penry
lynaugh
argued
january
decided
june
petitioner
charged
capital
murder
texas
state
found
competent
stand
trial
although
psychologist
testified
mildly
moderately
retarded
mental
age
phase
trial
petitioner
raised
insanity
defense
presented
psychiatric
testimony
suffered
combination
organic
brain
damage
moderate
retardation
resulted
poor
impulse
control
inability
learn
experience
evidence
also
indicated
abused
child
state
introduced
testimony
petitioner
legally
sane
antisocial
personality
jury
rejected
petitioner
insanity
defense
found
guilty
capital
murder
penalty
phase
trial
sentencing
jury
instructed
consider
evidence
introduced
trial
answering
following
special
issues
whether
petitioner
conduct
committed
deliberately
reasonable
expectation
death
result
whether
probability
continuing
threat
society
whether
killing
unreasonable
response
provocation
victim
trial
rejected
petitioner
request
jury
instructions
defining
terms
special
issues
authorizing
grant
mercy
based
upon
existence
mitigating
circumstances
jury
answered
yes
special
issue
required
texas
law
therefore
sentenced
petitioner
death
answer
special
issues
required
sentence
life
imprisonment
texas
criminal
appeals
affirmed
rejecting
petitioner
contentions
death
sentence
violated
eighth
amendment
first
jury
adequately
instructed
consider
mitigating
evidence
special
issues
terms
defined
way
jury
consider
give
effect
evidence
answering
second
cruel
unusual
punishment
execute
mentally
retarded
person
petitioner
mental
ability
denied
certiorari
direct
review
federal
district
appeals
upheld
petitioner
death
sentence
habeas
corpus
proceedings
although
denied
relief
appeals
nevertheless
found
considerable
merit
petitioner
claim
mitigating
evidence
mental
retardation
childhood
abuse
given
effect
jury
instructions
given
answering
special
issues
held
judgment
affirmed
part
reversed
part
case
remanded
affirmed
part
reversed
part
remanded
justice
delivered
opinion
respect
parts
iii
concluding
granting
petitioner
relief
claim
mitigating
evidence
mental
retardation
abused
childhood
presented
texas
juries
must
upon
request
given
instructions
allow
give
effect
mitigating
evidence
determining
whether
impose
death
penalty
create
new
rule
teague
lane
may
generally
applied
announced
cases
collateral
review
pp
teague
rule
nonretroactivity
two
exceptions
applicable
capital
sentencing
context
criminal
judgment
includes
sentence
imposed
collateral
challenges
sentences
foster
delay
undermine
finality
concerns
underlying
teague
rule
nonretroactivity
pp
teague
case
announces
new
rule
breaks
new
ground
imposes
new
obligation
federal
government
result
dictated
precedent
existed
time
defendant
conviction
became
final
since
lockett
ohio
eddings
oklahoma
decided
petitioner
conviction
became
final
denied
certiorari
petition
direct
review
entitled
benefit
decisions
griffith
kentucky
rule
petitioner
seeks
impose
new
obligation
texas
jurek
texas
upheld
texas
death
penalty
statute
basis
assurances
special
issues
interpreted
broadly
enough
permit
jury
consider
relevant
mitigating
evidence
defendant
might
present
imposing
sentence
moreover
rule
petitioner
seeks
case
dictated
eddings
lockett
established
state
consistent
eighth
fourteenth
amendments
prevent
sentencer
considering
giving
effect
evidence
relevant
defendant
background
character
circumstances
offense
mitigates
imposing
death
penalty
pp
absence
instructions
informing
jury
consider
give
effect
petitioner
mitigating
evidence
mental
retardation
abused
background
declining
impose
death
penalty
compels
conclusion
jury
provided
vehicle
expressing
reasoned
moral
response
evidence
rendering
sentencing
decision
required
eighth
fourteenth
amendments
lockett
eddings
subsequent
decisions
decisions
based
principle
punishment
must
directly
related
defendant
personal
culpability
defendant
commits
crimes
attributable
disadvantaged
background
emotional
mental
problems
may
less
culpable
one
excuse
although
petitioner
permitted
introduce
argue
significance
mitigating
evidence
jury
jury
instructions
permit
jury
give
effect
evidence
answering
three
special
issues
first
issue
without
special
instruction
defining
deliberately
way
clearly
direct
jury
fully
consider
petitioner
mitigating
evidence
bears
moral
culpability
juror
believed
evidence
made
imposition
death
penalty
unwarranted
unable
give
effect
conclusion
juror
also
believed
petitioner
committed
crime
deliberately
second
special
issue
provide
vehicle
jury
give
mitigating
effect
petitioner
evidence
mental
retardation
childhood
abuse
contrary
evidence
concerning
inability
learn
mistakes
virtue
mental
retardation
actually
suggests
dangerous
future
although
evidence
may
lessen
blameworthiness
made
affirmative
answer
second
issue
likely
furthermore
juror
believed
petitioner
lacked
moral
culpability
sentenced
death
express
view
answering
third
special
issue
juror
also
believed
conduct
reasonable
response
provocation
victim
merit
state
contention
instruct
jury
decline
impose
death
penalty
based
petitioner
mitigating
evidence
allow
sort
unbridled
discretion
prohibited
furman
georgia
gregg
georgia
made
clear
long
class
murderers
subject
capital
punishment
narrowed
constitutional
infirmity
procedure
allows
jury
recommend
mercy
based
mitigating
evidence
introduced
defendant
furthermore
punishment
imposed
directly
related
personal
culpability
defendant
sentencer
must
allowed
consider
give
effect
mitigating
evidence
relevant
defendant
background
character
crime
full
consideration
mitigating
evidence
enhances
reliability
jury
sentencing
decision
pp
eighth
amendment
categorically
prohibit
execution
mentally
retarded
capital
murderers
petitioner
reasoning
ability
pp
although
granting
petitioner
relief
issue
create
new
rule
within
meaning
teague
supra
rule
fall
within
first
exception
teague
