In The

Supreme Court of the United States




Decided January 27, 1987

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 5–4
Note: No other Justices joined this opinion.
Citation: 479 U.S. 538 Docket: 85–1563Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring.

This case squarely presents the tension that has long existed between the two central principles of our Eighth Amendment jurisprudence. In Gregg v. Georgia, 428 U. S. 153, 428 U. S. 189 (1976), JUSTICES Stewart, POWELL, and STEVENS concluded that,

where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

In capital sentencing, therefore, discretion must be " controlled by clear and objective standards so as to produce nondiscriminatory application.'" Id. at 428 U. S. 198 (quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974)). See also Proffitt v. Florida, 428 U. S. 242, 428 U. S. 253 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.) (State must provide "specific and detailed guidance" to the sentencing body). On the other hand, this Court has also held that a sentencing body must be able to consider any relevant mitigating evidence regarding the defendant's character or background, and the circumstances of the particular offense. Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion).

The issue in this case is whether an instruction designed to satisfy the principle that capital sentencing decisions must not be made on mere whim, but instead on clear and objective standards, violates the principle that the sentencing body is to consider any relevant mitigating evidence. JUSTICE BRENNAN in his dissenting opinion, contends that the instruction at issue "precludes precisely the response that a defendant's evidence of character and background is designed to elicit." Post at 479 U. S. 548. The Court, on the other hand, holds that the instruction merely admonishes the jury

to ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase.

Ante at 479 U. S. 542.

In my view, evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. This emphasis on culpability in sentencing decisions has long been reflected in Anglo-American jurisprudence. As this Court observed in Eddings, the common law has struggled with the problem of developing a capital punishment system that is "sensible to the uniqueness of the individual." 455 U.S. at 455 U. S. 110. Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant. Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime, rather than mere sympathy or emotion.

Because the individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, I agree with the Court that an instruction informing the jury that they "must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" does not, by itself, violate the Eighth and Fourteenth Amendments to the United States Constitution. At the same time, the jury instructions -taken as a whole -must clearly inform the jury that they are to consider any relevant mitigating evidence about a defendant's background and character, or about the circumstances of the crime. As JUSTICE BRENNAN'S dissent illustrates, however, one difficulty with attempts to remove emotion from capital sentencing through instructions such as those at issue in this case is that juries may be misled into believing that mitigating evidence about a defendant's background or character also must be ignored. See post at 479 U. S. 555.

On remand, the California Supreme Court should determine whether the jury instructions, taken as a whole and considered in combination with the prosecutor's closing argument, adequately informed the jury of its responsibility to consider all of the mitigating evidence introduced by the respondent. The jury was given instruction 8.84.1, 1 California Jury Instructions, Criminal (4th ed. 1979) (CALJIC), which lists the specific aggravating and mitigating factors the sentencer is to consider in determining punishment. Only one subsection of that instruction even arguably applies to the nonstatutory mitigating factors:

Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

CALJIC 8.84.1(k). The respondent contends that the jury might have understood this instruction as mandating consideration only of mitigating evidence about the circumstances of the crime, and not evidence about the defendant's background and character. Moreover, in his closing remarks, the prosecutor in this case may have suggested to the jury that it must ignore the mitigating evidence about the respondent's background and character. In combination with the instructions, the comments of the prosecutor may create a "legitimate basis for finding ambiguity concerning the factors actually considered by the" jury. Eddings v. Oklahoma, supra, at 455 U. S. 119 (O'CONNOR, J., concurring).

Because it is open to the California Supreme Court to determine on remand whether the jury was adequately informed of its obligation to consider all of the mitigating evidence introduced by the respondent, I concur in the judgment and opinion of the Court.

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