Justice Kennedy, delivered the opinion of the Court.
For the second time this Term, we consider a constitutional challenge to the former Texas capital sentencing system. Like the condemned prisoner in Graham v. Collins, 506 U.S. 461 (1993), the petitioner here claims that the Texas special issues system in effect until 1991 did not allow his jury to give adequate mitigating effect to evidence of his youth. Graham was a federal habeas corpus proceeding where the petitioner had to confront the rule of Teague v. Lane, 489 U.S. 288 (1989), barring the application of new rules of law on federal habeas corpus. In part because the relief sought by Graham would have required a new rule within the meaning of Teague, we denied relief. The instant case comes to us on direct review of petitioner's conviction and sentence, so we consider it without the constraints of Teague, though of course with the customary respect for the
Petitioner, then 19 years of age, and his companion, Amanda Miles, decided to rob Allsup's convenience store in Snyder, Texas, on March 23, 1986. After agreeing that there should be no witnesses to the crime, the pair went to the store to survey its layout and, in particular, to determine the number of employees working in the store that evening. They found that the only employee present during the predawn hours was a clerk, Jack Huddleston. Petitioner and Miles left the store to make their final plans.
They returned to Allsup's a short time later. Petitioner, a handgun in his pocket, reentered the store with Miles. After waiting for other customers to leave, petitioner asked Huddleston whether the store had any orange juice in one gallon plastic jugs because there were none on the shelves. Saying he would check, Huddleston went to the store's cooler. Petitioner followed Huddleston there, told Huddleston the store was being robbed, and ordered him to lie on the floor. After Huddleston complied with the order and placed his hands behind his head, petitioner shot him in the back of the neck, killing him. When petitioner emerged from the cooler, Miles had emptied the cash registers of about $160. They each grabbed a carton of cigarettes and fled.
In April 1986, a few weeks after this crime, petitioner was arrested for a subsequent robbery and attempted murder of a store clerk in Colorado City, Texas. He confessed to the murder of Jack Huddleston and the robbery of Allsup's and was tried and convicted of capital murder. The homicide qualified as a capital offense under Texas law because petitioner intentionally or knowingly caused Huddleston's death
After the jury determined that petitioner was guilty of capital murder, a separate punishment phase of the proceedings was conducted in which petitioner's sentence was determined. In conformity with the Texas capital sentencing statute then in effect, see Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981),
. . . . .
The trial court made clear to the jury the consequences of its answers to the special issues:
Although petitioner's counsel filed various objections to the jury charge, there was no request that a more expansive instruction be given concerning any particular mitigating circumstance, including petitioner's youth.
In anticipation of the trial court's instructions, the State during the punishment phase of the proceedings presented numerous witnesses who testified to petitioner's violent tendencies. The most serious evidence related to the April convenience store robbery in Colorado City. Witnesses testified that petitioner had shot that store clerk in the face, resulting in the victim's permanent disfigurement and brain damage. Other witnesses testified that petitioner had fired two shots at a man outside a restaurant in Snyder only six days after the murder of Huddleston, and a sheriff's deputy who worked in the jail where petitioner was being held testified that petitioner had threatened to "get" the deputy when he got out of jail.
Petitioner's acts of violence were not limited to strangers. A long-time friend of petitioner, Beverly Johnson, testified that in early 1986 petitioner had hit her, thrown a large rock at her head, and pointed a gun at her on several occasions. Petitioner's girlfriend, Paula Williams, reported that, after
The State established that the crimes committed in 1986 were not petitioner's first experience with the criminal justice system. Petitioner had been convicted in 1985 of a store burglary in Waco, Texas. Petitioner twice violated the terms of probation for that offense by smoking marijuana. Petitioner was still on probation when he committed the Huddleston murder.
The defense presented petitioner's father, Dorsie Johnson, Sr., as its only witness. The elder Johnson attributed his son's criminal activities to his drug use and his youth. When asked by defense counsel whether his son at the age of 19 was "a real mature person," petitioner's father answered:
At the close of his testimony, Johnson summarized the role that he thought youth had played in his son's crime:
At the voir dire phase of the proceedings, during which more than 90 prospective jurors were questioned over the course of 15 days, petitioner's counsel asked the venirepersons whether they believed that people were capable of change and whether the venirepersons had ever done things as youths that they would not do now. See, e. g., Tr. of Voir Dire in No. 5575 (132d Jud. Dist. Ct., Scurry County, Tex.), pp. 1526-1529 (Juror Swigert); id., at 1691-1692 (Juror Freeman); id., at 2366 (Juror Witte); id., at 2630-2632 (Juror Raborn).
