William J. Brennan, Jr.

“ The majority suggests that Lockett and Eddings do not compel the invalidation of the antisympathy instruction because the instruction ensures that the decision to impose the death penalty is "a 'reasoned moral response,' rather than an emotional one." ”

“ Most of the majority opinion addresses the retroactivity of a claim not even raised by respondent. The majority mischaracterizes respondent's claim as one demanding that "jurors be allowed to base the sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating evidence," ante, at 489, and holds that claim barred by Teague. ”

“ More specifically, he claims that because much of the mitigating evidence relevant to his culpability also evoked sympathy, a juror who reacted sympathetically to the evidence would have believed that he was not entitled to consider that evidence at all-not even for its "moral" weight. ”

“ If the irrevocable nature of the death penalty is not sufficient to counsel against application of Justice Harlan's doctrine of limited retroactivity for collateral review altogether, [7] it should at least inform the determination of the proper scope of the second Teague exception in capital cases. [8] Moreover, the majority's insistence that a rule must enhance the accuracy of the factfinding process in order to fit within the second exception is difficult to justify in the context of capital sentencing. ”

“ The rule Penry seeks-that when such mitigating evidence is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether the death penalty should be imposed-is not a 'new rule' under Teague because it is dictated by Eddings and Lockett. ”

“ It was on this claim that the Tenth Circuit granted respondent habeas corpus relief. 860 F.2d, at 1556. The court reasoned as follows:
" 'Mercy,' 'humane' treatment, 'compassion,' and consideration of the unique 'humanity' of the defendant, which have all been affirmed as relevant considerations in the penalty phase of a capital case, all inevitably involve sympathy or are sufficiently intertwined with sympathy that they cannot be parsed without significant risk of confusion in the mind of a reasonable juror. . . . ”

“ He either deserves the death penalty or he doesn't, you know. You leave the sympathy, and the sentiment and prejudice part out of it." App. 75.
Given the sparse amount of evidence presented at the sentencing phase and the prosecutor's theme that the jury's deliberations were to be purely mechanical, [13] there is a reasonable likelihood that the jury believed that the antisympathy instruction barred it from considering respondent's deprived background as a valid reason not to impose the death penalty. ”

“ Until today, the Court consistently has vacated a death sentence and remanded for resentencing when there was any ambiguity about whether the sentencer actually considered mitigating evidence. See Eddings v. Oklahoma, 455 U.S., at 119, 102 S.Ct., at 879 (O'CONNOR, J., concurring) ("Woodson and Lockett require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the [sentencer] ") . See also Penry, supra, 492 U.S., at 328, 109 S.Ct., at 2952 ”

“ The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence. ”

“ Today, the Court holds that respondent is not entitled to relief because his claim would require the application of a "new rule" that may not be applied retroactively on collateral review. [1] The Court displays undue eagerness to apply the new standard for retroactivity announced in Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347, at the expense of thoughtful legal analysis. I cannot countenance such carelessness when a life is at stake. I dissent. I
In Teague v. ”

“ Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979) ) .↑ The trial judge instructed the jury as follows:↑ Although the prosecutor's comments do not have the force of law, they often are a useful aid in determining how a reasonable juror could have interpreted a particular instruction. See Boyde, 494 U.S., at 385, 110 S.Ct., at 1200 (" [A] rguments of counsel, like the instructions of the court, must be judged in the context in which they are made") ”