1 (Slip Opini o n) OCTOBER T ERM , 20 06 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detro it Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s 

### ABDUL- K A B IR FKA 

### COLE v . QUARTE RMA N, DIRE C

TOR, T E XA S DE PAR T MENT OF CRIMINALJUSTICE, C O RR EC T I O NALIN ST IT U T IONS D I VI S I ON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 05–1 12 84. Ar g u ed Janu a r y17, 2007 —D ec ided April 25, 20 07 Petitioner Abdul-Kabir (fka Cole) wa s convict e d of ca pit a lmurder. At

sen t en c i n g , the tr ialju dg e asked th e ju r yto an sw ert w o spec ialis

su es, affir m ati v e an sw er s to w h i c hw o u l d requ ir e th e ju dg e to impose adea t hs e nt ence: whet h er Cole’s conductwa s committ ed delib era t e ly an d w i thth e r e ason able ex pec tationi tw o u l d r e su lt inh i s v i c t im’s deathan d w h e th erit w a s p r obable h e w o u l d c o mmit fu tu r e v i olen t ac ts c o n s titu ti n ga c o n t in u i n gthr e at to soc i ety

. Cole’s mitig a tin g evidence incl u d ed fa mily memb ers ’ t e st imony des crib i ng his unha ppy childhood a s well a s expertt e s t imony wh ich, t o s o me ext e nt , cont ra dict ed t h e S tat e’s cla i m he wa s da ngerous , b u tprima r ily s o ughtt o reduce his mora l culpab ilit yb yexpl a i ning his violentpropens i t i es as attr ibu t able to n e u r o log i c a l damag e an d c h ildh o od n e g l ec t an d aban

donment

. However , t h e pros ecut or dis c oura ged j urorsfrom t a k ing th ese latterc o n s ider ation s i n to ac c o un t, a dv i sin gth em in stead to an

swer the special issues ba se d on lyon th e fac t s an d to di sr eg ar d an y oth e rv i ew s as to w h at mig h t c o n s titu te anappr opr i at e pu n i sh men t for this partic ular defendant. Afte r the trial judge’s refusal to give Cole’s req u es ted ins t ruct ion s , whic hwo ul d have a u t h o r ized anega tiv e an sw erto eith erof th e s p ec ial is su es o nth e basi s of an yev iden c e th e ju r yper c e iv ed as m i tig a t i n g , th e ju r ya n sw er ed bothissu es inth e a ffirma t ive, and Cole was sent enced t o dea t h

. The Texa s Courtof Criminal App e als ( CCA) aff i rmed ondirect appeal, andCole ap plied for hab e a s relief in t h e t r ia l court , whic hult i ma t e ly re commended denia lof t h e a pplicat ion. Adopt i ng t h e t r ia l court ’s findings of fa ct a n d conclus io ns of la w wit hres p ectt o a l l of Cole’s cla i ms , including h i s ar g u men tth at th e spec i a l i ssu es pr ec l u ded th e ju r yfr om pr oper ly2 ABDUL-KABI R v. QUARTERMAN Sy llabu s considering and giving effectto hi s m i tigating evidence , the CCA de

nied Cole colla t e ra l relief.

Cole th enfiled a feder al h abeas pet i tion , asser t in gpr in c i pallyth at the sentencing jury was unable to co nsider and give effe ct to his miti

g atin gev idenc e inv i olatio nof th e Con s titu tion

. Rec o g n izin gth at Penryv. Lyna ugh , 492 U. S

. 302 (Penry I), r e qu ir ed that ju r i es be given instruct ions allowing them to give effect to a defe ndant’s miti

g atin gev iden ce an d to ex pr ess th eirr e ason ed mor a l r e spon se to th at evidence in d e t e rmining w h et her t o re co mmend dea t h , t h e Dis t rict Courtneve rt h e les s relied ont h e Fift h Circuit ’ s a n a l ys is for eva l ua t

ing Penry c l aims, r e qu ir in ga defen dan t to sh owa n e x u s betw eenh i s u n i qu elysev e r e per m an en t c o n d itionan d th e c r i min a l ac t attr ibu t e d to that condit ion. Ultim ate ly, Cole’s inab ility to do so doomed hi s Penry cla i m. Aft e r t h e Fifth Circuitdeni ed Cole’s a pplica t i on for a cert ifica t e of a ppea l ab i lit y (COA), t h is Courtheld t h a t t h e Circuit ’ s test fordeter m in in gth e c o n s titu tion a lr e lev a n c e of mitig atin gev i

dence ha d “ n o founda t i on int h e decis i ons of t h is Court ,” Tennar dv. Dretk e, 542 U. S. 274, 2 84, a n d th er efor e vac ated th e CO A den i al. O n rema nd, t h e Fift h Circuit focus ed primarily on Cole’s expertt e st i

mon yr ath erth anth at of h i s fam ily , c o n c lu din gth at th e spec ial i s sues allowed the jury to give full consideration and full effect to his mitig a tin gev i d en c e , an d affi r m in gth e denial of feder a l h abea s r e lief. Held: Bec a u s e th er e is a reason ab le lik elih ood th at th e state tr ia l

court ’s ins t ru c t ions prevent e d j urors from giving mea n in gful co ns id

eration to constitut i onally r e leva nt mi tigating evidence, the CCA’ s mer i ts adju dic ation“r esu l te d ina dec i sionth at w a s c o n t r a r yto, or in v o lv ed an un r e ason able a pplic ationof, c l ear l yestabli s h e d Feder al la w, a s det e rmined b y[t his ] Court ,” 28 U. S. C. §2254(d)(1), and th er ebyw a rr an ted feder al habea s r e lief. Pp. 10–3 0.

(a) This Courtha s long reco gnized t h a ts e nt encing j u rie s mus tbe able to g iv e m e an in gf u lc o n s ider ationan d effec tto al l m i tig atin gev i

den c e th at migh t pr ov ide abasi s forr e fu sin gto impose th e death pena lt y on a pa rt icula rindividua l , n o tw i t h s tan din gth e sev e r i tyof his crime or his potential to commi t similar offenses in the future

. See, e.g., the plurality opini o n in Lockettv. Ohio, 438 U. S. 586, 604

. Among ot her t h ings , howe ve r, t h e Lockett plurality disti n guished the O h i o statu te th er e in v a lida t ed fr om th e Tex a s s tatu t e u p h e ld in Jurekv. Texas, 428 U. S. 2 62, onth e g r ou n dth at th e l atterAc t d i d not “clearly op erat[e] at that time to preve n t the sentencer fromcon sidering any aspect of the defenda nt’s character and record or any circumstances of his offense as an in dependently mitigating factor,” 438 U. S., at 6 07. Nev e r t h e less, th e Cou r tlaterm a de c l earth at sen

ten c i n g u n d er th e Tex a s statu te mu st ac c o r dw i th th e Lock ettrule. In Franklinv. Lynaugh , 487 U. S. 164, 185, Ju stic e O ’ Con n o r’s opin

-3 Cite as: 55 0 U

. S. ____ (2007) Sy llabu s ion conc urri n gin t h e j u dgmentexpres sed t h e view of five J u s t ices whens h e empha s ized t h a t“t he rightt oh ave t h e s e nt encercons ider a n d weigh rel e va ntmit i ga ting evid en ce w o uld b e mea n ingles s unles s t h e s e nt encer wa s a l s o permit t e d t o give effectt o it s cons idera t i on’ in impos i ng s e ntence.” J u s t ice O’Conno r’s opinion for t h e Courtin Penry I, whic h unq ues t ionab l y governs t h e fa ct s of this ca s e , en dor s ed th e sa me v i ew s sh e h a d ex pr essedin Franklin. In Penry I, th e Court fir s t h e ld th at inc o nten din gth at h i s men tal-r et ar dationan d abu siv e-c h ildh ood mitig a tin gev ide nce pro vided aba s i s for alife s e n ten c e r ath erth andeathan d th atth e se n t en c i n gju ry sh ou ld h av e b een ins t ruct ed t o cons ider t h a tevidence, Penry wa s nota s king t h e Cou r tto make n e wlawbec a u s e h e w a s r e l y in gona ru le “dic tate d” b y ear lierc a ses, 492 U. S., at 3 21, as def i n e d byJu stic e O ’ Con n o r’s c o n cur rencein F r anklinv. Ly naugh

. Apply i n gth at stan dar d , Penry I held t h a tneither of Texa s ’ s p ecia l is s u es a llowed t h e j ury t o give meaningful effect to Penry’s mitigating evidence. The Penry I Court emph asized w i thr e spec t to Tex a s’ “fu t u r edan g er ou sn es s” spec ia l is

su e (as c o mpo s ed atth e ti me of bothPe n r y ’s an d Col e ’s sen t en c i n g pr oc eedin g s ) th at Pen r y ’s mitig atin gev ide n c e fu nc tion ed as a “ t w o edged sword” because it might “d imini s h his bla m eworthiness .

. . ev enas i tin d i c ate[d] apr o babi lity th at h e [w ou ld] be dan g er ou s.” 492 U. S., at 324. Th e Co u r tth er efor e r e qu ir ed anappr opr i ate in

s t ruct ion direc t ing aj ury t o cons ider fully t h e mit i gat i ng evidence a s it bear s onth e ex ten tto whic ha defen d a n t is u n d eservin gof death

. Id. , at 323. Th u s , wh er e the ev iden c e is dou b le edg e d oras likelyto be v i ew ed a s ag g r av atin gas i ti s as mit i g atin g , th e st atu te doe s n o t allowit to be g iv e nadequ ate c o n s ider ation

. Pp. 10–20.

(b) Th e Tex a s tr ial ju dg e’s r e c o mmen d ationto th e CCA to den yc o l

later a l r e lief i nth is c a se w a s u n s u ppor t ed byeith erth e tex torth e reasoning in Penry I

. Und e r Penry I, Cole’s family me mbers’ test i

mon y , as w e ll as th e por t ion s of h i s ex per ttes t imon ysu g g e stin gth at his da ngerous n es s res u lt ed from arough childhood a n d neurologica l damag e , w e r en o t r e lev a n t to eith erof the spec ial v e r d ic t qu estion s, except , pos s ib l y, a s evidenceof fut ure da n g erous n es s . Beca us e t h is would nots a t i s f y PenryI ’s requ ir emen t th at th e ev iden ce be per m it

t e d its mit i ga ting force b e yo nd t h e s p ecia l is s u es ’ s c ope, itwould have followed that those issues failed to provide t h e j ury wit havehicle for ex pr essin gits “r eason e d mor a l r e spon se” to Cole’s mit i g atin gev i

dence. I nden y ing Cole reli ef, howe ver, t h e Texa s t r ia l j u dge relied noton Pe nryI , bu t onthr ee laterTex as c a ses an d Graham v. Collins , 506 U. S. 46 1, defin i n gth e leg a l issu e w h e th erth e mitig atin gev i

dence co uld b e s u fficient l y cons idered a s one t o b e det e rmined on a ca s e-b y-ca s e b a s is , depending on t h e evidence’s na t ure a n d on whet h er it s cons idera t i on wa s enab led b yot her evidence in t h e re -4 ABDUL-KABI R v. QUARTERMAN Sy llabu s cord. The s t at e court ’s prima r y relia nce on Graham w a s m i sg u i de d. In concluding that gran ting collateral relie f to a defendant sentenced t o dea t hin 1 9 8 4would req u ire t h e a nnou ncementof a new co ns t i t u tion al r u l e, the Graham Cou r t , 506 U. S., at 468–47 2, r e lied h e av ily onth e fac tth at in1 984 it w a s r e ason ab l e forju dg es to r e lyonth e Franklinplu r a lit y’s ca t e gorica l rea d ing of Ju rek, which, in its view, expres s l y a n d unco ndit iona lly upheld t h e ma nner in w h i ch mit i ga t

ing evidence is considered under th e spec ial issu es. Bu t inboth Franklinan d Penry I , a maj o r i tyu l timatel yr ejec t ed th at in ter p r e ta

tion. While neither Frankli n no r Pe nryI wa s incons is t e ntwit h Gr a ham ’s na rrowholding, t h e ys u gges tt h a tla t e r decis i ons
—including John sonv. Texas , 509 U. S. 350, w h i c hr efu sed to a d opt th e r u l e Gra ha m s o ught—a re more releva ntt o Cole’s ca s e . The releva nce of t h os e ca s e s lies notin t h eir res u lt s , b u tint h eir fa ilure to dis t urb t h e b a s ic lega l principle t h a tc o nt inues t o govern s u ch ca s e s : The j ury mus thave a “ m ea ningful b a s is t o cons ider t h e releva ntmit i gat i ng qualities” of the defendant’s proffered evid ence. Id., at 369. Sev e r a l other reasons demonstrate t h at th e CCA’s ruling was not a reason

able app lic ati onof Pe nr yI

. Fir s t, th e ru lin gign o r e d th e fac tth at Cole’s mi tigati ng evidence of child hood deprivation and lack of selfcont rol wa s re leva ntt o his mora l culpab i lit yfor pre c is ely t h e s a me r e asonas Pe n r y ’s: It did n o t r e bu t eith erdeliber aten e ss orfu tu r e da ngerous n es s b u t wa s int e nded t o provide t h e j ury with a nent i rely different reason for not imposing de ath. Second, the t r ial judge’s as

su mptionth a tit w o u l d be a ppr opr i ate to look at o t h e rtesti m on yt o det e rmine whet h er t h e j ury could give mit i ga t i ng effectto Cole’s fam

ily t e s t imony is neit her rea s onab l e nor s u pport ed b y Pe nry I

. T h ird, simply because the jury could give mitigating effect to the experts’ pr edic tion s th at Cole sh ou ld bec o me less dan g er ou s as h e ag ed doe s notmea nt h a tt h e j ury und ers t ood itcould give s uch ef fectt o ot her portions of the experts’ testimony orth at of oth e rw i tn esses. Pp. 21 – 24.

(c) Fou rof t h e Court ’s mor e recent ca s e s s u pportt h e conclus ion that the CCA’s decision was unsupported by Penry I ’s tex tor r e ason ing. Although holding in Jo hnso n, 509 U. S., at 36 8, th at th e Tex a s spec ial is su es allow e d adequ ate c o n s ider at ionof petition er ’s y o u t has amit i gat i ng c i rcums t a nce, th e Courta l s o decla r ed t h a t“Penryre main s th e l a wan d mu st be g iv e na fairreadin g , ” ibid. Arguments like those of Cole’s prosecutor that th e specia l is s u es req u ire j urors t o disregard the force of e v idence offered in mitigation and rely only on the facts are at odds with th e Johnso n Cour t’s u n d er stan din gth at ju

ries could andwould reach mitigati ng evi d ence pro ffere dby a defen

da nt

. Furt her, evidence s u c ha s t h atpresent e d b yCole is not like t h e evidence of yo uth offeredin John son an d Graham, whic hea s ily could5 Cite as: 55 0 U

. S. ____ (2007) Sy llabu s h av e su ppor t ed a n e g ativ e an sw erto th e qu estionof fu tu r e dan g er ousness, and is instead mo relike the e vidence offeredin Pe nryI, w h i c h c o mpelled anaffir m a t iv e an sw erto th e same qu es tion , despit e it s mitiga t i ng s i gnifica nce. Tha tfa ct provides furt her supportfor t h e conclus ion t h a tin acas e like Cole ’s, there is a reasona b l e likelihood th at th e spec i a l i ssu es w o u l d pr ec lu de th e ju r yfr om g iv i n gmean in g ful cons idera t i on t o s uch mit i ga t i ng eviden ce, a s req u ire db y Penry I

. Inth r ee laterc a ses, th e Cou r t g av e Penry I th e “fairr e a d in g” John

son cont empla t e d, repudia t i ng s e ve ra l Fift h Circuitpre c edent s pro viding t h e b a s is for it s na rro w rea d ing of PenryI. Pe nryv. Joh nson, 532 U. S. 78 2, 797 (Penry II ); Te nnar d, 542 U. S., at 284; Smithv. Texas, 543 U. S. 37, 46

. Pp. 25– 28. 418 F. 3d 49 4, r e v e r s ed an d reman d ed.

