# Sawyer v. Smith/Dissent Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Marshall
Justice MARSHALL, with whom Justice BRENNAN joins, Justice BLACKMUN joins as to Parts I-IV, and Justice STEVENS joins as to Parts I-III, dissenting.
In his closing argument in the sentencing phase of Robert Sawyer's trial, the prosecutor emphatically argued to the jury that a sentence of death would be "merely a recommendation" and that "others" would be able to correct the decision if it turned out to be "wrong." This argument misrepresented the scope of appellate review of capital sentences under Louisiana law. La.Code Crim.Proc.Ann., Art. 905.9 (West 1984) (review by State Supreme Court is limited to question whether sentence of death is "excessive"). The prosecutor's effort to minimize the jury's sense of responsibility is precisely the type of misleading argument that we condemned in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and is therefore "fundamentally incompatible with the Eighth Amendment's heightened 'need for reliability in the determination that death is the appropriate punishment.' " Id., at 340, 105 S.Ct., at 2645 (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion)).
The Court refuses to address Sawyer's Caldwell claim on the merits. Instead, it holds that Caldwell created a "new" rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), ante, at 234, and that Caldwell 's protection against misleading prosecutorial argument is not a " 'watershed rul[e] of criminal procedure' " essential to the fundamental fairness of a capital proceeding, ante, at 241 (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415 (1990)). To reach this result, the majority misrepresents the source and function of Caldwell § prohibitions, thereby applying its newly crafted retroactivity bar to a case in which the State has no legitimate interest in the finality of the death sentence it obtained through intentional misconduct. I dissent.
* In Teague, the plurality declared that a case announces a new rule "if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S., at 301, 109 S.Ct., at 1070. This Term, the Court held that the " 'new rule' principle . . . validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990). Accord, Parks, supra, 494 U.S., at 488, 110 S.Ct., at 1260 (quoting Butler, supra, 494 U.S., at 414, 110 S.Ct., at 1217). I continue to regard the Court's effort to curtail the scope of federal habeas as inconsistent with Congress' intent to provide state prisoners with an opportunity to redress "unlawful state deprivations of their liberty interests through a fresh and full review of their claims by an Article III court." Butler, supra, at 427, 110 S.Ct., at 1224 (BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ., dissenting). Even under the majority's standard, though, if the answer to a legal question is not "susceptible to debate among reasonable minds," Butler, supra, at 415, 110 S.Ct., at 1217, or if existing precedent would have "compelled" state courts to provide relief at the time the defendant's conviction became final, Parks, supra, 494 U.S., at 488, 110 S.Ct., at 1260, then the decision does not announce a "new" legal rule within the meaning of Teague. In such circumstances, a defendant is entitled to the retroactive benefit of the decision he seeks to invoke.
The "new rule" inquiry spelled out in Teague, Butler, and Parks confirms that Caldwell did not create a new rule. The roots of the Caldwell rule can be traced directly to this Court's Eighth Amendment decisions demanding heightened reliability in capital sentencing. Woodson v. North Carolina, supra (plurality opinion); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Eddings v. Oklahoma, 455 U.S. 104, 118-119, 102 S.Ct. 869, 878-879, 71 L.Ed.2d 1 (1982) (O'CONNOR, J., concurring). In Woodson, Lockett, and Eddings, the Court considered and rejected States' efforts after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), to eliminate arbitrariness in the administration of the death penalty by limiting or withdrawing the sentencer's discretion. These decisions, as well as the post-Furman decisions in which the Court upheld capital sentencing schemes, see, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), emphasized that sentencers must confront their "truly awesome responsibility of decreeing death for a fellow human . . . with due regard for the consequences of their decision." Lockett, supra, 438 U.S., at 598, 98 S.Ct., at 2961 (plurality opinion) (internal quotation marks and citation omitted). By the time of Caldwell, "this Court's Eighth Amendment jurisprudence ha[d] taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State." 472 U.S., at 329, 105 S.Ct., at 2640.
