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Eighth Amendment - capital sentencing instructions.



I. INTRODUCTION

In Johnson v. Texas,(1) the United States Supreme Court United States Supreme Court: see Supreme Court, United States.  held that the Texas capital sentencing statute did not violate the Eighth Amendment rights of petitioner Dorsie Lee Johnson Lee Johnson is the name of:
  • Lee Johnson (American football player) (born in 27 November 1961 in Conroe, Texas), a former American football player
  • Lee Johnson (footballer) (born 7 June 1981 in Newmarket), an English professional footballer
, Jr.(2) The Court ruled that the trial court was not constitutionally required to instruct in·struct  
v. in·struct·ed, in·struct·ing, in·structs

v.tr.
1. To provide with knowledge, especially in a methodical way. See Synonyms at teach.

2. To give orders to; direct.

v.
 the jury to consider mitigating aspects of Johnson's youth independent of the statute's special issue framework.(3) According to according to
prep.
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

3.
 the Court, the jury was able to adequately consider all of the mitigating evidence proferred by johnson, including evidence of his youth, through an assessment of Johnson's future dangerousness.(4)

This Note argues that the Court, by failing to recognize the importance of Johnson's moral culpability culpability (See: culpable)  as a factor in sentencing, incorrectly held that the Texas capital sentencing statute was constitutional as applied to Johnson. Consistent with Justice O'Connor's dissenting opinion dissenting opinion n. (See: dissent) , this Note asserts that the Eighth Amendment requires the level of punishment for a crime to be directly proportional (Math.) proportional in the order of the terms; increasing or decreasing together, and with a constant ratio; - opposed to inversely proportional.

See also: Directly
 to a defendant's moral culpability. Because the Texas sentencing statute precluded the jury from giving "independent mitigating weight" to Johnson's youth, this Note argues that the statute failed to meet the constitutional requirement of proportional punishment. In addition, this Note argues that under the Eighth Amendment, the jury must be able to consider fully all of a defendant's proferred mitigating evidence as it relates to his moral culpability.

II. BACKGROUND

The Eighth Amendment to the Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."(5) The Court's first significant interpretation of the Eighth Amendment's role in capital sentencing procedure appeared in Furman v. Georgia In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the U.S. Supreme Court struck down three death sentences, finding that they constituted Cruel and Unusual Punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. .(6) In Furman, the Court held that a system which allowed unconstrained jury discretion at the sentencing phase of a capital trial violated vi·o·late  
tr.v. vi·o·lat·ed, vi·o·lat·ing, vi·o·lates
1. To break or disregard (a law or promise, for example).

2. To assault (a person) sexually.

3.
 the Eighth Amendment's prohibition against "cruel and unusual punishment Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the Common Law, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community. ."(7) To protect against the risk of arbitrary and capricious capricious adv., adj. unpredictable and subject to whim, often used to refer to judges and judicial decisions which do not follow the law, logic or proper trial procedure. A semi-polite way of saying a judge is inconsistent or erratic.  death penalty sentences, the Court concluded that the Eighth Amendment requires states to channel the discretion of sentencing juries through appropriate statutory schemes.(8)

In response to Furman, some states adopted mandatory statutory sentencing schemes to reduce the risk of arbitrary and capricious decision making.(9) Although mandatory sentencing A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison. Mandatory sentencing laws vary from country to country.  produced uniformity in the capital sentencing process, systems that prevented the sentencer sen·tenc·er  
n.
One, such as a court or judge, that pronounces sentence.
 from considering the character of the defendant and the nature of his crime remained unjust UNJUST. That which is done against the perfect rights of another; that which is against the established law; that which is opposed to a law which is the test of right and wrong. 1 Toull. tit. prel. n. 5; Aust. Jur. 276, n.; Hein. Lec. El. Sec. 1080. . In two 1976 cases, the Court recognized that the "fundamental respect for humanity underlying the Eighth Amendment" required sentencing statutes to follow another principle that conflicted with the principle stated in Furman.(10) The Court stated that "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."(11) Since the mandatory sentencing statutes in question did not allow for the consideration of mitigating evidence, the Court determined that both statutes constituted "cruel and unusual punishment" within the scope of the Eighth Amendment.(12)

In 1978, the Supreme Court again confronted the conflict between the Eighth Amendment's requirement of uniformity in a capital sentencing scheme and the need for a sentencer to consider the individual nature of a defendant and his crime. In Lockett v. Ohio,(13) the defendant claimed "that her death sentence [was] invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime."(14) In response to Lockett's contention, the Court acknowledged that the cases following Furman had not provided states with clear and adequate guidelines guidelines,
n.pl a set of standards, criteria, or specifications to be used or followed in the performance of certain tasks.
 for constructing capital sentencing statutes.(15) The Court refined the Eighth Amendment's requirements in an attempt to eliminate the apparent tension between the principle that states must channel jury discretion and the notion that a sentencer must consider both the particularized par·tic·u·lar·ize  
v. par·tic·u·lar·ized, par·tic·u·lar·iz·ing, par·tic·u·lar·iz·es

v.tr.
1. To mention, describe, or treat individually; itemize or specify.

2.
 characteristics of the defendant and the particularized nature of the crime.(16)

Given the severity of the choice between life and death, the Court concluded that "[t]he need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases."(17) To ensure that a defendant is not denied this "degree of respect," the Court placed a great deal of weight on the sentencer's ability to consider the individualized in·di·vid·u·al·ize  
tr.v. in·di·vid·u·al·ized, in·di·vid·u·al·iz·ing, in·di·vid·u·al·iz·es
1. To give individuality to.

2. To consider or treat individually; particularize.

3.
 nature of the defendant:

[W]e conclude 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.(18)

Since the sentencing statute created the risk that the death penalty would be imposed despite mitigating factors that may have called for a less severe sentence, the Ohio statute was incompatible with the Eighth Amendment.(19)

Responding to the Supreme Court's evolving capital punishment capital punishment, imposition of a penalty of death by the state. History


Capital punishment was widely applied in ancient times; it can be found (c.1750 B.C.) in the Code of Hammurabi.
 jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. , Texas adopted a unique capital sentencing scheme. The scheme contained two basic components. First, the scheme limited the application of capital punishment to intentional in·ten·tion·al  
adj.
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.

2. Having to do with intention.
 and knowing murders committed in six situations.(20) Second, the statute instructed the sentencer to answer three special issues to determine whether the defendant should be sentenced to death.(21) If the sentencer answered the special issues in the affirmative AFFIRMATIVE. Averring a fact to be true; that which is opposed to negative. (q.v.)
     2. It is a general rule of evidence that the affirmative of the issue must be proved. Bull. N. P. 298 ; Peake, Ev. 2.
     3.
, then the court had no choice but to impose the death penalty.(22)

The Supreme Court first considered the constitutionality of this Texas capital sentencing statute in Jurek v. Texas.(23) In Jurek, the defendant was convicted for the murder of a ten-year-old girl committed during the course of a kidnapping kidnapping, in law, the taking away of a person by force, threat, or deceit, with intent to cause him to be detained against his will. Kidnapping may be done for ransom or for political or other purposes.  and attempted rape.(24) Since the offense was one of the specified capital crimes listed in Texas' sentencing statute, the trial court instructed the jury to determine the defendant's punishment based solely on the answers to the two relevant special issues.(25) A unanimous jury answered both questions in the affirmative and, accordingly, the judge sentenced the defendant to death.(26)

The defendant appealed all the way to the Supreme Court, arguing that the post-Furman changes in Texas' sentencing statute were "no more than cosmetic in nature and ha[d] in fact not eliminated the arbitrariness and caprice ca·price  
n.
1.
a. An impulsive change of mind.

b. An inclination to change one's mind impulsively.

c.
 of the system held in Furman to violate the Eighth and Fourteenth Amendments."(27) Analyzing the statute in light of the competing principles expressed in Furman and the mandatory sentencing cases,(28) the Court reasoned that the "constitutionality of the Texas procedures turns on whether the enumerated This term is often used in law as equivalent to mentioned specifically, designated, or expressly named or granted; as in speaking of enumerated governmental powers, items of property, or articles in a tariff schedule.  questions [special issues] allow consideration of particularized mitigating factors."(29) The Court examined the Texas Court of Criminal Appeals' interpretation of the second special issue to resolve this essential question.(30) The Texas Court of Criminal Appeals The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in the State of Texas. The Court, which is based in Austin, is composed of a Presiding Judge and eight Judges.  had "indicated that it will interpret the second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances Circumstances that may be considered by a court in determining culpability of a defendant or the extent of damages to be awarded to a plaintiff. Mitigating circumstances do not justify or excuse an offense but may reduce the severity of a charge.  he may be able to show."(31) Based on this broad interpretation of the second issue, the Supreme Court concluded that "the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death."(32) As a result, the Texas sentencing statute did not violate the requirements of the Eighth Amendment.(33)

Although Jurek resolved the question of the facial constitutionality of Texas' capital sentencing statute, the principles expressed in Lockett v. Ohio(34) two years later prompted several new challenges to the Texas death penalty system.(35) The new challenges did not contest the general constitutionality of the Texas statute; rather, they focused on a sentencer's ability to fully consider particular types of mitigating evidence under the special issues format.

In Franklin v. Lynaugh,(36) a convicted defendant claimed that the special issue instructions required by the Texas statute "did not allow the jury to give adequate weight to the mitigating evidence of [his] good behavior Orderly and lawful action; conduct that is deemed proper for a peaceful and law-abiding individual.

The definition of good behavior depends upon how the phrase is used.
 while in prison."(37) The defendant argued that the mitigating evidence he presented to the jury had significance, as a reflection on his character, independent of its relevance to the special issues.(38) Rejecting the defendant's assertion, the Court concluded that "the jury was surely free to weigh and evaluate petitioner's disciplinary record as it bore on his |character' . . . as measured by his likely future behavior."(39) Since the jury was able to weigh the mitigating evidence in relation to the second special issue, there was no constitutional requirement that the jury should have been able "to cast an |independent' vote against the death penalty" apart from its answers to the special issues.(40)

By reaffirming the constitutionality of Texas' death penalty statute, the Court indicated that Lockett's emphasis on mitigating evidence did not suggest that Jurek should be overruled or modified. The Court stated that "we have never suggested that jury consideration of mitigating evidence must be undirected or unfocused un·fo·cused also un·fo·cussed  
adj.
1. Not brought into focus: an unfocused lens.