Counsel also urged the jury to remember the testimony of petitioner's father. Id., at 73-74.
The jury was instructed that the State bore the burden of proving each special issue beyond a reasonable doubt. Id., at 145. A unanimous jury found that the answer to both special issues was yes, and the trial court sentenced petitioner to death, as required by law. Tex. Code Crim. Proc. Ann., Art. 37.071(e) (Vernon 1981).
On appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence after rejecting petitioner's seven allegations of error, none of which involved a challenge to the punishment-phase jury instructions. 773 S.W.2d 322 (1989). Five days after that state court ruling, we issued our opinion in Penry v. Lynaugh, 492 U.S. 302 (1989). Petitioner filed a motion for rehearing in the Texas Court of Criminal Appeals arguing, among other points, that the special issues did not allow for adequate consideration of his youth. Citing Penry, petitioner claimed that a separate instruction should have been given that would have allowed the jury to consider petitioner's age as a mitigating factor. Although petitioner had not requested such an instruction at trial and had not argued the point prior to the rehearing stage on appeal, no procedural bar was interposed. Instead, the Court of Criminal Appeals considered the argument on the merits and rejected it. After noting that it had already indicated in Lackey v. State, 819 S.W.2d 111, 134 (Tex. Crim. App. 1989), that youth was relevant to the jury's consideration
Petitioner filed a petition for certiorari, which we granted. 506 U.S. 1090 (1993).
This is the latest in a series of decisions in which the Court has explained the requirements imposed by the Eighth and Fourteenth Amendments regarding consideration of mitigating circumstances by sentencers in capital cases. The earliest case in the decisional line is Furman v. Georgia, 408 U.S. 238 (1972). At the time of Furman, sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death, resulting in a system in which there was "no meaningful basis for distinguishing the few cases in which [death was] imposed from the many cases in which it [was] not." Id., at 313 (White, J., concurring). Although no two Justices could agree on a single rationale, a majority of the Court in Furman concluded that this system was "cruel and unusual" within the meaning of the Eighth Amendment. The guiding principle that emerged from Furman was that States were required to channel the discretion of sentencing juries in order to avoid a system in which the death penalty would be imposed in a "wanto[n]" and "freakis[h]" manner. Id., at 310 (Stewart, J., concurring).
Four Terms after Furman, we decided five cases, in opinions issued on the same day, concerning the constitutionality of various capital sentencing systems. Gregg v. Georgia,
Based upon this principle, it might have been thought that statutes mandating imposition of the death penalty if a defendant was found guilty of certain crimes would be consistent with the Constitution. But the joint opinions of Justices Stewart, Powell, and Stevens indicated that there was a second principle, in some tension with the first, to be considered in assessing the constitutionality of a capital sentencing scheme. According to the three Justices, "consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson, supra, at 304 (plurality opinion); accord, Gregg, supra, at 189-190, n. 38 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek, supra, at 273-274 (opinion of Stewart, Powell, and Stevens, JJ.); Roberts, supra, at 333 (plurality opinion of Stewart, Powell, and Stevens, JJ.). Based upon this second principle, the Court struck down mandatory imposition of the death penalty for specified crimes as inconsistent with the requirements of the Eighth and Fourteenth
Two Terms later, a plurality of the Court in Lockett v. Ohio, 438 U.S. 586 (1978), refined the requirements related to the consideration of mitigating evidence by a capital sentencer. Unlike the mandatory schemes struck down in Woodson and Roberts in which all mitigating evidence was excluded, the Ohio system at issue in Lockett permitted a limited range of mitigating circumstances to be considered by the sentencer.
Although Lockett and Eddings prevent a State from placing relevant mitigating evidence "beyond the effective reach of the sentencer," Graham, supra, at 475, those cases and others in that decisional line do not bar a State from guiding the sentencer's consideration of mitigating evidence. Indeed, we have held that "there is no . . . constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence `in an effort to achieve a more rational and equitable administration of the death penalty,' " Boyde v. California, 494 U.S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U.S. 164, 181 (1988) (plurality opinion)); see also Saffle, supra, at 490.
