# Blystone v. Pennsylvania/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
Justice BRENNAN, with whom Justice MARSHALL joins, and with whom Justice BLACKMUN and Justice STEVENS join except as to Part IV, dissenting.
The hallmark of our Eighth Amendment jurisprudence is that because the "penalty of death is qualitatively different from a sentence of imprisonment," Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion), capital punishment may not be imposed unless the sentencer makes an individualized determination that death is the appropriate sentence for a particular defendant. This Court has repeatedly invoked this principle to invalidate mandatory death penalty statutes for even the most egregious crimes. See Sumner v. Shuman, 483 U.S. 66, 85, 107 S.Ct. 2716, 2727, 97 L.Ed.2d 56 (1987) (murder committed by inmate serving life sentence); Roberts v. Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1995, 52 L.Ed.2d 637 (1977) (murder of police officer); Roberts v. Louisiana, 428 U.S. 325, 333, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976) (plurality opinion) (all first-degree murders); Woodson, supra (same). Today, for the first time, the Court upholds a statute containing a mandatory provision that gives the legislature rather than the jury the ultimate decision whether the death penalty is appropriate in a particular set of circumstances. Such a statute deprives the defendant of the type of individualized sentencing hearing required by the Eighth Amendment. I respectfully dissent.
* After a defendant is convicted of first-degree murder in Pennsylvania, the court must hold a separate sentencing hearing at which the jury determines whether the death penalty is warranted. 42 Pa.Cons.Stat. § 9711(a) (1988). The jury considers the aggravating circumstances that are listed in the statute. In addition, the jury considers specificenu merated mitigating circumstances and "any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense." § 9711(e). The State must prove the existence of aggravating circumstances beyond a reasonable doubt, and the defendant must prove the existence of mitigating circumstances by a preponderance of the evidence. § 9711(c)(1)(iii). The statute provides that "[t]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance." § 9711(c)(1)(iv) (emphasis added). The statute therefore deprives the jury of any sentencing discretion once it has found one aggravating circumstance but no mitigating circumstances; the jury may not consider whether the aggravating circumstance, by itself, justifies the imposition of the most extreme sanction available to society.
This case illustrates the effect of the mandatory provision of the statute. The jury found as an aggravating circumstance that petitioner had committed murder during a $13 robbery. § 9711(d)(6). But petitioner presented no evidence of mitigating circumstances and the jury found none. App. 19. The jury was told that in such a situation, it was not allowed to make the ultimate decision whether the death penalty was justified. The judge instructed the jury that once it found "an aggravating circumstance and no mitigating circumstances, it is your duty to return a verdict of death." Id., at 11 (emphasis added); see id., at 14 ("Your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstances") (emphasis added).
The prosecutor emphasized that each juror had sworn an oath to follow the law and that, in this case, the law mandated the death penalty:
"Under the law, if you have an aggravating circumstance and no mitigating circumstances, it is your duty to impose the death penalty . . . so each of you were asked last week when we questioned you whether or not, under the appropriate circumstances, you could impose the death penalty and each of you replied that you could. Each of you replied that you would follow the law, and each of you replied that whatever your duty was, you would follow it." Id., at 23 (emphasis added).
Indeed, the prosecutor argued that because the jury had already found an aggravating circumstance by finding petitioner guilty of robbery, the statute mandated that the death penalty be imposed unless the defendant proved at least one mitigating circumstance.
"Our law doesn't permit the jury to impose the death penalty or impose a life sentence as they feel it should be, but rather there are certain specific times when the death penalty should be imposed and there are certain specific times when it should not be imposed. The court touched upon it and told you of aggravating and mitigating circumstances. The aggravating circumstance in this case is that this defendant . . . committed a killing in the perpetration of a felony. The felony in this case was the robbery. You have already made a determination by your verdict that this defendant was guilty of that robbery, so you have the aggravating circumstance. It is already proven and you already believed it. . . . You must determine from the evidence presented in this Courtroom whether or not there are any mitigating circumstances; if not, you must follow the law and impose the death penalty." Id., at 22-24.
