In The

Supreme Court of the United States




Decided June 22, 1988

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 6–3
Click any Justice for detail
Joining O'Connor opinion: Justice BLACKMUN Justice BLACKMUN
Citation: 487 U.S. 164 Docket: 87–5546Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

Next opinion >< Previous opinion

DISCLAIMER: Only United States Reports are legally valid sources for Supreme Court opinions. The text below is provided for ease of access only. If you need to cite the exact text of this opinion or if you would like to view the opinions of the other Justices in this case, please view the original United States Report at the Library of Congress or Justia. The Sandra Day O'Connor Institute does not in any way represent, warrant, or guarantee that the text below is accurate."


JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN joins, concurring in the judgment.

Petitioner was sentenced to death by a jury that was permitted to express its views on punishment only by answering two questions: (1) Did petitioner murder the victim deliberately? and (2) Is there a probability that he will pose a continuing threat to society? We must decide whether this capital sentencing scheme unconstitutionally limited the jury's ability to give mitigating effect to evidence of petitioner's prison record or to "residual doubts" about his guilt.

The plurality concludes that the jury's consideration of petitioner's prison record and of its "residual doubts" about his guilt was not limited in this case, but nevertheless goes on to suggest that a State may constitutionally limit the ability of the sentencing authority to give effect to mitigating evidence relevant to a defendant's character or background or to the circumstances of the offense that mitigates against the death penalty. Ante at 487 U. S. 179, 487 U. S. 180, n. 10. Unlike the plurality, I have doubts about a scheme that is limited in such a fashion. I write separately to express those doubts, and to explain my reasons for concurring in the judgment.

In Jurek v. Texas, 428 U. S. 262 (1976), this Court held that the Texas capital sentencing procedures satisfied the Eighth Amendment requirement that the sentencer be allowed to consider circumstances mitigating against capital punishment. The Court observed that, even though the statute did not explicitly mention mitigating circumstances, the Texas Court of Criminal Appeals had construed the special verdict question regarding the defendant's future dangerousness to permit jury consideration of the defendant's prior criminal record, age, mental state, and the circumstances of the crime in mitigation. Id. at 428 U. S. 271 -273. Since the decision in Jurek, we have emphasized that the Constitution guarantees a defendant facing a possible death sentence not only the right to introduce evidence mitigating against the death penalty but also the right to consideration of that evidence by the sentencing authority. Lockett v. Ohio, 438 U. S. 586 (1978), established that a State may not prevent the capital sentencing authority

from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation.

Id. at 438 U. S. 605 (plurality opinion). We reaffirmed this conclusion in Eddings v. Oklahoma, 455 U. S. 104 (1982), and in Hitchcock v. Dugger, 481 U. S. 393 (1987).

In my view, the principle underlying Lockett, Eddings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant.

[E]vidence 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.... Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime.

California v. Brown, 479 U. S. 538, 479 U. S. 545 (1987) (O'CONNOR, J., concurring) (emphasis in original). In light of this principle it is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant's background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration.

Under the sentencing procedure followed in this case, the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant's future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its "reasoned moral response" to that evidence. If this were such a case, then we would have to decide whether the jury's inability to give effect to that evidence amounted to an Eighth Amendment violation. In my view, however, this is not such a case. The only mitigating evidence introduced by petitioner was the stipulation that he had no record of disciplinary violations while in prison. It is undisputed that the jury was free to give mitigating effect to this evidence in answering the special verdict question regarding future dangerousness. While it is true that the jury was prevented from giving mitigating effect to the stipulation to the extent that it demonstrated positive character traits other than the ability to exist in prison without endangering jailers or fellow inmates, that limitation has no practical or constitutional significance, in my view, because the stipulation had no relevance to any other aspect of petitioner's character. Nothing in Lockett or Eddings requires that the sentencing authority be permitted to give effect to evidence beyond the extent to which it is relevant to the defendant's character or background or the circumstances of the offense. Lockett, supra, at 438 U. S. 604, n. 12 ("Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense"); Eddings, supra, at 455 U. S. 114 (holding that the sentencer must consider "any relevant mitigating evidence") (emphasis added).

The limited probative value of the stipulation regarding petitioner's lack of prison disciplinary violations is best illustrated by the contrasting examples of probative character evidence suggested by the dissent. See post at 487 U. S. 190. Evidence of voluntary service, kindness to others, or of religious devotion might demonstrate positive character traits that might mitigate against the death penalty. Although petitioner argued to the sentencing jury that his prison record demonstrated his lack of future dangerousness, petitioner did not suggest that his lack of disciplinary violations revealed anything more positive about his character than that. See 13 Record 2963-2965. This is not surprising, because the lack of a prison disciplinary record reveals nothing about a defendant's character except that the defendant can exist in the highly structured environment of a prison without endangering others.

