504
Souter, J., dissenting
why the requirement that sentencing decisions be based on relevant mitigating evidence, as applied by Penry, increases the risk that those decisions will be based on the irrelevant factor of race. More specifically, I do not see how permitting full consideration of a defendant's mental retardation and history of childhood abuse, as in Penry, or of a defendant's youth, as in this case, in any way increases the risk of race-based or otherwise arbitrary decisionmaking.
Justice Souter, in whose dissent I join, has demonstrated that the decision in Penry is completely consistent with our capital sentencing jurisprudence. In my view, it is also faithful to the goal of eradicating racial discrimination in capital sentencing, which I share with Justice Thomas.
Justice Souter, with whom Justice Blackmun, Justice Stevens, and Justice O'Connor join, dissenting.
In Penry v. Lynaugh, 492 U. S. 302 (1989), we concluded that a petitioner did not seek the benefit of a "new rule" in claiming that the Texas special issues did not permit the sentencing jury in his case to give full mitigating effect to certain mitigating evidence, and we therefore held that the retroactivity doctrine announced in Teague v. Lane, 489 U. S. 288, 301 (1989) (plurality opinion), did not bar the claim. See 492 U. S., at 314-319. The only distinctions between the claim in Penry and those presented here go to the kind of mitigating evidence presented for the jury's consideration, and the distance by which the Texas scheme stops short of allowing full effect to be given to some of the evidence considered. Neither distinction makes a difference under Penry or the prior law on which Penry stands. Accordingly, I would find no bar to the present claims and would reach their merits: whether the mitigating force of petitioner's youth, unfortunate background, and traits of decent character could be considered adequately by a jury instructed only
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