Saffle v. Parks/Dissent Brennan

by William J. Brennan, Jr.

Justice BRENNAN, with whom Justice MARSHALL joins, and with whom Justice BLACKMUN and Justice STEVENS join except as to Part IV, dissenting.

Respondent Robyn Parks was sentenced to death for the murder of a gas station attendant. After his conviction became final in 1983, respondent brought a petition for writ of habeas corpus under 28 U.S.C. § 2254 (1982 ed.) challenging his conviction and death sentence. He alleged, inter alia, that an instruction given at the sentencing phase of his trial that told the jury to avoid "any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence," App. 13, deprived him of an individualized sentencing determination because a reasonable juror could have understood the instruction to bar consideration of relevant mitigating evidence. The Tenth Circuit, sitting en banc, agreed and vacated respondent's death sentence. Parks v. Brown, 860 F.2d 1545 (1988). Today, the Court holds that respondent is not entitled to relief because his claim would require the application of a "new rule" that may not be applied retroactively on collateral review. ^[1] The Court displays undue eagerness to apply the new standard for retroactivity announced in Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347, at the expense of thoughtful legal analysis. I cannot countenance such carelessness when a life is at stake. I dissent. I

In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Court dramatically altered retroactivity doctrine as it applies to defendants challenging their confinement by the State through the collateral remedy of habeas corpus. The Court held that a habeas petitioner may not obtain relief from an unconstitutional conviction or sentence if his claim would require the recognition of a "new rule" of criminal procedure. Id., at 310, 109 S.Ct., at 1075 (plurality opinion); id., at 320, 109 S.Ct., at 1080. (STEVENS, J., joined by BLACKMUN, J., concurring in part and concurring in judgment). Today, in Butler v. McKellar, 494 U.S., at 415, 110 S.Ct., at 1217, the Court defines a "new rule" as one that was "susceptible to debate among reasonable minds" under law prevailing at the time the habeas petitioner's conviction became final. As I argued in my dissent in Butler, the Court's novel "reasonableness" review of state court convictions is incompatible with the fundamental purposes of habeas corpus. See Butler, 494 U.S., at 424-430, 110 S.Ct., at 1222-1226.

The Court's decisions in the instant case and in Butler leave no doubt that the Court has limited drastically the scope of habeas corpus relief through the application of a virtually all-encompassing definition of "new rule." In this case, the Court concludes that respondent seeks a "new rule" because it determines that the few lower courts that have rejected similar challenges to an antisympathy instruction were not "unreasonable" for doing so. Ante, at 490 ("We thus cannot say that the large majority of federal and state courts that have rejected challenges to antisympathy instructions similar to that given at Parks' trial have been unreasonable"). ^[2] The majority's conclusion, however, is based on a fundamental misreading of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

Most of the majority opinion addresses the retroactivity of a claim not even raised by respondent. The majority mischaracterizes respondent's claim as one demanding that "jurors be allowed to base the sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating evidence," ante, at 489, and holds that claim barred by Teague. See ante, at 488-494. But as counsel for respondent argued before this Court:

"Mr. Parks asserts no constitutional right to a sympathetic or emotional jury. What he does assert under Woodson, Lockett, Eddings and their progeny is the entirely familiar claim upheld consistently by this Court of a right to a sentencer who has not been precluded from considering as a mitigating factor any aspect of a defendant's background, character or record in addition to the circumstances of his offense that he proffers as a basis for a sentence less than death." Tr. of Oral Arg. 19-20.

Respondent concedes the State's contention that a decision to impose the death penalty must reflect a "reasoned moral response" to the defendant's culpability. See, e.g., Brief for Respondent 9. What he argues is that his jury could have interpreted the antisympathy instruction as barring consideration of mitigating evidence. More specifically, he claims that because much of the mitigating evidence relevant to his culpability also evoked sympathy, a juror who reacted sympathetically to the evidence would have believed that he was not entitled to consider that evidence at all-not even for its "moral" weight. ^[3] See id., at 10 ("[A]n antisympathy charge by the court, exploited by the prosecutor's remarks, erected a barrier to full consideration of mitigating proof about [respondent's] background. Since these circumstances compromised respondent's chance to obtain a reasoned moral response from the jurors who held his life in the balance, his sentence is too unreliable to stand"). Respondent's actual claim, therefore, alleges nothing more than a violation of the rule recognized in Lockett, supra, and Eddings, supra, that a jury may not be prohibited from considering and giving effect to all relevant mitigating evidence when deciding whether to impose the death penalty.