The Texas law under which petitioner was sentenced has been the principal concern of four previous opinions in our Court. See Jurek v. Texas, supra; Franklin v. Lynaugh, supra; Penry v. Lynaugh, 492 U.S. 302 (1989); Graham, supra. As we have mentioned, Jurek was included in the group of five cases addressing the post-Furman statutes in 1976.
In Jurek, the joint opinion of Justices Stewart, Powell, and Stevens first noted that there was no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment, the statute having adopted five different classifications of murder for that purpose. See Jurek, 428 U. S., at 270-271. Turning to the mitigation side of the sentencing system, the three Justices said: "[T]he constitutionality of the Texas procedures turns on whether the enumerated [special issues] allow consideration of particularized mitigating factors." Id., at 272. In assessing the constitutionality of the mitigation side of this scheme, the three Justices examined in detail only the second special issue, which asks whether "`there is a probability that the defendant
The joint opinion determined that the Texas system satisfied the requirements of the Eighth and Fourteenth Amendments concerning the consideration of mitigating evidence: "By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function." Id., at 276. Three other Justices agreed that the Texas system satisfied constitutional requirements. See id., at 277 (White, J., concurring in judgment).
We next considered a constitutional challenge involving the Texas special issues in Franklin v. Lynaugh, supra. Although the defendant in that case recognized that we had
The third case in which we considered the Texas statute is the pivotal one from petitioner's point of view, for there we set aside a capital sentence because the Texas special issues did not allow for sufficient consideration of the defendant's mitigating evidence. Penry v. Lynaugh, supra. In Penry, the condemned prisoner had presented mitigating evidence of his mental retardation and childhood abuse. We agreed that the jury instructions were too limited for the appropriate consideration of this mitigating evidence in light of Penry's particular circumstances. We noted that "[t]he jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence." 492 U. S., at 320. Absent any definition for the term "deliberately,"
We confirmed this limited view of Penry and its scope in Graham v. Collins. There we confronted a claim by a defendant that the Texas system had not allowed for adequate consideration of mitigating evidence concerning his youth, family background, and positive character traits. In rejecting the contention that Penry dictated a ruling in the defendant's favor, we stated that Penry did not "effec[t] a sea change in this Court's view of the constitutionality of the former Texas death penalty statute," 506 U. S., at 474, and we noted that a contrary view of Penry would be inconsistent with the Penry Court's conclusion that it was not creating a "new rule," 506 U. S., at 474. We also did not accept the view that the Lockett and Eddings line of cases, upon which Penry rested, compelled a holding for the defendant in Graham:
In addition, we held that Graham's case differed from Penry in that "Graham's evidence—unlike Penry's—had mitigating relevance to the second special issue concerning his likely future dangerousness." 506 U. S., at 475. We concluded that, even with the benefit of the subsequent Penry decision, reasonable jurists at the time of Graham's sentencing "would [not] have deemed themselves compelled to accept Graham's claim." 506 U. S., at 477. Thus, we held that a ruling in favor of Graham would have required the impermissible application of a new rule under Teague. 506 U. S., at 477.
Today we are asked to take the step that would have been a new rule had we taken it in Graham. Like Graham, petitioner contends that the Texas sentencing system did not allow the jury to give adequate mitigating effect to the evidence of his youth. Unlike Graham, petitioner comes here on direct review, so Teague presents no bar to the rule he seeks. The force of stare decisis, though, which rests on considerations parallel in many respects to Teague, is applicable here. The interests of the State of Texas, and of the victims whose rights it must vindicate, ought not to be turned aside when the State relies upon an interpretation of the Eighth Amendment approved by this Court, absent demonstration that our earlier cases were themselves a misinterpretation
There is no dispute that a defendant's youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death sentence is to meet the requirements of Lockett and Eddings. See, e. g., Sumner v. Shuman, 483 U.S. 66, 81-82 (1987); Eddings , 455 U. S., at 115; Lockett, 438 U. S., at 608 (plurality opinion). Our cases recognize that "youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage." Eddings, supra, at 115. A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and illconsidered actions and decisions. A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.
