Opinion

JUSTICE O'CONNOR, concurring in part and concurring in the judgment.

I join the judgment and the opinion of the Court, with the exception of Part IV-A. I write separately to express my views about the Court's discussion of California v. Ramos, 463 U. S. 992 (1983), in Part 472 U. S. I do not read Ramos to imply that the giving of nonmisleading and accurate information regarding the jury's role in the sentencing scheme is irrelevant to the sentencing decision.

The Court distinguishes the prosecutor's remarks regarding appellate review in this case from the Briggs instruction in Ramos, which informed the jury that the Governor could commute a life sentence without parole. The Court observes that the Briggs instruction in Ramos was

both accurate and relevant to a legitimate state penological interest -that interest being a concern for the future dangerousness of the defendant should he ever return to society.

Ante at 472 U. S. 335. The statement here, the Court concludes, was neither accurate nor relevant. In my view, the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility. I agree there can be no "valid state penological interest" in imparting inaccurate or misleading information that minimizes the importance of the jury's deliberations in a capital sentencing case. Ante at 472 U. S. 336.

The Court, however, seems generally to characterize information regarding appellate review as "wholly irrelevant to the determination of the appropriate sentence." Ibid. The Court correctly observes that Ramos does not imply that "States are free to expose capital sentencing juries to any information and argument concerning postsentencing procedures" no matter how inaccurate. Ante at 472 U. S. 335. Certainly, a misleading picture of the jury's role is not sanctioned by Ramos. See California v. Ramos, supra, at 463 U. S. 1010. But neither does Ramos suggest that the Federal Constitution prohibits the giving of accurate instructions regarding postsentencing procedures. See 463 U.S. at 463 U. S. 1004, n.19, 1012, n. 27.

Jurors may harbor misconceptions about the power of state appellate courts or, for that matter, this Court to override a jury's sentence of death. Should a State conclude that the reliability of its sentencing procedure is enhanced by accurately instructing the jurors on the sentencing procedure, including the existence and limited nature of appellate review, I see nothing in Ramos to foreclose a policy choice in favor of jury education.

As the Court notes, however, the Mississippi prosecutor's argument accomplished the opposite result. In telling the jurors, "your decision is not the final decision... [y]our job is reviewable," the prosecutor sought to minimize the sentencing jury's role, by creating the mistaken impression that automatic appellate review of the jury's sentence would provide the authoritative determination of whether death was appropriate. In fact, under Mississippi law, the reviewing court applies a "presumption of correctness" to the sentencing jury's verdict. 443 So.2d 806, 817 (1983) (Lee, J., dissenting). The jury's verdict of death may be overturned only if so arbitrary that it "was against the overwhelming weight of the evidence," or if the evidence of statutory aggravating circumstances is so lacking that a "judge should have entered a judgment of acquittal notwithstanding the verdict." Williams v. State, 445 So.2d 798, 811 (Miss.1984).

Laypersons cannot be expected to appreciate without explanation the limited nature of appellate review, especially in light of the reassuring picture of "automatic" review evoked by the sentencing court and the prosecutor in this case. Ante at 472 U. S. 325 -326. Although the subsequent remarks of the prosecutor to which JUSTICE REHNQUIST refers in his dissent, post at 472 U. S. 345 -346, may have helped to restore the jurors' sense of the importance of their role, I agree with the Court that they failed to correct the impression that the appellate court would be free to reverse the death sentence if it disagreed with the jury's conclusion that death was appropriate. See ante at 472 U. S. 340 -341, n. 7. I believe the prosecutor's misleading emphasis on appellate review misinformed the jury concerning the finality of its decision, thereby creating an unacceptable risk that "the death penalty [may have been] meted out arbitrarily or capriciously," California v. Ramos, supra, at 463 U. S. 999, or through "whim... or mistake," Eddings v. Oklahoma, 455 U. S. 104, 455 U. S. 118 (1982) (concurring opinion).