S TEVENS , J., delivered the o p inion of the Court, in whi ch K ENNEDY , S OUTER , G IN S B U R G , and B REYER , JJ., joined. R OBERTS , C. J., filed a dis

s e nt ing opinion, inwhi chS CALIA , T HOMAS , and ALIT O , JJ., joined. S CALIA , J., filed a di ssentingopinion, in which T HOMAS , J., joined, and in whic hALI T O , J., join ed as to Par tI._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt
NOTICE: This op i n ion is subjec t to f o rmal revi si on bef o r e publicat ion in the p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

# SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 12 84 

### JALIL AB DUL-KABIR, FKA 

### TED C ALVIN C O LE, PETITIONE R v. NAT H A N IEL QUAR T ERMA N , DIRECT OR, TEXA S DE PARTM E N TOF C R IMINAL JUST ICE, C O RR EC T I O NALIN ST IT U T IONS D I VI S I ON ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [Apr il 25, 20 0 7 ] 

### J USTICE 

### S T EVEN S 

### delivered the opi n ion of the Court. Petitioner Jalil Abdul

- Kabir, formerly known as Te d Calvin Cole, 1 

### contends that there is a rea s onable l i keli

hood that t h e trial jud g e’s instruc t ions to the Texas jur y that sentenced him to death pr evented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence. He further contends that the judg

ment of the Texas Court of Criminal Appeals (CCA) deny

ing his application for postco nviction relief on November 24, 1999, misapplied the law a s clearly e s tablished by earlier decisions of this Co urt, thereby warr anting relief under the Antiterroris m and Effective DeathPenalty Ac t of 1996 (AEDPA), 28 U. S. C. §22 54. We agree with both contentions. Although the relevant state-court judgme nt for purposes of our revi ew under AEDPA is that adjudicat

ing the merits of Col e ’s state habeas application, in whic h

——————

1 For purpos es of cons is t e ncy wit h te sti m o n yg iv e nbyw i tn esses at t r ia l a n d s e ntencing , weref e r t o pet i t i oner t hro ugho ut t h e opinion b y his given na me, Ted Cole.2 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### these claims were properly raised, we are persuaded that the same r e sult would be dicta ted bythose cases decided before the state trial court enteredits jud g ment affirmin g Cole’s death sentence on Se pte m ber 26, 1 990. Acco rd

ingly, we r e verse the judgment o f the Courtof Appeals and remand for furth er proceedings consistent with th is opinion. I In December 1987, Cole, his stepbrother Michael Hicke y , and Michael’s wife, Kelly , decided to rob and ki ll Kelly’s g r a n dfather, R a ymond Ric hardson, to obtain some cash. Two days later t h ey did so. Cole strangled Richar d

son with a dog leash; the group then searched the house and found $20 that th ey used to purchase beer and food. The next day, Michael and Kelly surrendered to the police and confess e d. The p o lice then arrested Cole who al s o confessed. Cole was tri ed by a juryand convi c t e d of capita l murder

. After a sentencing hearing, the ju ry was as ked to answer two special issues: “Was the conduct of t h e defendant, TE D C ALVI N COLE, th at caused the death of the deceased, RAYMOND C. RIC H ARDSO N, committed deliber

ately and with the reasonabl e expectation that the death of the deceased or another would result?

. . . . . “Is there aprobability tha tthe defendant, TED CALVI N C O LE, would commit criminal acts of vio

lence that would constitute a continuing threat to so

ciety?” App. 127–128. 2

——————

2 These were the two stand a rd Texas spe c ial i ssues in place a tthe time of Cole’s sen t en c i n g . In1991, th e Tex as Leg i slatu r e amen ded th e spec ial i ssu es inr e spon se to th is Cou r t ’s dec i sionin Penryv. Lynaugh , 492 U. S. 30 2 (198 9) (Penry I), t o include la ngua ge ins t ruct ing t h e j u r y3 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### The trial ju dge instru c t ed the ju r yto take i n to consid

eration evi d ence presented at the guilt phase as well a s the sentencing phase of the trial b u t made no reference t o mitigating evidence. Under the provisions of the Texa s criminal code, the jur y ’s affirmati v e answers to these t w o special issu es requiredthe judge to impose a death sen

tence. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 2006). At the sen t encing hearing, the State intro duced evi

dence that Cole pleaded guilty to an earlier murder wh en he was onl y16. Shortly afte r being released on parole, Cole pleaded guilty to charges of aggra v ated sexual as

sault on two boys and was sentenced to 15 m o re years i n prison. As evidence of Cole’ s propensity for future danger

ousness, th e State introduced Cole’ s diary which, accord

ing to the State’s ex p e rt psy c hiatrist, D r . R i chard Coo n s, revealed a compulsive attractionto young boys and an obsession with criminal activit y . D r . Coons described Cole as a sociopath who lacked remorse and would not profit or learn from his experiences. In response, Cole presented two ca tegories of mitigating evidence. T h e first con s isted of testimony fro m his moth er and his aunt, who described his un happy childhood. Cole’ s parents lived together “off and on” for 10 years, over the course of which theyhad two children, Cole, and his younger sister, Carla. App. 35. Shortly after Cole was born, his father was arrested for robbing aliquor store. Cole’s father deserted the fa mily several times, abandon

ing the family completely beforeCole was five years old

.

—————— to dec i de “[w ] h e th er , takin gin to c o n s ider ationall of th e ev idenc e , includingt h e circums t a nces of t h e offe ns e, t h e defend a n t ’ s cha ra ct er an d bac kg r o u n d , an d th e p e r s on al mor a lc u l pabili tyof th e defen d an t, t h ere is asufficientmit i ga t i ng circ ums t a nce or circums t a nces to wa rra ntt h a t as e nt ence of life impris on mentwit h out pa role ra t h er th ana deathsen t en c e be imposed.” Tex

. Code Cr im. Pr oc . Ann

. , Art. 37.071, §2(e)(1) (Vernon 2006).4 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### On the last occasion that Cole saw his father, he dropped Cole off a blockfrom where he thought Cole’ s mothe r lived, told Cole to “go find her,” and drove off. Id., at 4 2

. Cole had no contact with his father duringthe next 10 years. Ibid. After C o le’s father left, his mother found herself unable to care for Cole an d his sister and took the children to live with her parent s in Oklah o ma. Cole’s grandpa rents were bo th alcoholics—Cole’s mother wa s herself a s e lf-described “drun k”—and lived miles a w ay from other children. E v ent ually, b e cause Cole’s grandpar

ents did not want their daughteror her children living with them, Cole’s mother placed him in a church-ru n children’s h o me, although she kepther dau ght er withher. Over the n e xt five years Cole’s mother visited him only twice. Cole’s aunt, wh o visited him on holid ays, testified that Cole seemed incapable of expressing any emotion an d that his father never visited him at all. The second category of mitigating evidence came from two exper t witnesses—a psycholog i st and the former chief mental health officer f o r the Texa s Departme n t of Cor r ec tions—who discussed the consequ e nces of Col e ’ s childhoo d neglect and abandonment. Dr. Jarvis Wright, the psy

chologist, spent 8 to 10 hours int e rviewing Cole and ad

ministering an “extensive batteryof psychological tests.” Id., at 63. He testified that Cole had “real problems with impulse control” appa rently resulting from “central nerv

ous damage” combined with “all the other factors of [his] background.” Id., at 69. He also testified that Cole had lik ely beendepressed for much of his life, th at he had a “painful” b a ckground, and tha t he had “ne v er felt loved and worth while in his life.” Id. , at 73, 86. Providing an analogy for Cole’s earl y develo pment, Dr. Wright state d that “the manufacturing process [had] botched the ra w material horribly.” Id., at 73. When specifically asked about future dangerousness, Dr. Wrigh tacknowledg ed that “if Ted were released tod a y5 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### on the stre et, there’s a much gre a ter probab ility of dan

gerous behavior than with the rest of us.” Id., at 7 4

. Although h e acknowle dged the possibil i ty of change or “burn out,” he admitted that Cole would likely pose a threat of future dang erousness until “year s from now.” Ibid. Exce pt for his p r ediction th at Cole wou l d change a s he grew older, Dr. W r ight’s testimony did not contradi c t the State’s claim that Cole was a dangerous person, bu t instead sou ght to provide an explanation for his behavior that might reduce his moral culpability. Dr. Wende ll Dickerso n, a psych o logist who had not previously examined Cole, observ ed thatit wa s difficult t o predict futu re dangerousness, butthat “violent conduct is predominantly, overwh elmingly the province of the young” with the risk of violence becoming rare as people gro w older. Id., at 95. On cross-examination, in r e sponse to a hypothetica lquestion ab out a pe rson with Cole’s characte r and history, Dr. Dickerson ackn owledged that he would be “alarmed” about the f u ture cond uct of sucha person b e cause “yes, there absolutely is a probabili ty that th ey would commit . . . fut u re acts of violence.” Id., at 113. In sum, the strength of C o le’s mitigating evidence was not i t s potential to contest his immed i ate dangerousness, t o which end the experts’ testimony was at least as harmful as it was he lpful. Instead, its stren gth was its tendency to prove that his violent propensities were caused by factors beyond his control—namely, neu r ological damage and childhood neglect and abandonmen t

. It was the s e latter c o nsiderations, however, thatthe prosecutor discouraged jurors f r om takin gi n to accoun t when formulating their answers to the special issues. Duringthe voir dire, the prosecutor advise d the jurors that they h a d a duty t o answer the special issues based on the facts, and the extent to which such facts objectively supported findings of deliberaten ess and future danger

ousness, rather than their views about what might be a n6 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### appropriate punishment for this pa rticular def e ndant. For example, juror Beeson was ask e d: “[I]f a pers on had a b a d upbringing, but lo oking a t those speci a l issues, y o u felt that they [sic] met the standards regarding deliberateness and being a con

tinuing threat to society, could you still vote ‘yes,’ even though you felt lik e maybe they’ d [si c ]

had a rough time as a kid? If you felt that the facts brought to you by the prosecution warran t ed a ‘yes’ answer, could you put that out of your mind and just go by the facts?

. . . . . [T]hat woul d not keep you from answering ‘yes,’ just because a person had a poor upbringing, would it?” XI Voir Dire Statement of Facts filed in No. CR88–0043– A (Dist. Ct. Tom Green Cty., Tex. , 51st Jud. Dist.), p. 1588. The prosecutor began his final closing argum e nt with a reminder to the jury that duringthe voir direthey ha d “promised the State that, if it met its burden of proof,” they would answer “ye s ” to both special issues. App. 145. The trial ju dge refusedto give an y of several instruction s requested by Cole that woul d have authorized a negative answer to either of the special iss u es on the basis of “any evidence which, in [th e jury’s] opinion, mitigate[d] agai nst the imposit i on of the Death Penalty, including any aspect of the Defendant’s cha r acter orre cord.” Id., at 115; see also id., at 117–124. Ultimately, the jurors answered both issues in th e affirmative and Cole was sentenced to death. On direct appeal, the sole i ssue raised by Col e was that the evidence was insuf f icient to support the jury’s verdi ct. The CCA rejected Cole’s claim and affirmed the judgment of the trial court on September 26, 1990. II On March 2, 1992, th e lawyer who then represented7 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### Cole filed a napplication for a writ of habeas corpus in the Texas trial court, alleging 21 cla i ms of error. 3 

### Counsel later withd r ew, and af ter delays c aused in part by a let t er from Cole to the trial judge stating that he wished t o withdra whis “appeal,” the judge ultimately “had pet i

tioner bench warrante d” to a he aring on September 4, 1998. Id., at 152–153. During th at hearing, Cole advised the court that he wished to proceed with his habeas pro

ceedings and to have th e CCA appo int counsel to represent him. Without counsel having been appointed to represent Cole, and without con d ucting an evidentiary hearing, the trial courtentered it s findings and conclu sions recom

mending denial of the a pplication. Three of Cole’s 21 claims related to the jury’s inability to consider mitigating evi d ence. The trial jud g e rejected th e first—“tha this mitiga ting eviden ce was notable to be properly co nsidered and given effect by the ju ry under th e special issu es,” id., at 157—because he concl u ded that the record, and“especially” the testimony of the two expert witnesses, “provide[d] a basis for the jur yt o sufficiently consider the mitigating evidence offered by petitioner,” 4

——————

3 Alth ou ghCole h a d n o t r a ise dan yof th e 21 c l aim s pr ese n ted inh i s sta t e h abea s a pplic ationondir e c t a ppea l—including his cla i m t h atthe j ury hea r d s i gnifica n tmit i ga t i ng eviden ce whic hitcould neit her consider nor give effect to under the Texas sentenci ng statute, i n violation of Penry I —unde r s t at e la w, his Penry cla i m rema ined cogni

zable ons t a t e h abeas r e v i e w . See Ex parte Ku nk le , 852 S. W. 2d 49 9, 502, n

. 3 (Tex . Cr im. App. 1993) (enban c ) (h oldin gth at “w e h av e h e ld th at [ a lleg a t i o n s of Penryerror occurring in cases triedbefore Penry ] ar e c o g n izable v i a h abe as c o r p u s despite a napplic an t’s f a ilu r e to r a i s e them on direct appeal”). N o r did Co le’s f a ilure to raise this clai m on direct appeal affect its later reviewunde rAEDPA by th e United State s Courtof Appea l s for t h e Fift h Circuit

. S e e Jack son v. Johnso n , 150 F. 3d 520, 52 3 (CA5 1 9 9 8) (h oldin gth at Tex as’ postc o n v ic tionpr oc e du r e s pr ov ide petition er s “ a dju d ic at iononth e mer i ts” su ffic i en t t o sati sfy28 U. S

. C. §2254(d)).