Hence, both the judge and the prosecutor emphasized that if the jury failed to find any mitigating factors, the legislature had determined that death was the appropriate sentence.
The majority does not dispute this description of the Pennsylvania statute or its application in this case. Rather, the majority holds that "the Eighth Amendment does not require that . . . aggravating circumstances be further refined or weighed by a jury. . . . The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence." Ante, at 306-307. That the majority cites no case to support this extraordinary conclusion is no surprise; careful analysis of our cases compels the conclusion that a jury must be able to consider the weight of both the aggravating and mitigating circumstances when choosing whether to impose a death sentence.
The Pennsylvania Legislature's delineation of 12 aggravating circumstances represents an effort to comply with our command that "[b]ecause of the uniqueness of the death penalty, . . . it [may] not be imposed under sentencing procedures that creat[e] a substantial risk that it [will] be inflicted in an arbitrary and capricious manner." 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.) (citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)). In Furman, the Court held that vesting the sentencer with unbridled discretion to determine whether or not to impose the death penalty resulted in a system in which there was no objective way to distinguish between defendants who received the death penalty and those who did not. See id., at 309-310, 92 S.Ct., at 2762-2763 (Stewart, J., concurring) (death sentences at issue were "cruel and unusual in the same way that being struck by lightning is cruel and unusual . . . [T]he petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed"); id., at 313, 92 S.Ct., at 2764 (WHITE, J., concurring) ("[T]here is no meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not"). In Gregg, supra, however, the Court held that a State may impose the death penalty if the State adequately "guides" the sentencer's discretion in determining the appropriate punishment. 428 U.S., at 195, 96 S.Ct., at 2935 (joint opinion of Stewart, Powell, and STEVENS, JJ.); id., at 222, 96 S.Ct., at 2947 (WHITE, J., concurring in judgment). Thus, the Court has held that a State must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). The legislature may narrow the death-eligible class at the guilt stage by defining the capital murder statute narrowly, see Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988); Jurek v. Texas, 428 U.S. 262, 270, 96 S.Ct. 2950, 2955, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) or at the sentencing stage by requiring the sentencer to find "aggravating factors" that objectively distinguish the murder from all other murders. Godfrey v. Georgia, 446 U.S. 420, 428-429, 100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398 (1980) (plurality opinion).
At the same time, however, the Court has recognized that the Eighth Amendment imposes a limit on a State's ability to "guide" the sentencer's discretion. On the same day that the Court upheld three death penalty statutes that "guided" the jury's discretion in imposing this sentence, the Court invalidated two mandatory death penalty statutes. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The Woodson plurality rejected the argument that Furman required removal of all discretion from the sentencer, holding that any consistency obtained by a mandatory statute would be arbitrary because the consistency would not take into account the individual circumstances of the defendant and the crime. Woodson, supra, 428 U.S., at 304, 96 S.Ct., at 2991. See also Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982) ("By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule . . . recognizes that a consistency produced by ignoring individual differences is a false consistency"). A mandatory death penalty statute treats "all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Ibid. Thus, the Court held that the "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." Ibid. (citation omitted). See also Sumner, 483 U.S., at 85, 107 S.Ct., at 2727; Roberts, 431 U.S., at 637, 97 S.Ct., at 1995.
Woodson and its progeny are distinguishable from this case because the Pennsylvania statute allows the jury to consider mitigating circumstances. But once a Pennsylvania jury finds that no mitigating circumstances are proved by a preponderance of the evidence, it is required to impose the death penalty. The mandatory provision of the Pennsylvania statute may be effective in a smaller set of cases than the North Carolina statute at issue in Woodson. Nevertheless, the effect of the mandatory provision in both statutes is the same: it substitutes a legislative judgment about the severity of a crime for a jury's determination that the death penalty is appropriate for the individual.
