EBEL, Circuit Judge,
delivers the opinion and judgment for the Court, in which LOGAN, JOHN P. MOORE, STEPHEN H. ANDERSON, TACHA, BALDOCK, and BRORBY, Circuit Judges, join as to Part I, and HOLLOWAY, Chief Judge, and McKAY, LOGAN, SEYMOUR, and MOORE, Circuit Judges, join as to Part II.
In 1978, an Oklahoma jury convicted petitioner-appellant, Robyn Leroy Parks, of first-degree murder and, after further hearing, sentenced him to death. After exhausting his state remedies, he sought and was denied habeas corpus relief in the United States District Court for the Western District of Oklahoma. He then appealed to this court, and a divided panel affirmed the district court. We agreed to a rehearing en banc on two of petitioner’s arguments, and we now reverse his death sentence.
At petitioner’s trial, the state established the following. Abdullah Ibrahim, a native of Bangladesh, worked part-time at a gas station in Oklahoma City, Oklahoma. On the morning of August 17, 1977, a motorist stopped at the gas station and found Ibra-him dead inside the station booth. Ibrahim died from a single gunshot wound in the chest from a .45-caliber pistol. The police found an unused gas credit card slip in the booth, with the license number “XZ-5710” written on it. The police traced this number to an automobile in which Parks had an interest.
An informant told police that Parks was involved in the murder and gave police an address at which Parks might be found. Although the police did not find Parks at that address, they found a car in the vicinity of the address with the license number “XZ-5710.” Inside the car they found a prescription-drug bottle with Parks’ name on it, a belt with the initials “R.L.P.,” and eight .45-caliber bullets.
The police then talked with Parks’ former roommate, James R. Clegg, Jr. After being offered a reward, Clegg allowed police to tape record two telephone conversations that he had with Parks, who was then in California. During the first conversation, Parks admitted to shooting the gas station attendant. Parks told Clegg that after he saw the attendant come out of the station booth and look at his license plate number, he was afraid that the attendant would call the police because he was using a stolen credit card to pay for the gas. He said that he was concerned about being stopped by the police because he had guns and dynamite in his car. During the second conversation, Parks told Clegg where he had hidden the murder weapon. At that location, police found a .45-caliber pistol and ammunition.
In the District Court of Oklahoma County, a jury found Parks guilty of the first-degree murder of Ibrahim. After further hearing, the same jury sentenced him to death. The jury found only one of the three statutory aggravating circumstances that were charged — that the murder was “committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” See 21 Okla.Stat. § 701.12.1 Parks’ conviction and sentence were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals. Parks v. State, 651 P.2d 686 (Okla.Crim.App.1982). The United States Supreme Court denied certiorari. Parks v. Oklahoma, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983).
Parks subsequently sought post-conviction relief in the state courts of Oklahoma. The state district court denied relief, and [1548] the Oklahoma Court of Criminal Appeals affirmed in an unreported order and opinion. The United States Supreme Court again denied certiorari. Parks v. Oklahoma, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 356 (1984).
Parks then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma. The district court denied relief, and Parks appealed to this court. A divided panel affirmed the district court’s denial of habeas relief. Parks v. Brown, 840 F.2d 1496 (10th Cir.1987). This court agreed to a rehearing en banc, and we now reverse.
This rehearing focuses upon two basic issues, both arising from the penalty phase of petitioner’s trial: (1) Whether the prosecutor’s summation in the penalty phase concerning juror responsibility diverted the jury from considering the full extent of its responsibility for determining the life or death sentence, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (2)[a] Whether the penalty phase instruction “You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence,” influenced the jury improperly to discount mitigating evidence presented by the defendant; and (2)[b] Whether the combination of the prosecutor’s comments concerning the above instruction and the instruction itself, and the absence of any corrective instruction after the arguments, influenced the jury improperly to discount mitigating evidence presented by the defendant? 2
As to the first issue, we hold that the prosecutor’s remarks did not violate Caldwell by improperly reducing the jury’s sense of its responsibility for the sentencing decision. Therefore, we affirm the district court on that issue. With respect to the second issue, we hold that the anti-sympathy portion of the jury instructions, even when viewed independently from the prosecutor’s anti-sympathy remarks, violated the petitioner’s eighth amendment rights by creating an impermissible risk of influencing the jury to discount mitigating evidence presented by him. Because we find the anti-sympathy instruction to be unconstitutional, we reverse the district court to the extent that it upheld the constitutionality of the death sentence in this case, and we remand for further proceedings consistent with this opinion.