2.
; we have never concluded that States cannot channel jury discretion in capital sentencing in an effort to achieve a more rational and equitable administration of the death penalty."(41) Because the Texas special issue format channeled jury discretion in a way that did not preclude the jury from considering relevant mitigating evidence, the Court was not inclined to overrule The refusal by a judge to sustain an objection set forth by an attorney during a trial, such as an objection to a particular question posed to a witness. To make void, annul, supersede, or reject through a subsequent decision or action.  Jurek.(42)

In her concurring opinion Noun 1. concurring opinion - an opinion that agrees with the court's disposition of the case but is written to express a particular judge's reasoning
judgement, legal opinion, opinion, judgment - the legal document stating the reasons for a judicial decision;
 in Franklin, however, Justice O'Connor expressed some doubts about the constraints that the Texas system imposed on a jury's consideration of mitigating evidence. Injustice O'Connor's view, the punishment in a capital case "should be directly related to the personal culpability of the criminal defendant."(43) As long as the mitigating evidence introduced by a defendant is only relevant to the special issues, the jury should be able to decide the appropriate punishment.(44) However, to the extent the mitigating evidence "had relevance to the defendant's moral culpability beyond the scope of the special verdict special verdict n. the jury's decisions or findings of fact with the application of the law to those facts left up to the judge, who will then render the final verdict.  questions, the jury instructions Jury instructions are the set of legal rules that jurors must follow when the jury is deciding a civil or criminal case. Jury instructions are given to the jury by the judge, who usually reads them aloud to the jury.  would have provided the jury with no vehicle for expressing its |reasoned moral response' to that evidence."(45) Although Justice O'Connor concluded that the facts of Franklin did not present such a situation, her opinion paved pave  
tr.v. paved, pav·ing, paves
1. To cover with a pavement.

2. To cover uniformly, as if with pavement.

3. To be or compose the pavement of.
 the way for future attacks on the Texas special issues based on a sentencer's inability to consider the effect of mitigating evidence on moral culpability.

A year later, in Penry v. Lynaugh Penry v. Lynaugh, 492 U.S. 302 (1989), sanctioned the death penalty for mentally retarded offenders because the Court determined executing the mentally retarded was not "cruel and unusual punishment" under the Eighth Amendment. ,(46) a defendant claimed that the Texas death penalty statute did not allow the jury to consider and give mitigating effect to evidence of his mental retardation mental retardation, below average level of intellectual functioning, usually defined by an IQ of below 70 to 75, combined with limitations in the skills necessary for daily living. . Delivering the opinion of the Court, Justice O'Connor stated that the Texas statute violated the defendant's Eighth Amendment rights because it did not allow the jury to express a "reasoned moral response" to the evidence of mental retardation in rendering its sentencing decision.(47)

In respect to the statute's first special issue,(48) Justice O'Connor concluded that, while the jury was able to consider the evidence in determining whether the defendant had acted "deliberately," it was unable to consider fully the evidence because the defendant's mental retardation "had relevance to [his] moral culpability beyond the scope of the special verdict question."(49) Clearly, a rational juror juror n. any person who actually serves on a jury. Lists of potential jurors are chosen from various sources such as registered voters, automobile registration or telephone directories.  could have determined that the defendant had acted deliberately, while at the same time recognizing that he was less morally culpable Blameworthy; involving the commission of a fault or the breach of a duty imposed by law.

Culpability generally implies that an act performed is wrong but does not involve any evil intent by the wrongdoer.
 than defendants who were not mentally retarded Noun 1. mentally retarded - people collectively who are mentally retarded; "he started a school for the retarded"
developmentally challenged, retarded
.(50)

Like the first special issue, the special issue regarding "future dangerousness" did not allow the jury to consider fully the mitigating effect of the defendant's mental retardation.(51) Justice O'Connor described the evidence the defendant introduced at trial as a "two-edged sword."(52) While the defendant's mental retardation substantially impaired his ability to learn from past mistakes, it also reduced his moral culpability for the crime committed.(53) Within the confines con·fine  
v. con·fined, con·fin·ing, con·fines

v.tr.
1. To keep within bounds; restrict: Please confine your remarks to the issues at hand. See Synonyms at limit.
 of the special issues, the jury had no choice but to consider the defendant's mental retardation solely as an aggravating ag·gra·vate  
tr.v. ag·gra·vat·ed, ag·gra·vat·ing, ag·gra·vates
1. To make worse or more troublesome.

2. To rouse to exasperation or anger; provoke. See Synonyms at annoy.
 factor in its "future dangerousness" inquiry.(54) As a result, the jury was not able to reduce the sentence in accordance with the defendant's diminished moral blameworthiness blame·wor·thy  
adj. blame·wor·thi·er, blame·wor·thi·est
Deserving blame; reprehensible.



blame
.(55)

While the Court stopped short of overruling o·ver·rule  
tr.v. o·ver·ruled, o·ver·rul·ing, o·ver·rules
1.
a. To disallow the action or arguments of, especially by virtue of higher authority:
 Jurek, Penry represented a break from prior cases upholding the constitutionality of the Texas capital sentencing statute. Justice O'Connor's doubts about the Texas system, first expressed in Franklin, were a driving force behind the Court's re-evaluation of the special issue jury instruction format.

Recently, in Graham v. Collins,(56) the Court encountered another Eighth Amendment challenge to the Texas special issue jury instructions. Relying on Penry, the defendant argued that the jury was not able to give full effect to mitigating evidence of his youth, family background, and positive character traits.(57) The Court ruled, however, that Penry could not be extended to the facts in Graham.(58) Unlike the aggravating nature of the mental retardation evidence in Penry, the evidence of Graham's youth "had mitigating relevance to the second special issue concerning his likely future dangerousness."(59)

Although the Court applied the analysis in Penry to Graham's claim, the Court based its holding against Graham on other grounds.(60) Because Graham brought the case before the Court on collateral review, the Court had to determine initially whether granting Graham relief would create a new rule of constitutional law under Teague v. Lane.(61) To resolve this threshold issue, the Court implemented a standard that required it to rule against Graham "unless reasonable jurists The following lists are of prominent jurists, including judges, listed in alphabetical order by jurisdiction. See also list of lawyers. Antiquity
  • Hammurabi
  • Solomon
  • Manu
  • Chanakya
 hearing petitioner's claim at the time his conviction became final |would have felt compelled by existing precedent' to rule in [his] favor."(62) Since "reasonable jurists may [have] disagree[d]" about whether precedent dictated Graham's requested relief, the Court concluded that Graham was asking for a new constitutional rule.(63) By dismissing Graham's claim under Teague, the Court did not deal directly with whether "Penry reasonably could be read to suggest that Graham's mitigating evidence was not adequately considered under the former Texas procedures."(64)

Recognizing the inadequacies of the Texas capital sentencing statute, as pointed out in Penry, the Texas legislature The Texas Legislature is the state legislature of the U.S. state of Texas. The legislature meets at the Texas State Capitol in Austin. In Texas, the Legislature is considered the most powerful branch of state government because of its aggressive use of the power of the purse to  amended the statute in 1991.(65) The amendment explicitly required courts to instruct the sentencing jury to consider all of a defendant's mitigating evidence, not only as it relates to the special issues, but also as it pertains to the defendant's moral culpability.(66) Although the amendment provides a more appropriate punishment procedure for defendants convicted of offenses committed on or after September 1, 1991, individuals who committed offenses prior to that date, such as Dorsie Lee Johnson, Jr., must continue to challenge the constitutionality of the former statute.(67)

III. FACTS AND PROCEDURAL HISTORY

Late in the evening on March 23, 1986, petitioner Dorsie Lee Johnson, Jr., and a female companion developed a plan to commit an armed robbery of a convenience store in Snyder, Texas Snyder is a city in Scurry County, Texas, United States. The population was 10,783 at the 2000 census. It is the county seat of Scurry CountyGR6 and is located on Deep Creek, a minor tributary of the Colorado River. .(68) As part of their plan, Johnson, age nineteen, and his companion agreed that there should be no witnesses to the proposed robbery.(69) After an initial surveillance of the store, Johnson, carrying a handgun in his pocket, entered the store with his companion to execute the robbery.(70)

Shortly after entering the convenience store, Johnson instructed the only clerk on duty to lie down on the floor while his companion emptied the cash register of about $160.00.(71) Although the clerk passively complied with Johnson's order, Johnson fired a fatal bullet directly into the back of the clerk's neck. Having eliminated the only witness to the robbery, Johnson and his companion rushed out of the store and left the crime scene undetected.(72)

A few weeks later, Johnson attempted a similar armed robbery in Colorado City, Texas.(73) This attempt proved unsuccessful, and Johnson was arrested for the robbery and attempted murder In the criminal law, attempted murder is committed when the defendant does an act that is more than merely preparatory to the commission of the crime of murder and, at the time of these acts, the person has a specific intention to kill.  of the Colorado City store clerk. Following his arrest, Johnson voluntarily confessed to the murder and robbery in Snyder.(74) As a result of Johnson's confession, a Texas trial court convicted him of capital murder.(75)

Consistent with Texas law, an independent sentencing hearing followed Johnson's conviction.(76) At the beginning of the sentencing stage, the court instructed the jury to answer two special issues as stated in the Texas capital sentencing statute.(77) The court told the jury that the answers to these special issues would determine whether Johnson would be put to death for his crimes.(78) For the first issue, the jury had to decide whether "the conduct of the [d]efendant ... that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result."(79) Following this determination, the jury had to determine whether there was a "probability that the [d]efendant . . . would commit criminal acts of violence that would constitute a continuing threat to society."(80) In determining both of these special issues, the court instructed the jury to consider "all the evidence submitted . . . in the trial of this case, whether aggravating or mitigating in nature."(81)

While the prosecution presented numerous witnesses in an attempt to convince the jury to answer the special issues in the affirmative,(82) Johnson's attorney presented only one witness--Johnson's father.(83) Johnson's father explained to the jury that his son's criminal activities were primarily the result of drug use and youth.(84) In regard to the effects of youth, he stated:

[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.(85)

After considering all of the evidence, a unanimous jury returned affirmative answers to both special issues.(86) Based on the jury's findings, the court sentenced Johnson to death by lethal injection.(87)

Rejecting all seven of Johnson's alleged errors,(88) none of which involved a challenge to the court's sentencing instructions, the Texas Court of Criminal Appeals affirmed af·firm  
v. af·firmed, af·firm·ing, af·firms

v.tr.
1. To declare positively or firmly; maintain to be true.

