509 U.S. 350
113 S.Ct. 2658
125 L.Ed.2d 290
Dorsie Lee JOHNSON, Jr., Petitioner,
Argued April 26, 1993.
Decided June 24, 1993.
Rehearing Denied Aug. 9, 1993.
A jury found petitioner Johnson guilty of capital murder for a crime he committed when he was 19 years old. In conformity with the Texas capital sentencing statute then in effect, the trial court instructed the jury during the trial's penalty phase to answer two special issues: (1) whether Johnson's conduct was committed deliberately and with the reasonable expectation that death would result, and (2) whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury was also instructed, inter alia, that in determining each of these issues, it could take into consideration all the evidence submitted to it, whether aggravating or mitigating, in either phase of the trial. A unanimous jury answered yes to both special issues, and the trial court sentenced Johnson to death, as required by law. Shortly after the State Court of Criminal Appeals affirmed the conviction and sentence, this Court issued Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256. In denying Johnson's motion for rehearing, the state appellate court rejected his contentions that the special issues did not allow his jury to give adequate mitigating effect to evidence of his youth and that Penry required a separate instruction on the question.
Held: The Texas procedures as applied in this case were consistent with the Eighth and Fourteenth Amendments under this Court's precedents. Pp. ____.
(a) A review of the Court's relevant decisions demonstrates the constitutional requirements regarding consideration of mitigating circumstances by sentencers in capital cases. Although the sentencer cannot be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the particular offense that the defendant proffers as a basis for a sentence less than death, see, e.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (plurality opinion); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1, States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty, see, e.g., Boyde v. California, 494 U.S. 370, 377, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316. Pp. ____.
(b) The Texas law under which Johnson was sentenced has been the principal concern of a series of opinions in this Court. Although, in Jurek v. Texas, 428 U.S. 262, 276, 277, 96 S.Ct. 2950, 2958, 2958, 49 L.Ed.2d 929, six Justices agreed that, as a general matter, the special issues system satisfied the foregoing constitutional requirements, the Court later held, in Penry v. Lynaugh, supra, that the system did not allow for sufficient consideration of the defendant's mitigating evidence of his mental retardation and childhood abuse in light of his particular circumstances, id., at 320-323, 109 S.Ct., at 2947-2949, and that the trial court erred in not instructing the jury that it could consider and give effect to that mitigating evidence by declining to impose the death penalty, id., at 329, 109 S.Ct., at 2952. However, the Court concluded that it was not creating a "new rule," id., at ----, and characterized its holding as a straightforward application of Jurek, Lockett, and Eddings, making it clear that these cases can stand together with Penry, see 492 U.S., at 314-318, 109 S.Ct., at 2944-2946. The Court confirmed this limited view of Penry and its scope in Graham v. Collins, 506 U.S. ----, ----, 113 S.Ct. 892, ----, 122 L.Ed.2d 260, and held that the defendant's mitigating evidence of his youth, family background, and positive character traits was not placed beyond the jury's effective reach by the Texas scheme, id., at ----. Pp. ____.
(c) The Texas special issues allowed adequate consideration of Johnson's youth. There is no reasonable likelihood, see Boyde, supra, 494 U.S., at 380, 110 S.Ct., at 1197, that Johnson's jury would have found itself foreclosed from considering the relevant aspects of his youth, since it received the second special issue instruction and was told to consider all mitigating evidence. That there is ample room in the future dangerousness assessment for a juror to take account of youth as a mitigating factor is what distinguishes this case from Penry, supra, 492 U.S., at 323, 109 S.Ct., at 2949. There, the second special issue did not allow the jury to give mitigating effect to expert medical testimony that the defendant's mental retardation prevented him from learning from experience, since that evidence could only logically be considered within the future dangerousness inquiry as an aggravating factor. In contrast, youth's ill effects are subject to change as a defendant ages and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue. Because such consideration is a comprehensive inquiry that is more than a question of historical fact, the Court rejects Johnson's related arguments that the second special issue's forward-looking perspective and narrowness prevented the jury from, respectively, taking account of how his youth bore upon his personal culpability and making a "reasoned moral response" to the evidence of his youth. For the Court to find a constitutional defect in Johnson's sentence, it would have to overrule Jurek by requiring a further instruction whenever a defendant introduced mitigating evidence that had some arguable relevance beyond the special issues; alter the rule of Lockett and Eddings to require that a jury be able to give effect to mitigating evidence in every conceivable manner in which it might be relevant; and remove the States' power to structure the consideration of mitigating evidence under, e.g., Boyde. Pp. ____.
773 S.W.2d 322 (Tex.Cr.App.1989), affirmed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, and THOMAS, JJ., joined. SCALIA, J., and THOMAS, J., filed concurring opinions. O'CONNOR, J., filed a dissenting opinion, in which BLACKMUN, STEVENS, and SOUTER, JJ., joined.
Michael E. Tigar, Austin, TX, for petitioner.
Dana E. Parker, Austin, TX, for respondent.
Justice KENNEDY delivered the opinion of the Court.
For the second time this Term, we consider a constitutional challenge to the former Texas capital sentencing system. Like the condemned prisoner in Graham v. Collins, 506 U.S. ----, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), the petitioner here claims 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. Graham was a federal habeas corpus proceeding where the petitioner had to confront the rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), barring the application of new rules of law on federal habeas corpus. In part because the relief sought by Graham would have required a new rule within the meaning of Teague, we denied relief. The instant case comes to us on direct review of petitioner's conviction and sentence, so we consider it without the constraints of Teague, though of course with the customary respect for the doctrine of stare decisis. Based upon our precedents, including much of the reasoning in Graham, we find the Texas procedures as applied in this case were consistent with the Eighth and Fourteenth Amendments.
* Petitioner, then 19 years of age, and his companion, Amanda Miles, decided to rob Allsup's convenience store in Snyder, Texas, on March 23, 1986. After agreeing that there should be no witnesses to the crime, the pair went to the store to survey its layout and, in particular, to determine the number of employees working in the store that evening. They found that the only employee present during the predawn hours was a clerk, Jack Huddleston. Petitioner and Miles left the store to make their final plans.
They returned to Allsup's a short time later. Petitioner, a handgun in his pocket, reentered the store with Miles. After waiting for other customers to leave, petitioner asked Huddleston whether the store had any orange juice in one gallon plastic jugs because there were none on the shelves. Saying he would check, Huddleston went to the store's cooler. Petitioner followed Huddleston there, told Huddleston the store was being robbed, and ordered him to lie on the floor. After Huddleston complied with the order and placed his hands behind his head, petitioner shot him in the back of the neck, killing him. When petitioner emerged from the cooler, Miles had emptied the cash registers of about $160. They each grabbed a carton of cigarettes and fled.
In April 1986, a few weeks after this crime, petitioner was arrested for a subsequent robbery and attempted murder of a store clerk in Colorado City, Texas. He confessed to the murder of Jack Huddleston and the robbery of Allsup's and was tried and convicted of capital murder. The homicide qualified as a capital offense under Texas law because petitioner intentionally or knowingly caused Huddleston's death and the murder was carried out in the course of committing a robbery. Tex.Penal Code Ann. §§ 19.02(a)(1), 19.03(a)(2) (Vernon 1989).
After the jury determined that petitioner was guilty of capital murder, a separate punishment phase of the proceedings was conducted in which petitioner's sentence was determined. In conformity with the Texas capital-sentencing statute then in effect, see Tex. Code Crim. Proc. Ann. Art. 37.071(b) (Vernon 1981),1 the trial court instructed the jury that it was to answer two special issues:
"[ (1) ] Was the conduct of the Defendant, Dorsie Lee Johnson, Jr., that caused the death of the deceased, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
. . . . .
"[ (2) ] Is there a probability that the Defendant, Dorsie Lee Johnson, Jr., would commit criminal acts of violence that would constitute a continuing threat to society?"2 App. 148-149.
