# Penry v. Lynaugh/Concurrence Scalia

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Justice SCALIA, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY join, concurring in part and dissenting in part.
* I join Part I of the Court's opinion, setting forth the facts and procedural history of this case; Part II-A, holding that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which precludes collateral relief that would establish a "new rule," applies to capital sentencing; and Part IV-A, holding that the exception to Teague for a new rule that places certain matters " 'beyond the power of the criminal law-making authority,' " id., at 311, 109 S.Ct., at 1075 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1179, 28 L.Ed.2d 404 (1971) (separate opinion of Harlan, J.), applies to petitioner's contention that the Eighth Amendment forbids the execution of mentally retarded offenders. I also join Part IV-B, rejecting the latter contention on the ground that execution of mentally retarded offenders contravenes neither those practices condemned at the time the Bill of Rights was adopted nor 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). Unlike Justice O'CONNOR, however, I think we need go no further to resolve the Eighth Amendment issue. Part IV-C of her opinion goes on to examine whether application of the death penalty to mentally retarded offenders "violates the Eighth Amendment because it 'makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering' or because it is 'grossly out of proportion to the severity of the crime.' " Ante, at 335 (citations omitted). For the reasons explained by the plurality in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306, I think this inquiry has no place in our Eighth Amendment jurisprudence. "The punishment is either 'cruel and unusual' (i.e., society has set its face against it) or it is not." Id., at 378, 109 S.Ct., at 2979 (emphasis in original). If it is not unusual, that is, if an objective examination of laws and jury determinations fails to demonstrate society's disapproval of it, the punishment is not unconstitutional even if out of accord with the theories of penology favored by the Justices of this Court. See id., at 379, 109 S.Ct., at 2980.
I disagree with the holding in Part II-B of the Court's opinion that petitioner's contention, that his sentencing was unconstitutional because the Texas jury was not permitted fully to consider and give effect to the mitigating evidence of his mental retardation and background of abuse, does not seek the application of a "new rule" and is therefore not barred by Teague. I also disagree with the disposition of the merits of this contention, in Part III of the Court's opinion.
The merits of this mitigation issue, and the question whether, in raising it on habeas, petitioner seeks application of a "new rule" within the meaning of Teague, are obviously interrelated. I will say only a few words addressed exclusively to the latter. Our holding in Teague rested upon the historic role of habeas corpus in our system of law, which is to provide a "deterrence," " 'the threat of [which] serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards.' " 489 U.S., at 306, 109 S.Ct., at 1073, quoting Desist v. United States, 394 U.S. 244, 262-263, 89 S.Ct. 1030, 1040-1041, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). "Deterrence" and "threat" are meaningless concepts as applied to a situation in which the law is so uncertain that a judge acting in all good faith and with the greatest of care could reasonably read our precedents as permitting the result the habeas petitioner contends is wrong. Thus, a "new rule," for purposes of Teague, must include not only a new rule that replaces an old one, but a new rule that replaces palpable uncertainty as to what the rule might be. We acknowledged as much in Teague (in a passage given lip-service by the Court today, see ante, at 314) when we said 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.
As my discussion of the merits will make plain, it challenges the imagination to think that today's result is "dictated" by our prior cases. Indeed, if there is any available contention that our prior cases compelled a particular result, it is the contention that petitioner's claim was considered and rejected by Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Even if that contention is rejected, however, there is no basis for finding a compulsion in the opposite direction. It seems to me utterly impossible to say that a judge acting in good faith and with care should have known the rule announced today, and that future fault similar to that of which the Texas courts have been guilty must be deterred by making good on the "threat" of habeas corpus.
