380
O'Connor, J., dissenting
Ante, at 360. The plurality opinion in Woodson recognized that allowing a sentencer to consider, but not to give effect to, mitigating circumstances would result in the arbitrary and capricious jury nullification that prevailed prior to Furman. See Woodson, 428 U. S., at 303. Furthermore, "[a] process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind." Id., at 304.
We returned to the issue of mitigating circumstances two Terms later. The Ohio death penalty statute required the sentencer to impose the death penalty on a death-eligible defendant unless one of three mitigating circumstances was established by a preponderance of the evidence. See Lock-ett v. Ohio, 438 U. S. 586, 599, n. 7, and 607 (1978) (plurality opinion). In determining the existence of the three circumstances, the sentencer was to consider " 'the nature and circumstances of the offense and the history, character, and condition of the offender.' " Id., at 612 (quoting Ohio Rev. Code Ann. § 2929.04(B) (1975)). The Ohio Supreme Court had held that the mitigating circumstances were to be construed liberally, but a plurality of this Court nevertheless found the statute too narrow to pass constitutional muster. 438 U. S., at 608. The Lockett plurality concluded from the post-Furman cases that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect 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." 438 U. S., at 604 (footnote omitted). The statute at issue specifically directed the sentencer to consider those very factors. Nevertheless, the plurality found the statute unconstitutional because it provided no method by which such consideration
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