We begin our analysis of petitioner’s claims by noting the special nature of the death penalty. Because of its severity and irreversibility, the death sentence is the “ultimate restraint.” Cartwright v. Maynard, 822 F.2d 1477, 1483 (10th Cir.1987) (en banc), aff'd, — U.S. -, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). This qualitative difference from other punishments requires “a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). See also Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). The Supreme Court has repeatedly stated that a high degree of scrutiny of the capital sentencing determination is required to ensure that the capital sentencing decision does not violate the eighth amendment prohibition against cruel and unusual punishments. See, e.g., California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983). Accordingly, we apply a heightened scrutiny to the prosecutor’s statements and jury instructions challenged in this rehearing.
[1549] I.
THE PROSECUTOR’S COMMENTS REGARDING JURORS’ RESPONSIBILITY
Petitioner argues that certain statements made by the prosecutor during the penalty phase of the trial violated the rule of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The Supreme Court in Caldwell held that it is “constitutionally impermissible to rest a death sentence on a determination made by a sen-tencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639-40. In that case the Court found that it was improper for a prosecutor to have stated to the jury that its decision was “automatically reviewable by the Supreme Court” because, among other things, the statement carried with it “an intolerable danger that the jury will in fact choose to minimize the importance of its role.” Id. at 333, 105 S.Ct. 2641.3
Here, petitioner challenges the following statements made by the prosecutor during the prosecutor’s closing argument:
But, you know, as you as jurors, you really, in assessing the death penalty, you’re not yourself putting Robyn Parks to death. You just have become a part of the criminal-justice system that says when anyone does this, that he must suffer death. So all you are doing is you’re just following the law, and what the law says, and on your verdict — once your verdict comes back in, the law takes over. The law does all of these things, so it’s not on your conscience. You’re just part of the criminal-justice system that says that when this type of thing happens, that whoever does such a horrible, atrocious thing must suffer death. Now that’s man’s law. But God’s law is the very same. God’s law says that the murderer shall suffer death. So don’t let it bother your conscience, you know.
Record, vol. V, at 707-08.
Petitioner argues that those statements diluted the jurors’ sense of responsibility for their decision in violation of Caldwell. Although we do not condone the statements made by the prosecutor, we find that the statements did not reduce the jury’s sense of its actual responsibility for the sentencing decision and therefore did not violate Caldwell.
A two-step inquiry is appropriate when examining alleged Caldwell violations. See Darden v. Wainwright, 477 U.S. 168, 184 n. 15, 106 S.Ct. 2464, 2473 n. 15, 91 L.Ed.2d 144 (1986). First, the court should determine whether the challenged prosecu-torial remarks are the type of statements covered by Caldwell. In other words, they must be statements that tend to shift the responsibility for the sentencing decision away from the jury. If so, the second inquiry is to evaluate the effect of such statements on the jury to determine whether the statements rendered the sentencing decision unconstitutional.
The Supreme Court elaborated upon Caldwell in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), when it stated that Caldwell applies only to comments that “mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Id. at 184 n. 15, 105 S.Ct. at 2473 n. 15 (emphasis added). Thus, Caldwell is triggered only by statements that dilute the jury’s sense of its actual role in the sentencing process. Further, Caldwell may address only statements which mis[1550] lead the jury as to its role, either by omission or commission.4
We conclude that Caldwell is inapplicable here because, as in Darden, “none of the [prosecutor’s] comments could have had the effect of misleading the jury into thinking that it had a reduced role in the sentencing process.” 477 U.S. at 184 n. 15, 106 S.Ct. at 2473 n. 15. However much the prosecutor in the instant case may have tried to diffuse the jury’s moral responsibility for the death penalty, the actual role of the jury as the decision-making body that had the authority and responsibility to decide whether Robyn Parks should be sentenced to death was crystal clear.5
In evaluating the challenged statements, it is necessary to examine the context in which they were made. See Darden v. Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986); Dutton v. Brown, 812 F.2d 593, 596 (10th Cir.1987) (en banc), cert. denied, — U.S. -, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987). An examination of other statements by the prosecutor and statements by defense counsel supports our conclusion that the jury’s sense of its actual responsibility and authority for making the sentencing decision was not diminished.