The trial court made clear to the jury the consequences of its answers to the special issues:
"You are further instructed that if the jury returns affirmative or 'yes' answer [sic ] to all the Issues submitted, this Court shall sentence the Defendant to death. If the jury returns a negative or 'no' answer to any Issue submitted, the Court shall sentence the Defendant to life in prison." Id., at 146.
The jury was instructed not to consider or discuss the possibility of parole. Id., at 147. The trial court also instructed the jury as follows concerning its consideration of mitigating evidence:
"In determining each of these Issues, you may take into consideration all the evidence submitted to you in the trial of this case, whether aggravating or mitigating in nature, that is, all the evidence in the first part of the trial when you were called upon to determine the guilt or innocence of the Defendant and all the evidence, if any, in the second part of the trial wherein you are called upon to determine the answers to the Special Issues." Ibid.
Although petitioner's counsel filed various objections to the jury charge, there was no request that a more expansive instruction be given concerning any particular mitigating circumstance, including petitioner's youth.
In anticipation of the trial court's instructions, the State during the punishment phase of the proceedings presented numerous witnesses who testified to petitioner's violent tendencies. The most serious evidence related to the April convenience store robbery in Colorado City. Witnesses testified that petitioner had shot that store clerk in the face, resulting in the victim's permanent disfigurement and brain damage. Other witnesses testified that petitioner had fired two shots at a man outside a restaurant in Snyder only six days after the murder of Huddleston, and a sheriff's deputy who worked in the jail where petitioner was being held testified that petitioner had threatened to "get" the deputy when he got out of jail.
Petitioner's acts of violence were not limited to strangers. A longtime friend of petitioner, Beverly Johnson, testified that in early 1986 petitioner had hit her, thrown a large rock at her head, and pointed a gun at her on several occasions. Petitioner's girlfriend, Paula Williams, reported that, after petitioner had become angry with her one afternoon in 1986, he threatened her with an axe. There were other incidents, of less gravity, before 1986. One of petitioner's classmates testified that petitioner cut him with a piece of glass while they were in the seventh grade. Another classmate testified that petitioner also cut him with glass just a year later, and there was additional evidence presented that petitioner had stabbed a third classmate with a pencil.
The State established that the crimes committed in 1986 were not petitioner's first experience with the criminal justice system. Petitioner had been convicted in 1985 of a store burglary in Waco, Texas. Petitioner twice violated the terms of probation for that offense by smoking marijuana. Petitioner was still on probation when he committed the Huddleston murder.
The defense presented petitioner's father, Dorsie Johnson, Sr., as its only witness. The elder Johnson attributed his son's criminal activities to his drug use and his youth. When asked by defense counsel whether his son at the age of 19 was "a real mature person," petitioner's father answered:
"No, no. Age of nineteen? No, sir. That, also, I find to be a foolish age. That's a foolish age. They tend to want to be macho, built-up, trying to step into manhood. You're not mature-lized for it." Id., at 27.
At the close of his testimony, Johnson summarized the role that he thought youth had played in his son's crime:
"[A]ll I can say is I still think that a kid eighteen or nineteen years old has an undeveloped mind, undeveloped sense of assembling not—I don't say what is right or wrong, but the evaluation of it, how much, you know, that might be—well, he just don't—he just don't evaluate what is worth —what's worth and what's isn't like he should like a thirty or thirty-five year old man would. He would take under consideration a lot of things that a younger person that age wouldn't." Id., at 47.
The father also testified that his son had been a regular churchgoer and his problems were attributable in large part to the death of his mother following a stroke in 1984 and the murder of his sister in 1985. Finally, the senior Johnson testified to his son's remorse over the killing of Huddleston.
At the voir dire phase of the proceedings, during which more than 90 prospective jurors were questioned over the course of 15 days, petitioner's counsel asked the venirepersons whether they believed that people were capable of change and whether the venirepersons had ever done things as youths that they would not do now. See, e.g., Tr. of Voir Dire in No. 5575 (132d Jud.Dist.Ct., Scurry County, Tex.), pp. 1526-1529 (Juror Swigert); pp. 1691-1692 (Juror Freeman); p. 2366 (Juror Witte); pp. 2630-2632 (Juror Raborn).3 Petitioner's counsel returned to this theme in his closing argument:
"The question—the real question, I think, is whether you believe that there is a possibility that he can change. You will remember that that was one thing every one of you told me you agreed—every one of you agreed with me that people can change. If you agree that people can change, then that means that Dorsie can change and that takes question two [regarding future dangerousness] out of the realm of probability and into possibility, you see, because if he can change, then it is no longer probable that he will do these things, but only possible that he can and will do these things, you see. "If people couldn't change, if you could say I know people cannot change, then you could say probably. But every one of you knows in your heart and in your mind that people can and people do change and Dorsie Johnson can change and, therefore, the answer to question two should be no." App. 81.
Counsel also urged the jury to remember the testimony of petitioner's father. Id., at 73-74.
The jury was instructed that the State bore the burden of proving each special issue beyond a reasonable doubt. Id., at 145. A unanimous jury found that the answer to both special issues was yes, and the trial court sentenced petitioner to death, as required by law. Tex.Code Crim.Proc.Ann., Art. 37.071(e) (Vernon 1981).
On appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence after rejecting petitioner's seven allegations of error, none of which involved a challenge to the punishment-phase jury instructions. 773 S.W.2d 322 (1989). Five days after that state court ruling, we issued our opinion in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Petitioner filed a motion for rehearing in the Texas Court of Criminal Appeals arguing, among other points, that the special issues did not allow for adequate consideration of his youth. Citing Penry, petitioner claimed that a separate instruction should have been given that would have allowed the jury to consider petitioner's age as a mitigating factor. Although petitioner had not requested such an instruction at trial and had not argued the point prior to the rehearing stage on appeal, no procedural bar was interposed. Instead, the Court of Criminal Appeals considered the argument on the merits and rejected it. After noting that it had already indicated in Lackey v. State, 819 S.W.2d 111, 134 (Tex.Crim.App.1989), that youth was relevant to the jury's consideration of the second special issue, the court reasoned that "[i]f a juror believed that [petitioner's] violent actions were a result of his youth, that same juror would naturally believe that [petitioner] would cease to behave violently as he grew older." App. 180. The court concluded that "the jury was able to express a reasoned moral response to [petitioner's] mitigating evidence within the scope of the art. 37.071 instructions given to them by the trial court." Id., at 180-181.
Petitioner filed a petition for certiorari, which we granted. 506 U.S. ----, 113 S.Ct. 1148, 122 L.Ed.2d 499 (1993).
This is the latest in a series of decisions in which the Court has explained the requirements imposed by the Eighth and Fourteenth Amendments regarding consideration of mitigating circumstances by sentencers in capital cases. The earliest case in the decisional line is Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). At the time of Furman, sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death, resulting in a system in which there was "no meaningful basis for distinguishing the few cases in which [death was] imposed from the many cases in which it [was] not." Id., at 313, 92 S.Ct., at 2763 (WHITE, J., concurring). Although no two Justices could agree on a single rationale, a majority of the Court in Furman concluded that this system was "cruel and unusual" within the meaning of the Eighth Amendment. The guiding principle that emerged from Furman was that States were required to channel the discretion of sentencing juries in order to avoid a system in which the death penalty would be imposed in a "wanto[n]" and "freakis[h]" manner. Id., at 310, 92 S.Ct., at 2763 (Stewart, J., concurring).
