SUPREME COURT OF THE UNITED
STATES
No.
92-5653
DORSIE LEE JOHNSON,
Jr., PETITIONER
v.
TEXAS
On writ of certiorari to the
court of criminal appeals of Texas
[June
24, 1993]
Justice
Kennedy delivered the opinion of the
Court.
Petitioner,
then 19 years of age, and his companion, Amanda
Miles, decided to rob Allsup's convenience
storein 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 and the
murder was carried out in the course of
committing a robbery. Tex. Penal Code Ann. §§
19.02(a)(1), 19.03(a)(2) (Vernon 1989).
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),
[n.1] the
trial court instructed the jury that it was to
answer two special issues:
"[(1)]
Was the conduct of the Defendant, Dorsie Lee
Johnson, Jr., that caused the death of the
deceased, committed deliberately and with
the reasonable expectation that the death of
the deceased or another would result?
. . . . .
"[(2)]
Is there a probability that the Defendant,
Dorsie Lee Johnson, Jr., would commit
criminal acts of violence that would
constitute a continuing threat to society?"
[n.2]
App. 148-149.
The trial court made clear to the jury the
consequences of its answers to the special
issues:
"You
are further instructed that if the jury
returns affirmative or `yes' answer [sic]
to all the Issues submitted, this Court
shall sentence the Defendant to death. If
the jury returns a negative or `no' answer
to any Issue submitted, the Court shall
sentence the Defendant to life in prison."
Id., at 146.
The jury was
instructed not to consider or discuss the
possibility of parole. Id., at 147. The
trial court also instructed the jury as follows
concerning its consideration of mitigating
evidence:
"In
determining each of these Issues, you may
take into consideration all the evidence
submitted to youin the trial of this case,
whether aggravating or mitigating in nature,
that is, all the evidence in the first part
of the trial when you were called upon to
determine the guilt or innocence of the
Defendant and all the evidence, if any, in
the second part of the trial wherein you are
called upon to determine the answers to the
Special Issues." Ibid.
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 longtime 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 petitioner had become angry
with her one afternoon in 1986, he threatened
her with an axe.
There were
other incidents, of less gravity, before 1986.
One of petitioner's classmates testified that
petitioner cut him with a piece of glass while
they were in the seventh grade. Another
classmate testified that petitioner also cut him
with glass just a year later, and there was
additional evidence presented that petitioner
had stabbed a thirdclassmate with a pencil.
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:
"No,
no. Age of nineteen? No, sir. That, also, I
find to be a foolish age. That's a foolish
age. They tend to want to be macho, built
up, trying to step into manhood. You're not
mature lized for it." Id., at 27.
At the close
of his testimony, Johnson summarized the role
that he thought youth had played in his son's
crime:
"[A]ll
I can say is I still think that a kid
eighteen or nineteen years old has an
undeveloped mind, undeveloped sense of
assembling not -- I don't say what is right
or wrong, but the evaluation of it, how much,
you know, that might be -- well, he just
don't -- he just don't evaluate what is
worth -- what's worth and what's isn't like
he should like a thirty or thirty five year
old man would. He would take under
consideration a lot of things that a younger
person that age wouldn't." Id., at
47.
The father
also testified that his son had been a regular
churchgoer and his problems were attributable in
large part to the death of his mother following
a stroke in 1984 and the murder of his sister in
1985. Finally, the senior Johnson testified to
his son's remorse over the killing ofHuddleston.
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); pp. 1691-1692 (Juror Freeman); p. 2366
(Juror Witte); pp. 2630-2632 (Juror Raborn).
[n.3]
Petitioner's counsel returned to this theme in
his closing argument:
"The
question -- the real question, I think, is
whether you believe that there is a
possibility that he can change. You will
remember that that was one thing every one
of you told me you agreed -- every one of
you agreed with me that people can change.
If you agree that people can change, then
that means that Dorsie can change and that
takes question two [regarding future
dangerousness] out of the realm of
probability and into possibility, you see,
because if he can change, then it is no
longer probable that he will do these things,
but only possible that he can and will do
these things, you see.