general
rule
nonretroactivity
exception
applies
new
rules
place
certain
kinds
primary
private
individual
conduct
beyond
power
criminal
authority
proscribe
also
applies
new
rules
prohibiting
certain
category
punishment
class
defendants
status
offense
ford
wainwright
pp
eighth
amendment
categorical
prohibition
upon
infliction
cruel
unusual
punishment
applies
practices
condemned
common
law
time
bill
rights
adopted
well
punishments
offend
society
evolving
standards
decency
expressed
objective
evidence
legislative
enactments
conduct
sentencing
juries
since
common
law
prohibited
punishment
idiots
term
generally
used
describe
persons
totally
lacking
reason
understanding
ability
distinguish
good
evil
may
indeed
cruel
unusual
punishment
execute
persons
profoundly
severely
retarded
wholly
lacking
capacity
appreciate
wrongfulness
actions
persons
however
likely
convicted
face
prospect
punishment
today
since
modern
insanity
defense
generally
includes
mental
defect
part
legal
definition
insanity
since
ford
wainwright
supra
prohibits
execution
persons
unaware
punishment
must
suffer
moreover
petitioner
person
since
jury
found
competent
stand
trial
therefore
rational
well
factual
understanding
proceedings
rejected
insanity
defense
thereby
reflecting
conclusion
knew
conduct
wrong
capable
conforming
requirements
law
sufficient
objective
evidence
today
national
consensus
executing
mentally
retarded
capital
murderers
since
petitioner
cited
one
state
statute
explicitly
bans
practice
offered
evidence
general
behavior
juries
regard
opinion
surveys
indicating
strong
public
opposition
executions
establish
societal
consensus
absent
legislative
reflection
sentiment
expressed
therein
pp
justice
concluded
part
present
record
said
executing
capital
murderers
mentally
retarded
violates
eighth
amendment
proportionality
requirement
sure
retardation
long
regarded
factor
may
diminish
culpability
severe
form
may
result
complete
exculpation
moreover
death
penalty
statutes
list
mitigating
factors
include
reduced
mental
capacity
mitigating
circumstance
holds
today
sentencing
body
must
allowed
consider
retardation
making
individualized
determination
whether
death
penalty
appropriate
mentally
retarded
persons
however
individuals
whose
abilities
behavioral
deficits
vary
greatly
depending
degree
retardation
life
experience
ameliorative
effects
education
habilitation
present
record
said
mentally
retarded
people
petitioner
ability
virtue
mental
retardation
alone
apart
individualized
consideration
personal
responsibility
inevitably
lack
cognitive
volitional
moral
capacity
act
degree
culpability
associated
death
penalty
moreover
concept
mental
age
insufficient
basis
categorical
eighth
amendment
rule
since
imprecise
adequately
account
individuals
varying
experiences
abilities
ceases
change
person
reaches
chronological
age
disempowering
effect
applied
retarded
persons
areas
law
opportunity
enter
contracts
marry
pp
curtis
mason
argued
cause
filed
briefs
petitioner
charles
palmer
assistant
attorney
general
texas
argued
cause
respondent
briefs
jim
mattox
attorney
general
mary
keller
first
assistant
attorney
general
lou
mccreary
executive
assistant
attorney
general
michael
hodge
william
zapalac
assistant
attorneys
general
briefs
amici
curiae
urging
reversal
filed
american
association
mental
retardation
et
al
james
ellis
ruth
luckasson
barbara
bergman
donald
bersoff
texas
criminal
defense
lawyers
association
david
botsford
mark
stevens
carolyn
garcia
billy
conn
gardner
eugene
duffy
christine
wiseman
stanley
schneider
filed
brief
harris
county
criminal
lawyers
association
amicus
curiae
justice
delivered
opinion
except
part
case
must
decide
whether
petitioner
johnny
paul
penry
sentenced
death
violation
eighth
amendment
jury
instructed
consider
give
effect
mitigating
evidence
imposing
sentence
must
also
decide
whether
eighth
amendment
categorically
prohibits
penry
execution
mentally
retarded
morning
october
pamela
carpenter
brutally
raped
beaten
stabbed
pair
scissors
home
livingston
texas
died
hours
later
course
emergency
treatment
died
described
assailant
description
led
two
local
sheriff
deputies
suspect
penry
recently
released
parole
conviction
another
rape
charge
penry
subsequently
gave
two
statements
confessing
crime
charged
capital
murder
competency
hearing
held
trial
clinical
psychologist
jerome
brown
testified
penry
mentally
retarded
child
penry
diagnosed
organic
brain
damage
probably
caused
trauma
brain
birth
app
penry
tested
years
iq
indicates
mild
moderate
retardation
brown
testing
trial
indicated
penry
iq
brown
evaluation
also
revealed
penry
years
old
time
crime
mental
age
means
ability
learn
learning
knowledge
average
year
old
kid
penry
social
maturity
ability
function
world
brown
testified
point
anyone
penry
iq
always
incompetent
know
man
borderline
range
jury
found
penry
competent
stand
trial
phase
trial
began
march
trial
determined
penry
confessions
voluntary
introduced
evidence
trial
penry
raised
insanity
defense
presented
testimony
psychiatrist
jose
garcia
garcia
testified
penry
suffered
organic
brain
damage
moderate
retardation
resulted
poor
impulse
control
inability
learn
experience
garcia
indicated
penry
brain
damage
probably
caused
birth
may
caused
beatings
multiple
injuries
brain
early
age
garcia
judgment
penry
suffering
organic
brain
disorder
time
offense
made
impossible
appreciate
wrongfulness
conduct
conform
conduct
law
penry
mother
testified
trial
penry
unable
learn
school
never
finished
first
grade
penry
sister
testified
mother
frequently
beaten
head
belt
child
penry
also
routinely
locked
room
without
access
toilet
long
periods
time
youngster
penry
number
state
schools
hospitals
father
removed
state
schools
altogether
penry
aunt
subsequently
struggled
year
teach
penry
print
name
state
introduced
testimony
two
psychiatrists
