Franklin v. Lynaugh

487 U.S. 164, 108 S. Ct. 2320, 101 L. Ed. 2d 155, 1988 U.S. LEXIS 2868

• Court: Supreme Court of the United States
• Decided: September 15, 1988
• Docket: 87-5546
• Status: Published

Opinions

Justice White

announced the judgment of the Court, and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.

In this case, we are called on to determine if the Eighth Amendment required a Texas trial court to give certain jury instructions, relating to the consideration of mitigating evidence, that petitioner had requested in the sentencing phase of his capital trial.

I

Around midnight on July 25, 1975, someone attacked Mary Margaret Moran, a nurse at a Veterans’ Administration hospital in San Antonio, Texas, in the hospital parking lot as she left work. Five days later, Ms. Moran was found, naked, lying in a field in the midday Texas sun. She had been stabbed seven times; Ms. Moran was also robbed, and possibly sexually assaulted. Still alive when she was discovered, Ms. Moran was taken to a local hospital, where she died the following day.

Suspicion had focused on petitioner within hours of Ms. Moran’s abduction, and he was arrested the following morning at his house, where police found a wide array of physical evidence concerning the crime.¹ Petitioner told the officers that he had loaned his car and clothing to a friend the previous evening, and had no explanation for the physical evidence revealed by the search.

Petitioner did not take the stand at his trial.² His principal defense was that he had been mistakenly identified, and that — even if he was the person who stabbed the victim — her death was the result of incompetent hospital treatment and not the assault. The jury found petitioner guilty of capital murder under Tex. Penal Code Ann. § 19.03 (1974).

At the penalty phase of petitioner’s trial, the State called four police officers who testified that petitioner had a bad reputation as a law-abiding citizen. The State also proved that petitioner had a prior conviction for rape, and called a witness who testified that petitioner had raped her the year before this crime was committed. The sole mitigating evidence petitioner presented was the stipulation that petitioner’s disciplinary record while incarcerated from 1971-1974 and 1976-1980 was without incident. At the conclusion of this penalty hearing, the trial court, pursuant to Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981), submitted two “Special Issues” to the jury,³ instructing'the jury that if they determined the answer to both these questions to be “Yes,” petitioner would be sentenced to death.

Earlier, petitioner had submitted five “special requested” jury instructions to direct the jury’s consideration of the Special Issues.⁴ In essence, the requested instructions would have told the jury that any evidence considered by them to mitigate against the death penalty should be taken into account in answering the Special Issues, and could alone be enough to return a negative answer to either one or both of the questions submitted to them — even if the jury otherwise believed that “Yes” answers to the Special Issues were warranted.

The trial court declined to give the petitioner’s requested instructions, and instead gave a brief charge which remonstrated the jury to “remember all the instructions that the Court has previously given you and be guided by them.” App. 13. Those previous instructions included the charge that they arrive at their verdict based on all the evidence. The jury returned “Yes” answers to both Special Issues and the trial court therefore imposed a sentence of death. Subsequently, the Texas courts affirmed petitioner’s conviction and death sentence. Franklin v. State, 693 S. W. 2d 420 (Tex. Crim. App. 1985).

Petitioner then filed this federal habeas action contesting his conviction and sentence. Among other claims, petitioner argued that, absent his special requested instructions, the Texas Special Issues limited the jury’s consideration of mitigating evidence, contrary to this Court’s decision in Lockett v. Ohio, 438 U. S. 586 (1978), and several other decisions as well. The District Court rejected this claim, finding no error in the trial court’s refusal to give the requested instructions and no violation of this Court’s precedents. App. 22. The Court of Appeals affirmed the District Court’s denial of habeas relief without commenting on the jury instruction claim. 823 F. 2d 98, 99-100 (CA5 1987).

Petitioner then sought review by this Court. We granted certiorari to determine if the trial court’s refusal to give the requested instructions violated petitioner’s Eighth Amendment right to present mitigating evidence at his capital sentencing trial, 484 U. S. 891 (1987), and now affirm the judgment below.