It was on this claim that the Tenth Circuit granted respondent habeas corpus relief. 860 F.2d, at 1556. The court reasoned as follows:

" 'Mercy,' 'humane' treatment, 'compassion,' and consideration of the unique 'humanity' of the defendant, which have all been affirmed as relevant considerations in the penalty phase of a capital case, all inevitably involve sympathy or are sufficiently intertwined with sympathy that they cannot be parsed without significant risk of confusion in the mind of a reasonable juror. . . .

Without placing an undue technical emphasis on definitions, it seems to us that sympathy is likely to be perceived by a reasonable juror as an essential or important ingredient of, if not a synonym for, 'mercy,' 'humane' treatment, 'compassion' and a full 'individualized' consideration of the 'humanity' of the defendant and his 'character.' " Ibid. (emphasis added).

In holding that the antisympathy instruction "undermined the jury's ability to consider fully [respondent's] mitigating evidence," the Tenth Circuit was careful to distinguish the claim at issue from the distorted version of respondent's claim that the Court revives today:

"That argument misconstrues the issue. The issue is not whether unbridled sympathy itself is a proper mitigating factor. Rather, the issue is whether an absolute anti-sympathy instruction presents an impermissible danger of interfering with the jury's consideration of proper mitigating evidence. We hold that it does. The Supreme Court has made it clear that such a risk is 'unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.' " Id., at 1557 (quoting Lockett, supra, 438 U.S., at 605, 98 S.Ct., at 2965) (emphasis in original). B

Under Teague, respondent's claim must be decided according to the "prevailing law" at the time his conviction became final in 1983 unless his claim falls within one of the two exceptions to the general nonretroactivity presumption. See Teague, 489 U.S., at 311, 109 S.Ct., at 1075. By 1983, this Court had unequivocally held that a sentencer may "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." Lockett, 438 U.S., at 604, 98 S.Ct., at 2964-2965; see also Eddings, 455 U.S., at 113-114, 102 S.Ct., at 876-877. ("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"); id., at 115, n. 10, 102 S.Ct., at 877, n. 10 (when state law allows defendant to present any relevant mitigating evidence, "Lockett requires the sentencer to listen"). Despite the fact that respondent's conviction was final after both Lockett and Eddings were decided, the Court today holds that respondent is not entitled to habeas corpus relief because his claim requires the application of a "new rule" of criminal procedure. The majority states that although Lockett and Eddings may "inform, or even control or govern" such a claim, they do not "compel " the rule Parks seeks. Ante, at 491. The Court reasons that Lockett and Eddings answered only the question "what mitigating evidence the jury must be permitted to consider in making the sentencing decision" and not "how it must consider the mitigating evidence." Ante, at 490 (emphasis in original); see ibid. ("There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider . . . and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision").

Respondent does not, however, raise a claim challenging how the jury considered mitigating evidence. As explained above, he argues that his jury could have believed it could not consider his mitigating evidence's bearing on moral culpability at all. Thus, his claim clearly falls within the the holdings of Lockett and Eddings even under the majority's reading of those cases. The real question in this case is whether the rule of Lockett and Eddings was violated. Resolution of respondent's claim involves only the otherwise familiar inquiry into the sufficiency of the jury instructions, not the recognition of a new principle of law. See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 397, 107 S.Ct. 1821, 1823, 95 L.Ed.2d 347 (1987); California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). The Court's conclusion that respondent seeks a "new rule" when he claims that the jury was "prevent[ed] . . . from giving independent mitigating weight to aspects of [his] character and record and to circumstances of the offense proferred in mitigation," Lockett, supra, 438 U.S., at 605, 98 S.Ct., at 2965, is disingenuous.