During his initial closing argument at the penalty phase of the trial, the prosecutor emphasized that the jurors had the actual responsibility for deciding the appropriateness of the death penalty. For example, immediately after the statements challenged here by the petitioner, the prosecutor told the jury: “You consider all of this evidence ... Can you think of a more proper case — a more proper case in which your verdict assessing death would be more proper?” Record, vol. V, at 708. That statement made it clear to the jurors that they had the ultimate responsibility for evaluating the evidence and determining the appropriate sentence.
In his final closing argument, the prosecutor again stressed the gravity and importance of the jury’s responsibility when he stated:
We are sorrowful that you do have a duty that you must perform, because you will remember this case, and you’ll remember it the rest of your life, and you’ll remember whether or not a horrible tragedy occurred and the man that did it sat before you.
We must have the protection of the death penalty, and we must have jurors that are strong enough to say, when that kind of a case is laid in front of us, ... then we must, under the law and under the evidence, under a proper case, we must return the death penalty.
Record, vol. V, at 728-30.
Furthermore, defense counsel, in his closing argument, responded directly to the prosecutor’s comments, thereby underscoring to the jury the full scope of its responsibility:
It seems to me that the situation that we’ve got here is that [the prosecutor is] trying to tell you that you’ve got three aggravating factors which could allow you to tell somebody down in McAlester to roll up Robyn Parks’ sleeve and inject him with a barbiturate — a fast-acting paralytic agent — while strapped in a chair. They could allow you to do that; and under the law which I wrote,6 they [1551] could. However, nothing in the law says you have to do it. You are the people who are going to determine whether it’s done.
I heard [the prosecutor] say if anybody does this, he must suffer death. It’s not true. It’s not true at all.
Record, vol. V, at 709.
The defense counsel then proceeded to discuss the mitigating factors such as the petitioner’s age, race and background. Record, vol. V, at 710. Thereafter, he reemphasized that not all first-degree murders are punishable by the death penalty and that “mandatory death penalties are unconstitutional.” Record, vol. Y, at 710-11. He then argued against the alleged aggravating circumstances. Record, vol. V, at 711-15.
After discussing the aggravating circumstances, defense counsel again emphasized that it was the jury’s responsibility to determine the appropriate penalty:
I said, I’m not — by voting for this bill, I’m not prepared to throw the switch on anybody. The juries are the ones that are going to do that. The law doesn’t require it, the legislature never required it, and I think for a good reason. What they did was, they gave it to the province of 12 people such as you to determine whether a man should live or a man should die, and they gave some guidelines to try to make that decision more rational and less emotional.
... But again, someone down in McAl-ester, hired by the state of Oklahoma, is going to have to inject a lethal substance into Robyn Leroy Parks to cause his death, if you do decide, and that responsibility is on each and every one of you.
Record, vol. V, at 716, 720-21.
Similarly, the judge, in his instructions, emphasized to the jury that it had the responsibility to determine what penalty should be given to the petitioner Parks. The jury was instructed: “It is now your duty to determine the penalty which shall be imposed for this offense.” Penalty Instruction No. 3. Unlke Caldwell, in which the trial court compounded the sense of dilution of responsibility that had been conveyed by the prosecutor to the jury, here the judge’s instructions were clear and unequivocal that the sentencing responsibility rested with this jury.
Other decisions of this court and other courts of appeals are instructive on the scope of Caldwell and its applicability to the statements made by the prosecutor in this case. In Dutton v. Brown, 812 F.2d 593 (10th Cir.1987) (en banc), cert. denied, — U.S. -, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987), this court rejected a Caldwell challenge to statements similar to the ones challenged here. In Dutton, the prosecutor told the jurors that they were “part of the process” and were “not functioning as individuals.” Id. at 596.7 This court held that “when taken in context, the statement of the prosecutor was not constitutionally impermissible.” Id. at 596-97. Rather, the statement “merely underscored that the jury was part of the whole system of justice.” Id. at 597.
In Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987), the prosecutor told the jury that it was “not writing the verdict” because the defendant, not the jury, was responsible for the defendant’s plight. We concluded in Coleman that the defendant’s rights were not violated:
[T]he dangers the Court identified in Caldwell are not present in the remarks made here. This method of argument does not permit the jury to rely on someone else to make the ultimate sentencing decision or otherwise dilute or trivialize the jury’s responsibility. Unlike the argument in Caldwell, the argument used here did not suggest to the jury that someone else now has control over the defendant’s fate.
Id. at 1240-41 (emphasis in original).
Several other circuits have rejected Caldwell challenges to prosecutorial statements [1552] that were more egregious than the ones in this case and while we have no occasion to approve or disapprove of those holdings, they do show how other circuits have read Caldwell. See, e.g., Sawyer v. Butler, 848 F.2d 582, 595 (5th Cir.1988) (jury was told that “there will be others who will be behind you to either agree with you or to say you are wrong”), reh’g granted, (available on Westlaw), 1988 U.S.App. Lexis 12690; Stewart v. Dugger, 847 F.2d 1486, 1489-93 (11th Cir.1988) (judge told jury that “this is one of those cases where the legislature has said that the death penalty is the appropriate penalty” and prosecutor informed the jury of its advisory role); Harich v. Dugger, 844 F.2d 1464, 1472-75 (11th Cir.1988) (en banc) (advisory jury was told that its sentence was only a recommendation and that the court would make the final decision). Our research reveals that the circuit court decisions that have invalidated sentencing decisions under Caldwell involved prosecutorial remarks that clearly shifted the ultimate sentencing authority away from the jury. See, e.g., Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988) (jury was told that its decision was only an “advisory” recommendation and that the sentencing decision was not on its shoulders); Wheat v. Thigpen, 793 F.2d 621, 628-29 (5th Cir.1986) (jury was told that a death penalty decision would not be final and if the jury made a mistake a reviewing court would send the case back), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987).
Upon viewing the prosecutor’s statements in context, we conclude that they did not unconstitutionally diminish the jurors’ sense of authority and responsibility for the sentencing decision. Although the prosecutor may have sought to use the challenged remarks to comfort the jury that it was applying standards reflecting societal values, the remarks did not reduce the jury’s sense of actual responsibility and authority for determining the appropriate penalty. We read Caldwell as prohibiting only the latter kind of statements, and, accordingly, we hold that the challenged prosecutor’s remarks did not violate Caldwell.
II.
ANTI-SYMPATHY INSTRUCTION AND PROSECUTOR’S STATEMENTS REGARDING SYMPATHY
A. The Anti-Sympathy Instruction
Petitioner contends that the anti-sympathy instruction at the penalty phase of his trial violated his eighth amendment rights. The instruction provided, in pertinent part: “You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence.”8 Petitioner challenges only the “sympathy” portion of the instruction. He argues that it constitutes constitutional error because it [1553] undermined the jury’s consideration of mitigating evidence.
In evaluating this alleged constitutional error, we are mindful of the standard of review of jury instructions in the sentencing phase of a capital trial. Initially, a reviewing court should determine how a reasonable juror could construe the instruction. Francis v. Franklin, 471 U.S. 307, 315-16, 105 S.Ct. 1965, 1971-72, 85 L.Ed.2d 344 (1985); California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987). If there is a “substantial possibility” that a reasonable juror could construe the instruction in such a way as to make its sentencing decision improper, the court should reverse the sentencing decision. Mills v. Maryland, — U.S. -, 108 S.Ct. 1860, 1867, 100 L.Ed.2d 384 (1988). We conclude in this case, as the Supreme Court did in Mills, that “[t]he possibility that petitioner’s jury conducted its task improperly certainly is great enough to require resentencing.” 108 S.Ct. at 1870.
The Supreme Court confronted a similar, although not identical, jury instruction in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). In that case the trial judge instructed the jury that it must not be swayed by “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Id. at 542, 107 S.Ct. at 840. As in this case, the defendant challenged the “sympathy” portion of the instruction, arguing that it interfered with the jury’s consideration of mitigating evidence. The Court, in a five to four decision, upheld the instruction, prinei-pally relying upon the word “mere” that modified the word “sympathy” in the instruction. The Court stated, “By concentrating on the noun ‘sympathy,’ respondent ignores the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy.” Id. (emphasis in original). The Court concluded that a reasonable juror would “understand the instruction not to rely on ‘mere sympathy’ as a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase.” Id.