4 Th e tr ial ju dg e also n o ted t h at th er e w e re “n o c o n t r o v e r t ed, pr ev i

ous l y unres o lv ed fa ct ua l is s u es rega rding pet i t i oner’ s Pendry [sic]8 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### id., at 161. With respect to Cole’s second claim, the judge agreed tha tappellate counsel had been ineffective fo r failing to assign error b a sed on“the trial court’s failure to instruct th e jury on mitigating evidence as contemplated by the Pendry [sic] decision.” Id., at 166. He nevertheles s found that the result on appeal would have b een the same had the poi n t been rai s ed. Ibid. On the third claim relat

ing to mitigating evidence, th e judge rejected Cole’s argu

ment that the trial court’s failur e to specifically instru ct the jury to consider mitigatingevi d ence and offer a defini

tion of “mitigating” was error. Id., at 173. Over the dissent of two memb ers of the court, and after adopting th e trial court’s findings of fact and conclusions of law withonly minor chan ges, the CC A d e nied Cole’s application for state c o llateral relief. Ex parte Cole , No. 41,673–01 ( N ov. 24, 1999) (per cur i am), App. 178–179. We consolidated this case with Bre wer v. Quarterman, post, p. ___, and granted certiorari, 549 U. S. ___ (200 6). III After the F e deral District Co urt granted Cole’s motion for the app o intment of counsel, he filed a timely petition for a federa l writ of ha beas corpus pursuant to 28 U. S. C. §2254. His principal claim then, a s it is n o w, was that th e sentencing jury “was unable to consider and give effect to the mitigating evidence in hi s case,” in viol ation of th e Constitution. Cole v. Johnson , Civ. Action No. 6:00–CV– 014–C (ND Tex., Mar. 6, 2001), p. 5, App. 184. In its opini o n denying relief, the D i strict Court began by summarizing Cole’s mitigating evi d ence, highlighting his “destruc t ive family bac kg round.” Ibid. The court the n correctly described our decision in Penry I, 4 92 U. S. 30 2, in these words: “In [Penry] the Supreme Court found that when the

—————— c l aim.” App. 1 61.9 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### defendant places mitigating evid ence before the jury , Texas juries must be given instructions which allow the jury to give effect t o that miti gating evid ence and to express its reasoned moral response to t hat evi

dence in determining whether t o impose t h e death penalty.” 5

### Civ. Action No. 6:00–CV–014–C, at 8–9 , App. 188. The court n e xt noted t hat the Fift h Circuith a d formu

lated its own analysis for evaluating Penry claims. Under that analys is, for mitigating e v idence to be constitution

ally relevant, it “must show (1) a uniquely severe perm a nent handicap with which the defendant is burdened through no fault of his own, . . . and (2) that the crimina l act w as attributabl eto this seve repermanen t condition. ” Civ. Action No. 6:00–CV–014–C, at 9, App. 189 (quoting Davis v. Scot t , 51 F. 3 d457, 460–461 (CA5 1 995) (internal quotation marks omit ted; emphasis added)). Ultimatel y , Cole’s inabi lity to sho wa “nexus ” between his troubled family background and his commi ssion of capital murder doomed his Penry claim. Civ. Action No. 6:0 0–CV–014–C, at 13, App. 193. The Court of Appeals denied Cole’s application for a certificate of appealability (C OA), holding that “reasonable jurists woul d not debate the distric tcour t’s conclusion tha t Cole’s evidence was not consti tutionally relev ant mitigat

ing evidence.” Cole v. Dr etk e , 41 8 F. 3d 49 4, 498 (CA5 2005). Shortly thereafter, however, we held that the Fifth Circuit’s “screening tes t” for determining th e “ ‘co n stitu

tional relevance’ ” of m i tigating ev idence had “no founda

tion in the decisions of this Court.” Tennardv. Dretk e, 542

——————

5 The cont ra s tb e t w een t h e Dis t rict Court ’s s uccincts t at ementof Penry I ’s h o ldin gan d th e pr osec u t or ’s explan ation at v oir direof the ju r o r s ’ du tyto an sw erth e s p ec ial i ssu es o nth e ba sis of th e fac t s pr e s e nt ed a n d nott h eir views ab o utCole’s mora l culpabilit y , s e e Pa rt I, supra , could n o tb e more s t ark.10 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### U. S. 274, 284 (2004). Accordingly, we vaca ted its order denying a COA in th is case and remanded for furth er proceedings. On remand, the Court of Appe als reviewed Cole’s Penryclaim on the merits and affirmedthe Distric t Court’s jud g ment deny ing the writ

. Focusing pr imarily on the testimony of petitioner’s tw o experts rather than that of his mother and his aunt, the Court of Appeals reviewed our recent decisions and con

cluded “that the Texas special issues allowed the jury to give ‘full consideration and full effect’ to the mitigating evidence that Cole pre s ented at the punishment phase of his trial.” 6

### 418 F. 3d, at 511. With two judges dissenting, the court de nied the petition for reh e aring en banc. 7 

### IV Because Cole filed his federal habeas petitionafter the effective date of AED PA , the pr ovisions of tha tAct govern the scope of our re view. Wemust therefore ask whether the CCA’s adjudicatio nof Cole’s claim on the merits “re

sulted in a decision that was contrary to, or involved an unreasonab le application of, clea rly established Federal law, as det e rmined by the Sup r eme Court o f the Unite d States.” 28 U. S. C. §2254(d)(1). We conclude that it did. A careful review of our jurispruden c e in this area makes clear that well before our decision in Penry I , our cases had firmly established that sentencing juries must be abl e

——————

6 The Court of Appeals d i stinguished Penry I onth e g r ou n dth at Penry ’s eviden ce of ment a lr e t a r da tion cou l d only haveb een co ns idered as ag g r av atin g , wh er eas this “r ec or d does n o t su g g e st th at th e ju ry v i ew ed Cole’s mitig a tin gev iden c e as anag g r av atin gfactoron ly

. . . . [T]his evidence fits well within th e broad scope of the future dange r ou sn ess spec ia l issu e . . . .” 4 18 F. 3d, at 50 6–5 07, an d n

. 54.

7 Inh i s dissen t , Ju dg e D e nn is ar g u ed th at th e pan e l h a dimpr oper ly
“ u s e d a n ot her Fift h Circuit glos s upon aS u preme Cour tdecis i on, i.e. , the double edged evidence limita t ion of Penry I , th at h a s n o basi s inth e S u preme Courtdecis i ons , t o av oid confron t ing t h e rea lis s u e.” Cole v. Dretk e, 443 F. 3d 441, 4 42 (C A5 20 06) (per curiam).11 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### to give meaningful considerat ion and effect to all mitigat

ing evidence that might provide a basis forrefusing to impose the death penalty on a particular individual, not

withstandi n g the severity of his crime or his potential to commit similar offenses in the future. Three of the five cases decided on the same day in 1 976— Woodsonv. No rth Carolina, 4 28 U. S. 2 80 (1976), Proffittv. Florida, 428 U. S. 242 (1976), and Jurekv. Texa s, 42 8 U. S. 26 2 (1976)—identified the background principles we would apply in later cases to evaluate specific rules inhibiting the jury’s a b ility to give meani ngf u l effect to such mitigat

ing evidence. In Woodsonv. North Ca rolina, we invalidated a statute that made death the mandatory sentence for all persons convicted o f first-deg r ee murder. One of t h e statute’s constitutional shortcomings wa s its “failure to allow t h e particulariz e d consideration of r e levant aspects of the charactera n d recordo f eachconvicted defendant before the imposit i on uponh i m of asentence of d e ath.” 428 U. S. , at 303 (plurality opinion). 8

### I n Proffittv. Florida and Jurekv. Texas , the joint opinions rejected fac i al challeng es to the sentencing statutes enacted in Florida and Texas, assuming i nboth cases that provisions al lowing for th e unrestricte d admissib ility of mit i gating evidence woul d ensure that a sentencing jury ha d adequate guidance in performing its sentencing function

. 9 

### As a majority of the

——————

8 Th e opin ion also r efer r e d to a pr opositi o nth at “c an not fair lybe denied—that death is a punishment different from allother sanctio n s inkin dr ath erth andeg r ee,” an d c o n t in u e d onto c o nc lu de th at “[a ] proces s t h a t accords no s i gn ifica nce t o releva ntfa cet s of t h e cha ra ct er and recordof the individual offende r o rth e circumstances of the par

ticular offense excludes from consid eration in fixing the ultimate pu n i sh men tof death th e p o ssi bili tyof c o mpas sion ate ormit i g atin g factors stemming from the dive rs e fra ilt ies of huma n kind.” Woodson , 428 U. S., at 3 03– 30 4.

9 “By authorizing thedefense to brin g before the jury at the separate s e nt encing he a r ing w h a t e ver mit i ga t i ng circums t a nces rela t i ng t o t h e12 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### Court later acknowledged, our holding in Jurekdid no t preclude th e possibilit y tha tthe Texas sentencing sta t u t e might be found unconstitutional as appli e dina particula r case. See n. 15, infra

. Two years l a ter, in Lockettv. Ohio , 438 U. S. 586 (1978), a plurality concluded “that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital ca se, not be p r ecluded fro m consider

ing, as a mitiga ting factor , any aspect of a defendant’s character o rrecord and any of the circumstances of the offense tha tthe defendant proffe rs as a basis for a sen

tence less than death

. ” Id., at 604 (footnote omitted). Because Ohio’s death penalty statute was inconsistent with this p r inciple, it was declare dunconstit u tional. The plurality noted the possible tensi o nbetween a holding that the Ohio statute was invalid and our decisions in Proffi tt and Jurek upholding the Florida and Texas statutes, b u t distinguished those cases because neither statute “clearl y operated at that time to pr event the sentencer from con

sidering any aspect of the defend ant’s chara cter and re

cord or any circumsta nces of h i s offense as an indepen d

ently mitigating factor.” 438 U. S., at 607. While Chief Justice Burger’s opi n ion in Lockett was joined by only three other Justices, the rule i tannounced was endorsed and broadened in our subsequ e nt decisions in Eddingsv. Oklahom a , 455 U. S. 104 (1982), and Skip

perv. Sou t h Carolina , 476 U. S. 1 (1986). I nthose cases, we emphasized the severity of imposing a death sentence and that “ t h e sentencer in capital cases must be permitted to consider anyrelev ant mitigat i ng factor.” 10 

### Eddings ,

—————— individual defendant can be add uced, T e xas has ensured that the sentencing jury will have ad equate gu idance to enable it to perform it s s e nt encing fu nct ion.” Ju rek, 428 U. S., at 276 ( j oin topin ionof Stew ar t , Powell, and S TEVENS , JJ.) ; see also Pr offitt, 428 U. S., at 25 7– 25 8 (same).

10 In Pe nry I itself, th e Cou r t n o ted th at th e r u l e sou gh tbyPen ry—Cite as: 55 0 U

. S. ____ (2007) 13 Opinion of t h eCourt 

### 455 U. S., at 112 (emphasis added). In the wa ke of our deci sion in Lockett, Ohio a m ended its capital sentencing stat ute to give effect to Lockett ’s ho ld

ing. 11 

### Neither Florida nor Texas did so, however, unti l after our unanimous d e cision in Hitchcockv. Dugger, 48 1 U. S. 393 (1987), unequivocally confirmed the settled quality of the Lockett rule

. A s J USTICE 

### S CALIA

### ’s opinion for the Co urt explain e d, the defendant hadintroduced some rather aty p ical mitigating evidence that was not expressly authorized by the Florida statute: “In the sentencing p hase of this case, petitioner’s counsel introduced bef o re the adv i sory juryevidence that as achild petitioner had th e habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that therea fter his mind tended to wande r ; that peti tioner had been one of seven children in a poor family that earne dits liv

ing by picki n g cotton; that his fath er had diedof can

cer; and th at petitioner had been a fond and affection

ate uncle to the children of one of his brothers.” 481 U. S., at 39 7. As the opin ion further explained, the Florid a courts had construed the state st atute topreclude cons ideration of mitigating factors un mentioned in the stat ute. Accor d

ingly, despite our earlier decision in Proffittu p holding th e statute aga i nst a facia lchallenge, it was nec e ssary to s e t

——————
“ t h a twhen s uch mit i ga t i ng evidence is pr es ent e d, Texa s j uries mus t , upon req u es t , b e givenj uryi n s t ruct ions t h a tma ke it poss ib le for t h em to give effect to that mitigating ev idence in determining whethe rthe death penaltyshould be im pose d—is not a‘new rule ’ u n der Tea g ue[v

. Lane , 489 U. S. 28 8 (1 98 9),] bec a u s e it is dic t ated by Eddings an d Lock ett .” 492 U. S., at 318– 319.

11 See O h i o Rev

. Code An n . §2929.0 4 (B)(7) (An d er son198 2) (amen d ed 198 1) (add in g , as a mi tig a t i n gc i rc u m stan c e , “[a]n yotherfac t or s th a t are relevant to the issue of whether t h e of fender s h ould b e s e nt enced to death”).14 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### aside Hitch cock’s death sentence. We explain e d: “We think it could not be clearer that the advisory jury was in structed no t to consider, and the sentenc

ing judge re fused to consider, evidence of nonstatutory mitigating circumstan c es, and th at the p r oc eedings therefore did not comport with t h e requirements of Skipperv. South Carolina , 476 U. S. 1 (19 86), Eddingsv. Ok lahoma , 45 5 U. S. 104 (1982), an d Lockett v. Ohio , 438 U. S. 586 (1978) (plurality opinion). Re

spondent has made no attempt to argue that this er

ror was har mless, or t hat it had no effect on the jur y or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigat

ing evidence of the sort at issue here renders the death sentence invalid. See Skipper , supra(e vidence that defendant had adapted well to prison life); Eddings, su pra(eviden c e of 16-year-old defendant’s troubled family history and emotional disturbance).” 481 U. S., at 398–399. Of course, our reference to “ex c lusion” of the evidence d i d not refer to its admissibility, but rather to its exclusion from meani ngful consi d eration by the jury. Had Jurek and Proffitttruly stood for the proposition that the mer e availability of relevant mitigating evidence was sufficient to satisfy th e Constitution’s requirements, Hitc hcockcould never have been decided as it was. 12

——————

12 To th e ex ten tth at Jurekimplied at the ti me it was decided that all th at w a s r e qu ir ed byth e Con s titu tionw a s th at th e defe n s e be au th or ized t o int r oduce a ll releva ntmit i ga t i ng circums t a nces , a n d t h a ts u c h informa t i on merely b e b e fore t h e j ury, itha s b e come clea r from our laterc a ses th at th e mer e abili tyto pr esen t ev iden c eis n o t su ffic i en t

. The only mitigating ev idence presented in Jurek

—offere dto rebut the Sta t e’s w i tn es ses’ tes t imon yabou tJu r e k’s bad r e pu tat io ninth e c o m mu n i ty—appear s to h av e con s isted of Ju r e k’s fath er ’s testi m on yth at J urek ha d “ a l wa ys b een s t ea dily employed s i nce he ha d lefts chool a n d th at h e c o n t r ibu ted to h i s f a mily ’s su ppor t .” 4 28 U. S., at 2 67. Th er e -15 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### In the year following our decision in Hitchcock, we made clear that sentencing under the Texas statute, like that under the Florida statute, must accord withthe Lockett rule. In Franklinv. Lynaugh, 487 U. S. 164, 172, 177, 1 83 (1988), the plurality rejected the claim that the judge’s instructions did not allow the jury to give adequate weight to whateve r“ ‘residual doubts’ ” it may have had concern

ing the defendant’ s guilt, or to evidence of the petitioner’ s good behavior while in prison. Th at particular holding is unremarka ble because we have never held that capital defendants have an Eighth Amen dment righ t to present “residual doubt” evidence at sentencing, see Oregonv. Guzek , 546 U. S. 517, 523–527 (2 006), and i nmost cas e s evidence of good behavior in prison is pri m arily, if not exclusively, relevant to the issue o f future dangerousnes s. What makes Franklin significant, however, is the separate opinion of Justice O’C o nnor, and particularl y those por

tions of heropinionex pressing the views of f

i ve Justices, see infra, a t18, and n. 15. After summarizing the cases that clarified Jurek ’s ho lding, 13

### she wrote:

—————— fore, the question pres ent e d in our la t e r ca s e s
—na mely, whet h e rt h e jury was precluded from giving me aningful effect to mitigating evi

dence, pa rt icu l a r ly t h a twhich ma y go t o adefenda n t ’ s la ck of mor a l culpability—w a s not at i ssue in that ca se. When we deemed the Texas s e nt encing s c h e me cons t i t u t i ona lly a d eq uat e in Ju rek , w e clea rly fa iled to an tic i pate th at w h e nfaced w i thv a r i ou s oth e rty pes of mitig atin g evidence, t h e Texa s s p ecia l is s u es would notprovide t h e s e nt encin g ju r y w i thth e requ isite “ a deq u ate g u idan c e .”