Moreover, the majority's limited reading of Lockett and Eddings was rejected last Term in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In that case, we held that Teague did not bar a habeas petitioner from raising the claim that the Texas death penalty statute deprived him of an individualized sentencing determination by limiting the effect the jury could give to relevant mitigating evidence. 492 U.S., at 318, 109 S.Ct., at 2946. We explained:

"[I]t was clear from Lockett and Eddings, that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or the circumstances of the offense that mitigate against imposing the death penalty." Ibid.

Penry argued that although a Texas jury was able to give some effect to the evidence of mental retardation, the evidence "ha[d] relevance to his moral culpability beyond the scope of the special issues, and . . . the jury was unable to express its 'reasoned moral response' to that evidence in determining whether death was the appropriate punishment." Penry, supra at 322, 109 S.Ct., at 2948. ^[4] In sustaining Penry's challenge, we expressly rejected the argument that although the State may not bar "consideration" of all relevant mitigating evidence, it may channel the "effect" the sentencer gives the evidence. We stated that " 'the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration' in imposing sentence." 492 U.S., at 321, 109 S.Ct., at 2948 (quoting Franklin v. Lynaugh, 487 U.S. 164, 185, 108 S.Ct. 2320, 2333, 101 L.Ed.2d 155 (1988) (O'CONNOR, J., concurring)). ^[5] See also Penry, supra, 492 U.S., at 327, 109 S.Ct., at 2951 (" 'In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence' ") (quoting McCleskey v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 1773, 95 L.Ed.2d 262 (1987)).

The majority struggles mightily to distinguish rules that govern a jury's ability to "consider," "weigh," and "give effect to" mitigating evidence from rules relating to the "manner in which [the] mitigating evidence can be considered." Ante, at 491 (emphasis added). This distinction is meaningless for a rule that limits the manner in which the jury considers mitigating evidence is unconstitutional if it limits the jury's ability to consider and give effect to that evidence. But under the majority's approach, a law requiring the jury to discount the weight of all, or of certain, mitigating factors would be consistent with Lockett so long as the majority could describe the statute as relating to the "manner" in which the jury considers the evidence despite such a statute's obvious preclusive effect. Cf. McKoy v. North Carolina, 494 U.S. 433, 465-466, 110 S.Ct. 1227, 1245, 108 L.Ed.2d 369 (SCALIA, J., dissenting) (requirement that jury unanimously agree that mitigating circumstance exists is not a restriction on the jury's ability to give effect to mitigating evidence, but only on the "manner in which it was allowed to do so-viz., only unanimously") (citing 494 U.S., at 490, 110 S.Ct., at 1261).

Indeed, the majority's language is strangely reminiscent of the argument trumpeted by Justice SCALIA in Penry. Justice SCALIA, writing for four Members of the Court, argued that "it could not be clearer that Jurek adopted the constitutional rule that the instructions had to render all mitigating circumstances relevant to the jury's verdict, but that the precise manner of their relevance-the precise effect of their consideration-could be channeled by law." Penry, supra, 492 U.S., at 355, 109 S.Ct., at 2966 (opinion concurring in part and dissenting in part). The Court correctly rejected that position in Penry, and its failure to do so today creates considerable ambiguity about which Lockett claims a federal court may hereafter consider on habeas corpus review.

Because the majority concludes that the claim respondent presses would constitute a "new rule," it must proceed to consider whether the claim fits within the second exception to the Teague doctrine of nonretroactivity. ^[6] A plurality of the Court in Teague concluded that only those new rules that amount to "bedrock procedural" rules "without which the likelihood of an accurate conviction is seriously diminished" should be applied retroactively. Teague, 489 U.S., at 313, 109 S.Ct., at 1077. Today, a majority of the Court adopts this crabbed construction of the second exception and holds that the exception is limited to " 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Ante, at 495 (quoting Teague, supra, 489 U.S., at 311, 109 S.Ct., at 1075); see also Butler, 494 U.S., at 416, 110 S.Ct., at 1218. Beyond such generalities, the majority offers no guidance despite its concession that the "precise contours of this exception may be difficult to discern." Ante, at 495.