2. To support or uphold the validity of; confirm.

v.intr.
 Johnson's conviction and death sentence.(89) Five days later, the Supreme Court decided Penry v. Lynaugh.(90) In response to Penry, Johnson filed a motion for rehearing rehearing n. conducting a hearing again based on the motion of one of the parties to a lawsuit, petition or criminal prosecution, usually by the court or agency which originally heard the matter.  in the Texas Court of Criminal Appeals, alleging that the special issues required by the Texas capital sentencing statute violated his Eighth Amendment rights because they did not allow for sufficient consideration of the mitigating factor of youth.(91) Once again, the court rejected Johnson's argument, finding that "the jury was able to express a reasoned moral response to [Johnson's] mitigating evidence within the scope of the . . . instructions given to them by the trial court."(92)

Johnson continued to challenge the constitutionality of his death sentence by filing a petition for certiorari certiorari

In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court; it was later expanded to include writs
 with the United States Supreme Court.(93) The Court granted Johnson's petition(94) to decide the question of whether the Texas special issues allowed the jury to adequately consider the mitigating effect of Johnson's youth.(95)

IV. THE SUPREME COURT OPINIONS

A. THE MAJORITY OPINION

Writing for the majority,(96) Justice Kennedy concluded that the Texas special issue format did not violate the Eighth Amendment rights of Dorsie Lee Johnson, Jr.(97) Justice Kennedy found no support in Furman and its progeny PROGENY - 1961. Report generator for UNIVAX SS90.  for Johnson's contention that the sentencing statute unconstitutionally limited the jury's consideration of the mitigating evidence of his youth. Thus, according to Justice Kennedy, the trial court was not constitutionally required to give a separate jury instruction that would have allowed the jury to consider Johnson's age as a mitigating factor independent of the special issues.(98)

To assess whether the Texas capital sentencing jury instructions satisfied the requirements of the Eighth Amendment, the majority considered "whether there [was] a reasonable likelihood that the jury [had] applied the challenged instruction in a way that prevent[ed] the consideration of constitutionally relevant evidence."(99) Justice Kennedy recognized that Johnson's youth was a relevant mitigating circumstance Noun 1. mitigating circumstance - (law) a circumstance that does not exonerate a person but which reduces the penalty associated with the offense
consideration, circumstance, condition - information that should be kept in mind when making a decision; "another
 that must be within the effective reach of a capital sentencing jury.(100) He believed, however, that "there [was] no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of [Johnson's] youth."(101) Because the relevance of youth as a mitigating factor stems from youth's transient nature, the jury was able adequately to take youth into account as a mitigating factor through its assessment of Johnson's future dangerousness.(102)

Contrary to Johnson's assertion, the majority did not believe that Penry v. Lynaugh(103) demanded a reversal of Johnson's death sentence.(104) The majority distinguished Penry from Johnson's situation based on the nature of the mitigating evidence presented in each case.(105) In Penry, the jury was only able to consider the defendant's evidence of mental retardation as an aggravating factor with respect to the second special is sue.(106) Unlike the inability to learn from previous mistakes associated with Penry's mental retardation, which can only make future dangerous acts seem more likely, the transient nature of Johnson's youth could be assessed as a mitigating factor when the jury determined the probability of Johnson's future dangerousness.(107) The majority cited Graham v. Collins(108) as precedent for this distinction.(109) While the majority acknowledged that Graham was a federal habeas corpus proceeding decided on the threshold Teague issue, it stated that the reasoning of Graham applied to Johnson's case on direct review.(110)

Justice Kennedy thus disagreed with Johnson's contention 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."(111) If jurors believed that the transient quality of Johnson's youth reduced his culpability for murder, there was no reasonable likelihood that those same jurors would have felt precluded from considering Johnson's diminished culpability for the crime in evaluating his future dangerousness.(112)

In summary, Justice Kennedy stated that Jurek v. Texas(113) and Franklin v. Lynaugh(114) had already shown that the Texas capital sentencing statute satisfied the two competing principles required by the Eighth Amendment.(115) If the Court accepted Johnson's argument, a trial court would have to instruct the jury to consider mitigating evidence independently of the special issues in almost every capital case.(116) According to Justice Kennedy, this clearly would violate the principle followed in Jurek and Franklin that a state must have the power "to structure the consideration of mitigating evidence."(117) In addition to overruling Jurek and Franklin, a decision in favor of Johnson would impermissibly im·per·mis·si·ble  
adj.
Not permitted; not permissible: impermissible behavior.



im
 alter the reasoning in Lockelt.(118) Requiring a jury "to give effect to mitigating evidence in every conceivable con·ceive  
v. con·ceived, con·ceiv·ing, con·ceives

v.tr.
1. To become pregnant with (offspring).

2.
 manner in which the evidence might be relevant" contradicts the Lockett principle that the mitigating evidence of Johnson's youth must simply be within the effective reach of the sentencer.(119) Since the majority was not willing to depart from precedent, the Texas special issues format remained a constitutional capital sentencing procedure.(120)

B. JUSTICE SCALIA'S CONCURRENCE CONCURRENCE, French law. The equality of rights, or privilege which several persons-have over the same thing; as, for example, the right which two judgment creditors, Whose judgments were rendered at the same time, have to be paid out of the proceeds of real estate bound by them. Dict. de Jur. h.t.  

Justice Scalia agreed with the majority that the Constitution permits Texas to channel jury discretion through the special issue instructions.(121) However, Justice Scalia felt compelled to indicate that there was a blatant inconsistency in·con·sis·ten·cy  
n. pl. in·con·sis·ten·cies
1. The state or quality of being inconsistent.

2. Something inconsistent: many inconsistencies in your proposal.
 in the Court's capital sentencing jurisprudence. According to Justice Scalia, the principle stated in Lockett "that the sentencer must be allowed to consider |all relevant mitigating evidence'" is incompatible with Furman's mandate that the sentencer's discretion be channeled.(122) Justice Scalia stated that this inconsistency "will continue to be true unless and until the sort of |channelling' of mitigating discretion that Texas has engaged in here is not merely permitted (as the Court today holds), but positively required."(123) Unwilling to support such a further elaboration of the Court's intricate Eighth Amendment jurisprudence, Justice Scalia concluded by stating that the majority's decision was a proper clarification of Franklin and Boyd.(124)

C. JUSTICE THOMAS' CONCURRENCE

Justice Thomas wrote a one-paragraph concurrence listing three reasons why he felt Johnson could not base a successful argument on Penry v. Lynaugh.(125) First, Justice Thomas opined that the decision in Penry was wrongly decided.(126) While Justice Thomas did not present his reasoning for this conclusion, he did cite his concurring opinion in Graham v. Collins(127) as support for the proposition.(128) Second, he stated his belief that later opinions have narrowed the scope of Penry.(129) Finally, he felt that the facts of Penry were readily distinguishable from Johnson's case, although he did not explain the distinction.(130)

D. THE DISSENTING OPINION

Writing for the dissent An explicit disagreement by one or more judges with the decision of the majority on a case before them.

A dissent is often accompanied by a written dissenting opinion, and the terms dissent and dissenting opinion are used interchangeably.
,(131) Justice O'Connor concluded that the Texas jury instructions did not adequately protect Johnson's constitutional rights.(132) Justice O'Connor stressed the critical relationship between Johnson's youth and his moral culpability for the crime he committed.(133) Although Justice O'Connor recognized that the jury was able to give some consideration and effect to Johnson's youth in the assessment of the "future dangerousness" special issue, she felt the jury had no choice but to impose the death sentence on Johnson without regard to any mitigating effect that Johnson's youth had on his moral culpability.(134)

Interpreting Penry, Justice O'Connor stated that the Constitution requires that the sentencer in a capital case "be able to give full effect to all mitigating evidence concerning the defendant's character and record and the circumstances of the crime."(135) According to Justice O'Connor, two factors indicate that the jury was unable to give full effect to Johnson's youth.(136) First, the prosecution introduced sufficient evidence at trial to establish that Johnson's violent behavior was becoming more severe as Johnson grew older.(137) Given this evidence, along with the fact that the dangerousness associated with Johnson's youth would not dissipate dis·si·pate  
v. dis·si·pat·ed, dis·si·pat·ing, dis·si·pates

v.tr.
1. To drive away; disperse.

2.
 until sometime in the future, there was a reasonable likelihood that the jury only considered Johnson's youth as an aggravating factor.(138) If this occurred, the jury would unconstitutionally have failed to give effect to the mitigating nature of Johnson's youth.(139) Second, even if the jury gave some mitigating effect to Johnson's youth while assessing the second issue, the special issues framework still prevented the jury from considering the most relevant mitigating aspect of Johnson's youth--moral culpability.(140) Without giving mitigating effect to the relationship between Johnson's youth and his moral culpability for the murder he committed, the jury was unable to express a "reasoned moral response" in sentencing Johnson to death.(141)

Unlike the majority, Justice O'Connor did not feel that the holding of Jurek v. Texas(142) compelled the Court to rule against Johnson.(143) Based on the conclusion of five concurring con·cur  
intr.v. con·curred, con·cur·ring, con·curs
1. To be of the same opinion; agree: concurred on the issue of preventing crime. See Synonyms at assent.

2.
 and dissenting Justices in Franklin v. Lynaugh,(144) Justice O'Connor stated that the facial review in Jurek did not suggest that the Texas sentencing statute is constitutional in all circumstances.(145) The defendant's success in Penry indicated that the special issues scheme is open to individual "as applied" constitutional attacks.(146) Therefore, the Court should have evaluated Johnson's "as applied" constitutional challenge without regard to the holding in Jurek.(147)

In addition, Justice O'Connor concluded that Graham v. Collins(148) was not controlling.(149) In Graham, the decisive issue had not been whether the constitution required an additional instruction to allow the jury to give full effect to Graham's youth; rather, Graham had focused on the nature of the Court's collateral review.(150) Following the applicable standands for collateral review, the Court initially had to determine whether Graham's contention required a new constitutional rule.(151) Because Johnson brought his argument before the Court on direct review, the Court was not similarly constrained con·strain  
tr.v. con·strained, con·strain·ing, con·strains
1. To compel by physical, moral, or circumstantial force; oblige: felt constrained to object. See Synonyms at force.

