McKoy v. North Carolina/Dissent Scalia

by Antonin Scalia

Justice SCALIA, with whom THE CHIEF JUSTICE and Justice O'CONNOR join, dissenting.

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 apre ponderance of the evidence any statutory or nonstatutory mitigating circumstances. The jury answered "Yes" with respect to one statutory, and one nonstatutory, mitigating circumstance. Third, whether it unanimously found beyond a reasonable doubt that the mitigating circumstances it found were insufficient to outweigh the aggravating circumstances it found. The jury answered "Yes." Fourth, whether it unanimously found beyond a reasonable doubt that the aggravating circumstances it found were sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances it found. The jury answered "Yes."

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, 103 S.Ct. 2733, 2742-43, 77 L.Ed.2d 235 (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, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (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, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (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 provided even an extra measure of assurance that death will not be lightly or mechanically imposed.

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, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), suggesting that a unanimity requirement would contravene this Court's decisions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (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, 108 S.Ct., at 1864 (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.) ^[1] Accordingly, no controversy regarding the question that the Court today holds to have been decided by Mills was even before the Court-for the very simple reason that no statute raising that question was before the Court. The Maryland court had adopted what it regarded as a saving construction of the statute (i.e., permitting a single juror's view to preclude rejection of a mitigating circumstance) and had said that the verdict form should be understood in that fashion. Before this Court, "[t]he critical question," and the only question disputed by the parties, was "whether petitioner's interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case." Mills, 486 U.S., at 375-376, 108 S.Ct., at 1866. ^[2] On the answer to that question, the Court was divided. Five Justices found a substantial risk that the jury would have understood its instructions as requiring it to reject all mitigating circumstances that it failed to find unanimously, and (as the State understood would be the necessary consequence of such a finding) vacated the judgment and remanded for further proceedings. Id., at 381-384, 108 S.Ct., at 1868-1870. The four dissenting Justices thought the risk that a reasonable jury would have misunderstood the instructions was negligible, and thus would have affirmed. Id., at 391-393, 108 S.Ct., at 1873-74 (REHNQUIST, C.J., dissenting).

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, 95 S.Ct. 1881, 1885-86, 44 L.Ed.2d 508 (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, 108 S.Ct., at 1865. 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 issue in this case is how reasonable jurors would have understood and applied their instructions. That is the issue the Court's opinion addresses, and I am persuaded that the Court reaches the correct solution. Hence, I join the Court's opinion." Id., at 389-390, 108 S.Ct., at 1872. ^[3] Because Justice WHITE provided the fifth vote to remand in Mills, it is impossible to regard Mills as resolving an issue he did not believe to have been before the Court.

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, 102 S.Ct., at 874, and Lockett, 438 U.S., at 604, 98 S.Ct., at 2964) (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 of the North Carolina statute, a system in which one juror can prevent the others from denying effect to a mitigating circumstance. The " 'holdout' juror" scenario provides attractive atmosphere, but the alleged constitutional principle upon which the decision rests is that "each juror [must] be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death," ante, at 442 (emphasis added), and "may not be foreclosed by one or more jurors' failure," ante, at 443 (emphasis added), to find that those mitigating facts existed, or that those existing facts were mitigating. Such a scheme, under which (at least where the statute requires the jury's recommendation of death to be unanimous) a single juror's finding regarding the existence of mitigation must control, is asserted to be demanded by "the principle established in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), that a sentencer may not be precluded from giving effect to all mitigating evidence." Ante, at 438.

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, 98 S.Ct., at 2964 (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 to consider, as a matter of law, any relevant mitigating evidence." 455 U.S., at 113-114, 102 S.Ct., at 876 (emphasis in original). Accord, Penry v. Lynaugh, 492 U.S., at 328, 109 S.Ct., at 2952 (failure to instruct Texas jury that it could consider and give effect to mitigating evidence beyond the scope of three statutory special issues inconsistent with Lockett and Eddings ); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (trial judge's belief that Florida law prohibited consideration of nonstatutory mitigating circumstances and corresponding instruction to the jury contravened Lockett ); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (trial judge's failure to permit jury to consider evidence of defendant's good behavior in prison inconsistent with Lockett and Eddings ).