Jurek v. Texas, 428 U. S. 262 (1976), expressly upheld the constitutionality of the manner in which mitigating evidence is considered under the “Special Issues” submitted to Texas capital juries. See id., at 273 (opinion of Stewart, Powell, and Stevens, JJ.). Petitioner here does not challenge the constitutionality of the Texas capital sentencing scheme as a general matter, see Tr. of Oral Arg. 11; petitioner has disavowed any request for this Court to overrule its decision in Jurek, see Tr. of Oral Arg. 18, 20.

Nor does petitioner complain that he was denied the opportunity to present any mitigating evidence to the jury, or that the jury was instructed to ignore any mitigating evidence petitioner did present. Cf. Hitchcock v. Dugger, 481 U. S. 393 (1987). Here, petitioner was permitted to present to the jury any and all mitigating evidence that he offered. It is the established Texas practice to permit jury consideration of “ ‘whatever mitigating circumstances’ the defendant might be able to show” in capital sentencing — a practice which this Court relied upon when it concluded in Lockett v. Ohio, supra, that our decision in that case did not require reversal of our earlier approval of the Texas Special Issue scheme in Jurek. See Lockett v. Ohio, supra, at 606-607 (opinion of Burger, C. J.). In the decade which has followed, the Texas courts have expressed resolute adherence to Lockett, declaring that under Texas’ capital sentencing procedures the defense is free to ask “the jury ... to consider whatever evidence of mitigating circumstances the defense can bring before it.” Quinones v. State, 592 S. W. 2d 933, 947 (Tex. Crim. App. 1980).⁵

Petitioner nevertheless complains that the instructions and Special Issues did not provide sufficient opportunity for the jury, in the process of answering the two Special Issues, to consider whatever “residual doubt” it may have had about petitioner’s guilt. The instructions also allegedly did not allow the jury to give adequate weight to the mitigating evidence of petitioner’s good behavior while in prison. In addition, petitioner contends that the Eighth Amendment was violated because the jury was not afforded an opportunity to “giv[e] independent mitigating weight,” Lockett, supra, at 605, to the circumstances the defense presented; i. e., not permitted to weigh petitioner’s mitigating evidence and circumstances apart from its deliberation over the Texas Special Issues, and return a verdict requiring a life sentence. See Brief for Petitioner 20; Tr. of Oral Arg. 18, 23.

We consider these claims with respect to each of petitioner’s two “mitigating factors.”

A

Petitioner first suggests that the jury may, in its penalty deliberations, have harbored “residual doubts” about three issues considered in the guilt phase of his trial: first, petitioner’s identity as the murderer; second, the extent to which petitioner’s actions (as opposed to medical mistreatment) actually caused the victim’s death; and third, the extent to which petitioner’s actions were intended to result in the victim’s death. See Brief for Petitioner 13; 12 Record 2892-2896. He argues that the jury should have been instructed that it could consider any such doubts in arriving at its answers to the Special Issues.

(1)

At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Petitioner suggests that our discussion of the “residual doubt” question in Lockhart v. McCree, 476 U. S. 162, 180-182 (1986), supports his position that he has such an entitlement. See Tr. of Oral Arg. 6-7; Brief for Petitioner 9. But all that this aspect of the Lock-hart opinion stands for is the simple truism that where “States are willing to go to allow defendants to capitalize on 'residual doubts,’” such doubts will inure to the defendant’s benefit. Lockhart, supra, at 181. Lockhart did not endorse capital sentencing schemes which permit such use of “residual doubts,” let alone suggest that capital defendants have a right to demand jury consideration of “residual doubts” in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a “few times in which any legitimacy has been given” to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. 476 U. S., at 205-206 (Marshall, J., dissenting). The dissent also noted that this Court has not struck down the practice in somé States of prohibiting the consideration of “residual doubts” during the punishment trial.⁶ Ibid.

Our edict that, in a capital case, “‘the sentencer . . . [may] 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,’” Eddings v. Oklahoma, 455 U. S. 104, 110 (1982) (quoting Lockett, 438 U. S., at 604), in no way mandates reconsideration by capital juries, in the sentencing phase, of their “residual doubts” over a defendant’s guilt. Such lingering doubts are not over any aspect of petitioner’s “character,” “record,” or a “circumstance of the offense.” This Court’s prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.