The question presented here is whether the Texas special issues allowed adequate consideration of petitioner's youth. An argument that youth can never be given proper mitigating force under the Texas scheme is inconsistent with our holdings in Jurek, Graham, and Penry itself. The standard against which we assess whether jury instructions satisfy the rule of Lockett and Eddings was set forth in Boyde v. California, 494 U.S. 370 (1990). There we held that a reviewing court must determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Id., at 380. Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.
We decide that there is no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner's youth. Pursuant to the second special issue, the jury was instructed to decide whether there was "a probability that [petitioner] would commit criminal acts of violence that would constitute a continuing threat to society." App. 149. The jury also was told that, in answering the special issues, it could consider all the mitigating evidence that had been presented during the guilt and punishment phases of petitioner's trial. Id., at 147. Even on a cold record, one cannot be unmoved by the testimony of petitioner's father urging that his son's actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination. As we recognized in Graham, the fact that a juror might view the evidence of youth as aggravating, as opposed to mitigating, does not mean that the rule of Lockett is violated. Graham, 506 U. S., at 475-476. As long as the mitigating evidence is within "the effective reach of the sentencer," the requirements of the Eighth Amendment are satisfied. Ibid.
Petitioner does not contest that the evidence of youth could be given some effect under the second special issue. Instead, petitioner argues that the forward-looking perspective of the future dangerousness inquiry did not allow the jury to take account of how petitioner's youth bore upon his personal culpability for the murder he committed. According to petitioner, "[a] prediction of future behavior is not the same thing as an assessment of moral culpability for a crime already committed." Brief for Petitioner 38. Contrary to petitioner's suggestion, however, this forward-looking inquiry is not independent of an assessment of personal culpability. It is both logical and fair for the jury to make its determination of a defendant's future dangerousness by asking the extent to which youth influenced the defendant's conduct. See Skipper, 476 U. S., at 5 ("Consideration of a defendant's
In a related argument, petitioner, quoting a portion of our decision in Penry, supra, at 328, claims that the jurors were not able to make a "reasoned moral response" to the evidence of petitioner's youth because the second special issue called for a narrow factual inquiry into future dangerousness. We, however, have previously interpreted the Texas special issues system as requiring jurors to "exercise a range of judgment and discretion." Adams v. Texas, 448 U.S. 38, 46 (1980). This view accords with a "commonsense understanding" of how the jurors were likely to view their instructions and to implement the charge that they were entitled to consider all mitigating evidence from both the trial and sentencing phases. Boyde, 494 U. S., at 381. The crucial term employed in the second special issue—"continuing threat to society"—affords the jury room for independent judgment in reaching its decision. Indeed, we cannot forget that "a Texas capital jury deliberating over the Special Issues is aware of the consequences of its answers, and is likely to weigh mitigating evidence as it formulates these answers in a manner similar to that employed by capital juries in
The Texas Court of Criminal Appeals' view of the future dangerousness inquiry supports our conclusion that consideration of the second special issue is a comprehensive inquiry that is more than a question of historical fact. In reviewing death sentences imposed under the former Texas system, that court has consistently looked to a nonexclusive list of eight factors, which includes the defendant's age, in deciding whether there was sufficient evidence to support a yes answer to the second special issue. See, e. g., Ellason v. State, 815 S.W.2d 656, 660 (1991); Brasfield v. State, 600 S.W.2d 288 (1980).
There might have been a juror who, on the basis solely of sympathy or mercy, would have opted against the death penalty had there been a vehicle to do so under the Texas special issues scheme. But we have not construed the Lockett line of cases to mean that a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant. Indeed, we have said that "[i]t would be very difficult
For us to find a constitutional defect in petitioner's death sentence, we would have to alter in significant fashion this Court's capital sentencing jurisprudence. The first casualty of a holding in petitioner's favor would be Jurek. The inevitable consequence of petitioner's argument is that the Texas special issues system in almost every case would have to be supplemented by a further instruction. As we said in Graham:
In addition to overruling Jurek, accepting petitioner's arguments would entail an alteration of the rule of Lockett and Eddings. Instead of requiring that a jury be able to consider in some manner all of a defendant's relevant mitigating evidence, the rule would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.
