496
Thomas, J., concurring
We have consistently recognized that the discretion to accord mercy—even if "largely motivated by the desire to mitigate"—is indistinguishable from the discretion to impose the death penalty. Furman, 408 U. S., at 313, 314 (White, J., concurring) (condemning unguided discretion because it allows the jury to "refuse to impose the death penalty no matter what the circumstances of the crime") (emphasis added). See also Jurek, 428 U. S., at 279 (White, J., concurring in judgment) (Texas' scheme is constitutional because it "does not extend to juries discretionary power to dispense mercy"); Roberts, supra, at 335 ( joint opinion) (Louisiana's statute "plainly invites" jurors to "choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate"). For that reason, we have twice refused to disapprove instructions directing jurors " 'not [to] be swayed by mere . . . sympathy,' " because, we have emphasized, such instructions "foste[r] the Eighth Amendment's 'need for reliability in the determination that death is the appropriate punishment in a specific case.' " California v. Brown, 479 U. S., at 539, 543 (quoting Woodson, 428 U. S., at 305 ( joint opinion)). Accord, Saffle v. Parks, 494 U. S., at 493 ("Whether a juror feels sympathy for a capital defendant is more likely to depend on that juror's own emotions than on the actual evidence regarding the crime and the defendant. It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary").
Penry reintroduces the very risks that we had sought to eliminate through the simple directive that States in all events provide rational standards for capital sentencing. For 20 years, we have acknowledged the relationship be-personal moral culpability of the defendant." See Tex. Code Crim. Proc. Ann., Art. 37.0711(2)(e) (Vernon Supp. 1993) (applicable to offenses committed on or after September 1, 1991).
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