Most importantly, even if we were inclined to discern such a right in the Eighth Amendment, we would not find any violation of it in this case. For even if such a right existed, nothing done by the trial court impaired petitioner’s exercise of this “right.” The trial court placed no limitation whatsoever on petitioner’s opportunity to press the “residual doubts” question with the sentencing jury. Moreover, in our view, the trial court’s rejection of petitioner’s proffered jury instructions was without impact on the jury’s consideration of the “residual doubts” issue. We reject petitioner’s complaint that the possibility of residual doubt was not “self-evidently relevant to either of the special issue questions,” and that “[ujnless told that residual doubt . . . could be considered in relation to [the special issue] question^], the jurors could logically have concluded that such doubt was irrelevant.” Brief for Petitioner 15, 16. Among other problems with this argument is the simple fact that petitioner’s requested instructions on mitigating evidence themselves offered no specific direction to the jury concerning the potential consideration of “residual doubt.” See App. 7-12. The proposed instructions did not suggest that lingering doubts about the petitioner’s guilt were to be a subject of deliberations in the sentencing phase.⁷ Consequently, it is difficult to see how the rejection of these instructions denied petitioner the benefit of any “residual doubts” about his guilt.

In sum, even if petitioner had some constitutional right to seek jury consideration of “residual doubts” about his guilt during his sentencing hearing — a questionable proposition— the rejection of petitioner’s proffered jury instructions did not impair this “right.”

(2)

In regard to the second and third elements of “residual doubt” petitioner advances — potential jury doubts over his responsibility for the victim’s death, and the extent to which he intended the victim’s death if indeed he was her attacker — we do not think that the Texas Special Issues limited the jury’s consideration of any doubts in these respects.

Petitioner suggests that there may have been residual doubt over the question of whether the victim would have perished had she received proper medical treatment. See Brief for Petitioner 5, 13; 12 Record 2895-2896. Yet, to the extent that this question implicates petitioner’s culpability in causing Ms. Moran’s death, this is precisely the concern that the jury might have considered in answering Special Issue No. One, i. e., in determining that “the conduct of the Defendant . . . that caused the death of [the victim] was committed deliberately and with the reasonable expectation that the death of the deceased . . . would result.” App. 15. The Texas courts have consistently held that something more must be found in the penalty phase — something beyond the guilt-phase finding of “intentional” commission of the crime— before the jury can determine that a capital murder is “deliberate” within the meaning of the first Special Issue. See, e. g., Marquez v. State, 725 S. W. 2d 217, 244 (Tex. Crim. App. 1987); Fearance v. State, 620 S. W. 2d 577, 584 (Tex. Crim. App. 1981). In fact, Texas juries have found, on occasion, that a defendant had committed an “intentional murder” without finding that the murder was a “deliberate” one. See, e. g., Heckert v. State, 612 S. W. 2d 549, 552 (Tex. Crim. App. 1981). Petitioner was not deprived of any opportunity to make a similar argument here in mitigation.

The same is true of the parallel contention that petitioner did advance at the end of the penalty hearing: that his murder of Ms. Moran was not a “deliberate” one, but rather, “a [hjelter-skelter crazy crime of passion.” 13 Record 2962-2963. This argument echoed a theme petitioner raised in the closing argument of the guilt phase of the trial. See 12 Record 2893-2897. But this element of “residual doubt” could likewise have been considered by the jury in answering the first Special Issue.

Petitioner was thus not deprived of any chance to have his sentencing jury weigh this element of his culpability. And, as was the case with respect to the “residual doubt” issue discussed in Part II-A(l), there was nothing in petitioner’s proposed jury instructions which would have provided the jury with any further guidance, beyond that already found in the first Special Issue, to direct its consideration of this mitigating factor. The denial of petitioner’s special requested instructions in no way limited his efforts to gain full consideration by the sentencing jury — including a reconsideration of any “residual doubts” from the guilt phase— of petitioner’s deliberateness in (killing Ms. Moran.