The determination with which the Court refuses to apply this exception to a capital sentencing error is most disturbing and is remarkably insensitive to the fundamental premise upon which our Eighth Amendment jurisprudence is built. This Court has consistently "recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-999, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983). If the irrevocable nature of the death penalty is not sufficient to counsel against application of Justice Harlan's doctrine of limited retroactivity for collateral review altogether, ^[7] it should at least inform the determination of the proper scope of the second Teague exception in capital cases. ^[8] Moreover, the majority's insistence that a rule must enhance the accuracy of the factfinding process in order to fit within the second exception is difficult to justify in the context of capital sentencing. The decision whether to impose the death penalty represents a moral judgment about the defendant's culpability, not a factual finding. See Teague, supra, 489 U.S., at 321, 109 S.Ct., at 1081 (STEVENS, J., concurring in part and concurring in judgment) ("[A] touchstone of factual innocence would provide little guidance in . . . cases, such as those challenging the constitutionality of capital sentencing hearings"). Cf. Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). Thus, the scope of the exception should be tailored to the unique nature of the sentencing decision.

The foremost concern of the Eighth Amendment is that the death sentence not be imposed in an arbitrary and capricious manner. See, e.g., Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). To comply with this command, a State must narrow the class of defendants eligible for the death penalty and must also ensure that the decision to impose the death penalty is individualized. See California v. Brown, 479 U.S., at 541, 107 S.Ct., at 839. The right to an individualized sentencing determination is perhaps the most fundamental right recognized at the capital sentencing hearing. See Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion) ("[T]he fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death") (citation omitted). "The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence." Lockett, 438 U.S., at 605, 98 S.Ct., at 2965 (plurality opinion); see Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990) ("The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence"). Rules ensuring the jury's ability to consider mitigating evidence guarantee that the jury acts with full information when formulating a moral judgment about the defendant's conduct. Because such rules are integral to the proper functioning of the capital sentencing hearing, they must apply retroactively under the second Teague exception. Thus, even if respondent's claim constitutes a "new rule," it must fall within the second exception. I fear that the majority's failure to provide any principled analysis explaining why the second Teague exception does not apply in this case reflects the Court's growing displeasure with the litigation of capital cases on collateral review. II

For the same reasons that Lockett and Eddings compel the conclusion that respondent does not seek a "new rule" under Teague, these cases also compel the conclusion that respondent was denied an individualized sentencing determination as required by the Eighth Amendment. As Justice O'CONNOR has recognized, "one difficulty with attempts to remove emotion from capital sentencing through [antisympathy] instructions . . . is that juries may be misled into believing that mitigating evidence about a defendant's background or character also must be ignored." California v. Brown, 479 U.S., at 545-546, 107 S.Ct., at 841-842 (concurring opinion) (citing id., at 555, 107 S.Ct., at 846 (BRENNAN, J., dissenting)). That is exactly what happened in this case: in all likelihood the jury interpreted the antisympathy instruction as a command to ignore the mitigating evidence.

When reviewing the validity of particular jury instructions, the Court has consistently held that "[t]he question . . . is not what [this Court] declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning." Francis v. Franklin, 471 U.S. 307, 315-316, 105 S.Ct. 1965, 1972, 85 L.Ed.2d 344 (1985) (citing Sandstrom v. Montana, 442 U.S. 510, 516-517, 99 S.Ct. 2450, 2455, 61 L.Ed.2d 39 (1979)). Until this Term, there had been little disagreement with this standard. Today, however, a majority of the Court reformulates the appropriate inquiry as "whether there is a reasonable likelihood that the jury has applied the challenged instruction" in an unconstitutional manner. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). ^[9] Under either the Francis or Boyde approach, the antisympathy instruction given in this case was unconstitutional because it interfered with the jury's ability to consider mitigating evidence presented by respondent.