13 “In Ju rekv. Texas , 428 U. S. 262 (1 97 6), th is Cou r th e ld th at th e Texa s ca pita l s e nt encing pr ocedures s a t i sfied t h e Eighth Amendment req u irementtha tt h e s e nt encer b e a llow e d t o cons idercircums t a nces mitig a tin gag ain s t c a p i ta l pu n i sh men t

. It w a s ob serv ed th at ev e n t h ough t h es t at ut e did notexplicit ly ment ion mit i ga t i ng circums t a nces , t h e Texa s Courtof Crimina lAppea l s ha d cons t rued t h e s p ecia l verdict question regarding the d efendant’s future dangerou snes s to permit jur y cons idera t i on of t h e defen da nt ’s prior crimina l record, a g e, menta l s t at e, a n d t h e circums t a nce s of t h e crime in mit i ga tion. Id. , at 271 – 273. Sin c e th e dec i sionin Jurek , w e h av e emph asizedth at th e Con s ti

-16 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### “In my view, the principle underlying Lo c k ett, Eddings , and Hitchcocki s that punishment should be di

rectly related to the personal cul p ability of the crimi

nal defenda n t.
“ ‘[E]vidence about th e defendan t’s backgro und and character i s relevant because of the belief, l o ng held by this society, that de fendants who commit criminal acts tha ta r e attribu t able to a d i sadvantag ed back

ground, or to emotiona land mental problems, may be less culpabl e than defendants who have no such ex

cuse. . . . Thus, the sentence imposed at the penalty stage should reflect a reasoned moralrespon se to the defendant’s backgroun d, chara cte r, and crim e .’ Cali

forniav. Brown , 479 U. S. 538, 54 5 (1987) (O’Connor, J., concurri ng) (emphasis in origin al). “In light of this principle it is clea r that a State may not constitutionally prevent the sentencing body fro m giving effec tto eviden ce relevantto the def e ndant’s backg roundor charact e r or the circumstance s of the offense that mitigates against the death pen a lty. In

deed, th e r i ght to have the sen tencer consi d er and weigh rel ev ant mi tiga ti ng evid encewould be meaning

less unl ess the s e ntence r wa s also permi t ted to give ef

fect to its considera tion

. “Under the sentencing procedure followed in this case the jury co uld express its views about the appropriate

—————— tution guarantees a defen dant facing a possible death se ntence not onl y th e r i gh t to in tr odu c e ev iden c e mitig ati n gag ain s t th e deathpen a l t y bu t also th e r i gh t to con s ideration of t h a tevidence b y t h e s e nt encin g au th or ity

. Lo ck ettv. Oh io , 438 U. S. 58 6 (19 78), est a b lish e d th a t a S t at e ma y notpreventt h e ca pit a l s e nt encing a u t h o r it y ‘from givin g indep endent mitigating we ightt o a s pect s of t h e defenda n t ’ s cha ra ct er a n d record a n d t o circums tances of t h e offens e proffered in mit i ga tion.’ Id. , at 605 (pl u r a lityopin ion)

. We r e affir m ed th is c o nc lu sionin Eddingsv. Ok la homa , 455 U. S. 10 4 (1 98 2), an d in Hitchcockv. Du gge r , 481 U. S. 3 9 3 (198 7).” Franklin , 487 U. S., at 183 –18 4 (emph as i s added).17 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### punishment only by a n sw ering the special verdict questions r e garding the deliberate n ess of the murder and the defendant’s future dangerousness. To the ex

tent that t h e mitigating evidence introduced by peti

tioner was relevant to one of the special verdict ques

tions, the jury was fre e to give eff e ct to tha t evidence by returnin g a negati ve answer to that question. If, however, p e titioner had introdu ced mitigat i ng evi

dence about his background or character o rthe cir

cumstances of the crim e that was not relevant to th e special verdict questions, or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions, the juryinstructions would have provided the jury with no ve hicle for expressing its ‘reasoned moral re sponse’ to that evidence.” 487 U. S., at 1 83, 184–18 5 (opinion concurring in judg

ment) (emphasis added). Justice O’Connor’s opinion for the Court in Penry I endorsed the views s h e had exp r essed in Franklin and unquestion ably governs the facts of this case. 14

### P e n r y contended that his mitigating evid ence of mental retard a -

——————

14 T HE C HI EF J US TI CE ’s dis s e ntincorrect ly a s s u mes t h a tour holding todayadopt s t h e r u l e adv o c a ted byth e peti tion erin Grah a m v. Collins , 506 U. S. 46 1 (199 3), n a me ly , th at “ ‘a de fen d an t is en t i tled to spec ia l instructions wheneve r he ca n offer mitigating evidence that has some ar g u able r e lev a n c e bey o n dth e spec ia l i ssu es.’ ” Post , at 7 (qu o tin g Graham , 506 U. S., at 47 6; emph asi s in Graham ). The rule that we r e affir mtoda y
— a r u l e th a th a s beenc l ear l yestabl is h e d sin c e our decision in Penry I —is t h is : S p ecia l ins t ruct ions a r e neces s a ry when t h e j ury could not ot herwis e give meaningful ef fectto a defen d an t’s mi tig a t

ing eviden ce. The rule is na rrowe r t h a nth e s t a n da rd urged b yG r a h a m b e ca us e s p ecia l ins t ruct ion is notreq u ired when mit i ga t i ng eviden ce ha s only a tenuous conne ct ion—“somear g u able r e lev a n c e ”—to th e defendant’s moral culpability. Bu t special instruction is necessary when t h e defe nda n t ’ s evidence ma y havemea n ingful r e leva nce t o t h e defendant’s moral culpability “beyond thescope of the special issues. ” Penry I , 492 U. S., at 322–3 2 3

. D e spite th e dissen t 's c o lor f u lr h e tor i c , it cit e s no pos t

- PenryI ca s e s incons is t e ntwith t h is rea d ing of it s holding.18 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### tion and anabusive ch ildhood provided a bas is for a sen tence of life imprisonment rather than death and that th e jury should have be eninstru cted that it could consider that evidence when mak i ng its sentencing decision. I n response to that conte n tion, our opinion first held that Penry was not asking us to make new law because he w a s relying on a rule that was “dic tat e d” by earli e r cases, see n. 10, supra, and explained why Justice O’Connor’s sepa

rate opinion in Franklin correctl y defined the relevant rule of law. 15 

### In Frankli n , we noted, “both the c o ncurrence and the dissent stressed that ‘th e right to have the sen

tencer cons ider and weigh re levant mitigati ng evidence would be meaningless unless the sentencer was also per

mitted to give effect to its co nsideration’ in imposing sen

tence.” 492 U. S., at 32 1 (citing Franklin , 487 U. S., at 18 5 (O’Connor, J., concu rring in judgment); id., at 199 (S TEVENS 

### , J ., dissenting)). Applying th at standard, we held that neither the “delib

erateness” nor the “future d ange r ousness” special issu e

——————

15 “In Franklin , howeve r, t h e f ive conc ur ringa n d diss ent i ng J u s t ices did nots h a r e the plura lit y’s ca t e gorica l rea d ing of Jurek

. In the plural

it y’s view, Jurekha d expres s l y a n d unco n d it iona lly upheld t h e ma nner in which mit i ga t i ng eviden ce is cons idered under t h es p ecia l is s u es . Id., at 179– 18 0, an d n

. 10. Inc o n t r a st, five M e mber s of th e Cou r tr e a d Jurekas n o t pr ec lu din ga c l aim th a t , ina par t ic u l arc a se, th e ju ryw a s u n able to fu ll yc o n s iderth e mitig a tin gev iden c e in tr oduc ed bya defen

dant in answe r ing the special is s u es . 4 87 U. S ., a t18 3 (O’C ONNOR , J. , conc urri ng inj u dgment); id. , at 199 –2 0 0 (S TEVENS , J., dissenting)

. Indeed, b o t h t h e con cur ren c e a n d t h e di s s e ntunders t ood Jurekas res t ing funda m ent a lly on the expres s a s sura nce t h a tt h e s p ecia l is s u es would permit t h e j ury t o fully cons ideral l th e mi tig ati n gev idenc e a defendant introduced that was releva nt to the defendant’s background and characterand to the circumstances of the offense.” Penry I , 492 U. S., at 32 0– 321; see al so id. , at 318 (“[T] h e fac i al v a lid ityof th e Tex a s deathpen a l t yst atu te h a d b eenu p h e ld in Jurekonth e bas is of a ssu r an c e s th at th e spec ial i ssu es w o u l d be i n ter p r e ted br oadlyen ou gh to enab l e s e nt encing j uries t o cons ider a l l of t h e relev a ntmit i ga ting ev iden c e a defen d an t migh t pr esen t”).19 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### provided th e jury witha meaningful opportunity to give effect to Pe nry’s miti g a ting evide n ce. With respect to t h e former, we explained: “In the abs ence of jury instructions defining ‘deliber

ately’ in a way that w o uld clearly direct the jury to consider fully Penry’s mitiga ting evidence as it bears on his personal culpability, we can n ot be sure that the jurywas ab le to give ef fect to the mitigating evidence of Penry’s mental retardation and history of abuse in answering t h e first spe c ial issue. Without such a spe

cial instruction, a juror who believed that Penry’s re

tardation a n d backgro und diminished his moral cul

pability and made imposition of the deathpenalty unwarran t ed would be unable to give effect to tha t conclusion if the juror al so b e lieved that Penry com

mitted the crime ‘deliberately.’ T hus, we ca nnot be sure that the jury’s answer to the first spec ial issue reflected a ‘reasoned moral response’ to Penry’s miti

gating evidence.” 492 U. S., at 32 3. With respect to the f u ture dan g erousness issue, we emphasized the fact that Penry’s evidence of mental re

tardation was relevant only as an aggra v ating factor. Id., at 323–324. More broadly, we noted that the evidence of Penry’s me ntal retardation and childhood abuse func

tioned as a “two-edged sword,” because it “m ay diminish his blameworthiness for his crime even as it indicates th at there is a probability that hewill be dangerous in th e future.” Id. , at 324. We therefore held tha t , in the ab

sence of an appropriat e instruction directingthe “jury t o consider fully” mitigating evidence as it bears on the extent to which a defendant is undeserving of a dea t h sentence, “we cannot be sure” th at it did so. Id. , at 323

. As our dis c ussion of the delib erateness i ssue demo n strates, we did not limit our holding in Penry I to mitigat

ing evidence that can only beviewed as aggra v ating

.20 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### When the evidence proffered is double ed ged, or is as likely to be viewed as aggra v ating as it is as mitigating, the statute most obviously fails to provide for adequate consideration of such evidence. 16 

### The former special issues (as composed at the time of both Penry’s and Cole’ s sentencin gproceedings) provided an adequate vehicle for the evalu a tion of mi tigating evi

dence offer e d to dispro ve deliberat eness or future danger

ousness. A s Judge Reavley noted in his opi n ion for th e Court of Appeals in Pe nry I , however, they did not tell the jury as to what “to do if it decide d that Penry, because of retardation, arrested e m ot ional developmentand a tro u bled youth, should n o t be executed.” Id., at 324 (internal quotation marks omit ted).

——————

16 It is al so c l earth at Penry I applie s in ca s e s involving evidence that is neit her dou b le edged nor purely a ggrav a t i ng, b e ca us e in s o me ca s e s a defendant’s evidence may have miti gating effect beyo nd its ability to negate the sp ecial issues. See, e.g. , T enn ar d v. D retk e, 542 U. S. 2 74, 288–2 89 (20 0 4) (h oldin gthat petit i on er w a s en titled t o a CO A on his Penrycla i m where his evi d ence of low IQ a n d impa ired int e llect ua l funct ionin gha d “ m it iga t ing dimens ion b e y o nd t h e impa c tithas on t h e in div i du al’s a b ili tyto ac t deliber ate ly”). In Tennard , the majority dec lin ed to ac c e pt th e disse n t ’s ar g u men tth at th e peti t i on er ’s ev idenc e of low intelligence did “not necessarily create the Penr y I ‘two-edged sw or d,’ ” and th ereforecouldbe given ad equate mitigating effect within the context of the future dan g er ou sn ess sp ec ial i ssu e. 54 2 U. S., a t 293 (Rehnq uis t , C. J ., diss ent i ng). Cf. Johnsonv. Texas, 509 U. S. 350, 38 6 (O’Conno r, J

. , dis s e nting), in t urn cit i ng Penry I , 492 U. S., at 35 5 (S CALIA , J ., concu rrin gin pa rta n d diss ent i ng in pa rt) (“ The Courtt o day holds t h a t‘t h e cons t i t u t i ona lit y t urns on whet h er t h e [s pecia l] q u es tion s allowmi tig atin gfac t or s n o t on lyto b e c o n s ider ed .

. . , but also to b egiven effe ct in all possib le ways, in clu d in g ways t h at th e q uest ions do not pe rmit ’ ” (emphasi s in original)); cf. al so Smithv. Texas , 543 U. S. 37, 4 1 , 46–4 8 (200 4) (per curiam)(reversing the CCA’s denial of po stconvict i on reli ef b e ca us e t h e s p ecia l issues did not provide an adequate vehicle fo r ex pres s i ng a“ ‘rea s o ned mora l res p ons e ’ ” to petition er ’s ev iden c e of lowIQ an d a tr ou bled u p br in g i n g).21 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### V In recommending denial of Cole’s application for collat

eral relief, the Texas trial judge did not ana lyze Penry I itself. Un der the f r amework setforth in Pe nr y I , 17

### the testimony of Cole’s mother and aunt, as well as the po r tions of the expert test imony sugg esting that his danger

ous character may have been the result of his rough child

hood and p o ssibl e neu r ological da mage, were not releva nt to either of the special verdi ct qu estions, except, possibly, as evidence supportin gthe State’s argume nt that Co le would be d angerous in the future. This woul d not satisf y the requirement of Penry I , however, thatth e evidence be permitted i t s mitigati ng force b e yond the scope of th e special iss u es. Ther efore, it would have followed th at those quest ions failed to provide th e jury wi th a vehicle for expressing its “reasoned moral response” to that evidence. Instead of relying on Penry I , th e trial judg e relied on three later Texas cases and on our opinion in Grah a m v.