The majority is unconcerned that in this category of cases the mandatory provision deprives the defendant of an individualized sentencing determination. The nature of the individualized determination required by Woodson is derived from this Court's recognition that the decision to impose the death penalty must reflect a reasoned moral judgment about the defendant's actions and character in light of all the circumstances of the offense and the defendant's background. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 319 (1989) 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256; California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O'CONNOR, J., concurring). Just as a jury must be free to consider and weigh mitigating circumstances as independently relevant to the defendant's moral culpability, see Penry, supra, at 319, 109 S.Ct., at 2947, a jury must also be able to consider and weigh the severity of each aggravating circumstance. The weight of an aggravating circumstance depends on the seriousness of the crime-a significant aspect of the defendant's moral culpability. Thus, a reasoned moral response to the defendant's conduct requires the consideration of the significance of both aggravating and mitigating factors. "[I]n the end it is the jury that must make the difficult, individualized judgment as to whether the defendant deserves the sentence of death." Turner v. Murray, 476 U.S. 28, 34, 106 S.Ct. 1683, 1687, 90 L.Ed.2d 27 (1986) (opinion of WHITE, J.) (emphasis added); see also Zant, 462 U.S., at 879, 103 S.Ct., at 2743 ("What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime") (emphasis in original).
The majority cites only Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), for its conclusion that the jury need not consider the weight of the aggravating circumstance before imposing the death sentence. In Lowenfield, the Court upheld the Louisiana death penalty statute under which a jury could impose a death sentence even if the only aggravating factor found duplicated an element of the offense of capital murder. Id., at 244, 108 S.Ct., at 554. The sole question the Court addressed was whether such an aggravating circumstance sufficiently narrowed the class of death-eligible defendants. As the majority notes today, ante, at 307, Lowenfield held that "[t]he use of 'aggravating circumstances' is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury's discretion." 484 U.S., at 244, 108 S.Ct., at 554. Nothing in Lowenfield suggests that a State may preclude a jury from weighing the strength of the aggravating factor. As the majority fails to recognize, under the Pennsylvania statute an aggravating circumstance does much more than "channel" the jury's discretion: in the absence of mitigating factors, it mandates the death penalty.
This Court has never held that a legislature may mandate the death sentence for any category of murderers. Instead, a legislature's role must be limited to the definition of the class of death-eligible defendants. A legislature does not, and indeed cannot, consider every possible fact pattern that technically will fall within an aggravating circumstance. Hence, the definition of an aggravating circumstance provides a basis for distinguishing crimes only on a general level; it does not embody the type of reasoned moral judgment required to justify the imposition of the death penalty. See Sumner v. Shuman, supra, 483 U.S., at 78, 107 S.Ct., at 2724 (legislative judgment does not "provide an adequate basis on which to determine whether the death sentence is the appropriate sanction in any particular case") (emphasis added). The Pennsylvania statute provides a stark example of this constitutional flaw. It permits the jury to find an aggravating circumstance if the killing was committed in the course of a felony. 42 Pa.Cons.Stat. § 9711(d)(6) (1988). A variety of murders fit under this aggravating circumstance. Since the Pennsylvania Supreme Court has interpreted this aggravating circumstance to include nonviolent felonies, Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985), the aggravating circumstance covers a very wide range of cases. A jury, however, likely would draw a different inference about the culpability of the defendant-and therefore the propriety of the death sentence-if the murder were committed during a rape rather than (as here) during a $13 robbery. The majority today allows the legislature to preclude a jury from considering such factors in deciding whether to impose death.
Such a conclusion flies in the face of our reasoning in Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987). In Sumner, we invalidated a statute that mandated death for a prisoner who committed murder while already serving a life term. Although the Court acknowledged the legislature's power to determine that the crime was sufficiently serious to make the defendants eligible for the death penalty, the Court held that the legislature had no power to conclude that the sole fact that the defendant was serving a life sentence justified the death penalty in every such case. Id., at 78-81, 107 S.Ct., at 2724-2725. As the Court explained:
"Past convictions of other criminal offenses can be considered as a valid aggravating factor in determining whether a defendant deserves to be sentenced to death for a later murder, but the inferences to be drawn concerning an inmate's character and moral culpability may vary depending on the nature of the past offense. The circumstances surrounding any past offense may vary widely as well. Without consideration of the nature of the predicate life-term offense and the circumstances surrounding the commission of that offense, the label 'life-term inmate' reveals little about the inmate's record or character. Even if the offense was first-degree murder, whether the defendant was the primary force in that incident, or a nontriggerman . . ., may be relevant to both his criminal record and his character. Yet under the mandatory statute, all predicate life-term offenses are given the same weight." Id., at 81, 107 S.Ct., at 2725 (footnote omitted).