The fundamental flaw in petitioner's position is its failure to recognize that "[t]here is a simple and logical difference between rules that govern what factors the jury must be
The reconciliation of competing principles is the function of law. Our capital sentencing jurisprudence seeks to reconcile two competing, and valid, principles in Furman, which are to allow mitigating evidence to be considered and to guide the discretion of the sentencer. Our holding in Jurek reflected the understanding that the Texas sentencing scheme "accommodates both of these concerns." Franklin, supra, at 182 (plurality opinion). The special issues structure in this regard satisfies the Eighth Amendment and our precedents that interpret its force. There was no constitutional infirmity in its application here.
The judgment of the Texas Court of Criminal Appeals is affirmed.
It is so ordered.
Justice Scalia, concurring.
In my view the Lockett-Eddings principle that the sentencer must be allowed to consider "all relevant mitigating evidence" is quite incompatible with the Furman principle that the sentencer's discretion must be channeled. See Walton v. Arizona, 497 U.S. 639, 656 (1990) (Scalia, J., concurring in part and concurring in judgment). That will continue to be true unless and until the sort of "channeling" of mitigating discretion that Texas has engaged in here is not merely permitted (as the Court today holds), but positively
Today's decision, however, is simply a clarification (and I think a plainly correct one) of this Court's opinions in Franklin v. Lynaugh, 487 U.S. 164 (1988) (plurality opinion), and Boyde v. California, 494 U.S. 370 (1990), which I joined. In fact, the essence of today's holding (to the effect that discretion may constitutionally be channeled) was set forth in my dissent in Penry v. Lynaugh, 492 U.S. 302, 350 (1989) (Scalia, J., concurring in part and dissenting in part). Accordingly, I join the opinion of the Court.
Justice Thomas, concurring.
Although Penry v. Lynaugh, 492 U.S. 302 (1989), "remains the law," ante, at 369, in the sense that it has not been expressly overruled, I adhere to my view that it was wrongly decided. Graham v. Collins, 506 U.S. 461, 478 (1993) (Thomas, J., concurring). I also continue to believe it has been substantially narrowed by later opinions. Id., at 497, n. 10. Because petitioner's youth had mitigating relevance to the second special issue, however, this case is readily distinguishable from Penry and does not compel its reconsideration. I therefore join the Court's opinion.
Justice O'Connor, with whom Justice Blackmun, Justice Stevens, and Justice Souter join, dissenting.
Dorsie Lee Johnson was 19 years old when he committed the murder that led to his death sentence. Today, the Court upholds that sentence, even though the jurors who considered Johnson's case were not allowed to give full effect to his strongest mitigating evidence: his youth. The Court reaches this result only by invoking a highly selective version of stare decisis and misapplying our habeas precedents to a case on direct review. Therefore, I respectfully dissent.
By all accounts, Dorsie Johnson was not a model youth. As an adolescent he frequently missed school, and when he did attend, he often was disruptive. He was drinking and using drugs by the time he was 16, habits that had intensified by the time he was 19. Johnson's father testified that the deaths of Johnson's mother and sister in 1984 and 1985 had affected Johnson deeply, but he primarily attributed Johnson's behavior to drug use and youth. A jury hearing this evidence easily could conclude, as Johnson's jury did, that the answer to the second Texas special question—whether it was probable that Johnson "would commit criminal acts of violence that would constitute a continuing threat to society," Tex. Code Crim. Proc. Ann., Art. 37.071(b)(2) (Vernon 1981)—was yes. It is possible that the jury thought Johnson might outgrow his temper and violent behavior as he matured, but it is more likely that the jury considered the pattern of escalating violence to be an indication that Johnson would become even more dangerous as he grew older. Even if the jurors viewed Johnson's youth as a transient circumstance, the dangerousness associated with that youth would not dissipate until sometime in the future, and it is reasonably likely that the jurors still would have understood the second question to require an affirmative answer. See Graham v. Collins, 506 U.S. 461, 519-520 (1993) (Souter, J., dissenting). Thus, to the extent that Johnson's youth was relevant at all to the second Texas special issue, there is a reasonable likelihood that it was an aggravating factor.
