"If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt the requirements of the preceding paragraph, then you may fix the punishment of the Defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the Defendant at life imprisonment." Ibid. (emphasis added).
The question is whether this instruction meets the individualized sentencing requirement of Woodson v. North Carolina, 428 U. S. 280 (1976) and its progeny, including Lockett v. Ohio, 438 U. S. 586 (1978) and Penry v. Lynaugh, 492 U. S. 302 (1989). For the reasons that follow, amicus submits that this language not only meets the constitutional minimum, it conveys the essence of Lockett at least as well as other instructions approved by this Court. It does so better than the pre-1991 Texas instructions, which were upheld as applied in most cases.
It would be entirely proper to look to the verdict form, the arguments, and the evidence to bolster this conclusion. See Buchanan v. Angelone, 103 F. 3d 344, 348 (CA4 1996), J. A. 205; Boyde v. California, 494 U. S. 370, 384 (1990); Brief for Respondents, Argument D. This shoring up is not necessary, however. The instruction is correct on its face.
Defendant attacks the instruction as "scant," see Brief for Petitioner 16, as if brevity were a vice. It is not. Brevity is often a virtue in jury instructions. Elaborations meant to clarify an issue can end up confusing it.
Victor v. Nebraska, 511 U. S. 1 (1994) illustrates the point. The Constitution requires that juries find guilt "beyond a reasonable doubt." Id., at 5. Naturally, the jury must be told of the standard. Beyond the "scant" words of the standard itself, to use defendant's term, "the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." Ibid. Indeed, two circuits have held they should not, id., at 25, n. * (Ginsburg, J., concurring in part), although opinion on that point is divided. See id., at 26 ("the argument for defining the concept is strong"). The problem in Victor arose because Nebraska went considerably beyond a basic definition. See id., at 18. Although ultimately upheld, this excessively elaborate definition was "somewhat problematic." Id., at 19.
An instruction which is brief, or even "sparse," may convey the correct meaning better than one that goes on for pages. To see if Virginia's instruction conveys a meaning consistent with the Lockett line of cases, we must return to first principles.
The problem of sentencing discretion in capital cases was first addressed in depth in McGauthav. California, 402 U. S. 183 (1971). McGautha's jury, like Buchanan's, was told to consider the evidence presented. Id., at 189. From that point, though, the jury was told " 'the law itself provides no standard for the guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury.' " Id., at 190.
Justice Harlan, writing for the majority, reviewed the history of capital punishment and discretionary sentencing. Id., at 196-203. He noted the difficulty of structuring the sentencing decision. Id., at 204. He reviewed both the Royal Commission recommendation for "unfettered discretion" and the Model Penal Code proposal for lists of aggravating and mitigating circumstances to be weighed against each other. Id., at 205-206. The opinion then concluded that the latter approach is not constitutionally required.
"It is apparent that such criteria do not purport to provide more than the most minimal control over the sentencing authority's exercise of discretion. They do not purport to give an exhaustive list of the relevant considerations or the way in which they may be affected by the presence or absence of other circumstances. They do not even undertake to exclude constitutionally impermissible considerations. And, of course, they provide no protection against the jury determined to decide on whimsy or caprice. In short, they do no more than suggest some subjects for the jury to consider during its deliberations, and they bear witness to the intractable nature of the problem of 'standards' which the history of capital punishment has from the beginning reflected. Thus, they indeed caution against this Court's undertaking to establish such standards itself, or to pronounce at large that standards in this realm are constitutionally required.
"In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. The States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. For a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete. The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler-plate' or a statement of the obvious that no jury would need." Id., at 207-208 (emphasis added, footnotes omitted).
To the extent that it upheld an absence of standards in the capital sentencing decision as a whole, McGautha was effectively overruled by Furman v. Georgia, 408 U. S. 238 (1972). In the cases since Furman, though, we see that McGautha survives in a limited form. The eligibility decision addresses the concerns of Furman. See Zant v. Stephens, 462 U. S. 862, 877, n. 15 (1983). In the selection decision, McGautha is still good law.
The post-Furman revival of McGautha begins in Woodson v. North Carolina, 428 U. S. 280 (1976). The lead opinion gave three reasons for rejecting mandatory sentencing in capital cases. First, there was the long history of legislative rejection of mandatory sentencing. Id., at 292-301. This was the same history relied on by McGautha for its approval of wide-open sentencing discretion, and Woodson relies on McGautha itself and the Furman dissent for this point. Id., at 297.