"To determine how a reasonable juror could interpret an instruction, we 'must focus initially on the specific language challenged.' . . . If the specific instruction fails constitutional muster, we then review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law." California v. Brown, supra, 479 U.S., at 541, 107 S.Ct., at 839 (quoting Francis, supra, 471 U.S., at 315-316, 105 S.Ct., at 1971-1972). ^[10] In this case, the jury was instructed to "avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence." App. 13 (emphasis added). This instruction is distinguishable from the one upheld in California v. Brown, supra. In that case, the Court rejected the argument that a reasonable juror could have interpreted an instruction not to be "swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" as a command not to consider mitigating evidence. The Court held instead that a reasonable juror would have understood "the instruction not to rely on 'mere sympathy' as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase." 479 U.S., at 542, 107 S.Ct., at 840 (emphasis added). Because the jury in this case was told not to consider any sympathy-rather than "mere sympathy"-it is more likely that the jury at respondent's trial understood that when making a moral judgment about respondent's culpability, it was forbidden to take into account any evidence that evoked a sympathetic response.

The context of the sentencing proceedings bolsters this conclusion. The only mitigating evidence proffered by respondent was testimony about his deprived background from his father. Although this evidence was relevant to the sentencing decision because it bore on respondent's culpability, a juror's initial reaction to this evidence might have been to feel sympathy for respondent because of his hardship. A juror who conscientiously followed the instruction to avoid any sympathy would have believed that he was required to ignore the father's testimony altogether since only by excluding it completely from consideration could he eliminate all feelings of sympathy for respondent. Moreover, because the father's testimony did not fit within the mitigating circumstances listed by the judge, it was all the more likely that a juror believed that the father's testimony was irrelevant to the sentencing decision. ^[11] See California v. Brown, supra, at 550, 107 S.Ct., at 844 (BRENNAN, J., dissenting) ("It is . . . likely . . . that jurors instructed not to rely on sympathy would conclude that the defendant had simply gone too far in his presentation, and that, as in other trial contexts, the jury must look to the judge for guidance as to that portion of the evidence that appropriately could be considered").

Indeed, the prosecutor's closing argument maintained that respondent's presentation at the sentencing phase constituted an illegitimate sympathy ploy and that the jury was required to ignore it. ^[12] After explaining that none of the minimum mitigating circumstances were supported by the evidence, the prosecutor argued:

"[Defense counsel's] closing arguments are really a pitch to you for sympathy-sympathy, or sentiment or prejudice; and you told me in voir dire you wouldn't do that.

"Well it's just cold turkey. He either did it or he didn't. He either deserves the death penalty or he doesn't, you know. You leave the sympathy, and the sentiment and prejudice part out of it." App. 75.

Given the sparse amount of evidence presented at the sentencing phase and the prosecutor's theme that the jury's deliberations were to be purely mechanical, ^[13] there is a reasonable likelihood that the jury believed that the antisympathy instruction barred it from considering respondent's deprived background as a valid reason not to impose the death penalty.

Nothing in the other instructions ensured that the antisympathy instruction would be correctly understood. The trial judge did instruct the jury that it was required to consider a list of minimum mitigating circumstances and that it was free to consider any other factor it deemed mitigating, ^[14] but these instructions did not cure the infirmity of theanti sympathy instruction. Although the judge informed the jury in broad terms that it could consider all relevant mitigating evidence, he never defined the concept of mitigation for the jury. But the jury was told that it could not consider "sympathy" and nothing in the jury instructions explained that the command to avoid sympathy did not preclude the consideration of mitigating evidence. At best, then, the instructions sent contradictory messages. "Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis, 471 U.S., at 322, 105 S.Ct., at 1975. "Unless we can rule out the substantial possibility that the jury may have rested its verdict on the 'improper' ground, we must remand for resentencing." Mills v. Maryland, 486 U.S. 367, 377, 108 S.Ct. 1860, 1867, 100 L.Ed.2d 384 (1988).