——————

17 The lynchpin of T HE C HI EF J US TI CE ’s diss en t is h i s assu mption th at J u s t ice O’Connor’s opinionsin Franklin an d Penry I merely des crib e d t w o a d hoc j u dgment s
— s e e post , at 2, 5 –6—r ath erth anh e run der

s t a n ding of t h e gover n ing r u le of la w a nnoun ced in Lo ck ett , Edd i ngs, an d Hitchco ckv. Du g

ge r , 481 U. S. 393 ( 1 987). Inh i s v i ew , ou rlin e of cases in this area has flip-flopped, depending on the compositionof the major i ty , r ath erth anslow lydefin i n g c o re pr in c i ples byelimin atin g th ose in ter p r e tation s of th e r u l e th at ar e u n s u ppor table

. Th e fac tth at J u s t ice O’Connor’s unders t a n ding of t h e la w was confirmed b yt h e Courtin Pe nry I in 1989—well before AEDPA was enacted—is a suffi

cientres p ons e t o mos tof t h e rhet o ric in t h e dis s e nt

. Neit her J u s t ice O’Conno r’s opinion for t h e C o urtin Penry I , nor a n y ot h e r opinion s h e joined, ever endorsed the “ ‘ somear g u able r e lev a n c e ’ ” pos i tionde sc r ibed byT HE C HI EF J US TI CE , see post , at 7, 16, w h i c hmistak en lyin ter p r e t s ou ropin ion as adoptin gth e r u l e th at the dissen t er s i n Franklinand Safflewould have chos e n, s ee post , at 7, 16. Th e f a c tth at th e Cou r t neverendors e dt h a tb r oa der s t a n da rd is fully co ns is t e ntwit hour conclus ion t h a tt h e na rrower rule a pplied in Penry I it self i s “clearly es t a b l is hed.” Argument s a dva nced in la t e r dis s e nt ing opinions do not affect that conclusion.22 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### Collins , 50 6 U. S. 461 (1993), as having he ld that nin e different categories of miti gating evidence—including a troubled family background, bipolar disorder, low IQ, substance abuse, paranoid persona lity disorder, and child abuse—were sufficiently conside r ed under the Texa s special issu es. 18

### App. 15 9–160. Applying those cases, the judge defined the leg a l issue “whether th e mitigating evidence can be sufficiently considered” as one that “must be determined on a case by case basis, depending on the nature of the mitigating evidence offered a n d whether there exists other testimony in the record tha twould allow consideration to be given.” Id., at160. As we have noted, in endorsing this form ulation of the issue, neither the tri al judge nor the CCA had the benefit of any inp u t from coun

sel representing petiti oner. See Part II, su pra . In ou r view, denyi n g relief on the basis of that form ulation of the issue, whil e ignoring the fundamental principles estab

lished by our most relevant precedents, resulted in a decision that was bot h“contrar yto” and “involved an unreasonab le application of, clea rly established Federal law, as det e rmined by the Sup r eme Court o f the Unite d States.” 28 U. S. C. §2254(d).

——————

18 The Te xa s ca s e s relied uponb yt h e cou r t were Garciav. State , 919 S. W. 2d37 0, 398–3 99 (Tex

. Cr im. App. 1 996) (enban c ) (h oldin gth at, in lightof t h e fa ctt h atGa r c iareceived a “ P

enry” ins t ruct ion (include d in t h e a m ended Texa s s p ecia l iss u es ), which ins t ruc t e d t h e j ury t o consider the defendant ’s character and background in determining w h e th erto im pose l i fe r ath erth andeath , h e w a s n o t en titled to an y s p ecia l ins t ruct ions req u iring t h e j u r yt o c o ns ider his dr ug us e, a l coho l

ism, an d fa mil y bac kg r o u n d as mit i g atin gev iden c e); Mi n e s v. State , 8 88 S. W. 2d 8 16, 818 (Tex . Cr i m . App. 19 94) (enban c ) (h oldin g , onr e ma n d after Johnson , th at M i n e s’ mitig a tin gev ide nce of b i pola r dis o rder wa s “well within the effective re ach of the jury”); and Zimmerman v. Stat e , 881 S. W. 2d 360, 362 (Tex . Cr im. App. 1994) (enban c ) (h oldin g , also on rema nd a f t e r John son , th at Z i mmer m an ’s “mitig at in g” ev iden c e of low IQ, pa s ts u bs ta nce ab u s e , a dia g nos i s of pa ra noid pers ona lit y dis o rder, a n d adis ruptive fa mily environmen tdid notwa rra nta na ddit i onal ins t ruct ion un der Joh nso nor Pe nry I ).23 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### The state court’s prim ary reliance on Graham , to the exclusion of our other cases in this line of jurisprudence , was misguided. In Graham , we held that gra n ting collat

eral relief t o a defendant who had been senten ced to death in 1984 would require the announcement of a new rule of constitutional law in contravention of Teaguev. Lane, 4 89 U. S. 288 (1989). In reaching th at conclusion we relied heavily onthe fact that in 198 4 it was r e asonabl e f o r judges to r e ly on the interpreta tion of Jurekthat th e plurality had espoused in Franklin

. See 506 U. S., at 468– 472; see als o n. 15, su pra . But a s we have explained, in both Franklinand Penry I , a majority of the Court ulti

mately rejected the plurality’s interpretatio nof Jurek

. Neither Franklin nor Penry I wa s inconsistent with Gra

ham ’s narrow holding, but they do suggest that our later decisions—i n cluding Johnsonv. Texas, 509 U. S. 350 (1993), in which we refused to adopt the rule that Graha m sought 19

### — are of more r e levance to Cole’s case than Gra

ham

. The relevance of those cases lies notin their re

sults—in several instances, we concluded, after applyi ng the relevant law, that the special issues provided for adequate consideration of the defendant’s mitigatin g evidence 20

### —but in their failure to disturb the basic legal principle that continues to govern such cases: The jur y must have a “meaningful basis to consider the relevant mitigating qualities” of the defendant’s proffered evi

dence. 21 

### Johnson, 509 U. S., at 369; see als o Graham , 506

——————

19 G r a h a m c l aimed th at th e Tex as sy stem h a d n o t “allow e d for ade

q u a t e cons idera t i on of mitiga t i ng evidenceconce rnin ghi s yout h, fa mily bac kg r o u n d , an d positiv e c h a r a c t ertr aits ” ; in Joh nson , we declined t o a d opt s uch arule, even wit h outt h e Teagu ebarth atpr ev en ted u s fr o m doing so in Grah a m . 509 U. S., at 365 –36 6

.

20 Th is fac tsh o u ld be r e as su r i n gto th ose w h o fearth at th e r u l e w e endors e t o da y—a n d which we have e n do rs ed s i nce Pe nry I —“ would req u ire ane ws e nt encingi neve r yca s e .” Post , at 8 (R OBERTS , C. J

. , dissen t in g)

.

21 A ju r ymaybe pr ec lu ded from doin gso not on lyas a resu lt of th e24 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### U. S., at 474 (explaini n g that Penry was entitled to addi

tional instr u ctions “[b]ecause it was imposs ible [f or the jury] to gi v e meaningful mitigating effect to Penry ’ s ev i

dence by way of answering the special issues”)

. Before turning to those more recent cases, it is appro

priate to identify the reasons why the CCA’s ruling was not a reasonable appli c ation of Penry I itself. First, the ruling ignored the factthat ev en though Cole’s mitigating evidence may not have been as persuasive as Penry’s, it was relevant to the question of Col e ’s moral culpability for precisely the same reason as Penry’s. Li ke Penry’s evi

dence, Cole’ s evidence of child hood deprivati o n and lack of self-controldid not re but either deliberaten ess or future dangerousness but was intendedto provide the jury with an entirely different reasonfor not imposing a death sentence. Second, the judge’s assumption thatit would b e appropriate to look at “othertestimony in the record” to determine whether th e jury coul dgive mitiga ting effect t o the testimony of Cole’s mother and aunt is neither reason

able nor su pported by the Penryopinion. App. 160. Third, the fact that the jury c o uld gi ve mitigating effect to some of the expe rts’testimony, namely, their predictions that Cole could be expected to become less dangerous as he aged, provi d es no support for the conclusion that the jur y understood it could give such effec tto other portions of t h e experts’ testimony or t hat of other witnesses. In sum, the judge ignored our ent i re line of cases establishing the importance of all o wing juries to give meaningful effect to any mitigating evidence providing a basis for a sentence of life rather than death. His recom m endation to the CCA was therefore unsupported by either the text or the rea

soning in Penry I

.

—————— ins t ruct ions it is given, b u t a l s o a s ares u ltof pros ecut oria l a r gument dictating that such consideration is forbidd e n. See Part VI, infra

.25 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### VI The same principles originally set forth inearlier cases such as Lockettand Ed dingsha ve been articulated explic

itly byour l a ter cases, which ex plained that t h e jurymu st be permitted to “consider fully” such mitigat i ng evidence and that such consideratio n “would be meaningles s ” unless the j u ry not only had such evidence available to it, but also wa s permittedto gi ve tha tevidence meaningful, mitigating effect in imposing the ultimate sentence. Penry I

, 492 U. S., at 321, 323 (internal quotation marks omit

ted); Grah am , 506 U. S., at 475 (ackno wledging that a “constitutional defect” has occurre d not only when a ju ryis “precluded from even considering certain typ e s of mitigat

ing evidence,” but als o when “the defendan t’ s evidence [i]s placed before the sent encer but the sent encer ha[s ] no reliable means of giving mi tigating eff e ct to tha t evidence”). Four of our more recent cases lend support to the con

clusion that the CCA’s decision was unsupported by either the text or the reasonin g of Penry I

. 22 

### In Johnsonv. Texas, we held that the Texas special i ssues all o wed adequate consideration of petitioner’s yout h as a mitigating ci rcu m stance. Indeed, we t h ought it “strain[ed] credulity t o suppose th at the jury would have viewed theevidence o f petitioner’s youth as ou tside its effective reach ” because its relevance was so obvious. 509 U. S. , at 368. There is of course a vast difference between youth—auniversally applicable mitigating circumstan c e that every juror ha s experienced and whichnecessarily is transient—and th e

——————

22 Beca us e T HE C HI EF J US TI CE ’ s on lyc o nc ern is w i thth e pr operappli

ca t i on of AEDPA, he findsitunneces s a ry t o define th e rule t h a t he th in ks post- Penry I c a ses eith erdid orshou ldhave applied. What is mos treleva nt underAEDPA, howeve r, i s t h e holding s s e tfort h in ma j o rit yopinions , ra t h er t h a nt h e views of dis s e nt ers who s u pport ed a different und erstanding of the law at the time those opinions were writ t e n.26 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### particularized childhood experiences of abuse and neglect that Penry I and Cole described—which presumably mos t jurors have never experienced and which affect each indi

vidual in a distinct ma nner. Evidence of youth, moreov er, has special rel e vance to the question of future dangerousness. A criti c al assump

tion motivating the Court’s decision in John sonwas that juries would in fact be able to give mitigating effect to t h e evidence, albeit within the confines of the s p ecial issue s . See 509 U. S., at 370 (“If any j u rors believed that the transient qualities of petitioner’s youth ma de him les s culpable for the murder, there is no reasonab le lik elih o o d that those jurors would have deemed the m selves for e closed fro m considering that in evaluati n g petitioner’ s future dangerousness”). Prosecutors in som esubsequen t cases, however, have undermined this assumption, taking pains to convince jurors that the law compels them t o disregard the force of evidence offered in mitigation. Cole’s pros ecution is i llustra tive: the State made jurors “promise” they would look onlyat the questi o ns posed b y the special issues, which, according to the prosecutor, required a j u ror to “ p ut. . . outof [his] mind” Cole’s miti

gating evid ence and “j ust go byt h e facts.” Supra , at6. Arguments lik e these a r e at odds with the Court’ s under

standing in Johnsonthat juries could and would reach mitigating evidence proffered by a defendant. Nothing i n Johnsonforecloses reli ef in these circumstan c es. See 509 U. S., at 36 9 (“Penryre mains the l a w and mu st be given a fair reading”). This conclusion derives further s u pport f r om the fac t that, in Johnson , the Court understood that the defen

dant’s evidence of youth—in clud ing testimony from his father that “his son’s actions were due in large part to hi s youth,” id. , at 368, and counsel’s corresponding arguments that the defendant could c hange as he grew older—was “readily co mprehended as a miti gating fa cto r,” id. , at36 9 ,27 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### in the context of the special issue s . The evidence offered in this case, however, as well as t hat offered by the peti

tioner in Brewe r , post , at 2–3, and n.1, is cl os er in nature to that offered by the defendant in Penry I than that at issue in Johnson

. Wh ile the cons ideration of the defen

dant’s miti gating evidence of youth in Johnsoncould easily have directed j u rors towa rds a “no” answer wit h regard to t h e question of future dangerousness, a juror considering Cole’s evidence of childhood neglect and aban

donment and possible neurological damage or Brewer’s evidence of mental ill ness, substance abuse, and a trou

bled childhood could feel compel led to provide a “yes” answer to the same question, finding himself without a means for giving meaningfuleffect to the mitig a ting quali

ties of suchevidence. 23 

### In such a case, there is a reason

able lik el ih ood that the special iss u es would preclude that juror from giving meaningful consideration to such miti

gating evid ence, as required by Penry I

. See Johnson , 5 09 U. S., at 36 7 (explaining that in Boydev. California , 4 94 U. S. 370, 380 (1990), “we held that a reviewing cour t must determine ‘whether there is a reasonable likelihood that the jury has applied the challenged inst ruction in a

—————— 23 We ca me t o t h e s a me concl us ion in Gra h a m , a f t e r dis t inguis hing the defendant’s mitigating e v idence in that case from that offered by the defendant in Penry I:

“ T he j ury wa s notforb i dden t o a ccept t h e s u gges t ion of Gra ha m’s law y er s th at h i s br ief spas m of c r i min a l ac tiv i tyin M a y1981 w a s properly viewed, in light of his yo ut h, his b a c kground, a n d his cha ra c ter , as anabe r r ationth at w a s n o t likelyt o be r e peated. Ev enif Gr a ha m’s evidence, like Penry’s , ha d s i gnificance b e yond t h e s c ope of t h e firs ts p ecia l is s u e, itis appa rentt h a tGra ha m’s evidence— un like Penry ’s —ha dmit i gat i ng rel e va nce t o t h e s e cond s p ecia l is s u e conce rn ing his likelyfut ure da ngerous n es s . Wherea s Penry’ s evidence com

pelled anaffi r m ativ e an sw erto th at in qu ir y , despite its m i tig a t i n g s i gnifica nce, Gra ha m’s evidence q u it e rea d ily could have s u pport ed a n e g ativ e an sw er .” 506 U. S., at 475 –4 76.28 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### way that prevents t h e consideration of constitutionally relevant evidence’ ”). In three lat e r cases, we gave Penry I the “fair reading” required by Johnsonand repudiated several Fifth Circuit precedents providing the basis fo r its narrow reading of that case. First, in our review of Penry’s res e ntencing, at which the judge had supplemented the special issues with a nullif ication instruction, we ag ain concluded that the jury had not been provided with an adequate “vehicle for expressing its reasoned moral res p onse” to h i s mitigating evidence. Penryv. Johnson, 532 U. S. 782, 797 (2001 ) (Penry II)

. Indeed, given that th e resentenc i ng occurre d after the en actment of AED PA, we concluded (contrar yto the views of the Fifth Circuit, wh ich had denied Penry a COA) that the CCA’s judgment af firming the death sen

tence was objectivel yunreason able. Id., at 803–8 04. Second, and as we have already noted, in Tennardwe held that the Fi fth Circuit ’s test for identifying relevant miti

gating evidence was i n correct. 542 U. S., at 284. Mos t recently, in Smithv. Texas, 543 U. S. 37 (2004) (per c u riam) , and again contrary to the views of the Fifth Circui t , we held tha ta nullification instruction that was different from the one used in Penry’s se cond sentencing hearing did not foreclose the defendant’s claim that the special issues had precluded the jury from “expressing a ‘ r easoned moral response’ to allof the evid ence relevant to the d e fendant’s cu lpability.” Id. , at 46

. VII Our line of cases in t h is ar ea has long recognized tha t before a jury canundertake the grave tas ko f imposing a death sentence, it mu st be all o wed to consi d er a defen

dant’s moral culpabili ty and deci de whether death is a n appropriate punishmen tfor that i n dividual in light of his personal hi story and characteristi c s and the circumstances29 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt 

### of the offen s e. 24 

### As Chief Justice Burger wrote in Lockett: “There is no perfect p r ocedure for deciding i nwhich cases governmental authority should be used to im

pose death. But a statute that prevents the se ntencer in all capital cases from giving independent mitigat

ing weight to aspects of the defendant’s chara cter an d record and to circumst ances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of f

a ctors which may call f o r a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” 438 U. S., at 605. Our cases f o llowing Lockett ha ve made clear that when t h e jury is not permitted t o gi ve meaningful effect or a “rea

soned moral response” to a defe ndant’s mi tigating ev i

dence—because it is forbidden from doing so by statute or a judicial interpretati on of a statute—the sentencing process is f a tally flawed. 25

### For that reason, our post- Penry

——————

24 In Graham , w e ac kn ow ledg ed th at Penry I did not “e ffec[t] a sea c h a n g e inth isCou r t ’s v i ew of th e c o n s titu tion ali t yof the for m er Tex a s deathpen a ltystatu te.” Graham , 506 U. S., at 474. Th e r e ason , of cours e, t h a tt h is wa s nott h e ca s e is b e caus e t h e rule s e tfort h in Penr y I was merely an applica t ionof the set t le d Lock ett

- Eddings

- Hi tchcock rule des crib e d b yJ u s t ice O’Connorin he r o p inions

.