2.
 by this threshold issue.(152) As a result, the Court had a "constitutionally imposed duty to resolve [Johnson's contention] ... |in light of [the Court's] best understanding of governing constitutional principles.'"(153) Applying this reasoning, Justice O'Connor concluded that the Court should have vacated Johnson's sentence and remanded the case for resentencing.(154)

V. ANALYSIS

The qualitative difference between capital punishment and other noncapital sentences creates a greater "need for reliability in the determination that death is the appropriate punishment in a specific case."(155) By upholding the constitutionality of the Texas capital sentencing statute in Johnson v. Texas, the Supreme Court sanctioned an intolerable degree of uncertainty in the sentencing procedure. Constrained by the limitations of the special issues framework, the Texas jury was unable to give full effect to the mitigating force of Dorsie Lee Johnson's youth as it related to his moral culpability for the crime committed. The jury's inability to focus on Johnson's moral culpability created an unnecessary risk that Johnson would be undeserving of the punishment he received. Recognizing this inherent deficiency in Texas former capital sentencing system, this Note argues that the Texas statute violated the Eighth Amendment by limiting the jury's consideration of Johnson's youth through the special issues format.

A. MORAL CULPABILITY MUST BE AT THE CENTER OF THE CAPITAL SENTENCING PROCESS

To analyze whether the Texas capital sentencing statute was consistent with the requirements of the Eighth Amendment, it is necessary to determine what modern society considers to be the most important factors in the capital sentencing process. For many decades, the Supreme Court has followed the principle that the scope of the Eighth Amendment's protection against "cruel and unusual punishment" must adapt to the "evolving standards of decency de·cen·cy  
n. pl. de·cen·cies
1. The state or quality of being decent; propriety.

2. Conformity to prevailing standards of propriety or modesty.

3. decencies
a.
 that mark the progress of a maturing society."(156) By examining state capital sentencing legislation, as well as previous Court opinions, it is possible to discover the current "standards of decency" in society and, thus, better understand the scope of the Eighth Amendment's protection.(157)

In thirty of the thirty-six states that provide for the death penalty, the legislature has adopted a sentencing statute that enumerates certain mitigating circumstances which the sentencer must consider in making its determination.(158) While the states vary greatly on the type of mitigating circumstances deemed important, each of the thirty state statutes requires the sentencer to consider the moral culpability of the defendant.(159) Of these thirty states, four states simultaneously list the probability of future dangerousness and the defendant's moral culpability as mitigating circumstances.(160)

One of the aforementioned a·fore·men·tioned  
adj.
Mentioned previously.

n.
The one or ones mentioned previously.


aforementioned
Adjective

mentioned before

Adj. 1.
 thirty states, Oregon, has more directly recognized the important role that moral culpability plays in the capital sentencing determination by channeling the sentencer's consideration of enumerated mitigating circumstances within a special issues framework.(161) While Oregon's statute instructs the sentencer to answer the same three special issues as the Texas statute, the Oregon statute adds a fourth question that requires the sentencer to consider directly "whether the defendant should receive a death sentence."(162) This "catch all" provision allows the jury to refuse to impose the death penalty for any reason, including a lack of moral culpability on the part of the defendant. Much like the enumeration 1. (mathematics) enumeration - A bijection with the natural numbers; a counted set.

Compare well-ordered.
2. (programming) enumeration - enumerated type.
 of moral culpability as a mitigating circumstance in the aforementioned thirty states, this fourth question indicates that society's "evolving standards of decency" demand a strong consideration of a defendant's moral culpability.

Even the Texas legislature has recognized that society places a great deal of emphasis on the relationship between punishment and a defendant's moral culpability.(163) By adding a fourth question similar to that in the Oregon statute to the Texas sentencing statute at issue in Johnson v. Texas,(164) the legislature guaranteed that, henceforth From this time forward.

The term henceforth, when used in a legal document, statute, or other legal instrument, indicates that something will commence from the present time to the future, to the exclusion of the past.
, a sentencer would be able to consider a defendant's moral culpability before imposing the ultimate penalty of death.(165)

The Supreme Court, like the state legislatures, has recognized that moral culpability plays a crucial role in the capital sentencing procedure. In Penry v. Lynaugh,(166) the Court announced, on two separate occasions, that "punishment should be directly related to the personal culpability of the [criminal] defendant."(167) Likewise, the Court in Booth v. Maryland(168) concluded that capital sentencing must be based on the "personal responsibility and moral guilt" of the defendant.(169)

As indicated by recent statements of state legislatures and the Supreme Court, society clearly views moral culpability as an important factor in the capital sentencing process.(170) Given this societal so·ci·e·tal  
adj.
Of or relating to the structure, organization, or functioning of society.



so·cie·tal·ly adv.

Adj.
 consensus, it is difficult to avoid the conclusion that the Texas sentencing statute in force at the time Johnson was sentenced to death violated the requirements of the Eighth Amendment.

B. WHILE APPLYING THE CONFLICTING PRINCIPLES OF FURMAN AND LOCKETT, THE MAJORITY LOST SIGHT OF THE IMPORTANCE OF MORAL CULPABILITY IN THE CAPITAL SENTENCING PROCESS

The majority followed two well-established principles of Eighth Amendment analysis. The first principle, established in Furman, requires states to channel the discretion of sentencing juries through appropriate statutory schemes.(171) The second principle, in tension with the first, states that "[a] sentencer [must] ... 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."(172) Although the majority was correct in identifying these principles as essential in assessing the constitutionality of the Texas capital sentencing statute, the manner in which the Court applied them ignored the most important aspect of Johnson's mitigating evidence--its relationship to his moral culpability.

The weakness in the majority's reasoning stems primarily from its application of the second principle. In regard to this principle, the majority stated that "there is no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of [Johnson's] youth."(173) The majority's conclusion rested on the assumption that "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient."(174) While youth certainly is transient, the majority wrongly assumed that transience is the primary mitigating quality of youth.

The majority essentially ignored the emotional and mental immaturity im·ma·ture  
adj.
1. Not fully grown or developed. See Synonyms at young.

2. Marked by or suggesting a lack of normal maturity: silly, immature behavior.
 that frequently accompanies youth.(175) The Court has repeatedly recognized that "youth is more than a chronological chron·o·log·i·cal   also chron·o·log·ic
adj.
1. Arranged in order of time of occurrence.

2. Relating to or in accordance with chronology.
 fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage."(176) Deriving from the adolescent's lack of the "experience, perspective, and judgment expected of adults," this vulnerability frequently makes the adolescent less morally culpable than an adult for the same criminal act.(177) The law must reflect this important aspect of youth by reducing the level of punishment in relation to the degree to which the defendant's immaturity influenced his criminal act.(178)

While the majority correctly concluded that the special issues framework did not preclude the jury from considering a relevant mitigating aspect of youth--specifically the possibility that Johnson would become less dangerous as he grew older--the majority failed to recognize that the same special issues placed the most relevant mitigating effect of youth beyond the jury's reach. Despite the jury's inability to impose a sentence with a severity directly proportional to the defendant's moral culpability, the majority upheld the Texas statute.(179) According to the Court, the statute's failing did not rise to the level of a constitutional violation because the jury could have indirectly considered the effect of Johnson's youth on his moral culpability when answering the second special issue.(180) It seems illogical, however, to say that the Eighth Amendment requires only an indirect consideration of the element that society has deemed to be most important to the capital sentencing determination.(181)

Although the jury may not have found Johnson's youth--he was nineteen years of age at the time he committed the crime--to be a significant mitigating factor in relation to Johnson's moral culpability, the Constitution requires that the jury at least have the opportunity to directly make such a determination.(182) At some age, whether it be sixteen years of age or fourteen years of age, the emotional and mental immaturity associated with youth will have a pronounced mitigating effect on a defendant's moral culpability.(183) Because this mitigating effect likely holds an inverse relationship A inverse or negative relationship is a mathematical relationship in which one variable decreases as another increases. For example, there is an inverse relationship between education and unemployment — that is, as education increases, the rate of unemployment  to a defendant's age, the flaw in the majority's reasoning would become even more apparant if a defendant younger than Johnson were subject to Texas' capital sentencing procedure. It would be interesting to see whether the majority would have upheld the constitutionality of the special issues if Johnson had been only fourteen years of age at the time he committed the crime. At this younger age, the relationship between youth and the defendant's "future dangerousness" becomes much more speculative, thus enhancing the danger that the jury will not impose a sentence directly proportional to the fourteen-year-old defendant's moral culpability.

In summary, in applying the competing principles announced in Furman and Lockett to the facts of Johnson's case, the majority did not give sufficient weight to the evolving policy behind those principles.(184) As state legislation and prior Court opinions indicate, the majority should have been guided by the current consensus that moral culpability must play a central role in the death sentencing analysis. Since the jury was not allowed to consider Johnson's unique circumstances as they reflected upon his moral culpability, his sentence should have been vacated by the Court. Although the recent amendment of Texas' sentencing statute limits the immediate impact of the Court's decision on future defendants,(185) the Court's reasoning may significantly influence the Texas legislature's perception of the capital sentencing process. By establishing precedent counter to the prevailing societal consensus, the Court created a temptation for the Texas legislature to abandon the recent amendment of the capital sentencing statute.(186) Supported by the views of the Court, the legislature may feel more confident about de-emphasizing the importance of moral culpability within a more stringent capital sentencing statute.(187)

C. THE COURT SHOULD NOT SANCTION sanction, in law and ethics, any inducement to individuals or groups to follow or refrain from following a particular course of conduct. All societies impose sanctions on their members in order to encourage approved behavior.  A SENTENCING STATUTE THAT IS INCONSISTENT WITH SOCIETAL CONSENSUS WHEN PAST PRECEDENT DOES NOT COMPEL Compel - COMpute ParallEL  THE COURT TO DO SO

Considered individually, none of the Texas special issues provided an effective medium for the jury to properly consider the relationship between Johnson's youth and his moral culpability for the crime he committed.(188) Despite this deficiency, the majority felt compelled by former precedent, primarily through a reliance on Jurek v. Texas,(189) to reaffirm the constitutionality of the Texas capital sentencing statute.(190) This strong conviction to adhere to adhere to
verb 1. follow, keep, maintain, respect, observe, be true, fulfil, obey, heed, keep to, abide by, be loyal, mind, be constant, be faithful

2.
 past precedent caused the majority actually to distort the Eighth Amendment principles developed by the Court over the past decade.