The majority suggests that Lockett and Eddings do not compel the invalidation of the antisympathy instruction because the instruction ensures that the decision to impose the death penalty is "a 'reasoned moral response,' rather than an emotional one." Ante, at 493 (citation omitted; emphasis in original). Although some recent cases have stated that the decision to impose the death penalty must be a moral decision, see Brown, 479 U.S., at 545, 107 S.Ct., at 841 (O'CONNOR, J., concurring); Penry, 492 U.S., at 319, 109 S.Ct., at 2947; Franklin v. Lynaugh, 487 U.S., at 184, 185, 108 S.Ct., at 2332, 2333 (O'CONNOR, J., concurring), those cases have not clearly defined the difference between a "reasoned moral response" and an "emotional" one. Indeed, our earlier cases recognized that "sympathy" is an important ingredient in the Eighth Amendment's requirement of an individualized sentencing determination. In Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), a plurality of the Court held that "[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind." Id., at 304, 96 S.Ct., at 2991 (emphasis added). The description of "mitigating evidence" as "compassionate or mitigating factors" necessarily includes the concept of sympathy, because "sympathy" is fairly regarded as a synonym for "compassion." Webster's New International Dictionary 544 (2d ed. 1957); Funk & Wagnalls New Standard Dictionary 541 (1952).

We can debate whether sympathy is an emotional reaction that has no place in a decision to impose the death penalty or whether sympathy, although an emotion, plays an important role in forming the jury's moral response to the defendant's actions. But this debate is an irrelevant academic exercise if in a particular case the jury is not informed of the distinction between the type of reaction to mitigating evidence that is an invalid emotional response and the type of reaction that is an acceptable "reasoned moral response." This Court's incantation of that talismanic phrase cannot hide the fact that the jury instructions in this case did not clearly inform the jurors that their decision whether to impose the death penalty-the most severe sanction available to society-should represent a moral judgment about the defendant's culpability in light of all the available evidence. I would think the Court would at least ensure that its views about the propriety of the death penalty were the ones actually transmitted to the jury.

The instructions at the sentencing phase of respondent's trial may well have misled the jury about its duty to consider the mitigating evidence respondent presented. Until today, the Court consistently has vacated a death sentence and remanded for resentencing when there was any ambiguity about whether the sentencer actually considered mitigating evidence. See Eddings v. Oklahoma, 455 U.S., at 119, 102 S.Ct., at 879 (O'CONNOR, J., concurring) ("Woodson and Lockett require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the [sentencer]"). See also Penry, supra, 492 U.S., at 328, 109 S.Ct., at 2952; Mills, supra, 486 U.S., at 377, 108 S.Ct., at 1867; Hitchcock, 481 U.S., at 399, 107 S.Ct., at 1824; Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986); Lockett, 438 U.S., at 608, 98 S.Ct., at 2966. The Court's failure to adhere to this fundamental Eighth Amendment principle is inexcusable. Distorting respondent's claim and our precedents in order to hide behind the smokescreen of a new standard of retroactivity is even more so.

Even if I did not believe that the antisympathy instruction interfered with the jury's ability to consider and give effect to mitigating evidence, I would vacate respondent's death sentence. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment. Gregg v. Georgia, 428 U.S., at 227, 96 S.Ct., at 2950, 49 L.Ed.2d 859.