rebut
testimony
garcia
kenneth
vogtsberger
testified
although
penry
person
limited
mental
ability
suffering
mental
illness
defect
time
crime
knew
difference
right
wrong
potential
honor
law
view
penry
characteristics
consistent
antisocial
personality
including
inability
learn
experience
tendency
impulsive
violate
society
norms
testified
penry
low
iq
scores
alertness
understanding
went
around
felix
peebles
also
testified
state
penry
legally
sane
time
offense
personality
addition
peebles
testified
personally
diagnosed
penry
mentally
retarded
penry
bad
life
generally
bringing
peebles
view
penry
socially
emotionally
deprived
learned
read
write
adequately
although
disagreed
defense
psychiatrist
extent
cause
penry
mental
limitations
psychiatrists
state
acknowledged
penry
person
extremely
limited
mental
ability
seemed
unable
learn
mistakes
jury
rejected
penry
insanity
defense
found
guilty
capital
murder
tex
penal
code
ann
supp
following
day
close
penalty
hearing
jury
decided
sentence
imposed
penry
answering
three
special
issues
whether
conduct
defendant
caused
death
deceased
committed
deliberately
reasonable
expectation
death
deceased
another
result
whether
probability
defendant
commit
criminal
acts
violence
constitute
continuing
threat
society
raised
evidence
whether
conduct
defendant
killing
deceased
unreasonable
response
provocation
deceased
tex
code
crim
proc
art
vernon
supp
defense
counsel
raised
number
objections
proposed
charge
jury
respect
first
special
issue
objected
charge
failed
define
term
deliberately
app
respect
second
special
issue
objected
charge
failed
define
terms
probability
criminal
acts
violence
continuing
threat
society
defense
counsel
also
objected
charge
failed
authorize
discretionary
grant
mercy
based
upon
existence
mitigating
circumstances
fail
ed
require
condition
assessment
death
penalty
state
show
beyond
reasonable
doubt
aggravating
circumstances
found
exist
outweigh
mitigating
circumstances
addition
charge
failed
instruct
jury
may
take
consideration
evidence
whether
aggravating
mitigating
nature
submitted
full
trial
case
defense
counsel
also
objected
light
penry
mental
retardation
permitting
jury
assess
death
penalty
case
amounted
cruel
unusual
punishment
prohibited
eighth
amendment
objections
overruled
trial
jury
instructed
state
bore
burden
proof
special
issues
issue
answered
yes
jurors
must
convinced
evidence
beyond
reasonable
doubt
answer
issue
yes
jurors
instructed
answering
three
special
issues
consider
evidence
submitted
phase
penalty
phase
trial
jury
charge
listed
three
questions
names
defendant
deceased
inserted
jury
answered
yes
three
special
issues
penry
sentenced
death
texas
criminal
appeals
affirmed
conviction
sentence
direct
appeal
penry
state
held
terms
deliberately
probability
continuing
threat
society
used
special
issues
need
defined
jury
charge
jury
know
common
meaning
concluded
penry
allowed
present
relevant
mitigating
evidence
punishment
hearing
constitutional
infirmity
failing
require
jury
find
aggravating
circumstances
outweighed
mitigating
ones
failing
authorize
discretionary
grant
mercy
based
upon
existence
mitigating
circumstances
also
held
imposition
death
penalty
prohibited
virtue
penry
mental
retardation
denied
certiorari
direct
review
sub
nom
penry
texas
penry
filed
federal
habeas
corpus
petition
challenging
death
sentence
among
claims
penry
argued
sentenced
violation
eighth
amendment
trial
failed
instruct
jury
weigh
mitigating
factors
answering
special
issues
failed
define
term
deliberately
penry
also
argued
cruel
unusual
punishment
execute
mentally
retarded
person
district
denied
relief
app
penry
appealed
appeals
fifth
circuit
appeals
affirmed
district
judgment
stressed
however
found
considerable
merit
penry
claim
jury
allowed
consider
apply
personal
mitigating
circumstances
answering
texas
special
issues
although
jury
presented
evidence
might
mitigate
penry
personal
culpability
crime
mental
retardation
arrested
emotional
development
abused
background
jury
give
effect
evidence
mitigating
penry
sentence
life
imprisonment
said
deliberate
murder
penry
continuing
threat
jury
say
short
see
penry
mitigating
evidence
instructions
given
fully
acted
upon
jury
place
jury
say
death
penalty
based
mitigating
force
circumstances
although
questioned
whether
penry
given
individualized
sentencing
constitution
requires
ultimately
concluded
prior
circuit
decisions
required
reject
penry
claims
also
rejected
penry
contention
cruel
unusual
punishment
execute
mentally
retarded
person
citing
brogdon
butler
granted
certiorari
resolve
two
questions
first
penry
sentenced
death
violation
eighth
amendment
jury
adequately
instructed
take
consideration
mitigating
evidence
terms
texas
special
issues
defined
way
jury
consider
give
effect
mitigating
evidence
answering
second
cruel
unusual
punishment
eighth
amendment
execute
mentally
retarded
person
penry
reasoning
ability
ii
penry
currently
petition
federal
writ
habeas
corpus
penry
us
collateral
review
must
determine
threshold
matter
whether
granting
relief
seeks
create
new
rule
teague
lane
teague
new
rules
applied
announced
cases
collateral
review
unless
fall
one
two
exceptions
teague
capital
case
plurality
opinion
expressed
views
regarding
retroactivity
approach
adopted
teague
applied
capital
sentencing
context
plurality
noted
however
criminal
judgment
necessarily
includes
sentence
imposed
collateral
challenges
sentences
delay
enforcement
judgment
issue
decrease
possibility
point
certainty
comes
end
litigation
ibid
quoting
sanders
harlan
dissenting
see
also
mackey
harlan
concurring
judgments
part
dissenting
part
view
finality
concerns
underlying
justice
harlan
approach
retroactivity
applicable
capital
sentencing
context
two
exceptions
general
rule
nonretroactivity
see
teague
supra
indicated
teague
general
case
announces