Four Terms after Furman, we decided five cases, in opinions issued on the same day, concerning the constitutionality of various capital sentencing systems. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). In the wake of Furman, at least 35 States had abandoned sentencing schemes that vested complete discretion in juries in favor of systems that either (i) "specif[ied] the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence," or (ii) "ma[de] the death penalty mandatory for certain crimes." Gregg, supra, 428 U.S., at 179-180, 96 S.Ct., at 2928 (opinion of Stewart, Powell, and STEVENS, JJ.). In the five cases, the controlling joint opinion of three Justices reaffirmed the principle of Furman that "discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Id., at 189, 96 S.Ct., at 2932; accord, Proffitt, supra, 428 U.S., at 258, 96 S.Ct., at 2969 (opinion of Stewart, Powell, and STEVENS, JJ.).
Based upon this principle, it might have been thought that statutes mandating imposition of the death penalty if a defendant was found guilty of certain crimes would be consistent with the Constitution. But the joint opinions of Justices Stewart, Powell, and STEVENS indicated that there was a second principle, in some tension with the first, to be considered in assessing the constitutionality of a capital sentencing scheme. According to the three Justices, "consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson, supra, 428 U.S., at 304, 96 S.Ct., at 2991 (opinion of Stewart, Powell, and STEVENS, JJ.); accord, Gregg, supra, 428 U.S., at 189-190, n. 38, 96 S.Ct., at 2990, n. 38 (opinion of Stewart, Powell, and STEVENS, JJ.); Jurek, supra, 428 U.S., at 273-274, 96 S.Ct., at 2957 (opinion of Stewart, Powell, and STEVENS, JJ.); Roberts, supra, 428 U.S., at 333, 96 S.Ct., at 3006 (opinion of Stewart, Powell, and STEVENS, JJ.). Based upon this second principle, the Court struck down mandatory imposition of the death penalty for specified crimes as inconsistent with the requirements of the Eighth and Fourteenth Amendments. See Woodson, supra, 428 U.S., at 305, 96 S.Ct., at 2991; Roberts, supra, 428 U.S., at 335-336, 96 S.Ct., at 3007.
Two Terms later, a plurality of the Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), refined the requirements related to the consideration of mitigating evidence by a capital sentencer. Unlike the mandatory schemes struck down in Woodson and Roberts in which all mitigating evidence was excluded, the Ohio system at issue in Lockett permitted a limited range of mitigating circumstances to be considered by the sentencer.4 The plurality nonetheless found this system to be unconstitutional, holding that "the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id., at 604, 98 S.Ct., at 2965. A majority of the Court adopted the Lockett rule in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); accord, Hitchcock v. Dugger, 481 U.S. 393, 398-399, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1670, 90 L.Ed.2d 1 (1986), and we have not altered the rule's central requirement. "Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all." McKoy v. North Carolina, 494 U.S. 433, 456, 110 S.Ct. 1227, 1240, 108 L.Ed.2d 369 (1990) (KENNEDY, J., concurring in judgment); see also Graham, 506 U.S., at ----, 113 S.Ct., at 901-902; Saffle v. Parks, 494 U.S. 484, 490-491, 110 S.Ct. 1257, 1261, 108 L.Ed.2d 415 (1990).
Although Lockett and Eddings prevent a State from placing relevant mitigating evidence "beyond the effective reach of the sentencer," Graham v. Collins, supra, at ----, 113 S.Ct., at 902, those cases and others in that decisional line do not bar a State from guiding the sentencer's consideration of mitigating evidence. Indeed, we have held that "there is no . . . constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty,' " Boyde v. California, 494 U.S. 370, 377, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990) (quoting Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988) (plurality opinion)); see also Saffle, supra, 494 U.S., at 490, 110 S.Ct., at 1261.
The Texas law under which petitioner was sentenced has been the principal concern of four previous opinions in our Court. See Jurek v. Texas, supra; Franklin v. Lynaugh, supra; Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Graham, supra. As we have mentioned, Jurek was included in the group of five cases addressing the post-Furman statutes in 1976.
In Jurek, the joint opinion of Justices Stewart, Powell, and STEVENS first noted that there was no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment, the statute having adopted five different classifications of murder for that purpose. See Jurek, 428 U.S., at 270-271, 96 S.Ct., at 2956. Turning to the mitigation side of the sentencing system, the three Justices said: "[T]he constitutionality of the Texas procedures turns on whether the enumerated [special issues] allow consideration of particularized mitigating factors." Id., at 272, 96 S.Ct., at 2956. In assessing the constitutionality of the mitigation side of this scheme, the three Justices exam ined in detail only the second special issue, which asks whether "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Although the statute did not define these terms, the joint opinion noted that the Texas Court of Criminal Appeals had indicated that it would interpret the question in a manner that allowed the defendant to bring all relevant mitigating evidence to the jury's attention:
" 'In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.' [Jurek v. State,] 522 S.W.2d , 939-940 [ (Tex.Crim.App.1975) ]." Id., 428 U.S., at 272-273, 96 S.Ct., at 2957.
The joint opinion determined that the Texas system satisfied the requirements of the Eighth and Fourteenth Amendments concerning the consideration of mitigating evidence: "By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function." Id., at 276, 96 S.Ct., at 2958. Three other Justices agreed that the Texas system satisfied constitutional requirements. See id., at 277, 96 S.Ct., at 2958 (WHITE, J., concurring in judgment).
We next considered a constitutional challenge involving the Texas special issues in Franklin v. Lynaugh, supra. Although the defendant in that case recognized that we had upheld the constitutionality of the Texas system as a general matter in Jurek, he claimed that the special issues did not allow the jury to give adequate weight to his mitigating evidence concerning his good prison disciplinary record and that the jury, therefore, should have been instructed that it could consider this mitigating evidence independent of the special issues. 487 U.S., at 171-172, 108 S.Ct., at 2326. A plurality of the Court rejected the defendant's claim, holding that the second special issue provided an adequate vehicle for consideration of the defendant's prison record as it bore on his character. Id., at 178, 108 S.Ct., at 2329. The plurality also noted that Jurek foreclosed the defendant's argument that the jury was still entitled to cast an "independent" vote against the death penalty even if it answered yes to the special issues. 487 U.S., at 180, 108 S.Ct., at 2330. The plurality concluded that, with its special issues system, Texas had guided the jury's consideration of mitigating evidence while still providing for sufficient jury discretion. See id., at 182, 108 S.Ct., at 2331. Although Justice O'CONNOR expressed reservations about the Texas scheme for other cases, she agreed that the special issues had not inhibited the jury's consideration of the defendant's mitigating evidence in that case. See id., at 183-186, 108 S.Ct., at 2332-2334 (O'CONNOR, J., concurring in judgment).
The third case in which we considered the Texas statute is the pivotal one from petitioner's point of view, for there we set aside a capital sentence because the Texas special issues did not allow for sufficient consideration of the defendant's mitigating evidence. Penry v. Lynaugh, supra. In Penry, the condemned prisoner had presented mitigating evidence of his mental retardation and childhood abuse. We agreed that the jury instructions were too limited for the appropriate consideration of this mitigating evidence in light of Penry's particular circumstances. We noted that "[t]he jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence." 492 U.S., at 320, 109 S.Ct., at 2947. Absent any definition for the term "deliberately," we could not "be sure that the jury was able to give effect to the mitigating evidence . . . in answering the first special issue," id., at 323, 109 S.Ct., at 2949, so we turned to the second special issue, future dangerousness. The evidence in the case suggested that Penry's mental retardation rendered him unable to learn from his mistakes. As a consequence, we decided the mitigating evidence was relevant to the second special issue "only as an aggravating factor because it suggests a 'yes' answer to the question of future dangerousness." Ibid. The Court concluded that the trial court had erred in not instructing the jury that it could "consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty." Id., at 329, 109 S.Ct., at 2952. The Court was most explicit in rejecting the dissent's concern that Penry was seeking a new rule, in contravention of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Indeed, the Court characterized its holding in Penry as a straightforward application of our earlier rulings in Jurek, Lockett, and Eddings, making it clear that these cases can stand together with Penry. See Penry, 492 U.S., at 314-318, 109 S.Ct., at 2944-2946.