"If people
couldn't change, if you could say I know people
cannot change, then you could say probably. But
every one of you knows in your heart and in your
mind that people can and people do change and
Dorsie Johnson can change and, therefore, the
answer to question two should be no." App. 81.
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 of the
second special issue, the court reasoned that "[i]f
a juror believed that [petitioner's] violent
actions were a result of his youth, that same
jurorwould naturally believe that [petitioner]
would cease to behave violently as he grew older."
App. 180. The court concluded that "the jury was
able to express a reasoned moral response to [petitioner's]
mitigating evidence within the scope of the art.
37.071 instructions given to them by the trial
court." Id., at 180-181.
Petitioner
filed a petition for certiorari, which we
granted. 506 U. S. ___ (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, 428
U.S. 153 (1976); Proffitt v. Florida,
428 U.S. 242 (1976); Jurek v. Texas,
428 U.S. 262 (1976); Woodson v. North
Carolina, 428 U.S. 280 (1976); Roberts
v. Louisiana, 428 U.S. 325 (1976).
In the wake
of Furman, at least 35 States had
abandoned sentencing schemes that vested
complete discretion in juries in favor of
systems that either (i) "specif[ied] the factors
to be weighed and the procedures to be followed
in deciding when to impose a capital sentence,"
or (ii) "ma[de] the death penalty mandatory for
certain crimes." Gregg, supra, at
179-180 (opinion of Stewart, Powell, and Stevens,
JJ.). In the five cases, the controlling joint
opinion of three Justices reaffirmed the
principle of Furman that "discretion must
be suitably directed and limited so as to
minimize the risk of wholly arbitrary and
capricious action." Id., at 189; accord,
Proffitt, supra, at 258 (opinion
of Stewart, Powell, and Stevens, JJ.).
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 (opinion of
Stewart, Powell, and Stevens, JJ.); 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 (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 Amendments. See
Woodson, supra, at 305; Roberts,
supra, at 335-336.
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.
[n.4]
The plurality nonetheless found
this system to be unconstitutional, holding that
"the Eighth and Fourteenth Amendments require
that the sentencer . . . 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." Id., at 604. A majority
of the Court adopted the Lockett rule in
Eddings v. Oklahoma, 455 U.S. 104
(1982); accord, Hitchcock v. Dugger,
481 U.S. 393, 398-399 (1987); Skipper v.
South Carolina, 476 U.S. 1, 4 (1986), and
we have not altered the rule's central
requirement. %Lockett and its progeny
stand only for the proposition that a State may
not cut off in an absolute manner the
presentation of mitigating evidence, either by
statute or judicial instruction, or by limiting
the inquiries to which it is relevant so
severely that the evidence could never be part
of the sentencing decision at all." McKoy
v. North Carolina, 494 U.S. 433, 456
(1990) (Kennedy, J., concurring in judgment);
see also Graham, 506 U. S.,at ___ (slip
op., at 13-14); Saffle v. Parks,
494 U.S. 484, 490-491 (1990).
Although
Lockett and Eddings prevent a State
from placing relevant mitigating evidence "beyond
the effective reach of the sentencer," Graham
v. Collins, supra, at ___ (slip op.,
at 13), 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 would commit criminal acts of violence
that would constitute a continuing threat to
society." Although the statute did not define
these terms, the joint opinion noted that the
Texas Court of Criminal Appeals had indicated
that it would interpret the question in a manner
that allowed the defendant to bring all relevant
mitigating evidence to the jury's attention:
" `In
determining the likelihood that the
defendant would be a continuing threat to
society, the jury could consider whether the
defendant had a significant criminal record.
It could consider the range and severity of
his prior criminal conduct. It could further
look to the age of the defendant and whether
or not at the time of the commission of the
offense he was acting under duress or under
the domination of another. It could also
consider whether the defendant was under an
extreme form of mental or emotional pressure,
something less, perhaps, than insanity, but
more than the emotions of the average man,
however inflamed, could withstand.' [Jurek
v. State,] 522 S. W. 2d [934],
939-940 [(Tex. Crim. App. 1975)]." Id.,
at 272-273.