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, 109 S.Ct., at 2947 ("[T ]he sentencer must . . . be able to consider and give effect to [mitigating] evidence in imposing sentence") (emphasis added); Hitchcock, supra, at 394, 107 S.Ct., at 1821 ("the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence") (internal quotations omitted; citations omitted; emphasis added); Skipper, supra, at 5, 106 S.Ct., at 1671 (mitigating "evidence may not be excluded from the sentencer's consideration") (emphasis added); Eddings, supra, 455 U.S., at 114, 102 S.Ct., at 876 ("[T ]he sentencer [may not] refuse to consider . . . any relevant mitigating evidence") (emphasis added); Lockett, supra, at 604, 98 S.Ct., at 2964 ("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- viz., only unanimously. As the Court observes today, that is a crucial distinction. "There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making the sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Saffle v. Parks, 494 U.S. 484, 490, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990) (emphasis added). In holding that a rule invalidating an antisympathy instruction would be a new rule under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we concluded that Lockett and Eddings "do not speak directly, if at all, to" "how [the jury] must consider the mitigating evidence," as opposed to "what mitigating evidence the jury must be permitted to consider in making its sentencing decision." Saffle, supra, at 490, 110 S.Ct. 1257. Accord, Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988) (plurality opinion) ("[W]e have never suggested that jury consideration of mitigating evidence must be undirected or unfocused"). In short, Lockett and Eddings are quite simply irrelevant to the question before us, and cannot be pressed into service by describing them as establishing that "a sentencer [by which the reader is invited to understand an individual member of the jury] may not be precluded from giving effect to all mitigating evidence." Ante, at 438 (emphasis added).

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 two jurors were wearing green shirts, it would be impossible to say anything against the claim except that there is nothing to be said for it-neither in text, tradition, nor jurisprudence. That is the point I have already made here, and that alone suffices.

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, 107 S.Ct. 1098, 94 L.Ed.2d 267 (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, 97 S.Ct. 2319, 53 L.Ed.2d 281 (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, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976); Del.Super.Ct.Crim.Rule 31(a), Del.Code Ann., vol. 17, p. 227 (1975). ^[4]

Of course the Court's holding today-and its underlying thesis that each individual juror must be empowered to "give effect" to his own view-invalidates not just a requirement of unanimity for the defendant to benefit from a mitigating factor, but a requirement of any number of jurors more than one. Thus it is also in tension with Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), which upheld, in a capital case, a requirement that the defense of insanity be proved (beyond a reasonable doubt) to the satisfaction of at least 10 of the 12-member jury. Even with respect to proof of the substantive offense, as opposed to an affirmative defense, we have approved verdicts by less than a unanimous jury. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (upholding state statute providing for conviction by 10-to-2 vote). We have, to be sure, found that a criminal verdict by less than all of a six-person jury is unconstitutional-not, however, because of any inherent vice in nonunanimity, but because a 5-to-1 verdict, no less than a 5-to-0 verdict, see Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), "presents a . . . threat to preservation of the substance of the jury trial guarantee." Burch v. Louisiana, 441 U.S. 130, 138, 99 S.Ct. 1623, 1627, 60 L.Ed.2d 96 (1979).

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, 97 S.Ct., at 2326. 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 upon the substantive criminal offense and consideration of all evidence bearing upon affirmative defenses. If, in those contexts, it is not regarded as a "barrier" to such consideration to require unanimity before any single juror's evaluation of the evidence can be "given effect" to the defendant's advantage, I do not understand why a comparable requirement constitutes a "barrier" to consideration of mitigation. Or why, in the latter context, assuring "reasonable certainty" is no longer a legitimate objective.

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, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (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, 96 S.Ct., at 2936 (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 in a freakish manner." Id., at 195, 96 S.Ct., at 2935. Accord, Zant v. Stephens, 462 U.S., at 890, 103 S.Ct., at 2749; Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.).

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, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446 (1970) (Sixth Amendment requires a jury "large enough to promote group deliberation"); Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (five-person jury too small); id., at 232-234, 98 S.Ct., at 1036 (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. ^[5]

In sum, the constitutional prohibition asserted by the petitioner was not decided in Mills and is not supported by Lockett and Eddings. Since nothing else is adduced to support it, there is no basis for believing that it exists. It is, moreover, contrary to the constitutional principles governing jury trial in other contexts, contrary to the principle of guided discretion that launched our modern incursion into the field of capital sentencing, and destructive of sound jury deliberation. When we abandon text and tradition, and in addition do not restrict prior cases to their holdings, knowing and observing the law of the land becomes impossible. State officials sworn to uphold the Constitution we expound rush to comply with one of our newly designed precepts, only to be told that by complying they have violated another one that points in the opposite direction. Compare Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (invalidating discretionary death penalty), with Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (invalidating mandatory death penalty enacted in light of Furman ). I dissent from today's decision, and from the unpredictable jurisprudence of capital sentencing that it represents.

