744
Scalia, J., dissenting
729; cf. Ill. Rev. Stat., ch. 38, ¶ 9-1(c) (Supp. 1990) ("The court . . . shall instruct the jury to consider any aggravating and any mitigating factors which are relevant . . ."); he simply fails to give it the effect the defendant desires.3
Nor can the Court's exclusion of these death-inclined jurors be justified on the theory that—regardless of what Illinois law purports to permit—the Eighth Amendment prohibits a juror from always advocating a death sentence at the weighing stage. Our cases in this area hold, not that the sentencer must give effect to (or even that he must consider) the evidence offered by the defendant as mitigating, but rather that he must "not be precluded from considering" it, Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion) (emphasis added); Bell v. Ohio, 438 U. S. 637, 642 (1978) (plurality opinion) (same). See also Walton, 497 U. S., at 652 (plurality opinion) (" '[T]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to
3 The Court notes that the Illinois statute lists certain potentially mitigating factors, see Ill. Rev. Stat., ch. 38, ¶ 9-1(c) (Supp. 1990), and therefore concludes that the legislature "must have deemed [them] relevant" to the imposition of the death penalty. Ante, at 737. It is of course true that the listed factors are "relevant" in the sense that a juror "may" find them to be mitigating, ¶ 9-1(c), and also in the sense that the defendant must be allowed to introduce evidence concerning these factors. But the statute's permissive and nonexhaustive list clearly does not establish what the Court needs to show, viz., that jurors must deem these (or some other factors) to be actually "mitigating." The fact that the jury has the discretion to deem evidence to be mitigating cannot establish that there is an obligation to do so. Indeed, it is impossible in principle to distinguish between a juror who does not believe that any factor can be mitigating from one who believes that a particular factor—e. g., "extreme mental or emotional disturbance," ¶ 9-1(c)(2)—is not mitigating. (Presumably, under today's decision a juror who thinks a "bad childhood" is never mitigating must also be excluded.) In any event, in deciding whether to vacate petitioner's sentence on account of juror impartiality—i. e., on the basis that one or more of petitioner's jurors may have refused to follow the instructions—we must be guided, not by the instructions that (perhaps) should have been given (a question of state law which we have no authority to review), but by the instructions that were given.
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