new
rule
breaks
new
ground
imposes
new
obligation
federal
government
put
differently
case
announces
new
rule
result
dictated
precedent
existing
time
defendant
conviction
became
final
ibid
emphasis
original
teague
noted
admittedly
often
difficult
determine
case
announces
new
rule
ibid
justice
harlan
recognized
inevitable
difficulties
arise
attempting
determine
whether
particular
decision
really
announced
new
rule
whether
simply
applied
constitutional
principle
govern
case
closely
analogous
previously
considered
prior
case
law
mackey
supra
opinion
concurring
judgments
part
dissenting
part
quoting
desist
harlan
dissenting
see
generally
yates
aiken
concluding
francis
franklin
announce
new
rule
merely
application
principle
governed
decision
sandstrom
montana
decided
petitioner
trial
took
place
penry
conviction
became
final
january
denied
petition
certiorari
direct
review
conviction
sentence
sub
nom
penry
texas
supra
decisions
lockett
ohio
eddings
oklahoma
rendered
conviction
became
final
retroactivity
principles
adopted
griffith
kentucky
penry
entitled
benefit
decisions
citing
lockett
eddings
penry
argues
sentenced
death
violation
eighth
amendment
light
jury
instructions
given
jury
unable
fully
consider
give
effect
mitigating
evidence
mental
retardation
abused
background
offered
basis
sentence
less
death
penry
thus
seeks
rule
mitigating
evidence
presented
texas
juries
must
upon
request
given
jury
instructions
make
possible
give
effect
mitigating
evidence
determining
whether
defendant
sentenced
death
conclude
reasons
discussed
rule
penry
seeks
new
rule
teague
penry
challenge
facial
validity
texas
death
penalty
statute
upheld
eighth
amendment
challenge
jurek
texas
dispute
types
mitigating
evidence
fully
considered
sentencer
absence
special
jury
instructions
see
franklin
lynaugh
plurality
opinion
concurring
judgment
instead
penry
argues
facts
case
jury
unable
fully
consider
give
effect
mitigating
evidence
mental
retardation
abused
background
answering
three
special
issues
view
relief
penry
seeks
impos
new
obligation
state
texas
teague
supra
rather
penry
simply
asks
state
fulfill
assurance
upon
jurek
based
namely
special
issues
interpreted
broadly
enough
permit
sentencer
consider
relevant
mitigating
evidence
defendant
might
present
imposing
sentence
jurek
joint
opinion
justices
stewart
powell
stevens
noted
texas
statute
narrowed
circumstances
death
penalty
imposed
five
categories
murders
thus
although
texas
adopted
list
statutory
aggravating
factors
jury
must
find
imposing
death
penalty
action
narrowing
categories
murders
death
sentence
may
ever
imposed
serves
much
purpose
effectively
requires
sentencing
authority
focus
particularized
nature
crime
provide
individualized
sentencing
determination
required
eighth
amendment
however
sentencer
must
allowed
consider
mitigating
evidence
ibid
indeed
woodson
north
carolina
made
clear
capital
cases
fundamental
respect
humanity
underlying
eighth
amendment
requires
consideration
character
record
individual
offender
circumstances
particular
offense
constitutionally
indispensable
part
process
inflicting
penalty
death
plurality
opinion
texas
death
penalty
statute
explicitly
mention
mitigating
circumstances
rather
directs
jury
answer
three
questions
jurek
reasoned
statute
constitutionality
turns
whether
enumerated
questions
allow
consideration
particularized
mitigating
factors
although
various
terms
special
questions
yet
defined
joint
opinion
concluded
sentencing
scheme
satisfied
eighth
amendment
assurance
texas
criminal
appeals
interpret
question
concerning
future
dangerousness
allow
jury
consider
whatever
mitigating
circumstances
defendant
may
able
show
including
defendant
prior
criminal
record
age
mental
emotional
state
decisions
subsequent
jurek
reaffirmed
eighth
amendment
mandates
individualized
assessment
appropriateness
death
penalty
lockett
ohio
plurality
held
eighth
fourteenth
amendments
require
sentencer
precluded
considering
mitigating
factor
aspect
defendant
character
record
circumstances
offense
defendant
proffers
basis
sentence
less
death
emphasis
original
thus
held
unconstitutional
ohio
death
penalty
statute
mandated
capital
punishment
upon
finding
one
aggravating
circumstance
unless
one
three
statutory
mitigating
factors
present
lockett
underscored
jurek
recognition
constitutionality
texas
scheme
turns
whether
enumerated
questions
allow
consideration
particularized
mitigating
factors
jurek
supra
plurality
opinion
lockett
indicated
texas
death
penalty
statute
survived
petitioner
eighth
fourteenth
amendment
attack
jurek
three
justices
concluded
texas
criminal
appeals
broadly
interpreted
second
question
despite
facial
narrowness
permit
sentencer
consider
whatever
mitigating
circumstances
defendant
might
able
show
thus
lockett
plurality
noted
neither
texas
statute
upheld
statutes
survived
facial
challenges
gregg
georgia
proffitt
florida
clearly
operated
time
prevent
sentencer
considering
aspect
defendant
character
record
circumstances
offense
independently
mitigating
factor
lockett
supra
cf
hitchcock
dugger
sustaining
applied
challenge
florida
death
penalty
statute
godfrey
georgia
sustaining
applied
challenge
georgia
death
penalty
statute
eddings
oklahoma
majority
reaffirmed
sentencer
may
precluded
considering
may
refuse
consider
relevant
mitigating
evidence
offered
defendant
basis
sentence
less
death
eddings
oklahoma
death
penalty
statute
permitted
defendant
introduce
evidence
mitigating
circumstance
sentencing
judge
concluded
matter
law
unable
consider
mitigating
evidence
youthful
defendant
troubled
family
history
beatings
harsh
father
emotional
disturbance
applying
lockett
held
ust
state
may
statute
preclude
sentencer
considering
mitigating
factor
neither
may
sentencer
refuse
consider
matter
law
relevant
mitigating
evidence
emphasis
original
case
trial