Notes

1. The Court of Appeals for the Tenth Circuit granted respondent relief before we decided Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Although the case was briefed and argued after Teague, neither of the parties nor any amicus briefed the retroactivity issue. See also Tr. of Oral Arg. 11 ("Well you really haven't come here prepared to argue the Teague point and it's probably not fair to press you on it"). In such circumstances, I question the propriety of the Court's addressing the retroactivity issue in the first instance. Cf. Teague, supra, 489 U.S., at 300, 109 S.Ct., at 1069 (amicus briefed issue). The wiser course would be to vacate the Tenth Circuit's decision and remand for reconsideration in light of Teague and the novel standard adopted in Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347. See Zant v. Moore, 489 U.S. 836, 109 S.Ct. 1518, 103 L.Ed.2d 922 (1989) (remanding case after oral argument for reconsideration in light of Teague); see ibid. (BRENNAN, J., concurring) (appellate court should consider in first instance whether State waived any claim relating to retroactivity). The Court's application of the new doctrine of retroactivity adopted in Teague to bar relief on a claim that was litigated prior to that decision is contrary to basic fairness. See Butler, 494 U.S., at 422, n. 4, 110 S.Ct., at 1221, n. 4 (BRENNAN, J., dissenting).
2. As in Butler, the majority looks to decisions from other courts to discern the meaning of our precedents. See Butler, 494 U.S., at 412-415, 110 S.Ct., at 1216-1218 (Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), not "dictated" by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because of Federal Circuit and state-court split). The mere recitation of lower court cases does little to resolve the question, however, because ultimately it is this Court's responsibility to clarify the scope of its own holdings. In addition, the majority omits any reference to state-court decisions holding that an antisympathy instruction violated the Eighth Amendment. See, e.g., People v. Lanphear, 36 Cal.3d 163, 165-166, 203 Cal.Rptr. 122, 123-124, 680 P.2d 1081, 1082-1083 (1984); Legare v. State, 250 Ga. 875, 877-878, 302 S.E.2d 351, 353-354 (1983). The Court must do more than simply cite cases rejecting a similar claim to support its conclusion that a state-court decision was "reasonable." See Butler, 494 U.S., at 420-421, 110 S.Ct., at 1220-1221 (BRENNAN, J., dissenting).
3. As Justice O'CONNOR has explained, "evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse." California v. Brown, 479 U.S., 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (concurring opinion); see also Penry v. Lynaugh, 492 U.S. 302, 322, 109 S.Ct. 2934, 2949, 106 L.Ed.2d 256 (1989) ("Because Penry was mentally retarded . . . and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and because of his history of childhood abuse, [a] juror could . . . conclude that Penry was less morally 'culpable than defendants who have no such excuse' "). Yet the fact that the evidence is relevant to the jury's moral judgment about the defendant's actions does not rule out the possibility that the evidence may also evoke sympathy in the jurors. See California v. Brown, supra, 479 U.S., at 548, 107 S.Ct., at 843 (BRENNAN, J., dissenting) ("In forbidding the sentencer to take sympathy into account, this language on its face precludes precisely the response that a defendant's evidence of character and background is designed to elicit, thus effectively negating the intended effect of the Court's requirement that all mitigating evidence be considered"). Justice O'CONNOR's concurrence in California v. Brown, supra, implicitly recognized this possibility. See id., at 545-546, 107 S.Ct., at 841 ("[O]ne difficulty with attempts to remove emotion from capital sentencing . . . is that juries may be misled into believing that mitigating evidence about a defendant's background or character also must be ignored").
4. The majority's contention that Penry's "claim was that the Texas system prevented the jury from giving any mitigating effect to the evidence of his mental retardation," ante, at 491 (emphasis added), is simply incorrect. Penry, 492 U.S., at 318, 109 S.Ct., at 2947. In addition, the majority's effort to premise Penry solely on Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), rather than on Lockett and Eddings as well, is unavailing. Jurek dictated the result in Penry because Jurek held that a State may not limit the jury's ability to consider and give effect to mitigating evidence. See Penry, supra, 492 U.S., at 318-319, 109 S.Ct., at 2947 ("The rule Penry seeks-that when such mitigating evidence is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether the death penalty should be imposed-is not a 'new rule' under Teague because it is dictated by Eddings and Lockett. Moreover, in light of the assurances upon which Jurek was based, we conclude that the relief Penry seeks does not 'impos[e] a new obligation' on the State of Texas") (quoting Teague, 489 U.S., at 301, 109 S.Ct., at 1070).