The majority dismisses Sumner as inapposite because the sentencing scheme in that case did not allow for the consideration of mitigating evidence. Ante, at 306, n. 4. But the discussion quoted above clearly relates to a legislature's power to define aggravating circumstances and precedes any discussion of the significance of mitigating circumstances. In fact, we went on to state that "[n]ot only [do the defendant's prior convictions] serve as incomplete indicators of the circumstances surrounding the murder and of the defendant's criminal record, but also they say nothing of [mitigating circumstances]." 483 U.S., at 81-82, 107 S.Ct., at 2725-2726. In Sumner, the Court invalidated the statute because it precluded the jury from considering mitigating factors and because it prevented the jury from determining whether certain crimes were serious enough to require the death penalty.
The Court's suggestion, ante, at 303, that Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), supports its holding in this case reveals a fundamental misunderstanding of petitioner's claim. Although both the Texas and Pennsylvania statutes contain mandatory language, the Texas statute upheld in Jurek does not deprive the jury of its ability to determine the propriety of the death sentence in a particular case. In Texas, the class of death-eligible defendants is narrowed at the guilt stage because only five types of murder are classified as first-degree murder. See id., at 270, 96 S.Ct., at 2955. At the sentencing stage, the jury is instructed that it must impose a sentence of death if it answers the following two questions affirmatively: "(1) whether the conduct of the defendant that caused the death was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing criminal threat to society." Id., at 269, 96 S.Ct., at 2955. These questions require the jury to do more than find facts supporting a legislatively defined aggravating circumstance. Instead, by focusing on the deliberateness of the defendant's actions and his future dangerousness, the questions compel the jury to make a moral judgment about the severity of the crime and the defendant's culpability. The Texas statute directs the imposition of the death penalty only after the jury has decided that the defendant's actions were sufficiently egregious to warrant death.
The mandatory language in the Pennsylvania statute, however, does deprive the jury of any power to make such an independent judgment. The jury's determination that an aggravating circumstance exists ends the decisionmaking process. In addition, whether an aggravating circumstance exists is generally a question of fact relating to either the circumstances of the offense, the status of the victim, or the defendant's criminal record. In many cases, the existence of the aggravating factor is not disputed. Finding an aggravating circumstance does not entail any moral judgment about the nature of the act or the actor, and therefore it does not give the jury an opportunity to decide whether it believes the defendant's particular offense warrants the death penalty. Because the mandatory language in the Pennsylvania statute deprives a defendant of an individualized sentencing hearing in a way that the Texas statute does not, Jurek in no way supports the Court's conclusion that the Pennsylvania statute is constitutional.
The Court's refusal to recognize that the "mandatory aspect" of the Pennsylvania statute deprives the defendant of an individualized sentencing hearing is contrary to reason. Rather than address the merits of petitioner's claim, the majority summarily concludes that the Eighth Amendment is "satisfied" because the jury may consider mitigating evidence. Although our cases clearly hold that the ability to consider mitigating evidence is a constitutional requirement, it does not follow that this ability satisfies the constitutional demand for an individualized sentencing hearing. The "weight" of an aggravating circumstance is just as relevant to the propriety of the death penalty as the "weight" of any mitigating circumstances. The Court's unarticulated assumption that the legislature may define a group of crimes for which the death penalty is required in certain situations represents a marked departure from our previous cases. The Court's failure to provide any reasoning to reject a claim well grounded in our case law is always disturbing. An unexplained departure from fundamental principles in the death penalty context is inexcusable. I respectfully dissent.
