384
O'Connor, J., dissenting
of the Court rejected the Franklin plurality's reliance on Jurek and disagreed with the plurality's suggestion that a State constitutionally could limit the "ability of the sentencing authority to give effect to mitigating evidence relevant to a defendant's character or background or to the circumstances of the offense." 487 U. S., at 183-185 (O'Connor, J., joined by Blackmun, J., concurring in judgment) (emphasis added); id., at 194-200 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). See also Penry v. Lynaugh, 492 U. S., at 320-321 ("[B]oth the concurrence and the dissent [in Franklin] understood Jurek as resting fundamentally on the express assurance that the special issues would permit the jury to fully consider all the mitigating evidence a defendant introduced").
The view of the five concurring and dissenting Justices that the facial review in Jurek did not decide the issue presented in Franklin is not surprising. After all, the same day we approved the Texas death penalty statute in Jurek, we also approved the death penalty statutes of Georgia and Florida. See Gregg v. Georgia, 428 U. S. 153 (1976) ( joint opinion); Proffitt v. Florida, 428 U. S. 242 (1976) ( joint opinion). Yet after Gregg and Proffitt and prior to Franklin, we held unconstitutional specific applications of the same Georgia and Florida statutes we earlier had approved. See Godfrey v. Georgia, 446 U. S. 420 (1980) (vague and overly broad construction of aggravating factor rendered death sentence unconstitutional); Hitchcock v. Dugger, supra (holding it unconstitutional to restrict jury's consideration of mitigating factors to those enumerated in the statute). Despite this majority view of Jurek and the Texas death penalty statute, the Court today relies on the minority view in Franklin. It goes so far as to note with approval the minority position that "Jurek foreclosed the defendant's argument that the jury was still entitled to cast an 'independent' vote against the death penalty even if it answered yes to the special is-
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