The majority nonetheless insists that the "principle of reliability in capital sentencing" is framed at such a high "level of generality" that treating it as the relevant principle for determining whether Caldwell is new law would render Teague "meaningless." Ante, at 236. This argument ignores the centrality of the Caldwell rule to reliability in capital sentencing. Caldwell error affects not just the consideration of some relevant sentencing factors, but the entire decision-making process itself. When a prosecutor misleadingly tells the jury that its verdict may be corrected on appeal, the prosecutor invites the jury to shirk its sentencing responsibility. The prosecutor essentially informs the jury that its verdict is less important because no execution will occur without the independent approval of higher authorities. To the extent the prosecutor's comments are "focused, unambiguous, and strong," Caldwell, supra, at 340, 105 S.Ct., at 2645, such misconduct casts irredeemable doubt on the resulting verdict.
Some rules in capital proceedings do not contribute fundamentally to reliability; as to such rules, the majority's rejection of the reliability principle as too general may be apt. For example, the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), prohibiting the state from exercising peremptory challenges in a racially discriminatory manner does not have a fundamental impact on the accuracy-as opposed to the integrity-of the criminal process. See Allen v. Hardy, 478 U.S. 255, 259, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986). The Caldwell rule, though, is a prerequisite to reliability in capital sentencing. Not unlike the right to counsel, the right to a jury that understands the gravity of its task is essential to the vindication of the other sentencing guarantees. Meticulous presentation of evidence and careful instruction on the law are of minimal value to a defendant whose jury has been led to believe that its verdict is of little or no consequence. The majority's observation that Caldwell 's prohibition against misleading prosecutorial argument is specific thus does not undermine Sawyer's assertion that it was dictated by the Eighth Amendment's general insistence on reliability in capital sentencing.
The majority's assertion that "there were in fact indications in our decisions that the Caldwell rule was not a requirement of the Eighth Amendment," ante, at 237, is unsupported by the cases on which the majority relies. In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the defendant had challenged California's requirement that trial courts instruct capital juries about the Governor's power to commute life sentences. In rejecting the Eighth Amendment challenge, the Court emphasized that the challenged instruction was accurate. The Court distinguished Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in which the Court had struck down a death sentence based in part on information contained in a presentence report that had not been disclosed to defense counsel. Unlike Gardner, where there was a "risk that some of the information [relied on in sentencing] . . . may [have] be[en] erroneous," id., at 359, 97 S.Ct., at 1205 (plurality opinion), the sentencing decision in Ramos did not rest "in part on erroneous or inaccurate information." 463 U.S., at 1004, 103 S.Ct., at 3455. See also ibid. (the "need for reliability in capital sentencing" did not require reversal because the challenged instruction gave the jury "accurate information"). Cf. Caldwell, 472 U.S., at 342, 105 S.Ct., at 2646 (O'CONNOR, J., concurring in part and concurring in judgment) ("In my view, the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility. I agree that there can be no 'valid state penological interest' in imparting inaccurate or misleading information that minimizes the importance of the jury's deliberations in a capital sentencing case") (quoting id., at 336, 105 S.Ct., at 2643 (majority opinion)). The Ramos Court's approval of California's decision to provide capital juries with accurate information respecting commutation cannot reasonably be read as an approval of misleading or inaccurate prosecutorial argument concerning the scope of appellate review.