25 With ou t maki n gan yattemp t to ex pl ainh o wth e ju r yineith erth is ca s e or in Brewerv. Qua rte r man , post , p. __, could hav e given “ m ea n ingful effect”or a “reasoned moral response” to either defendant ’ s mit i gat i ng evidence, T HE C HI EF J US TI C E concludes his dis s e ntby la ment ing t h e fa ctt h att h e views s h a r ed b yJ u s t ice O’Connor ’ s concu r rencea n d t h edis s e nt ers in Franklin i n 198 8—an d lat e ren dor s ed i n PenryI—“ac tu allyr e pr esented ‘c lear lyes tabl ish e d’ feder al lawat th a t time. ” Post , a t1 6

. To his cr edit , his concl uding s e nt enc e does notgo s o faras to sta t e th at h e fav o rs a “ tunc p ro nun c” rejection of those views, an endorsement of the views expr essed byth e fourdissen t er s in Pe nry I, or even a g r eementwit hthe Fift h Ci rcuit ’ s recent ly rej e ct ed t e s tfor ident i fying rel e va ntmit i gat i ng eviden ce. S e e Nelsonv. Quart erman ,30 ABDUL-KABI R v. QUARTERMAN Opinion of t h eCourt 

### cases are f u lly consistent with o u r conclusion that th e judgment o f the Court of Appeals in this ca se must be reversed. The case is remanded for furtherproceedings consistent with this opinion. It is so orde red.

—————— 472 F. 3d 2 87, 291 –29 3 (20 0 6 ) (enban c ) (rec og n i zin gth e “n ow -defu nc t” na t ure of t h e Fift h Circu it ’s “ ‘constitu t ional-relevance’ test” post

Tenna rdan d th at a “ ‘full-ef fect’ ” stan d a r d—mean i n gth at “a ju r o rbe able to ex pr ess h i s r e ason ed mor a l r e spon se to ev iden c e th at h a s mitig a tin gr e l e v a n c e bey o nd th e sc ope of th e spec ial issu es”—w a s “c lear lyesta bl ish e d” forpu r p oses of A E D PA in199 4, w h e nNelson ’s convict i onb e c a me fina l)._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007)

R OBERTS , C. J., dissen t in g 

# SUPREME CO URT O FTHE UNI TED STATES

Nos. 05– 11 284 an d 05–1 128 7 

### JALIL AB DUL-KABIR, FKA 

### TED C ALVIN C O LE, PETITION ER 05–11284 v. NAT H A N IEL QUAR T ERMA N , DIRECT OR, TEXA S

DEPARTM E NT OF C R IMINAL J U STIC E, C O RRECTI O NAL INSTITU T IONS DIV I SION

BRE NT RA Y

BREWE R , PETITIONER 05–11287 v. NAT H A N IEL QUAR T ERMA N , DIRECT OR, TEXA S

DEPARTM E NT OF C R IMINAL J U STIC E, C O RRECTI O NAL INSTITU T IONS DIV I SION ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [Apr il 25, 20 0 7 ] 

### C HIEF 

### J US TICE 

### R OBERTS 

### , with whom J UST I CE 

### S CALIA 

### , J USTICE 

### T HOMA S 

### , and J USTICE 

### ALI T O 

### join, dissenting. A jury imposed a sen t ence of de ath in eac hof thes e cases, despite hearing mitigating evidence from the defen

dants about their trou bled backgrounds. Th e convictions and sentences were u p held on d i rect revie w . On s t a t e collateral review, each defendant claimed that the jur y instructions did notallow sufficient consider ation of th e mitigating evidence. This Court had considered similar challenges to the sameinstructions no f e wer than five times in the years before the state habeas courts consid

ered the challenges at issue h e re. See Jurekv. Texas , 42 8 U. S. 262 (1976); Fra nklinv. Lynaugh , 48 7 U. S. 16 4 (1988); Penryv. Lynaugh , 492 U. S. 302 (1989) (Penry I );2 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### Graham v. Collins , 506 U. S. 461 ( 1993); John sonv. Texas , 509 U. S. 350 (1993). Four of the cases rejected the defen

dant’s chal lenge. Only one— Penry I —upheld it. The guidance th e Court gav e in these five cases on whether th e jury instru c t ions at issue allowed sufficient consideration of mitigating evidence amounted to—it de pends. It de

pends on th e particularcharac teristics of the e vidence in a specific case. The state courts here rejected the claim as applied to the par t ic ular mitiga ting eviden ce in these cases, and the defenda n ts sought federal habeas review. Under the Antiterroris m andEffective DeathPenalty Act of 1996 (AEDPA), however, a state-court decision ca n be set aside on federal habeas re view only if it is “contrary to, or involved an unreasonabl e application of, clea rly establishedFederal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). When this Court considers sim ilar challenges to the same jury inst ructions five separate times, it usually is not because the applicable legal rul e s are “clearly estab

lished.” The Court tod a y nonetheless picks fr om the five precedents the onetha truled in f a vor of the defendant— Penry I —and anoints thatcase as the on e embodyi n g “clearly est ablished Federal law.” In doing so the Court fails to give any meaningful weight to the two pertinent precedents subsequen tto Penry I

— Graham an d Johnson— even though those cases adopted a more “lim ited view” of Penry I tha nthe Court embraces today. Johnson, supra , at 365. Indeed, the reading of Penry I in Graham an d Johnsonprompted every one of the remaini n g Justices who had been in the majority in Pe nr y I on the pertinent question to dissent in Grah a m and Johnson , on the ground that the Court was failing to adhere to Penry I

. I suppose the Court to day is free to ignore th e import of Graham an d Johnsonon the question of what PenryI means, but in 1999 or 2001, respectively—when petition

ers were denied collateral re lief—the state courts did not3 Cite as: 55 0 U

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R OBERTS , C. J., dissen t in g 

### have that luxury. Th ey should not be faul ted today for concluding—exactly a s the Grah a m and Johnsondissent

ers did—th at the Court had cu t back sign ificantly on Penry I

. We give ourselves far too much credit in claiming tha t our sharply divided, ebbing and fl owing decis i ons in this area gave rise to “clearly est ablis hed” federal law. If the law were in deed clearly established by our deci sions “as of the time of the relevant state-cour t decision,” William sv. Taylor , 529 U. S. 362, 412 (2000), it should not take th e Court more than a doz e n pages of close ana lysis of plural

ity, concurring, and even dissenti n g opinions to explain what that “clearly established” law was. An te , a t10–2 4. When the s t ate courts considered these cases , our prece dents did not provide them with “clearly established” law , but instead a dog’s breakfast of divided, conflicting, and ever-changi n g analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, p l urality, concurrence, or dissent from case to case, repea t edly lamenting th e failure of their colleagues to follow a consistent path. Wh atever the law may b e today, the Court’s ruli ng that ’t w a s always so—and tha t state courts were “objectivelyun reasonable” not to kno w it, William s , supra , at 4 09—is utterly revisionist. I In 1987, Jalil Abdul-Kabir—refe rred to by his given name, Ted Calvin Cole, throughout this opinion, ante , at1, n. 1—was c o nvicted of capital murder after he confessed t o strangling 66-year-old Raymond Richardsonwith a dog leash to steal $20 from him. Among the 21 claims Cole raised on state collateral review was a challenge unde r Penry I , 492 U. S. 302, to the application of Texas’s special issue jury instructions. In evaluating Cole’s challenge, the state habeas trial court stated: “The issue is whether the sentencing jury hadbeen4 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### unable to give effect to [Cole’s] mitigating evidence within the confines of the statutory ‘special issues.’ While [Penry I ] held that evidence of a def e ndant’s mental retardation and abused chi l dhood coul d not be given mitig a ting effect by a ju ry wi thin the fra m ework of the special issues, the cases th at followed such as Graham v. Collins , [506 U. S. 461] (1993), Garcia v. Sta t e , 919 S. W. 2d 370 (1996), Mines v. Sta t e , 888 S. W. 2d 8 16 (1994), and Zimmerman v. State , 8 81 S. W. 2d 36 0 (1994) held that the mitigating evidence of alcoholis m, drug abuse, bad fa mily background, bi

polar disorder, low I.Q., substance abuse, headinjury, paranoid personality disorder and child abuse were sufficiently considered under the special issue s . The issue of whether the mitigating ev idence can be suffi

ciently considered must be determined on a case by case basis, depending on the nature of the mitigatin g evidence off e red and whether there exists oth e r testi

mony in the record th at would al low consideration to be given.” App. in No. 05–11284, pp. 159–160. Applying that standard, th e state court concluded tha t “[t]he evidence presented at the p unishment stage of th e trial, especially evidence from [Cole’ s] expert witnesses, provide[d] a basis for the jury to sufficiently consider the mitigating evidence.” Id., at 16 1. The Te xas Court of Criminal Appeals adopted the trial court’s findings wit h

out substantive comment, and denied Col e ’s application for habeas corpus relief on November 24, 1 999. Id., at 178–179. In finding that the stat e court’s de cision was objectively unreasonab le, the Court begins by stating that the princi

ple the state court violated was “firmly established,” based on “[a] care ful review of our jurisprudence in this area.” Ante , at 10. The only thing clear about our jurisprudence on the pertinent questi o n in 1999, however, is that it wa sCite as: 55 0 U

. S. ____ (2007) 5 R OBERTS , C. J., dissen t in g 

### unsettled and confused. In Jurek , the Court upheld Texas’ s use of the special issues a s fa cially constitutional, with the controlling opin

ion noting that “the constitutionality of the Texas proce

dures turns on whether the enumerated ques t ions all o w consideration of particularize d mitigating factors.” 4 28 U. S., at 272 (joint opinion of Stewa rt, Powell, and S TEVE NS 

### , J J .). In so doing, Jurekleft open the possibil i t y that some mitigating evidence might not be within th e reach of th e jury unde rthe speci a l issues; other ty pes of mitigating evidence, of course, would be. Cf. id., at 272– 273 (suggesting that the future dangerousness special issue allowed the juryto consider prior c r iminal conduct , age, duress, and whether the def e ndant was under ex

treme mental pressure). The next occasion the Court had to consider mitigating evidence under the Te xas special issues arosein Franklin , in which th e Court con c luded that the defendant’s mitigat

ing evidence of good behavior in prison was taken into account under the future dangerousness speci a l issu e. 48 7 U. S., at 178–179 (plurality opinion); id., at 186–187 (O’Connor, J., concurring in judgment). A p l urality of t h e Court also rejected the argument that a jury must be permitted t o give “ind epende nt” effect to mitigating evi

dence—beyond the special issues—concluding that “this submissionis foreclos ed by Jurek” and reje cting the di s sent’s argu ment to the contrary. Id., at 1 79–180, an d n. 10; see a l so id., at 19 9–200 (S TE VENS 

### , J., di ssenting). The Court today place s great weight on the opinion by Justice O’C o nnor concurring in t h e judgmen tin Franklin , an opinion joined only by Justice Blackmun. Ante , at 15 – 18. That separate opinion expressed “doubts” about the plurality’s view that mitigating evi d ence need not be given effect beyond the special issues , noting that if the peti

tioner in Franklinhad introduced evidence not coveredb y the special issues, “we would have to decide whether th e6 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### jury’s inability to gi ve effect to that evidence amounted to an Eighth Amendment violation.” 487 U. S., at 183, 18 5. The separate opinion c o ncluded, however, that “this is not such a case.” Id., at 1 85. Accor d ing to the C o urt today, a discerning state judge should have seen tha tfederal la w was “clearly established” on the point by the concurri n g and dissenting opinion s , not the plurality. Ante , at 15–18

. Penry I , decided the f o llowing Term, conclud e d that in that ca set h e Texas instructions did not allow the jur y to give mitiga ting effect t o evid ence of Penry’s mental retar

dation and abusive childhood. 492 U. S., at 328, 315 (“Penry doe s not .

. . dispute that some types of mitigating evidence can be fully c o nsidered by the sentencer in the absence of s p ecial jury instructions. Instead, Penry argues that, on thefacts of thi scas e , the j u ry was un able to fully consider and give effec tto the mitigating evidence .