The anti-sympathy instruction before us is not modified by the word “mere,” which the Court in Brown considered “crucial” to its decision to uphold the instruction. Rather, the instruction in this case commands the jury to disregard “any” influence of sympathy.9 Therefore, unlike the instruction in Brown, this all-inclusive anti-sympathy instruction carries with it the danger of leading the jury to ignore sympathy that is based on the mitigating evidence. Consequently, it cannot receive the saving interpretation given in Brown that the jury should exclude only “the sort of sympathy that would be totally divorced from the evidence.” The Court in Brown, by stressing that the instruction there reasonably could be construed as precluding only “extraneous emotional factors” that were “totally divorced from the evidence,” id., implicitly suggested that sympathy that is based on the evidence is a valid consideration in sentencing that cannot constitutionally be precluded.10
[1554] Besides emphasizing the word “mere,” the Court in Brown also stated that it was “highly unlikely” that a juror would single out the word “sympathy” in that instruction, which precluded the jury from considering sentiment, conjecture, passion, prejudice, public opinion or public feeling in addition to sympathy. Id. at 542-43, 107 S.Ct. at 840-41. The Court reasoned that a rational juror would read the instruction as a whole and conclude that it was a general command to confine the juror’s deliberation to “considerations arising from the evidence presented.” Id. at 543, 107 S.Ct. at 840.11 However plausible such an interpretation may be for the phrase “mere sympathy,” we do not think it can be given to the phrase “any influence of sympathy" which, by its inclusive terms, must include sympathy “arising from the evidence presented” as well as sympathy unconnected to the evidence.
In any event, we do not believe that the inclusion of the word sympathy in a list of obviously improper factors reduced the unconstitutional effect of the instruction in this case. In fact, it is likely that including the word sympathy with factors such as prejudice only served to denigrate it and to underscore its impermissibility. That conclusion is buttressed by the phrase “or any other arbitrary factor” at the end of the sentence, which suggests that sympathy is an arbitrary factor which should not be relied upon. Further, although the word “sympathy” was buried in the middle of seven factors in Brown, in this case it was first on the list of only four impermissible factors and it was preceded by the adjective “any.” Therefore, it is more likely in this case that a juror would notice and be affected by the anti-sympathy portion of the instruction.
Four justices in Brown dissented. 479 U.S. at 547-63, 107 S.Ct. at 842-51. Because those justices argued in Brown that a “mere sympathy” instruction was unconstitutional, we believe that, a fortiori, they would find an absolute anti-sympathy instruction to be improper.
Justice O’Connor, in a separate concurring opinion, provided the fifth vote for upholding the “mere sympathy” instruction in Brown. In her opinion, however, she expressed concern about the instruction, and she observed that a danger with “attempts to remove emotion from capital sentencing” is that such attempts may mislead jurors “into believing that mitigating evidence about a defendant’s background or character also must be ignored.” Brown, 479 U.S. at 545-46, 107 S.Ct. at 841-42 (O’Connor, J., concurring). It is that concern that we now address.
The capital defendant’s constitutional right to present and have the jury consider mitigating evidence during the capital phase of the trial is very broad. The Supreme Court has held that “the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less then death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (emphasis in original). See also Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).
The sentencer must give “individualized” consideration to the mitigating circumstances surrounding the defendant and the crime, Brown, 479 U.S. at 541, 107 S.Ct. at 839; Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 111-12, 102 S.Ct. 869, 874-76, 71 L.Ed.2d 1 (1982); Lockett, 438 U.S. at 605, 98 S.Ct. at 2965, and may not be precluded from considering “any relevant mitigating evidence.” Eddings, 455 U.S. at 114, 102 S.Ct. at 877. See also Andrews v. Shulsen, 802 F.2d 1256, 1261 (10th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1964, 95 L.Ed.2d 536 (1987).
[1555] Mitigating evidence about a defendant’s background or character is not limited to evidence of guilt or innocence, nor does it necessarily go to the circumstances of the offense. Rather, it can include an individualized appeal for compassion, understanding, and mercy as the personality of the defendant is fleshed out and the jury is given an opportunity to understand, and to relate to, the defendant in normal human terms. A long line of Supreme court cases shows that a capital defendant has a constitutional right to make, and have the jury consider, just such an appeal.