5. See also Franklin v. Lynaugh, 487 U.S., at 193, 108 S.Ct., at 2337 (STEVENS, J., dissenting) ("There is no constitutionally meaningful distinction between allowing the jury to hear all the evidence the defendant would like to introduce and then telling the jury to consider that evidence only to the extent that it is probative of one of the enumerated mitigating circumstances, which we held unconstitutional in both Lockett and Hitchcock [v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) ], and allowing the jury to hear whatever evidence the defendant would like to introduce and then telling the jury to consider that evidence only to the extent that it is probative of [one of the Texas special issues]").
6. The first exception permits the retroactive application of a "new rule" that places primary conduct beyond the power of the State to punish. Teague, supra, 489 U.S., at 311, 109 S.Ct., at 1075. This exception is not relevant here.
7. But see Teague, 489 U.S., at 321, n. 3, 109 S.Ct., at 1081, n. 3 (STEVENS, J., concurring in part and concurring in judgment) (explaining that one of the main reasons for limited retroactivity on habeas-promoting rehabilitation-is "wholly inapplicable" in capital cases) (citing Mackey v. United States, 401 U.S. 667, 690-691, 91 S.Ct. 1160, 1178-1179, 28 L.Ed.2d 404 (1971)).
8. In Penry, the Court refined the scope of the first Teague exception in light of the unique nature of the death penalty. "Although Teague read [the first] exception as focusing solely on new rules according constitutional protection to an actor's primary conduct, . . . [i]n our view, a new rule placing a certain class of individuals beyond the State's power to punish by death is analogous to a new rule placing certain conduct beyond the State's power to punish at all." Penry, 492 U.S., at 329-330, 109 S.Ct., at 2952. The scope of the second exception also should reflect the unique consequences of errors at the sentencing phase of a capital trial.
9. As Justice MARSHALL ably demonstrates in his dissent in Boyde, the majority engages in a sleight of hand to justify the reformulation of the standard of review. See Boyde, 494 U.S., at 387, 110 S.Ct., at 1201 (MARSHALL, J., dissenting). But in the end, it is unclear how the majority's "reasonable likelihood" standard differs from the prior inquiry into how a reasonable juror could have interpreted the instruction. See Boyde, at 392, 110 S.Ct., at 1204 (MARSHALL, J., dissenting) ("It is difficult to conceive how a reasonable juror could interpret an instruction unconstitutionally where there is no 'reasonable likelihood' that a juror would do so"). To the extent that this new standard is stricter than the standard set forth in Francis, I believe it is "irreconcilable with bedrock due process principles." Francis, 471 U.S., at 322-323, n. 8, 105 S.Ct., at 1975-1976, n. 8. Moreover, a stricter standard is especially inappropriate when reviewing the instructions at the sentencing stage of a capital trial. "In death cases doubts [concerning a juror's interpretation of an instruction] should be resolved in favor of the accused." Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948). See also Boyde, 494 U.S., at 392-394, 110 S.Ct., at 1201 (MARSHALL, J., dissenting).
10. "This analysis 'requires careful attention to the words actually spoken to the jury . . ., for whether a defendant has been accorded his constitutional rights depends on the way in which a reasonable juror could have interpreted the instruction.' " Francis, supra, 471 U.S., at 315, 105 S.Ct., at 1971 (quoting Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979)).
11. The trial judge instructed the jury as follows:
12. Although the prosecutor's comments do not have the force of law, they often are a useful aid in determining how a reasonable juror could have interpreted a particular instruction. See Boyde, 494 U.S., at 385, 110 S.Ct., at 1200 ("[A]rguments of counsel, like the instructions of the court, must be judged in the context in which they are made"); see also Brown, 479 U.S., at 553, 107 S.Ct., at 845 (BRENNAN, J., dissenting). This is especially true in the instant case because the trial court instructed the jury on the law before the prosecutor and defense counsel gave closing argument. 5 Tr. 694-733. Thus, the prosecutor's argument was the last thing the jury heard before it began its deliberations.
13. The prosecutor stressed this theme from the beginning of the trial. At voir dire, he told the jury: "Of course the Court will instruct you that you should not allow sympathy, sentiment or prejudice to enter into your deliberations. And frankly that's just as cold-blooded as you can put it. . . . [Y]ou can be as sympathetic as you want to . . . be, but you can't do it and sit on this jury." App. 8-9. The rest of his closing argument was calculated to assure the jury that their conscience should not bother them because the criminal justice system required that the decision to put respondent to death be "cold-blooded." He argued:
14. The jury was told:

"You must consider all the following minimum mitigating circumstances and determine whether any one or more of them apply to all of the evidence, facts and circumstances of this case. You are not limited in your consideration of the minimum mitigating circumstances set out herein, and you may consider any other or additional mitigating circumstances, if any, that you may find from the evidence to exist in this case. What facts or evidence that may constitute an additional mitigating circumstance is for the jury to determine." Id., at 10-11.