judge
instructed
jury
disregard
mitigating
evidence
defendant
proffered
behalf
thus
time
penry
conviction
became
final
clear
lockett
eddings
state
consistent
eighth
fourteenth
amendments
prevent
sentencer
considering
giving
effect
evidence
relevant
defendant
background
character
circumstances
offense
mitigate
imposing
death
penalty
moreover
facial
validity
texas
death
penalty
statute
upheld
jurek
basis
assurances
special
issues
interpreted
broadly
enough
enable
sentencing
juries
consider
relevant
mitigating
evidence
defendant
might
present
penry
argues
assurances
fulfilled
particular
case
without
appropriate
instructions
jury
fully
consider
give
effect
mitigating
evidence
mental
retardation
abused
childhood
rendering
sentencing
decision
rule
penry
seeks
mitigating
evidence
presented
texas
juries
must
upon
request
given
jury
instructions
make
possible
give
effect
mitigating
evidence
determining
whether
death
penalty
imposed
new
rule
teague
dictated
eddings
lockett
moreover
light
assurances
upon
jurek
based
conclude
relief
penry
seeks
impos
new
obligation
state
texas
teague
iii
underlying
lockett
eddings
principle
punishment
directly
related
personal
culpability
criminal
defendant
sentencer
make
individualized
assessment
appropriateness
death
penalty
evidence
defendant
background
character
relevant
belief
long
held
society
defendants
commit
criminal
acts
attributable
disadvantaged
background
emotional
mental
problems
may
less
culpable
defendants
excuse
california
brown
concurring
moreover
eddings
makes
clear
enough
simply
allow
defendant
present
mitigating
evidence
sentencer
sentencer
must
also
able
consider
give
effect
evidence
imposing
sentence
hitchcock
dugger
supra
sure
sentencer
treated
defendant
uniquely
individual
human
bein
made
reliable
determination
death
appropriate
sentence
woodson
thus
sentence
imposed
penalty
stage
reflect
reasoned
moral
response
defendant
background
character
crime
california
brown
supra
concurring
emphasis
original
although
penry
offered
mitigating
evidence
mental
retardation
abused
childhood
basis
sentence
life
imprisonment
rather
death
jury
sentenced
able
express
views
appropriate
sentence
answering
three
questions
penry
act
deliberately
murdered
pamela
carpenter
probability
dangerous
future
act
unreasonably
response
provocation
jury
never
instructed
consider
evidence
offered
penry
mitigating
evidence
give
mitigating
effect
evidence
imposing
sentence
like
petitioner
franklin
lynaugh
penry
contends
absence
requested
jury
instructions
texas
death
penalty
statute
applied
unconstitutional
manner
precluding
jury
acting
upon
particular
mitigating
evidence
introduced
franklin
first
case
considered
since
jurek
address
claim
concerning
treatment
mitigating
evidence
texas
special
issues
like
jurek
franklin
produce
majority
opinion
franklin
plurality
two
concurring
justices
concluded
franklin
sentenced
death
violation
eighth
amendment
jury
free
give
effect
mitigating
evidence
good
behavior
prison
answering
question
future
dangerousness
plurality
opinion
concurring
judgment
moreover
majority
agreed
residual
doub
franklin
guilt
constitutionally
mandated
mitigating
factor
plurality
opinion
concurring
judgment
franklin
however
five
concurring
dissenting
justices
share
plurality
categorical
reading
jurek
plurality
view
jurek
expressly
unconditionally
upheld
manner
mitigating
evidence
considered
special
issues
contrast
five
members
read
jurek
precluding
claim
particular
case
jury
unable
fully
consider
mitigating
evidence
introduced
defendant
answering
special
issues
concurring
judgment
stevens
dissenting
indeed
concurrence
dissent
understood
jurek
resting
fundamentally
express
assurance
special
issues
permit
jury
fully
consider
mitigating
evidence
defendant
introduced
relevant
defendant
background
character
circumstances
offense
moreover
concurrence
dissent
stressed
right
sentencer
consider
weigh
relevant
mitigating
evidence
meaningless
unless
sentencer
also
permitted
give
effect
consideration
imposing
sentence
concurring
judgment
stevens
dissenting
concurrence
franklin
concluded
eighth
amendment
violation
case
franklin
evidence
good
prison
behavior
clear
relevance
character
demonstrate
ability
live
highly
structured
prison
environment
without
endangering
others
thus
jury
able
give
effect
mitigating
force
evidence
answering
second
special
issue
concurrence
noted
however
petitioner
introduced
mitigating
evidence
background
character
circumstances
crime
relevant
special
verdict
questions
relevance
defendant
moral
culpability
beyond
scope
special
verdict
questions
jury
instructions
provided
jury
vehicle
expressing
reasoned
moral
response
evidence
case
decide
whether
jury
inability
give
effect
evidence
amounted
eighth
amendment
violation
first
special
issue
asks
whether
defendant
acted
deliberately
reasonable
expectation
death
deceased
result
neither
texas
legislature
texas
criminal
appeals
defined
term
deliberately
jury
instructed
term
know
precisely
meaning
jury
gave
assuming
however
jurors
case
understood
deliberately
mean
something
penry
guilty
intentionally
committing
murder
jurors
may
still
unable
give
effect
penry
mitigating
evidence
answering
first
special
issue
penry
mental
retardation
relevant
question
whether
capable
acting
deliberately
also
relevance
moral
culpability
beyond
scope
special
verdict
questio
franklin
supra
personal
culpability
solely
function
defendant
capacity
act
deliberately
rational
juror
penalty
phase
trial
concluded
light
penry
confession
deliberately
killed
pamela
carpenter
escape
detection
penry
mentally
retarded
however
thus
less
able
normal
adult
control
impulses
evaluate
consequences
conduct
history
childhood
abuse
juror
also
conclude
penry
less
morally
culpable
defendants
excuse
acted
deliberately
term
commonly
understood
california
brown
