508
Souter, J., dissenting
death penalty statute had 'survived the petitioner's Eighth and Fourteenth Amendment attack [in Jurek] because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question—despite its facial narrowness—so as to permit the sentencer to consider "whatever mitigating circumstances" the defendant might be able to show.' 438 U. S., at 607." Id., at 317.
We then reviewed the reaffirmation in Eddings v. Oklahoma, 455 U. S. 104 (1982), of the principle that "a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as the basis for a sentence less than death." Thus, we said, "at the time Penry's conviction became final," as at the time Graham's did,
"it was clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigate against imposing the death penalty. Moreover, the facial validity of the Texas death penalty statute had been upheld in Jurek on the basis of assurances that the special issues would be interpreted broadly enough to enable sentencing juries to consider all of the relevant mitigating evidence a defendant might present." 492 U. S., at 318.
Graham contends that Jurek v. Texas, 428 U. S. 262 (1976), Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, supra, were not honored in the application of the Texas special issues on the facts of his case, and, in this respect, too, his position is identical to that of Penry, who argued that "those assurances [on which Jurek rests] were not fulfilled in his particular case because, without appropriate instructions, the jury could not fully consider and give effect
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