We confirmed this limited view of Penry and its scope in Graham v. Collins. There we confronted a claim by a defendant that the Texas system had not allowed for adequate consideration of mitigating evidence concerning his youth, family background, and positive character traits. In rejecting the contention that Penry dictated a ruling in the defendant's favor, we stated that Penry did not "effec[t] a sea change in this Court's view of the constitutionality of the former Texas death penalty statute," 506 U.S., at ----, 113 S.Ct., at 901 and we noted that a contrary view of Penry would be inconsistent with the Penry Court's conclusion that it was not creating a "new rule," 506 U.S., at ----, 113 S.Ct., at 901. We also did not accept the view that the Lockett and Eddings line of cases, upon which Penry rested, compelled a holding for the defendant in Graham:
"In those cases, the constitutional defect lay in the fact that relevant mitigating evidence was placed beyond the effective reach of the sentencer. In Lockett, Eddings, Skipper, and Hitchcock, the sentencer was precluded from even considering certain types of mitigating evidence. In Penry, the defendant's evidence was placed before the sentencer but the sentencer had no reliable means of giving mitigating effect to that evidence. In this case, however, Graham's mitigating evidence was not placed beyond the jury's effective reach." Graham, 506 U.S., at ----, 113 S.Ct., at 902.
In addition, we held that Graham's case differed from Penry in that "Graham's evidence—unlike Penry's —had mitigating relevance to the second special issue concerning his likely future dangerousness." 506 U.S., at ----, 113 S.Ct., at 902. We concluded that, even with the benefit of the subsequent Penry decision, reasonable jurists at the time of Graham's sentencing "would [not] have deemed themselves compelled to accept Graham's claim." 506 U.S., at ----, 113 S.Ct., at 903. Thus, we held that a ruling in favor of Graham would have required the impermissible application of a new rule under Teague. 506 U.S., at ----, 113 S.Ct., at 902.
Today we are asked to take the step that would have been a new rule had we taken it in Graham. Like Graham, petitioner contends that the Texas sentencing system did not allow the jury to give adequate mitigating effect to the evidence of his youth. Unlike Graham, petitioner comes here on direct review, so Teague presents no bar to the rule he seeks. The force of stare decisis, though, which rests on considerations parallel in many respects to Teague, is applicable here. The interests of the State of Texas, and of the victims whose rights it must vindicate, ought not to be turned aside when the State relies upon an interpretation of the Eighth Amendment approved by this Court, absent demonstration that our earlier cases were themselves a misinterpretation of some constitutional command. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 265-266, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986); Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984).
There is no dispute that a defendant's youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death sentence is to meet the requirements of Lockett and Eddings. See, e.g., Sumner v. Shuman, 483 U.S. 66, 81-82, 107 S.Ct. 2716, 2725, 97 L.Ed.2d 56 (1987); Eddings, 455 U.S., at 115, 102 S.Ct., at 877; Lockett, 438 U.S., at 608, 98 S.Ct., at 2966 (plurality opinion). Our cases recognize that "youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and psychological damage." Eddings, supra, 455 U.S., at 115, 102 S.Ct., at 877. A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.
The question presented here is whether the Texas special issues allowed adequate consideration of petitioner's youth. An argument that youth can never be given proper mitigating force under the Texas scheme is inconsistent with our holdings in Jurek, Graham, and Penry itself. The standard against which we assess whether jury instructions satisfy the rule of Lockett and Eddings was set forth in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). There we held that a reviewing court must determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Id., at 380, 110 S.Ct., at 1198. Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar. Ibid. In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a "commonsense understanding of the instructions in the light of all that has taken place at the trial." Id., at 381, 110 S.Ct., at 1198.
We decide that there is no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner's youth. Pursuant to the second special issue, the jury was instructed to decide whether there was "a probability that [petitioner] would commit criminal acts of violence that would constitute a continuing threat to society." App. 149. The jury also was told that, in answering the special issues, it could consider all the mitigating evidence that had been presented during the guilt and punishment phases of petitioner's trial. Id., at 147. Even on a cold record, one cannot be unmoved by the testimony of petitioner's father urging that his son's actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination. As we recognized in Graham, the fact that a juror might view the evidence of youth as aggravating, as opposed to mitigating, does not mean that the rule of Lockett is violated. Graham, 506 U.S., at ----, 113 S.Ct., at 901-902. As long as the mitigating evidence is within "the effective reach of the sentencer," the requirements of the Eighth Amendment are satisfied. Ibid., at ----, 113 S.Ct., at 901.
That the jury had a meaningful basis to consider the relevant mitigating qualities of petitioner's youth is what distinguishes this case from Penry. In Penry, there was expert medical testimony that the defendant was mentally retarded and that his condition prevented him from learning from experience. 492 U.S., at 308-309, 109 S.Ct., at 2941. Although the evidence of the mental illness fell short of providing Penry a defense to prosecution for his crimes, the Court held that the second special issue did not allow the jury to give mitigating effect to this evidence. Penry's condition left him unable to learn from his mistakes, and the Court reasoned that the only logical manner in which the evidence of his mental retardation could be considered within the future dangerousness inquiry was as an aggravating factor. Id., at 323, 109 S.Ct., at 2949. Penry remains the law and must be given a fair reading. The evidence of petitioner's youth, however, falls outside Penry's ambit. Unlike Penry's mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue.
Petitioner does not contest that the evidence of youth could be given some effect under the second special issue. Instead, petitioner argues that the forward-looking perspective of the future dangerousness inquiry did not allow the jury to take account of how petitioner's youth bore upon his personal culpability for the murder he committed. According to petitioner, "[a] prediction of future behavior is not the same thing as an assessment of moral culpability for a crime already committed." Brief for Petitioner 38. Contrary to petitioner's suggestion, however, this forward-looking inquiry is not independent of an assessment of personal culpability. It is both logical and fair for the jury to make its determination of a defendant's future dangerousness by asking the extent to which youth influenced the defendant's conduct. See Skipper, 476 U.S., at 5, 106 S.Ct., at 1671 ("Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing"). If any jurors believed that the transient qualities of petitioner's youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner's future dangerousness. It is true that Texas has structured consideration of the relevant qualities of petitioner's youth, but in so doing, the State still "allow[s] the jury to give effect to [this] mitigating evidence in making the sentencing decision." Saffle, 494 U.S., at 491, 110 S.Ct., at 1262. Although Texas might have provided other vehicles for consideration of petitioner's youth, no additional instruction beyond that given as to future dangerousness was required in order for the jury to be able to consider the mitigating qualities of youth presented to it.
In a related argument, petitioner, quoting a portion of our decision in Penry, supra, 492 U.S., at 328, 109 S.Ct., at 2951, claims that the jurors were not able to make a "reasoned moral response" to the evidence of petitioner's youth because the second special issue called for a narrow factual inquiry into future dangerousness. We, however, have previously interpreted the Texas special issues system as requiring jurors to "exercise a range of judgment and discretion." Adams v. Texas, 448 U.S. 38, 46, 100 S.Ct. 2521, 2527, 65 L.Ed.2d 581 (1980). This view accords with a "commonsense understanding" of how the jurors were likely to view their instructions and to implement the charge that they were entitled to consider all mitigating evidence from both the trial and sentencing phases. Boyde, 494 U.S., at 381, 110 S.Ct., at 1198. The crucial term employed in the second special issue "continuing threat to society"—affords the jury room for independent judgment in reaching its decision. Indeed, we cannot forget that "a Texas capital jury deliberating over the Special Issues is aware of the consequences of its answers, and is likely to weigh mitigating evidence as it formulates these answers in a manner similar to that employed by capital juries in 'pure balancing' States." Franklin, 487 U.S., at 182, n. 12, 108 S.Ct., at 2332, n. 12 (plurality opinion). In Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), four Members of the Court in dissent used the Texas statute as an example of a capital sentencing system that permitted the exercise of judgment. That opinion stated:
"[The two special issues] require the jury to do more than find facts supporting a legislatively defined aggravating circumstance. Instead, by focusing on the deliberateness of the defendant's actions and his future dangerousness, the questions compel the jury to make a moral judgment about the severity of the crime and the defendant's culpability. The Texas statute directs the imposition of the death penalty only after the jury has decided that the defendant's actions were sufficiently egregious to warrant death." Id., at 322, 110 S.Ct., at 1091 (Brennan, J., dissenting).