As the Court recognized in Lockett v. Ohio,(191) the Eighth Amendment demands that sentencing statutes reflect the "respect due the uniqueness of the individual."(192) Following this policy, the Court developed one of the most fundamental principles in Eighth Amendment analysis: a sentencer must not be precluded from "giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proferred in mitigation."(193) Although the majority purported to apply this principle in evaluating the constitutionality of the Texas sentencing statute, it failed to give any significance to the most important term in the principle--the word "independent."(194) Eliminating the word "independent" from the stated principle, the majority concluded that "|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.'"(195)

The importance of the word "independent" stems from the Court's desire to eliminate any statutory constraints that channel the sentencer's attention away from the most relevant mitigating aspects of an individual defendant and his crime.(196) Under the Texas special issue framework, any weight the jury gave to Johnson's youth was entirely dependent on its relationship with the probability of Johnson's "future dangerousness." This type of restricted consideration of mitigating evidence created the very danger that the Court in Lockett was trying to avoid. Without being able to give evidence "independent mitigating weight," it was unlikely that the jury would be able to impose the appropriate level of punishment in relation to Johnson's "unique" circumstances.(197) This unnecessary risk deprived Johnson of the full protection of the Eighth Amendment.

In addition to the majority's failure to recognize the importance of the term "independent," the majority also relied too heavily on Jurek v. Texas.(198) Although the Court in Lockett did not overrule Jurek's conclusion that the Texas sentencing statute was constitutional on its face, neither did the Court suggest that the statute would always meet the requirements of the Eighth Amendment. The Court explicitly stated at the time it decided Jurek, that the statute allowed the sentencer in that case to consider any aspect of the defendant's proferred evidence "as an independently mitigating factor."(199) Consistent with this determination, the Court in Penry v. Lynaugh(200) concluded that under certain fact patterns, the Texas sentencing statute precluded the jury from giving independent mitigating weight to a defendant's proferred evidence.(201) While Penry also did not overrule Jurek, the Court's decision opened the door to future "as applied" constitutional attacks on the Texas statute.(202) Because Johnson's argument closely followed the "as applied" principles established in Penry, the majority should not have afforded any weight to the conclusion in Jurek that the Texas statute was facially constitutional.

In light of Penry, it is evident that the majority erred in concluding that the Eighth Amendment simply requires the sentencer to be able to consider in some manner all of a defendant's relevant mitigating evidence.(203) According to the Court in Penry, a statute that does not allow the jury to consider fully and give effect to the defendant's mitigating evidence is clearly unconstitutional unconstitutional adj. referring to a statute, governmental conduct, court decision or private contract (such as a covenant which purports to limit transfer of real property only to Caucasians) which violate one or more provisions of the U. S. Constitution. .(204) Without fully considering the evidence, a sentencer would not be capable of making a "reasoned moral response" about the appropriate level of punishment to impose.(205) Only a system that allows the jury to make a "reasoned moral response" to mitigating evidence will satisfy the constitutional requirement that punishment "be directly related to the moral culpability of the defendant."(206) The majority's attempt to differentiate Johnson's case from Penry did not focus on this critical connection between the full consideration of evidence and a "reasoned moral response."(207) Like Penry's evidence of mental retardation, Johnson's youth had mitigating value that went well beyond the special issue of "future dangerousness." The proper inquiry under the Eighth Amendment should have been whether the jury could fully consider Johnson's youth as it affected his moral culpability.(208) Clearly, the special issues did not allow the jury to make such a consideration and, thus, failed to ensure that Johnson's punishment was "directly related" to his moral culpability.(209)

Just as the majority misapplied Penry, the majority improperly invoked the doctrine of stare decisis by relying on Graham v. Collins(210) for precedential support.(211) Although the defendant in Graham claimed, similar to Johnson, that the Texas special issues did not allow the jury to give adequate mitigating effect to evidence of his youth,(212) the Court's ruling against Graham(213) should not have affected the success of Johnson's claim. As Justice O'Connor indicated in her dissenting opinion, the Court in Graham did not deal directly with the issue of "whether an additional instruction to allow the jury to give full effect to Graham's youth was constitutionally mandated."(214) Because Graham was before the Court on a petition for a writ of habeas corpus Noun 1. writ of habeas corpus - a writ ordering a prisoner to be brought before a judge
habeas corpus

judicial writ, writ - (law) a legal document issued by a court or judicial officer
, the Court based its conclusion on the threshold issue of whether the defendant's allegation The assertion, claim, declaration, or statement of a party to an action, setting out what he or she expects to prove.

If the allegations in a plaintiff's complaint are insufficient to establish that the person's legal rights have been violated, the defendant can make a
 would require a new constitutional rule.

In contrast to Graham, Johnson brought his claim to the Court on direct review.(215) Although the majority recognized that it was not necessary for the Court to determine whether Johnson was asking for a new constitutional rule, the majority still applied the analysis of Graham to Johnson's case.(216) By using the reasoning of Graham as precedent, the Court indirectly subjected Johnson to the higher standards of collateral review.(217) Given the severity of Johnson's sentence, the majority should have evaluated Johnson's argument solely on the basis of constitutional merit.(218) The majority's reliance on Graham, a case decided on a threshold issue irrelevant to Johnson's claim, jeopardized this goal.

VI. CONCLUSION

In Johnson v. Texas, the Court concluded that the former Texas capital sentencing statute did not violate the Eighth Amendment rights of petitioner Dorsie Lee Johnson, Jr. Although the statute's special issue framework may have prevented the jury from fully considering the mitigating relationship between Johnson's youth and his moral culpability for the crime committed, the Court determined that the Eighth Amendment merely required the mitigating evidence to be "within the effective reach of the sentencer."(219) Because the jury could adequately consider the transient quality of Johnson's youth in its determination of Johnson's "future dangerousness," the constitution did not require an additional jury instruction to inform the jury that it should directly consider the effect of Johnson's youth on his moral culpability.

Similar to Penry v. Lynaugh,(220) the Court should have ruled that the Texas capital sentencing statute violated Johnson's Eighth Amendment rights because the statute created a "risk that the death penalty [would] be imposed in spite of factors which may [have] call[ed] for a less severe penalty."(221) Clearly, youth has mitigating relevance to a defendant's moral culpability for the crime committed. By forcing the jury to take account of this critical relationship while answering the "future dangerousness" special issue, the statute confined con·fine  
v. con·fined, con·fin·ing, con·fines

v.tr.
1. To keep within bounds; restrict: Please confine your remarks to the issues at hand. See Synonyms at limit.
 the jury to an indirect consideration of the most relevant mitigating aspect of Johnson's youth--his moral culpability. As a result of this deficiency, there was a grave danger Grave Danger is the name of the last two episodes in the of the popular American crime drama , which is set in Las Vegas, Nevada. This two parter was directed by Quentin Tarantino and was aired on May 19, 2005.  that the Texas system would impose a punishment that was not directly proportional to Johnson's moral culpability. As in Penry, the Court should have decided that a system which perpetuated this possibility was "cruel and unusual punishment" under the Eighth Amendment. (1) (113) S. Ct. 2658 (1993). (2) Id. at 2672. (3) Id. at 2670; see infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.


infra prep.
 note 21 and accompanying text for an explanation of the special issue framework. (4) Johnson, 113 S. Ct. at 2670. (5) U.S. Const. amend. VIII. (6) 408 U.S. 238 (1972). (7) Id. at 308-10 (Stewart, J., concurring). While no two Justices agreed on the exact same rationale in Furman, the guiding principle of the Court's decision is best expressed injustice Stewart's concurring opinion. Johnson, 113 S. Ct. at 2664. (8) Furman, 408 U.S. at 310 (Stewart, J., concurring). (9) The mandatory sentencing statutes listed all of the offenses that constituted first degree murder and imposed an automatic death sentence on any defendant convicted of one of the enumerated offenses. See, e.g., N.C. Gen. Stat. [sections] 14-17 (Cum. Supp. 1975) (amended 1977, 1979, 1981, 1987, 1989); La. Rev. Stat. Ann. [sections] 14:30 (West 1974) (amended 1976, 1979, 1985, 1987, 1988, 1989, 1992). (10) Woodson v. North Carolina North Carolina, state in the SE United States. It is bordered by the Atlantic Ocean (E), South Carolina and Georgia (S), Tennessee (W), and Virginia (N). Facts and Figures


Area, 52,586 sq mi (136,198 sq km). Pop.
, 428 U.S. 280, 304 (1976) (plurality opinion It has been suggested that this article or section be merged with , and into . ); see also Roberts v. Louisiana, 428 U.S. 325 (1976) (plurality opinion). (11) Woodson, 428 U.S. at 304 (controlling joint opinion of Stewart, Powell, and Stevens, JJ.); see also Roberts, 428 U.S. at 333 (controlling joint opinion of Stewart, Powell, and Stevens, JJ. . (12) Woodson, 428 U.S. at 305; Roberts, 428 U.S. at 335-36. (13) 438 U.S. 586 (1978). (14) Id. at 597. The Ohio sentencing statute under attack required a two-tiered inquiry similar, although not identical, to the Texas statute. First, the statute specified seven aggravating circumstances of murder, at least one of which must be present in order for an offense to fall within the scope of capital punishment. Ohio Rev. Code Ann. [sections] 2929.04(A) (Baldwin 1975) (amended 1981). Once a defendant was convicted of a capital offense, the "Ohio death penalty statute required the trial judge to impose a death sentence unless, after 'considering the nature and circumstances of the offense' and [the] 'history, character, and condition' " of the offender, the sentencing judge determined that the defendant had established at least one of three stated mitigating circumstances by a preponderance of the evidence preponderance of the evidence n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. . Lockett, 438 U.S. at 593-94 (quoting Ohio Rev. Code Ann. [sections] 2929.04(B) (Baldwin 1975) (amended 1981)). (15) Id. at 602. (16) The Court established the first principle in Furman v. Georgia, 408 U.S. 238 (1972), and the second principle in Woodson, 428 U.S. at 280. (17) Lockett, 438 U.S. at 605. (18) Id. at 604. As part of this requirement, states now must allow the sentencer to give "independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation." Id. at 605. (19) Id. at 605. In a series of cases, the Court has reaffirmed Lockett's interpretation of the Eighth Amendment. See Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) ("Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence."); see also Hitchcock v. Dugger, 481 U.S. 393 (1987) (trial judge unconstitutionally instructed the jury not to consider evidence of the defendant's family background and capacity for rehabilitation rehabilitation: see physical therapy. ); Skipper skipper: see butterfly.
skipper

Any of some 3,000 lepidopteran species (family Hesperiidae) named for their fast (up to 20 mph, or 30 kph), darting flight.
 v. South Carolina South Carolina, state of the SE United States. It is bordered by North Carolina (N), the Atlantic Ocean (SE), and Georgia (SW). Facts and Figures


Area, 31,055 sq mi (80,432 sq km). Pop. (2000) 4,012,012, a 15.
, 476 U.S. 1 (1986) (trial court unconstitutionally prevented a defendant from presenting evidence to the sentencer concerning the defendant's positive adjustment to prison life). (20) The six situations are as follows:

(1) the person murders a peace officer or fireman who is acting in the lawful Licit; legally warranted or authorized.