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
upheld the constitutionality of the Texas system
as a general matter in Jurek, he claimed
that the special issues did not allow the jury
to give adequate weight to his mitigating
evidence concerning his good prison disciplinary
record and that the jury, therefore, should have
been instructed that it could consider this
mitigating evidence independent of the special
issues. 487 U. S., at 171-172.
A plurality
of the Court rejected the defendant's claim,
holding that the second special issue provided
an adequate vehicle for consideration of the
defendant's prison record as it bore on his
character. Id., at 178. The plurality
also noted 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. 487 U. S., at 180.
The
plurality concluded that, with its special
issues system, Texas had guided the jury's
consideration of mitigating evidence while still
providing for sufficient jury discretion. See
id., at 182. Although Justice O'Connor
expressed reservations about the Texas scheme
for other cases, she agreed that the special
issues had not inhibited the jury's
consideration of the defendant's mitigating
evidence in that case. See id., at
183-186 (O'Connor, J., concurring in judgment).
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. Wenoted 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 could
not "be sure that the jury was able to give
effect to the mitigating evidence . . . in
answering the first special issue," id.,
at 323, so we turned to the second special issue,
future dangerousness. The evidence in the case
suggested that Penry's mental retardation
rendered him unable to learn from his mistakes.
As a consequence, we decided the mitigating
evidence was relevant to the second special
issue "only as an aggravating factor
because it suggests a `yes' answer to the
question of future dangerousness." Ibid.
The Court
concluded that the trial court had erred in not
instructing the jury that it could "consider and
give effect to the mitigating evidence of
Penry's mental retardation and abused background
by declining to impose the death penalty." Id.,
at 329.
The Court
was most explicit in rejecting the dissent's
concern that Penry was seeking a new rule, in
contravention of Teague v. Lane,
489 U.S. 288 (1989). Indeed, the Court
characterized its holding in Penry as a
straightforward application of our earlier
rulings in Jurek, Lockett, and
Eddings, making it clear that these cases
can stand together with Penry. See
Penry, 492 U. S., at 314-318.
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 ___
(slip op., at 12), and we noted that a contrary
view of Penry would be inconsistent with
thePenry Court's conclusion that it was
not creating a "new rule," 506 U. S., at ___
(slip op., at 13). 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
those cases, the constitutional defect lay
in the fact that relevant mitigating
evidence was placed beyond the effective
reach of the sentencer. In Lockett,
Eddings, Skipper, and
Hitchcock, the sentencer was precluded
from even considering certain types of
mitigating evidence. In Penry, the
defendant's evidence was placed before the
sentencer but the sentencer had no reliable
means of giving mitigating effect to that
evidence. In this case, however, Graham's
mitigating evidence was not placed beyond
the jury's effective reach." Graham,
506 U. S., at ___ (slip op., at 14).
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 ___ (slip op., at
14). 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 ___ (slip op., at
16). 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 ___ (slip op., at 15).
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 of some constitutional command.
See, e. g., Vasquez v. Hillery,
474 U.S. 254, 265-266 (1986); Arizona v.
Rumsey, 467 U.S. 203, 212 (1984).
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 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 ill considered 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 andEddings 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.
Ibid. In evaluating the instructions, we do
not engage in a technical parsing of this
language of the instructions, but instead
approach the instructions in the same way that
the jury would--with a "commonsense
understanding of the instructions in the light
of all that has taken place at the trial." Id.,
at 381.
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
theassessment 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 ___ (slip op., at
13-14). As long as the mitigating evidence is
within "the effective reach of the sentencer,"
the requirements of the Eighth Amendment are
satisfied. Ibid. (slip op., at 13).