concurring
see
also
skipper
south
carolina
powell
concurring
judgment
evidence
concerning
defendant
emotional
history
bear
directly
fundamental
justice
imposing
capital
punishment
absence
jury
instructions
defining
deliberately
way
clearly
direct
jury
consider
fully
penry
mitigating
evidence
bears
personal
culpability
sure
jury
able
give
effect
mitigating
evidence
penry
mental
retardation
history
abuse
answering
first
special
issue
without
special
instruction
juror
believed
penry
retardation
background
diminished
moral
culpability
made
imposition
death
penalty
unwarranted
unable
give
effect
conclusion
juror
also
believed
penry
committed
crime
deliberately
thus
sure
jury
answer
first
special
issue
reflected
reasoned
moral
response
penry
mitigating
evidence
second
special
issue
asks
whether
probability
defendant
commit
criminal
acts
violence
constitute
continuing
threat
society
mitigating
evidence
concerning
penry
mental
retardation
indicated
one
effect
retardation
inability
learn
mistakes
although
evidence
relevant
second
issue
relevant
aggravating
factor
suggests
yes
answer
question
future
dangerousness
prosecutor
argued
penalty
hearing
strong
probability
based
history
defendant
previous
criminal
record
psychiatric
testimony
case
defendant
continue
commit
acts
nature
app
even
prison
setting
prosecutor
argued
penry
hurt
doctors
nurses
librarians
teachers
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prison
penry
mental
retardation
history
abuse
thus
sword
may
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blameworthiness
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even
indicates
probability
dangerous
future
judge
reavley
wrote
appeals
jury
decided
penry
retardation
arrested
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development
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executed
anything
evidence
made
likely
less
likely
jury
answer
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question
yes
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jury
consider
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thrust
penry
evidence
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omitted
emphasis
original
third
special
issue
asks
whether
conduct
defendant
killing
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unreasonable
response
provocation
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issue
state
argued
penry
stabbed
pamela
carpenter
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provocation
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app
penry
confession
indicated
stab
victim
wounded
superficially
scissors
struggle
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killed
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ended
lying
helpless
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juror
concluded
penry
mental
retardation
arrested
emotional
development
rendered
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culpable
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normal
adult
necessarily
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believed
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third
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contends
notwithstanding
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interrogatories
penry
free
introduce
argue
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circumstances
jury
fact
defense
counsel
argue
juror
believed
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evidence
mental
retardation
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deserve
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penry
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urged
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argued
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affliction
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think
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brain
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defense
counsel
urged
jury
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find
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mental
state
defendant
every
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rebuttal
prosecution
countered
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jurors
taken
oath
follow
law
must
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oath
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know
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questions
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asked
go
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burden
proof
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beginning
accept
burden
honestly
believe
met
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reason
hear
newman
defense
attorney
argue
pick
issues
point
state
failed
meet
burden
point
weaknesses
state
case
ladies
gentlemen
submit
met
burden
job
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act
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heard
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accordingly
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conceded
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juror
concluded
penry
acted
deliberately
likely
dangerous
future
also
concluded
mental
retardation
sufficiently
culpable
deserve
death
penalty
juror
unable
give
effect
mitigating
evidence
instructions
given
case
tr
oral
arg
state
contends
however
instruct
jury
render
discretionary
grant
mercy
say
death
penalty
based
penry
mitigating
evidence
return
sort
unbridled
discretion
led
furman
georgia
disagree
sure
furman
held
order
minimize
risk
death
penalty
imposed
capriciously
selected
group
offenders
decision
impose
guided
standards
sentencing