That the Mississippi Supreme Court in Caldwell erroneously read Ramos so broadly does not, as the majority argues, "sugges[t] that prior to Caldwell our cases did not put other courts on notice that the Eighth Amendment compelled the Caldwell result." Ante, at 237. Some courts will misconstrue our precedents notwithstanding their clarity, see, e.g., McKoy v. North Carolina, 494 U.S. 433, 439-441, 110 S.Ct. 1227, 1231-1233, 108 L.Ed.2d 369 (1990) (state court failed to adhere to clear direction of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)), and the mere fact that a single court adopts a position contrary to the one dictated by our precedents does not confirm that the case law was unclear. Indeed, if that were the standard, almost every Supreme Court decision would announce a new rule, as we seldom take cases to resolve issues as to which the lower courts are in universal agreement. Moreover, under the majority's view, state-court decisions, by misconstruing the scope of this Court's Eighth Amendment decisions, would simultaneously limit the reach of those decisions as a matter of federal law. Cf. ante, at 240.
Ironically, the majority regards one errant decision by the Mississippi Supreme Court as evidence of uncertainty and yet dismisses as irrelevant to its "new rule" inquiry the States' near-unanimous rejection of Caldwell-type prosecutorial arguments prior to Caldwell, supra, 472 U.S., at 333-334, and n. 4, 105 S.Ct., at 2641-2642, and n. 4 (collecting cases). Even the Mississippi Supreme Court declared that "[a]ny argument by the state which distorts or minimizes the solemn obligation and responsibility of the jury is serious error." Hill v. State, 432 So.2d 427, 439 (1983) (refusing to rule on defendant's Caldwell-type claim, however, because of the absence of a contemporaneous objection). State decisions, even if they are not premised on federal law, play a part in determining the status of constitutional protections under the Eighth Amendment. That Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion), and this Court has often looked to the laws of the States as a barometer of contemporary values, see, e.g., Penry v. Lynaugh, 492 U.S. 302, 330-331, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989); Ford v. Wainwright, 477 U.S. 399, 408-409, 106 S.Ct. 2595, 2601, 91 L.Ed.2d 335 (1986). Of course, the recognition of a right under state law does not translate automatically into the existence of federal constitutional protection. But a consensus among States regarding an essential ingredient to "a fair trial in the sentencing phase," State v. Berry, 391 So.2d 406, 418 (La.1980) (opinion on rehearing), is evidence that the right is cognizable under the Federal Constitution. The States' strong pre-Caldwell condemnation of misleading prosecutorial arguments regarding the scope of appellate review is thus additional evidence that our Eighth Amendment decisions compelled the result in Caldwell.
Moreover, the majority's contention that the state courts based their decisions solely on "state common law," ante, at 239, assumes that States' capital punishment jurisprudence has evolved independently of our Eighth Amendment decisions. But state decisions regarding capital sentencing procedures-even those that do not explicitly mention federal law-are surely informed by federal principles and should thus be accorded some weight in discerning the scope of federal protections. Only an especially condescending federalism would protect States from retroactive application of federal law by dismissing state decisions concerning capital sentencing as irrelevant to the lineage of the federal law.
This Court's approach to improper prosecutorial comments in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), also supports a finding that Caldwell did not establish a new rule. In Donnelly, the prosecutor hinted that the defendant might have been willing to accept a lesser penalty for his crime, implicitly suggesting that the defendant had acknowledged his guilt. The Court held that this comment did not violate the Due Process Clause because it was ambiguous, corrected by the trial court, and too fleeting to have influenced the jury. Id., at 643-645, 94 S.Ct., at 1871-1872. The Donnelly Court specifically confined its decision to prosecutorial comments that did not implicate "specific guarantees of the Bill of Rights." Id., at 643, 94 S.Ct., at 1871. Had the claim implicated such rights, the Court acknowledged that "special care" would be required "to assure that prosecutorial conduct in no way impermissibly infringe[d] them." Ibid.