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court upheld the Georgia sentencing scheme which allowed jurors to consider mercy in deciding whether to impose the penalty of death. Id. at 203, 96 S.Ct. at 2939. The Court stated that “[njothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution.” Id. at 199, 96 S.Ct. at 2937.
In Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), the Court struck down mandatory death sentences as incompatible with the required individualized treatment of defendants. A plurality of the Court stated that mandatory death penalties treated defendants “not as uniquely individual human beings but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.” Id. at 304, 96 S.Ct. at 2991. The Court held that “the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id. The Court explained that mitigating evidence is allowed during the sentencing phase of a capital trial in order to provide for the consideration of “compassionate or mitigating factors stemming from the diverse frailties of humankind.” Id.
In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), the Court reviewed a sentencing judge’s refusal to consider evidence of a defendant’s troubled family background and emotional problems. In reversing the imposition of the death penalty, the Court held that “[j]ust 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.” Id. at 113-14, 102 S.Ct. at 876-77 (emphasis in original). The Court stated that although the system of capital punishment should be “consistent and principled,” it must also be “humane and sensible to the uniqueness of the individual.” Id. at 110, 102 S.Ct. at 874.
In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Court held that an attempt to shift sentencing responsibility from the jury to an appellate court was unconstitutional, in part, because the appellate court is ill equipped to consider “the mercy plea [which] is made directly to the jury.” Id. at 330-31, 105 S.Ct. at 2640-41. The Court explained that appellate courts are unable to “confront and examine the individuality of the defendant” because “[w]hatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record.” Id.
In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the trial court had precluded the defendant from introducing evidence of his good behavior while in prison awaiting trial. The Court held that the petitioner had a constitutional right to introduce the evidence, even though the evidence did not relate to his culpability for the crime. Id. at 4-5, 106 S.Ct. at 1670-71. The Court found that excluding the evidence “impeded the sentencing jury’s ability to carry out its task of considering all relevant facets of the character and record of the individual offender.” Id. at 8, 106 S.Ct. at 1673.
“Mercy,” “humane” treatment, “compassion,” and consideration of the unique “humanity” of the defendant, which have all been affirmed as relevant considerations in the penalty phase of a capital case, all inevitably involve sympathy or are suffi[1556] ciently intertwined with sympathy that they cannot be parsed without significant risk of confusion in the mind of a reasonable juror. Webster’s Third International Dictionary (Unabridged ed. 1966) describes “mercy” as “a compassion or forbearance shown to an offender,” and “a kindly refraining from inflicting punishment or pain, often a refraining brought about by a genuinely felt compassion and sympathy.” Id. at 1413 (emphasis added). The word “humane” similarly is defined as “marked by compassion, sympathy, or consideration for other human beings.” Id. at 1100 (emphasis added). Webster’s definition of “compassion” is a “deep feeling for and understanding of misery or suffering,” and it specifically states that “sympathy” is a synonym of compassion. Id. at 462. Furthermore, it defines “compassionate” as “marked by ... a ready inclination to pity, sympathy, or tenderness.” Id. (emphasis added).
Without placing an undue technical emphasis on definitions, it seems to us that sympathy is likely to be perceived by a reasonable juror as an essential or important ingredient of, if not a synonym for, “mercy,” “humane” treatment, “compassion,” and a full “individualized” consideration of the “humanity” of the defendant and his “character.” Therefore, the instruction that absolutely precluded the jury from considering any sympathy for Robyn Parks improperly undermined the jury’s ability to consider fully petitioner’s mitigating evidence. Furthermore, if a juror is precluded from responding with sympathy to the defendant’s mitigating evidence of his own unique humanness, then there is an unconstitutional danger that his counsel’s plea for mercy and compassion will fall on deaf ears.
Here, the petitioner did offer mitigating evidence about his background and character. Petitioner’s father testified that petitioner was a “happy-go-lucky guy” who was “friendly with everybody.” The father also testified that, unlike other people in the neighborhood, petitioner avoided violence and fighting; that he (the father) was in the penitentiary during the petitioner’s early childhood; that petitioner was the product of a broken home; and that petitioner only lived with him from about age 14 to 19. Although the father admitted that petitioner once was involved in an altercation at school, he suggested that it was a result of the difficulties of attending a school with forced bussing. Record, vol. V, at 667-82.
