Cite as: 509 U. S. 350 (1993)
O'Connor, J., dissenting
this particular combination of circumstances on direct review until today, however, cannot create an insurmountable reliance interest in the State of Texas, as the Court suggests. See ante, at 366-367. To allow our failure to address an issue to create such an interest would elevate our practice of letting issues "percolate" in the 50 States in the interests of federalism over our responsibility to resolve emerging constitutional issues. On direct review, the question is what the Constitution, read in light of our precedents, requires. In my view, the Eighth Amendment requires an additional instruction in this case.
III
A
There is considerable support in our early cases for the proposition that the sentencer in a capital case must be able to give full effect to all mitigating evidence concerning the defendant's character and record and the circumstances of the crime. The Court first recognized the need to give effect to mitigating circumstances in the group of capital cases decided after Furman v. Georgia, 408 U. S. 238 (1972). In three of those cases, Justices Stewart, Powell, and Stevens upheld capital sentencing laws against facial challenges, in large part because they believed that the statutes narrowed the category of defendants subject to the death penalty at the same time that they allowed for consideration of the mitigating circumstances regarding the individual defendant and the particular crime. See Gregg v. Georgia, 428 U. S. 153, 196-197 (1976) ( joint opinion); Proffitt v. Florida, 428 U. S. 242, 250-253 (1976) ( joint opinion); Jurek v. Texas, 428 U. S. 262, 270-274 (1976) ( joint opinion). In two other cases, the joint opinions found mandatory death penalty statutes unconstitutional. See Woodson v. North Carolina, 428 U. S. 280, 303-305 (1976) (plurality opinion); Roberts v. Louisiana, 428 U. S. 325, 333-336 (1976) (plurality opinion). A mandatory death penalty certainly limited the discretion of the sentencer, but it was not "consistent with the Constitution."
379
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