# Saffle v. Parks

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## Dissenting Opinion

    Brennan
United States Supreme Court
494 U.S. 484
Saffle v. Parks
No. 88-1264 Argued: Nov. 1, 1989. --- Decided: March 5, 1990
See 495 U.S. 924, 110 S.Ct. 1960.
Syllabus
Respondent Parks' state-court capital murder conviction and death sentence became final in 1983. The Federal District Court denied his habeas corpus petition, which was based on the argument that, inter alia, an instruction delivered in the penalty phase of his trial, telling the jury to "avoid any influence of sympathy," violated the Eighth Amendment. The Court of Appeals reversed, holding that the instruction was unconstitutional because it in effect told the jury to disregard the mitigating evidence that Parks had presented.
Held: Parks is not entitled to federal habeas relief. The principle he urges is a "new rule" of federal constitutional law that can neither be announced nor applied in a case on collateral review unless it comes within one of two narrow-and here inapplicable-exceptions. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334; Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256. Pp. 487-495.
(a) Parks' contention that the Eighth Amendment requires that the jury be allowed to base the sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating evidence constitutes a "new rule" as defined in Teague and Penry, since a state court considering his claim at the time his conviction became final would not have concluded that it was compelled by existing precedent to adopt it. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1, which were both decided before 1983, do not dictate the result urged by Parks, since those cases hold only that the State cannot bar relevant mitigating evidence from being presented and considered during a capital trial's penalty phase, and do not speak to how the State may guide the jury in considering and weighing that evidence. The holding in Penry, supra, 492 U.S., at 315, 109 S.Ct., at 2945 that the relief sought there did not call for the creation of a new rule does not compel a similar result here. Nor does the antisympathy instruction run afoul of Lockett and Eddings on the theory that jurors who react sympathetically to mitigating evidence may interpret the instruction as barring them from considering that evidence altogether. At the very least, nothing in those cases prevents the State from attempting to ensure reliability and nonarbitrariness by requiring that the jury consider and give effect to the defendant's mitigating evidence in the form of a reasoned moral response, rather than an emotional one based on the whims or caprice of jurors. Similarly, California v. Brown, 479 U.S. 538, 542, 107 S.Ct. 837, 839, 93 L.Ed.2d 934-which approved an antisympathy instruction that prevented jurors from considering emotional responses not based on the evidence-is of no assistance to Parks. It is doubtful that a constitutional rule requiring that the jury be allowed to consider and give effect to emotions based on mitigating evidence may be inferred from Brown or is consistent with the Court's precedents. Moreover, since Brown was decided after 1983, Parks can gain its benefit, if any, only by pursuing the untenable argument that Brown's reasoning, if not its result, was dictated by Lockett and Eddings. Pp. 487-494.
(b) The new rule sought by Parks does not come within either of the two exceptions set forth in Teague and Penry. The first exception cannot be invoked, since Parks' proposed rule would neither decriminalize a class of private conduct nor prohibit the imposition of capital punishment on a particular class of persons. The second exception is also inapplicable, since Parks' rule has none of the primacy and centrality of the type of "watershed rule of criminal procedure" that the exception contemplates. The objectives of fairness and accuracy are more likely to be threatened than promoted by a rule allowing the sentence to turn not on whether the defendant, in the eyes of the community, is morally deserving of the death sentence, but on whether the defendant can strike an emotional chord in a juror. Pp. 494-495.
860 F.2d 1545, (CA10 1988), reversed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, and in all but Part IV of which BLACKMUN and STEVENS, JJ., joined, post, p. 495.
Robert A. Nance, Oklahoma City, Okl., for petitioners.
Vivian Berger, New York City, for respondent.
Justice KENNEDY delivered the opinion of the Court.

## Notes

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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