Petitioner’s counsel, in his closing argument, then relied on this testimony to argue that petitioner’s youth, race, school experiences, and broken home were mitigating factors that the jury should consider in making its sentencing decision. In so doing, defense counsel appealed directly to the jury’s sense of compassion, understanding, and sympathy, and asked the jury to show “kindness” to his client as a result of his background. Record, vol. V, at 708-723. We find that the anti-sympathy instruction created an impermissible risk that the jury did not fully consider these mitigating factors in making its sentencing decision.
Once we have determined that the challenged jury instruction is constitutionally defective, we then look to the full set of instructions as a whole “to see if the entire charge delivered a correct interpretation of the law.” Brown, 479 U.S. at 541, 107 S.Ct. at 839. Our review of other relevant instructions from the penalty phase of the trial reveals that they did not remedy the unconstitutional effect of the anti-sympathy instruction.
The only instruction which could have conceivably remedied the anti-sympathy instruction is Instruction No. 6, which explained the jury’s duty regarding mitigating circumstances. The instruction explained to the jury that it was to consider certain enumerated mitigating circumstances such as lack of prior criminal activity, duress, and the age of the petitioner, along with “any other or additional mitigating circumstances, if any, that you may find from the evidence to exist in this case.” It also advised them that “[w]hat facts or evidence that may constitute an additional mitigating circumstance is for the jury to determine.”
[1557] Although the jury was instructed that it had the duty to consider all relevant mitigating evidence, it was also commanded to “avoid any influence of sympathy” when considering that evidence. Penalty Instruction No. 9. As we discussed above, sympathy may be an important ingredient in understanding and appreciating mitigating evidence of a defendant’s background and character. Thus, at best, the jury received conflicting instructions. Although it is possible that the jury could have read the instructions in such a way as to override the absolute anti-sympathy instruction, it is equally possible that the jury felt constrained in its ability to consider the mitigating evidence because of the absolute bar to its ability to consider sympathy. As the Supreme Court stated in Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 1975, 85 L.Ed.2d 344 (1985), “[language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” Because we cannot “rule out the substantial possibility that the jury may have rested its verdict on the ‘improper’ ground,” Mills, 108 S.Ct. at 1867, we must remand for resentencing.
Respondent argues that the jury was aware of its responsibility to consider and weigh both the aggravating and mitigating evidence. Respondent points out that the prosecutor repeatedly reminded the jurors of this duty. Indeed, during his first closing argument in the penalty phase of the trial, the prosecutor stated:
Now before you would be authorized to even think about giving the death penalty, you must find that one of the aggravating circumstances existed:
... Now once you’ve found at least one, then you must go, under the law, over to the mitigating.
And, now the court also tells you, you can consider anything else that you want to, to mitigate the penalty of death and the term of life. You can consider anything you want to in addition to what he’s told you ... “and determine whether one or more of them apply to all the evidence, facts and circumstances of this case.” In other words, whether or not you feel like that these mitigating circumstances are so strong in favor of the Defendant that it’s just going to eliminate and do away with the aggravating circumstances.
Record, vbl. V, at 696-704.
Respondent argues that these statements eliminated any unconstitutional effect of the anti-sympathy instruction. We disagree. First, a prosecutor’s statements are not sufficiently authoritative in the minds of jurors to override an unconstitutional instruction from the judge. Second, although the prosecutor told the jury to consider mitigating evidence, he also told them not to consider it in the most natural and significant way that they could do so— that is, with sympathy. Thus, at best, the prosecutor gave the jurors conflicting signals which could have confused them and interfered with their consideration of the mitigating evidence. Third, the prosecutor’s statements, taken as a whole, served only to exacerbate the error of the anti-sympathy instruction rather than to ameliorate that error. See “B. The Prosecutor’s Remarks Regarding Sympathy,” infra.
Respondent also argues that sympathy is not a constitutionally protected mitigating factor. That argument misconstrues the issue. The issue is not whether unbridled sympathy itself is a proper mitigating factor. Rather, the issue is whether an absolute anti-sympathy instruction presents an impermissible danger of interfering with the jury’s consideration of proper mitigating evidence. We hold that it does.12 The Supreme Court has made it [1558] clear that such a risk is “unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Lockett, 438 U.S. at 605, 98 S.Ct. at 2965.