B

The second mitigating circumstance which petitioner claims that the jury did not adequately consider is his good disciplinary record during his period of incarceration, both before and after the murder of Ms. Moran.

As noted above, petitioner’s prison disciplinary record was presented to the jury in this case — in fact, it was the sole bit of evidence in mitigation petitioner presented during the penalty phase of his trial. 13 Record 2952-2953. This case is therefore unlike Skipper v. South Carolina, 476 U. S. 1, 3 (1986), where evidence of the defendant’s conduct while incarcerated was wholly excluded from the jury’s consideration in its sentencing deliberations. To the contrary, petitioner here was permitted to press, with some emphasis, his good behavior in prison when he urged the jury, at the close of the sentencing hearing, to return a “No” answer to the second Special Issue concerning future dangerousness. See 13 Record 2963-2965. Petitioner acknowledged as much before this Court. Tr. of Oral Arg. 14, 24.

Petitioner objects, however, that — absent his requested jury instructions — there was no opportunity for the jury to give “independent” mitigating weight to his prison record. See Lockett, 438 U. S., at 604. He argues that this mitigating evidence had significance independent of its relevance to the Special Issues — as a reflection on his “character.” See Skipper, supra, at 4. Petitioner contends that his prison disciplinary record reflected so positively on his “character” that the instructions in this case should have provided the jury with a “mechanism though which to impose a life sentence” even if the jury otherwise believed that both Special Issues should have been answered “Yes.” Brief for Petitioner 20. For several reasons, we do not find these arguments convincing.

First, petitioner was accorded a full opportunity to have his sentencing jury consider and give effect to any mitigating impulse that petitioner’s prison record might have suggested to the jury as they proceeded with their task. In resolving the second Texas Special Issue the jury was surely free to weigh and evaluate petitioner’s disciplinary record as it bore on his “character” — that is, his “character” as measured by his likely future behavior. We have never defined what the term “character” means when we have held that a defendant’s “character” is a relevant consideration in capital sentencing.⁸ But nothing in our cases supports petitioner’s contention that relevant aspects of his “character,” as far as they were illuminated by the presentation of evidence concerning petitioner’s disciplinary record, encompassed anything more than those matters fully considered by the jury when it was asked to answer the second Special Issue.

Indeed, our discussion in Skipper of the relevancy of such disciplinary record evidence in capital sentencing decisions dealt exclusively with the question of how such evidence reflects on a defendant’s likely future behavior. See Skipper, supra, at 4-5. Nothing in Skipper suggests that such evidence has any further relevancy with respect to a defendant’s “character” or with respect to the punishment decision. Moreover, Skipper’s discussion of the proper use of a defendant’s prison disciplinary record in a jury’s sentencing decision focused precisely on the way in which such evidence is encompassed by the Texas future-dangerousness question, and on the Court’s previous decision in Jurek. See 476 U. S., at 4-5. Furthermore, we note that nothing in petitioner’s presentation or discussion of his prison record at the sentencing hearing urged the jury to consider petitioner’s record as probative of anything more than that the answer to the question posed by Special Issue Two should be “No.” See 13 Record 2963-2964. Even in this Court, in seeking to define how his prison record sheds light on his “character,” petitioner has cast his argument in terms of future dangerousness.⁹

We find unavailing petitioner’s reliance on this Court’s statement in Eddings, 455 U. S., at 114, that the sentencing jury may not be precluded from considering “any relevant, mitigating evidence.” See Tr. of Oral Arg. 15. This statement leaves unanswered the question: relevant to what? While Lockett, supra, at 604, answers this question at least in part — making it clear that a State cannot take out of the realm of relevant sentencing considerations the questions of the defendant’s “character,” “record,” or the “circumstances of the offense” — Lockett does not hold that the State has no role in structuring or giving shape to the jury’s consideration of these mitigating factors. See Booth v. Maryland, 482 U. S. 496, 502 (1987). Given the awesome power that a sentencing jury must exercise in a capital case, it may be advisable for a State to provide the jury with some framework for discharging these responsibilities. And we have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required. See Zant v. Stephens, 462 U. S. 862, 875-876, n. 13 (1983).