In a system based on precedent and stare decisis, it is the tradition to find each decision "inherent" in earlier cases (however well concealed its presence might have been), and rarely to replace a previously announced rule with a new one. If Teague does not apply to a claimed "inherency" as vague and debatable as that in the present case, then it applies only to habeas requests for plain overruling-which means that it adds little if anything to the principles already in place concerning the retroactivity of new rules in criminal cases, which provide that "a decision announcing a new standard 'is almost automatically nonretroactive' where the decision 'has explicitly overruled past precedent.' " Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986), quoting Solem v. Stumes, 465 U.S. 638, 646, 647, 104 S.Ct. 1338, 1343, 1343, 79 L.Ed.2d 579 (1984). It is rare that a principle of law as significant as that in Teague is adopted and gutted in the same Term.
I turn next to the merits of petitioner's mitigation claim. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), we invalidated Georgia's capital punishment scheme on the ground that, since there were no standards as to when it would be applied for a particular crime, it created too great a risk that the death penalty would be irrationally imposed. Four years later, however, we struck down the capital sentencing schemes of North Carolina and Louisiana for the opposite vice-because they unduly constricted sentencing discretion by failing to allow for individualized consideration of the particular defendant and offense, see 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). On the same day, however, we upheld the schemes of Georgia, Texas, and Florida, because they struck the proper balance, channeling the sentencer's discretion without unduly restricting it. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, supra; Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976). The Texas system upheld in Jurek was precisely the same one the Court finds unacceptable today, which structures the jury's discretion through three questions relating to the defendant's personal culpability for the crime, his future dangerousness, and the reasonableness of his response to any provocation by the victim. In holding that this scheme unconstitutionally limits the jury's discretion to consider the itigating evidence of Penry's mental retardation and abused childhood, the Court today entirely disregards one of the two lines of our concern, requiring individualized consideration to displace the channeling of discretion, and throwing away Jurek in the process.
The Court contends that its conclusion is not inconsistent with Jurek because that case merely upheld a facial challenge to the Texas Special Issues framework. According to the Court, it did not "preclud[e] a claim that, in a particular case, the jury was unable to fully consider the mitigating evidence introduced by a defendant in answering the special issues." Ante, at 321. I disagree. While rejection of a facial challenge to a statute does not preclude all as-applied attacks, surely it precludes one resting upon the same asserted principle of law. And that is the situation here. The joint opinion announcing the judgment in Jurek (it is necessary only to describe the joint opinion, since the three Justices subscribing to the opinion of Justice WHITE, 428 U.S., at 277, 96 S.Ct., at 2959, would have upheld the Texas statute on even broader grounds) said that "the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." Id., at 272, 96 S.Ct., at 2956. The claim that the Court entertains and vindicates today flatly contradicts that analysis, holding that the constitutionality turns on whether the questions allow mitigating factors not only to be considered (and, of course, given effect in answering the questions), but also to be given effect in all possible ways, including ways that the questions do not permit. It is simply not true that, as today's opinion asserts, the Jurek Court had before it "the express assurance that the special issues would permit the jury to fully consider all the mitigating evidence a defendant introduced." Ante, at 321. What the Court means by "fully consider" (what it must mean to distinguish Jurek ) is to consider for all purposes, including purposes not specifically permitted by the questions. But there was no such assurance at all. To the contrary, the portion of the Texas Court of Criminal Appeals' opinion quoted in Jurek to evidence the assurance began: " 'In determining the likelihood that the defendant would be a continuing threat to society [i.e., in considering the second question under the Texas statute], the jury could consider . . .,' " 428 U.S., at 272-273, 96 S.Ct., at 2956-2957, quoting 522 S.W.2d 934, 939-940 (1975). The same focus upon the use of mitigating evidence for the limited purpose of answering the enumerated questions, rather than upon the jury's ability to use it for all purposes, is also evident in the joint opinion's statement that "[the] Texas Court of Criminal Appeals has not yet construed the first and third questions . . .; thus it is as yet undetermined whether or not the jury's consideration of those questions would properly include consideration of mitigating circumstances." 428 U.S., at 272, n. 7, 96 S.Ct., at 2956, n. 7 (emphasis added).