The terms lawful and legal differ in that the former contemplates the substance of law, whereas the latter alludes to the form of law. A lawful act is authorized, sanctioned, or not forbidden by law.
 discharge

of an official duty and who the person knows is a peace officer or

fireman;

(2) the person intentionally in·ten·tion·al  
adj.
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.

2. Having to do with intention.
 commits murder in the course of committing or attempting

to commit kidnapping, burglary, robbery, aggravated sexual assault Aggravated Sexual Assault is when one commits an aggravated assault of a sexual nature and who wounds, maims, disfigures or endangers the life of the complainant.[1][2][3] Citation

1. ^ Section 273(1) of the Canadian Criminal Code
2.
,

or arson arson, at common law, the malicious and willful burning of the house of another. Originally, it was an offense against the security of habitation rather than against property rights. ;

(3) the person commits the murder for remuneration REMUNERATION. Reward; recompense; salary. Dig. 17, 1, 7.  or the promise of remuneration

or employs another to commit the murder for remuneration or the promise

of remuneration;

(4) the person commits the murder while escaping or attempting to escape from a

penal institution;

(5) the person, while incarcerated incarcerated /in·car·cer·at·ed/ (in-kahr´ser-at?ed) imprisoned; constricted; subjected to incarceration.

in·car·cer·at·ed
adj.
Confined or trapped, as a hernia.
 in a penal institution, murders another who is

employed in the operation of the penal institution; or

(6) the person murders more than one person:

(A) during the same criminal transaction; or

(B) during different criminal transactions but the murders are committed pursuant

to the same scheme or course of conduct.

Tex. Penal Code Ann. [sections] 19.03 (West 1989 & Supp. 1994) (amended 1993). (21) The portion of the Texas sentencing statute that establishes the special issues inquir states:

(b) On conclusion of the presentation of the evidence [at the sentencing phase of a

capital murder trial], the court shall submit the following issues to the jury:

(1) whether the conduct of the defendant that caused the death of the deceased
          was committed deliberately and with the reasonable expectation that th
e
          death of the deceased or another would result;


(2) whether there is a probability that the defendant would commit criminal

acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing
          the deceased was unreasonable in response to the provocation, if any,
by
          the deceased.


Tex. Crim. Proc. Code Ann. [sections] 37.071 (West 1981). (22) The relevant portion of the Texas sentencing statute stated: (e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. Tex. Crim. Proc. Code Ann. [sections] 37.071 (West 1981) (amended 1981, 1991). (23) 428 U.S. 262 (1976). (24) Id. at 264-67. (25) Based on the facts of the case, the trial court concluded that the third special issue was not relevant to the sentencing decision. Id. at 267. (26) Id. at 268. (27) Id. at 274. (28) Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). (29) Jurek, 428 U.S. at 272. (30) Id. (31) Id. For Jurek's particular sentencing process, the Texas Court of Criminal Appeals stated: 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 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 duress (dy`rĭs, d`–, d  or under the domination of another. . . . Jurek v. State, 522 S.W.2d 934, 939-40 (Tex. Crim. App. 1975). (32) Jurek, 428 U.S. at 273-74. (33) Id. at 276. (34) 438 U.S. 586 (1978). (35) The Lockett Court distinguished its decision in Jurek by noting that the Texas Court of Criminal Appeals had broadly interpreted the second special issue in the Texas sentencing statute. Id. at 607. Unlike the Ohio statute, which limited the number of mitigating factors the sentencer could consider, the broad scope of Texas' second special issue did not "prevent the sentencer [in Jurek] from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor." Id. Thus, although the structure of the Ohio and Texas capital sentencing statutes was similar, the Court's refined Eighth Amendment interpretation in Lockett did not affect the facial constitutionality of the Texas statute. (36) 487 U.S. 164 (1988). (37) Id. at 172. At trial, the defendant submitted five special jury instructions requesting the jury to consider all the defendant's proffered mitigating evidence when answering the special issues. The instructions essentially stated that mitigating evidence "could alone be enough to return a negative answer to ... [the issues]--even if the jury otherwise believed that |Yes' answers to the [s]pecial [i]ssues were warranted." Id. at 169. The trial judge refused to deliver any of the defendant's requested jury instructions. Id. at 169-70. (38) Id. at 177. (39) Id. at 178. (40) Id. at 179. (41) Id. at 181. (42) Id. at 180. (43) Id. at 184. (44) Id. at 185. (45) Id. (46) 492 U.S. 302 (1989). (47) Id. at 328. (48) See supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 21. (49) Penry, 492 U.S. at 322. (50) Id. at 322-23. (51) Id. at 324. (52) Id. (53) Id. at 323-24. (54) Id. at 323. (55) Id. at 327-28. (56) 113 S. Ct. 892 (1993). (57) Id. at 895. (58) Id. at 902. (59) Id. (60) Id. at 902-03. (61) 489 U.S. 288 (1989). In Teague, the Court established that new constitutional rules will not be aplied retroactively ret·ro·ac·tive  
adj.
Influencing or applying to a period prior to enactment: a retroactive pay increase.



[French rétroactif, from Latin
 to invalidate in·val·i·date  
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.



in·val
 final state convictions on federal habeas review. Id. at 310. When hearing disputes on collateral review, all courts must first resolve the threshold issue of whether the court's holding would constitute a new rule under Teague. Id. at 301. (62) Graham, 113 S. Ct. at 898 (quoting Saffle v. Parks, 494 U.S. 484 (1990)). (63) Id. at 902. (64) Id. at 902-03. (65) Tex. Crim. Proc. Code Ann. [sections] 37.071(2)(e) (West Supp. 1994). (66) The amended version of the statute adds the following provision:

The court shall instruct the jury that if the jury returns an affirmative finding to each

issue submitted under Subsection subsection
Noun

any of the smaller parts into which a section may be divided

Noun 1. subsection - a section of a section; a part of a part; i.e.
 (b) of this article [special issues], it shall answer

the following issue:

Whether, taking into consideration all of the evidence, including the circumstances

of the offense, the defendant's character and background, and the personal

moral culpability of the defendant, there is a sufficient mitigating

circumstance or circumstances to warrant that a sentence of life imprisonment Imprisonment
See also Isolation.

Alcatraz Island

former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218]

Altmark, the

German prison ship in World War II. [Br. Hist.
 

rather than a death sentence be imposed. Tex. Crim. Proc. Code Ann. [sections] 37.071(2)(e) (West Supp. 1994). (67) Tex. Crim. Proc. Code Ann. [sections] 37.071(2)(e) (West Supp. 1994) (effective Sept. 1, 1991). (68) Johnson v. Texas, 113 S. Ct. 2658, 2661 (1993). (69) Id. (70) Id. (71) Id. (72) Id. (73) Id. (74) Id. (75) Id. (76) Id. at 2662. (77) Id. While there are three special issues under the former Texas statute, the third special issue was not relevant to Johnson's case because his criminal acts were unprovoked. See supra note 21. (78) Johnson, 113 S. Ct. at 2662. (79) Id. (citing Tex. Crim. Proc. Code Ann. [sections] 37.071(b)(1) (West 198 1)). (80) Id. (citing [sections] 37.071(b)(2)). (81) Id. (82) The State used the testimony of the witnesses to establish Johnson's violent tendencies. One witness testified that Johnson had shot the Colorado City store clerk in the face, causing permanent brain damage and disfigurement dis·fig·ure  
tr.v. dis·fig·ured, dis·fig·ur·ing, dis·fig·ures
To mar or spoil the appearance or shape of; deform.



[Middle English disfiguren, from Old French desfigurer
. Id. Another witness stated that Johnson had fired two bullets at a man in Snyder, Texas, six days after murdering the Snyder store clerk. Id. In addition to the testimony concerning Johnson's teen-age actions, the State also called witnesses to testify To provide evidence as a witness, subject to an oath or affirmation, in order to establish a particular fact or set of facts.