The conclusion that petitioner was not prejudiced by the limitation placed on the jury's consideration of the mitigating evidence he introduced is entirely consistent with our decision in Skipper v. South Carolina, 476 U. S. 1 (1986). In Skipper, we vacated a death sentence because

it appear[ed] reasonably likely that the exclusion of evidence bearing upon petitioner's behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury's decision to impose the death sentence.

Id. at 476 U. S. 8. In the case before us, the State did not interfere with petitioner's presentation of evidence regarding his lack of future dangerousness or with the jury's ability to give effect to that evidence. Unlike the defendant in Skipper, petitioner suffered no prejudice from the limitations placed on the jury's ability to consider and give effect to mitigating evidence regarding his character.

Petitioner also contends that the sentencing procedures followed in his case prevented the jury from considering, in mitigation of sentence, any "residual doubts" it might have had about his guilt. Petitioner uses the phrase "residual doubts" to refer to doubts that may have lingered in the minds of jurors who were convinced of his guilt beyond a reasonable doubt, but who were not absolutely certain of his guilt. Brief for Petitioner 14. The plurality and dissent reject petitioner's "residual doubt" claim because they conclude that the special verdict questions did not prevent the jury from giving mitigating effect to its "residual doubt[s]" about petitioner's guilt. See ante at 487 U. S. 175 ; post at 487 U. S. 189. This conclusion is open to question, however. Although the jury was permitted to consider evidence presented at the guilt phase in the course of answering the special verdict questions, the jury was specifically instructed to decide whether the evidence supported affirmative answers to the special questions "beyond a reasonable doubt." App. 15 (emphasis added). Because of this instruction, the jury might not have thought that, in sentencing petitioner, it was free to demand proof of his guilt beyond all doubt.

In my view, petitioner's "residual doubt" claim fails not because the Texas scheme allowed for consideration of "residual doubt" by the sentencing body, but rather because the Eighth Amendment does not require it. Our cases do not support the proposition that a defendant who has been found to be guilty of a capital crime beyond a reasonable doubt has a constitutional right to reconsideration by the sentencing body of lingering doubts about his guilt. We have recognized that some States have adopted capital sentencing procedures that permit defendants in some cases to enjoy the benefit of doubts that linger from the guilt phase of the trial, see Lockhart v. McCree, 476 U. S. 162, 476 U. S. 181 (1986), but we have never indicated that the Eighth Amendment requires States to adopt such procedures. To the contrary, as the plurality points out, we have approved capital sentencing procedures that preclude consideration by the sentencing body of "residual doubts" about guilt. See ante at 487 U. S. 173, n. 6.

Our decisions mandating jury consideration of mitigating circumstances provide no support for petitioner's claim, because "residual doubt" about guilt is not a mitigating circumstance. We have defined mitigating circumstances as facts about the defendant's character or background, or the circumstances of the particular offense, that may call for a penalty less than death. See California v. Brown, 479 U.S. at 479 U. S. 541 ; id. at 479 U. S. 544 (O'CONNOR, J., concurring); Eddings, 455 U.S. at 455 U. S. 110, 455 U. S. 112 ; id. at 455 U. S. 117 (O'CONNOR, J., concurring); Lockett, 438 U.S. at 438 U. S. 605. "Residual doubt" is not a fact about the defendant or the circumstances of the crime. It is, instead, a lingering uncertainty about facts, a state of mind that exists somewhere between "beyond a reasonable doubt" and "absolute certainty." Petitioner's "residual doubt" claim is that the States must permit capital sentencing bodies to demand proof of guilt to "an absolute certainty" before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing.

In sum, I agree with the plurality's conclusion that, on the facts of this case, the Texas capital sentencing procedure did not prevent the sentencing jury from giving mitigating effect to any evidence relevant to petitioner's character or background or to the circumstances of the offense. Moreover, while the capital sentencing procedure may have prevented the jury from giving effect to any "residual doubts" it might have had about petitioner's guilt, this aspect of Texas procedure violated no Eighth Amendment guarantee. For these reasons, I concur in the judgment.

Supreme Court icon marking end of opinion

Header photo: United States Supreme Court. Credit: Patrick McKay / Flickr - CC.