368
Stevens, J., concurring in judgment
Against this backdrop of well-settled law, the Court's ruling is a startling anomaly. The Court holds that "innocence of the death sentence" concerns only "those elements that render a defendant eligible for the death penalty, and not . . . additional mitigating evidence that [constitutional error precluded] from being introduced." Ante, at 347 (emphasis added). Stated bluntly, the Court today respects only one of the two bedrock principles of capital-punishment jurisprudence. As such, the Court's impoverished vision of capital sentencing is at odds with both the doctrine and the theory developed in our many decisions concerning capital punishment.
First, the Court implicitly repudiates the requirement that the sentencer be allowed to consider all relevant mitigating evidence, a constitutive element of our Eighth Amendment jurisprudence. We have reiterated and applied this principle in more than a dozen cases over the last 14 years. For example, in Eddings v. Oklahoma, 455 U. S. 104 (1982), we overturned a capital sentence because the sentencer refused to consider certain mitigating evidence. Similarly, in Skipper v. South Carolina, 476 U. S. 1 (1986), we ruled that a State cannot preclude consideration of evidence of postincarceration, pretrial good behavior. And in Penry v. Lynaugh, 492 U. S. 302 (1989), we held that Texas' death penalty scheme impermissibly restricted the jury's consideration of the defendant's mental retardation as mitigating evidence.1
Moreover, the Court's holding also clashes with the theory underlying our capital-punishment jurisprudence. The non-arbitrariness—and therefore the constitutionality—of the death penalty rests on individualized sentencing determinations. See generally California v. Brown, 479 U. S. 538, 544-546 (1987) (O'Connor, J., concurring). This is the dif-1 See also Boyde v. California, 494 U. S. 370 (1990); McKoy v. North Carolina, 494 U. S. 433 (1990); Franklin v. Lynaugh, 487 U. S. 164 (1988); Mills v. Maryland, 486 U. S. 367 (1988); Hitchcock v. Dugger, 481 U. S. 393 (1987); Bell v. Ohio, 438 U. S. 637 (1978).
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