Even if I did not believe the Pennsylvania statute unconstitutionally deprives the jury of discretion to impose a life sentence, I would vacate petitioner's sentence. I adhere to my belief 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 (BRENNAN, J., dissenting).

## Notes

* ↑ The aggravating circumstances are as follows:
* ↑ The statute also provides that "[t]he verdict must be a sentence of death . . . if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances." § 9711(c)(1)(iv). Since the jury found no mitigating circumstances in this case, petitioner challenges the constitutionality of only the first part of the provision.
* ↑ Nor did the instructions on mitigating evidence indicate that the jury was free to choose a life sentence even if it did not find any mitigating circumstances. The trial judge made no attempt to define the concept of mitigation for the jury. When the jury pressed for a definition of mitigation, the judge stated that "[t]he Legislature has determined what constitutes mitigating circumstances" and proceeded to list the statutory mitigating factors. App. 16. When pressed further for a definition of the last mitigating circumstance-"any other evidence of mitigation concerning the character of the defendant and the circumstances of his offense"-the judge said, "[t]his is pretty broad and allows you a great latitude in determining what you might consider to be a mitigating circumstance." Id., at 17. The trial judge did, however, emphasize that the defendant was required to prove mitigating factors by a preponderance of the evidence. See id., at 12 ("[I]f you find that the evidence of mitigation is greater than the other way by a preponderance of the evidence, which means simply to exceed in weight, then you would make a finding of mitigat[ion]"). However, because petitioner had not presented any affirmative evidence of mitigation, the judge stressed that the evidence "should be . . . something that you can draw from the record of this case as to his character or the record of the defendant or the circumstances of his offense." Id., at 17.
* ↑ 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).
* ↑ For this reason, the Court's discussion of the facial validity of the statute under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), is irrelevant. Ante, at 305. We did not grant certiorari to determine if the statute allows sufficient consideration of mitigating circumstances as required by Lockett. We granted certiorari to consider whether a State may mandate the death penalty when the jury finds no mitigating circumstances. The jury's ability to consider mitigating evidence is not germane to the question presented.
* ↑ The State argues that allowing the jury to consider the weight of the aggravating circumstance will result in the type of unfettered discretion condemned in Furman. This argument was explicitly rejected when the Court upheld the Georgia death penalty statute even though the sentencer was given complete discretion to impose a life sentence after finding an aggravating circumstance. See Zant, 462 U.S., at 875, 103 S.Ct., at 2741; Gregg, supra, 428 U.S., at 199, 96 S.Ct., at 2937 (joint opinion of Stewart, Powell, and STEVENS, JJ.). As the Court noted in Zant, "specific standards for balancing aggravating against mitigating circumstances are not constitutionally required." Zant, supra, at 876, n. 13, 103 S.Ct., at 2742, n. 13. Allowing the jury to weigh the aggravating circumstance as a means of making an individualized sentencing determination no more permits the jury to exercise unbridled discretion than allowing the consideration of mitigating circumstances. Woodson held that an individualized determination that the death sentence is appropriate does not violate Furman. Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) (plurality opinion).
* ↑ The Louisiana statute provides: " 'A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed.' " 484 U.S., at 242, 108 S.Ct., at 553 (quoting La.Code Crim.Proc.Ann., Art. 905.3 (West 1984)). The Louisiana law permitted the jury to consider the weight of the aggravating circumstance in a way that the Pennsylvania statute does not.
* ↑ The State argues that Pennsylvania law allows the jury to consider the lack of severity of an aggravating factor as a mitigating factor. Such a counterintuitive argument is without merit. It is preposterous to assume that a jury that is instructed that a certain fact-e.g., the murder was committed during a robbery-is the reason to impose the death penalty will simultaneously believe it can consider that same fact as a reason not to impose a death sentence. At the very least, a jury would not understand that without an instruction.