Court rules require witnesses to testify about the facts they know that are relevant to the determination of the outcome of the case.
 about Johnson's deviant behavior during his younger years. For example, one witness testified that Johnson had cut him with a piece of glass while in seventh grade. Id. (83) Id. at 2663. (84) Id. (85) Id. (86) Id. at 2664. (87) Respondent's Brief at 3, Johnson (No. 92-5653). (88) Five of the alleged errors involved the trial court's rulings on challenges for cause of venirepersons made by Johnson and the State. As a sixth error, Johnson alleged that the trial court sua sponte excused a veniremember over his objections and without a challenge for cause by either party. For the seventh error, Johnson claimed that the trial court erred in failing to grant his motion for a change of venue. Johnson v. Texas, 773 S.W.2d 322 (Tex. Crim. App. 1989). (89) Johnson, 113 S. Ct. at 2664. (90) 492 U.S. 302 (1989). See supra notes 46-55 and accompanying text for a discussion of Penry. (91) Johnson, 113 S. Ct. at 2664. (92) Id. Johnson argued that the trial judge should have given an instruction to the jury explicitly allowing the jury to consider his age as a mitigating factor. Id. Although Johnson had neither requested such an instruction at trial nor argued the issue prior to the rehearing stage on appeal, his claim was not procedurally barred. Id. Thus, the court decided Johnson's claim on its merits. (93) Id. (94) Johnson v. Texas, 113 S. Ct. 1148 (1993). (95) Johnson, 113 S. Ct. at 2661. (96) Chief Justice Rehnquist and Justices White, Scalia, and Thomas joined in the opinion of Justice Kennedy. Id. (97) Id. at 2672. (98) Id. at 2671-72. (99) Id. at 2669 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). The majority applied the standard that the Court established in Boyde to determine whether the jury instructions precluded the jury "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." Lockett v. Ohio, 438 U.S. 586, 604 (1978). (100) Johnson, 1 13 S. Ct. at 2668. (101) Id. at 2669. (102) Id. (103) 492 U.S. 302 (1989). (104) Johnson, 113 S. Ct. at 2669-70. (105) Id. (106) Id. (107) Id. at 2670. When an individual commits a crime at a young age, the jury can consider whether the reduced mental and emotional maturity frequently associated with youth influenced the individual's criminal behavior. Id. at 2669. If the jury decides that the characteristics of youth were a significant factor in the individual's behavior, then the jury may also determine that there is a low probability that the individual will be dangerous in the future because the characteristics associated with youth will diminish as the individual grows into adulthood. Id. (108) 113 S. Ct. 892 (1993). (109) Johnson, 113 S. Ct. at 2668 ("Graham's case differed from Penry in that |Graham's evidence [of youth]--unlike Penry's--had mitigating relevance to the second special issue concerning his likely future dangerousness.'") (quoting Graham, 113 S. Ct. at 902). (110) Id. at 2661. (111) Id. at 2670. (112) Id. (113) 428 U.S. 262 (1976). (114) 487 U.S. 164 (1988). (115) Johnson, 113 S. Ct. at 2671-72. (116) Id. at 2671. (117) Id. at 2672. (118) Id. at 2671. (119) Id. (120) Id. at 2672. (121) Id. (Scalia, J., concurring). (122) Id. (Scalia, J., concurring). (123) Id. (Scalia, J., concurring). (124) Id. (Scalia, J., concurring). (125) Id. (Thomas, J., concurring) (discussing Penry v. Lynaugh, 492 U.S. 302 (1989)). (126) Id. (127) 113 S. Ct. 892, 903 (1993) (Thomas, J., concurring). (128) Johnson, 113 S. Ct. at 267 2 (Thomas, J., concurring). (129) Id. (Thomas, J., concurring) (citing Graham, 113 S. Ct. at 913-14). (130) Id. (Thomas, J., concurring). (131) Justice O'Connor authored the dissenting opinion, joined by Justices Blackmun, Stevens, and Souter. Id. at 2672. (132) Id. at 2680 (O'Connor, J., dissenting). (133) Id. at 2673 (O'Connor, J., dissenting). (134) Id. (O'Connor, J., dissenting). (135) Id. at 2675 (O'Connor, J., dissenting). Unlike the majority in Johnson, Justice O'Connor's interpretation of Penry did not focus on the finding that Penry's evidence was only relevant to the second special issue as an aggravating factor. Johnson, 113 S. Ct. at 2679. According to Justice O'Connor, the Court in Penry did not determine that the second special issue was inadequate "because the evidence worked only against Penry." Id. Rather, the Court decided that the second special issue "was [constitutionally] inadequate because it did not allow the jury to give full effect to Penry's mitigating evidence." Id. (136) Id. at 2673 (O'Connor, J., dissenting). (137) Id. (O'Connor, J., dissenting). (138) Id. (O'Connor, J., dissenting). (139) Id. (O'Connor, J., dissenting). (140) Id. (O'Connor, J., dissenting). (141) Id. at 2674 (O'Connor, J., dissenting). (142) 428 U.S. 262 (1976). (143) Johnson, 113 S. Ct. at 2677-78 (O'Connor, J., dissenting). (144) 487 U.S. 164 (1988). (145) Johnson, 113 S. Ct. at 2678 (O'Connor, J., dissenting). According to Justice O'Connor, the Johnson majority improperly relied on the minority view of this issue in Franklin. In discussing the majority's interpretation of Franklin, Justice O'Connor stated:

[The majority] goes so far as to note with approval the minority position that "Jurek

foreclosed the defendant's argument that the jury was still entitled en·ti·tle  
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.

2. To furnish with a right or claim to something:
 to cast an |independent'

vote against the death penalty even if it answered yes to the special

issues." This reading of Franklin turns stare decisis on its head. Id. (O'Connor, J., dissenting) (citing Franklin, 487 U.S. at 180). (146) Id. (O'Connor, J., dissenting). (147) Id. (O'Connor, J., dissenting). (148) 113 S. Ct. 892 (1993). (149) Johnson, 113 S. Ct. at 2674 (O'Connor, J., dissenting). (150) Id. (O'Connor, J., dissenting). (151) Id. (O'Connor, J., dissenting). See supra note 61 and accompanying text. (152) Id. (O'Connor, J., dissenting). (153) Id. (O'Connor, J., dissenting) (quoting Mackey v. United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. , 401 U.S. 667, 679 (1971) (Harlan, J., concurring)). (154) Id. at 2680 (O'Connor, J., dissenting). (155) Woodson v. North Carolina, 428 U.S. 280, 305 (1976). (156) Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). (157) Penry v. Lynaugh, 492 U.S. 302, 331 (1989); Thompson v. Oklahoma Thompson v. Oklahoma, 487 U.S. 815 (1988)[1], was the first case since the moratorium on capital punishment was lifted in the United States in which the U.S. , 487 U.S. 815, 865 (1988) (Scalia, J., dissenting); Gregg v. Georgia Modern U.S. death penalty Jurisprudence begins with the U.S. Supreme Court's decision in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976). In that landmark case, the Court rejected the idea that Capital Punishment is inherently Cruel and Unusual Punishment , 428 U.S. 153, 220-26 (1976) (White, J., concurring). (158) Six states have chosen not to list any mitigating factors in their sentencing statutes. These states are Delaware, Georgia, Idaho, Oklahoma, South Dakota South Dakota (dəkō`tə), state in the N central United States. It is bordered by North Dakota (N), Minnesota and Iowa (E), Nebraska (S), and Wyoming and Montana (W). , and Texas. Beverly Lowry, Let God Sort Them Out? Refining the Individualization individualization,
n the process of tailoring remedies or treatments to cure a set of symptoms in an indiv-idual instead of basing treatment on the common features of the disease.
 Requirement in Capital Sentencing, 102 Yale L.J. 835, 851 n.66 (1992). (159) In almost all thirty states, the statute directly asks the sentencer to examine "whether the defendant's capacity to appreciate the wrongfulness wrong·ful  
adj.
1. Wrong; unjust: wrongful criticism.

2. Unlawful: wrongful death.
 of his or her conduct or to conform his or her conduct to the requirements of the law was impaired." Id. at 848. See, e.g., Ala. Code [sections] 13A-5-51(6) (1982); Ariz. Rev. Stat. Ann. [sections] 13-703.G.1 (Supp. 1993); Colo. Rev. Stat. Ann. [sections] 16-11-103(4)(b) (West Supp. 1993); Conn. Gen. Stat. [sections] 53a-46a(g)(2) (1991); Fla. Stat. Ann. [sections] 921-141(6)(0 (West 1985)); Mo. Ann Stat. [sections] 565.032.3(6) (Vernon Supp. 1993); Mont. Code Ann. [sections] 46-18-304(4) (1993); N.H. Rev. Stat. Ann. [sections] 630:5.VI(a) (Supp. 1992); N.C. Gen. Stat. [sections] 15A-2000(f)(6) (1991); Wyo. Stat. [sections] 6-2-102(j)(vi) (Supp. 1993). (160) See Colo. Rev. Stat. Ann. [sections] 16-11-103(4)(b) & (k) (West Supp. 1993); Md. Ann. Code art. 27, [sections] 413(g)(4) & (7) (1988); N.M. Stat. Ann. [sections] 31-20A-6.C & G (Michie 1990); Wash. Rev. Code Ann. [sections] 10.95.070(6) & (8) (West 1990). Unlike Texas, these states do not list "future dangerousness" in a tripartite TRIPARTITE. Consisting of three parts, as a deed tripartite, between A of the first part, B of the second part, and C of the third part.  special issue format in which the sentencer must give a direct answer to the question of future dangerousness. Rather, the four state statutes include future dangerousness among a multitude of mitigating factors that the jury must consider in making the final sentencing determination. (161) Or. Rev. Stat. [sections] 163.150 (1991). (162) Id. [sections] 163.150(1)(b)(d). (163) See supra note 66. (164) 113 S. Ct. 2658 (1993). (165) See supra note 66. (166) 492 U.S. 302 (1989). (167) Id. at 319, 327. (168) 482 U.S. 496 (1987). (169) Id. at 502. See also Skipper v. South Carolina, 476 U.S. 1, 11-12 (1986) (Powell, J., concurring) ("[A]s long as [statutes] do not foreclose fore·close  
v. fore·closed, fore·clos·ing, fore·clos·es

v.tr.
1.
a. To deprive (a mortgagor) of the right to redeem mortgaged property, as when payments have not been made.

b.
 consideration of factors that may tend to reduce the defendant's culpability for his crime, this Court should respect them.... [The] focus [should be] on evidence that lessens the defendant's culpability for the crime for which he was convicted."); Franklin v. Lynaugh, 487 U.S. 164, 184 (1988) (O'Connor, J., concurring) ("In my view, the principle underlying Lockett, Eddings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant."). (170) See supra notes 157-69 and accompanying text. (171) Furman v. Georgia, 408 U.S. 238 (1972). See supra note 8 and accompanying text. (172) Lockett v. Ohio, 438 U.S. 586, 604 (1978). (173) Johnson v. Texas, 113 S. Ct. 2658, 2669 (1993). The majority determined 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." Id. (174) Id. (175) The majority did acknowledge that "[a] lack of maturity and an underdeveloped un·der·de·vel·oped
adj.
Not adequately or normally developed; immature.
 sense of responsibility are found in youth more often than in adults and are more understandable

among the young." Id. at 2668-69. However, after making this statement, the majority limited its significance by confining con·fine  
v. con·fined, con·fin·ing, con·fines

v.tr.
1. To keep within bounds; restrict: Please confine your remarks to the issues at hand. See Synonyms at limit.
 the jury's inquiry to the transient nature of immaturity and impetuousness im·pet·u·ous  
adj.
1. Characterized by sudden and forceful energy or emotion; impulsive and passionate.