Donnelly was decided prior to the Court's explicit recognition in the cases following Gregg that the Eighth Amendment affords special protections to defendants facing the death penalty. The Court's decisions in the decade after Donnelly but before Caldwell made unmistakably clear that the death penalty's qualitatively different character from all other punishments necessitates "a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson, 428 U.S., at 305, 96 S.Ct., at 2991 (plurality opinion). See also Beck v. Alabama, 447 U.S. 625, 637-638, 100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392 (1980) (quoting Gardner, 430 U.S., at 357-358, 97 S.Ct., at 1204-1205 (plurality opinion)). Moreover, our jurisprudence by the time of Caldwell indicated unambiguously that the Eighth Amendment protects against the risk that the death penalty would be imposed in an arbitrary or capricious manner. Gregg, 428 U.S., at 188, 96 S.Ct., at 2932 (joint opinion of Stewart, Powell, and STEVENS, JJ.); see also Lockett, 438 U.S., at 605, 98 S.Ct., at 2965 (plurality opinion). In light of the Court's repeated emphasis on indispensable safeguards guaranteed in capital sentencing by a provision of the Bill of Rights, a court faced with misleading prosecutorial comments about the jury's sentencing role just prior to Caldwell could not reasonably have concluded on the basis of Donnelly that such comments would survive this Court's scrutiny.
The majority's contrary conclusion rests on a misunderstanding of the relationship between Caldwell and Donnelly. The majority endorses the Fifth Circuit's view that " '[t]he only defendants who need to rely on Caldwell rather than Donnelly are those who must concede that the prosecutorial argument in their case was not so harmful as to render their sentencing trial "fundamentally unfair." ' " Ante, at 243-244 (quoting 881 F.2d 1273, 1293 (1989)). But Caldwell is not, as the majority argues, "an additional measure of protection against error, beyond that afforded by Donnelly, in the special context of capital sentencing." Ante, at 244. This analysis erroneously presumes precisely what Caldwell denies, that "focused, unambiguous, and strong," prosecutorial arguments that mislead a jury about its sentencing role in the capital context can ever be deemed harmless. Caldwell rests on the view that any strong, uncorrected, and unequivocal prosecutorial argument minimizing the jury's sense of responsibility for its capital sentencing decision "presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." 472 U.S., at 333, 105 S.Ct., at 2642. Caldwell thus tells us that a capital trial in which the jury has been misled about its sentencing role is fundamentally unfair and therefore violates Donnelly as well.
The majority's claim that Maggio v. Williams, 464 U.S. 46, 104 S.Ct. 311, 78 L.Ed.2d 43 (1983), provides more "direct evidence" that the rule of Caldwell was not clear at the time petitioner's conviction became final, ante, at 237, is likewise unconvincing. In Williams, the Court vacated the Fifth Circuit's entry of a stay in a capital case because Williams' contentions were "insubstantial." 464 U.S., at 52, 104 S.Ct., at 315. Williams alleged, inter alia, that the prosecutor's closing argument had "elicited a decision based on passion rather than reason." Id., at 49, 104 S.Ct., at 313. Some, but not all, of the prosecutor's argument referred to the scope of appellate review. See id., at 53-54, 104 S.Ct., at 315-316 (STEVENS, J., concurring in judgment). When the motion to vacate the stay came to this Court, the sole issue was whether there was "a reasonable probability" that four Members of the Court would vote to grant certiorari. Id., at 48, 104 S.Ct., at 313 (internal quotation marks omitted). In view of Williams' prior unsuccessful efforts to secure relief on similar claims, the Court applied "a strict standard of review" to Williams' application. Id., at 55, 104 S.Ct., at 316 (STEVENS, J., concurring in judgment). The Court did not discuss the merits of Williams' claim regarding the prosecutorial argument other than to note that the District Court had given it "full consideration," id., at 49, 104 S.Ct., at 313, and had found "that it did not render Williams' trial fundamentally unfair," id., at 50, 104 S.Ct., at 313. The Court's vacation of the stay in these circumstances thus reflects only the Court's view that Williams' claims, in such a posture, did not "warrant certiorari and plenary consideration." Id., at 48, 104 S.Ct., at 313. In sum, because the cases that dictated the result in Caldwell were decided before Sawyer's conviction became final in 1984, he is entitled to careful review of the merits of his Caldwell claim.