The Texas Court of Criminal Appeals' view of the future dangerousness inquiry supports our conclusion that consideration of the second special issue is a comprehensive inquiry that is more than a question of historical fact. In reviewing death sentences imposed under the former Texas system, that court has consistently looked to a nonexclusive list of eight factors, which includes the defendant's age, in deciding whether there was sufficient evidence to support a yes answer to the second special issue. See, e.g., Ellason v. State, 815 S.W.2d 656, 660 (Tex.Crim.App.1991); Brasfield v. State, 600 S.W.2d 288 (Tex.Crim.App.1980).
There might have been a juror who, on the basis solely of sympathy or mercy, would have opted against the death penalty had there been a vehicle to do so under the Texas special issues scheme. But we have not construed the Lockett line of cases to mean that a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant. Indeed, we have said that "[i]t would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary." Saffle v. Parks, 494 U.S., at 493, 110 S.Ct., at 1262; see also California v. Brown, 479 U.S. 538, 542-543, 107 S.Ct. 837, 840, 93 L.Ed.2d 934 (1987) (permitting an instruction that the jury could not base its sentencing decision on sympathy).
For us to find a constitutional defect in petitioner's death sentence, we would have to alter in significant fashion this Court's capital sentencing jurisprudence. The first casualty of a holding in petitioner's favor would be Jurek. The inevitable consequence of petitioner's argument is that the Texas special issues system in almost every case would have to be supplemented by a further instruction. As we said in Graham,
"[H]olding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues . . . would be to require in all cases that a fourth 'special 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 that the death penalty should not be imposed?" ' " Graham, 506 U.S., at ----, 113 S.Ct., at 902 (quoting Franklin, 487 U.S., at 180, n. 10, 108 S.Ct., at 2330, n. 10).
In addition to overruling Jurek, accepting petitioner's arguments would entail an alteration of the rule of Lockett and Eddings. Instead of requiring that a jury be able to consider in some manner all of a defendant's relevant mitigating evidence, the rule would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.
The fundamental flaw in petitioner's position is its failure to recognize that "[t]here is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making its sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Saffle, supra, 494 U.S., at 490, 110 S.Ct., at 1261. To rule in petitioner's favor, we would have to require that a jury be instructed in a manner that leaves it free to depart from the special issues in every case. This would, of course, remove all power on the part of the States to structure the consideration of mitigating evidence—a result we have been consistent in rejecting. See, e.g., Boyde, 494 U.S., at 377, 110 S.Ct., at 1196; Saffle, supra, 494 U.S., at 493, 110 S.Ct., at 1262; Franklin, supra, 487 U.S., at 181, 108 S.Ct., at 2331 (plurality opinion).
The reconciliation of competing principles is the function of law. Our capital sentencing jurisprudence seeks to reconcile two competing, and valid, principles in Furman, which are to allow mitigating evidence to be considered and to guide the discretion of the sentencer. Our holding in Jurek reflected the understanding that the Texas sentencing scheme "accommodates both of these concerns." Franklin, supra, 487 U.S., at 182, 108 S.Ct., at 2331 (plurality opinion). The special issues structure in this regard satisfies the Eighth Amendment and our precedents that interpret its force. There was no constitutional infirmity in its application here.
The judgment of the Texas Court of Criminal Appeals is affirmed.
It is so ordered.
Justice SCALIA, concurring.
In my view the Lockett-Eddings principle that the sentencer must be allowed to consider "all relevant mitigating evidence" is quite incompatible with the Furman principle that the sentencer's discretion must be channeled. See Walton v. Arizona, 497 U.S. 639, 656, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990) (SCALIA, J., concurring in part and concurring in judgment). That will continue to be true unless and until the sort of "channeling" of mitigating discretion that Texas has engaged in here is not merely permitted (as the Court today holds), but positively required—a further elaboration of our intricate Eighth Amendment jurisprudence that I neither look forward to nor would support.
Today's decision, however, is simply a clarification (and I think a plainly correct one) of this Court's opinions in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), which I joined. In fact, the essence of today's holding (to the effect that discretion may constitutionally be channeled) was set forth in my dissent in Penry v. Lynaugh, 492 U.S. 302, 350, 109 S.Ct. 2934, 2963, 106 L.Ed.2d 256 (1989) (SCALIA, J., concurring in part and dissenting in part). Accordingly, I join the opinion of the Court.
Justice THOMAS, concurring.
Although Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), "remains the law," ante, at ____, in the sense that it has not been expressly overruled, I adhere to my view that it was wrongly decided. Graham v. Collins, 506 U.S. ----, ----, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993) (THOMAS, J., concurring). I also continue to believe it has been substantially narrowed by later opinions. Id., at ----, n. 10, 113 S.Ct., at 913-914, n. 10. Because petitioner's youth had mitigating relevance to the second special issue, however, this case is readily distinguishable from Penry and does not compel its reconsideration. I therefore join the Court's opinion.
Justice O'CONNOR, with whom Justice BLACKMUN, Justice STEVENS, and Justice SOUTER join, dissenting.
Dorsie Lee Johnson was 19 years old when he committed the murder that led to his death sentence. Today, the Court upholds that sentence, even though the jurors who considered Johnson's case were not allowed to give full effect to his strongest mitigating evidence: his youth. The Court reaches this result only by invoking a highly selective version of stare decisis and misapplying our habeas precedents to a case on direct review. Therefore, I respectfully dissent.
* By all accounts, Dorsie Johnson was not a model youth. As an adolescent he frequently missed school, and when he did attend, he often was disruptive. He was drinking and using drugs by the time he was 16, habits that had intensified by the time he was 19. Johnson's father testified that the deaths of Johnson's mother and sister in 1984 and 1985 had affected Johnson deeply, but he primarily attributed Johnson's behavior to drug use and youth. A jury hearing this evidence easily could conclude, as Johnson's jury did, that the answer to the second Texas special question whether it was probable that Johnson "would commit criminal acts of violence that would constitute a continuing threat to society," Tex.Code Crim.Proc.Ann., Art. 37.071(b)(2) (Vernon 1981)—was yes. It is possible that the jury thought Johnson might outgrow his temper and violent behavior as he matured, but it is more likely that the jury considered the pattern of escalating violence to be an indication that Johnson would become even more dangerous as he grew older. Even if the jurors viewed Johnson's youth as a transient circumstance, the dangerousness associated with that youth would not dissipate until sometime in the future, and it is reasonably likely that the jurors still would have understood the second question to require an affirmative answer. See Graham v. Collins, 506 U.S. ----, ---- - ----, 113 S.Ct. 892, 926, 122 L.Ed.2d 260 (1993) (SOUTER, J., dissenting). Thus, to the extent that Johnson's youth was relevant at all to the second Texas special issue, there is a reasonable likelihood that it was an aggravating factor.
But even if the jury could give some mitigating effect to youth under the second special issue, the Constitution still would require an additional instruction in this case. The additional instruction would be required because not one of the special issues under the former Texas scheme, see Art. 37.071, allows a jury to give effect to the most relevant mitigating aspect of youth: its relation to a defendant's "culpability for the crime he committed." Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986). A violent and troubled young person may or may not grow up to be a violent and troubled adult, but what happens in the future is unrelated to the culpability of the defendant at the time he committed the crime. A jury could conclude that a young person acted "deliberately," Art. 37.071(b)(1), and that he will be dangerous in the future, Art. 37.071(b)(2), yet still believe that he was less culpable because of his youth than an adult. I had thought we made clear in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), that the vicissitudes of youth bear directly on the young offender's culpability and responsibility for the crime: "[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment expected of adults." Id., at 115-116, 102 S.Ct., at 877 (footnotes and internal quotation marks omitted).