2. Having or marked by violent force: impetuous, heaving waves.
. Id. at 2669. Thus, the majority gave no substantive significance to Johnson's maturity level and its relationship with culpability, but rather referred to this aspect of youth merely as a tool to support the already obvious proposition that youth is transient. (176) See Eddings v. Oklahoma, 455 U.S. 104, 115 (1982); Thompson v. Oklahoma, 487 U.S. 815, 834 (1988); Bellotti v. Baird Bellotti v. Baird, 443 U.S. 622 (1979) is a United States Supreme Court case that ruled that teenagers do not have to secure parental consent to obtain an abortion.[1] See also
  • List of United States Supreme Court cases, volume 443
, 443 U.S. 622, 635 (1979). (177) Eddings, 455 U.S. at 116; Thompson, 487 U.S. at 835. (178) Eddings, 455 U.S. at 116 ("Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults."). (179) Constrained within the parameters of the inquiry of "future dangerousness," the jury was unable to directly consider the effect of youth on Johnson's moral culpability. Without directly considering that relationship, any final sentencing determination logically cannot be directly related to the amount of punishment that Johnson deserved. Rather, the severity of the sentence will have a less precise, attenuated Attenuated
Alive but weakened; an attenuated microorganism can no longer produce disease.

Mentioned in: Tuberculin Skin Test


attenuated

having undergone a process of attenuation.
 relationship with moral culpability. As the Court has indicated, this is unacceptable. Penry v. Lynaugh, 492 U.S. 302, 319, 327-28 (1989) ("[P]unishment should be directly related to the personal culpability of the [criminal] defendant."). (180) Johnson v. Texas, 113 S. Ct. 2658, 2670 (1993). The majority stated that "[i]f 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." Id. (181) See supra part V.A. (182) See supra notes 166-69 and accompanying text. (183) See supra notes 176-78 and accompanying text. (184) See supra notes 156-69 and accompanying text. Since the scope of the Eighth Amendment adapts to societal consensus, the principles underlying the Eighth Amendment's protection must also fluctuate with societal consensus. (185) Any defendants who committed a capital murder in Texas after September 1, 1991 will be subject to the provisions of the amended sentencing statute. Tex. Crim. Proc. Code Ann. [sections] 37.071(2)(e) (West Supp. 1994). Because a jury has the ability under the amended version of the statute to fully consider a defendant's proffered mitigating evidence as it affects his moral culpability for the crime committed, the Court's principles would not control the outcome of those defendants' appeals. Id. There may still be convicted defendants on death row that are subject to the provisions of the Texas sentencing statute under attack in Johnson v. Texas, 113 S. Ct. 2658 (1993). For these defendants, the Court's decision substantially diminishes the chance of succeeding on an appeal based on a jury's inability to fully consider the defendant's unique circumstances through the special issues inquiry. (186) Currently, there are three capital punishment-related bills pending in the Texas legislature that may be indirectly affected by the Court's principles. See H.B. 2735, 73rd Leg., Reg. Sess. (1993) (proposes to exclude defendants suffering from mental retardation or mental illness from the penalty of capital punishment); H.B. 727, 73rd Leg., Reg. Sess. (1993) (proposes to make certain murders committed by individuals incarcerated in penal institutions a capital offense punishable by death); H.B. 427, 73rd Leg., Reg. Sess. (1993) (involves the punishment of attempted capital murder). (187) By reducing the risk of Eighth Amendment attack, the Court's decision created a similar temptation for other states with pending capital punishment legislation to diminish the role of moral culpability within the capital sentencing process. See, e.g., Nebraska L.B. 1351, 93rd Leg., 2d Sess. (1994) (changes provisions relating to relating to relate prepconcernant

relating to relate prepbezüglich +gen, mit Bezug auf +acc 
 sentencing and appeals in capital punishment cases); Alaska H.B. 162, 18th Leg., 2d Sess. (1993) (authorizes capital punishment and establishes sentencing procedures for capital felonies); Massachusetts H.B. 677, 179th Gen. Court, Reg. Sess. (1994) (provides for capital punishment for certain persons convicted of first degree murder); Ohio S.B. 107, 120th Leg., Reg. Sess. (1993) (establishes a new capital punishment aggravating circumstance when murder is committed during the commission of a felonious Done with an intent to commit a serious crime or a felony; done with an evil heart or purpose; malicious; wicked; villainous.

An aggravated assault, such as an assault with an intent to murder, is a felonious assault.
 assault by gross abuse); Michigan S. J. Res. 6, 87th Leg., Reg. Sess. (1993) (establishes capital punishment for first degree murder); Mississippi H.B. 1479, 162nd Leg., Reg. Sess. (1994) (allows trial judge to determine punishment in capital cases). (188) Johnson v. Texas, 1 13 S. Ct. 2658, 2673 (1993) (O'Connor, J., dissenting). Part B of this analysis indicated that the second special issue of "future dangerousness" was inadequate for this purpose. The first and third special issues were equally ineffective. For the first special issue, the jury determined that Johnson "deliberately" committed the murder of the convenience store clerk. Id. at 2664. While at first glance it may appear that a question dealing with Johnson's intent allowed the jury to address johnson's moral culpability, the question was merely a restatement Restatement

A revision in a company's earlier financial statements.

Notes:
The need for restating financial figures can result from fraud, misrepresentation, or a simple clerical error.
 of the jury's determination in the conviction stage of the trial that Johnson intended to kill the store clerk. Constrained by the redundant scope of the first special issue, there was no opportunity for the jury to consider the relationship between Johnson's youth and his moral culpability. Similarly, the third special issue did not provide a medium through which the jury could give any weight to the all-important issue of Johnson's moral culpability because the third special issue was not raised by the facts of Johnson. Id. at 2662 n.2. (189) 428 U.S. 262 (1976). (190) Johnson, 113 S. Ct. at 2671-72. (191) 438 U.S. 586 (1978). (192) Id. at 605. (193) Id. (emphasis added). (194) The majority simply stated that the principle of Lockett required "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." Johnson, 113 S. Ct. at 2665 (quoting Lockett, 438 U.S. at 604). The majority completely ignored that the Court in Lockett further defined the scope of the term "considering" to mean "giving independent mitigating weight to aspects of [a] defendant's character." Lochett, 438 U.S. at 605 (emphasis added). In light of the Court's concern about not altering Lockett, it is ironic that the majority actually did alter Lockett by eliminating the importance of the phrase "independent mitigating weight." See Johnson, 113 S. Ct. at 2671. (195) Johnson, 113 S. Ct. at 2666 (quoting McKoy v. North Carolina, 494 U.S. 433, 456 (1990) (Kennedy, J., concurring)). (196) By giving "independent mitigating weight" to evidence, the sentencer can consider any aspect of the evidence that may call for a less severe penalty. Thus, the sentencer can consider and give effect to the critical relationship between Johnson's youth and his moral culpability for the crime he committed. (197) See Lockett, 438 U.S. at 605. Specifically, the jury was unable to impose a punishment in proportion with Johnson's "unique" moral culpability for the crime he committed. (198) 428 U.S. 262 (1976). (199) Lockett, 438 U.S. at 607 ("None of the statutes we sustained in Gregg and the companion cases [Jurek v. Texas] clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor."). (200) 492 U.S. 302 (1989). (201) Id. at 320-22. (202) See id (203) Johnson v. Texas, 113 S. Ct. 2658, 2669 (1993) ("As long as the mitigating evidence is within |the effective reach of the sentencer,' the requirements of the Eighth Amendment are satisfied.") (quoting Graham v. Collins, 113 S. Ct. 892, 901 (1993)). (204) In Penry, the Court stated on two separate occasions that a sentencing statute must allow full consideration of mitigating evidence. First, while interpreting Franklin v. Lynaugh, 487 U.S. 164 (1988), the majority stated "both 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 that was relevant to the defendant's background and character and to the circumstances of the offense." Penry, 492 U.S. at 321 (emphasis added). Second, the majority concluded that, "[r]ather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential." Id. at 328 (emphasis added). (205) Penry, 492 U.S. at 328. (206) Id. at 327. (207) Johnson, 113 S. Ct. at 2669-70. The Court stated that "the only logical manner in which the evidence of [Penry's] mental retardation could be considered within the future dangerousness inquiry was as an aggravating factor." Id. In contrast, the Court concluded that "the ill effects of youth that [Johnson] may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue." Id. at 2670. (208) See supra notes 204-06 and accompanying text. (209) See supra notes 166-69 and accompanying text. (210) 113 S. Ct. 892 (1993). (211) Johnson, 113 S. Ct. at 2674. (212) Graham, 113S. Ct. at 895. (213) Id. at 903. (214) Johnson, 1 1 3 S. Ct. at 2674 (O'Connor, J., dissenting). Justice O'Connor's statement reflects the Court's conclusion in Graham that "even if Penry reasonably could be read to suggest that Graham's mitigating evidence was not adequately considered under the former Texas procedures, that is not the relevant inquiry under Teague." Graham, 113 S. Ct. at 902-03. (215) Johnson, 113 S. Ct. at 2668. (216) Id. at 2668-69. (217) Id. The principles established in Graham all revolved re·volve  
v. re·volved, re·volv·ing, re·volves

v.intr.
1. To orbit a central point.

2. To turn on an axis; rotate. See Synonyms at turn.

3.
 around the central issue of whether Graham's requested relief was a new constitutional rule. The Court applied a "reasonable jurists" standard to resolve this issue. Under this standard, the Court had to rule against Graham "unless reasonable jurists hearing [his] claim at the time his conviction became final |would have felt compelled by existing precedent' to rule in his favor." Graham, 113 S. Ct. at 898 (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)). When this standard is no longer relevant in a case on direct review, the conditional relationship between Graham's principles and the standard breaks down, thus eroding the precedential value of the principles. (218) Johnson, 113 S. Ct. at 2674 (O'Connor, J., dissenting). (219) Id. at 2669. (220) 492 U.S. 302 (1989). (221) Id. at 328 (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978)).
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Title Annotation:Supreme Court Review
Author:Brown, J. Michael
Publication:Journal of Criminal Law and Criminology
Article Type:Case Note
Date:Jan 1, 1994
Words:12813
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