language suggesting that a unanimity requirement would contravene Lockett and Eddings. See Mills, 486 U. S., at 374-375. But, under the circumstances, these suggestions were plainly dicta. Any doubt is resolved by JUSTICE WHITE'S separate concurrence, which states in its entirety:
The constitutional issue conceded in Mills is both presented and contested in the present case. North Carolina's capital sentencing statute unambiguously provides that mitigating circumstances must be found by the jury unanimously. The Court finds this scheme constitutionally defective because it prevents individual jurors "from giving effect to evidence that they believe calls for a sentence less than death." Ante, at 439 (citing Eddings, 455 U. S., at 110, and Lockett, 438 U. S., at 604) (internal quotations omitted). This is so because each juror's answers to the ultimately dispositive Issues Three and Four can take account of only those mitigating circumstances found by the jury unanimously under Issue Two. Thus, any juror who concludes that the defendant has proved additional mitigating circumstances is precluded by his colleagues' disagreement from giving that conclusion effect. The Court several times refers to the prospect that one " `holdout' juror" will prevent the other 11 from reaching the decision they wish, ante, at 438, but the reader should not be misled: The constitutional principle appealed to is not majority rule but just the opposite. According to the Court, North Carolina's system in which one juror can prevent the others from giving effect to a mitigating circumstance is invalid only because the Constitution requires, in the context
With respect, "the principle established in Lockett" does not remotely support that conclusion. In Lockett, the Court vacated a death sentence imposed under a statute that limited the sentencing judge's consideration of mitigating factors to three statutory circumstances. A plurality of the Court reasoned that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U. S., at 604 (opinion of Burger, C. J.) (emphasis omitted; footnotes omitted). Similarly, in Eddings, also relied upon by the Court, we vacated a death sentence because the sentencing judge refused to consider evidence proffered by the defendant of his unhappy upbringing. We reasoned: "Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse
The principle established by these cases is that a State may not preclude the sentencer from considering and giving effect to evidence of any relevant mitigating circumstance proffered by the defendant. See Penry, supra, at 319 ("The sentencer must . . . be able to consider and give effect to [mitigating] evidence in imposing sentence") (emphasis added); Hitchcock, supra, at 394 ("[T]he sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence") (internal quotations omitted; citations omitted; emphasis added); Eddings, supra, at 5 (mitigating "evidence may not be excluded from the sentencer's consideration") (emphasis added); Eddings, supra, at 114 ("[T]he sentencer [may not] refuse to consider . . . any relevant mitigating evidence") (emphasis added); Lockett, supra, at 604 ("Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering" mitigating evidence) (emphasis added; footnote omitted). The sentencer in this case was the North Carolina jury, which has not been precluded from considering and giving effect to all mitigating circumstances.
What petitioner complains of here is not a limitation upon what the sentencer was allowed to give effect to, but rather a limitation upon the manner in which it was allowed to do so —
Nothing in our prior cases, then, supports the rule the Court has announced; and since the Court does not even purport to rely upon constitutional text or traditional practice, nothing remains to support the result. There are, moreover, some affirmative indications in prior cases that what North Carolina has done is constitutional. Those indications are not compelling — for the perverse reason that the less support exists for a constitutional claim, the less likely it is that the claim has been raised or taken seriously before, and hence the less likely that this Court has previously rejected it. If petitioner should seek reversal of his sentence because
With the caution, however, that it is entirely superfluous, I may mention several aspects of our jurisprudence that appear to contradict the Court's result. To begin with, not only have we never before invalidated a jury-unanimity requirement, but we have approved schemes imposing such a requirement in contexts of great importance to the criminal defendant — for example, as a condition to establishing the defense of self-defense in a capital murder case, see Martin v. Ohio, 480 U.S. 228 (1987); Ohio Rev. Code Ann. §§ 2903.01, 2929.02 (1987); Ohio Rule Crim. Proc. 31(A), as a condition to establishing the defense of extreme emotional disturbance in a second-degree murder case, see Patterson v. New York, 432 U.S. 197 (1977); N. Y. Crim. Proc. Law § 310.80 (McKinney 1971), and as a condition to establishing the defense of insanity in a second-degree murder case, see Rivera v. Delaware, 429 U.S. 877 (1976); Del. Super. Ct. Crim. Rule 31(a), Del. Code Ann., vol. 17, p. 227 (1975).