Even if Caldwell established a "new rule," that rule nonetheless is available on federal habeas because it is a rule "without which the likelihood of an accurate [verdict] is seriously diminished," Teague, 489 U.S., at 313, 109 S.Ct., at 1077 (plurality opinion). The devastating impact of prosecutorial argument that diminishes jurors' sense of responsibility is revealed in the state-court decisions condemning such argument. See, e.g., Fleming v. State, 240 Ga. 142, 146, 240 S.E.2d 37, 40 (1977) (holding that "this type of remark has an unusual potential for corrupting the death sentencing process"); State v. Berry, 391 So.2d, at 418 ("If the reference conveys the message that the jurors' awesome responsibility is lessened by the fact that their decision is not the final one, or if the reference contains inaccurate or misleading information, then the defendant has not had a fair trial in the sentencing phase, and the penalty should be vacated"); Ward v. Commonwealth, 695 S.W.2d 404, 408 (Ky.1985) (holding that "the prosecutor clearly sought to divert from the minds of the jurors their true responsibility in this case by implying that the ultimate responsibility would fall to the trial judge, this court, [or] other appellate courts. . . . This is clearly an error of reversible magnitude"); Hill v. State, 432 So.2d, at 439 ("Any argument by the state which distorts or minimizes this solemn obligation and responsibility of the jury is serious error. . . . [I]n a death penalty case a jury should never be given false comfort that any decision they make will, or can be, corrected"); Wiley v. State, 449 So.2d 756, 762 (Miss.1984) ("While a jury is not literally 'the hangman,' only they [sic] may supply the hangman's victims. All notions of justice require that the jurors as individuals, and as a body, recognize and appreciate the gravity of their role").
The majority's underestimation of Caldwell § importance rests on the defect discussed above, supra, at 252-253, namely, the view that a Caldwell error will not render a trial fundamentally unfair. The majority's vague suggestion that Caldwell serves as "a protection of systemic value for state and federal courts charged with reviewing capital proceedings," ante, at 244, does not disguise its inability to identify, in concrete terms, a situation in which Caldwell error occurs and yet the capital proceeding can be described as fundamentally fair. See Caldwell, 472 U.S., at 341, 105 S.Ct., at 2646 (holding that if improper prosecutorial comment occurs the sentencing decision "does not meet the standard of reliability that the Eighth Amendment requires").
Nor does Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989), undermine Caldwell § status as a fundamental rule. The issue there was whether a particular defendant who had failed to object to misleading prosecutorial argument at sentencing had suffered sufficient prejudice to justify overlooking a state procedural bar. 489 U.S., at 406, 109 S.Ct., at 1214-1215. The Court's denial of relief rested largely on the importance of the State's "interest in having the defendant challenge a faulty instruction in a timely manner so that it can correct the misstatement." Id., at 409, 109 S.Ct., at 1216; see also Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). The stringent standard for excusing procedural defaults against a particular defendant is premised on "the dual notion that, absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel, and that defense counsel may not flout state procedures and then turn around and seek refuge in federal court from the consequences of such conduct." Reed v. Ross, 468 U.S. 1, 13, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1 (1984) (citations omitted).
No such concern with enforcing state procedural rules against a particular defendant is at stake when we decide whether to apply new constitutional principles retroactively to all federal habeas cases. Our inquiry instead focuses on the importance of the new principle generally to the fairness and accuracy of the proceedings in which that principle went unobserved. Whereas the Dugger inquiry focuses on the general necessity of a rule to ensure an accurate verdict in all cases, the Court will overlook a clear procedural default only if the error has "probably resulted in the conviction of one who is actually innocent," 489 U.S., at 410, n. 6, 109 S.Ct., at 1218, n. 6 (internal quotation marks omitted). The strict procedural default rule is designed in part to protect the State's interest-unique in the context of procedural default-in correcting error in the first instance. Sykes, supra, 433 U.S., at 88-90, 97 S.Ct., at 2507-2508.