We are thus quite sure that the jury’s consideration of petitioner’s prison record was not improperly limited. The jury was completely free to give that evidence appropriate weight in arriving at its answers to the Special Issues. And as for the claim that the jury should have been instructed that, even if its answer to the Special Issues was “Yes,” it was still entitled to cast an “independent” vote against the death penalty, we note that this submission is foreclosed by Jurek, which held that Texas could constitutionally impose the death penalty if a jury returned “Yes” answers to the two Special Issues. See Jurek, 428 U. S., at 273-274 (joint opinion). Jurek has not been overruled; and we are not inclined to take any such action now.¹⁰

I — ( I — I » — I

Our specific rejection of petitioner’s claims is well supported by the general principles governing the role of mitigating evidence in capital sentencing which have been developed since our decisions in Gregg v. Georgia, 428 U. S. 153 (1976), and Jurek v. Texas, supra.

It is true that since Jurek was decided, this Court has gone far in establishing a constitutional entitlement of capital defendants to appeal for leniency in the exercise of juries’ sentencing discretion. See, e. g., Eddings v. Oklahoma, supra, at 113-117; Lockett v. Ohio, 438 U. S., at 608 (opinion of Burger, C. J.). But even in so doing, this Court has never held that jury discretion must be unlimited or unguided; we have never suggested that jury consideration of mitigating evidence must be undirected or unfocused; 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.

Much in our cases suggests just the opposite. This Court has previously held that the States “must channel the [capital] sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance’ and that ‘make rationally reviewable the process for imposing a sentence of death.’” Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion) (footnotes omitted). Our cases before and since have similarly suggested that “sentencers may not be given unbridled discretion in determining the fates of those charged with capital offenses” and that the “Constitution . . . requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion.” California v. Brown, 479 U. S. 538, 541 (1987). See also Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion); Gregg v. Georgia, supra, at 189, 195, n. 46, 196, n. 47, 198 (joint opinion).

Arguably these two lines of cases — Eddings and Lockett on the one hand, and Gh°egg and Proffitt on the other — are somewhat in “tension” with each other. See California v. Brown, supra, at 544 (O’Connor, J., concurring). Yet the Texas capital sentencing system has been upheld by this Court, and its method for providing for the consideration of mitigating evidence has been cited repeatedly with favor,¹¹ precisely because of the way in which the Texas scheme accommodates both of these concerns. Doubtlessly this is why this Court originally approved Texas’ use of Special Issues to guide jury discretion in the sentencing phase, notwithstanding the fact — expressly averted to in the plurality opinion for the Court — that mitigating evidence is employed in the Texas scheme only to inform the jury’s consideration of the answers to the Special Issue questions. Jurek, supra, at 272-273.¹² No doubt this is also why the Texas scheme has continued to pass constitutional muster, even when the Court laid down its broad rule in Lockett, supra, at 606-607 (opinion of Burger, C. J.), concerning the consideration of mitigating evidence. Simply put, we have previously recognized that the Texas Special Issues adequately “allo[w] the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently pro-vid[e] for jury discretion.” See Lowenfield v. Phelps, 484 U. S. 231, 245 (1988). We adhere to this prior conclusion.

> HH

Because we do not believe that the jury instructions or the Texas Special Issues precluded jury consideration of any relevant mitigating circumstances in this case, or otherwise unconstitutionally limited the jury’s discretion here, we reject petitioner’s Eighth Amendment challenge to his death sentence. Consequently, the Fifth Circuit’s judgment in this case is

Affirmed.

1 Among the items found at petitioner’s home were: a pair of shoes with human blood on them that matched the victim’s type; some of petitioner’s clothes, soiled with blood and plant samples (matching the field where the victim was discovered); one of petitioner’s shirts, covered with fibers that matched the victim’s sweater. In addition, in a trash can behind petitioner’s house, various items of the victim’s personal property were found, as well as a knife which was later determined to be the apparent murder weapon.