Notes

1. Justice BLACKMUN contends that the State "defend[ed] the Court of Appeals' judgment on the alternative ground that, even if a reasonable jury might have read the instructions as requiring a unanimous finding before any mitigating factor could be considered, that requirement would not contravene the dictates of Lockett and Eddings." Ante, at 448. Presumably that defense would have gone somewhat as follows:
2. Justice BLACKMUN's citation of cases in which we decided an issue that was not argued, ante, at 446, is irrelevant. Deciding what was not argued is quite different from deciding what was not presented. The situation in Mills was not merely that no one spoke in defense of the constitutionality of a statute similar to the one now before us; nor even merely that no one had an interest to speak in its defense; but that the constitutionality of such a statute was irrelevant to the outcome of the case. No such statute was presented by the facts, the Maryland Court of Appeals having interpreted its statute differently. It is extraordinary to suggest that we could pronounce authoritatively upon the constitutionality of a statute that did not exist.
3. Justice BLACKMUN states that "the meaning of a majority opinion is to be found within the opinion itself; the gloss that an individual Justice chooses to place upon it is not authoritative." Ante, at 448, n. 3. That is certainly true where the individual Justice is not needed for the majority. But where he is, it begs the question: the opinion is not a majority opinion except to the extent that it accords with his views. What he writes is not a "gloss," but the least common denominator. To be sure, the separate writing cannot add to what the majority opinion holds, binding the other four Justices to what they have not said; but it can assuredly narrow what the majority opinion holds, by explaining the more limited interpretation adopted by a necessary member of that majority. If the author of the opinion finds what the "glossator" says inconsistent with his own understanding of the opinion, he may certainly decline, at the outset of the opinion, to show that Justice as joining; and if the "glossator" nonetheless insists upon purporting to join, I suppose the author can explicitly disclaim his company. But I have never heard it asserted that four Justices of the Court have the power to fabricate a majority by binding a fifth to their interpretation of what they say, even though he writes separately to explain his own more narrow understanding.
4. Justice BLACKMUN finds the analogy to affirmative defenses less than persuasive because he says that "it is not at all clear" that "the jury's failure to agree as to an affirmative defense results in a conviction," "rather than a hung jury." Ante, at 450-451. It would be interesting to know the basis for that doubt with respect to the jurisdictions I have cited. Under New York law, for example, the jury's verdict—whether guilty or not guilty must be unanimous. See N.Y.Crim.Proc.Law § 310.80 (McKinney 1982). When an affirmative defense is raised, "the court must carefully instruct the jury that they must be satisfied of defendant's guilt of the offense beyond a reasonable doubt before they may consider the affirmative defense." Practice Commentary following N.Y.Penal Law § 25.00, p. 77 (McKinney 1987); see People v. Morris, 68 App.Div.2d 893, 413 N.Y.S.2d 757 (1979); 31 N.Y.Jur.2d, Criminal Law § 188, pp. 335-336 (1983) ("[G]uilt must be established beyond a reasonable doubt before the jury can even consider an affirmative defense"). If the jurors follow their instructions, it would appear that the jury that has considered but not unanimously found an affirmative defense must return a verdict of guilty. One wonders what proportion of the jury Justice BLACKMUN believes is necessary to find an affirmative defense (if not all 12) in those States where the law does not explicitly specify a majority.
5. Justice BLACKMUN believes that this grotesque distortion of normal jury deliberations cannot be blamed upon the rule the Court today announces, but is rather North Carolina's own fault, because the scheme it has adopted represents "an extraordinary departure from the way in which juries customarily operate." Ante, at 449. Typically, he points out, juries "are . . . called upon to render unanimous verdicts on the ultimate issues of a given case," with "no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." Ibid. This is the sort of argument that causes state legislators to pull their hair. A general verdict is of course the usual practice. But it is this Court that has pushed the States to special verdicts in the capital sentencing field. We have intimated that requiring "the sentencing authority . . . to specify the factors it relied upon in reaching its decision" may be necessary to ensure, through "meaningful appellate review[,] that death sentences are not imposed capriciously or in a freakish manner." Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Disparaging a practice we have at least encouraged, if not indeed coerced, gives new substance to the charge that we have been administering a "bait and switch" capital sentencing jurisprudence.