Finally, the fundamental importance of Caldwell cannot be denied on the ground that "it is 'unlikely that many [new rules] of basic due process [essential to accuracy and fairness] have yet to emerge.' " Ante, at 243 (quoting Teague, 489 U.S., at 313, 109 S.Ct., at 1077 (plurality opinion)). The majority cannot bind the future to present constitutional understandings of what is essential for due process. See, e.g., Hurtado v. California, 110 U.S. 516, 530-531, 4 S.Ct. 111, 118-119, 28 L.Ed. 232 (1884). We would rightly regard such a statement as an expression of hubris were we to discover it in a volume of the United States Reports from 100, 50, or even 20 years ago, at which time, incidentally, this Court, "[i]n light of history, experience, and the present limitations of human knowledge," rejected the argument "that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution." McGautha v. California, 402 U.S. 183, 207, 91 S.Ct. 1454, 1467, 28 L.Ed.2d 711 (1971) (footnote omitted); cf. Gregg, 428 U.S., at 189, 96 S.Ct., at 2932 (joint opinion of Stewart, Powell, and STEVENS, JJ.) ("Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action"). Moreover, the notion that we have already discovered all those procedures central to fundamental fairness is squarely inconsistent with our Eighth Amendment methodology, under which "bedrock" Eighth Amendment principles emerge in light of new societal understandings and experience. See, e.g., Coker v. Georgia, 433 U.S. 584, 593-597, 97 S.Ct. 2861, 2866-2869, 53 L.Ed.2d 982 (1977) (plurality opinion).
The Court's refusal to allow Sawyer the benefit of Caldwell reveals the extent to which Teague and its progeny unjustifiably limit the retroactive application of accuracy-enhancing criminal rules. Prior to Teague, our retroactivity jurisprudence always recognized a difference between rules aimed primarily at deterring police conduct and those designed to promote the accuracy of criminal proceedings. Although the former generally were not applied retroactively, see, e.g., Linkletter v. Walker, 381 U.S. 618, 636-637, 85 S.Ct. 1731, 1741-1742, 14 L.Ed.2d 601 (1965), the Court routinely afforded defendants the benefit of "new constitutional doctrine [whose purpose] is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials." Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion). We departed from the general rule favoring retroactive application of accuracy-enhancing rules only in special cases in which retroactivity would have undermined substantial reliance interests of law enforcement officials and prosecutors who acted in good faith prior to the change in the law. See, e.g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
The state prosecutor in this case surely could not claim a good-faith belief in the legitimacy of the conduct proscribed in Caldwell-misleading and inaccurate argument designed to minimize the jury's sentencing responsibility. Indeed, respondent seems to concede as much, framing the State's reliance interest, beyond its general interest in the finality of its convictions, as the right to have "misleading prosecutorial remarks . . . reviewed under the fundamental fairness standard of due process" rather than the Eighth Amendment. Brief for Respondent 16. This purported reliance interest depends on the erroneous view that Caldwell error could survive review under the Due Process Clause. See, supra, at 257. But even granting a distinction in the degree of scrutiny applied by Donnelly and Caldwell, the State's claimed interest in having its intentional misconduct reviewed under a less demanding standard is hardly worth crediting.