. . in answering the three special issues” (emphasis added; citations omitted)). In grant ing relief, the Court, quotin g the Franklinconcurrence, noted that Penry’s evidence
“ ‘had relevance to [his ] moral culpability beyond the scope of the special verdict questions,’ ” 492 U. S., a t322 (quot

ing 487 U. S., at 185 (O’Connor, J., concurring in judg

ment); some alterations delete d), and that it was relevan t to the special issues “only as an a ggr ava t ing factor.” 49 2 U. S., at 323 (emphasis in original). According to th e Court toda y, the view s of the Franklinconcurrence and dissent were thus elevated to the opinion of the Court in Penry I , again clearly establishin gfederal law. Ante , a t 17–18, and n. 15. The four dissenters in Penry I co m plained that the Court’s holdin g “flatl y c o ntradic[te d] ” Jurek , and that infinding a constitutional violation, th e Court was “throwing away Jurekin the p r ocess.” 492 U. S., at 35 5, 354 (S CALIA 

### , J., concurring in part and dis

senting in part). A state court look ing at our pertinent precedents on the Texas special issue instructions w o uld next h a ve to con

-Cite as: 55 0 U

. S. ____ (2007) 7 R OBERTS , C. J., dissen t in g 

### sider the significance of Safflev. Park s , 49 4 U. S. 48 4 (1990). That case—issued less t han nine months after Penry I —c onsidered Oklahoma instructions, but exte n sively analyzed Pen r y I in doing so. See 494 U. S., at 491– 492. The Court conclu ded that th e mitigating evidence i n that case could be adeq uately consi d ered by the jury under the instructions given. The four dissenters in Saffle— including the author of today’s opinion—complained tha t the majority’s discussi on of Penry I was “str angely remi

niscent” of the positi on of the Penry I dissenters. 494 U. S., at 504 (opinionof Brennan, J.). The Sa ffledissent

ers asserted that the majority’s f a ilure to reject the posi

tion of the Penry I dissenters “creates considerable ambi

guity about which Lockett[v

. Ohi o , 438 U. S. 586 (1978) ] claims a federal court may hereafter consider on habea s corpus revi ew.” 494 U. S., at 504–505. In Graham , decided three years later, the Court sough t to clarify t h e interplay between Jurek , Franklin , and Penry I : “It seems to us, howe ver, that reading Penryas peti

tioner urges—and thereby holding that a defendant is entitled to special instructions wh enever he can offer mitigating evidence that has somearguable relevance beyond the special iss u es—would be to requ ire in al l cases that a fourth ‘sp e cial issue’ be put to the jury:
‘ “Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe tha tthe death penalty should notbe im

posed?” ’ T h e Franklinplurality rejected preci s ely this contention, finding it irreconcilable with the Court ’ s holding in Jurek , and weaffi rm tha t concl u sion to

day .” 506 U. S., at 476–477 (citation omitted; second emphasis added). Thus, in Graham the Court rejected the reading of Frank

linand Pe nr y I that th e Court tod a y endorses, reasoning8 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### that it would require a new senten cing in every case, and would be i m possible t o square with Jurek

. 1 

### Although t h e Court to day tells us it was clear thatth e applicable federal law was established by the Franklin concurrence and dissent, and that Penry I had to be read in that ligh t , ante , at 17–18, the Court majority in Gra

ham specifi c ally relied instead upon the Franklinplurality in rejecting the same broad reading of Penry I the Cour t resuscitates today, nun c pro tunc
. Graham , su pra , a t476 – 477. The dissenters in Grah a m —i ncluding every remain

ing Membe rof the Penry I major i ty—we r e adamant that Penry I should have been controlli ng in Grah a m . See, e.g. , 506 U. S., at 507 (opi nion of S OUTER 

### , J., joined by Black

mun, S TEVENS 

### , and O’Connor, JJ.) (“Our description of Penry’s cla i m applies

. . . almos tprecisely to Graham’s claim”); id., at 508 (“[Graham’s] position is identical to that of Pen r y”); id., a t 512 (“Penrycontrols in this respect , and we should adhere to it”); id., at 520 (“[T]he case i s controlled by Pen r y”). The issue is not whethe r the major

ity or the dissenters in Graham were right about how to read PenryI , but whether it was reasonabl e for a state court in 1999 to read it the way the majority in Graha m plainly did. Later the s a me Term, in Johnson , the Court reaffirmed the “limited view of Penry” it had adopted in Graham

. 509 U. S., at 365. Once again the Court majority specifically relied on the Franklin plurality—not the concurrence an d

——————

1 In eva l ua t i ng t h e s t at e court ’s a n a l ys is , the Courtcrit i cizes its reli

a nce on Grah a m b e ca us e Graham primarily addresse d retroactivit y under Teag uev. Lane , 489 U

. S. 288 (198 9)

. Ant e , at 23. Bu t inc o n s id

er in g w h e th er th e r u l e r e quested w a s dic t ated bypr ec eden t, Gra ham of c o u r s e h a d to ev alu ate th e s c ope of th at pr ec eden t—in c l udin g Penry I — an d did so ex ten s iv ely

. See 506 U. S., a t467 –4 77. M o r e ov er, as ex pla i ned b e low, t h e Courtin John sonv. Texas, 509 U. S. 350, 3 7 0 –37 2 (199 3), adop t e d th e sa me r e adin gof Penry I adopted in Graham , wit h outcons idering t h eis s u e under Tea g ue .9 Cite as: 55 0 U

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R OBERTS , C. J., dissen t in g 

### dissent. See 509 U. S., at 370–371. And once again the dissenters—including every re maining Member of the Penry I majority—lamented the Court’s assert ed failure t o adhere to Penry I

. 509 U. S., at 385–386 (opinionof O’Connor, J ., joined by Blackmun, S TEVE NS 

### , a n d S OUTER 

### , JJ.). The dissent—by the Penry I author—ma de precisely the same point made bythe Co urt today about how to read the Franklinconcurrence and dis s ent. 509 U. S., at 385– 386. The difference, of course, was that in Johnsonthe point was made in dissent. It cannot have been “objec

tively unreasonable” f o r a state court, in 1999, to have been guide dby the J o hnsonmaj o rity on this question, rather thanby the dissent. In short, a state court reading our opinions would see an ongoing debate over the meaning and significance of Penry I

. That sta t e court would see fou rdissenters in Graha m and Johnson—including every re maining Member of t h e Penry I majority—arguing that the Court was failing to follow or sh arply limiting Penry I in those cases. On the flip side, th e state court would see four dissenters in Penry I

—every on e later joining the ma jorities in Graham an d Johnson—suggesting t hat the Penry I majority depa rt ed from Jurek

. It is in that context th at the Court today tells us that the state courts should have regarded PenryI as “clearly est ablished Federal la w, as determ ined by th e Supreme Court of the United States.” §2254( d)(1). The Court asserts that Grah a m and Johnsondid not “disturb the basic legal principle” at issue, ante , at 23, an d that we cit e no post- Penry I cases inconsist e nt with it s reading of that case, ante , at 17, n. 14. I do not under

stand how the author of today’s opinion cans a y that Gra

ham did n o t disturb the princip l e of Penry I , however, when he jo ined a diss ent in Gra ham stating that “[Gra

ham’s] position is ide n tical to that of Pen r y” and th at Graham’s case “is controlled by Penry .” 506 U. S., at 50 8, 520 (opinion of S OUTER 

### , J.) (emph a sis added). That woul d10 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### seem to suggest that Graham was inconsistent with Pen r y I

. I d o notunderstand how the author of today’s opinion can say th at Johnsonhad no effect on Penry I , when he joined a dissent in Johnsonstating that the majority opinion “upset our set t led EighthAmendment jurispru

dence.” 509 U. S., at 382 (opinion of O’Con n or, J.). Now Johnsonis dismissed a s just an application of “basic legal principle[s],” over whic h Justices can disagree, ante , at 23 ; back then i t“upset ou r settled Ei ghth Amen dment juris

prudence.” And what of Saffle ? There the author of t o day’s opinion joined a dissent clai ming that the majority was adopting the rule rejected in Penry I

. 494 U. S., at 504 (opinion of Brennan, J.). Again, that would seem t o suggest inc o nsistency with Pen r y I

. 2 

### In fact, Pe nr y I is not even consistent witht h e reading the Court a s cribes to it—in t hat ca se the Court concluded that a jury could only view Penry’s mitigating evidence as aggra v ating, and thus could not give the evidence any mitigating effect. 492 U. S., at 323 (Penry’s evidence was “relevant o n ly as an aggrav ati n g

factor” (emphasis in original)); see als o Graham , su pra , at 47 3 (“Although Penry’ s evidence of mentalimpairment and childhood abuse indeed had relevance to th e ‘future da ngerousnes s ’ inquiry, its relevance was aggrav ating only” (emphasis in original)). The Court concedes that Cole’ s evidence in the present case was not purely agg r avating, see ante , at 2 4

—————— 2 The Cou r tis corre ctt h a t“ [ w]ha tis mos treleva ntu n d e r AEDPA

. . . is th e h o ldin g s set for thinmajor i tyop in ion s , r ath er th anth e v i ews of dissen t er s . . . at th e time th ose opin ion s w e r e wr itten

. ” Ante , at 25, n . 22. Bu t th at mu s tin c l u d e th e ma jor i t yopin ion s inall th e per t in en t ca s e s , notj u stt h e lone one of t h e b unc h t h a truled in favor of t h e defendant. Here it must in clude th e subsequent majority opinions in Saffle , Gr ah am , and J o hn son , as well as in Pe nry I , a n d itwa s not objec t iv elyu n r e ason able fora state c o u r tto v i ew Saffle , Graham , an d John sonth e s a me w a ytoda y ’ s au th ordid at th e ti me —orat leas t t o conclude t h a tt h e Court ’s c urre ntview o f Penry I wa s nota s clea rly esta bli s h e d as th e Cou r tw o uld h av e it toda y .11 Cite as: 55 0 U

. S. ____ (2007)

R OBERTS , C. J., dissen t in g 

### (“[T]he jury could give mitiga ting effect to some of the experts’ tes t imony”), t hus drawin g into even starker co n trast the rule that was establis hed by a fair reading of Penry I in 1999 vers us the rule the Court today rea d s Penry I to have “clearlyestablished.” As might be expected in light of the foregoing, judg e s called upon to apply t h ese precedents were confused by the ambiguity of this Court’ s pro n ouncemen ts. See, e.g., Minesv. Texas , 888 S. W. 2d 81 6, 820 (Tex. Crim. App. 1994) (Baird, J., concu rring) (“The Supreme Court’s hol d

ings in Penry , Graha m and Joh n sondo not provide an analytical framework to determine when our capital sen

tencing sch e me fails to allow the jury to consider and giv e effect to mitigating evidence .

. .”); see also Brewe rv. Dre tke , 442 F. 3d 273, 279, n. 16 ( CA5 2006) ( per cu riam ) (remarking, in applyin g Graham an d Pen r y I , that “[ t]her e is no easy way to locate [the defendant] at either pole”). Commentators at the time likewise concluded that Gra ham and Johnson“put a cap on Penry ’s principles.” Denno, Testing Pe nr y and Its Progeny, 22 Am. J. Crim. L. 1, 10 (1994) (“In Graham , the Cour t made clea r thatit did not interpr e t Penry‘as effecting a sea change’ in its evaluation of the constitutionality of the former Texas death penalty statute .

. .”). See also Twenty-Eighth An

nual Review of Criminal Procedure, 87 Geo. L. J. 175 6, 1770 (1999) (“The possible reach of Pen r y has been cir

cumscribed by [ Graham ] and [Johnson ]”). It is afa miliar ada g e that his t ory is written by th e victors, butit goes too far to claim that the meaning and scope of Penry I was “clearly established” in 1999, espe

cially in the wake of Graham an d Johnson

. In applying AED PA, w e have recognized that“[a] federa l court ma y not overrule a state court for sim p ly holding a view diffe r ent from its own, when the precede n t from this Court is, at best, ambiguous.” Mitchell v. Esparza , 540 U. S. 12, 17 (2003) ( per curiam ); see also Lockyerv. Andrade , 538 U. S.12 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### 63, 72–73 (2003) (declining to f i nd federal law “clearly established” when “our precedents in [the] a r ea have n o t been a mod e l of clarity”). When the state courtr ejected Cole’s claim, it knew tha t mitigating evidence of mental retardation and severe childhood abuse could not be given effect under the special issues, Penry I , 492 U. S., at 3 28, but tha tevidence of youth and a transient upbringing could be, Graham, 5 06 U. S., at 47 6; Johnson, 509 U. S., at 368. Th e court con

cluded thatCole’s mitigating evid ence—a troubled child

hood and “impulse control” disorder—was more like that considered in Johnsonand Graha m than in Penry I

. And because Col e ’s mitigating evid ence was not as troubling a s that at issue in Penry I , the state court did not act unrea

sonably in concluding that the co llateral damage of hi s upbringing and impulse control disorder woul d, like youth in Johnson , dissipate over time, so that Cole would be less of a dangerin the future. It is i rrelevant that the il l ef

fects of Co le’s upbringing andimpulse control disord er might not wear off for some time—there was no suggestion in Johnson that the petitioner in that case would become less dangerous any time soon. In other w o rds, our p r ecedents—w hich confi r med tha t the permanence of a mitigating feature wa s highly rele

vant, and that the c o rrect ans wer was acase-specific matter tur n ing on the particular facts—did not provide a clear answ e r, because the partic u lar evidence before the court fell somewhere between the guideposts establishe d by those precedents. As we have recognized, “the range of reasonable judgment can depend in part on the nature of the relevant rule.

. . . [Some] rules are more general, and their meaning must emerge in application over the course of time.” Yarborough v. Alvarado , 541 U. S. 652, 664 (2004). See also Brownv. Payton , 544 U. S. 133, 143 (2005) (reviewing sta t e-court a pplication of Suprem e Court prec edent “to similar but not identical facts” a n dCite as: 55 0 U

. S. ____ (2007) 13 R OBERTS , C. J., dissen t in g 

### concluding that “[e]ven on the assumption th at its concl u sion was in correct, it was not unreasonable, and is there

fore just the type of decision thatAEDPA shields on ha

beas review”). The state court’s appr oach to the question was plainly correct; ind eed, we engaged in asimilar comparison in Graham its e lf in determining that the evidence presented in that case was cognizable under the special i ssues:

“Jurekis reasonably read as holdi n g that the circum

stance of yo uth is givenconstitutionally adequate con

sideration in deciding the special issues. Wesee no reason to r e gard the c i rcumstanc es of Graha m’s fam

ily background and positive chara cter traits in a dif

ferent light. Graham’s evidence of transient upbring

ing and otherwise nonviolent character more closely resembles Jurek ’ s evidence of age, employment his

tory, and familial ti es t han it does Penry’s evi d ence of mental retardation and harsh physical abuse.” 506 U. S., at 47 6. The state court thought that Cole’ s evidence “ m ore close l y resemble[d]” Johnsonand Grah a m than Penry I

. That cannot be s a id to be “contrary to, or . . . an u n reasonabl e application of, clearly esta blished Federal law.” §2254(d)(1). See Brown , supra , at 143, 147; William s , 529 U. S., at 41 1. The Court further hol d s thatthe juryinstr u ctions di d not permitCole’s evidence to h a ve “mitiga t ing force be

yond the scope of thes p ecial issu e s ,” ante , at 21, as it n o w reads PenryI to require. At the ti me the state court ruled, however, Graham an d Johnson , decided after Penry I , ha d expressly r ejected the notion that a jury mus t“be able to give effect to mitigating evidence in every conceivable manner in which the e vidence might be relevant,” so long as the jury could consi d er “in some manner a ll of adefen

dant’s relevant mitigating evidence.” Johnson , supra , at14 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### 372–373. The state court found that Cole’s mitigating evidence could be “sufficientl y consider[ed]” by the jury “within the confines of the statutory ‘special issues,’ ” App. in No. 05– 11284, at 1 61, 159, a holding con s istent with this Court’s precedents as of 1 999—and certainly not contrar yto clearly established federal law. In reaching today’s result, the Court also takes advan

tage of eight years of hindsight and relies on three cases that postda te the state court’s ruli ng. Ante , a t28 (citin g Penryv. Jo hnson , 532 U. S. 782 (2 001) (PenryII ), Tennard v. Dret ke , 5 42 U. S. 27 4 (2004), a n d Smi t hv. Texa s , 5 43 U. S. 37 (2 004) ( per c u riam )). What is pertinent under AED PA, h o wever, is whether federal law was clearly establishedby our decisions when the state court acte d. William s , supra , at 41 2. 3

### AEDPA requires state courts t o reasonably apply clearly establis h e d federal l a w. It does not require them to have a crystal ball. II In 1991, petitioner Brent Ray Brewer was co nvicted o f murder co mmitted du ring the course of a r o bbery. Li ke Cole, Brewer claims that the Texas special issues pre

vented the jury from g i ving effect to mitigating evidenc e that he suffered from depression a n d had been abused as a teenager. The Texas courts rejected these claims on both direct and c o llateral review.