Similar fiber, plant, and blood sample evidence was found in petitioner’s car, matching samples of the victim’s blood, her clothing, and the field where she was found. See Franklin v. State, 606 S. W. 2d 818, 819-821 (Tex. Crim. App. 1979).

2 This petition concerns the proceedings at petitioner’s 1982 trial, his third for this same offense. Petitioner’s two previous convictions and death sentences were set aside for reasons unrelated to the issues before us now. See Franklin v. State, 693 S. W. 2d 420, 422 (Tex. Crim. App. 1985).

3 The two Special Issues, as presented to the jury in this case, were:

“Do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant, Donald Gene Franklin, that caused the death of Mary Margaret Moran, was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

“Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Donald Gene Franklin, would commit criminal acts of violence that would constitute a continuing threat to society?” App. 15.

4 The requested jury instructions were, in pertinent part, as follows:

“‘You are instructed that any evidence which, in your opinion, mitigates against the imposition of the Death Penalty, including any aspect of the Defendant’s character or record, and any of the circumstances of the commission of the offense . . . may be sufficient to cause you to have a reasonable doubt as to whether or not the true answer to any of the Special Issues is “Yes”; and in the event such evidence does cause you to have such a reasonable doubt, you should answer the Issue “No.”’” Defendant’s Special Requested Charge on Punishment No. One, App. 7.

“ ‘An answer of “No” may be given to any of the [Special] Issues if:

“ ‘2) . . . at least ten (10) jurors find that mitigating factors against the imposition of the Death Penalty exist, either in regard to any aspect of the Defendant’s character or record, or in regard to any of the circumstances of the commission of the offense ... or

“ ‘3) if evidence of any such mitigating factors causes at least ten (10) jurors to have a reasonable doubt as to whether the true answer to the Issues is “Yes.”’” Id., at 8-9 (No. Two). (Texas law instructs the jury to answer the Special Issues in the negative if 10 jurors agree on the “No” answer. See App. 13.).

“ ‘You are instructed that you may answer any of the Special Issues “No” if you find any aspect of the Defendant’s character or record or any of the circumstances of the offense as factors which mitigate against the imposition of the death penalty.’” Id., at 10 (No. Three).

“‘You are instructed that you may answer Special Issue No. One “No” if you find any aspect of the Defendant’s character or record as factors which mitigate against the imposition of the death penalty.”’ Id., at 11 (No. Four).

“‘You are instructed that you may answer Special Issue No. 2 “No" if you find any aspect of the Defendant’s character or record or any of the circumstances of the offense as factors which mitigate against the imposition of the death penalty.’ ” Id., at 12 (No. Five).

5 See also, e. g., Cordova v. State, 733 S. W. 2d 175, 189-190, and n. 3 (Tex. Crim. App. 1987); Johnson v. State, 691 S. W. 2d 619, 625-626 (Tex. Crim. App. 1984); Stewart v. State, 686 S. W. 2d 118, 121 (Tex. Crim. App. 1984); Williams v. State, 674 S. W. 2d 315, 322 (Tex. Crim. App. 1984).

6 Finding a constitutional right to rely on a guilt-phase jury’s “residual doubts” about innocence when the defense presents its mitigating case in the penalty phase is arguably inconsistent with the common practice of allowing penalty-only trials on remand of cases where a death sentence— but not the underlying conviction — is struck down on appeal. See, e. g., Scott v. State, 310 Md. 277, 301, 529 A. 2d 340, 352 (1987); Stringer v. State, 500 So. 2d 928, 946 (Miss. 1986); Whalen v. State, 492 A. 2d 552, 569 (Del. 1985). Cf. Lockhart v. McCree, 476 U. S., at 205 (Marshall, J., dissenting).

In fact, this Court has, on several previous occasions, suggested such a method of proceeding on remand. See, e. g., Hitchcock v. Dugger, 481 U. S. 393, 399 (1987). Moreover, petitioner himself, in suggesting the appropriate relief in this case, asked only that he be “resentenced in a proceeding that comports with the requirements of Lockett" — not that he be retried in full so as to have the benefit of any potential guilt-phase “residual doubts.” See Brief for Petitioner 21.