See also Graham, supra, 506 U.S. at ----, 113 S.Ct., at 924 (SOUTER, J., dissenting) ("Youth may be understood to mitigate by reducing a defendant's moral culpability for the crime, for which emotional and cognitive immaturity and inexperience with life render him less responsible").* In my
[WESTm,S.Ct. 2674!]]view, the jury could not express a "reasoned moral response" to this aspect of Johnson's youth in answering any of the special issues. Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256 (1989) (internal quotation marks omitted).
In Graham v. Collins, supra, the Court held that the relief Johnson seeks today was not " 'dictated by precedent' " and therefore not available on collateral review. 506 U.S., at ----, 113 S.Ct., at 897 (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334 (1989) (plurality opinion)). The issue in Graham was not whether an additional instruction to allow the jury to give full effect to Graham's youth was constitutionally mandated. It was only whether the need for such an instruction was "susceptible to debate among reasonable minds." 506 U.S., at ----, 113 S.Ct., at 902 (internal quotation marks omitted). I did not agree with the Court's conclusion in Graham, see id., at ----, 113 S.Ct., at 914 (SOUTER, J., dissenting), but even if I had, I would not find Graham controlling today.
Teague v. Lane, supra, states a rule of collateral review: New constitutional rules will not be applied retroactively to invalidate final state convictions on federal habeas review. Teague analysis is a threshold issue, see id., 489 U.S., at 300-301, 109 S.Ct., at 1070 (plurality opinion), however, and cases that reject a claim as requiring a new rule cannot constitute stare decisis on direct review. The purpose of Teague is to accommodate the competing demands of constitutional imperatives and the "principle of finality which is essential to the operation of our criminal justice system," id., at 309, 109 S.Ct., at 1074. See Desist v. United States, 394 U.S. 244, 260-269, 89 S.Ct. 1030, 1040-1044, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). But the finality concerns of Teague come into play only after this Court has denied certiorari or the time for filing a petition for certiorari from the judgment affirming the conviction has expired. See Griffith v. Kentucky, 479 U.S. 314, 321, n. 6, 107 S.Ct. 708, 712, n. 6, 93 L.Ed.2d 649 (1987). Until that time, the interests of finality and comity that caused us to implement the Teague standards of retroactivity are not at issue. The only demands with which we need, indeed, must concern ourselves are those of the Constitution. On direct review, it is our constitutionally imposed duty to resolve "all cases before us . . . in light of our best understanding of governing constitutional principles," Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 1173, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgment), without regard to reliance interests of the State.
The analysis of our collateral review doctrine, as well as its purpose, makes the majority's emphasis on cases decided under Teague inappropriate in a direct review case. When determining whether a rule is new, we do not ask whether it fairly can be discerned from our precedents; we do not even ask if most reasonable jurists would have discerned it from our precedents. We ask only whether the result was dictated by past cases, or whether it is "susceptible to debate among reasonable minds," Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990). And we have recognized that answering this question is difficult, especially when we are faced with the application of settled law to new facts. Id., at 414-415, 110 S.Ct., at 1217.
If the rule the petitioner sought in Graham was a new rule, it was one only because we had never squarely held that the former Texas special issues required an additional instruction regarding youth. That we have not addressed this particular combination of circumstances on direct review until today, however, cannot create an insurmountable reliance interest in the State of Texas, as the Court suggests. See ante, at ____. To allow our failure to address an issue to create such an interest would elevate our practice of letting issues "percolate" in the 50 States in the interests of federalism over our responsibility to resolve emerging constitutional issues. On direct review, the question is what the Constitution, read in light of our precedents, requires. In my view, the Eighth Amendment requires an additional instruction in this case.
There is considerable support in our early cases for the proposition that the sentencer in a capital case must be able to give full effect to all mitigating evidence concerning the defendant's character and record and the circumstances of the crime. The Court first recognized the need to give effect to mitigating circumstances in the group of capital cases decided after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In three of those cases, Justices Stewart, Powell, and STEVENS upheld capital sentencing laws against facial challenges, in large part because they believed that the statutes narrowed the category of defendants subject to the death penalty at the same time that they allowed for consideration of the mitigating circumstances regarding the individual defendant and the particular crime. See Gregg v. Georgia, 428 U.S. 153, 196-197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976) (joint opinion); Proffitt v. Florida, 428 U.S. 242, 250-253, 96 S.Ct. 2960, 2965-2967, 49 L.Ed.2d 913 (1976) (joint opinion); Jurek v. Texas, 428 U.S. 262, 270-274, 96 S.Ct. 2950, 2955-2957, 49 L.Ed.2d 929 (1976) (joint opinion). In two other cases, the joint opinions found mandatory death penalty statutes unconstitutional. See Woodson v. North Carolina, 428 U.S. 280, 303-305, 96 S.Ct. 2978, 2990-2991, 49 L.Ed.2d 944 (1976) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 333-336, 96 S.Ct. 3001, 3006-3007, 49 L.Ed.2d 974 (1976) (plurality opinion). A mandatory death penalty certainly limited the discretion of the sentencer, but it was not "consistent with the Constitution." Ante, at ____. The plurality opinion in Woodson recognized that allowing a sentencer to consider but not to give effect to mitigating circumstances would result in the arbitrary and capricious jury nullification that prevailed prior to Furman. See Woodson, 428 U.S., at 303, 96 S.Ct., at 2990. Furthermore, "[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind." Id., at 304, 96 S.Ct., at 2991.
We returned to the issue of mitigating circumstances two Terms later. The Ohio death penalty statute required the sentencer to impose the death penalty on a death-eligible defendant unless one of three mitigating circumstances was established by a preponderance of the evidence. See Lockett v. Ohio, 438 U.S. 586, 599, n. 7, and 607, 98 S.Ct. 2954, 2962, n. 7, and 2966, 57 L.Ed.2d 973 (1978) (plurality opinion). In determining the existence of the three circumstances, the sentencer was to consider " 'the nature and circumstances of the offense and the history, character, and condition of the offender.' " Id., at 612, 98 S.Ct., at 2968 (quoting Ohio Rev.Code Ann. § 2929.04(B) (1975)). The Ohio Supreme Court had held that the mitigating circumstances were to be construed liberally, but a plurality of this Court nevertheless found the statute too narrow to pass constitutional muster. Id., at 608, 98 S.Ct., at 2966. The Lockett plurality concluded from the post-Furman cases that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id., 438 U.S., at 604, 98 S.Ct., at 2964 (footnote omitted). The statute at issue specifically directed the sentencer to consider those very factors. Nevertheless, the plurality found the statute unconstitutional because it provided no method by which such consideration could "affect the sentencing decision." Id., at 608, 98 S.Ct., at 2966. Accord, Bell v. Ohio, 438 U.S. 637, 641-642, 98 S.Ct. 2977, 2980, 57 L.Ed.2d 1010 (1978) (petitioner's counsel offered a wide range of mitigating evidence at the penalty phase, and according to the Ohio statute, the sentencer was to consider that evidence; petitioner's death sentence reversed nevertheless because the statute unconstitutionally limited consideration of the evidence as mitigating factors).