Second, and most compellingly, Woodson observed that a mandatory death penalty for all first-degree murder would never be fully enforced. The powerful call for mercy in some cases would lead some juries to nullify, thus making the sentence depend on the willingness of jurors to disobey their instructions. Id., at 302-303. This factor has nothing to do with the relative culpability of the defendant and invites discriminatory application. See Scheidegger, Capital Punishment in 1987: The Puzzle Nears Completion, 15 West. St. L. Rev. 95, 109 (1987). Finally, the Woodson lead opinion held that there was a constitutional imperative to consider not only the circumstances of the crime but also "the character and record of the individual offender . . . ." 428 U. S., at 304. This requirement was thought to flow from a need to treat the convicted persons as "uniquely individual human beings," rather than "members of a faceless, undifferentiated mass . . . ." Ibid.
Virginia's instruction violates none of the components of Woodson. By no stretch of the imagination could this be characterized as a mandatory death penalty. The instruction uses the permissive "may." There is no concern about jury nullification here, since the jury is expressly directed to return a life verdict whenever they feel the death penalty is not justified. Finally, the wide-open admissibility of mitigating evidence combined with the express direction to consider it makes this an individualized procedure.
Renewed confidence in the ability of juries to exercise sentencing discretion continued in Lockettv. Ohio, 438 U. S. 586 (1978). The plurality quoted McGautha with apparent approval for the proposition "that 'jurors confronted with the truly awesome responsibility of decreeing death for a fellow human [would] act with due regard for the consequences of their decision.' " Id., at 598.
After noting the abrupt change in Furman, ibid., the retrenchment in Gregg and Woodson, id., at 600-601, and the long history of discretionary sentencing, id., at 602-603, Lockett announced its rule in the double negative form it has retained ever since. "[T]he sentencer . . . [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record . . . ." Id., at 604 (emphasis added and deleted). The "not precluded" construction of this sentence implies confidence that the jury will know what to consider as mitigating and how much weight to give it if only the state does not place barriers in its way.
True to this statement of the principle, all of the cases in the Woodson-Lockett line which overturn the sentence involve some kind of barrier between the sentencer and the decision that might have been reached on unfettered, unguided common sense. In Eddings v. Oklahoma, 455 U. S. 104, 109 (1982), the trial judge believed he was precluded by law from considering part of the mitigating evidence. For the context of judge sentencing, Eddings added the "corollary" rule that the sentencer "not refuse" to consider the mitigating evidence as a matter of law. Id., at 114. Skipper v. South Carolina, 476 U. S. 1, 5 (1986) involved excluding from evidence, and thus concealing from the jury, facts needed for the full exercise of discretion. Hitchcock v. Dugger, 481 U. S. 393, 398-399 (1987) involved an instruction that effectively told the jury to disregard a category of mitigating evidence. All of these cases involve a "barrier to the sentencer's consideration of all mitigating evidence . . . ." Mills v. Maryland, 486 U. S. 367, 375 (1988) (emphasis added). None of these cases cast doubt on the confidence of McGautha and Lockettthat juries will consider the appropriate factors if no barriers are placed in their way.
The purpose of the Lockett-Eddings rule is to implement the requirement that "the sentencer is to make an individualized assessment of the appropriateness of the death penalty . . . ." See Penryv. Lynaugh, 492 U. S. 302, 319 (1989) (emphasis added). "Appropriate" and "justified," in this context, are synonymous, and this Court used these words interchangeably in Sumner v. Shuman, 483 U. S. 66, 78, 85 (1987). Although many states have followed the Model Penal Code and phrased the decision in terms of aggravating and mitigating factors, there is no constitutional requirement that those terms be used. See Penry, at 316 (discussing Jurek v. Texas, 428 U. S. 262 (1976)).
Mitigating evidence, by definition, is evidence that "calls for a sentence less than death." McKoyv. North Carolina, 494 U. S. 433, 439 (1990) (internal quotation marks omitted). "Calls for," again, is synonymous with "justifies" in this context. The essence of the selection decision has also been expressed as a "reasoned moral response" to the evidence. Penry, at 319 (quoting California v. Brown, 479 U. S. 530, 545 (1987) (O'Connor, J., concurring) (emphasis omitted)). Again, the word "justified" conveys the jury's normative function as the moral representative of the community.
