Graham v. Collins, 506 U.S. 461, 57 (1993)

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Cite as: 506 U. S. 461 (1993)

Souter, J., dissenting

taken account of under the Texas special issues, ibid., and in deciding that case, we examined each special issue in turn. We concluded first that the jury instruction barred full consideration of the evidence of retardation and personal abuse under the first, or "deliberate[ness]," special issue, see ibid., and second that insofar as the evidence bore on personal culpability, it could not be given mitigating effect under the issue of "future dangerousness." As to the latter, indeed, it could have been considered only as an aggravating factor. Although we described Penry's evidence as a "two-edged sword . . . diminish[ing] his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future," id., at 324, the dilemma thus presented was not essential to our conclusion that the second special issue failed to meet the State's constitutional obligations. The point was simply that the special issue did not allow the jury to give effect to the mitigating force of Penry's evidence as it bore on his personal culpability. Finally we concluded that "a juror who believed Penry lacked the moral culpability to be sentenced to death could not express that view in answering the third ['provocation'] special issue if she also concluded that Penry's action was not a reasonable response to provocation." Id., at 324-325. In sum, full consideration of the tendency of retardation and a history of abuse to mitigate moral culpability was impossible.

C

Graham's evidence falls into three distinct categories. As to each, our task is to take the same analytical steps we undertook in Penry, to see whether the sentencing jury could give it full mitigating effect.

1

First, there was the evidence of Graham's youth. He was 17 when he committed the murder for which he was convicted, and he was sentenced less than six months after the

517

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