——————

3 The Courtcri t i cizes t h is diss entfor fa iling “ t o define t h e rule” t h at our pos t

- PenryI cases either did or should have applied. Ante , at 25, n

. 22. Bu t th e w h o le poin t i s th at “th e r u l e,” farfr ombein g“c lear ly esta bli s h e d” b you rdec i sions, w a s—a tth e v e r yleast—u n s ettled an d confused. Under AEDPA, th ose defendi ng the fi nality of a state-court ju dg men tc h a llen g ed onfeder al h abeas r e v i ewdo n o t h ave to sh owth at t h e s t at e-cour tj u dgmentwa s cons ist e nt wit hs o me vers ion of “ c lea r ly established F e deral law” o t her th an that offered by the challenger; AED PA obv i o u slyc o n t emplates th at th er e may not be“c lear ly esta b

lis hed Federal la w.” The Court ’s crit i cis m only unders c o r es how fa r t h e reasoning employed today strays from AEDPA’s mandate.15 Cite as: 55 0 U

. S. ____ (2007)

R OBERTS , C. J., dissen t in g 

### In evaluati n g Brewer’s claim, th e Court focuses onthe so-called “two-edged s w ord” natu r e of the ev idence found to be beyond the jury’s reach in Penry I , a n d concludes that Brewer’ s mitigating evidence is sim ilarly double edged. The state court distinguished PenryI , however, stating that “a stay in a ment al hospital does not evidence a long term mental ill ness which would affect appellant’s ability to conform to th e requirements of society,” App. i n No. 05–112 87, p. 141 (i nternal qu otation marks omitted), in contrast to Penry’s “organic brain disorder .

. . whic h made it impossible for him to appreciate the wrongfulness of his conduct or to co nform his conduct to t h e law,” Penry I

, 492 U. S., at 309. The state co urt determi n ed that th e nature of Brewer’ s e vidence allowed the jury to find that he would not be a future dang er, whereas Penry’ s did not. The Court rejects this distinction, notingthat while Brewer’ s mitigating evidence may have been less compel

ling than Penry’s, “that difference does not provide an acceptable justification for refu sing to apply the reasoning in Penry I to this case.” Ante , at 6, and n. 5. This miss es the point. The state court’s distinction goes not to t h e relative strength of the mitigating evidence, but rather i t s character— an episodicrather th an permanent mental disorder. As discussed in the conte x t of Cole, see supra , a t 12, the distinction was not a “refus[al] to apply the reason

ing in Penry I ,” ante , at 6, but rather an a pplication of Penry I tha tcan hardly be said to be “objectively unrea

sonable” ba sed on this Court’s de cisions as of 2001. In

deed, in con s idering future dangerousness, it i s difficult to imagine amore per t inent distinction than whether a mental condition is or i s not permanent. The Court concedes that “[t]he transient quality o f [Brewer ’ s] mitigating evidence may make it more likely to fall in part within the ambit of th e special issues,” and y e t still finds the state court’s decisi on unreasonable beca use the evidence may have had releva nce beyond the special16 ABDUL-KABI R v. QUARTERMAN
R OBERTS , C. J., dissen t in g 

### issues. Ante , at 7

. As in Cole’s case, this conclusion squarely conflicts withthe Court’s rejection in Graham of the proposition that “a defendant is entitled to special instructions whenever he can offer mitigating evidence that has somearguable rel e vance beyond the speci a l issues.” 50 6 U. S., at 476 (emphasis in original). Tha t rejection was confirmed in Johnson , see 509 U. S., at 372– 373 (rejecting a rule that “would require th at a jury be able to give effect to mitigati ng evidence in e v ery conceiv

able manner in which the evidence might be relevant” in favor of the rule “tha t a jur ybe a b le to consider in som e manner all of a defendant’s releva nt mitigati ng evidence ”). Once again, the Cour t rejects the state court ’ s reasonable reading of existing ca ses in favor of its ow n revisionist reading of t h is Court’s doctrine, heavily informed by sub

sequent decisions that the state court had no means to predict. III In AEDPA, Congress “work[ed] su bstantial changes” to the power of federal courts to grant habeas corpus relief. Felkerv. Tur p in , 518 U. S. 651, 654 (1996). In today’s decisions, t h e Court trivializes AEDPA’s requirements and overturns d e cades-old sentences on the ground that they were contr a ry to clearly es tablished federal law at the time—even though the same Justices who for m the majo r ity today w e re complaining at that time that thisCourt was changi n g that “clearly established” law. Still, perha p s there is no reason to be unduly glum. After all, t o day the a u thor of a dissent issued in 198 8 writes t w o majority opinions concluding tha tthe view s expressed in that dissent actually represented “clearl y established” federal law atthatti me. So the r e is hope y e t for the views expressed in this dissent, not simply down the road, but tunc pro nunc . Encouraged by the majority’s determination that the future canchange th e past, I re

spectfully dissent._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007) S CALIA , J., dissenting 

# SUPREME CO URT O FTHE UNI TED STATES

Nos. 05– 11 284 an d 05–1 128 7 

### JALIL AB DUL-KABIR, FKA 

### TED C ALVIN C O LE, PETITION ER 05–11284 v. NAT H A N IEL QUAR T ERMA N , DIRECT OR, TEXA S

DEPARTM E NT OF C R IMINAL J U STIC E, C O RRECTI O NAL INSTITU T IONS DIV I SION

BRE NT RA Y

BREWE R , PETITIONER 05–11287 v. NAT H A N IEL QUAR T ERMA N , DIRECT OR, TEXA S

DEPARTM E NT OF C R IMINAL J U STIC E, C O RRECTI O NAL INSTITU T IONS DIV I SION ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [Apr il 25, 20 0 7 ] 

### J USTICE 

### S CALIA 

### , with whom J UST I CE 

### T HOMAS 

### joins, an d with whom J USTICE 

### ALI T O 

### joins as to Part I, dissenting. I remainof the view “that lim iting a jury’s discretion to consider all mitigating evidence does not violate the Eighth Am endment.” Ayers v. Be lmont e s , 549 U. S. __ _, ___ (2006) (slip op., at 1) (S CALIA 

### , J., concurring) (citin g Wal t onv. Arizona , 49 7 U. S. 639, 673 (1990 ) (S CALIA 

### , J. , concurring i npart and concurring i njudgment)). I But even under this Court’s prece d ents to the contrary , the state-court decisions in these two cases were hardly objectively unreasonable under the Antit e rrorism and Effective Death Pen a lty Act o f 1996, as T HE 

### C HIEF 

### J USTICE 

### ’s dissenting opinion demonstrates. That is all2 ABDUL-KABI R v. QUARTERMAN S CALIA , J., dissenting 

### which is needful to demonstrate t h e error of today’s jud g ments. The full truth i s worse than that, however. There was in fact clearly est ablished law that gov e rned these cases, and it favored the State. When the state courts rendered th eir decisions, Johnson v. Texas , 5 09 U. S. 35 0 (1993), was this Court’s most recent pronouncement on the Texas speci a l issues. And in that case, the Court unamb i

guously drew back from the broader implications of its prior decision in Penryv. Lynaugh , 492 U. S. 302 (1989) (Penry I)

. Reiterating what it had recently said in Gra

ham v. Collins , 506 U. S. 461, 475 (1993), the Court made clear that “ ‘[i]n Penry , the de fendant’ s evidence was placed before the sentencer butthe sentencer had no reliable meansof givi ng mitigati ng effect t o that evi

dence.’ ” Johnson , supr a , at 366 (emphasis added). Penry I

, said Joh n son , stood for the proposition that habeas relief was appropriate where jurors had been unable to give anymitigating effect to the evidence at issue. 509 U. S., at 36 9; see als o Graham , su pra , at 475. Penry I in no way meant to imply, Johnsonwarned, “that a jur y [must] be able to give effect to mitigating evid ence in ever y conceivable manner in which the evidence might be rele

vant.” 509 U. S., at 372 (emphasi s added). J o hnsonthus established, in no unce rtain terms , that jurors need only “be able to consider in some manner all of a defendant’s relevant mitigating evi d ence.” Ibid. (emphasis added); see generally id. , at 372–373. The dissen t ers in Johnsonvery much disag r eed wit h that analysis. They read Penry I for the more expansive proposition that “the Texas special issues violated the Eighth Am endment to the extent they p r evented the ju r y from giving fullconsideration and effect to adefendant’s relevant mitigating evi d ence.” 509 U. S., at 385 (opinion of O’Connor, J.) (citing Pe nr y I , supra;emphasis added and deleted). “[H]aving somerelevance to [a special] issue,” the dissent said , “was not sufficient.” 509 U. S., at3 Cite as: 55 0 U

. S. ____ (2007) S CALIA , J., dissenting 

### 385. And because youth (the mitigating feature in Joh n son) had ob vious relev ance beyon dthe speci a l issu es, a n additional instruction was needed. Id. , at 37 5. The diffe r ences between the Johnsonmajority and dissenters could not have been more pronounced. Today the Court over rules John son sub silentio, and reinstates the “full effect” inter p re tation of Penry I. For as T HE 

### C HIEF 

### J USTICE 

### e x plains, ante , at 12, 1 5 (dissenti n g opinion), it was not objectively unreasonabl e f o r the state courts to conclude that the ill effects of petitioners’ mental illness e s a n d difficult childhoods would wear off in d u e time, allowing the jur yto give t hat mitigat i ng evidenc e some eff ectthrough t h e future dangerousness instruc

tion—just as could be done for the mitigat i ng factor of youth in Johnson

. The Court nonetheless r e verses these sentences because the juries were unable to give effect to “any independent concern” (i ndependent, that is, of the Texas special issu es) that the defendants “may not be deserving of a death s e ntence,” Brew er , ante , at 6, or to consider the evidence’s “relevance to the defendant’s mora l culpability beyond the scope of t h e special verdict que s tions,” id., at 7 (intern a l quotation marks o m itted). The Court does not ack n owledge that it is overruling Johnson , but mak e s the Court of Appeals the scapegoat for its change of heart. The Fifth C i rcuit in both of these cases relied heavily on Johnson when denying relief. See Colev. Dre tke , 418 F. 3d 494, 505 (2005); B rew er v. Dre t k e , 442 F. 3d 273, 278, 281 (2006) (relying on Cole). How does the Court manage to distinguish it? The Court tries two main lines of argu

ment. First, the Court explains: “A cri tical assumption motivating the Court’s decision in Johnsonwas that j u ries would in fact b e able to give mitigating effect to th e evid ence, albe it within the confine s of thesp ecial is sues . . . . Prosec utors in4 ABDUL-KABI R v. QUARTERMAN S CALIA , J., dissenting 

### some subsequent cases, however, have undermined this assumption, takin gpains to c o nvince jur o rs that the law compels them to disregard the fo rce of evi

dence offered in mitigation.” Abdul-Kabir , ante , at 26. Because Johnson ’s “critical assu mption” has now been “undermined,” the Cou rt says, Johnsoncannot be said to “foreclos[e] relief in these circumstances.” Abdul-Kabir, ante, at 26. This attempt to “distinguish” Johnsonwilts under eve n the mildestscrutiny. Since when does this Court craf t constitutional rules that depe nd onthe ben e ficence of the prosecutor? (Never mind that this “critical assumption” of Johnson w a s not so critical as to be mentioned in the case.) And more importantly, howcan prosecutorial styl e have anybearing on whether the Eighth Amendment requires a j u ry to be a b le to give “some effect,” as opposed to “full effect,” to a def e ndant’s mitigating evi d ence? It is of course true that a p r osecut or’s arguments may be rele

vant evidence in the final analy s is of whether a capita l trial has met the “some effect” test. Butit h a s absolutely no relevance to which testis selected in the first place.* Second, the Court expl ains that “the consider ation of the defendant’s mitigating evidence of youth in Johnsoncoul d easily have directed jurors towa rds a ‘no’ answer wit h regardto t h e question of future d angerousness,” wherea s a juror con s idering petitioners’ mitigating ev idence “could feel compell e d to provide a ‘ y es’answer to the same que s tion.” Abdul-Kabir, ante, at 27. But it is qu ite apparen t that jurors considering youth in Johnsoncoul d also have

——————

*Related l y , th e Cou r tth in ks Johnsondis t inguis hab l e b e ca us e j uror s h av e “ex p er ien c e d” y o u t h bu t “h av e n e v e rex per i en c e d”th e “par tic u l ar ized c h ildh ood ex per i enc e s of abu se an d neg l ec t” at issu e h e r e . Ab dul

Kabir , ante , at 2 5

– 26. I tis ag ainqu i t e impo ssi ble to u n d er stan d, howeve r, how that can have any bear ing upon whether “some effect” o r “full effect” is the required t e st.5 Cite as: 55 0 U

. S. ____ (2007) S CALIA , J., dissenting 

### “fe[lt] compelled to provide a ‘yes’ answer” to the future dangerousness questi o n. Whil e one can bel i e ve that “the impetuousn ess and recklessness that may dominate i n younger ye ars can su bside,” Johnson , 509 U. S., at 3 68, one can also believe that a perso nwho kills even in his younger ye ars is fundamentally depraved, and more prone to a life of violent crime. Johns onitself explicitly recog

nized this point, deny ing relief despite “the factthat a juror migh t view the evidence of youth as aggravating, a s opposed to mitigating.” Ibid. As the Court’s opinion effectively admits, nothing of a legal nature has changed since Johnson

. What has changed are the moralsensibi lities of the ma jority of th e Court. Forthose in Texas who h a ve alreadyreceived th e ultimate punishment, this judicial moral awakenin g comes too late. Johnsonwas the law, until today. And in the almost 15 years in-between, the Court today tells us, state and lower federal courts in countless appeals, and this Court in numerous denials of petitions for w r it o f certiorari, have erroneously relied on Johnsonto allow the condemned to be taken to the death chamber. See, e.g. , Robison v. Johnson , 151 F. 3d 256, 269 (CA5 1998) (deny

ing petition for rehearing), cert. denied, 526U. S. 1100 (1999) (petitioner executed Jan. 21, 2000) ; Motley v. Collins , 18 F. 3d 122 3, 1233–1235 (CA5), cert. denied sub nom. Motley v. Sco t t , 513 U. S. 960 (1994 ) (petitioner executed Feb. 7, 1995). II The individuals duly tried and executed between John

sonand tod a y’s decisions were not , in my view (m y view a t the time of Johnson , and my view now), entitled to federal judicial invalidation of thei r state-imposed sentences. That is because in my view the meaning of the Eighth Amendment is to be d e termined not by the moral percep

tions of the Justices du jour, but by the understanding of6 ABDUL-KABI R v. QUARTERMAN S CALIA , J., dissenting 

### the American people who adopte d it—which understand

ing did not remotely in clude any requirementthat a capi

tal jur ybe permitted t o consider all mitigating fac t ors. I f, however, a majority of the Jus tices are going to govern us by their mo ral percepti o ns, in this area at least theyough t to get their moral perceptio ns right the first time. Whether one regards improvised death-is-different juris

prudence with disdain or with approval, no one can be at ease with t h e stark reality that this Court’s vacillating pronouncements have produced grossly ineq uitable trea t

ment of tho s e on deathrow. Relie f from sentence of deat h because of the jury’s i nability to give “full e ffect” to all mitigating factors has been made available only to those who have managed to drag out their habeas proceedings until today. This is notjustice. It is caprice.