Just as the argument that a state must list mitigating circumstances conflicts with past approval of the Georgia system, see ante, at 8-9, so a contention that jury instructions must use the word "mitigation" conflicts with the repeated approval of the Texas system as applied to most cases.
In the original Texas system, the sentence was based on the jury's answers to three "special issues," involving (1) deliberation and expectation death would result; (2) future dangerousness; and (3) provocation, if any, by the victim. See Jurek, 428 U. S., at 269 (quoting statute). "The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors." Id., at 272 (emphasis added). The first and third factors allow some mitigation relating to the crime itself, such as lack of deliberation or reasonable response to provocation. Any character or background mitigation, however, could only come in through the second issue. Jurek held that the system was valid on its face based on the state court's interpretation of the statute "to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show." Ibid.Conspicuous by its absence from Jurek is any requirement that the instructions be altered to discuss mitigation.
The subsequent Texas cases confirm that the system is constitutional so long as it does not erect an actual barrier to the jury's consideration of a mitigating factor. There is no requirement that the instructions discuss mitigation as such. In Franklin v. Lynaugh, 487 U. S. 164, 177 (1988), the defendant objected that the second special issue did not allow adequate consideration of his good behavior during prior prison terms. The plurality found the argument foreclosed by Jurek. Id., at 180. The concurrence held that, under the circumstances of the case, "the jury was free to give mitigating effect to this evidence in answering the special verdict question regarding future dangerousness." Id., at 185 (emphasis added). Here again, we see that the requirement is that no barriers be placed in the way of a jury which decides that the evidence calls for a sentence less than death.
Penry was decided differently because, on the facts of the case, "a juror who believed that Penry's retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion" under the first special issue. 492 U. S., at 323 (emphasis added). The second and third issues also provided no basis for favorable answers based on retardation on the facts of the case. Id., at 323-324. The Virginia instruction would have passed with flying colors in Penry. "Justified" is the same as "warranted," and the jury would not only have been able to return a life sentence if it believed death was unwarranted based on all the evidence, it would have been expressly directed to do so.(4)
Finally, in Johnson v. Texas, 509 U. S. 350 (1993), a direct review case, this Court rejected a claim considerably stronger than Buchanan's claim in the present habeas case. Johnson's claim was that "the Texas special issues system in effect until 1991 did not allow his jury to give adequate mitigating effect to evidence of his youth." Id., at 352 . Indeed, future dangerousness does not point the jury to the mitigating fact of youth; it requires a bit of stretch and may even cut the other way. See id., at 368; id., at 375 (O'Connor, J., dissenting). That did not render the Texas system unconstitutional as applied. "As long as the mitigating evidence is within 'the effective reach of the sentencer,' the requirements of the Eighth Amendment are satisfied." Id., at 368 (quoting Graham v. Collins, 506 U. S. 461, 475-476 (1993)).
There can be no genuine doubt that Virginia's "justified" instruction places all mitigating evidence within the "effective reach" of the jury. To decide otherwise one would have to conclude that the jurors have no moral compass at all. Indeed, it was the conviction that jurors would react to mitigating circumstances, even when contrary to their instructions, that was the most convincing ground for the Woodson rule in the first place. See ante, at 14. Furthermore, the absence of limits in the Virginia instruction means that the "sentencer [is] allowed to give fullconsideration and full effect to mitigating circumstances," see 509 U. S., at 381 (O'Connor, J., dissenting) (emphasis in original), which is at least desirable, even though Johnson narrowly rejected it as a constitutional requirement. Cf., id., at 372 (majority).
The Virginia instruction not only complies with the letter of Lockett as well as other approved instructions, it complies with the spirit better than the pre-1991 Texas system as applied in Johnson and upheld as so applied. Unless the entire Texas line of cases is to be overruled, which would surely be a "new rule," this instruction must be upheld as correct on its face.
.
.
Footnote 4. Amicus NADCL interprets Penry as striking down the Texas instructions for not being specific enough. Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 7, n. 4. On the contrary, the vice of the instruction in Penry was that it was too specific, as applied to that case, limiting the jury to factors for which Penry's retardation had no mitigating force. [GO BACK]