The State is thus left to rely solely on its general interest in the finality in its criminal proceedings. Before today, such an interest was never alone sufficient to preclude vindication of constitutional rights on federal habeas. See Reed v. Ross, 468 U.S., at 15, 104 S.Ct., at 2910. Teague itself, of course, stated that it was departing from our traditional approach. But that case, as well as Butler and Parks, involved rules that the Court did not recognize as contributing meaningfully to the accuracy of criminal proceedings. See Teague, 489 U.S., at 315, 109 S.Ct., at 1078 (plurality opinion) (failure to apply rule does not "seriously diminish the likelihood of obtaining an accurate conviction"); Butler, 494 U.S., at 416, 110 S.Ct., at 1218 (failure to apply rule "would not seriously diminish the likelihood of obtaining an accurate determination-indeed, it may increase that likelihood"); Parks, 494 U.S., at 495, 110 S.Ct., at 1264 ("The objectives of fairness and accuracy are more likely to be threatened than promoted" by the rule); cf. ante, at 244 (acknowledging that Caldwell § central purpose is to enhance "the accuracy of capital sentencing"). Those cases thus could have been decided in the same way under our prior retroactivity doctrine, which weighed the State's finality and reliance interests against the defendant's interests protected by the new rule.
No such balancing of the competing concerns occurs today. The Court instead simply elevates its preference for finality in state proceedings over Congress' commitment "to provide a federal forum for state prisoners . . . by extending the habeas corpus powers of the federal courts to their constitutional maximum," Fay v. Noia, 372 U.S. 391, 426, 83 S.Ct. 822, 842, 9 L.Ed.2d 837 (1963). This raw preference for finality is unjustified. Although a State undoubtedly possesses a legitimate interest in the finality of its convictions, when the State itself undermines the accuracy of a capital proceeding, that general interest must give way to the demands of justice.
The jury that sentenced Sawyer to death was deliberately misled about the significance of its verdict. That Sawyer was thus denied a fundamentally fair trial was as apparent when Sawyer's conviction became final as it is today. The Court's refusal to allow a federal habeas court to correct this error is yet another indication that the Court is less concerned with safeguarding constitutional rights than with speeding defendants, deserving or not, to the executioner. I dissent.
Even if I did not believe that Sawyer was entitled to federal habeas review of his Caldwell claim, I would nonetheless vacate his 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 231, 96 S.Ct., at 2973 (MARSHALL, J., dissenting).

## Notes

* ↑ That Penry v. Lynaugh, 492 U.S. 302, 329, 109 S.Ct. 2934, 2952, 106 L.Ed.2d 256 (1989), and Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989), cite Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), as crafting a "new" rule does not establish that state decisions are irrelevant in assessing the status of a right under the Federal Constitution. Cf. ante, at 240. Neither of these opinions discussed the citation to Ford, and the force of their conclusions is undermined by this Court's subsequent reliance on state decisions in Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), to determine whether the rule invoked in that case was compelled by our Eighth Amendment decisions, see id., at 490-491, 110 S.Ct., at ---- (citing state decisions). State decisions cannot be deemed relevant to the Teague inquiry only to the extent that they disprove the rootedness of a constitutional right.
* ↑ The majority nonetheless views Williams as casting some doubt on the ultimate disposition of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) because the prosecutor's argument in Williams was "very similar to [the argument] in Caldwell." Ante, at 237. That position, though, is overbroad. The District Court's finding that Williams' trial was not fundamentally unfair under Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), was tantamount to a finding that Williams' jury was not misled about its sentencing role. See Williams v. King, 573 F.Supp. 525, 530-531 (M.D.La.1983).
* ↑ The majority's rejection of the States' view that Caldwell § prohibitions are vital to the fairness of a capital proceeding reveals a tension in the Court's retroactivity doctrine. At the same time that the majority insists that Caldwell was not dictated by our Eighth Amendment decisions, the majority also argues that Caldwell is not a fundamental rule because it affected only an incremental change in capital sentencing. See ante, at 244 (stating that Caldwell provides merely an "additional measure of protection against error, beyond that afforded by Donnelly "). A rule may be "new" even if it is designed to serve interests substantially similar to an "old" rule. The majority's extensive effort in its "new rule" analysis to demonstrate that Caldwell 's "additional" protections marked a departure in our Eighth Amendment jurisprudence, however, seems disingenuous in light of its conclusion that the departure did not amount to much.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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