In sum, we are quite doubtful that such “penalty-only” trials are vio-lative of a defendant’s Eighth Amendment rights. Yet such is the logical conclusion of petitioner’s claim of a constitutional right to argue “residual doubts” to a capital sentencing jury.

7 Likewise, petitioner’s closing argument — the sole element of his presentation in the sentencing phase — did not draw the jury’s attention to the “residual guilt” question. The only element of the defense’s lengthy closing statement that even remotely raised this issue was a brief suggestion, in the course of a general argument against the death penalty, that the jury should recognize “our inherent human fallibility . . . recognize [that] we can make a mistake.” See 13 Record 2968. Otherwise, nothing in the defense’s mitigating presentation sought the jury’s ■ reconsideration of petitioner’s guilt in committing this crime.

8 See, e. g., Skipper v. South Carolina, 476 U. S. 1, 4 (1986); Eddings v. Oklahoma, 455 U. S. 104, 110 (1982); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 304 (1976).

9 In describing what, arguably, the Texas Special Issue did not permit the jury to take into account with respect to petitioner’s “character” and his disciplinary record, petitioner principally argues that “Mr. Franklin's behavior in prison demonstrated that he had the strength of character to live a peaceful, productive life within the structured environment of a prison, and that, so long as he stayed in prison there was no probability that he would pose a threat to others. ” Brief for Petitioner 18-19 (emphasis added).

Yet, as the State noted at argument, the question of a defendant's likelihood of injuring others in prison is precisely the question posed by the second Texas Special Issue. See Tr. of Oral Arg. 27-28.

10 The dissent says that the Texas scheme is infirm because it “limits the senteneer’s consideration to only that mitigating evidence that bears on one or more of the Special Issues.” Post, at 199. It is difficult to reconcile this statement with the dissent’s avowed adherence to Jurek. If, as Jurek held, it is constitutional for Texas to impose a death sentence on a person whenever a jury answers both Special Issues in the affirmative— without any other inquiry — then surely Texas must be permitted to direct the jury’s consideration of mitigating evidence to those items relevant to this undertaking.

In the final analysis, the dissent’s position appears to be that the Texas capital punishment statute is unconstitutional because it does not require that the jurors be instructed that — even though they would answer the two statutory questions “Yes” after taking account of all mitigating evidence— they may rely on any mitigating evidence before them, although irrelevant to those two questions, as an independent basis for deciding against the death penalty. Post, at 199-200. Yet this is nothing more or less than a requirement that three, rather than two, Special Issues be put to the jury, the third one being: “Does any mitigating evidence before you, whether or not relevant to the above two questions, lead you to believe that the death penalty should not be imposed?”

Such a requirement would have foreclosed the decision in Jurek, since the Texas statute upheld there did not mandate such an inquiry — one that would be required in virtually every case where there was any suggestion of a mitigating circumstance, under the dissent’s view. As we have said above, however, our cases since Jurek have not suggested that Jurek is to be overruled or modified. Our differences with the dissent are therefore clear enough: notwithstanding its stated adherence to Jurek, the dissent would revisit and overrule that precedent; we decline to do so.

11 See, e. g., Lowenfield v. Phelps, 484 U. S. 231, 245-246 (1988); Lockhart v. McCree, 476 U. S., at 193; Pulley v. Harris, 465 U. S. 37, 48-49 (1984); Zant v. Stephens, 462 U. S. 862, 875-876, n. 13 (1983); Adams v. Texas, 448 U. S. 38, 46 (1980).

12 We also repeat our previous acknowledgment, that — as a practical matter — a Texas capital jury deliberating over the Special Issues is aware of the consequences of its answers, and is likely to weigh mitigating evidence as it formulates these answers in a manner similar to that employed by capital juries in “pure balancing” States. See Adams v. Texas, supra, at 46. Thus, the differences between the two systems may be even less than it appears at first examination.