That the
jury had a meaningful basis to consider the
relevant mitigating qualities of petitioner's
youth is what distinguishes this case from
Penry. In Penry, there was expert
medical testimony that the defendant was
mentally retarded and that his condition
prevented him from learning from experience. 492
U. S., at 308-309.
Although the
evidence of the mental illness fell short of
providing Penry a defense to prosecution for his
crimes, the Court held that the second special
issue did not allow the jury to give mitigating
effect to this evidence. Penry's condition left
him unable to learn from his mistakes, and the
Court reasoned that the only logical manner in
which the evidence of his mental retardation
could be considered within the future
dangerousness inquiry was as an aggravating
factor. Id., at 323. Penry remains
the law and must be given a fair reading.
The evidence
of petitioner's youth, however, falls outside
Penry's ambit. Unlike Penry's mental
retardation, which rendered him unable to learn
from his mistakes, the ill effects of youth that
a defendant may experience are subject to change
and, as a result, are readily comprehended as a
mitigating factor in consideration of the second
special issue.
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 boreupon 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 past conduct as indicative of
his probable future behavior is an inevitable
and not undesirable element of criminal
sentencing").
If any jurors believed that the
transient qualities of petitioner's youth made
him less culpable for the murder, there is no
reasonable likelihood that those jurors would
have deemed themselves foreclosed from
considering that in evaluating petitioner's
future dangerousness. It is true that Texas has
structured consideration of the relevant
qualities of petitioner's youth, but in so doing,
the State still "allow[s] the jury to give
effect to [this] mitigating evidence in making
the sentencing decision." Saffle, 494 U.
S., at 491.
Although Texas might have
provided other vehicles for consideration of
petitioner's youth, no additional instruction
beyond that given as to future dangerousness was
required in order for the jury to be able to
consider the mitigating qualities of youth
presented to it.
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 witha "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 `pure
balancing' States." Franklin, 487 U. S.,
at 182, n. 12 (plurality opinion). In
Blystone v. Pennsylvania, 494 U.S.
299 (1990), four Members of the Court in dissent
used the Texas statute as an example of a
capital sentencing system that permitted the
exercise of judgment. That opinion stated:
"[The
two special issues] require the jury to do
more than find facts supporting a
legislatively defined aggravating
circumstance. Instead, by focusing on the
deliberateness of the defendant's actions
and his future dangerousness, the questions
compel the jury to make a moral judgment
about the severity of the crime and the
defendant's culpability. The Texas statute
directs the imposition of the death penalty
only after the jury has decided that the
defendant's actions were sufficiently
egregious to warrant death." Id., at
322 (Brennan, J., dissenting).
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 thedefendant'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 (Tex. Crim. App. 1991);
Brasfield v. State, 600 S. W. 2d 288
(Tex. Crim. App. 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 to reconcile
a rule allowing the fate of a defendant to turn
on the vagaries of particular jurors' emotional
sensitivities with our longstanding recognition
that, above all, capital sentencing must be
reliable, accurate, and nonarbitrary." Saffle
v. Parks, 494 U. S., at 493; see also
California v. Brown, 479 U.S. 538,
542-543 (1987) (permitting an instruction that
the jury could not base its sentencing decision
on sympathy).
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,
"[H]olding
that a defendant is entitled to special
instructions whenever he can offer
mitigating evidence that has some
arguable relevance beyond the special issues
. . . would be to require in all cases that
a fourth `special issue' be put to the jury:
` "Does any mitigating evidence before you,
whether or not relevant to the above [three]
questions, lead you to believe that the
death penalty should not be imposed?" ' "
Graham, 506 U. S., at ___ (slip op.,
at15) (quoting Franklin, 487 U. S.,
at 180, n. 10).
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 permitted to
consider in making its sentencing decision and
rules that govern how the State may guide the
jury in considering and weighing those factors
in reaching a decision." Saffle, supra,
at 490.
To rule in
petitioner's favor, we would have to require
that a jury be instructed in a manner that
leaves it free to depart from the special issues
in every case. This would, of course, remove all
power on the part of the States to structure the
consideration of mitigating evidence--a result
we have been consistent in rejecting. See, e.
g., Boyde, 494 U. S., at 377;
Saffle, supra, at 493; Franklin,
supra, at 181 (plurality opinion).
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.
*****
Notes
