176
Thomas, J., dissenting
(Scalia, J., dissenting) ("Many citizens have found one-sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime . . . . Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court"). Whatever distortion was produced in requiring an exclusive focus on the defendant's character, at least nothing in Booth prevented the jury—as does today's decision—from fairly and fully assessing that character.
II
The Court acknowledges that Delaware could have avoided any First Amendment problem simply by presenting evidence that proved something more than Dawson's abstract beliefs. Ante, at 167. For the reasons that I have stated, I believe that Delaware has made such a showing. I therefore see no First Amendment violation under the Court's analysis. The Court, however, goes on to make several further assertions about the First Amendment that I find troubling and unnecessary in this case.
A
Both Dawson and the State, as noted above, had a right to develop the issue of "character" at the sentencing proceeding. See Del. Code Ann., Tit. 11, § 4209(d)(1) (1987); Eddings, supra, at 113-114. In applying the First Amendment, however, the Court declines to decide whether abstract beliefs may constitute a portion of character. "Whatever label is given to the evidence," the Court asserts, "we conclude that Dawson's First Amendment rights were violated . . . in this case . . . ." Ante, at 167. As a consequence, to the extent that abstract beliefs make up part of a person's character, the decision today limits the aspects of character that sentencing authorities may consider.
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