In short, 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. The joint opinion approved the Texas statute expressly because it "focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender." Id., at 274, 96 S.Ct., at 2957. Of course there remains available, in an as-applied challenge to the Texas statute, the contention that a particular mitigating circumstance is in fact irrelevant to any of the three questions it poses, and hence could not be considered. But that is not the case here, nor is it the ground upon which the Court relies. Special Issue One required the jury to determine whether " 'the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.' " Ante, at 310. As the plurality observed in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), "[t]he Texas courts have consistently held that something more must be found in the penalty phase-something beyond the guilt-phase finding of 'intentional' commission of the crime before the jury can determine that a capital murder is 'deliberate' within the meaning of the first Special Issue." Id., at 171-175, 108 S.Ct., at 2326-2328 (citing Texas cases). Evidence of Penry's mental retardation and abused childhood was relevant to that point. He was permitted to introduce all that evidence, relied upon it in urging the jury to answer "no" to the Special Issues, and had the benefit of an instruction specifically telling the jury to consider all evidence for that purpose. See App. 26. Thus, the only available contention here, and the basis on which the Court decides the case, is that this evidence "has relevance to . . . moral culpability beyond the scope of the special issues." Ante, at 322. That contention was considered and rejected by Jurek § holding that the statute's "focus[ing of] the jury's objective consideration" was constitutional. 428 U.S., at 274, 96 S.Ct., at 2957.
But even if petitioner's claim is not foreclosed by Jurek, the Court clearly errs in asserting that our later precedents "compe[l]" the conclusion that it is valid, ante, at 328. While it is true that our cases have held that "a death penalty statute must not preclude consideration of relevant mitigating factors," including "any aspect of a defendant's character or record and any of the circumstances of the offense," Lockett v. Ohio, 438 U.S. 586, 604, 608, 98 S.Ct. 2954, 2964, 2966, 57 L.Ed.2d 973 (1978); see also Eddings v. Oklahoma, 455 U.S. 104, 110-112, 102 S.Ct. 869, 874-876, 71 L.Ed.2d 1 (1982), we have never held that "the State has no role in structuring or giving shape to the jury's consideration of these mitigating factors." Franklin, supra, at 179, 108 S.Ct., at 2330. As Justice STEVENS pointed out in Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), neither Lockett nor Eddings "establish[ed] the weight which must be given to any particular mitigating evidence, or the manner in which it must be considered; they simply condemn any procedure in which such evidence has no weight at all." 463 U.S., at 961, n. 2, 103 S.Ct., at 3430, n. 2 (opinion concurring in judgment). See also Zant v. Stephens, 462 U.S. 862, 875-876, n. 13, 103 S.Ct. 2733, 2741-2742, n. 13, 77 L.Ed.2d 235 (1983) ("[S]pecific standards for balancing aggravating against mitigating circumstances are not constitutionally required").
We have held that a State may not make the death penalty mandatory, see Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987); Woodson, 428 U.S. 280, 96 S.Ct. 2978 (1976); Roberts, 428 U.S. 325, 96 S.Ct. 3001 (1976), and that it may not affirmatively preclude a sentencer from considering mitigating evidence presented by a defendant, see Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). The sentences in Eddings and Lockett, the cases upon which the Court principally relies, ran afoul of the latter rule-Eddings because the sentencing judge thought Oklahoma law categorically prevented him from considering certain mitigating evidence, and Lockett because Ohio law limited the mitigating factors to three, which on their face would not embrace even such rudimentary elements as lack of intent to kill the victim, the defendant's comparatively minor role in the of ense, and age. As we noted in Jurek and the Court does not contest today, Texas permits all mitigating factors to be considered, though only for purposes of answering the three Special Issues (and there is no question that the specific mitigation offered was relevant to at least one of them). That is why the Lockett Court found the Texas statute "significantly different" from the Ohio scheme. 438 U.S., at 607, 98 S.Ct., at 2966. And that is why we have continued to say, after Eddings and Lockett, that the Texas Special Issues "allo[w] the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provid[e] for jury discretion." Lowenfield v. Phelps, 484 U.S. 231, 245, 108 S.Ct. 546, 555, 98 L.Ed.2d 568 (1988). See also Pulley v. Harris, 465 U.S. 37, 48-49, 104 S.Ct. 871, 878-879, 79 L.Ed.2d 29 (1984); Zant v. Stephens, supra, at 875-876, n. 13, 103 S.Ct., at 2741-2742, n. 13; Adams v. Texas, 448 U.S. 38, 46, 100 S.Ct. 2521, 2527, 65 L.Ed.2d 581 (1980). I acknowledge that some statements in Lockett and Eddings, read in isolation from the facts of the cases, might be thought to establish the principle that the Court today adopts. One must read cases, however, not in a vacuum, but in light of their facts-which, in conjunction with the clear and constant reaffirmation of Jurek, leads to the conclusion that all mitigating factors must be able to be considered by the sentencer, but need not be able to be considered for all purposes.
