# McKoy v. North Carolina/Concurrence Kennedy

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Justice KENNEDY, concurring in the judgment.
Jury unanimity, it is true, is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury's ultimate decision will reflect the conscience of the community. Yet the unique interaction of the elements of the sentencing statute in issue here can allow the same requirement of unanimity to produce a capital sentence that lacks unanimous support of the jurors, and, more than this, is thought to be inappropriate by 11 of the 12.
As a consequence, the statute here can operate in the same manner as the jury instructions in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), as construed by the majority in that case, to produce a result that is "the height of arbitrariness." On this sole rationale, I concur in the judgment here. The Court's reliance on our decisions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), to support today's result stretches those cases beyond their proper bounds and threatens to add confusion to an already troubled area of our jurisprudence.
That this case may be resolved on a ground more consistent with our precedents is evident from the Mills opinion itself. The relevant section of that decision begins:
"Petitioner's argument is straightforward, and well illustrated by a hypothetical situation he contends is possible under the Maryland capital sentencing scheme:
" 'If eleven jurors agree that there are six mitigating circumstances, the result is that no mitigating circumstance is found. Consequently, there is nothing to weigh against any aggravating circumstance found and the judgment is death even though eleven jurors think the death penalty wholly inappropriate.' Brief for Petitioner 11." 486 U.S., at 373-374, 108 S.Ct., at 1865.
Petitioner's counsel emphasized this point in the brief discussion of constitutionality in the Mills oral argument:
"The problem with the constitutionality is that . . . you have the possibility of not 12 jurors agreeing but one juror deciding it's death. And our position, of course, is it's difficult to imagin[e] a more arbitrary system than luck of the draw: do I get one juror?" Tr. of Oral Arg., O.T.1987, No. 87-5367, pp. 23-24.
The central idea of these passages is that the death penalty should not be imposed on the basis of a single juror's vote where 11 jurors think the penalty undeserved. The Court stated: "The possibility that a single juror could block [consideration of a mitigating factor], and consequently require the jury to impose the death penalty, is one we dare not risk." 486 U.S., at 384, 108 S.Ct., at 1870. (emphasis added).
Application of the death penalty on the basis of a single juror's vote is "intuitively disturbing." Id., at 374, 108 S.Ct., at 1865. More important, it represents imposition of capital punishment through a system that can be described as arbitrary or capricious. The Court in Mills described such a result as the "height of arbitrariness." Ibid. Given this description, it is apparent that the result in Mills fits within our line of cases forbidding the imposition of capital punishment on the basis of "caprice," in "an arbitrary and unpredictable fashion," or through "arbitrary" or "freakish" means. See, e.g., Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988); California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987).
A holdout juror incident can occur under North Carolina's statute if all jurors find an aggravating factor they agree to be of sufficient gravity to support a penalty of death, and 11 jurors find an outweighing mitigating factor that one juror refuses, for whatever reason, to accept. If the jurors follow their instructions, as we must assume they will, the 11 must disregard the mitigating circumstance. After the balancing step of the statute is performed, there can be only one result. The " 'judgment is death even though eleven jurors think the death penalty wholly inappropriate.' " Mills, supra, 486 U.S., at 374, 108 S.Ct., at 1865. Given the reasoned, moral judgment inherent in capital sentencing by the jury, the extreme arbitrariness of this potential result is evident.
This said, it must be stressed that much in the opinion for the Court in today's case goes, without cause, much further. It is true that, in addition to discussing the extreme arbitrariness of the statute at issue, the Mills opinion went on to state that the unanimity requirement was inconsistent with our holdings in Lockett, Eddings, Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). Even so, the Court stressed that the unanimity requirement there, combined with the final stage of the Maryland statute, could produce an arbitrary result: "a jury that does not unanimously agree on the existence of any mitigating circumstance may not give mitigating evidence any effect whatsoever, and must impose the sentence of death." 486 U.S., at 375, 108 S.Ct., at 1865. (emphasis added).
I cannot agree with the Court's statement today that "[o]ur decision in Mills was not limited to cases in which the jury is required to impose the death penalty if it finds that aggravating circumstances outweigh mitigating circumstances or that no mitigating circumstances exist at all." Ante, at 439-440 (emphasis in original). The statute in Mills did include such a requirement, and the statute here also, albeit in more limited circumstances, can allow 1 juror's decision to override that of 11 others as to the defendant's ultimate sentence. It is for this reason only that I concur in the judgment vacating the sentence.
I would recognize the arbitrary operation of the North Carolina system as the exclusive basis of our decision, for the unanimity requirement, standing alone, is not invalid under our Lockett line of cases. In Lockett itself, we invalidated an Ohio statute that precluded presentation of certain types of mitigating evidence to the jury. In Eddings, Skipper, and Hitchcock, we applied the same rule to judicial instructions that barred consideration of certain nonstatutory evidence bearing on the defendant's character. More recently, in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), we held that Lockett § requirements were not met in a statutory scheme that provided no avenue through which mitigating evidence could be considered, no matter how clearly the evidence in mitigation might have been established for the jury, thereby making its presentation meaningless.
Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all. The requirement that a jury unanimously find mitigating circumstances in itself does none of these things. In a State where there is no final mandatory or balancing stage in the sentencing process that could allow a single juror to control the ultimate outcome, it simply imposes a proof requirement that must be met before the evidence can be used as a mitigating factor specifically found by the jury as a whole. As we stated in Saffle v. Parks, 494 U.S. 484, 490, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990) there is a "simple and logical difference between rules that govern what factors the jury must be permitted to consider in making the sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." The extreme control given to one juror in the North Carolina scheme in effect can allow that juror alone to impose a capital sentence. It is that fact, and not a novel application of Lockett to requirements intended to enhance the reliability of the jury's findings, that is dispositive.
The description of a "one juror veto" system in Mills as the "height of arbitrariness" supports the result here, and I would decide this case on that basis alone. I agree with Justice WHITE, ante, at 444, that the discussion of Lockett in today's opinion casts no doubt on evidentiary requirements for presentation of mitigating evidence such as assigning the burden of proof to the defendant or requiring proof of mitigating circumstances by a preponderance of the evidence. His opinion and our other cases already make clear that the discussion of Lockett in today's opinion has no application beyond the issue presented in this case. Because of my concern that the opinion itself might otherwise have spawned confusing capital litigation over novel and unsupportable Lockett claims in the lower courts, I can concur only in the Court's judgment.

## Notes

1. Indeed, the broad language of today's opinion might be read to suggest that a scheme requiring jury unanimity as to the presence or absence of a mitigating factor could violate the Constitution. Such a requirement, however, enhances the reliability of the jury's decision without any risk that a single holdout juror may impose a sentence against the views of the other 11. Maryland claimed that its unanimity requirement operated this way in Mills. It is no surprise that the majority in Mills assumed such a scheme would be constitutional.
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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