The Court discusses briefly one of the above cases (Patterson), in which we said that if a State "chooses to recognize a factor that mitigates the degree of criminality or punishment,. . . the State may assure itself that the fact has been established with reasonable certainty," 432 U. S., at 209. It distinguishes that case, and presumably would distinguish the rest I have cited, as follows: "The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall." Ante, at 442. But surely the Constitution also requires States to allow consideration of all evidence bearing
Likewise incompatible with the Court's theory is the principle of guided discretion that we have previously held to be essential to the validity of capital sentencing. States, we have said, "must channel the sentencer's discretion by `clear and objective standards' that provide `specific and detailed guidance' and that `make rationally reviewable the process for imposing a sentence of death.' " Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion) (footnotes omitted). There is little guidance in a system that requires each individual juror to bring to the ultimate decision his own idiosyncratic notion of what facts are mitigating, untempered by the discipline of group deliberation and agreement. Until today, I would have thought that North Carolina's scheme was a model of guided discretion. The requirement that the jury determine four specific issues operates like a special verdict — a device long recognized as enhancing the reliability and rationality of jury determinations. See, e. g., Sunderland, Verdicts, General and Special, 29 Yale L. J. 253, 261 (1920). Moreover, by enabling the reviewing court to examine the specific findings underlying the verdict it facilitates appellate review, which we have described as "an important additional safeguard against arbitrariness and caprice." Gregg v. Georgia, 428 U. S., at 198 (opinion of Stewart, Powell, and STEVENS, JJ.). "Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or
The Court strikes down this eminently reasonable scheme. The quality of what it substitutes is conveniently evaluated by considering how future North Carolina juries will behave under the Court's own doomsday hypothetical, in which all jurors believe the defendant has proved one mitigating circumstance, but each believes a different one. Ante, at 439-440. A jury, of course, is not a collection of individuals who are asked separately about their independent views, but a body designed to deliberate and decide collectively. See Williams v. Florida, 399 U.S. 78, 100 (1970) (Sixth Amendment requires a jury "large enough to promote group deliberation"); Ballew v. Georgia, 435 U.S. 223 (1978) (five-person jury too small); id., at 232-234 (opinion of BLACKMUN, J.) (small juries impede group deliberation). But after today's decision, in the hypothetical the Court has posed, it will be quite impossible for North Carolina sentencing juries to "deliberate" on the dispositive questions (Issues Three and Four — whether the aggravating circumstances outweigh the mitigating circumstances, and whether in light of the mitigating circumstances the aggravating circumstances justify death), because no two jurors agree on the identity of the "mitigating circumstances." Each juror must presumably decide in splendid isolation, on the basis of his uniquely determined mitigating circumstance, whether death should be imposed. What was supposed to be jury trial has degenerated into a poll. It seems to me inconceivable that such a system should be — not just tolerated under the Constitution — but constitutionally prescribed.
"Even though the Court of Appeals has authoritatively determined that Maryland law entitled this defendant to a jury instruction requiring a life sentence if any single juror found sufficient mitigation; and even though, as petitioner contends, the instruction here mistakenly required unanimity on mitigation; you must nevertheless uphold the death sentence because, even though Maryland law did not in fact require unanimity, requiring it would not be unconstitutional."
It is facially implausible that Maryland's Attorney General would be rash enough to make this argument — and even more implausible that we would entertain it on its merits, rejecting it only because a unanimity requirement would, too, be unconstitutional. Quite obviously, the constitutional issue is irrelevant. Whether or not Maryland law could constitutionally require unanimity, the Court of Appeals authoritatively determined that it did not do so; and a death sentence based upon an erroneous instruction to that effect would have to be set aside. JUSTICE BLACKMUN is correct that "[a]mbiguous jury instructions, even in a capital case, do not violate the Eighth Amendment simply because they are ambiguous," ante, at 445, but they do violate the Due Process Clause if they misstate the law to the defendant's detriment — and it is not essential to that violation that the law as misstated be an unconstitutional law. Thus, to take the most extreme example, if state law, as authoritatively interpreted by the State's Supreme Court, does not authorize the death penalty for a certain offense, the Due Process Clause would not permit a state trial court to impose it even if the jury instructions comported with the Eighth Amendment. See Hicks v. Oklahoma, 447 U.S. 343 (1980) (where state law requires jury sentencing, state courts may not enforce sentence not imposed by jury).
The single passage JUSTICE BLACKMUN relies upon from the the State's brief does not support the unlikely proposition that the State made the previously described argument. It is plainly addressing the constitutionality, not of the erroneous instruction petitioner asserted had been given, but of the instruction provided by Maryland law as interpreted by the Court of Appeals. This is clear because it discusses the constitutionality of requiring unanimity for "[t]he rejection of a mitigating circumstance," Brief for Respondent in Mills 19 (emphasis added). That was the Court of Appeals' theory of what Maryland law required, whereas petitioner had argued that the instruction actually given required a mitigating circumstance to be rejected if even a single juror objected. The quoted passage appears, moreover, in a section of the brief entitled "The Maryland Court of Appeals' interpretation of the statutory scheme is constitutional," id., at 14 (emphasis added), which is a subdivision of a part of the brief entitled: "THE MARYLAND CAPITAL PUNISHMENT STATUTE AS INTERPRETED BY THE MARYLAND COURT OF APPEALS PERMITS FULL CONSIDERATION OF EVIDENCE PRESENTED IN MITIGATION OF SENTENCE," id., at 8 (emphasis added). JUSTICE BLACKMUN is correct that State v. Kirkley, 308 N.C. 196, 218-219, 302 S.E.2d 144, 157 (1983), could be cited for the proposition that the trial court's instructions, interpreted as Mills would have it (and if Maryland law provided for such instructions), would be constitutional. But in fact Maryland's brief cited it for the more limited point that the unanimity requirements in the law as interpreted by the Court of Appeals (for both acceptance and rejection of mitigation, but with an automatic life sentence in the event of deadlock) do not interfere with the "consideration of evidence" and thus do not for that reason violate Lockett and Eddings. Brief for Respondent in Mills 20. Finally, if JUSTICE BLACKMUN were correct that the State had sought to defend the constitutionality of Mills' interpretation of the scheme, one would have expected the State at least to have mentioned that significant point at oral argument; it did not.