But even if the jury could give some mitigating effect to youth under the second special issue, the Constitution still would require an additional instruction in this case. The additional instruction would be required because not one of the special issues under the former Texas scheme, see Art. 37.071, allows a jury to give effect to the most relevant mitigating aspect of youth: its relation to a defendant's "culpability for the crime he committed." Skipper v. South Caro-
See also Graham, supra, at 518 (Souter, J., dissenting) ("Youth may be understood to mitigate by reducing a defendant's moral culpability for the crime, for which emotional and cognitive immaturity and inexperience with life render him less responsible").
In Graham v. Collins, supra, the Court held that the relief Johnson seeks today was not "`dictated by precedent' " and therefore not available on collateral review. Id., at 467 (quoting Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion)). The issue in Graham was not whether an additional instruction to allow the jury to give full effect to Graham's youth was constitutionally mandated. It was only whether the need for such an instruction was "susceptible to debate among reasonable minds." 506 U. S., at 476 (internal quotation marks omitted). I did not agree with the Court's conclusion in Graham, see id., at 504-505 (Souter, J., dissenting), but even if I had, I would not find Graham controlling today.
Teague v. Lane, supra, states a rule of collateral review: New constitutional rules will not be applied retroactively to invalidate final state convictions on federal habeas review. Teague analysis is a threshold issue, see id., at 300-301 (plurality
The analysis of our collateral review doctrine, as well as its purpose, makes the majority's emphasis on cases decided under Teague inappropriate in a direct review case. When determining whether a rule is new, we do not ask whether it fairly can be discerned from our precedents; we do not even ask if most reasonable jurists would have discerned it from our precedents. We ask only whether the result was dictated by past cases, or whether it is "susceptible to debate among reasonable minds," Butler v. McKellar, 494 U.S. 407, 415 (1990). And we have recognized that answering this question is difficult, especially when we are faced with the application of settled law to new facts. Id., at 414-415.
If the rule the petitioner sought in Graham was a new rule, it was one only because we had never squarely held that the former Texas special issues required an additional instruction regarding youth. That we have not addressed
There is considerable support in our early cases for the proposition that the sentencer in a capital case must be able to give full effect to all mitigating evidence concerning the defendant's character and record and the circumstances of the crime. The Court first recognized the need to give effect to mitigating circumstances in the group of capital cases decided after Furman v. Georgia, 408 U.S. 238 (1972). In three of those cases, Justices Stewart, Powell, and Stevens upheld capital sentencing laws against facial challenges, in large part because they believed that the statutes narrowed the category of defendants subject to the death penalty at the same time that they allowed for consideration of the mitigating circumstances regarding the individual defendant and the particular crime. See Gregg v. Georgia, 428 U.S. 153, 196-197 (1976) (joint opinion); Proffitt v. Florida, 428 U.S. 242, 250-253 (1976) (joint opinion); Jurek v. Texas, 428 U.S. 262, 270-274 (1976) (joint opinion). In two other cases, the joint opinions found mandatory death penalty statutes unconstitutional. See Woodson v. North Carolina, 428 U.S. 280, 303-305 (1976) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 333-336 (1976) (plurality opinion). A mandatory death penalty certainly limited the discretion of the sentencer, but it was not "consistent with the Constitution."
We returned to the issue of mitigating circumstances two Terms later. The Ohio death penalty statute required the sentencer to impose the death penalty on a death-eligible defendant unless one of three mitigating circumstances was established by a preponderance of the evidence. See Lockett v. Ohio, 438 U.S. 586, 599, n. 7, and 607 (1978) (plurality opinion). In determining the existence of the three circumstances, the sentencer was to consider "`the nature and circumstances of the offense and the history, character, and condition of the offender.' " Id., at 612 (quoting Ohio Rev. Code Ann. § 2929.04(B) (1975)). The Ohio Supreme Court had held that the mitigating circumstances were to be construed liberally, but a plurality of this Court nevertheless found the statute too narrow to pass constitutional muster. 438 U. S., at 608. The Lockett plurality concluded from the post-Furman cases 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 (footnote omitted). The statute at issue specifically directed the sentencer to consider those very factors. Nevertheless, the plurality found the statute unconstitutional because it provided no method by which such consideration
The Court next addressed the constitutional requirement that a sentencer be allowed to give full consideration and full effect to mitigating circumstances in Eddings v. Oklahoma, 455 U.S. 104 (1982). Although the Oklahoma death penalty statute contained no specific restrictions on the types of mitigating evidence that could be considered, neither the Oklahoma trial court nor the Court of Criminal Appeals believed that it could consider, as mitigating factors, the evidence of petitioner's unhappy upbringing and emotional disturbance. See id., at 109-110. The Court reversed petitioner's death sentence. In so doing, it reaffirmed the rule of Lockett: The sentencer in a capital case must be permitted to consider relevant mitigating factors in ways that can affect the sentencing decision. This rule, the Court explained, accommodated the twin objectives of our Eighth Amendment jurisprudence: "measured, consistent application and fairness to the accused." 455 U. S., at 111.