The Court next addressed the constitutional requirement that a sentencer be allowed to give full consideration and full effect to mitigating circumstances in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Although the Oklahoma death penalty statute contained no specific restrictions on the types of mitigating evidence that could be considered, neither the Oklahoma trial court nor the Court of Criminal Appeals believed that it could consider, as mitigating factors, the evidence of petitioner's unhappy upbringing and emotional disturbance. See id., at 109-110, 102 S.Ct., at 874. The Court reversed petitioner's death sentence. In so doing, it reaffirmed the rule of Lockett : The sentencer in a capital case must be permitted to consider relevant mitigating factors in ways that can affect the sentencing decision. This rule, the Court explained, accommodated the twin objectives of our Eighth Amendment jurisprudence: "measured, consistent application and fairness to the accused." 455 U.S., at 111, 102 S.Ct., at 875.
Four years later, the Court again made plain that Lockett and Eddings meant what they said. In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), we reiterated that evidence, even if not "relate[d] specifically to petitioner's culpability for the crime he committed," id., at 4, 106 S.Ct., at 1670, must be treated as relevant mitigating evidence if it serves " 'as a basis for a sentence less than death,' " id., at 5, 106 S.Ct., at 1671 (quoting Lockett, supra, 438 U.S., at 604, 98 S.Ct., at 2964). We summarized the "constitutionally permissible range of discretion in imposing the death penalty" the following Term in McCleskey v. Kemp, 481 U.S. 279, 305, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987):
"First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. . . . Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant." Id., at 305-306, 107 S.Ct., at 1774 (emphases added).
We have adhered to this "constitutionally permissible range of discretion" again and again in the years since we decided McCleskey, most recently in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Accord, Hitchcock v. Dugger, 481 U.S. 393, 398-399, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Penry v. Lynaugh, 492 U.S. 302, 319-328, 109 S.Ct. 2934, 2947-2952, 106 L.Ed.2d 256 (1989). The Court attempts to limit these cases by relying on plurality opinions, concurrences, and dicta, see, e.g., ante, at ____, but until today a majority of this Court has declined to upset our settled Eighth Amendment jurisprudence.
Despite the long line of precedent supporting Johnson's argument that the State impermissibly limited the effect that could be given to his youth, the Court, like respondent and the Texas Court of Criminal Appeals, clings doggedly to Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (joint opinion). The interpretation on which the Court today relies, however, has nothing to do with what the Court actually decided in Jurek. Jurek was one of five cases in which this Court evaluated the States' attempts after Furman to enact constitutional death penalty statutes. The statutes at issue had been applied a limited number of times, and, of necessity, the challenges were all facial. The Texas Court of Criminal Appeals, for example, had examined the application of the Texas statute only twice: in Jurek itself, and in one other case. 428 U.S., at 273, 96 S.Ct., at 2957. Because of the posture of the case and the limited history of the statute's application, the Court could not, and did not, determine the statute's constitutionality in all circumstances. Instead, the joint opinion, which contained the narrowest ground of decision in the case, read the Texas court's interpretation of the statute as allowing the jury to consider the "particularized circumstances of the individual offense and the individual offender" before death is imposed. Id., at 274, 96 S.Ct., at 2957. Therefore, the joint opinion held that the statute fell within what we later called the "constitutionally permissible range of discretion in imposing the death penalty," McCleskey v. Kemp, supra, 481 U.S., at 305, 107 S.Ct., at 1774. Jurek, supra, 428 U.S., at 276, 96 S.Ct., at 2958.
Because Jurek involved only a facial challenge to the Texas statute, the constitutionality of the statute as implemented in particular instances was not at issue. Nor was the "as-applied" constitutionality of the statute implicated in any of our cases until Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), for example, the Court still expressed the view that the statute allowed members of the jury to consider all relevant evidence, and to use that evidence in answering the special questions, "while remaining true to their instructions and their oaths." Id., at 46, 100 S.Ct., at 2526. The same is true of the plurality opinion in Lockett, which stated that the joint opinion in Jurek had approved the Texas statute because it "concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question—despite its facial narrowness." 438 U.S., at 607, 98 S.Ct., at 2965.
When the Court addressed its first as-applied challenge to the Texas death penalty statute in Franklin, it was clear that any statements in Jurek regarding the statute's constitutionality were conditioned on a particular understanding of state law. Jurek simply had not upheld the Texas death penalty statute in all circumstances. In fact, five Members of the Court rejected the Franklin plurality's reliance on Jurek and disagreed with the plurality's suggestion that a State constitutionally could 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." 487 U.S., at 183-185, 108 S.Ct., at 2332-2333 (O'CONNOR, J., joined by BLACKMUN, J., concurring in judgment) (emphasis added); id., at 194-200, 108 S.Ct., at 2338-2341 (STEVENS, J., joined by Brennan and Marshall, JJ., dissenting). See also Penry v. Lynaugh, 492 U.S., at 320-321, 109 S.Ct., at 2948 ("[B]oth the concurrence and the dissent [in Franklin ] understood Jurek as resting fundamentally on the express assurance that the special issues would permit the jury to fully consider all the mitigating evidence a defendant introduced").
The view of the five concurring and dissenting Justices that the facial review in Jurek did not decide the issue presented in Franklin is not surprising. After all, the same day we approved the Texas death penalty statute in Jurek, we also approved the death penalty statutes of Georgia and Florida. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (joint opinion). Yet after Gregg and Proffitt and prior to Franklin, we held unconstitutional specific applications of the same Georgia and Florida statutes we earlier had approved. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (vague and overly broad construction of aggravating factor rendered death sentence unconstitutional); Hitchcock v. Dugger, supra (holding it unconstitutional to restrict jury's consideration of mitigating factors to those enumerated in the statute). Despite this majority view of Jurek and the Texas death penalty statute, the Court today relies on the minority view in Franklin. It goes so far as to note with approval the minority position that "Jurek foreclosed the defendant's argument that the jury was still entitled to cast an 'independent' vote against the death penalty even if it answered yes to the special issues." Ante, at ____ (citing Franklin, supra, 487 U.S., at 180, 108 S.Ct., at 2330). This reading of Franklin turns stare decisis on its head.
Although the majority of Justices in Franklin did not accept the contention that the State constitutionally could limit a sentencer's ability to give effect to mitigating evidence, two Justices concurred in the judgment because they believed that on the facts of that case the State had not limited the effect the evidence could be given. 487 U.S., at 185, 108 S.Ct., at 2333 (O'CONNOR, J., joined by BLACKMUN, J., concurring in judgment). Thus, resolution of the issue was left open. The following Term, however, the Court squarely addressed the constitutionality of limiting the effect a Texas jury could give to relevant mitigating evidence, and contrary to the majority opinion today, we plainly held that the Texas special issues violated the Eighth Amendment to the extent they prevented the jury from giving full consideration and effect to a defendant's relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).
Penry was in no way limited to evidence that is only aggravating under the "future dangerousness" issue. We stated there that "Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence." Id., at 319, 109 S.Ct., at 2947. That we meant "full effect" is evident from the remainder of our discussion. We first determined that Penry's evidence of mental retardation and his abused childhood was relevant to the question whether he acted deliberately under the first special issue. Id., at 322, 109 S.Ct., at 2948. But having some relevance to an issue was not sufficient, and the problem was not, as the Court today suggests, see ante, at ____, simply that no jury instruction defined the term "deliberately." Instead, we noted that the jury must be able to give effect to the evidence as it related to Penry's "[p]ersonal culpability," which "is not solely a function of a defendant's capacity to act 'deliberately.' " 492 U.S., at 322, 109 S.Ct., at 2948. The jury could not give full effect to Penry's evidence under the first special issue because "deliberately" was not defined "in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability." Id., at 323, 109 S.Ct., at 2949. That is, the evidence had relevance beyond the scope of the first issue. Id., at 322, 109 S.Ct., at 2948.