authority
focus
particularized
circumstances
crime
defendant
gregg
georgia
joint
opinion
stewart
powell
stevens
made
clear
gregg
long
class
murderers
subject
capital
punishment
narrowed
constitutional
infirmity
procedure
allows
jury
recommend
mercy
based
mitigating
evidence
introduced
defendant
justice
white
wrote
gregg
georgia
legislature
plainly
made
effort
guide
jury
exercise
discretion
time
permitting
jury
dispense
mercy
basis
factors
intangible
write
statute
accept
naked
assertion
effort
bound
fail
types
murders
death
penalty
may
imposed
become
narrowly
defined
limited
particularly
serious
death
penalty
particularly
appropriate
georgia
reason
requirement
becomes
reasonable
expect
juries
even
given
discretion
impose
death
penalty
impose
death
penalty
substantial
portion
cases
defined
longer
said
penalty
imposed
wantonly
freakishly
infrequently
loses
usefulness
sentencing
device
opinion
concurring
judgment
contrast
carefully
defined
standards
must
narrow
sentencer
discretion
impose
death
sentence
constitution
limits
state
ability
narrow
sentencer
discretion
consider
relevant
evidence
might
cause
decline
impose
death
sentence
mccleskey
kemp
emphasis
original
indeed
precisely
punishment
directly
related
personal
culpability
defendant
jury
must
allowed
consider
give
effect
mitigating
evidence
relevant
defendant
character
record
circumstances
offense
rather
creating
risk
unguided
emotional
response
full
consideration
evidence
mitigates
death
penalty
essential
jury
give
reasoned
moral
response
defendant
background
character
crime
franklin
concurring
judgment
quoting
california
brown
concurring
order
ensure
reliability
determination
death
appropriate
punishment
specific
case
woodson
jury
must
able
consider
give
effect
mitigating
evidence
relevant
defendant
background
character
circumstances
crime
iv
penry
second
claim
cruel
unusual
punishment
prohibited
eighth
amendment
execute
mentally
retarded
person
like
reasoning
capacity
argues
mental
disabilities
mentally
retarded
people
possess
level
moral
culpability
justify
imposing
death
sentence
also
argues
emerging
national
consensus
executing
mentally
retarded
state
responds
insufficient
evidence
national
consensus
executing
retarded
existing
procedural
safeguards
adequately
protect
interests
mentally
retarded
persons
penry
teague
address
retroactivity
issue
threshold
matter
penry
us
collateral
review
hold
eighth
amendment
prohibits
execution
mentally
retarded
persons
penry
announcing
new
rule
rule
dictated
precedent
existing
time
penry
conviction
became
final
moreover
rule
brea
new
ground
impose
new
obligation
federal
government
ibid
citing
ford
wainwright
held
eighth
amendment
prohibits
execution
insane
persons
case
announcing
new
rule
teague
concluded
new
rule
applied
retroactively
defendants
collateral
review
unless
falls
within
one
two
exceptions
first
exception
articulated
justice
harlan
new
rule
retroactive
places
certain
kinds
primary
private
individual
conduct
beyond
power
criminal
authority
proscribe
teague
supra
quoting
mackey
harlan
concurring
judgments
part
dissenting
part
although
teague
read
exception
focusing
solely
new
rules
according
constitutional
protection
actor
primary
conduct
justice
harlan
speak
terms
substantive
categorical
guarantees
accorded
constitution
regardless
procedures
followed
subsequently
held
eighth
amendment
substantive
matter
prohibits
imposing
death
penalty
certain
class
defendants
status
ford
wainwright
supra
insanity
nature
offense
coker
georgia
rape
plurality
opinion
view
new
rule
placing
certain
class
individuals
beyond
state
power
punish
death
analogous
new
rule
placing
certain
conduct
beyond
state
power
punish
cases
constitution
deprives
state
power
impose
certain
penalty
finality
comity
concerns
underlying
justice
harlan
view
retroactivity
little
force
justice
harlan
wrote
little
societal
interest
permitting
criminal
process
rest
point
properly
never
repose
mackey
supra
therefore
first
exception
set
forth
teague
understood
cover
rules
forbidding
criminal
punishment
certain
primary
conduct
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rules
prohibiting
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category
punishment
class
defendants
status
offense
thus
held
substantive
matter
eighth
amendment
prohibits
execution
mentally
retarded
persons
penry
regardless
procedures
followed
rule
fall
first
exception
general
rule
nonretroactivity
applicable
defendants
collateral
review
accordingly
address
merits
penry
claim
eighth
amendment
categorically
prohibits
infliction
cruel
unusual
punishments
minimum
eighth
amendment
prohibits
punishment
considered
cruel
unusual
time
bill
rights
adopted
ford
wainwright
supra
solem
helm
prohibitions
eighth
amendment
limited
however
practices
condemned
common
law
ford
supra
gregg
georgia
prohibition
cruel
unusual
punishments
also
recognizes
evolving
standards
decency
mark
progress
maturing
society
trop
dulles
plurality
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ford
supra
discerning
evolving
standards
looked
objective
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society
views
particular
punishment
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see
coker
georgia
supra
enmund
florida
clearest
reliable
objective
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contemporary
values
legislation
enacted
country
legislatures
also
looked
data
concerning
actions
sentencing
juries
enmund
supra
thompson
oklahoma
plurality
opinion
well
settled
common
law
idiots
together
lunatics
subject
punishment
criminal
acts
committed
incapacities
blackstone
wrote
second
case
deficiency
excuses
guilt
crimes
arises
also
defective
vitiated
understanding
viz
idiot
lunatic
diots
lunatics
chargeable
acts
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even
treason
total