Four years later, the Court again made plain that Lockett and Eddings meant what they said. In Skipper v. South Carolina, 476 U.S. 1 (1986), we reiterated that evidence, even if not "relate[d] specifically to petitioner's culpability for the crime he committed," id., at 4, must be treated as relevant mitigating evidence if it serves "`as a basis for a sentence less than death,' " id., at 5 (quoting Lockett, supra, at 604). We summarized the "constitutionally permissible range of discretion in imposing the death penalty" the following Term in McCleskey v. Kemp, 481 U.S. 279, 305-306 (1987):
We have adhered to this "constitutionally permissible range of discretion" again and again in the years since we decided McCleskey, most recently in McKoy v. North Carolina, 494 U.S. 433 (1990). Accord, Hitchcock v. Dugger, 481 U.S. 393, 398-399 (1987); Penry v. Lynaugh, 492 U.S. 302, 319-328 (1989). The Court attempts to limit these cases by relying on plurality opinions, concurrences, and dicta, see, e. g., ante, at 361-362, but until today a majority of this Court has declined to upset our settled Eighth Amendment jurisprudence.
Despite the long line of precedent supporting Johnson's argument that the State impermissibly limited the effect that could be given to his youth, the Court, like respondent and the Texas Court of Criminal Appeals, clings doggedly to Jurek v. Texas, 428 U.S. 262 (1976) (joint opinion). The interpretation on which the Court today relies, however, has nothing to do with what the Court actually decided in Jurek. Jurek was one of five cases in which this Court evaluated the States' attempts after Furman to enact constitutional death penalty statutes. The statutes at issue had been applied a limited number of times, and, of necessity, the challenges were all facial. The Texas Court of Criminal
Because Jurek involved only a facial challenge to the Texas statute, the constitutionality of the statute as implemented in particular instances was not at issue. Nor was the "asapplied" constitutionality of the statute implicated in any of our cases until Franklin v. Lynaugh, 487 U.S. 164 (1988). In Adams v. Texas, 448 U.S. 38 (1980), for example, the Court still expressed the view that the statute allowed members of the jury to consider all relevant evidence, and to use that evidence in answering the special questions, "while remaining true to their instructions and their oaths." Id., at 46. The same is true of the plurality opinion in Lockett, which stated that the joint opinion in Jurek had approved the Texas statute because it "concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question—despite its facial narrowness." 438 U. S., at 607.
When the Court addressed its first as-applied challenge to the Texas death penalty statute in Franklin, it was clear that any statements in Jurek regarding the statute's constitutionality were conditioned on a particular understanding of state law. Jurek simply had not upheld the Texas death penalty statute in all circumstances. In fact, five Members
The view of the five concurring and dissenting Justices that the facial review in Jurek did not decide the issue presented in Franklin is not surprising. After all, the same day we approved the Texas death penalty statute in Jurek, we also approved the death penalty statutes of Georgia and Florida. See Gregg v. Georgia, 428 U.S. 153 (1976) (joint opinion); Proffitt v. Florida, 428 U.S. 242 (1976) (joint opinion). Yet after Gregg and Proffitt and prior to Franklin, we held unconstitutional specific applications of the same Georgia and Florida statutes we earlier had approved. See Godfrey v. Georgia, 446 U.S. 420 (1980) (vague and overly broad construction of aggravating factor rendered death sentence unconstitutional); Hitchcock v. Dugger, supra (holding it unconstitutional to restrict jury's consideration of mitigating factors to those enumerated in the statute). Despite this majority view of Jurek and the Texas death penalty statute, the Court today relies on the minority view in Franklin. It goes so far as to note with approval the minority position that "Jurek foreclosed the defendant's argument that the jury was still entitled to cast an `independent' vote against the death penalty even if it answered yes to the special issues."
