516
Souter, J., dissenting
The specific question in Penry itself was whether the mitigating evidence of Penry's mental retardation and history of abuse "as it bears on [Penry's] personal culpability" could be
dence for the explicit purpose of convincing the jury that he should be spared the death penalty because he would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to life imprisonment, the rule would not pass muster under Eddings"); McCleskey v. Kemp, 481 U. S. 279, 306 (1987) ("States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty" (emphasis added)); Franklin v. Lynaugh, supra, at 184-185 (O'Connor, J., joined by Black-mun, J., concurring in judgment); id., at 191-192 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). While one may argue that this aspect of our Eighth Amendment jurisprudence is in tension with the sentence in Gregg that the State should give the jury guidance as to what factors it " 'deems particularly relevant to the sentencing decision,' " ante, at 485 (Thomas, J., concurring) (quoting Gregg v. Georgia, 428 U. S. 153, 192 (1976)), any such tension dates, at the latest, from Eddings, decided in 1982, not from Penry in 1989.
There was one novelty in the concurring opinions in Brown and Franklin, however, in the use of the phrase "reasoned moral response," see supra, at 513, to which Justice Thomas adverts in his concurring opinion. But as the concurring opinion explained in Brown, this is just a shorthand for the individual assessment of personal culpability that Lockett and Eddings mandate. See Brown, supra, at 545. It is, indeed, appropriate shorthand. Justice Thomas himself acknowledges, as I think everyone must, "that 'capital punishment is an expression of society's moral outrage at particularly offensive conduct,' " ante, at 498 (quoting Gregg v. Georgia, supra, at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.)), and he reminds us that "[a]ny determination that death is or is not the fitting punishment for a particular crime will necessarily be a moral one," ante, at 494.
Justice Thomas's second concern, about "sympathy for a defendant who is a member of a favored group," ante, at 495, involves an issue of very great seriousness. But the Lockett-Eddings rule is not one of "unbridled" or "unbounded" discretion. See ante, at 494-495. Constitutionally relevant mitigating evidence is limited to "any aspects of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, supra, at 604 (plurality opinion). A defendant's race as such is not mitigating as an aspect of his character or record, or as a circumstance of any offense he may have committed.
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