* ↑ Different Members of the Court have had different interpretations of Jurek. Compare Penry v. Lynaugh, 492 U.S., at 316, 109 S.Ct. 2934, 2945, with id., at 354-358, 109 S.Ct., at 2965-2968 (SCALIA, J., joined by REHNQUIST, C.J., WHITE, and KENNEDY, JJ., concurring in part and dissenting in part); Franklin v. Lynaugh, 487 U.S. 164, 180, and n. 10, 108 S.Ct. 2320, 2330-2331, and n. 10, 101 L.Ed.2d 155 (1988) (plurality opinion). But until now I thought that all Members of the Court agreed that the holding of Jurek was contained in the joint opinion of Justices Stewart, Powell, and STEVENS, which concluded that the statute was constitutional because it adequately narrowed the class of murderers subject to the death penalty and because the questions presented to the jury would be interpreted broadly enough to allow the jury to consider any relevant mitigating circumstance. Jurek, 428 U.S., at 272-273, 96 S.Ct., at 2956-2957 (joint opinion of Stewart, Powell, and STEVENS). Indeed, our holding last Term in Penry relied on this interpretation of Jurek. Penry, supra, 492 U.S., at 316, 109 S.Ct., at 2945. It is curious, therefore, that the Court relies on Justice WHITE's concurrence in Jurek to support its conclusion that the Pennsylvania statute is constitutional. Justice WHITE, joined by Chief Justice Burger and Justice REHNQUIST, concluded that the mandatory language in the Texas statute rendered the statute constitutional. Jurek, supra, 428 U.S., at 278, 96 S.Ct., at 2959. Indeed, Justice WHITE's concurrence in Jurek may have depended on the view that the Texas statute was constitutional precisely because it deprived the jury of all discretion in determining sentence. See Roberts v. Louisiana, 428 U.S. 325, 358, 96 S.Ct. 3017, 49 L.Ed.2d 974 (1976) (WHITE, J., joined by Burger, C.J., and BLACKMUN, and REHNQUIST, JJ., dissenting) ("[S]urely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death"); Woodson, 428 U.S., at 306, 96 S.Ct., at 2992 (WHITE, J., joined by BURGER, C.J., and REHNQUIST, J., dissenting). But a majority of the Court has rejected that reasoning, see Sumner v. Shuman, 483 U.S. 66, 85, 107 S.Ct. 2716, 2727, 97 L.Ed.2d 56 (1987), as well as that reading of the Texas statute. See Penry, supra, 492 U.S., at 316, 109 S.Ct., at 2945.
* ↑ A third question applies only if raised by the evidence: " 'whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.' " Jurek, supra, 428 U.S., at 269, 96 S.Ct., at 2954.
* ↑ See §§ 9711(d)(2), (4), (6), (7), (8) (1988).
* ↑ See §§ 9711(d)(1), (3), (5).
* ↑ See §§ 9711(d)(9)-(12).
* ↑ The finding of three of the statutory aggravating circumstances requires more than the finding of facts. For example, the State may prove that the defendant created a grave risk of harm to others, that the killing was marked by torture, or that the defendant had a significant history of felony convictions involving the use of violence. §§ 9711(7), (8), (9). It is arguable that the jury's consideration of these aggravating circumstances allows the jury to conclude that the crime does not warrant the death penalty. However, unlike in Texas, the jury in every case is not required to consider these aggravating circumstances. Thus, at least in cases such as this one where these aggravating circumstances are not proffered, the jury has no ability to make any judgment about the seriousness of the crime.
* ↑ The Court's language is distressingly casual. We have long held that the ability of the sentencer to consider mitigating circumstances is a necessary-not just a sufficient-condition for the imposition of the death penalty. The defendant's right to have a jury consider mitigating circumstances is a fundamental part of the jury's role in a capital sentencing case which this Court has stringently protected. See Penry v. Lynaugh, supra, 492 U.S., at 319, 109 S.Ct., at 2947; Mills v. Maryland, 486 U.S. 367, 377, 108 S.Ct. 1860, 1867, 100 L.Ed.2d 384 (1988); Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S., at 605, 98 S.Ct., at 2965.
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