Although the majority of Justices in Franklin did not accept the contention that the State constitutionally could limit a sentencer's ability to give effect to mitigating evidence, two Justices concurred in the judgment because they believed that on the facts of that case the State had not limited the effect the evidence could be given. 487 U. S., at 185 (O'Connor, J., joined by Blackmun, J., concurring in judgment). Thus, resolution of the issue was left open. The following Term, however, the Court squarely addressed the constitutionality of limiting the effect a Texas jury could give to relevant mitigating evidence, and contrary to the majority opinion today, we plainly held that the Texas special issues violated the Eighth Amendment to the extent they prevented the jury from giving full consideration and effect to a defendant's relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302 (1989).
Penry was in no way limited to evidence that is only aggravating under the "future dangerousness" issue. We stated there that "Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence." Id., at 319. That we meant "full effect" is evident from the remainder of our discussion. We first determined that Penry's evidence of mental retardation and his abused childhood was relevant to the question whether he acted deliberately under the first special issue. Id., at 322. But having some relevance to an issue was not sufficient, and the problem was not, as the Court today suggests, see ante, at 364-365, simply that no jury instruction defined the term "deliberately." Instead, we noted that the jury must be able to give effect to the evidence as it related to Penry's "[p]ersonal culpability," which "is not solely a function of a defendant's capacity to act `deliberately.' " 492 U. S., at 322. The jury could not
We concluded that the second special issue, like the first, did not allow a jury to give effect to a mitigating aspect of mental retardation: the diminution of culpability. Id., at 323-324. The Court today makes much of our finding that the "only" relevance of Penry's evidence to the second issue was as an aggravating factor, see id., at 323. Ante, at 365. But in so doing, it takes our factual description of Penry's evidence as a "two-edged sword" out of context. The second special issue was not inadequate because the evidence worked only against Penry; it was inadequate because it did not allow the jury to give full effect to Penry's mitigating evidence. Penry, 492 U. S., at 323. Our discussion of the third special issue—whether the defendant's conduct was unreasonable in response to the provocation—also focused on the inability of a juror to express the view that Penry lacked "the moral culpability to be sentenced to death" in answering the question. Id., at 324-325. The point of Penry is clear: A death sentence resulting from application of the Texas special issues cannot be upheld unless the jurors are able to consider fully a defendant's mitigating evidence. Accord, id., at 355 (Scalia, J., concurring in part and dissenting in part) (The Court today holds that "the constitutionality turns on whether the [special] questions allow mitigating factors not only to be considered . . ., but also to be given effect in all possible ways, including ways that the questions do not permit ").
Our recent cases are not to the contrary. In Boyde v. California, 494 U.S. 370 (1990), for example, the Court relied on two straightforward propositions to reject petitioner's
The Court's reliance on Saffle v. Parks, 494 U.S. 484 (1990), also is misplaced. In Saffle, the only issue was whether it would be a new rule under the standards of Teague v. Lane, 489 U.S. 288 (1989), for a defendant to be entitled to an instruction allowing the jury to decline to impose the death penalty based on mere sympathy. We held that it would. 494 U. S., at 489. To be sure, there is language in Saffle suggesting that a State may limit a sentencer's consideration of mitigating evidence so long as the sentencer may give some effect to the evidence. See, e. g., id., at 490-491. But to the extent Saffle suggests anything more than that the State may prevent the sentencer from declining to impose the death penalty based on mere sympathy, the language is dictum and cannot be construed as overruling
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"[Y]outh is more than a chronological fact." Eddings, 455 U. S., at 115. The emotional and mental immaturity of young people may cause them to respond to events in ways that an adult would not. Because the jurors in Johnson's case could not give effect to this aspect of Johnson's youth, I would vacate Johnson's sentence and remand for resentencing.
"Q. Okay. Do you feel that—let me ask you this. Do you feel a person who is—or a young person will do things that they will not do in later years, thirty or forty—
"A. I believe that.
"Q. Do you believe that people can change?
"A. Yes, I believe they can. I've known some that have.
"Q. Do you think that the way a person acts in the present or the past or how he has acted in the past is an absolute indicator of what he will do in the future, thirty or forty years down the road?
"A. No, not on down the line. Like I say, you can change." Tr. of Voir Dire, at 2630-2631.