Antonin Scalia

“ What the Court means by "fully consider" (what it must mean to distinguish Jurek ) is to consider for all purposes, including purposes not specifically permitted by the questions. But there was no such assurance at all. To the contrary, the portion of the Texas Court of Criminal Appeals' opinion quoted in Jurek to evidence the assurance began: " 'In determining the likelihood that the defendant would be a continuing threat to society [i.e., in considering the second question under the Texas statute] , the jury could consider . ”

“ While it is true that our cases have held that "a death penalty statute must not preclude consideration of relevant mitigating factors," including "any aspect of a defendant's character or record and any of the circumstances of the offense," Lockett v. Ohio, 438 U.S. 586, 604, 608, 98 S.Ct. 2954, 2964, 2966, 57 L.Ed.2d 973 (1978) ; see also Eddings v. Oklahoma, 455 U.S. 104, 110-112, 102 S.Ct. 869, 874-876, 71 L.Ed.2d 1 (1982) , we have never held that "the State has no role in structuring or giving shape to the jury's consideration of these mitigating factors." ”

“ I disagree with the holding in Part II-B of the Court's opinion that petitioner's contention, that his sentencing was unconstitutional because the Texas jury was not permitted fully to consider and give effect to the mitigating evidence of his mental retardation and background of abuse, does not seek the application of a "new rule" and is therefore not barred by Teague. ”

“ That is why, in Jurek, we did not regard the Texas Special Issues as inherently bad, but to the contrary thought them a desirable means of "focus [ing] the jury's objective consideration of the particularized circumstances," 428 U.S., at 274, 96 S.Ct., at 2957, or, as the plurality put it in Franklin, "channel [ing] jury discretion . . . to achieve a more rational and equitable administration of the death penalty," 487 U.S., at 181, 108 S.Ct., at 2331. ”

“ If it is not unusual, that is, if an objective examination of laws and jury determinations fails to demonstrate society's disapproval of it, the punishment is not unconstitutional even if out of accord with the theories of penology favored by the Justices of this Court. ”

“ Unlike Justice O'CONNOR, however, I think we need go no further to resolve the Eighth Amendment issue. Part IV-C of her opinion goes on to examine whether application of the death penalty to mentally retarded offenders "violates the Eighth Amendment because it 'makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering' or because it is 'grossly out of proportion to the severity of the crime.' " Ante, at 335 (citations omitted) . ”

“ It is out of order there as well. As noted at the outset of this discussion, our law regarding capital sentencing has sought to strike a balance between complete discretion, which produces "wholly arbitrary and capricious action," Gregg, 428 U.S., at 189, 96 S.Ct., at 2932, and no discretion at all, which prevents the individuating characteristics of the defendant and of the crime to be taken into account, Woodson, supra, at 303-304, 96 S.Ct., at 2990-2991. ”