idiocy
absolute
insanity
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guilt
course
punishment
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action
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deprivation
senses
blackstone
commentaries
emphasis
original
one
definition
idiocy
common
law
term
idiot
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used
describe
persons
total
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good
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person
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mental
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criminal
law
common
law
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punishing
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criminal
acts
precursor
insanity
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today
generally
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defect
well
mental
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part
legal
definition
insanity
see
american
law
institute
model
penal
code
person
responsible
criminal
conduct
time
conduct
result
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defect
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modern
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luckasson
supra
common
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punishing
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aamr
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idiots
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persons
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protections
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person
likely
convicted
face
prospect
punishment
see
aba
standards
criminal
justice
commentary
ed
retarded
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reach
point
sentencing
mildly
retarded
moreover
ford
wainwright
someone
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suffer
suffer
executed
powell
concurring
part
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judgment
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penry
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emerging
national
consensus
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maturing
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dulles
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petitioner
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abuse
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pub
stat
ed
prohibits
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defendant
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ford
adopted
common
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evidence
contemporary
standards
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thompson
oklahoma
plurality
noted
expressly
established
minimum
age
death
penalty
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defendant
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general
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juries
respect
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prosecutors
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texas
found
polled
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penalty
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austin
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statesman
november
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wholly
arbitrary
capricious
action
gregg
discretion
prevents
individuating
characteristics
defendant
crime
taken
account
woodson
supra
jurek
regard
texas
special
issues
inherently
bad
contrary
thought
desirable
means
focus
ing
jury
objective
consideration
particularized
circumstances
plurality
put
franklin
channel
ing
jury
discretion
achieve
rational
equitable
administration
death
penalty
providing
juries
consider
mitigating
circumstances
insofar
bear
upon
deliberateness
future
dangerousness
provocation
seems
texas
adopted
rational
scheme
meets
two
concerns
eighth
amendment
jurisprudence
today
demands
replaced
however
scheme
simply
dumps
jury
sympathetic
factors
bearing
upon
defendant
background
character
circumstances
offense
jury
may
decide
without
guidance
whether
lacked
moral
culpability
sentenced
death
ante
deserve
sentenced
death
ante
sufficiently
culpable
deserve
death
penalty
ibid
seeks
dignify
calling
process
calls
reasoned
moral
response
ante
reason
nothing
eliminated
structure
required
reason
unguided
emotional
moral
response
demands
allowed
outpouring
personal
reaction
circumstances
defendant
life
personality
unfocused
sympathy
never
said
constitution
requires
line
cases
following
gregg
sought
eliminate
precisely
unpredictability
produces
see
godfrey
georgia
must
channel
capital
sentencer
discretion
clear
objective
standards
provide
specific
detailed
guidance
make
rationally
reviewable
process
imposing
sentence
death
citations
omitted
california
brown
entencers
may
given
unbridled
discretion
determining
fates
charged
capital
offenses
constitution
requires
death
penalty
statutes
structured
prevent
penalty
administered
arbitrary
unpredictable
fashion
seriously
believe
rationality
predictability
achieved
capriciousness
avoided
narrow
ing
sentencer
discretion
impose
death
sentence
expanding
discretion
decline
impose
death
sentence
ante
quoting
mccleskey
kemp
emphasis
original
decision
whether
impose
death
penalty
unitary
one
unguided
discretion
impose
unguided
discretion
impose
well
holding
jury
free
deem
penry
mental
retardation
sad
childhood
relevant
whatever
purpose
wished
come
full
circle
permitting
requiring
furman
condemned
freakishly
wantonly
furman
stewart
concurring
rebaptized
reasoned
moral
response
think
constitution
forbids
imposes
certain
require
respectfully
dissent