We concluded that the second special issue, like the first, did not allow a jury to give effect to a mitigating aspect of mental retardation: the diminution of culpability. Id., at 323-324, 109 S.Ct., at 2949. The Court today makes much of our finding that the "only" relevance of Penry's evidence to the second issue was as an aggravating factor, see id., at 323, 109 S.Ct., at 2949. Ante, at ____. But in so doing, it takes our factual description of Penry's evidence as a "two-edged sword" out of context. The second special issue was not inadequate because the evidence worked only against Penry; it was inadequate because it did not allow the jury to give full effect to Penry's mitigating evidence. Penry, 492 U.S., at 323, 109 S.Ct., at 2949. Our discussion of the third special issue—whether the defendant's conduct was unreasonable in response to the provocation—also focused on the inability of a juror to express the view that Penry lacked "the moral culpability to be sentenced to death" in answering the question. Id., at 324-325, 109 S.Ct., at 2950. The point of Penry is clear: A death sentence resulting from application of the Texas special issues cannot be upheld unless the jurors are able to consider fully a defendant's mitigating evidence. Accord, id., at 355, 109 S.Ct., at 2966 (SCALIA, J., concurring in part and dissenting in part) (The Court today holds "that the constitutionality turns on whether the [special] questions allow mitigating factors not only to be considered . . ., but also to be given effect in all possible ways, including ways that the questions do not permit").
Our recent cases are not to the contrary. In Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), for example, the Court relied on two straightforward propositions to reject petitioner's claim that the California death penalty was unconstitutional. First, we rejected the argument that requiring the jury to weigh aggravating and mitigating factors, and then sentence petitioner accordingly, violated the requirement of individualized sentencing. The petitioner in Boyde did not allege that the instruction interfered with the jury's consideration of mitigating evidence; instead, he essentially argued for the constitutional right to an instruction on jury nullification. See id., at 377, 110 S.Ct., at 1196. We also addressed (and rejected) petitioner's challenge to a "catch-all" instruction that told the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Id., at 374, 110 S.Ct., at 1194 (internal quotation marks omitted). We reiterated our long-time understanding that the "Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner," id., at 377-378, 110 S.Ct., at 1196, but found that the challenged instruction did not "restrict impermissibly [the] jury's consideration of relevant evidence," id., at 378, 110 S.Ct., at 1197. Accord, id., at 382-384, 110 S.Ct., at 1199-1200. Our holding in Boyde did not constrict or limit our prior cases on the requirements of the Eighth Amendment.
The Court's reliance on Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), also is misplaced. In Saffle, the only issue was whether it would be a new rule under the standards of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), for a defendant to be entitled to an instruction allowing the jury to decline to impose the death penalty based on mere sympathy. We held that it would. 494 U.S., at 489, 110 S.Ct., at 1260. To be sure, there is language in Saffle suggesting that a State may limit a sentencer's consideration of mitigating evidence so long as the sentencer may give some effect to the evidence. See, e.g., id., at 490-491, 110 S.Ct., at 1261. But to the extent Saffle suggests anything more than that the State may prevent the sentencer from declining to impose the death penalty based on mere sympathy, the language is dictum and cannot be construed as overruling 17 years of precedent. Limiting a sentencer's discretion to react based on unfocused sympathy is not the equivalent of preventing a sentencer from giving a "reasoned moral response," id., at 493, 110 S.Ct., at 1263 (internal quotation marks omitted), based on "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death," id., at 489, 110 S.Ct., at 1260 (internal quotation marks omitted). This Court has reaffirmed continually since 1976 that the Constitution prohibits the latter limitation.
* * *
"[Y]outh is more than a chronological fact." Eddings, 455 U.S., at 115, 102 S.Ct., at 877. The emotional and mental immaturity of young people may cause them to respond to events in ways that an adult would not. Because the jurors in Johnson's case could not give effect to this aspect of Johnson's youth, I would vacate Johnson's sentence and remand for resentencing.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
The Texas Legislature amended the statute in 1991. See Art. 37.071(2) (Vernon Supp.1992-1993).
The statute also required that a third special issue, asking whether the defendant's act was "unreasonable in response to the provocation, if any, by the deceased," be submitted to the jury "if raised by the evidence." Art. 37.071(b)(3) (Vernon 1981). Petitioner does not contest the trial court's decision not to submit the third special issue in this case.
The colloquy on this point between petitioner's counsel and Juror Raborn is illustrative of the discussions had with the other jurors:
"Q. Okay. Do you feel that—let me ask you this. Do you feel a person who is—or a young person will do things that they will not do in later years, thirty or forty —
"A. I believe that.
"Q. Do you believe that people can change?
"A. Yes, I believe they can. I've known some that have.
"Q. Do you think that the way a person acts in the present or the past or how he has acted in the past is an absolute indicator of what he will do in the future, thirty or forty years down the road?
"A. No, not on down the line. Like I say, you can change." Tr. of Voir Dire 2630-2631.
Once an Ohio defendant was found guilty of aggravated murder involving at least one of seven aggravating circumstances, the judge was required to sentence the defendant to death unless at least one of three mitigating circumstances was present: (1) the victim induced or facilitated the offense; (2) it is unlikely the crime would have been committed but for the fact that the defendant was acting under duress, coercion, or strong provocation; or (3) the offense was primarily the product of the defendant's psychosis or mental deficiency. See Lockett, 438 U.S., at 607-608, 98 S.Ct., at 2966.
Of the 36 States that have death penalty statutes, 30 either specifically list the age of the defendant as a mitigating circumstance or prohibit the execution of those under 18. See Ala.Code § 13A-5-51(7) (1982); Ariz.Rev.Stat.Ann. § 13-703(G)(5) (1989); Ark.Code Ann. § 5-4-605(4) (1987); Cal.Penal Code Ann. § 190.3(i) (West 1988); Colo.Rev.Stat. §§ 16-11-802(1)(a), (4)(a) (Supp.1992); Conn.Gen.Stat. § 53a-46a(g)(1) (1985); Fla.Stat. §§ 921.141(6)(g), 921.142(7)(f) (Supp.1992); 720 ILCS 5/9-1(c) (1992); Ind.Code § 35-50-2-9(c)(7) (Supp.1992); Ky.Rev.Stat.Ann. § 532.025(2)(b)(8) (Baldwin 1989); La.Code Crim.Proc.Ann., Art. 905.5(f) (West 1984); Md.Ann.Code, Art. 27, § 413(g)(5) (Supp.1992); Miss.Code Ann. § 99-19-101(6)(g) (Supp.1992); Mo.Rev.Stat. § 565.032.3(7) (Supp.1992); Mont.Code Ann. § 46-18-304(7) (1991); Neb.Rev.Stat. § 29-2523(2)(d) (1989); Nev.Rev.Stat. § 200.035(6) (1992); N.H.Rev.Stat.Ann. § 630:5(VI)(d) (Supp.1992); N.J.Stat.Ann. § 2C:11-3(c)(5)(c) (West 1982); N.M.Stat.Ann. § 31-20A-6(I) (1990); N.C.Gen.Stat. § 15A-2000(f)(7) (1988); Ohio Rev.Code Ann. § 2929.04(B)(4) (1993); Ore.Rev.Stat. § 163.150(1)(c)(A) (1991); Pa.Cons.Stat.Ann., Tit. 42, § 9711(e)(4) (Purdon 1982); S.C.Code Ann. § 16-3-20(C)(b)(7) (Supp.1992); Tenn.Code Ann. § 39-13-204(j)(7) (1991); Utah Code Ann. § 76-3-207(3)(e) (Supp.1992); Va.Code Ann. § 19.2-264.4(B)(v) (1990); Wash.Rev.Code § 10.95.070(7) (1992). The remaining six States allow the jury to consider any evidence in mitigation without specifying examples. See Del.Code Ann., Tit. 11, § 4209(c) (1987 and Supp.1992); Ga.Code Ann. § 17-10-30(b) (1990); Idaho Code § 19-2515(c) (1987); Okla.Stat., Tit. 21, § 701.10(C) (Supp.1992); S.D. Codified Laws § 23A-27A-1 (Supp.1993); current Tex.Code Crim.Proc.Ann., Art. 37.071, § 2(e) (Vernon Supp.1993).