Finally, I turn briefly to the place of today's holding within the broad scheme of our constitutional jurisprudence regarding capital sentencing, as opposed to the immediately applicable precedents. It is out of order there as well. As noted at the outset of this discussion, our law regarding capital sentencing has sought to strike a balance between complete discretion, which produces "wholly arbitrary and capricious action," Gregg, 428 U.S., at 189, 96 S.Ct., at 2932, and no discretion at all, which prevents the individuating characteristics of the defendant and of the crime to be taken into account, Woodson, supra, at 303-304, 96 S.Ct., at 2990-2991. That is why, in Jurek, we did not regard the Texas Special Issues as inherently bad, but to the contrary thought them a desirable means of "focus[ing] the jury's objective consideration of the particularized circumstances," 428 U.S., at 274, 96 S.Ct., at 2957, or, as the plurality put it in Franklin, "channel[ing] jury discretion . . . to achieve a more rational and equitable administration of the death penalty," 487 U.S., at 181, 108 S.Ct., at 2331. In providing for juries to consider all mitigating circumstances insofar as they bear upon (1) deliberateness, (2) future dangerousness, and (3) provocation, it seems to me Texas had adopted a rational scheme that meets the two concerns of our Eighth Amendment jurisprudence. The Court today demands that it be replaced, however, with a scheme that simply dumps before the jury all sympathetic factors bearing upon the defendant's background and character, and the circumstances of the offense, so that the jury may decide without further guidance whether he "lacked the moral culpability to be sentenced to death," ante, at 324, "did not deserve to be sentenced to death," ante, at 326, or "was not sufficiently culpable to deserve the death penalty," ibid. The Court seeks to dignify this by calling it a process that calls for a "reasoned moral response," ante, at 323, 328-but reason has nothing to do with it, the Court having eliminated the structure that required reason. It is an unguided, emotional "moral response" that the Court demands be allowed-an outpouring of personal reaction to all the circumstances of a defendant's life and personality, an unfocused sympathy. Not only have we never before said the Constitution requires this, but the line of cases following Gregg sought to eliminate precisely the unpredictability it produces. See, e.g., Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (States "must channel the [capital] sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death' ") (citations omitted); California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987) ("[S]entencers may not be given unbridled discretion in determining the fates of those charged with capital offenses"; the "Constitution . . . requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion").
The Court cannot seriously believe that rationality and predictability can be achieved, and capriciousness avoided, by " 'narrow[ing] a sentencer's discretion to impose the death sentence,' " but expanding his discretion " 'to decline to impose the death sentence,' " ante, at 327, quoting McCleskey v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 1773, 95 L.Ed.2d 262 (1987) (emphasis in original). The decision whether to impose the death penalty is a unitary one; unguided discretion not to impose is unguided discretion to impose as well. In holding that the jury had to be free to deem Penry's mental retardation and sad childhood relevant for whatever purpose it wished, the Court has come full circle, not only permitting but requiring what Furman once condemned. "Freakishly" and "wantonly," Furman, 408 U.S., at 310, 92 S.Ct., at 2762 (Stewart, J. concurring), have been rebaptized "reasoned moral response." I do not think the Constitution forbids what the Court imposes here, but I am certain it does not require it.
I respectfully dissent.

## 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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