Respondent also contends that the instruction is properly aimed at removing emotion and thus arbitrariness from the sentencing decision. Although we agree that untethered emotion should not be the basis of a sentencing decision, see Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976), we hold that an instruction that directs the jury to disregard any influence of sympathy, including sympathy for the defendant based on the mitigating evidence, sweeps too broadly.13
Additionally, respondent asserts that the jury should not be allowed to consider sympathy for the petitioner because the prosecutor is precluded from introducing a victim impact statement which would allow the prosecutor to use sympathy for the victim as an aid in securing the death penalty. See Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). In Booth the Supreme Court invalidated a Maryland statute that required the introduction of a victim impact statement at the sentencing stage of a capital murder trial, holding that the statute violated the eighth amendment. We reject respondent’s argument that Booth stands for the proposition that all sympathy must be eliminated from the jury’s decisionmaking. Instead, we read Booth as holding only that the information in a victim impact statement, as distinguished from the background of the defendant, is irrelevant to the issues to be considered at the penalty phase of a capital case and that the potential for passion and prejudice from those statements is such that they may not be introduced. By contrast, the Supreme Court has made it clear many times that the defendant is entitled to present evidence of his character and background at the sentencing phase of his capital trial. Compare Eddings, supra, with Booth, supra.
B. The Prosecutor’s Remarks Regarding Sympathy
Besides the anti-sympathy instruction, petitioner claims that the prosecutor’s remarks regarding sympathy were improper and added to the constitutional violation. Because we find that the anti-sympathy instruction alone violated petitioner’s constitutional rights, we need not reach the prosecutor’s statements to reverse the penalty decision. Nevertheless, we do find the prosecutor’s statements illustrative of the risk that the trial court’s anti-sympathy instruction created — a risk that the jury will rely on such an instruction to disregard proper mitigating evidence.
Petitioner, during the penalty phase of his trial, introduced testimony from his father that addressed factors in the petitioner’s childhood that were designed to explain to the jury why he might have acted as he did, and to evoke some sympathy and understanding for the petitioner as an individual human being. There is no question that introduction of that evidence was proper. However, long before that evidence was ever introduced the prosecutor had begun to lay the foundation for his argument that it should be disregarded. During voir dire, the prosecutor stated to the jury:
Of course the court will instruct you that you should not allow sympathy, sentiment or prejudice to enter into your deliberations. And frankly, that’s just as cold-blooded as you can put it.
... [Y]ou can be as sympathetic as you want to or you can be as prejudiced as [1559] you want to be, but you can’t do it and sit on this jury. So, that’s just a real simple way that Judge Cannon put it to you.
You cannot allow your sympathy, sentiment or prejudice to influence you in this case and sit on this jury. And now is the time for us to find out if you will eliminate any sympathy, sentiment or prejudice in this case. Will all of you do that?
Record, vol. I, at 86-87.
After the petitioner put on his mitigating evidence, the prosecutor, in his closing argument during the penalty phase of the trial, argued to the jury that the mitigating evidence and defense counsel’s summation of such evidence was nothing more than an appeal to sympathy and accordingly should be disregarded. The prosecutor stated:
His [the defense counsel’s] closing arguments are really a pitch to you for sympathy — sympathy, or sentiment or prejudice; and you told me in voir dire you wouldn’t do that.
Well, it’s just cold turkey. He either did it or he didn’t. He either deserves the death penalty or he doesn’t, you know. You leave the sympathy, and the sentiment and prejudice part out of it.
Record, vol. V, at 725-26.
Thus, the prosecutor relied on the anti-sympathy instruction to overcome the defense counsel’s arguments regarding mitigation and mercy.14 The prosecutor’s use of the instruction demonstrates how a general anti-sympathy instruction may be used to reduce improperly the jury’s consideration of mitigating circumstances.
Because we find that an instruction that absolutely precludes any consideration of sympathy creates an impermissible risk that a reasonable juror might disregard mitigating evidence, we hold that the general anti-sympathy instruction in this case violated petitioner’s eighth amendment rights. Although we affirm the district court’s denial of the writ of habeas corpus, we hold that petitioner’s death sentence is invalid and must be vacated, and we enjoin petitioner’s execution under this invalid sentence.15 Accordingly, we reverse the district court to the extent that it sustained the death penalty and we remand for further proceedings consistent with this opinion.16
REVERSED AND REMANDED.